
    B. D. De Kalb v. S. O. Hingston, Appellant.
    Breach of Contract: conveyance of homestead. Where a husband agrees to convey a homestead, and received the full consideration therefor, without his wife’s concurrence, and failed to make such conveyance, such consideration may be recoveres back, though such contract was void because not concurred in and signed by the wife, as a judgment therefor is for the return of the money obtained by a false pretense, rather than for damages for the breach of a contract to convey a homestead.
    
      Appeal from Clarke District Court. — Hon. W. H. Tedeord, Judge.
    Thursday, December 16, 1897.
    The facts of this case, because of the concessions of counsel that but a; single question is to be considered in this'court, may be much simplified from those stated, in the record or argument. The defendant is the head of a family, and was the owner of one hundred1 and seven acres of land. The land isi designated as two-tracts, one containing one hundred acres, and- the other seven acres. The east two acres of the seven-acre tract contained the buildings, and was the homestead of the defendant The transactions between plaintiff! and Hingston were sucb that there was an agreement that Hingston. should convey to plaintiff the two- tracts, including the homestead. Mrs. Hingston was not a party to the agreement. A deed was made, signed by Mr. and Mrs. Hingston, and delivered, but it omitted the two-acre tract that was the homestead, but was accepted by plaintiff in the understanding that it was included. The homestead was afterwards sold to one Kuffcorn, who- is a defendant in the suit, and who sets up- the fact of the purchase of the homestead, and asks that the title thereto 'be quieted in him. The petition asks as a relief that the sale- to Ruffcom he set aside, and the defendant® be required to- specifically perform the agreement to' convey, or that, in case such relief cannot be granted, judgment be rendered against defendant S. O..Hingston for the sum of one thousand, five hundred dollars and costs.- The district court denied the relief for specific performance asked by plaintiff, and qu-ieted the title to- the homestead tract in Ruffcom, -and gave to plaintiff a judgment for one -thousand, two- hundred dollars against S. 0. Hingston, and for costs. Defendant S. 0. Hingston appealed.—
    
      A firmed.
    
    
      Earle & Prouty for appellant.
    
      Harvey & Parrish for appellee.
   Granger, J.

Counsel for appellant' frankly concede the questions of fact in a way to present a single legal proposition, and as to what that proposition- is there is but slight controversy. The legal proposition is entirely controlled by the homestead question involved!. It may be -stated that the .situation, as between De Kalb and Hingston, is such that, were tliere no- homestead- rights in the land, plaintiff would be entitled1 to a decree for specific performance^ which means that plaintiff bought and paid for the land, including the homestead, and was deceived by its being omitted from the conveyance. The district court denied relief by way of specific performance because of the homestead character of the land. It is now contended by appellant that, inasmuch as the contract as to the homestead was void and unenforceable, S. 0. Hingston cannot be held in damages for the failure to perform such a contract. Appellant states the legal proposition to be considered, in this way: “Where a husband agrees to convey' a homestead without his wife concurring, and fails to do so-, can he be made to respond in damages?” Appellee presents the proposition like this: “Where a husband agrees to convey a homestead, and receives the full consideration therefor, without his wife concurring, and fails to- do so, can he be made to refund the money received?” The latter statement brings the proposition directly in line with the conceded facts, and has the merit of avoiding the somewhat uncertain meaning of the term “damages” in appellant’s statement, for there might ¡be a view of appellant’s proposition decidedly favorable to his claim, for there might be damages, under such a contract, other than a return of money wrongfully received. Hence we think the latter statement the better, one of the propositions to be considered. Appellant relies on, and cities, our holding to the effect that such a contract as to a homestead, is void, because the wife concurred therein, and signed the same joint instrument. Appellee concedes all this, and concedes that he has no claim, by virtue of the contract, on the homestead,, or against Mrs. Hingston, but maintains that, because S. O. Hingston represented to him that the deed signed by himself and wife was to, and did, contain the homestead, and that because of such representation he paid for the homestead and did not receive it, Hingston should not be permitted to retain the homestead and the money so wrongfully taken. To permit appellant to retain the ■money is so abhorrent to natural justice that a court could not and should not give its assent thereto' except in obedience to an undoubted and unyielding rule of law, and we are not favored with a reference to such a rule, and have no> knowledge of any such. Such a rule would be a violation of that universal one that denies to a party a legal right to take advantage of his own wrong, a rule that has graced the jurisprudence of civilization throughout its history. The judgment is not, in the sense contended by appellant, damage for1 a breach, of the contract to convey a homestead, but nearer, if not clearly, for a return of money' obtained by a false pretense. We are not in doubt as to the proposition, and the judgment will be affirmed.  