Krueger v. Callies

• Decision Date: 22 June 1973
• Docket Number: No. 38764,38764
• Parties: Robert KRUEGER and Marie O. Krueger, Appellees, v. Duane L. CALLIES and George H. Moyer, Co-Administrators of the Estate of Lawrence C. Callies, Deceased, et al., Appellants.
• Court: Nebraska Supreme Court

Page 685

208 N.W.2d 685

190 Neb. 376

Robert KRUEGER and Marie O. Krueger, Appellees, v. Duane L. CALLIES and George H. Moyer, Co-Administrators of the Estate of Lawrence C. Callies, Deceased, et al., Appellants.

No. 38764.

Supreme Court of Nebraska.

June 22, 1973.

Syllabus by the Court

1. Delivery is essential to the validity of a deed.

2. A homestead cannot be conveyed or encumbered except by an instrument executed and acknowledged by both husband and wife.

3. The statute of frauds provides that an agreement for the sale of land is void

in the absence of a written memorandum signed by the vendor.

Moyer & Moyer, W. G. Whitford, Madison, for appellants.

Thomas E. Brogan, R. D. Stafford, Norfolk, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

NEWTON, Justice.

This is an action for the specific performance of an alleged agreement for the sale of a homestead. The District Court decreed specific performance. We reverse the judgment.

Defendants are the administrators of the estate of Lawrence C. Callies, deceased. Callies, during his lifetime, was the owner of a 160 acre farm comprising the west half of the west half of Section 34, Township 22 North, Range 4 West of the 6th P.M., in Madison County, Nebraska.

It is stipulated that the land was the homestead of Callies and his wife. On September 5, 1963, he listed the property for sale with O. V. and George Scheer, real estate brokers. Arrangements were promptly made for a sale to plaintiffs and on the following day, September 6, 1963, Callies and wife executed, but did not acknowledge, a sale agreement. On September 7, 1963, the Callieses signed and acknowledged a warranty deed to plaintiffs. The deed failed to describe any land and was left with the real estate agents who are stipulated to have been acting as agents of Callies. It was never delivered. The sum of $2,000 was paid down on the contract on September 6, 1963.

On December 11, 1963, the Callieses moved off the farm to a home they had purchased in Newman Grove, Nebraska. Callies changed his mind about making the sale and so notified plaintiffs on December 16, 1963. The following day they met at the Scheer office. The north 80 acres was then conveyed to plaintiffs and a mortgage given for the remainder of the purchase price. A note, with interest coupons, was signed by the plaintiffs but apparently not used or delivered. This note stated that: 'It is agreed that Robert Krueger & Marie O. Krueger have the privilege of buying back W 1/2 of SW 1/4 3-22-4, Madison County Nebraska, anytime the owner whishes (sic) to sell during the term of mortgage which held by Lawrence C, or Myrtle Callies, on W 1/2 NW 1/4-34-22-4 at $165.00 per acre.' A second note, with coupons, was made out, executed by plaintiffs, and delivered with the mortgage. On the back of this note is the following: 'It is agreed that Robert & Marie O. Krueger, shall have the privilege to make two payments in one year of both principal and interest. It is further agreed that Robert & Marie O. Krueger shall have the privilege of buying said 80 acres secured by this mortgage at the price of $165.00 per acre after five years on or before the maturity of this mortgage.' This note is due January 1, 1974.

Callies was predeceased by his wife and following his death, plaintiffs demanded performance of the alleged agreement to convey the south 80 acres. This action was then instituted.

Delivery is essential to the validity of a deed. See Short v. Kleppinger, 163 Neb. 729, 81 N.W.2d 182. There having been no delivery, it is apparent that the deed with the blank description executed on September 6, 1963, is a nullity.

A homestead cannot be conveyed or encumbered except by an instrument executed and acknowledged by both husband and wife. See § 40--104, R.R.S.1943. Such a conveyance is void and unenforceable and it being conceded that the land was on September 6, 1963, when the contract of sale was signed, the Callieses' homestead, it is evident that this unacknowledged instrument is also a nullity.

The notations on the two mortgage notes bear conflicting provisions but are ineffective in any event. The statute of frauds provides that an agreement for the sale of land is void in the absence of a written memorandum signed by the vendor. See § 36--105, R.R.S.1943. The notes were not signed by the Callieses. In this connection plaintiffs produced and attempted to identify and introduce in evidence the following: 'It is agreed that Robert & Marie Krueger have privilege to buy said 80 acres $165.00 per acre on or after maturity of mortgage. Lawrence Callies.' The instrument being otherwise without...