Adams v. Gilbert

The opinion of the court was delivered by Cunningham, J.:

The deed to Foster was ineffectual at the time of its execution as a muniment of title, the property conveyed then being the homestead, and the deed not having received the joint consent of husband and wife. While the marriage relationship continued and the property was occupied as a homestead, no act of the husband could be efficient .to ratify or confirm such deed. The husband might by his actions, words, or silence, when he should have spoken, confirm a deed to the homestead executed by himself alone, or estop himself from denying its validity, so as to make it convey title, after its homestead character had ceased, or after the death of the wife.

.The principle of equitable estoppel may be invoked to defeat the operation of the homestead law. (McAlpine v. Powell, 44 Kan. 411 , 24 Pac. 353 ; Sellers v. Crossan, 52 id. 570, 35 Pac. 205 ; Sellers v. Gay, 53 id. 354 , 36 Pac. 744 .) The protection to,a homestead afforded by constitutional and statutory provisions lasts no longer than the occupancy of the premises as a homestead.

In this case it was shown that Adams abandoned the property in question with his family as early as 1895. It may be his deed executed at or after that time would have conveyed the same, subject, of'course, to whatever inchoate interests the wife might have had had she survived him. Why might not a deed which had been executed, by him prior to that time have1 *276 taken effect after the death of his wife, and become as effective as one then executed by him, if he had intended it should do so, or if by his acts he was es-topped to deny that he so intended ? Fie surrendered possession to the one holding under a deed which he had executed. This was because he had executed such deed, and to confirm the same. Having executed the deed which, had he continued to occupy his premises as a homestead, would have conveyed nothing!] he did more — he abandoned the homestead, surrendered the premises, put the grantee into possession, gave effect to a deed which while the premises remained a homestead had no effect, but when they ceased to be' a homestead might and did operate. He thereby made efficient what was theretofore inefficient. (H all et al. v. Fullerton, 69 Ill. 448 ; Thomp. Home. & Exemp. § 483.) That he did not then know that his deed to Foster was at the time of its execution ineffectual to convey title made no difference. Doran, the then purchaser, and in fact the first real and bond fide purchaser, had a right to suppose that Adams, knowing the invalidity of the Foster deed, was willing to give it force, so far as he could, by removing the obstacle thereto, to wit, its homestead character. Adams not only put Doran into possession, but he received at least part of the purchase-price in the payment of his $700 note, and then stood by while the purchaser expended large sums of money in making permanent improvements and paying taxes.

Again, Adams said while testifying, on November 15, 1900, in answer to the question: “This suit was not instituted until September last; when did you first commence to make claim to it? (Referring to the property in question.) Ans. I have been talking to Mr. Sargent (his attorney) about bringing suit for *277 two or three years.” That is, he had known, for some length of time before Gilbert purchased the property, on March 4, 1898, the infirmity of his deed to Foster. Notwithstanding this knowledge he remained silent and gave no warning to Gilbert, but permitted him not only to purchase, but to go on expending money in the payment of taxes and in making improvements thereon. During all this time he asserted no claim to the property. '

It seems to us that these facts embrace all the necessary elements of equitable estoppel. Admit that Adams, because of his ignorance of the invalidity of the Foster deed, was not estopped as against Doran, and that the title came to Gilbert as Doran had it, still, with the knowledge which he had as above indicated, he is now estopped, as Gilbert, in view of Adams’s silence, had a right to presume that he was intending and expecting to confirm and make effective his invalid deed. In any event, after the death of the wife, the homestead character of the property ceased. At that time Adams was as fully informed as to the facts and the law as he was when, this action was brought. He certainly might, even by his silence and inactivity, in time confirm and make efficient his former deed. We are not in a position to say the delay of about nine months was not sufficient for that purpose. At least Adams is now estopped from asserting that he did not intend so to confirm and ratify it.

It would be gross injustice to permit Adams by his belated action to recover the property with all of these improvements and its enhanced value after he had received what appears to have been a fair value at the time of the execution of his deed, and after he had stood quietly by with knowledge of his rights, which he himself shows he had, permitting the expenditure *278 by Gilbert of money in tlie purchase-price, improvements, and taxes. This equity will not permit.

Under all of the circumstances of the case, we are fully persuaded that the judgment of the court below was correct. It will be affirmed.

All the Justices concurring.