Citation Numbers: 26 N.D. 166, 144 N.W. 76
Judges: Spalding
Filed Date: 10/23/1913
Status: Precedential
Modified Date: 7/20/2022
Tbis is an appeal by the plaintiff, Ely Vannatta, from a judgment entered by tbe district court of Pierce county on tbe 3d of January, 1912, in an action to determine adverse claims to tbe north half of tbe southeast quarter of section two, and tbe northwest
Without setting out such findings in detail, it is sufficient to say that it appears that one George Goetz was the head of a family dependent upon him for support, which family included his wife, Barbara Goetz, at all times material to a consideration of this case; that on the 20th of August, 1900, Goetz made a homestead filing and entry upon the premises in controversy, and on about the same day entered into possession thereof and took up his residence thereon with his family in a dwelling house situated upon said premises; and that such residence continued up to and until some time- in the month of April, 1907, when they voluntarily quit possession thereof and removed their residence therefrom, and had no intent to return thereto, and voluntarily abandoned any homestead right or claim therein or thereto. No declaration of homestead in said premises was ever made or recorded; that on or about the 18th day of November, 1905, said Goetz made final proof upon said premises, and on that day received a final receiver’s receipt from the receiver of the appropriate United States land office therefor, which receipt was recorded in the office of the register of deeds of Pierce county, North Dakota, on December 28th, 1905; and the United States patent therefor was delivered to Goetz on the 30th of June, 1906, and recorded on the 17th of November, 1910. On or about the 17th day of December, 1904, said Goetz executed and delivered a mortgage on said premises to the McHenry County State Bank, containing the usual covenants of warranty, and duly executed. This mortgage was duly recorded in the office of the register of deeds
The other defendants are holders of liens of various and differing kinds and dates, claimed to be inferior to the title of appellant, and the lien of respondent’s mortgage. No consideration need he given their claims as they have not appealed. On the 15th of December, 1905, said Goetz and his wife, Barbara, executed and delivered to the Merchants Bank of Kugby a mortgage on the same premises to secure the payment of a debt, and such mortgage was recorded in the office of the register of deeds of Pierce county on the 20th of December, 1905. On the 21st day of December, 1907, the last-mentioned mortgage was foreclosed by sale, duly advertised, and the premises sold to one J. G. McClintock, and recorded in the office of the register of deeds on the 28th of December, 1908.
On or about the 21st of December, 1908; one Hublou, a subsequent lien holder, regularly redeemed said premises from such foreclosure sale and received a certificate of redemption, which was recorded in said register of deeds’ office on the 21st of December, 1908. No further redemption having been made from such sale, a sheriff’s deed for the premises described was, on the 27th of February, 1909, executed and delivered to ITublou and duly recorded on the same day, and said Hublou thereafter, by warranty deed, conveyed said premises to the plaintiff, Vannatta, which deed was,- on the 14th of August, 1910, duly recorded in the office of the register of deeds.
It is apparent from these findings that the question to be determined here is as between the two mortgages, the one first in point of time and of record being executed by the husband alone, and the subsequent one by both husband and wife, and both mortgages given while Goetz and wife were in possession of and. residing upon the premises under the homestead laws of the United States. Many interesting questions are presented in the briefs. In support of the de-
In srrpport of the judgment it is contended, and we think correctly, that the appellant, as the successor in interest of Goetz, the mortgagor, cannot maintain this action as against the mortgage held by respondent. This contention rests upon the provisions of our statute, found in § 5054-, Rev. Codes of 1905. For a complete understanding of it we quote §§ 5052, 5053, and 5054. Section 5052 provides that “the homestead of a married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is exe cuted ... by both husband and wife.”
Section 5053 was enacted in 1895, and reads: “No action, defense, or counterclaim founded upon a right of homestead in property heretofore conveyed or encumbered, otherwise than as provided by the law in force at the time of the execution of such conveyance or encumbrance, and for which no declaration of homestead shall have been filed previous to the taking effect of this section, shall be effectual or maintainable, unless such action is commenced, or such defense or counterclaim interposed, on or before the 1st day of January, 1900; provided, nevertheless, that such limitation shall not apply if the homestead claimant was, at the time of the execution of such conveyance or encumbrance, in the actual possession of the property claimed, and had not quit such possession previous to the Commencement of such action or the interposing of such defense or counterclaim.”
“No action, defense, or counterclaim founded upon a right of homestead in property conveyed or encumbered prior to the taking effect of this article, and since the taking effect of § 5053, otherwise than is provided by the law in force at the time of the execution of such conveyance or encumbrance, and for which no declaration of homestead shall have been filed previous to the taking effect of this article, shall be'effectual or maintainable, unless such action is'commenced, or such defense or counterclaim interposed, on or before the 1st day of January, 1906; and no action, defense, or counterclaim founded upon a ■ right of homestead in property hereafter conveyed or encumbered, otherwise than as provided by the law in force at the time of the execution of such conveyance or encumbrance, and for which no declaration of homestead shall have been filed previous to the execution of such conveyance or encumbrance, shall be effectual or maintainable, unless such action is commenced, or such defense or counterclaim interposed, within two years after the execution of such conveyance or encumbrance; provided, nevertheless, that such limitation shall not apply, if the homestead claimant was, at the time of the execution of such conveyance or encumbrance, in the actual possession of the property claimed, and had not quit such possession previous to the commencement of such action, or the interposing of such defense or counterclaim; and provided, further, that this section shall not in any way affect claims to the homestead which may have become barred under the provisions of said § 5053.” •
This section took effect as a law July 1st, 1905, a little over six months after the recording of respondent’s mortgage, and five and a half months prior to the giving of the mortgage under which appellant holds. Appellant’s mortgage was given sixteen days prior to the 1st of January, 1906, when the limitation provided by § 5054 became operative. This is a statute of limitations on actions like the one in the case at bar. It was intended to meet just such cases as this, and to render it impossible for the owner of the premises or his successor in interest to maintain title, or sustain a defense or counterclaim,
No question of notice of a change in the statute of limitations seems to us in the case. The law was in force five months and a half prior to the execution and delivery of the mortgage under which appellant holds, and the original holder was thereby informed that if it took the mortgage it would be barred from making any claim iinder it as against the respondent’s mortgage, unless he asserted it by action, counterclaim, or defense before the 1st of January, 1906. It had five and
J. G. IVIcClintock, who bought under the sheriff’s sale on the foreclosure, purchased December 21st, 1907, and he had knowledge of the law from July 1st, 1905, until the date of his purchase; and Hublou, who redeemed December 21st, 1908, was possessed of the knowledge an additional year; and appellant, who took the deed under which he holds from Hublou August 14th, 1910, had almost ten months’ longer notice of the law than had Hublou. This action was not commenced until January 31st, 1911. It is simply a case of parties acquiring property after a statute of limitations has been enacted, and does not involve any question of property rights existing prior to- its enactment as to appellant. When the second mortgage was taken, and when appellant acquired title under it, the mortgagee and appellant took their' chances on facts occurring which would make the statute operative against them.
The argument that § 5054 cannot be construed to give validity to a'prior void mortgage is answered in Justice v. Souder, supra. The logical effect on the rights of appellant need not be analyzed or considered. His remedy, if any, was with the legislature. The application of this section is so patent to the case before us, and its construction by this court so recent that we deem it unnecessary to enter into any further discussion of the subject. Our conclusion is reached without reference to the question of any right of Goetz to a state homestead exemption in a homestead taken under the laws of the United States, on which he had not made final proof. It is assumed for the purposes of this decision 'that it was exempt under the state homestead laws. Neither have we investigated to determine whether the right to assert a claim as against a mortgage not executed by the wife, when the mortgaged property was a homestead, is personal to those claiming a homestead interest in it; as the homestead exemption has been construed by this court it is possible that such right is not transferred by conveyance, and that therefore the holder under a foreclosure sale of a subsequent mortgage is not in position to assert title as against a mortgage in which the wife did net join.
The judgment of the District Court is affirmed.