Elliott v. Bond , 72 Okla. 3 ( 1918 )

The trial court having upon sufficient evidence found that 160 acres of the land, the subject of the controversy, was the homestead of the Bond family and that their removal from the state was temporary only, in consideration of the petition for rehearing it is necessary only to determine what effect should be given the verbal contract or agreement of Bond in respect to the sale thereof. Plaintiff's action, which was for specific performance, was brought against J.R. Bond alone. The petition charges "that on or about March 1, 1915, the defendant entered into a verbal contract with the plaintiff, by the terms of which defendant sold and agreed to convey to plaintiff by good and sufficient warranty deed" the 180 acres of land, including therein the land subsequently held to constitute the homestead of Bond and family. It is not charged that the wife was a party to the "verbal contract." nor is it shown that she had knowledge thereof until some six months afterwards, at which time she declined to join in the execution of a deed to the lands. Article 12, § 2, of the Constitution, provides that the owner of the homestead, if married, may not sell it without the consent of his spouse, given in such manner as may be described by law. So that whatever may have been the purpose of Bond respecting the sale, or the terms or conditions thereof, the land constituting the homestead could not be sold, or a binding contract made in respect thereto, without the consent of his wife. Had Bond executed a warranty deed to the homestead portion of the lands and his wife refused to join therein, the conveyance would, because of the constitutional inhibition, have been void. Much less is a verbal contract of sale, even though unconditional, executed on the part of the husband alone, an agreement capable of enforcement in the courts even though the intended purchaser has entered into possession of the premises and paid a portion of the purchase price. The right of the husband to execute a deed to the homestead, given without the wife's consent in the manner prescribed by law, as provided in article 12, § 2, of the Constitution was before the court in Whelan v. Adams,44 Okla. 696, 145 P. 1158, L. R. A. 1915D, 551, wherein it was held that any attempted conveyance by deed of the homestead of the family by a married man, given without the wife's consent in the manner prescribed by law, was void; that where the relation of husband and wife exists the deed of the former to the homestead of the family conveys no title, and this notwithstanding the fact that the husband and wife be living separate and apart, or even though the wife may have, without justifiable cause, abandoned the husband. In the body of the opinion, it was said:

"No alienation of the homestead by the husband alone in whatever way it may be effected, is of any validity; nothing that he can do or suffer to be done can cast a cloud upon the title; it remains absolutely free from all grants and incumbrances, except those mentioned in the Constitution."

The homestead contemplated and provided for by our Constitution (sections 1 and 2. art. 12) is the homestead of the family, not of the husband alone, though the title be in his name; and, in order to make a valid contract for its sale, the wife must consent thereto in such manner as may be prescribed by law. This was not done; indeed, the wife is not a party to the action, nor is it claimed that she joined in or consented to, the agreement to convey. Of course, if the land were not the homestead, or, though once a homestead it had been abandoned, another situation would be presented.

The petition for rehearing is denied.

All the Justices concur, except HARRISON, J., not participating.