Kloke v. Wolff

• Decision Date: 07 March 1907
• Citation: 111 N.W. 134,78 Neb. 504
• Parties: KLOKE v. WOLFF.
• Court: Nebraska Supreme Court

78 Neb. 504

111 N.W. 134

KLOKE

v.WOLFF.

Supreme Court of Nebraska.

March 7, 1907.

Syllabus by the Court.

A lease of a homestead for a period of five years is a conveyance within the meaning of section 6203, Cobbey's Ann. St. 1903, and is void unless executed and acknowledged by both husband and wife.

Commissioners' Opinion. Department No. 1. Appeal from District Court, Cuming County; Graves, Judge.

Action by Henry Kloke against Theodore Wolff. Judgment for defendant, and plaintiff appeals. Reversed and remanded.T. M. Franse and Moodie & Burke, for appellant.

Hunker & Krake, for appellee.

EPPERSON, C.

On October 10, 1905, the plaintiff herein and his wife resided upon the land in controversy as their homestead. Plaintiff on that date entered into a written contract wherein he leased the premises to the defendant for a period of five years, beginning March 1, 1903. Plaintiff's wife did not join in the lease. Neither was its execution acknowledged. About March 1, 1903, plaintiff and his family moved from the farm, and defendant took possession thereof. This is a forcible entry and detainer suit instituted by plaintiff to recover possession of the premises so leased to defendant. The district court's judgment was for defendant. The facts are undisputed, and the only question presented is as to the validity of the lease.

Section 6203, Cobbey's Ann. St. 1903, provides: “The homestead of a married person can not be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife.” It is a well-established rule that a conveyance of a homestead, unless executed and acknowledged by both husband and wife, is absolutely void. Interstate Savings & Loan Ass'n v. Strine, 58 Neb. 133, 78 N. W. 377;France v. Bell, 52 Neb. 57, 71 N. W. 984;Horbach v. Tyrrell, 48 Neb. 514, 67 N. W. 485, 489, 37 L. R. A. 434;Blumer v. Albright, 64 Neb. 249, 89 N. W. 809;Weatherington v. Smith (Neb.) 109 N. W. 381. A lease of the homestead is a conveyance within the meaning of section 6203, supra. The lease in question was therefore void in its inception, and defendant acquired no rights thereunder.

Defendant contends, however, that as the plaintiff herein occupied the premises in controversy as a homestead prior to the enactment in 1877 of the provisions now contained in section 6203, supra, his right to convey without his wife joining became vested, and therefore the lease is valid--citing Gladney...