Wells & Wells, for plaintiff in error. Webb & Caldwell, for defendants in error.

JOHNSTON, J. This was an action to recover upon promissory notes, and to foreclose two mortgages executed by James B. Wallace, and Georgia P. Wallace, by her at torney in fact, James B. Wallace, one of which mortgages was owned by the Travelers' Insurance Company, and the other by Angell, Matthewson & Co. The insurance company recovered a judgment against the Wallaces for $1,852, and Angell, Matthewson & Co. recovered a judgment for $170. The mortgages were foreclosed, and it was decreed that the property should be sold, and the proceeds applied-First, to the payment of the costs, and to the taxes due against the property; second, to the payment of the judgment of the insurance company; and, third. to the payment of the judgment of Angell, Matthewson & Co. A review of the rulings made upon the trial is asked, and the principal question is as to the validity of the mortgages that were foreclosed. They were executed in February, 1887, and were signed by James B. Wallace, and by him as attorney in fact for his wife. The power of attorney under which Wallace signed the name of his wife was executed on July 18, 1884, at Bushnell, Ill., in which Georgia P. Wallace appointed her husband as her lawful attorney "to sign deeds and mortgages, notes, checks, releases, etc., to loan moneys, to sue and be sued, to collect rents, make contracts, giving and granting unto my said attorney full power and authority to do and perform all and any acts and things whatsoever requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as I might or could do if present, with full power of substitution and ratification, hereby ratifying and confirming all that my said attorney or his substitutes shall lawfully do or cause to be done by virtue hereof." The power of attorney was duly acknowledged, and, having been transmitted to Kansas, was duly recorded in Crawford county on the 9th day of August, 1884. The testimony tends to show that the Wallaces owned the property in dispute, and had occupied it as a homestead for several months before the power of attorney was executed and recorded; and it is further shown that Mrs. Wallace and her child continued to live there until after this action was begun. The contention now is that a conveyance of a homestead by virtue of a power of attorney is a nullity, and, further, that if the homestead may be alienated under a power of attorney, the authority conferred in this instance is too general and indefinite to authorize the execution of a mortgage upon real estate.

If a mortgage upon a homestead may be executed by either husband or wife through a power of attorney from the other, and if the power given by the wife to the husband

in this case is sufficient in form and substance, the mortgages in question must be held to be good. It is conceded that the wife executed the power of attorney, and it is not questioned that it remained unrevoked and in full force when the mortgages were executed. It is strongly urged, however, that the preservation of the homestead rights requires that there shall be the concurrent personal consent of each spouse when the conveyance or mortgage is executed. Under our constitution joint consent is indispensable, and it is said that as it is the policy of the law to preserve to every family a homestead the restrictions which have been made upon the alienation of the same should be strictly complied with. It is therefore said that good policy requires that before the title of the homestead shall be divested, or any interest transferred or affected, there shall be consultation between husband and wife, and the personal consent of each obtained at the time the transfer or contract is made. The claim is that neither can act by proxy, and that, when a power of attorney is executed by one, only the consent of such a one is then expressed, and that, when the conveyance is subsequently made by the other spouse, he or she only consents; and there fore there is a lack of that contemporaneous joint consent which the constitution requires. Gagliardo v. Dumont, 54 Cal. 496. Then, again, it is urged that the power of attor ney in this instance fails to describe any real estate, or to show that the homestead was within the contemplation of the wife when the power of attorney was executed. It is said that, while she gave her husband authority to sign mortgages, it does not appear that she intended to incumber her own property, or to do more than authorize the sale or mortgage of the property the title of which was in her husband. The majority of the court therefore hold that the power of attorney in the present case is insufficient to express that joint consent which the constitution and statutes of this state require in the alienation or incumbrance of a homestead. The writer is unable to agree with this conclusion. Neither the husband nor the wife, acting alone, can execute a conveyance or mortgage of the homestead which is of any validity, and no construction should placed upon the constitutional restraints on alienation which will to any extent dwarf the homestead rights. It is clear that to incumber the homestead there must be a joint consent of both when the incumbrance is executed. How must that consent be given? Can the wife authorize another to express her consent, and, if so, may she confer that authority upon her husband? In some states, not only is consent required, but it is necessary that both, acting contem poraneously, shall sign the same joint instrument. In others, in addition to her signature, she must, in a private examination, express to an officer taking the acknowledg

be

ment that she knowingly and voluntarily signs the instrument. In still others, in order to convey or incumber the homestead, there must be in the instrument itself a renunciation of the homestead right, or an express stipulation that the homestead is intended to be conveyed or affected by the instrument. The constitution of our state does not expressly provide how the consent shall be given, nor have we any statutory provision which requires that the husband and wife shall contemporaneously sign the same joint instrument. In Ott v. Sprague, 27 Kan. 624, it was recognized that a husband and wife might alienate the homestead by two separate instruments, when it was intended by both that such instruments should operate together as a single instrument; and, being / so connected, they might together be considered as the joint consent of both. It has been decided that "neither the statutes nor the constitution requires that the alienation of a homestead with the joint consent of the husband and wife must be in writing." Perrine v. Mayberry, 37 Kan. 262, 15 Pac. 172. In Pilcher v. Railroad Co., 38 Kan. 516, 16 Pac. 945, it was held that it was not essential that the joint consent should be expressed in writing, and it was said that "consent is best evidenced by a writing to that effect; but the constitution does not in express terms require that it shall be so done, and hence it can be established by such facts and circumstances as the necessity of particular cases requires. See, also, Dudley v. Shaw, 44 Kan. 683, 24 Pac. 1114. Of course, real property must be conveyed in the manner prescribed by statute, and in respect to conveying real property, or any interest which she may have therein, the wife stands upon an equal footing with the husband, and is governed by the same rule. The statute provides how the consent of parties may be expressed in order to make an effective conveyance of real estate, and there is an express provision that any person having an interest may do so by an attorney in fact. Gen. St. 1889, par. 1112. In Munger v. Baldridge, 41 Kan. 236, 21 Pac. 159, it was held that a married woman might not only convey her inchoate interest in her husband's real estate through a power of attorney, but that she was free to select whomsoever she pleased as her agent or attorney for that purpose, and that no reason existed why her husband might not act in that capacity. In that case the statutory relations between husband and wife were considered, and it was held that nothing in the law or its policy forbids that the husband should act as the agent or attorney of the wife in conveying real estate. It was said: "The statutes of Kansas recognize no conflict of interest between them, nor any necessity to protect the wife against the act of the husband. They do not contemplate that she may be led to convey her interest through fear, compulsion, or the undue influence of her husband; and hence we have

no enactment, as some states do, that in making a conveyance she must undergo a private examination by an officer, to learn whether she is intimidated by her husband, or is executing the conveyance against her will. On the contrary, the law proceeds upon the theory of confidence, good faith, and honest dealing between husband and wife; and while there may be cases where the husband may take advantage of this confidence, yet it is almost as liable to occur through his obtaining her signature to the deed of conveyance as it would be in procuring from her a power of attorney authorizing him to con-vey the same property. We conclude that the wife can appoint her husband as her agent and attorney in fact to convey the inchoate interest which she holds in his real estate, and that an instrument duly executed by himself and by him for her under such authority is effectual to transfer such interest." As our law authorizes the husband to act for the wife in the conveyance of real estate, and no exception is made with reference to the conveyance of the homestead, no reason is seen why he may not consent for her, and sign her name to a mortgage or conveyance of the homestead. The authorities generally are to the effect that where the constitution fails to provide the method of giving consent, compliance with the general provisions of the legislature as to the means of conveying real estate is sufficient. The power of attorney, when properly executed and acknowledged, is a continuing consent, which remains in the attorney until the power is withdrawn or revoked. In signing the instrument the husband acted for himself, and also, under the authority conferred, acted for his wife. At the time the conveyance was executed she was present in him, consenting to the conveyance, and, as he signed the instrument at the same time, it would appear that there was that joint consent which the constitution requires.

It is said that considerable time elapsed from the execution of the power of attorney before the mortgage was made, but it was duly acknowledged and recorded, and, standing on the public record as it did, the wife cannot shut her eyes to its existence, and the public had a right to rely on its validity. Patton v. King, 26 Tex. 685; Warren v. Jones, 69 Tex. 462, 6 S. W. 775; Jones v. Robbins, 74 Tex. 615, 12 S. W. 824.

In regard to the last objection it may be said that, while the power conferred is general, it cannot be held invalid. The power granted is to sign any deeds, mortgages, and releases which she might or could do if present, and to that end the husband was given full power and authority to do any and all acts and things whatsoever necessary to accomplish that purpose. This power of attorney was recorded in the office of the register of deeds of the county in which the lands mortgaged were situate, and within the rule of Munger v. Baldridge, supra,

is sufficient authority for the conveyance or incumbrance of any land within that county. It is therefore the opinion of the writer that the judgment of the district court was right, but, as a majority of the court hold the power of attorney to be invalid for the purposes intended, there must be a reversal of the judgment of the district court, and a new trial of the cause.

HORTON, C. J. The testimony in this case, and that offered upon the trial by the defendant below, which was rejected, emphasizes the gross injustice of holding that the power of an attorney executed by the wife and preserved in the record before us is sufficient to express the joint consent of husband and wife, which the constitution and the statutes of the state require in the alienation or incumbrance of a homestead occupied as a residence by the family. In 1884 the father of Mrs. Georgia P. Wallace, the wife of James B. Wallace, gave and transferred to her the real estate described in the mortgages. Soon after, Mrs. Wallace, with her minor child and husband, occupied the property as her actual residence, and has ever since continued to occupy the saine. During the latter part of the year 1884 she made a visit to the state of Illinois. While she was there visiting, and before her return, her husband, J. B. Wallace, wrote her several letters, in which he informed her, among other family matters, that he had bought some town lots out at a little town called Caldwell, in this state, and desired to sell them; that he could not sell them unless he had authority from her so to do, or her signature to a deed therefor; that he did not know what person he would be able to make a sale of them to, and could not safely have deeds of conveyance executed. He sent her the power of attorney in the record, without her signature, and assured her that he did not want to interfere with any of her property or money whatever, and stated that he did not intend to in any manner alienate her homestead.. Mrs. Wallace signed and acknowledged the power of attorney on the 18th of July, 1884, and returned it to her husband. He placed it on record in Crawford county, in this state, where the land is situated, on August 9, 1884. On the 3d of February, 1887,-three years afterwards,-her husband, without the knowledge or consent of his wife, made an application to the Travelers' Insurance Company, through its agents, Angell, Matthewson & Co., for a loan on the homestead in the sum of $1,350, at a time when it was actually occupied by the family. The application was granted, and the mortgages executed by James B. Wallace in person, and also by him for his wife, as her attorney in fact. Wallace then deserted his wife, and has not lived with her since, and she does not know of his whereabouts. The mortgages described the property as "the home

"The

stead of the grantors." The power of attorney executed by the wife to the husband does not describe any real estate, nor refer in any way to the homestead of the family. This court has decided that two separate and independent conveyances by the husband and wife would not be sufficient to alienate the homestead. Ott v. Sprague, 27 Kan. 620. This court has also said: wife cannot, even after the execution of a mortgage of the homestead by the husband, ratify the mortgage of the homestead by the husband, ratify the mortgage so as to breathe life into its existence. Such a mortgage will be void." It must be conceded that if the husband had incumbered the homestead under the power of attorney by a deed from his wife alone, the mortgage would be void. Not so if the real estate was not actually occupied by the family as a residence. The alienation or incumbrance of a homestead must be with the "joint consent of husband and wife"; therefore the conveyance or alienation of a homestead must be the consenting acts of the husband and wife. If the wife may delegate to her husband the power to act for her in the conveyance or alienation of the homestead, the power of attorney must expressly or by necessary implication confer the power to consent with him-or to act with his consent -in such conveyance or alienation. The cases of Munger v. Baldridge, 41 Kan. 236, 21 Pac. 159, and Wilkinson v. Elliott, 43 Kan. 590, 23 Pac. 614, are not decisive of this case upon the facts disclosed. In the Munger Case there was no transfer or conveyance of any homestead. The power of attorney in that case was definite in giving power to transfer the wife's interest in any lands and tenements, the title to which was in the husband, and in which Mrs. Munger had any interest as his wife. In the Wilkinson Case the deed did not convey a homestead, because the general finding of the trial court was interpreted by this court as meaning that the homestead had been voluntarily abandoned. Under all the circumstances, I do not think the power of attorney executed by the wife alone, in and of itself, was sufficient to give authority to the husband, or any one else, to convey the homestead of the family.

ALLEN, J. The constitutional provision requiring the joint consent of husband and wife to any alienation of the homestead must be given effect in accordance with its letter and spirit. The legislature could not, under the guise of a mere regulation of the mode in which that consent might be expressed, do away with the substance of the requirement. Joint consent clearly implies the concurrent action and mental accord of husband and wife. The provision was not incorporated in the fundamental law for the benefit of either husband or wife alone, or both of them together, but for the children

as well,-for the whole family as a social unit. The vast importance of preserving to each family a dwelling place to which every member might look for shelter, secured against improvident alienation and incumbrance, was recognized by the framers of the constitution. Nothing tends more surely to preserve social order, to encourage virtue, industry, and independence, than a home owned by the occupants. In order to sustain the judgment in this case, it must be held, in effect, that the wife may transfer to her husband the power to assent for her as well as himself to the alienation of the homestead, to determine all questions as to time, terms, and purpose of the sale, and to make this assent without the benefit of consultation with her. The facts that the power of attorney was executed, that it was subject to revocation at any time, and that it remained in full force, without any attempt at revocation, up to the date of the mortgage, may seem to some minds to present a logical chain carrying the action of the wife, when executing the power of attorney, on through a period of years, and finally giving it effect through the action of her husband as an assent to the incumbrance. Yet it is clear in this case that the wife had no knowledge of the proposed mortgage, and never in fact gave to it any intelligent assent. The assent required by the constitution is not a blind action, performed without knowledge, or a fair opportunity to know the consequences, but must be an intelligent concurrence on the part of the wife in the conveyance. That a homestead cannot be conveyed or incumbered by the husband and wife acting separately at different times and places, through separate instruments, has been settled by this court. Ott v. Sprague, 27 Kan. 620; Howell v. McCrie, 36 Kan. 636, 14 Pac. 257. The power of attorney executed by the wife in this case is just as separate and distinct from the mortgage afterwards executed by her husband as were the separate instruments executed by husband and wife in the cases above cited. The only way that joint or concurrent action can be deduced from them is by making the wife constructively present at the execution of the mortgage, and constructively concurring and assenting to that which she doubtless would have refused to assent to had she known of the purposes of her husband in executing it. The power of attorney contains no reference whatever to the homestead. It is as general as such an instrument could be made. We are not required, in this case, to go to the length of holding that the joint consent of husband and wife must always of necessity be expressed at the same time and place, and through the same instrument. As was said by Mr. Justice Valentine in the opinion in Ott v. Sprague: "It might be that a husband and wife, by two separate instruments, could alienate the homestead, when it was intended by both that such instruments should oper

ate together as a single instrument; for in such a case it might perhaps be said that the separate consent of each had such a connection with each other that they might together be considered as the joint consent of both." It is not necessary, either, that we should decide in this case that the husband could not be authorized by the wife in any manner to attach her signature to a deed. But it is necessary in all cases that the husband and wife assent jointly, that both shall know of the proposed alienation, that both shall assent to it, that each shall assent with the knowledge and concurrence of the other. The minds of husband and wife must meet and concur in the alienation or incumbrance, just as minds of contracting parties must meet and concur in entering into any valid contract; and one mind cannot be made through agency, or by any legal abdication of its rights, to vest in the other the power to act singly in fact with the same effect as the concurrent action of both. One mind clearly cannot act in a dual capacity. The very purpose of the constitutional provision is to require that the proposed alienation shall be made known to the wife as well as to the husband; that it shall be considered from her standpoint; that her views, feelings, and wishes shall be brought to bear on the case; and that, unless she yields her assent, no alienation shall take place.

(54 Kan. 403)

CLARK v. FISHER et al. (Supreme Court of Kansas. Dec. 8, 1894.) COVENANTS-INCUMBRANCES-UNEXPIRED Lease

DAMAGES.

1. An incumbrance may be defined to be "every right to or interest in the land which may subsist in third persons, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance."

2. An outstanding lease is an incumbrance. 3. Where the incumbrance is an unexpired term of lease, the general rule, at least in the absence of any special circumstances, is that the measure of damages will be the fair rental value of the land to the expiration of the term. The underlying principle is that the damages should be estimated according to the real injury arising from the existence of the incumbrance, which, in the case supposed, is presumably and ordinarily the value of the use of the premises for the time during which the vendee has been deprived of such use.

4. When the premises conveyed by a deed from a grantee to a grantor with a covenant against incumbrances have a growing crop thereon at the delivery of the deed, belonging to a tenant of the grantor, and the grantee is deprived of possession on account of the unexpired term of the lease of the tenant, special circumstances may exist to increase the measure of the damages of the grantee, as the value of the crop, less the cost and expense of taking care of and harvesting the same, may be considered in estimating the real injury to the grantee arising from being deprived of the possession of the premises until after the crop is harvested and taken away.

(Syllabus by the Court.)

Error from district court, Franklin county; A. W. Benson, Judge.

Action by Amos B. Clark against R. E. Fisher and another to recover on a covenant and warranty. Judgment for defendants, and plaintiff brings error. Reversed.

On the 28th of February, 1889, Amos B. Clark brought his action against R. E. Fisher and Jennie Fisher to recover $350, with interest from the 2d of May, 1887, on the covenant against incumbrances set out in a deed executed the 1st of April, 1887, by the defendants to him. The recitations of the deed necessary to be referred to are as follows: "The said R. E. Fisher and Jennie Fisher do hereby covenant and agree that at the delivery hereof they are the lawful owners of the premises above granted, and seised of a good and indefeasible estate of inheritance therein, free and clear of all incumbrances, except a mortgage of $800 to the Kansas Loan & Trust Company, which said second party hereby assumes and agrees to pay; and that they will warrant and defend the same in the quiet and peaceable possession of the said party of the second part, his heirs and assigns forever, against all persons lawfully claiming the same, except as to said mortgage." Trial had November 8, 1889, before the court without a jury. The court took the case under advisement, and rendered judgment for the defendants on January 31, 1890, making findings of fact and conclusions of law. It appears from the record that some time before April 1, 1887, the defendants entered into a written agreement with the plaintiff to convey to him their 80-acre tract of land in Johnson county for the sum of $4,200, and to give immediate possession on delivery of the deed, On April 1, 1887, they made such conveyance by warranty deed containing the covenants above referred to. At that date, J. A. Dent had been in open and visible possession, as R. E. Fisher's tenant, for about three years. In the fall of 1886 a new lease had been made to Dent, by the terms of which he was to plant 60 acres in wheat, harvest it, and deliver to Fisher, in Olathe, one-third of the grain, as rent, and he was also to have the use of the house and garden until the wheat should be harvested. He likewise agreed to yield possession, on 30 days' notice, in case of a sale by Fisher; but with the privilege of harvesting and removing the crop. He had no lease of or claim upon the meadow and pasture after the grazing season of 1886. On April 3, 1887, only two days after the deed was delivered to him, Clark conveyed the land to North and others, of Kansas City, Mo., the sale thereof to them having, in fact, been negotiated and agreed upon before the conveyance to Clark. Plaintiff's grantees, North et al., at once sent surveyors to lay off the land into town lots, it being adjacent to Olathe; but these surveyors having entered into Dent's wheat field, and commenced to drive stakes and mark off lots, he ordered them to desist. They did so. Then North & Co. demanded

possession of Clark, who thereupon bought from Dent his two-thirds interest in the crop for $300, and he then made no further difficulty. Thereupon, North & Co. completed the survey, and plowed roadways or streets, as designated on the survey, through the growing wheat, and in due time caused the same to be harvested by Dent, who harvested and threshed the same for onehalf thereof, North & Co. receiving and retaining the other half. The amount harvested altogether was 700 bushels, worth 60 cents per bushel. If none had been plowed up for streets, the amount would have been 850 bushels, and its value $510. When the deed from the defendants to plaintiff was ready for delivery, the defendants, residents of Ottawa, sent their agent with the deed to Olathe, to complete the sale. At that time some details had to be settled with reference to interest upon a mortgage then outstanding on the land, and to which the conveyance was subject. The agent had an interview with the plaintiff upon the matter, and was about to proceed to see Dent, the tenant, relative to possession, when the plaintiff stated, in substance, that North & Co. were about to purchase an adjoining tract, and he believed it could be arranged to have Dent move upon that, and that he could arrange the matter better than the agent, and that it would be best for the agent to say nothing to Dent, as the latter might take an unfair advantage. He insisted, however, that he must have possession; that possession must follow the deed, as he had agreed to give possession to others, to whom he had negotiated a sale, and that he would stand upon the contract. After this interview the deed was delivered, and the consideration paid, before any agreement had been made with Dent as to possession. The plaintiff never had possession, and only desired it that he might deliver such possession to his grantees, North & Co. The $300 paid to Dent was the reasonable value of his possession. Such possession, however, was of but little value aside from his interest in

the crop. The plaintiff made the arrangement with North & Co., owners of an adjoining tract, as contemplated, whereby Dent was permitted to move upon that tract, without expense to the plaintiff; so that Dent was satisfied t, and did, give up his possession by being paid what appears to be the fair value of his interest in the wheat. Judg ment having been rendered in favor of the defendants and against the plaintiff, the plaintiff excepts and brings the case here.

Mechem & Smart, for plaintiff in error. John W. Deford and W. A. Deford, for defendants in error.

HORTON, C. J. (after stating the facts). The plaintiff obtained his deed from the defendants on the 1st of April, 1887; this contained a covenant against incumbrances. At the time of the conveyance the land was in