Childs v. Reed

• Decision Date: 28 October 1921
• Citation: 34 Idaho 450,202 P. 685
• Parties: GEORGE A. CHILDS, Respondent, v. RALPH N. REED, Appellant
• Court: Idaho Supreme Court

202 P. 685

34 Idaho 450

GEORGE A. CHILDS, Respondent, v. RALPH N. REED, Appellant

Supreme Court of Idaho

October 28, 1921

SPECIFIC PERFORMANCE-CONTRACT-COMMUNITY PROPERTY-CONVEYANCE-ABUSE OF DISCRETION-MUTUALITY OF OBLIGATION-HUSBAND'S CONTRACT TO CONVEY VOID UNLESS WIFE JOIN THEREIN.

1. Equity will not take jurisdiction of a suit seeking specific performance of a contract when specific performance cannot be enforced and there is no other ground for equitable relief.

2. Where defendant's ability to perform his contract so far as the conveyance of community property is concerned, is dependent upon his wife joining with him in executing and acknowledging such conveyance, an action for specific performance does not lie.

3. Where in such a case the court gave defendant the option of performing his contract within thirty days or of permitting judgment to be taken against him for the value of the property therein agreed to be conveyed, held that such action was in excess of the power of the court and void.

4. Mutuality of obligation is an essential element of the right to enforce specific performance of a contract in a court of equity.

5. Under C. S. sec. 4666, providing that the husband cannot sell, convey or encumber the community property unless the wife join with him in executing the instrument by which the same is sold, conveyed or encumbered, the husband cannot contract to convey such property unless the wife join with him therein. Such contract is unenforceable, and such defect is not cured by a subsequent offer by husband and wife to perform, by duly executing and acknowledging a deed to such property.

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. William A. Babcock, Judge.

Suit for specific performance or money judgment. Judgment for plaintiff. Reversed.

Judgment of the trial court reversed. Costs awarded to appellant.

Turner K. Hackman, for Appellant.

A decree for specific performance could not be entered in this action. "The husband . . . . cannot 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." (Sec. 4666, C. S.; Wits-Keets-Poo v. Rowton, 28 Idaho 193, 152 P. 1064; Armstrong v. Oakley, 23 Wash. 122, 62 P. 499; Dunsmore v. Lyle, 87 Va. 391, 12 S.E. 610.)

There cannot be a contract without mutual obligation. (Cheatham v. Cheatham's Exrs., 81 Va. 395.)

If from the personal incapacity of one of the parties, or other causes, the contract when concluded is not enforceable against such party, no subsequent act or event can render it capable of enforcement against either party. It must be enforceable originally or not at all. (Shenandoah Valley R. R. Co. v. Dunlop, 86 Va. 349, 10 S.E. 239; Greybill v. Braugh, 89 Va. 895, 37 Am. St. 894, 17 S.E. 558, 21 L. R A. 133.)

Sweeley & Sweeley and Ostrom & Green, for Respondent.

When a person creates a liability and agrees to make payment in certain specified property, and then fails to make delivery of the property in accordance with his contract, the amount of his liability becomes immediately payable in money. (22 Am. & Eng. Ency. of Law, 2d ed., 542, 543; 21 R. C. L. 53, 55; McGillin v. Bennett, 132 U.S. 445, 10 S.Ct. 122, 33 L.Ed. 422; Marshall v. Ferguson, 23 Cal. 65; Cummings v. Dudley, 60 Cal. 383, 44 Am. Rep. 58; Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 53 Am. St. 790, 33 S.W. 652, 30 L. R. A. 765.)

BUDGE, J. Rice, C. J., and McCarthy, Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

This is an action for specific performance, or a money judgment in lieu thereof, upon a contract involving the exchange of real property.

The cause was tried to the court with a jury, and on May 8, 1918, the court filed its findings of fact and conclusions of law, reciting that the cause had theretofore come on for trial and the jury had returned its general verdict in favor of respondent, and made answer to several interrogatories submitted to it, which were accepted and approved by the court, from which verdict and answers and from the evidence upon the trial, the court finds the facts to be as follows:

That on April 9, 1917, respondent was the owner of lots 5, 6 and 7 of sec. 5, and lots 7 and 8 of sec. 6, T. 9 S., R. 15 E., B. M., together with all water rights appurtenant thereto, and subject to a mortgage of $ 6,000, and appellant was the owner of lots 7 to 16, inclusive, block 1, Buhl Heights Addition, to Buhl, together with all water rights appurtenant thereto; that on said date respondent and appellant entered into a written agreement consisting of two parts, by which appellant contracted to purchase respondent's said property and to pay therefor a purchase price of $ 15,000 by assuming the $ 6,000 mortgage thereon, by delivering to respondent certain notes and personal property to the amount of $ 4,000, and by deeding appellant's above described land to respondent; that said land was valued at $ 5,000 by the parties and was worth said amount at the time of the trial; that on April 18, 1917, respondent tendered to appellant a deed to the former's land, subject to the mortgage thereon, duly executed and acknowledged by respondent and his wife, and submitted to appellant an abstract of title, and demanded performance of the contract on the part of appellant; that immediately following the execution of the contract on April 9, 1917, appellant, with respondent's consent, took possession of respondent's property, but thereafter made an effort to surrender such possession to respondent, which respondent refused, and that appellant refused to comply with the terms of said contract; that neither respondent nor his agent made any misrepresentations concerning his property, and that allegations in the answer relating thereto were not sustained by the proof; that the property which appellant contracted to convey to respondent was and is the community property of appellant and his wife; and that the wife refused to join in a deed conveying same to respondent.

As conclusions of law the court found that this action was brought to enforce the contract between respondent and appellant; that appellant could deliver to respondent the promissory notes and personal property agreed to be delivered by him; that because of appellant's failure to deliver to respondent the deed referred to in the contract, the value of such property became a money debt due from appellant to respondent; that the abstract of title submitted by respondent to appellant showed that respondent was the owner of and held a marketable title to the real estate contracted by him to be sold to appellant, extending from the north line of said lands southward to the Snake River; that respondent was entitled to a performance of his contract with appellant within thirty days from the filing of the conclusions of law, or to a money judgment for the contract price of his said property less the amount of the mortgage thereon.

On July 5, 1918, appellant not having performed said contract, judgment was rendered against him for $ 9,000, interest and costs, from which judgment this appeal is taken.

Appellant makes two assignments of error; first, that a decree of specific performance could not be entered in this action; and second, that the title to the lands between the rimrock and the Snake River was not a marketable title in respondent.

The first assignment of error raises the question whether specific performance lies to enforce a contract by which the husband agrees to sell community property.

C. S., sec. 4666, provides that: "The husband has the management and control of the community property, . . . . But he cannot 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."

The court having found the property which appellant contracted to sell to be community property, it necessarily follows under our statute that the husband has no power to sell, convey or encumber it, unless the wife join with him therein.

The rule is well settled that equity will not take jurisdiction of a suit seeking specific performance of a contract when specific performance cannot be enforced and there is no other ground for equitable relief. (Lewis v. Yale, 4 Fla 418; Doan v. Mauzey, 33 Ill. 227; Adair v. Adair, 22 Ore. 115, 29 P. 193; Hill v. Fiske, 38 Me. 520; Stevenson v. Buxton, 37 Barb. (N.Y.) 13; Morgan v. Bell, 3 Wash. 554, 28 P. 925, 16 L. R. A. 614; ...