SULLIVAN, C. J. —
This is an action to compel specific performance of a contract for the conveyance of real estate situated in Moscow, Latah county. It appears from the record that the respondents are husband and wife, and that on the seventh day of January, 1895, the husband purchased the east one-half of lots 4, 5 and 6, in block 8, Fry’s addition to the town of Moscow, Latah county, and the consideration paid therefor was money acquired by the respondent, Jay Woodworth, subsequent to the marriage of the respondents; that on the twentieth day of March, 1895, while respondents were residing on said premises and occupying the same as a homestead, the respondent, Lillie I., filed her declaration of homestead upon said premises; that sometime prior to the thirtieth day of August, 1901, the respondents had removed from Moscow, in the county of Latah, to Wallace, in the county of Shoshone, and that respondent Woodworth had listed said property for sale with real estate agents residing and doing business in said town of Moscow, at the price of $1,500; and on said last-mentioned date the appellant paid to said agents for the respondent $35 for a thirty-day option to purchase said premises, and thereafter, on the twentieth day of September, the appellant took up said option and orally promised the said agents to purchase said premises and to pay the sum of $1,500 therefor as follows, to wit: To assume a mortgage upon said premises executed by the respondents to the Vermont Loan and Trust Company, to secure the payment of $950, together with interest thereon and $550 in [464]*464cash, and thereupon, with the consent of said agents, the appellant entered into the possession of said premises and moved his family into the residence situated upon said premises, and has ever since occupied the whole of said premises as a residence, all of which was known to the respondents; that instead of paying said $550 as agreed, the same was paid in payments as follows: November 1, 1901, $100; December 1, 1901, $175; January 4,1902, $100; July 6, 1902, $100; September 16, 1902, $100 — aggregating in all the total sum of $525. Said sums were paid over by the agents to the respondent, Jay Woodworth; ithat after said payments were made, the appellant personally •demanded of Jay Woodworth a deed to said premises and offered to pay him then and there the $25 still due on the purchase price, 'with interest on all deferred payments, and the said Woodworth promised to execute a conveyance to said premises as soon as he conveniently could; that after the appellant had entered into possession of said premises, he made improvements thereon .of the value of $250; that after appellant had so entered into -the possession, the respondent, Lillie I., was informed of the •improvements made thereon and knew that said improvements Lad been made and possession taken by the appellant under the 'belief that he was the owner of said premises, and to all of which said Lillie I. made no objection and consented thereto; •thereafter, in the month of March, 1903, the appellant again •tendered the respondents the sum of $25 as the balance still .due on the purchase price, and demanded of them that they •execute to him a good and sufficient deed of conveyance to said -premises, which demand the respondent then and there refused, ,and the respondent, Jay Woodworth, when asked his reason for refusing to execute the deed, informed the appellant that he had consulted with attorneys and they had advised him that he •could not be compelled to make the deed; that the payments made by appellant, including the $525 referred to, together -with interest on said mortgage, taxes and the improvements made by appellant make a total of $1,181.57.
Upon the foregoing facts, judgment was rendered in favor .of the respondents decreeing to them the possession of said premises and granting to the appellant judgment of $844.72, [465]*465tbat being the balance after deducting the rental, at the rate of $12.50 per month, with interest thereon, from the sum of $1,181.57 above mentioned. The case was decided upon the theory that a specific performance of the contract of sale could not be enforced because of the provisions of our statute in regard to the conveyance of real estate by married women.
The question presented for decision is whether the respondents should be compelled to convey said property to the appellant under the facts of this case, it having been at one time occupied as a homestead. The sections of our statute in regard to the conveyance or encumbrance of a homestead by a married person and the manner in which a homestead may be abandoned, are as follows:
“Sec. 2921. No estate in the homestead of a married person, or any part of the community property occupied as a residence by a married person can be conveyed or encumbered by act of the party, unless both husband and wife join in the execution of the instrument by which it is so conveyed or encumbered, and it be acknowledged by the wife as provided in chapter III of this title.
“Sec. 2922. No estate in the real property of a married woman passes by any grant or conveyance purporting to be executed or acknowledged by her, unless the grant or instrument is acknowledged by her in the manner prescribed in chapter III of this title, and her husband, if a resident of the territory, joins with her in the execution of such grant or conveyance.”
“See. 3040. The homestead of a married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife.
“See. 3041. A homestead can be abandoned only by a declaration of abandonment, or a grant or conveyance thereof, executed and acknowledged: 1. By the husband and wife, if the claimant is married; 2. By the claimant, if unmarried.”
Prior to the adoption of section 3041 above quoted, creditors of the homesteader often attached the premises homesteaded and attempted to subject the same to the payment of the debt [466]*466on the ground of abandonment, and in order to make the homestead more secure, a rule of evidence was established by the adoption of said section, and any litigant, attempting to subject the homestead to the payment of his debt must show that the same was abandoned by a written declaration of abandonment properly executed and acknowledged. The provisions of that section are not applicable to the case at bar.
The case of Mellen v. McMannis, 9 Idaho, 418, 75 Pac. 98, decided by this court, is not in point. In that case it was not shown that the purchaser ever went into the possession of the premises, or put any improvements thereon, or that Clark ever .accepted the purchase price thereof, or that his wife ever knew anything about the sale, or ever consented thereto.
Sections 3040 and 3041 are in the nature of rules of evidence, and are subject to the same legal principles as are conveyances falling under the statute of frauds, and the rules of equitable estoppel and waiver. We are aware that there is much conflict among the decisions on the question of how far the doctrine of equitable estoppel applies to married women. One of the leading decisions of the Pacific Coast states is that of Morrison v. Wilson, 15 Cal. 495. (See, also, cases cited dn 1 Notes on California Reports, pp. 604, 605.) In section 814, 2 Pomeroy’s Equity Jurisprudence, it is stated as follows: “Upon the question how far the doctrine of equitable estoppel by conduct applies to married women, there is some conflict among the decisions.
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SULLIVAN, C. J. —
This is an action to compel specific performance of a contract for the conveyance of real estate situated in Moscow, Latah county. It appears from the record that the respondents are husband and wife, and that on the seventh day of January, 1895, the husband purchased the east one-half of lots 4, 5 and 6, in block 8, Fry’s addition to the town of Moscow, Latah county, and the consideration paid therefor was money acquired by the respondent, Jay Woodworth, subsequent to the marriage of the respondents; that on the twentieth day of March, 1895, while respondents were residing on said premises and occupying the same as a homestead, the respondent, Lillie I., filed her declaration of homestead upon said premises; that sometime prior to the thirtieth day of August, 1901, the respondents had removed from Moscow, in the county of Latah, to Wallace, in the county of Shoshone, and that respondent Woodworth had listed said property for sale with real estate agents residing and doing business in said town of Moscow, at the price of $1,500; and on said last-mentioned date the appellant paid to said agents for the respondent $35 for a thirty-day option to purchase said premises, and thereafter, on the twentieth day of September, the appellant took up said option and orally promised the said agents to purchase said premises and to pay the sum of $1,500 therefor as follows, to wit: To assume a mortgage upon said premises executed by the respondents to the Vermont Loan and Trust Company, to secure the payment of $950, together with interest thereon and $550 in [464]*464cash, and thereupon, with the consent of said agents, the appellant entered into the possession of said premises and moved his family into the residence situated upon said premises, and has ever since occupied the whole of said premises as a residence, all of which was known to the respondents; that instead of paying said $550 as agreed, the same was paid in payments as follows: November 1, 1901, $100; December 1, 1901, $175; January 4,1902, $100; July 6, 1902, $100; September 16, 1902, $100 — aggregating in all the total sum of $525. Said sums were paid over by the agents to the respondent, Jay Woodworth; ithat after said payments were made, the appellant personally •demanded of Jay Woodworth a deed to said premises and offered to pay him then and there the $25 still due on the purchase price, 'with interest on all deferred payments, and the said Woodworth promised to execute a conveyance to said premises as soon as he conveniently could; that after the appellant had entered into possession of said premises, he made improvements thereon .of the value of $250; that after appellant had so entered into -the possession, the respondent, Lillie I., was informed of the •improvements made thereon and knew that said improvements Lad been made and possession taken by the appellant under the 'belief that he was the owner of said premises, and to all of which said Lillie I. made no objection and consented thereto; •thereafter, in the month of March, 1903, the appellant again •tendered the respondents the sum of $25 as the balance still .due on the purchase price, and demanded of them that they •execute to him a good and sufficient deed of conveyance to said -premises, which demand the respondent then and there refused, ,and the respondent, Jay Woodworth, when asked his reason for refusing to execute the deed, informed the appellant that he had consulted with attorneys and they had advised him that he •could not be compelled to make the deed; that the payments made by appellant, including the $525 referred to, together -with interest on said mortgage, taxes and the improvements made by appellant make a total of $1,181.57.
Upon the foregoing facts, judgment was rendered in favor .of the respondents decreeing to them the possession of said premises and granting to the appellant judgment of $844.72, [465]*465tbat being the balance after deducting the rental, at the rate of $12.50 per month, with interest thereon, from the sum of $1,181.57 above mentioned. The case was decided upon the theory that a specific performance of the contract of sale could not be enforced because of the provisions of our statute in regard to the conveyance of real estate by married women.
The question presented for decision is whether the respondents should be compelled to convey said property to the appellant under the facts of this case, it having been at one time occupied as a homestead. The sections of our statute in regard to the conveyance or encumbrance of a homestead by a married person and the manner in which a homestead may be abandoned, are as follows:
“Sec. 2921. No estate in the homestead of a married person, or any part of the community property occupied as a residence by a married person can be conveyed or encumbered by act of the party, unless both husband and wife join in the execution of the instrument by which it is so conveyed or encumbered, and it be acknowledged by the wife as provided in chapter III of this title.
“Sec. 2922. No estate in the real property of a married woman passes by any grant or conveyance purporting to be executed or acknowledged by her, unless the grant or instrument is acknowledged by her in the manner prescribed in chapter III of this title, and her husband, if a resident of the territory, joins with her in the execution of such grant or conveyance.”
“See. 3040. The homestead of a married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife.
“See. 3041. A homestead can be abandoned only by a declaration of abandonment, or a grant or conveyance thereof, executed and acknowledged: 1. By the husband and wife, if the claimant is married; 2. By the claimant, if unmarried.”
Prior to the adoption of section 3041 above quoted, creditors of the homesteader often attached the premises homesteaded and attempted to subject the same to the payment of the debt [466]*466on the ground of abandonment, and in order to make the homestead more secure, a rule of evidence was established by the adoption of said section, and any litigant, attempting to subject the homestead to the payment of his debt must show that the same was abandoned by a written declaration of abandonment properly executed and acknowledged. The provisions of that section are not applicable to the case at bar.
The case of Mellen v. McMannis, 9 Idaho, 418, 75 Pac. 98, decided by this court, is not in point. In that case it was not shown that the purchaser ever went into the possession of the premises, or put any improvements thereon, or that Clark ever .accepted the purchase price thereof, or that his wife ever knew anything about the sale, or ever consented thereto.
Sections 3040 and 3041 are in the nature of rules of evidence, and are subject to the same legal principles as are conveyances falling under the statute of frauds, and the rules of equitable estoppel and waiver. We are aware that there is much conflict among the decisions on the question of how far the doctrine of equitable estoppel applies to married women. One of the leading decisions of the Pacific Coast states is that of Morrison v. Wilson, 15 Cal. 495. (See, also, cases cited dn 1 Notes on California Reports, pp. 604, 605.) In section 814, 2 Pomeroy’s Equity Jurisprudence, it is stated as follows: “Upon the question how far the doctrine of equitable estoppel by conduct applies to married women, there is some conflict among the decisions. The tendency of modern authority, however, is strongly toward the enforcement of the estoppel against married women as against persons sui juris, with little or no limitation on account of their disability. This is plainly so in states where the legislation has freed their property from all interest or control of their husbands, and has clothed them with partial or complete capacity to deal with it as though they were single. Even independently of this legislation there is a decided preponderance of authority sustaining the estoppel against her, either when she is attempting to enforce an alleged right, or to maintain a defense.” The author cites modern English cases, as well as American, to sustain the text.
In the ease of Galbraith v. Lunsford, 87 Tenn. 89, in referring to Morrison v. Wilson, supra, the Tennessee court says that the [467]*467ease of Morrison v. Wilson, supra, “relied on so confidently by counsel for complainant, seems to not only deny the application of an estoppel in pais to a married woman, but goes so far as to hold that affirmative fraud on her part will not effect that result. It is sufficient to say of this case, that it not only loses sight of the distinction referred to as to defective execution of a contract, but is directly opposed to onr own adjudged cases so far as the element of fraud is concerned.”
In Pilcher v. Smith, 2 Head (Tenn.), 208, it is said: “The legal disability of coverture carries with it no license or privilege to practice fraud or deception on other persons.”
The provisions of onr statutes above quoted must not be so construed as to permit the respondent, Lillie I., to reap the benefits of a fraud perpetrated on the appellant. It must be borne in mind that there is no conflict in the evidence in this case whatever.
The legal disability of married women in this state has been almost entirely removed. They have been given elective franchise; they may hold office, and under the second section of an act approved March 9, 1903 (Sess. Laws 1903, p. 345), the wife is given the management, control and absolute power of disposition of her separate property, with like effect as a married man may in relation to his real and personal property. It is true that said act was passed subsequent to the contract involved in this suit, but this only tends to show and support the doctrine laid down in 2 Pomeroy’s Equity Jurisprudence above cited.
As to the statute of frauds, section 600'!', Revised Statutes, provides that no estate or interest in real property, other than for leases having a term not exceeding one year, nor any trust or power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized in writing. It is conceded that no instrument in writing has been executed in this case. Section 6008, Revised Statutes, provides that the section above [468]*468cited' must not be construed to affect the power of a testator in the disposition of his real property by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law, nor to abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof. In the case at bar it is shown that the contract sued on is an executed contract so far as appellant is concerned. Hence, so far as the statute of frauds is concerned, the trial court should have compelled the respondents to convey the property in controversy by good and sufficient deed to the appellant. Courts of equity will not permit the statute of frauds, or the statute in regard to conveyances of married women, to be a shield to protect fraud, and those statutes were not enacted to encourage frauds and cheats. The appellant had paid the price agreed to be paid for the property, had taken possession thereof and expended $250 in improving the same, all of which was assented to by respondent, Lillie I., and under the well-established rules of law applicable to the case, the appellant is the owner of the equitable title thereto. Because of the facts of this case the principle that governs is more in the nature of an estoppel nr waiver on the part of respondent, Lillie I., and not the broad principle of abandonment as suggested by the provisions of section 3041, Revised Statutes, above quoted. While the provisions of the sections above quoted were made for the protection of married women, they were not intended to operate as a shield to relieve them against a fraudulent transaction such as the one under consideration, and she is estopped by her own acts from interposing the provision of said sections as a valid defense to this action. The verbal agreement for the transfer of the homestead in question was assented to by both husband and wife, and was followed by change of possession and permanent improvement placed thereon by the purchaser and a payment of the purchase price. Those acts operated to transfer the equitable title to the appellant. That being true, a court of equity will compel the respondents to convey the legal title to the appellant.
(May 13, 1905.)
The judgment is reversed and the cause remanded for further proceedings in -conformity with the views herein expressed. Costs are awarded to appellant.
Stockslager, C. J., concurs.