Wilson v. Wilson

• Decision Date: 09 October 1909
• Docket Number: 15,422
• Citation: 122 N.W. 856,85 Neb. 167
• Parties: ARTHUR WILSON ET AL., APPELLANTS, v. BARTUS WILSON, APPELLEE
• Court: Nebraska Supreme Court

122 N.W. 856

85 Neb. 167

ARTHUR WILSON ET AL., APPELLANTS, v. BARTUS WILSON, APPELLEE

No. 15,422

Supreme Court of Nebraska

October 9, 1909

REHEARING of case reported in 83 Neb. 562. Affirmed as modified.

AFFIRMED.

OPINION

BARNES, J.

Our former opinion in this case will be found in 83 Neb. 562, to which reference is made for a comprehensive statement of the facts. It was contended on the rehearing that the deed from Charles Wilson, deceased, to Bartus Wilson, the defendant herein, which was witnessed by no one but the wife of the grantor, was void, because she was incompetent to act in that capacity, and that we erred in our former opinion by holding that her certificate of acknowledgment to that instrument subsequently made rendered it a valid conveyance of the real estate in question. Upon a careful reconsideration of this case, we find that the authorities are somewhat divided upon that question; but, as the judgment of the trial court must be affirmed upon other grounds, we express no opinion on this point. It will be observed that this is an action at law to obtain an order of partition. During the progress of the trial it was found that the homestead of the deceased was included in the deed, and it was conceded that as to that part of the premises the conveyance was void. Thereupon, in order to proceed with the trial, the parties stipulated that the 40 acres on which the family dwelling house was situated at the time the conveyance was made should constitute the homestead and at the conclusion of the trial the court found that the plaintiffs were entitled to have the homestead partitioned, but that the remainder of the premises was conveyed by the deed in question to the defendant, Bartus Wilson, and judgment was rendered accordingly.

Counsel first claims that the deed is void for want of proper acknowledgment. We think that this contention cannot be sustained. In Harrison v. McWhirter, 12 Neb. 152, 10 N.W. 545, it was said: "A deed of real estate, executed, witnessed and delivered, is effectual to pass title, though not lawfully acknowledged or recorded." In Horbach v. Tyrrell, 48 Neb. 514, 67 N.W. 485, we held that the functions of an acknowledgment are twofold: First, to authorize the deed to be given in evidence without further proof of its execution; and, second, to entitle it to be recorded. And unless the real estate conveyed or incumbered is the homestead of the grantors, an acknowledgment is not essential to the validity of the conveyance. This rule was followed and approved in Holmes v. Hull, 50 Neb. 656, 70 N.W. 241; Linton v. Cooper, 53 Neb. 400, 73 N.W. 731; Interstate Savings & Loan Ass'n v. Strine, 58 Neb. 133, 78 N.W. 377; Morris v. Linton, 61 Neb. 537, 85 N.W. 565. "As between the parties, in the absence of any statutory provision making the acknowledgment an essential part of the instrument, the title passes immediately upon the execution and delivery of the instrument; and, as against the grantor, his heirs and devisees, such instrument is as valid without an acknowledgment as with one. In other words, there is no necessity for acknowledgment as between the parties." 1 Cyc. 514. This rule is supported by many cases decided by this court. There is no statute in this state requiring acknowledgment of a deed to real estate which does not convey the homestead, except to entitle it to be recorded, and we are of opinion that the district court upon this point properly held that the deed in question was sufficient to convey all of the premises described therein, except the homestead of the grantor.

It is next contended that the wife of the grantor was an incompetent witness to the execution of the deed in question and, as it was witnessed by her alone, it is void, and conveys no title to the defendant. Whether the wife of the grantor was a competent witness to the execution of the deed need not now be determined. In Prout v. Burke, 51 Neb. 24, 70 N.W. 512, it was held that a mortgage, not on the homestead, executed and delivered, is valid between the parties, though not lawfully acknowledged nor witnessed. In Holmes v. Hull, 50 Neb. 656, 70 N.W. 241, it was said: "A mortgage upon real estate, other than the homestead, executed and delivered by the mortgagors, is valid between the parties and those having knowledge of its existence, although not lawfully acknowledged or witnessed." In Pearson v. Davis, 41 Neb. 608, 59 N.W. 885, we held that a deed to real estate, executed, acknowledged and delivered by the grantor, is valid between the parties, though not witnessed. We think, therefore, we may safely say that an unacknowledged and unwitnessed deed, if executed and delivered, is sufficient to convey title; that its validity cannot be questioned by the parties or their heirs at law, and we have no hesitancy in applying the...