Weatherington v. Smith

Oldham, 0.

This was an action to quiet title in a quarter section of land situated in Harlan county, Nebraska. There is no disputed fact in the record. Everything that is essential to the determination of the cause is either admitted in the pleadings or was testified to, without contradiction, at the trial in the court below. The facts established by the record are that plaintiff, William Weatherington, homesteaded the land in controversy in the year 1883, and resided thereon with his wife and minor children; that later in the same year, for the purpose of transferring the legal title from himself to his wife, he conveyed the premises to one Flansburg for the express consideration of $600, and Flansburg, as a part of the same transaction, reconveyed the premises to the wife, Mrs. Eliza Weatherington; that in 1890 Mrs. Weatherington and her husband executed a mortgage on the premises to secure a loan of $770, due five years after date; that they continued to live with their family on the premises until 1891, when plaintiff Weatherington was adjudged insane by the board of insanity of Harlan county and committed to the asylum at Lincoln, where he remained until 1894, Avhen he was transferred to the asylum at Hastings, where he was confined and treated until July, 1904, when he was adjudged sane and restored to his liberty; that after the incarceration of Weatherington in the asylum his wife and family continued to reside on the homestead until 1894, when they removed to their friends and relatives in the state of Illinois, without any intention of returning to Nebraska, hut with the intention of establishing a domicile in Illinois; that on the 10th day of October, 1896, Mrs. Weatherington, while residing in Illinois, made a Avarranty deed of the premises, subject to the mortgage and taxes then due, to Albert Cross and Alexander Johnston, for a consideration of $500, which Avas a fair and reasonable consideration for the lands. This deed contained the following stipulation and recital: “Hereby releasing and Avaiving all rights under and by virtue of the homestead exemption laws of this state, Avith the exception of the crops noAV on said land, Avhich I hereby reserve. (Signed) Mrs. Eliza Weatherington.” This, deed Avas acknoAAdedged before a notary public of Hancock county, Illinois, but neither in the, deed nor in the aclcnoAvledgment thereof is Mrs. Weatherington referred to as being single or unmarried. The record also shoAvs that Cross and Johnston had knoAvledge of the fact that plaintiff, Weatherington, Avas an inmate of the insane asylum at the time they received this conveyance; that they entered into possession of the premises under this conveyance, paid off and discharged the mortgage thereon, and later, in 1899, for a fair and valuable consideration conveyed the premises by warranty deed to defendant Smith, who had no actual knowledge of Weather-ington’s rights, but took the land relying on the record title thereof.

After plaintiff Weatherington had been discharged from the asylum he was taken to his family in Illinois, but did no act indicating an adoption of the Illinois residence as his home. He went from there- to the state of Ohio to transact some business, and then returned to Nebraska, and on the 1st day of December, 1904, instituted the case at bar, in which he asked to have the title to the land quieted in himself, and the deed from himself and wife to Flansburg, and the deed from Flansburg to Mrs. Weather-ington, and the deed from Mrs.. Weatherington to Cross and Johnston, and the deed from Cross and Johnston to defendant Smith, canceled and held for naught, and for an accounting for the rents and profits of the premises.At the close of the testimony the court entered a decree canceling the deed from Mrs. Weatherington to Cross and Johnston, and the deed from Cross and Johnston to defendant Smith, and rendered an accounting, in which defendant Smith was credited with the mortgage debt, and interest and taxes paid, and improvements made upon the land, and charged with the rents and profits actually received from the land. The decree quieted the title to the premises in Eliza Weatherington, subject to the homestead right of the plaintiff, and subject to the remainder due on the mortgage debt after deducting the rents and profits. From this degree defendant Smith has appealed to this court, and plaintiff Weatherington has filed a ci’oss-apneal, in which he complains of the action of the trial court in refusing to cancel all the deeds alleged against and quiet the title to the premises in him.

Section 4, ch. 36, Comp. St. 1903, provides: “The. homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife.” The requirements of this section of the statute have been strictly adhered to in a long-line of decisions in this court. See Aultman & Taylor Co. v. Jenkins, 19 Neb. 209; Swift v. Dewey, 20 Neb. 107; Larson v. Butts, 22 Neb. 370; Whitlock v. Gosson, 35 Neb. 829; Giles v. Miller, 36 Neb. 346; Clarke v. Koenig, 36 Neb. 572; Violet v. Rose, 39 Neb. 660; Havemeyer v. Dahn, 48 Neb. 536; Teske v. Dittberner, 63 Neb. 607. The appellant Smith, while conceding the trend of these decisions, contends that, as he was a purchaser for value from his grantors, who were then in possession of the land, and as he had no actual knowledge of the state of the title, other than such as the record disclosed, he took tho land free from the secret equities existing between Ms grantors and the plaintiff. In other words, his contention is that the record of title, on which he relied at the time of his purchase, estops the plaintiff from asserting his homestead right as against this defendant. In Whitlock v. Gosson, supra, Post, J., speaking for the court said:

“Estoppel will not supply the want of power, or malte valid an act prohibited by express provisions of law.. The statute in effect declares a conveyance or incumbrance of the family homestead by the husband alone void not only as to the wife, but also as to the husband himself. Therefore neither is estopped from asserting the homestead right as against the grantee or mortgagee.”

In Blumer v. Albright, 64 Neb. 249, it is held that a departure from the homestead for pleasure, business or health, does not constitute an abandonment thereof, and that neither spouse can abandon for the other without his, or her, free consent. In the still later case of Palmer v. Sawyer, 74 Neb. 108, it is held that, where a homestead right once exists, the person entitled to it cannot be divested thereof by any act or influence beyond his own volition.

Now, while it is clear from the evidence that Mrs. Weatherington departed from Nebraska with the intention of abandoning her homestead, and had such intention at the time she executed the deed to Cross and Johnston, it is equally clear that plaintiff Weatherington, at the time of the execution of such deed, was merely absent from the homestead for treatment for his mental disorder, without the legal capacity to contemplate an abandonment of his homestead right. As the wife could not abandon for the husband without his consent, his right remained unimpaired by her attempted change of domicile. Again, if we should concede that an estoppel by record could be invoked to defeat the homestead right of either spouse under the law of this state, it is a rule universally recognized that, if a party relies upon a record to establish his. title to realty and to relieve him of knowledge of secret liens known to his grantor, the record itself mnst show a chain of conveyances which discloses a perfect title in the grantor., Now, the record in this case showed, first, a patent from the general government to plaintiff Weatherington; second, a conveyance by Weatherington and his wife to Flansburg; third, a conveyance from Flansburg to Eliza Weatherington; fourth, a mortgage signed by Eliza Weatherington and plaintiff, as her husband; fifth, a deed from Eliza Weatherington to Cross and Johnston, executed in Illinois, in which she did not describe herself as being single or unmarried. This chain of title would, we think, have warned a prudent man relying upon it that Mrs. Weatherington had a living husband at the time of the conveyance made to her in 1883, and that this husband was still alive when the mortgage was executed in the year 1890, or six years before her conveyance to Cross and Johnston, which she executed as Mrs. Eliza Weatherington, without claiming to be single or unmarried. It seems to us that prudence would have suggested to one relying on this record an inquiry concerning the whereabouts of Mrs. Weathering-ton’s husband before making a purchase of .the premises. We therefore conclude that the plaintiff’s homestead right in the premises, never having been abandoned or waived by himself, remains intact and unaffected by the attempted abandonment by his wife and the record of the conveyance made by her.

As there is no complaint concerning the items contained in the accounting by either of the litigants, this disposes of the appellant’s case; and with reference to the plaintiff’s complaint in his cross-appeal, it is sufficient to say that the evidence clearly shows that he was in full possession of his mental powers at the time he conveyed the legal title to the land through a conduit to his wife. While, in fact, no consideration passed for this conveyance, it was made for the express purpose of vesting the legal estate in the wife, and as her deed to Cross and Johnston was absolutely void, neither she nor the plaintiff can be estopped by it.

We therefore recommend that the judgment of the district court be affirmed.

Ames, 0., concurs.:

EppeRSON, 0., dissents.

By the Court: For the reasons given in the foregoing-opinion, the judgment of the district court is

Affirmed.