185 Iowa 99 | Iowa | 1918
The controversy in this case arises over a strip, approximately 4 feet, running along the east side of this house.
On the 27th day of October, 1910, Fred O. Krueger entered into a written contract with the plaintiff, by which he sold and agreed to convey to the plaintiff the west 66 feet of these .lots; and on the 2d of January, Krueger and wife executed and delivered to the plaintiff a deed describing only the west half of these two lots, or the west 62 feet and 3 inches. After the execution of this contract, and before the deed was made, Krueger and wife moved out of the building and off the premises, and surrendered the same to the plaintiff. On the 5th of January, 1912, the Kruegers conveyed the east half of these two lots to the defendant Rosalind Woodworth. This action is brought, not only to reform the deed given by Krueger to the plaintiff, and to make it conform to the contract which preceded the execution of the deed, biit also to quiet title in the west 66 feet against the Kruegers, and against any claim asserted by Rosalind Woodworth under her deed.
It will be noticed that these lots, east and west, were 124 feet and 6 inches long, and eaeh lot, 66 feet wide. The west 66 feet were given to the plaintiff in the contract, leaving 58 feet and 6 inches on the east half of the two lots. The Kruegers undertook, however, to convey to Rosalind Woodworth the east half. The east half would be 62 feet and 3 inches, which would cover about 3 feet and 9 inches of the land covered by the contract made between the Kruegers and the plaintiff1; and this is the strip over which the controversy arises.
On the hearing below, the court found for the plaintiff, and that he was entitled to have his title quieted in this west 66 feet of the two lots, and reformed the deed to correspond with the contract made between Krueger and the plaintiff.
It will be noted that the original contract-for the west 66 feet of these lots was not signed by the plaintiff’s wife. The contract was dated on the 27th day of October, 1910, and provides:
“That the party of the first part [F. 0. Krueger] hei’eby agrees to sell to.the party of the second part [plaintiff], on the performance of the agreements, hereinafter stated, a fee simple title clear of all liens and incumbrances whatever by' good and sufficient warranty deed.”
On the day of the execution of the contract, plaintiff paid Krueger $100, and agreed to pay $4,000 in two payments, $2,000 on November 1, 1910, and $2,000 on January 2, 1911, the deed and abstract to be given on that date, and the abstract to show perfect title.
On the 2d day of January, all the conditions precedent to plaintiff’s right to the deed were performed by the plaintiff, and on that day, the deed was executed by the Kruegers and delivered to him. The deed was immediately recorded. The deed, however, instead of providing for the west 66 feet of the two lots, covered only the west half of the two lots. Krueger and wife lived in the house on the premises for about 30 days after the contract was made. Then they vacated, and delivered the key of the house to plaintiff. Plaintiff did not move in with his family until in February, although he took possession as soon as the Kruegers moved out, and did some painting and papering and repairing.
As between Krueger and the plaintiff, — assuming that there are no intervening rights, — there can be no question as to the duty of the court to reform the deed to make it correspond with the contract. The contract provides for the
It is true that this was her homestead; that she and Krueger occupied the property at the time as a home. The title, however, was in Krueger. Her rights in the property were only such as came to her through the homestead law— the right of possession. It is true that, under our statute, no conveyance of the homestead, if the owner is married, is valid, unless the husband and wife join in the execution of the same joint instrument, whether the homestead is exclusively the subject of the contract or not. Section 2974, Code, 1897.
It does not appear definitely from the record, but we may assume that both lots were occupied by the Kruegers as a homestead at the time this contract was executed. The right of homestead remains as long as the property is used and occupied as a home. ' When it is deliberately abandoned as a home by the party who claims the homestead right, it no longer has protection under the homestead law; or,
“It is, of course, manifestly true that the alleged oral contract of sale was void under the statute of frauds, it not being in writing. It is equally true that, because of the
See authorities cited in support.
In the instant case, it appears that the Kruegers intended, in making the conveyance to plaintiff, to part with their home and their homestead rights in the premises, and,
We have not adverted to the matters discussed by Mrs. Woodworth in her brief, for the reason that she has not appealed from the judgment of the court, and we are not in a position to grant her any relief.
Upon the whole record, we think the judgment of the court was right, and it is — Affirmed.