93 Kan. 72 | Kan. | 1914
The opinion of the court was delivered by
On June 6, 1910, the plaintiff commenced this action in the district court against William H. Millikin, alleging in her petition that she is the legal and equitable owner of lots five (5) and six (6), section six (6), township thirty-five (35), range twelve (12) east, in Chautauqua county; that she has been such owner for more than ten years, during which time the defendant unlawfully entered upon and removed therefrom crude petroleum rock oil of the value of $100,000, the same being part of the real estate.
The answer admitted that the defendant entered upoxx the land, and in 1904, 1905 and 1906 developed and produced oil therefrom, but alleged that he had pex'mission and authority to do so; first, by virtue of an oil- and-gas lease executed February 19, 1903, by the plaintiff to L. A. Lockwood, and duly assigned by Lockwood to the defendant; second, that on the 12th day of January, 1904, plaintiff executed and delivered to one G. W. Goss a deed to the real estate in controversy, thereby conveying all her right, title and interest therein; that Goss in tuxux, on March 10, 1904, had by deed conveyed the land to other persons, and that on April 5, 1904, defendant had procured an oil-and-gas lease from the owner of the fee title; that the rentals under the lease had been paid to the plaintiff until she sold her interest to Goss, and thereafter the rentals and royalties had been paid to the owner of the fee title.
The reply consisted of a general denial and a plea of confession and avoidance in which it was alleged that at the time plaintiff executed the lease to Lockwood and the deed to Goss the premises in controversy were occupied by herself and family as a homestead,
When the case was called for trial, and at the conclusion of the opening statement of plaintiff’s counsel, the court rendered judgment in defendant’s favor upon the pleadings and statement. From the judgment the plaintiff appeals.
There are many questions argued in the briefs which in our view of the case it will not be necessary to consider. All rulings relating to the cause of action based upon fraud and misrepresentation may be eliminated. The action was not commenced until more than seven years after the plaintiff had executed the lease to Lockwood and six and one-half years after the execution of the deed to Goss. She knew she had been defrauded, but waited during all this time for the purpose of procuring evidence to establish that fact and to discover whether her husband was in fact alive when the conveyances were executed. She admits receiving $1000, the consideration mentioned in the deed, and that she
Her claim with respect to the homestead is that the husband is still living, and that as he never joined in the execution of either conveyance they are absolutely void. This court has held that oil-and-gas leases are an alienation of the homestead. In Palmer v. Parish, 61 Kan. 311, 59 Pac. 640, it was said:
“A lease contemplating such an occupancy so far interferes with the use of the homestead that the joint consent of the husband and wife is necessary to its validity. (Land Co. v. Gas. Co., 43 Kan. 518, 23 Pac. 630; Gas. Co. v. Land Co., 54 Kan. 533, 38 Pac. 790.)” (p. 315.)
(See, also, Pilcher v. A. T. & S. F. Rld. Co., 38 Kan. 516, 16 Pac. 945; Gas Co. v. Ralston, 81 Kan. 86, 105 Pac. 430; and Thornton, The Law Relating to Oil and Gas, 2d ed. § 57, p. 79.)
The plaintiff’s husband left her some fifteen years before the suit was brought. In the opening statement of counsel it was said that Mrs. Thompson had been in possession of the premises all the time; that her hus
It is argued that the plaintiff can not maintain the action in her own name; that if she could not convey without her husband joining, she can not sue without his being joined either as plaintiff or defendant. It requires the consent of the wife freely given joining with that of her husband to alienate the homestead. A conveyance by either spouse alone is not valid nor effectual for any purpose whatever. (Moore v. Reaves, 15 Kan. 150.) It has been repeatedly held that the
“This place still continued the home and residence of the husband, as well as his family, at least, until it is proved that he had acquired a home and a settlement elsewhere, and this the law can never assume he has done. The presumption is that he continues a wanderer, without a home, until he returns to his duty and his family.” (p. 135.)
In Withers v. Love, 72 Kan. 140, 83 Pac. 204, it was ruled in the syllabus:
“So long as the wife is living nothing the husband alone can do or suffer to be done will estop either of them from claiming the hometsead.”
As we have seen, the plaintiff alleges that when the lease and deed were executed she.was in possession and that the defendant as well as Goss knew of the homestead character of the land and the facts respecting the husband’s desertion.
The court rightly refused plaintiff a jury trial. It was an equitable action for an accounting, and neither party was entitled to a jury as a matter of right.
The judgment will be reversed and the cause remanded for further proceedings in accordance with the opinion.