(dissenting) : I cannot assent to the conclusion arrived at by the majority of the court in this case. That we may understand the question to be decided, let us state the facts upon which it arises. J. W. Fike, Henry Fike and Anna Fike were brothers and sister, and tenants in common of the land in controversy. None of them was ever in Kansas. While it was thus owned the land was sold for taxes. Before a tax deed had matured Katie M. Fike, the wife of J. W. Fike, purchased the tax-sale certificate with her own separate funds and caused it to be assigned to her. Afterward, and at the proper time, she procured a tax deed, which she recorded more than five years before the present suit was commenced. Subsequently to the recording of the tax deed she conveyed the land by warranty deed to the defendant. After such conveyance Henry Fike and Anna Fike conveyed by quitclaim deed, each an undivided one-third interest in the land, to Paul R. Nagle, the plaintiff in error. Nagle commenced this suit to partition the land, claiming to be the owner of an undivided two-thirds interest by reason of his deeds from Henry and Anna Fike. The defendant was in possession, and pleaded the tax title to Katie M. Fike and the warranty deed from Katie M. Fike to himself as a complete title to the entire tract of land. The case finally turned upon the question whether Katie M. Fike, the wife of J. W. Fike, one of the tenants in common, could acquire a tax title to land in which her husband was an owner of an undivided *48one-third interest as tenant in common, and the answer to this question depends upon whether a wife has a present property interest in the land of her husband, other than the homestead, situated in Kansas. This question is answered by the majority in the negative, and consequently it is held that one of the spouses may acquire a tax title to the land of the other, situated in Kansas, provided the tax-title holder has used his or her own money in the purchase thereof. From this conclusion I dissent, and prefer to adhere to the well-settled law of the state that a wife has a present existing property interest in all lands belonging to her husband situated in Kansas.
A very considerable portion of the opinion is devoted to the discussion of the rights of married women -in Kansas. The right of a married woman to invest her money in property or business independently and apart from the control of her husband does not arise in this suit. It is not decisive of any question in this controversy. Under the laws of Kansas a married woman may sell and convey her real and personal property, and enter into any contract with reference thereto, in the same manner and to the same extent and with like effect as a married man may in relation to his real or personal property. Whether either has a present property interest in the lands of the other situated in Kansas, other than the homestead, is an entirely different and independent question. It is not’ deniable that where two or more persons are united in interest in real estate, irrespective of the nature, quality or extent of the respective interests, neither can acquire a tax title thereto against the other. It is the unity of interest in the subject of taxation that deprives one of the spouses from acquiring a tax title to lands belonging to the other, and not the unity of persons.
The question whether a wife has a present property interest in the real estate of her husband was first presented to this court in Busenbark v. Busenbark, 33 *49Kan. 572, 7 Pac. 245. That was a case where the wife sued for a divorce on the grounds of extreme cruelty and gross neglect of duty. She also alleged that her husband had fraudulently and collusively permitted two of his children by a former wife to procure a judgment against him in a large amount, upon which an execution had been issued under which such judgment creditors were attempting to sell a large amount of her husband’s lands, other than their homestead, and thus defraud her of her interest therein, and prayed for an injunction to restrain the commission of such acts. A temporary injunction was granted. The husband answered denying the fraudulent intent, and also asked for a divorce. The judgment creditors also answered. Upon a final hearing the trial court made the injunction perpetual. It clearly appeared that the husband had sufficient other personal and real' property to provide for himself and wife. The injunction was granted upon the theory that a wife has a present property interest in all the lands belonging to her husband situated in Kansas which she may protect and preserve by an appropriate action. It was not upon the theory, as suggested in the opinion of the majority, that “upon granting a divorce to the wife it is by statute made the duty of the court to award to the wife all of her separate property, and the court may further award her such portion of the husband’s property or may award her such sum in money, as alimony, as seems equitable.”
There was no divorce granted in that case, nor were any lands set apart to the wife or any award of money made. The possession and use of the homestead were awarded to her, and a few articles of personal property; but the entire real estate was not apportioned, but was cleared of the fraudulent judgment, and the wife’s interest thereby preserved. The defendants prosecuted error to this court, and the question decided was that a wife had a present property interest in all lands owned by her husband situated in Kansas. In *50the opinion is found the following language by Mr. Chief Justice Horton, speaking for the court:
■ “We now go further, and declare that although the wife’s right and interest in the real estate of her husband not occupied 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 for its protection, and for relief from fraudulent alienation by her husband.” (Page 577.) .
The same question was again presented to this court in Munger v. Baldridge, 41 Kan. 236, 21 Pac. 159, 13 Am. St. Rep. 273. The Busenbark case was reviewed and the court, speaking through the present chief justice, uséd the following language:
“The interest of the wife in the real estate of her husband during marriage is a contingent one, it is true, but it is unquestionably property, and no reason has been advanced why she may not empower the husband to act for her and in conjunction with himself convey it away. In Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245, the nature of this interest was considered, and it was determined that while if was inchoate and uncertain it still possessed the elements of property which may be in connection with the husband the subject of contract and bargain, and was of such a character that the wife might during marriage maintain an action for its protection and for relief from fraudulent alienation by her husband. • That it is an existing interest, and one which may be the subject of conveyance by the wife during marriage, is expressly recognized by the statute defining-the same, as follows:” (Page 243.)
The precise question involved in this case was passed upon in Warner v. Broquet, 54 Kan. 649, 39 Pac. 228, where it was held that both husband and wife have an interest either direct or indirect in each other’s real estate, and in passing upon the question the court used the following language:
“These interests and the mutual confidences which ought to exist between husband and wife forbid either *51from obtaining a tax title upon the real estate of the other.” (Page 650.)
For twenty years the doctrine that a wife has a present property interest in all real estate belonging to her husband situated in Kansas has been adhered to both by the bench and the bar, and property rights have been settled both in and out of courts upon the presumption that such was the'settled law of the state. The majority opinion tells us, however, that the reasoning by which the courts reached this conclusion was fallacious. And in attempting to show the fallacious reasoning which led this court in the Busenbark, Munger and Broquet cases to conclude "that a married woman had a present interest in the lands of her husband situated in Kansas, the following statute is quoted:
“One-half in value of all the real estate in which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts,, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executor as her property, in fee simple, upon the death of the husband, if she survives him; provided, that the wife shall not be entitled to any interest, under the provisions of this section, in any land to which the husband has made a conveyance, when the wife, at .the time of the conveyance, is not or never has been a resident of this state.” (Gen. Stat. 1901, § 2510.)
And then it is said: “At most this statute creates an interest in the husband’s real estate which attaches, not during his lifetime, but upon his death.” The confusion which is discernible throughout the opinion— that an interest in lands and an estate in lands are synonymous terms — stands out prominently in this quotation. This statute creates a present interest in the wife in lands owned by the husband — not an estate —which interest ripens into an estate only upon the death of the husband.
Neither J. W. Fike nor his wife had ever been a resident of the state. It is therefore held that the rule for *52which I contend cannot apply in this case because of the proviso in the section. This proviso was intended only to deprive the wife from claiming an interest in lands which had been conveyed by her husband before she became a resident of the state. It was enacted to protect innocent grantees of land, and, as held in Buffington v. Grosvenor, 46 Kan. 730, 27 Pac. 137, 13 L. R. A. 282, is only a rule of conveyancing. The proviso does not discriminate against the non-resident wife. Her interest in the lands of her husband situated in Kansas is as great as if she actually resided in the state, and upon his death her estate in lands of which he died seized is the same as if she had been an actual resident, subject to all the conditions imposed by the statute upon resident wives or widows, with one addition, namely, that the husband has not conveyed it before his death; and, as suggested, this additional condition was imposed to protect innocent purchasers, and not to discriminate against the non-resident wife or widow.
The opinion in Steffins v. Stewart, 53 Kan. 92, 36 Pac. 55, may appear upon a cursory examination so to minimize the interest of the wife in the real estate of the husband as to be antagonistic to the principle for which I contend. But upon a closer examination it will be discovered that such is not the case. In that case the husband, who was the owner of the land, had unsuccessfully litigated the right of the city to levy a special assessment upon his land, and, after a final judgment against him, his wife commenced her action to relitigate the same question. This right was denied her, not because she did not have an interest, but because she had no such separate and independent interest in the real estate of her husband that she could maintain a separate action in her own name after the question involved had been litigated to a final determination by, and in the name of, her husband. This is in line with all the authorities. The interest of the wife in the real estate of her husband is a joint interest with *53his, and not separable from and independent of his; and it is only in cases where, because of neglect or refusal on the part of the husband to perform some act or duty the neglect or non-performance of which would entirely defeat her interest, and in cases of fraudulent conduct of the husband detrimental to or destructive of her interests, that the courts recognize the right of the wife to her action. I insist that the wife has a property interest in all the lands of her husband, jointly with him; that the husband has a joint property interest in the lands belonging to the wife; and that therefore neither can acquire a tax title to the lands of the other.
(88 Pac. 969.) SYLLABUS BY THE COURT. 1. Tax Deed — Recorded Five Years — Consideration. Where two tracts of land lying contiguous and under the same ownership are separately taxed in the same amount for a certain year, are sold for the non-payment of such taxes, and are thereafter deeded to the purchaser in consideration of such taxes and the subsequent taxes for the three intervening years, and the deed recites as the consideration therefor, not the separate amount against each tract but the total amount of taxes, interest and costs, the deed, in an action commenced more than five years after the recording thereof, will not be held void as not complying with the requirements of section 7677 of the General Statutes of 1901. 2. -Presumption. In such a case, to support the deed it will be presumed either that the two tracts continued to be ' separately taxed in equal amounts, or, subsequent to the sale, were taxed together as one tract; in either of which cases the consideration for the conveyance is one-half the total consideration.*53Mrs. Katie M. Fike being incapable of acquiring a tax title to the lands, the deed was void, and recording it did not start the statute of limitation. (Carithers v. Weaver, 7 Kan. 110.) The judgment of the lower court should be reversed.
I am authorized to say that Mr. Chief Justice Johnston joins me in this dissent.