Locke v. Redmond

• Decision Date: 16 July 1897
• Docket Number: 252
• Citation: 6 Kan.App. 76,49 P. 670
• Parties: MARY M. LOCKE v. MARGARET REDMOND
• Court: Kansas Court of Appeals

49 P. 670

6 Kan.App. 76

MARY M. LOCKE v. MARGARET REDMOND

No. 252

Court of Appeals of Kansas, Northern Department, Eastern Division

July 16, 1897

July 16, 1897.

Error from Nemaha District Court. Hon. J. F. Thompson Judge.Affirmed.

On July 15, 1890, Margaret Redmond was adjudged insane, and her husband, James Redmond, was appointed her guardian. About August, 1890, Redmond, as guardian, procured an order of the probate court permitting him to mortgage the family homestead. He executed this mortgage to the plaintiff in error both in his individual capacity and as guardian for his insane wife. On September 15, 1891, the wife was duly declared sane, and on the same day paid to the plaintiff in error an instalment of interest on the mortgage. At the time of this interest payment she had a full knowledge of all of the facts. In March, 1893, Margaret Redmond was divorced from her husband, and was awarded the homestead subject to any valid liens that might be upon it. The plaintiff in error brought her action to foreclose the mortgage given by Redmond. The facts as here stated appeared in the pleadings. The court sustained a motion made by Margaret Redmond for judgment. From this judgment the plaintiff in error brings these proceedings.

Judgment affirmed.

S. K Woodworth, for plaintiff in error.

F. W Jacobs, for defendant in error.

OPINION

MCELROY, J.

The plaintiff in error discusses but one proposition. As stated in the brief, it is as follows:

"The joining of the guardian of an insane spouse under an order of the probate court regularly obtained therefor under chapter 60, General Statutes of 1889, with the same spouse in a mortgage on the homestead (title to which is in the same spouse) is such a joint consent as contemplated by our constitutional provision (Constitution, art. 15, § 9) relating to incumbering the homestead."

Any attempt to alienate the homestead without the joint consent of husband and wife is void. This proposition needs the citation of no authorities. It has been recognized in almost every volume of our Supreme Court reports. The alienation of a homestead after it has once been established, is such a personal privilege as cannot be delegated by either the husband or the wife to the other. There has been a guard thrown not only around her, but also around the husband, and the doctrine of unity between husband and wife has been solemnly declared in the Constitution, and the homestead cannot be alienated without their joint consent.

In regard to the right of husband and wife in the homestead, our Constitution, article 15, section 9, provides:

"A homestead to the extent of 160 acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon: Provided, The provisions of this section shall apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife."

Chief Justice Kingman, in Helm v. Helm (11 Kan. 19), says:

"Our homestead provision is peculiar. The homestead cannot be alienated without the joint consent of the husband and wife. The wife's interest is an existing one. The occupation and enjoyment of the estate is secured to her against any act of her husband or of creditors without her consent. If her husband abandons her, that use remains to her and the family. With or without her husband, the law has set this property apart as her home. It may be difficult to define the estate, but it is one nevertheless. It is not like dower. Dower is only a possible estate, an inchoate interest that, depending on uncertain events, the wife may never enjoy. That the wife's right under our homestead laws is an existing interest, probably none will deny."

Simpson, C., in Howell, Jewett & Co. v. McCrie (36 Kan. 636, 14 P. 257), says:

"To divest the homestead estate, the mode of conveyance prescribed by the law governing the alienation of such estates must be strictly pursued, is the rule generally adopted in all the states, in which such laws have been enacted, held more strictly in some than in others, and yet in all there must be a literal compliance with the provisions of the statutes in this behalf. From all the adjudications upon this subject, the three following rules are deduced, and may fairly be considered as settled:

"1. The object of the homestead law is to protect the family of the owner in the possession and enjoyment of the property.

"2. That construction must be given such laws, which will best advance and secure their object.

"3. To divest the homestead estate, there must be a literal compliance with the mode of alienation prescribed by the statute."

"The usual and legal signification of the word consent, implies assent to some proposition submitted. In cases of contract it means the 'concurrence of wills.' Consent supposes a physical power to act, a moral power of acting, and a serious, determined and free use of these powers. In the very...