Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1905-11-06
SUPREME COURT DECISIONS.
Patnode vs.. Deschness and Le,.tikow.

SSSnl S6St0lSNos
Patnode VS.. Deschness and Lelstikow.
Celina Patnode, appellant, vs.. Joseph
Deschenes and w. G. Leistikow,
respondents. Appeal from the district
court OF walsh county, w. J. Knee
shaw, Judge. e. R. Sinkler, Charles F.
Templeton of counsel for appellant,
and JEFF M. Myers, for respondents ~
The plaintiff brought this action to
set aside a conveyance in form war
ranty deed, purporting to have been
executed by the plaintiff and her nus
band on April Is, 1895, and conveying
100 acres of land in Walsh county to
one Joseph Deschene :; also to set
aside a certain mortgage thereon sub
sequently executed by Deschenes in
favor of William c. Leistikow, and Sc
curing an Indebtedness of $4,000.
Plaintiff who, prior to the execution
of the deed above mentioned conceded
ly was the owner Of the premises, al
leges as grounds for avoiding it, that
her signature was obtained by fraud,
and that in consequence it was void
and that Leistikow took the $4,000
mortgage with notice of PLAINTIFFS
rights and that it is also void. Deche-
mes and Leistikow are both defend
ants. Leistikow alone answered. His
answer places in issue all facts alleged
as grounds for cancellation, and al
leges that the conveyance, while In
form deed was in fact given to
Deschenes to secure an Indebtedness
of $1,992.25 which the PLAINTIFFS hus-
hand then owed him, the same being
evidenced by their joint promissory
note; that on or about April 1, 1901.
and since the commencement Of this
action, said note was duly transferred
to him by one R. B. Griffith, Deschenes'
trustee in bankruptcy, and is still i'm.
paid; that on December 10, 1898, and
without notice or knowledge that the
deed from plaintiff to Deschenes was
given for security; and in reliance up.
on the notice impaired by the record
ing OF said deed, i. e., that Deschenes
was the fee simple owner, he loaned
to the latter the sum Of $4,000, which
said sum the said Deschenes secured
by mortgage upon the land in cues:
ton; that nospart of this sum has been
paid; that $1,40O of the said sum of
$4,000 so loaned to Deschenes was
paid by the said Leistikow In ex
tlnguishment of mortgages which had
heretofore been placed on the prem.
1ses by the plaintiff and her husband
The answer prays thatcthe deed NAV
be declared to be mortgage and 70,
foreclosure Of the same; and forsthe
foreclosure of the $4,000 mortgage,
me trial court found that there was !,
not fraud IN procuring the deed; thai
IT was given as security and is III
regal effect mortgage; that defend.
ant Is entitled to have the propertv
sold to satisfy the debt it was given IT,
secure. The judgment declares 2the
deed of April Is, 1895, to be MORTGAGE
and awars foreclosure of the same
but makes-no disposition Of the issues
IN reference to the $4,000 mortgage
Plaintiff appeals from the Judgment
and demands review of the entire
case.
The supreme court holds that the
defendant is entitled to Judgment con
ffrming the validity of the n1ortgaa %
from Deschenes to Leistikow and IL,
its foreclosure. :
me district court is instructed to
modify its judgment to conform toithe
conclusion reached, and as thus mai
fed the Judgment will be affirmed.
Justice Young writes the Opinion
the syllabus being as follows:
1. Upon a trial de i,ovo- Of an &c
ton to cancel a conveyat1ce. which
IS In form of warranty deed, upon
the ground that the PLAINTIFFS sigma
ture threto was obtained by fraud, fl
is held, that the finding of the trial
court against the allegations of fraud
is sustained by the evidence.
2. 1t is not essential to a yalid
acknowledgment by married woman
under the statutes of tits state, tha,
fshe shall be examined apart rom her
husband, Or that the contents Of The
Instrument which she executes shall
be explained to her. Her position is
not different from that of feme sole,
She is presumed to know the contents
and purport of an Instrument which
she executes and csnno. contest its
validity upon the ground that she ex.
ecuted its without knowing its con,
tents, unless fraud Is shown, :,
8. The finding Of the trial court ii,
that the deed In uuesli I'll was an,