190 Wis. 387 | Wis. | 1926
Lead Opinion
The defendant husband asserted, as against plaintiff’s demand for specific performance of the alleged oral agreement for interchange of their respective farms, that there was no completed agreement; that there was no writing or memoranda thereof in accordance with sec. 240.08 (formerly sec. 2304), Stats.; that the real estate was the homestead and not conveyed by the husband and wife in accordance wfith sec. 235.01 (formerly sec. 2203) ; the defendant wife asserted the same grounds and also that she had an inchoate dower interest which has never been barred pursuant to sec. 235.27 (formerly sec. 2222).
The trial court reluctantly denied plaintiff any relief upon the sole ground, as stated in his opinion and as embodied in the findings, that the absence of any writing signed by the defendant wife as to the homestead under said sec. 235.01 was an absolute bar preventing specific performance or the giving of damages.
The equities, under the facts as found by the trial court, are manifestly in plaintiff’s favor as against both the defendants. There was a complete exchange of possession of the respective real estates in apparent acquiescence upon what is here conceded to be an invalid oral agreement, found by the court to have been made between the parties; there was a continued occupancy by the respective parties of the exchanged properties as their new homesteads for months thereafter without protest; there was actual loss sustained by plaintiff in his sale of personal property in reliance upon such agreement; there were improvements made by plaintiff upon the property which he took from defendant; there
The legislative creation of a homestead exemption, pursuant to the express direction of sec. 17, art. I, Const., has been very liberal in form and liberally construed .and enforced at all times, and the amendments thereto have been all for the extending and broadening of such exemption except in the amendment by ch. 269, Laws of 1901, inserting the limitation of value to $5,000 (that limitation not applying, however, as between widow and heirs of her husband, secs. 272.22 and 237.02). The legislative liberality towards the homestead is well illustrated by the fact that until such amendment there had been no limit set in value, although the possibility of abuses under it was pointed out in both the majority and dissenting opinions in Phelps v. Rooney, 9 Wis. 70, decided in 1859.
Though it has been held that, so far as the wife is concerned, her interest in a homestead, held by the husband, is no more than the complete and absolute power of veto upon any attempt by him to convey -without her written consent (Ferguson v. Mason, 60 Wis. 377, 387, 19 N. W. 420; Weston v. Weston, 46 Wis. 130, 134, 49 N. W. 834; Cumps v. Kiyo, 104 Wis. 656, 661, 80 N. W. 937; Mash v. Bloom, 126 Wis. 385, 389, 105 N. W. 831), 3ret that her consent and signature is imperative, even though she lived apart from him at the time or though the conveyance is given
Although the homestead is for the benefit of the family, yet as between the husband and the wife it is the husband who has the right of selection and the power of abandonment. Warsco v. Oshkosh S. & T. Co., ante, p. 87, 208 N. W. 886; Beranek v. Beranek, 113 Wis. 272, 278, 89 N. W. 146; Blatchley v. Dakota L. & C. Co. 26 N. Dak. 532, 145 N. W. 95; Stewart v. Pritchard, 101 Ark. 101, 141 S. W. 505, 37 L. R. A. n. s. 807, with note; 13 Ruling Case Law, 557; 29 Corp. Jur. 951.
In this case there was not only a complete abandonment by defendants of the former homestead; a surrender of the keys and possession; but they occupy the other farm dwelling as their newly selected homestead, title to which is absolutely secured to them by plaintiff’s pleading, his deed and tender to defendants. All this is ample to warrant the conclusion that defendants abandoned the old and selected the new homestead, and for neither of these two separate proceedings are written formalities required. Godfrey v. Thornton, 46 Wis. 677, 683, 1 N. W. 362; Pierce v. Gibson, 108 Tex. 62, 184 S. W. 502, 1 A. L. R. 1675; Stotts v. Stotts, 198 Mich. 605, 618, 165 N. W. 761; Blodgett v. Lawrence, 90 Vt. 269, 274, 97 Atl. 666.
Voluntarily, therefore, in this case, a family gives up and abandons one homestead and selects and occupies another; having done so they have lost the right to assert a homestead privilege in the former. Once abandoned it is as though it never existed. The homestead statute itself
Although the constitutional and legislative provisions for such exemption have been steadfastly upheld, however far reaching the results may seem in many instances to be found in the decisions, nevertheless the right in the wife to invoke the protection of the statutes concerning the establishment of or alienation of interests in the homestead is not so absolute and unqualified as to be beyond recognized and well established equitable doctrine.
The protection of the homestead exemption cannot be used as a shield to prevent the recovery of trust funds put into its purchase or improvement (Warsco v. Oshkosh S. & T. Co., ante, p. 87, 208 N. W. 886, supra); neither can it or ought it prevent the application of the equitable doctrine of estoppel where in reliance upon the acts, or omissions to act, by both husband and wife the other party to the transaction has been injured, and when, after substantial performance by the one party, the husband and wife, of either of them, attempt to assert by their pleadings reliance upon such drastic statutory regulations.
That equitable estoppel may affect homestead and dower rights is generally recognized. 10 Ruling Case Law, 749; 13 Ruling Case Law, 662; 29 Corp. Jur. 958, 959. A case
This Grice Case, supra, though designated in a dissent (p. 472) as being “an effectual rape of the statute,” is nevertheless recognized as stating the true rule in Feltham v. Blunck, 34 Idaho, 1, 198 Pac. 763, 766, and is also discussed in Pagel v. Tietje, 193 Iowa, 467, 186 N. W. 938; but there the facts presented did not warrant its application. It is also followed and many other cases cited to the same point in Brusha v. Board of Education, 41 Okla. 595, 139 Pac. 298, L. R. A. 1916 C, 233. This latter case comments upon the substantial changes made for present-day consideration of such questions by the Oklahoma statutes removing the common-law disabilities of the married woman, and suggests that if she be given equal rights with man she should be charged with equal duties. Their legislation in this regard is quite similar to ours, and the results reached here under such disability-removing statutes may be illustrated by the decision in First Wis. Nat. Bank v. John, 179 Wis. 117, 190 N. W. 822, as to liability as an accommodation indorser, and Wait v. Pierce, 191 Wis. 202, 209 N. W. 475, 210 N. W, 822, as to the right of the wife to recover from the husband for personal injuries.
The trial court’s conclusion was placed upon his construction of late decisions of this court strictly enforcing the provisions of such statute in favor of the rights of the wife, such as Rosenthal v. Pleck, 166 Wis. 598, 166 N. W. 445, in which specific performance or damages were denied for failure by the husband to perform his written contract to exchange his real estate, part of which was his homestead, his wife refusing to join, the court stating that the contract, being void by statute, was beyond the power of equity to reform and that it could not be made the basis of an action for damages; Helander v. Wogensen, 179 Wis. 520, 191 N. W. 964, based upon the Rosenthal Case, supra, holding a written contract by husband alone, involving the homestead and personal property, ineffectual as the basis for a breach of contract action concerning the personal property; and Home v. Pleshek, 187 Wis. 55, 203 N. W. 910, holding a lease of homestead property by the husband alone and possession taken, to be void at the time of its execution and delivery and not to be made valid by the subsequent voluntary offer of the wife, unaccepted by the lessee, to then sign, and further holding that a guarantor of such' lease is not liable for the rent. We deem none of these decisions, presenting as they do substantially different facts, controlling in defendants’ favor.
We find nothing contrary to the application of this doctrine here from what is said in Cumps v. Kiyo, 104 Wis. 656, 662, 80 N. W. 937, where, in general language relating to the policy of this statute, it is stated that it is not to “give the wife a mere personal right for her personal benefit which she may waive, or be estopped by her conduct from
In Law v. Butler, 44 Minn. 482, 47 N. W. 53, it was held that no act of a wife (unless amounting to an estoppel) except affixing her signature could make an assignment of an interest in a homestead valid; and further, that to create an estoppel the facts must operate as to both husband and wife, and that under the facts there presented the wife was not estopped. But in Bullock v. Miley, 133 Minn. 261, 158 N. W. 244, where the wife had left the homestead more than a year before the making of the conveyance by the husband and never thereafter returned, subsequently making a deed to the same purchaser and permitting him and his grantee to occupy and improve it and subsequently obtaining a divorce, it was held that she divested herself of all
We do not deem as pertinent or to be given weight here such cases as Collins v. Boyett, 87 Tenn. 334, 10 S. W. 512, where it was held that a deed by the husband alone and his subsequent removal with his wife, but no other homestead acquired, did not defeat her right; Cummings v. Busby, 62 Miss. 195, 197, holding that a subsequent removal cannot validate a prior invalid deed by the husband, and Welch v. Rice, 31 Tex. 688, to the same point; Martin v. Harrington, 73 Vt. 193, 50 Atl. 1074, that death of the wife does not validate prior deed by the husband alone; and we cannot agree with the general proposition stated in Ellingwood v. Ellingwood, 91 Vt. 134, 99 Atl. 781, to the effect that equity cannot give force to a deed declared void by statute.
The broad and effective power of equity in applying its doctrine of estoppel to take title to land from one and vest it in another and to stay the operation of the rules of law is fully discussed in Knauf & Tesch Co. v. Elkhart Lake S. & G. Co. 153 Wis. 306, 315, 141 N. W. 701, and its application to the facts there presented makes its application here to a similar end well supported. See, also, Kimball v. Baker L. & T. Co. 152 Wis. 441, 451, 140 N. W. 47; Booher v. Slathar, 167 Wis. 196, 201, 167 N. W. 261. In its application it is not limited to facts, situations, representations, or concealments as of the time of the original transaction, but often necessarily rests upon subsequent conduct relied upon by the opposite party to his damage. Nor is it presented here in a situation where there was lack of power on the part of the wife to act at all in the original transaction.
What has. been said above relates more particularly to equitable estoppel being asserted and maintained against
Conceding that up until the exchange of the two farms on December 6th the agreement between the parties could not have been enforced by the plaintiff because, being oral, it was unenforceable, yet after the exchange of possession and the acts by the respective parties in'reliance upon and in accordance with the contract for such exchange, there was clearly such possession and part performance as would take the oral contract out of the provisions of the statute of frauds. Sec. 240.08 (formerly sec. 2304); sec. 240.09 (formerly sec. 2305); Henrikson v. Henrikson, 143 Wis. 314, 319, 127 N. W. 962; Papenthien v. Coerper, 184 Wis. 156, 161, 198 N. W. 391; Booher v. Slathar, 167 Wis. 196, 201, 167 N. W. 261.
It is suggested that the understanding that the deeds were not to be executed until after the ñre loss of December 21st was adjusted is such conduct as ought to prevent the plaintiff obtaining equitable relief. Under the testimony, however, the situation appears to have been one known to the agent for the insurance company, and it was pursuant to
Under the facts as found, therefore, and the conclusions we have reached as to the law, the plaintiff, having tendered his conveyance, is entitled to have the conveyance to him of the property formerly owned by the defendants as prayed and the payment of the agreed sum of $2,250, or in lieu of such conveyance a judgment to be entered to the same effect.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment as directed. _
Dissenting Opinion
{dissenting). If this decision does not smother the statute requiring the wife to join in a conveyance of the homestead, then that statute has unusual vitality. There is a striking contrast between the tone of the decision in this case and that of Rosenthal v. Pleck, 166 Wis. 598, 166 N. W. 445. It is difficult to appreciate that the two decisions were voiced by the same court. In Rosenthal v. Pleck the decision is strong, virile, and leaves no doubt of the then attitude of this court with reference to the statute under consideration. The present decision points the way to a practical nullification of this statute. Under the present decision the husband may barter away a comfortable homestead, install his family in a shack on a back alley, and upon the establishment of such second homestead— his wife accompanying him in obedience to her plain marital duty, — the alienation of the comfortable homestead becomes valid and the husband may dissipate the proceeds thereof in satisfaction of his most profligate desires. Who
The purpose of such statutes is to protect the home from the improvidence of the husband, thereby promoting the welfare of the entire family as well as the general social welfare. The public policy embodied in these statutes is founded on deep-seated and widespread sentiment, as evidenced by the fact that such statutes are to be found in practically every state of the Union. From time to time courts, in an attempt to meet hard situations, have whittled away the statutes by the application of equitable principles, only to be met by stronger and more definite legislative declarations in an attempt to make the legislative purpose still more plain. Such an instance is frankly acknowledged in Rosenthal v. Pleck, supra. Henceforth a husband in this state will have little difficulty in- doing what he pleases with the homestead. Nothing short of a family disruption can prevent his effectual alienation thereof if this decision is to stand.
I agree that here and there are to be found judicial decisions which seem to support 'the conclusion reached in the majority opinion. But such scattering decisions as may be found to support the conclusion of the court are completely overshadowed by the great weight of authority, and wither when exposed to the searchlight of reason. A consideration of the notes to be found in 95 Am. St. Rep. 921 and 12 Am. St. Rep. 683 demonstrates the proof of the assertion that the conclusion of the court is contrary to the great weight of authority.
The first ground upon which the conclusion of the court rests is that the removal from the homestead by the defendants constituted an abandonment’ thereof which rendered the contract entered into between the defendant husband and the plaintiff prior to such removal a valid contract. This conclusion is palpably illogical. The contract sought
“The deed of trust executed by Busby without the joinder of his wife, as required by the statute, was not valid, and its invalidity was not cured by the subsequent removal from the homestead, whether such removal was temporary or permanent. The validity or invalidity of the deed of trust was determinable by the conditions existing when it was executed, and not by what occurred afterward.”
It has been held that the husband’s sole deed of the homestead is not validated by the subsequent death of the wife leaving him without children. Martin v. Harrington, 73 Vt. 193, 50 Atl. 1074. Nor by a subsequent divorce. Alt v. Banholzer, 39 Minn. 511, 29 N. W. 674. This court so held in most unmistakable language in Herron v. Knapp, Stout & Co. Company, 72 Wis. 553, at p. 556 (40 N. W. 149), where it was said:
“It would be a violation of all rules of construction to hold that a mortgage by the husband of the homestead, without the signature of the wife to the same, was valid*402 after the homestead right had expired. This would be pure legislation, importing into the statute important words which the legislature did not see fit to use.”
For further authorities upon this subject see note in 95 Am. St. Rep. at p. 920.
I confess I am unable to allow the logic which leads to the conclusion that a void contract for the alienation of a homestead becomes valid if and when the homestead has been abandoned. Whether the contract is valid depends upon conditions existing when it is made. It cannot automatically become a valid contract by the subsequent removal of impediments to its validity existing at the time of its execution.
It is next said that the defendants are estopped to challenge the validity of the contract. This also finds support in scattering judicial decisions, but is clearly against the great weight of authority, is utterly unsupported by reason, and has been expressly repudiated by this court. It is a general rule that a transaction which is void by law cannot be purged of its infirmity by means of an estoppel. 10 Ruling Case Law, 801, and cases cited. See, also, long list of cases cited in support of the same proposition in 2 Supp. to Ruling Case Law at p. 1078. This court has expressly held that a Sunday contract cannot be given life upon the principles of estoppel. Gist v. Johnson-Carey Co. 158 Wis. 188, 147 N. W. 1079. It is fundamental that equity follows the law, and equitable principles should not be invoked to nullify the law. The application of the doctrine of estoppel to' make valid a contract which the legislature has declared void is a clear misuse of, equitable power. It exalts the court above the legislature in the law-making field. It makes the court the supreme arbiter of public policy, which is contrary to the fundamental principles of our government. The decisions applying the doctrine of es-toppel for the purpose of rendering valid contracts declared
It is well understood that all statutes at times work seeming injustice. It may be conceded that the decision in this case works justice as between the immediate parties, but it does so at tremendous sacrifice. It is not the province of courts to bend and warp statutes to fit particular situations, nor to apply equitable principles which practically nullify legislative enactments. The decision in this case is bound to give rise to much confusion concerning this subject. It is far better for the jurisprudence of the state that the plain statutory rule be enforced with the same rigor and definiteness that it was enforced in Rosenthal v. Pleck, supra.
While the great weight of authority holds that the doctrine of estoppel cannot be applied in cases such as this, nowhere is that more forcibly declared than by our own court in Cumps v. Kiyo, 104 Wis. 656, at p. 662 (80 N. W. 937), where it is said:
“If it should be held that the homestead right is a mere privilege which the wife may waive, or which may be lost under the rules of equitable estoppel, a very efficient way would be open to evade and nullify the statute. Such right is placed high above the reach of any such dangers by the absolute disability to alienate the homestead in an}’- manner, except by a joint conveyance of some kind, signed by the husband and wife. The disability of the husband to otherwise convey the homestead is as complete as if it were not alienable at all, and of the wife to otherwise consent to such alienation, as if she were a minor.”
But what is there in this case upon which an estoppel in pais can be predicated — at least on the part of the wife? It is conceded in the opinion of the court that it is the right of the husband to fix the homestead, and that it is the duty of the wife to follow him. Where is the conduct on the
Nor can I concur in the view that the defendant Ida Groth has estopped herself from asserting her inchoate right of dower in the premises, a conveyance of which is sought. The statute (sec. 233.01) defines the right of dower. This right may be barred, first, by jointure (sec. 233.09) ; and second, by the wife joining with her husband in a conveyance duly executed and acknowledged by her in the manner prescribed by law (sec. 235.27). I find no case in which it is held that the right of dower may be barred by estoppel w-here the wife is not estopped by her conduct to deny the relation of husband and wife. This was the basis of the holding in H. W. Wright L. Co. v. McCord, 145 Wis. 93, 128 N. W. 873. In that case the wife during many years and until the death of the husband allowed to go unchallenged the husband’s claim that he had procured a divorce, and in silence permitted him to hold out as his lawful wife another woman whom he had publicly married; she knew that there was no valid divorce, and knew or had good reason to believe that he was engaged in large business transactions and dealing daily with people who in good faith accepted his second marriage as valid; that conveyances were being signed by the reputed wife and being accepted by the grantees, and she voluntarily and intentionally withheld any objection thereto and did nothing to in any way put innocent purchasers upon inquiry. The case of Godfrey v. Thornton, 46 Wis. 677, 1 N. W. 362, has no remote application to the facts in this case. Rosen v. Tackett, 222 Mich. 673, 193 N. W. 192, 30 A. L. R. 939, involves the effect of a deed given by a widow who was at
I am authorized to state that Mr. Justice Rosenberry and Mr. Justice Doerfler concur in these views.