McKinney v. Merritt , 35 Idaho 600 ( 1922 )

BUDGE, J.

This is an action for specific performance. From the record it appears that on March 14, 1917, appellants entered into a written option contract with J. • P. Corcoran, whereby they agreed to sell to him or to his assignee certain real estate and personal property, for the sum of $5,000, to be paid on or before April 14, 1917. The contract acknowledges payment of $100 to appellants by Corcoran, and on the date of the receipt by the latter of the contract, he assigned the same to the respondent herein.

It is conceded that the premises described in the contract were, at the time the contract was entered into, community property. It further appears that the contract was not acknowledged by Mrs. Merritt, as required.by C. S., sec. 4666.

To our minds the only question necessary to be determined is whether, in the absence of the acknowledgment of the option contract by the wife, the contract is a valid conveyance.

C. S., sec. 4666 provides: “The husband has the management and control of the community property .... but he cannot sell, convey or encumber the community real estate unless the wife joins with him in executing and acknowledging the deed or other instrument by which the real estate is sold, conveyed or encumbered.”

In Kohny v. Dunbar, 21 Ida. 258, Ann. Cas. 1913D, 492, 121 Pac. 544, 39 L. R. A., N. S., 1107, this court said: “The wife has an equal interest and ownership with the husband in community property and the only particular in which their rights differ is in the fact that the statute constitutes the husband the managing agent and trustee of the community p artnership. ’ ’

In the- case of Wits-Keets-Poo v. Rowton, 28 Ida. 193, 152 Pac. 1064, it is held that the husband cannot dispose of the community real estate unless the wife joins with him in the conveyance.

In Fargo v. Bennett, ante, p. 359, 206 Pac. 692, which involves the validity of a lease of community property, entered into between Bennett and Fargo, but neither signed nor acknowledged by Mrs. Bennett, in construing C. S., see. 4666, this court said that the husband has the management and control of the community property, but he cannot sell, convey or encumber it unless the wife joins with him in executing and acknowledging the deed or other instrument of conveyance by which the real estate is sold, conveyed or encumbered.

Under the statute as it now exists, and in force at the time of the making of the alleged contract here involved, a sale or encumbrance of community property could be made only in the same manner as the homestead or community real estate occupied as a residence could formerly be conveyed. (Hughes v. Latour Greek R. R. Co., 30 Ida. 475, 166, Pac. 219.) Prior to the enactment of the present statute, the protection of the wife extended only to the property upon which a declaration' of homestead had been filed or to such of the community property as was used as a residence, but this statute has been enlarged so that it now includes all community property.

As was said in Myers v. Eby, 33 Ida. 266, 193 Pac. 77, 12 A. L. R. 535: “Under Rev. Codes, sec. 3106, an acknowledgment by the wife, as provided by law, was essential to the validity of the mortgage.”

In the case of Knudsen v. Lythman, 33 Ida. 794, 200 Pac. 130, it was held that an acknowledgment by the wife, as provided by law, is essential to the validity of a mortgage of community property, and we think the same rule applies where there is a contract of option to sell community property. We are not authorized to eliminate from the statute the requirement that the wife acknowledge as well as execute the instrument whereby it is sought to sell or encumber community property. This is for the legislature and not for the court. We must accept the statutes as we find them and construe them as -they read, where they are 'plain and unambiguous, and are not permitted to apply rules of construction in the absence of ambiguity.

From what has been said it would seem that the rule of law is settled in this state to the effect that an acknowledgment by the wife is necessary to the validity of any instrument whereby community property is sold, conveyed or encumbered. (Childs v. Reed, 34 Ida. 450, 202 Pac. 685.)

Having reached the foregoing conclusion, it is not necessary to determine whether or not there was a legal tender made of the purchase price stipulated in the contract. Neither is it necessary to decide whether the failure to prosecute this action speedily is a bar against the right of respondent to recover.

The judgment in this case is reversed. Costs awarded to appellants.

Rice, C. J., and McCarthy and Dunn, JJ., concur.