(concurring specially) : In my judgment the syllabus of the opinion written by Mr. Justice Smith clearly and accurately states the law. But the argument in support of the conclusions reached appears to me to be unduly pressed against the case of Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245, and its congeners. If it were proposed to do so I would not agree that they may be overruled.
The premise of the dissenting opinion of Mr. Justice Greene is antagonistic to the decisions holding that a mortgagee may take a tax deed of the mortgaged premises. A mortgagee has a very large and substantial present property interest in the land covered by the mortgage. He may prevent waste and the like. He may redeem from taxes; and his interest may ultimately extinguish all the title of the mortgagor; still, he may take a tax deed, and I am not in favor of overruling the decisions of this court to that effect.
The syllabus of the case of Steffins v. Stewart, 53 Kan. 92, 36 Pac. 55, tells what was there decided, and reads as follows:
*46“A wife has no such interest in the lands of her husband, other than the homestead, as will support an action by her alone, in her own name, to enjoin the collection of special taxes assessed against such lands.”
In the opinion the point at issue was stated thus:
“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.” (Page 96.)
The circumstance of former litigation by the husband concerning the same matter is not noted in these quotations. It was not the controlling fact in the case at all, and was referred to merely to illustrate the far-reaching consequences of conceding to the wife anything beyond her naked statutory right. I think the case is an authority against the position taken in the dissenting opinion, and am not in favor of weakening its force.
One source of the confusion attending discussions of this subject is the employment of names to designate an unnamed thing. The statute creates and defines the relation of a married woman to her husband’s land other than the homestead. Whenever an attempt is made to speak of that relation familiar law words are used — “right,” “interest,” “property,” “estate,” and the like — every one of which contains implications not warranted by the statute. Then arguments are made from the implications, and so the effect of the statute may be magnified or minimized. In Warner v. Broquet, 54 Kan. 649, 39 Pac. 228, the subject was further complicated by viewing it in the light of obsolete law concerning the marriage relation.
I am willing to say, without naming it, that the statutory relation of a married woman to her husband’s land other than the homestead is such that she is not prohibited from taking a tax deed of it. But if that relation should be wrongfully invaded, as in the Busenbark case, the courts should, upon her application, duly protect it.