Page:Federal Reporter, 1st Series, Volume 10.djvu/613

 HANNON V. SOMMER. 601 �overrnled in all other respects. The plaintiff can dismiss as to Low- ery ; and, on doing so, the remaining defendants will have leave to answer within 15 days. �The doctrine as to multifariousness in this class of cases is well considered in Hayes v. Dayton, 18 Blatchf. 420. ���Hannon, Exeeutor, v. Sommeb. {Cireuit Court, D. Kansa». June, 1881.) �1. UOMBSTEAD— StATOTORT CONSTRUCTION. �The constitution and statutes of Kansas provide that a homestead to the estent of 160 acres of farming land, occupied as a residence by the faraily of the owner, together with all iraprovemcnts on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife when that relation exists. HM, that the latter clause necessarily implies that the homestead may be alienated by Us owner if the relation of husband and wife does not exist. �2. Power of Husband to Mortqagb Homestkad after Dbath of Wife. �The husband, after death of the wife, under the laws of Kansas, may alienate his interest in the homestead by deed absolute, or may mortgage the same sub- ject to the right of occupancy of the premises as a homestead by the minor children, whose rights under the homestead law are not aflected by the mort- gage. �3. Mortgage — Valid Lien. �Such a mortgage is not void from want of power in the husbano to execute it, but is a valid lien on his undivided half, subject to the right of occupancy and use of the whole by the heirs. �4. Forbclosuue — Decrbb. �In a suit for f oreclo.sure of a mortgage of the homestead property made by a husband after the death of his wife, hdd, that plaintiff ia entitled to a decree of foreclosure upon the interest of the respondent, subject to the homestead righta of the heirs, though the husband remains unmaiTied. �In Equity. Bill to foreclose mortgage. �The property mortgaged, 160 acres of farming land, was occupied as a homestead by the surviving husband and his minor children, his wife having died about a year before the date of the mortgage. The minor children were not made parties to the suit. The case was heard at the June term of 1879, and a reargument was directed on the questions : Is the mortgage void because the husband had no power to execute it ? and, if so, is the plaintiff entitled to a decree of foreclosure while the husband remains unmarried and the children are minors ? �On Eeargument. ��� �