Lessell v. Goodman

1 Homesteads conveyance. A wife has a' right of homestead in premises held by herself and her husband, under a contract of purchase thereof. ■ 2 Same. Therefore, a wife is not bound by an acknowledgment by the husband that the contract has been forfeited by failure to make payments at the time therein provided, as Iowa Code, section 1990, provides that a husband cannot alone, convey property in which the wife has a homestead right. 3 Forfeitures waiver. A creditor who, by his acts and statements, has fairly led his debtor to believe that he would not insist on the strict terms of their contract as to time of payment of an amount thereunder, will be held to have waived the provision of such contract for a forfeiture thereof, on failure to pay such amount when due.

Appeal from Dallas District Court. — Hon. A. W. Wilkinson, Judge. Action to quiet title. Decree for defendant, Mary E. Goodman, and plaintiff appeals. This action was brought by the plaintiff to quiet title to, and recover possession of a lot in the city of Perry. On July 15, 1892, the defendant, Joseph Goodman, entered into a written contract with the plaintiff, whereby the latter agreed to sell to the former a lot, for the consideration of one hundred and seventy-five dollars, ten dollars of which was paid down, and the balance was to be paid as follows: Eighty-five dollars July 15,1893, and eighty dollars July 15, 1894, with seven per cent, interest. By the terms of the contract, time was made the essence of it, and it was provided that, if any default was made in any of the payments or agreements therein mentioned, the entire contract should be void, and all rights of said Goodman thereunder should at once cease and determine. Goodman and his family took possession of the lot, erected a house thereon, and used and occupied the same as their homestead. A few weeks prior to the maturity of the second payment, Joseph Goodman abandoned his wife, and continued to live separate and apart from her. She, with her daughter, continuously occupied the place as her home up to the time of trial of this cause below. Appellant brings this action to quiet his title, and to recover possession, upon the ground that both of the appellees had forfeited their rights to said lot because of the failure to make the payment due July 15, 1894. The defendant Mary E. Goodman, claims that plaintiff waived said forfeiture, and that she tendered him the full amount due on said contract, which he refused to receive. She pleads her readiness still to perform, and prays that, on payment of the balance due, plaintiff be required to execute to her a conveyance of said real estate. The court below entered a decree in conformity to the prayer, from which plaintiff appeals.