Hawkins v. Corbit

MILLER, J. This action was commenced in the district court of Okmulgee county on July 9, 1917, by Dan Hawkins and Beatrice Hawkins, as plaintiffs, against A. Corbit and Joe Bryant, defendants, to cancel certain deeds, one executed by Dan Hawkins to A. Corbit, and one executed by Beatrice Hawkins (Mrs. D. E. Hawkins being named as grantor and it being signed “D. E. Hawkins”) to A. Corbit. Also, one deed executed by A. Corbit and wife to Joe Bryant, each purporting to convey the southeast quarter of section 6, township 11, range 12 east, in Okmulgee county. The case was tried to the court on March 28, 1918. At the close of the testimony of the plaintiffs, the defendants interposed a demurrer to the evidence, which was by the court sustained and judgment rendered against the plaintiffs, to reverse which the plaintiffs perfected this appeal. The plaintiffs below are plaintiffs in error here, and the defendants below appear here as defendants in error. For convenience they will be referred to as they appeared in the lower court. Numerous assignments of error have been made by the plaintiffs in error, but it will only be necessary to consider one. Were the separate deeds taken by defendant Cor-bit from the plaintiffs void because in violation of the homestead provisions of the Constitution and the statutes of Oklahoma passed pursuant to the provisions of the Constitution? We hold the deeds were void. The petition recites the execution of (hese deeds; that the land in controversy was the homestead of the plaintiffs; that the relation of husband and wife existed, and they were occupying the land as their homestead. The petition further recites the grossest kind of fraud in procuring the deeds. The deed of the husband was procured at Muskogee on February 2, 1917. The deed of the wife was obtained at Tulsa, February 5, 1917, late at night, when she was in a drunken condition. The husband and wife were not together at the time of the execution of either of the deeds. The evidence introduced by the plaintiffs fully bears out these allegations in the petition. The answer is a general denial. The plaintiffs are negroes. Dan Hawkins is an enrolled Creek freedman and the land in controversy is his allotment. From the evidence introduced it is conclusive that the plaintiffs were husband and .wife; that they were, at the time of the execution of the deeds and for several years prior thereto and up to and including the date of the trial, occupying the land in controversy as their homestead. Defendants in their brief make repeated reference to the plaintiffs as husband and wife; therefore, admitting that relation existed. They do not deny or even suggest that plaintiffs were not occupying the land in controversy as their homestead. By their brief they clearly concede this to be a fact. With these facts established, we will now apply the Constitution and laws of Oklahoma. Section 2, article 12, Constitution of Oklahoma, relating to homesteads and the alienation thereof, provides as follows: “The homestead of the family shall be, and is hereby protected from forced sale for the payment of debts, except for the purchase money therefor or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon; nor shall the owner, if married, sell the homestead without the consent of his or her spouse, given in such manner as may be prescribed by law; provided, nothing in this article shall prohibit any person from mortgaging his homestead, the spouse, if any. joining therein; nor prevent the sale thereof on foreclosure to satisfy any such mortgage.” This section of the Constitution says that the owner shall not sell the homestead without the consent of his spouse, given in such manner as may be prescribed by law. We find section 1143, Revised Laws of Oklahoma, 1910, prescribes the manner by which they may sell and convey: “No' deed, mortgage or other conveyance relating to real estate or any interest therein, other than for a lease for a period not to exceed one year, shall be valid until re [277] duced to writing and subscribed by tlie grantors; and no deed, mortgage or contract relating to tlie homestead exempt by law, except a lease for a period not exceeding one year, shall be valid unless in writing and subscribed by both husband and wife, where -both are living and not divorced or legally separated, except to the extent hereinafter provided.” It will be observed that the Legislature took especial precaution in protecting the homestead. That part applicable to conveyance by deed, stripped of the other parts which do not apply, would read: “No deed * * * relating to the homestead exempt by law * * * shall be valid unless in writing and subscribed by both husband and wife.” Under the constitutional provisions safeguarding the homestead for the use. benefit, and protection of the family, where the relation of husband and wife exists, it can be alienated only in the manner prescribed by the statutes, and such statutes must not violate the provisions of the Constitution. In order to convey the homestead there must be a deed; it must be in writing; that writing-must be subscribed by both husband and wife. Webster’s International Dictionary defines the word “subscribe” as follows: ‘L, Subscribere, Subscription; sub under plus scribere to write.) ”1. To write underneath, as one's name; to sign (one's name) to a document. 2. To sign with one’s own hand; to give consent to, as by something written, or to bind one’s self to the term of, by writing one's name beneath; as. to subscribe a bond. It. To attest by writing one’s name beneath; as. officers subscribe their official acts; clerks subscribe copies of records.” This is more strict than if the word “sign” had been used. It designates where they shall sign. It means they must each subscribe, sign underneath, the same writing. This language must be strictly construed, with the view ol’ protecting- the homestead. There must be a literal compliance with it in order to convey title to the homestead. The two separate deeds did not constitute a writing subscribed by both husband and wife. One deed was made at Muskogee on the 2nd of February, the other deed was made three days later and at Tulsa. The eases cited by defendants to the effect that where two separate writings are made at the same time and relating to the same matter, they constitute one transaction and are to be read together, have no application. It is clear to us from the wording of the statute enacted by the Legislature pursuant: to the direction of the Constitution, that the husband and wife must join in -the execution of the same instrument in writing in order to convey title to the homestead. “The homestead interest is jointly vested in the husband and wife for the benefit of themselves and family, without regard to which spouse owns the title to the land: the homestead interest is a creature of the Constitution and statutes, nothing like it being known at common law; it is a special and peculiar interest in real estate; it is not a mere inchoate interest in either spouse, to become vested upon the death of the other; this joint right is paramount to the individual rights of either, and being-incapable of division and partition between husband and wife, if cleaves and adheres so closely to the title to the land itself that it cannot be dissociated therefrom by a mortgage foreclosure sale under a court decree to which either husband or wife is not a party (See par. 9. Op.)” Pettis v. Johnston. 78 Okla. 277, 190 Pac. 681. “Section 2, art. 12, of the Constitution, prohibits the sale of the homestead of the family, where the owner is a married man. without the consent of the wife, given in such manner as may be prescribed by law. “An attempted conveyance by deed of the homestead of the family by a married man. given without the wife’s consent id, the manner prescribed by law, is void?” Whelan v. Adams et al., 44 Okla. 696, 145 Pac. 1158. “Certain land was allotted to Peggie, which was thereafter occupied as the homestead of herself and husband. Peggie executed to Norton a deed to the land so occupied, but without her husband joining therein. Afterward the husband died, and Peggie intermarried with one Joseph, who, with Peggie, continued to reside, upon -the land, claiming the same as their joint homestead. Thereafter Peggie filed an action against Norton to cancel the deed, alleging fraud in procuring the same. Joseph was not made a party to this action. Norton prevailed in the suit, and then instituted the present action against Peggie and Joseph for possession of the premises. Held, that the deed to Norton was void at the date of the marriage of Joseph to Peggie, and. as Joseph and Peggie thereafter occupied the premises as their joint homestead. Joseph was not concluded by the judgment in favor of Norton against Peggie, and that Norton was not entitled to the possession of the premises sued for.” Shanks v. Norton, 79 Okla. 93, 191 Pac. 170. “A verbal agreement entered into by a married man for the sale of the homestead of the family, made without the consent of the wife, though accompanied by partial performance on the part of the intended purchaser. is void, and will not -be enforced in an action for specific performance brought [278] by such purchaser.” Elliott v. Bond, 72 Oklahoma, 176 Pac. 991. “An oil and gas lease covering a homestead which grants the right to enter upon the same and operate for oil and gas, together with the right to lay pipe lines, telephone and telegraph lines, and erect power houses, stations, fixtures necessary for the production of oil and gas, is such a grant of the use and occupancy of the homestead as requires the joint consent of both the husband and wife.” Carter Oil Co. v. Popp, 70 Oklahoma, 174 Pac. 747. “Under the act of 1901 (Sess. Laws 1901, p. 78, c. 10; Comp. Laws 1909, sec. 1187), which provides that no deed, mortgage or contract relating to the' homestead shall be valid unless in writing and subscribed by both husband and wife, an instrument executed by the husband alone, conveying a right of way for a period of ten years over a part of the homestead, is not valid as against the wife.” Kelly et al. v. Mosby et al., 34 Okla. 218, 124 Pac. 984. One of the earliest adjudicated cases on conveyance of the homestead exempt by law is Dickinson v. McLane, 57 N. H. 31. That part of the statute which the court was construing reads as follows: “And no release or waiver of such exemption shall be valid, unless made by deed executed by the husband and wife, with all the formalities required by law for the conveyance of real estate.” The syllabus in the case reads as follows: “Under the act of 1851, exempting the homestead of families from attachment, etc. (Comp. Stats., ch. 196), a married woman cannot release her homestead in the estate of her husband by her separate deed.”