Goodwin v. Perkins

TEMPLE, J., concurring specially.

I concur in the judgment, but am not able to agree that the plaintiffs were tenants at will, as argued in the briefs. As the property constituted a homestead, a tenancy of any kind could be created only as provided by law, by an instrument in writing, signed and acknowledged by both husband and wife. If the plaintiffs had paid money to defendants upon a void contract for the purchase of land, they could, after demand, have maintained an action to recover the money. Here they furnish certain personal property upon such a contract, and I see no reason why they may not recover its possession after demand and refusal-. The demand for temporary possession of the land is immaterial, and the action may be regarded as an ordinary suit for the recovery of personal property.