115 Neb. 643 | Neb. | 1927
This suit was instituted by appellee, hereinafter called plaintiff, against her husband, Andrew D. Anderson, and appellants Roy J. Cusack, and the First National Bank of North Bend, hereinafter called the bank, to have a mortgage then appearing of record in Dodge county on 120 acres of land situate therein, claimed by plaintiff as the homestead of herself, husband, and family, declared void and
The questions presented for our consideration are: Was such mortgage void for want of a legal acknowledgement? If void, was it so as to the entire tract, or only to the extent of a $2,000 in value homestead interest therein either to be set apart to plaintiff and her family in cash or an equivalent in land ? Was the plaintiff estopped by the facts pleaded from questioning the validity of such mortgage?
The facts reflected by this record show without question that, at the dates involved, prior thereto and ever since, such tract was owned and occupied by plaintiff, her husband and their minor children as a home, and was in fact their homestead under the laws of this state; that prior to the date of ■ the mortgage in question the husband had become indebted to the bank at numerous times, which indebtedness was evidenced by notes amounting in number to seven, and totaling about $11,000; that Cusack was a stockholder, president, and business manager of the bank at the time and long prior thereto; that on the date of this transaction, to wit, December 29, 1919, Cusack became desirous of having this indebtedness in some way secured to the bank, and so informed the husband, and in furtherance thereof Cusack drafted the mortgage, which is in the usual form of such instruments, and the note of $11,000 secured thereby, each, thereof running to him; that afterward each was signed by the plaintiff and her husband, and Thomas H. Fowler, a notary public, who was at the time a stockholder in the bank and its cashier, was called to witness and acknowledge the same, which he did in the usual form, so far as is indicated by the mortgage; that the note and mortgage were then left with the bank as the owner and holder thereof, and the bank procured the mortgage to be recorded and then returned to it, where such note and mortgage have since remained. While this note and mortgage ostensibly appear to be the property of Cusack, the evidence shows that each
In the course of the opinion in the last cited case, on page 772, it is stated: “In the last of these cases (Teske v. Dittberner, 70 Neb. 544) there is a very elaborate and exhaustive review of the authorities and of the principles involved, by the former Chief Justice Holcomb, and the doctrine is emphatically reaffirmed that such a contract is void as to the whole homestead tract, as well as to the reversionary interest, and this in both instances, without regard to value. * * * That this conclusion is sound and essential to the protection and preservation of the homestead right and is
In Anderson v. Schertz, 94 Neb. 390, we held: “A contract in writing to convey a homestead, which has been signed by both husband and wife, but which they have not acknowledged, is void, and will not be in any way enforced. The homestead means something more than and different from the $2,000 exemption which the statute allows the homestead claimant as against the claims of creditors; it means the actual home of the family, including the land and buildings which constitute the same, and the possession and ownership of all which may be successfully defended by either husband or wife during'the marriage state against the independent acts of either, and against the void acts of either, or both.”
This holding is affirmed by us, as to the homestead tract, in Davis v. Merson, 103 Neb. 397, and is now the settled law of this state.
Appellants cite as controlling in this case, Mudra v. Groeling, 89 Neb. 829. We have examined the facts as reflected by the opinion as written, and it is sufficient to say that such facts are materially different from those in this case; hence, the conclusion reached therein is without force here.
As to the question of estoppel: Plaintiff was clothed with the authority to prosecute this action. The indebtedness evidenced by the notes to which the $11,000 note in question was to be held as collateral was in no manner a debt or obligation owing by her to the bank. Neither it nor Cusack was in any manner misled by her to their injury, and both of them were possessed of full knowledge of all the facts entering into or in any manner connected with the execution and delivery of such mortgage. They each knew the premises to be the homestead of the plaintiff, her husband and family; they each knew that the note and mortgage
Futher, at the instance of the bank, Cusack and plaintiff, the First State Bank of North Bend, which at the time owned two notes, each secured by mortgage on this same 120 acres of land executed and delivered to it by plaintiff and her husband, was made a party defendant, and by way of answer and cross-petition it challenged the authority of the notary to take the acknowledgement to the mortgage here in question. The trial court found the two mortgages of the First State Bank to be in full force and effect, and sustained its challenge to the mortgage running to Cusack. This finding is in harmony with our holding in Treveit, Mattis & Baker Co. v. Reagor, supra, wherein we stated: “A mortgagee, holding a mortgage upon a homestead, properly executed and acknowledged by husband and wife, may ordinarily take advantage of the invalidity of a prior mortgage upon the homestead which is invalid because not properly acknowledged.” Hence, the court was not only within the law applicable to the facts in finding in favor of the plaintiff as to this mortgage in question, but was also within the law in holding such mortgage void on the cross-petition of the First State Bank.
The judgment of the trial court is right and is in all things
Affirmed.
