Johnson v. Samuelson

76 P. 867 | Kan. | 1904

The opinion of the court was delivei’ed by

Smith, J. :

If there was sufficient evidence introduced by plaintiff below from which the jury might fairly infer that Mrs. Samuelson gave consent to the lease jointly with her husband, then the demurrer to the evidence was erroneously sustained. It is the contention of counsel for defendants in error that the witnesses Algot Johnson and Drivets, in repeating the conversations had with Mrs. Samuelson respecting the terms of the lease, testified that she reserved the house in which she lived with her husband, and that the lease having been executed and delivered by Samuelson without this reservation, her lack of consent appeared plainly. It must be remembered that there was testimony to the effect that on the day the lease was drawn Mrs. Samuelson, in the presence of plaintiff below and Algot Johnson, stated that the former might have the land for three-or five years from August 1, 1901. Immediately thereafter Mr. Samuelson, Algot Johnson and plaintiff went to Salina and had the lease drawn. Respecting the reservation of the dwelling-house, plaintiff below testified that Mrs. Samuelson said nothing about having bought' a house in town into which she and her husband would move. This was in contradiction of the testimony of Algot Johnson, which tended to show that Mrs. Samuelson reserved the farmhouse until they should move to Salina. It was for the jury to reconcile the testimony of the witnesses. They could give credit to any of them.

In the brief of counsel for defendants in error it is said that Mrs. Samuelson did not see the lease or know its terms for almost a year after its execution. This is not borne out by the record. In her testimony set out in the statement she admits receiving information from her husband on his return from Salina that he had leased the land for three years. He offered to let her see the lease, but she refused to look at it. This was on April 29, 1901. Without a word of protest or objection from Mrs. Samuelson, the tenant proceeded to plow and sow wheat on about ninety acres of the homestead quarter and seventy or eighty acres of the quarter adjoining. Most of the time be boarded with defendants in error, and when he left in the spring to fetch his family from Colorado he left his belongings in the custody of the Samuelsons. Such conduct on the part of the latter was at variance with their claim asserted afterward that the tenant had no possessory rights on the premises, and tended in some degree to show a previous consent to the terms of the lease as drawn.

It is contended, that because Mrs. Samuelson remained at home when her husband went to town five' miles distant and executed the lease, joint consent was impossible ; that their minds did not meet; that there was not a present consent at the exact moment-the instrument was signed and delivered, which, it is-insisted, is essential to an alienation or encumbrance-of the' homestead. We cannot give sanction to this-view. The constitution of this state requires joint consent to an alienation, not a joint act of alienation. If the wife in this case agreed to the conditions of the-lease substantially as they were afterward set down in the written instrument before its execution, and agreed that her husband should go to town and reduce-the contract with the tenant to writing, and the husband carried out the arrangement, and afterward, with knowledge of the lease and its duration, she-made no objection for nearly a year to the tenant’s-occupying and farming the land, such conduct was-sufficient to be submitted to a jury in support of the-claim of joint consent.

The case of Durand v. Higgins, 67 Kan. 110, 72 Pac. 567, is not at variance with what is said above. There the question was sharply presented by a finding of the court to the effect that the wife, prior to the-' signing of a deed, expressed herself as willing to join, in its execution, but did not because it was stated that-it was not necessary that she should do so, and after-its execution and delivery she expressed herself as being satisfied with it. It was held that there was no-joint consent for the reason that at the time of the execution of the deed, which was the only time the husband was shown to have consented, the wife did not. In the present case there was a continuous consent on the part of the husband, and we think the testimony-tended to show a continuous consent on the part of the wife from the time negotiations were begun to and including the time the lease was executed and delivered. Consent, of course, must precede alienation, but evidence of conduct of one of the parties whose consent is necessary, in recognition of the conveyance or lease, after the execution and delivery of the instrument, may be shown for the purpose of throwing light on the essential question of whether there was an anterior consent. (Sullivan v. Wichita, 64 Kan. 539, 68 Pac. 55.)

Again, when notices were served on Johnson to vacate the land in the spring of 1902, he asked Mrs. Samuelson the reason for such action. She answered that he had forfeited his contract; that he had not done proper work in harrowing, plowing, etc. No assertion was then made of lack of consent on her part, which was nearly a year after the execution of the lease. The assertion that the lease lacked consent of husband and wife seems to have been an afterthought. The tenant heard of no such claim while he was expending his time and labor in preparing the soil and planting a crop.

We think the case should have been submitted to the jury. The judgment of the court below will be reversed, and a new trial granted.

All the Justices concurring. Burch, J., not sitting, having been of counsel.