
    Benjamin F. Pitman, appellant, v. William Mann, appellee.
    Filed March 2, 1904.
    No. 13,439.
    Mortgage Foreclosure: Homestead: Fraud. One of the most salutary rules of the law is that one shall not profit by his own wrong. A man who has fraudulently executed and put in currency a mortgage upon his homestead, without procuring his wife to join therein, can not, in an action to foreclose the instrument, after her death, gain any advantage by his own wrong, unless he can make it appear that such advantage will accrue, at least in part, to some one, other than himself, belonging to some of the classes of persons sought to be protected by the homestead act.
    Appeal from the district court for Dawes county: William H. Westover, Judge.
    
      Reversed with dAreciions.
    
    
      Albert W. Grites, for appellant.
    
      Michael F. Harrington, contra.
    
   Ames, C.

William Mann was born in G-reat Britain a subject <3f the English crown, as was also a woman who afterwards became his wife, and with whom, for a time, he cohabited as such in that country. There are turn sons, fruit of the marriage. In 1876, both the sons had arrived at maturity and bad gone forth from the parental home seeking their own maintenance. In that year, Mann and his wife separated, and he came to the United States. She remained in England, and they have not since been reunited. Shortly after coming here, he entered a tract of government land lying in Dawson county, in this state, as a homestead, and subsequently, upon making final proof, described himself as a widower having two sons then living, and procured a patent of the land. The sons also came to this country, but have neither of them ever resided upon the premises. One of them, unmarried, entered a tract of land as his own homestead, and obtained a patent of it upon final proof. The other, who is married, has lived apart except that, together with his wife, he at one time made his father a visit of a few weeks’ duration. Mann, after procuring his patent, obtained a loan of money, and executed a mortgage upon the land as security for the payment of a negotiable note. In his application for the loan, and in the mortgage, Ire described himself as a widower. The note came into the hands of the plaintiff as a bona fide holder, for value, before maturity. After the death of the wife, this action was begun to foreclose, and resulted in a judgment for tin* defendant, because of the fact that the instrument lacks the wife’s signature. Whether the mortgage is void for that reason is the only question in this case. If so, the defendant is the only person who will profit by that fact. We think that under circumstanc.es like the foregoing he is estopped to assert it. The statute avoiding a conveyance' or incumbrance of the homestead of a married person, without the signature of both husband and wife, was enacted with the evident purpose of protecting both of tin* parties to the marriage, and those persons composing their families and dependent upon them. During the lifetime of any of such persons it may be that -a husband or wife, who alone has executed such an instrument, may successfully defend against it without the concurrence of his or her consort or the dependents of either; and it may even be that such a defense Avould be entertained if made by a sole survivor of the family, who had executed the instrument without fraud or concealment with respect to the homestead character of the lands, but neither of these questions is involved in this inquiry, or intended to be decided.

One of the most salutary rules of the law is that one shall not profit by his own -wrong. If a man who has fraudulently executed and put in currency a mortgage upon his homestead, without procuring his wife to join in its execution, can, in an action to foreclose the instrument, gain advantage by his own fraud, it must he because such advantage will accrue, at least in part, to some one, other than himself, belonging to some of the classes of persons sought to be protected by the homestead act. Counsel have cited us no authority exactly in point, and we have been unable to find any, perhaps, because the circumstances of the case are in some respects singular. The opinion of the supreme court of Kansas in Adams v. Gilbert, 67 Kan. 273, appears to us, however, to rest upon very similar, if not identical principles, and it arrives at practically the same conclusion. In that case a deed of the homestead made by the husband, and void because of the nonjoinder of his wife, was upheld because, after her death, his conduct was such as to raise an equitable estop-pel in favor of a mesne grantee. We think an estoppel arising before her death will attach with equal force after her decease.

It is recommended that the judgment of the district court be reversed and the cause remanded, with instructions to enter a decree as prayed in the petition.

Hastings and Oldham, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause remanded, with instructions to enter a decree as prayed in the petition.

Judgment accordingly  