Calkins, C.
Anna E. Hobson died on the 17th day of August, 1888, intestate, leaving her surviving husband, John H. Hob-son, and her children, John T., aged 1 year, Roy Y., aged 7 years, Ida Belle, aged 14 years, and George W., aged 18 years. At the time of her death she was seized of a quarter section of land upon which she had resided with her husband and family for several years preceding her death. The land did not exceed in value, over and above incumbrances, the sum of $2,000, so that the same constituted the family homestead, if the mere fact of occupying it as a family residence was a sufficient selection under the homestead law. On the 27th day of October, 1888, one Palmer was appointed administrator of the estate of said deceased, and he in May filed his petition under the statute for license to sell said lands to pay, debts. Such license was granted by the district court, and such proceedings were had thereunder that the premises were on [336]*336the 24th clay of October, 1890, sold by the said administrator to the defendant Charles A. Huxtable, and, the said sale having been confirmed, the administrator conveyed the premises to said purchaser, who went into possession under said deed, and who has, with his wife, the defendant Ada E., remained in actual possession ever since. It appears that no record of the oath required to be taken by the administrator can be found in the district court, but that the proceedings were otherwise regular. On the 15th day of June, 1904, the plaintiffs Roy Y. Hobson and John T. Hobson commenced this action, setting forth the foregoing facts and praying for a decree declaring the administrator’s deed void. John H. Hobson, the surviving husband of Anna E., died pending this action, on the 18th day of June, 1905. On the 18th day of July, 1905, the defendants Ida Belle Hobson, now Busby, and George W. Hobson filed an answer in this action, admitting the allegations of the plaintiff’s petition, alleging the death of John H. Hobson, asserting title in themselves, and asking that their rights in the property be investigated, and that the defendants Huxtable be ejected from the premises. There was a plea of the statute of limitations against these defendants by the defendants Huxtable. The district court rendered a decree quieting the title in the four Hobsons, subject to the amount of a mortgage which had been paid off by or with the money received from the purchaser at the administrator’s sale. Prom this decree the defendants Huxtable appeal.
1. The appellants contend that the fact of the use of the property as a family home for herself, husband* and children for some years before, and up to the time of her death, was insufficient to show that the homestead was selected with the consent of the wife, and, as to the defendants Ida Belle and George W., that more than ten years have elapsed since they became of age, and that they are accordingly barred by the statute of limitations. It is admitted by the appellants that, where the husband is. the owner of the fee, the mere fact of residence is suffi[337]*337dent selection; but they insist that, where the wife is the owner, there must be some further evidence of her consent. The statute provides that “if the claimant be married, the homestead may, be selected from the separate from her separate property.” The counsel for appellants property of the husband, or icith the consent of the wife, lays stress upon the words in italics, and argues that to give them effect there must be some further evidence of the consent of the owner of the fee where the property is in the name of the wife than where it is OAvned by the husband. The cases cited from California and Idaho do not assist us,' for in each of these states the statute requires the selection of a homestead to be made by an instrument in Avriting executed and recorded in the same manner as a conveyance. Our own court has in several cases assumed that the fact of residence was sufficient evidence of selection in a case Avhere the property belonged to the wife. Larson v. Butts, 22 Neb. 370; France v. Bell, 52 Neb. 57; First Nat. Bank v. Reese, 64 Neb. 292, and, Brichacek v. Brichacek, 75 Neb. 417, Avere all cases where the property was in the name of the Avife, and the homestead character was sustained Avithout proof of any formal consent of the wife. It is, however, but fair to say that in none of these cases was the fact that the statute requires the selection to be made in such cases with the consent of the Avife discussed. Klamp v. Klamp, 58 Neb. 748, is the only case brought to our attention in AAdiich the effect of these Avords has been considered, and it was there held that a husband could not acquire the homestead in the separate property of the wife except with her consent. The question in issue was whether or not the husband had a right to compel the wife to account to him for the proceeds of the homestead which was the separate property of the wife and the court held that he had not that right. We do not think that this case established the doctrine contended for by the appellants that the Avife must declare her formal consent to the selection of a homestead from her [338]*338property. We think her consent will be presumed from the actual use of the property as a homestead, which presumption can only be overcome by proof that she did not in fact consent. The property being the homestead of the deceased descended to the husband during his life, and, upon his death, in fee to the children. This being the case, the license to the administrator was void, even though the proceedings were regular. Tindall v. Peterson, 71 Neb. 166; Brandon v. Jensen, 74 Neb. 569.
2. Section 57, ch. 73, Comp. St. 1905, provides “that an action may be brought and prosecuted to final decree, judgment, or order, by any person or persons, whether in actual possession or not, claiming title to real estate, against any. person or persons, who claim an adverse estate or interest therein, for the purpose of determining such estate or interest, and quieting the title to said real estate”; while section 59 contains the further provision that “any person or persons having an interest in remainder or reversion in real estate shall be entitled to all the lights and benefits of this act.” It is clear that under this statute a remainderman may maintain an action to quiet title during the life of the life tenant; and it follows that the disability of the defendants Ida Belle and George W. ceased, and their right to bring an action to quiet this title accrued, more than 10 years prior to the filing of their answer in this case. It is contended by the attorney for the defendants Ida Belle and George W. that the claim set up in their answer is to be considered an action in the nature of ejectment, and that such an action could not accrue to them during the life of John H. Hobson, the life tenant. This again is met by the defendants Huxtable with the contention that, since the Huxtables did not claim under John H. Hobson, and could not claim to be the owners of his interest for life, an action by the heirs to obtain possession could have been as well maintained before as after his death.
We are, however, unable to regard this suit as an action in the nature of ejectment. The plaintiffs’ suit was to [339]*339quiet title, and, if we admit this claim of the. defendants Ida Belle and George W., we are committed to the anomalous proposition that two tenants in common can join in an action which shall be on the part of one an action to quiet title, and on the part of the other an action in ejectment. The two actions are incompatible.
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Calkins, C.
Anna E. Hobson died on the 17th day of August, 1888, intestate, leaving her surviving husband, John H. Hob-son, and her children, John T., aged 1 year, Roy Y., aged 7 years, Ida Belle, aged 14 years, and George W., aged 18 years. At the time of her death she was seized of a quarter section of land upon which she had resided with her husband and family for several years preceding her death. The land did not exceed in value, over and above incumbrances, the sum of $2,000, so that the same constituted the family homestead, if the mere fact of occupying it as a family residence was a sufficient selection under the homestead law. On the 27th day of October, 1888, one Palmer was appointed administrator of the estate of said deceased, and he in May filed his petition under the statute for license to sell said lands to pay, debts. Such license was granted by the district court, and such proceedings were had thereunder that the premises were on [336]*336the 24th clay of October, 1890, sold by the said administrator to the defendant Charles A. Huxtable, and, the said sale having been confirmed, the administrator conveyed the premises to said purchaser, who went into possession under said deed, and who has, with his wife, the defendant Ada E., remained in actual possession ever since. It appears that no record of the oath required to be taken by the administrator can be found in the district court, but that the proceedings were otherwise regular. On the 15th day of June, 1904, the plaintiffs Roy Y. Hobson and John T. Hobson commenced this action, setting forth the foregoing facts and praying for a decree declaring the administrator’s deed void. John H. Hobson, the surviving husband of Anna E., died pending this action, on the 18th day of June, 1905. On the 18th day of July, 1905, the defendants Ida Belle Hobson, now Busby, and George W. Hobson filed an answer in this action, admitting the allegations of the plaintiff’s petition, alleging the death of John H. Hobson, asserting title in themselves, and asking that their rights in the property be investigated, and that the defendants Huxtable be ejected from the premises. There was a plea of the statute of limitations against these defendants by the defendants Huxtable. The district court rendered a decree quieting the title in the four Hobsons, subject to the amount of a mortgage which had been paid off by or with the money received from the purchaser at the administrator’s sale. Prom this decree the defendants Huxtable appeal.
1. The appellants contend that the fact of the use of the property as a family home for herself, husband* and children for some years before, and up to the time of her death, was insufficient to show that the homestead was selected with the consent of the wife, and, as to the defendants Ida Belle and George W., that more than ten years have elapsed since they became of age, and that they are accordingly barred by the statute of limitations. It is admitted by the appellants that, where the husband is. the owner of the fee, the mere fact of residence is suffi[337]*337dent selection; but they insist that, where the wife is the owner, there must be some further evidence of her consent. The statute provides that “if the claimant be married, the homestead may, be selected from the separate from her separate property.” The counsel for appellants property of the husband, or icith the consent of the wife, lays stress upon the words in italics, and argues that to give them effect there must be some further evidence of the consent of the owner of the fee where the property is in the name of the wife than where it is OAvned by the husband. The cases cited from California and Idaho do not assist us,' for in each of these states the statute requires the selection of a homestead to be made by an instrument in Avriting executed and recorded in the same manner as a conveyance. Our own court has in several cases assumed that the fact of residence was sufficient evidence of selection in a case Avhere the property belonged to the wife. Larson v. Butts, 22 Neb. 370; France v. Bell, 52 Neb. 57; First Nat. Bank v. Reese, 64 Neb. 292, and, Brichacek v. Brichacek, 75 Neb. 417, Avere all cases where the property was in the name of the Avife, and the homestead character was sustained Avithout proof of any formal consent of the wife. It is, however, but fair to say that in none of these cases was the fact that the statute requires the selection to be made in such cases with the consent of the Avife discussed. Klamp v. Klamp, 58 Neb. 748, is the only case brought to our attention in AAdiich the effect of these Avords has been considered, and it was there held that a husband could not acquire the homestead in the separate property of the wife except with her consent. The question in issue was whether or not the husband had a right to compel the wife to account to him for the proceeds of the homestead which was the separate property of the wife and the court held that he had not that right. We do not think that this case established the doctrine contended for by the appellants that the Avife must declare her formal consent to the selection of a homestead from her [338]*338property. We think her consent will be presumed from the actual use of the property as a homestead, which presumption can only be overcome by proof that she did not in fact consent. The property being the homestead of the deceased descended to the husband during his life, and, upon his death, in fee to the children. This being the case, the license to the administrator was void, even though the proceedings were regular. Tindall v. Peterson, 71 Neb. 166; Brandon v. Jensen, 74 Neb. 569.
2. Section 57, ch. 73, Comp. St. 1905, provides “that an action may be brought and prosecuted to final decree, judgment, or order, by any person or persons, whether in actual possession or not, claiming title to real estate, against any. person or persons, who claim an adverse estate or interest therein, for the purpose of determining such estate or interest, and quieting the title to said real estate”; while section 59 contains the further provision that “any person or persons having an interest in remainder or reversion in real estate shall be entitled to all the lights and benefits of this act.” It is clear that under this statute a remainderman may maintain an action to quiet title during the life of the life tenant; and it follows that the disability of the defendants Ida Belle and George W. ceased, and their right to bring an action to quiet this title accrued, more than 10 years prior to the filing of their answer in this case. It is contended by the attorney for the defendants Ida Belle and George W. that the claim set up in their answer is to be considered an action in the nature of ejectment, and that such an action could not accrue to them during the life of John H. Hobson, the life tenant. This again is met by the defendants Huxtable with the contention that, since the Huxtables did not claim under John H. Hobson, and could not claim to be the owners of his interest for life, an action by the heirs to obtain possession could have been as well maintained before as after his death.
We are, however, unable to regard this suit as an action in the nature of ejectment. The plaintiffs’ suit was to [339]*339quiet title, and, if we admit this claim of the. defendants Ida Belle and George W., we are committed to the anomalous proposition that two tenants in common can join in an action which shall be on the part of one an action to quiet title, and on the part of the other an action in ejectment. The two actions are incompatible. They require different methods of trial and a different judgment at the end. If Ave accept the view of the attorneys for Ida Belle and George W. that the action of ejectment could not accrue during the life of John H. Hobson, they had no right to bring ejectment at the time of the commencement of this action. If the action against the Huxtables was ejectment, they were entitled to a trial by jury, which they did not demand, and, under the statute in force at that time, to a new trial as a matter of right, Avhich they did demand and which was denied them. If it was an action to quiet title, it was not only within the poAver but it was the duty of the court to require the heirs of Anna. E. Hobson, as a condition of granting them any relief, to do equity by reimbursing the Huxtables for the money advanced by them to discharge mortgage liens upon the land. Henry v. Henry, 73 Neb. 752. It is a practical as well as a legal.impossibility to join two such diverse actions. The court below regarded this as an action to quiet title. The decree quiets title in the heirs, subject to the mortgage which was paid out of the proceeds of the sale by the administrator, orders the defendants Huxtable to execute deeds, and enjoins them from claiming title. Such a decree is suitable in an action to quiet title, but could not be rendered in an action in ejectment. The defendants Ida Belle and George W. do not object to this decree, and we are constrained to hold that their action is in the nature of an action to quiet title, and that it was barred by the statute of limitations.
We therefore recommend that the judgment of the district court be affirmed as to the plaintiffs Roy Y. Hobson and John T. Hobson, and that the same, as to the defend[340]*340ants Ida Belle Busby and George W. Hobson, be reversed and their action dismissed.
The following opinion on rehearing was filed April 23, 1908. Former judgment vacated and decree entered:
1. Stipulations: Construction. When litigants stipulate that certain facts exist, and the language employed is at all equivocal, the evident definition given by both litigants to the words in the stipulation will control, and upon appeal they will be bound thereby.
2. Homestead: Estates oe Heirs. If a homestead be selected from the separate property of a married woman in her lifetime, upon her death intestate, a life estate vests in the surviving spouse, and remainder in the heirs of the deceased.
3. Remainders: Quieting Title. The heirs aforesaid may, during the life 'estate, maintain an action under sections 57-59, ch. 73, Comp. St. 1907, for the purpose of quieting their title or removing a cloud therefrom.
4. -: -: Limitations. If a remainderman, not being under any legal disability, fails for ten years after his cause of action accrues to commence his suit, he is barred by the statute of -limitations from maintaining his action to quiet title, and the fact that a remainderman owning an undivided interest in real estate may be under a legal disability will not toll the statute as to the other remaindermen not within the exception.
5.-: -: -. If the remainderman be under a legal disability when the aforesaid' cause of action accrues, the statute will not commence to run against him until the disability is removed.
Jackson and Abies, GO., concur.
By the Court: For the reasons stated in the foregoing-opinion, the judgment of the court below in favor Of the plaintiffs Roy Y. Hobson and John T. Hobson is affirmed, and the judgment in favor of the defendants Ida Belle Busby and George W. Hobson is reversed and their action dismissed, and the costs of this court are divided equally between appellants Huxtable and appellees Ida Belle Busby and George W. Hobson.
Judgment accordingly.
6. -: Ejectment: Limitations. The remainderman’s estate in the homestead will not support an action in ejectment during the lifetime of the life tenant, and the statute of limitations will not commence to run against that possessory action until the demise of the surviving spouse.
7. Equity: Right oe Possession. In an equitable action to set aside a deed, where the right of possession is in issue and depends upon principles of equity that must necessarily be determined by the court, it is the duty of the court to determine the right of possession, if all parties in interest are before the court, and put the parties entitled thereto into possession.
8. -: Subrogation: Limitations. In case a defendant as a matter of equity is entitled to be subrogated to the lien of a mortgage upon real estate, it is within the power of a court of equity, as a condition precedent to granting equitable relief to the owner of the real estate, to compel the payment of that mortgage, even though by its terms said lien be barred by the statute of limitations.
9. Remainders: Value oe Use and Occupation: Evidence. Evidence examined, and held insufficient to justify a finding concerning the value of the use and occupation of the real estate involved for that part of the crop season of 1905 subsequent to June 18.