(concurring in result): I concur in affirmance of the judgment, on the ground that the guardian’s cause of action was barred by the statute of limitations. But I am impelled, because of the importance of the issue, to record again my view that the decisions referred to in the instant opinion (syl. ¶ 3) are unsound, and should be overruled. Those decisions hold, in effect, that a probate court has no power to give judicial consent for and on behalf of an incompetent spouse, ward of the court, to alienation of a homestead and thus provide the “joint consent” thereto with the competent spouse, required by the constitution. My views in this matter, together with analysis of the cases, were stated at length in connection with Starke v. Starke, 155 Kan. 331, 335 et seq., 125 P. 2d 738, and I have no purpose of again elaborating them. This brief comment is made only to indicate the basis of these views, which remain unchanged.
As was pointed out in connection with Starke v. Starke, supra, neither in the parent case of Locke v. Redmond, 6 Kan. App. 76, 49 Pac. 670, nor in the later cases which followed its holding, does it appear that the question of what constitutes “consent” within the meaning of section 9, article 15 of the constitution which requires “joint consent” of husband and wife where that relation exists, was ever presented or considered. It is of course clear that the consent to *367alienation must be joint, but I find nothing in the constitutional provision which precludes a probate court from acting for and on behalf of its ward and giving “consent” for him where it appears, upon hearing, that it is clearly to the interest of the incompetent ward for the court to do so. In fact, to deny to the probate court in the case of a homestead the power to give “consent” for and on behalf of its ward, which it exercises in countless other important cases on behalf of the ward, is to cripple the court’s protective arm, not only under the statutes but under the constitution- itself which places the estates of incompetent persons in the care of the probate court. (Art. 3, sec. 8.)
The effect of Locke v. Redmond, supra, was to insert the word personal before the word consent in the constitutional provision, which in my opinion was not only legislation by the court but has brought, in many instances, glaring results destructive of the very protection which the benign purpose of homestead exemptions was intended to provide. The grotesque result of such construction of the constitutional provision is that where one spouse is competent and one is incompetent, there can be no alienation, even with approval of the court, unless the incompetent spouse gives a personal consent which, forsooth, he is unable to give! Under this impasse, thus created, so many instances developed where the interests of the incompetent spouse were violated — such as the inability of a competent spouse, with consent of the probate court, to lease for oil development homestead land from which oil was being drained by wells on adjoining land — that the legislature in 1943 submitted a constitutional amendment (adopted in November, 1944) which specifically provided that in the case of an incompetent spouse his duly appointed guardian might be authorized to execute or renew a mortgage, under certain conditions, or to execute a mineral lease on the homestead. It may be argued that this amendment, by virtue of affording relief in these particular cases, excludes by implication judicial consent to alienation, for and on behalf of the incompetent ward, in all other cases. Conceding force in that argument, I do not think the result suggested necessarily follows. The amendment makes sure, in spite of our old decisions, that in those particular cases relief may be had. A true construction, of the constitution, in my opinion, would make relief possible in other cases, just as important, where patent injury to the interests of an incompetent spouse now results.
*368In the instant case, the wife has been insane and confined in the state hospital for more than thirty-five years. In October, 1932, nearly twenty years after his wife became insane, the husband desired to sell the homestead and after notice and hearing convinced the probate court of the propriety of doing so and the court directed the guardian to execute a deed, thus providing, by judicial consent, as I view it, the “joint consent” required by the constitution.
One other word. We now say that while the conveyance was “void” under the decisions, .action by the guardian to recover is barred by the statute of limitations. I agree that the legislature may, by a statute of repose, provide a bar to actions to set aside even a void judgment. But we strongly intimate that a different result might be reached in an action to set aside the guardian’s deed if brought by the incompetent wife or by her heirs, in case she should be restored to sanity. A cloud is left hanging over title to the land, conveyed upon order of the court more than fifteen years ago. This unfortunate result, disturbing to land titles in other cases as well, is but another illustration of the unhappy results flowing from the old decisions herein referred to.