Mundy v. Shellaberger

• Decision Date: 31 March 1908
• Docket Number: 2,648.
• Citation: 161 F. 503
• Parties: MUNDY v. SHELLABERGER.
• Court: U.S. Court of Appeals — Eighth Circuit

161 F. 503

MUNDY v. SHELLABERGER.

No. 2,648.

United States Court of Appeals, Eighth Circuit.

March 31, 1908

Halbert H. McCluer (Omar E. Robinson and John T. Harding, on the brief), for appellant.

M. A Fyke and A. S. Marley, for appellee.

Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.

CARLAND District Judge.

This action was brought by appellant to enforce the specific performance by appellee of the following contract:

'Kansas City, Mo. June 18, '04.

'Kirk L. Shellaberger, Kansas City, Mo.-- Dear Sir: I herewith contract with and agree to deliver to you one hundred thousand shares of the Logan Oil & Gas Company stock, of the par value of one dollar each, full-paid and nonassessable, also sixty thousand shares of the Northern Petroleum Company stock, par value one dollar each full-paid and nonassessable, also thirteen thousand one hundred and twenty-five shares Clermont Oil Company stock, par value one dollar, full-paid and nonassessable, for your Winifred Court, 541 Brooklyn avenue, upon which are sixteen brick cottages, and your residence, 135 Park avenue; said properties free from all mortgages. Rents from Winifred Court to come to me from date of delivery of deed; you to retain possession of your residence for 90 days, if necessary, free of rent. Deeds for said properties to be delivered within ten days from this date, or as near that date or sooner if possible. You to bring abstracts down to date. All stock I agree to deliver to you inside of ten days. Dated this 18th day of June, 1904.

J. F. Mundy.

'Witness: W. Peard Thomas.

'I accept the above proposition and agree to carry out same.

'K. L. Shellaberger.

'Witness: W. Peard Thomas.' It is conceded by appellant that the property described in said contract as 135 Park avenue was on June 18, 1904, the homestead of appellee, occupied by himself and family to the knowledge of appellant. The property described in the contract is located in Kansas City, Mo. Section 3616, Rev. St. Mo. 1899 (Ann. St. 1906, p. 2034), provides that the homestead of every housekeeper or head of a family in cities like Kansas City shall not include more than 18 square rods of ground or exceed in value $3,000. Then follows this additional provision:

'The husband shall be debarred from and incapable of selling, mortgaging or alienating the homestead in any manner whatever, and every such sale, mortgage or alienation is hereby declared null and void: Provided, however, that nothing herein contained shall be so construed as to prevent the husband and wife from jointly conveying, mortgaging, alienating, or in any other manner disposing of such homestead, or any part thereof.'

Appellant refuses to accept a decree for the specific performance of the contract for the Winifred Court property alone, and it necessarily results that, if no relief can be granted as to No. 135 Park avenue, the bill must be dismissed. Appellant, while conceding that specific performance of the contract cannot be had as to No. 135 Park avenue, insists that the court for that reason may, if it finds the contract wholly void as to such property, grant him compensation therefor in the way of damages. He further insists that, as No. 135 Park avenue is shown to be of the value of about $10,000, the contract to convey the same was at least good as to the excess in value of said property over and above the sum of $3,000, the homestead limitation, and that, as sections 3624, 3625, and 3626 of the Revised Statutes of Missouri (Ann. St. 1906, pp. 2046, 2047), provide that judgment creditors may have the homestead set off if the land claimed as such is larger in area than that provided by law for a homestead, or, where property is not susceptible of division without injury to the rights of the parties, may have the same sold and the amount of the homestead in value paid to the owner thereof and the excess paid to the creditors, the court may enforce the contract herein in a similar way as to the said excess in value. These contentions by appellant raise the following questions:

First. Is the contract to convey No. 135 Park avenue, treating the same as simply a homestead, wholly void for want of the signature of the appellee's wife, and, if so, can this court award compensation by way of damages for the failure of appellee to convey?

Second. Is the contract valid so far as the value of said homestead exceeds the sum of $3,000, and, if so, will the court proceed to enforce the contract as to such excess in some appropriate manner?

Section 3616, above quoted, declares every sale, mortgage, or alienation of the homestead made by the husband alone to be null and void. If an executory contract of sale can be held to be fairly within the denunciation of this law, then it also must be held null and void. No decision of the Supreme Court of Missouri has been cited, nor have we been able to find any, passing upon the question as to whether an executory contract of sale is within the statute. We are of the opinion, however, that upon principle and authority, where a present sale of the homestead is contemplated, as in the case at bar, an executory contract for the sale of the homestead is within the statute, and therefore null and void when signed by the husband alone.

In the case of Thimes v. Stumpff, 33 Kan. 53, 5 P. 431, the Supreme Court of that state had occasion to pass upon the validity of an executory contract of sale of the homestead when signed by the husband alone. In reference to this question the court said:

'The court below held, and we think correctly, that the contract made by the plaintiff was void, and that the note and money given and paid thereon by the defendant were without consideration. The Constitution of the state, as well as the statute relating to exemptions, provides that the homestead shall not be alienated without the joint consent of the husband and the wife, when that relation exists. In interpreting and applying the above provisions, it has been uniformly and consistently ruled by this court that, so long as the premises are impressed with the homestead character, no lease, mortgage, or deed, or other contract, intended to alienate the homestead or interfere with its use and occupancy as a homestead, made and executed alone by the husband and without the consent of the wife, is valid or effectual for any purpose whatsoever. * * * If a party cannot convey the homestead by mortgage or deed without the consent of his wife, he certainly cannot make a contract agreeing to convey that will be valid or binding without her concurrence.'

In Silander v. Gronna, 15 N.D. 552, 108 N.W. 544, the Supreme Court of North Dakota held an executory contract for the sale of a homestead null and void for all purposes when signed by the husband alone. In Lichty v. Beale, 75 Neb. 770, 106 N.W. 1018, the Supreme Court of Nebraska held that an executory contract for the sale of a homestead entered into by one spouse alone is utterly void. Upon principle we do not see, where a present sale is contemplated, how an executory contract for the sale of the homestead can be looked upon in any other view than a selling or alienating thereof. Especially would this seem true in an action where one of the parties to the contract is asking the court to compel the other party to execute a conveyance in accordance with the contract. Treating the contract, therefore, as being within the statute, we come to the consideration of the question as to whether the contract is wholly void, and, if so, whether damages may be awarded for the failure on the part of the appellee to make a conveyance in accordance therewith. We are of the opinion that, both by the words of the statute itself and by the great weight of authority, the contract which appellant is seeking to enforce, treating No. 135 Park avenue as embracing nothing but a homestead, is wholly void. Waples on Homestead and Exemption, pp. 383, 384, states the rule to be as follows:

'Under the general rule that the husband alone cannot sell or incumber his dedicated homestead, all alienation of it in any form by his act, when the property itself is not liable in rem, is absolutely void, not only as to the rights of his wife, who does not join him in the deed, and as to the children, to whom the law gives the protection of shelter and the comforts of a habitation, but also as to himself. His act is a nullity, and he escapes the consequences which would follow it, so far as his own right and title is concerned, but for the equitable rights and interests of his family. His deed of contract is as though it was never written or designed.'

Numerous authorities are cited in support of this statement of the author. We think Judge Philips stated the correct view of the matter when, in deciding the case in the Circuit Court, he used the following language:

'When the text-writers and the courts speak of the right to commute in damages as to a part of the contract not susceptible of specific performance, they have in mind a contract of a party sui juris, which he had a right to make, not forbidden by law, and which he could perform if he had the title, or where he has by some act disqualified himself from performance. The ascertainment and awarding of damages in lieu of the specific thing in equity presupposes a contract valid and one enforceable in an action at law. Whether the suit be in equity for specific performance, with the incidental jurisdiction to proceed to the complete adjustment of the subject-matter of the controversy by awarding damages as to that part of the property embraced in the contract not capable of being conveyed for want of title, or the like, or whether it be an action at law for damages consequent upon failure to entirely perform...