
    MINERS’ SAV. BANK v. SANDY et al.
    (Circuit Court, D. Kansas.
    January 23, 1896.)
    Homestead — Rights of Wife — Law of Kansas.
    One S. induced bis wife, who was of unsound mind, to execute a mortgage on tbeir homestead, situated in Kansas, the mortgagee being ignorant of the wife’s incapacity. Upon the institution of a suit for foreclosure, to which S., his wife, and their children were made parties, S. set up such incapacity as a defense. Pending the suit, S.’s wife died, and the bill was' dismissed as against the children, at plaintiff’s request. Held, that as, under the laws of Kansas, the right of the wife in the homestead was only a right to be protected in its enjoyment during her life, the title remaining in the husband, S., could not, after his wife’s death, resist the enforcement of the mortgage.
    
      Eossington, Smith & Dallas and Clifford Histed, for plaintiff.
    Thos. J. White, for defendant.
   WILLIAMS, District Judge.

On the 1st day of July, 1886, Edwin Sandy was the owner of the northeast quarter of section 24, in township 4 S., range 3 E. of the sixth P. M., containing 160 acres of laud, situated in the district of Kansas. He was a married man, and the head of a family, and occupied the 160 acres of land as a homestead. Upon that date he executed to the Equitable MorL gage Company a note in the sum of $2,000, and to secure the pay-; ment uf the same he executed, in due form of law, a mortgage upon ; said 160 acres of land, his wife, Mary H. Sandy, joining with Mm in. the execution of the note and mortgage. The said note and mort- i gage were afterwards.assigned, for a valid consideration, before ma- , turil.y, to the Miners’ Savings Bank, the plaintiff in this action. De-; fault having- been made in the payment of the sum of money thus secured, this action is brought to foreclose the mortgage, and con-! demn the property secured thereby to be sold for the payment of said debt. Edwin Sandy and the children of Edwin Sandy and Mary H. Sandy are made defendants in the original bill, and Edwin! Sandy, as guardian of Mary H. Sandy, who had been, after the execution of the mortgage and before the commencement of this ae-. tion, declared insane, was also made a party. After the commence-. ment of this action, Mary H. Sandy died, and, upon motion of the plaintiff, the cause against the other defendants, save and excepting Edwin Sandy, was dismissed without prejudice, permission so to do having- been granted by this court at a term long since past. The defendant Edwin Sandy answers the complaint herein, as did the children of Edwin Sandy and Mary H. Sandy, setting up and contending- that the mortgage in this cause was upon the homestead of the defendants Sandy and wife, and that at the time of its execution Mary H. Sandy was insane and incapable of consenting to the execution of the mortgage, and that therefore the mortgage is void. To support the contention that Mary H. Sandy was insane at the time mm-h testimony has been taken, and is submitted in this cause. Upon a careful consideration of it, although much of it is utterly incompetent and without weight in this controversy, taken as a whole it may be admitted that it does show that, -at the time of the execution of the mortgage, the said Mary H. Sandy was of unsound mind and incapable of making contracts or consenting thereto. It is further contended by the defendant that the person who acted as agent for the Equitable Mortgage Company in this transaction was awareofthe fact that said Mary H. Sandy, at the time of the execution of the mortgage, was of unsound mind. I am of the opinion that the testimony utterly fails to show either that the person claimed to be the agent of the Equitable Mortgage Company was such agent, or that he knew, at the time of the execution of the mortgage, or before: that time, that Mary H. Sandy was of unsound mind. If it shows anything, it. shows that he did not know and was not aware of any. such condition of mind in Mary H. Sandy. But, from the view that the court entertains of this case, it is not material whether Mary H. Sandy, at the time of, the execution of the mortgage, was or was not insane. Mary H. Sandy is dead, and all her rights and interests have passed out of this controversy. The children of Mary H. Sandy and Edwin Sandy have passed out of this case, because the bill against them is dismissed. If Mary H. Sandy were alive "at this time, then the contention made by the able counsel for the defendant in this case would be readily considered by the court to be correct, in the main. True it is that the organic law and the acts of the legislature of the state of Kansas protect the homestead of the citizens of the state against the claims of any one, except it be for the purchase money, for taxes, for improvements, and special liens created by the joint consent of the husband and wife. And this court very cheerfully follows the adjudications of the highest courts in the state of Kansas upon the question of homesteads. And when it does this, it is convinced that the doctrine laid down in Jenness v. Cutler, 12 Kan. 515, is a clear statement of the rights of the wife in the homestead. The court in that case uses the following language:

“We suppose it may also be said that the wife has, in one sense, an estate in the homestead occupied by herself and husband, although the title to the same may be in her husband. But still, if it is an estate, it is such an estate as has never been defined by law, an estate unknown to the common law,— technically, no estate at all. The whole estate in such a casp is, in fact, wholly in the husband, with simply a restriction for the benefit of his family upon his power to alienate the same. It is true the wife has an interest in the homestead, — a present and existing interest, an interest that will be protected by the courts; but it is simply an interest growing out of the marriage relation, and has no other or different foundation than the marriage relation and occupancy. It requires no instrument in writing to create such an interest, nor does it require any instrument in writing to defeat it; and if the wife should die while occupying the premises as a homestead, she would have nothing that would descend to her heirs or go to her executors or administrators, and nothing that she could devise or bequeath. The whole estate would continue to belong to her husband, and after her death he could sell and convey the- same by a deed executed by himself alone. As we have said, the wife has a present and existing interest in the homestead, such as will be protected by the courts, but so she has in all the other property of her husband.”

In the case of Jenkins v. Simmons, 37 Kan. 496, 15 Pac. 522, which is relied upon with much force by the learned counsel for the defendant, the court says that “it holds strictly to the rule that nothing but the consent of the wife to the alienation or mortgage upon the homestead, in the exact manner prescribed by law, can bind her.”

In view of these adjudications by the supreme court of the state of Kansas, and of the fact that Mary H. Sandy, the wife, is dead, and that all the other defendants but Edwin Sandy have passed out of this case by proper orders, shall. Edwin Sandy be allowed to set up, as against the claim of the plaintiff here, the invalidity of the mortgage, because of the fact that, as he contends, his wife was insane at the time of its execution? By the testimony in this case, he himself prevailed upon the wife to go to the proper officer, acknowledge the mortgage, and execute the notes. It was done at his instigation, and if any one knew of the insane condition of Mary H. Sandy, it was Edwin Sandy. The plaintiff in this ease did not know it. When Mary H. Sandy, the wife, no longer needs the protection of the law in order to secure to her her homestead, shall Edwin Sandy he allowed to reap a benefit of his own wrong? There is no contention but what the money was honestly paid over to Edwin Sandy, and some of it used by him to pay prior incumbrances and taxes, and for the general betterment of the place. The equity's of this case are very strong against Edwin Sandy’s defense. The mortgage is not void, but so long as Mary H. Sandy lived it could not be enforced. Upon her death, there is no reason why it should not be enforced. In my opinion the plaintiff is entitled to recover the full amount of the note and interest coupons that remain unpaid, and to have a decree of foreclosure against the land for the payment of the same. Let such decree be entered.  