Yusko v. Studt
| Decision Date | 09 July 1917 |
| Docket Number | 1915 |
| Citation | 163 N.W. 1066,37 N.D. 221 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Morton County, J. M. Hanley, J.
Affirmed.
Judgment of the lower court affirmed, with costs.
B. W Shaw and P. S. Jungers, for appellants.
The certificate of acknowledgment of a notary public, regular upon its face, raises a presumption of due execution which must be overthrown. This can only be done by clear, positive and convincing proof of fraud, or that the certificate is false from some other reason. Uvalde Asphalt Paving Co v. New York, 90 A.D. 327, 91 N.Y.S. 131.
A high degree of proof is required to impeach such a certificate. Patnode v. Deschenes, 15 N.D. 108, 106 N.W. 573; Northwestern Loan & Bkg. Co. v. Jonasen, 79 N.W. 843; Pierce v. Feagans, 39 F. 592; Smith v. McGuire, 67 Ala. 34; Griffin v. Griffin, 125 Ill. 436, 17 N.E. 785; Marston v. Brittenham, 76 Ill. 611, 40 Am. Rep. 193; Strauch v. Hathaway, 101 Ill. 11; Calumet & C. Canal & Dock Co. v. Russell, 68 Ill. 438; Bearss v. Ford, 108 Ill. 26; Warrick v. Hull, 102 Ill. 283; Hughes v. Coleman, 10 Bush, 246; Blackman v. Hawks, 89 Ill. 512; Heeter v. Glasgow, 79 Pa. 80, 21 Am. Rep. 46; Russell v. Baptist Theological Union, 73 Ill. 337; 1 Thomas, Mortg. § 500; Whart. Ev. § 1052; Devlin, Deeds, p. 540, § 534; Albany County Sav. Bank v. McCarty, 149 N.Y. 71, 43 N.E. 427.
Denial by the grantors of the signatures or acknowledgment to a conveyance, although supported by handwriting experts to the effect that the signatures are not those of the grantors, is not sufficient to rebut the presumption of genuineness which the notary's certificate imports. Tunison v. Chamblin, 88 Ill. 378; Ramsburg v. Campbell, 55 Md. 227; Blackman v. Hawks, 89 Ill. 512.
Plaintiffs' silence and their paying of the interest are sufficient to estop them to deny this mortgage. Continental Nat. Bank v. National Bank, 50 N.Y. 575; Engholm v. Ekrem, 18 N.D. 185, 119 N.W. 35; Emerson-Newton Implement Co. v. Cupps, 15 N.D. 606, 108 N.W. 796; Rothschild v. Title Guarantee & T. Co. 204 N.Y. 458, 41 L.R.A. (N.S.) 740, 97 N.E. 879.
But even that which amounts to a forgery may be ratified. Ofenstein v. Bryan, 20 App. D. C. 1; Hefner v. Vandolah, 62 Ill. 483, 14 Am. Rep. 106; Goodspeed v. Cutler, 75 Ill. 534; Paul v. Berry, 78 Ill. 158; Murtaugh v. Colligan, 28 Ill.App. 433; Casco Bank v. Keene, 53 Me. 103; Greenfield Bank v. Crafts, 4 Allen, 447; Bartlett v. Tucker, 104 Mass. 336, 6 Am. Rep. 240; Wellington v. Jackson, 121 Mass. 157; Central Nat. Bank v. Copp, 184 Mass. 328, 68 N.E. 334; Corser v. Paul, 41 N.H. 24, 77 Am. Dec. 753; Howard v. Duncan, 3 Lans. 174; Shroyer v. Smeltzer, 38 Pa. S.Ct. 400; Shannon v. Castner, 21 Pa. S.Ct. 294.
Halpern & Moses and J. K. Murray, for respondents.
"To constitute an acknowledgment, the grantor must appear before the officer, and such grantor must in some manner, with a view of giving it authenticity, make an admission to such officer of the fact that he had executed such instrument." Severtson v. Peoples, 28 N.D. 372, 148 N.W. 1054.
An equitable estoppel arises when one party by his faulty conduct has induced his adversary to omit some act, which but for said fault and negligence he would have performed and which if done might have prevented loss. Leather Mfrs. Nat. Bank v. Morgan, 117 U.S. 108, 29 L.Ed. 816, 6 S.Ct. 657.
Estoppel in pais arises where one has induced another to occupy a position he would not have taken but for the acts of the former and his declaration. Dickerson v. Colgrove, 100 U.S. 578, 25 L.Ed. 618; Steed v. Petty, 65 Tex. 490; Hodge v. Ludlum, 45 Minn. 290, 47 N.W. 805.
A representation to create and amount to an estoppel must have been acted upon. Stuart v. Lowry, 42 Minn. 473, 44 N.W. 532; Doctrine of Estoppel in Pais, Stevens v. Ludlum, 13 L.R.A. 270, note; Engholm v. Ekrem, 18 N.D. 185, 119 N.W. 35.
The conduct of the husband cannot operate as an estoppel against the wife, she being a stranger to such conduct. Gober v. Smither, Tex. Civ. App. , 36 S.W. 910; Law v. Butler, 44 Minn. 482, 9 L.R.A. 856, 47 N.W. 53; Cumps v. Kiyo, 104 Wis. 656, 80 N.W. 937; Somers v. Somers, 27 S.D. 500, 36 L.R.A.(N.S.) 1024, 131 N.W. 1091.
The mortgages here in question are void instruments, and as such cannot be ratified. And even if ratification were possible, there is no evidence thereof in this case. Silander v. Gronna, 15 N.D. 552, 125 Am. St. Rep. 616, 108 N.W. 544; Gaar, S. & Co. v. Collin, 15 N.D. 622, 110 N.W. 81; Helgebye v. Dammen, 13 N.D. 167, 100 N.W. 245; Mandan Mercantile Co. v. Sexton, 29 N.D. 602, 151 N.W. 780, Ann. Cas. 1917A, 67; Rasmussen v. Stone, 30 N.D. 451, 152 N.W. 809; Dieter v. Fraine, 20 N.D. 484, 128 N.W. 684.
Nor can damages be recovered against the husband upon a contract to convey the homestead of himself and wife. Waples, Homestead & Exemption, p. 384; Weitzner v. Thingstad, 55 Minn. 244, 56 N.W. 817; Hodges v. Farnham, 49 Kan. 777, 31 P. 606; Cowgell v. Warrington, 66 Iowa 666, 24 N.W. 266; Donner v. Redenbaugh, 61 Iowa 269, 16 N.W. 127; Justive v. Souder, 19 N.D. 613, 125 N.W. 1029.
The recital in a subsequent valid mortgage, of the existence of the former fraudulent mortgage, is not conclusive on the part of the wife, as to the validity of such mortgage to which such recital relates. It is not a ratification. Franklin Land Co. v. Wea Gas, Coal & Oil Co. 43 Kan. 518, 23 P. 630; Hart v. Church, 126 Cal. 471, 77 Am. St. Rep. 195, 58 P. 910, 59 P. 296; Hancock v. Herrick, 3 Ariz. 247, 29 P. 13; Howell v. McCrie, 36 Kan. 636, 59 Am. Rep. 584, 14 P. 257; Jerdee v. Furbush, 95 Am. St. Rep. 914, note; Rothschild v. Title Guarantee & T. Co. 204 N.Y. 458, 41 L.R.A.(N.S.) 740, 97 N.E. 879; Comp. Laws 1913, § 9887.
Without some element of estoppel or some new consideration, ratification in such cases cannot be had. Shinew v. First Nat. Bank, 84 Ohio St. 297, 36 L.R.A.(N.S.) 1006, 95 N.E. 881, Ann. Cas. 1912C, 587; Harris v. Simpson, 14 Am. Rep. 106, note, and cases cited; Cornerstone Bank v. Rhodes, 5 Ind. Terr. 250, 67 L.R.A. 812, 82 S.W. 739; Fall River Nat. Bank v. Buffinton, 97 Mass. 498; Continental Nat. Bank v. National Bank, 50 N.Y. 575; Owsley v. Philips, 78 Ky. 517, 39 Am. Rep. 358; Warren v. Fant, 79 Ky. 1; Garrott v. Ratliff, 83 Ky. 384; Young v. Hildreth, 1 Ky. L. Rep. 401; Workman v. Wright, 33 Ohio St. 405, 31 Am. Rep. 546; Hood v. Nichols, 7 Ohio Dec. Reprint, 157; McHugh v. Schuylkill County, 67 Pa. 391, 5 Am. Rep. 445; Second Nat. Bank v. Wentzel, 151 Pa. 142, 24 A. 1087; Henry Christian Bldg. & L. Asso. v. Walton, 181 Pa. 201, 59 Am. St. Rep. 635, 37 A. 261; Bucher v. Meixell, 5 Pa. Dist. R. 375.
The action is a statutory one brought by George Yusko and Anna Yusko, husband and wife, to determine adverse claims and quiet the title in the plaintiffs to the following described real estate situated in Morton county, North Dakota, to wit, the north half of the northwest quarter, the southwest quarter of the northwest quarter, and the northwest quarter of the northeast quarter, all in section 26, township 137, range 90, and containing 160 acres more or less.
The complaint is in the statutory form.
The defendants by their separate answers and counterclaims allege the existence of their respective liens upon the property involved by reason of two alleged mortgages,--one to Otto Studt for $ 1,000, and the other to E. H. Kettler for $ 150,--and defendants by their separate answers demanded the foreclosure of such mortgages.
Plaintiffs by their amended reply denied that Anna Yusko, wife of the plaintiff George Yusko, ever executed or acknowledged the mortgage in question, or the notes secured by said mortgages, and that Anna Yusko, wife of George Yusko, never authorized the execution of said notes and mortgages by any other person whatsoever. And further allege that, long prior to said purported execution of said notes and mortgages, and at the time of the said execution of the notes and mortgages, the said plaintiffs were husband and wife and were living together with their family upon the land involved herein, and were occupying the same as a homestead under the laws of the state of North Dakota, and have at all times since the said date continuously lived upon and occupied and still do live upon the land involved, and occupy the same as a homestead under the laws of the state of North Dakota. That the said purported mortgages are not liens against the said real estate, and that the same are void.
The facts appear to be as follows: On the 20th day of December 1909, the plaintiff George Yusko, together with a daughter, Annie Yusko, executed and delivered to the defendant Otto Studt a real estate mortgage for the sum of $ 1,000, with interest at 10 per cent per annum, which mortgage covered and described the said land. The mortgage was filed on the 23d day of December, 1909, in the office of the register of deeds of Morton county, North Dakota. On the 20th day of December, 1909, the plaintiff George Yusko, and his daughter Annie Yusko, executed and delivered to the defendant E. H. Kettler a real estate mortgage covering the premises in question, securing the sum of $ 150, with interest at 10 per cent, which mortgage was filed for record on the 23d day of December, 1909, in the office of the register of deeds of Morton county, North Dakota. That the plaintiff Anna Yusko, wife of the plaintiff George Yusko, did not execute, deliver, or acknowledge either of the said mortgages; that she had no knowledge of their execution and delivery at the time they were executed and delivered, and received none of the proceeds of such mortgages. The premises in question did not exceed in value $ 5,000, nor in extent more than 160...
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