Wea Gas, Coal & Oil Co. v. Franklin Land Co.

[535] The opinion of the court was delivered by Johnston, J.: There is little in the additional findings of fact to change the view that was taken when the case was here before. (Land Co. v. Gas Co., 43 Kas. 518.) It appears that there was but one lease executed by Dunn, and that that one and the lease referred to in the Wadsworth coi - tract are identical. And it further appears that the officer* of the land company had knowledge of the execution and delivery of a paper purporting to be the lease executed by Dunn to the oil company. It is shown beyond question, however, that no lease was in fact executed, and nothing subsequently done gave any life or validity to the lease signed by Robert Dunn. The paper was not signed by Mrs. Dunn, and there was not that joint consent necessary to give validity to an alienation of the homestead. It was held when the case was here before that a lease of a homestead, such as Dunn attempted to give, is of no validity unless given with the joint consent of husband and wife. It is true that the wife was ready to sign the lease, and would have signed it if her husband had requested her to do so, but she was not requested to sign it, and did not join in its execution.- It is manifest that at that time none of the parties thought that her signature or consent was essential to the validity of the lease, and it is clear that no legal consent was sought or obtained from her. As the lease was absolutely void, Dunn and wife were at liberty to convey a complete title to a purchaser. In the conveyance which they executed no reservation or exception was made. While the land company had learned of this lease when it bought, it knew that it was one without validity as to both Mr. and Mrs. Dunn, and that no rights could be built upon it. It had a right to assume that the oil company could not maintain possession under the lease against the Dunns or any person who might hold under them. The lease being absolutely void, the Dunns held a complete title, and the effect of their conveyance was the transfer of the whole inter [536] est which was vested in them. It is true that they are not here asking to avoid the lease, but where “the owner of a homestead has sold the same, the purchaser has a right, for the purpose of establishing his own title, to show that at the date of his purchase the land was a homestead, and therefore not subject to a judgment lien or forced sale. He does this, not for the benefit of his grantor, but for the protection of his own right and title.” (Elwell v. Hitchcock, 41 Kas. 130.) There is a finding that there was a mutual mistake in not excepting the lease from the terms of general warranty in the deed executed by Dunn and wife. But this is unimportant in this action. The deed has never been reformed, nor have any of the parties to the same set up the mistake or asked for its correction. None of the parties to that instrument were parties in this action, and hence the finding is without force. Whether the exception of the lease from the terms of general warranty would have validated the lease is a doubtful question, which we need not decide. The reference to the lease in the Wadsworth contract does not help the oil company, and the doctrine of estoppel has no application. It was not a party to that contract, did not and had no right to rely upon it, and, as was shown in the former opinion, was not in any way affected adversely by the recital contained in that contract. As the lease was an absolute nullity, it neither passed any estate or interest to the oil company, nor did it have any operation against the Dunns or their grantees by estoppel or otherwise. , We think the district court reached a correct conclusion upon the facts in the case, and therefore its judgment will be affirmed. All the Justices concurring.