Garlie v. Rowe

The following opinion was filed November 7, 1928: Stevens, J. Sec. 235.01 of the Statutes provides that “no mortgage . . . by a marri'ed man of his homestead, exempt by law from execution, . . . without his wife’s consent, evidenced by her act of joining in the . . . mortgage, [259] . . . shall be valid or of any effect whatever.” This homestead worth less than $5,000 was by law exempt from execution. Sec. 272.20, Stats. The plaintiff Carrie Garlie denied under oath upon the witness stand that she ever wrote what purports to be her signature upon the mortgage. The record is barren of any proof to contradict this positive evidence on the part of Mrs. Garlie. Of the two persons who signed the mortgage as witnesses, Mr. Sorlie is dead and the other witness had no independent recollection that he ever witnessed any signature of Mrs. Garlie. He did not remember that she was there at the time when Mr. Garlie signed the mortgage and when he signed as a witness. Several genuine signatures of Mrs. Garlie are in the record. But there is no evidence of a comparison of these signatures with the questioned signature. No handwriting expert was called by either side. This court has the same opportunity to compare these signatures that the trial court had. Such comparison impresses this court with the belief that the disputed signature was not written by the hand that wrote the signatures that are admitted to be genuine. In fact such comparison leads the court to believe that the disputed signature resembles that of Mr. Sorlie, the man who embezzled the thousand dollars which this mortgage purported to secure, quite as much as it does the signature of Mrs. Garlie. The court therefore concludes that the finding that this mortgage was executed by Mrs. Garlie is so clearly against the great weight and clear preponderance of the evidence that it must be set aside. It follows that the mortgage was absolutely void and that plaintiffs are entitled to have the judgment modified so that it will cancel the mortgage in question and the record thereof and clear plaintiffs’ homestead from the pretended lien of this mortgage. The portions of the judgment which determine the rights of the [260] other parties to this action are not involved on appeal, and are not affected by this decision. By the Court, — So ordered. A motion for a rehearing was denied, with $25 costs, on January 23, 1929, and the following opinion was filed: