Clark v. Clark

• Decision Date: 19 July 1935
• Docket Number: 6271
• Citation: 56 Idaho 6,47 P.2d 914
• Parties: SIGEL CLARK, Respondent, v. MONTRIE HERON CLARK, Appellant
• Court: Idaho Supreme Court

47 P.2d 914

56 Idaho 6

SIGEL CLARK, Respondent, v. MONTRIE HERON CLARK, Appellant

No. 6271

Supreme Court of Idaho

July 19, 1935

HOMESTEAD-HUSBAND'S SEPARATE PROPERTY-DECLARATION BY WIFE-ABANDONMENT.

1. Married woman residing with family on husband's separate property, and whose husband has not filed declaration of homestead, has right to select homestead from husband's separate property and make declaration thereon, and when made and filed homestead can be abandoned only as provided by statute (I. C. A., secs. 54-1001 to 54-1007, 54-1203, 54-1206).

2. Under statute giving married woman absolute right to make declaration of homestead out of husband's separate property, exercise of that right, though done maliciously does not constitute actual or constructive fraud, which can be availed of by husband or creditors (I. C. A., secs 54-1001 to 54-1007, 54-1203, 54-1206).

3. Under statute giving wife absolute right to make declaration of homestead out of husband's separate property husband held not entitled to cancel wife's declaration of homestead, though as a result thereof mortgage on property would be foreclosed due to failure of husband to procure loan to cancel existing indebtedness (I. C. A., secs. 54-1001 to 54-1007, 54-1203, 54-1206).

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Action by husband against wife to quiet title to his separate property and for a decree cancelling and annulling a declaration of homestead made and filed for record thereon by her. Judgment for plaintiff. Reversed.

Reversed and remanded with instruction. Costs awarded to appellant.

C. H Edwards and Paris Martin, for Appellant.

Under sec. 54-1002, I. C. A., the state of Idaho has seen fit to confer upon the wife the right to declare a homestead upon her husband's separate property without his consent, and without stating what her motive or purpose may be in the following words:

"If the claimant be married, the homestead may be selected from the community property, or the separate property of the husband, or with the consent of the wife, from her separate property."

T. L. Martin, for Respondent.

Appellant is asserting a bare legal right under sec. 54-1002, I. C. A., to declare a homestead on her husband's separate property. In doing this, under the admissions of the amended answer, she has committed a fraud on respondent's rights. She has effectively placed him in a position where he is powerless to protect his property against existing liens, or to prevent the foreclosure thereof, or to redeem from a foreclosure. All this is admitted by the pleadings.

Appellant is overlooking another provision of the statutes of Idaho, which reads as follows:

"31-901. Mutual obligations--Husband and wife contract toward each other obligations of mutual respect, fidelity, and support."

MORGAN, J. Givens, C. J., and Budge and Ailshie, JJ., concur. Holden, J., sat with the court at the hearing, but did not participate in the decision.

OPINION

MORGAN, J.

The parties to this action are husband and wife. The husband is, and prior to their marriage was, sole owner of a farm in Ada County which is mortgaged to secure the payment of a debt now past due and, at the time the action was commenced, foreclosure of the mortgage was threatened. He made application for a loan to the Federal Land Bank of Spokane with which to pay the debt and the application was approved, but before the loan was made his wife, appellant herein, filed a declaration of homestead on the land, and has refused, and still refuses, to join in the execution of a mortgage or to file an abandonment of the homestead. Because of the homestead declaration and of appellant's refusal to join in the execution of a mortgage, the Federal Land Bank refused to make the loan and respondent is unable to procure money from any source with which to pay the existing mortgage indebtedness. He alleges that, because of his wife's conduct aforesaid, the mortgage now on the farm will be foreclosed. It is further alleged in the complaint:

"Plaintiff alleges that said declaration of homestead upon said property of this plaintiff was made without the knowledge or consent of plaintiff and against his will, and for the purpose of preventing plaintiff from mortgaging his said property to the Federal Land Bank, thus refinancing the indebtedness against the same, or dealing in or with his property and exercising his judgment in regard thereto in the manner and method by which he could protect the same, and in the hope and expectation that plaintiff could not pay said mortgage becoming due upon said property or the interest, taxes, drainage assessments or water bills thereon, or refinance such indebtedness, and that said mortgage would be foreclosed by the holder thereof, and that said defendant, by reason of said foreclosure, could acquire or secure an interest or title in or to said property by and through property and assets owned by defendant as her separate property; that said action on the part of said defendant in executing and recording said declaration of homestead was and is in fraud of plaintiff's rights and to his free use and enjoyment of said property and his right to mortgage or convey the same, and was executed and recorded for the purpose of clouding plaintiff's title, and has and does cloud plaintiff's title so he cannot mortgage or sell said property or otherwise protect his ownership thereof, or interest therein."

Plaintiff prayed for a decree adjudging that defendant had no claim, estate, right, title or interest in or to the land, or any part thereof; that his title thereto be quieted against her claims, demands and pretensions; that she be enjoined from asserting any claim thereto, or interest therein; that the court, by decree, cancel and annul the declaration of homestead filed thereon and that it be held for naught, and that plaintiff have judgment for costs against defendant.

Appellant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled and she answered. Respondent moved for judgment on the pleadings, the motion was granted and decree was entered as prayed for in the complaint. The order overruling the demurrer to the complaint and the action of the court awarding judgment on the pleadings are assigned as error.

As we view the case it may be disposed of on the assignment first mentioned and it will not, therefore, be necessary to state the contents of the answer nor discuss the questions presented by the other assignment.

The right of a husband to prosecute an action against his wife to quiet title to his separate property is not questioned by counsel for appellant and we...