LaRson v. Butts

• Decision Date: 10 November 1887
• Citation: 22 Neb. 370,35 N.W. 190
• Parties: LARSON v. BUTTS.
• Court: Nebraska Supreme Court

22 Neb. 370

35 N.W. 190

LARSON

v.BUTTS.

Supreme Court of Nebraska.

November 10, 1887.

Syllabus by the Court.

A contract to convey a homestead, entered into by a wife in her own name, will not be specifically enforced, as the statute requires the instrument of conveyance to be signed and acknowledged by both husband and wife.¹

The fact that the husband and wife are not living together at the time the contract was made, will not render her contract for the conveyance of the homestead valid.

A decree against the clear weight of evidence will be set aside.

Appeal from district court, Dodge county; Post, Judge.E. F. Gray, for plaintiff.

C. Hollenbeck and Frick & Dolezal, for defendant.

MAXWELL, C. J.

The plaintiff brought an action in the court below for specific performance of contract, and alleged in his petition “that defendant, Martha Butts, on the eighteenth day of June, 1886, being the owner in fee-simple of the premises hereinafter described, sold and agreed to convey the same to the plaintiff, Louis P. Larson, and then executed in the name of M. W Butts, and delivered to him, an instrument in writing, in words and figures following, to-wit:

“NORTH PLATTE, NEB., June 18, 1886.

Received from L. P. Larson the sum of fifty dollars, as part payment of lots seven and eight, in block 184, city of Fremont, Dodge county, Nebraska. Each lot is 66 by 132, besides the alleys, which are also included. The purchase price is thirty-seven hundred and fifty dollars, less a mortgage of one thousand dollars, with interest to be deducted. This does not include the houses, which I agree to remove in the spring of 1887, as soon as the frost is out of the ground. The deed free of all incumbrances, except as above, I agree to deliver to said L. P. Larson, between June 21, 1886, and July 1, 1886, upon payment of balance due me in cash, less $250, which amount is to be paid next spring, without interest.

M. W. BUTTS.”

That at the same time plaintiff paid defendant $50, as a part purchase price, as in said instrument recited, and on the twenty-fifth day of June, 1886, before the commencement of this action, tendered to said defendant the sum of $2,406.56, the same being the balance of the purchase price of said lots, after deducting the principal and interest of the mortgage set forth in said instrument, and the $250 in said contract mentioned as payable next spring, and also tendered then to defendant his promissory note for said $250, payable without interest on the first day of March, 1887, as was agreed he might do, and requested her to convey said premises to plaintiff according to the terms of said agreement; but defendant refused, and still refuses, to execute and deliver such conveyance, and said defendant has been and still is trying and proposes and intends to sell and convey said premises to persons other than plaintiff, in violation of said agreement, and upon request declared she never would convey said premises to plaintiff. There are other allegations to which it is unnecessary to refer.

The defendant in her answer alleges: “ First. That defendant is a married woman, having a husband now living in this state named P. O. Butts; that the property in plaintiff's petition described, now is and has been owned, used, and occupied by defendant as a homestead for the past fifteen years; that defendant has no other home for her family and herself, except the two lots described in the agreement set forth in said petition; that said premises are now, and were at the time of the making of said agreement, occupied as a homestead by defendant and her family, consisting of herself and her minor daughter, Ada West, a child by former marriage, and defendant has never left said premises except for temporary purposes, and has never intended to permanently abandon the same; that her said husband, P. O. Butts, has no home or homestead except as above stated. Defendant avers that, by reason of the foregoing premises, said receipt or agreement set forth in said petition is void in law, and of no effect whatever; that defendant has tendered to plaintiff said $50 paid her by him, and that she is now ready and willing to pay plaintiff said sum of $50. Second. That defendant occupies said premises and holds the same under and by virtue of a deed of trust from her former husband, Gideon West, for certain specific uses and purposes therein expressed, and defendant has no other right, title, or interest in and to said premises, except such as is created by said deed; that, by the terms of said deed, defendant has no authority or right to sell or convey said premises, except for the purpose of paying the debts of said Gideon West, or for the purpose of supporting the children of said Gideon West and defendant until said children become of age, and paying taxes on certain other property; that neither the conveyance...