Fargo v. Bennett

• Decision Date: 21 April 1922
• Citation: 206 P. 692,35 Idaho 359
• Parties: C. G. FARGO, Respondent, v. E. I. BENNETT and SARAH C. BENNETT, His Wife, Appellants
• Court: Idaho Supreme Court

206 P. 692

35 Idaho 359

C. G. FARGO, Respondent, v. E. I. BENNETT and SARAH C. BENNETT, His Wife, Appellants

Supreme Court of Idaho

April 21, 1922

COMMUNITY REAL PROPERTY-LEASE OF-LEASE AS CONVEYANCE OR ENCUMBRANCE-LEASE OF COMMUNITY PROPERTY VOID UNLESS WIFE JOIN IN EXECUTION AND ACKNOWLEDGMENT THEREOF.

A written lease of community property for a term of years is a conveyance and an encumbrance within the provisions of C. S sec. 4666, and is void unless the wife join with the husband in the execution and acknowledgment thereof.

APPEAL from the District Court of the Fourth Judicial District, for Cassia County. Hon. Wm. A. Babcock, Judge.

Action to enjoin owners of community property from interfering with possession under a purported lease. Judgment for plaintiff. Reversed.

Judgment reversed. Costs awarded to appellant.

Morris & Griswold, for Appellants.

A lease of real estate for a term of years is a conveyance or encumbrance within the meaning of C. S., sec. 4666. C. S sec. 5425, defines the term "conveyance" so clearly as to leave no question but that it includes a lease.

"A lease is an encumbrance, and is within the covenants implied from the use of the word 'grant' in a conveyance of an estate in fee simple." (Mann v. Montgomery, 6 Cal.App. 646, 92 P. 875.)

"An encumbrance, within the meaning of a covenant against encumbrances, includes any right or interest in the land which may subsist in the third person to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance. Hence, an outstanding lease is an encumbrance." (Brass v. Vandecar, 70 Neb. 35 96 N.W. 1035; Albin (La Rue) v. Parmele, 73 Neb. 663, 103 N.W. 304; Foland v. Italian Savings Bank, 123 A.D. 598, 108 N.Y.S. 57, 58.)

Dampier & Codding, for Respondent, file no brief.

BUDGE, J. Rice, C. J., and McCarthy and Dunn, JJ., concur.

OPINION

BUDGE, J.

This is an action by respondent against E. I. Bennett and Sarah C. Bennett, his wife, intervenor, to restrain appellants from interfering with respondent's use and possession of certain premises held by him under an alleged lease from E. I. Bennett.

From the record it appears that the premises in question, consisting of the lower floor and basement of a brick building in Burley, Cassia county, is the community property of appellants; that on November 26, 1918, respondent entered into a written contract of lease with E. I. Bennett, by which the latter purported to lease said premises to respondent for a term of five years beginning January 1, 1919, with an option to renew the lease for a like term; that respondent entered into possession of said premises on January 1, 1919, and has since remained in such possession, but that appellants are interfering with his use and occupation of the premises.

From a judgment in favor of respondent, this appeal is taken. Appellants make seven assignments of error, but the sole question involved is whether the contract entered into by respondent and E. I. Bennett constitutes a valid lease of the premises.

C. S., sec. 4666, provides that: "The husband has the management and control of the community property, except the earnings of the wife for her personal services and the rents and profits of her separate estate. But he cannot sell, convey or encumber the community real estate unless the wife join with him in executing and acknowledging the deed or other instrument of conveyance, by which the real estate is sold, conveyed or encumbered."

It necessarily follows that if a lease of community property for a term of years is a conveyance or encumbrance the wife must join with the husband in executing and acknowledging it, and that the husband alone cannot execute a valid lease. An encumbrance has been defined to be "Every right to or interest in the land which may subsist in third persons, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance." (Clark v. Fisher, 54 Kan. 403, 38 P. 493, 495.) The supreme court of Washington, under a statute practically identical with C. S., sec. 4666, in the case of Hoover v. Chambers, 3 Wash. Terr. 26, 13 P. 547, held that a lease of community property by the husband, made without the wife joining in the contract, was an encumbrance and void, and in contravention of the prohibition on the husband contained in sec. 5917, Remington Code, 1915. (Holyoke v. Jackson, 3 Wash. Terr. 235, 3 P. 841; Prescott v. Trueman, 4 Mass. 627, 3 Am. Dec. 246; Hughes v. Latour Creek R. R. Co., 30 Idaho 475, 166 P. 219; Childs v. Reed, 34 Idaho 450, 202 P. 685.)

A lease is a conveyance of lands and tenements to a person for life, or years, or at will, in consideration of a return of rent or other recompense. (1 Devlin on Real Property, 3d ed., sec. 13, p. 23; 1 Tiffany on Real Property, 2d ed., sec. 39, p. 98, sec. 42, p. 103; 2 Tiffany, supra, sec. 427, p. 1568.) That a lease is a conveyance has been frequently judicially recognized (1 Tiffany, supra, sec. 39, p. 98, note 14), and it is also held that a covenant against encumbrances will extend to an outstanding lease. (2 Devlin on Real Property, 3d ed., sec. 907, p. 1706, note 2.)

On the other hand, it is held that a lease is not a conveyance within statutes requiring a husband to join in the conveyance of his wife's real estate. (Perkins v. Morse, 78 Me. 17, 57 Am. Rep. 780, 2 A. 130; Kokomo Natural...