CHAPTER XXIII .

THE HOMESTEAD IN

$ 378 . The homestead in general. $ 390 . Usually husband and wife 379 . Who may have a home must concur in the trans stead - Not necessarily a fer . married person only . 391 . Effect of non - compliance 380 . But restraints on its alien with statute . ation apply usually to 392 . Effect of non - compliance married persons only . with statute — The alien 381. Restraints on alienation ation void in many states . apply usually to residents 393. Effect of wife's insanity . only . 394 . Subsequent abandonment 382 . Occupancy generally essen will not make the con veyance tial — " Constructive occu valid - Nor death pancy . " or divorce - Transfer by 383 . Occupancy - Abandonment wife alone . — “ Temporary absence .” 395 . To what extent husband 384. Occupancy as a home - Use may lease - Sell timber for business purposes . rights of way . 385 . The selection of the home. 396 . The defective conveyance

stead — By record — By valid as to the excess over occupancy . homestead . 386 . The limits of the home- 397 . Non -compliance with stat stead . ute does not make alien 387 . May be a homestead in an ation void in some states . estate less than fee sim 398 . The mode of manifesting ple - Joint estates . consent to the alienation 388 . Owner of a homestead may of the homestead . alienate it unless re 399 . The acknowledgment to the strained — Partial re conveyance of the home straints . stead . 389 . Some restriction on volun 400. Conveyance of the home tary alienation usual. stead between husband and wife .

§ 378 . The homestead in general. — Certain real prop erty may become, under the of most states , a “ home 460 $ 378 THE HOMESTEAD . 461 stead ," and , as such , may have legal characteristics dis tinguishing it from other . Provisions concerning the homestead exist in the con stitutions of about one-third of the states , and in most of

these statutes also have been enacted for carrying the con ; - stitutional provisions into effect in the other states the by subject is regulated statute alone .

The general object of these laws is to protect the family , , in the possession and enjoyment of a home secure not , only from the claims of creditors but from the improvi

dence of the head of the family .

For the attainment of this object the laws generally

provide :

1 . That the homestead shall be exempt from sale on

execution to pay the debts ( with certain exceptions ) of its owner ;

2 . That the owner may not convey or incumber it as

freely as he may convey or incumber his other real prop

erty ;

Less generally it is held : , by 3 . That the owner may not dispose of it will this inhibition being usually implied from the statute rather than expressly provided for . 2

1 The states which seem to have no homestead in the technical sense , , of the term are Delaware , Indiana Maryland Pennsylvania and Rhode

Island . , , In these states certain real property as well as personal may be ex ,

by allowing empt from sale for the payment of debts but the laws , , . " this exemption are not properly speaking " homestead laws

The homestead provided for by state laws is to be distinguished from

, by that provided for by the federal laws under which land is donated . the United States to settlers on certain conditions ,

family it being as a provision has 2 The homestead considered for the been held often that surviving wife and children cannot be deprived of ; , 4 84 . v . .

of 64 it by the will the husband and father Bell Bell Ala ; ; , ; 35 . 21 S . W . . v . So . 189 Kleimann Geiselmann 114 Mo 437 796 Am ; ; , ; v . S . W . . v . St . R . 761 McCrae McCrae 103 Tenn 719 54 979 Hall ; , ; ; , 18 . . W . 82 ' s . 17 S . Fields 81 Tex 553 Hatch Estate 62 Vt 300 Atl , , ; ; 814 Sulzberger v . Sulzberger 50 Cal . 385 Pratt v . Pratt 161 Mass . ; 276 37 N . E . 431 . 462 THE LAW OF CONVEYANCING . $ 378

While the general design of the homestead laws is the same there is great variance in the constitutional and stat utory provisions, the variance existing not only as to matters of detail but often as to matters of fundamental importance affecting the nature of the homestead . The courts , moreover , have often placed different con structions upon these laws, even where they are similar in terms. For these reasons, and because the statutes have been frequently amended , only the leading principles can be here stated , with a reference to such exceptional stat utes or decisions as are important in themselves or serve to make more distinct the general rules . In practice it is necessary to refer to the details of the controlling law and to the latest decisions in the jurisdiction where the land lies . In conveyancing it becomes necessary , because of these laws, to consider something more than the mere title and possession of real property attempted to be conveyed , for if the property is a homestead a special release or waiver will sometimes be required , or, at least, there will be found special restraints on alienation not applying to other real property . Homestead laws have generally been liberally construed in order that their purpose may be made effectual ; that is, they have been construed liberally as to the owner and his family , but strictly as to the owner ' s creditors and purchasers from him . They are not considered as in der ogation of the , because at common law real property was not liable to be taken on execution for the payment of debts .3

In determining whether real property is a technical homestead and to what extent the general rules of con veyancing are affected by this fact , the chief points in the controlling law to notice are : (a ) who may have a home

53 Bl. Comm . 418 , 419 ; Poll. & Mait. Hist. Eng . L ., II, p . 596 . § 379 THE HOMESTEAD . 463

stead , (b ) in what property and to what extentmay it ex

exist , ( c ) how may it be selected , (d ) what restraints , if any , are placed on the alienation of the homestead . In considering some of these matters those points re lating to alienation only will be generally discussed , and

many points which relate to the homestead in its charac to . be

as property ter exempt alone will not referred

· § 379 . Who may have a homestead — Not necessarily a

married person only . — The chief object of the homestead ,

laws being to protect the family home the person entitled , , to the homestead must be in the majority of the states

the head of a family or a householder having a family . ; Such a person is generally a husband or father but one , may be married without being the head of a family or

one may be the head of a family without being married . , So far as restraints on alienation are concerned they af , , fect generally those only who are married . But the home , stead is not necessarily dependent on marriage and some

statutes provide for certain formalities in conveying land

impressed with the character of a homestead without re

gard to whether the owner is at the time married or

single . , For example in Illinois every householder having a

family is entitled to an " estate " of homestead to the ex

tent in value of one thousand dollars in land owned and , occupied as a residence which can be aliened only in the by mode prescribed statute . Among the statutory formal

ities required are a releasing clause in the body of the

conveyance and a similar clause in the certificate of ac

knowledgment . " , , If the property therefore does not exceed in value the ,

amount named in the statute the estate embraces the en , tire title and interest of the householder therein leaving , ,

* Illinois R . S . ch . 52 $ 1 . , , , • Illinois R . S . ch . 30 $ $ 12 28 . A like statute requiring this special , ,

release exists in Wyoming R . S . 1899 § 2770 . 464 THE LAW OF CONVEYANCING . $ 380 no interest in him which he can alien by a not con forming to these requirements ;6 and while there is a stat ute of the state requiring additional formalities where the owner is married , the requirements mentioned above are applicable to those having a homestead who are not at the time married , and conveyances by such persons not conforming to these statutory requirements are nullities so far as the homestead is concerned . ?

§ 380 . But restraints on its alienation apply usually

to married persons only . - In many other states an un• , is a to married person may be entitled homestead which

exempt from a forced sale for the payment of most of its , , , owner ' s debts : for example in Alabama Michigan Min nesota , North Carolina , Wisconsin and probably other , states the exemption is expressly allowed to " any resi , dent of this state ” 8 and under such laws the benefits of

the exemption are not restricted to married persons or to

heads of families . , The exemption may be allowed as in Missouri and , , , Vermont to a “ housekeeper or head of a family ” 10 or , as in Arkansas to " a resident of this state who is mar , ried or the head of a family " 11 and under such laws one

may be entitled to the exemption whether married or , single and it would seem whether man or woman . 12 , In all these cases while an unmarried person may have , , a homestead as in Illinois he is not required as he is 6

property is to

grantee in Unless the abandoned the pursuance of

such conveyance . , , ; ? Davis v . McCullouch 1901 192 Ill . 277 61 N . E . 377 . , , ; , ; , , ; & . . . 10 $ 2 . . $ . . Ala Const art Civ Co 2033 Mich Const art . 16 $ 2 , ; , ; , , . L . § . . $ N . C . Com 1897 10362 Minn Stat 1894 5521 Const . art . x , ; § 2 Wis . Stat . 1898 $ 2983 . , , ; ; ' Myers v . Ford 22 Wis . 139 Gardner v . Batts 114 N . C . 496 19 S . ; , ; . . . 6 So 87 v . E . 794 Beard Johnson Ala 729 383 , , ; 10 Mo . R . S . 1899 $ 3616 Vt . R . L . 1894 $ 2179 . , ; , 11 . . . 9 $ 3 S . & H .

Dig . . Ark Const art Stat 1894 § 3710 . , , , ; ; 12 Hyser v . Mansfield 1899 72 Vt . 71 47 Atl . 105 Broyles v . Cox , ; ; 1899 153 Mo . 242 54 S . W . 488 77 Am . St . R . 714 . $ 381 THE HOMESTEAD . 465 there to execute a conveyance with any special formalities unless he is married ; and this is generally so , the Illinois requirements being , it seems, exceptional .

§ 381. Restraints on alienation apply usually to resi dents only . - Generally to entitle one to a homestead in a particular state he must be a resident of that state, so that when one owns real property in a state other than that of his residence it is not generally necessary when he con veys it to consider the homestead laws of the state where his property lies . While this is true, generally , he may , nevertheless , according to some decisions, acquire a resi dence (not a “ homestead " ) in one state and yet his

former home in another state may still retain its home , ; by stead character if it is occupied as a home his family , , his conveyance therefore of this property would seem to by be governed the homestead law of the state where it , , lies - - the state of his former though not his present resi :

dence . 13

§ 382 . Occupancy generally essential — “ Constructive , by occupancy . ” — To constitute a homestead it is either by express provision of the constitution or statute or judi , cial decision where such provision is wanting generally

necessary that the premises in question be occupied and by used as a home the owner . 14 Some courts have been

more strict than others in this regard and have held that to actual occupancy is essential the creation and continued

existence of the homestead . 15 , But owing to the liberal construction placed upon the , ; 13 Savings Bank v . Kennedy 58 Iowa 454 12 N . W . 479 .

realty though occupied by is in · Exempt not its owner some states , . in if

” especially called “ homestead used connection with the home , , ; ; , , y . 71 . Folsom v . Asper 1902 25 Utah 299 Pac 315 Howell Jones 1892 ; , ; ; . E . . 26 S . C . 1 S v . 91 Tenn . 402 19 S . W . 751 Vance Hill 227 897 ; , ; , . St . R . 18 So . 54 . v . 15 Turner Turner 1894 107 Ala 465 210 Am ; ; , ; . W . 78 43 N 110 First National Bank v . Hollingsworth Iowa 575 536 , ; , ; y H . v . N . A . 92 . 6 L . R . Currier Woodward 62 63 Quehl Peterson , ; ; ; 47 Minn . 13 49 N . W . 390 Boreham v . Byrne 83 Cal . 23 23 Pac . 212 .

30 - BREWS . CON . 466 THE LAW OF CONVEYANCING . § 382

homestead laws by many other courts , in order to effect

the law 's “ humane purpose ” of preserving a home for the family , it is by no means universally necessary that there shall be actual occupancy and use of premises as a

home, to constitute them a homestead . A legal home stead may in many states be created provided land is held

with the intention of making a home thereon within a reasonable time, such intention being manifested by some

acts of home preparation on the land — though such acts are often only slightly indicative of this intention . For example , though in Michigan and Wisconsin the laws give the homestead character to certain lands “ owned and occupied by a resident of the state " it has

been held in Michigan that a vacant lot situated on the main business street of a village, purchased by husband and wife who erect on it a store building , part of which they intend to occupy as a dwelling , becomes a home stead , so that it cannot be made subject to a mechanic 's for the building so erected under a executed by the husband alone, though made with the wife 's

knowledge and consent ; 16 and in Wisconsin , that vacant,

uncleared land may become a homestead from the date of , its purchase if obtained with the intention on the pur ,

chaser ' s part of making it such and partially prepared , by for occupancy though not occupied the owner or his , ,

family for three years during a year of which period it by . 17 a is occupied tenant

Many other decisions to the same general effect have

been rendered under homestead laws similar in terms as

to the requirement of occupancy to those of Michigan and ; , Wisconsin “ constructive occupancy " as it is sometimes , ,

called being regarded as sufficient actual occupancy as a

home not being deemed essential . 18 , , ;

16 Jossman v . Rice 1899 121 Mich . 270 80 N . W . 25 . , , ; ; 17 v . 93

Kirby . 67 N . W . 57 . Shaw 1896 Wis 379 700 Am St . R . 927 . , , ; ; ; 18 Gill v . Gill 1901 69 Ark . 596 65 S . W . 112 86 Am . St . R . 213 55 ; , , , ; ; L . R . A . v .

Upton 60 . 1 55 191 Coxen 1898 Kan Pac 284 72 Am . St .

R . 341 . § 383 THE HOMESTEAD . 467

The reason given for such decisions is that “ the acqui sition of a completed homestead is seldom instantaneous. Generally it requires years of industry and economic liv ing. The purpose necessarily precedes the inception of the work , and that is followed by successive steps until completion is attained . * * * These successive steps

in the acquisition of a completed homestead ,made in good faith , come within the spirit of the statute and are each

entitled to the protection afforded by it . " 19

§ 383 . Occupancy — Abandonment - Temporary ab

sence.” — As actual occupancy is not in all cases required , for the creation of a homestead so when the homestead

character has once been fixed it is not always dependent , upon an actual continued and continuous personal resi by . its as a dence or occupation home owner ,

The homestead may be abandoned and the property , then ceases to be exempt as a homestead and any re

straints as to its alienation under homestead laws no . 20 it longer apply to an it of But a temporary absence the owner from with

intention on his part of returning to it as a homestead is , not such an abandonment 21 and under this rule it has

been held that an owner ' s absence from his homestead , , , for two years 22 three years 23 or even six years 24 will not , ; 19 Scofield v . Hopkins 61 Wis . 370 21 N . W . 259 . But mere inten , , no a premises at tion to make the some future time homestead with , , preparatory acts will not be sufficient " occupancy . ” Feurt v . Caster , , , , ; ; ; 1903 174 Mo 289 73 S . W . 576 Davis v . Kelly 1901 62 Neb . 642 87 ; , , ; ; N . W . v . 11 . 347 Ball Houston 1901 Okla 233 66 Pac . 358 Brokken , , ; v . Baumann 1901 10 N . D . 453 88 N . W . 84 . , , ; 20 Smith v . Kneer 1903 203 Ill . 264 67 N . E . 780 . , , ; ; 21 Rand Lumber Co . v . Atkins 1902 116 Iowa 242 89 N . W . 1104 , , , ; ; Blumer v . Albright 1902 64 Neb . 249 89 N . W . 809 Kelly v . Duffy

31 Ohio St . 437 . , , ; Gardner22 v . Gardner 1900 123 Mich . 673 82 N . W 522. . , , ; 23 Minnesota Stoneware Co . v . McCrossen 1901 110 Wis . 316 85 N . ; W . 84 . . R . 1019 Am St 927 . , , ; 24 Kaeding v . Joachimsthal 1893 98 Mich . 78 56 N . W . 1101 . 468 THE LAW OF CONVEYANCING . § 384 amount to an abandonment if during such absence he had a continuing intent to return and occupy it as a home stead . The practical importance of such liberal doctrines as to occupancy will be realized when it is remembered that in many of the states where they prevail no other notice of the homestead character of real property is given to per sons who may deal with it as creditors of, or purchasers ; from , its owner than that furnished by occupancy that ,

is no record is required or made of the fact that the owner

claims the property as a homestead . 25

§ 384 . Occupancy as a home - Use for business pur

poses . — The occupancy ( actual or " constructive ' ' ) must be , , ,

as a home and generally speaking occupation of prem ises for business purposes will not give them the character

of a homestead . 26

But where part of the premises occupied as the owner ' s , home is used for business purposes the general rule is

that they may still be his homestead in spite of such par , tial use for business . For example the use of about one

half a house by a tinner as a tinshop and the use of the

other half both for ordinary living purposes and for the , millinery business of the tinner ' s wife do not destroy the

homestead character of the premises in whole or in part . 27 ,

In Michigan even if the premises are primarily used , by the owner in his business as hotel proprietor they

may still be his homestead if also used as the sole home , of himself and his family 28 and in other states nearly the , ,

25 See post § 385 n . 35 . , 26 Unless the constitution or statute authorizes a business homestead

as in Texas . , , , , ; 87 Ogburn ' s Estate 1894 105 Cal . 95 38 Pac . 498 . See also Berry v . , , , , ; ; y Meir 1902 70 Ark . 129 66 S . W . 439 Marx . Threet 1901 131 Ala . ; ; , , ; ; 30 So . v .

Groneweg 95 N 340 831 Beck 1895 Iowa 717 62 . W . 31 , , ; Sever v . Lyons 1897 170 Ill . 395 48 N . E . 926 . , , ; ; 28 Lamont v . Le Fevre 1893 96 Mich . 175 55 N . W . 687 King v . , , ; ; Welborn 1890 83 Mich . 195 47 N . W . 106 9 L . R . A . 803 . $ 385 THE HOMESTEAD . 469

same rule has been adopted . 29 Sometimes a distinction has been made, however, between the use of a residence

for hotel purposes and the use of a hotel for residence ; purposes and in determining whether or not the prem , ises are a homestead consideration has been given to the ,

primary and principal use and if the premises are thus

used primarily in the owner ' s business of keeping an ho , tel they have been held not to be his homestead though

he and his family may dwell on them . 30 By By § 385 . The selection of the homestead - record -

occupancy . — Mere occupation and use of certain property

as a home do not in all the states having homestead laws

constitute the property so occupied and used a technical

homestead . , To render it such there must be in about one third- of , the states somesort of recorded claim or notice or declara , by by tion the owner ( or in some cases his wife ) that the

property described in the notice or declaration is a home

stead within the meaning of the statutes making it exempt

from certain debts of its owner . 31 Occupancy and use as

a home are very generally necessary to impress the prop , erty with the homestead character 32 butwhere this method by of making some record of the selection madeis necessary ,

statute mere residence and use as a home are not of them , selves enough without the statutory declaration 33 and

where this record or declaration is essential to establish the , , ; ; 29 Cass Co . Bank v . Weber 1891 83 Iowa 63 48 N . W . 1067 32 Am . ; ; , , St . R . 288 12 L . R . A . 477 Harriman v . Queen Ins . Co . 49 Wis . 71 , , ; ; ; 84 5 N . W . 12 Kiesel v . Clemens 1899 6 Idaho 444 56 Pac . 84 . , , ; ; 30 v . . 35 . McDowell Creditors 1894 103 Cal 264 Pac 1031 42 Am . St . ; , , ; R . 114 Beronio v . Ventura & c . Co . 1900 129 Cal . 232 61 Pac . 958 . , , ; ; v .

King 83 . 47 N . W . 9 But see Welborn 1890 Mich 195 106 L . R . A .

803 . , , , ,

31 Among such states are : California Colorado Connecticut Georgia

Idaho , Louisiana , Maine , Massachusetts , Montana , Nevada , New York , , , ,

Utah Virginia Washington West Virginia . , , 32 Ante $ $ 382 384 . , , ; $ 3 Bank of Woodland v . Oberhaus 1899 125 Cal . 320 57 Pac . 1070 . 470 THE LAW OF CONVEYANCING . § 386

homestead and has not been made , restraints which apply to the alienation of the legal homestead do not apply to the alienation of property merely because it is a home.34 But in the majority of states having homestead statutes no special record or written declaration of any kind need ,

be made in order to select and establish a homestead , for

unless the constitution or statute requires some special , of or form dedication selection occupancy alone of a piece

of land as a home constitutes it a homestead and is notice

to every one of its selection as such . 36

§ 386 . The limits of the homestead . — The extent of the , by homestead is generally limited statute . The methods , however of fixing its limits are so varied that it is im

practicable to attempt to set them out in any detail . Its , extent may be fixed in one state by its value or in another , by by its area or in another its value and area . by Where its limits are measured its pecuniary value , , , this may be as high as $ 5 000 ( as in California Idaho , , Nevada and the Dakotas ) or as low as $ 500 ( as in Maine

New Hampshire and Vermont ) . , by Where its extent is limited its territorial area or the , number of acres a greater area is generally allowed where

the property is rural or farm property than where it is , urban property : 40 80 or 160 acres being common limits , in the former case while in the latter the quantity is often

restricted to one lot of certain dimensions . , In a few states no monetary limitation is fixed provided by the property is of the quality or area designated stat , ute — as in Kansas Minnesota and Texas ( under certain

circumstances ) . 36 , , ; ; 84 Lowenthal v . Coonan 1902 135 Cal . 381 67 Pac . 324 Child v . , 15 . Singleton Nev 461 . , ; 85 Evans v . The Grand Rapids & c . R . Co . 68 Mich . 602 36 N . W . , , , , ; ; y 687 Barton . Drake 21 Minn 299 Feas ' s Estate 1902 30 Wash ; 51 70 Pac . 270 . , , , g

$ . v . Swayne may of any e . . 88 Improvements be value 60 000 Chase ; in . 30 S . W . 88 Texas 218 1049 Until 1901 there was no limit Wiscon , sin Wis( . L . 1901 ch . 269 ) . § 387 THE HOMESTEAD . 471

§ 387 . May be a homestead in an estate less than - Joint estates. While the statutes usually require that the real property claimed as a homestead shall be " owned ” by the claimant , it is not generally necessary that he have title in fee, for the character of his estate is not designated in the statutes .

There may be a homestead in a ,87 and , as a lessee may have a homestead in lands leased and occu pied by him , an of the lease without his wife ' s concurrence (which is usually necessary for any aliena tion of the homestead ) is invalid ;38 as is also an assign ment of a contract under which land is held and occupied as a homestead .39

Where land is held by husband and wife in common or

jointly , 40 or as tenants by the entirety ,41 it may be a home stead , and according to some decisions an occupying ten ant in common may in any case have a homestead ,42 though this doctrine is denied by others .43

A partner , it is generally considered , has no such indi vidual and separate interest in partnership property as to enable him to acquire a homestead in it . 44 ; 87Kendall v . Powers , 96 Mo. 142 ; 8 S . W . 793 ; 9 Am . St. R . 326 ; , . . 93 2 So . Tyler v . Jewett 82 Ala 905 , , ; 88 Maatta v . Kippola 1894 102 Mich . 116 60 N . W . 300 . , ; ; 39 Rawles v . Reichenbach 1902 ( Neb . ) 90 N . W . 943 Anderson , , ; ; v . Cosman 1897 103 Iowa 266 72 N . W . 523 64 Am . St . R . 177 . A

chattel mortgage may not be made on a house owned and occupied as a , homestead standing on leased land without compliance with statutory , requirements as to the alienation of a homestead . Gage v . Wheeler ; ; , . 21 N . E . v .

Hogan 23 129 111 197 1075 Manners Kan . 551 . , 40 Lozo v . Sutherland 38 Mich . 168 . , , ;

" 1 Cole v . Cole 1901 126 Mich . 569 85 N . W . 1098 . , , , ; ; 4² Thompson v . King 54 Ark . 9 14 S . W . 925 Giles v . Miller 1893 ; ; . . 38 . St . R N . W . . 54 36 Neb 346 551 Am 730 , ; 48 Howes v . Burt 130 Mass . 368 Case Threshing Machine Co . v . ; , . 16 S . W . . Joyce 89 Tenn 337 147 ; ; , , . 64 N . W 106 .

Co . v . Chapin 334 44 Michigan Trust 1895 Mich 384 ; , ; , 58 Am . St . R . 490 Hoyt v . Hoyt 69 Iowa 174 Trowbridge v . Cross 117 ; , ; , Ill . 109 but see Hunnicutt v . Summey 63 Ga . 586 Clements v . Lacy 51

Texas 150 . 472 THE LAW OF CONVEYANCING . § 388

§ 388. Owner of a homestead may alienate it unless restrained - Partial restraints . — The mere exemption of a homestead from a forced sale does not of itself restrict the

power of alienation by the owner , and in the absence of constitutional or statutory provisions restraining him from freely conveying the homestead , he has as full a right to convey it as to convey any other property . So, for example , under the former laws of Missouri , Nebraska and Utah , which provided for the exemption of the home

stead from forced sale , but placed no restraint on its alien , by ation 45 a husband could freely convey lands owned

him and occupied as a homestead without the consent of , his wife though subject to her dower or analogous 46 rights .

So also there may be merely restrictions against cer , in 4a as as to tain kinds of conveyances but none others

Kentucky a married man owning a homestead may

sell and convey it absolutely without consulting his , , wife but he may not mortgage it without her joinder 47

and in rare instances mortgages of the homestead of a

married man are prohibited entirely except for the pur

chase price of the premises . 48

Special restraints as to mortgaging lands impressed

with the homestead character are probably due to the fact , , 45 Except in Missouri where the wife had filed a claim of homestead , under R . S . 1889 $ 5435 . , , ; ; , 46 v .

Higley 10 37 . Cook 1894 Utah 228 Pac 336 Greer v . Major , , ; ; 1893 114 Mo . 145 21 S . W . 481 Rector v . Rotton 3 Neb . 171 . See ; ; , 66 . 8 . St . R . . 4 S . E . . 30 W . Moran v Clark Va 358 303 Am The , present statutes in Missouri Nebraska and Utah require the wife ' s con , , , ; ; sent : Mo . R . S . 1899 $ 3616 Gladney v . Sydnor 1903 172 Mo . 318 , ; ; ; 72 S . W . 554 60 L . R . A . 880 Neb . Com . Stat . 1901 $ 3259 Utah R . S . ,

1898 § 1155 . by 16a in changed This was also true Colorado but has been a very re , , a . . cent statute . Colo . L . 1903 pp 153 247 Now husband and his wiie

must join in any conveyance . , , ; ; 17 Wright v . Whittock 1892 18 Colo . 54 31 · Pac . 490 Gullett v . Ar , , ; ; , , v . 44 S . W . nett 1898 19 Ky . Law 1892 957 Carr Winlock 1900 109 ; in as 59 S . W . . Ky . 488 747 Such restrictions exist New York and Ohio , , ; $ . R . S . . § N . Y . . : relate simply to mortgages Civ Co 1404 Obio 5442 , , ; ; 48 See Parrish v . Hawes 1902 95 Texas 185 66 S . W . 209 Maxwell , , ; v . Roach 1901 106 La . 123 30 So . 251 . An unmarried man may mort , . S . W . 46 v .

: 910 gage his homestead in Texas Davis Converse § 389 THE HOMESTEAD . 473

that property is generally mortgaged for much less than

its full value , and may thus be lost to its owner and his , family without adequate return whereas an absolute con

veyance is generally made for nearly the full value of the

property conveyed .

§ 389 . Some restriction on voluntary alienation usual .

- But while is not necessarily in

cident to the exemption of the homestead from sale on exe , cution the purpose of the homestead laws is generally by considered to be promoted the imposition of some re

straint on the owner ' s right of transfer .

In those states where some sort of recorded declaration

by the owner is necessary to secure to him the exemption , of certain property as a homestead he voluntarily accepts

such restraints as the statute imposes on his freedom of ; by transfer declaring and recording his homestead 49 and

in those states where he obtains the exemption by occu

pancy without such a record the restraint is accepted by , , by him when he places himself becoming a householder

in the class entitled to the exemption on the one hand and

subject to the restraint on the other .

$ 390 . Usually husband and wife must concur in the

transfer . — Themost usual constitutional or statutory pro

vision which amounts to a restraint on the freedom of

alienation of the homestead is the requirement that hus

band and wife ( if the owner be married ) shall unite in the

conveyance .

This requirement appears in some form in most of the ,

states having homestead laws though the terms in which

the requirement is expressed vary greatly . The provision

may be that husband and wife “ must execute and ac , knowledge " the same instrument or that they must , “ concur in and sign the same joint instrument ” or that , , ; 49 Virginia and Tenn . Coal Co . v . McClelland 1900 98 Va . 424 36 S .

E . 479 . 474 THE LAW OF CONVEYANCING . § 391 there must be “ joint consent " of husband and wife, or that the husband 's conveyance shall not be valid “ with out the signature of the wife . '' 50 The husband or wife who joins in the instrument con veying or incumbering the homestead by the other spouse who has the legal title, usually conveys nothing by this joinder , for having , strictly speaking , no estate in the

homestead , the joinder in the conveyance is not for the

purpose of transferring an interest in land but is simply

a means of manifesting that consent to the transfer which

the statute requires . 51

The wife ' s joining in her husband ' s homestead convey , ance is not analogous to her release of dower because he

may convey a valid title to his own lands subject to her , dower interest while he may not convey any title ( in . 52 to many states ) the homestead without her consent

§ 391 . Efect of non compliance- with statute . - The

effect of the alienation of the homestead when the

instrument of alienation is not executed in accordance

with the statutory requirement as to the joinder of hus . ! , band and wife is not the same in all the states even where

the statutory provisions are expressed in similar terms .

The restriction on alienation by the husband alone is

considered in many of the states having homestead stat ; 50 By such provisions it is intended that the real wife shall concur a

purchaser or mortgagee takes the risk of the pretended wife ' s being the , , . v . : actual wife of the grantor Security Loan Co Kauffman 1895 108 , ; ; Cal . 214 41 Pac . 467 Sherrid v . Southwick 43 Mich . 515 . But see as , ; to a non resident- deserted wife : Stanton v . Hitchcock 64 Mich . 316 , . . 50 91 Black v . Singley Mich , , ; ; 51 Hamilton v . Detroit 1901 85 Minn . 83 88 N . W . 419 Pounds v . , , ; ; , ; 70 . 14 So . 22 v . 86 Clarke 1892 Miss 263 Creath Creath Tenn . 659 , ; 8 S . W . 847 Godfrey v . Thornton 46 Wis . 677 . 52 Although it a a has been sometimes said that wife has right or in , , terest in the homestead title to which is in her husband which she v . “ . ” may protect and which she may refuse to release Rogers Mc , , ; ; Farland 1893 89 Iowa 286 56 N . W . 504 California Fruit Trans . Co . , , . . R . 79 v . Anderson 1897 Fed 404 § 392 THE HOMESTEAD . 475 utes as applying to the land constituting the homestead

a certain amount of realty exempt from execution for the

payment of debts — which its owner is incapacitated from , transferring as he may transfer other property his disa , bility being established for the protection of the family , , and according to the views of some for his own protec

tion as well . 53 , , In other states however the restraint on alienation is

regarded as applying only to whatever right or interest in ; the homestead premises is necessary for family protection

and it is considered that it is not the alienation of the land , itself that is prohibited or restrained but the privilege of

occupancy and the right of exemption . 54

§ 392 . Effect of non compliance- with statute - The

alienation void in many states . - It follows from these

constitutional and statutory restraints on alienation that

the transfer or incumbrance ( except it be a purchase

money mortgage ) of land impressed with the character of by a homestead made the husband alone when the legal , , , title is in him is in many states an absolute nullity so

far as that land is concerned . It is not merely void as to , , the wife but as to the husband also and the grantee or

mortgagee acquires no title . 55 When the law makes his by sole alienation thus void he is not estopped 56 his deed , or mortgage to which his wife has not assented in statu , , tory form to dispute its validity for the general doctrine , of estoppel cannot apply to acts that are nullities and his to

is presumed grantee or mortgagee know that the hus ,

53 post $ See 392 . , 54 $ Post 397 . , , ; ; 55 Goodwin v . Goodwin 1901 113 Iowa 319 85 N . W . 31 Pritchett v . , , ; ; ; Davis 1897 101 Ga . 236 28 S . E . 666 65 Am . St . R . 298 Webster v . , , ; ; Warner 1899 119 Mich . 461 78 N . W . 552 Hubbard v . Sage Land , , ; ; & c . Co . 1902 81 Miss . 616 33 So . 413 Virginia - Tennessee Coal Co . ; , , . 36 S . E . 98 . v . McClelland 1900 Va 424 479 , , , 56 See post $ 394 note 68 as to estoppel when the conveyance is not ; , , , S . W . . 88 31 made void and see Marler v . Handy 1895 Texas 421 636 476 THE LAW OF CONVEYANCING . § 393 band cannot thus convey or mortgage the homestead

premises , 57 and the fact that his conveyance contains cov enants for title is held immaterial where the doctrine that the instrument of transfer thus made is void prevails. 58 Whether the restraint be regarded as imposed for the benefit of his wife and children , 59 or as imposed , not merely for their benefit and protection , but for his own protection as well ,60 he is, as to this land , under a disabil ity to convey as he may convey his other property .

§ 393 . Effect of wife ' s insanity . — The fact that his wife

is insane and residing in another state will not enable a

married man to mortgage his homestead without her joinder when the statute requires that the mortgage by shall be signed and acknowledged both husband and , wife 61 nor on the other hand will the insane wife ' s join

ing with him in his alienation render it valid when the

statute provides that husband and wife must “ concur ” , in and sign the same joint instrument 62 or that it shall

not be valid without her “ voluntary signature and as , sent ' * 63 nor may an insane wife ' s guardian act for her in

such cases in the absence of a statute authorizing him to

do so . 64 , , ; ; 57 Cowan v . Southern R . Co . 1898 118 Ala . 544 23 So . 754 Garner , , , , ; ; v . Black 1901 95 Texas 125 65 S . W . 876 Whitlock v . Gosson 1892 ; 35 Neb . 829 53 N . W . 980 . , , ; ; , 68 v . . 59 N . E . Stickel Crane 1901 189 III 211 595 Rogers v . Day , ; ; , ; 1898 115 Mich . 664 74 N . W . 190 Alt v . Banholzer 39 Minn . 511 40 ; N . W . 830 12 Am . St . R . 681 . , , ; 59 Gadsby v . Monroe 1897 115 Mich . 282 73 N . W . 367 . , , ; ; 60 v . 73 .

Harrington 50 . 87 Martin 1901 Vt 193 Atl 1074 Am . St . R .

704 . , , ; ; 61 Whitlock v . Gosson 1892 35 Neb . 829 53 N . W . 980 Anderson v . , , ; Stadlemann 1898 17 Wash . 433 49 Pac . 1070 . ; , . 80 . 16 N . W v . 67 Alexander Vennan 61 Iowa 160 , , ; ; 63 Thompson v . New Eng . Mort . Co . 1895 110 Ala . 400 18 So . 315

55 Am . St . R . 29 . , ; , p 64 Flege v . Garvey 47 Cal . 371 as to such statutes see ante . 423 . § 394 THE HOMESTEAD . 477

§ 394 . Subsequent abandonment will not make the conveyance valid - Nor death or divorce - Transfer by wife alone . — The result is that the subsequent abandon ment of the premises as a homestead will not render valid

a conveyance that was invalid when made;65 nor will the wife 's subsequent death 66 or divorce67 make it valid . 68 And in those states where husband and wife must both execute the conveyance , irrespective of which of them has the legal title , the same consequences in general will result from a conveyance by the wife alone when the title is in

her ,69 though in other states where there is no such re quirement as to execution by both of them in all cases , but simply one as to the wife 's execution or consent to her husband ' s alienation , it seems that she may convey the homestead without her husband 's joining with her if in those states she has capacity to so convey other real property .

65Gleason y . Spray , 81 Cal. 217 ; 22 Pac . 551; 15 Am . St. R . 47 ; Bru - . ner v. Bateman , 66 Iowa 488 ; 24 N . W . 9 ; American Savings & Loan ; ; Ass' n v . Burghardt , 1897 , 19 Mon . 323 48 Pac . 391 . 61 Am . St . R . 507 . , , Though on acquiring a new homestead the husband may be estopped ; by his sole deed previously made of his former homestead Marler V . ; , , . 31 S . W . Handy 1895 88 Texas 421 636 , ; ; 66 Shoemaker v . Collins 49 Mich . 595 14 N . W . 559 Martin v . Har ; ; , , . . 87 . St . R 50 . rington 1901 73 Vt . 193 Atl 1074 Am 704 , ; ; ; 67 Alt v . Banbolzer 39 Minn . 511 40 N . W . 830 12 Am . St . R . 681 ; , , . . 72 . Lange v . Geiser 1903 138 Cal 682 Pac 343 , , , 68 In the recent case of Adams v . Gilbert 1903 ( Kan . ) 72 Pac . 769 it , is held that while the husband ' s deed without his wife ' s consent is in , effectual while the property remains a homestead he may be estopped by , it or may confirm it by silence after his wife ' s death . It is to be noted that the Kansas constitution and statute provide simply that the home

stead “ shall not be alienated without the joint consent of husband and , wife when that relation exists ” and though alienations not so con , sented to have been called void ( Schermerhorn v . Mahaffie 34 Kan .

108 ) they would seem to be voidable merely . , , ; ; ,

69 Lange v . Geiser 1903 138 Cal . 682 72 Pac . 343 France v . Bell 52 ; ; , . 57 N . W . v .

Neb 984 41 71 Low Anderson Iowa 476 . , , ; TỪ Morley Bros . v . National Loan & c . Co . 1899 120 Mich . 171 78 N . ; , W . v . 34 1078 Price Osborn Wis . 34 . 478 THE LAW OF CONVEYANCING . $ 395

§ 395 . To what extent husband may lease - Sell tim ber — Grant rights of way . The statutes of most states are broad enough in their terms to restrain the husband from transferring any interest in the homestead premises without his wife 's concurrence in the form prescribed by statute . He may not generally , for example , lease the premises without her properly expressed consent; at least this would seem to be the general rule when , by the terms of the lease, the lessee 's occupation would interfere with the use of the premises as a homestead , or when the lease gives the lessee the right to remove substantial portions

of the realty - as minerals and timber — and creates en cumbrances on the premises by giving him extensive

rights of ingress and egress . 71 Nor may the husband alone convey the minerals or timber in and upon the premises , at least when the conveyance is in general

terms and is in reality an alienation of a substantial part

of the property ; 72 though it has been held that a by the husband alone to remove ore from a part of home

stead lands is not invalid when their possession for the uses of the homestead is not interfered with , especially when the wife hasknowledge of the expenses incurred by

the licensee under the license and makes no objection .73 It appears also that under most of the homestead stat

utes a husband may not grant by his sole deed a right of

way across the homestead premises ,74 nor may he alone ; ; 71Pritchett y . Davis , 1897 , 101 Ga. 236 28 S . E . 666 65 Am . St . R . , , , , , ; ; 298 Wea Gas Coal etc . Co . v . Franklin Land Co . 1895 54 Kan . 533 , , , ; ; 38 Pac . 790 45 Am . St . R . 297 Barrett v . Cox 1897 112 Mich 220 : 70

N . W . 446 . , , ; 72 Virginia - Tennessee Coal Co . v . McClelland 1900 98 Va . 424 36 S . , , ; ; ; E . 479 McKenzie v . Shows 1892 70 Miss . 388 12 So . 336 35 Am . St .

R . 654 . , 78 Harkness v . Burton 39 Iowa 101 . , , ; ; 34 Cowan v . Southern R . Co . 1897 118 Ala . 354 23 So . 754 Evans ; , ; v . 36 N . W . . 68 . & c . R . v . Grand Rapids Co Mich 602 687 Pilcher , ; ; ; Atchison & c . R . Co . 38 Kan . 516 16 Pac . 945 5 Am . St . R . 770 , , ; Gulf & Ship Isd . R . Co . v . Singleterry 1901 78 Miss . 772 29 So . 754 . § 396 THE HOMESTEAD . 479

dedicate a portion of them to the public as a street ; 75 though it has been held that where the grant of an ease ment, or of a right of way to a railroad , does not interfere with the actual use and occupancy of the homestead it may be made by the husband alone . 76

$ 396 . The defective conveyance valid as to the excess over homestead . Nevertheless, while the conveyance is thus often said to be “ void , ” it is not void for all pur poses, but simply as an alienation of the homestead ; for , even in the states where the courts have been most em phatic in declaring it void , when there is included in it other lands besides the homestead it may be a valid con veyance as to these other lands, though invalid as to the homestead . If, however , severance of the parcels is impracticable , the conveyance will be wholly invalid , at least where the measure of the homestead is territorial and does not depend upon its value entirely ; 78 while , where value ( rather than territorial extent) regulates or measures the homestead , the excess over the statutory value may be conveyed by the husband 's sole deed , 79 and the grantor and grantee become co - owners and may have .80

§ 397 . Non -compliance with statute does not make alienation void in some states . - If the restraints as to the

75 San Francisco v . Grote , 1898 , 120 Cal . 59; 52 Pac. 127 ; 41 L . R . A . 335 ; 65 Am . St. R . 155 . 76Stokes v .Maxson , 1901, 113 Iowa 122 ; 84 N . W . 949 ; 86 Am . St. R . 367 ; Chicago & c . R . Co. v . Titterington , 1892, 84 Texas 218 ; 19 S . W . 472 ; 31 Am . St. R . 39 . 77Engle y . White , 1895 , 104 Mich . 15 ; 62 N . W . 154 ; Weitzner y . Thingstad , 1893 , 55 Minn . 244 ; 56 N . W . 817 ; Pryne v . Pryne , 1902 , ; , , 116 Iowa 82 ; 89 N . W . 108 Townsend v . Blanchard 1902 117 Iowa ; , ; . 46 39 . 70 Vt .

Thorp v . Thorp 36 Atl 245 ; , , . . 65 N . W .

v . 529 78 Sammon Wood 1895 107 Mich 506 ; , , . E . . III . 52 N v . 79 Donahue Cricket Club 1898 177 351 351 , , ; ; 80 Anderson v . Smith 1895 159 Ill . 93 42 N . E . 206 Gray v . Scho ; , , . 51 N . E . III . 36 field 1898 175 684 480 THE LAW OF CONVEYANCING . § 397 alienation of the homestead are considered as applying to the right of exemption or privilege of occupancy rather than to the exempt land , an effect is given to the hus band ' s sole conveyance different from that given to it when they are regarded as applying to the land itself . by In Wisconsin the homestead is provided for a stat

ute 81 in terms similar to those of many states . " A home , , stead * * * consisting when not included within any , , city or village of any quantity of land not exceeding , , forty acres used for agricultural purposes and when in , cluded in any city or village of any quantity of land not , exceeding one - fourth of an acre and the dwelling house by thereon * * * owned and occupied any resident ,

of this state shall be exempt from sale on execution " , etc . and another statute82 provides that “ no mortgage or , by other alienation a married man of his homestead ex , empt by law from execution shall be valid or of any effect

as to such homestead without the signature of his wife . ” , Under statutes almost identical with these it has been , by held many courts as the cases cited in the preceding , by sections show that a conveyance the husband alone is , void . But in a recent decision in this states3 it is held

following the settled rule there , that the prohibition , against the husband ' s conveying without his wife ' s sig , nature applies only to the homestead as a right or interest , , by in the land and that a warranty deed a married man , which his wife refused to sign will convey an equitable , interest to the grantee which will entitle him to the legal

title when the homestead right ceases by the death of both , husband and wife or otherwise and that the deed may be

enforced against the grantor ' s child who takes the legal

title to the homestead upon his death . 84 , , , by 81 Wis . R . S . 1898 $ 2983 amended( laws 1901 ch . 269 limiting the , ) . of $ 5 exemption to the amount 000 , 82 Wisconsin R . S . 1898 $ 2203 . , , ; 88 Jerdee v . Furbush 1902 115 Wis . 277 91 N . W . 661 .

86 Some decisions in other states which influenced the Wisconsin , , , g court in earlier cases e . . McQuade v . Whaley 31 Cal . 526 and White . § 397 THE HOMESTEAD 481

In North Carolina the constitution 85 provides that

“ every homestead and the dwellings and buildings used

therewith , not exceeding in value $ 1 ,000 , to be selected 86 by the owner thereof,” or at his option a city lot , " owned and occupied by any resident * * * shall be exempt ”

from sale on execution ; and that 87 he may dispose of “ the same ” by deed , “ but no deed made by the owner of a homestead shall be valid without the voluntary sig nature and assent of his wife , signified on her private ex amination according to law .” . These clauses were recently the subject of an interesting series of opinions by the justices of the supreme court of

that state , 88 and while one member of the court on the

first hearing89 considered that the “ homestead ” of the constitution is the land and that any conveyance of it by

a husband alone is void , and the other justices then com , posing the court did not agree as to its legal character the

doctrine finally established on rehearing is that the con

stitutional restraint on alienation applies only to a con

veyance of the owner ' s homestead right of exemption and , by that a deed of trust the husband alone reserving the , homestead of the grantor conveys the entire land subject

only to the “ determinable exemption ” in one thousand

dollars worth of it from the payment of the grantor ' s , debts during his life which exemption ceases on his

death . , by Such a conveyance the husband alone reserving the , , . in 53 . man v . Field Vt 554 would not now be followed these states ; , ; , v . . . 34 See Powell v . Patison 1893 100 Cal 236 Pac 677 Martin Har ; ; , , R . . 87 . St . 50 . rington 1901 73 Vt . 193 Atl 1074 Am 704 , 85 . X $ Art 2 . , 86 There is no provision as to the method of selection and occupancy

seems sufficient . , , 87 . . X Const Art $ 8 . , , ; ;

88 Joyner v . Sugg 1902 – 1903 131 N . C . 324 42 S . E . 828 on rehearing ;

132 N . C . 580 44 S . E . 122 . , , . . N . C . J . in C 89 Furches 131 332

31 - BREWS . Con . 482 THE LAW OF CONVEYANCING . § 398 use and occupancy during the lives of himself and his wife , or reserving the “ homestead right, " would proba bly be held valid by other courts ,90 though under the view generally taken of the character of the homestead and the purpose of restraints on its alienation , such a reservation would not make his sole deed effective in most states . 91

$ 398 . The mode of manifesting consent to the aliena tion of the homestead . The proper forms and methodsof expressing the consent of husband or wife to an aliena tion of the homestead by the other vary somewhat in the different states . A constitutional provision as to the mode will , of course , control a statutory provision conflicting with it ; so , for example , where the constitution provides for the

“ joint consent " of husband and wife , a statute purport ing to authorize an alienation of the homestead by the joinder of a guardian of an insane husband or wife with the other spouse in the instrument of transfer is uncon stitutional, as the guardian cannot give the consent re quired by the constitution .92

As a general rule the concurrence or consent of hus band and wife to the alienation should be expressed by their joint act, and not separately . This is clear from the terms of many of the statutes , but even where not expressly so provided the laws have been construed so as to render ineffective separate releases and consents .23

90See Allbright v . Hannah , 1897 , 103 Iowa 98 ; 72 N . W . 421 - not de ciding the matter ; Adams v . Gilbert , 1903 (Kan . ) ; 72 Pac. 769 . See ante , $ 394, note 68 ; Gunnison v . Twitchel , 38 N . H . 62 , the N . H . statute ( Pub . Stat. 1901, ch . 138 , § 4 ) now provides that " no deed shall convey or incumber the homestead right" unless executed by both husband and wife , a very different provision from those of most states. 91Gadsby v . Monroe , 1897 , 115 Mich . 282 ; 73 N . W . 367 . 92 Locke v . Redmond , 1897 , 6 Kan . App . 76 ; 49 Pac . 670 ; affirmed , 59 Kan . 773 ; 52 Pac. 97 . 93 Donahoe v . Chicago Cricket Club , 1898 , 177 III. 351 ; 52 N . E . 351 : ; ; ; Hart v . Church , 1899 , 126 Cal . 471 58 Pac . 910 77 Am . St . R . 195 , , ; Hubbard v . Sage Land & c . Co . 1902 81 Miss . 616 33 8o . 413 . THE HOMESTEAD . $ 398 483

It results necessarily from the terms of most of the laws that the consent required must be manifested by at least some writing , but where the constitution provides that the homestead cannot be alienated ' without the joint consent of husband and wife , " and nothing further is re quired by any statute, it is held that the consent need not

be written . 94 Usually the joinder of the husband and wife in a con

veyance in ordinary form is a sufficient release , convey ance or consent, without special reference being made to

the homestead , though in two states — Illinois and Wyo ming — a special releasing clause is required . Even though the consenting husband or wife may,

strictly speaking , have nothing to convey , 9 it seems gen erally the more prudent practice for both of them to appear as grantors in the instrument of conveyance , and this has

been considered essential under a statute providing that they shall “ concur in and sign the same joint instru ment ; ' 96 though under the statutes of some states which require simply the “ signature " of the wife she need not be named as grantor in her husband 's conveyance of the

homestead .97

In any case a wife joining in her husband 's conveyance , should not restrict its effect as to her if it is intended to , by convey or release the homestead declaring that she " 98 . “ joins to release her dower , , y ; ; , 94 . 64 . 68 . 55 Sullivan Wichita 1902 Kan 539 Pac Matney v . Linn ; , . 54 . . 1898 59 Kan 613 Pac 668 , , 95 Ante $ 390 n . 51 . , , ; 96 Seiffert & c . Lumber Co . v . Hartwell 1895 94 Iowa 576 63 N . W . ; 333 58 Am . St . R . 413 . , ; ; 97 Shelton v . Aultman & c . Co . 82 Ala . 315 8 So . 232 Barrett v . , , ; ; , . 70 1897 N . W . Cox 112 220 Lawyer v . Mich 446 Slingerland 11 ; , ; 1 N . W . . 46 . v . Minn . 447 Godfrey Thornton Wis 677 362 See Davis , , ; ; v . Jenkins 1892 93 Ky . 353 20 S . W . 283 40 Am . St . R . 197 . , , ; ; 98 Burrows v . Pickens 1901 129 Ala . 648 29 So . 694 Pipkin v . Wil . , , ; ; ; liams 1893 57 Ark . 242 21 S . W . 433 38 Am . St . R . 241 Sharp v . . , ; Bailey 14 Iowa 387 81 Am . D . 489 . 484 THE LAW OF CONVEYANCING . $ 399

§ 399 . The acknowledgment to the conveyance of the homestead . — It is required in many states that the instru ment by which the homestead is conveyed shall be acknowledged. 99 Such a requirement must be fulfilled in order that the alienation may be effectual ; therefore , if the instrument has not actually been acknowledged , or if it has been acknowledged before some one not authorized to take the acknowledgment , as an officer disqualified by

reason of interest ; 100 the conveyance is generally consid

ered invalid as to the homestead . ,

So if the certificate of acknowledgment is substantially

defective the conveyance to which it is attached is of no

more effect than if not acknowledged . And if the wife ' s

" separate examination " 2 is required to be certified to in ; , such cases this is also essential to its validity 3 and so , for instance a conveyance not conforming to this require , , by ment being a nullity cannot be made valid the wife ' s

acknowledgment after her husband ' s death . , , Unless however the homestead laws of the state ex

pressly require an acknowledgment to a conveyance of the , homestead or unless some other law makes an acknowl , edgment essential to conveyances generally there is no

reason why the absence of an acknowledgment should

have any other effect upon the alienation of the home

stead than upon that of other property . 6 , 99 $ See ante 263 . , ; , , , 100 Watkins v . Youll 1903 ( Neb . ) 96 N . W . 1042 . See ante & $ 281 282 - 285 287 and cases cited . , , ; ; ' Penny v . British & c . Mortgage Co . 1901 132 Ala . 357 31 So . 96 , , ; American Savings & Loan Ass ' n v . Burghardt 1897 19 Mon . 323 48 ; . . St . R . Pac 391 61 Am 507 . , 2 $ Ante 365 . , , ; ; , 3 Marx v . Threet 1901 131 Ala . 340 30 So . 831 Garner v . Black , ; 95 65 S . W . 1901 Texas 125 876 . , , ;

4 Richardson v . Woodstock Iron Co . 1890 90 Ala . 266 8 So . 7 . ,

5 example to

relating . For the statute married women Fisher v . , , 24 . Meister Mich 447 452 . , , ; ; 6 Barrett v . Cox 1897 112 Mich . 220 70 N . W . 446 Lawyer v . Sling . , ; , ; , 83 N . W . 13 S . D . v . erland 11 Minn . 447 Karcher Gans 1900 383 , ; ; ; N . W . . 46 . 1 v . . St . R . 431 79 Am 893 Godfrey Thornton Wis 677 362 HOMESTEAD . § 400 THE 485

§ 400 . Conveyance of the homestead between husband and wife. - Owing to the requirement that husband and wife must execute and acknowledge the conveyance of the homestead , or that the wife must execute her husband ' s conveyance, some question has arisen as to conveyances of the homestead between husband and wife . Its transfer by the husband to the wife has often been held valid when the instrument of transfer has not been executed by her , although her signature , or joinder , or

acknowledgment , after a separate examination , are essen tial in the same jurisdictions in conveying it to other per sons.? The reason usually given for sustaining conveyances in this form from husband to wife is that as the restraint on alienation is imposed for the benefit of the family there is no violation of the spirit of the law in the making of such

a conveyance by the husband to the wife . And some

times it is also said that such a conveyance is not within the statute , because to require her signature or joinder

under such circumstances would be to make her both

grantor and grantee in the same conveyance — " a vain

and senseless thing .” 8 . But this latter reason is based on the view that she has in such cases some estate to convey , which is not univer sally recognized as the correct view of the nature of her interest.' And in Illinois the fact that the wife appears in such cases (where she joins in her husband 's transfer to her ) to be both grantor and grantee is considered to be

no obstacle to such a transfer, for a direct conveyance of the homestead from him to her without her joinder is in

valid as to the homestead property ,10 though it conveys

Thompson v . McConnell, 1901 , 107 Fed . 33 ; Burkett v . Burkett , 78 Cal. 310 ; 20 Pac. 715 ; 12 Am . St. R . 58 ; 3 L . R . A . 781 ; Turner v . Bernheimer , 1892 , 95 Ala . 241 ; 10 So . 750 . * Lynch v . Doran , 1893 , 95 Mich . 395 ; 54 N . W . 882 ; Furrow v . Athey , 21 Neb . 671 ; 59 Am . R . 867 ; Harsh v . Griffin , 72 Iowa 608 ; 34 N . W . ; 441 Hall v . Powell , 1899 , 8 Okla . 276 ; 57 Pac . 168 . 9 Ante , $ 390 , n . 51 . 10Shields v . Bush , 1901 , 189 Ill. 534 ; 59 N . E . 962 ; 82 Am . St . R . 474 . 486 THE LAW OF CONVEYANCING . § 400 title to the excess in value over $ 1 ,000 , but nothing if the homestead attempted to be so conveyed is worth less than that sum ; 12 and the same principles apply to a con veyance from the wife to the husband of the homestead to which she has the legal title .18 In the foregoing cases from various states where con veyances of the homestead between husband and wife have been sustained , the homestead character of the prop erty has been preserved , though the legal title to the realty has passed from one to the other, and it has been therefore considered that the spirit of the statutes has not been vio lated . But where the transfer between husband and wife would tend to destroy the homestead a more strict con struction has been placed upon the statute requiring joint execution and acknowledgment , and it has been held that a mortgage of homestead executed by the wife alone to the husband , to secure a debt from him to her , is void in the hands of his assignee . 14 ; 11 Stickel v , Crane , 1901 , 189 Ill . 211 59 N . E . 595 . , , E . . . 93 : 42 N . v . 13 Anderson Smith 1895 159 Ill 306 , , ; 13 Despain v . Wagner 1896 163 Ill . 598 45 N . E . 129 . It does not

seem to have been decided in Illinois that a conveyance executed and , by it acknowledged both would be valid in such cases but that would

be may be inferred from the foregoing decisions . ; ; , , 80 . 62 . .

v . Steigleman 14 Freiermuth 1900 130 Cal 392 Pac 615 Am

St . R . 138 . The question as to when conveyances of the homestead be

tween husband and wife may be considered fraudulent as to creditors v .

scope of . Kettleschlager is one not within the this work See Fer , , ; ; rick 1900 12 S . Dak . 455 76 Am . St . R . 623 White Sewing Machine ; , , R . . 74 . St . 66 . Co . v . Wooster 1899 Ark 382 Am 100