Elliott v. Craig

• Decision Date: 22 October 1927
• Docket Number: 4687
• Citation: 45 Idaho 15,260 P. 433
• Parties: MARION ELLIOTT and LETITIA ELLIOTT, His Wife, Respondents, v. H. CRAIG, Appellant
• Court: Idaho Supreme Court

260 P. 433

45 Idaho 15

MARION ELLIOTT and LETITIA ELLIOTT, His Wife, Respondents, v. H. CRAIG, Appellant

No. 4687

Supreme Court of Idaho

October 22, 1927

HUSBAND AND WIFE-COMMUNITY PROPERTY-VOID CONTRACT, EFFECT-RIGHT OF PURCHASERS TO RECOVER.

1. Under C. S., sec. 4666, contract to convey community property is void, unless wife joined with husband in executing and acknowledging such a contract.

2. Where husband's contract to convey community property without wife's consent was void, under C. S., sec 4666 subsequently obtaining consent of wife and tendering deed signed and acknowledged by wife held not to validate contract.

3. Purchasers of community property from husband under contract which was void, under C. S., sec. 4666, because of wife's failure to join therein, held entitled to recover from husband value of frame building placed on property.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action for money had and received, and for value of improvements. Judgment for plaintiffs. Affirmed.

Judgment affirmed, with costs to respondents.

D. L Rhodes, for Appellant.

The contract was only voidable at the option of defendants. (C S., sec. 4666; McKinney v. Merritt, 35 Idaho 600 208 P. 244; Blaine County Nat. Bank v. Timmerman, 42 Idaho 338, 245 P. 389.)

C. S., sec. 4666, is intended solely to protect the interest of the wife in the community real estate and the privilege of avoiding the contract made by the husband alone is a personal privilege and cannot be made the basis of a right to terminate the contract by one dealing with the husband. (Chapman v. Duffy, 20 Colo. App. 471, 79 P. 746; Seaton v. Tohill, 11 Colo. App. 211, 53 P. 170; 31 C. J. 1066, sec. 163.)

If the contract is void, it is so because it is in contravention of sec. 4666, C. S., and therefore against public policy and neither party may enforce the same specifically or recover damages for its breach. (Mundy v. Shellaberger, 161 F. 503, 88 C. C. A. 445; Ferrell v. Wood, 149 Ark. 376, 16 A. L. R. 1033, 232 S.W. 577; Ellis v. Batson, 177 Ala. 313, 58 So. 193; Berka v. Woodard, 125 Cal. 119, 73 Am. St. 31, 57 P. 777, 45 L. R. A. 420.)

The question of the right of a party to a contract with the husband alone for the purchase of community property, to repudiate the contract and recover the payments, has been determined adversely to such right under a statute identical in meaning with C. S., sec. 4666. (R. & B. Code (Wash.), sec. 5918; Colcord v. Leddy, 4 Wash. 791, 31 P. 320; Isaacs v. Holland, 4 Wash. 54, 29 P. 976; Wooding v. Crain, 10 Wash. 35, 38 P. 756.)

No fraud or mistake is pleaded or proven and the payments made by the plaintiffs were purely voluntary and cannot be recovered. (Thimes v. Stumpf, 33 Kan. 53, 5 P. 431; Maskey v. Lackmann, 146 Cal. 777, 81 P. 115; Independent School Dist. No. 6 v. Mittry, 39 Idaho 282, 226 P. 1076.)

The improvements were not permanent and in any way enhanced the value of the property, and therefore the value thereof cannot be recovered. (31 C. J. 308; Bacon v. Thornton, 16 Utah 138, 51 P. 153; Holverson v. Evans, 38 Idaho 428, 224 P. 1067; 39 Cyc. 1358.)

Geo. H. Van de Steeg, for Respondents.

Under C. S., sec. 4666, the husband cannot contract to convey community property unless the wife join with him therein. (Childs v. Reed, 34 Idaho 450, 202 P. 685; Wits-Keets-Poo v. Rowton, 28 Idaho 193, 152 P. 1064; Fargo v. Bennett, 35 Idaho 359, 206 P. 692; Hart v. Turner, 39 Idaho 50, 226 P. 282.)

The rule of law is settled in this state to the effect that an acknowledgment by the wife is necessary to the validity of any instrument whereby community property is sold, conveyed or encumbered. (McKinney v. Merritt, 35 Idaho 600, 208 P. 244; Myers v. Eby, 33 Idaho 266, 12 A. L. R. 535, 193 P. 77; Knudsen v. Lythman, 33 Idaho 794, 200 P. 130; Fargo v. Bennett, supra; Hart v. Turner, supra.)

The wife, under our statutes, is an equal owner with her husband in the community property. (Kohny v. Dunbar, 21 Idaho 258, Ann. Cas. 1913D, 492, 121 P. 544, 39 L. R. A., N. S., 1107; Peterson v. Peterson, 35 Idaho 470, 207 P. 425; Ewald v. Hufton, 31 Idaho 373, 173 P. 247; Swinehart v. Turner, 38 Idaho 602, 224 P. 74.)

Under sec. 4666, C. S., the contract here involved was absolutely void; it was not merely voidable or unenforceable, but it was an invalid contract and absolutely void. This court has so stated repeatedly in language that cannot admit of any other interpretation or meaning, and it has become fixed and settled law in this state. (Fargo v. Bennett, supra; McKinney v. Merritt, supra; 1 C. J., p. 770, sec. 44, and p. 775, sec. 60; Blaine County National Bank v. Timmerman, 42 Idaho 338, 245 P. 389.)

Failure of the wife to execute and acknowledge a contract for the sale of community property is such a defect as cannot be cured by a subsequent offer by husband and wife to perform by duly executing and acknowledging a deed to the property. (Childs v. Reed, supra; Hart v. Turner, supra; Scott v. Bush, 26 Mich. 418, 12 Am. Rep. 311.)

The contract being invalid and absolutely void, whatever benefits appellant received under it from respondents were had and received without consideration, and the amount or value of such benefits had and received by appellant from respondents, less the amount or value of any benefits enjoyed by respondents under the contract, may be recovered back by the respondents from the appellant. (Smith v. Bach, 54 Cal.App. 236, 201 P. 611; Amonson v. Idaho Dev. Co., 25 Idaho 615, 139 P. 352; 39 Cyc., pp. 2019, 2020; Collins v. Pearsall, 134, App.Div. 820, 119 N.Y.S. 203; Milner v. Pelham, 30 Idaho 594, 166 P. 594; Brown v. City of Atchison, 39 Kan. 37, 7 Am. St. 515, 17 P. 465; Burgess v. Corker, 25 Idaho 217, 136 P. 1127.)

Money paid under a contract which is void or invalid may be recovered back. (41 C. J., p. 38, sec. 17.)

BABCOCK, Commissioner. Featherstone and Adair, CC., concur.

OPINION

BABCOCK, Commissioner.--

This is an action brought by respondents in which they are seeking to recover of the appellant money paid by them to the appellant on the purchase price of a certain tract of land in the city of Nampa, Idaho, and in addition thereto the value of certain improvements claimed to have been placed on said property by the respondents under a certain purported contract of purchase and sale. The complaint in this action which was filed October 31, 1923, recites the making of the purported contract between the respondents and appellant on the eleventh day of March, 1922, and alleges that at the time of making such contract the appellant, H. Craig, was a married man and that the property in question was community property, and that the contract not being signed by the wife of the appellant was void, and alleges that the defendant repossessed the premises together with the building on the fifteenth day of April, 1923, and asks judgment for the amount paid on the purchase price, $ 500, and for the value of the improvements, $ 100, less the reasonable rental value of the property during the time it was occupied by the respondents.

The appellant interposed a general demurrer to the complaint which was by the court overruled; whereupon the appellant answered the complaint, admitted that he was a married man at the time of making said contract and that the property in question was community property; but denied that the agreement was null and void, and alleged that at all times he had the consent and authority of his wife to make the contract in question and that he was ready, willing and able to make a good and sufficient deed to the property, and brought and tendered the same into the court, which was refused by the respondents.

Appellant further alleges that the sum of $ 500, claimed by the respondents to have been paid on the contract, was not cash but a second-hand truck of the value of not to exceed $ 250, received by the appellant on said contract, and denied that any improvements were made on the premises by the respondents.

The case was tried to the court and findings of fact and conclusions of law made and entered on April 4, 1925, to the effect that the contract in question was absolutely null and void, and that whatever of value the appellant received from the respondents under or pursuant to the contract was had and received by the appellant without consideration and that respondents were entitled to recover the same; that the reasonable value of the truck turned over by respondents to appellant was $ 200 and they had subsequent to the execution of the contract paid in cash to the appellant $ 29, and had made certain improvements on the premises of the value of $ 25, making a total of $ 254, and that the reasonable rental value of the lands for the time that respondents occupied the same was $ 30, and that the respondents were entitled to judgment accordingly including interest on the $ 200 payment at the rate of seven per cent per annum from March 11, 1922.

Judgment was entered April 4, 1925, for $ 303. From this judgment defendant appeals.

The appellant makes seven assignments of error as follows:

"1. The court erred in overruling defendant's demurrer.

"2. The court erred in finding that the plaintiffs did not know that defendant was a married man at the time he entered into the contract.

"3. The court erred in finding that the contract was null and void, and without consideration.

"4. The court erred in its conclusion of law, that the plaintiffs were entitled to recover the consideration paid for the contract.

"5. The court erred in its conclusions of law, that the plaintiffs were entitled to recover the value of the improvements.

"6. The evidence is insufficient to sustain the judgment...