Garlock v. Baker

Eothrock, J. I. The petition and answers contain other allegations than those set forth in the foregoing statement, but [336] they are not necessary to be referred to in view of what we regard as the controlling question in the case. The action is in equity and is triable de novo in this court. The fact of the sale having been made, substantially as alleged in the petition, is admitted by Solomon Baker in his testimony. 3 homestead: cfflc preformanee. The evidence shows beyond question that the land in controversy, or rather forty acres of it, including the dwelling h°lise> was the homestead of the defendants, Solomon Baker and his wife Elizabeth Baker. The petition avers that the contract of sale at auction was made by the husband alone. Here is the insuperable obstacle to the plaintiff’s right to a specific performance. The statute is peremptory. “A conveyance or incumbrance of the homestead by the owner is of no validity, unless the husband and wife, if the owner is married, concur in and sign the same joint instrument.” Code, Sec. 1990. If a conveyance or incumbrance by the husband alone, he being the owner, is of no validity, certainly it will not be claimed that a sale 3nade by him at auction is valid. It is insisted by counsel for appellant that the evidence shows the wife consented to the sale. The most that can be claimed in this regard is, that she knew her husband had advertised the property for Sale. It does not appear that she was even present at the salé; The petition seeks specific performance as to the whole tract. ^No case is made either in the pleadings or evidence for any other relief. We need not,, therefore, discuss what, if any, remedy the plaintiff is entitled to pursue. A few days after the auction sale the husband and wife joined in a conveyance of al] the land to defendant, Lengle. As it requires the concurrence of the wife to sell or incumber the homestead, she has the right to join in a conveyance to such person as she chooses, and the conveyance to Lengle must be held valid. 2. óod f-Uh-: purchaser. The case being thus disposed of it is not necessary to inquire whether Lengle was a good faith purchaser. The alleges a contract with the husband for the. purchase of land including the homestead, [337] and insists upon a specific performance as to ail the land. The wife did not join in the sale. Under this state of facts Lengle had the right to purchase, although he may have had notice of the prior contract of sale by the husband to the plaintiff. Affirmed.