Helgebye v. Dammen
| Decision Date | 31 May 1904 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Traill county; Pollock, J.
Action by Hannah Karstensen Helgebye against Carl O. Dammen. Judgment for defendant and plaintiff appeals.
Affirmed.
Freerks & Freerks, for appellant.
Partial performance of an oral agreement for the sale and purchase of real estate, satisfies the statute of frauds. Section 3960, Rev. Codes 1899; Farley v. Vaughn et al., 11 Cal 227; Deeds v. Stephens, 69 P. 534; Fidler et al v. Norton et al., 30 N.W. 128; McCullom v Mackrell, 83 N.W. 255; Lothrop v. Marbel, 81 N.W. 885; Myrick v. Bill et al., 5 N.D. 167, 37 N.W. 369.
Homestead right will attach to land held under contract. Roby v Bismarck National Bank, 4 N.D. 166, 59 N.W. 719; Myrick v. Bill et al., 5 N.D. 167, 37 N.W. 369; Hoy v. Anderson, 58 N.W. 125; Allen v. Caldwell, 20 N.W. 692; Wilder v. Haughey, 21 Minn. 101; Rawles v. Reichenbach et al., 90 N.W. 943.
Provision for forfeiture of contract for sale of land is waived by subsequent conveyance to vendee or his assignee. Alexander v. Jackson, 92 Cal. 514, 27 Am. St. Rep. 158, 28 P. 593; Blue v. Blue, 38 Ill. 9, 87 Am. Dec. 267; Allen v. Hawley, 66 Ill. 164; Watson v. Saxer, 102 Ill. 585; Kitterlin v. Milwaukee Mechanics' Mutual Ins. Co., 25 N.E. 768; Stafford v. Woods, 33 N.E. 539; Persiful v. Hind, 88 Ky. 296; State v. Diviling, 66 Mo. 375; Libbey et al. v. Davis, 34 A. 744; Chopin v. Runte, 44 N.W. 258.
The rule is the same whether contract is written or oral. Fyffe v. Beers, 18 Iowa 11, 85 Am. Dec. 577; Smith v. Chenault, 48 Tex. 455; Dotson v. Barnett, 16 Tex. Civ. App. 258.
The homestead of a married person cannot be conveyed or incumbered, unless husband and wife execute and acknowledge the instrument. Section 2608, Rev. Codes 1899; Violet v. Rose, 58 N.W. 216; Whitlock v. Gosson et al., 53 N.W. 980; France v. Bell et al., 71 N.W. 984; Swift et al. v. Dewey et al., 29 N.W. 254.
The ownership may be in fee simple, or equitable under a contract of purchase. Giles v. Miller, 54 N.W. 551.
Statute must be literally complied with, both as to consent and mode of manifesting it. Cumps v. Kiyo, 80 N.W. 937; Haggerty et ux v. Brower, 75 N.W. 321; Goodwin v. Goodwin, 85 N.W. 31; Anderson v. Culbert, 7 N.W. 508.
Not rendered effective by subsequent termination of the homestead privilege. Gagliardo v. Dumont, 54 Cal. 496; Powell v. Patison, 34 P. 677.
The sale by plaintiff's husband, and assignment of the contract to defendant were void, and the deed in fulfillment of the contract was in equity a deed to plaintiff's husband. Moore v. Reaves, 15 Kan. 121-123.
The statutory requirements for alienation of the homestead cannot be waived. Law v. Butler, 9 L. R. A. 856; Minnesota Stoneware Co. v. McCrossen, 85 N.W. 1019; Howell v. McCrie, 59 Am. Dec. 584; Ott v. Sprague, 27 Kan. 620; Gagliardo v. Dumont, 54 Cal. 496; Gardner v. Gardner, 82 N.W. 522.
Plaintiff could not be divested of her rights without a foreclosure or legal cancellation of the contract. Buchholz v. Leadbetter, 92 N.W. 830.
Defendant may recover any damages sustained from plaintiff's husband, as money obtained under false pretenses. DeKalb v. Hingston, 73 N.W. 350; Morris v. Wells, 66 S.W. 248; Thimes v. Stumpff, 5 P. 431; H. Stern, Jr., & Bros. Co. v. Wing et al., 97 N.W. 791.
P. G. Swenson, for respondent.
To enforce an oral contract for the purchase of land upon the ground of possession and part performance, it is essential that such oral contract be definite and the terms of payment certain. Eckel v. Bostwick et al., 60 N.W. 784.
If husband had no title in the land, the wife had no homestead interest therein. And if the interest of the husband was terminated the wife's homestead interest terminated with it. The claim is based on an oral contract and part performance. If the contract was valid, its validity depended upon Mr. Helgebye being in possession, for if possession is abandoned, all claim to part performance is lost. 26 Am. & Eng. Enc. Law (2nd Ed.) 58.
If the husband's ownership in the land ceased by abandonment, the wife's homestead right ceased also. Kuhnert v. Conrad, 6 N.D. 215, 69 N.W. 185; Snodgrass et al. v. Parks et al., 21 P. 429; Dahl v. Thompson, 67 N.W. 579; 15 Am. & Eng. Enc. Law, 563.
A written contract for the sale of land may be annulled by parol. Wadge v. Kittleson, 12 N.D. 452, 97 N.W. 856; Mahon v. Leech, 11 N.D. 181, 90 N.W. 807.
Under the deed from Erickson to defendant, the latter would be subrogated to all the rights of Erickson to receive the purchase money on the contract if in force. Hunter v. Coe and McDevitt, 12 N.D. 505, 97 N.W. 869.
In October, 1898, one Erickson was the owner of the 160 acres of land involved in this suit. During that month he entered into an oral contract with one Helgebye, then plaintiff's husband, by virtue of which contract said Erickson agreed to convey the land to Helgebye upon payment of $ 3,100, to be paid by turning over to Erickson one-half of the crops raised thereon each year. On deferred payments 6 per cent interest was also payable. Helgebye moved a house upon the land, valued at $ 100. Thereafter he, together with his wife and children, moved upon said land and made it their home until March, 1902. In October, 1899, Helgebye paid $ 93 in cash upon the contract. No other payment was ever made on the contract. Crops were raised on the land by Helgebye in 1899, 1900 and 1901, but no part of them was turned over to Erickson. During the year 1901 Helgebye was desirous of relieving himself from his contract, for the reason, as stated by him, that he was owing too much, and was unable to carry on the contract any longer. He and Erickson talked matters over, and Erickson was willing that he should sell his interest in the land, providing he got his pay for it. Helgebye and the defendant, Dammen, agreed upon terms, under which Dammen was to take the land at $ 3,500--a better price than Helgebye had agreed to pay for it. Helgebye also arranged with Erickson that he would take $ 2,800 for the land, in view of the fact that this $ 2,800 was to be cash or its equivalent. On October 7, 1901, Erickson conveyed the land by deed to Dammen, and, in pursuance of Helgebye's agreement with these parties, Erickson received his $ 2,800, partly in cash and the balance of $ 1,800 secured by mortgage. Helgebye received $ 700 in cash, and a receipt for $ 300 owed by him to Dammen. Mrs. Helgebye was at this time living on the land with her husband and children. She did not execute any papers, nor was she consulted as to the arrangement, so far as the evidence shows. It inferentially appears from the evidence that she had knowledge of the transactions between her husband and these parties at the time, but on that question the evidence is not satisfactory, and is not made the subject of a finding by the trial court. The wife did not personally receive any of the $ 700, although some of it was used for the support of the family. Soon after the sale to Dammen, Helgebye went away, and remained away till winter, and returned in March, 1902; and soon thereafter the family left this land, and went to live on a rented place near to this one. Dammen did not force them to leave the premises, but indicated that he would want some of the buildings, but not the house, in the spring of 1902. The evidence clearly shows that they left the place voluntarily, and the trial court so found. In the year 1903, Helgebye brought an action for a divorce against his wife. She interposed an answer and a counterclaim, setting forth grounds for a decree of divorce in her favor. She obtained a decree of divorce on March 4, 1903. Plaintiff in that case did not appear at the trial, and a stipulation was filed adjusting their property rights, and the terms of the stipulation were carried out under the decree. In this stipulation Helgebye transferred to her all his right, title and interest to the land in question; and the court, in the decree of divorce, adjudged her to be the owner of the same, as against the plaintiff and all those claiming under him. Mrs. Helgebye has brought this action against the defendant, and asks that the deed from Erickson to Dammen be set aside, and that the legal title to the land be transferred to her, as well as the possession thereof, together with the rents and profits during the year 1902. The district court denied the relief asked by the plaintiff, and dismissed the action. Plaintiff appeals from the judgment and requests a review of all the issues, under section 5630, Rev. Codes 1899.
Plaintiff's contention is that she is entitled to the land under the decree of divorce awarding it to her, that she did not join in any conveyance of the homestead to the defendant, and that the deed under which defendant claims the land is void, and conveyed no title as against her homestead right. Defendant's contention is that the contract under which the homestead was held was abandoned by the plaintiff's husband, and the homestead voluntarily abandoned by the husband and wife, who left the same intending to abandon the same, and that they established a home upon other land.
That a wife may claim a homestead in land occupied by herself and husband as a home, when the husband has only an equitable right to such land, is conceded by counsel in this case. Any equitable ownership or title, together with possession and occupation as a home, is sufficient on which to successfully base a homestead exemption. Roby v. Bismarck Nat Bank, 4 N.D. 156, 59 N.W. 719, 50 Am. St. Rep. 633; Myrick v. Bill (Dak.) 37 N.W. 369; Allen v. Cadwell (Mich.) 20 N.W. 692; Wilder v. Haughey, 21 Minn. 101; Snodgrass v. Parks, 79 Cal. 55, 21 P....
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