Chicago, Kansas & Western Railroad v. Anderson ( 1889 )

The opinion of the court was delivered by

Horton, C. J.:

In the condemnation proceedings, B. M. Anderson, one of the appellants, was named as the probable owner of the laud appropriated. The right-of-way was taken from a quarter-section of land occupied as the residence of the family of B. M. Anderson as a homestead. The title of the land was in the wife, Irene E. Anderson. From the award of the commissioners an appeal was taken by both B. M. Anderson and his wife, Irene E. Anderson. B. M. Anderson testified as a witness in the case, at very great length. The railroad company objected to his testifying, and also moved to strike out his testimony, upon the ground that he was an incompetent witness under § 323 of the civil code. This section reads:

“The following persons shall be incompetent to testify: . . . Third, husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties and have a joint interest in the action; but in no case shall either be permitted to testify concerning any communication made by one to the other during the marriage, whether called while that relation subsisted, or afterwards.”

In my opinion, the constitutional provision and the statute which forbid the alienation of the homestead without the joint consent of the husband and wife, when that relation exists, do not affect the right of the husband or wife to dispose of the money awarded to either having the ownership and title thereof as compensation for the taking of any part of the land under the law of eminent domain. (Canty v. Latterner, 31 Minn. 239.) In my opinion, condemnation proceedings may be commenced and carried on against the owner of the homestead. The power of the state to appropriate the property is unquestioned, but the right of the owner to be paid for it is secured by the constitution. The power of the state is subject to no restrictions but that of making compensation. The correlative constitutional right to demand and receive the value of the property can only be asserted by the owner. In this case it would seem to me that the party to demand and receive the value of the property is the owner, and that is the wife, Irene E. Anderson, and that- her husband is not a necessary party.

The majority of the court are of the opinion that the appeal was properly taken by both Irene E. and her husband Benjamin M. Anderson, as the premises were occupied as a homestead by them, and therefore that both were joint parties, having a joint interest in the action. Within the letter of the statute, if Irene E. and Benjamin M. Anderson were joint parties and had a joint interest in the action, Benjamin M. Anderson, the husband, was a competent witness. Therefore, in the opinion of a majority of the court the trial court did not err in admitting the testimony of Benjamin M. Anderson. Of course where the title to real estate is really in controversy, the title cannot be proved by oral evidence. (Douglass v. Geiler, 32 Kas. 502.) But the evidence showed that both Irene E. and Benjamin M. Anderson were in possession of the premises, and therefore the title was not in dispute, if, as decided by a majority of the court, the parties were jointly interested.

The other matters discussed are disposed of upon the authority of C. K. & W. Rld. Co. v. Grovier, 41 Kas. 685.

The judgment of the district court will be affirmed.