Hughes v. Latour Creek R. Co.

• Decision Date: 21 June 1917
• Citation: 166 P. 219,30 Idaho 475
• Parties: WESLEY HUGHES and ANNA HUGHES, Husband and Wife, Respondents, v. THE LATOUR CREEK RAILROAD CO., a Corporation, et al., Appellants
• Court: Idaho Supreme Court

166 P. 219

30 Idaho 475

WESLEY HUGHES and ANNA HUGHES, Husband and Wife, Respondents, v. THE LATOUR CREEK RAILROAD CO., a Corporation, et al., Appellants

Supreme Court of Idaho

June 21, 1917

HOMESTEAD-ENCUMBRANCE OF-JOINDER OF HUSBAND AND WIFE-NECESSITY FOR.

Held That under sec. 3106, Rev. Codes, providing that "No estate in the homestead of a married person, or in any part of the community property occupied as a residence by a married person can be conveyed or encumbered by act of the party, unless both husband and wife join in the execution of the instrument by which it is so conveyed or encumbered, and it be acknowledged by the wife as provided in Chapter 3 of this Title," an instrument purporting to convey or encumber such property or any interest therein, in which the wife does not join, is void.

[As to conveyance or encumbrance of homestead by one spouse only see note in 95 Am.St. 909]

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Robert N. Dunn, Judge.

Action to quiet title to certain lands. Judgment on the pleadings of plaintiffs. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Edward H. Berg, for Appellants.

A husband has the absolute power to dispose of the common property of himself and wife to the extent and in the manner as he had of his separate property until a legal separation has been effected by a court of competent jurisdiction, and a division made under the direction of the court. (Ray v Ray, 1 Idaho 566.)

A statute like ours of 1913 which required the wife to join in conveyance did not affect property acquired prior to the passage of the act, as the legislative act could not in any way affect the husband's right as it existed before the enactment. (Reade v. De Lea, 14 N.M. 442, 95 P. 131; Spreckels v. Spreckels, 116 Cal. 339, 58 Am. St. 170, 48 P. 228, 36 L. R. A. 497.)

It is admitted that the wife was more willing than the husband to make said transaction, and it is shown that she waited for more than a year and a half before disaffirming, and before commencing suit; that she lived upon the land and saw and knew of the improvements being made by the defendant railroad, which would enhance the value of the plaintiff's land. Under the subject of equitable estoppel, see Konnerupt v. Frandsen, 8 Wash. 551, 36 P. 493; Grice v. Woolworth, 10 Idaho 459, 109 Am. St. 214, 80 P. 912, 69 L. R. A. 584; Engholm v. Ekrem, 18 N.D. 185, 119 N.W. 35.

James H. Frazier, for Respondents.

The homestead occupied by the husband and wife as a residence is common property of the marital community, and the husband alone cannot convey or encumber it so long as it continues to be the residence of himself and wife. (Law v. Spence, 5 Idaho 244, 48 P. 282; Mabie v. Whitaker, 10 Wash. 656, 39 P. 172.)

"Where the purchaser knows that the land is community property, his contract made with the husband alone for its sale is void." (21 Cyc. 669c; Warburton v. White, 176 U.S. 484, 20 S.Ct. 404, 44 L.Ed. 555; Holyoke v. Jackson, 3 Wash. Ter. 235, 3 P. 841; Hill v. Young, 7 Wash. 33, 34 P. 144.)

BUDGE, C. J. Morgan and Rice, JJ., concur.

OPINION

BUDGE, C. J.

This action was brought by respondents, husband and wife, to quiet title to certain lands in Kootenai county. The material facts alleged in the complaint are: That the land was occupied by respondents as their community homestead; that respondent, Wesley Hughes, without his wife's consent and without her joining in the execution of the instrument, delivered to the Latour Creek Railroad Company a deed to the timber on the homestead, receiving as consideration therefor certificates of stock in said company; that by an agreement of even date it was stipulated that this timber should be bonded by the railroad company in order to procure funds to be used in building and equipping its railroad; and that the agreement also provided for a right of redemption, which right was thereby assigned by the railroad company to the respondent, Wesley Hughes.

The Railroad Company answered that its rights had been transferred to J. F. Howarth Company, as trustee. The latter was made a party and answered that its rights had been transferred to one Jos. H. Whelan, as trustee. The latter by separate answer admitted the community character of the property, that it was occupied by respondents as a residence, and affirmatively alleged that respondent, Anna Hughes, at the time of making the deed was more interested and willing to make the same than her husband; that the bonds had been sold to the public under the representation that they were secured by this timber; and "that the persons holding said bonds . . . . are relying upon said trust deed and upon the title vested in this defendant as such trustee under and by virtue of said deed."

The trial court rendered judgment upon the pleadings, quieting title to the land in respondents, as prayed in their complaint. This appeal is from the judgment.

The...