Loupe v. Smith

PRINGLE, C. Appeal from judgment. Action to quiet title brought by the respondent, a married woman. The appellant answers, and files a cross-complaint, setting up a contract in writing between the parties for the exchange of the land described in the complaint for lands of his own, with bonus of fifteen thousand dollars to be paid by him. The consideration is the mutual covenants of the parties. The contract is signed by both parties, the husband of the respondent signing her name as her attorney to the first contract, and the respondent affirming it by a supplemental agreement signed by herself. But the contract was never acknowledged by the respondent. The court below held for that reason that it was not her contract, and gave judgment in her favor. The case is an exceptional one, growing out of the transition state of the law in reference to married women, when the code was gradually throwing off the disabilities which were meant as a shield for her, but were often used by her as a sword.

The appellant by his cross-complaint claims specific performance of the contract and damages for its breach. But deferring [493]to the ruling of this court in the cases of Jackson v. Torrence, 83 Cal. 521, Banbury v. Arnold, 91 Cal. 606, and Mathews v. Davis, 102 Cal. 202, which denied the relief of a specific performance when there was no acknowledgment by the married woman, he urges now only his claim for damages. His contention is, that a denial of the gracious equitable remedy of a specific performance does not necessarily involve a denial of the legal remedy in damages. His main contention, however, is that the cases above cited were decided before the amendments to the Civil Code of 1891, and that as a result of those amendments the necessity of any acknowledgment by a married woman was removed. The contract was executed in December, 1894, between the time of the amendments of March 19, 1891, and the amendment of March 14, 1895.

The appellant’s position is that the true effect of the amendments of 1891 was to repeal all the provisions requiring an acknowledgment by a married woman to a conveyance of her property. If he is right in this position he would he entitled to a specific performance.

The argument is based upon the implication of repeal attending the express repeals of 1891. The argument is necessarily technical; and, in order to appreciate the scope and intent of the repeals of 1891, it is best to put the sections before the eye as they stood before and after the repeals.