207 N.W. 315 | Minn. | 1926
The promise was not unequivocal. Mrs. Levin reserved the alternative of refusing to sign and permitting plaintiff to "take judgment or do anything else it had a mind to." Plaintiff therefore was not justified in considering the undertaking an absolute one to sign the mortgage. So, however considered, the promise is not an adequate basis for an equitable estoppel.
The promise related wholly to the intention of the promisor with respect to future action. It did not relate to present or past conditions or rights. The law is that a promise, representation or concealment in order to constitute an estoppel, even when relied upon, must "have reference to a present or past state of things." Bigelow, Estoppel, 636. The latest text authority comes from England and is to the effect that in all cases of promises, as distinguished from affirmations, "the courts have not shrunk from their duty to regard the matter in this light only, though the result has been in many cases to leave just expectations unrealized, and absolve from all consequences conduct which was at least morally censurable. In all cases, accordingly, where it is admitted, or established, that the party claiming cannot succeed against his opponent on the basis of contract (either because there was no contract in fact, or because the contract is by statute, or at common law, unenforceable), and it is therefore only possible for him to succeed if he can establish a representation which the other party will be estopped from contradicting, and the statement on which he relies cannot reasonably be interpreted otherwise than as a promise, he has always been left without any remedy at all." Bower, Estoppel by Representation (1923) § 46.
To this rule it is stated that there is an exception "where the statement relates to an intended abandonment of an existing right, and is made to influence others who have in fact been influenced by it." 21 C.J. 1142. We decline to allow that exception in this case because it would be so clearly in contravention of our statute which renders any attempted alienation of the homestead of a married owner, not executed by both spouses, not unenforceable merely but void. It is a statute which courts are bound to regard "in *161
equity as well as at law." Glass v. Hulbert,
No authority has been cited to the contrary. It is argued that we have recognized estoppel against the wife in the case of a homestead. We have, but in no such manner as is now invoked. For example, in Osman v. Wisted,
Much could be said about the promise here relied upon as one attempting to create an interest in land and therefore invalid under the statute of frauds, section 8459, G.S. 1923, because not in writing. A promise to execute a mortgage upon land is "for the sale of an interest in real property within the meaning" of the statute of frauds: For "one who promises to make another the owner of a *162
lien or charge upon land, promises to make him the owner of an interest in land, and this is equivalent in effect to a promise to sell him such an interest." Sleeth v. Sampson,
On the same subject and not altogether in accord with the New York court, are Ludwig v. Ludwig,
So ordered. *163