Gerber v. Upton

¶1(after stating the facts). 1. We conclude from the evidence, as undoubtedly did the circuit judge, that it was understood and agreed that complainant was to receive a clear title, and that defendant should convey her interests to him. He fully performed the agreement. She and the estate have had the benefit of it. She surrendered possession under the undoubted belief that *607she had parted with all her interests in the land. Before, the sale, complainant had agreed to bid $3,600, the fair value of the land, which bid was to be based upon the' agreement. It was publicly announced that a clear title would be conveyed, which could not be done without the conveyance of defendant’s right of dower and homestead interests. The statute of frauds does not apply. This is a case of a parol contract fully executed. The statute of frauds cannot be used as a cloak to cover such transactions. The authorities are numerous in this and other courts.

¶22. The homestead right of minor children cannot thus be disposed of by the mother. She cannot of her own act either abandon or convey away this homestead right of her children, when it is not for their interest to do so. Shoioers v. Robinson, 43 Mich. 502, 513 (5 N. W. 988); Riggs v. Sterling, 60 Mich. 643, 652 (27 N. W. 705, 1 Am. St. Rep. 554).

¶33. We do not think that complainant is in position to be subrogated to the rights of the mortgagee. He is presumed to know the law, and therefore to have known at the time that defendant had no right to thus contract away her children’s homestead.

¶4Decree affirmed.