93 S.W.2d 667 | Mo. | 1936
Lead Opinion
Respondent filed this suit in the Circuit Court of Newton County, Missouri, seeking specific performance of a contract *970 wherein appellant agreed, for a stated consideration, to convey by warranty deed a tract of land located in Neosho, Newton County. Respondent filed a general demurrer to appellant's answer, which was sustained by the trial court. Appellant refused to plead further and a decree was entered as prayed for in the petition, whereupon appellant appealed.
[1] The sufficiency of the petition was not questioned. In it respondent asked for specific performance and alleged that he had fully performed his part of the contract, but that appellant refused to convey the land as he had agreed. Appellant's answer, in addition to a general denial, stated that appellant was a married man and the head of a family; that he had resided upon the tract of land in question for many years and occupied and used such tract as a part of his homestead and that the wife of appellant had not signed or executed the contract which respondent sought to enforce. Appellant's answer contained other matters which we need not discuss.
By the filing of a general demurrer respondent admitted the truth of the facts pleaded in the answer. [2] Respondent first insists that the appeal in this case should be dismissed because appellant failed to file a motion for new trial and failed to except to the ruling of the trial court in sustaining the demurrer. A general demurrer has always been considered a part of the record proper. If an appeal is taken at the same term at which a general demurrer is sustained and judgment entered, the ruling of the trial court may be reviewed by an appellate court. [Schwettmann v. Sander, 7 S.W.2d 301; Wayland v. Kansas City,
[3] The decree entered by the trial court contained the following provision: "This judgment, however, in no manner to affect the *971
dower interest now held by the wife of said S.L. Wolfinbarger in and to said land." It is contended, by respondent, that the decree in this case in no way affects the dower right, or homestead of the wife. Appellant contends that a husband's contract to convey, or any deed of a husband conveying a homestead, without the wife joining therein, is void and that, therefore, the trial court in this case erred in decreeing specific performance of the contract to convey appellant's homestead because the wife of appellant had not signed the contract. This contention must be sustained. In a recent case, Haines v. Carroll,
"Appellant's next contention is that as the statute (Sec. 5853, R.S. 1919 [now Sec. 608, R.S. 1929]) expressly makes every sale, mortgage, or alienation of the homestead by the husband null and void, a contract to convey the homestead, executed by the husband alone, cannot be made the basis of a decree for specific performance. That this is a correct statement of the law in the abstract we have no doubt. [See Bushnell v. Loomis,
The case of Bushnell v. Loomis, referred to, was also decided by the court en banc. We deem it unnecessary to review this question again and refer to the case of Haines v. Carroll, supra, as fully settling this question. It will not be necessary to discuss other points raised.
The judgment of the trial court is reversed and the cause remanded. Cooley and Bohling, CC., concur.
Addendum
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur. *972
