(concurring): I concur in the court’s decision and would write nothing more if it were not for the separate opinion of Mr. Justice Hoch. This appears to be based upon the view that the court in its former decisions has failed to interpret or define correctly the word “consent,” as used in the section of our constitution (art. 15, § 9) relating to homesteads. Since this question was not one of those ruled upon in the trial court, or argued here in the briefs of counsel, the separate opinion is in the nature of a thesis on a question not pertinent to the opinion. My discussion is from that viewpoint.
The word “consent” has been used uniformly in our former decisions in harmony with the well-settled meaning of the word which has prevailed for centuries. A brief research discloses the following definitions of the word “consent:”
Century Dictionary: “In lam, intelligent concurrence in the adoption of a contract or an agreement of such a nature as to bind the *348party consenting; agreement upon the same thing in the same sense. Consent of parties is implied in all contracts; hence, persons legally incapable of giving consent, as idiots, etc., cannot be parties to a contract. . . . Consent is null where it proceeds on essential mistake of fact, or where obtained by fraud or by force and fear.”
Encyclopedia Americana, Vol. 7, p. 545: “In law, a free and deliberate act of a rational being.”
Oxford English Dictionary: “Cow-together, + sentire, to feel, think, judge, etc. The sense, ‘consent to a thing being done,’ was a subsequent development, but occurs in the 12th c. in Fr. and is app. the earliest-recorded in Eng. . . . Voluntarily to accede to or acquiesce in what another proposes or desires.”
Webster’s New International Dictionary: “Law. Capable, deliberate, and voluntary assent or agreement to, or concurrence in, some act or purpose, implying physical and mental power and free action.”
Bouvier’s Law Dictionary: “(Lat. con, with, together, sentire, to feel). A concurrence of wills. . . . Consent supposes a physical power to act, a moral power of acting, and a serious, determined, and free use of these powers.”
15 C. J. S'., 979, 980, defines “consent” in various phrases as taken from the authorities, among others: “An act of reason accompanied with deliberation. . . . Capable, deliberate, and voluntary agreement or concurrence in some act or purpose; intelligent concurrence . . . of such a nature as to bind the party consenting, the mind weighing, as in a balance, the good and evil on both sides. . . . At law the term involves approbation and submission, but it cannot be the subject of compulsion. . ; Legally it means a voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice. . . . An act unclouded by fraud, duress, or sometimes even mistake. ... A degree of superiority amounting, at least, to a power of preventing . . . an agreement, or an agreement to, that which, but for the consent, could not exist, and which the party consenting has a right to forbid. . . .”
Many authorities are cited in support of these various definitions. See, also, the cases collected in 8 Words and Phrases, permanent edition, pp. 616, 628. These definitions seem to be of uniform application. I find no reason to say the framers of our constitution did not understand the meaning of the word when they framed the sec*349tion in question. In all of our opinions cited in the separate opinion of Mr. Justice Hoch the court has used, the word in harmony with the above definitions, as it did also in Morris v. Ward, 5 Kan. 239; Dollman v. Harris, 5 Kan. 597; Anderson v. Anderson, 9 Kan. 112, 116; Helm v. Helm, 11 Kan. 19; Ayres v. Probasco, 14 Kan. 175, 190, and in many other of our cases not cited in the separate opinion.
In view of these early decisions, which laid the foundation for the construction of the homestead provision of our constitution, it is hardly accurate to speak of Locke v. Redmond, 6 Kan. App. 76, 49 Pac. 670, affirmed by the supreme court, 59 Kan. 773, per curiam opinion, 52 Pac. 97, decided twenty to twenty-five years later, as being “the parent case.” However, it and others of our cases cited construed the word “consent” in harmony with the definitions hereinbefore set out.
It is said in the separate opinion: “But this court has approved division of property of husband and wife in which a homestead interest was taken away from one spouse and given to the other even though no divorce was granted,” citing Osman v. Osman, 86 Kan. 519, 520, 121 Pac. 327, and Wulf v. Fitzpatrick, 124 Kan. 642, 643, 644, 261 Pac. 838. It should be sufficient to say that no homestead question was presented to or decided by this court in either of those cases. In the Osman case the wife sued for alimony, in which grounds for divorce were alleged and proved, and the court set off to the wife certain property, “leaving to the defendant four quarter sections of land, including the homestead.” The wife, who had not been given the homestead, made no complaint of the decree. The husband, appealed and earnestly contended “that the judgment, so far as it awards specific property to the wife, is void for lack of power under the statute to do so.” This contention was considered and denied. In the Wulf case the wife previously had brought suit for divorce in which, for good cause shown, a divorce was not granted, but a division of the property was made in which certain property, a part of which had been the homestead of the parties, was set off to the wife. Thereafter the husband and wife lived separate and apart from each other. She died, leaving a will, to which he had not consented, and giving all the property to others. His contention was that under G. S. 1935, 22-238, relating to wills of married persons, he was entitled to one-half of the property, and that was the question presented to this court and determined. Our con*350stitution (art. 2, § 18) reads: “All power to grant divorce is vested in the district courts, subject to regulation by law.” This is as much a part of our constitution as is article 15, section 9. In Brandon v. Brandon, 14 Kan. 342 (1875), judgment had been rendered in favor of the husband for a divorce on account of the fault of his wife, but the court in its decree gave defendant the homestead and the custody of the children. The plaintiff appealed and contended that this violated his right under article 15, section 9, of our constitution. The court held:
“Upon granting a divorce, whether on account of the fault of the wife or the husband, the court has power to award to her the possession of the homestead.” (Syl. 111.)
In the opinion the court cited the statute with reference to' the authority of the district court in divorce cases and said:
“The assignment of the homestead to the wife is within the terms of this power. And if it be said that the protection of the constitution is placed around a homestead, it may also be said that the power to grant divorces is also by the constitution expressly given to the district courts, Const., art. 2, § 18. And the constitutional grant, of power to divorce', is broad enough to include the power to determine the subordinate and dependent questions of the1 family property, and the care and custody of the children.” (p. 346.)
We are cited to no case, and our own research discloses none, where it has been held the consent of a party, required by a statute or constitutional provision, can be enforced by a court decree. Indeed, there are decisions to the contrary. (See State, ex rel., v. Public Service Comm., 270 Mo. 429, 192 S. W. 958.)
Other legal inapcuracies in the separate opinion might be pointed out, but I shall not take time to do so.
The views of. the writer of the separate opinion may be prompted by the thought that plaintiff, and his family will be denied some financial gains if someone is not authorized to consent to the lease in question on behalf of the insane spouse. The value of the homestead, or whether it is used by its occupants so as to get the greatest financial returns, are not problems dealt with in the homestead provision of our constitution. The .primary purpose of the homestead provision was to provide a home for the family, secure from general creditors. (Morris v. Ward, 5 Kan. 239, 244; Monroe v. May, 9 Kan. 466, 476; LaRue v. Gilbert, 18 Kan. 220, 222.) If it is to be amended in those respects, such amendments should- be made in the manner provided in the constitution for its amendment and not *351by a decree of court. While it is likely our people would be reluctant to amend our constitutional provision relating to homesteads, if the amendment were so framed as to preserve security against general creditors but to enable a court, under conditions carefully specified, to authorize the guardian of an insane spouse to join with the other spouse in refinancing an encumbrance on a homestead, or executing an oil, gas, or other mineral lease thereon, I see no reason why the legislature should not siibmit it and the people approve it. I would be glad to render such aid as I could in the formation of such an amendment and in having it 'submitted to the people and adopted.