Hancock v. Elkington, 7398

• Decision Date: 13 November 1947
• Docket Number: 7398
• Citation: 67 Idaho 542,186 P.2d 494
• Parties: HANCOCK v. ELKINGTON et ux
• Court: Idaho Supreme Court

186 P.2d 494

67 Idaho 542

HANCOCK v. ELKINGTON et ux

No. 7398

Supreme Court of Idaho

November 13, 1947

Appeal from District Court, Ninth Judicial District, Bonneville County; C. J. Taylor, Judge.

Affirmed.

W Lloyd Adams and Mary Smith, both of Rexburg, for appellant.

The statute was enacted for the protection of the community and not a shield for fraud.

"Courts of equity will not permit the statute of frauds, or the statute in regard to conveyances of married women, to be a shield to protect fraud, and those statutes were not enacted to encourage frauds and cheats. The appellant had paid the price agreed to be paid for the property, etc." Grice v Woodworth, 10 Idaho 459, 80 P. 912, 69 L.R.A. 584, 109 Am.St.Rep. 214.

A defendant can never shelter his fraudulent conduct behind the rules of the statute. Hidden v. Jordan, 21 Cal. 92.

This statute is for the protection of the community, and, having enjoyed the benefits of the lease, the tenant cannot use the statute to defeat the payment of the balance of the rent which he agreed to pay. Karlson v. Hanson & Karlson Sawmill Co., 10 Idaho 361, 78 P. 1080; Farrar v Parrish, 42 Idaho 451, 245 P. 934.

Albaugh, Bloem & Hill, of Idaho Falls, for respondents.

A written lease of community property for a term of years is a conveyance and an encumbrance within the provisions of I.C.A. § 31-913, and is void ab initio unless the wife join with the husband in the execution and acknowledgment thereof, and the tenant can be dispossessed at any time. Fargo v. Bennett, 35 Idaho 359, 362, 206 P. 692; Burnham v. Henderson, 47 Idaho 687, 691, 278 P. 221; Intermountain Realty Co. v. Allen, 60 Idaho 228, 231, 90 P.2d 704, 122 A.L.R. 647; Little v. Bergdahl Oil Co., 60 Idaho 662, 671, 95 P.2d 833; Durant v. Snyder, 65 Idaho 678, 685, 151 P.2d 776.

There can be no recovery and no action can be based upon a void contract. Shepherd v. Dougan, 58 Idaho 543, 556, 76 P.2d 442; Deer Creek Highway Dist. v. Doumecq Highway Dist., 37 Idaho 601, 607, 218 P. 371; Village of Heyburn v. Security Savings & Trust Co., 55 Idaho 732, 750, 49 P.2d 258; 13 C.J. 492; 12 Am.Jur. 713.

Miller, Justice. Budge, C. J., Givens and Hyatt, JJ., and Lee, District Judge, concur.

OPINION

Miller, Justice.

May 14, 1945, the plaintiff and appellant attempted to lease from W. H. Elkington and Elsie Elkington, defendants and respondents, for a period of three years the Southwest quarter of Section 1, Township 3 North, Range 38, East of Boise Meridian. The lease was on a crop-share basis, the conditions of which were fully set out and contained therein, and it is attached to and made a part of the complaint on file herein. May 15, 1945, appellant took possession of said premises in accordance with the terms of the lease and operated the same during the year 1945, and planted, harvested and divided the various crops grown thereon as required by the lease, with the exception of the crop of hay. The lease purports to give appellant an option to purchase said premises and in the following language, to-wit: "It is understood and agreed that the second party is to have option to buy, dated from the beginning of any crop year at any offered price by other prospective purchasers."

March 22, 1946, appellant filed his complaint in the District Court of the Ninth Judicial District of the State of Idaho in and for the County of Bonneville, and in which it is alleged that on November 20, 1945, without the knowledge and consent of appellant, the respondents sold said premises to two Japanese, and that on March 1, 1946, the respondents placed said purchasers in possession of said premises and appellant was ordered to remove therefrom. It is also alleged that respondents did not notify appellant of their intention to sell said premises and at no time offered to sell the same to him. The said purported lease is not signed or acknowledged by Mrs. Elkington. The complaint contains two causes of action and alleges that because of the sale of said premises and appellant's removal therefrom, he has sustained damages in the sum of $ 4,829 on his first cause of action and for a like sum of $ 4,829 on his second cause of action. A demurrer to the complaint and each cause of action, on the grounds that it did not state facts sufficient to constitute a cause of action and on the further grounds that it was uncertain, speculative and conjectural, was overruled. An answer denying most of the material allegations was filed. Subsequently negotiations for settlement were commenced. January 24, 1947, respondents filed a motion to dismiss the action, in which it was set out that the first cause of action did not state sufficient facts to constitute a cause of action; that the second cause of action did not state sufficient facts to constitute a cause of action; and that said complaint, and the whole thereof, did not set forth facts sufficient to constitute a cause of action against the defendants or either of them.

Just prior to the hearing of the motion to dismiss the action there was a substitution of attorneys for plaintiff and likewise a substitution of attorneys for defendants. Attorneys for appellant were notified that on the 31st day of January, 1947, the respondents would call up for hearing the motion to dismiss the action. On said January 31, 1947, respondents' motion for an order to dismiss the action came on for hearing, and said motion was granted and the action dismissed.

There is no suggestion in the record that the property sought to be leased is not the community property of respondents.

March 28, 1947, notice of appeal was filed. It does not affirmatively appear, from the record, that service thereof was made on the adverse party as required by Sec. 11-202, I.C.A. as amended by Chap. 21, 1943 Sess.Laws. Finlayson v. Humphreys, 67 Idaho 193, 174 P.2d 210.

The only specification of error, submitted by appellant, says: "The court erred in granting defendants motion to dismiss and entering the order of dismissal."

Section 31-913, I.C.A., provides: "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 can not 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."

This court has repeatedly held that a lease of community property for a term of years is a conveyance within the provisions of Sec. 31-913, I.C.A., supra. See Fargo v. Bennett, 35 Idaho 359, 206 P. 692, and numerous supporting authorities. Also in Durant v. Snyder, 65 Idaho 678, 151 P.2d 776, 778, it is said: "A lease of community real property for more than one year, not acknowledged by the husband and wife, is not enforcible as such. Section 31-913, I.C.A.; Fargo v. Bennett, 35 Idaho 359, 206 P. 692; Burnham v. Henderson, 47 Idaho 687, 278 P. 221; Little v. Bergdahl Oil Co., 60 Idaho 662, 95 P.2d 833; Abbl v. Morrison, Idaho, 64 Idaho 489, 134 P.2d 94."

Furthermore, it is elementary that there can be no recovery on a void contract. Shepherd v. Dougan, 58 Idaho 543, 556, 76 P.2d 442.

A defendant must be deemed to have waived any objections to a pleading excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action. Sec. 5-611, I.C.A. Such objections are available at any time, even in this court.

At page 7, of appellant's reply brief, it is said: "The only question before the trial court in the arguments on the motion to dismiss and to strike was that the wife's signature was not acknowledged. That was the only question raised before the court and it was on that question alone that the motion was granted."

The appellant contends that, "The complaint contains sufficient allegations to constitute fraud." And that "Fraud, deceit and estoppel are sufficiently alleged."

We think, however, that the complaint does not contain sufficient allegations as to fraud, deceit or estoppel. Repeatedly throughout the briefs of appellant, it is stated, "The case at bar is for damages." And, in commenting on the case, Durant v. Snyder, 65 Idaho 678, 151 P.2d 776, cited by respondents, appellant contends that such case is for the enforcement of a lease. "Appellant's is for damages."

The case of Nolan v. Grim, 67 Idaho 138, 173 P.2d 74, is similar to the instant case. Nolan was the lessee of certain premises. No question as to its validity was involved. Contained in the lease was an option or provision to the effect that it was made subject to the sale of the premises. Suit by Nolan in specific performance was instituted and the trial court dismissed the action because the contract was too indefinite. The case was appealed to this court in which we quoted with approval from 25 R.C.L. 218, Sec. 17, as follows:

"'One of the fundamental rules respecting the specific performance of contracts is that performance will not be decreed where the contract is not certain in its terms. The terms must be complete and free from doubt or ambiguity, and must make the precise act which is to be done clearly ascertainable. A decree of specific performance may be entered where the contract is certain and complete, or contains provisions which are capable in themselves of being reduced to certainty, and from which the intention of the parties can be clearly ascertained, but such a decree will be denied if some of the terms of the contract are indefinite and uncertain or are left open for future determination by the parties.'" (Numerous citations.)

"In a long line of authorities...