Thimes v. Stumpff

*57 Tlie opinion of the court was delivered by JOHNSTON, J.:

The findings of fact made by the court below are accepted by plaintiff, without complaint. They show that the promissory note sued on in this action, together with $40 in money, was delivered and paid by the defendant as a partial payment upon an eighty-acre farm which the plaintiff attempted to sell and convey to the defendant. The plaintiff was a married man, a resident of the state, the head of a family, and with his wife and family occupied the land as a homestead. The written instrument or paper by which the plaintiff agreed to sell the homestead for the sum of $2,600, and wherein he acknowledged as a partial payment of the purchase-price of the land, the receipt of the promissory note for $200, and the $40 in money above mentioned, and in which he agreed upon the payment of the remainder of the purchase-price, to make a good and sufficient warranty deed to the defendant, was not executed nor signed by his wife, nor did she ever consent to such sale. No deed executed by plaintiff and his wife to the land was ever delivered or tendered to the defendant, nor was he ever put in possession thereof. It appears that the only consideration which the defendant ever received for the promissory note and the $40 payment, was the contract or paper signed alone by plaintiff, agreeing to sell the homestead.

The court below held, and we think correctly, that the contract made by plaintiff was void, and that the note and money given and paid thereon by the defendant were without consideration. The constitution of the state, as well as the statute relating to exemptions, provides that the homestead shall not be alienated without the joint consent of the husband and wife, when that relation exists. In interpreting and applying the above provisions, it has been uniformly and consistently ruled by this court that so long as the premises are impressed with the homestead character, no lease, mortgage, deed, or other contract, intended to alienate the homestead or interfere with its use and occupancy as a homestead, made and *58 ■executed alone by the husband and without the consent of the wife, is valid or effectual for any purpose whatsoever.

In an early case, Mr. Justice VALENTINE, in construing our homestead laws, stated that —

“No incumbrance or lien or interest can ever attach to or affect the homestead, except the ones specially mentioned in the constitution. . . . No alienation of the homestead by the husband alone, in whatever way it may be effected, is of any validity; nothing that he alone can do or suffer to be done can cast the slightest cloud upon the title to the homestead; it remains absolutely free from all liens and incum-brances except those mentioned in the constitution.” (Morris v. Ward, 5 Kas. 244 .)

This interpretation and just ruling, so early made, has been followed in all cases in this court where the question of the non-concurrence of the wife to an alienation of the homestead has arisen. Thus it was held, that when the wife is compelled to sign a deed to the homestead, by threats of her husband, the consent required by law has not been given; that under the peculiar provisions of our homestead laws, the wife has an existing interest in the homestead, the occupation and enjoyment of which is secured to her against any act of her husband or •creditors without her consent. (Helm v. Helm, 11 Kas. 19 .)

In Moore v. Reaves, 15 Kas. 150 , the husband and wife occupied and resided upon a tract of land purchased from a railroad company, and which was held by them under a contract fi’om the company that it would convey the land to the purchaser upon full payment of the purchase-price. The husband, for a valuable consideration, without the knowledge or consent of his wife, assigned his claim to the land by a written indorsement made upon the back of the contract, and the court ruled that real estate so held and occupied was a homestead, and that as the assignment of the contract was without the consent of the wife, it was absolutely void.

It has also been held in a case where the husband undertook by a written agreement to lease the homestead for a term ■of five years and give possession thereof to his tenant without *59 the consent of the wife, that whenever-the lease of a homestead, although the title thereto is held by the husband, attempts to interfere with the use or occupancy of the homestead, the assent of the wife is necessary, and lacking that, the lease is void, and the party claiming thereunder acquires no . right of possession or any estate in the homestead. (Coughlin v. Coughlin, 26 Kas. 116 . See also Dollman v. Harris, 5 Kas. 597 ; Anderson v. Anderson, 9 id. 112; Monroe v. May, 9 id. 476; Ayres v. Probasco, 14 id. 190; Chambers v. Cox, 23 id. 393; Ott v. Sprague, 27 id. 620.)

In the light of these authorities, it is clear that the contract in this case, made by plaintiff alone, is void. The learned counsel for the plaintiff urge that the plaintiff should be permitted to make a contract agreeing to procure the consent and signature of his wife to a conveyance of the homestead. Without determining whether such a contract would be effectual or binding on the plaintiff, or would render him liable for damages in case of his failure, it will be seen by an examination of the contract in the case at bar, that the plaintiff agreed, not that he would endeavor to obtain the consent and signature of his wife, but that he would absolutely convey the homestead to the defendant by a good and sufficient warranty deed upon the payment of the remainder of the purchase-price by the defendant. If a party cannot convey the homestead by mortgage or deed, without the consent of his wife, he certainly cannot make a contract agreeing to convey that will be valid or binding without her concurrence. The contract being void, there was therefore no consideration for the note and money delivered and paid by the defendant to the plaintiff, and the district court rightly held that the plaintiff was not entitled to recover.

Another point made by the plaintiff is, that if the contract is void, the court erred in its conclusion of law that the defendant was entitled to recover the $40 voluntarily paid by him upon such void contract. In the purchase of the land, it was the duty of the defendant to ascertain and know its *60 status, whether it was a homestead, and the kind of title which the plaintiff acting alone could give him. The defendant in his answer alleges that when this transaction occurred he was a “new-comer” in the state, and was ignorant of the laws of Kansas regarding alienation of homesteads, and that the plaintiff knew of his ignorance and contrived to cheat and defraud the defendant by leading him to believe that the contract made by plaintiff was valid and effectual for the purpose for which it was made. The court below, however, does not find that there was any deception or fraud practiced by the plaintiff, and the ignorance or mistake of law by the defendant cannot avail him. He is presumed to know the law. There was no mistake of fact upon his part. The findings made by the court below disclose that at the time the contract was made, and prior thereto, the defendant lived and boarded in plaintiff’s family. He' knew that the land he was contracting to purchase was occupied as a residence by the plaintiff and his family, and he therefore knew, or should have known, that the sale or contract to sell his farm so occupied as a homestead would be void and valueless without the consent of plaintiff’s wife. It is the duty of a party who purchases or contracts to purchase a homestead occupied by the owner and his family, to obtain the joint consent of the owner and his wife. By the findings there was no fraud in the transaction upon the part of either plaintiff or defendant; both were acquainted with all the facts relative thereto. There being no compulsion, fraud, or mistake of fact, the payment of the $40 by the defendant upon this void contract was entirely voluntary, and we think cannot be recovered. (Phillips v. Jefferson Co., 5 Kas. 412 ; Wabaunsee Co. v. Walker, 8 id. 431 ; K. P. Rly. Co. v. Comm’rs of Wyandotte Co., 16 id. 587; Sapp v. Comm’rs of Brown Co., 20 id. 245; Lamborn v. County Commissioners, 97 U. S. 185 .)

We conclude that the court erred in its conclusion that defendant ought to recover $40; and the case will therefore be remanded to the court below with instructions to modify the judgment by striking out the $40 so adjudged against plaintiff, *61 and to render a judgment in favor of defendant for costs in tbe district court. The judgment thus modified will be affirmed. .The costs in this court will be divided.

All the Justices concurring.