Engholm v. Ekrem

• Decision Date: 08 January 1909
• Citation: 119 N.W. 35,18 N.D. 185
• Parties: ENGHOLM et ux. v. EKREM et al.
• Court: North Dakota Supreme Court

18 N.D. 185

119 N.W. 35

ENGHOLM et ux.

v.EKREM et al.

Supreme Court of North Dakota.

Nov. 24, 1908.

Rehearing Denied Jan. 8, 1909.

Syllabus by the Court.

Plaintiffs, who are husband and wife, and who were the owners of the real property in dispute, being a portion of their homestead, entered into a verbal agreement to sell the same to E. Pursuant thereto E. paid part of the purchase price, entered into possession, and made certain permanent improvements thereon, with the full knowledge and acquiescence of plaintiffs. Held, that E. thereby became the equitable owner of the premises, and that plaintiffs, by their acts, are estopped to question the validity of such contract.

The doctrine of equitable estoppel by conduct applies as against married women the same as against all persons sui juris.

Neither the statute of frauds nor the various statutory provisions enacted for the protection of homestead claimants can be held to do away with the general equity doctrine of estoppel in pais.

Actual fraud at the time of the act set up as constituting the estoppel is not essential to the application of the doctrine of estoppel, it being sufficient that the act relied on constitutes constructive fraud.

E. having acquired the equitable title to this property, it would operate as a constructive fraud upon his rights to permit plaintiffs to succeed in their purpose to divest him of such ownership. The homestead laws should not be construed so as to permit the owners of homesteads to perpetrate a fraud, either actual or constructive, upon the rights of others.

Costs are purely the creature of statute, and can be awarded only when expressly authorized by law. It is accordingly held, that certain allowances by way of attorney's fees were erroneous, and the judgment is modified by eliminating such items therefrom.

Appeal from District Court, Ward County; Goss, Judge.

Action by Nels O. Engholm and wife against J. M. Ekrem and others. Judgment for defendants, and plaintiffs appeal. Modified and affirmed.L. W. Gammons and Purcell & Divit, for appellants. Palda & Burke and Bosard & Ryerson, for respondents.

FISK, J.

This action was brought to determine adverse claims to a small tract of land described in the complaint and situated in the city of Minot. Defendant Ekrem answered separately, alleging both a written and an oral contract by the terms of which plaintiffs agreed to sell to him and he agreed to purchase a certain portion of the premises and alleging a part performance thereof on his part. The other defendants, with the exception of Husby and Peterson, answered, but it is unnecessary to state the issues raised by such answer, as they were awarded judgment against the plaintiffs, and the correctness thereof is not challenged by the appellants on this appeal, except as to certain allowances by way of attorneys' fees, which will be hereafter noticed. As a result of the trial in the district court judgment was entered in favor of defendant Ekrem, decreeing specific performance of the oral contract of sale alleged by him. Aside from a determination of the correctness of the allowance of attorneys' fees, we are called upon only to retry the issues between plaintiffs and the defendant Ekrem.

The facts out of which the dispute arose between plaintiffs and Ekrem are briefly as follows: Plaintiff Nels Engholm became the owner of the property involved, together with something over an acre of land adjoining the same, and about the month of January, 1902, he and his wife, the other plaintiff, established their residence upon said tract of land, the entire tract being inclosed by a fence on all sides, except as bounded by Mouse river. This entire tract constituted their homestead, and was of the value of from $2,500 to $3,000, the buildings thereon consisting of their dwelling house and a barn. In the summer of 1904 Ekrem, with knowledge of the homestead character of said tract, had certain negotiations or talks of an informal character with plaintiffs relative to a sale and purchase of the whole or a portion of the tract, which negotiations continued up to October 6th of that year, on which date an oral contract was entered into, as hereafter stated. On October 7, 1904, plaintiff Nels Engholm and defendant Ekrem entered into a written contract of sale upon the same terms as the oral agreement made the previous day, by the terms of which a portion of said tract, situate in the southwest corner thereof, 150 feet on the south and 200 feet deep, Nels agreed to sell and convey, and Ekrem agreed to purchase, for the consideration of $600, payable as follows: Five dollars cash at the date of the execution of the contract; $95 on December 15, 1904; $250 on November 1, 1905, and $250 on November 1, 1906. Engholm, as party of the first part, agreed that upon the full, prompt, and faithful performance of the contract by Ekrem he would convey to him said premises by good and sufficient deed of conveyance with the usual covenants of general warranty. On October 8th plaintiffs sold and conveyed by deed to defendant Peterson a portion of said tract lying north of the portion described in the Ekrem deed. Their dwelling house was situated on the land sold to Peterson, and after such sale plaintiffs continued to live in said dwelling house, paying rent to Peterson for the use thereof, until about Christmas, 1904, when they removed therefrom, and took up their residence in a new dwelling, built, after the sale to Peterson, on that portion of the land left in the southeast portion of said tract. Within a few days after the Ekrem contract was entered into he entered on said premises, and commenced to grub out trees and excavate for a dwelling, and in the latter part of October, 1904, he commenced building a house on the tract claimed to have been purchased by him, his house and plaintiffs' being in the course of construction at the same time, and the following spring Ekrem also built a barn on the tract claimed by him. Plaintiff Marie Engholm did not sign the written contract, and she refused to do so when the same was presented to her a few days later for her signature. On October 28th a receipt for $95 was signed by both plaintiffs and delivered to Ekrem, representing a payment at that time made on the land contract of such sum. Plaintiff Marie at first refused to sign such receipt, and remonstrated against the sale of the land. It is claimed by plaintiffs that her signature thereto was obtained through fraud and misrepresentations, regarding which there appears to be a dispute in the testimony. Marie took no action to prevent the erection of the house by Ekrem, nor did she remonstrate against his holding the premises until the following spring, when plaintiffs attempted to restrain Ekrem from building his barn.

The disputed questions of fact which we are called upon to retry are: First, whether plaintiffs, and especially Marie Engholm, entered into the oral agreement on October 6th to sell to Ekrem the portion of the tract claimed by him, it being contended by plaintiffs that the only contract entered into was the written contract signed only by Nels Engholm and defendant Ekrem, and it is contended by appellants that no agreement, either oral or in writing, was ever entered into for the sale of the particular land claimed by Ekrem; second, whether Marie Engholm's signature to the receipt for $95 aforesaid was obtained through misrepresentations, or with full knowledge on her part of the facts. It is also contended that the payment of this money was not made to her or to her husband in her presence; and, third, whether the facts on which an estoppel is claimed as against plaintiffs, and especially Marie Engholm, are sufficiently established. In appellants' printed argument they first direct our attention to their objections to certain evidence, with the statement that such objections are based upon two general propositions as follows: “First, it appearing that the property in question was a homestead, any evidence attempting to establish a contract of sale is not admissible, except a written instrument signed and acknowledged by both husband and wife; second, no acts of acquiescence or ratification of an oral contract can by way of estoppel supply the place of the statutory form of conveyance.” These propositions need not be specially noticed at this time, as they are the same as those involved in the main propositions of law to be hereafter considered. Addressing ourselves to the facts, we will dispose of the controverted questions in the order in which they are presented in appellants' brief.

The trial court's finding No. 9 is the first finding challenged. This finding is as follows: “That during the summer and fall of the year 1904 the plaintiffs, Nels O. Engholm and Sophia Engholm, were desirous of selling a portion or all of said tract of land embraced in their purchase of Gullison and Watne to J. M. Ekrem, and at various times during the summer, and up to October 7, 1904, each and both of said plaintiffs requested J. M. Ekrem to purchase a portion of said tract, or all thereof, as said Ekrem desired, and had several negotiations with Ekrem in attempting to sell all or a portion of said tract to him, according as he desired to purchase all or a portion of the same, and the said negotiations led up to the execution of the attempted contract of sale, hereinafter set forth, and at the solicitation of each and both of said plaintiffs to purchase a portion or all of said tract said J. M. Ekrem inspected said premises so offered for sale by plaintiffs, and on October 6, 1904, while on said premises, in company with both plaintiffs, said plaintiffs, each and both of them, agreed to sell, and defendant J. M. Ekrem agreed to buy, a rectangular piece of land 150 feet in width and 200 feet long, or four lots each 50x150 feet in area, side by side, and in the southwesterly portion of said tract of land purchased by Engholm from Watne, and...