| N.D. | May 8, 1915
This is an action to quiet title in the plaintiff, Bertina Basmussen, to a quarter section of land, and is brought in the form of the statutory action to determine adverse claims. The defendant answers, setting up certain mortgages alleged to have been executed by the plaintiff and her deceased husband, Iíans C. Basmussen, and asks to have these mortgages foreclosed. The plaintiff replies, denying the execution of the notes and mortgages as far as she is concerned, in and alleging that said notes and mortgages are void as the land involved was the homestead of herself and her husband. The trial court found for the plaintiff and quieted the title in her. Counsel for appellant admitted upon the argument that the land in question was in fact the legal homestead of the parties. The only question in this case, there
We are of the opinion that the trial court did not err in its findings, and that the evidence sustains his conclusions. Section 5608, Compiled Laws of 1913, provides: “The homestead of a married person cannot be conveyed or encumbered, unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife.” This statute makes essential to a valid conveyance not merely the acknowledgment by the wife, but the execution also. We are quite satisfied from a perusal of the evidence that there was no acknowledgment, as the notary public goes into the details of the transaction and can nowhere be made to say that any such thing took place. He merely testifies that the wife came to his office and told him that she would not stand in the way of her husband making a loan. He nowhere states that she told him that she had signed the notes and mortgage, or that she had attached her signature thereto.
His testimony is as follows:
Q. You don’t know Bertina Rasmussen’s signature when you see it?
A. I have seen it. I would not say that I would know it when I saw it, and be positive about it.
The Court: Have you seen Mrs. Rasmussen sign her name ?
A. I can’t say positively that I have.
Q. Who was present at the office when you claimed she came there that day after the papers were brought back to you ?
A. No one but myself.
Q. You were there all alone?
A. Yes.
Q. Did you pick up these particular papers and go over each one of the papers and ask her if she signed it ?
A. I don’t know as I showed her every particular paper. I just picked up the bunch and pulled the rubber off from them.
Q. And separated them out?
A. I can’t state positively that I did or did not.
Q. You won’t swear that you did ?
A. No, I won’t swear to it.
*455 Q.^What did you say to her with reference to the signing of these papers ?
A. I said I suppose you came to acknowledge these papers.
Q. Then she next objected to her husband making this loan?
A. Yes.
Q. Then she said if he was bound to make the loan, she would not stand in his way ?
A. That is about the substance of it.
Q. Is that all of the conversation? <
A. I said, “Do you want me to put my name and seal to these papers ?” and her answer was as near as I can state it, that she did not approve of his making the loan, but if he wanted to,, she would not stand in his way.
Q. Is that all of the conversation ?
A. That is practically all as I remember it now.
Q. Then she went out?
A. Yes.
Q. You said first: ' “I suppose you came in to acknowledge these papers ?” and she objected to this for answer to her husband making the loan; then you asked: “Do you want me to put my name and seal
on these papers?” and she said: “If my husband wants to make the loan, I won’t stand in his way,” or words to that effect ?
A. That is about the substance of it.
Q. And then she went out, — that is all of the transaction?
A. Yes.
In the case of Severtson v. Peoples, 28 N. D. 372, 148 N. W. 1054, we held that “to constitute an acknowledgment the grantor must appear before the officer, . . . and such grantor must in some manner, with a view to giving it authenticity, make an admission to the officer of the fact that he had executed such insfo-umentThere is no proof of any such admission in the case before us, even to be found in the testimony of the notary. There is a direct denial of such fact in the testimony of the plaintiff.
In addition to this we are absolutely satisfied that the purported signatures of the wife upon the notes and mortgage are not her signatures. She testified on the trial that in her opinion the handwriting was
The judgment of the District Court is affirmed.