McKinney v. Merritt

• Decision Date: 30 June 1922
• Citation: 35 Idaho 600,208 P. 244
• Parties: PETER MCKINNEY, Respondent, v. M. B. MERRITT et ux., Appellants
• Court: Idaho Supreme Court

208 P. 244

35 Idaho 600

PETER MCKINNEY, Respondent, v. M. B. MERRITT et ux., Appellants

Supreme Court of Idaho

June 30, 1922

COMMUNITY PROPERTY-OPTION TO SELL-ABSENCE OF ACKNOWLEDGMENT BY WIFE-EFFECT ON CONTRACT.

1. Under the provisions of C. S., sec. 4666, a sale or encumbrance of community real property can be made only in the manner that the homestead or community real estate occupied as a residence could be conveyed under the former statute, that is to say, by the wife joining with the husband in executing and acknowledging the instrument of conveyance or encumbrance.

2. An instrument purporting to sell, convey or encumber community real property, which is not executed and acknowledged by the wife in accordance with the requirement of C. S., sec. 4666 is void and unenforceable.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. F. J. Cowen, Judge.

Action for specific performance. Judgment for plaintiff. Reversed.

Judgment reversed. Costs awarded to appellants.

A. C Cherry and R. P. Quarles, for Appellants.

The certificate of acknowledgment by both husband and wife to the writing by which community real estate is sold, or encumbered, is an essential part of the instrument, must be attached to it or indorsed on it, and such instrument without such certificate of acknowledgment is void and unenforceable. (C. S., secs. 4666, 5393-5398; Mathews v. Davis, 102 Cal. 202, 36 P. 358; Leonis v. Lazzarovich, 55 Cal 52; Banbury v. Arnold, 91 Cal. 606, 27 Pac, 934; Logan v. Gardiner, 136 Pa. 588, 20 Am. St. 939, 20 A. 625; Joseph v. Dougherty, 60 Cal. 358; Sewall v. Haymaker, 127 U.S. 719, 8 S.Ct. 1348, 32 L.Ed. 299; Selover v. American Russian Commercial Co., 7 Cal. 266; Landers v. Bolton, 26 Cal. 393; Wedel v. Herman, 59 Cal. 507; Danglarde v. Elias, 80 Cal. 65, 22 P. 69; Loupe v. Smith, 123 Cal. 491, 56 P. 254; 1 C. J. 825-828.)

The wife is, under our statutes, an owner equally with her husband in the community property, which, when real estate, can only be sold, conveyed or encumbered by the joint deed or other writing of herself and husband, signed and acknowledged by both of them, and if not so executed and acknowledged, the attempted sale, conveyance or encumbrance is absolutely void and unenforceable. (Authorities above cited; Law v. Spence, 5 Idaho 244, 251, 48 P. 282; Wilson v. Wilson, 6 Idaho 597, 607, 57 P. 708; Northwestern etc. Bank v. Rauch, 7 Idaho 152, 154, 61 P. 516.)

Under our present statutes, the sale, conveyance or encumbrance of the community real property can only be made in the same manner that the homestead and community real estate occupied as a residence could formerly be conveyed, that is, by contract or deed signed and acknowledged by both husband and wife. The protection of the wife has been extended from that of the home, or residence, to all of her communal right to any real estate. (Rev. Stats. 1887, secs. 2498, 2505, 2921, 3040; Rev. Codes, secs. 2686, 3106, 3107; Sess. Laws 1913, p. 425; Sess. Laws 1915, p. 187.)

Under statutes modifying the common law and removing the disability of a married woman to contract, but providing the conditions under which she can contract, it has been universally held and required that such statutes as to the conditions must be complied with, else the contract is void. (13 R. C. L. 1308, sec. 346, and authorities cited in notes; Smith v. Pearce, 85 Ala. 264, 7 Am. St. 44, 4 So. 616; Dodge v. Hollinshead, 6 Minn. 25, 80 Am. Dec. 433; Louisville etc. R. R. Co. v. Stephens, 96 Ky. 401, 49 Am. St. 303, 29 S.W. 14; Innis v. Templeton, 95 Pa. 262, 40 Am. Rep. 643; Martin v. Dwelly, 6 Wend. (N. Y.) 9, 21 Am. Dec. 245; Roode v. State, 5 Neb. 174, 25 Am. Rep. 475; Holladay v. Daily, 19 Wall. (U.S.) 606, 22 L.Ed. 187; Megean v. Boyle, 19 How. (U.S.) 130, 15 L.Ed. 577; Hollingsworth v. Flint, 101 U.S. 591, 25 L.Ed. 1028; Hepburn v. DuBois, 12 Pet. (U.S.) 345, 9 L.Ed. 1111; Drury v. Foster, 2 Wall. (U.S.) 24, 17 L.Ed. 780.)

Whitcomb, Cowen & Clark, for Respondent.

A conveyance need not be acknowledged to become valid and binding. (C. S., sec. 5373.) Exceptions are found in C. S., secs. 5380, 5381, 5417, and 5427, but the acknowledgment is for purposes of recording, and lack thereof does not affect the validity of the conveyance. Where the law does not require an acknowledgment of a married woman as necessary to the validity of an instrument, the same will be effective and binding upon her if not acknowledged. (1 C. J. 168, 769.)

The statute does not say that the deed must be acknowledged in order to validate the instrument. All the statutes governing conveyances should be construed together. As the wife is freed from all common-law disabilities in conveying real property, the provisions of sec. 5373, C. S., should be controlling. The common-law reason for requiring acknowledgment by wife no longer exists. (Snell v. Snell, 123 Ill. 403, 5 Am. St. 526 and note, 14 N.E. 684; 1 R. C. L. 257, secs. 11, 12.)

The contract did not constitute an encumbrance. (Sec. 5385, C. S.)

The act of taking and certifying an acknowledgment of conveyances is strictly a ministerial duty and in no sense a judicial one. The failure of the officer to attach his name and seal does not affect the validity of the conveyance if the wife acknowledged the same. (Banbury v. Arnold, 91 Cal. 606, 27 P. 934; Cordano v. Wright, 159 Cal. 610, Ann. Cas. 1912C, 1044, 115 P. 227; 1 Cent. Dig., Acknowledgment, sec. 58 (a); Sackett v. McCaffrey, 131 F. 219, 65 C. C. A. 205; Bank of Woodland v. Oberhaus, 125 Cal. 320, 57 P. 1070; Webb v. Burney, 70 Tex. 322, 7 S.W. 841; Munger v. Baldridge, 41 Kan. 236, 13 Am. St. 273, 21 P. 159; Horbach v. Tyrell, 48 Neb. 514, 518, 67 N.W. 485, 489, 37 L. R. A. 434; Scanlan v. Wright, 13 Pick. (Mass.) 523, 25 Am. Dec. 344.)

BUDGE, J. Rice, C. J., and McCarthy and Dunn, JJ., concur. LEE, J., Dissenting.

OPINION

BUDGE, J.

This is an action for specific performance. From the record it appears that on March 14, 1917, appellants entered into a written option contract with J. P. Corcoran, whereby they agreed to sell to him or to his assignee certain real estate and personal property, for the sum of $ 5,000, to be paid on or before April 14, 1917. The contract acknowledges payment of $ 100 to appellants by Corcoran, and on the date of the receipt by the latter of the contract, he assigned the same to the respondent herein.

It is conceded that the premises described in the contract were, at the time the contract was entered into, community property. It further appears that the contract was not acknowledged by Mrs. Merritt, as required by C. S., sec. 4666.

To our minds the only question necessary to be determined is whether, in the absence of the acknowledgment of the option contract by the wife, the contract is a valid conveyance.

C. S., sec. 4666 provides: "The husband has the management and control of the community property . . . . but he cannot sell, convey or encumber the community real estate unless the wife joins with him in executing and acknowledging the deed or other instrument by which the real estate is sold, conveyed or encumbered."

In Kohny v. Dunbar, 21 Idaho 258, Ann. Cas. 1913D, 492, 121 P. 544, 39 L. R. A., N. S., 1107, this court said: "The wife has an equal interest and ownership with the husband in community property and the only particular in which their rights differ is in the fact that the statute constitutes the husband the managing agent and trustee of the community partnership."

In the case of Wits-Keets-Poo v. Rowton, 28 Idaho 193, 152 P. 1064, it is held that the husband cannot dispose of the community real estate unless the wife joins with him in the conveyance.

In Fargo v. Bennett, ante, p. 359, 206 P. 692, which involves the validity of a lease of community property, entered into between Bennett and Fargo, but neither signed nor acknowledged by Mrs. Bennett, in construing C. S., sec. 4666, this court said that the husband has the management and control of the community property, but he cannot sell, convey or encumber it unless the wife joins with him in executing and acknowledging the deed or other instrument of conveyance by which the real estate is sold, conveyed or encumbered.

Under the statute as it now exists, and in force at the time of the making of the alleged contract here involved, a sale or encumbrance of community property could be made only in the same manner as the homestead or community real estate occupied as a residence could formerly be conveyed. (Hughes v. Latour Creek R. R. Co., 30 Idaho 475, 166 P. 219.) Prior to the enactment of the present statute, the protection of the wife extended only to the property upon which a declaration of homestead had been filed or to such of the community property as was used as a residence, but this statute has been enlarged so that it now includes all community property.

As was said in Myers v. Eby, 33 Idaho 266, 193 P. 77, 12 A. L. R. 535: "Under Rev. Codes, sec. 3106, an acknowledgment by the wife, as provided by law, was essential to the validity of the mortgage."

In the case of Knudsen v. Lythman, 33 Idaho 794, 200 P 130, it was held that an acknowledgment by the wife, as provided by law, is essential to the validity of a mortgage of community property. and we think the same rule applies where there is a contract of option to sell community property. We are not authorized to eliminate from the statute the requirement that the wife acknowledge as well as execute the instrument whereby it is sought to sell or encumber community property. This is for the legislature and not for the court. We must accept the statutes as we find them and construe them as they read, where they are plain and unambiguous, and are not permitted to...