Mellen v. McMannis

Decision Date11 January 1904
Citation9 Idaho 418,75 P. 98
PartiesMELLEN v. MCMANNIS
CourtIdaho Supreme Court

REAL ESTATE-CONTRACT OF SALE-DECLARATION OF HOMESTEAD-HEAD OF FAMILY.

1. Under the provisions of section 3071, Revised Statutes, a declaration of homestead must contain a statement showing that the person making it is the head of a family. It is a sufficient compliance therewith if such declaration contains a statement of the probative facts from which the ultimate act may be judicially inferred that the person making such declaration is the head of a family.

2. If a homestead declaration contains a statement of the facts in substantial compliance with the provisions of said section 3071, it is sufficient.

3. The property selected as a homestead can only be abandoned by a declaration of abandonment or by a grant or conveyance thereof properly executed and acknowledged by the husband and wife, if the claimant is married, as provided by section 3041, Revised Statutes.

(Syllabus by the court.)

APPEAL from District Court of Elmore County. Action originally tried by Honorable C. O. Stockslager, Judge. Order overruling motion for a new trial made by Honorable Lyttleton Price Judge.

Action to compel conveyance of real estate. Judgment for plaintiff. Reversed.

Reversed and remanded with instructions. Costs of this appeal awarded to the appellant.

W. C Howie, for Appellant.

While the two main points raised are based on the evidence, there is in no sense a conflict of evidence, for as to those facts material to those two questions there is no conflict or even a suggestion of a conflict. Besides, they are based on records and documentary evidence to which the rule as to conflicting evidence does not apply; in fact, it is not really a question of evidence, but resolves itself into questions of law as to the legal effect of certain documentary evidence. To be sure there is considerable conflict in the evidence, but it is all as to other matters not brought up on this appeal and which in no manner whatever affects the questions on which this appeal is taken. And first as to the question of homestead: The preliminary proof was sufficient to introduce copy of record. Defendant testified he did not have the original nor did he know where it was, and the legal presumptions would be that he would not have it. It was sought at the only place it would be presumed to be--in the possession of the one who made it and to whom it would be returned after record; but it was not necessary on the part of the defendant to even make preliminary proof. (Rev. Stats., sec. 5998; 3 Deering's Code, sec. 1951; Hurlbutt v. Butenop, 27 Cal. 55; Mayo v. Maxeaux, 38 Cal. 449; Hicks v. Coleman, 25 Cal. 129, 85 Am. Dec. 103.) The declaration is sufficient in form. All the statute requires is a statement showing the declarant to be the head of the family. (Idaho Code, sec. 3071.) And the declarant stating that he was married shows that. (Idaho Code, sec. 3059.) As to the sufficiency of the declaration, see Simonson v. Burr, 121 Cal. 582, 54 P. 87; 2 Idaho Codes of 1901, secs. 2475, 2476, 2494, and notes; Bancroft's Forms, p. 137; 15 Am. & Eng. Ency. of Law, 535, 725, 726, and notes; Southwick v. Davis (Cal.), 21 P. 121. The land having once become a homestead, it cannot be abandoned nor conveyed in any other way than that laid down by statutes. (Idaho Code, secs. 2505, 2921, 3040-3042.) Leaving the land nor leaving the state, though permanently, nor even the acquiring of another home does not abandon it, and any transfer except in the manner specified by statute is absolutely void. (Tipton v. Martin, 71 Cal. 325, 12 P. 244; Porter v. Chapman, 65 Cal. 365, 4 P. 237; 22 Am. & Eng. Ency. of Law, 1st ed., 922, note, "Married Women.") And not only is the conveyance itself void, but any agreement to convey is also void. (Barton v. Drake, 21 Minn. 299; Yost v. Devault, 9 Iowa 61; Phillips v. Stauch, 20 Mich. 380.) As to the contract to sell: There was no acceptance within the time and in the manner designated by Clark. The proposer to sell property has a right to impose any terms he may see fit, not only as to terms of sale, but also time and manner of acceptance and notice of exceptance. (3 Am. & Eng. Ency. of Law, 1st ed., 846, 852, and note; Gilbert v. Baxter, 71 Iowa 327, 32 N.W. 364; Sawyer v. Brossart, 67 Iowa 678, 56 Am. Rep. 371, 25 N.W. 876; Childs v. Gillespie, 23 A. 312; 22 Am. & Eng. Ency. of Law; Waterman on Specific Performances, secs. 135, 136, 175; Eliasion v. Henshaw, 4 Wheat. 225, 4 L.Ed. 556; Horne v. Niver, 168 Mass. 4, 46 N.E. 393; De Jonge v. Hunt, 103 Mich. 94, 61 N.W. 342; Langellier v. Shaeffer, 36 Minn. 361, 31 N.W. 691; Athe v. Bartholomew, 69 Wis. 43, 5 Am. St. Rep. 103, 33 N.W. 113.)

N. M. Ruick, for Respondent.

The questions which this court is called to pass upon are two: 1. Was there a valid agreement between Clark and Mellen whereby the former was to convey to the latter the premises in question? 2. Did the premises, at the date of the agreement, if any, constitute a homestead? The next question is that of homestead. Did these premises constitute the homestead of Clark at the date the foregoing agreement was entered into? We say that they did not, and we base this assertion upon the ground that the declaration of homestead is not in compliance with the requirements of the statute in relation to homesteads. That said declaration did not conform to the statutes of Idaho in that "declarant nowhere states in the so-called declaration of homestead that he is the head of a family." Independent of the statute, the fact appearing that the declarant had a wife and children residing with him would constitute him the "head of a family." (Bosquett v. Hall, 90 Ky. 566, 29 Am. St. Rep. 404, 13 S.W. 244, 9 L. R. A. 351; 2 Dembitz on Land Titles, p. 1280.) It is interesting to note in this connection, as throwing light upon the necessity for the declarant stating that he is the "head of a family," that the statute of California prior to 1874 required that the declaration of homestead must contain "a statement of the facts that show the person making it to be the 'head of a family.'" This statute, however, was amended in 1874 to read as our statute now reads, to wit: "A statement showing that the person making it is the head of a family"; and in case of Jones v. Waddy, 66 Cal. 457, 6 P. 92, the supreme court of California held that the statute as amended did away with the "statement of facts" formerly required, and substituted the statement, "I am the head of a family." The right of the claimant to select a homestead and impress upon it an exemption from forced sale must appear upon the face of the declaration, and its omission can no more be supplied by extraneous evidence than can an omission to state the value of the property claimed. The legislature has prescribed certain formalities and conditions which are essential to the "selection" of a homestead, and these formalities and conditions cannot be disregarded by courts. When a selection is made by virtue of the claimant being the "head of a family," that fact is as necessary to be shown in the declaration as is the fact of occupancy or of value. We are not at liberty to disregard one of these requisites any more than another. If either is wanting, the declaration is unavailing to create the exemption. (Reid v. Englehart etc. Mer. Co., 126 Cal. 527, 77 Am. St. Rep. 206, 58 P. 1063, 1064.)

SULLIVAN, C. J. Ailshie, J., concurs. Stockslager, J., did not sit at the hearing and took no part in the decision of this case.

OPINION

The facts are stated in the opinion.

SULLIVAN, C. J.

This is an action to compel the defendant to convey to the plaintiff who is respondent here, certain premises situated in the village of Mountainhome, the title to which premises formerly was in one A. B. Clark. It appears that said Clark and his family, consisting of a wife and two children, had formerly resided on said premises, occupying it as their home; that while residing thereon said Clark filed a homestead declaration claiming said premises as a homestead under the laws of this state; that more than a year prior to the commencement of this action said Clark had removed from said premises with his family to the state of Washington and had resided there ever since. The plaintiff alleges that through written correspondence with said Clark an agreement was entered into for the purchase of said premises whereby plaintiff became entitled to a conveyance for the same; that said Clark, disregarding such agreement to convey, he and his said wife thereafter conveyed said premises to the appellant McMannis. And it is alleged that the appellant took said conveyance with full notice of said agreement by Clark to convey said premises to the respondent. Those allegations were put in issue by the answer, and for a separate defense it was alleged that the premises in question constituted the homestead of Clark, and for that reason he could not make a valid contract for the conveyance thereof without the written consent of his wife. The issues thus made were tried by a jury and a verdict was rendered for the plaintiff, on which verdict a judgment was duly entered. A motion for a new trial was denied by the court. This appeal is from the order denying a new trial.

The court is called upon to decide two questions: 1. Was there a valid agreement between Clark and Mellen whereby the former was to convey to the latter the premises in question?...

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4 cases
  • Grice v. Woodworth
    • United States
    • Idaho Supreme Court
    • December 31, 1904
    ...108 Cal. 218, 41 P. 467; Gleason v. Spray, 81 Cal. 217, 15 Am. St. Rep. 47, 22 P. 551; Barber v. Babel, 36 Cal. 14; Mellen v. McMannis, 9 Idaho 418, 75 P. 98.) believe it to be the universal rule that if damages at law will be adequate compensation for the breach of a contract, specific per......
  • Clark v. Clark
    • United States
    • Idaho Supreme Court
    • July 19, 1935
    ... ... The declaration, ... having been made and filed for record, can only be abandoned ... as provided by statute. (Mellen v. McMannis, 9 Idaho ... 418, 75 P. 98; Campbell v. Largilliere Co., Bankers, ... 44 Idaho 293, 256 P. 371.) ... The ... statutory ... ...
  • Barnes, In re
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 20, 1992
    ...same argument under California law). We conclude that the debtors did not substantially comply with the statute. See Mellen v. McMannis, 9 Idaho 418, 75 P. 98, 99 (1904) (establishing substantial compliance standard). Although the homestead statutes should be liberally construed, Mellen, 75......
  • Oylear v. Oylear
    • United States
    • Idaho Supreme Court
    • August 2, 1922
    ... ... Stats., sec. 5712.) ... The ... homestead declaration by Sarah A. Oylear was a valid ... declaration. (Rev. Stats., sec. 3971; Mellen v ... McMannis, 9 Idaho 418, 423, 75 P. 98; First Nat ... Bank of Hailey v. Glenn, 10 Idaho 224, 109 Am. St. 204, ... 77 P. 623.) ... ...

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