Torgerson v. Hauge
| Decision Date | 21 July 1916 |
| Court | North Dakota Supreme Court |
Rehearing denied August 16, 1916.
Defendants appeal from District Court, Wells County, Coffey, Judge demanding trial de novo.
Affirmed.
An unproved homestead is not devisable by will or contract. The Federal statutes have limited the power of the entryman to alienate his homestead to a few specific cases, the chief of which are for roads, schools, and irrigation purposes. Such statutes are strictly construed. Sutphen v. Sutphen, 30 Kan. 510, 2 P. 100; Wood v. Noel, 116 La. 516, 40 So. 857; Ford v. Ford, 24 S.D. 644, 124 N.W. 1108; Cascade Public Service Corp. v. Railsback, 59 Wash 376, 109 P. 1062; Tait v. New York L. Ins. Co. 1 Flipp. 288, Fed. Cas. No. 13,726; Siegel, C. & Co. v. Eaton & P. Co. 165 Ill. 550, 46 N.E. 449.
Assuming the contract to have been fully established, the plaintiffs cannot maintain their action for specific performance because the contract has not been completed. If there was ever a valid agreement, it was extinguished by the death of Andrew Torgerson, the beneficiary, before the death of his father. Cox v. Cox, 26 Gratt. 305; Snyder v. Snyder, 77 Wis. 95, 45 N.W. 818; Bourget v. Monroe, 58 Mich. 563, 25 N.W. 514; Adams, Eq. p. 252, *82; Benedict v. Lynch, 1 Johns. Ch. 370, 7 Am. Dec. 484.
A court of equity cannot enforce a contract specifically unless it can be done mutually and completely, and so as to secure substantially, beyond question, all that the parties contemplate. If this is impracticable, the remedy, if any exists, is to be found elsewhere. Buck v. Smith, 29 Mich. 166, 18 Am. Rep. 84; Blanchard v. Detroit, L. & L. M. R. Co. 31 Mich. 52, 18 Am. Rep. 142; Rust v. Conrad, 47 Mich. 449, 41 Am. Rep. 720, 11 N.W. 265; Bumpus v. Bumpus, 53 Mich. 346, 19 N.W. 29; Wright v. Wright, 31 Mich. 380; Roberts v. Kelsey, 38 Mich. 602.
Equity will never compel performance by one party when there can be no certainty that the other party ever intends to carry out the promises made by him. O'Brien v. Perry, 130 Cal. 528, 62 P. 927; Civ. Code § 3390; Hayden v. Collins, 1 Cal.App. 259, 81 P. 1120; Prusiecke v. Ramzinski, Tex. Civ. App. , 81 S.W. 771; Ikerd v. Beavers, 106 Ind. 483, 7 N.E. 328; 40 Cyc. 1067.
H. J. Bessesen, John O. Hanchett, and J. L. Johnson, for respondents.
The law and the decisions uphold the validity of a mortgage executed by a homestead entryman prior to proof and patent, where the entryman thereafter perfects his title and obtains patent to the land. Adam v. McClintock, 21 N.D. 483, 131 N.W. 394; Martin v. Yager, 30 N.D. 577, 153 N.W. 286; Holtan v. Beck, 20 N.D. 5, 125 N.W. 1048; Sutphen v. Sutphen, 30 Kan. 510, 2 P. 100; Engholm v. Ekrem, 18 N.D. 185, 119 N.W. 35; Teske v. Dittberner, 70 Neb. 544, 113 Am. St. Rep. 802, 98 N.W. 57; Svanburg v. Fosseen, 75 Minn. 350, 43 L.R.A. 427, 74 Am. St. Rep. 490, 78 N.W. 4.
Where a man has given up his inherent right to establish and build a home for himself and family elsewhere, and has, pursuant to a contract, occupied, and for many years improved, a tract of land belonging to another, under an agreement to convey it to him by deed or devise it to him by will, it is held that the law cannot place the parties in statu quo; that money damages will not suffice, and that it is such a case that the only adequate remedy is by action for specific performance in a court of equity, and that such court, under such circumstances, will always decree specific performance. Bird v. Pope, 73 Mich. 483, 41 N.W. 514; Young v. Young, 45 N.J.Eq. 27, 16 A. 921; Svanburg v. Fosseen, 75 Minn. 350, 43 L.R.A. 427, 74 Am. St. Rep. 490, 78 N.W. 4; Teske v. Dittberner, 70 Neb. 544, 113 Am. St. Rep. 802, 98 N.W. 57.
The homestead estate can be lost by both husband and wife by abandonment or by estoppel in pais, the same as any other interest in or title to real property. Engholm v. Ekrem, 18 N.D. 185, 119 N.W. 35; Ferris v. Jensen, 16 N.D. 466, 114 N.W. 372.
The doctrine of equitable estoppel by conduct applies as against married women the same as against all persons sui juris. Bird v. Pope, 73 Mich. 483, 41 N.W. 514; Baker v. Syfritt, 147 Iowa 49, 125 N.W. 998; Teske v. Dittberner, 70 Neb. 544, 113 Am. St. Rep. 802, 98 N.W. 57; Best v. Gralapp, 69 Neb. 811, 96 N.W. 641, 99 N.W. 837, 5 Ann. Cas. 464; Kofka v. Rosicky, 41 Neb. 328, 25 L.R.A. 207, 43 Am. St. Rep. 685, 59 N.W. 788.
"Such an agreement may be indirectly enforced during the promisor's lifetime by a decree canceling a conveyance made by him to another in violation of the agreement, or a decree that the grantor in such conveyance hold the title in trust subject to the purposes of the agreement; by an injunction against conveying the property or making a will in violation of the agreement; or that grantee hold the property in trust during his lifetime with remainder in fee to the complainant or his heirs; or that on performance or readiness to perform by plaintiff he will be entitled to the land on the death of the promisor." 36 Cyc. 738, P 4; Svanburg v. Fosseen, 75 Minn. 350, 43 L.R.A. 427, 74 Am. St. Rep. 490, 78 N.W. 4; Owens v. McNally, 113 Cal. 444, 33 L.R.A. 369, 45 P. 711; Cox v. Cox, 26 Gratt. 305; Snyder v. Snyder, 77 Wis. 95, 45 N.W. 818; Bourget v. Monroe, 58 Mich. 563, 25 N.W. 514.
The heirs of Andrew Torgerson succeeded to the equitable estate which he had in the property during his lifetime, burdened with the fulfilment of the contract he had made, and which he had executed as far as possible. Young v. Young, 45 N.J.Eq. 27, 16 A. 921; France v. France, 8 N.J.Eq. 650; Van Duyne v. Vreeland, 11 N.J.Eq. 370, 12 N.J.Eq. 142; Davison v. Davison, 13 N.J.Eq. 246; Pom. Spec. Perf. of Contr. p. 104; 2 Story, Eq. Jur. §§ 759, 761; Fry, Spec. Perf. 174; Wallace v. Brown, 10 N.J.Eq. 308; Cooper v. Carlisle, 17 N.J.Eq. 529; Eyre v. Eyre, 19 N.J.Eq. 102; Green v. Richards, 23 N.J.Eq. 33; Dean v. Anderson, 34 N.J.Eq. 500; Haughwout v. Murphy, 22 N.J.Eq. 531.
The quarter section, the subject matter of this suit, was the government homestead of Torger J. Hauge. It is the southwest quarter of 6, township 149 north of range 71 west, and within Wells county. Torger Hauge made proof thereon in 1902. Britha Hauge, now his widow, is still living. Their children were the defendants other than the widow appellant, and also their youngest son, Andrew Torgerson. The plaintiffs are his children suing by guardian the mother and the brothers and sisters of their father, Andrew Torgerson. Both Andrew Torgerson and his father, Torger J. Hauge, are dead. The son died from tuberculosis June 5, 1914, after a lingering illness. His father, Torger J. Hauge, died in October following.
In 1899 Torger J. Hauge and his wife were living upon this tract as their unproven government homestead. Andrew Torgerson, their youngest son, unmarried, was residing upon a government homestead near Balfour. The other four children of Torger and wife had married and had left the parental roof. In 1889 the father and mother entered into an arrangement with Andrew that he should return to their home, reside with and care for them for the balance of their lives, and should receive therefor all their property, including their unproven homestead, upon the death of both of them. Andrew thereupon made commutation proof upon his homestead near Balfour and sold it, realizing some $ 1,500 net from its sale. He immediately returned to the home of his parents, purchasing a quarter of school land adjoining, and making the first payments thereon to the state with a portion of the proceeds from the sale of his homestead. He took possession of all personalty on the father's homestead and cropped it, taking those also. The father soon afterward, in 1902, made proof upon his homestead and patent therefor presumably has been issued. In 1899 the father's homestead was worth approximately $ 10 per acre. The buildings were of sod. Substantial frame buildings, consisting of a house worth twelve or fifteen hundred dollars, a large hip-roofed barn, worth from ten to twelve hundred dollars, and several other frame buildings, as granaries and the like, have been built upon the father's homestead by Andrew since his return. There is substantial proof that a portion of the proceeds from the son's homestead went into the frame house, the first building erected. The buildings and improvements, in the aggregate of the value of approximately $ 3,500, upon the father's homestead, were placed there by Andrew from part of the proceeds of the sale of his homestead, but in larger part from the crops he had raised upon the land in question and the school quarter. All the buildings and improvements were placed upon the father's homestead, instead of upon the school land quarter, and during all the years from 1899 until Andrew's death he had resided thereon.
Andrew married in 1907, and he and his family, together with his father and mother, have always lived there. During all this time the old people had been well and comfortably cared for by the son and his wife, and were apparently well satisfied during these fifteen years with their condition and with the performance of the agreement under which they were maintained. For some years before the son's death in 1914 he had been ailing, but no complaint has been made that during that time and up to his death the old people were not properly cared for. In fact, the contrary is the proof. During all this time...
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