McIntosh v. Borchers

• Decision Date: 05 May 1976
• Docket Number: No. 40382,40382
• Citation: 241 N.W.2d 534,196 Neb. 109
• Parties: J. Paul McINTOSH and Eleanor McIntosh, Appellants, v. Otto J. BORCHERS et al., Appellees.
• Court: Nebraska Supreme Court

Page 534

241 N.W.2d 534

196 Neb. 109

J. Paul McINTOSH and Eleanor McIntosh, Appellants, v.Otto J. BORCHERS et al., Appellees.

No. 40382.

Supreme Court of Nebraska.

May 5, 1976.

Syllabus by the Court

1.A contract to convey the homestead of a married person is invalid and unenforceable unless voluntarily executed and acknowledged by both husband and wife as required by section 40--104, R.R.S.1943.

2.Once established, a homestead is not abandoned until there is both an intent to abandon and actual abandonment.

3.Where a contract for the purchase and sale of real estate includes both homestead and nonhomestead property but is not executed and acknowledged as required by section 40--104, R.R.S.1943, specific performance may be obtained as to the nonhomestead land with an abatement of the total purchase price, where the contract under its provisions is clearly serverable as to the nonhomestead property.

4.Where such a contract is not severable as between homestead and nonhomestead property, this court will not ordinarily attempt to make a new contract for the parties; nor impose new conditions; nor will it require specific performance of a contract which does not contain the substance of the agreement made.

Kutak, Rock, Cohen, Campbell, Garfinkle & Woodward, William E. Holland, Omaha, for appellants.

Vincent J. Kirby, Kirby, Duggan & McConnell, Norfolk, for appellees.

Heard before WHITE, C.J., McCOWN and BRODKEY, JJ., and RICHLING, District Judge.

McCOWN, Justice.

This action seeks specific performance of an agreement to sell real estate, together with a temporary injunction to prevent farming it pending determination of the issues.In the alternative the plaintiffs sought restitution and damages.The District Court denied the injunction, granted partial summary judgment to the extent of denying specific performance, and granted plaintiffs time to file an amended petition as to all other matters except the validity of the agreement.

The defendants, Otto J. Borchers and Edna W. Borchers, owned a quarter section of land in Madison County, Nebraska.They had lived on the property and farmed it since 1941.After an accident to Mr. Borchers in 1970, the Borchers decided that he was unable to continue active farming.In Januaryof 1974, the plaintiffs, J. Paul McIntosh and Eleanor McIntosh, made a written offer to purchase the quarter section for $48,000 and gave the Borchers a check for $5,000 downpayment.The offer provided for an additional payment of $3,000 on October 1, 1974.The balance was to draw 7 percent simple interest.The Borchers decided that they wanted to continue to live on the farm and did not want to pay rent and they took the $5,000 check back to McIntosh.McIntosh then agreed to let the Borchers live on the property rent free, and the following language was added to the offer: 'J. Paul McIntosh agrees to pay principal and interest in 10 equal installments beginning Jan. 1, 1975.Buyer further agrees to allow Sellers to live on & control the building site until contract is paid in full or Sellers move from the house.Seller agrees to keep buildings insured & maintain buildings & site in satisfactory manner, and to pay taxes on buildings & site until possession of buildings & site is given to Buyers.Buyer agrees not to charge rent to Sellers while Sellers live in house.'The Borchers accepted the offer with that addition on February 2, 1974, and both signed the acceptance but it was not acknowledged by either of them.

McIntosh took possession of the farmland, had some trees removed, leveled some of the land, spread fertilizer, installed a center pivot irrigation system, sunk a well, and put in a natural gas pipeline to operate the pump and irrigation system.He cultivated the land in 1974, and raised a corn crop.The Borchers continued to live in the house and maintained possession and control of the residence and buildings on the building site.

The $3,000 payment due on October 1, 1974, was paid October 12th.On January 2, 1975, Borchers went to McIntosh to see about the payment due on January 1st. McIntosh wanted to draw up a more formal agreement as they had discussed previously.The two men went to a realtor's office and gave the information to one of the men there.McIntosh left the January 1, 1975, payment with the broker to hold until the new contract was drawn.Apparently no new contract was ever drawn.

Borchers waited about 2 weeks and then attempted to contact McIntosh.He was advised that McIntosh was out of town and would not be back until early February.The Borchers then consulted an attorney who advised them that the agreement was invalid because it involved their homestead and had not been acknowledged.The Borchers then made a contract with defendants Freudenburg and Reeves to sell them the quarter section, excepting the 12 acres where the residence and buildings were located.The purchase price was $48,000.The agreement was signed and acknowledged on February 12, 1975, and the new...