64 P. 966 | Kan. | 1901
The opinion of the court, was delivered by
This is a proceeding in error prosecuted to reverse a decree of the district court foreclosing a mortgage. In 1875 Alfred Allen purchased forty acres of farming land in Lyon county and occupied it with his wife and family until his death, in 1890. He left a will devising the land mentioned to his wife, the plaintiff in error. She elected to take ' under the will. Afterward, while living on the land with her four children, two of whom at the time of the trial were minors, she.executed a mortgage thereon, which, after default in payment of the debt, was decreed to be foreclosed in the court below.
It is insisted that the mortgage was no lien on the homestead property. The broad claim is made by
It will be noted that section 9 of article 15 of the constitution exempts the homestead property from forced sale under any process of law, and provides that the same shall not be alienated without the joint consent of husband and wife, “ when that relation exists,To give the constitutional provision the interpretation contended for would, in our judgment, be a strained construction and at variance with the views of this court heretofore expressed. While Alfred Allen was alive, occupying the land with his wife and children as a homestead, he and his wife could lawfully alienate or encumber the same by their joint consent. The legal title was vested in the husband. He could by will devise all the land to his wife. (Martindale v. Smith, 31 Kan. 270, 1 Pac. 569; Vining v. Willis, 40 id. 609, 20 Pac. 232.) After the husband’s death and the election of the wife to take under the will, she took the whole estate. The children got none. Their homestead rights in the land were no greater after the death of their father than before.
Section 7973 of the General Statutes of 1901 pro
“It is a familiar rule of criticism in regard to judicial decisions, that their authority arises from what the court decides in reference to the facts before it, rather than from what the judge who delivers the opinion may say in illustration and support of the ruling of the bench. When it is remembered that judges are often obliged to write a hundred opinions per annum, they would be more than human if they did not occasionally use expressions of a general character, which, while perfectly true in regard to the case before them, are at the same time incorrect when pushed to extremes or applied to a totally different state of facts.” (Lawrence, J., in Brown v. Coon, 36 Ill. 243-246.)
The judgment of the court below will be affirmed.'