Page:Federal Reporter, 1st Series, Volume 2.djvu/50

 BBALS r. NEDDO. 43 �the common-law rule, which would only invalidate the instru- ment so far as the party signing under duress was concerned, and it resulta that the husband is equally benefited with the mfe under this defence, if it prevails, although he is the only party in fault. �If the constitution and statute are susceptible of construc- tion permitting such defence, and the supreme court of this state appear to so hold in Anderson v. Anderson, 9 Kas. 112, and Helm v. Helm, 11 Kas. 19, it is probably predicated upon the ground that the husband is the agent of the grantee in procuring the signature of the wife to the conveyance, and is bound by his acts. Bank v. Copeland, 18 Md. 305. In any event, it is a defence which defendants, for the purpose of saving their homestead, have a great inducement to make, and once made a grantee, however innocent and however honajide he bas acted, is very much at a disadvantage. �The wife has, and in justice ought to have, the right to protect her home against an improvident husband; but she should assert her right, so far as possible, in a manner not to deceive and defraud parties purchasing or loaning money on the homestead in good faith. Of what occurs in the privacy. of the family circle he can know but little or nothing. The wife signs the paper in the presence of the notary, and ac- knowledges the execution to be her voluntary act, and makes no sign of dissatisfaction. The grantee pays the purchase money, or makes the loan, entirely unconscious of any defect in the conveyance, and after the lapse of years the wife asserts her rights to annul the contract. It is a defence which, under many circumstances, does not present equitiea superior to those of the grantee. It opens wide the door for collusion between husband and wife to defraud the unsus- pecting purchasers ; and courts of equity in any case, before declaring such a conveyance void, ought to require the wife to make a clear and plain showing of fraud or duress, and that she is not guilty of collusion, laches, or fault on her part. �Whether the evidence for the defendants in this case makes such a showing I need not discuss, for it is settled by the ����