The appellant began this suit in the Mississippi Chancery Court on a note and mortgage, alleging that on the 18th day of February, 1922, Will Pyles was indebted to him in the sum of $4,232, evidenced by promissory note of that date, payable three years after date with interest at 10 per cent. per annum, and, when said interest is not paid at maturity, to become part of the principal and bear like interest; that, to secure the prompt payment of said indebtedness at maturity, the defendant executed a certain deed of trust conveying to B. A. Lynch, as trustee for plaintiff, the following lands: lots 8 and 9, block 15, Chickasawba Addition to the town of Blytheville, Arkansas. It was alleged that the deed was duly acknowledged and filed for record, and is now of record in Mississippi County. That defendants, Will Pyles and Ada Pyles, have failed to pay, and that there is now due the sum of $4,432 with interest; that the defendant had refused to pay, and the plaintiff had a right to foreclose said property and have the same sold for the satisfaction of the indebtedness.
The defendants, Will Pyles and Ada Pyles, answered admitting that Will Pyles executed the note and deed of trust, but denied that they were indebted to plaintiff in any sum whatever. They alleged that the note and mortgage were procured by fraud of plaintiff; that the property described in the complaint constitutes their home stead; that Ada Pyles did not sign the deed of trust or note, and that it is void for that reason. They asked that the complaint be dismissed.
Ramey testified as to the indebtedness and the execution of the note and mortgage and the following is an agreed statement of facts: "That on the 18th day of February, 1922, Will Pyles was indebted to Charles Ramey in the sum of $4,232; that on said date a note and deed of trust was executed by Will Pyles on lots 8 and 9, block 15, Chickasawba Addition to the town of Blytheville, Arkansas, to Charles Ramey; that lots 8 and 9, block 15, of the Chickasawba Addition to the town of *Page 322 Blytheville, Arkansas, was on and before the said 18th day of February, 1922, and still is, the homestead of Will Pyles and Ada Pyles; that Ada Pyles is the wife of Will Pyles; that on said date the deed of trust was signed by Will Pyles, was taken to Ada Pyles for her signature, and the said Ada Pyles refused to sign said note and deed of trust."
There was a judgment against Will Pyles on the note for the amount sued for, and the court held that the deed of trust created no lien on the property and the petition to foreclose was dismissed for want of equity, and that the plaintiff have only personal judgment against Will Pyles.
To reverse that part of decree holding deed of trust void and dismissing the complaint as to the deed of trust, Ramey prosecutes this appeal.
The statute, with reference to conveyance or mortgage of homestead, is as follows: "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." C. M. Digest, 5542. This note and mortgage were executed by Will Pyles in 1922. In 1923 a curative act was passed by the Legislature which reads as follows: "That all deeds, conveyances, instruments of writing affecting or purporting to affect the title to real estate situated in this State, which have been recorded and which have been heretofore executed, and which may hereafter be recorded, and which are defective or ineffectual by reason of section 1 of an act entitled, `An act to render more effectual the constitutional exemption of homesteads,' approved March 18, 1887, be and the same and the record thereof are hereby declared as valid and effectual as though said act had never been passed."
It is the contention of appellant that this act of 1923 cures the defect in the execution, or rather makes effectual *Page 323 the deed of trust as though the act of 1887 had never been passed. Numbers of decisions of this court are cited and relied on by appellant to sustain this contention. We do not, however, agree with this contention of the appellant. It is agreed in this case not only that the wife did not sign or acknowledge the mortgage, but that she absolutely refused to do so. We said in a recent case: "A curative statute is only intended to cure defects in the execution of a mortgage, and cannot in the very nature of things render valid an act which was absolutely void in the beginning. In short, if a party had never signed a mortgage or deed and it should be held that a curative act which had been passed afterwards could have the effect of making the mortgage or deed effective as far as the person who did not sign it is concerned, this would necessarily have the effect of depriving such person of his property without due process of law. * * * The right which a curative statute or healing act takes away in such case is the right in the party to avoid his contract. Such legislative acts are sustainable only because they are supposed not to operate upon the deed or contract by changing it but upon the mode of proof." Hall v. Mitchell, 175 Ark. 641, 1 S.W.2d 59.
In a more recent case this court quoted with approval from the Hall case the following: "A curative statute is only intended to cure defects in the execution of a mortgage, and cannot in the very nature of things render valid an act which was absolutely void in the beginning. * * * The curative act in, question did not purport to cure anything except the defective instruments and does not purport to render valid and effectual an act which had never been done." Simpson v. Teftler, 176 Ark. 1093,5 S.W.2d 350.
The above cases are the latest cases decided by this court on the question involved here. The authorities were reviewed in the case of Hall v. Mitchell, supra, and it is not necessary to again call attention to them. *Page 324
It will be observed that the law at the time this mortgage was executed provided that it should not be of any validity. If it was not of any validity, it was a mere nullity. The proper execution of a note and mortgage constitutes a contract, but if it has no validity it is not a contract and one principle of law which is thoroughly settled, is that neither the Legislature nor the courts can make contracts for parties where they have made none. In this case the wife refused to sign the mortgage, then, under the statute existing at that time, the mortgage had no validity, it was void, no contract was made, and since the parties had made no contract, the Legislature and court are without authority to make one for them.
"A contract which the law denounces as void is necessarily no contract whatever, and the acts of the parties, in an effort to create one in no wise brought about a change of their legal status. The parties and the subject matter of the contract remain in all particulars just as they did before any act was performed in relation thereto. Of course, an action cannot be maintained for damages for the breach of a void contract. A void contract is a mere nullity. It is obligatory on neither party. It requires no disaffirmance to avoid it, and cannot be validated by ratification. A contract wholly void is void as to everybody whose rights would be affected by it if valid." 6 R.C.L. 591.
Curative statutes, as this court has said, are intended to cure defects or irregularities. There would be some reason to hold that a curative act made valid a mortgage of the homestead where parties intended to execute the mortgage properly, where their minds met and the contract was really entered into or agreed to and there was some defect or failure in the proper execution of it, but certainly no one will contend that the Legislature or the court can make a binding contract for the parties where they themselves have made none. No mortgagee can be injured by this because he is bound to *Page 325 know that a mortgage on a homestead without the wife joining the deed is of no validity, and when he takes his mortgage he either knows or can know whether the property described in the mortgage or deed of trust is the homestead. In the instant case the wife refused to sign the deed of trust and the mortgagee knew it, he therefore knew at the time of the transaction that the deed of trust was without any validity. The decree of the chancery court is correct, and therefore affirmed.
SMITH, McHANEY and BUTLER, JJ., dissent.