Epperly v. Ferguson

• Decision Date: 13 October 1902
• Citation: 118 Iowa 47,91 N.W. 816
• Parties: EPPERLY v. FERGUSON.
• Court: Iowa Supreme Court

118 Iowa 47

91 N.W. 816

EPPERLY

v.FERGUSON.

Supreme Court of Iowa.

Oct. 13, 1902.

Appeal from district court, Davis county; T. M. Fee, Judge.

Marion Robb was the owner of the land involved in this action, and, with his wife, occupied a portion of it as their homestead. A written contract for the sale of the entire tract to the defendant was made and signed by the defendant and Robb. Mrs. Robb was present when the sale was negotiated, and took part therein. She offered to sign the contract at the time of its execution, but did not then do so, because it was thought unnecessary. The contract was made in duplicate on the 21st day of October, 1899, and a copy thereof kept by each party. It provided for a conveyance of the land to the defendant by the 1st of March, 1900. Before said date, and before the defendant had formally given notice that he elected to rescind the same, Mrs. Robb signed the contract held by her husband, and so notified the defendant, and offered in writing to sign the one held by him. After this was done, the defendant gave the Robbs notice that he elected to rescind the contract, and refused to accept the deed of Robb and his wife, and pay the balance due for the land thereunder. Robb assigned the contract to this plaintiff, who asks a specific performance thereof on the part of the defendant. There was a trial and judgment for the plaintiff, from which the defendant appeals. Affirmed.H. M. Eicher, Payne & Sowers, and S. W. & J. L. Brookhart, for appellant.

H. C. Taylor, for appellee.

SHERWIN, J.

This action was brought and tried in the county where the land is situated, and of which the defendant was a nonresident. Had it been an action by the defendant vendee, there can be no question as to his right to invoke the jurisdiction of the rem, because such action would have concerned the title to the land, and he had the right to have a conveyance thereof decreed by the court, and performed by its proper officer, if found so entitled. It is the general rule that an action for specific performance is primarily in personam, and that a party to such a contract may be sued whereever found. But it does not necessarily follow that such actions must be brought at the residence of the defendant, whether the court there has jurisdiction of the property or not; and, while the general rule is as stated, the action is transitory, unless made local by statute, and may be brought in a court having jurisdiction of the property, or in one having jurisdiction of the person only, at the option of the plaintiff. 20 Enc. Pl. & Prac. 400; Dehart v. Dehart, 15 Ind. 167;Rourke v. McLaughlin, 38 Cal. 196;Loaiza v. Superior Court, 85 Cal. 11, 24 pac. 707, 9 L. R. A. 376, 20 Am. St. Rep. 197;Burral v. Eames, 5 Wis. 260;Mussina v. Belden, 6 Abb. Prac. 174;Lindley v. O'Reilly (N. J. Err. & App.) 1 L. R. A. 79, note (s. c. 15 Atl. 379, 7 Am. St. Rep. 802). See, also, as sustaining this conclusion, Wright v. Leclaire, 3 Iowa, 221.

We are fully satisfied that the defendant cannot avoid his contract on the fraud claimed in pointing out to him the land for which he bargained, or for fraudulent statements as to its quality. He was on the land, and had an opportunity to examine every foot thereof.

This brings us to the final question of whether the contract may be avoided because the wife did not sign it when it was signed by her husband and the defendant. The statute provides that “no conveyance * * * or contract to convey * * * the homestead * * * is valid unless the husband and wife join in the execution of the same joint instrument.” Code, § 2974. It is conceded that, if the wife had never signed this contract, it would have been absolutely void. During the negotiations which culminated in the making of the written contract of sale, the wife was present, and not only took an...