Kinsell v. Thomas , 18 Cal. App. 683 ( 1912 )

The petition points out that, in the original opinion herein, we did not directly pass upon the contention, urged by counsel for the plaintiff in their brief, "that a homestead cannot be alienated in any manner whatsoever, except as prescribed by the code," and that, inasmuch as the code provides that "the homestead of a married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife" (Civ. Code, sec. 1242), a parol gift of real property upon which the homestead of a married person subsists at the time of such gift is absolutely void and cannot, therefore, be enforced, notwithstanding that such gift may be the result of the joint act of both spouses for whose benefit such homestead has been declared.

While it is true that we did not discuss this precise question in the original opinion, the necessary effect of the decision is that a parol gift of real property by the husband and wife, for whose benefit a homestead had been declared thereon and is in existence at the time of such gift, may and will be enforced by a court of equity where the circumstances of such gift are similar to those under which a like gift of real property not impressed with a homestead will be so enforced. In our original investigation of the questions presented by this record, we conceived the settled rule to be as above stated, and, therefore, regarded a discussion of the point pressed in the petition rather as supererogatory than necessary.

All that counsel say respecting the legal requisites which our code prescribes shall be observed in order to legally abandon or convey or encumber the homestead of a married person must be conceded to be sound. And, as counsel declare, our supreme court, in the cases of Matthews v. Davis, 102 Cal. 202, [36 P. 358], Hart v. Church, 126 Cal. 471, [77 Am. St. Rep. 195, 58 P. 910, 59 P. 296], and Friermuth v.Steigleman, 130 Cal. 392, [80 Am. St. Rep. 138, 62 P. 615], has very clearly shown that the homestead of a married person cannot be abandoned, conveyed or encumbered, except by a substantially strict compliance with the methods prescribed by the statute for the achievement of any of those ends. The absolute soundness of the conclusions arrived at in those cases cannot for a moment be questioned.

But, as we view the proposition now submitted in the case at bar, the question discussed and decided in the cited cases does not arise here. The question here is not whether the parents of Richard Thomas undertook to convey a portion of their homestead without the observance of the legal requisites essential to the conveyance of such right or title to the property involved, but whether the circumstances attending their joint gift of said property to their son are such as to justify a court of equity in denying to them the right to repudiate such gift for any legal as distinguished from equitable reason that might, in an action at law, operate to invalidate such an agreement.

The doctrine that verbal contracts for the sale of land, if part performed by the party seeking the remedy, may be specifically enforced, is an elementary principle in equity jurisprudence and of universal application throughout the American states. Indeed, it had its origin in English chancery law, and merely means, where invoked, the application of the doctrine of equitable estoppel to those unconscientious transactions which, though sustainable in law, courts of equity frown upon and will not uphold. In other words, the enforcement by courts of equity of verbal contracts for the sale or conveyance of land does not proceed upon the theory that the statutes requiring contracts for that purpose to be in writing are invalid or should not be strictly adhered to, but solely upon the theory that a party entering into a verbal agreement to convey his land to another should not be permitted in equity to withdraw therefrom or refuse to execute such agreement and to shield such act, if the same be unconscientious and will operate as a fraud upon the rights of the other party, behind the statute. And we have been shown no reason, and we frankly confess that we can conceive of none, why an oral agreement to sell land upon which there subsists at the time of the making of such agreement a homestead of married persons, such agreement having been jointly made by the husband and wife for whose benefit such homestead has been declared, should not as well, when the exigencies of the situation justify it, be subject to the government of equitable principles, appropriate in equity to such agreements, as are such agreements involving real property upon which there is no homestead.

The legislature obviously conceived and evinced in the statute concerning the transfer generally of real property no less solemnity in the act of conveying such property upon which there is no homestead than in the act of transferring the homestead of a married person, for section 1091 of the Civil Code provides that "an estate in real property other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument inwriting, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing." No less or no more is required for the transfer of a homestead of a married person, and if, as is admitted to be true, an oral agreement for the sale of real property not embarrassed by a homestead may, under certain conditions, be enforced in equity, upon what principle or rational course of reasoning may it be held that such an agreement involving property upon which there is a homestead of a married person may not, under similar conditions, likewise be enforced? None can, in our opinion, be suggested.

As stated, equity does not interpose relief as to such agreements upon the theory that the statutory requirement that they shall be committed to writing in order to be enforceable in law is invalid or should not be complied with. On the contrary, equity regards such statutory requirements as of binding force in law; but, acting in personam and operating directly upon the consciences of the parties to such agreements, equity merely says that a party to such an agreement will be estopped from standing on his legal rights in support of his refusal to carry out his part of the agreement, where the circumstances, as here, disclose that such conduct on his part would be unconscientious and work a fraud upon the rights of the other party.

As shown in the original opinion, the court found from sufficient evidence that the parents of Richard Thomas agreed to give him the land in controversy upon the condition that he would establish a home upon it; that he accepted the gift upon that condition, in execution of which he purchased a house, removed it to the land, erected a barn on said land, planted it to trees, filled it in with dirt, and otherwise improved and equipped it for the purposes of a home; that he took up his residence on the place and there resided, claiming it as his own, for a considerable period prior to the death of his mother and for a greater period before his father executed the conveyance of the land to the plaintiff; that his claim of ownership of the land after he had improved it as described at great expense was acquiesced in by his parents up to the time of the death of his mother; that the improvements he put upon the lands so enhanced the value of the property that, whereas it was of no greater value than $75 when it was given to him, at the time of the attempted conveyance of it by his father to the plaintiff in consideration of the sum of $10, it was valued at $1,500. To say that upon these facts a court of equity is too impotent to afford relief or that the findings do not show a case for equitable interference and the application of the doctrine of equitable estoppel against the claim that the gift is nonenforceable because it involved an attempt, futile in law, to transfer the homestead of the donors, would, in our judgment, be a reproach upon that branch of our system of jurisprudence justly distinguished for the efficacy of its remedial power in those cases which, like this, would, but for such interference, stand as exemplars of the rankest injustice sanctioned only by the unyielding obstinacy of legal rules.

We are unable to agree with counsel for the appellant upon the proposition herein discussed, and a rehearing is, therefore, denied.

Burnett, J., and Chipman, P. J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 14, 1912.