Lott v. Lott ( 1906 )

Ostrander, J.

Jacob Lott died intestate in February, 1901. Benjamin and Corell Lott, sons, and Harriet Mc-Kibben, a daughter, are the surviving heirs. The mother of these children died in 1865, and in 1875 Jacob married Louisa Lott, who survives him. He owned a farm of 140 acres, described as the west half and the west three-fourths of the east half of the northwest quarter of section 14, acquired in 1853, upon which he lived, and where .the children were born. The house, barns, wells, were on that portion of the land described as the northwest quarter of the northwest quarter of the section. August 18, 1879, Louisa Lott executed and delivered two deeds, one to Corell Lott, the other to Benjamin Lott, which purport to convey “all of her dower interest as the wife of Jacob Lott” in and to his farm — in the north 70 acres to Benjamin, in the south 70 acres to Corell. Jacob Lott, on October 3, 1900, executed two deeds, in which his wife did not join, in and by which he conveyed to Benjamin the north, and to Corell the south, 70 acres of said farm. At about the date of the deeds from Louisa, in 1879, Benjamin and his wife went into possession of the north 70 acres, and Corell and his wife went into possession of the south 70 acres. Jacob and his wife continued to live on the land in the house with Benjamin. Corell instituted proceedings to administer the estate of his father, setting out in his petition that the estate consisted of personal property only. Louisa, who is an incompetent person, through her guardian, made a claim upon each of the boys, after the death of Jacob, upon the theory that she had not by the earlier deeds conveyed her dower interest. An arrangement was made with her, which was confirmed by the probate court, based upon valuable consideration, paid or to be paid by each, and deeds of conveyance were executed hy her guardian, conveying “ all the right, title, and interest of said Louisa ” in the said real estate. Later, Corell claimed an undivided one-third interest in 40 acres out of the 70 acres which had been ctínvéyed to his brother, Benjamin, to recover which he began an action of ejectment. Benjamin, his wife joining, filed his bill of complaint, making his brother, his sister, and the widow parties defendant, to restrain the proceedings at law, and to confirm and quiet his title. The theory of the bill is that the father, Jacob, proposed as early as the year 1879 to give this farm to his sons, to each one-half; that he interested himself in procuring and paid a consideration of $500 for the quitclaim deeds first executed by his wife; that possession was given of the land — to each son his half — with the statement and understanding that it belonged to the sons, respectively; that by mutual agreement each son was to manage his portion of the farm, and give to the father one-third of all wheat raised, and to supply him by contributions, made equally, whatever was further needed for his support and maintenance; that upon the south 70 acres the father built a new house and a barn; that since the year 1879 each of the sons has considered that he owned his respective one-half of the land, and has acted accordingly. The sister, Harriet, was not served with process. A general guardian’s answer was filed for the widow, and a hearing was had upon the issues presented by the bill and the answer of Corell. A decree was made confirming the title of complainants as against Corell and the widow, and perpetually enjoining each of them from beginning and prosecuting any action at law or otherwise to recover the premises. From' this decree, defendant Corell has appealed.

The position of appellant is that his father had a homestead in and upon the 40 acres of land described in his declaration in ejectment, of which he had never made a lawful conveyance, and that upon his decease the title thereto passed to the three heirs at law; that the interposition of a court of equity to determine this question is unnecessary and unwarranted. The evidence, other than documentary, which the record contains, was given by complainants, over the objection, not urged in this court, that it was for the most part incompetent because relating to facts equally within the knowledge of the deceased father. Counsel for complainants urge that the case is one for a court of chancery because the whole arrangement was in the nature of a family arrangement agreed to and participated in by Corell, who has received the fruits thereof, and who is estopped to keep his own, and ask for and recover a portion of his brother’s, share of the disposition of property actually attempted. It is replied that the equities are no stronger than those presented in Webster v. Warner, 119 Mich. 461, and that, for the reasons set out in the opinion in that case, complainants must fail here. Whether or not the 40 acres in question was regarded as and claimed to be a homestead by the father or mother, when the deed of the father was made, is, first of all, a question of fact. There is evidence tending to prove that neither parent, at that time, claimed or regarded themselves possessed of homestead rights in the property. Unless there was, in fact, such a homestead interest, complainant here, defendant in the ejectment suit, has the legal title to the land and must, in that action, prevail. Legal and not equitable titles are involved, and no case is presented warranting interference with the action at law.

The reasoning of Mr. Justice Hooker, and the conclusion he reaches, have the effect, it seems to me, of unsettling the law of the State with regard to the formalities necessary to be observed in alienating a homestead. The language of the Constitution (art. 16, § 2) is:

“Alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same.”

I think that up to the present time the law has been supposed to require the wife to join with her husband in the instrument by which the alienation, if to a third person, is brought about. It is pointed out by Mr. Justice Montgomery, in Gadsby v. Monroe, 115 Mich. 282, 284, that the Constitution, in the provision above quoted, deals with the land which constitutes a homestead, and not with any specific interest therein. This court has said (Phillips v. Stauch, 20 Mich. 369; Hall v. Loomis, 63 Mich. 709), that, although the value of the land constituting the homestead be greater than the constitutional exemption, the conveyance is a nullity, and cannot be enforced at all. And distinction is made if there are parcels capable of severance from the homestead. Engle v. White, 104 Mich. 15. In this language of the Constitution, in these decisions and the theory upon which they proceed, is to be found reason for now holding that a wife may not convey the land which is a homestead or any part thereof or interest therein, piecemeal or otherwise, to any third person, by her separate instrument. Her separate agreement to convey the land in the future would seem to have no more validity than her present, sole conveyance. It is said that the contract made by the husband, accompanied by the quitclaim deeds made by the wife, constituted a valid land contract enforceable in equity against both. This is another way of saying that a palpable noncompliance with the Constitution may be aided by another. Or that two evasions may amount in equity to one compliance. The deeds executed in 1879 by the wife were attempts on her part to sell the land, including that claimed to have been included in the homestead. She had no interest in the land which she could thus convey. Assume that she intended to sell and convey all her interest in the land. As matter of law she conveyed no interest or title. Her deed was totally insufficient. It was not a promise or agreement to convey in the future. It was not a joining in her husband’s parol agreement. It was a nullity,’ not as to a part merely, but as to all of the land. What she did may be regarded as' evidence to sustain the finding that she assented to the agreement made by her husband. But her assent, like her husband’s promise, rested entirely in parol. Evidence of her assent in fact is no stronger here than it was in Webster v. Warner, in Gadsby v. Monroe, and in Hall v. Loomis, supra. What she did is also some evidence, I think, of the fact that when her husband deeded the land in the year 1900, she claimed no homestead. But it is dangerous doctrine that a void present conveyance of a homestead is a valid promise to convey in the future. In my opinion, the court should adhere to the rule that the conveyance of a homestead, by a married man, should have the signature o£ the wife to the same. The case of Ring v. Burt, 17 Mich. 472, involved the transfer of a homestead, that of Rhoades v. Davis, 51 Mich. 309, the transfer by a wife of her dower. The later decision should not be considered as shaking the authority of' the earlier one as to the point there in judgment.

The decree is reversed, with costs of both courts to appellant, and a decree will be entered dismissing the bill without prejudice to the rights of any of the parties.

Carpenter, C. J., and McAlvay, Blair, Montgomery, and Moore, JJ., concurred with Ostrander, J.