81 Neb. 368 | Neb. | 1908
Prior to April 28, 1869, Joseph Rouse was the owner of a quarter section of land in Saline county, and on said day he executed a deed conveying said premises to one John Frederick Witte, the defendant’s father and grantor. The plaintiff Catherine Rouse was the wife of Joseph at the time of the execution of said deed, which purports to be signed-by her mark and acknowledged by her. In 1903 Joseph Rouse died leaving him surviving the said Catherine Rouse, his widow, who afterwards brought this action to recover her dower in the said lands, claiming that she had never in fact joined in the execution of the deed to Witte. There was .a trial to the judge of the district court, and a finding and judgment for the defendants, from which the plaintiff appeals.
It is, however, argued that she is corroborated by circumstances. As we have already seen, the deed as recorded in 1869 did not appear to be witnessed or stamped, and the signature of the attesting witness and the internal revenue stamps attached to such deed first appeared in the second record, made in 1880. The evidence, tends to show that about this time the defendants endeavored to get a new deed from the plaintiff and her husband, which the latter signed, but which the plaintiff refused to execute. Being pressed upon her examination as to what reason the defendants gave for wanting a new deed, she finally admitted -that it; was because the • old deed was not witnessed. It is argued by the plaintiff that this act of the defendants was an admission which tends to corroborate the plaintiff’s testimony. If it were material whether the deed was witnessed in the first instance, such a statement would have been relevant as tending to show that the deed was not so witnessed, but it is not an admission and does noi tend to show that the plaintiff did not in fact sign and acknowledge the deed. The defendants were neither of them the original grantee, and it is not shown that they had any personal knowledge of the original transaction, and the fact that they _ attempted to get a new deed when they discovered an apparent defect in the record title does not amount to an admission on their part nor tend to show that the deed was not in fact signed and acknowledged. There is some testimony that the plaintiff was able to Avrite, and this is urged as rendering it improbable that she should have signed by a mark. The testimony that she could Avrite comes from herself and the members of her family, and does not purport to show that she did so with any degree of ease or facility. She admits that for the last few years she has signed her pension vouchers with a mark. No specimen of her writing was produced except her
We therefore recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.