(concurring specially). In this cáse the plaintiff and the defendants, except Arthur Wehe, appeal from the decision of the trial court. This is a Wehe case, — a case in which one of the ten young Wehes has been trying to impose on his poor old dad, and to bring down his gray hairs with sorrow to the grave.
This is an action to quiet title to a quarter section of land in Nel*289son county. Arthur Wehe is the only defendant who claims title, and all the others appeal from a judgment in his favor. He claims title under a deed made by Charles Wehe, now deceased, to his wife, and a deed by her to him. In 1883 Charles Wehe settled on the land as a pre-emption. Then he turned it into a homestead and made final proof in 1890 and received patent in 1891. In April, 1891, to protect himself and his family from claims of creditors, he foolishly made a paper deed purporting’ to convey the land to his wife. The land was then the homestead of Charles Wehe and was occupied as such by himself and family. The deed was made without any consideration and without any purpose to part with the title and possession of the land. It was not executed and acknowledged by the husband and wife; they did not both concur in and sign the same joint instrument. Comp. Laws, § 5608. In November, 1916, the action was brought to trial. The testimony of Charles Wehe shows that the deed was made without any consideration and without any purpose to pass the title or possession of the land; that until the time of the trial he was continuously in possession of the land, as owner in fee, and paid all taxes levied against it. He leased, farmed, and used the land as his own; he put in evidence twenty-two tax receipts, showing that in every year he paid the taxes in his own name, as the owner of the land; and it appears that he never accounted to any person for rents or profits. He cultivated and improved the land and built on it a residence, barn, granary, blacksmith shop, and such like. The property all belonged to Charles Wehe, and no person claimed any adverse title.
Now it seems that on October 31, 1913, Pauline Wehe made a will, which was drafted and witnessed by Arthur C. Wehe. The will gave to Arthur and two other children, to each of them,’ $1,000, to be paid out of the real and personal property. It made Arthur executor. Then, on the same day, she made a deed of the land, — a very questionable deed, — in which, as it now appears, the grantees are Arthur O. Wehe, Eliada Wehe, and Herbert Wehe. The last two persons knew nothing of the deed until over a year after it was executed and until after the mother’s death. By answer they disclaim any title under the deed, and aver that it was made as a part of the will; that it did *290not contain the name of Arthur Wehe, and that he inserted his own name as a grantee after the execution of the deed.
The mother had no claim or title to any other land or any other property. The express consideration is $1. The deed and the will were drawn by Arthur, and he held possession of the same, and the whole matter was kept secret until the day after the funeral.
There are three fatal objections to the title claimed by Arthur Wehe:
(1) The facts speak louder than words, and show conclusively that the deed was obtained by fraud and undue influence. The grantee was the mother of ten children. Her son, Arthur, drafted the will which she signed and in which she remembered all her children. Then in a few hours he induced her to make a warranty deed of her property, as he says, to himself and two other children. The other children disclaim title under the deed, and aver that it was made as a part of the will and that it did not contain the name of Arthur Wehe.
(2) The mother never had title to the land, because, when the deed was made to her in 1891, the land was occupied by Charles Wehe and his wife as a homestead, and they did not concur in and sign the same joint deed.
(3) The deed to Mother Wehe was made without any consideration, and not for the purpose of conveying any title to her. And for more than twenty-two years after the date of the deed, and until his decease, Charles Wehe remained in open, exclusive, and undisputed possession of the land as owner in fee. He cultivated and improved it, rented the land and made valuable improvements on it, and paid all taxes against it, as shown by the tax receipts. His title was absolute and perfect.
The judgment should be reversed and judgment entered to the effect that duxúng his life and at the time of his decease Charles L. Wehe was the owner in fee of the land described in the complaint, and that his title he quieted and confirmed; and that the defendants, and each of them, and all persons .claiming under them, be forever barred from any title or interest in said land, except' as the legal heirs of Charles L. Wehe; that the plaintiff and the appellants do have and recover from Arthur C. Wehe, defendant and respondent, the costs and disbursement of the action and the appeal, the judgment to be without *291prejudice to the rights of the executor to have and recover from Arthur 0. Wehe for the use of said land and for any rents and profits that he may have received from it, and to charge the same and the costs of this action against any interest he may have as heir of Charles L. Wehe, deceased.