Wilcox v. Deere

• Decision Date: 30 November 1897
• Citation: 5 Idaho 545,51 P. 98
• Parties: WILCOX v. DEERE
• Court: Idaho Supreme Court

51 P. 98

5 Idaho 545

WILCOX v. DEERE

Supreme Court of Idaho

November 30, 1897

DECLARATION OF HOMESTEAD-DESCRIPTION OF PROPERTY.-A declaration of homestead which describes certain town lots, and also one hundred and sixty acres of farm land, alleging that "on a portion of which the claimant, with family, is residing," is void for indefiniteness.

DECLARATION MADE BY WIFE, WHAT TO CONTAIN.-It is requisite that a declaration of homestead should contain substantially the statements set forth in section 3071 of the Revised Statutes and where the declaration is made by the wife, the husband living, it should state that the husband "has not made such declaration, and that she therefore makes the declaration for their joint benefit."

(Syllabus by the court.)

APPEAL from District Court, Bear Lake County.

Affirmed, with costs.

E. E Chalmers and J. C. Rich, for Appellant.

The conveyance from Francis Wilcox to appellant was legitimate and even favored in the eye of the law. Even if considered as a voluntary conveyance, without consideration, it was not necessarily fraudulent on that account, even as to existing creditors, and the property is not liable for debts by him afterward contracted. (Bull v. Bray, 89 Cal. 286, 26 P. 873; Peck v. Brummagin, 31 Cal. 440, 89 Am. Dec 195; In re McEachran, 82 Cal. 219, 23 P. 46; Morgan v. Hecher, 74 Cal. 540, 16 P. 317.) It appears, without contradiction, that appellant's husband, Francis Wilcox, was perfectly solvent at all times from 1861 to 1890 after the time of the contract between Deere, Wells & Co. and Francis Wilcox & Sons. If, therefore, said conveyance be considered as a gift, it is valid, allowed and even favored in law as against the respondents who were subsequent creditors. (Barker v. Koneman, 13 Cal. 9; Kane v. Desmond, 63 Cal. 464; Windhaus v. Bootz (Cal.), 25 P. 404; S. C., 92 Cal. 617, 28 P. 557.) A conveyance by a husband to his wife, while in solvent circumstances is good, and the property thus acquired becomes her separate estate. (Higgins v. Higgins, 46 Cal. 260; Woods v. Whitney, 42 Cal. 358; Hussey v. Castle, 41 Cal. 238; Arp v. Jacobs, 3 Wyo. 489, 27 P. 800; Barker v. Koneman, 13 Cal. 9.) A husband may pay his wife as a preferred creditor a debt which he owes her. (Chapman v. Summerfield, 36 Kan. 610, 14 P. 235; Cooper v. First Nat. Bank, 40 Kan. 5, 18 P. 937; Cook v. Cockins, 117 Cal. 140, 48 P. 1025.) Parol evidence is admissible to vary the recited consideration of a deed when attacked for fraud. (2 Wharton on Evidence, secs. 1043-1050; 1 Greenleaf on Evidence, secs. 285, 304; Irvine v. McKeon, 23 Cal. 472; Rhine v. Ellen, 36 Cal. 362.) A declaration of homestead describing several tracts of land separately is good as to that tract occupied by the family, to the value of $ 5,000. (McDonald v. Badger, 23 Cal. 394, 83 Am. Dec. 123.) Where part of the land selected is taken, the balance may be held as a homestead. (Spencer v. Geissman, 37 Cal. 96, 99 Am. Dec. 248.)

T. L. Glenn and R. S. Spense, for Respondents.

The declaration of homestead attempted to be made, executed and filed for record by the wife is fatally defective. It does not state that the declaration is made for the joint benefit of the husband and wife. It does not describe the tract of land claimed as a homestead. (Adams v. Knowlton, 22 Cal. 288; Booth v. Galt, 58 Cal. 254; Ashley v. Olmstead, 54 Cal. 616; Ames v. Eldred, 55 Cal. 136; Knock v. Bunnell (Cal.), 21 P. 961.) The declaration describes two tracts of land. They are not contiguous. They are a mile and a half apart, "upon a portion of which the claimant, with family, are residing, and which is hereby claimed as a homestead." The tracts must be contiguous. Upon which is this alleged homestead? Upon which is the claimant residing? The description is fatally defective. There is a fatal ambiguity in the location of the residence, and it cannot be helped by oral testimony. (Boreham v. Bryne, 83 Cal. 23, 23 P. 212.) The acknowledgment is void. (Kennedy v. Gloster, 98 Cal. 143, 32 P. 941.)

HUSTON, J. Sullivan, C. J., and Quarles, J., concur.

OPINION

HUSTON, J.

--Respondents recovered judgment in the district court.for Bear Lake county against Francis Wilcox and George E. Wilcox, partners as Francis Wilcox & Son, and J. C. Rich. Execution was issued upon such judgment, and levied upon certain real estate claimed to be owned by the appellant, and this action was brought to enjoin the sale of said real estate thereunder. The court finds as matter of fact: "That Francis Wilcox and the appellant intermarried some time in the year 1861, and are still man and wife. (2) That the property described in the complaint was acquired by the act of Congress known as the 'Townsite Act,' and was deeded by George Osmond, as probate judge of said Bear Lake county, Idaho under said townsite act, and through and by the rules and regulations of the state of Idaho in such cases made and provided, to Francis Wilcox, on the twenty-ninth day of September, A. D. 1881. (3). That the defendants Deere, Wells & Co. were engaged in the business of the manufacture of farm implements and farm machinery at Council Bluffs, in the state of Iowa; and Francis Wilcox, being about to engage in the business of dealing in farm implements at Paris, Idaho on the tenth day of January, A. D. 1890, entered into a contract in writing to purchase from defendants his stock in trade, on a credit of four, six, and twelve months, and on that day purchased from defendants farm implements, which the defendants delivered to the said Wilcox on the fifteenth day of March, A. D. 1890, which amounted to about $ 1,500; that shortly thereafter the said Francis Wilcox purchased from the defendants farm implements to the value of about $ 1,700, under the terms of said contract; that on the twenty-eighth day of July, 1890, the whole of said indebtedness, except about $ 100, was put in promissory notes executed by Francis Wilcox and George E. Wilcox, payable to defendants; these notes were afterward renewed, and the judgment obtained at the September term, 1893, of said court, and referred to and described in the complaint in this action, and in which action judgment was recovered for the sum of $ 1,503, was founded on a part of said notes. (4) That said Francis Wilcox entered into the contract mentioned in the third finding of fact herein with intent to cast the risks and losses of said business, if any there should be, upon the defendants. (5) That on the fourteenth day of January, 1890, said Francis Wilcox, without consideration, and with intent to hinder, delay, and defraud the defendants, and other creditors, conveyed the property described in the complaint to the plaintiff in this action; and she accepted the same, to aid and abet him to hinder, delay and defraud the defendants in the collection of their claim against him. (6) That Francis Wilcox, at the time he entered into the contract stated in the third finding of fact herein, had no property except that described in the complaint, and two other pieces of real estate (one of four and one-half acres, of the value of about $ 300, and the other of one hundred and twenty acres, of the value of $ 1,500); that on the nineteenth day of September, 1890, Francis Wilcox and the plaintiff in this action, without consideration, conveyed the four and one-half acres to their son, George E. Wilcox, and he, three days afterward, without consideration, conveyed the same to his mother, the plaintiff herein, and she conveyed the same to...