75 Neb. 770 | Neb. | 1906
On and prior to the 9th day of October, 1902, and continuously since that date, the plaintiff and appellant was and has been the owner of a tract of 160 acres of land in Thayer county in this state, and in the actual occupation and enjoyment of the same, together with his family, as a homestead. During all said time he has been and now is the owner of two additional tracts, of 80 acres each, adjacent to the homestead, and occupied and cultivated in common therewith. On the day named he entered into a written agreement with the defendant, appellee, by which he undertook to convey these lands, subject to a mortgage incumbrance of |5,000 upon the whole of them, in consideration of a conveyance to him by the defendant of certain lands and personal property situated in the state of Colorado and the payment of a sum in cash. His
The price fixed in the contract upon the Thayer county land is not disputed by any one to be adequate to its value, and it has repeatedly been held by this court, so that the doctrine must now be regarded as settled, that a contract for the sale of a homestead, entered into by one spouse alone, is utterly void, not only to the extent that it cannot be specifically enforced, but that a breach of it does not furnish a foundation for an action for damages. Clarke v. Koenig, 36 Neb. 572; Meek v. Lange, 65 Neb. 783; Teske v. Dittberner, 70 Neb. 544. In the last of these cases there is a very elaborate and exhaustive review of the authorities and of the principles involved, by the former Chief Justice Holcomb, and the doctrine is emphatically reaffirmed that such a contract is void as to the whole homestead tract, as well as to the reversionary interest, and this in both instancés, without regard to value, as was first also announced in the first of the above cited cases. That this conclusion is sound and essential to the protection and preservation of the homestead right and is in accordance with the manifest spirit, if not the strict letter, of the statute, Ave have not the least doubt, so that Ave are constrained to hold that the contract in suit, in so far as it treats of the homestead tract of the plaintiff, is AATholly void.
The value of the plaintiff’s homestead, separate from that of the other half of his farm, is not disclosed either by the agreement of the parties or by the evidence, but as the dwelling house and other buildings are situated thereon, it may, we think, be fairly assumed to be worth at least half the stipulated purchase price, so that, if the plaintiff had performed his contract to the full extent Qf
It has been urged that the plaintiff cannot be granted the relief he prays because the petition, although alleging the homestead character of a part of the Thayer county land at the time it was filed, does not aver that it possessed that character at the time the contract was made. But the pleading was not assailed by motion or demurrer, and the facts as above narrated were proved without dispute or objection. The defendant does not appear to have been misled to his prejudice or, indeed, misled at all, so that sections 138, 139 and 144 of the code are precisely applicable. The trial here is de novo, and we think this court may properly disregard the variance, but, if the cause should be remanded, the plaintiff should have leave to amend.
Judgment accordingly. -