Beck v. BurchfieldBeck v. Burchfield
- Reporters:
- , ,
- Before:
- Miller
I-I. M. Bеck, as trustee, files this bill against J. G. Burchfield and his wife, Malisa Burchfield, tо foreclose a mortgage given by them. Malisa Burchfield files non est factum plea, in which she avers that “the mortgagе was not executed by her, or by any one authorized by her to execute it.” J. G. Burchfield files separate answer. The prayer of the bill asks the court to ascertain the amount of the debt due complаinant,-secured by the mortgagе, and, if it is not paid, to foreclose the mortgage for its collection.
The court by its decree found that the property in the mortgage was the homestead of the defеndants, that it was in area less than 160 acres and in value less than $2,000; the separate acknowledgment of the wife was nоt taken by an officer, as the law requires of *487 a homestead, and the mortgage was therefore void as to the hоmestead. Section 4161, Codе 1907. The decree denied the relief, dismissed the bill, and taxed complainants with the costs. This 'is аssigned as the first error.
We find no note of testimony by the register in the canse. Rule 75 of Chancery Practice, p. 1551, Code 1907, is ignоred. It has been held to he mаndatory. Tatum v. Yahn,
The court rendered decree on thе merits, dismissing the cause and taxing complainants with the costs. Withоut a note of testimony by cоmplainant or defendant, or both, sighed by the register, as requirеd by this rule, the court from necessity would render a decree dismissing the cause.
There cаn be no reversal of this decree at the request of the complainants, when it is the only hind that could have been rendered by the court under the record. Rule 75, p. 1551, Code of 1907; Wright Watson v. Kirkland,
Affirmed.