11 Kan. 19 | Kan. | 1873
The opinion of the court was delivered by
This cause came up from a decision of the district court sustaining a demurrer to the petition of plaintiff in error. It appears from the petition that plaintiff in error and the defendant James M. Helm were married on the 15th of April 1871; that James M. Helm was then the owner of eighty acres of land, upon which the husband and wife resided, and which was their homestead. On the 17th of June thereafter, and while they were residing on said land as their homestead, the land was conveyed to William Helm for the consideration of nine hundred dollars by deed signed by husband and wife; and two days thereafter the husband abandoned his wife. She seeks to have the deed set aside on two grounds. One is, that her signature was procured by the false representations of the defendants that her husband had purchased other lands in Shawnee county for a home; the other is, that her signature was procured by the threats and menaces of the defendants, they threatening her life unless she would sign the deed, and in apprehension of great danger if she did not sign the deed, she did sign it. The relief sought certainly could not be granted because the husband made representations that were false to induce his wife to sign the deed. If she relied on them, it was at her peril alone.
The second ground we think is sufficient to authorize the relief asked. Our homestead provision is peculiar. The homestead cannot be alienated without the joint consent of the husband and wife. The wife’s interest is an existing one. The occupation and enjoyment of the estate is secured to her against any act of her husband or of creditors without her consent. If her. husband abandons her, that use remains to her and the family. With or without her husband, the law has set this property apart as her home. It may be difficult
The judgment of the district court is reversed, with directions to overrule the demurrer and for further proceedings.
