DuNN, J.
(after stating the facts as above). Under the complicated relationship which has grown up between all the parties interested-in this litigation, and in view of the conflicting and irreconcilable evidence given upon some of the material points involved, no decision which could be rendered by any court could be entirely satisfactory to it. It is one of the inherent limitations upon even the extended, far-reaching powers of a court that with
all the aid skillful counsel can yield it, and after it has exercised its utmost ingenuity to ascertain the truth in a case of this character, there may still inherently lurk the suspicion that, notwithstanding the rules of evidence and law are all observed and vin-cated, it is yet possible for the judgment to be incorrect. The time-honored haven into which appellate courts drift on disputed facts is in recognition of the rule so frequently enunciated, “that the trial court, having heard the testimony, seen the witnesses, and had the opportunity of determining, from their appearance and deportment and manner of giving their testimony upon the witness stand, who should be believed, and who should not be believed, and the evidence reasonably tending to support the conclusion of the court, its finding will not be disturbed here.”
(Jenks v. McGowan,
9 Okla. 306, 60 Pac. 239.) And in fact we are not able to say, after reading the record, that the trial court did not decide correctly; for unquestionably it had advantages superior to ours for learning the real truth, as it had before it the living witnesses, whom it could view face to face, while the record before us presents the evidence of the frank, honest witness with no greater clearness than it does that of the halting, shifty one, whose manner of delivering his statements clearly manifests the evasion or the falsehood practiced. The judgment of the court rendered was general in favor of defendant and against the plaintiff, and, like the verdict of a jury, will draw to it for its support, not only all of the things which are directly testified to and established by the evidence, but also all the logical deductions and inferences which may be properly drawn therefrom.
Our duty is to apply the law accordingly, and the initial proposition presenting itself in the case is, what, in fact, was CJordra/s legal or equitable interest in the land? Did he in fact have any' at the time the deed was made by his wife to Morgan ? If he had no interest, then it will not be necessary for us to notice many of the questions which are raised and argued in the briefs of the parties. In the oral argument of counsel before the court the changed situation, brought about by the action of the Supreme Court in
the divorce suit above mentioned, was presented and issue joined, and it became necessary to consider it in determining this question.
On February 23, 1903, Mrs. Cordray was granted what she and all parties doubtless believed was a valid divorce. Acting upon this, she was married the following September to 'a man by the name of Hand. Cordray returned to Oklahoma in the first part of the year 1905, and in April began proceedings to have the judgment of divorce set aside. The district court denied his application, and the matter was pending in the Supreme Court at the time of the trial of this case in°the district court in March, 1906. The Supreme Court, after the trial of the case at bar, reversed the district court in the divorce case, set aside, annulled, and held void the judgment recovered by Mrs. Cordray in her divorce suit, which necessarily dissolved the relationship which had arisen between herself and Hand, and she was once more Mrs. Cordray as effectually as if no divorce suit had been filed.
Cordray v. Cordray,
19 Okla. 36, 91 Pac. 181.
Wilson’s Revised and Annotated Statutes of Oklahoma for 1903, § 2985, is as follows:
“The following property shall be reserved to the head of every family residing in the territory exempt from attachment or execuT tion and every other species of forced sale for the pa3unent of debts, except as hereinafter provided: The homestead of a family not in a town or city shall consist of not more than one hundred and sixty acres of land, which shall be in one tract or parcel with the improvements thereon. The homestead in a city, town or village, consisting of a lot or lots, not to exceed one acre with the improvements thereon; Provided^ that the same shall be used for the purpose of a home for the family.”
Section 3140 of Wilson’s Revised and Annotated 'Statutes of Oklahoma for 1903 provides:
“The husband is the head of the family. He may choose an3r reasonable place or mode of living and the wife must conform thereto.”
Under these statutes the placing of the title and ownership to a tract of land on which the family lived and which was used by
them as their home in the wife at once deprived it of its homestead character, and rendered it subject, as all other property, to liens, forced sale, and the right of the wife to convey the same without the assent of her spouse.
McGinnis v. Wood,
4 Okla. 499 47 Pac. 492. It was not a homestead in legal contemplation, notwithstanding the fact that it was occupied and used by the family as a home, for the reason that title to a homestead could be in the head of the famiN only, and the husband was the head of such family. This continued to be the law of the territory until March 15, 1905, when the Legislature amended the section, and provided that:
“The following property shall be reserved to every family residing in the territory, etc. First: the homestead of the family, which shall consist of the home of the family, whether the title to the same shall be lodged in or owned by the husband or wife.” (Sess. Laws 1905, p. 255, c. 18.)
This, as will be seen, amended the law so that the wife, wrho was not the head of the family, might hold the title to the land on which the family resided, and it would still be a homestead. The deed to Morgan was made March 28, 1905, 13 days subsequent to the time when this law came into effect.
Section 880 of Wilson’s Eevised and Annotated Statutes of Oklahoma for 1903 provides:
“No deed, mortgage or contract relating to the homestead * * * shall be valid unless in writing and subscribed by both husband and wife, where both are living and not divorced except to the extent hereinafter provided.”
Section 882 provides:
“Where the title to the homestead is in the wife and the husband voluntarily abandons her, or from any cause takes up his residence out of the territory for a period of one year, she may convey, mortgage or make any contract relating thereto without being joined therein by him.”
As we have seen, prior to the passage of the act of March 15, 1905, the title to the homestead could not be in the wife. If the title to the home place was in the wife, it was not a homestead.
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DuNN, J.
(after stating the facts as above). Under the complicated relationship which has grown up between all the parties interested-in this litigation, and in view of the conflicting and irreconcilable evidence given upon some of the material points involved, no decision which could be rendered by any court could be entirely satisfactory to it. It is one of the inherent limitations upon even the extended, far-reaching powers of a court that with
all the aid skillful counsel can yield it, and after it has exercised its utmost ingenuity to ascertain the truth in a case of this character, there may still inherently lurk the suspicion that, notwithstanding the rules of evidence and law are all observed and vin-cated, it is yet possible for the judgment to be incorrect. The time-honored haven into which appellate courts drift on disputed facts is in recognition of the rule so frequently enunciated, “that the trial court, having heard the testimony, seen the witnesses, and had the opportunity of determining, from their appearance and deportment and manner of giving their testimony upon the witness stand, who should be believed, and who should not be believed, and the evidence reasonably tending to support the conclusion of the court, its finding will not be disturbed here.”
(Jenks v. McGowan,
9 Okla. 306, 60 Pac. 239.) And in fact we are not able to say, after reading the record, that the trial court did not decide correctly; for unquestionably it had advantages superior to ours for learning the real truth, as it had before it the living witnesses, whom it could view face to face, while the record before us presents the evidence of the frank, honest witness with no greater clearness than it does that of the halting, shifty one, whose manner of delivering his statements clearly manifests the evasion or the falsehood practiced. The judgment of the court rendered was general in favor of defendant and against the plaintiff, and, like the verdict of a jury, will draw to it for its support, not only all of the things which are directly testified to and established by the evidence, but also all the logical deductions and inferences which may be properly drawn therefrom.
Our duty is to apply the law accordingly, and the initial proposition presenting itself in the case is, what, in fact, was CJordra/s legal or equitable interest in the land? Did he in fact have any' at the time the deed was made by his wife to Morgan ? If he had no interest, then it will not be necessary for us to notice many of the questions which are raised and argued in the briefs of the parties. In the oral argument of counsel before the court the changed situation, brought about by the action of the Supreme Court in
the divorce suit above mentioned, was presented and issue joined, and it became necessary to consider it in determining this question.
On February 23, 1903, Mrs. Cordray was granted what she and all parties doubtless believed was a valid divorce. Acting upon this, she was married the following September to 'a man by the name of Hand. Cordray returned to Oklahoma in the first part of the year 1905, and in April began proceedings to have the judgment of divorce set aside. The district court denied his application, and the matter was pending in the Supreme Court at the time of the trial of this case in°the district court in March, 1906. The Supreme Court, after the trial of the case at bar, reversed the district court in the divorce case, set aside, annulled, and held void the judgment recovered by Mrs. Cordray in her divorce suit, which necessarily dissolved the relationship which had arisen between herself and Hand, and she was once more Mrs. Cordray as effectually as if no divorce suit had been filed.
Cordray v. Cordray,
19 Okla. 36, 91 Pac. 181.
Wilson’s Revised and Annotated Statutes of Oklahoma for 1903, § 2985, is as follows:
“The following property shall be reserved to the head of every family residing in the territory exempt from attachment or execuT tion and every other species of forced sale for the pa3unent of debts, except as hereinafter provided: The homestead of a family not in a town or city shall consist of not more than one hundred and sixty acres of land, which shall be in one tract or parcel with the improvements thereon. The homestead in a city, town or village, consisting of a lot or lots, not to exceed one acre with the improvements thereon; Provided^ that the same shall be used for the purpose of a home for the family.”
Section 3140 of Wilson’s Revised and Annotated 'Statutes of Oklahoma for 1903 provides:
“The husband is the head of the family. He may choose an3r reasonable place or mode of living and the wife must conform thereto.”
Under these statutes the placing of the title and ownership to a tract of land on which the family lived and which was used by
them as their home in the wife at once deprived it of its homestead character, and rendered it subject, as all other property, to liens, forced sale, and the right of the wife to convey the same without the assent of her spouse.
McGinnis v. Wood,
4 Okla. 499 47 Pac. 492. It was not a homestead in legal contemplation, notwithstanding the fact that it was occupied and used by the family as a home, for the reason that title to a homestead could be in the head of the famiN only, and the husband was the head of such family. This continued to be the law of the territory until March 15, 1905, when the Legislature amended the section, and provided that:
“The following property shall be reserved to every family residing in the territory, etc. First: the homestead of the family, which shall consist of the home of the family, whether the title to the same shall be lodged in or owned by the husband or wife.” (Sess. Laws 1905, p. 255, c. 18.)
This, as will be seen, amended the law so that the wife, wrho was not the head of the family, might hold the title to the land on which the family resided, and it would still be a homestead. The deed to Morgan was made March 28, 1905, 13 days subsequent to the time when this law came into effect.
Section 880 of Wilson’s Eevised and Annotated Statutes of Oklahoma for 1903 provides:
“No deed, mortgage or contract relating to the homestead * * * shall be valid unless in writing and subscribed by both husband and wife, where both are living and not divorced except to the extent hereinafter provided.”
Section 882 provides:
“Where the title to the homestead is in the wife and the husband voluntarily abandons her, or from any cause takes up his residence out of the territory for a period of one year, she may convey, mortgage or make any contract relating thereto without being joined therein by him.”
As we have seen, prior to the passage of the act of March 15, 1905, the title to the homestead could not be in the wife. If the title to the home place was in the wife, it was not a homestead.
Now the question arises, construing the act of 1905 with the provisions of sections 880 and 883, and weighing in the terms of these statutes the undisputed facts shown in the record relating to the actions of Cordray, was it necessary at the time of tire transfer from Mrs. Cordray to Morgan to- have had the signature of the husband to this deed in order that a valid conveyance could be made? It is shown by undisputed testimony that in July, 1903, Cordray left the land and the territory for the purpose of avoiding trouble, stating, as his wife testifies, and it is not contradicted, that he never intended to return to it. His wife, relying on this statement,( on his part, shortly sold the household goods and personal property on the farm, applied the proceeds to plaintiff's debts, placed her children with a relative, left the farm in the possession of tenants, and went to work at hotels and elsewhere to earn support for herself and her children. Cordray testified that he sent money to the party who had the children, to support them. His wife testified that she supported them, but nobody testifies that Cordray sent any money whatever to his wife, or that he aided her in any capacity. She told him, according to his letter, in the fore part of February, 1903, that she was suing him for divorce. He made no objections to this and no appearance, did not remonstrate with her, or endeavor to get her to go with him, or do anything to-again create the relationship of a family between them, and, taking this testimony in conjunction with all the other evidence in the case, we come to the conclusion that his absence from his wife was an abandonment of her, and that under the provisions of section 883 she had a right to convey tbe land without his joinder in the deed.
The quitclaim deed made by Cordray to his wife-was in substantial compliance with the provisions of the Oklahoma statute relating to the conveyance of real estate, and conveyed all the right, title, and interest that Cordray had in and to the land, and thereby completely divested it of its homestead character, and as it was never used as a homestead of the family after the passage of the act of March 15, 1905, and prior to the execution of the deed
to Morgan, Cordrav had no interest in the land which rendered it necessary for him to join with his wife in a deed for the conveyance of the same. It must follow from this, then, that the transaction between his wife and Morgan was of no consequence to him nor was his possession of the land or the character of the deed by which his wife held it or the consideration received by her on its sale of any legal or equitable concern such as would give him a standing in court to require the annulment of Morgan’s title. This being true, it will not be necessary to consider these propositions, although raised and argued in the briefs of the parties. Nor does the question of rescission enter into the matter, for, if Cord-ray was without interest, he has no standing to assail the contract or the arrangement made between his wife and her transferee. Eor the reasons assigned, we conclude, therefore, that the deed to defendant was valid and sufficient to convey the land without plaintiff joining therein.
The remaining question in the case is in reference to the judgment which was rendered by the trial court in giving defendant complete relief entitling him to the possession of the property. Plaintiff invoked the jurisdiction of a court of equity, and having done so, and if, having all parties before it, the court was authorized to grant and give complete relief, he is not in a position to complain of such action.
Finding no error in the judgment of the district court, the same is accordingly affirmed.
All the Justices concur.