Appeal from Ninth Judicial District Court, White Pine County; Ben W. Coleman, Judge.
Anthony Jurich and Walker & Haight, for Appellants.
Chandler & Quayle, for Respondent.
By the Court, McCarran, J.:
From the record in this case, it is disclosed that W. E. Meyers and his wife, Dora Meyers, together with their family, resided for a number of years in certain property in the town of Ely, this property being their home and abode. Appellant Meyers, in or about the month of September, 1907, borrowed from respondent, the First National Bank of Ely, the sum of $3,000, giving his note as security. At the same time he made, executed and delivered to A. B. Witcher, cashier of the respondent bank, a deed to the property then and theretofore occupied by himself and his wife, Dora Meyers, and their family as a hometheir only home and habitation, so far as the record discloses. In the making of this instrument, appellant Meyers was not joined by his wife, nor does the record disclose that she was cognizant of his actions in this respect, or that she received, either directly or indirectly, any of the benefits of the money involved in the transaction; nor does it appear that any
of this money was used to purchase or build the home. On January 25, 1908, A. B. Witcher by deed conveyed the property to the respondent, the First National Bank of Ely; and on April 3, 1911, the appellant Meyers entered into an agreement with the respondent bank, in writing, part of which is as follows:
Whereas, the party hereto of the second part did by deed dated September 7, 1907, convey to one A. B. Witcher the following described property, situated in the city of Ely, county of White Pine, State of Nevada [here follows a description of the property], and which deed was intended as security for the payment of a certain sum of money owing by the party hereto of the second part; and whereas, the party hereto of the first part has since succeeded to the interest of said Witcher in said indebtedness and the said security therefor and now holds title to said property as security for the repayment to it by said party of the second part of the sum of thirty-four hundred fifty-seven and 2/100 dollars, which sum is past due and now owing to said first party; and whereas, suit to foreclose the mortgage referred to would entail a large expense and so put an additional burden on said second party: Now, therefore, in consideration of the premises and of the mutual promises herein contained and to settle and define the business matters existing between the parties hereto in relation to said property, it is reciprocally agreed as follows:
FirstThat from the date hereof the title, equitable as well as legal, to said property is recognized as vested and fixed in the party thereto of the first part, subject to the right of said second party to buy the same on complying with the terms and conditions hereof.
SecondThe exclusive right and option to buy the said property within six months from the date hereof is hereby granted unto said second party, conditional, however, upon his paying within said period of six months to said first party at its banking room in Ely, Nevada, the sum of thirty-four hundred fifty-seven and 2/100 dollars, with interest thereon at the rate of twelve per cent from the date hereof to the date of such payment,
together with any sum or sums, with like interest, which may be paid out from time to time by the party hereto of the first part for taxes and insurance on or otherwise for the preservation, care and safe-keeping of said property.
ThirdAll income and rents hereafter paid or which are payable by the tenants or occupants of the building or improvements on said property shall be paid to and belong to said first party, provided if said second party shall during said period of six months exercise his option to buy said property, then all rents collected by said first party shall be credited on the said purchase price computable under and provided in paragraph second above.
FourthTime is of the essence of this option, and the terms and conditions hereof shall inure to the benefit of and bind the heirs, executors, administrators, successors and assigns of the parties hereto, as well and strongly as the parties themselves.
The foregoing instrument, like the deed to Witcher, was signed by appellant Meyers individually, without any act of acquiescence on the part of his wife, and, so far as the record discloses, without her knowledge or assent. This action being commenced in the court below by the respondent bank to recover possession of the property involved in the transaction between appellant Meyers and respondent, separate answers were filed by the appellant Meyers and his wife, Dora Meyers. The original answer filed by the appellant Dora Meyers contained allegations to the effect:
(1) That prior to the 15th day of June, A. D. 1907, this defendant Dora Meyers, and defendant W. E. Meyers intermarried, and ever since have been and now are husband and wife; that there are four minor children, the issue of said marriage.
(2) That prior to the 7th day of September, A. D. 1907, to wit, commencing with the 15th day of June, A. D. 1907, and continuously thereafter up to the present time, the said premises described in plaintiff's complaint were and have been owned and actually occupied by this defendant, together with her said husband and their four
minor children, as a homestead, all of which the said plaintiff and its grantor, A. B. Witcher, then and there at all times well knew; that prior to the 7th day of September, A. D. 1907, to wit, continuously since June 15, A. D. 1907, said premises have been and now are actually occupied by this defendant and her said husband, together with their said minor children, as a homestead, and the same is claimed by this defendant as such and as exempt from forced sale; and this defendant has not, at any time, signed, executed, or delivered any instrument mortgaging, conveying, or in any other way or manner conveying, alienating, or incumbering said property or homestead to any person or persons whatsoever.
(3) That the said premises and the building thereon, with the appurtenances, do not exceed in value the sum of $5,000 in cash.
(4) That neither this defendant nor her said husband, nor any of their said minor children, have any home other than on and in the premises described in said complaint.
(5) That on or about the 4th day of November, A. D. 1914, this defendant, for the use and benefit and in behalf of herself and defendant W. E. Meyers and their said minor children, the issue of said marriage, all of which children are still minors, made, executed, and caused to be recorded in the office of the county recorder in and for White Pine County, Nevada, being the county and state in which said property is situated, and in Book 38, Old E., Miscellaneous Records of said office, at pages 429, 430, a declaration of homestead of, in, and to said described property, with the improvements thereon, which said declaration of homestead set forth the facts required by the statutes of the State of Nevada to be stated in a declaration of homestead, and which was duly acknowledged by this defendant as required by law, and that this defendant does now claim and hold, and at all times since the 15th day of June, A. D. 1907, has claimed and held, said property described in plaintiff's complaint, and the whole thereof, as a homestead for herself and her said husband and their said minor children.
A demurrer to this original answer being sustained by the court below, the appellant Dora Meyers amended her answer, and in her amended answer set forth the following:
(1) That for more than fifteen years last past, this defendant Dora Meyers, and defendant W. E. Meyers have been and now are husband and wife.
(2) That prior to the 15th day of June, 1907, the said defendants, out of the moneys belonging to the community existing between said defendants, purchased the land described in plaintiff's complaint, and received a deed therefor in the name of the defendant W. E. Meyers, which said deed was recorded in the office of the county recorder of White Pine County, State of Nevada, on the 8th day of August, 1907, in Book 33, pages 402, 403, of the Real Estate Records of said county; that prior to the said 15th day of June, 1907, the said defendants, out of the moneys belonging to said community existing between said defendants, constructed and erected upon said premises a dwelling house, which said dwelling house and said premises, ever since the said 15th day of June, 1907, continuously have been and now are actually occupied by the said defendants, and each of them, and their minor children, as the dwelling house and home of said defendants and their minor children, and is the only dwelling house and home belonging to or owned by said defendants, or either of them, in White Pine County, Nevada, or elsewhere, at any time herein mentioned.
(3) That the said premises, with the said dwelling thereon and the appurtenances, do not exceed in value the sum of $5,000.
(4) That this defendant has not, at any time since said premises and dwelling were acquired and occupied by these defendants as aforesaid, signed, executed, or delivered any instrument in writing mortgaging, conveying, or in any other way or manner conveying, alienating, or ...