Grice v. Woodworth

• Decision Date: 31 December 1904
• Citation: 80 P. 912,10 Idaho 459
• Parties: GRICE v. WOODWORTH
• Court: Idaho Supreme Court

80 P. 912

10 Idaho 459

GRICE v. WOODWORTH

Supreme Court of Idaho

December 31, 1904

CONVEYANCE BY MARRIED WOMEN - SALE OF HOMESTEAD-CONSTRUCTION OF STATUTES.

1. Where W. and W., husband and wife, enter into an oral contract for the sale of their homestead, and the purchaser takes possession thereof, and pays the purchase price and makes valuable improvements thereon, all of which are done with the full knowledge and consent of the wife, the purchaser is entitled to a decree requiring them to convey said premises to him.

2. The provisions of sections 2921, 2922, 3040 and 3041, of the Revised Statutes, were enacted for the purpose of protecting the homesteads and other rights of married persons particularly the wives, and were not intended to operate as a shield to relieve against a fraudulent transaction on their part.

3. Sections 3040 and 3041, Revised Statutes, are in their nature rules of evidence and are subject to the same legal principles as are conveyances falling under the statute of frauds and the rules of equitable estoppel and waiver.

(Syllabus by the court-Ailshie, J., dissenting.

APPEAL from the District Court of Latah County. Honorable Edgar C Steele, Judge.

Action to enforce specific performance of contract. Judgment for defendant. Reversed.

Reversed and remanded. Costs awarded to appellant.

R. V Cozier and Stewart S. Denning, for Appellant.

A party who, under a verbal contract, has purchased real estate, gone into possession, made valuable improvements thereon and paid the purchase price, is entitled to a specific performance of the contract. (Rev. Stats., sec. 6008; Wait on Fraudulent Conveyances and Void and Voidable Acts, 2d ed., secs. 436, 437; 2 Lomax's Digest, 41; Thomas v. Dickenson, 12 N.Y. 364; Holland v. Hoyt, 14 Mich. 238; Butler v. Lee, 11 Ala. 885, 46 Am. Dec. 230; Wilkinson v. Scott, 17 Mass. 249; Linscott v. McIntire, 15 Me. 201, 33 Am. Dec. 602; Gibson v. Wilcoxen, 16 Ind. 333; Bowen v. Bell, 20 Johns. (N. Y.) 338, 11 Am. Dec. 286; Stowell v. Tucker, 7 Idaho 312, 62 P. 1033.) Sections 3040 and 3041 of the Revised Statutes of 1887, covering the conveyances and abandonment of the homestead, are simply rules of evidence and are controlled by the same legal principles as conveyances falling under the statute of frauds. (Andola v. Picott, 5 Idaho 27, 46 P. 928; Stowell v. Tucker, 7 Idaho 312, 62 P. 1033; Law v. Butler, 44 Minn. 482, 9 L. R. A. 856, 47 N.W. 53; Walker v. Kelly et al., 91 Mich. 212, 51 N.W. 934; Harkness v. Burton, 39 Iowa 101.) Where an execution is levied upon a homestead, and the parties entitled to the homestead exemption stand passively by and make no objection to the sale, and allow a party to part with his money for the purchase of the premises, they are estopped against him from setting up the homestead character of the land. (Kimball v. Salisbury, 19 Utah 161, 56 P. 973; Griffin v. Nichols, 51 Mich. 575, 17 N.W. 63; Imhoff v. Lipe, 162 Ill. 282, 44 N.E. 493; Gallager v. Keller (Tex. Civ. App.), 30 S.W. 248.) Where an oral conveyance of land is made which ought to have been in writing, and acknowledged under the statute of frauds in a state, and the vendee has been placed in possession of the property by the vendor and paid the purchase price, if there be nothing illegal or immoral in the transaction, a court of equity will decree specific performance of the verbal contract. ( Andola v. Picott, 5 Idaho 27, 46 P. 928; Von Rosenburg v. Perrault, 5 Idaho 719; Stowell v. Tucker, 7 Idaho 312, 62 P. 1033; Grimshaw v. Belcher, 88 Cal. 217, 22 Am. St. Rep. 298, 26 P. 84; Fry on Specific Performance, 259, 260; Bigelow on Estoppel, 3d ed., 470, 513; Gilbert v. American Surety Co., 121 F. 499; Manchester etc. R. Co. v. Concord R. R. Co., 66 N.H. 100, 49 Am. St. Rep. 582, 20 P. 383, 9 L. R. A. 689; Drake v. Painter, 77 Iowa 731, 42 N.W. 526; Winkleman v. Winkleman, 79 Iowa 319, 44 N.W. 556; Allbright v. Hannah, 103 Iowa 98, 72 N.W. 421; Anderson v. Cosman, 103 Iowa 266, 64 Am. St. Rep. 177, 72 N.W. 523.) The statute of frauds applies to executory and not to executed contracts. (Coffin v. Bradbury, 3 Idaho 770, 95 Am. St. Rep. 37, 35 P. 715.) The rule of estoppel is that one who, with knowledge, accepts the proceeds of an unauthorized sale of his property, is estopped to dispute the validity of the sale. (Escolle v. Franks, 67 Cal. 137, 7 P. 425; Goodman v. Winter, 64 Ala. 410, 433, 38 Am. Rep. 13; France v. Haynes, 67 Iowa 139, 25 N.W. 98; Moore v. Hill, 85 N.C. 218; Field v. Doyon, 64 Wis. 560, 25 N.W. 653; Booth v. Wiley, 102 Ill. 84, 107.) A vendor who has refused to execute a conveyance of real estate cannot recover for use and occupation against a purchaser who has occupied the same under an oral agreement for the purchase thereof, if the purchaser is able and willing to perform the contract. (Hammond on Contracts, sec. 313.) A wife is estopped from claiming that she did not join in the conveyance. (Mudgett v. Clay, 5 Wash. 103-111, 31 P. 424; Norton v. Nichols, 35 Mich. 149; Godfrey v. Thornton, 46 Wis. 679, 1 N.W. 362; Saxton v. Wheaten, 8 Wheat. 239, 5 L.Ed. 607; Brooks v. Barker, 6 Johns. Ch. 166; Anderson v. Cosman, 103 Iowa 266, 64 Am. St. Rep. 177, 72 N.W. 523.)

Forney & Moore, for Respondents.

The crucial or pivotal question in this case is simply this: Will the courts of Idaho compel the specific performance of an oral agreement made with a husband for the sale of the homestead without the wife being a party to such agreement? The law governing the sale of homesteads by married women may be found in the following sections from the Revised Statutes, namely, sections 2921, 2922, 3040, 3041 and 2505. The statutes of Idaho specifically declare how the sale of a homestead may be made. This method of procedure excludes all others. (Barton v. Drake, 21 Minn. 305; Law v. Butler, 44 Minn. 482, 47 N.W. 53, 9 L. R. A. 858.) This question has frequently been before the courts of California, and the supreme court of that state has uniformly held, under statutes identical with Idaho that a married woman can only be devested of her estate in the manner prescribed by statute, and that the homestead can only be conveyed in the mode prescribed by statute. (Matthews v. Davis, 102 Cal. 207, 36 P. 358; Jackson & Thomas v. Torrence, 83 Cal. 533, 23 P. 695; Cohen v. Davis, 20 Cal. 195; California Fruit Trans. Co. v. Anderson, 79 F. 404; Security Loan Co. v. Kauffman, 108 Cal. 218, 41 P. 467; Gleason v. Spray, 81 Cal. 217, 15 Am. St. Rep. 47, 22 P. 551; Barber v. Babel, 36 Cal. 14; Mellen v. McMannis, 9 Idaho 418, 75 P. 98.) We believe it to be the universal rule that if damages at law will be adequate compensation for the breach of a contract, specific performance will not be decreed. (Senter v. Davis, 38 Cal. 450.) The respondents in the present case claim that the doctrine announced in the case of Morrison v. Wilson, 13 Cal. 495, 73 Am. Dec. 593, that fraud may vitiate all contracts, but when applied to married women it will not devest a married woman's title in the face of a statute declaring different and exclusive mode of divestiture, and a wife, under the Idaho and California statutes, cannot make a husband's contract effectual by any act which does not amount to affixing her signature to it and properly acknowledging the same. (Kantrowitz v. Prather, 31 Ind. 92, 99 Am. Dec. 587.) Judge Agnew said in Glidden v. Strupler, 52 Pa. 402, in speaking of a married woman's void deed: "Equity cannot breathe life into a legal nonentity." (1 Story's Equity Jurisprudence, par. 177; Herman on Estoppel, par. 1099; Mattox v. Hightshue, 39 Ind. 95; Rogers v. Higgins, 48 Ill. 211.)

SULLIVAN, C. J., STOCKSLAGER, C. J. Stockslager, C. J., Sullivan, J., concurring. AILSHIE, J., Dissenting.

OPINION

The facts are fully stated in the opinion.

SULLIVAN, C. J.

--This is an action to compel specific performance of a contract for the conveyance of real estate situated in Moscow, Latah county. It appears from the record that the respondents are husband and wife, and that on the seventh day of January, 1895, the husband purchased the east one-half of lots 4, 5 and 6, in block 2, Fry's addition to the town of Moscow, Latah county, and the consideration paid therefor was money acquired by the respondent, Jay Woodworth subsequent to the marriage of the respondents; that on the twentieth day of March, 1895, while respondents were residing on said premises and occupying the same as a homestead, the respondent, Lillie I., filed her declaration of homestead upon said premises; that sometime prior to the thirtieth day of August, 1901, the respondents had removed from Moscow, in the county of Latah, to Wallace, in the county of Shoshone and that respondent Woodworth had listed said property for sale with real estate agents residing and doing business in said town of Moscow, at the price of $ 1,500; and on said last-mentioned date the appellant paid to said agents for the respondent $ 25 for a thirty day option to purchase said premises, and thereafter, on the twentieth day of September, the appellant took up said option and orally promised the said agents to purchase said premises and to pay the sum of $ 1,500 therefor as follows, to wit: To assume a mortgage upon said premises executed by the respondents to the Vermont Loan and Trust Company, to secure the payment of $ 950, together with interest thereon and $ 550 in cash, and thereupon, with the consent of said agents, the appellant entered into the possession of said premises and moved his family into the residence situated upon said premises, and has ever since occupied the whole of said premises as a residence, all of which was known to the respondents; that instead of paying said $ 550 as agreed, the same was paid in payments as follows: November 1, 1901,...