Nichols v. Schutte , 75 N.D. 207 ( 1947 )

On petition of the respondent Billings County, a rehearing was ordered and had. The case was fully reargued. We have given the whole matter further and most careful consideration and can see no reason for receding from our opinion heretofore handed down. We held therein that the deed from Nichols and Mrs. Nichols was obtained through and by reason of the fraud of the grantee and that it was not acknowledged either by Nichols or Mrs. Nichols. Further, that the tract here involved was a portion of the Nichols homestead. The record clearly warrants these holdings. Not being acknowledged the deed was void. In addition to cases cited in the original opinion, see Helgebye v. Dammen, 13 N.D. 167, 100 N.W. 245; Severtson v. Peoples, 28 N.D. 372, 148 N.W. 1054; Rasmussen v. Stone, 30 N.D. 451, 152 N.W. 809; Hazlett v. Mattieu,57 N.D. 57, 220 N.W. 647; Acklin v. First Nat. Bank, 64 N.D. 577, 254 N.W. 769.

In the petition and on the reargument, counsel for the respondent argued that we had failed to give sufficient consideration to the fact that the certificate of acknowledgment by the notary Lebo is in due form; that it is conceded he placed it on the deed; that the evidence in the record is not sufficient to overcome the presumptions arising from these facts; and that the burden of showing it is false is upon the party challenging the acknowledgment. The rule is as counsel contends that such a certificate regular on its face is presumed to state the truth. But nevertheless it may be impeached by clear and convincing evidence. Rasmussen v. Stone, 30 N.D. 451, 152 N.W. 809, supra; Yusko v. Studt, 37 N.D. 221, 163 N.W. 1066; Hazlett v. Mattieu, 57 N.D. 57,220 N.W. 647, supra; First Nat. Bank v. Plante, 60 N.D. 512, 235 N.W. 135; Passenger v. Coan, 61 N.D. 569, 238 N.W. 773.

In the instant case Mrs. Nichols admits that she signed the deed. But she positively denies that she appeared before the notary Lebo and acknowledged her signature thereto. One of the subscribing witnesses testified positively that when she signed as such witness and the notary placed his certificate of acknowledgment thereon, Mrs. Nichols was not present. Lebo the notary testified he placed the certificate upon the deed but that Mrs. Nichols was not present when he did so and never acknowledged it before him. Both Lebo and the subscribing witness testified that it was Mrs. Schutte who brought the deed to the office of the register of deeds and procured Lebo to certify to the acknowledgment and the witness to sign it. Mrs. Schutte denies this and says it was returned to her in the bank signed by both Nichols and Mrs. Nichols, acknowledged and witnessed as it now appears. Nichols in turn denies this and says he signed the deed at the bank in Mrs. Schutte's presence in the belief it was a deed to Lebo and left it with Mrs. Schutte who stated she would procure the signature of Mrs. Nichols. Mrs. Nichols' testimony is that she signed the deed at the request of Mrs. Schutte, who told her that it was a deed to Lebo. On this record the proofs are so convincing that we are unquestionably warranted in holding that the deed was not acknowledged by either Nichols or Mrs. Nichols.

The judgment appealed from was predicated on the theory that the plaintiff was estopped to question the validity of the deed to Mrs. Schutte by reason of delay in disaffirming it and bringing this action. The record does not sustain this theory. At most, there was a delay of but two years. The consideration from the respondent Billings County to Mrs. Schutte was a past-due obligation. There is nothing to indicate that the county was in any way prejudiced by such delay as there was.

The order heretofore entered reversing the judgment and remanding the case to the district court for further proceedings consistent with the opinion will stand.

CHRISTIANSON, Ch J., and BURKE, MORRIS and BURR, JJ., concur.