Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1907-05-03
SUPREME court
.Knudtson VS.. Robinson.

sif ..---
knudtson VS.. Robinson.
An action for the specific perform
ance of a written contract for the
sale of $50 acres OF land, not signed
by the wife Of the vendor. may be
maintained by the vendee and relief,
granted so far as possible, although
part Of said land constitutes the
homestead Of the vendor and 100
acres thereof is owned by the wife.
b Specific performance cannot be
decreed as to the homestead nor as
to the land owned by the wife but a
deduction OF the purchase price will
be decreed to the extent of the value
of said homestead and the land
owned by the wife at the time the
contract was made.
The homestead not having been
selected by the vendor or his wife,
and the boundaries thereof not being
ascertainable until selection, decree
of specific performance cannot he
made as to the other lands, but the
cause will be! remanded to the dis
.trict court to determine the value or
the homestead after selection by the
widow of the deceased vendor.
a contract for the sale of a home
stead alone without the signature Rof
the wife is void, and specific per-
Torrance will not lie to enforce the
same, nor can an action for damages
for the breach of such a contract be
maintained against the husband.
4 "A contract for. the sale of land
which includes the homestead and
other land, signed by the husband but
not by the wife, issnot void except so
far as the homestead is concerned.
A vendee may maintain an action
for the specific performance of a con-
tract for the sale of land, although
the Vendor is not able to convey a
material portion Of the land con-
tracted to be sold, and the vendee
will be entitled to a deduction Of the
price as to the deficiency. s.$t
A tender of the purchase price. of
land under a written contract to con-
vey the same is not necessary when.
the vendee repudiates the sale, and
such tender would be futile act
A contract for the sale of land can
not be voided on the ground of the
INVESTIGATION Of the vendor unless he
was in such state Of intoxication as
to be incapable of understanding the
nature and effect Of the transaction.
The fact that the plaintiff has not
filed a claim for damages on account
of IA breach Of contract to convey real
estate with the county court on the
settlement Of the estate of the vendor
will not defeat an action brought
against the vendor for the specific
performance Of the contract.
Enforcing a contract specifically.
SO far as possible against the vendor
in case Of q failure to convey all the
land as provided for by the contract
and adjndgingy the purchase price to
correspond with the value OF the
portion that cannot be conveyed is
not enforcing a new contract.
Appeal from the district court, OF
Mclean county; Hon. w: H. Win
chester, judge.
G. r. Gibson; Lee & Fowler for APP
pellant.
B. G. Skulason; Newton & Dullam,
for respondents.
Opinion BY Morgan, G. Js. Judg-
ment reversed and cause renanded
for further proceedings in accordance
with the opinion, the court holding
that the facts warrant the entering
OF decree for specific Performance
Of the contract with deduction from
the purchase price Of the value Of
whatever 100 acres that the wife may
select for her homestead and d de-
ductions % the value Of the south
west quarter. The district conrt Will
BE- directed to determine from evil
dence to be taken before It within so
days after the filing Of the renitt.tur
In district court. what the value sf
the homestead after selection thereof
By the widow and the southwest quar-
ter of section 10 was and to make
findings thereon and TO render jai q