Two questions seem to be raised in this case: First, whether or not damages for loss of the bargain can be recovered against one who, without the assent of his wife, makes an executory contract for the sale of his family homestead, which the wife subsequently refuses to carry out; second, if the contract is valid and damages recoverable, when was it broken, and at what date did the value of the land, less the purchase price, become the index of the value of the buyer’s bargain, and consequently of the amount of his damage? Of course the second question is of no importance if the first is decided in defendant’s favor. The action is for damages upon an executory agreement made June 23, 1899, by which Meek agreed to convey to Lange the northwest quarter of section 8, town 6, range 5 west, in consideration of $1,000, — $250 cash in hand and the rest on or before January 1, 1900, Avhen deed was to be made, and possession was to be given March 1, 1900. Meek was a married man, with a family, residing on the premises in question. The plaintiff set out his contract, alleging tender of performance on his part; says that on or about August 1, 1899, he received from defendant the following letter:
“W. O. Lange, Sutton, Sebr. — Dear Sir: You are hereby notified that my wife Lizzie Meek declines and refuses to join in the conveyance for the sale of our place, as follows: The N. W. | sec. No. 8, Sheridan township, Clay county, Nebr. That I hereby notify you that I will refuse to comply with the terms of the contract entered into between you and myself for the sale of said land. That I did on June 29th, 1899, tender back to Charles Mo'on, your agent, the certificates of deposit you gave to me as part
He claimed general damages of $700, and special damages of $299 more. Defendant admitted ownership of the land and execution of the agreement. He alleged the homestead character of the premises, the making of the contract in good faith, and the refusal of his wife to execute the conveyance, without influence or request on his part, and against his wishes. This matter was entirely striken out of the answer by the sustaining of a demurrer to the paragraphs containing it, and the evidence of the homestead character of the premises, and of the defendant’s good faith in making the contract, was excluded by the court and verdict and judgment rendered for $250.
A great many errors are assigned in the petition which the defendant brings to reverse this judgment, but they all bring up only the two questions, namely, the extent to which the homestead character of the premises constituted a defense to the action, and whether the breach of the contract occurred on June 29 or August 1, and therefore whether the evidence of the value of the land should have been directed to the former date or to the latter. The plaintiff in error,^ defendant below, contends, in the first place, that a contract by the husband for an alienation of the homestead was not only unenforceable by way of specific performance, as was held in Violet v. Rose, 39 Nebr., 660, Larson v. Butts, 22 Nebr., 370, and Clarke v. Koenig, 36 Nebr., 572, but that it was also unenforceable in an action for damages for non-performance. It is admitted that there is no Nebraska case so holding in exact terms; but it is claimed that the totally void character of such contracts is sufficiently established by the above cases, with Prout v. Burke, 51 Nebr., 24, and Horbach v. Tyrrell, 48 Nebr., 514. The doctrine that the contract was totally void, and would support no action for damages, is certainly supported by text-writers and many decisions.
It is urged that the contract would have been binding on the plaintiff in this present case, and, if the land had declined in value, on a tender of deed by defendant and wife, he could have been compelled to pay the price. This result does not follow unless the contract is held good in part. If the holdings of the courts of Kansas, Iowa and Minnesota and our own, as far as they have gone, that the contract is totally null unless executed with due formality by the wife, are followed,' then both parties are released, unless both are held to the full performance. It seems clear that justice is much more certain to be reached under this policy, than by holding the contract good for some purposes and as to some parties, and void as to others. It does not seem that anything would be gained by holding a contract which is entirely invalid for the effecting of its main purpose good for any other. In the present case the only damages alloAved by the trial court Avere damages for the loss of a bargain. As the premises in question were openly occupied at the time as a family homestead, there was presumptive knowledge on the plaintiff’s part of that fact. Plaintiff must, of course, be presumed to be aware of the homestead laAV, and the contract must be held to have been made with such law in view. To allow plaintiff damages for loss of his bargain in this case would be to allow him damages for the loss of something which he never had. As a matter of fact, the agreement that he made Avas Aroid, and he Avas chargeable with notice of that fact. We are constrained to think that the learned district court erred in striking out as a defense the fact that the premises Avere the homestead of defendant’s family. It was found by the jury that the value of the farm was in
No good purpose would be served by any review of the evidence as to whether the refusal to carry out the contract was on June 29 or August 1.
It is recommended that the judgment of the district court be reversed, and the cause remanded for further proceedings according to law.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district cou_o is reversed and
Reversed and remanded.
Note. — Ewem/ption.—Homestead.—The common law only allowed as exempt the necessary wearing apparel. It was even held: “upon a fieri facias the sheriff may take anything hut wearing' clothes; nay, if the party hath two gowns, he may take one of them.” Hardistey and Barney, Term of St. Hilary, Anno 8 William III., in Banco Regis, Comberbach’s Reports, 356. By the Mosaic law, the upper millstone and the nether were exempt from a pledge. So far as the writer is informed, Moses was the author of the first exemption law. Homestead exemptions exist in every state in the union. — W. F. B.
86 Am. Deo., 623.
76 Am. Dee., 76.