81 Neb. 261 | Neb. | 1908
Action for specific performance of an alleged contract for the sale and conveyance of defendants’ homestead. Decree for plaintiff, and defendants appeal.
It seems that defendants are husband and wife, and have resided for 18 years upon the quarter section of land in controversy. The record does not disclose Avhether the legal title was in the husband or Avife, although the Avife testified the land Avas hers, and the husband said “the farm belongs not to-me.” Defendants owned no other land, and its homestead character is clearly established. The husband is a cripple, and desired to sell
Section 4, ch. 36, Comp. St. 1905, entitled “Homesteads,” is as follows: “The homestead of a married person cannot be conveyed oh incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife.” Section 681a of the code directs us to review the record and determine appeals in equity, and reach an independent conclusion as to what finding or findings are required under the pleadings and evidence, without reference, to the conclusion reached in the district court. “Specific performance is not generally a legal right, but rests in the sound, legal, judicial discretion of the trial court.” Clarke v. Koenig, 36 Neb. 572. The contract must be unambiguous. An unconscionable price, any circumstances of overreaching,' misrepresentation, or suppression of the truth, will justify a court in refusing specific performance. Friend v. Lamb, 152 Pa. St. 529, 34 Am. St. Rep. 672. In the instant case the testimony is not so conclusive that the contract was executed and acknowledged by the wife as that in our judgment it should be enforced by a decree for
The homestead is a favorite of the law. It is intended as a home, not only for the husband and wife, bnt their children as well. It is the policy of the courts to’ frown upon all attempts to secure title thereto, except the vendee brings himself clearly within the letter of the law. Bird v. Logan, 35 Kan. 228; Warden v. Reser, 38 Kan. 86. This we do not believe plaintiff has done.
We therefore recommend that the judgment of the district court be reversed and plaintiffs petition be dismissed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause is dismissed.
Reversed and dismissed.