Mathews v. Davis
Synopsis
Homestead—Separate Property op Wipe—Unacknowledged Contract por Deed—Specific Performance.—An unacknowledged executory contract signed by a husband and wife to convey a homestead properly claimed under the laws of the state, which is the separate property of the wife, cannot be specifically enforced.
Id.—Acknowledgment by Married Woman.—The acknowledgment by a married woman is an essential part of the execution of a conveyance from her, without which it has no validity.
Id.—Tender op Acknowledged Deed—Refusal op Payment—Laches. The tender of an executed and acknowledged deed cannot avail an applicant for specific performance of an unacknowledged contract for the ccfnveyance of the homestead of a married woman, when payment of the purchase money was refused, and a lapse of twelve to fourteen years occurred after the tender, during which time many thousands of dollars in improvements had been expended upon the premises.
Id.—Specific Performance—Injustice Not Allowed.—A specific performance of a contract to convey real property will not he decreed, even upon a valid agreement, where, upon all the equities presented, such decree would he promotive of injustice; hut in such case the parties will he left to assert their rights, if any they have, at law.
The Court. This action is brought by H. O. Mathews and Mary H. Mathews, his wife, to quiet their title, to obtain a decree that a certain agreement is a cloud upon their title to a lot of land by them owned and possessed, situate and being in the city of Stockton, county of San Joaquin, and to cancel and annul such agreement.
Plaintiffs had a decree as prayed for, from which and from an order denying a motion for a new trial the defendant, Josephine Eltinge, appeals.
[204]The facts as found by the court are not assailed for want of evidence in their support, by the brief of appellant.
They are too lengthy to be reproduced here, but may be epitomized thus:
1. Plaintiffs are, and since a date prior to July 16, 1875, have been, husband and wife, and have resided upon, owned, and occupied the land described in the j complaint.
2. On the sixteenth day of July, 1875, the plaintiffs made their declaration of homestead, in due form as by law required, acknowledged, filed, and had the same recorded, have never abandoned, and still retain, the same as a homestead.
3. On the first day of August, 1878, plaintiffs and J. T. Davis, one of the defendants, and who made default herein, signed and delivered to said Davis an agreement, which recited that Josie Davis (now Josie Eltinge) the daughter of defendant Davis, was in the care and custody of plaintiff, that they had no children of their own and entertained for her the affection of parents for a child, and have intended that their property shall, upon the death of the last of them, inure to her benefit, and whereas the property described in the complaint is subject to a mortgage of about three thousand five hundred dollars.
In consideration of all of which and of a promissory note made to the,m by John T. Davis for three thousand five hundred dollars, payable to them on or before September 12, 1878, to enable them with said amount to remove the lien upon their property, the plaintiffs agreed that, upon the payment of said promissory note according to its terms, they would execute and deliver to said Josie Davis a deed to take effect and become absolute upon the death of the survivor of the plaintiffs, until which time plaintiffs, or the survivor of them, were or was to have possession, control, and use of the property, and were to keep the same in repair, etc.
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