84 N.W. 347 | N.D. | 1900
This action is brought to annul and cancel a deed of record purporting to convey three separate pieces of land. The case was tried without >a jury, and the trial court entered judgment dismissing the action. Plaintiff appeals from the judgment, and demands a retrial of the entire case in this court.
The facts embraced in the record which are uncontroverted may be stated briefly as follows: The plaintiff is the widow of one William Riley, who departed this life on the 8th day of October, 1896. Plaintiff intermarried with the deceased in the month of January, 1893. The defendants, except the administrator and the guardian, are the heirs at law of the deceased and his children by a former wife. The deed' in question purports to convey three pieces or parcels of real estate, situated in the county of Pembina. The land first described in the deed is an undivided one-half of a certain quarter section of land. This description is written out at length in words, with numbers in brackets added. The second and third parcels are not described at length in words, but are described as follows: “Also the E. \ of N. W. -j and W. J- of the N. E. Sec. 10, town 162, range 52, containing 160 acres; - also, S. W. -} of N. W. J, S. 10-162-52. (Known as the 'George O’Hara 40-Acre Lot.’)” The
Excluding the deed from consideration ,the testimony bearing upon the matter of the alleged alteration of the instrument is wholly oral. The plaintiff swears positively that she read the deed before signing it ,and that but one tract of land >vas described in it at the time she signed the same, and, further, that she never authorized any one to insert the descriptions in the deed which describe the other two parcels in question. One Robert Baskin was sworn in plaintiff’s behalf, and testified in substance that long after the date of the execution of the deed in question, and about one week prior to the decease of William Rile3L he (the witness) was present at and heard a conversation between the plaintiff and William Riley, her husband, in which the latter urged the plaintiff to deed back the homestead to him; that the plaintiff positively refused to do so. The homestead referred to is one of the pieces of land described in the deed, and which
Turning to the evidence offered by the.defense, we do not deem it necessary to set out the same at any length. It will suffice to state in general terms that at least two witnesses, — one a brother and the other a daughter of the deceased, — both of whom were present when the deed was acknowledged, testify positively that