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the homestead of the family, by a married | 763, 119 Pac. 587; 21 Cyc. 546; 15 Am. & man, given without the wife's consent in Eng. Enc. Law, 665; Hall v. Powell, 8 Okla. the manner prescribed by law, is void.

276, 57 Pac. 168; Cropper v. Goodrich, 89 Same separation of family.

Kan. 589, 132 Pac. 163; Goldsborough v. 4. Where the relation of husband and wife Hewitt, 23 Okla. 66, 138 Am. St. Rep. 795, exists, the deed of the former to the home 99 Pac. 907. stead of the family conveys no title, and this notwithstanding the fact that the hus

The abandonment by the wife had not band and wife be living separate and apart, existed for a period of one year at the time or even though the wife may have, without the deed was executed, and any subsequent justifiable cause, abandoned the husband. abandonment would give it no validity. Mortgage to wife foreclosure Gleason v. Spray, 81 Cal. 217, 15 Am. St. rights.

Rep. 47, 22 Pac. 551; Hall v. Powell, 8 Okla. õ. Where a husband gives a wife a mort. 276, 57 Pac. 168; Ott v. Sprague, 27 Kan. gage on the homestead to secure the payment | 620; Bruner v. Bateman, 66 Iowa, 488, 24 of a postnuptial settlement, which mortgage N. W. 9; Shoemaker v. Collins, 49 Mich. she subsequently foreclosed by suit, the pur- 597, 14 N. W. 559; Murphy v. Renner, 99 chaser at the foreclosure sale succeeds to Minn. 348, 18 L.R.A.(N.S.) 565, 116 Am. St. her rights, and may attack as void a deed given to the homestead by the husband Rep. 418, 109 N. W. 593; American Sav. & without the wife's consent.

L. Asso. v. Burghardt, 19 Mont. 323, 61 Am. Homestead void statutes.

St. Rep. 507, 48 Pac. 391. 6. Sections 882 and 883, Wilson's Rev. &

Where the wife is driven from her home Anno. Stat. 1903 (8$ 1189 and 1190, Comp. by the cruelty of her husband, her homeLaws, 1909), infringe upon and are repug- stead interest continues. nant to § 2 of article 12 of our Constitution, 15 Am. & Eng. Enc. Law, 550; 21 Cyc. prohibiting the sale of the homestead where 534; Somers v. Somers, 27 S. D. 500, 36 owned by a married man, without the con- L.R.A.(N.S.) 1024, 131 N. W. 1091; Scott sent of his wife given in the manner pre- v. Scott, 73 Miss. 575, 19 So. 589; Rogers scribed by law; hence were not extended in force in the state by $ 2, art. 25, of the

v. Day, 115 Mich. 664, 69 Am. St. Rep. 593, Constitution.

74 N. W. 190; Maloy v. Wm. Cameron & Evidence rents.

Co. 29 Okla. 763, 119 Pac. 587. 7. Evidence examined, and held that the

Messrs. Garber & Kruse and Riley wife is not entitled to recover rents for the Cloud, for defendant Metcalf: years 1909 and 1910.

There was no fraud on the part of de

fendant Metcalf in his purchase at the (October 13, 1914.)

sheriff's sale. He purchased in good faith,

and in the absence of fraud is entitled to YROSS writs of error to the District the return of his purchase money, where the

Court for Alfalfa County, to review a sale is held void, and also to be reimbursed judgment in favor of defendant Mary F. for what he has expended on the property. Whelan upon her cross petition claiming

17 Am. & Eng. Enc. Law, 1024; 24 Cye. homestead rights in the property, in an ac

70; Hall v. Dineen, 26 Ky. L. Rep. 1017, 83 tion brought to foreclose a mortgage exe

S. W. 120; People v. New York Bldg. Loan cuted by defendants Adams, as grantees of

Bkg. Co. 189 N. Y. 233, 82 N. E. 184; Dume. James D. Whelan, upon a farm claimed by stre’s Succession, 40 La. Ann. 571, 4 So. defendant Mary F. Whelan as her homestead, 328; Smith v. Brittain, 38 N. C. (3 Ired. and by defendant Metcalf as purchaser at a sheriff's sale; plaintiff complaining of the Eq.) 347, 42 Am. Dec. 175; Connorv. Mc

Coy, 83 S. C. 165, 65 S. E. 257. setting aside of his mortgage, and defen

The fact that a deed executed by a husdants Adams complaining of the decree

band without the wife's signature is void against them for rents and profits. ' Affirmed in part.

may be taken advantage of by any subse

quent grantee. It is not a personal right. The facts are stated in the Commissioner's opinion.

Dorsey v. McFarland, 7 Cal. 342; Rogers Messrs. Titus & Carpenter for plaintiff 74 N. W. 190; Dye v. Mann, 10 Mich. 291;

v. Day, 115 Mich. 664, 69 Am. St. Rep. 593, Frank H. Whelan. Messrs. Talbot & Owen for defendants W. 31; Bolton v. Oberne, 78 Iowa, 278, 44

Goodwin v. Goodwin, 113 Iowa, 319, 85 N. Adams et al.

N. W. 547; Murphy v. Renner, 99 Minn. Mr. George W. Partridge, for de- 348, 8 L.R.A. (N.S.) 565, 116 Am. St. Rep. fendant Mary F. Whelan:

418, 109 N. W. 593. The deed from James D. Whelan to P. O. Adams, which was not joined in by Mary Sharp, C., filed the following opinion: F. Whelan, did not convey any interest to The controversy between the parties conthe premises.

cerns the title to a quarter section of land Maloy v. Wm. Cameron & Co. 29 Okla.' in Alfalfa county which was patented by

CRO

the government to one James D. Whelan, fendant Emery L. Metcalf, subject to a first in 1906. Prior thereto, and in March, 1904, mortgage in favor of the Monarch Loan said James D. Whelan and Mary F. Whelan Company. The sale being confirmed, a were married, and continued to reside to sheriff's deed was executed and delivered to gether as husband and wife on the land in said Metcalf on March 2, 1910, and placed question until July 18, 1907, when, owing to of record in the office of register of deeds. domestic troubles, they separated, the hus- The present action was brought on Decemband continuing to reside on the farm, and ber 15, 1910, by Frank H. Whelan, to forethe wife in the city of Cherokee, Alfalfa close his mortgage given by the defendants county. In 1907 each filed a divorce suit Adams and wife. It is insisted by each of against the other, in different courts, which the plaintiffs in error that neither Mary F. suits were pending and undetermined on Whelan or Emery L. Metcalf have any right, May 21, 1908. On the latter day they en-title, or interest in the land in question, tered into a contract whereby the said James and, further, that Metcalf was not an innoD. Whelan was to pay his wife, at fixed cent purchaser for value, and was not theretimes, the sum of $500, and dismiss his fore entitled to an order restoring to him divorce ceedings, and further agreed to his expenditures laid out in the purchase of begin a new suit for divorce, charging as said farm, and the subsequent payment of ground therefor defendant's abandonment of taxes thereon, and interest on the Monarch plaintiff, and to which suit to be so insti. Loan Company loan. On the part of Mary tuted the wife would make no defense. The F. Whelan it is insisted in her answer and wife also agreed, in consideration of the cross petition that, for numerous reasons husband's undertakings, to dismiss her di- named, the deed executed by her husband to vorce suit, and, further, that upon payment P. O. Adams was void, and that hence Frank of said sum of money, she would make no Whelan acquired no rights in the premises claim or demand of him for either tempo- by virtue of his mortgage. As to her coderary or permanent alimony or suit money. | fendant, Metcalf, Mary F. Whelan asked The performance of the provisions of this that the court enter its decree canceling any postnuptial contract was secured by a mort- claim, right, or title that said defendant gage concurrently executed by the husband might have in the premises. In her reply to on the land in question, which mortgage the answer and cross petition of defendant was on the day of its execution duly placed Metcalf, said defendant Whelan set up the of record. At the same time the land was mortgage given in her favor by her husband, occupied by the husband as a homestead. the contract of May 21, 1908, the mortgage Thereafter, and on the 29th day of May fol- foreclosure proceedings, the sheriff's deed exlowing, the said James D. Whelan executed ecuted pursuant thereto, and charged that a deed purporting to convey to the defend. said contract and each and all of said proant P. O. Adams the land in question, but ceedings were illegal and void, and tendered which deed was not signed by his wife, and back to said Metcalf $500, and interest. The was given without her knowledge. On the defendant Metcalf, in his cross petition, 1st day of June following, P. O. Adams, also charged that, for different reasons asjoined by his wife, Effie Adams, executed a signed, Adams acquired no title on account mortgage on said land to the plaintiff, of his purported deed of May 29th, and that Frank H. Whelan, a brother of James D. therefore the mortgage given by him and Whelan, which mortgage purported to have his wife to Frank H. Whelan in turn conbeen given to secure the payment of a $3,000 veyed no interest or right to the property note of even date, in favor of said mortgagee. in question. Said defendant further set up This mortgage was placed of record on the the proceedings through which he acquired day of its execution.

title at the foreclosure sale, including the James D. Whelan having defaulted in the sheriff's deed, charged that Mary F. Whelan payment of the amount named in the settle-was estopped from attacking his title, and inent made with his wife, the latter, on July asked for a cancelation of the deed from 17th following, instituted in the district James D. Whelan to Adams, for a judgment court of Alfalfa county an action to fore- barring the defendant Mary F. Whelan from close the mortgage given to secure the per- any claim, right, title, or interest in the formance of the contract. Neither P. 0. premises, and for a further decree vesting Adams or his wife or Frank H. Whelan were and conferring the title to said premises in parties to the foreclosure action. Personal him. service of summons was had on the defend- It was insisted on the part of the plainant James D. Whelan, and on the 2d day tiffs in error that Mary F. Whelan, in July, of October, 1908, a judgment foreclosing 1907, voluntarily and without cause abansaid mortgage was rendered by the district doned her husband, and that the agreement court, and at a foreclosure sale subsequent- of May 21, 1908, between James D. Whelan ly held the land was purchased by the de-' and his wife, and the subsequent foreclosure proceedings brought to enforce the terms | 294, 137 Pac. 1178; Chicago, R. I. & P. R. thereof, the judgment of the court, order of Co. v. Pitchford, · Okla. —, 143 Pac. 1146. confirmation, and the sheriff's deed, were In view, however, of the conceded facts, and each and all illegal and void, being against of the law in the present case, by which public policy, and that thereby the said Met- the rights of both plaintiffs in error are to calf acquired no title by virtue of the sher- be determined, the error was without preju. iff's deed; that, Mary F. Whelan having dice, and therefore not sufficient to cause without justifiable cause abandoned her hus- a reversal. band, the deed executed by the latter to The controlling question is that of the Adams on May 29th was valid, though not right of James D. Whelan to execute to P. executed by her.

0. Adams the deed of May 29, 1908. At The case was tried before the court, spe the time of its execution said James D. Whecial findings of fact and conclusions of law lan and Mary F. Whelan were husband and being made. In the decree Mary F. Whelan wife, and the land attempted to be conveyed, was given the immediate possession of the though owned by the former, was the homeland in question, which was found to be the stead of the family. Section 2, art. 12, of homestead of herself and husband. The our Constitution, provides that the homesheriff's deed executed to the defendant stead of the family shall not be sold by the Emery L. Metcalf was adjudged to be void, owner, if married, without the consent of and it was ordered that said Metcalf have his or her spouse, given in such manner as a lien against said land for the sum of may be prescribed by law. At no time did $988.43. The mortgage executed by Adams Mary F. Whelan give her consent to the sale and wife to Frank H. Whelan and wife was attempted to be made to Adams. The quesdeclared to be null and void, and ordered tion presented does not appear to ever have canceled, set aside, and held for naught, been passed upon by this court. The opinand said P. O. Adams and Effie Adams were ions in Maloy v. Wm. Cameron & Co. 29 adjudged to be in wrongful and unlawful | Okla. 763, 119 Pac. 587; Kelly v. Mosby, possession of the premises, and thei title 34 Okla. 218, 124 Pac. 984; and Krauss v. ordered devested. Judgment was rendered Potts, 38 Okla. 674, 135 Pac. 362, all involve against Adams and wife for $570; that be transfers made or attempted prior to the ing found to be the reasonable rent and adoption of our state Constitution. The profit arising from the land during their sale, having been made in direct violation period of occupancy. Neither defendant of the express provision of our organic law, Mary F. Whelan nor Emery L. Metcalf filed was void; hence Adams acquired no rights a motion for a new trial; hence, as between by reason of his purchase. The constitu. them, the judgment of the new trial court tional inhibition is plain, unambiguous, is final.

and admits of no exceptions which would In view of our conclusions, it will be destroy its obvious design. If the owner necessary to consider but few of the many be a married man, the consent of the wife, assignments of error. The trial court's ac- given in such manner as may be prescribed tion in forcing plaintiff and defendants P. by law, is essential to the valid alienation 0. Adams and Effie Adams to trial on the of the homestead, unless (it may be) the day the issues of fact were joined was erro-conveyance be made to her. No alienation neous. The pleadings, it appears, were filed of the homestead by the husband alone, in within the time prescribed by statute, or whatever way it may be effected, is of any were permitted to be filed with the court's validity; nothing that he can do or suffer consent. At no time were the parties in to be done can cast a cloud upon the title; default; neither were the demurrers filed it remains absolutely free from all grants by them adjudged to be frivolous. Section and encumbrances, except those mentioned 5644, Comp. Laws 1909, provides that when in the Constitution. Morris v. Ward, 5 ever the answer contains new matter con- Kan. 239. Efforts have been made to instituting a right of relief against a code- j graft exceptions arising out of the supposed fendant, concerning the subject-matter of necessities of the case, upon similar constithe action, such codefendant may demur or tutional provisions or statutory enactments, reply to such matter in the same manner but in all states save one, so far as we have as if he were plaintiff, and subject to the examined the authorities, they have unisame rules as far as applicable. Long v. formly failed; for it must be remembered Harris, 37 Okla. 472, 132 Pac. 473. Section that it is not the homestead of the husband 5834, Comp. Laws 1909, provides when ac- alone, though the title be in his name; it is tions shall be triable, and has recently been the homestead of the family, made so by construed by this court in Ardmore v. Orr, the Constitution. 35 Okla: 305, 129 Pac. 867; Conwill v. Eld- Provisions similar to that of our Constiridge, 35 Okla. 537, 130 Pac. 912; Title tution are found either in the Constitutions Guaranty & T. Co. v. Turnbull, 40 Okla.' or statutes of the great majority of the states of the Union, and, with a single ex- | Rogers v. Day, supra. There it was inception, so far as our investigation has sisted that only the husband, widow, or disclosed, conveyances made or attempted children could take advantage of the homeby the husband, without the consent of the stead right, and maintain a suit to protect wife given in the manner prescribed by law, it, and that, since neither in that case disare held to be void. Many of the authori- affirmed the conveyance, the complainant ties are collected in the notes to Poole v. had no standing. There the homestead Gerrard, 6 Cal. 71, 65 Am. Dec. 481; Cham had been sold upon execution on a decree bers v. Cox, 23 Kan. 393; Alt v. Banholzer, for alimony rendered in favor of the wife, 39 Minn. 511, 12 Am. St. Rep. 681, 40 and it was held that the complainant, who N. W. 830; Stanton v, Hitchcock, 64 Mich. derived his title through mesne conveyances, 316, 8 Am. St. Rep. 821, 31 N. W. 395; stood in the shoes of the wife; that, as she Martin v. Harrington, 73 Vt. 193, 87 Am. chose to have the property sold upon exeSt. Rep. 704, 50 Atl. 1074; Hart v. Church, cution on a decree rendered in her favor, 126 Cal. 471, 77 Am. St. Rep. 195, 58 Pac. she was estopped to set up her homestead 910, 59 Pac. 296; O'Malley v. Ruddy, 79 right as against the purchaser at the sale Wis. 147, 24 Am. St. Rep. 702, 48 N. W. and his grantees; that, complainant being 116; Seiffert & W. Lumber Co. v. Hartwell, in possession under her, and as her grantee 94 Iowa, 576, 58 Am. St. Rep. 413, 63 N. W. under the execution sale, he succeeded to 333; McKenzie v. Shows, 70 Miss. 388, 35 her rights. To the same effect are Dorsey Am. St. Rep. 654, 12 So. 336.

v. McFarland, 7 Cal. 342; Dye v. Mann, 10 Much stress is laid upon the fact that Mich. 291; Bolton v. Oberne, 79 Iowa, 278, Mary F. Whelan had voluntarily abandoned 44 N. W. 547; Goodwin v. Goodwin, 113 her husband, and, notwithstanding his en- Iowa, 319, 85 N. W. 31; 21 Cyc. 558. treaties for her return, had continued to Section 883, Wilson's Rev. & Anno, Stat. absent herself from the homestead, and to 1903 (8 1190, Comp. Laws 1909), provided live separate and apart from her husband. that, the husband or wife executing the inThe finding of the trial court, however, was strument relating to the homestead, without to the effect that the abandonment was not being joined with the other, it could only voluntary, but was caused by the threats be avoided by the one not joining. In Maand ill treatment of the husband. We deem loy v. Wm. Cameron & Co. 29 Okla. 763, the fact of what caused the wife to leave 119 Pac. 587, Judge Williams called attenand remain away from home, and whether tion to the fact that said section did not her abandonment was voluntary or invol- appear to have been extended in force by untary, as immaterial. They were still hus. the Constitution. This observation, in our band and wife, never having been divorced, judgment, stated a correct conclusion. The and there is no exception written in our statute mentioned is without doubt repugConstitution authorizing the husband to sell nant to § 2, art. 12, Constitution, providing the homestead without the wife's consent how the homestead of the family may be upon her voluntary abandonment of him. sold, and was therefore not put in force by Neither are we disposed to write into the $ 2, art. 25, of the Constitution. By $ 882, language used implied exception. Wilson's Rev. & Anno. Stat. 1903 ($ 1189, Thompson v. New England Mortg. Secur. Comp. Laws. 1909), it is provided that, Co. 110 Ala. 400, 55 Am. St. Rep. 29, 18 where the title to the homestead is in the So. 315; Murphy v. Renner, 99 Minn. 348, husband, and the wife voluntarily aban8 L.R.A. (N.S.) 565, 116 Am. St. Rep. 418, dons him for the period of one year, or 109 N. W. 593; Herron v. Knapp, S. & Co. from any cause takes up her residence outCo. 72 Wis. 553, 40 N. W. 149; Chambers v. side of the state, he may convey, mortgage, Cox, 23 Kan. 393; Ott v. Sprague, 27 Kan. or make any contract relating thereto, with620; Johnston v. Turner, 29 Ark. 280; out being joined therein by her. We think Williams v. Swetland, 10 Iowa, 51; Lies v. that this section of the statute must likeDe Diablar, 12 Cal. 327; Rogers v. Day, wise fall. To hold otherwise would be to 115 Mich. 664, 69 Am. St. Rep. 593, 74 create an exception whereby, when one of N. W. 190.

two facts appear, the husband could convey The contention that, even though the deed the homestead without the consent of his was void because the wife had not joined wife. The fact that the wife may have in its execution, or consented to the sale without any cause taken up her residence of the homestead, that fact cannot be outside of the state, or that she may volunavailed of by the defendant Metcalf, is tarily abandon her husband for a period of without merit. Metcalf purchased at the one year, does not of itself dissolve the foreclosure sale, and occupies the same po- marriage relation, unless, perhaps, it should sition in law, with regard to the Adams continue for a sufficient length of time to deed, as would Mary F. Whelan. The facts raise the legal presumption of death. A in this case are very similar to those in similar question was before the court of

an

chancery appeals of Tennessee in Couch v. | Frank H. Whelan, acquired any rights Capitol Bldg. & L. Asso. Tenn. - 64 thereunder, and as to them it matters not S. W. 340. It was contended by the defend. what errors the trial court may have comants in that case, in effect, that, the hus- mitted. They have no cause to complain, band having deserted and abandoned his for in no event are they or either of them wife before the execution of her deed, she entitled to any form of relief against the had the right under Shannon's Code, § 4242, defendants in error. to sell or mortgage the homestead without The judgment for rents against Adams her husband joining in the conveyance with and wife for the years 1909 and 1910 her. On the other hand, it was urged by the should be vacated. During these years complainant that, under the Constitution, the wife had lived separate and apart from the homestead could only be alienated by her husband. From the time of their septhe joint consent of husband and wife, aration in July, 1907, until the filing of when that relation existed, and that in the her answer and cross petition in March, purview of the law the relation of husband | 1911, she had not asserted her right in the and wife was not dissolved by his desertion homestead. On the contrary, in 1908 she and abandonment of her. The opinion reads and her husband had effected a settlement in part: "The homestead is a property purporting to be in full of their property right fixed in our Constitution. Const. rights, and which settlement she sought art. 11, § 11. Its extent and duration are to, and did, enforce by a foreclosure proalso fixed by it. The method of its aliena- ceeding in court. Her position during the tion where the marriage relation exists years for which rent was recovered was is prescribed by it, and that is by the joint that of a creditor, and not of a homestead consent of the husband and wife. Legisla- claimant. Whatever we may think of the tion subsequent to the adoption of the Con- validity of the postnuptial settlement bestitution prescribes how this joint consent tween James D. Whelan and wife, or of the shall be given. We are of opinion that it is effect that should have been given her subnot competent for the legislatı to provide sequent foreclosure proceedings enforcing for the alienation of the homestead without its terms, it cannot be that, covering the the joint consent of the husband and wife, very period during which she occupied a when that relation exists, simply because wholly antagonistic position, she should be the Constitution says in explicit terms that allowed to recover rents and profits arising it shall not be alienated otherwise. The from the lands sold Metcalf under the judg. mode or manner of giving or evidencing ment against her husband. During the the joint consent of the husband and wife entire period she and James D. Whelan is another matter. The legislature may act were husband and wife. We are not to be here and prescribe. If correct in this, it understood as saying that under no circumfollows that the section of the Code (Shan- stances may a wife recover rents from the non's Code, § 4242) is of no avail to ap- homestead where the title thereto is in the pellants in this aspect of the case, unless we husband. It may be there are times when hold that the desertion of the wife by the she can, though the husband be living and husband does away with the relation of they be not divorced. But under a state husband and wife. It is not believed that of facts such as presented by the record such a proposition finds support in any before us we must conclude that no such adjudicated case, nor in sound judicial rea- recovery can be had. soning, when applied to the marriage state To our minds, the court below erred in and statute. The relation of husband and canceling the sheriff's deed to Emery L. wife is not dissolved, done away with, or Metcalf, but, as he appears to be satisfied destroyed by the desertion of either spouse with the judgment restoring to him the by the other."

purchase price of the land, and the taxes The clause "given in such manner as may and interest paid out, we are without aube prescribed by law,” in § 2, art. 12, Con-thority to review the judgment as between stitution, deals only, as the context clearly said defendants. shows, with the form of the consent to the In so far as the judgment of the court sale of the homestead; such, for instance, as below gave judgment for rent against plainwhether the deed of conveyance should be tiffs in error P. O. Adams and Effie Adams, executed jointly by the husband and wife, it should be vacated and set aside. In all whether the wife should be privily examined other respects the judgment should be afby the officer taking her acknowledgment, firmed. or what officer was authorized by law to

Per Curiam: take such acknowledgment. The deed from James D. Whelan to P. O.

Adopted in whole. Adams, being void for the reasons already Petition for rehearing denied January 30, noted, neither the latter or his mortgagee, 1915.

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