The case of Nash v. Boltwood was determined before we had reports of the decisions of this court, and we do not know the grounds on which it was decided. A widow is dowable of a lot of wild land, which was used by her husband, in connection with his dwelling house and cultivated land, for the purpose of procuring fuel and timber for repairs. White v. Willis, 7 Pick. 143. But not of mines unopened at the death of her husband. Coates v. Cheevers, 1
II Kansas, 19. - 1873.
Kingman, C. J. - This case came up from a decision of the District Court sustaining a demurrer to the petition of plaintiff in error. It appears from the petition that plaintiff in error and the defendant, James M. Helm were married on the 15th of April, 1871; that James M. Helm was then the owner of eighty acres of land, upon which the husband and wife resided, and which was their homestead. On the 17th of June thereafter, and while they were residing on said land as their homestead, the land was conveyed to William Helm for the consideration of nine hundred dollars, by deed signed by husband and wife; and two days thereafter the husband abandoned his wife. She seeks to have the deed set aside on two grounds. One is, that her signature was procured by the false representations of the defendant that her husband had purchased other lands in Shawnee county for a home; the other is, that her signature was procured by the threats and menaces of the defendants, they threatening her life unless she would sign the deed, and in apprehension of great danger if she did not sign the deed, she did sign it. The relief sought certainly could not be granted because the husband made representations that were false to induce his wife to sign the deed. If she relied on them, it was at her peril alone.
The second ground we think is sufficient to authorize the relief asked. Our homestead provision is peculiar. The homestead cannot be alienated without the joint consent of the husband and wife. The wife's interest is an existing one. The occupation and enjoyment of the estate is secure to her against any act of her husband or of creditors without her consent If her husband abandons her, that use remains to her and the family. With or without her husband, the law has set this property apart as her home. It may be difficult to define the estate, but it is one nevertheless. It is not like dower. Dower is only a possible estate, an inchoate interest that, depending on uncertain events, the wife may never enjoy. That the wife's right under our homestead laws is an existing interest, probably none will deny. She then having been compelled to sign away the interest by duress has a right to come into court and have that act declared null and void, so that her rights shall not be lost by the illegal conduct of those who attempted to profit by their violence. When her signature is declared void, the law comes in and disposes of the deed made by her husband without her consent. § 1, page 473, Gen. Stat. If the wife could not maintain this action, then an estate, to the immediate enjoyment of which she is entitled, and which might finally become hers absolutely, might be wholly lost. For the record shows that she has parted with her estate. It may well be questioned whether an innocent purchaser would not hold the land against her who had stood silent while he purchased for a full consideration. The land which the record showed belonged to William Helm. Having then an estate in the land, with a right to immediate enjoyment, and her signature procured by threats being not that consent that the law requires for the transmission of the homestead, it seems to us that the demurrer ought not to have been sustained.1
1 For the New York statute as to assignment of dower, see Code Civil Proc. §§ 1596-1625. - Ed.
1 For the New York statute as to homesteads, see Code Civ. Proc. §§ 1397-1404. - Ed.