The defendant appealed upon numerous exceptions, but it will not be necessary to consider them in detail. In the statement of the admitted facts, we find the following:
"Defendant testified that at the time the contract was drawn he told plaintiff that he (plaintiff) would have to *Page 253 pay the mortgage; that he and plaintiff agreed not to mention mortgage in contract, and to keep same a secret."
This fact shows that the rights of the parties were to be determined in accordance with the written contract, and that, as the oral agreement was to be kept secret, it was not intended that it should be a part of the written agreement. It is provided in the contract that the defendant should make good and sufficient titles to the land. The meaning of these words is that the land should be free from incumbrances, which include mortgages and the inchoate right of dower. Therefore, the conclusions of his Honor, the Circuit Judge, are sustained in these respects.
The appellant further contends that the contract for the sale of the land was null and void by reason of the fact that it constitutes his homestead. It is doubtful whether such question is properly before the Court for consideration; but, waiving such question, the contention of the appellant cannot be sustained. Section 28, art. II, of the Constitution provides "that no waiver shall defeat the right of homestead before assignment, except it be by deed of conveyance, or by mortgage;" also "that after a homestead in lands has been set off and recorded the same shall not be waived by deed or conveyance, mortgage or otherwise, unless the same be executed both by husband and wife, if both be living." The homestead, however, had not been set off. The power of the head of the family to make a deed of conveyance includes the power to make a contract for the sale of the land, as the ultimate result contemplated is a deed of conveyance. For these reasons I dissent.
MR. JUSTICE HYDRICK concurs. *Page 254