Kettering v. Eastlack
| Decision Date | 09 May 1906 |
| Citation | 107 N.W. 177,130 Iowa 498 |
| Parties | KETTERING v. EASTLACK ET UX. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Linn County; J. H. Preston, Judge.
Action for specific performance of a contract to convey land. There was a decree for the plaintiff, and defendants appeal. Affirmed.Mac J. Randall and Smith & Smith, for appellants.
E. A. Johnson and C. W. Kepler, for appellee.
The contract on which plaintiff relies was executed on September 21, 1903, and by its terms obligated the plaintiff to convey to the defendants 120 acres of land in Cedar county, Iowa, in exchange for 160 acres of land in South Dakota and $7,100 in cash. A portion of the plaintiff's land constituted his homestead, and subsequently to the mutual execution and delivery of duplicates of the contract, neither of which were signed by plaintiff's wife, and before the 15th day of March, which was the day on which the contract was to be performed, plaintiff's wife signed the duplicate which was in her husband's possession and notified defendants of her readiness to sign the duplicate held by them; but defendants refused to carry out the contract for various reasons. The questions raised by the pleadings and on the trial, so far as they are involved in the controversy as now presented by counsel, are whether, in view of the failure of the wife of plaintiff to join in the execution of the contract on the 21st of September to convey the Cedar county land, a part of which constituted the homestead of herself and her husband, the defendant's contract to convey the South Dakota land and pay a bonus in cash can be enforced against them, and whether the stipulation in the contract for the payment by either party of $500 as liquidated damages for failure to perform relieved the defendants from any obligation which could be enforced in an action for specific performance. The question is also raised whether the abstract tendered by plaintiff was sufficient, under the requirements of the contract that plaintiff should deliver on the date of performance an abstract showing title in himself.
1. In Code, § 2974, it is provided that no conveyance or contract to convey the homestead, if the owner is married, is valid unless the husband and wife join in the execution of the same joint instrument, whether the homestead is exclusively the subject of the contract or not, but such contract may be enforced as to real estate other than the homestead at the option of the purchaser. In Epperly v. Ferguson, 118 Iowa, 47, 91 N. W. 816, we held that, although the wife did not join in the execution of the contract to convey at the time it was executed, she might subsequently, when the question was raised as to the effect of her failure to join in the instrument with her husband, sign the same contract, or one duplicate thereof, and notify the other party of that fact and offer to sign the other duplicate, and thereby render the contract valid and binding. Plaintiff's wife pursued this course, and on the day for the performance of the contract plaintiff tendered to defendants a joint deed of himself and wife for the Cedar county land. Unless the defendants had repudiated their contract on the ground that the wife had not joined in its execution, and assigned that as a reason for repudiation, prior to the action of plaintiff's wife in signing the duplicate and notifying defendants of her willingness to carry out the contract as thus signed, we think the contract may now be specifically enforced.
Counsel for appellants rely on Alvis v. Alvis, 123 Iowa, 546, 99 N. W. 166, in which it was held that a deed conveying the home stead, executed by the husband alone and fully delivered, could not be made valid more than 30 years afterward by the action of the wife in signing the instrument; her husband having no knowledge of this effort on her part to make valid a conveyance which had from its inception been void. We think, however, there is a manifest differencebetween that case and the case now before us. In the present case there was concurrent action of the husband and wife not, it is true, at the time the contract to convey .was executed, but before the contract had been repudiated on that ground, and before the time had arrived for conveyance under the contract, and at the date when conveyance should have been made husband and wife joined in the execution of a deed which was duly tendered to defendants. The case clearly falls under the rule announced in Epperly v. Ferguson, supra, and not within the rule of Alvis v. Alvis. The statute itself makes a distinction between a conveyance and a contract to convey. The latter is not for all purposes void, but the purchaser may elect to enforce it so far as it covers land not included within the homestead, while a conveyance which is not the result of the concurrent action and acquiescence of the husband and wife is valid for no purpose.
It is contended, however, that the defendant Eastlack had repudiated the contract on the ground that plaintiff's wife had not joined in...
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