72 P. 769 | Kan. | 1903
The opinion of the court was delivered by
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
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
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
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.