Abbl v. Morrison

• Decision Date: 13 February 1943
• Docket Number: 7057
• Citation: 64 Idaho 489,134 P.2d 94
• Parties: JOSEPH ABBL and MARIE ABBL, husband and wife, Respondents, v. E. G. MORRISON and OLIVE MORRISON, husband and wife, Appellants
• Court: Idaho Supreme Court

134 P.2d 94

64 Idaho 489

JOSEPH ABBL and MARIE ABBL, husband and wife, Respondents, v. E. G. MORRISON and OLIVE MORRISON, husband and wife, Appellants

No. 7057

Supreme Court of Idaho

February 13, 1943

LANDLORD AND TENANT-RECOVERY OF POSSESSION BY LANDLORD-HUSBAND AND WIFE-COMMUNITY PROPERTY-LEASE.

1. A lease of community real estate for a period not exceeding one year is not such an "incumbrance" as is required by the statute to be in writing, executed and acknowledged by both husband and wife. (I.C.A., sec. 31-913.)

2. In action for restitution of agricultural lands against defendants served with statutory notice to quit within 60 days succeeding termination of renewed lease, defendants' allegation that defendants continued to remain in possession under terms of lease and did work on land with consent of plaintiffs was insufficient to allege a "lease," oral or written, and hence failed to state an affirmative defense. (I.C.A., secs. 9-301, et seq., 9-303.)

Appeal from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. James W. Porter, Judge.

Action for restitution of real property owned by plaintiffs. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Affirmed. Costs to respondents.

Rayborn & Rayborn for appellants.

Wilson & Sheneberger for respondents.

A lease for a term of years, for life or at will is an encumbrance and void if not executed in conformity with Sec. 31-913, I C. A. (Fargo v. Bennett, 35 Idaho 359; Little v. Bergdahl Oil Company, 60 Idaho 662; McKinney v. Merritt, 35 Idaho 600, 604, 208 P. 244; Hart v. Turner, 39 Idaho 50, 56, 226 P. 282; Civils v. First National Bank of Pocatello, 41 Idaho 690, 241 P. 1023, Blaine County National Bank v. Timmerman, 42 Idaho 338, 347 245 P. 389; Elliot v. Craig, 45 Idaho 15, 21, 260 P. 433; Burnham v. Henderson, 47 Idaho 687, 690, 278 P. 221; John Hancock Mutual Life Insurance Company v. Girard, 57 Idaho 198, 215, 64 P.2d 254; Shepherd v. Dougan, 58 Idaho 543, 561, 76 P.2d 442; 31-913, I. C. A.)

An invalid lease, an oral agreement to make a lease or an oral lease of community real property can not be established for the full time by part performance, ratification or estoppel as against the community owner not bound by the deed. (Little v. Bergdahl Oil Co., 60 Idaho 662; Spreitzer v. Miller, (Wash.) 168 P. 179.)

AILSHIE, J. Holden, C.J., Budge and Dunlap, JJ., concurring, Givens, J., concurs in conclusion.

OPINION

AILSHIE, J.

This action was commenced in the Probate Court of Twin Falls County, under the forcible entry and unlawful detainer statute (Title 9, chap. 3, I. C. A.), to recover the possession of certain leased agricultural lands. Defendants answered and admitted the material allegations of the complaint and set up a separate defense, claiming right to continue possession. The case was tried and resulted in a verdict in favor of the defendants; and plaintiffs appealed to the District Court, for Twin Falls County. Judgment was entered in the District Court in favor of the plaintiffs on the pleadings; this appeal is from the latter judgment.

This appeal seems to present only one major question for our decision, namely: Is an oral lease of community real property for a term less than one year valid? Our answer to this question must necessarily turn upon the terms of the statute and our previous decisions thereunder.

Sec. 31-903, I. C. A., defines the separate property of the wife as follows:

"All property of the wife owned by her before marriage, and that acquired afterward by gift, bequest, devise or descent, or that which she shall acquire with the proceeds of her separate property, shall remain her sole and separate property, to the same extent and with the same effect, as the property of a husband similarly acquired."

Sec. 31-904, I. C. A., provides for the management and control of the wife's separate property and is as follows:

"During the continuance of the marriage, the wife has the management, control and absolute power of disposition of her separate property, and may bargain, sell and convey her real and personal property, and may enter into any contract with reference to the same, in the same manner, and to the same extent, and with like effect, as a married man may in relation to his real and personal property: provided, that the husband shall be bound by such contracts to no greater extent or effect than his wife under similar circumstances would be bound by his contracts."

It will be observed from the foregoing statute, that the wife "may bargain, sell and convey her real and personal property," at her own pleasure and without the consent of the husband.

Sec. 31-906, I. C. A., defines the separate property of the husband as follows: "All property owned by the husband before marriage, and that acquired by gift, bequest, devise or descent is his separate property." (Repealed by 1941 Sess. Laws, chap. 62, sec. 2, page 123, and substance incorporated in sec. 31-903, as amended by same Act.)

Sec. 31-907 defines community property as follows:

"All other property acquired after marriage by either husband or wife, including the rents and profits of the separate property of the husband and wife, is community property, unless by the instrument by which any such property is acquired by the wife it is provided that the rents and profits thereof be applied to her sole and separate use; in which case the management and disposal of such rents and profits belong to the wife, and they are not liable for the debts of the husband."

Sec. 31-913 provides for the "management and control of the community property" and is as follows:

"The husband has the management and control of the community property, except the earnings of the wife for her personal services and the rents and profits of her separate estate. But he can not sell, convey or encumber the community real estate unless the wife join with him in executing and acknowledging the deed or other instrument of conveyance, by which the real estate is sold, conveyed or encumbered."

It will be noted, from the last section quoted, that the husband "can not sell, convey or encumber the community real estate" without the wife, joining him "in executing and acknowledging the deed or other instrument of conveyance."

This statute contemplates that "a deed or other instrument of conveyance" must necessarily be in writing, since it requires acknowledgment by both husband and wife. An acknowledgment must be certified in writing on the instrument acknowledged. (Secs. 54-707, 54-708, 54-709, I. C. A.) Sec. 54-813 defines the term "conveyance" as embracing "every instrument in writing by which any estate or interest in real property is created, alienated, mortgaged or encumbered," etc. (See John Hancock Mut. Life Ins. Co. v. Girard, 57 Idaho 198, at 215, 217, 64 P.2d 254.)

We now turn to Secs. 16-503, 16-504, and 16-505, for the purpose of ascertaining just what agreements and contracts must be in writing and we find, inter alia, the following:

Sec. 16-503, specifically authorizes making a lease of real property for a term "not exceeding one year, . . . otherwise than by . . . a conveyance or other instrument in writing, subscribed by the party creating . . . the same." (Italics supplied.)

Sec. 16-505 provides:

"In the following cases the agreement is invalid, unless the same or some note or memorandum thereof, be in writing and subscribed by the party charged, or by his agent. Evidence therefore, of the agreement can not be received without the writing or secondary evidence of its contents:

"1. An agreement that by its terms is not to be performed within a year from the making thereof.

* * *

"5. An agreement for the leasing, for a longer period than one year, or for the sale, of real property, or of an interest therein, and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged."

These sections clearly contemplate and authorize the oral leasing of real property for a period not exceeding one year. Under the almost universal rule of construction, we are bound to assume that, when the legislature provided by Sec. 31-913, supra, that the wife must join the husband in executing and acknowledging every "deed or other conveyance by which the title of real estate is sold, conveyed or encumbered", it had in mind the fact, that a lease for a term not exceeding one year need not be in writing; and consequently they did not intend to required the joinder of the wife with the husband in "executing and acknowledging" an instrument not required to be in writing, since they had already provided, by Secs. 16-503 and 16-505, that a lease for a period not exceeding one year might be oral.

Having authorized making an oral lease for not more than a year, it would seem to logically follow, that the legislature did not intend to include such leases within the category of "deed or other instrument of conveyance", specified in Sec. 31-913, as having to be executed and acknowledged. Moreover, whether a lease be oral or in writing, and whether it be for a year or a term of years, nevertheless, under the provisions of Sec. 9-303, I. C. A., if on agricultural lands, as here, it may be renewed by operation of statute and without any writing or acknowledgment.

It is safe to say that the great majority of real property tenancies in this state are contracted for terms of less than a year's duration; and we are convinced that it was never the intention of the legislature, to so handicap and complicate the making of such contracts as would in many cases defeat the beneficial results of successful "management and control" of...