63 Neb. 734 | Neb. | 1902
Rehearing of case which appears in 62 Nebr., 153. A rehearing was asked as to two questions: First, whether plaintiff is bound by the allegation in her reply that the premises in question were the family homestead, when the contract sought to be specifically enforced was made, and is to be treated as if it appeared among the allegations of her petition in determining whether or not the relief allowed by the trial court is secundum allegata et probata; and, second, whether or not, granting that plaintiff was entitled to the decree, the amount is excessive.
With regard to the first question, the conclusion is reached in the original opinion that because, by section 134
The ansAver of Anderson claims, first, a subsequent oral agreement, accompanying the payment of the second $50, that, in case he failed to make subsequent payments, he should forfeit the $100 paid and the contract to be at an end; that he elected to rescind, and plaintiff accepted the rescission, admitted her husband’s failure to deed when demand was made, and treated the premises as owner by removing improvements and felling trees. He also alleges the sale of the land pending this action upon the prior mortgage, and that thereby plaintiff has permitted it to become impossible for her to carry out her contract. He has some allegations as to judgment liens, but they are too indefinite to consider, and, in vieAV of the proof offered as to them, the trial court seems to have been entirely right in refusing him permission to amend.
Subsequently the guardian ad litem for the minor defendants filed his answer and cross-bill, making substantially the same allegations as the plaintiff, to Avhich Anderson filed the same ansAver as he had done to plaintiff’s
It is claimed that the allegations of this reply are not binding upon the minor codefendants. To this it must be said that the decree is in favor of the plaintiff, and calls for a recovery by her and on behalf of the estate. She is the accredited representative of the estate, and her allegations must be held to bind it as far as they go. The petition and reply, taken together, as above stated, do not disclose a valid contract for the sale of these premises. There is neither allegation nor proof of any performance of the contract, partial or complete, on the part of the vendors. There is not even an allegation of tender of performance on their part. There is no aider by reason of the statements of the answer. The question remains, then, whether, in the absence of such performance or tender of-performance by those not bound, the right of specific performance accrues to them upon this contract where there is no mutuality. The contract is unenforceable as against the vendors, so far as any allegations, or for that matter
In case, however, of a contract to sell a homestead, it would seem that the rule Avhich says that where a contract was intended to bind both parties, and for any reason one of them is not bound, he can not compel specific performance by the other should be applied. 3 Pomeroy, Equity Jurisprudence, sec. 1405, note. A minor can no more enforce specifically his contract, than it can be specifically enforced against him. After he has come of age, and has ratified it, no such disability remains. In the case of an agreement as to a homestead, not executed in accordance Avith the statute, the institution of an action would be no waiver of the statute’s protection. There would be nothing to prevent a dismissal, and a claim of the immunity from obligation to go on, at any stage of the proceedings. To allow an action for specific performance to proceed under such circumstances would be plainly inequitable.
A somewhat careful search of cases cited by counsel and of the text-books and digests.on this subject, has failed to show us a case where the right to enforce against the vendee a contract for sale of a homestead has been considered. The right to enforce it against the seller, when not duly executed by both husband and wife, has been denied in this state. Larson v. Butts, 22 Nebr., 370; Hyde v. McConnell, 42 Nebr., 50, semble. In this case, too, the right of the administratrix to waive the homestead claim
It is with much hesitation that an objection which was not made to the lower court, viz., that it appears from the record by plaintiffs allegations that the premises are a homestead, that it does not appear that the contract of sale was acknowledged and enforceable against the vendors, and therefore it is not shoAvn to be enforceable against the vendee, is sustained. It seems, hoAvever, firmly established that an objection that the pleadings do not sustain the judgment or decree may be raised for the first time in this court. Hudelson v. First Nat. Bank of Tobias, 51 Nebr., 557, 568; Kemper v. Renshaw, 58 Nebr., 513. It would seem that Avhile the contract was not enforceable specifically, it Avas not void. There is no public policy against the free disposition of the homestead. Probably some amendment of pleadings Avill be necessary, but otherwise we do not see why the action may not proceed as one for damages. Possibly it may be claimed that the decisions of this court, under the statute above cited, made the contract in question absolutely void. In that case it would not support an action for damages. That question, however, is not before us- and is not decided. We are entitled to have the assistance of counsel in solving it. If we were not apparently compelled to hold otherAvise in this very case, we would say we were entitled to the help of the trial court.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed and remanded.