88 N.W. 289 | N.D. | 1901
This is an action brought for the foreclosure of a mortgage upon real estate situated in Cass county. The mortgage was executed and delivered to the plaintiff on the 1st day of October, 1888, by Lorenzo D. Roberts and Callie Roberts, his wife. It was given to secure the payment of a certain promissory note for the sum of $3,118, and interest thereon at 8 per cent, per annum and payable on demand to C. C. Roberts, and was executed by L. D. Roberts individually on October i,- 1888. The said L. D. Roberts was the -husband of Callie Roberts, and died on the TÓth day of May, 1899, and before the commencement of this action.
From the pleadings and the evidence the following facts may be considered entirely uncontradicted. That the indebtedness represented by the. note and secured by the mortgage was the individual debt of the husband, and not the debt of the wife; that the wife executed the mortgage at the request of her husband; that the real estate secured by the mortgage was then occupied as the home
It is claimed by the defendant that in executing the mortgage the relation of principal and surety was created between her and her husband, and the case of Bank v. Francis, 8 N. D. 369, 79 N. W. Rep. 853, and other cases, are cited to-support such contention. We are not called upon to determine that question in our decision of the case, for the reason that no personal judgment is sought to be obtained against her. Such liability is not claimed in the complaint, and is disclaimed in the brief. The real question to be determined by us is whether the lien of the mortgage existed as-against the defendant when the action was commenced; whether payments made by the husband, without the knowledge or consent of the wife, during the life of the mortgage, operated to continue the lien of the mortgage as against the homestead after the time it would have been released from such lien had no payments ever been made thereon. These payments made by the husband had the effect of continuing the debt in force so f-ar as the husband was concerned, and it and the mortgage were both in force'at the time this action was commenced, so far as his interests are concerned. If the mortgage is in force so far as the defendant is concerned, it is so by virtue of the fact that the payments made by the husband prevented the running of the statute, except -as commencing at the date of such payments. No payments were ever made by the wife or on her behalf. To determine the effect of such payment by the husband, the following facts must be considered and borne in mind: The mortgage was given upon the property of the husband. The title was vested in him exclusively. The land was his land and his homestead, as the head of the family. He controlled it and its rents, profits, or products. Her right to the land during his life was the right to occupy and live upon it as his wife, and to make her home with her husband. She could also prevent her husband from selling or conveying the same, as no conveyance thereof would be valid unless she joined with her husband in executing the conveyance. She had no title in the homestead when she executed the mortgage. During his life she had the right to occupy it with him. At his •death it continued to be the homestead of herself and family, and she then had the right to its use, rents, profits, or products, free from any of his debts that she had not consented to, as liens thereon by virtue of her conveyance or mortgage thereof. The rights of the wife in the homestead are well stated in Kuhnert v. Conrad, 6 N. D. 215 69 N. W. Rep. 185, as follows: Mrs. Florence A. McCauley had no title or estate in the land. Her homestead rights, as in all similar cases, rested upon the marital relation, coupled with her husband’s ownership of the fee. Her mere possessory right was founded upon
None of the cases cited by respondent go to the extent of holding that a payment on a debt of the husband by him without the wife’s knowledge or consent releases the mortgage given by husband and wife on his property, unless the mortgage be fully paid before the statute runs against the mortgag-e. The case of Dunn v. Buckley, 56 Wis. 190, 14 N. W. Rep. 67, is cited. In that case the wife signed a mortgage on the homestead to secure the husband’s debt. The
The judgment of the district court is reversed, and said court is directed to order a foreclosure of the mortgage, as prayed for in the complaint.