Krueger v. Groth , 190 Wis. 387 ( 1926 )

EschweileR, J.

The defendant husband asserted, as against plaintiff’s demand for specific performance of the alleged oral agreement for interchange of their respective farms, that there was no completed agreement; that there was no writing or memoranda thereof in accordance with sec. 240.08 (formerly sec. 2304), Stats.; that the real estate was the homestead and not conveyed by the husband and wife in accordance wfith sec. 235.01 (formerly sec. 2203) ; the defendant wife asserted the same grounds and also that she had an inchoate dower interest which has never been barred pursuant to sec. 235.27 (formerly sec. 2222).

The trial court reluctantly denied plaintiff any relief upon the sole ground, as stated in his opinion and as embodied in the findings, that the absence of any writing signed by the defendant wife as to the homestead under said sec. 235.01 was an absolute bar preventing specific performance or the giving of damages.

The equities, under the facts as found by the trial court, are manifestly in plaintiff’s favor as against both the defendants. There was a complete exchange of possession of the respective real estates in apparent acquiescence upon what is here conceded to be an invalid oral agreement, found by the court to have been made between the parties; there was a continued occupancy by the respective parties of the exchanged properties as their new homesteads for months thereafter without protest; there was actual loss sustained by plaintiff in his sale of personal property in reliance upon such agreement; there were improvements made by plaintiff upon the property which he took from defendant; there was a substantial change to plaintiff’s damage by the fire loss. The effect of respondents’ contention as upheld by the trial court is to make said sec. 235.01 (found in ch. 235, concerning the alienation of real property), and declaring that no alienation by a married man of his homestead or any interest therein, legal or equitable, present or future, by deed or otherwise, shall be valid or of any effect aforesaid unless with his wife’s consent, evidenced by her act of joining in the conveyance, so absolute, exclusive, and controlling as to prevent subjecting the defendants to the dominion of the old and well established rules of equity.

The legislative creation of a homestead exemption, pursuant to the express direction of sec. 17, art. I, Const., has been very liberal in form and liberally construed .and enforced at all times, and the amendments thereto have been all for the extending and broadening of such exemption except in the amendment by ch. 269, Laws of 1901, inserting the limitation of value to $5,000 (that limitation not applying, however, as between widow and heirs of her husband, secs. 272.22 and 237.02). The legislative liberality towards the homestead is well illustrated by the fact that until such amendment there had been no limit set in value, although the possibility of abuses under it was pointed out in both the majority and dissenting opinions in Phelps v. Rooney, 9 Wis. 70, decided in 1859.

Though it has been held that, so far as the wife is concerned, her interest in a homestead, held by the husband, is no more than the complete and absolute power of veto upon any attempt by him to convey -without her written consent (Ferguson v. Mason, 60 Wis. 377, 387, 19 N. W. 420; Weston v. Weston, 46 Wis. 130, 134, 49 N. W. 834; Cumps v. Kiyo, 104 Wis. 656, 661, 80 N. W. 937; Mash v. Bloom, 126 Wis. 385, 389, 105 N. W. 831), 3ret that her consent and signature is imperative, even though she lived apart from him at the time or though the conveyance is given for necessities furnished the husband (Herron v. Knapp, Stout & Co. Company, 72 Wis. 553, 40 N. W. 149), and equity will refuse to correct a description in the mortgage so as to include the homestead of the mortgagors, though it clearly appear that such was the intention and though no other objection is interposed to such reformation than that the wife did not consent in writing (Gotfredson Bros. Co. v. Dusing, 145 Wis. 659, 129 N. W. 647).

Although the homestead is for the benefit of the family, yet as between the husband and the wife it is the husband who has the right of selection and the power of abandonment. Warsco v. Oshkosh S. & T. Co., ante, p. 87, 208 N. W. 886; Beranek v. Beranek, 113 Wis. 272, 278, 89 N. W. 146; Blatchley v. Dakota L. & C. Co. 26 N. Dak. 532, 145 N. W. 95; Stewart v. Pritchard, 101 Ark. 101, 141 S. W. 505, 37 L. R. A. n. s. 807, with note; 13 Ruling Case Law, 557; 29 Corp. Jur. 951.

In this case there was not only a complete abandonment by defendants of the former homestead; a surrender of the keys and possession; but they occupy the other farm dwelling as their newly selected homestead, title to which is absolutely secured to them by plaintiff’s pleading, his deed and tender to defendants. All this is ample to warrant the conclusion that defendants abandoned the old and selected the new homestead, and for neither of these two separate proceedings are written formalities required. Godfrey v. Thornton, 46 Wis. 677, 683, 1 N. W. 362; Pierce v. Gibson, 108 Tex. 62, 184 S. W. 502, 1 A. L. R. 1675; Stotts v. Stotts, 198 Mich. 605, 618, 165 N. W. 761; Blodgett v. Lawrence, 90 Vt. 269, 274, 97 Atl. 666.

Voluntarily, therefore, in this case, a family gives up and abandons one homestead and selects and occupies another; having done so they have lost the right to assert a homestead privilege in the former. Once abandoned it is as though it never existed. The homestead statute itself provides expressly, sec. 272.20 (sec. 2983), that such exemption “shall not be impaired by temporary removal with the intention to reoccupy the same as a homestead,” clearly indicating that a permanent abandonment is a destruction. Blackburn v. Lake Shore T. Co. 90 Wis. 362, 366, 63 N. W. 289. Being a privilege as it is and not a title to land, it had lost, by defendants’ voluntary acts, all existence or’ efficacy when attempted to be first asserted by defendants’ answers. Manifestly defendants- cannot have the benefit of two homesteads at one and the same time. Jarvais v. Moe, 38 Wis. 440, 446; Schoffen v. Landauer, 60 Wis. 334, 338, 19 N. W. 95; 13 Ruling Case Law, 546; 29 Corp. Jur. 790.

Although the constitutional and legislative provisions for such exemption have been steadfastly upheld, however far reaching the results may seem in many instances to be found in the decisions, nevertheless the right in the wife to invoke the protection of the statutes concerning the establishment of or alienation of interests in the homestead is not so absolute and unqualified as to be beyond recognized and well established equitable doctrine.

The protection of the homestead exemption cannot be used as a shield to prevent the recovery of trust funds put into its purchase or improvement (Warsco v. Oshkosh S. & T. Co., ante, p. 87, 208 N. W. 886, supra); neither can it or ought it prevent the application of the equitable doctrine of estoppel where in reliance upon the acts, or omissions to act, by both husband and wife the other party to the transaction has been injured, and when, after substantial performance by the one party, the husband and wife, of either of them, attempt to assert by their pleadings reliance upon such drastic statutory regulations.

That equitable estoppel may affect homestead and dower rights is generally recognized. 10 Ruling Case Law, 749; 13 Ruling Case Law, 662; 29 Corp. Jur. 958, 959. A case very similar to the one here is Grice v. Woodworth, 10 Idaho, 459, 80 Pac. 912, 69 L. R. A. 584, where a purchaser by oral contract from husband and wife entered into possession of their homestead, paid the purchase price, and made improvements thereon with the full knowledge and consent of the wife, and was held entitled to a decree requiring conveyance of the premises to him, and this under statutes similar to ours; and it was also held that such provisions were not intended to operate as a shield to relieve against fraud and are subject to the rules of equitable es-toppel and waiver. This case further held that such statutes fall under the same legal principles as those governing conveyances under the statute of frauds; but as to this last proposition we deem it unnecessary to express a present opinion.

This Grice Case, supra, though designated in a dissent (p. 472) as being “an effectual rape of the statute,” is nevertheless recognized as stating the true rule in Feltham v. Blunck, 34 Idaho, 1, 198 Pac. 763, 766, and is also discussed in Pagel v. Tietje, 193 Iowa, 467, 186 N. W. 938; but there the facts presented did not warrant its application. It is also followed and many other cases cited to the same point in Brusha v. Board of Education, 41 Okla. 595, 139 Pac. 298, L. R. A. 1916 C, 233. This latter case comments upon the substantial changes made for present-day consideration of such questions by the Oklahoma statutes removing the common-law disabilities of the married woman, and suggests that if she be given equal rights with man she should be charged with equal duties. Their legislation in this regard is quite similar to ours, and the results reached here under such disability-removing statutes may be illustrated by the decision in First Wis. Nat. Bank v. John, 179 Wis. 117, 190 N. W. 822, as to liability as an accommodation indorser, and Wait v. Pierce, 191 Wis. 202, 209 N. W. 475, 210 N. W, 822, as to the right of the wife to recover from the husband for personal injuries.

That a wife may subject herself to the provisions of the doctrine of equitable estoppel even though in the teeth of statutes like ours as to the homestead is also recognized in such cases as Bovine v. Selden, 155 Mich. 556, 119 N. W. 1090, 130 Am. St. Rep. 579; Stotts v. Stotts, 198 Mich. 605, 165 N. W. 761.

The trial court’s conclusion was placed upon his construction of late decisions of this court strictly enforcing the provisions of such statute in favor of the rights of the wife, such as Rosenthal v. Pleck, 166 Wis. 598, 166 N. W. 445, in which specific performance or damages were denied for failure by the husband to perform his written contract to exchange his real estate, part of which was his homestead, his wife refusing to join, the court stating that the contract, being void by statute, was beyond the power of equity to reform and that it could not be made the basis of an action for damages; Helander v. Wogensen, 179 Wis. 520, 191 N. W. 964, based upon the Rosenthal Case, supra, holding a written contract by husband alone, involving the homestead and personal property, ineffectual as the basis for a breach of contract action concerning the personal property; and Home v. Pleshek, 187 Wis. 55, 203 N. W. 910, holding a lease of homestead property by the husband alone and possession taken, to be void at the time of its execution and delivery and not to be made valid by the subsequent voluntary offer of the wife, unaccepted by the lessee, to then sign, and further holding that a guarantor of such' lease is not liable for the rent. We deem none of these decisions, presenting as they do substantially different facts, controlling in defendants’ favor.

We find nothing contrary to the application of this doctrine here from what is said in Cumps v. Kiyo, 104 Wis. 656, 662, 80 N. W. 937, where, in general language relating to the policy of this statute, it is stated that it is not to “give the wife a mere personal right for her personal benefit which she may waive, or be estopped by her conduct from insisting upon it, but to protect the home for the benefit of the family and every member of it,” etc., and further stating that if it were held a mere privilege which she may waive or which may be lost under the rules of equitable es-toppel, a very efficient way would be open to evade and nullify the statute; but later on the same page it is stated that the doctrine of that case does not militate against the capacity of the wife to be affected by an equitable estoppel, as to whether specific property is or is not a homestead, or from denying that the paper signed by her covering the homestead was so intended, and that the limit of the doctrine is that the law of estoppel cannot take the place of the statutory requisite to alienation. The court there cites as illustrating this doctrine, Nelson v. McDonald, 80 Wis. 60S, 50 N. W. 893, where a wife signed a note and accompanying mortgage, the description in the latter being later filled in by the husband, contrary to her understanding, so as to include the homestead, she receiving no proceeds from the loan; but the court nevertheless held that as to innocent third persons the mortgage was valid and she could not be heard to defend (p. 607).

In Law v. Butler, 44 Minn. 482, 47 N. W. 53, it was held that no act of a wife (unless amounting to an estoppel) except affixing her signature could make an assignment of an interest in a homestead valid; and further, that to create an estoppel the facts must operate as to both husband and wife, and that under the facts there presented the wife was not estopped. But in Bullock v. Miley, 133 Minn. 261, 158 N. W. 244, where the wife had left the homestead more than a year before the making of the conveyance by the husband and never thereafter returned, subsequently making a deed to the same purchaser and permitting him and his grantee to occupy and improve it and subsequently obtaining a divorce, it was held that she divested herself of all interest and that there was a complete estoppel as to both husband and wife.

We do not deem as pertinent or to be given weight here such cases as Collins v. Boyett, 87 Tenn. 334, 10 S. W. 512, where it was held that a deed by the husband alone and his subsequent removal with his wife, but no other homestead acquired, did not defeat her right; Cummings v. Busby, 62 Miss. 195, 197, holding that a subsequent removal cannot validate a prior invalid deed by the husband, and Welch v. Rice, 31 Tex. 688, to the same point; Martin v. Harrington, 73 Vt. 193, 50 Atl. 1074, that death of the wife does not validate prior deed by the husband alone; and we cannot agree with the general proposition stated in Ellingwood v. Ellingwood, 91 Vt. 134, 99 Atl. 781, to the effect that equity cannot give force to a deed declared void by statute.

The broad and effective power of equity in applying its doctrine of estoppel to take title to land from one and vest it in another and to stay the operation of the rules of law is fully discussed in Knauf & Tesch Co. v. Elkhart Lake S. & G. Co. 153 Wis. 306, 315, 141 N. W. 701, and its application to the facts there presented makes its application here to a similar end well supported. See, also, Kimball v. Baker L. & T. Co. 152 Wis. 441, 451, 140 N. W. 47; Booher v. Slathar, 167 Wis. 196, 201, 167 N. W. 261. In its application it is not limited to facts, situations, representations, or concealments as of the time of the original transaction, but often necessarily rests upon subsequent conduct relied upon by the opposite party to his damage. Nor is it presented here in a situation where there was lack of power on the part of the wife to act at all in the original transaction.

What has. been said above relates more particularly to equitable estoppel being asserted and maintained against the homestead right. It is as well, if not more strongly, recognized as applicable against such an inchoate right of dower as here asserted. Though dower is now, under our present statute, advanced to a one-third part of all the lands of an estate of inheritance belonging to the husband, sec. 233.01 (formerly sec. 2159), instead of as formerly a life estate to that extent, it has been held that the doctrine of equitable estoppel applies not only when such right has vested upon the husband’s death, but also when the question is raised as to the inchoate right of dower as here presented. H. W. Wright L. Co. v. McCord, 145 Wis. 93, 103, 128 N. W. 873; Godfrey v. Thornton, 46 Wis. 677, 690, 1 N. W. 362. It is also so held in other jurisdictions. Rosen v. Tackett, 222 Mich. 673, 681, 193 N. W. 192, 30 A. L. R. 939; Townsend v. Woodworth, 185 Iowa, 99, 169 N. W. 752.

Conceding that up until the exchange of the two farms on December 6th the agreement between the parties could not have been enforced by the plaintiff because, being oral, it was unenforceable, yet after the exchange of possession and the acts by the respective parties in'reliance upon and in accordance with the contract for such exchange, there was clearly such possession and part performance as would take the oral contract out of the provisions of the statute of frauds. Sec. 240.08 (formerly sec. 2304); sec. 240.09 (formerly sec. 2305); Henrikson v. Henrikson, 143 Wis. 314, 319, 127 N. W. 962; Papenthien v. Coerper, 184 Wis. 156, 161, 198 N. W. 391; Booher v. Slathar, 167 Wis. 196, 201, 167 N. W. 261.

It is suggested that the understanding that the deeds were not to be executed until after the ñre loss of December 21st was adjusted is such conduct as ought to prevent the plaintiff obtaining equitable relief. Under the testimony, however, the situation appears to have been one known to the agent for the insurance company, and it was pursuant to suggestion from him that the passing of the deeds was delayed. Such situation involves only a question arising from the contract relationship created by the insurance policy under which the mortgagee was the most substantially interested. It was a question for the insurance company to present if it desired it as a defense to the policy. We do not see that it has any material bearing upon the question here presented.

Under the facts as found, therefore, and the conclusions we have reached as to the law, the plaintiff, having tendered his conveyance, is entitled to have the conveyance to him of the property formerly owned by the defendants as prayed and the payment of the agreed sum of $2,250, or in lieu of such conveyance a judgment to be entered to the same effect.

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment as directed. _