Severtson v. Peoples

Fisk, J. This appeal comes here for trial de novo under the provisions of § 7229, Rev. Codes 1905. The action was brought to cancel and have adjudged to be null and void a certain deed executed and delivered on April 28, 1910, by this plaintiff and her husband, Ernest S. Severtson,' to the defendant, and to enjoin defendant from asserting-any title to the lands described in the complaint under such deed. In. her complaint plaintiff alleges the fact of her signing the deed aforesaid purporting to convey to the defendant the property in controversy; that such property, on the date the deed was executed, constituted the homestead of herself, husband, and children, and that suchi deed was signed by her “while she was under coercion, intimidation,, and duress, and undue influence practised, caused, and brought about by the defendant, who at said time claimed to be acting under authority of the Bank of New Rockford, North Dakota; that plaintiff’s husband, at the time of signing of said deed, was, and for many years. prior thereto had'been, an officer of said Bank of New Rockford; that the defendant, or his agent, prepared said deed without consulting-plaintiff and without her knowledge, and plaintiff was induced to sign said deed by reason of the wrongful and fraudulent representation made by defendant to plaintiff that her said husband had embezzled,, dissipated, and misappropriated the funds of the said Bank of New Rockford, and with such intention so represented and threatened that unless plaintiff immediately signed and executed said deed, defendant, and said Bank of New Rockford would immediately cause her said, husband to be arrested and imprisoned on a charge of embezzlement and misappropriating the funds of said Bank of New Rockford; that defendant as the officer and agent of said bank had theretofore made-such charges against and to her said husband, and had threatened her said husband with arrest and imprisonment; that she was at that time informed of such representations, threats, and charges; that plaintiff then and there believing that the defendant and said Bank of New Rockford would immediately cause the arrest and imprisonment of her378 husband, and to prevent such arrest and imprisonment, and for no other purpose or consideration whatever, signed said deed at the time it was presented; that plaintiff never consented, either jointly with her husband or otherwise, to the execution and delivery of said deed, or to the conveyance by her said husband, or to the conveyance of her said homestead; and that such a deed is void, and of all facts herein alleged said defendant has at all times had full knowledge and notice.” She also alleges in substance and effect that she did not sign such instrument in the presence of the subscribing witnesses, nor in the presence of B. F. Einker, the notary public who assumed to take her acknowledgment. She .also alleges that at the time of signing such deed no real estate whatever was described therein. The answer puts in issue all the allegations of the complaint relative to fraud, undue influence, and coercion, and alleges affirmatively that plaintiff’s husband was owner of the premises in controversy, and that she joined with her husband in executing the deed to the defendant voluntarily and in the ordinary course of business, which deed was duly witnessed and properly acknowledged, and that the defendant, ever since the acknowledgment thereof, has been and now is the owner in fee simple of all the real property described therein, and the defendant prays that his title may be quieted. At the conclusion of the trial in the district court, that court made findings of fact and conclusions of law favorable to the plaintiff, and judgment was given canceling,- as null and void, the deed aforesaid “as to the homestead interest of said Pearl E. Severtson and Ernest S. Severtson, her husband, in said premises as defined by law, which said homestead interest is to be ascertained as provided by law, and that said deed be decreed to convey no interest or estate in, or lien or encumbrance upon, said homestead interest in said property.” We are unable to understand just what was intended by the district court to be adjudicated by the judgment as thus entered. It is apparent that the intention was not to declare such deed null and void in tolo, but merely as to the “homestead interest” of plaintiff and her husband in -such premises “as defined by -law.” The court did not therein assume to ascertain and adjudge what such homestead interest was at the date the deed was executed and delivered, or at all; for the language of the judgment, “which said homestead interest in said — 379 — premises is to be ascertained as provided by law,” clearly shows that the court contemplated that the ascertainment of such homestead interest should be left to a later time, and was to be arrived at in some manner provided by law. There is neither proof nor finding that all the real property described in the deed, or any particular portion thereof, constituted the homestead of the plaintiff and her husband. What the extent or value of such homestead was on April 28, 1910, is nowhere alleged in the complaint or disclosed by the evidence. It is true the court found that plaintiff and her husband and children were living on the premises described in the complaint, which consist ■of eleven lots in block 7, and seven lots in block 4 of the village of New Bockford, and that they occupied such premises as a homestead from the 28th day of April, 1910, until the date of the trial, and for several years prior thereto. But as the court did not decide that all of these lots or any particular lots included in the deed constituted plaintiff’s homestead, the judgment adjudicates nothing, except, perhaps, that plaintiff has an unascertained homestead right in all or a portion of such property, and that the deed, to the extent of such right when ascertained, is null and void. The action being one to cancel the deed in so far as it involves the homestead of the plaintiff, it was, we think, clearly incumbent upon plaintiff, in order to entitle her to the relief prayed for in her complaint, to both allege and prove the extent and value of such homestead, or at least, to allege and prove that it does not exceed 2 acres, and that its value does not exceed $5,000. Manifestly, the court cannot, in the absence of such allegation and proof, adjudge such deed to be void. It can cancel such deed only in so far as it affects plaintiff’s homestead, especially in view of the fact as disclosed by the evidence, that the fee title to these lots was in her husband at the time of the execution of such deed. The Re Delaney, 37 Cal. 176, is a case somewhat analogous on principle to the case at bar. In that case one Mary Delaney petitioned the probate court to set aside certain land to her because it was a homestead at the time of her husband’s death. She furnished no proof to •show what lands in fact constituted the homestead at the time of her husband’s death, and the court, in denying her petition, said: “She asks, in her petition, that all the lands embraced in the declaration be — 380 — set off to her, but she neither alleges nor proves what was, in fact, the-homestead at the time of her husband’s death. Such proof is indispensable ; and one essential fact to be established in making such proof' is the value, as limiting the extent of the right. She was no better entitled to the whole lands described in her declaration — in disregard of their value — than she was in the absence of proof that they constituted the homestead in fact.” In- California the homestead was not limited in extent but merely as to value, but in North Dakota it is-limited as to both (§ 5049, Eev. Codes 1905), and it was therefore, we think, incumbent upon plaintiff to establish by proof that her homestead came within the limits thus prescribed, both as to extent and value. See also Foogman v. Patterson, 9 N. D. 254, 83 N. W. 15, wherein Chief Justice Bartholomew, speaking for the court, among other things, said: “While the party may select his homestead from any portion of a tract much larger than the law allows for a homestead, it necessarily follows that no homestead can be identified until the selection is made.”' And again: “It is ‘the homestead as created, defined, and limited by law’ that is absolutely exempt. We have already seen what that means. A mere floating homestead right, unattached to any land in a manner that can identify the land as a homestead, cannot create an absolute-exemption in land that may subsequently be designated and identified, as a homestead.” In this connection it is proper to state that if the property claimed by plaintiff to be the homestead is contiguous, and does not exceed in extent and value the amount allowed as exempt under the statute, it would not be necessary for her or her husband to make any selection of such homestead, the property not being embraced in a larger tract, owned by the parties or either of them. The rule is well settled that the deed will not be adjudged to be-void in toto where it covers not only the homestead, but other lands. It will, in such case, be declared void merely as to the homestead. 21 Cyc. 551 and cases cited; 15 Am. & Eng. Enc. Law, 2 ed. 684; Mason v. Truitt, 257 Ill. 18, 100 N. E. 202; Gillespie v. Fulton Oil & Gas. Co. 236 Ill. 188, 86 N. E. 219; Jones v. Losekamp, 19 Wyo. 83, 114 Pac. 673; Lamb v. Cooper, 150 Iowa, 18, 129 N. W. 323; Wilson v. — 381 — Wilson, 83 Neb. 562, 120 N. W. 147; Weitzner v. Thingstad, 55 Minn. 244, 56 N. W. 817. If correct in our views above expressed, this court is as powerless ■under the record to adjudicate the rights of the parties as was the trial ■court, and it necessarily follows that there was a mistrial. We think the proper course to pursue is to vacate the so-called judgment appealed from, and remand the cause to the district court for further proceedings. We do not think the action should be dismissed, for on another “trial it may be shown that plaintiff has rights which should be pro“tected. She has thus far failed, it is true, to establish such rights by proper pleading and proof; but it is within the power of the trial court “to permit her to supply these deficiencies. In view of our conclusion to remand the cause for further proceedings, it will not be necessary for us to pass upon the many questions raised in the briefs, some of which may not arise on another appeal. However, in view of another triál, we deem it proper to call attention to the fact that in the complaint plaintiff alleges that she and her family lived and made their home upon the lots in block 7, merely. Under such allegation we fail to see how it can be found or adjudged that her homestead embraced not only these lots, but also those in block 4. Furthermore, it nowhere appears that the lots in these two blocks are contiguous, and if they are not, the homestead cannot embrace all of them. See § 5050, Rev. Codes 1905; also Foogman v. Patterson, 9 N. D. 254, 83 N. W. 15. We also suggest that in view of the importance of the question as to whether plaintiff in fact acknowledged the deed in question, the evidence bearing on such issue should be as full and as explicit as possible. The record before us on this point is not entirely satisfactory. While we are inclined to the view that the finding on this point has sufficient support in the testimony, yet, being set out in the narrative, the testimony on the direct examination of the witness Rinker, the officer whose certificate of acknowledgment is annexed to the deed, is somewhat ambiguous and susceptible of more than one construction. We might here also add that appellant’s contention that plaintiff’s admission in court, in the presence of the notary, that she signed the deed, is a sufficient acknowledgment thereof, is untenable. It is, no doubt, a correct statement of the law that an acknowledgment of a — 382 — deed, so as to render it admissible in evidence, may be made at anytime prior to its offer at the trial; but to constitute an acknowledgment-the grantor must appear before the officer for the purpose of acknowledging the instrument, 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 instrument. Breitling v. Chester, 88 Tex. 586, 32 S. W. 527. See also Riddle v. Keller, 61 N. J. Eq. 513, 48 Atl. 818. In Breitling v. Chester, the Texas court said: “In order to call into exercise the authority of the officer to make the certificate, the-grantor must appear before him for the purpose of acknowledging the-instrument, and his admission that he had executed it must be made with a view to give it authenticity.” In that case the admission was made by the grantor while her deposition was being taken, and the certificate based thereon was held a nullity. Section 5052 of the Revised Codes cannot be misunderstood. It 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.” Under this statute it is just as essential that the instrument be acknowledged as that it be executed. Without both execution and acknowledgment the homestead is not conveyed. That the purported acknowledgment may be impeached for fraud is, we think, well settled. American Sav. & L. Asso. v. Burghardt, 19 Mont. 323, 61 Am. St. Rep. 507, 48 Pac. 391, and cases cited; American Freehold Land Mortg. Co. v. Thornton, 54 Am. St. Rep. 148, and valuable note (108 Ala. 258, 19 So. 529). Even in those states wherein the taking of an acknowledgment is-deemed a judicial, rather than a ministerial, act, the certificate of the officer may be impeached by proof that it is entirely false, and that there was no appearance before the officer, and no authorization to him to certify the acknowledgment. Grider v. American Freehold Land Mortg. Co. 99 Ala. 281, 42 Am. St. Rep. 58, 12 So. 775; Donahue v. Mills, 41 Ark. 421; Phillips v. Bishop, 31 Neb. 853, 48 N. W. 1106; Williamson v. Carskadden, 36 Ohio St. 664; Michener v. Cavender, 38 Pa. 334, 80 Am. Dec. 486; Pickens v. Knisely, 29 W. Va. 1, 6 Am. St. Rep. 622, 11 S. E. 932. — 383 — The rule is well settled that a certificate of acknowledgment, regulár on its face, is presumed to state the truth, and the proof to overthrow such certificate must be very strong and convincing (Patnode v. Deschenes, 15 N. D. 100, 106 N. W. 573, and authorities therein cited), and the burden is on plaintiff to overcome such presumption; but, as stated in 1 Cyc. 622, the rule is that “where, in fact, the grantor has never appeared before the officer and acknowledged the instrument, evidence to show that the certificate, though regular on its face, is a forgery or an entire fabrication of the officer, is admissible even as against an innocent purchaser for value and without notice.” Citing numerous authorities. For the foregoing reasons the judgment appealed from is reversed and the cause remanded for a new trial. Burke, J., being disqualified, did not participate.