Williamson v. Wilson, 6112

• Decision Date: 02 December 1935
• Docket Number: 6112
• Parties: H. H. WILLIAMSON, Respondent, v. WINIFRED M. WILSON, Appellant
• Court: Idaho Supreme Court

52 P.2d 138

56 Idaho 198

H. H. WILLIAMSON, Respondent, v. WINIFRED M. WILSON, Appellant

No. 6112

Supreme Court of Idaho

December 2, 1935

COMMUNITY PROPERTY-DEED-CONTRACT FOR SALE-ACKNOWLEDGMENT BY WIFE-STATUTE OF FRAUDS-ESCROW-PAROL INSTRUCTIONS-VENDOR AND PURCHASER-DEFAULT OF ASSIGNOR OF PURCHASER, EFFECT OF.

1. Escrow instructions can be in parol without violating statute of frauds.

2. Failure of wife to join with husband in execution of contract for sale of community property did not invalidate contract where deed was executed and acknowledged by wife in manner required by community property statute, and was placed in escrow with contract, and all parties to sale and their assignees knew that deed had been executed and was held in escrow (I. C. A., sec. 31-913).

3. Taxes and money paid on purchase price under land contract could not be recovered on default of assignor of purchaser where vendor was ready, willing and able to perform.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. John C. Rice, Judge.

Action to recover possession of real property. From judgment for plaintiff and order denying and overruling motion for new trial, defendant appeals. Affirmed.

Judgment affirmed with costs to respondent.

M. H Eustace, Stewart S. Maxey and John D. Ewing, for Appellant.

A contract for the sale of community real property is void unless signed and acknowledged by both the husband and wife. (Childs v. Reed, 34 Idaho 450, 202 P. 685; McKinney v. Merritt, 35 Idaho 600, 208 P. 244; Hart v. Turner, 39 Idaho 50, 226 P. 282; Elliott v. Craig, 45 Idaho 15, 260 P. 433; Burnham v Henderson, 47 Idaho 687, 278 P. 221.)

If an undelivered deed does not purport to set out the terms of the void contract of sale, but merely purports to convey the title it cannot operate as a sufficient memorandum under the statute of frauds. (Sec. 16-505, I. C. A.; 25 R. C. L. 677 sec. 315; Kopp v. Reiter, 146 Ill. 437, 34 N.E. 942, 37 Am. St. 156, 22 L. R. A. 273; Hartenbower v. Uden, 242 Ill. 434, 90 N.E. 298, 28 L. R. A., N. S., 738.)

In order that an instrument may operate as an escrow when delivered to one not a party to the instrument to be delivered over in turn to a party to the instrument upon the performance of certain conditions, there must be a valid contract between the parties as to the subject matter of the instrument and the delivery, and in the absence of such a contract the party making the delivery may recall the instrument. (10 R. C. L. 621, secs. 2, 3; Clark v. Campbell, 23 Utah 569, 65 P. 496, 90 Am. St. 716, 54 L. R. A. 508; King v. Upper, 57 Wash. 130, 106 P. 612, 31 L. R. A., N. S., 606; Campbell v. Thomas, 42 Wis. 437, 24 Am. Rep. 427.)

A purchaser or his assigns under a void or rescinded contract for the sale of real property is entitled to repayment of the purchase money, amounts expended for taxes, water assessments, improvements, and interest on such sums, in an action for money had and received. (41 C. J. 38, sec. 17; Elliott v. Craig, supra; California Delta Farms v. Chinese American Farms, 207 Cal. 792, 268 P. 1050, 278 P. 232; Smith v. Bach, 183 Cal. 259, 191 P. 14, 53 Cal.App. 63, 199 P. 1106, 54 Cal.App. 236, 201 P. 611.)

Thos. E. Buckner and C. F. Reddoch, for Respondent.

The deeds from the plaintiff and his wife to Kirk Farmer, together with the notes of Farmer, certificate for water stock, abstract and the agreement between the plaintiff and Farmer, constituted a valid contract for the sale and purchase of the property. (I. C. A., sec. 31-913; Rev. Code Ariz. 1928, sec. 2172; Cal. Civ. Code, sec. 172A; Rem. Rev. Stat. Wash. 1932, vol. 8, sec. 6893; Childs v. Reed, 34 Idaho 450, 202 P. 685; Waldeck v. Hedden, 89 Cal.App. 485, 265 P. 340.)

The terms and conditions upon which an instrument is deposited in escrow need not be in writing, but may rest in parol, or partly in writing and partly in parol, and all the circumstances should be considered in arriving at the intention of the parties. (21 C. J., pp. 868, 869, sec. 7; 10 R. C. L. p. 623, sec. 5; Eason v. Walter, 118 Okla. 37, 246 P. 865; Foulkes v. Sengstacken, 83 Ore. 118, 158 P. 952, 163 P. 311.)

When the contract is in writing, if the vendee is in default, and the vendor is ready, willing and able to perform his contract, there can be no recovery of purchase money paid thereon. (66 C. J., sec. 1577, p. 1487, sec. 1600, p. 1507; 27 R. C. L., sec. 378, p. 624; Townsend v. Tufts, 95 Cal. 257, 30 P. 528, 29 Am. St. 107; Bradford v. Parkhurst, 96 Cal. 102, 30 P. 1106, 31 Am. St. 189.)

If the facts established constitute nothing more than a parol contract for the purchase of the property, the vendee cannot recover the purchase money paid thereon, where the vendor is ready, willing and able to perform. (66 C. J., sec. 1558, p. 1473; 27 R. C. L., sec. 378, p. 624; Laffey v. Kaufman, 134 Cal. 391, 66 P. 471, 86 Am. St. 283; Walbridge v. Richards, 212 Cal. 408, 298 P. 971; McKinney v. Harvie, 38 Minn. 18, 35 N.W. 668, 8 Am. St. 640.)

AILSHIE, J. Givens, C. J., and Budge, Morgan and Holden, JJ., concur.

OPINION

AILSHIE, J.

This was an action to recover possession of real property. A cross-complaint was interposed praying for the return of the money paid as part of the purchase price for this land and for taxes paid, and for the value of repairs made on the premises. Judgment was entered for the plaintiff for the recovery of the possession of the land, together with nominal damages, and defendant has appealed. The case arose out of the following state of facts:

Plaintiff and his wife owned a farm in Idaho which was community property. They were residing in California. Plaintiff, learning of a prospective purchaser, came to Idaho, negotiated an agreement with a man named Farmer for the sale to him of this farm for $ 12,500. A warranty deed was prepared and taken by plaintiff back to California, where he and his wife duly executed and acknowledged it. In the meanwhile some of the buildings on the place were destroyed by fire. Plaintiff brought the deed, which had been duly executed, back to Idaho and after further negotiating with Farmer it was agreed that the sale should be consummated and that plaintiff should reduce the purchase price as originally agreed upon in the sum of $ 1,000, which was assented to by plaintiff's wife. Plaintiff and Farmer thereupon went to the bank where on November 1, 1917, a contract of sale was drawn in the usual and ordinary form, whereby plaintiff contracted to sell to Farmer and execute and deliver good and sufficient warranty deed, together with abstract of title and a certificate of water stock, which represented the water right appurtenant to the premises. By the same instrument Farmer agreed to purchase the premises and to make payments for the purchase price, by $ 200 in cash and the balance in installments extending over a period of eleven years. Farmer executed promissory notes representing these deferred payments, which notes bear interest at the rate of 7 per cent until due and 8 per cent after maturity. The contract, the deeds and notes, abstract and water stock certificate, were all placed in escrow with the Middleton State Bank, with instructions that if the notes were paid they should be surrendered and the money placed to the credit of the vendor at the bank; and that when final payment was made, the deeds, abstract and water stock certificate should be delivered to Farmer.

The contract provided that the terms and conditions thereof "shall extend to and be obligatory upon the heirs, executors, administrators or assigns of the respective parties" and also contained the following:

"And in case of the failure of said party of the second part to make either of the payments or interests thereon or any part thereof, or to perform any of the covenants on his part hereby made and entered into then the whole of said payments and interests shall become immediately due and payable, and this contract shall, at the option of the party of the first part, be forfeited and determined, and if this instrument shall have been recorded in any recorder's office, then of filing a declaration of forfeiture, (setting forth the fact of said failure), in said office by said first party shall be sufficient to cancel all obligations hereunto on the part of the first party and fully reinvest them with all rights, title and interest, hereby agreed to be conveyed and the party of the second part shall forfeit all payments on and made by him on this contract, and all his rights, title and interest in all buildings, fences, or other improvements whatsoever and such payments and improvements shall be retained by the said party of the first part and he shall have the right to reenter and take possession of the premises aforesaid."

On October 15, 1919, Farmer sold and assigned his interest to Walter M. Ode and wife and executed and acknowledged a warranty deed on December 9, 1919, for the same premises and placed that in escrow with the other escrow papers. On May 12, 1920, Ode sold and assigned his interest to James T. Wilson (husband of the defendant herein); and on May 6, 1920, Ode and wife executed warranty deed to the same premises and placed the same in escrow with the other escrow papers. On July 4, 1931, Wilson assigned his interest to the defendant herein and executed a deed to the premises and placed the same in escrow with the other escrow papers. Defendant defaulted in the payment of principal, interest and taxes on November 1, 1928, and made no payments thereafter. On the 21st day of April, 1932, plaintiff caused to be served on defendant, also on Farmer and wife and Ode and wife, a written notice describing the premises and specifying the payments...