110 Kan. 200 | Kan. | 1922
The opinion of the court was delivered by
The refusal of the court to adjudge specific performance of a contract for a sale of land has been brought up for review.
• The defendant, who was the purchaser of the tract, declined performance because of the alleged inability of the plaintiff to convey a good title to the land. The title to the tract stood in the name of Hester A. Iles, and she and her husband, James A. Iles, occupied it as their homestead at the time the contract of sale to E. R. Benedict, the defendant, was made. A payment of $1,000 of the purchase
The refusal to decree specific pérformance must be upheld. A purchaser of land cannot be compelled to accept a doubtful title to it which will expose him to litigation or one which he may be compelled to defend in the courts on some reasonably debatable grounds. The title proposed to be conveyed to the defendant was more than doubtful, it was absolutely defective. As the property was a homestead and continued to be a homestead until after the husband of the plaintiff had been adjudged insane, there was no possibility of gaining joint consent of husband and wife. Joint consent is essential to a valid conveyance of a homestead. (Const., art. 15, § 9.) The constitutional provision is to be strictly enforced, and so it has been held that separate conveyances by the husband and wife of a homestead did not constitute a good conveyance. (Ott v. Sprague, 27 Kan. 620.) It has been said that—
“It is familiar law that the homestead can-be alienated only by the joint consent of the husband and wife and while such consent need not always be in writing, (citing cases) it must always be joint and simultaneous.” (Bank v. Duncan, 87 Kan. 610, 613, 125 Pac. 76.)
It is true that a contract for the sale of the land had been made which provided for a conveyance upon the performance of certain conditions before the husband became insane, but he had been adjudged insane before the conditions were performed or the time had arrived to determine whether a conveyance should be executed. He was then incompetent to decide that the defendant was entitled
■ It has been held in Locke v. Redmond, 6 Kan. App. 76, affirmed in 59 Kan. 773, that a mortgage upon a homestead executed by a husband in his individual capacity an'd as guardian for his insane wife was without validity for the reason that the consent of the insane wife cannot be supplied by a guardian.
■It must be held that the deeds executed by the plaintiff were without validity, and that the court held correctly in-refusing to enforce specific performance of the contract.
The judgment is affirmed.