124 P. 984 | Okla. | 1912
Mosby and Swartz, the defendants in error, plaintiffs below, brought this action, seeking to enjoin the defendants (plaintiffs in error) from violating a contract between Mosby and Swartz and W. H. Kelly, the ancestor of the defendants. By this contract Kelly conveyed to Mosby and Swartz a right of way over the west side of lot 10, block 36, in the town of Frederick, to be used only as a foot passageway for a term of ten years, so that they might have an entrance to the rear of their building then being constructed on the adjoining lot. Upon Kelly's death, the property descended to his wife and children. Some of the children conveyed their interest to their mother, and the defendant Douglas acquired some interest in the property. Pursuant to this contract, the plaintiffs had constructed their building, leaving doors and windows at the rear end, facing this passageway, and constituting the only means of ingress and egress. The defendants were on the point *220 of erecting a permanent building on this passageway, and thereby destroying the ingress and egress of the plaintiffs. The action was brought to restrain its construction as a breach of the contract.
The first question argued is that, as the defendants were solvent and able to respond in damages, there was an adequate remedy at law, and therefore that the injunction would not lie. This, however, is not the test of whether equity will intervene to specifically enforce a contract concerning real estate, or restrain the breach of a restrictive condition concerning real estate. In such cases it is assumed that there is no adequate remedy at law, and a contract for the sale of real estate will be specifically performed by a court of equity, or the violation of an agreement imposing a restrictive condition upon the use of real estate will be enjoined, regardless of the solvency of the defendants or the adequacy of damages.Lloyd v. London, etc., Ry. Co., 2 Gex. J. S. 568, 46 Eng. Reprint, 496; Bowes v. Law, L. R., 9 Eq. 636; Rankin v.Huskisson, 4 Sim. 13, 58 Eng. Reprint, 6; Schwoerer v. BoylstonMarket Ass'n,
It is next argued by the defendants that the contract with their ancestors, under which Mosby and Swartz, the plaintiffs, claimed, was invalid, because it affected an interest in the homestead, and the wife of Mr. Kelly did not join in the execution thereof. As the contract conveyed a right of way for a period *221 of ten years, it created an easement, and therefore conveyed an interest in the real estate. Comp. Laws 1909, secs. 7238, 7239, 7241, and 7243. The contract was executed September 29, 1906, affected the homestead, and was not joined in by the wife of the owner. The statute affecting conveyances of the homestead in force at the time was as follows (Comp. Laws 1909, sec. 1187; Wilson's Rev. Ann. St. 1903, sec. 880; Sess. Laws 1901, p. 78):
"No deed, mortgage or other conveyance relating to real estate or any interest therein, other than for a lease for a period not to exceed one year, shall be valid until reduced to writing and subscribed by the grantors; and no deed, mortgage or contract relating to the homestead exempt by law, except a lease for a period not exceeding one year, shall be valid unless in writing and subscribed by both husband and wife, where both are living and not divorced, except to the extent hereinafter provided."
As this contract conveyed an interest in the real estate, by this section it is not "valid," because not subscribed by the wife, and it is now attacked by the wife and children; the husband being dead. The first inquiry is whether, as against the wife, the instrument was valid at the time of its execution, and, second, whether, if then invalid, the provisions of the Constitution subsequently adopted had the effect to validate it. In Hall v. Powell,
"Standing alone, said section 880 (Wilson's Rev. Ann. St. 1903), which provides 'no deed * * * relating to the homestead exempt by law, * * * shall be valid unless in writing and subscribed by both husband and wife, if both are living and not divorced, except to the extent hereinafter provided' (Jordan and wife so living), would render the deed from Laura S. Jordan to Anna R. Cavett void, were it not thereafter further provided in section 883 (section 882 applying only to cases of abandonment), in effect, that, 'if the wife shall make any deed * * * to the homestead without being joined therein by the husband she shall be concluded thereby, and the same can only be avoided by the husband.' * * *"
It will thus be seen that the rule there laid down is in harmony with the conclusion we here announce, as in this quotation it is recognized that that statute would render the deed from *223 Laura S. Jordan to Anna R. Cavett void, were it not provided subsequently that it should be good except as against her husband. Applying that principle here, it follows that this instrument, while good as against Mr. Kelly, is bad as against Mrs. Kelly, she not having joined in it, and, as she is the one making the attack, the subsequent statute creating the exception does not apply.
It is next argued that the subsequent adoption of article 12, sec, 1, of the Constitution (Williams, Const. Okla., sec. 302), has the effect of validating this instrument, because it appears in this case that the homestead is worth in excess of $5,000, whereas that section limits the exemption to that amount. Section 1, art. 12, is as follows:
"The homestead of any family in this state, not within any city, town or village, shall consist of not more than one hundred and sixty acres of land, which may be in one or more parcels, to be selected by the owner. The homestead within any city, town or village, owned and occupied as a residence only, shall consist of not exceeding one acre of land, to be selected by the owner: Provided, that the same shall not exceed in value the sum of five thousand dollars, and in no event shall the homestead be reduced to less than one-quarter of an acre, without regard to value: And provided further, that in case said homestead is used for both residence and business purposes, the homestead interests therein shall not exceed in value the sum of five thousand dollars: Provided, that nothing in the laws of the United States, or any treaties with the Indian Tribes in the state, shall deprive any Indian or other allottee of the benefit of the homestead and exemption laws of this state: And provided further, that any temporary renting of the homestead shall not change the character of the same when no other homestead has been acquired."
It will be observed that this is not an action to enforce a debt against the homestead property, and that, therefore, the right to sell the homestead so as to reach the excess over $5,000 is not involved. This is an action to enjoin Mrs. Kelly, the nonjoining spouse, and the heirs of Mr. Kelly from erecting improvements upon a portion of this homestead, and is necessarily based upon the validity of the contract. Mrs. Kelly and the heirs defend upon the ground that the contract was invalid, because she did not join in it, and that the entire lot constitutes a part of the *224 homestead, and that, therefore, as the contract conveys an interest in the homestead it is invalid. The part of the homestead over which the right of way is granted has never been severed from the remaining part. It cannot be said that the part of the homestead thus affected is the excess in value over $5,000, and we cannot hold that the contract affects the excess more than we can hold that it affects the $5,000 valuation. In the nature of things a homestead is an entirety, and the wife's right to its use and occupation is coextensive with its boundaries. Whatever right the husband may have over the excess is an entire right, and not one capable of subdivision. If the homestead exceeds $5,000 in value, it cannot be said that the husband might sell the back yard, or that he might sell the front yard, or that he might sell the southwest room of the house. If this is true, then it follows that he cannot sell an interest in any part of the yard, as would be the case here if we should adopt the view of the plaintiffs.
There is still another point of view which prevents the plaintiffs from maintaining their position. That is, that the instrument, by virtue of the statute in force at the time it was executed, was invalid, and that a subsequent abandonment even of the homestead would not validate it. It is manifest that the constitutional provision referred to, by limiting the value of the homestead, does not have any greater effect than the voluntary abandonment of the homestead would have had, and the weight of authority is to the effect that, where the conveyance by one spouse of the homestead is void at the time of its execution, the subsequent abandonment of the homestead will not validate the conveyance. This doctrine is laid down inHall v. Powell, supra,
"And since the special findings of the court below, supported by evidence, show that the wife did not join in the mortgage, it was void from the beginning; and the subsequent abandonment, if, indeed, it was Oren Powells's intention never to return to the place, could have no effect to validate the mortgage or entitle the mortgagee to any remedy under it against the land included therein. Ott v. Sprague,
This is in accord with the weight of authority on the subject. Rogers v. Day,
The plaintiffs pleaded an estoppel against Mrs. Kelly, but the court's findings of fact do not sustain the plea.
We think the judgment of the trial court should be reversed, and judgment rendered for the plaintiffs in error.
By the Court: It is so ordered.