77 P. 71 | Cal. | 1904
Specific performance of an alleged contract for the exchange of certain real property. Defendants demurred to the third amended verified complaint for insufficiency of facts and for uncertainty. The court sustained the demurrer as to the first ground and overruled it as to the second. Plaintiffs declined to amend, and judgment passed for defendants, from which plaintiffs appeal.
Plaintiffs are husband and wife. The complaint alleges title in plaintiff Ada Ward Nason to certain described land situated in San Diego County, California, on or about March 1, *365 1901; that defendant Donald H. Lingle had title at the same time to certain described land in Jackson County, Missouri; that on or about March 8th, plaintiff Arthur Nason, "acting for and by and with the consent of his co-plaintiff, Ada Ward Nason, offered in writing to exchange said property in California for the said property of the defendant, Donald H. Lingle, situated in Missouri, and the said Lingle then and there accepted said proposition and agreed in writing to and with the said Arthur G. Nason, plaintiff herein, to make a good and sufficient deed for the said property in Missouri, conveying title thereto, subject to a mortgage of $2,000 thereon, and to accept a conveyance of the said property in California, and to give a mortgage for a like sum thereof [thereon?] as a part of the purchase price of the same"; that the said Arthur Nason "was orally authorized and empowered to make such contract for and in relation to said property in California by his co-plaintiff, Ada Ward Nason, and the proposition so made and accepted as aforesaid by the said Arthur G. Nason, was so made and accepted by and on behalf of the said co-plaintiff, Ada Ward Nason, and not for himself," and that said Donald Lingle knew that said Arthur was acting in behalf of said Ada. It is further alleged that "in pursuance of said contract plaintiffs executed a deed conveying a good and sufficient title to said property in California to said defendant Lingle and tendered the same to him and demanded of him a like deed of said property in Missouri, conveying a good title to plaintiff, Ada Nason; that the said tender and demand were made prior to the institution of this suit, and the said demand was made after the tender of said deed." (When plaintiffs' said deed was made and tendered and when said demand was made does not appear, further than that these facts occurred before the commencement of the suit.) The amended complaint was filed December 2, 1901. The date of filing the original or either of the other amended complaints does not appear. It is next alleged that prior to the commencement of the suit the said defendant Donald Lingle conveyed the said Missouri property to defendant Wildey (date of this conveyance is not stated); "that said conveyance was without consideration and executed voluntarily by the said Lingle with the design to hinder, delay, and defraud plaintiffs in any action they might *366 institute touching said property," and that said Wildey took said property in trust for said Lingle; "that thereafter, on the same day" (date not given), "the said Wildey and his wife executed an alleged conveyance without consideration, at the instance of said Donald H. Lingle of the said property to defendant Eunice N. Lingle, . . . the wife of said Donald H. Lingle, for the like purpose of hindering, delaying, and defrauding plaintiffs in said action."
When plaintiff Arthur Nason contracted to make the exchange the property was the separate property of his wife, Ada. The only authority he had to deal with it was oral, and in law was no authority at all. (Civ. Code, secs. 1624 (subd. 5), 2309;Salfield v. Sutter County etc. Co.,
The contract, therefore, was one that Lingle was under no legal obligation to recognize, and one the specific performance of which he could not enforce at the time he conveyed his property. It is true the conveyance was without consideration and to his wife, and at best was but a gift. But Lingle having no rights under the contract which could be *367 enforced by him on Mrs. Nason's property, and Nason having no authority to make the contract, and therefore no claim which he could enforce upon Lingle's property, the latter had the right to make a gift of his property to his wife.
Appellants claim that to take the case out of the statute of frauds the agreement need only be signed by the party to be charged (citing numerous cases); and that though as a general rule an agreement to be binding must be mutual, the rule applies only to the remedy, and not to the contract, it being sufficient if the remedy is mutual, and that the commencement of the action by the party who has not signed makes the remedy mutual. (CitingVassault v. Edwards,
In the recent case of Hay v. Mason,
It is advised that the judgment be affirmed.
Cooper, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the judgment is a affirmed. Shaw, J., Angellotti, J., Van Dyke, J.