Page:North Dakota Reports (vol. 48).pdf/287

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FIRST NAT. BANK v. HALLQUIST

263

that the plaintiffs have failed to establish their right to recover the possession either of all or of any specific portion of the flax in controversy.

Judgment affirmed.

Robinson, C J., and Birdzell, J., concur.

Bronson and Grace, JJ., concur in the result.

FIRST NATIONAL BANK of New Rockford, North Dakota, Appelant, v. PETER P. HALLQUIST, also known as P. P. Hallquist, Respondent.

(184 N. W. 269.)

Homestead—mortgage by husband and wife should not be deducted in determining value.

1. In determining the value of a homestead estate a prior existing mortgage executed by both husband and wife should not be deducted.

Homestead—mortgage by husband alone is valid as to excess of lands above homestead.

2. A mortgage executed by the husband alone covering land which constitutes the homestead estate is valid as to the excess in value above the homestead estate.

Opinion filed June 27, 1921. Rehearing denied September 10, 1921.

Action in District Court Eddy County, Coffey, J., to foreclose a mortgage. The plaintiff has appealed.

Reversed and remanded.

N. J. Bothne, for appellant.

“A deed of conveyance by the husband without his wife joining, of lands including the homestead, is valid as to the excess in extent or value of the land above the homestead exemption.” Severtson v. Peoples, 28 N. D. 372; 21 Cyc. 551 and citations; 13 R. C. L. 635 and citations.