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on, and paid the purchase price, is entitled | authorized sale of his property, is estopped to a specific performance of the contract.

to dispute the validity of the sale.

Rev. Stat. § 6008; Wait, Fraud. Conv. 2d ed. §§ 436, 437; 2 Lomax's Digest of Real Prop. 41; Thomas v. Dickinson, 12 N. Y. 364; Holland v. Hoyt, 14 Mich. 238; Butler v. Lee, 11 Ala. 885, 46 Am. Dec. 230; Wilkinson v. Scott, 17 Mass. 249; Linscott v. McIntire, 15 Me. 201, 33 Am. Dec. 602: Gibson v. Wilcoxen, 16 Ind. 333; Bowen v. Bell, 20 Johns. 338, 11 Am. Dec. 286: Stowell v. Tucker, 7 Idaho, 312, 62 Pac. 1033.

Escolle v. Franks, 67 Cal. 137, 7 Pac. 425; Godman v. Winter, 64 Ala. 410, 38 Am. Rep. 13; France v. Haynes, 67 Iowa, 139, 25 N. W. 98; Schenck v. Sautter, 73 Mo. 46; Moore v. Hill, 85 N. C. 218; Field v. Doyon, 64 Wis. 560, 25 N. W. 653; Booth v. Wiley, 102 Ill. 84.

A wife is estopped from claiming that she did not join in the conveyance.

Mudgett v. Clay, 5 Wash. 103, 31 Pac. 424; Sadler v. Niesz, 5 Wash. 182, 31 Pac. 630, 1030; Konnerup v. Frandsen, 8 Wash. 551, 36 Pac. 493; Payne v. Still, 10 Wash. 433, 38 Pac. 994; Boston Clothing Co. v. Solberg, 28 Wash. 263, 68 Pac. 715; Washington State Bank v. Dickson, 35 Wash. 641, 77 Pac. 1067; Shinn v. Macpherson, 58 Cal. 599; Riddell v. Shirley, 5 Cal. 488; Bishop v. Hubbard. 23 Cal. 514, 83 Am. Dec. 132; Lunt v. Neeley, 67 lowa, 97, 24 N. W. 739; Wooters v. Feeny, 12 La. Ann. 449; Norton v. Nichols, 35 Mich. 149; Reed v. Morton, 24 Neb. 760, 1 L. R. A. 736, 8 Am. St. Rep. 247, 40 N. W. 282; Bodine v. Killeen, 53 N. Y. 93; Godfrey v. Thornton, 46 Wis. 679, 1 N. W. 362; Sexton v. Wheaton, 8 Whert. 239, 5 L. ed. 607; Parker v. Coop, 60 Tex. 111; Storrs v. Barker, 6 Johns. Ch. 166, 10 Am. Dec. 316; Brown v. Coon, 36 Ill. 243, 85 Am. Dec. 402; Anderson v. Cosman, 103 'owa, 266, 64 Am. St. Rep. 177, 72 N. W. 523; Bradshaw v. Remick, 90 Iowa, 409, 57 N. W. 897; Lawrence v. Spear, 17 Cal. 421; Reis v. Lawrence, 63 Cal. 129, 49 Am. Rep. 83.

Where the husband alone aliens homestead, and delivers or abandons premises, it has been held null in favor of grantees, and so vests title in him notwithstanding the invalidity of conveyance.

Brown v. Coon, 36 11. 243, 85 Am. Dec. 402; Fishback v. Lane, 36 Ill. 437; Hall v. Fullerton, 69 Ill. 448; Stewart v. Mackey, 16 Tex. 56, 67 Am. Dec. 609; Jordan v. Godman, 19 Tex. 273; Vasey v. Township, 1, 59 Ill. 188; Harkness v. Burton, 39 Jowa, 101; McDonald v. Crandall, 43 Ill. 231, 92 Am. Dec. 112; Hoskins v. Litchfield, 31 Ill. 137, 83 Am. Dec. 215.

There can be no reason why a married woman should not be estopped by her fraudulent acts when they amount to a tort.

Glidden v. Strupler, 52 Pa. 403; Johns v. Reardon, 11 Md. 470.

Messrs. Forney & Moore, for respond

Sections 3040 and 3041 of the Revised Statutes of 1887, covering the conveyances and abandonment of the homestead, are simply rules of evidence and are controlled by the same legal principles as conveyances falling under the statute of frauds.

Andola v. Picott, 5 Idaho, 27, 46 Pac. 928; Stowell v. Tucker, 7 Idaho, 312, 62 Pac. 1033: Law v. Butler, 44 Minn. 482, 9 L. R. A. 856, 47 N. W. 53; Walker v. Kelly, 91 Mich. 212, 51 N. W. 934; Harkness v. Burton, 39 Iowa, 101.

Where an oral conveyance of land made, which ought to have been in writing. and acknowledged under the statute of frauds, in a state, and the vendee has been placed in possession of the property by the vendor and paid the purchase price, if there be nothing illegal or immoral in the transaction, a court of equity will decree specific performance of the verbal contract.

Wait, Fraud. Conv. §§ 436-438, and notes; Andola v. Picott, 5 Idaho, 27, 46 Pac. 928; Von Rosenberg v. Perrault, 5 Idaho, 719, 51 Pac. 774; Stowell v. Tucker, 7 Idaho, 312, 62 Pac. 1033; Grimshaw v. Belcher, 88 Cal. 217, 22 Am. St. Rep. 301, and note, 26 Pac. 84; Flickinger v. Shaw, 87 Cal. 126, 11 L. R. A. 134, 22 Am. St. Rep. 234, and notes, 25 Pac. 268; Burlingame v. Rowland, 77 Cal. 315, 1 L. R. A. 829, 19 Pac. 526; Manly v. Howlett, 55 Cal. 95; Bakersfield Town Hall Asso. v. Chester, 55 Cal. 98; Anson v. Townsend, 73 Cal. 415, 15 Pac. 49; Freeman v. Freeman, 51 Barb. 306; Karns v. Olney, 80 Cal. 90, 13 Am. Et. Rep. 101, 22 Pac. 57; Sedgw. & W., Trial of Title to Land, 844-847; Fry, Spec. Perf. 259, 260; Bigelow, Estoppel, 3d ed. 470, 513; Gilbert v. American Surety Co. 61 L. R. A. 253, 57 C. C. A. 619, 121 Fed. 499; Manchester & L. R. Co. v. Concord R. Corp. 66 N. H. 100, 9 L. R. A. 689, 3 Inters. Com. Rep. 319, 49 Am. St. Rep. 582, 20 Atl. 383. The statute of frauds applies to ecutory, and not to executed, contracts. Coffin v. Bradbury, 3 Idaho, 770, 95 Am. St. Rep. 37, 35 Pac. 715.

The rule of estoppel is that one who, with knowledge, accepts the proceeds of an un

ex-ents:

The statutes of Idaho specifically declare how the sale of a homestead may be made. This method of procedure excludes all others.

Barton v. Drake, 21 Minn. 305; Law v.

Butler, 44 Minn. 482, 9 L. R. A. 858, 47 N. | Leftwich v. Neal, 7 W. Va. 569; Elliott v.
W. 53.

Peirsol, 1 Pet. 328, 7 L. ed. 164; Barnett v.
Shackleford, 6 J. J. Marsh. 532, 22 Am.
Dec. 100; Stewart, Husb. & W. §§ 409-420;
Washb. Real Prop. 4th ed. p. 78.

A married woman can only be devested of her estate in the manner prescribed by statute, and the homestead can only be conveyed in the mode prescribed by statute.

Mathews v. Davis, 102 Cal. 207, 36 Pac. 358; Jackson v. Torrence, 83 Cal. 533, 23 Pac. 695; Cohen v. Davis, 20 Cal. 195; Security Loan & T. Co. v. Kauffman, 108 Cal. 218, 41 Pac. 467; Gleason v. Spray, 81 Cal. 217, 15 Am. St. Rep. 47, 22 Pac. 551; Barber v. Babel, 36 Cal. 14; Mellen v. McMannis (Idaho) 75 Pac. 98.

On petition for rehearing.

The wife is released from her commonlaw disability only in so far as an enlargement of her rights may be given by statute, and no farther.

Bassett v. Beam, 4 Idaho, 107, 36 Pac. 501; Dernham v. Rowley, 4 Idaho, 754, 44 Pac. 643; Northwestern & P. H. Bank v. Rauch, 5 Idaho, 752, 51 Pac. 764, 7 Idaho, 152, 61 Pac. 516.

Fraud will not devest a married woman's title in the face of a statute declaring a different and exclusive mode of devestiture.

Morrison v. Wilson, 13 Cal. 495, 73 Am. Dec. 593; Mathews v. Davis, 102 Cal. 207, 36 Pac. 358; Jackson v. Torrence, 83 Cal. 533, 23 Pac. 695; California Fruit Transp. Co. v. Anderson, 79 Fed. 404; Security Loan | & T. Co. v. Kauffman, 108 Cal. 218, 41 Pac. 467; Gleason v. Spray, 81 Cal. 217, 15 Am. St. Rep. 47, 22 Pac. 551; Barber v. Babel, 36 Cal. 14; Kantrowitz v. Prather, 31 Ind. 92, 99 Am. Dec. 587; Steel v. St. Louis Smelting & Ref. Co. 106 U. S. 447, 27 L. ed. 226, 1 Sup. Ct. Rep. 389.

The ratification of an invalid sale by the acceptance of the purchase money is wholly destitute of the essential elements of estoppel in pais.

Henshaw v. Bissell, 18 Wall. 271, 21 L. Trust Company to secure the payment of ed. 838; Pasley v. Freeman, 3 T. R. 51. $950, together with interest thereon, and $550 in cash; and thereupon, with the consent of said agents, the appellant entered into the possession of said premises, and moved his family into the residence situated upon said premises, and has ever since ocun-cupied the whole of said premises as a residence, all of which was known to the respondents. That, instead of paying said $550 as agreed, the same was paid in payments as follows: November 1, 1901, $100; December 1, 1901, $175; January 4, 1902, $100; July 6, 1902, $100; September 16, 1902, $100; aggregating in all the total sum of $525. Said sums were paid over by the agents to the respondent Jay Woodworth. That after said payments were made the appellant personally demanded of Jay Woodworth a deed to said premises, and offered to pay him then and there the $25

For an estoppel in pais there must be conduct, acts, language, or silence, amounting to a representation or concealment of material facts, and the misrepresented or concealed facts known to the party sought to be charged with the estoppel, and known to the other party; and the conduct must be with the expectation that it will be acted on, or will likely be.

Norfolk & W. R. Co. v. Perdue, 40 W. Va. 454, 21 S. E. 755; Williamson v. Jones, 43 W. Va. 562, 38 L. R. A. 700, 64 Am. St. Rep. 891, 27 S. E. 410; Glidden v. Strupler, 52 Pa. 402.

Equity cannot breathe life into a legal nonentity.

Sullivan, Ch. J., delivered the opinion of the court:

This is an action to compel specific performance of a contract for the conveyance of real estate situated in Moscow, Latah county. It appears from the record: That the respondents are husband and wife, and that on the 7th day of January, 1895, the husband purchased the E. 1⁄2 of lots 4, 5, and 6 in block 2, Fry's addition to the town of Moscow, Latah county, and the consideration paid therefor was money acquired by the respondent Jay Woodworth subsequent to the marriage of the respondents. That on the 20th day of March, 1895, while respondents were residing on said premises and occupying the same as a homestead, the respondent Lillie I. filed her declaration of homestead upon said premises. That some time prior to the 30th day of August, 1901, the respondents had removed from Moscow, in the county of Latah, to Wallace, in the county of Shoshone, and that respondent Woodworth had listed said property for sale with real-estate agents residing and doing business in said town of Moscow at the price of $1.500; and on said last-mentioned date the appellant paid to said agents for the respondent $25 for a thirtyday option to purchase said premises, and thereafter, on the 20th day of September, the appellant took up said option, and orally promised the said agents to purchase said premises, and to pay the sum of $1,500 therefor, as follows to wit: To assume a mortgage upon said premises executed by the respondents to the Vermont Loan &

1 Story, Eq. Jur. ¶ 177; Herman, Estoppel, 1099; Mattox v. Hightshue, 39 Ind. 95; Rogers v. Higgins, 48 Ill. 211;

still due on the purchase price, with interest on all deferred payments, and the said Woodworth promised to execute a conveyance to said premises as soon as he conveniently could. That after the appellant had entered into possession of said premises he made improvements thereon of the value of $250. That after appellant had so entered into the possession the respondent Lillie I. was informed of the improvements made thereon, and knew that said improvements had been made and possession taken by the appellant under the belief that he was the owner of said premises, and to all of which said Lillie I. made no objection, and consented thereto. Thereafter, in the month of March, 1903, the appellant again tendered the respondents the sum of $25, as the balance still due on the purchase price, and demanded of them that they execute to him a good and sufficient deed of conveyance to said premises, which demand the respondent then and there refused, and the respondent Jay Woodworth, when asked his reason for refusing to execute the deed, informed the appellant that he had consulted with attorneys, and they had advised him that he could not be compelled to make the deed. That the payments made by appellant, including the $525 referred to. together with interest on said mortgage, taxes, and the improvements made by appellant, make a total of $1,181.57. Upon the foregoing facts, judgment was rendered in favor of the respondents, decreeing to them the possession of said premises, and granting to the appellant a judgment for $844.72; that being the balance after deducting the rental at the te of $12.50 per month, with interest thereon, from the sum of $1.181.57, above mentioned. The case was decided upon the theory that a specific performance of the contract of sale could not be enforced, because of the provisions of our statute in regard to the conveyance of real estate by married women.

The question presented for decision is whether the respondents should be compelled to convey said property to the appellant under the facts of this case, it having been at one time occupied as a homestead. The sections of our statute in regard to the conveyance or encumbrance of a homestead by a married person, and the manner in which a homestead may be abandoned, are as follows:

"Sec. 2921. No estate in the homestead of a married person, or in any part of the community property occupied as a residence by a married person, can be conveyed or encumbered by act of the party, unless both husband and wife join in the execution of the instrument by which it is so conveyed or encumbered, and it be acknowledged by the

wife as provided in chapter 3 of this title. "Sec. 2922. No estate in the real property of a married woman passes by any grant or conveyance purporting to be executed or acknowledged by her, unless the grant or instrument is acknowledged by her in the manner prescribed in chapter 3 of this title, and her husband, if a resident of the territory, joins with her in the execution of such grant or conveyance."

"Sec. 3040. 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.

"Sec. 3041. A homestead can be abandoned only by declaration of abandonment, or a grant or conveyance thereof, executed and acknowledged (1) by the husband and wife, if the claimant is married; (2) by the claimant, if unmarried."

Prior to the adoption of § 3041, above quoted, creditors of the homesteader often attached the premises homesteaded, and attempted to subject the same to the payment of the debt, on the ground of abandonment; and, in order to make the homestead more secure, a rule of evidence was established by the adoption of said section, and any litigant attempting to subject the homestead to the payment of his debt must show that the same was abandoned by a written declaration of abandonment, properly executed and acknowledged. The provisions of that section are not applicable to the case at bar. The case of Mellen v. McMannis (Idaho) 75 Pac. 98, decided by this court, is not in point. In that case it was not shown that the purchaser ev went into the possession of the premises or put any improvements thereon, or that Clark ever accepted the purchase price thereof, or that his wife ever knew any thing about the sale or ever consented

thereto.

Sections 3040 and 3041 are in the nature of rules of evidence, and are subject to the same legal principles as are conveyances falling under the statute of frauds, and the rules of equitable estoppel and waiver. We are aware that there is much conflict among the decisions of the question of how far the doctrine of equitable estoppel applies to married women. One of the leading decisions' of the Pacific Coast states is that of Morrison v. Wilson, 13 Cal. 495, 73 Am. Dec. 593. See also cases cited in 1 Notes on California Reports, pp. 604. 605. In § 814, 2 Pomeroy's Equity Jurisprudence, it is stated as follows: "Upon the question how far the doctrine of equitable estoppel by conduct applies to married women, there is some conflict among the decisions. The tendency of modern authority, however, is strongly towards the enforcement of the

same,

as

estoppel against married women, as against | otherwise than by operation of law, or a persons sui juris, with little or no limita- conveyance or other instrument in writing, tion on account of their disability. This subscribed by the party creating, granting, is plainly so in states where the legislation ssigning, surrendering, or declaring the has freed their property from all interest or or by his lawful agent thereunto control of their husbands, and has clothed authorized in writing. It is conceded that them with partial or complete capacity to no instrument in writing has been executed deal with it as though they were single. in this case. Section 6008, Rev. Stat.. Even independently of this legislation there provides that the section above cited must is a decided preponderance of authority susnot be construed to affect the power of a taining the estoppel against her either when testator in the disposition of his real propshe is attempting to enforce an alleged erty by a last will and testament, nor to right or to maintain a defense." The author prevent any trust from arising or being excites modern English cases, as well tinguished by implication or operation of American. to sustain the text. In the case law, nor to abridge the power of any court of Galbraith v. Lunsford, 87 Tenn. 89, 1 L. to compel the specific performance of an R. A. 522, 9 S. W. 365, in referring to Mor- agreement in case of part performance rison v. Wilson, 13 Cal. 495, 73 Am. Dec. thereof. In the case at bar it is shown that 593, the Tennessee court says that the case the contract sued on is an executed contract, of Morrison v. Wilson, 13 Cal. 495, 73 Am. so far as appellant is concerned. Hence, so Dec. 593, "relied on so confidently by far as the statute of frauds is concerned. counsel for complainant, seems to not only the trial court should have compelled the deny the application of an estoppel in pais respondents to convey the property in conto a married woman, but goes so far as to troversy, by good and sufficient deed, to the hold that affirmative fraud on her part will appellant. Courts of equity will not permit not effect that result. It is sufficient to say the statute of frauds or the statute in reof this c'se that it not only loses sight of gard to conveyance of married women to be the distinction referred to as to defective a shield to protect fraud; and those statutes execution of a contract, but is directly op- were not enacted to encourage frauds and posed to our own adjudged cases, so far as cheats. The appellant had paid the price the element of fraud is concerned." In greed to be paid for the property, had I'ilcher v. Smith, 2 Head, 208, it is said: taken possession thereof, and expended $250 "The legal disability of coverture carries in improving the same, all of which was with it no license or privilege to practise assented to by respondent Lillie I.; and, fraud or deception on other innocent per- under the well-established rules of law apsons." plicable to the case, the appellant is the owner of the equitable title thereto. Because of the facts of this case, the principle that governs is more in the nature of an estoppel or waiver on the part of respondent Lillie I., and not the broad principle of abandonment, as suggested by the provisions of § 3041, Rev. Stat., above quoted. While the provisions of the sections above quoted were made for the protection of married woman, they were not intended to operate as a shield to relieve them against a fraudulent transaction, such as the one under consideration, and she is estopped by her own acts from interposing the provision of said sections as a valid defense to this action. The verbal agreement for the transfer of the homestead in question was assented to by both husband and wife, and was followed by change of possession, and permanent improvement placed thereon by the purchaser, and a payment of the purchase price. Those acts operated to transfer the equitable title to the appellant. That being true a court of equity will compel the respondents to convey the legal title to he appellant.

The provisions of our statutes above quoted must not be so construed as to permit the respondent Lillie I. to reap the benefits of a fraud perpetrated on the appellant. It must be borne in mind that there is no conflict in the evidence in this case whatever. The legal disability of married women in this state has been almost entirely removed. They have been given elective franchise; they may hold office; and under the 2d section of an act approved March 9, 1903 (Sess. Laws 1903, p. 346), the wife is given the management, control, and absolute power of disposition of her separate property, with like effect as a married man may in relation to his real and personal property. It is true that said act was passed subsequent to the contract involved in this suit, but this only tends to show and support the doctrine laid down in 2 Pom. Eq. Jur. § 814.

As to the statute of frauds, § 6007, Rev. Stat., provides that no estate or interest in real property, other than for leases having a term not exceeding one year, nor any trust or power over or concerning it, or in any manner relating thereto, can be created. granted, assigned, surrendered, or declared

The judgment is reversed, and the cause remanded for further proceedings in con

expressed. | parties and their privies, whether by blood, by estate, or by contract. A stranger who is not a party nor a privy can neither be bound nor aided. Since the whole doctrine is a creature of equity and governed by equitable principles, it necessarily follows that the party who claims the benefit of an estoppel must not only have been free from fraud in the transaction, but must have acted with good faith and reasonable diligence; otherwise no equity will arise in his favor." Applying this rule to the party claiming exemption from the doctrine of estoppel, what knew the defendant appellant entered into is her stana.ng in a court of equity? She the possession of the property, put valuable improvements thereon, and paid all but $25 he demands a deed, comes into a court of of the agreed purchase price, and then, when equity and asks for relief under a plea that she had filed a homestead declaration on the property; he offering to allow plaintiff to take judgment for amount found due the plaintiff after deducting rental for the property for the time it was occupied by plaintiff, and she asking to be dismissed with her costs. Under the rule laid down by Mr. Counsel for petitioner filed a lengthy pe- Pomeroy, above quoted, it is immaterial tition setting up many reasons why a rewhether there was an allegation or proof hearing should be granted. The earnestness of fraud on the part of the defendants or of the petition, and well-known ability of not. He says: "The party who claims the counsel representing her, prompted the court enefit of an estoppel must not only have to hear further argument, and a rehearing been free from fraud in the transaction, but was granted. Briefs were filed and argu- must have acted with good faith and reasonments heard at the March term at Lewiston. able diligence; otherwise no equity will arise The questions discussed are, first, as to the in his favor." Now, what was the duty of estoppel of Mrs. Woodworth; secondly, that Mrs. Woodworth when she visited the premiof fraud on her part. These questions were ses in dispute, and found them occupied by discussed on the hearing and were consid- appellant and his family, making valuable ered by the court from every standpoint be- and lasting improvements upon the house in fore the opinion was finally agreed upon. good faith, believing they were the owners We agree that the legislature of this state thereof? Mrs. Grice, wife of appellant, testihas uniformly dealt kindly, and we think fies: "I am the wife of plaintiff. Was his fairly, in protecting married women in their wife at the time he moved into and took property rights. In this legislation for her possession of the Woodworth property. Am protection, it was not intended to shield her acquainted with Mrs. Woodworth, one of the in any wrongful act. Under the facts in defendants in this action. Have known her this case, which are fully stated in the opin- for eight or nine years at Moscow. She ion by Mr. Chief Justice Sullivan, I do not was living either at Wallace or Wardner at think she can escape the doctrine of equi- the time we took possession of the property. table estoppel. Counsel for petitioner call I knew of her coming back to Moscow two our attention to a number of authorities, years ago,--the spring of 1902. I was down among them being § 813, Pomeroy's Eq. Jur.. at the hospital one afternoon, and met Mr. vol. 2. We quote the section from their Woodworth in the hall. He was going brief: "The measure of the operation of an down-stairs, and he said: 'Lillie is upestoppel is the extent of the representation stairs. You had better go upstairs and see made by one party, and acted on by the oth- her.' Miss Baker was with me at the time. er. The estoppel is commensurate with the We went upstairs. Mrs. Woodworth was in thing represented, and operates to put the the parlor, and we sat down and talked. party entitled to its benefit in the same po- In our conversation, she asked me how I sition as if the thing represented were true. liked our new home. I said, 'Real well;' With respect to the persons who are bound that it was fine, and such a pretty location, by, or who may claim the benefit of, the es---and remarked that it was rather large. toppel, it operates between the immediate She said that was the objection she always

formity with the views herein Costs are awarded to appellant.

Stockslager, J., concurs.

Ailshie, J., dissenting: If it should be conceded, which I am not now prepared to do, that the doctrine of estoppel in pais can be applied to a mar. ried woman in this state, still I do not think the conduct of the wife, as shown in this case, is sufficient to establish an estoppel against her. It is clear from the record that the appellant did not contract with the husband or part with his money upon any representation or action of the wife, and she cannot, therefore, be charged with any acts of fraud. It is equally clear, without citation of authority, that the wife shouli not be held for the fraudulent acts of her husband, in which she has not particip ted. For this reason, the judgment should be

affirmed.

A petition for rehearing having been filed. Stockslager, Ch. J., on May 13, 1905, handed down the following additional opin

ion:

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