This is a suit against the husband and wife to compel the specific performance of an executory contract to convey a part of the homestead. The contract consisted of a bond for title duly executed by both husband and wife, and privily acknowledged as prescribed by law, for the conveyance of her separate property or homestead. After hearing the evidence the court below decreed a specific performance, notwithstanding it clearly appeared that the property constituted a part of the homestead, and that fact was interposed as a defense.
How the important question to be determined is as to the power of the court to decree a specific performance, as against a married woman, of an executory contract for the conveyance of all or a portion of the homestead, when she refuses to convey in accordance with the contract.
Elsewhere it is well established that the executory contract of a married woman for the sale of her real estate, although executed with the assent of her husband and for a valuable consideration, is not enforcible in a court of equity. Field v. Moore, 19 Beav., 176; Lane v. McKeen, 15 Me., 304; Berrett v. Oliver, 7 Gill & J. (Md.), 191; Clarke v. Reins, 12 Gratt., 103; Pilcher v. Smith, 2 Head (Tenn.), 209; Carr v. Williams, 10 Ohio, 310; Waterman on Specific Performance of Contracts, § 127, and note.
In the same work, page 725, the author says: “ Where a married woman enters into a covenant to convey real estate owned by her in her own right, which she afterwards refuses to do, the aid of a court of equity may be invoked to compel money advanced upon the purchase price, and the value of permanent improvements made by the vendee on the premises, less the value of the use of such premises, to be refunded.”
Our constitution declares, “nor shall the owner, if a married man,, sell the homestead.without the consent of the wife given in such a manner as may be prescribed by law.” And in speaking of creating mechanics’ liens upon the homestead, the constitution says that the contract must be in writing, “ with the consent of the wife given in the same manner as is required in making a sale and conveyance of *254the homestead.” "While art. 560 of the Revised Statutes provides that “ The homestead of a family shall not "be sold and conveyed by the owner, if a married man, without the consent of the wife. Such consent shall be evidenced by the wife joining in the conveyance, and signing her name thereto; and also by her separate acknowledgment thereof, taken and certified to before the proper officer, and in the mode pointed out in chapter 2, title lxxxvi.”
The form given by statute for the acknowledgment of a married woman requires that she shall be examined by the officer privily and apart from her husband, and after having the instrument fully explained, she, in the language of the form, “ acknowledged such instrument to be her act and deed, and declared that she had willingly signed the same for the purposes and consideration therein expressed, and that she did not wish to retract it.”
It is a most conclusive proposition that the separate property of a married woman, and the homestead, if the owner be a married man, can only be sold and conveyed in the manner prescribed by law. The homestead, too, is hedged about with additional limitations that do not ordinarily appertain to the separate property of the married woman. For instance, the homestead is not subject to forced sale to pay debts, with certain exceptions. The husband and wife cannot impose an ordinary lien upon it by contract. Eor can they make a conveyance of the homestead with conditions of defeasance. These are limitations and restrictions imposed by the constitution, and are not subject to legislative control.
The object, purpose and intent of the organic law is to protect the wife in the homestead against the improvidence of the husband as well as the rapacity of the creditor.
So long as it remains the homestead of the family, there can be no conveyance of it except as prescribed by law. And here we are met with the unequivocal declaration that the homestead shall not he “sold” and “conveyed,” without the wife joins in the “conveyance,” by signing her name thereto, and by acknowledging the same privily and apart from her husband.
One of the most important as well as essential elements in the privy acknowledgment is that the married woman, after being informed of the nature, etc., of the conveyance, and after acknowledging, or rather declaring, it to be her act and deed, must, to" give it validity, declare “ that she does not wish to retract it.”
Although she may have received the purchase money, and signed the deed, and even gone so far as to declare to the officer that it is her act and deed, yet if she should then declare her wish to “retract *255it,” that would conclude the matter,— as to her it would be no conveyance.
This important and controlling fact should be borne in mind, that in the sale and conveyance of the homestead, up to the very last moment before the privy examination is concluded and the title passes, the married woman may absolutely defeat the conveyance by declaring her wish to retract all that had been done by her in the matter.
"With us the power to sell or otherwise dispose of the homestead is derived from the constitution and statute; the former declaring that it shall not be disposed of except as prescribed in the latter. The statute makes no provisions whatever for the wife to enter into agreements or executory contracts to convey the homestead at some future time. That is not one of the modes provided by statute in which she may divest herself of the homestead right.
The sola and only mode prescribed by statute is by “ conveyance,” in which she joins the husband, and which she acknowledges privily and apart from him. To the word conveyance, as used in the statute, must be assigned its ordinary signification; that is, a writing by which property is conveyed from one to another. As before remarked, the statute does not include agreements to convey, but conveyances only.
In Alabama it has been held that a married woman has no authority, under the statutes of that state, to enter into an executory agreement to sell either her separate estate under the statute, or the homestead occupied by herself and husband; and that no attempted conveyance of either is binding on her unless executed with due formality, and in substantial compliance with the statute. And for these reasons the courts of that state refuse to enforce the specific performance of such executory contracts. Jenkins v. Harrison, 66 Ala., 345; Butts v. Broughton, 72 Ala., 294; Gardner v. Moore, Albany Law Journal, vol. 30, No. 24, p. 477.
Here, as there, the married ivoman’s power to convey is derived from the statute, and the authority to make executory contracts to convey the homestead is not provided for by the statute, and such contracts, therefore, being made without authority, fall under the condemnation of the organic law. Such contracts as to the married woman are void and not enforcible.
Again, as has been seen, up to the last moment before the privy acknowledgment is concluded, the married woman has the right to retract whatever she may have done toward the conveyance of her homestead, and thereby defeat the conveyance. The legal effect of *256the acknowledgment is that she joins in the conveyance of the property, declares that such conveyance is her voluntary act, and that she did not wish to retract it. Apply this acknowledgment to an executory contract for the conveyance of the homestead, and it is altogether different. The married woman consents, not to a conveyance, but a contract to convey. She joins not in a conveyance, but an agreement to convey some time in the future. She does not declare that she wishes not to retract the conveyance, but that she wishes not to retract the agreement to convey.
Hp to the last moment before the title passes, the married woman may, by retracting what she contemplated doing, retain it.
Obviously that essential element in the conveyance of the homestead, i. e., the right of the wife to retract, is wanting in an executory contract to convey, and where she refuses to carry out such contract, it is beyond the power of the court to supply that essential element.
Our conclusion is that the judgment ought to be reversed and the cause remanded.
Revebsed and remanded.
[Opinion adopted February 2, 1885.]