Crawford v. Carter

• Decision Date: 21 April 1949
• Docket Number: 8988.
• Citation: 37 N.W.2d 241,72 S.D. 514
• Parties: CRAWFORD v. CARTER.
• Court: South Dakota Supreme Court

37 N.W.2d 241

72 S.D. 514

CRAWFORD v. CARTER.

No. 8988.

Supreme Court of South Dakota

April 21, 1949

Rehearing Denied May 18, 1949.

Churchill & Churchill, of Huron, for appellant.

Jon Fosheim, of Huron, for respondent.

SMITH Presiding Judge.

The plaintiff's complaint prayed for judgment quieting his title in 1.04 acres of farm land against the claims of defendant. The counterclaim of defendant prayed for specific performance of a described agreement of plaintiff to convey the acre to defendant. Defendant prevailed and a judgment of specific performance commanding plaintiff to convey was entered.

The plaintiff's assignments of error on appeal present two contentions for our consideration, viz., (1) The verbal agreement set forth in the testimony of defendant in indefinite and uncertain in that it fails to describe the property to be conveyed, and hence a judgment of specific performance was unwarranted, and (2) The acre is part of the homestead of plaintiff and his wife, the wife is not a party to the agreement, and is not a party to this action and hence a judgment of specific performance against the plaintiff husband is unwarranted because he is powerless to convey without her concurrence in his conveyance.

For a number of years plaintiff has owned and he and his wife have made their home on a farm located along the west side of Highway 37 a little more than a mile north of Huron. Ninety-nine acres were first acquired, but at a later time the acre in question was added, thus rounding out the east 100 acres of a quarter section. The entire farm was used by plaintiff and his wife in the business of raising hogs. As a part of their operations, plaintiff collected garbage in Huron for use as hog feed. The acre in question was used as a feed lot.

Defendant operated a repair shop and gasoline and oil station in rented quarters in Huron. Plaintiff was accustomed to go to defendant for truck repairs and parts, and for some of his gasoline and oil. After he had received notice to vacate the quarters he occupied, defendant approached plaintiff about establishing his business on a portion of plaintiff's farm. There is a sharp conflict in the evidence as to what was said between them. According to the version of defendant in which he was corroborated by other witnesses, plaintiff said, '* * * he had been having more or less trouble with his pick-up, running out to fix up flat tires etc., juggling oil barrels and things like that. He stated he wasn't physically able to wrestle this stuff and he didn't know if I quit business, how he would be able to keep his pick-up in running condition and if I would put up a garage and general repair shop and filling station so he could get his petroleum products and repairing done there he would give me the ground and I was to service his pick-up, and his tractor has steel wheels so he couldn't bring it down the high-way, but he could bring it to me for anything he wanted. I would be right there on the ground. I stated it would be quite a job to put in water and put up buildings. He said he would furnish the tools and do everything he could do to get this place in operation,--the sooner we could get it to operating the better it would be. So I accepted his proposition.'

Thereafter defendant expended several thousand dollars and considerable effort in erecting a filling station, a repair shop and a small home on plaintiff's property. The complaint alleges and the answer admits that defendant is in possession of the 1.04 acres described in plaintiff's complaint.

In entering its decision for defendant the trial court found that 'on or about March 16, 1946, an oral agreement was made between the plaintiff and defendant to the effect that the defendant was to place upon the acre of land above described a filling station and automobile repair shop, including welding equipment, and in fact a removal of his business in the same line as had been conducted in Huron, South Dakota, and that the equipment on the property should also include a residence property for the defendant and his family, and it was further agreed that when the defendant had placed such improvements upon said tract of land so that he was equipped to take care of plaintiff's truck and machinery as the same needed mechanical repair, and could furnish plaintiff with a source of petroleum products on said premises, that then plaintiff would deed said acre of land to the defendant. It being understood between the parties that the premises involved was that tract of land formerly surveyed and fenced off and used as a radio tower enclosure, which the Court finds is the same tract of land as above described.'

In order for a court to decree specific performance of a contract whether oral or written, the contract must make the precise act which is to be done clearly ascertainable. SDC 37.4602(6); Hollenbeck v. Prior, 5 Dak. 298, 40 N.W. 347; Steensland v. Noel, 28 S.D. 522, 134 N.W. 207; and Troutman v. Bock, 67 S.D. 569, 295 N.W. 637.

The foregoing principle furnishes the background for plaintiff's first contention, viz., that considered as a basis for a decree of specific performance the verbal contract is fatally undertain in that it fails to describe the ground upon which the proposed business was to be established. The argument is that the conclusions and judgment rest on the erroneous finding, quoted supra, that on March 16, 1946, the parties agreed that the business was to be placed on the tract formerly fenced off and used as a radio tower, whereas in fact all that was said was 'and if I would put up a garage * * * he would give me the ground'.

Although the record establishes the error of the trial court in making this central finding as to the terms of the agreement arrived at between the parties on March 16, 1946, we deem it error without prejudice. Admittedly a verbal agreement was entered into by the parties about the time fixed. The only conflict in the evidence is whether it was an agreement to lease or to convey. In reliance upon whatever agreement was then made, defendant was put in possession of the acre described in plaintiff's complaint, and his acts in improving the property are referable solely to that agreement. The court resolved the only conflict in the evidence against plaintiff and found a contract to convey. That which was uncertain became certain as soon as plaintiff put defendant in possession of a plot of ground, and the infirmity in the contract to which plaintiff points was thereby cured. Hollenbeck v. Prior, supra; 49 Am.Jur., Specific Performance, § 115, p. 135; 58 C.J. § 115, p. 943; Mundy v. Irwin, 20 N.W. 43, 145 P. 1080, Ann.Cas.1918D, 713; and Waldo v. Lockard, 96 Neb. 490, 148 N.W. 510. A court of equity does not look with favor on objections raised on grounds of uncertainty after a matter has advanced beyond the stage of contract and that which has been done in reliance on the contract not only makes the precise act which remains to be done clearly ascertainable but leaves the complaining party without an adequate remedy unless the contract be enforced. Pomeroy, Specific Performance of Contracts, § 145, p. 378.

The second contention, viz., That the acre is part of the homestead of plaintiff and his wife, the wife is not a party to the agreement, and is not a party to this action, and hence a judgment of specific performance against the plaintiff husband is unwarranted because he is powerless to convey without her concurrence in his conveyance, offers greater difficulty. The trial court disposed of the contention by (1) finding the acre was not a part of the homestead, (2) holding that plaintiff had a right, so long as he acted in good faith toward his family, to reduce the area of the homestead by the sale of such a tract, (3) by holding that plaintiff and his wife abandoned their homestead claims to the acre and are estopped to claim it as a part of their homestead, and (4) plaintiff failed to plead the homestead character of the property.

The following provisions contained in our statutes dealing with the family homestead are pertinent:

'If within a town plat it must not exceed one acre in extent, and if not within a town plat, it must not embrace in the aggregate more than one hundred sixty acres. * * *' SDC 51.1710.

'It may contain one or more lots or tracts of land with the buildings thereon and other appurtenances, subject to the limitations contained in this Code, but must in no case embrace different lots and tracts unless they are contiguous, or unless they are habitually and in good faith used as part of the same homestead.' SDC 51.1709.

'A conveyance or incumbrance of the homestead by the owner, if married and both husband and wife are residents of this state, shall be valid if both husband and wife concur in and sign or execute such conveyance or incumbrance either by joint instrument or by separate instruments.' SDC 51.1703.

We digress to observe that the limitation as to value is not of significance here as it is only for the benefit of creditors. Hansen v. Hansen, 40 S.D. 114, 166 N.W. 427; O'Neill v. Bennett, 49 S.D. 524, 207 N.W. 543; and Peck v. Peck, 51 S.D. 157, 212 N.W. 872.

The first and forth reasons put forward by the trial court in disposing of plaintiff's contention that the acre is part of his homestead are patently invalid and need not be labored. The evidence discloses without dispute that the whole 100-acre tract has been habitually and in good faith used as a part of the family homestead. SDC 51.1709, supra; Farmers &amp Merchants Nat. Bank v. Bank of Commerce, 49 S.D. 130, 206 N.W. 691; Edelman v. Scandrett, 67 S.D. 453, 293 N.W. 817. Although an issue on the homestead character of the property was not presented by the pleadings, that issue was...