The opinion of the court was delivered by
Cunningham, J.:
The first question with which we are confronted relates to .the nature of the transaction evidenced by the deed of Hiram Higgins to his children, dated June 15, 1887, but executed and delivered June 11, 1888, and the accompanying agreement given back by the children to him. It is insisted by Mrs. Higgins that, taken together, these papers are but executory and in the nature of a will, and, being testamentary in their character, were subject to be revoked by Hiram Higgins at any time prior to his death, and that the conveyance of the lands [122]*122mentioned therein to Mrs. Higgins operated to revoke and annul the provisions of the deed. In support of this claim, we are cited to the following decisions of this court: Reed, Ex’r, v. Hazleton, 37 Kan. 321, 325, 15 Pac. 180 ; Hazleton v. Reed, 46 id. 73, 26 Pac. 450 ; Lacy v. Comstock, 55 id. 86, 39 Pac. 1024; Powers v, Scharling, 64 id. 339, 67 Pac. 820.
It is claimed that the case of Lacy v. Comstock, supra, is decisive of the case at bar. It is true that a suggestion was therein made that the conveyance there considered was testamentary in character, and this although words were used in it probably sufficient to carry with them full covenants of warranty accompanied with a reservation of a life-estate, yet we think the case fairly distinguishable from this. However this may be, the case was not decided upon that question, and hence is not authority here,
In the case of Reed v. Hazleton, supra, at page 325, this language was used :
“If an instrument of writing passes a present interest in real estate, although the right to its possession and enjoyment may not accrue until some future time, it is a deed or contract; but if the instrument does not pass an interest or right until the death of the maker, it is a will or testamentary paper.”
This principle is the governing one ih all of the other cited cases and determinative of this question in the case at bar. In the case of Love v. Blauw, 61 Kan. 496, 59 Pac. 1059, 48 L. R. A. 257, 78 Am. St. Rep. 334, the limitation upon the title contained in the deed was as follows : ‘ ‘ The estate in said lands and tenements not to vest in said named grantees and .their heirs until the death of said Catherine Blauw, she reserving in herself a life-estate therein.” This, however, was held not to operate so as to make the conveyance a [123]*123testamentary one. The rule laid down in Powers v. Scharling, supra, at page 343, for the solution of this question is as follows :
“ In determining whether an instrument be a' deed or a will, the question is, Did the maker intend to convey any estate or interest whatever to vest before his death and upon the execution of the paper? Or. on the other hand, did he intend that all the interest and estate should take effect only after his .death ? If the former, it is a deed ; if the latter, a will.”
Now, in the case at bar, after the execution of the deed by Hiram Higgins, which conveyed on its face an absolute fee-simple title, he took back the agreement which contained the provision that the grantees were not to sell or dispose of any part of the real estate in any manner during the lifetime of Hiram Higgins without his written consent, and that it should always be his so long as he lived, with the right to convey the same as though a deed had never been given, and at another place in the same agreement the deed is referred to as conveying title to the grantees, and the agreement is that the grantees would execute deeds reconveying the title upon the request of their father. All this leads us to the conclusion that by the entire transaction the grantor intended to convey to the grantees a present interest. We shall soon pass to a discussion of the potency of the repugnant clauses in the agreement. Suffice it to say that, reading this agreement into the deed, the result amounts to nothing more than a conveyance in fee simple to the grantees, with a limitation that the title thus conveyed in prsesenti goes encumbered with a life-estate in the grantor, Hiram Higgins. (Wilson v. Carrico, 140 Ind. 533, 40 N. E. 50, 49 Am. St. Rep. 213, and note; 2 Devl. Deeds, 2d ed., § 855a, et seq.)
[124]*124Thus far we have discussed the question as though the conditions of the agreement had full force and effect, and might be availed of to contradict and render inoperative any of the provisions found in the' deed with which they might conflict. We do not, however, think this assumption is warranted, but hold rather that if any of the conditions of the agreement would operate, if given force, to nullify the grant of the deéd, they must be disregarded. At the very best, the agreement must be read into the habendum rather than into the premises of the conveyance — must come after the grant rather than go before it. It is a well-established rule in the case of deeds that the first of the repugnant clauses must prevail. If there be a repugnancy between the premises and the habendum, the former must prevail. Thus the habendum may lessen, enlarge, explain, or qualify, but not totally contradict, or be repugnant to, the estate granted in the premises. (9 A. & E. Encycl. of L., 2d ed., 140.) This is hornbook law, and many cases might be cited in its support; but see Ruggles v. Clare, 45 Kan. 662, 26 Pac. 25 ; Bassett v. Budlong, 77 Mich. 338, 43 N. W. 984, 18 Am. St. Rep. 404 ; Robinson v. Payne, 58 Miss. 690 ; Berridge and wife v. Glassey, 112 Pa. St. 442, 3 Atl. 583, 56 Am. Rep. 322, and note; Owston v. Williams et al., 16 U. C. Q. B. 405; Langlois v. Lesperance, 22 Ont. 682; 1 Tiff. Mod. Law of Real Prop. 171, § 70 ; Gray, Restr. on Alien. of Prop. §§ 19, 22; Cool. Bla. Com., 2d bk., ch. 20.
So that, if we conclude that by this clause in the agreement, “with right to sell and convey the whole or any part thereof the same as though the deed had never been given,” it was intended by the parties to give to Hiram Higgins, notwithstanding his absolute deed of conveyance, the right to control and .convey [125]*125the same as though no such deed had ever been given, yet, in the light of this principle and these authorities, we would be bound to disregard that clause and hold that it did not serve to defeat the conveyance of the fee.
Further, in the construction of conveyances, as well as of other contracts, where there is an ambiguity,we may take into consideration the surroundings and pui’poses of the parties. It is 'shown in finding No. 4 that the object in executing the deed was to put the title out of Hiram Higgins in order to defraud a creditor. This being the purpose, and the language being sufficient to effectuate it, we hold that, construing the deed and agreement together, the result was to transfer the fee-simple title in all of the property, with an exception which we will hereafter note, to the grantees named therein, retaining, however, in Hiram Higgins a life-estate.
At the time of the execution of this conveyance the northeast quarter was the homestead of Hiram Higgins, and occupied by himself and wife, and as such could not be alienated without the joint consent of the husband and wife. The deed itself, as will be noted, was signed only by Hiram Higgins. Finding No.
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The opinion of the court was delivered by
Cunningham, J.:
The first question with which we are confronted relates to .the nature of the transaction evidenced by the deed of Hiram Higgins to his children, dated June 15, 1887, but executed and delivered June 11, 1888, and the accompanying agreement given back by the children to him. It is insisted by Mrs. Higgins that, taken together, these papers are but executory and in the nature of a will, and, being testamentary in their character, were subject to be revoked by Hiram Higgins at any time prior to his death, and that the conveyance of the lands [122]*122mentioned therein to Mrs. Higgins operated to revoke and annul the provisions of the deed. In support of this claim, we are cited to the following decisions of this court: Reed, Ex’r, v. Hazleton, 37 Kan. 321, 325, 15 Pac. 180 ; Hazleton v. Reed, 46 id. 73, 26 Pac. 450 ; Lacy v. Comstock, 55 id. 86, 39 Pac. 1024; Powers v, Scharling, 64 id. 339, 67 Pac. 820.
It is claimed that the case of Lacy v. Comstock, supra, is decisive of the case at bar. It is true that a suggestion was therein made that the conveyance there considered was testamentary in character, and this although words were used in it probably sufficient to carry with them full covenants of warranty accompanied with a reservation of a life-estate, yet we think the case fairly distinguishable from this. However this may be, the case was not decided upon that question, and hence is not authority here,
In the case of Reed v. Hazleton, supra, at page 325, this language was used :
“If an instrument of writing passes a present interest in real estate, although the right to its possession and enjoyment may not accrue until some future time, it is a deed or contract; but if the instrument does not pass an interest or right until the death of the maker, it is a will or testamentary paper.”
This principle is the governing one ih all of the other cited cases and determinative of this question in the case at bar. In the case of Love v. Blauw, 61 Kan. 496, 59 Pac. 1059, 48 L. R. A. 257, 78 Am. St. Rep. 334, the limitation upon the title contained in the deed was as follows : ‘ ‘ The estate in said lands and tenements not to vest in said named grantees and .their heirs until the death of said Catherine Blauw, she reserving in herself a life-estate therein.” This, however, was held not to operate so as to make the conveyance a [123]*123testamentary one. The rule laid down in Powers v. Scharling, supra, at page 343, for the solution of this question is as follows :
“ In determining whether an instrument be a' deed or a will, the question is, Did the maker intend to convey any estate or interest whatever to vest before his death and upon the execution of the paper? Or. on the other hand, did he intend that all the interest and estate should take effect only after his .death ? If the former, it is a deed ; if the latter, a will.”
Now, in the case at bar, after the execution of the deed by Hiram Higgins, which conveyed on its face an absolute fee-simple title, he took back the agreement which contained the provision that the grantees were not to sell or dispose of any part of the real estate in any manner during the lifetime of Hiram Higgins without his written consent, and that it should always be his so long as he lived, with the right to convey the same as though a deed had never been given, and at another place in the same agreement the deed is referred to as conveying title to the grantees, and the agreement is that the grantees would execute deeds reconveying the title upon the request of their father. All this leads us to the conclusion that by the entire transaction the grantor intended to convey to the grantees a present interest. We shall soon pass to a discussion of the potency of the repugnant clauses in the agreement. Suffice it to say that, reading this agreement into the deed, the result amounts to nothing more than a conveyance in fee simple to the grantees, with a limitation that the title thus conveyed in prsesenti goes encumbered with a life-estate in the grantor, Hiram Higgins. (Wilson v. Carrico, 140 Ind. 533, 40 N. E. 50, 49 Am. St. Rep. 213, and note; 2 Devl. Deeds, 2d ed., § 855a, et seq.)
[124]*124Thus far we have discussed the question as though the conditions of the agreement had full force and effect, and might be availed of to contradict and render inoperative any of the provisions found in the' deed with which they might conflict. We do not, however, think this assumption is warranted, but hold rather that if any of the conditions of the agreement would operate, if given force, to nullify the grant of the deéd, they must be disregarded. At the very best, the agreement must be read into the habendum rather than into the premises of the conveyance — must come after the grant rather than go before it. It is a well-established rule in the case of deeds that the first of the repugnant clauses must prevail. If there be a repugnancy between the premises and the habendum, the former must prevail. Thus the habendum may lessen, enlarge, explain, or qualify, but not totally contradict, or be repugnant to, the estate granted in the premises. (9 A. & E. Encycl. of L., 2d ed., 140.) This is hornbook law, and many cases might be cited in its support; but see Ruggles v. Clare, 45 Kan. 662, 26 Pac. 25 ; Bassett v. Budlong, 77 Mich. 338, 43 N. W. 984, 18 Am. St. Rep. 404 ; Robinson v. Payne, 58 Miss. 690 ; Berridge and wife v. Glassey, 112 Pa. St. 442, 3 Atl. 583, 56 Am. Rep. 322, and note; Owston v. Williams et al., 16 U. C. Q. B. 405; Langlois v. Lesperance, 22 Ont. 682; 1 Tiff. Mod. Law of Real Prop. 171, § 70 ; Gray, Restr. on Alien. of Prop. §§ 19, 22; Cool. Bla. Com., 2d bk., ch. 20.
So that, if we conclude that by this clause in the agreement, “with right to sell and convey the whole or any part thereof the same as though the deed had never been given,” it was intended by the parties to give to Hiram Higgins, notwithstanding his absolute deed of conveyance, the right to control and .convey [125]*125the same as though no such deed had ever been given, yet, in the light of this principle and these authorities, we would be bound to disregard that clause and hold that it did not serve to defeat the conveyance of the fee.
Further, in the construction of conveyances, as well as of other contracts, where there is an ambiguity,we may take into consideration the surroundings and pui’poses of the parties. It is 'shown in finding No. 4 that the object in executing the deed was to put the title out of Hiram Higgins in order to defraud a creditor. This being the purpose, and the language being sufficient to effectuate it, we hold that, construing the deed and agreement together, the result was to transfer the fee-simple title in all of the property, with an exception which we will hereafter note, to the grantees named therein, retaining, however, in Hiram Higgins a life-estate.
At the time of the execution of this conveyance the northeast quarter was the homestead of Hiram Higgins, and occupied by himself and wife, and as such could not be alienated without the joint consent of the husband and wife. The deed itself, as will be noted, was signed only by Hiram Higgins. Finding No. 19 shows that the wife, prior to the execution of the deed, expressed herself as willing to join in its execution, but did not because it was stated that it was not necessary that she should do so, and after its execution and delivery she expressed herself as being satisfied with it. Does this finding show a joint consent, as required by the constitution? This court has held, in Pilcher v. A. T. & S. F. Rld. Co., 38 Kan. 516, 16 Pac. 945, 5 Am. St. Rep. 770; Dudley v. Shaw, 44 id. 683, 24 Pac. 1114, and Matney v. Linn, 59 id. 613, 54 Pac. 668, that the joint consent required need not neces[126]*126sarily be expressed in writing, to satisfy the constitutional requirement. But while this is so, the consent must be a joint one. The husband and wife must at the time the conveyance takes effect both consent thereto. They must both give consent at the same time. The nineteenth finding of fact does not show the existence of this joint consent. It merely shows that prior to the execution of _ the deed the wife expressed herself as willing to join in the execution of the deed, and that • after execution and delivery she expressed herself as being satisfied with it. This lacks much of finding that at the time of the delivery, that being the only time the husband is shown to have consented, the wife was so consenting. This being so, as to the homestead the deed was ineffectual to convey.
It is contended by the plaintiff in error Kelley S. E. Higgins that the judgment rendered by the circuit court of Shawnee county, decreeing that he have no interest in the premises in controversy, as stated in finding No. 8, was void for the reason that the same was rendered at a special term of that court; that as the statute creating that court did not give it authority to convene a special term, it was therefore without authority to sit, and had no authority, so sitting, to render the judgment. The act creating the circuit court of Shawnee county is chapter 83 of the Laws of 1891. It does not expressly give that court authority to call a special term thereof, but in section 3 it does provide that for the purpose of the jurisdiction conferred upon it all of the laws of this state relating to the powers and jurisdiction of district courts shall apply to said circuit court, and, as the district court is authorized under the statute to call a special term, we think the language of the act broad enough to confer the same power upon the circuit court. Therefore [127]*127the judgment against Kelley S. E. Higgins, remaining unreversed, is res judicata as to him, and bars him from any interest he might have had.
The court found in finding No. 4 that the conveyance was executed by Hiram Higgins for the purpose of defrauding a creditor. This being so, the court may not afford him, or any one standing in his shoes, relief therefrom, and, as it is found further, in finding No. 15, that the deed under which the plaintiff claims was executed without other consideration than love and affection, and that at the time she had full knowledge of all the rights of the plaintiffs in error, she takes only such rights as her husband, Hiram Higgins, had, and hence she may not have her title quieted to any of the x’eal estate except as to the homestead, for as to this, it not being liable for his debts, he might lawfully convey it, no matter how fraudulent his purpose.
The power of attorney mentioned in finding No. 3 and the quitclaim deed mentioned in No. 17 serve no purpose in the case.
It follows from what has been said that by the deed of June 11, 1888, Hiram Higgins conveyed to the grantees therein a fee-simple title in and to all of the real estate mentioned, except the northeast quarter of section 11, subject to a life-estate in said Hiram Higgins; that by his deed of January 14, 1899, the defendant in error, Anna M. Higgins, took full title to ■the northeast quarter of section 11, and the life-estate held by her husband in the other property therein described ; that Kelley S. E. Higgins has no title whatever to any of the real estate in controversy. The shares to which the other plaintiffs in error may be ■ uitled, under the facts of the case, have not been [128]*128considered in this opinion, but are easily determinable.
.Defendant in error challenged by a cross-petition in error the action of the court in taxing the costs of the case to her. This cross-petition, however, was not filed in this court until more than one year after the rendition of the judgment complained of, and hence we have no jurisdiction to entertain the same.
Because of the error of the district court in holding that the plaintiffs in error took no title whatever by the deed of June 11, 1888, this case will be reversed, and remanded for further proceedings in accordance with this opinion.
All the Justices concurring.