Legal Opinion

Yost v. Devault

Supreme Court of Iowa

Decided June 3, 1859PublishedCited by 10 opinions

Apyeal from Polk District Court. This is a proceeding to enforce the specific performance of a contract for the conveyance of real estate, and was before this court on a former occasion. See 3 Iowa, 345. Since that time, the respondent has amended his answer, and now avers that at the time when the contract was made, the lots which were to be conveyed, constituted his homestead; and that he could not convey them, as his wife refused to join in the deed.

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Apyeal from Polk District Court. This is a proceeding to enforce the specific performance of a contract for the conveyance of real estate, and was before this court on a former occasion. See 3 Iowa, 345. Since that time, the respondent has amended his answer, and now avers that at the time when the contract was made, the lots which were to be conveyed, constituted his homestead; and that he could not convey them, as his wife refused to join in the deed. The bill contains the usual prayer for a specific performance, and for general relief. A decree was rendered dismissing the bill of…

1Opinion of the CourtWoodward, J.

The statute (Code, section 1247,) expressly enacts that a conveyance by the owner, is of no validity, unless the husband and wife, (if the owner is married,) concur in and sign such conveyance. Then, if one of them may make a contract to convey, which shall be obligatory on the other, the statute is easily evaded, and becomes of no *62force. This would be placing the mere'form of the transaction, before the substance. It seems quite manifest, that if one cannot make a' conveyance of the homestead, without the concurrence of the other, he cannot make a contract to convey which will be obligatory…

2Cases cited2 opinions

  1. Foley v. McKeeganSupreme Court of Iowa · 1856
  2. Charless v. LambersonSupreme Court of Iowa · 1855

3Cited by10 opinions

  1. Barton v. DrakeSupreme Court of Minnesota · 1875
  2. Barnett v. MendenhallSupreme Court of Iowa · 1875
  3. Rosholt v. MehusNorth Dakota Supreme Court · 1894
  4. Way v. ScottSupreme Court of Iowa · 1902
  5. Hostetler v. EddySupreme Court of Iowa · 1905

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