Webster v. Warner

Hooker, J.

In 1877, James Waugh and wife resided on a 40-acre farm, worth about $1,500, owned by the former. His stepson, the complainant, in response to a letter requesting it, had come from Ingham county, where he resided, to the home of Waugh, and the parties named had agreed upon an arrangement by which Webster was to *462 receive a deed of the undivided one-half of the 40 acres, and to give back to James Waugh a mortgage thereon, to secure the payment by Webster of certain outstanding indebtedness against James Waugh. A written contract was to be made, covering the other undivided half of the farm, by which Webster was to agree to manage and work the same, and to give the crop to Waugh and his wife, and the survivor of them, during life, to pay taxes, and keep the place in repair; and, at the death of the survivor, Webster was to receive from the “heirs, executors, and administrators ” of Waugh a deed conveying an unincumbered title in fee simple. Accordingly, on the 27th day of August, the deed and mortgage were made and executed, and a land contract in accordance with the above arrangement was made and signed by Waugh, but not by his wife, though she was mentioned as a party therein. She executed the deed. Webster entered upon the premises, and'occupied the same with Waugh and his wife, and faithfully performed his contract. Waugh died some time before his wife. Both being dead, Webster filed the bill in this cause against the heirs of Waugh, to compel specific performance of the contract. The defendants raise the point that the contract was void, because not signed by Waugh’s wife, the place being a homestead at the time the contract was made. In the circuit court the relief prayed was granted, and the defendants have appealed.

The principal question in the case grows out of 2 How. Stat. § 7722, and Const. Mich. art. 16, § 2. These have been before the court in many cases, and it has been uniformly held that a husband is powerless to convey a valid title to any interest in a homestead, without the signature of his wife, and that instruments made by the husband which, but for these provisions, would be valid, are absolutely void. Phillips v. Stauch, 20 Mich. 369 ; Hall v. Loomis, 63 Mich. 709 ; Engle v. White, 104 Mich. 15 ; Gadsby v. Monroe, 115 Mich. 282 . The case of Ring v. Burt, 17 Mich. 465 ( 97 Am. Dec. 200 ), applies the rule to a case where a husband made a verbal *463 contract by which he agreed that his homestead should be conveyed to another in consideration of the support of himself and wife, notwithstanding the fact that she assented to the contract, and participated in the enjoyment of the consideration until the death of her husband, when she refused support and claimed the land. Counsel for complainant cite the case of Whitmore v. Hay, 85 Wis. 240 ( 39 Am. St. Rep. 838 ), as an authority warranting the relief prayed for; but we think our own decisions must . rule the case. See Gadsby v. Monroe, supra; Showers v. Robinson, 43 Mich. 502, 512 ; Robinson v. Baker, 47 Mich. 622 ; Riggs v. Sterling, 60 Mich. 652 ( 1 Am. St. Rep. 554 ). The strong equities in this case induce regret that we cannot give the complainant the relief prayed. We have no doubt that Mrs. Waugh, who was complainant’s mother, supposed that the contract was valid, but it was clearly void; not only as to the wife, but the husband as well, and even as to the heirs, as was held in Sherrid v. Southwick, 43 Mich. 519 .

The court below held that the agreement was one transaction, and that Mrs. Waugh’s signature to the deed was a sufficient compliance with section 7722. We cannot concur in this view. We are constrained to reverse the decree, and dismiss the bill, with costs of both courts. A decree will be entered in conformity to this opinion.

The other Justices concurred.