Defendant relies for reversal on three propositions, as stated in his brief, but these three may be stated as one proposition, thus:
"That the findings and decree of the trial court are contrary to the evidence and contrary to law, and are not supported by either." *Page 4
This being an equitable proceeding this court is authorized to consider all of the evidence to determine whether the findings of fact made by the trial court are sustained by the evidence, and whether the conclusions of law based on the findings of fact are authorized. The trial court made findings of fact as follows:
"That the title to the title estate involved was at one time duly vested in one Eda Filk and the same was occupied by said Eda Filk and her husband, William C. Filk, as a homestead; there appear separate deeds executed at different dates, in said abstract, by Eda Filk and her husband."
Upon the above findings of fact the trial court concluded as matters of law, first: That defendant, Roy Kneeland, failed to comply with the terms and provisions of his contract of June 8, 1921; second, that by reason of said deeds being separate the title presented was and is not a merchantable title.
The decree is in conformity to these findings and conclusions.
Under the propositions urged by defendant the only question of fact to be determinded is whether the evidence reasonably tends to establish that the property involved was once occupied as a homestead by Eda Filk and her husband. There is no contention that they ever executed a joint deed to the property, nor that they ever acquired a joint homestead elsewhere.
The evidence upon the question of the homestead character of this property while owned by Eda Filk is wholly documentary. From this it appears that she was married to William C. Filk February 22, 1901; that she bought the property at an executor's sale on July 18, 1907, for a consideration of $1,500; that July 1, 1907 William C. Filk and Eda Filk, his wife, executed a mortgage on the property for $800 in favor of the Detroit United Bank of Detroit, Mich. The deed to Eda Filk was recorded August 5, 1907, at 10 a. m.; the mortgage from William, C. Filk to Eda Filk, his wife, was recorded on the same day, but at 1:30 p. m. The release of this mortgage was executed August 20, 1914, in favor of William C. Filk. On July 20, 1907, Eda Filk and William Filk executed a mortgage on this property to Henry Redekeh for $600, and it was recorded August 31, 1907. This mortgage was released to Eda Filk November 7, 1910, and on the same day a now mortgage was executed by the wife and husband to Redeker for $500. This mortgage was released to Eda Filk November 30, 1914. She thereafter, on October 24, 1919, executed a deed to the property without her husband joining therein, and in an affidavit attached to and made a part of that deed it is recited:
"On the 5th day of May, 1911, that myself and husband resided upon the above described property in the city of Guthrie, Okla. On the 14th day of August, 1913, that myself and husband removed permanently from Guthrie and located at Denver, Colo. That I am residing in the city of Denver at this time at 928 Acoma street, but am unable to state the definite whereabouts of William F. Filk. That the money obtained on the sale of the above described property purchased from me by A.C. Edwards is obtained upon the representation as is stated. And that the same premises is my own separate property and that my husband has no interest thereon. And that the same is not a homestead, or occupied as such on any former reservation made for such intentions."
These documentary facts were all shown in the abstract which defendant delivered to plaintiff about July 1, 1921, in performance of his contract to "convey or have conveyed" "a merchantable title." That defendant expected and insisted on plaintiff's acceptance of this title, as testified to by her, is shown by the following allegation in paragraph 7 of his amended answer. He alleged:
"That the defendant was not advised as to the exact defects alleged in said title until the filing of the amended petition herein, and had no information as to what said alleged defects were, except as to the lack of a deed from William Filk, husband of Eda Filk, and the defendant alleges that said deed was not necessary or material for the reason that said property was not the homestead or occupied as such by said Eda Filk at the time of her conveyance."
There was nothing to show that these people ever acquired a new and different homestead. There was nothing to show that they had been divorced. Under such circumstances the wife cannot be heard to say what are the husband's intentions regarding the homestead when she is living separate and apart from him. Neither can defendant be heard to say that he had no notice of the defects in the title which were disclosed by the abstract which he tendered.
The question of what constitutes an abandonment of the homestead is always one of fact, but the evidence thereof must be clear, cogent, and convincing. McCammon v. Jenkins,44 Okla. 612, 145 P. 1163; German State. Bank of Elk City v. Ptachek,67 Okla. 176, 169 P. 1094; Elliott v. Bond, 72 Okla. 3,176 P. 242. Unless abandonment of the homestead is established, or divorce of the parties shown, a deed by one *Page 5 holding the record title, not joined in by the other spouse, is wholly ineffectual and absolutely void.
But defendant insists that he was entitled to a reasonable time to perfect the title. His contract does not so provide. He bound himself to deliver an abstract showing "merchantable title." This he did not do. He is charged with notice of what the abstract tendered by him showed. Upon a tender by him of defective title plaintiff had the right to rescind, which she did promptly. Proof of custom or usage to vary the plain and unambiguous terms of the contract was inadmissible. Number One Oil Co. v. Wilcox, 95 Okla. 227, 219 P. 132; Moore v. Craft,97 Okla. 128, 222 P. 983.
It is therefore concluded that the findings of fact made by the trial court are amply sustained by the evidence, and that the conclusions of law based thereon are correct. The judgment and decree of the trial court should be in all things affirmed.
By the Court: It is so ordered.