The opinion of. the court was delivered by
AlleN, J.:
Although we have before us a very voluminous record, but a single question is presented for our consideration. Martin Stewart, who was the legal owner of certain lands adjacent to the road known as the “Quindaro boulevard,” brought an action to restrain the collection of special taxes, levied to pay for improvements of that road. In that action he was defeated, and the judgment of the lower court, on the rehearing, was affirmed by this court. (Stewart v. Comm’rs of Wyandotte County, 45 Kas. 708.) After the final [96]*96disposition of that case, Catherine Stewart, wife of said Martin Stewart, brought this action, also for the purpose of restraining the collection of the identical taxes involved in the suit prosecuted by her husband. It is now claimed on her behalf, and the trial court held, that the adjudication in that action does not bind her, and that her inchoate interest in her husband’s property is sufficient to enable her to contest the validity of the assessments against the property, wholly without regard to the result of the former suit. The plaintiff in error on the trial offered in evidence the files and records in the former case referred to, and also to prove that the plaintiff in that case was the husband of the plaintiff in this. An objection to this testimony was sustained by the court and the evidence excluded.
The question we are now called upon to decide is, whether Catherine Stewart has such interest in the lands of her husband as will enable her to maintain this action. The trial court found that the lands described in the petition ceased to be the homestead of the Stewarts on the 5th day of January, 1888; and as the taxes were not levied or placed on the tax roll until thereafter, and would not become a lien on the property until the first of November, 1888, there appears to be no question of homestead right involved in the case. We think the fact that the petition was circulated and preliminary proceedings for the road improvement were had prior to the time of the abandonment of the land as a homestead by Martin Stewart and his wife does not affect the case, and that the rights of Mrs. Stewart are such only as a wife has in the lands of her husband not included in the homestead.
Counsel for defendants in error argue that the former decisions of this court maintain the doctrine that in this state the wife has an existing interest in the lands of her husband which she may protect by suits in court, without reference to the action of her husband in respect thereto. In the case of Helm v. Helm, 11 Kas. 19, it was held:
“ Where the wife was compelled to sign a deed for the conveyance of the homestead by threats of her husband and the [97]*97purchaser to take her life if she refused: Held, That a signature procured in that manner is not such a consent to part with the homestead as the law requires, and that the wife may bring suit at once to have such signature declared void.”
In Coughlin v. Coughlin, 26 Kas. 116, it was held:
“The husband cannot, without the consent of the wife, execute a lease of a homestead, and give possession thereof to a tenant, although the title to the premises is in his own name, when the lease interferes with the possession and enjoyment of the premises by the wife as a homestead.”
These cases, especially the latter, are based mainly on the peculiarity of the law with reference to homesteads, though it might be that the case of Helm v. Helm, supra, would be followed in an action to set aside any deed to which the wife’s •signature was obtained by duress, so far as it affected her inchoate interest. The case of Busenbark v. Busenbark, 33 Kas. 572, which is the strongest one cited by the defendants in error, holds:
“ While the wife’s right and interest in the real estate of her husband, not occupied by the family as a homestead, is inchoate and uncertain, yet it possesses the element of property to such a degree that she may maintain an action during the life of her husband to prevent its wrongful alienation or disposition under fraudulent judgments, procured and consented to by the husband, with the object and for the purpose of defeating the wife’s right.”
That was an action for a divorce, and to protect the wife’s rights in the property of her husband. The court held that, under the circumstances of that case, the wife could, by action, protect herself against a fraudulent attempt on the part of her husband to dispose of his property to her injury. In Munger v. Baldridge, 41 Kas. 236, it was merely decided that a wife might appoint an attorney to convey her inchoate interest in her husband’s real estate. In C. K. & W Rld. Co. v. Anderson, 42 Kas. 297, it was held that husband and wife might join in an appeal from a condemnation of a part of the homestead for the right-of-way for a railroad. None of these [98]*98cases go to the limit it is necessary to reach in order to affirm this judgment.
If a wife may maintain this action after her husband has litigated to the fullest possible extent the validity of this tax against his lands, it follows, as a necessary consequence, that no judgment with reference to the title to lands or with reference to any lien thereon, rendered in an action to which the husband alone was a party, is binding on the wife; and all the long list of such cases which have been finally determined by the courts, and which have been understood by bench and bar alike to be final determinations of the rights involved, may be again brought up and tried de novo by the wife, as though there had been no former trial. There are many ways in which the rights of the wife to any interest, present or future, in the lands of her husband may be cut off without her assent. She is in nowise a party to an ordinary tax proceeding. A mere failure on the part of the husband to pay the public charge imposed on his land may result in the loss, to him, and to his wife as well, of the land. So a levy and sale under judicial process of any realty other than the homestead defeats her inchoate interest. Even a homestead is not exempt from sale for taxes, for the payment of obligations contracted for the purchase of the premises, or for the erection of improvements thereon, and, where the legal title is in the husband, he alone may create such incumbrances.
The improvement in this case of the Quindaro road along the Stewart land was in the nature of an improvement on the land itself. In fact, the ultimate title to one-half the road, it being outside the limits of any city, was in Martin Stewart, subject only to the easement of the public. The theory on which all special assessments for street improvements in cities are upheld is, that they are a special benefit to the property taxed, and in the nature of an improvement to such property. See Gilmore v. Hentig, 33 Kas. 156, and cases there cited.
In the case of Stewart v. Comm’rs of Wyandotte County, supra, it appeared that Stewart had taken an active part in [99]*99causing the improvement of the road to be made, and that he was therefore estopped from contesting the validity of the proceedings he had himself invoked. This case has no similarity to that of Busenbark v. Busenbark, supra, nor are the principles involved similar.
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The opinion of. the court was delivered by
AlleN, J.:
Although we have before us a very voluminous record, but a single question is presented for our consideration. Martin Stewart, who was the legal owner of certain lands adjacent to the road known as the “Quindaro boulevard,” brought an action to restrain the collection of special taxes, levied to pay for improvements of that road. In that action he was defeated, and the judgment of the lower court, on the rehearing, was affirmed by this court. (Stewart v. Comm’rs of Wyandotte County, 45 Kas. 708.) After the final [96]*96disposition of that case, Catherine Stewart, wife of said Martin Stewart, brought this action, also for the purpose of restraining the collection of the identical taxes involved in the suit prosecuted by her husband. It is now claimed on her behalf, and the trial court held, that the adjudication in that action does not bind her, and that her inchoate interest in her husband’s property is sufficient to enable her to contest the validity of the assessments against the property, wholly without regard to the result of the former suit. The plaintiff in error on the trial offered in evidence the files and records in the former case referred to, and also to prove that the plaintiff in that case was the husband of the plaintiff in this. An objection to this testimony was sustained by the court and the evidence excluded.
The question we are now called upon to decide is, whether Catherine Stewart has such interest in the lands of her husband as will enable her to maintain this action. The trial court found that the lands described in the petition ceased to be the homestead of the Stewarts on the 5th day of January, 1888; and as the taxes were not levied or placed on the tax roll until thereafter, and would not become a lien on the property until the first of November, 1888, there appears to be no question of homestead right involved in the case. We think the fact that the petition was circulated and preliminary proceedings for the road improvement were had prior to the time of the abandonment of the land as a homestead by Martin Stewart and his wife does not affect the case, and that the rights of Mrs. Stewart are such only as a wife has in the lands of her husband not included in the homestead.
Counsel for defendants in error argue that the former decisions of this court maintain the doctrine that in this state the wife has an existing interest in the lands of her husband which she may protect by suits in court, without reference to the action of her husband in respect thereto. In the case of Helm v. Helm, 11 Kas. 19, it was held:
“ Where the wife was compelled to sign a deed for the conveyance of the homestead by threats of her husband and the [97]*97purchaser to take her life if she refused: Held, That a signature procured in that manner is not such a consent to part with the homestead as the law requires, and that the wife may bring suit at once to have such signature declared void.”
In Coughlin v. Coughlin, 26 Kas. 116, it was held:
“The husband cannot, without the consent of the wife, execute a lease of a homestead, and give possession thereof to a tenant, although the title to the premises is in his own name, when the lease interferes with the possession and enjoyment of the premises by the wife as a homestead.”
These cases, especially the latter, are based mainly on the peculiarity of the law with reference to homesteads, though it might be that the case of Helm v. Helm, supra, would be followed in an action to set aside any deed to which the wife’s •signature was obtained by duress, so far as it affected her inchoate interest. The case of Busenbark v. Busenbark, 33 Kas. 572, which is the strongest one cited by the defendants in error, holds:
“ While the wife’s right and interest in the real estate of her husband, not occupied by the family as a homestead, is inchoate and uncertain, yet it possesses the element of property to such a degree that she may maintain an action during the life of her husband to prevent its wrongful alienation or disposition under fraudulent judgments, procured and consented to by the husband, with the object and for the purpose of defeating the wife’s right.”
That was an action for a divorce, and to protect the wife’s rights in the property of her husband. The court held that, under the circumstances of that case, the wife could, by action, protect herself against a fraudulent attempt on the part of her husband to dispose of his property to her injury. In Munger v. Baldridge, 41 Kas. 236, it was merely decided that a wife might appoint an attorney to convey her inchoate interest in her husband’s real estate. In C. K. & W Rld. Co. v. Anderson, 42 Kas. 297, it was held that husband and wife might join in an appeal from a condemnation of a part of the homestead for the right-of-way for a railroad. None of these [98]*98cases go to the limit it is necessary to reach in order to affirm this judgment.
If a wife may maintain this action after her husband has litigated to the fullest possible extent the validity of this tax against his lands, it follows, as a necessary consequence, that no judgment with reference to the title to lands or with reference to any lien thereon, rendered in an action to which the husband alone was a party, is binding on the wife; and all the long list of such cases which have been finally determined by the courts, and which have been understood by bench and bar alike to be final determinations of the rights involved, may be again brought up and tried de novo by the wife, as though there had been no former trial. There are many ways in which the rights of the wife to any interest, present or future, in the lands of her husband may be cut off without her assent. She is in nowise a party to an ordinary tax proceeding. A mere failure on the part of the husband to pay the public charge imposed on his land may result in the loss, to him, and to his wife as well, of the land. So a levy and sale under judicial process of any realty other than the homestead defeats her inchoate interest. Even a homestead is not exempt from sale for taxes, for the payment of obligations contracted for the purchase of the premises, or for the erection of improvements thereon, and, where the legal title is in the husband, he alone may create such incumbrances.
The improvement in this case of the Quindaro road along the Stewart land was in the nature of an improvement on the land itself. In fact, the ultimate title to one-half the road, it being outside the limits of any city, was in Martin Stewart, subject only to the easement of the public. The theory on which all special assessments for street improvements in cities are upheld is, that they are a special benefit to the property taxed, and in the nature of an improvement to such property. See Gilmore v. Hentig, 33 Kas. 156, and cases there cited.
In the case of Stewart v. Comm’rs of Wyandotte County, supra, it appeared that Stewart had taken an active part in [99]*99causing the improvement of the road to be made, and that he was therefore estopped from contesting the validity of the proceedings he had himself invoked. This case has no similarity to that of Busenbark v. Busenbark, supra, nor are the principles involved similar. Martin Stewart, in circulating the petition and asking for the improvement of the Quindaro road, sought to benefit, and doubtless did materially benefit, his estate. He then, by the action he brought against the board of commissioners, sought to be relieved of the payment of his share of the cost of such improvement. In so doing, he acted not adversely to the interest of his wife, but to relieve himself of a burden, and increase the value of his estate. We see no reason why his wife was either a necessary or a proper party in that case; and certainly it would be a most surprisingly unfortunate state of affairs if all litigation in reference to lands, when not carried on by husband and wife jointly, is liable to be duplicated after its final determination by the one not a party to it.
We think the reasoning in the cases of Overman v. Hathaway, 29 Kas. 434, and Mosteller v. Gorrell, 41 id. 392, opposed to, rather than sustaining, the position of the defendants in error.
As the facts found by the trial court show that Catherine Stewart had no right to maintain this action, the judgment will-be reversed, with the direction to enter judgment on the findings of the court in favor of the defendants as to her.
All the Justices concurring.