The chancellor did refuse to enter a decree foreclosing the deed of trust, but in a written opinion he stated that he had denied this relief upon the authority of the case of Hall v. Mitchell,175 Ark. 641, 1 S.W.2d 59, which appeared to be in conflict with the previous decisions of this court, but that he had followed the Hall case notwithstanding that fact, as it was the last declaration of the court on the subject.
An examination of our cases will confirm the justice of the chancellor's criticism, and it would appear, therefore, not improper to inquire what rule has been adopted in this State in regard to the validity of curative acts.
The case of Sanders v. Flenniken, 172 Ark. 454,289 S.W. 485, announces the rule which had always been consistently followed prior to the opinion in the case of Hall v. Mitchell. The Mitchell case cited the Sanders case, and there is no intimation of any intention to overrule it or to impair its authority. There was an attempt to distinguish the two cases, but a careful reading of both will disclose the fact that they are not distinguishable.
In the original opinion in the Hall case we said: "In short, if a party had never signed a mortgage or deed, and it should be held that a curative act was 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." *Page 326
This is sound law. A curative act could not operate to divest the wife of any interest which she owned in the land and did not attempt to convey, but this is not the purpose of the curative act of 1923. Its purpose is to make valid the husband's conveyance of his own interest.
The opinion on rehearing in the Hall case shows clearly that there was no intention to overrule the Sanders case or to impair its authority, for in the opinion on rehearing we said: "Counsel for appellant earnestly insist that in our original opinion we misinterpreted the effect of the decision in Sanders v. Flenniken, 172 Ark. 454,289 S.W. 485, and that our decision in this case is opposed to the principles therein decided. We do not think so."
Further along in the opinion on rehearing it was said: "In the Sanders case the grantors in the deed signed it, and intended to be bound by their act in doing so. Hence it is said the curative act applied in so far as their rights were concerned. There is a wide difference, however, between that case and the present one."
It is just here that we were confused, and I think we should say so candidly and adhere to the Sanders case, as we said we had done, for there is no difference in the two cases in the manner of the execution of the deeds of trust. The opinion in the Sanders case recites that: "It is alleged in the complaint that the wives of the two mortgagors, Riley Sanders and Neil Sanders, did not join in the execution of the deed of trust; that the property was, at the time of the execution of the deed, the homestead of the mortgagors, and that the conveyance was absolutely void by reason of the failure of the wives to join therein," and a demurrer was sustained to the complaint containing these allegations. There was, therefore, a failure of the wives in both the Hall and Sanders cases to sign the mortgages, and yet the curative act of 1923 was held applicable in one case, but not the other. One case or the other must be wrong. Which is right? *Page 327
The majority say we reaffirmed the doctrine of the Hall case in the later case of Simpson v. Teftler, 176 Ark. 1093,5 S.W.2d 350, and therefore the Hall case was properly followed by the chancellor. This cannot be true unless we intend to overrule the earlier cases which are in conflict with the Hall case, and there is no suggestion in the majority opinion in the instant case that we have done so or intend these last two cases to have that effect.
Certainly the case of Simpson v. Teftler, supra, does not have that effect. There was no question of homestead involved in that case. The curative act there held ineffective attempted to validate certain elections relating to local stock laws, and the curative act was held invalid for the reason that the elections there attempted to be validated were void, because of the lack of power to hold them. But there is no question of lack of power here. There was no lack of power on the part of Pyles to execute the mortgage or deed of trust, as will be later shown, if indeed, any discussion of that subject is necessary. That question might just as well be disposed of at this time.
In the case of Klenk v. Noble, 37 Ark. 298, it was held (to quote a headnote) that "a wife has no interest in the homestead during her husband's life, nor vested right to a future interest, and her concurrence in its alienation is not necessary." And in the case of Bank of Harrison v. Gibson, 60 Ark. 269, 30 S.W. 39, it was said: "Construing the mortgage, then, as if the act of March 18, 1887, had never been passed, we have only to inquire if it would have been valid as a conveyance of the husband's lands before the passage of that act, and the inquiry can have but one result, and that is that the mortgage is good, that is to say between the parties to it."
But for the act of 1887, which appears as 5542, C. M. Digest, there would be no question about the right of the husband to convey his interest in lands which *Page 328 constituted his homestead, although the wife did not join in the conveyance to convey her own interest.
There was, prior to the passage of the act of 1887, no necessity for the wife to join the husband in the conveyance of his interest in lands constituting his homestead to give validity to that instrument, so far as it affected him. Had there been, there was no occasion or necessity for passing the act of 1887. The act imposed a requirement which did not previously exist.
When this case is stripped of its superfluities, the question which remains is just this: What is the effect of the curative act of 1923 on the mortgage of Pyles' interest in his homestead, in the execution of which his wife did not join? In this connection, let it be remembered that the act now under consideration (act No. 80, General Acts 1923, page 43) is the identical act involved in the case of Sanders v. Flenniken, supra, where it was held to have cured the defective mortgages executed by Riley and Neil Sanders of their homestead, in the execution of which their wives did not join.
Many healing statutes or curative acts have been passed in this and in all the other States, and they have not been limited to defective conveyances of land, but have been upheld in a great variety of other cases. The validity of many conveyances, marriages, tax assessments, judicial proceedings, bond issues, and other matters (See pages 1092 to 1097 of the chapter on Constitutional Law, 12 C.J.) have been established by curative acts, and the principle upon which such legislation may be based is well established by many decisions of this and all other courts.
The right of the General Assembly to pass legislation similar to the act of 1923 was established long before the enactment of that statute.
The concluding note of the annotater of the case of Thompson v. Randle, 45 A.L.R., pages 388-436, reads as follows: "The invalidity of a mortgage or conveyance of the homestead exemption executed by the husband *Page 329 alone may be cured by a subsequent act of the Legislature, no third person having acquired a vested interest in the land prior to such enactment," and a number of Arkansas cases are cited in support of that statement of the law, to a few of which specific reference will be later made, and no case was cited holding to the contrary.
The Legislator who wrote the act of 1923 must have had before him act 172 of the Acts of 1893, page 303, and which earlier act was upheld as valid legislation in every case which came to this court to which it was applicable. In several of these cases the wife had not signed the conveyance at all.
The General Assembly, at its 1899 session, saw fit to amend the act of 1893 by an act passed March 13, 1899 (Acts 1899, page 107), which appears as 785, Kirby's Digest. This act contained the proviso that it should not validate any deed, mortgage or other instrument which the wife had not signed, nor should it validate any instrument then in litigation. The act of 1899, like the former legislation, was upheld, but in no case was it contended or held that the General Assembly might cure defects arising under the act of 1887 when the wife had defectively executed a conveyance but not in those which she had not signed at all. The whole subject was treated as being within the control and discretion of the General Assembly. For subsequent legislation on this subject see 1565, C. M. Digest.
The majority say, in effect, that the Legislature may pass a valid curative act to heal a defective execution of a deed or performance of an act required by previous legislation, but cannot do so when there was no attempt to comply with the law, and that, if we should so hold, the effect of that holding would be to make a contract for the parties which they did not themselves make.
I dissent from this view also. It is to be borne in mind that this is an attempt to foreclose a deed of trust, and the litigation is between the parties to that instrument. The rights of no third persons have intervened. *Page 330 Pyles owed money to Ramey and gave as security for its repayment the deed of trust here sought to be foreclosed. Certainly the parties, and not the law, made that contract, and the question for decision is not whether the law can make a contract for the parties, but is, rather, whether the contract which they made can be enforced, or, in other words, did the curative act of 1923 make enforceable a contract which could not be enforced while the act of 1887 was applicable to it?
In distinguishing between the validity of curative acts relating to conveyances of the homestead, and in upholding those acts where there was a defective attempt to comply with the act of 1887, and in refusing to apply the curative act where no attempt at compliance was made, the majority have departed from the test laid down by Judge Cooley, which has been so often approved by this court as to become a fixed rule of property. In his work on Constitutional Limitations (7th ed.) page 531, Judge Cooley said: "The rule applicable to cases of this description is substantially the following: If the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the Legislature might have dispensed with by prior statute, then it is not beyond the power of the Legislature to dispense with it by subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the Legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by subsequent law."
Certainly the General Assembly might repeal or suspend the act of 1887. It might suspend a requirement which it had imposed. It might undo what it had done. If the Legislature could impose the requirement contained in the act of 1887, might it not later dispense with that requirement?
At pages 538 et seq. of the same work Judge Cooley said: "Other cases go much farther than this, and hold *Page 331 that, although the deed was originally ineffectual for the purpose of conveying the title, the healing statute may accomplish the intent of the parties by giving it effect. At first sight these cases may seem to go beyond the mere confirmation of a contract, and to be at least technically objectionable, as depriving a party of property without an opportunity for trial, inasmuch as they proceed upon the assumption that the title still remained in the grantor, and that the healing act was required for the purpose of divesting him of it, and passing it over to the grantee. Apparently, therefore, there would seem to be some force to the objection that such a statute deprives a party of vested rights. But the objection is more specious than sound. If all that is wanting to a valid contract or conveyance is the observance of some legal formality, the party may have a legal right to avoid it; but this right is coupled with no equity, even though the case be such that no remedy could be afforded the other party in the courts. The right which the healing act takes away in such a case is the right in the party to avoid his contract, — a naked legal right which it is usually unjust to insist upon, and which no constitutional provision has ever designed to protect. As the point is put by Chief Justice PARKER of Massachusetts (Foster v. Essex Bank,16 Mass. 245), a party cannot have a vested right to do wrong; or, as stated by the Supreme Court of New Jersey, `Laws curing defects which would otherwise operate to frustrate what must be presumed to be the desire of the party affected, cannot be considered as taking away vested rights. Courts do not regard rights as vested contrary to the justice and equity of the case.'"
But for the case of Hall v. Mitchell, supra, the law would appear to be well settled. That case did not overrule the Sanders case, which applied the curative act of 1923 to a conveyance of the homestead in which the wives did not join.
In the case of Sidway v. Lawson, 58 Ark. 117,23 S.W. 648, Justice BATTLE states the issue involved in that case *Page 332 as follows: "Appellees contend that it" (the mortgage of the homestead) "was not executed in accordance with the requirements of the act entitled `An act to render more effectual the constitutional exemption of homestead,' approved March 18, 1887, because the wife did not `join in the execution' of the same, and is, therefore, void: and appellants insists that if the contention of appellees be correct, it was validated by the act entitled `An act to cure defective conveyances, acknowledgments,' approved April 13, 1893."
After holding that the curative act of 1893 rendered the conveyance valid, and after quoting and approving the test of the validity of curative statutes announced by Judge COOLEY hereinabove quoted, Judge BATTLE further said: "If defective, it was because the wife did not join in its execution according to the act of March 18, 1887. That act made every instrument affecting the homestead of the husband invalid if the wife failed to join in its execution and acknowledge the same. It vested no additional interest in the wife. The husband could abandon the homestead, and it would become liable to his debts, notwithstanding the act of March 18, 1887. Pipkin v. Williams, 57 Ark. 242, 21 S.W. 433. The Legislature undertook to create no interest or estate by the act, but to prescribe the manner in which instruments affecting the homestead of a married man should be executed and acknowledged; at the same time recognizing the homestead as the husband's, and not the wife's, nor as the joint property of the husband and wife," he concluded the discussion of the validity of the mortgage rendered so by the act of 1893 by saying: "It is now a valid mortgage."
The case of Beavers v. Myar, 68 Ark. 333,58 S.W. 40, was one in which the wife did not join in a conveyance of the homestead, executed prior to the curative act of 1893, and it was insisted that the amended curative act of 1899, repealing the act of 1893, had the effect of again rendering the conveyance invalid, but the court held (to *Page 333 quote the syllabus): "Rights vested under act of April 13, 1893, curing execution or acknowledgment of conveyances of homesteads by married men which were defective under act of March 18, 1887, were not divested by act of April 19, 1899, repealing the act of 1893."
The case of Hanson v. Brown, 139 Ark. 60,213 S.W. 12, was one in which the opinion recites that Hanson executed a deed of trust and that: "His wife did not join with him in the execution of this deed of trust," yet it was held that: "The Legislature of 1893 passed an act to cure defective conveyances and acknowledgments which were defective or ineffectual by reason of not having complied with the act of March 18, 1887, above referred to. See Acts of 1893, p. 303. This act has the effect to validate the deed of trust from A. J. Hanson to J. T. Waller to secure an indebtedness to J. M. Waller." This statement of the law was regarded as so well established that no cases were cited to support it.
The case of Alkire Grocery Co. v. Jackson, 66 Ark. 455,51 S.W. 459, was also one in which the wife did not join in the execution of a conveyance of the homestead, yet it was held that the curative act there applied cured this omission. But the cases are too numerous to review them all.
These and other cases are to the effect that the applicable curative act applies alike to conveyances which were executed by the wife defectively and to those which she did not attempt to execute at all, the point in all of them being that it is within the power and discretion of the General Assembly to suspend the operation of the act of 1887 entirely, or to do so only in certain cases, as was done by the act of 1899. The curative acts were all held valid because they were an exercise of the power of the General Assembly to suspend a statute requiring a particular execution of the conveyances which would not otherwise have been necessary to make those conveyances valid.
If the Sanders and similar cases, none of which have been expressly overruled, are to be followed, rather than *Page 334 the Hall case, which did not overrule them, a decree should have been entered ordering the foreclosure of Pyles' interest in the homestead. This would not make a contract for him; it would merely enforce a contract which he himself made.
For these reasons I dissent from the opinion and judgment of the court; and I am authorized to say that Justices McHANEY and BUTLER concur in the views here expressed.