31 Neb. 853 | Neb. | 1891
This was an action to foreclose a mortgage brought in the district court of Howard county by Simeon Phillips, plaintiff and appellee, against Isaac C. Bishop, Ida Bishop, The Nebraska Loan & Trust Company, A. G. Kendall, The Chicago Lumber Company, and N. J. Paul, defendants and appellants.
N. J. Paul filed an answer and cross-petition setting up, among other things, the execution and delivery by Isaac C. Bishop and Ida Bishop of a certain mortgage securing
For further answer this defendant denies that said N. J. Paul purchased the said notes or either of them as stated in said cross-petition or otherwise, before due or at any other time; denies that the said Paul is the owner thereof; denies that said Paul is the real party in interest in the cause of action set up in this cross-petition or either of them, or has been. And for further answer to the said cross-petition this defendant states that he, the said Isaac C. Bishop, and Ida Bishop are husband and wife and have been for the last sixteen years; that the issue of said marriage are six children ; that in the spring of 1874 said I. C. Bishop entered the southwest quarter of section 32,15,10, as a homestead under the homestead laws of the United States; that ever since said time the said I. C. Bishop and Ida Bishop, with their family, have resided upon and cultivated the said 160 acres of land as their homestead, and did at the time said mortgage was and is dated and claimed to have been executed and acknowledged; have owned and claimed the same as such homestead ever since the said entry of 1874 and have not had or occupied any other; that the same is not within the corporate limits of any town, village, or city, or was not at the date of the said pretended mortgage or acknowledgment, and was not or is not of the value of over $2,000 over and above the mortgages which were unpaid and are legal binding liens on said homestead, at the date of said mortgage and pretended acknowledgment; that said mortgage in the said cross-petition mentioned is null and void, is a cloud upon said described land and especially upon the said homestead; that these defendants have no adequate remedy at law to remove the same.
Further answering, defendant I. C. Bishop states : That on the 10th day of October, 1887, and during all the years ’87, ’86, ’85, and at all of the times hereinafter mentioned,
Wherefore defendant prays that he may be allowed the above credit of $2,943.28, after an accounting has been had on the claim set up in this defendant’s answer and in the answer and cross-petition of the said N. J. Paul; that the said mortgage, mentioned in said answer and cross-petition of N. J. Paul may be declared null and void and may be ordered canceled on the record of said PIoward county, and for such other and further relief as may be just and equitable, and for the costs of this action.
And afterwards, on the 20th day of December, 1889, Ida Bishop filed her separate answer alleging that she is the wife of I. C. Bishop and has been for the last sixteen years; denying any knowledge of the execution of the notes or mortgage by I. C. Bishop; denies “that she ever acknowledged” the said mortgage in any manner; never admitted the execution or signing thereof to be her voluntary act and deed, either before the said W. L. Thompson, notary public, or any other person or officer; denies that she ever signed the said mortgage in the presence of the said Thompson or any other person as claimed in said cross-bill, or in any other manner at the time therein stated, or at any other time, or that she ever received any consideration for so doing, or that she ever authorized any one else to do so for her; claims the southwest quarter of section thirty-two (32), township fifteen (15), range ten (10) as their homestead; that said homestead is not of the value of over two thousand ($2,000) dollars over and above the first mortgage on said premises.
To the answer of Ida Bishop the defendant, N. J. Paul, filed a general denial. To the answer of I. C. Bishop the said N. J. Paul and the St. Paul National Bank filed a reply admitting that the St. Paul National Bank is a corpo
There was a trial to the court, which ordered and adjudged that N. J. Paul, within thirty days, execute, acknowedge, and deliver to the clerk of the court, for the use of Isaac C. Bishop and Ida Bishop, a release of the mortgage described in his cross-petition so far as the same covers, or appears of record to cover, the land described, and that failing so to do a duly certified copy of this decree, recorded in the office of the county clerk of Howard county, operate as such release; and that said Paul recover of Isaac C. Bishop the sum of $4,223.71, together with the costs of this suit; and if said Bishop fails after twenty days to pay said sum, with interest at the rate of seven per cent per annum, that the sheriff of Howard county sell the lands and tenements described as upon executions at law, subject, nevertheless, to the incumbrances now existing thereon, aggregating $1,500 with accrued interest, if any, and from the proceeds of the sale pay the costs and pay the said N. J. Paul $4,223.71, with interest, and bring the residue into court to await the order of the court. To which judgment the defendant, N. J. Paul, excepted on the record, and appealed the cause to this court.
At the hearing, the district court found adversely to the claim set up by the appellees, N. J. Paul and the bank, in their cross-bill as mortgagees of Ida Bishop, the wife of Isaac C. Bishop, to the southwest quarter of section 32,
Counsel contend that the answer of the wife “is but a simple denial that she ever acknowledged the mortgage ; ” and as to whether a general denial is sufficient to raise the issue against the presumption of law, cites the rule held in Pereau v. Frederick, reported in 17 Neb., 119, that “a certificate of acknowledgment of a deed, or mortgage, is prima facie correct, and cannot be impeached except for fraud, collusion, or imposition.” We find, however, in the addendum to counsel’s brief, as well as in the record, that “on December 20, 1889, the wife filed her separate answer under oath, alleging that she is the wife of Isaac C. Bishop, and has been for the last sixteen years; denying any knowledge of the execution of the notes and mortgage, and denying that she ever acknowledged the mortgage in any manner, or that she ever admitted the signing, or execution of it to be her voluntary act and deed, either before the notary public who certified it, or before any other person or officer, and denied that she executed it in the presence of W. L. Thompson, or that of any other person, as set up in the cross-bill of the appellees; she denied that she ever received any consideration for so doing, or that she ever authorized any one to do so for her.” This denial would seem to be specific and particular rather than
Counsel for appellees cite still more weighty reasons and authority, considering that the mortgage was to secure a debt for money loaned, though usurious, and the wife had placed her signature to it, though denying the bonafides of the act.
In Thompson’s treatise on Homesteads and Exemptions, sec. 533, it is said “that the power of the wife to go behind her acknowledgment of deeds of this character has been freely discussed, and the courts in Texas have held that she has the right to show that her signature was procured through fraudulent representations and false promises. (33 Tex., 86.) And, a fortiori, she has the right when she has signed such deed under duress. (11 Kan., 19.) But Justice Campbell, in delivering the opinion of the supreme court of Michigan in the case of Norton v. Nichols, 35 Mich., 150, where the sole objection to the acknowledgment was that it was taken in the presence of her husband, and it was neither averred nor shown that the mortgage was executed by her unwillingly, declared in forcible language: ‘There is no equity whatever in the bill, which, on its face, is an at-
It will be observed that the analogies in the examples cited in this authority are not complete with the case at bar.
In a suit in equity brought by a wife to avoid a mortgage on the homestead of her husband during their family occupation of it, on the ground that she never knowingly signed or acknowledged it, the supreme court of Michigan again said: “All presumptions in cases of this kind must be treated with reasonable respept to the improbability of misconduct in a reputable officer, or of forgery which he ought to have discovered if it existed; and the burden of proof was on the complainant to make out a plain case. The evidence was conflicting; the officer swore distinctly as to the fact of taking the acknowledgments; there was corroborating evidence, and the bill was dismissed.” (Hourtienne v. Schnoor, 33 Mich., 274.) Counsel contend that “the testimony of an officer who has taken an acknowledgment can add nothing to his certificate.” In the case cited not only was the testimony of'the officer required, but corroborating evidence was received by the court. In the present case the officer’s deposition was offered on the trial, and overruled by the court on grounds not stated in the record, but without exceptions.
In the case of Morris v. Sargent, 18 Iowa, 90, a different conclusion was reached. A husband borrowed $11,250 on a deed of trust of his homestead, purporting to have been executed jointly by himself and his wife. The land having gone to sale under the conditions of the deed of trust, the wife, joined by the husband, brought a bill to
However harsh it may be deemed by the creditor to be deprived of an apparent mortgage security on a debtors homestead, superinduced by the debtor himself, it is the law of the state, never dispensed with, that “the homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and" acknowledged by both husband and wife.” (Comp. Stats., chap. 36, sec. 4; 17 Neb., 629; 19 Id., 211; 20 Id., 109; 25 Id., 175.) The wife cannot be deprived of her homestead by the husband’s mortgage. (19 Id., 631.) Deeds and mortgages of real estate, except leases for one year or less, must be signed by the grantor in the presence of one competent witness, who shall subscribe his name as such, and the grantor shall acknowledge the instrument to be his (or her) voluntary act and deed, before a judge, clerk of a court, justice of the peace, or notary public, only within their respective territorial jurisdictions. (Stat., chap. 73, secs. 2, 3.)
The acknowledgment required is the appearance of the
Applying the law to the facts in evidence, we think that the district court was fully justified in its conclusions that the wife did not acknowledge the execution of the mortgage, that she signed it without consideration, and that it is without legal effect as to the homestead described.
As to the remaining question of usurious interest, involved in the notes secured by the mortgage, set up by Isaac C. Bishop, his counsel in their brief state that he only sought to recover on the trial, as a set-off to the principal, and only did recover the sum of the usury paid on the notes, as provided by sec. 5, chap. 44, of the Statutes of this state. We shall therefore leave that question as the trial court found it. The decree of the district court is
Affirmed.