153 N.W. 286 | N.D. | 1915
Lead Opinion
(after stating the facts as above). There can be no doubt that, under the common law rule and in the absence of a married woman’s act such as we have in North Dakota, the covenants of the wife would be merely deemed a waiver of her homestead interest, and that the wife would not be estopped from asserting her after-acquired title.
This rule, however, is based upon the old common-law theory of the contractual incapacity of a married woman. Griner v. Butler, 61 Ind. 362, 366, 28 Am. Rep. 675; Blain v. Harrison, 11 Ill. 384; Knight v. Thayer, 125 Mass. 25.
It can have no application in a state like North Dakota, where that incapacity has been entirely removed by the statute, and a married woman has the same contractual ability as a feme sole or as her husband himself. Griner v. Butler, 61 Ind. 362, 366, 28 Am. Rep. 675; Guertin v. Mombleau, 144 Ill. 32, 33 N. E. 49; Knight v. Thayer,
The act of this state provides that “either husband or wife may enter into any engagement or transaction with the other or with any other person respecting property which the other might if unmarried. The wife, after marriage, has, with respect to property . . . the same liabilities as before marriage, and in all actions by or against her she shall sue and be sued in her own name.” Section 4411, Compiled Laws of 1913. In the mortgage before us the wife not merely agreed to pay the debt (though she did not sign the notes), but she made express covenants of quiet enjoyment. The mortgage, indeed, can well be held to have been given in contemplation of just such a contingency as that before us. In it “the said Michael Volk and Anna Voile, his wife, further covenant, and agree to and with the said party of. the first part, his heirs, executors, administrators, and assigns, to pay said sum of money above specified at the time and in the manner above mentioned.” The mortgage in question further recites that both of said parties “are lawfully seised of the said premises, and that they have good right to convey the same; that the same are free from all encumbrances; that the said party of the second part, his heirs and assigns, shall quietly enjoy and possess the same, and that the said parties of the first part will warrant and defend the title to the same against all lawful claims.”
We can see no reason why, in a court of equity at any rate, these covenants should not be held to be binding. We held, it is true, in the case of Martyn v. Olson, 28 N. D. 317, 148 N. W. 834, that the heirs of a deceased entryman who completed the proof after the death of such entryman took, not as heirs, but as donees or purchasers of the land, and that they could not be required to pay a mortgage which was given by the entryman during his lifetime. In that case, however, the heirs had nothing to do with the original loan, and had agreed to pay no sum or sums of money whatever; nor had they entered into any covenants of warranty or of quiet possession. They took from the government as new purchasers or donees, and not as heirs, and
In the case at bar, however, we have a proceeding in equity where the plaintiff seeks to have the title quieted in her. At the threshold she is not merely met by a covenant made by her ancestor which was extinguished when the title was reinvested in the government, but by a personal promise and covenant which she herself made. Surely the maxims apply that “he who seeks equity must do equity,” and that “he who comes into a court of equity must come with clean hands.” Can she, in a court of equity, seek to quiet title in herself when she herself has promised to quiet and defend that title in the defendant? We hold that she cannot.
Not only is this holding in conformity with the principles of equitable jurisprudence, but it is, we believe, in accordance with a sound public policy. There is every reason to believe that the credit was extended in the case at bar on the assumption that, even if the husband died before final proof, his wife, if she completed his entry, would live by his contract. The necessity of giving mortgages before the time of final proof is a fact, and not a theory among us. Even the Federal government has yielded to this fact. It first held that no such mortgage was valid. It and the courts subsequently held that such mortgages were enforceable provided that the entryman proved up before his death, and the title became vested when such proof was made. See Martyn v. Olson, supra; Adam v. McClintock, 21 N. D. 483, 131 N. W. 394; Weber v. Laidler, 26 Wash. 144, 90 Am. St. Rep. 726, 66 Pac. 401. They did this because of the exigencies of the situation, and not that the entryman might be injured and defrauded, but that he might be able to obtain credit, without which he would often lose the results of all of his labor and sacrifices. They, in short, took cognizance of the fact that dry seasons and failures of crops have been only too common; that the entryman must live during his period of residence and proof, and that unless such entryman can get credit from the local merchants and banks by giving some measure of security
In speaking generally on the subject of the right of a wife to assert an. after-acquired title, against the covenants of a prior conveyance, the supreme court of Minnesota in the case of Sandwich Mfg. Co. v. Zellmer, 48 Minn. 408, 51 N. W. 379, says: “The question here presented is whether the defendant Bredericke, who expressly joined in the covenants in the mortgage to plaintiff, is bound thereby; for if she is liable thereon, or is estopped thereby, as if she had not been under coverture, the conveyance to her inured to the benefit of the plaintiff by virtue of her covenant, and its mortgage is operative as a valid subsisting lien upon the land, as against her and her assignee, Herman Zellmer. It is hardly necessary to refer to the nature of a married woman’s disability at the common law. She was not bound by her contracts or covenants, and was not estopped thereby from setting up an after-acquired title. It was competent for the legislature to emancipate her from such disability, and enable her to obligate herself as if unmarried. The question here involved turns upon the construction of the statute of this state touching the rights and liabilities of married women. Prior to the act of 1869, chap. 56, the statute had secured to them their separate estate, real and personal, with the rents, profits, and income thereof. But she could not dispose thereof without the consent of her husband; and her general common-law disability to make contracts remained. Pub. Stat. 1858, chap. 61, § 106, p. 571; Revision 1866, Gen. Stat. chap. 69, p. 499; and chap. 40, p. 328, § 2;
We are not unmindful of the case of Snoddy v. Leavitt, 105 Ind. 357, 5 N. E. 13, and of other cases decided under statutes similar.to that passed upon in that case. It is to be noticed, however, that in Indiana the statute merely removed the wife’s contractual disability in relation to her own separate estate. It did not, as does that of North Dakota, remove her contractual disabilities altogether, and place her upon the same footing as if she were unmarried, and as her husband himself.
Nor, too, are we unmindful of the cases of Roberts v. Roberts, 10 N. D. 531, 88 N. W. 289, and Omlie v. O’Toole, 16 N. D. 126, 112 N. W. 677, in which this court held that the covenant to pay the debt contained in the body of the mortgage which was executed on the husband’s land, and which covenants were signed by the wife as well as the husband, did not make the wife a surety to the debt, so that payments made by the husband without the wife’s knowledge would fail to prevent the running of the statute of limitations and defeat a foreclosure of the mortgage after the original period had run. We are also aware that in the former case the court stated that the mortgage “was a waiver of the wife’s homestead rights simply.” In that case, however, the court did not pass upon any covenants of title or quiet possession, and was considering the question of the statute of limitations merely. So, too, it was not a case where the plaintiff was coming into a court of equity seeking relief, but one in which she had been brought into a court of equity by the mortgagee.
The judgment of the District Court is reversed, and the cause is remanded with directions to enter judgment quieting the title to the land in controversy in the defendant, Edward L. Yager.
Rehearing
On Petition for Rehearing.
The only doubt we have entertained after reading the petition for rehearing in this case is whether the fact that the mortgage was foreclosed for more than was in fact due gives to the plaintiff any rights in the premises. We are satisfied, however, that the mistake, and the evidence shows it to have been a bona fide mistake, gives no
There is no such proof in the case at bar, nor do we find any record at any time of any attempt or offer of the plaintiff to redeem from the mortgage. The mistake, indeed, was first brought to the attention of the court by the attorneys for the defendant, and there is no claim that the excess amount, which was only $127.82, in any way interfered with the bidding at the sale, or kept bidders therefrom, or in any way prejudiced the interests of the plaintiff.
The petition for a rehearing is denied. •