134 N.W. 708 | N.D. | 1912
(after stating the facts as above). The findings of the trial court as to the question of the homestead and the homestead rights, if any, of the witness Goodsman, are abundantly sustained by the evidence. It is quite clear to us that the defense of homestead is, in this case, barred by the statute of limitations. Rev. Codes 1905, §§ 5053, 5054. See Justice v. Souder, 19 N. D. 613, 125 N. W. 1029. Even if not barred by the statute, the proof falls far short ■of showing any homestead right or interest. The prerequisites to an estate of homestead are in intention to devote, and an actual devotion, to the use of a home. The homestead must be “a home place.” Calmer v. Calmer, 15 N. D. 120, 106 N. W. 684; Brokken v. Baumann, 10 N. D. 455, 88 N. W. 84; McCanna v. Anderson, 6 N. D. 482, 71 N. W. 769; Hoitt v. Webb, 36 N. H. 166. The mere occupancy for the purpose of proving up and getting title to the land is not sufficient, and no conolusive presumption, is raised by the acceptance of final proof, by the United States Land Department. Brokken v. Baumann, 10 N. D. 455, 88 N. W. 84. All that the plaintiff’s witnesses testified to is that Goodsman filed on the land in 1902, moved onto it in April, 1903, broke and put 20 acres into flax in 1903, and at that time owned no other land. The proofs show that the house and land were practically unoccupied in 1904, and that no crop was put in in 1904. It shows that at the time Goodsman moved onto the land his wife was in poor health, and that they received permission from the land office for her to remain off the land until her health would permit her to move; that she gave birth to a child at the home of her parents, in Wisconsin, on June 15, 1903, and moved onto the land as soon as she recovered from her illness, on July 6, 1903; but it does not show that even after such removal she remained or intended to remain there permanently She herself testifies that she lived there with her husband a short time between then and October 18, 1904, “but was sick’a good deal of the time, and spent considerable time with her mother and sister in Wis
But was there a valid execution of the mortgage in controversy by Charles W. Goodsman, and was the same properly acknowledged so-as to be capable of record, and of charging the plaintiff with constructive notice of its existence ? The testimony of all of the witnesses, with the exception of the positive denial of execution made by Charles W. Goodsman himself, fully bear out the findings of the trial court. It is true that the date of the mortgage seems to have been changed, and that the date of November 24th seems to have been written over some other date. We are inclined to think that such change was made after the first execution and delivery which, in our opinion, was some time in November, 1903, and prior to November 24th. This change, however, was in accordance with the original agreement which is stated by the witness Scotland, and which, though denied by Charles W. Goodsman,
We cannot see any force in the contention of appellant in regard to the size of the seal. We believe, from the evidence and the exhibit, that the seal substantially met the requirements of the statute in regard to size, and was substantially If inches in diameter. The doctrine of de minimis non curat lex would seem to apply to physical facts as well as to money values.
Nor do we think there is any force in the contention that on account of the fact that the mortgage was signed Charlie, and not Charles W., it was taken out of the chain of title, and that the recording of it was not legal notice to the respondent. There can be no doubt, from the evidence, that Charles W. Goodsman was both known as Charlie and as Charles. The notes to the commission mortgages which were given to Wesley Styles, an officer of the First State Bank of Maddoek at the time the mortgage to the Union Central Life Insurance Company was made, were signed Charlie Goodsman, and the same is true of .the chattel mortgage upon the threshing machine, in evidence. In the case of Woodward v. McCollum, 16 N. D. 42, 111 N. W. 623, a mortgage signed Harry S., when the title was in Henry S., was held sufficient. Harry was held to be a corruption of Henry. There can be no doubt that Charlie is a corruption of Charles.
Neither did the court err in finding that the mortgage was unpaid and the amount due under it. This is a statutory action to determine adverse claims. It was certainly proper to ascertain the amount and the nature of the lien. Not only did the plaintiff, in his complaint, ask to have the nature of the adverse claims fully disclosed, but the defendant, in his answer, specifically prayed that his rights under the mortgage might be adjudicated.
The judgment of the District Court is affirmed.