Styles v. Theo. P. Scotland & Co.

134 N.W. 708, 22 N.D. 469, 1912 N.D. LEXIS 39

Opinion

Bruce, J.

(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 consin.” It shows that in August, 1903, Goodsman bought the threshing machine in question, but that he gave it back the next year; that he got his final receiver’s receipt for commuted proof on November 4, 1903; that he sold the land to the First State Bank of Maddock on October 18, 1904; that while on the land he built a two-room frame dwelling and stable, and had a spring partly dug out as a well, but that his only furniture was an old lamp, a borrowed stove, an old iron bedstead, some utensils and a dresser, which latter article he sold soon after his final proof was made, for two and a half dollars; that he left North Dakota for Oregon somewhere about November 18, 1903, and did not. return until January, 1904, when he went to Wisconsin, where his. wife was, and, in the fall, came back to thresh (not for himself, but for others, having no crop himself), and sold the land to the bank in October, 1904; that no declaration of homestead was ever made or recorded. Indeed, although both Mr. and Mrs. Goodsman testified that, they looked upon the land as their homestead, it is doubtful whether they distinguished between a homestead under the laws of the Dnited States and a homestead under the laws of North Dakota, and their acts fell far short of proving their intention. See Brokken v. Baumann, 10 N. D. 455, 88 N. W. 84; Calmer v. Calmer, 15 N. D. 120, 106 N. W. 684; McCanna v. Anderson, 6 N. D. 482, 71 N. W. 169; Kuhnert v. Conrad, 6 N. D. 215, 69 N. W. 185; Justice v. Souder, 19 N. D. 613, 125 N. W. 1029. The signature of the wife therefore was not necessary to the validity of the mortgage.

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, is abundantly borne out by the other facts and prohabilities of the case. The threshing machine, according to the undisputed evidence, was sold on August 21, 1903, and to secure the payment of the notes for the same, Goodsman executed a chattel mortgage. He also, according to Theodore P. Scotland, agreed to execute a real estate mortgage upon the premises in question. That he, at some time, signed that mortgage, there can be no question, for there can be no doubt of the genuineness of his signature. Theo. P. Scotland testifies that at the time the mortgage was agreed to be given, he made it out, but that he did not have the same signed by Goodsman until the 24th day- of November, 1903, the execution and delivery of the mortgage being postponed on account of the fact that he was about to make a loan on his land from the Hnion Central Life Insurance Company, and that neither party desired to interfere with this loan. It was, in fact, agreed, that the mortgage should be a second mortgage. The loan from the Hnion Central Life Insurance Company was obtained, and was dated November 10, 1903, .and filed for record on November 23, 1903. The dating of the mortgage, then, on the 24th day of November, 1903, is certainly in accordance with this original intention, and the facts seem to bear out the testimony of the witness Scotland, though we cannot help but believe that the mortgage was actually executed and delivered prior to November 24th. The testimony of Scotland as to the execution and delivery is corroborated by that of the two witnesses to the mortgage. One of these witnesses was, it is true, the wife of Theo. P. Scotland, but her testimony has every appearance of being honest. She identifies her signature, and testifies that she signed in the presence of Goodsman, but does not remember the exact date. The witness Burkhartsmeier positively identifies his signature, remembers that the mortgage was filled out when he signed it, has no positive means of telling the exact ■date, says that Goodsman was fixing up a threshing machine at the time and was working around with the threshing machine at the time; that it was in the fall of the year. The testimony is clear that Goods-man was in the vicinity of Rugby between August and November 18, 1903. He testifies, in fact, that he left Devils Lake, North Dakota, about the 18th day of November, 1903, and came straight through to Spokane, Washington, and was in Baker city, Oregon, on the 23d and 24th of November, and did not return to North Dakota until Jan- nary, 1904. From all of the testimony we cannot but come to the conclusion that the mortgage was properly executed and delivered by Goodsman to the defendant some time in the fall of 1903, and probably in the month of November, 1903, but prior to November 24th; that when originally executed it bore the date of the original agreement and of the notes, namely, August 21, 1903; but that subsequently, and on account of the prior agreement that said mortgage should be subsequent, and not prior to the mortgage to the insurance company, the said Theo. P. Scotland, after the signing and witnessing of said mortgage, changed its date to November 24, 1903. This alteration we do not hold to be so material as to invalidate the instrument. No prejudice can be argued. The change was made in order to carry out the agreement of the parties. The mortgage was security merely, and the case is a very different one than it would have been if the dates of the notes, themselves had been changed. No change in the real contract of the parties was made. In fact, the change was made in order to make the mortgage conform to the contract. The time of payment and of foreclosure, and of the running of the statute of limitations, was not affected. Elliott, Ev. § 1499; Union Bank v. Cook, 2 Cranch, C. C. 218, Fed. Cas. No. 14,349. But even if the change were material, the subsequent acknowledgment of the mortgage on October 5, 1904, amounted to a re-execution and redelivery of the instrument, and to a ratification of any changes which were made therein. It is true that, after a material alteration, attention must be brought to the same in order that a ratification may be presumed, but in this case the change was so apparent that no one could have read the instrument without seeing it, and the ratification bore the solemn form of an acknowledgment. It is also true that on this question of acknowledgment and redelivery there is a conflict of testimony, and that the witness Goodsman denies that he ever acknowledged the instrument. Scotland, however, who took the acknowledgment, testifies that it was acknowledged and delivered, and that the consideration (for which there was no necessity, see Pelton v. Prescott, 13 Iowa, 561) was the agreement before made, and the additional fact that Scotland should sign Goods-man’s bond for the purpose of enabling him to take out a thresher’s lien. There is no dispute as to the signing of this bond. There is no doubt that Goodsman was in. the neighborhood of Rugby on the date in question. The notary’s certificate, too, should have some weight. On the whole we do not feel justified in overruling the findings of the trial court that the mortgage was redelivered on October 5, 1904, and that it was properly acknowledged so as to entitle it to record.

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.