Hart v. Turner

• Decision Date: 05 May 1924
• Citation: 39 Idaho 50,226 P. 282
• Parties: ROY S. HART and LACY LUTON HART, Respondents, v. E. L. TURNER, H. J. WEAVER and W. F. MCFARLAND, Appellants
• Court: Idaho Supreme Court

226 P. 282

39 Idaho 50

ROY S. HART and LACY LUTON HART, Respondents, v. E. L. TURNER, H. J. WEAVER and W. F. MCFARLAND, Appellants

Supreme Court of Idaho

May 5, 1924

VENDORS-COMMUNITY PROPERTY-HUSBAND AND WIFE-SIGNATURE BY-ACKNOWLEDGMENT BY - TIME OF ESSENCE-EXTENSION AGREEMENT-STIPULATION OF FACTS-EVIDENCE INCONSISTENT WITH STIPULATION-CONCLUSIONS OF LAW IN STIPULATION-SPECIFIC PERFORMANCE-MUTUALITY OF REMEDY-CONSENT OF THIRD PARTY.

1. A contract for the sale of community property, not signed and acknowledged by both husband and wife, is invalid.

2. Where a contract for the sale of land does not make time of the essence, but the parties to the contract agree that performance shall be made within a specified time, the agreement extending the time of performance has the effect of making time of the essence.

3. A stipulation of facts does not necessarily bind the parties as to conclusions of law embraced therein; nor as to the facts when the party relying thereon introduces evidence inconsistent with the stipulation.

4. Where from the inception of the contract, to and including the time of the trial, the vendor in a contract for the sale of land is unable to perform the contract according to its terms, specific performance will not be decreed against the vendee.

5. A contract depending for its performance upon the consent of a third party not a party thereto cannot be specifically enforced, since the court cannot enforce its decree.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. T. Bailey Lee, Judge.

Action for specific performance of contract for the sale of land. Judgment for plaintiff. Reversed.

Judgment of the trial court reversed, with direction. Costs awarded to appellants.

E. A Walters and R. P. Parry, for Appellants.

Since the land in question was the separate property of respondent Mrs. Hart it is necessary that any valid agreement pertaining thereto be executed by her. (Chaney v. Gauld Co., 28 Idaho 76, 152 P. 468; Knudsen v. Lythman, 33 Idaho 794, 200 P. 130.)

The agreement signed by respondent Mrs. Hart was lacking in all of the essential elements of a contract capable of being specifically enforced. (4 Pomeroy's Eq. Jur., 3d ed sec. 1405; 25 R. C. L. 218, 219; 36 Cyc. 589, 890; Armstrong v. Henderson, 16 Idaho 566, 102 P. 361; Reynolds v. Wetzler, 254 Ill. 607, 98 N.E. 993; Allen v. Ludington State Bank, 169 Mich. 139, 135 N.W. 454; Roberts v. Cox, 91 Neb. 553, 136 N.W. 831; Thompson v. Burns, 15 Idaho 572, 99 P. 111; Forister v. Sullivan, 231 Mo. 345, 132 S.W. 722; Racich Asbestos Mfg. Co. v. Brooks, 141 A.D. 14, 130 N.Y.S. 382; Warwick v. Warwick, 60 Wash. 467, 111 P. 568; Bauman v. Kiesian, 164 Cal. 582, 129 P. 968; Castevens v. Castevens, 227 Ill. 547, 118 Am. St. 291, 81 N.E. 709; Carlson v. O'Connor, 79 Ore. 333, 154 P. 755; Colonna Dry Dock Co. v. Colonna, 108 Va. 230, 61 S.E. 770; Deeds v. Stephens, 10 Idaho 332, 79 P. 77.)

The agreement, if any, covering the lands affected by this suit was totally lacking from its inception in mutuality of both obligation and remedy. (Childs v. Reed, 34 Idaho 450, 202 P. 685; Moody v. Crane, 34 Idaho 103, 199 P. 652, 6 L. R. A., N. S., 391, note; Wit-Keets-Poo v. Rowton, 26 Idaho 193, 152 P. 1064; 25 R. C. L., sec. 33; Norris v. Fox, 45 F. 406; Paige on Contracts, secs. 3308, 3318; Lunt v. Lorschiered, 285 Ill. 589, 121 N.E. 237; Banbury v. Arnold, 91 Cal. 606, 27 P. 935; C. S., sec. 4666; Fargo v. Bennett, 35 Idaho 359, 206 P. 692; McKinney v. Merritt, 35 Idaho 600, 208 P. 244.)

Specific performance cannot be required of defendant Weaver for the reason that he never signed the agreement, if any. (25 R. C. L. 206; Lee v. Dodge, 5 Wall. (U.S.) 808, 18 L.Ed. 472; Sawyer v. Brosart, 67 Iowa 678, 56 Am. Rep. 371, 25 N.W. 876.)

Respondents sought to have trial court erect and enforce an agreement different from that entered into by the parties and are therefore entitled to no relief. (Smith v. Krall, 9 Idaho 535, 75 P. 263; Machold v. Farnan, 14 Idaho 258, 94 P. 170.)

Because of the character of the agreement and of the specific provisions thereof, it was incumbent upon the respondents to perform within a reasonable time, which they did not do. (Elliott on Contracts, sec. 1555; Marshall v. Gilster, 34 Idaho 420, 201 P. 711; Durant v. Comegys, 3 Idaho 204, 28 P. 425; Machold v. Farnan, supra.)

Sweeley & Sweeley, for Respondents.

As the land of the wife was not separately bargained for but was included with the community property in a single deal which has been partially executed by both parties, the contract is enforceable. (C. S., sec. 7975; Francis v. Green, 7 Idaho 68, 65 P. 362; Barton v. Dunlap, 8 Idaho 668, 66 P. 832; Deeds v. Stephens, 8 Idaho 514, 69 P. 534; Fleming v. Baker, 12 Idaho 346, 85 P. 1092; Havlick v. Davidson, 15 Idaho 787, 100 P. 91; King v. Seebeck, 20 Idaho 223, 118 P. 292; Houser v. Hobart, 22 Idaho 735, 127 P. 997, 43 L. R. A., N. S., 310; Wolf v. Eagleson, 29 Idaho 177, 157 P. 1122.)

The appellants did not at any time make demand for a deed or tender performance of the balance of their contract. They could not rescind without such tender and demand. (37 R. C. L., p. 652, sec. 413; Machold v. Farnan, 14 Idaho 258, 94 P. 170.)

The trial court had the right to enter a conditional decree. "A conditional decree may provide that on the payment or tender to him of a designated sum the defendant shall execute a deed of conveyance of the property in controversy." (25 R. C. L. 344, sec. 170, and cases cited; LeVine v. Whitehouse, 37 Utah 260, Ann. Cas. 1912C, 407, 109 P. 2; Bateman v. Hopkins, 157 N.C. 470, Ann. Cas. 1913C, 642, 73 S.E. 133.)

"Under the provisions of C. S., sec 6687, no particular form of complaint is required, but a statement of the facts constituting the cause of action in ordinary and concise language is sufficient, and the plaintiff can be sent out of court only when, upon the facts pleaded, he is entitled to no relief either at law or in equity." (Poncia v. Eagle, 28 Idaho 60, 152 P. 208; Carroll v. Hartford Fire Ins. Co., 28 Idaho 466, 154 P. 983; Bates v. Capital State Bank, 21 Idaho 141, 121 P. 561; Rauh v. Oliver, 10 Idaho 3, 77 P. 20; Anderson v. War Eagle, etc., 8 Idaho 789, 72 P. 671.)

BRINCK, District Judge. McCarthy, C. J., and Budge and Wm. E. Lee, JJ., concur.

OPINION

BRINCK, District Judge.

--This is an action for specific performance of a contract for the purchase of land. From a judgment and decree for plaintiffs, the defendants, vendees, appeal.

The respondents, Mr. and Mrs. Hart, plaintiffs in the court below, are husband and wife. On November 19, 1919, appellants, having been negotiating for the purchase of 120 acres of land belonging, as hereinafter stated, to the respondents, submitted to respondents a written memorandum of a contract for the sale thereof by respondents to appellants. The writing later was lost and its contents were proved at the trial by oral testimony. The trial court found that the contract showed the names of the parties, the description of the property, the purchase price, an acknowledgment of the payment of $ 500 that day made thereon, and the statement that the remainder was to be paid when the abstract of title was furnished, and the deeds ready for delivery. The purchase price was $ 150 an acre or an aggregate of $ 18,000. Appellants and Mr. Hart signed the memorandum, and the court found, on conflicting testimony, that Mrs. Hart either signed it or ratified it in a way that made it binding upon her. It is not claimed, nor does it appear in the evidence, that the contract was acknowledged by any of the parties.

Upon receipt of the abstract, it was discovered by the appellants that 70 acres of the land stood of record in the name of Mr. Hart, which the court found to be community property, and that the other 50 acres stood of record in the name of Mrs. Hart, and that she was an American Indian, and could not dispose of the 50 acres without the approval of the government. The precise nature of the restriction on her alienation of the land is not shown in the record, but the pleadings admit, and the court found, that she could dispose of the land only with the approval of the government of the United States. The court further found that this 50 acres had been bought with her money.

After making this discovery, the appellants and Mr. Hart, on December 4, 1919, agreed that appellants should pay to him at that time a further sum of $ 10,000 and receive the deed of respondents to the 70 acres, which was done; and at that time Mr. Hart stated to appellants that the deed to the remaining 50 acres could be had in 10 or 12 days and the appellants replied that they would give respondents 30 days in which to deliver it. Mrs. Hart was not present on December 4th, but had executed and acknowledged the deed on December 3d and testified that she understood the transactions of December 4th and that Mr. Hart acted for her there.

The respondents immediately took up with the government the matter of approving the sale, without result so far as the record discloses, until the receipt by Mrs. Hart of a letter of date May 21, 1920, from the chief clerk of the Office of Indian Affairs in the Department of the Interior at Washington, stating:

"The office will take favorable action on the sale of your land at Twin Falls, whenever the consideration is deposited with the Superintendent of the Umatilla School. When the approved deed is sent to the Superintendent, instructions will be given as to the disposition of the proceeds of the sale."

Respondents thereupon notified appellants of the receipt of this letter. Appellants then told them that they would not accept the deed or make payment for the land and respondents brought this...