Christensen v. Arant

• Citation: 358 N.W.2d 200,218 Neb. 625
• Decision Date: 09 November 1984
• Docket Number: No. 83-590,83-590
• Parties: Gerald R. CHRISTENSEN, Appellant, v. Richard A. ARANT et al., Appellees.
• Court: Nebraska Supreme Court

Page 200

358 N.W.2d 200

218 Neb. 625

Gerald R. CHRISTENSEN, Appellant, v. Richard A. ARANT et al., Appellees.

No. 83-590.

Supreme Court of Nebraska.

Nov. 9, 1984.

Syllabus by the Court

1. Contracts: Homesteads. A contract to convey the homestead of a married person is absolutely void and unenforceable unless validly executed and acknowledged by both husband and wife.

2. Acknowledgments. An acknowledgment is the act by which a party who has executed an instrument of conveyance

as grantor goes before a competent officer or court and declares or acknowledges the same to be his genuine and voluntary act and deed.

3. Homesteads. An interest in the homestead simply will not pass nor be created unless the documents for that purpose are signed and acknowledged by both husband and wife.

Eric W. Kruger of Bradford & Coenen, Omaha, for appellant.

Robert G. Decker, Omaha, for appellees.

KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ., and COLWELL, District Judge, Retired.

PER CURIAM.

The defendants, Richard A. Arant and Eunice Arant, husband and wife, own a residence property located at 5016 Nicholas Street in Omaha, Nebraska. On January 7, 1983, the plaintiff, Gerald R. Christensen, made a written offer on a printed uniform purchase agreement form to purchase the property from the defendants for $50,000 "net" to the sellers. This offer was submitted to the defendants by their agent, David Osborne, and accepted by them on January 10, 1983. The defendants signed the written acceptance form printed on the document. Sometime later, the agent, who was a notary public, signed the certificate form of acknowledgment printed on the document and affixed his seal.

The contract called for closing and delivery of possession on February 1, 1983. The defendant sellers notified Osborne on February 8, 1983, that they did not intend to perform the contract and discharged him as their agent. The plaintiff commenced this action for specific performance on February 16, 1983. On March 7, 1983, the defendants entered into a contract with a different purchaser for a sale of the property for $64,000.

The trial court found generally for the plaintiff and ordered specific performance. The defendants then filed a motion for new trial, which was sustained by the trial court. The plaintiff has appealed from the order granting a new trial.

This is a proceeding in equity, and the review in this court is de novo on the record. Although the parties have submitted the matter as if the question were whether the order granting a new trial was erroneous, the issue is whether the plaintiff was entitled to specific performance. If the trial court believed the judgment was erroneous, the judgment should have been vacated and a new judgment entered refusing specific performance. There was no basis for granting a new trial.

The principal issue involves the acknowledgment of the contract and whether the contract is unenforceable because of irregularity in the acknowledgment of the contract.

The defendants alleged, and the uncontradicted evidence shows, that the subject property was the homestead of the defendants.

Neb.Rev.Stat. § 40-104 (Reissue 1978) provides in relevant part: "The homestead of a married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife ...."

With respect to execution of the contract, the record shows that the defendants' agent, Osborne, visited the defendants at their home on January 10, 1983, to submit the offer from the plaintiff. The defendants and Osborne discussed the sale around the dining room table for approximately 25 minutes. Mrs. Arant then went into a bedroom across a hallway and approximately 4 to 7 feet from the dining room to nurse a baby. She testified that the bedroom door was closed, but it is unclear as to whether she was able to continue in conversation with her husband and Osborne. Mr. Arant signed the contract in front of Osborne and then took the contract into the bedroom for Mrs. Arant to sign. She then signed the contract, fully intending to convey the property. Sometime later, Osborne completed the acknowledgment form printed on the contract and affixed his seal. The record shows that Osborne had previously represented the sellers in real estate transactions, and at least Mr. Arant was aware that Osborne was a notary public.

It is well established that "a contract to convey the homestead of a married person is absolutely void and unenforceable unless validly executed and acknowledged by both husband and wife." Trowbridge v. Bisson, 153 Neb. 389, 390-91, 44 N.W.2d 810, 812 (1950); O'Neill Production Credit Assn. v. Mitchell, 209 Neb. 206, 307 N.W.2d 115 (1981). In Trowbridge an acknowledgment was defined by the court as " '[t]he act by which a party who has executed an instrument of conveyance as grantor goes before a competent officer or court, and declares or acknowledges the same as his genuine and voluntary act and deed.' " (Citations omitted.) 153 Neb. at 391, 44 N.W.2d at 812. The general rule was then stated that

if the party executing such an instrument knows that he is before an officer having authority to take acknowledgments, understands that such officer is present for the purpose of taking his acknowledgment, intends to then do whatever is necessary to make the instrument effective, and the acknowledging officer's official certificate is attached thereto, then such acknowledgment, in the absence of fraud, will be conclusive in favor of those who in good faith rely...