Krueger v. Groth

• Decision Date: 13 July 1926
• Citation: 209 N.W. 772,190 Wis. 387
• Parties: KRUEGER v. GROTH ET UX.
• Court: Wisconsin Supreme Court

190 Wis. 387

209 N.W. 772

KRUEGER

v.GROTH ET UX.

Supreme Court of Wisconsin.

June 21, 1926.

Dissenting Opinion July 13, 1926.

Appeal from Circuit Court, Oconto County; William B. Quinlan, Judge.

Action by Fred Krueger against Gust Groth and wife for specific performance. From a judgment dismissing plaintiff's cause of action, he appeals. Reversed and remanded, with directions.

In this action to compel specific performance the following facts were found by the court or appear undisputed in the record:

After some preliminary negotiations the plaintiff, then owner of a farm of 160 acres (120 acres in one piece and a 40-acre wood lot), near Stiles, worth about $15,000, subject to $8,000 in incumbrances, orally agreed with the defendant Gust Groth, then owning a farm of about 120 acres and claiming to own a wood lot of 29 acres (title to this lot being found to be in some one else and claim to it being waived), near Oconto Falls, subject to incumbrances of about $3,000 and worth about $6,000, to exchange said farms subject to incumbrances, each to pay the taxes then outstanding against his property and defendant to pay plaintiff $2,500 in addition.

Immediately, and in anticipation of such exchange, the two parties arranged an auction sale of plaintiff's personal property then on his said farm, together with a certain amount of defendant's personal property, to be had December 1st at plaintiff's farm, such sale resulting in the disposal of plaintiff's personal property at a substantial amount less than its reasonable value and considerable expenses to him. Prior to said sale plaintiff and defendant Gust Groth endeavored to negotiate a loan to enable said defendant to make the payment of $2,500, but, such negotiations being unsuccessful, on or about November 24th it was agreed that the cash payment was to be reduced to $2,250.

On December 6th both plaintiff and defendants with their respective families, who had theretofore been occupying as homesteads their respective farms completely exchanged possession of such farms, and each family established the new farm as its homestead. Mrs. Groth gave the keys of defendant's former homestead to plaintiff and received the keys of the other premises. Plaintiff expended some $20 in labor on the Oconto Falls farm in the spring. Defendants occupied such new homestead until about March 1, 1925, and received certain personal property of plaintiffs.

December 21, 1924, the house on defendant's former farm then occupied by plaintiff was burned, the $2,500 insurance thereon not being paid until after March 1, 1925, $2,000 being payable to the mortgagee.

The trial court expressly found that defendant Ida Groth had full knowledge of all the circumstances, and her statement and conduct were at all times such as induced the plaintiff to rely on such and perform the contract of exchange, and that she expressed the details of and her satisfaction with the exchange to witnesses.

March 1, 1925, defendants refused to carry out said agreement. This action was commenced March 10, 1925, defendants then first asserting their defenses hereinafter stated.

As conclusions of law the court found that, inasmuch as defendant Ida Groth did not join in writing, the agreement to convey the Groth homestead was void, could not be enforced or made the basis of an action for damages, and directed judgment dismissing the plaintiff's cause of action. From such judgment plaintiff has appealed.

Owen, Rosenberry, and Doerfler, JJ., dissenting.Classon, Whitcomb & Kuzenski, of Oconto, for appellant.

Martin, Martin, Martin, Clifford & McHale, of Green Bay, for respondents.

ESCHWEILER, J. (after stating the facts as above).

The defendant husband asserted, as against plaintiff's demand for specific performance of the alleged oral agreement for interchange of their respective farms, that there was no completed agreement; that there was no writing or memoranda thereof in accordance with section 240.08 (formerly 2304); that the real estate was the homestead and not conveyed by the husband and wife in accordance with section 235.01 (formerly 2203). The defendant wife asserted the same grounds, and also that she had an inchoate dower interest which has never been barred pursuant to section 235.27 (formerly 2222).

The trial court reluctantly denied plaintiff any relief upon the sole ground, as stated in his opinion and as embodied in the findings, that the absence of any writing signed by defendant wife as to the homestead under said section 235.01 was an absolute bar preventing specific performance or the giving of damages.

The equities, under the facts as found by the trial court, are manifestly in plaintiff's favor as against both the defendants. There was a complete exchange of possession of the respective real estates in apparent acquiescence upon what is here conceded to be an invalid oral agreement, found by the court to have been made between the parties; there was a continued occupancy by the respective parties of the exchanged properties as their new homesteads for months thereafter without protest; there was actual loss sustained by plaintiff in his sale of personal property in reliance upon such agreement; there were improvements made by plaintiff upon the property which he took from defendant; there was a substantial change to plaintiff's damage by the fire loss. The effect of respondent's contention as upheld by the trial court is to make said section 235.01, found in chapter 235 concerning the alienation of real property, and declaring that no alienation by a married man of his homestead or any interest therein, legal or equitable, present or future, by deed or otherwise, shall be valid or of any effect aforesaid unless with his wife's consent evidenced by her act of joining in the conveyance so absolute, exclusive and controlling as to prevent subjecting the defendants to the dominion of the old and well-established rules of equity.

The legislative creation of a homestead exemption, pursuant to the express direction of section 17, art. 1, Wis. Const., has been very liberal in form and liberally construed and enforced at all times, and the amendments thereto have been all for the extending and broadening of such exemption except in the amendment by chapter 269 of 1901, inserting the limitation of value to $5,000 (that limitation not applying, however, as between widow and heirs of her husband. Sections 272.22 and 237.02). The legislative liberality towards the homestead is well illustrated by the fact that until such amendment there had been no limit set in value, although the possibility of abuses under it was pointed out in both the majority and dissenting opinions in Phelps v. Rooney, 9 Wis. 70, 76 Am. Dec. 244, decided in 1859.

Though it has been held that, so far as the wife is concerned, her interest in a homestead, held by the husband, is no more than the complete and absolute power of veto upon any attempt by him to convey without her written consent (Ferguson v. Mason, 60 Wis. 377, 387, 19 N. W. 420;Weston v. Weston, 46 Wis. 130, 134, 49 N. W. 834;Cumps v. Kiyo, 104 Wis. 656, 661, 80 N. W. 937;Mash v. Bloom, 126 Wis. 385, 389, 105 N. W. 831), yet that her consent and signature is imperative, even though she lived apart from him at the time or though the conveyance is given for necessities furnished the husband (Herron v. Knapp-Stout Co., 72 Wis. 553, 40 N. W. 149); and equity will refuse to correct a description in the mortgage so as to include the homestead of the mortgagors though it clearly appear that such was the intention and though no other objection is interposed to such reformation than that the wife did not consent in writing (Gotfredson Bros. v. Dusing, 145 Wis. 659, 129 N. W. 647).

[1] Although the homestead is for the benefit of the family, yet, as between the husband and the wife, it is the husband who has the right of selection and the power of abandonment. Warsco, Jr., as, etc., v. Putzke et al., 190 Wis. 87, 208 N. W. 886, decided May 11, 1926; Beranek v. Beranek, 113 Wis. 272, 278, 89 N. W. 146;Blatchly v. Dakota L. & C. Co., 26 N. D. 532, 145 N. W. 95;Stewart v. Pritchard, 101 Ark. 101, 141 S. W. 505;37 L. R. A. (N. S.) 807, with note; 13 R. C. L. p. 557; 29 C. J. p. 951.

[2] In this case there was not only a complete abandonment by defendant of the former homestead, a surrender of the keys and possession, but they occupy the other farm dwelling as their newly selected homestead, title to which is absolutely secured to them by plaintiff's pleading, his deed, and tender to defendant. All this is ample to warrant the conclusion that defendants abandoned the old and selected the new homestead, and for neither of these two separate proceedings are written formalities required. Godfrey v. Thornton, 46 Wis. 677, 683, 1 N. W. 362;Pierce v. Gibson, 108 Tex. 62, 184 S. W. 502, 1 A. L. R. 1675;Stotts v. Stotts, 198 Mich. 605, 618, 165 N. W. 761;Blodgett v. Lawrence, 90 Vt. 269, 274, 97 A. 666.

[3] Voluntarily, therefore, in this case, a family gives up and abandons one homestead and selects and occupies another; having done so they have lost the right to assert a homestead privilege in the former. Once abandoned it is as though it never existed. The homestead statute itself, providing, expressly (section 272.20 [2983]), that such exemption “shall not be impaired by temporary removal with the intention to reoccupy the same as a homestead,” clearly indicating that a permanent abandonment is a destruction. Blackburn v. L. S. Traffic Co., 90 Wis. 362, 366, 63 N. W. 289. Being a privilege as it is and not a title to land, it had lost, by defendants' voluntary acts, all existence or efficacy when attempted to be first asserted by defendants' answers. Manifestly defendants cannot have the benefit of two homesteads at one and the same time. Jarvais v. Moe, 38 Wis. 440, 446;Schoffen v. Landauer, 60 Wis. 334, 338, 19 N. W. 95; 13 R. C. L. p. 546; 29 C. J. p. 790.

Although the...