The opinion of the court was delivered by
Yalentine, J.:
This was an action brought by D. P. Stille against the city of Leavenworth, for services rendered by him in grading a certain street. The contract was made, and work done, under chapter 69 of the laws of 1869, page 124, §§3 to 11. Nearly every substantial question involved in this case has been decided by this court in the case of Leavenworth City v. Mills, 6 Kan., 288" court="Kan." date_filed="1870-07-15" href="https://app.midpage.ai/document/city-of-leavenworth-v-mills-7882304?utm_source=webapp" opinion_id="7882304">6 Kas., 288. Indeed, every substantial question except one has been decided either in that case, and in the cases of Leavenworth City v. Laing, 6 Kas., *548274, and Sleeper v. Bullen, 6 Kan., 300" court="Kan." date_filed="1870-07-15" href="https://app.midpage.ai/document/sleeper-v-bullen--dustin-7882305?utm_source=webapp" opinion_id="7882305">6 Kas., 300. That question is, whether Stille ean recover for grading done by him in front of his wife’s property, occupied by himself and wife as a homestead.. This, is the only question we shall discuss. And indeed it would seem that this question should need but little or no discussion; for in this state husband and wife have the power and the right to own property separate from and independent- of each other, and each may contract and be contracted with, sue and be sued, with reference to his or her separate property in the same manner, to the same extent, and with like- effect, as though they were not married, except that they must join in the conveyance of their real estate whether held separately or jointly. It is true, the husband has some interests in his wife’s-real estate which they occupy as a homestead, and that no other person has any such interest; but such interest is- merely a right of occupancy, with a restriction upon the wife’s- power to. alienate the property. It is no estate. The whole estate is vested in the wife; and at her death it descends to. her heirs, or if alienated before death, the consideration therefor belongs to- her. (See Jenness v. Cutler, 12 Kas., 515, et seq.) Therefore everything that benefits such real estate is really a benefit to the wife, and all taxes that may be levied thereon are really taxes against the wife. And as the husband and wife have or may have separate interests in this state, we can see no good reason why the city could not levy taxes on the real estate of the wife (although it be occupied as a homestead,) to. pay the husband for grading a street in front of such real estate. Nor can we see any good reason why the husband may not, if he chooses, insist upon such a thing being, done. The question in such a case is, simply, whether the husband or the wife shall own and control the money due for the grading; whether the money shall be collected from the; wife and paid to the husband, or whether the wife- shall be allowed to retain the money. In this state where- husbands- and wives are allowed to hold separate property and carry on separate business, we see no good Treason why said money may not be collected from the wife *549and paid to the husband.. If the husband should sue some person on a promissory note, no one would claim that such person could plead in set-off a promissory note against the wife. As we have before said, the husband has .some interest in the real estate of the wife occupied by themselves as a homestead, but the interest is not such as renders the husband individually liable for any taxes that may be imposed thereon. Therefoie, when the husband sues the city for a debt due to himself individually the city cannot plead in set-off taxes due on the real estate of the wife, although such real estate be occupied as a homestead by the husband and wife.
There are some other questions suggested. Stille petitioned along with others for the grading to be done; he sometimes in speaking of said real estate called it his; it is claimed that he did not do the full amount of the grading that he agreed to do, and that some of it was not in the street; hut it was done where the city engineer instructed that it should be done, and just as the city engineer instructed that it should be done; and the city engineer afterward inspected and accepted the work and made a report thereof to the city council, and the city council regularly confirmed the engineer’s report and levied a tax to pay for the grading. As to the effect of such, confirmation, see laws of 1864, page 128, § 10. But the city never provided any means for the collection of said tax. It is true, the city treasurer sold some of the property on said street to pay said tax, but the sale was unauthorized and void. Stille sold and assigned a large portion of his claim against the city for grading. But deducting that from his claim, and deducting all that Stille has ever received or been paid on his claim by any person or from any source, and deducting every thing else that ought to be deducted, and still he ought to recover at least the amount allowed him by the court below, provided however that he is entitled to recover anything. We do not choose to discuss this case in its moral aspect. For whether the plaintiff is entitled to recover or not in a strictly moral point of view, we think he is legally entitled to recover.
The judgment of the court below is affirmed.
All the Justices concurring.