Park v. Park , 71 Ark. 283 ( 1903 )

Biddick, J.,

(after stating the facts). This is an action of ejectment, and the only question presented is whether the deed of George Park conveying to the defendant the land in controversy was a valid deed. Plaintiff claims that the deed wp,s void by reason of a section of an act of 1897, which is as follows, to-wit: “That no conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity except for taxes, laborers’ and mechanics’ liens, and the purchase money, unless his wife joins in the execution of such instrument and acknowledges the same.” Sand. & H. Dig. § 3713.

Defendant’s first contention is that the purpose of this statute was to prevent the husband from mortgaging or otherwise encumbering the homestead with specific liens without the consent of the wife, and that it does not prevent him from making an absolute sale and conveyance of it by his sole deed. Counsel for defendant admits that this construction of the statute is in conflict with the decision of this court in the case of Pipkin v. Williams, 57 Ark. 242, and it seems to us that it is also in conflict with the statute. We must judge the intention of the legislature by the language used, and the words “no conveyance, mortgage or other instrument,” found in the statute, it seems to us cover absolute deeds as well as mortgages. We are therefore compelled to overrule the contention of appellant on this point.

The next contention of the defendant is that, as the deed reserved the right of possession and of the rents and profits to the grantor during his life, it did not affect his homestead, and for that reason it does not come within the scope of the statute, and is not affected by it. Now, as we have before stated, the evident purpose of this statute was to protect the interests of the wife in the homestead by forbidding the husband either, to sell or encumber it without her joining in the deed; but the construction which counsel for defendant seeks to put upon the statute by his argument on this point would permit the husband to convey the homestead subject to a life estate in himself, which, in the event that he died first, might deprive the wife of the homestead against her will. It is clear, we think, that the husband cannot make any conveyance of his homestead affecting the interest of his wife therein -without her consent, for purposes other than those named in the statute.

Counsel for the defendant has referred us to the ease of Ferguson v. Mason, 60 Wis. 377, as supporting his contention. In that case the court, under a statute similar to ours, held that the deed of the husband conveying the land upon which the homestead was situated was valid, even though the wife did not join in it, where there was an express reservation of the homestead rights of both the husband and wife; the deed in that case by its terms conveying only the reversion after the homestead rights of both husband and wife bad terminated by death. We need not undertake to decide what the effect of such a deed would be under our statute, for that case is very different from the one we have here. The homestead interests of the wife were reserved by that deed, but the deed in this case did not reserve them. We think, therefore, that this deed came within the statute, and, as the wife did not join-in its execution, we are of the opinion that the circuit judge Correctly ruled that it was void. Pipkin v. Williams, 57 Ark. 242.

Judgment affirmed.