Swingle v. Swingle
| Decision Date | 16 April 1917 |
| Citation | 162 N.W. 912,36 N.D. 611 |
| Court | North Dakota Supreme Court |
Rehearing denied May 11, 1917.
Appeal from the District Court of Stark County, W. C. Crawford Judge.
Judgment reversed.
Reversed and remanded.
Murtha & Sturgeon and H. E. Haney, for appellant.
The homestead declaration does not operate to preserve the homestead for any time, after the homestead has been abandoned in fact and in intention. Kuhnert v Conrad, 6 N.D. 220, 69 N.W. 185.
The homestead right is not, during the continuance of the family relation, a "right" or "interest" or "estate" in land. It is a mere "right to an exemption," or "veto power over the husband's right to convey or mortgage." 21 Cyc. 460 (b); Somers v. Somers, 27 S.D. 500, 36 L.R.A.(N.S.) 1024, 131 N.W. 1091; Helgebye v. Dammen, 13 N.D. 172, 100 N.W. 245; Phelps v. Phelps, 72 Ill. 546, 22 Am. Rep. 149.
The waiver of a right of exemption before the appropriate time for claiming it is absolutely void. 18 Cyc. 1449 (A), 1450 (11); 21 Cyc. 611 (D) note 71; Bunker v. Coons, 21 Utah 164, 81 Am. St. Rep. 680, 60 P. 549; Mann v. Mann, 53 Vt. 48; Curtis v. O'Brien, 20 Iowa 376, 89 Am. Dec. 543; Kneettle v. Newcomb, 78 Am. Dec. 186, note; Phelps v. Phelps, 72 Ill. 546, 22 Am. Rep. 149; Hafer v. Hafer, 33 Kan. 449, 6 P. 537; Ryan v. Dockery, 134 Wis. 431, 15 L.R.A.(N.S.) 491, 126 Am. St. Rep. 1025, 114 N.W. 820.
The waiver of the homestead, even if good against the wife, is void as to the child, and the wife or widow may bring the action to recover the homestead. Phelan v. Smith, 100 Cal. 158, 34 P. 667; Hafer v. Hafer, 33 Kan. 449, 6 P. 537; McCloy v. Arnett, 47 Ark. 445, 2 S.W. 71; Farrow v. Farrow, 13 Lea, 120; McGee v. McGee, 91 Ill. 553; Miller v. Marckle, 27 Ill. 405; Lagger v. Mutual Union Loan & Bldg. Asso. 146 Ill. 283, 33 N.E. 946; Battey v. Barker, 56 L.R.A. 76, note; 21 Cyc. 1242 (2) 1250 note 63; 26 Cyc. 825-828.
The instrument by which the homestead is sought to be conveyed or encumbered must be executed and acknowledged by both husband and wife, or each may convey by separate deeds. 16 Cyc. 720 (3); 10 R. C. L. p. 742, § 59, p. 801, § 112, p. 1034, § 54, notes 5 to 10; Brick v. Campbell, 122 N.Y. 337, 10 L.R.A. 259, 25 N.E. 493; Tate v. Commercial Bldg. Asso. 97 Va. 74, 45 L.R.A. 243, 75 Am. St. Rep. 770, 33 S.E. 382; Lukens v. Nye, 156 Cal. 498, 36 L.R.A.(N.S.) 244, 105 P. 593, 20 Ann. Cas. 158; McCrary v. Biggers, 114 Am. St. Rep. 882 note; Davis v. Thomas, 66 Neb. 26, 92 N.W. 187; Slappy v. Hanners, 137 Ala. 199, 33 So. 900; New England Mortg. Secur. Co. v. Payne, 107 Ala. 578, 18 So. 164; Isaacs v. Isaacs, 71 Neb. 537, 99 N.W. 268; Comp. Laws 1913, §§ 5517, 5608; King v. Welborn, 83 Mich. 195, 9 L.R.A. 803, 47 N.W. 106; Merced Bank v. Rosenthal, 99 Cal. 39, 31 P. 849, 33 P. 732; Clay v. Richardson, 59 Iowa 483, 13 N.W. 645.
Oral consent is inoperative and void, and cannot amount to an estoppel. McCrary v. Biggers, 46 Ore. 465, 114 Am. St. Rep. 882, 81 P. 356; 16 Cyc. 756 (B); Rasmussen v. Stone, 30 N.D. 451, 152 N.W. 809; Severtson v. Peoples, 28 N.D. 372, 148 N.W. 1054.
A deed of the homestead by husband and wife, but not acknowledged by the wife, is void. 16 Cyc. 726-747; 10 R. C. L. 697, § 25.
Where a party knows he is buying the family homestead, he cannot be said to rely upon oral statements. He is estopped to do so. He can only buy and receive title to the family homestead, in the statutory manner. Gjerstadengen v. Van Duzen, 7 N.D. 612, 66 Am. St. Rep. 679, 76 N.W. 233; Gjerstadengen v. Hartzel, 9 N.D. 268, 81 Am. St. Rep. 575, 83 N.W. 230; Hyatt v. O'Connell, 130 Iowa 567, 3 L.R.A.(N.S.) 971, 107 N.W. 599; France v. Bell, 52 Neb. 57, 71 N.W. 984; 16 Cyc. 748 (k); Ware v. Cowles, 24 Ala. 446, 60 Am. Dec. 482; Urquhart v. Belloni, 57 Ore. 314, 111 P. 692; Severtson v. Peoples, 28 N.D. 372, 148 N.W. 1054; Rasmussen v. Stone, 30 N.D. 451, 152 N.W. 809.
J. P. Cain and W. J. Ray, for respondents.
This court has held that an oral agreement estopped the wife from afterwards attacking such transfer of homestead property, and, with this view in mind, a wife who has signed a written agreement, waiving and relinquishing her right thereto, is certainly estopped to thereafter attack such transfer. Rieger v. Schaible, 81 Neb. 33, 17 L.R.A.(N.S.) 866, 115 N.W. 560, 116 N.W. 953, 16 Ann. Cas. 700; Johnston v. Spicer, 107 N.Y. 185, 13 N.E. 753.
Antenuptial contracts by which it is attempted to regulate and control the interests which each of the parties to the marriage shall take in the property of the other during coverture or after death, like dower, are favored by the courts, and will be enforced in equity according to the intention of the parties, whenever the contingency provided by the parties arises. 13 R. C. L. p. 622, P 82, p. 1012, P 33; 10 R. C. L. 689, P 19; Erickson v. Wiper, 33 N.D. 193, 157 N.W. 592.
A person cannot have but one homestead. Ford v. Ford, 24 S.D. 644, 124 N.W. 1108.
The complaint of fact alleges that plaintiff and defendant were and are husband and wife, and were married March 20, 1914. That at the time of said marriage the defendant was the owner of the north half of the northeast quarter and the north half of the northwest quarter, section 20, township 10, range 102, Billings county, North Dakota, upon which said land defendant H. P. Swingle established and made his home with plaintiff, which said land defendant had acquired from the United States government under the homestead laws thereof. That on the 18th day of September, 1914, and while defendant and plaintiff were so living upon said land, the defendant, without the knowledge, consent, or signature of the plaintiff, made a pretended deed of conveyance of said land and premises to Wm. McCarty, who then and there well knew that plaintiff was the wife of defendant, living upon said land and premises, and that she, the plaintiff, had taken no part in said pretended deed of conveyance, or in any way or manner sold, waived, or relinquished her homestead right in and to said land and premises. And further alleges that the use and occupation of said land is reasonably worth the sum of $ 500 per year.
Plaintiff further alleges that said Wm. McCarty, without the consent of plaintiff and against her will, took possession of her land and premises on or about October 1, 1914, and has been in possession thereof adverse to plaintiff to her damages in the sum of $ 500.
The prayer of plaintiff's complaint asks that the said Wm. McCarty be restrained from entering upon said lands or in any way asserting any claim or right thereto.
The plaintiff demands that the said deed of conveyance be declared null and void and of no force and effect, and that the same convey no title, right, or interest to defendant Wm. McCarty, and that plaintiff be given the right, possession, and occupation thereof, and for judgment of $ 500 and damages for the taking of said land by said McCarty.
The defendant Wm. McCarty, for his separate answer to amended complaint, alleges that the time H. P. Swingle married the defendant, that said H. P. Swingle was the owner of the north half of the northeast quarter and the north half of the northwest quarter of section 20, in township 139, north of range 102, Billings county, North Dakota, and that he had acquired the same from the United States government under the Homestead Laws thereof.
Further answering, defendant admits that at the time of the marriage of H. P. Swingle to plaintiff, that said H. P. Swingle was the owner of the land described in the amended complaint, that same was a homestead and was proved up on the 16th day of July, 1914, and a final certificate was issued for said land by the United States government on or about the 9th day of December, 1914. Defendant McCarty further alleges that on or about the 13th day of March, 1914, and prior to the marriage of plaintiff and defendant, the plaintiff and defendant, H. P. Swingle entered into an agreement or contract, in writing, for and in consideration of marriage and other mutual promises to each other, whereby and whereunder the plaintiff was to have full, complete, and entire control of her said property of whatsoever nature and wheresoever found; that the defendant, H. P. Swingle, have full, complete, and entire control of his said property of whatsoever nature and wheresoever found, and each of said parties released all their title, right, or interest in the property of the other, whether rising by operation of the law or otherwise by reason of said marriage; that each of said parties then and there filed a declaratory homestead statement on the southwest quarter of section 20, township 139, range 102, Billings county, North Dakota; said agreement was duly witnessed, acknowledged, and filed for record in the office of the register of deeds in and for Billings county, North Dakota. Defendant further alleges that on the 18th day of September, 1914, H. P. Swingle, by warranty deed, sold and transferred to the defendant Wm. McCarty the land described in paragraph 2 of the complaint, and that said Wm. McCarty then and there paid the defendant H. P. Swingle as a purchase price for said land the sum in excess of $ 3,000, and further alleges that the plaintiff had knowledge thereof and gave her consent thereto.
The defendant further alleges that by reason of such agreement mentioned in paragraph 5 of the answer, plaintiff is estopped from claiming any interest in the title of the land described in the complaint. Defendant further alleges that H. P. Swingle, since the sale of said land, has established a homestead on lands in Minnesota, and requested the plaintiff to come and live with him.
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