Jones v. Losekamp
| Citation | 114 P. 673,19 Wyo. 83 |
| Decision Date | 03 April 1911 |
| Docket Number | 622 |
| Parties | JONES ET UX. v. LOSEKAMP ET AL |
| Court | United States State Supreme Court of Wyoming |
ERROR to the District Court, Big Horn County, HON. CARROLL H PARMELEE, Judge.
The material facts are stated in the opinion.
Modified and Affirmed.
F Chatterton, (E. Nusbaumer, John W. Lacey, and Herbert V Lacey, of counsel) for plaintiffs in error.
The provisions of the statutes restricting the method of conveying or incumbering a homestead have been held to be mandatory, and that an instrument not executed in the manner required by such statutes is invalid as to the homestead. (Bank v. Bank, 11 Wyo. 56.) Although the instrument in question is called a lease by the parties, it is in effect a grant in praesenti of all the oil and other minerals in the lands described, which minerals are an integral part of the realty. Oil, gas, coal and other minerals are as much a part of the homestead estate as the surface or any other portion of the soil, and the title thereto can only be transferred in accordance with the statute. (Sibley v. Lawrence, 46 Ia. 563; Wilson v. Youst, 46 W.Va. 826, 39 L. R. A 292; Stoughton's App., 88 Pa. 198; Lanyon Zinc Co. v. Freeman (Kan.), 75 P. 995; McKenzie v. Shows, 70 Miss. 388, 35 Am. St. 654; Pritchett v. Davis, 101 Ga. 236.) Even an easement constitutes such an interest or incumbrance as to require all the formalities of the statute relative to homesteads to be complied with. (Jones v. Kepford (Wyo.), 100 P. 923; Pilcher v. Atchison Ry., 38 Kan. 516; Kloke v. Wolff (Neb.), 111 N.W. 134; McGee v. Wilson, 111 Ala. 615; Evans v. Ry. Co., 68 Mich. 602.) A lease for taking oil, gas and minerals from the land which constitutes the homestead contemplates an occupancy interfering with the use of the premises as a homestead, and requires the joint consent of husband and wife as by statute provided, and without it the lease is void. (Franklin Co. v. Oil Co., 43 Kan. 518; Oil Co. v. Franklin Co., 38 P. 790; Oil Co. v. Parish, 61 Kan. 311, 59 P. 640.) If, as the trial court found, the homestead character had attached to all of the 158 acres, then it was and is attached to the oil and other minerals, and a conveyance thereof to be valid must conform to the requirements of the statute. The court, however, made a distinction between such conveyances as are absolutely void and those which are otherwise valid, but are not to be construed as releasing the homestead right. If such a proposition can be the law, the remaining portion of the finding is not true, because the acknowledgment did not comply with the requirements of the statute.
The instrument in question utterly fails in three important particulars to conform to the statute in order to render it a valid conveyance. (1) The wife's name does not appear in the body or granting clause of the instrument. (2) There is no clause in the body of the instrument expressly releasing or waiving the homestead right. (3) The certificate of acknowledgment does not contain a clause as required by statute showing the release and waiver of the homestead right. It was necessary that the wife's name appear in the body or granting clause of the instrument. (Greenough v. Turner, 11 Gray, 332; Pitkin v. Williams, 57 Ark. 242; Alford v. Lehman, 76 Ala. 526; Abel v. Lothrop, 47 Vt. 375; McGrath v. Berry, 13 Bush. 291; Withers v. Pugh, 91 Ky. 522; 43 Mich. 502; Gage v. Wheeler, 129 Ill. 197; Seiffert &c Co. v. Hartwell (Ia.), 63 N.W. 333; Lumber Co. v. Bloom, 64 Ark. 492; Esenstadt Co. v. Cramer, 50 Ia. 753; 15 Ency. L., 2nd Ed. 680.) The omission of the clause releasing the homestead was fatal to the validity of the instrument. (Hutchins v. Huggins, 59 Ill. 29; Stodalka v. Novotny, 144 Ill. 125; Board v. Beale, 98 Ill. 248; Russell v. Rumsey, 35 Ill. 362; 15 Ency. L. 679; 21 Cyc. 543.) So as to the omission of a similar clause in the certificate of acknowledgement. (1 Ency. L. 538; 15 Id. 681; 1 Cyc. 592, 593; 21 Cyc. 543.) The certificate of acknowledgment fails in several particulars to comply with the statute. (1) It does not show that the wife freely and voluntarily signed the instrument separate and apart from her husband. (2) That she acknowledged it separate and apart from her husband. (3) That she was fully apprised of her right and the effect of signing and acknowledging the instrument. (4) That she waived and released her homestead right. (5) That the husband waived and released his homestead right. All of these facts should have been shown by the certificate. (Tieman v. Cobb, 35 Tex. Civ. App. 289; Laidley v. Land Co., 30 W.Va. 505; Smith v. Ingram, 130 N.C. 100, 61 L. R. A. 878; Gage v. Wheeler, supra; Loan Ass'n v. Green, 5 Ida. 660; Danglarde v. Elias, 80 Cal. 65; Lane v. Dolcik, 6 McLean, 200; Russell v. Rumsey, supra; France v. Bell, 52 Neb. 57; Betts v. Sims (Neb.), 41 N.W. 117; Conway v. Elgin (Minn.), 38 N.W. 370; Larson v. Butts, 35 N.W. 190; Aultman &c. Co. v. Jenkins, 27 N.W. 117; Bornorden v. Dressen, 12 N.W. 831.) Another objection to the instrument is that it was not signed by the lessee; his signature being required to make it good under the statute of frauds. (Hocking Co. v. Spence, 7 Ohio 149; Hinsdale v. Humphrey, 15 Conn. 431; Marshall v. Rugg, 6 Wyo. 270.) For these reasons the instrument is absolutely void, and a court of equity cannot give effect to it. (Townsley v. Chapin, 12 Allen, 476; Connor v. McMurray, 2 Allen, 202; Merriam v. Boston, Etc., 117 Mass. 241; Morris v. Ward, 5 Kan. 239; Stodalka v. Novotny, supra.) Nor can a void contract be enforced by estoppel. (Whitelock v. Gosson (Neb.), 53 N.W. 980; Weatherinton v. Smith, 109 N.W. 381, 112 N.W. 566; Cryan v. Ridelsperger, 7 Pa. Co. Ct. 473; Glidden v. Strupler, 52 Pa. 400.)
If the doctrine of estoppel in pais were applicable to the case it is not properly pleaded. A false representation or concealment of material facts is an essential element of estoppel, and where all the parties knew all the facts but were mistaken as to the law, there is no basis for estoppel in pais. (Brain v. Bonvillain, 111 La. 441; Buck v. Milford, 90 Ind. 291; Zeigler v. Brenneman, 237 Ill. 215; Lash v. Rendell, 72 Ind. 475; Steel v. R. Co., 106 U.S. 447; Runnels v. Gerner, 80 Mo. 474; Brant v. Virginia &c. Co., 93 U.S. 326; Vasse v. Ball, 2 Dall. 270; Butler v. Court &c., 101 P. 481; 16 Cyc. 777; Gray v. Zehner, 72 P. 228; R. R. Co. v. Plow Co., 41 N.E. 483; Alt v. Banhalzer, 40 N.W. 830; Goff v. Hankins, 39 N.E. 294.)
A married woman is not estopped by deed not executed in accordance with the statute, nor does estoppel in pais apply under such conditions. The principles apply alike to husband and wife and either of them separately. (15 Ency. L. 686; 21 Cyc. 549; Crary v. Dye, supra.) The following cases are cited as in point upon many of the foregoing principles discussed in the brief. (Stevens v. Tucker, 126 Pa. 74; Harden v. Darwin, 77 Ala. 472; Hass v. Wells, 17 Tex. Civ. App. 195; Stone v. Sledge, 87 Tex. 49; Cumps v. Kiyo, 104 Wis. 656; Law v. Butler, 44 Minn. 482; Alvis v. Alvis, 99 N.W. 166; Bohler v. Weyburn, 59 Ind. 143; Luman v. Springate, 67 Ind. 115.) The husband is not estopped. (2 Allen, 202; Powell v. Pattison, 100 Cal. 236; Helso v. Seawright, 65 Ala. 431; Abel v. Lothrop, supra; Webb v. Davis, 37 Ark. 551; Hall v. Mathews, 68 Ga. 490; Hoge v. Hollister, 2 Tenn. Ch. 606.) The instrument being void neither party is estopped. (Investment Co. v. Burford, 67 F. 860; Morris v. Ward, 5 Kan. 239; Gibbons v. Hall, 59 S.W. 814; McGee v. Wilson, 111 Ala. 615; Smith v. Ingram, 61 L. R. A. 878; Morris v. Wilson, 13 Cal. 495.)
The leasing of a homestead by a valid instrument is not an abandonment thereof, nor does the rental of a portion deprive that part of its homestead character. (Pitney v Eldridge, 58 Kan. 215; In re Pope, 98 F. 722; Gray v. Scofield, 51 N.E. 684; Hardware Co. v. Connellee, 27 S.W. 448; Woltz v. Woltz, 57 S.W. 905; Dowling v. Horne, 117 Ala. 242; Gates v. Steel, 48 Ark. 539; Dallemand v. Mannon, 4 Colo.App. 262; Sibley v. Lawrence, 46 Ia. 563; Hixon v. George, 18 Kan. 253; Gas Co. v. Parish, 59 P. 640; Dulanty v. Pynchon, 88 Mass. 510 (Allen) ; Earll v. Earll, 60 Mich. 30; Spratt v. Early, 169 Mo. 357; Locke v. Rowell, 47 N.H. 46; Hancock v. Morgan, 17 Tex. 582; Newton v. Calhoun, 68 Tex. 451; Hines v. Nelson, 24 S.W. 541; Herrick v. Graves, 16 Wis. 157; Towne v. Rumsey, 5 Wyo. 11.) It is absurd to contend that there was an abandonment of the homestead under the facts of the case. To constitute an abandonment the intent to do so must be present and evident. (Jones v. Kepford (Wyo.), 100 P. 923.) The husband cannot relinquish or abandon a homestead once secured without the wife's consent. An attempt was made to show that the reservation of 10 acres as expressed in the instrument was for the purpose of reserving it as a homestead, and that because such portion was afterwards marked out there had been an abandonment of the homestead in the remainder of the premises, notwithstanding that the plaintiffs had continuously occupied and used the whole of the premises. There is no statutory limitation as to the value of a homestead except for the purpose of exempting it from execution. The statutory limitations upon the method of conveying a homestead has no reference to its value. If the evidence of value had been competent and relevant the witnesses examined upon the question were not shown to be qualified. Because a homestead is worth more than the statutory amount of...
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