Jerdee v. Furbush

• Decision Date: 23 September 1902
• Citation: 91 N.W. 661,115 Wis. 277
• Parties: JERDEE v. FURBUSH.
• Court: Wisconsin Supreme Court

115 Wis. 277

91 N.W. 661

JERDEE

v.FURBUSH.

Supreme Court of Wisconsin.

Sept. 23, 1902.

Appeal from circuit court, Polk county; A. J. Vinje, Judge.

Action by Mons P. Jerdee against Ann Furbush. From a judgment for defendant, plaintiff appeals. Reversed.

Action for specific performance. The complaint, by appropriate allegations, set forth the following: Daniel F. Smith, a married man living separate and apart from his wife, and the owner of a homestead in this state upon which he resided, in 1892, for a valuable consideration, in form by warranty deed, conveyed such homestead to Henry B. Dike and plaintiff. Smith's wife refused to join in the deed. Subsequently they died, he surviving her about two years. Before the commencement of this action Dike conveyed his interest in the land to plaintiff. Smith left surviving him but one child, the person named as defendant. The deed, though void as a conveyance of the legal title was good as a contract to convey after the extinguishment of the homestead right of the grantor and his wife. Such homestead right was extinguished by their death, and the legal title to the land became vested in the defendant, in trust, however, for the equitable owner under the deed. The prayer of the complaint was, in effect, for a decree declaring the deed good as an agreement to convey upon the extinguishment of the homestead right; that such right was extinguished by the death of Smith and his wife; that plaintiff was entitled to have the contract specifically performed by a conveyance from defendant, and to a decree requiring the making of such conveyance accordingly.

Defendant interposed a general demurrer to the complaint, which was sustained, and plaintiff appealed.

Sanborn, Luse & Powell, for appellant.

W. M. Bowe, for respondent.

MARSHALL, J. (after stating the facts).

The question presented here may properly be stated thus: Does section 2203, Rev. St. 1898, in terms providing that no mortgage or other alienation by a married man of his homestead, exempt by law from execution, shall be valid or of any effect as to such homestead without the signature of his wife, deal merely with the homestead as a privilege, right or interest in land, enabling the persons whom the statute was designed to protect to enjoy the property as a home, leaving the husband free to deal with it in any way he may see fit not inconsistent with the homestead right? We cannot at this late day decide that as a new question. If it were otherwise, a different result of this appeal might occur than the one we have decided upon. In Conrad v. Schwamb, 53 Wis. 372, 10 N. W. 395, it was in effect held that the statutory disability of the husband goes only to such dealings with the land used as a homestead as interferes with such use, and that a deed executed by him alone, construed as a contract to convey after the extinguishment of the homestead right, does not so interfere. In Ferguson v. Mason, 60 Wis. 377, 19 N. W. 420, the court attempted to carefully consider section 2203, Rev. St. 1898, and all arguments that could reasonably be advanced, based upon other statutes relating to the subject of homestead, in support of the theory that the disability of the husband under such section goes to the entire property in the land, legal and equitable, resulting in a decision in favor of the affirmative of the question we have stated, that is, that such section uses the term “homestead” as descriptive of a right in land, a privilege to use it as a home, and that an equitable interest therein may be conveyed by the sole act of the husband, an interest entitling the grantee to the legal title to the land upon the termination of the homestead privilege. It was said that the statute must be construed as preventing him from conveying the legal title in præsenti, or conveying a future estate in fee simple, because such an interest would enable the owner thereof to seriously prejudice the enjoyment of the homestead right; but that the mere conveyance of an equitable interest, enabling the vendee to call for the legal title upon the termination of the homestead right, does not have that effect. In that the court followed judicial decisions made under statutes more or less similar to ours (Jewett v. Brock, 32 Vt. 65;Whiteman v. Field, 53 Vt. 554;Gee v. Moore, 14 Cal. 476;McQuade v. Whaley, 31 Cal. 533;Smith v. Provin, 4 Allen, 516;Doyle v. Coburn, 6 Allen, 71;Stewart v. Mackay, 16 Tex. 56, 67 Am. Dec. 609) in preference to decisions to the contrary under like statutes. Phillips v. Stauch, 20 Mich. 369;Hall v. Loomis, 63 Mich. 709, 30 N. W. 374;Barton v. Drake, 21 Minn. 299;Weitzner v. Thingstad, 55 Minn. 244, 56 N. W. 817;Clarke v. Koenig, 36 Neb. 572, 54 N. W. 842;Alford v. Lehmann, Durr & Co., 76 Ala. 526;Pipkin v. Williams, 57 Ark. 242, 21 S. W. 433, 38 Am. St. Rep. 241. The former authorities are to the effect that a married man may make a good conveyance of the legal title to land affected by the homestead right, subject to the enjoyment of such right. This court did not go quite that far, as we have seen, holding that the furthest the husband can go, acting alone, is to make an executory contract binding the legal title in equity upon the satisfaction of the homestead privilege, and that a conveyance in form conveying the legal title should be given effect only as a conveyance of such equitable interest. Many courts have gone so far as to hold that such a contract is not good for any purpose whatever; that the vendee therein can neither obtain the legal title to the premises under it in any situation, nor maintain an action against the vendor to recover the consideration paid. One of the most significant of such cases is Weitzner v. Thingstad, supra. However, the idea that...