100 N.W. 245 | N.D. | 1904
In October, 1898, one Erickson was the owner of the 160 acres of land involved in this suit. During that month he entered into an oral contract with one Helgebye, then plaintiff’s husband, by virtue of which contract said Erickson agreed to convey the land to Helgebye upon payment of $3,100, to be paid by turning over to Erickson one-half of the crops raised thereon each year. On deferred payments 6 per cent interest was also payable. Helgebye moved a house upon the land, valued at $100. Thereafter he, together with his wife and children, moved upon said land and made it their home until March, 1902. In October, 1899, Helgebye paid $93 in cash upon the contract. No other payment was ever made on the contract. Crops were raised on the land by Helgebye in 1899, 1900 and 1901, but no part of them was turned over to Erickson. During the year 1901 Helgebye was desirous of relieving himself from his contract, for the reason, as stated by him, that he was owing too much, and was unable to carry on the contract any longer. He and Erickson talked matters over, and Erickson was willing that he should sell his interest in the land, providing he got his pay for it. Helgebye and the defendant, Dammen, agreed upon terms, under which Dammen was to take the land at $3,500— a better price than Helgebye had agreed to pay for it. Helgebye also arranged with Erickson that he would take $2,800 for the land, in view of the fact that this $2,800 was to be cash or its equivalent. On October 7, 1901, Erickson conveyed the land by deed to Dam-men, and, in pursuance of Helgebye’s agreement with these parties, Erickson received his $2,800, partly in cash and the balance of $1,800 secured by mortgage. Helgebye received $700 in cash, and a receipt for $300 owed by him to Dammen. Mrs. Helgebye was at this time living on the land with her husband and children. She did not execute any papers, nor was she consulted as to the arrangement, so far as the evidence shows. It inferentially appears .from the evidence that she had knowledge of the transactions between her husband and these parties at the time, but on that question the evidence is not satisfactory, and is not made the subject of a finding by the trial court. The wife did not personally receive any of the $700, although some of it was used for the support of the family. Soon after the sale to Dammen, Helgebye went away, and remained away till winter, and returned in March, 1902; and soon thereafter the family left this land, and went to live on a rented place near to this one. Dammen did not force them to leave the premises, but indicated that
Plaintiff’s contention is that she is entitled to the land under the decree of divorce awarding it to her, that she did not join in any conveyance of the homestead to the defendant, and that the deed under which defendant claims the land is void, and conveyed no' title as against her homestead right. Defendant’s contention is that the contract under which the homestead was held was abandoned by the plaintiff’s husband, and the homestead voluntarily abandoned by the husband and wife, who left the same intending to abandon the same, and that they established a home upon other land.
That a wife may claim a homestead in land occupied by herself and husband as a home, when the husband has only an equitable right to such land, is conceded by counsel in this case. Any equitable ownership or title, together with possession and occupation as a home, is sufficient on which to successfully base a homestead exemption. Roby v. Bismarck Nat. Bank, 4 N. D. 156, 59 N. W. 719, 50 Am. St. Rep. 633; Myriclc v. Bill (Dak.) 37 N. W. 369; Allen v. Cadwell (Mich.) 20 N. W. 694; Wilder v. Haughey, 21 Minn. 101; Snodgrass v. Parks, 79 Cal. 55, 21 Pac. 429; Lessell v. Goodman, 97 Iowa, 681, 66 N. W. 917, 59 Am. St. Rep. 432; Enc. of Law (2d Ed.) p. 561, and cases cited: The statute defining a homestead
The evidence sustains the finding of intentional abandonment of the homestead. The wife does not deny that she had full knowledge of her husband’s desire to get rid of-his contract, and of his inability to comply with its terms, at the time 'that they moved to the adjoining land. She did not object to moving at any time. She made no claim that the land was her homestead until after the divorce was granted. These matters show that she intended to abandon the homestead, and are competent evidence bearing on that fact. None of the cases cited can be construed as holding that a homestead can be claimed as such after it has been voluntarily abandoned. The following authorities sustain the doctrine here laid down, and some of them go much further, and hold that the husband may, by changing his residence in good faith, deprive the wife of a homestead right in lands occupied by them, even if she continues to occupy them, and where the contract under which the homestead is held has not become forfeitable: Guiod v. Guiod, 14 Cal. 506, 76 Am. Dec. 440; Hand v. Winn, 52 Miss. 788; Burson v. Dow, 65 Ill. 146; Slavin v. Wheeler, 61 Tex. 654; Beranek v. Beranek (Wis.) 89 N. W. 146; Cumps v. Kiyo, 104 Wis. 656, 80 N. W. 937; Thompson on Homestead and Exemption, sections 276,
From what has been said, it follows that when the district court adjudged, in the divorce suit, that the plaintiff in this case be awarded the ownership of the land in question, the husband had no interest or ownership in such land, and that the decree vested no title to such land in the plaintiff. Neither she nor her husband had any right to the homestead when defendant received his deed, because the contract on which the homestead right was based was abandoned by the husband, and the homestead voluntarily abandoned by both husband and wife thereafter. If the evidence showed that there was a valid contract between Helgebye and Erickson when Erickson deeded to Dammen, and there had been no abandonment of the contract or of the homestead, still plaintiff could not recover under this complaint, nor under the evidence in the record. The defendant purchased the land in good faith, and without any fraud or fraudulent intent towards the plaintiff. Such was also the finding of the trial court. Fie paid full consideration for the contract. If the plaintiff had any rights under such contract, she could not have greater rights than her husband had; and 'in no event would her husband have the right to a deed of the land until he had fully complied with the contract, and paid for the land as therein specified. If Erickson had deeded to Dammen against Helgebye’s wish and without his consent, Helgebye would have had no right to have Erickson’s deed transferred to him as a matter of course. In that case Helgebye would lose no rights under his contract, but he could not demand a deed until he had complied with his contract. The plaintiff in this case asks a court of equity to set aside a deed taken in good faith, without offering to do equity by offering to comply with her husband’s contract as originally made, or as modified by the parties subsequently. In a similar action it is said, in Alexander v. Jackson, 92 Cal. 514, 28 Pac. 593, 27 Am. St. Rep. 158: “The respondent Mary was not, however, by virtue of such relation, entitled to demand that the plaintiff should immediately make a conveyance to her of the land. Although he held the land in trust for the defendants, as above stated, still it was subject in his hands to the same superior claim for the unpaid .amount of the purchase money that it was in the hands of Crocker, and, until that claim
The judgment is affirmed.