Whitmore v. Hay

Oassoday, J. It appears from tbe record that Thomas Hay, Sr., had three children,— Jane, Thomas, Jr., and the defendant, Joseph. Jane died in 1868, and before her father. She was the mother of the plaintiffs, and appears to have received a respectable advancement from her father. Thomas, Jr., is not a party to this action, and apparently makes no claim to any portion of the property in question. On the contrary, he appears to have left home and reached the conclusion as early as September 19, 1817, not “to take anything more from the old farm, unless in case of .necessity;” and he then accordingly returned in a letter to his brother, the defendant, a note he held against him, and which he had received as a portion of his father’s estate. This was manifestly done with the understanding alleged in the counterclaim, to the effect that the defendant should have the farm for taking care of his father and mother during their respective lives; for he said in the same letter: “ Endeavor to save money, and make life as agreeable as possible, and be kind, patient, and forbearing to father and mother, as they used to be to you, and do all you can to make their last days happy. This I know you will do, and it is all IwantJ The defendant, Joseph, appears to have reached his majority in 1858 or 1859. Instead of leaving home, he remained with his father and mother, and worked on his father’s farm, consisting of 120 acres. In 1865, and when he was nearly twenty-eight years of age, he got married, and with his wife commenced living in an addition to their father’s house, built for that purpose. Thereupon he seems to have worked the farm under some parol agreement or understanding with his father, whereby each had a certain portion of the produce. In June, 1876, the father became sick, and continued to be sick and helpless most of the time up to his death, October 18, 1878. The mother was an invalid during the last ten or twelve years of her life. About the time the father so — 247 — became sick he appears to have reached the conclusion that he would make a final disposition of his property, or the most of it. Accordingly he sold and conveyed twenty acres of the farm outside of the homestead to Meyer, as mentioned in the foregoing statement. In pursuance of the same purpose he drew the quitclaim deed from himself to the defendant for the conveyance of the balance of the farm, consisting of 100 acres, including the homestead, at his home, June 17, 1876; and then, June 24, 1876, he and his wife and the defendant went to a notary public, some miles distant, in order that he and his wife might execute and acknowledge the deed and have a contract drawn by the notary and executed by the' defendant, binding him to care for and support his father and mother as long as they might respectively live. By the advice of the notary, to the effect that such purpose could be better secured by omitting such written contract altogether, and by the father executing the deed alone, without the signature of his wife, such contract was omitted, and the father executed the deed alone and delivered the same to the defendant, as mentioned in said statement. The trial court held, in effect, that the deed, having been executed by the father alone, without the signature of his wife, was absolutely void as to the forty acres constituting the homestead, and hence . that the plaintiffs, together, were entitled to recover one third thereof in this action of ejectment. The statute declares that “ no mortgage or other alienation by a married man of his homestead, exempt by. law from execution, shall be valid or of any effect as to such homestead, without the signaMre of his wife to the same.” Sec. 2203, E. S. Under this statute it has been held that where such deed is executed by the husband, and is signed by the wife, it is valid without her acknowledgment. Godfrey v. Thornton, 46 Wis. 677; Allen v. Perry, 56 Wis. 178. — 248 — The theory’upon which the court so held is that the statute “does not vest any estate in the wife, living the husband, in the homestead, but operates only as a disability of the husband, living the wife, to alienate his homestead without her consent, evinced by her signature to his alienation.” In Ferguson v. Mason, 60 Wis. 377, it was held that “ a conveyance of a homestead, reserving to the grantor the sole, free, and absolute use and control thereof so long as he and his wife, or either of them, may live, conveys only a future estate, to be enjoyed after the homestead right shall cease, and is valid without the signature of the wife.” In Conrad v. Schwamb, 53 Wis. 372, it was held that “ a deed executed by husband and wife, which, though otherwise complete, fails through a misdescription to convey the land intended, being the grantor’s homestead, must be treated as an executory contract by the husband to convey, which equity will enforce after the homestead right ceases, against the husband or against his heirs after his death intestate, though not against the widow.” That a deed based upon a good and valuable consideration, but defectively executed, may be treated in equity as an executory contract to convey, is abundantly established in that case and the authorities there cited by the present chief justice. Our statutes provide that “ when the owner of any homestead shall die, not hawing lawfully devised the same, such homestead shall descend,” etc., and that “every devise of land in any will shall be construed to convey all the estate of the devisor therein which he could lawfully devise,” etc., and that, “ when any. homestead shall have been disposed of by the last will and testament of the owner thereof, the devisee shall take the same free,” etc. Secs. 2271, 2278, 2280. Under these statutes and the decisions of this court, there can be no question but that the father had power, without the consent of his wife, to lawfully devise his homestead to the defendant. Ferguson v. Ma — 249 — son, 60 Wis. 377; Albright v. Albright, 70 Wis. 535. It is equally clear that the father had power, without the consent of his wife, to convey his home to,the defendant, reserving to himself the absolute use and control thereof so long as he and his wife, or either of them, might live. Had the parol understanding between the father and the defendant been reduced to writing, and executed by the father alone, with the requisite formalities, but without consideration, it probably might have been admitted to probate as a will, and vested the title in the defendant accordingly. Wellborn v. Weaver, 17 Ga. 267, 63 Am. Dec. 235; Babb v. Harrison, 9 Rich. Eq. 111, 70 Am. Dec. 203; Burlington University v. Barrett, 22 Iowa, 60, 92 Am. Dec. 376; Carlton v. Cameron, 54 Tex. 72, 38 Am. Rep. 620. See, also, cases cited in the notes to these several cases. The same would be the result, according to some of these cases, if the deed in question had been executed without consideration, but not delivered so as to take effect until the death of the father. See, also, Turner v. Scott, 51 Pa. St. 126; Kelleher v. Kernan, 60 Md. 440. But the deed in question was based upon a good and valuable consideration, consisting not only of services rendered and to be rendered, as agreed in the parol contract mentioned, but also in money; and upon the authorities cited and others to be cited, we are constrained to hold that the defendant is entitled to a specific performance of the same, as against the heirs at law of the grantor. Thrall v. Thrall, 60 Wis. 503; Cable v. Cable, 146 Pa. St. 451; Book v. Book, 104 Pa. St. 240; Dreisbach v. Serfass, 126 Pa. St. 32. In this last case one, by deed inter partes in consideration of a nominal sum and covenants to be performed, conveyed land to another, the former reserving a residence and the latter covenanting to supply him with food, lodging, clothing,' and all other necessaries during his lifetime, to be charged upon the premises until the covenants were performed; and it was — 250 — held that such deed was not a testamentary instrument, because it contemplated an immediate possession taken by the grantee, nor was it an absolute conveyance to the grantee in fee, but merely an executory contract vesting an equitable estate in the grantee, the legal title remaining in the grantor during his lifetime. Of course, it follows that upon the performance by such grantee of all the covenants on his part he was entitled tfo a specific performance of such executory contract. In the case at bar the defendant fully performed the parol agreement on his part. The case, therefore, is very much stronger in favor of the defendant than Jones v. Jones, 6 Conn. 111, 16 Am. Dec. 35, which went to the extreme of holding that if a parent, in consideration of love and affection, makes a voluntary deed to his family by way of settlement, which is inoperative for want of delivery in his lifetime, equity will aid the grantees and secure to them the legal title. Thus far we have considered the question presented as though the defendant and his father were the only parties to the parol agreement. There is another view to be taken of this case, equally favorable to the defendant. The deed was, of course, void as a conveyance of the homestead, by reason of the failure of the wife to sign the same. As already indicated, by the oral agreement she was to sign the deed with her husband, and the defendant was to.give the written contract for their maintenance and support, as mentioned. They all three went to the notary to have that pui'-pose carried into execution. They were prevented from doing so by reason of the -ill advice of the notary. By his advice and through his influence and their own ignorance of the effect of the transaction the wife refrained from signing the deed, and the defendant entirely omitted to give the written contract, because they were all induced to believe that they would better secure the purpose of the parol agreement by the father executing the deed alone and de — 251 — livering tbe same to the defendant. The facts seem to bring the case squarely within the well-established rule that courts of equity will interfere and grant equitable -relief where, in making the contract, “the minds of the parties did not meet, or where in the case of a written contract they did not meet on the terms expressed in the writing, hut did meet on other terms, not.there appearing.” This rule is abundantly supported by the authorities cited by Mr. Melville M. Bige-low in an article entitled “Mistake of Law as a Ground of Equitable Relief,” in 1 Law Quar, Rev. 298. The proposition quoted has been sanctioned by this court, and fully considered upon reason and authority, English and American, in an opinion by Mr. Justice Obtok in Oreen Bay & M. Canal Co. v. Hewitt, 62 Wis. 316. That case and that proposition were reaffirmed in Silbar v. Ryder, 63 Wis. 106, where it was held that “alease which, by reason of the ignorance and mistake of the scrivener, fails to conform to the oral agreement made by the parties, will be reformed if the evidence clearly shows what that agreement was.” See, also, Lusted v. C. & N. W. R. Co. 71 Wis. 396; Hagenah v. Geffert, 73 Wis. 641. Upon the .whole case we. are forced to the conclusion that the defendant, upon his equitable counterclaim, is entitled to the relief demanded in his answer. By the Court.— The judgment of the circuit court is reversed, and the cause remanded with direction to enter judgment in favor of the defendant in accordance with this opinion.