Reseña de N.D. Nichols v. Mary F. Schutte

N.D. Nichols v. Mary F. Schutte de Supreme Court of North Dakota Resumen del Libro

Nuessle, J. (On reargument.) 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 ND 167, 100 NW 245; Severtson v. Peoples, 28 ND 372, 148 NW 1054; Rasmussen v. Stone, 30 ND 451, 152 NW 809; Hazlett v. Mattieu, 57 ND 57, 220 NW 647; Acklin v. First Nat. Bank, 64 ND 577, 254 NW 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 ND 451, 152 NW 809, supra; Yusko v. Studt, 37 ND 221, 163 NW 1066; Hazlett v. Mattieu, 57 ND 57, 220 NW 647, supra; First Nat. Bank v. Plante, 60 ND 512, 235 NW 135; Passenger v. Coan, 61 ND 569, 238 NW 773.

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