Yerkes v. Hadley

• Decision Date: 05 October 1888
• Citation: 40 N.W. 340,5 Dakota 324
• Parties: Yerkes v. Hadley et al.
• Court: North Dakota Supreme Court

40 N.W. 340

5 Dakota 324

Yerkes v. Hadley et al.

Supreme Court of Territory of Dakota

October 5, 1888

Appeal from district court, Cass county; before Justice MCCONNELL.

Action by Harman Yerkes against Kate I. Hadley and Lafayette Hadley her husband, to recover the possession of a lot in the city of Fargo. Judgment for defendants, and plaintiff appeals.

Stone & Newman, for appellant. Taylor Crum, for respondents.

CARLAND J.

The record in this action discloses that on and prior to December 8, 1881, Lafayette Hadley and Kate Irene Hadley, his wife were in possession of and lived upon lot 17, in block 4, of the city of Fargo, in this territory; that on said date they executed to Harman Yerkes their joint and several promissory note for $500, with interest at 10 per cent. per annum payable annually, which note was to be payable in 5 years from the date thereof. The interest to become due was evidenced by joint and several interest coupon notes, attached to said original note, and signed by the makers thereof. To secure the payment of this note, and the interest to become due thereon, said Lafayette Hadley and Kate Irene Hadley made and executed to said Harman Yerkes their mortgage on the premises hereinbefore mentioned, which mortgage was duly recorded on the said 8th day of December, 1881, as provided by law. The mortgage in form was what is termed a mortgage deed, being an absolute deed of bargain and sale, with joint covenants of seizin, quiet possession, and warranty. It also contained the usual defeasance common to such instruments. Default having been made in the conditions of said mortgage, it was duly and legally foreclosed, and the land in dispute was purchased by Harman Yerkes on the 11th day of March, 1884. No question was raised as to the regularity of the foreclosure proceedings. A sheriff's deed was duly issued to the purchaser on March 20, 1885. Claiming title through said foreclosure, Harman Yerkes commenced this action to obtain possession of said lot 17. The defendants, by their answer, averred, and such was the proof on the trial, that on the 10th day of June, 1878, the Northern Pacific Railroad conveyed said lot 17 to one A. H. Moore, which conveyance was duly recorded May 31, 1880; that said A. H. Moore conveyed said lot by quitclaim deed to Robert Hadwin, on March 11, 1879, which quitclaim deed was duly recorded August 17, 1883; that on the 12th day of June, 1885, said Robert Hadwin granted and conveyed said lot to said Kate Irene Hadley, which conveyance was duly recorded on August 15, 1885. At the trial the court found for the said defendant Kate Irene Hadley, and adjudged that she was the owner of said lot. From this judgment appellant appealed to this court.

It will be seen that the facts thus stated raise the single question as to whether the title acquired by Kate Irene Hadley subsequent to the execution and foreclosure of the mortgage given by her on the 8th day of December, 1881, inured to the benefit of the appellant, Harman Yerkes. In considering this question, we must bear in mind that Kate Irene Hadley was a joint debtor with her husband, so far as the record discloses. She signed the note, and the mortgage contained the following condition: "Provided, nevertheless, that if the parties of the first part, their heirs, executors, or administrators, shall pay or cause to be paid to the said party of the second part, his heirs, executors administrators, or assigns, the sum of seven hundred and forty-six dollars, according to the conditions of six promissory notes of even date herewith." From all that appears from the record, Kate Irene Hadley may have received all of the consideration for the mortgage. This being so, she had the authority, under the laws of this territory, to execute a mortgage to secure said indebtedness, in the same manner as if she were unmarried. Section 661, Civil Code, as amended by section 2, c. 2, Laws 1881; section 79, Civil Code. We cannot presume that she was executing a mortgage on her husband's property, for the reason that it appears that her husband never had any ownership in the property mortgaged. Having the same rights as an unmarried woman in regard to the granting or incumbering of her property, Kate Irene Hadley could make the mortgage to Harman Yerkes, and could bind herself by any lawful covenant inserted therein, the same as any other person. The authorities which hold that a married woman may set up an after-acquired title as against her deed and mortgage, and which also hold that she is not estopped by the covenants of warranty in a deed of her husband's lands to set up an after-acquired title as against the deed which she has signed, place the rule upon the ground that she is not sui juris, and hence cannot be considered as authority in jurisdictions where married women may "make any engagement or transaction with any other person respecting property, which she might if unmarried." Civil Code, § 79. It must be conceded, therefore, that Kate Irene Hadley had the power to bind herself by the covenants contained in the mortgage to Yerkes. This being so, what effect would the covenants have upon title to said lot, acquired by her at any time subsequent to the execution of the mortgage? There can be no doubt but that the covenants of warranty would forever estop Kate Irene Hadley from asserting an after-acquired title to the premises in question. It would estop any other person; why not her? But it is claimed that, she having acquired the title that she sets up subsequent to the foreclosure of the mortgage, the estoppel does not apply; that in order to have the after-acquired title inure to the benefit of the purchaser at foreclosure sale, it must have been acquired while the...