Holbrook v. Flynn

• Decision Date: 23 June 1948
• Docket Number: 7340
• Citation: 195 P.2d 355,68 Idaho 396
• Parties: HOLBROOK et ux. v. FLYNN et al
• Court: Idaho Supreme Court

195 P.2d 355

68 Idaho 396

HOLBROOK et ux. v. FLYNN et al

No. 7340

Supreme Court of Idaho

June 23, 1948

Appeal from District Court, Tenth Judicial District, Nez Perce County; Miles S. Johnson, Judge.

Affirmed.

Leo McCarty and Paul C. Keeton, both of Lewiston, for appellants.

Both the husband and wife must consent to the sale of community real estate and join in the execution and acknowledgement of any instrument selling, conveying or encumbering the same. Fargo v. Bennett, 35 Idaho 359, 206 P. 692; Myers v. Eby, 33 Idaho 266, 193 P. 77; 12 A.L.R 535; Wits-Keets-Poo v. Rowton, 28 Idaho 193, 152 P 1064.

Estoppel would not lie against one member of the community due to the fact that his or her failure to join in executing and acknowledging the instrument selling, conveying or encumbering community real property renders the instrument void. Hughes v. Latour Creek Railroad Company, 30 Idaho 475, 166 P. 219; McKinney v. Merritt, 35 Idaho 600, 208 P. 244; Elliott v. Craig, 45 Idaho 15, 260 P. 433.

Ray E Durham, of Lewiston, for respondents.

Mrs. Holbrook, having contracted to sell the property, having accepted the down payment, and having represented in the contract of sale that she was the owner of the property in fee, the knowledge of which was acquired by her husband prior to the time that Mrs. Flynn was placed in possession of the property, the turning over of the property to Mrs. Flynn by both Mr. and Mrs. Holbrook, the delivery of the keys and their knowledge of her possession during April, May, June, and July of 1943, and her use of the property, estops the community composed of Fred Holbrook and Harriet E. Holbrook from asserting that the property was their community property. Chaney v. Gauld Co. 28 Idaho 76, 152 P. 468; Jonas v. Frost, 32 Idaho 214, 179 P. 949; Overland Nat. Bank of Boise v. Halveston, 33 Idaho 489, 196 P. 217; Leaf v. Codd, 41 Idaho 547, 240 P. 593; Leaf v. Reynolds, 34 Idaho 643, 203 P. 458; Kansas City Life Ins. Co. v. Harroun, 44 Idaho 643, 258 P. 929; Moore v. Croft, 47 Idaho 568, 277 P. 425; Boise Association of Credit Men v. Glenns Ferry Meat Co. 48 Idaho 600, 283 P. 1038; Grice v. Woodworth, 10 Idaho 459, 80 P. 912, 69 L.R.A. 584, 109 Am.St.Rep. 214.

To allow the community composed of Fred and Harriet E. Holbrook to disaffirm the contract at this time would amount to fraud on Mrs. Flynn and would be a legal sanction of such fraud by this Court. Kansas City Life Ins. Co. v. Harroun, 44 Idaho 643, 258 P. 929.

Givens, Chief Justice. Budge, Holden, and Miller, JJ., and Featherstone, District Judge, concur.

OPINION

Givens, Chief Justice.

G. V. Russell was unnecessarily joined as a defendant and affirmance of judgment in favor of both respondents disposes of his connection with the litigation in which he had no legal interest.

Appellants brought suit to recover rent from respondent Flynn for the use and occupancy of Lot 8 in Block 4 of the Lewiston Orchards Tract. Respondent Flynn resisted on the ground she had bought the property through one Jungert, a real estate broker who pre-deceased the trial, and with whom the property had been listed in writing by Mrs. Holbrook. Appellants insisted the property was community property and the sale agreement signed only by the wife was invalid and refused to complete the transfer. Respondent took the position the property was the sole and separate property of Mrs. Holbrook, which appellants were estopped to deny.

In substance, the evidence shows appellants put respondent in possession of the property, though there is conflict as to what was said between them and their subsequent actions recognizing and acknowledging there had been a sale. The evidence is likewise conflicting and to some extent confusing as to how the property was acquired by appellants and whose funds went into the purchase thereof, involving a claimed reimbursement to Fred C. Holbrook out of a settlement of the estate of Mrs. Holbrook's father for a debt due from him to Mr. Holbrook and an adjustment thereof with Mrs. Holbrook's brother and sister, the other heirs.

There is no dispute that respondent tendered the balance of the purchase price and that appellants refused to go through with the sale. The court found on sustaining evidence that "* * * that the said plaintiffs never advised the defendant Dolly Flynn until August 15, 1943, that the said property was the community property owned by the community composed of the plaintiffs; that neither plaintiff at any time from April 12, 1943 to August 15, 1943, advised the defendant or her attorney that they would not convey the property in accordance with the terms of the contract of sale and purchase upon the payment of the balance of the purchase price, or that the property was not the separate property of the plaintiff Harriet E. Holbrook; that the said plaintiff Fred C. Holbrook read the contract of sale and purchase, as evidenced by plaintiffs' Exhibit 3 in evidence, within two or three days after the same was executed on April 12, 1943, and knew or should have known that the plaintiff Harriett E. Holbrook warranted that she was the owner in fee of said property and that she had good marketable title to the same; that the said plaintiffs both knew that the said defendant Dolly Flynn went into possession of said real property relying upon the terms of the contract of sale and purchase, as evidenced by plaintiffs' Exhibit 3, and knew that the said Dolly Flynn was in actual open and notorious possession of said property from the time that the keys were delivered to her by the plaintiff Fred C. Holbrook, that the defendant was improving the...