We all concur in the conclusions announced by the Chief-Justice, on the several questions presented for,our decision in this cause, except one — the question whether the homestead right under the constitution attaches to property held by two or more as tenants in common. It seems to me that it does. The constitutional provision is as follows: “ Every homestead, not exceeding eighty acres of land, and the dwelling and appurtenances thereon, to be selected by the owner thereof, and not in any town, city, or village, or, in lieu thereof, at the option of the owner, any lot in the city, town or village, with the dwelling, and appurtenances thereon, owned and occupied by any resident of this State, and not exceeding the value of two thousand dollars, shall be exempted from sale on execution, or any other final process from a court, for any debt contracted after the adoption of this constitution. Such exemption, however, shall not extend to any mortgage lawfully obtained, but such mortgage, or other alienation of such homestead,, by the owner- thereof, if a married man, shall not be valid without the voluntary signature and assent of the wife to the same.”
The question is one between the occupant of a homestead and his creditor. There is no doubt that, to support the homestead-right, it is not necessary that the estate of the claimant of a homestead should be a fee simple, or that it should be a legal estate. Property held by a lessee under a lease — a merely temporary interest — or by a mortgagor, who has only an equity of redemption, no matter how heavily incumbered the property may be, or land in which the occupant has some other inferior or defeasible estate, provided.it extends to and embraces the whole parcel or tract, is sufficiently owned by him, within the meaning of the law, to entitle him to hold his homestead therein against creditors, Thus far there is no difference of opinion among us. Even a tenancy at will, if so precarious a possession were subject to be soíd under execution, would be a sufficient interest in land, to entitle the tenants dwelling on it to the protection of the homestead laws. — See authorities referred to in Weber v. Short, at this term. Is it not illogical, then, to deny such protection to the homestead of one who has so large and permanent an estate in the property composing it, as to be the owner, perhaps in fee, of an undivided one-third, one-half, three-fourths, or, peradventure, nine-tenths, and who lawfully occupies the whole, with the consent or acquiescence of, or jointly with his co-owner ?
*360Considering tbat tbe law under examination was designed to establish an important policy, tbe object of wbicb was to prevent families from being made unboused wanderers, and tbat to tbis end it is enacted tbat tbe homestead which a man owns and occupies shall be exempt from sale for tbe payment of debts contracted after that time; what canon of interpretation requires us to decide tbat tbis means, that tbe homestead shall be exempt provided tbe occupant be sole owner of tbe property, or has an imperfect or defeasible estate, or contingent or temporary interest in the whole, but not if be owns only an undivided half, or some other portion, though lawfully in possession of tbe whole ? Such a ruling would deny tbe benefit of tbis constitutional provision to those who presumably most need it, and are of the class for whose protection it is understood to have been ordained. It does not appear to me tbat tbe words of tbe law are so at variance with its manifest object, as to constrain us to bold tbat a creditor may have bis debtor’s family turned out from tbe shelter of their dwelling-house and its appurtenances, if tbe debtor owns only an undivided moiety, or a tenth part thereof, and tbe undivided residue belongs to some one else, but shall not have them turned out, if be owns tbe whole as an entirety. Why should they not be protected in so much as be does own, though tbis be less than tbe whole ? Tbe home of one who has only such a partial estate in it is, except as against another co-owner, as much bis castle, as if it stood on ground wbicb bad descended to him individually, through a long line of ancestors; and its refuge is no less important to those for whom it was provided.
It is objected, though, tbat a tenant in common of property can not claim any part of it as bis in severalty, and it can not be known what particular portion would, upon partition, be assigned to him; and hence, it is inferred, be has not such an estate in tbe property as entitles him to a homestead on it. But, if be be m possession of tbe homestead, claiming it, and having such part ownership, and it does not exceed the bmits prescribed by the constitution, what has bis creditor to do with a controversy, tbat may or, may not arise, between him and bis co-tenants ? If tbe homestead be not allowed to tbe debtor upon partition, tbe creditor will not be thereby injured; and if it be assigned to tbe debtor, be obtains no more than tbe constitution allows him. What difficulties may arise between him and others in tbe future, ought not, it appears to me, to be brought up to interfere with a present right of tbe debtor and bis family to remain in their home undisturbed by bis creditors, — See Williams v. Wethered, 37 *361Texas, 132; Smith v. Deschaumes, Ib. 429; McClary v. Bixby, 36 Verm. 257; Greenwood v. Maddox, 27 Ark. 648; Thorn v. Thorn, 14 Iowa, 49. Indeed, if the whole property of wbiob two or more are tenants in common plainly does not exceed what the constitution allows for a homestead, and there is no room for any selection to be made, I do not understand by what process of reasoning a creditor of one of them, who is occupying it as his place of habitation, could undertake to maintain, or venture before a court to contend for, the right to sell out his debtor’s interest in it, and expel him therefrom; and if it be conceded that, in such a case, the right to do so would not exist, then the argument erected upon the words “owner” and “owned” in the constitution, falls to the ground ; and it becomes apparent that one who is “owner” of, or owns less than the entirety, is brought within a legitimate interpretation of the words of the law, as well as within its obvious reason and policy.
There is no inconsistency, as apprehended, between these views and the conclusion we reached in Giovanni v. The First National Bank, decided a few days ago, respecting personal property constituting the stock in trade of a mercantile copartnership. We therein held, that the individual members of a firm were not entitled, each or either, to select $1,000 worth of the partnership goods, after they had been seized to satisfy a partnership debt, during the continuance of the copartnership, and have them exempt from sale by virtue of section 1, of article XIV of the constitution of 1868; which section protects from sale, under process for debt, “personal property of any resident of this State, to the value of one thousand dollars, to be selected by the owner.” The two cases are quite unlike. In the first place, the homestead, the most conspicuous part of any one’s property — the place of his abode — is specified and designated in the law, and thus known of all men, as exempt from sale for payment of his debts. The only selection to be made is of a limited quantity of land, contiguous, or adjacent to that on which the dwelling house stands, to go with it as a part of the exempt homestead. But the personal property to be protected from sale under section 1, swpra, is not specified. What it shall be is wholly undetermined. From which it results, that there can be, and is, no restriction in favor of wife or any body else, on the power of the owner to dispose of his personal property as he may choose. And, in the second place, when he has chosen to put goods or moneys into a mercantile partnership business, he ceases to be the owner of them. All the articles composing the stock, collectively and singly, belong to the firm — may be sold as its *362property, by either partner, or be subjected to the contracts ■or debts made by either on behalf of the firm; and on the death of one of its members, are under the control, and can be disposed of only by the surviving partner or partners, who wind up its affairs. Neither partner can, at any time during the continuance of the partnership, separate from its stock any part of it as his — not even that which he himself put in; for that is no more his, than are the things which his partner contributed. He is entitled to have only his share of the profits, and of the residue of goods remaining, after the payment of all partnership debts, on the discontinuance of business. In fine, he can not lawfully take from the stock of the firm, or dispose of any thing belonging thereto, during the continuance of the partnership, as his own, or for his individual use, except as a purchaser, chargeable toith the price therefor due to the firm; and he can not purchase from it, nor can it ■sell or give to him, or to any body else, articles that have been taken by the sheriff to satisfy process against the firm for a debt it.owes. But a tenant in common has no ownership of, or power to dispose of or charge the interest of his co-tenant in real estate, either during the life, or upon the death of the latter. Eaeh owns individually a definite though undivided portion of the whole, which he can sell, mortgage, or devise without hindrance; and which does not become subject to any debts or contracts created by his co-owner.
But, to return to the case in hand: The land in controversy considerably exceeds the quantity exempted from sale for debt by the constitution. Whatever difficulties may spring up to embarrass the administration of its provisions in cases with that feature, which may hereafter arise, there is none in the present at all insuperable. The principal defendant acquired his title through a mortgage of both of the tenants in common, who together owned the entire property, and mortgaged it to a creditor. At the time of doing this, both of them occupied, with their wives and families, the one dwelling-house and its appurtenances on the premises; and neither wife signed the mortgage deed. But, by a subsequent instrument executed by the same tenants in common and their wives, the same premises, including the dwelling-house, were conveyed in trust to another party, the complainant below and appellant here, in this cause. Now, we have already decided, in respect to a deed of a large tract of land made by the sole owner of it, but not signed by his wife, that though valid as to the rest of the premises, it is void as to the homestead property, and also that the husband and wife might afterwards sell or mortgage the homestead to another person. This is a valuable and important *363right, that may be used as a means of raising money, or procuring another borne. If, then, these rulings be extended, as I think they should be, to similar instruments made of property held by tenants in common, with a homestead on it, and therefore to those made of the property in controversy in this cause, how stands the case ? The first mortgage embraced all the land except what was exempt for the homestead ; and this passed to appellant under the deed to him, made by the two tenants (who together owned it in its entirety), with the concurrence of their wives. To appellant, therefore, is conveyed the complete title that was in both tenants in common, to the homestead property; and he holds it as sole owner.
No difficulty can arise, as suggested, upon the question whether two homesteads are to be taken out of the tract, or only one. We hold, under the description of the homestead in the constitution, as a tract — “not exceeding eighty acres of land, and the dwelling and appurtenances thereon * * * owned and occupied,” &c., that Avithout the dwelling-house there cannot be any such homestead; and since there is but one dwelling-house on this land, though the families of both of the tenants in common lived in it, there can be only one homestead. If, therefore, it happened that each of them had only one-half of what might be embraced within the constitutional limit of its extent and value, it is the consequence of his situation. Neither of them was any worse off, nor was his case in that particular legally any more questionable, than if, like many others, he had owned in entirety a homestead of inconsiderable value, or one so incumbered as to be worth very little.
The property having been sold under the first mortgage, professing to convey it all, defendants denied that complainant, bad any right in it. The question of title thereby raised depends wholly upon the construction of a constitutional provision, and .of its effect upon the deeds under which the parties respectively claim, and not upon any disputed fact; and the property to which it relates is in part an unascertained parcel, the boundaries of which are not prescribed, of a larger tract of land. That the homestead property is not all ascertained, is not caused by any fault of complainant. The terms in which the constitution grants the homestead right, leave the property to which it shall extend, beyond the dwelling-house and its appurtenances, undefined, uncertain, and to be set off in severalty. And when the mortgage and trust deeds of the tenants in common were respectively made, they probably expected to pay the debts secured thereby, without a sale of the property, or at least *364of all of it; for which reason, or some other, they failed to designate the land they were authorized to select, to go with the dwelling house, until their right to the homestead and interest in it had passed to another. And when the trust deed was made, the parties interested in it could not know that all except the homestead property would be required to pay the first mortgage debt; and that it was, therefore, important to have the homestead set off in severalty.
In conclusion, there was, in my opinion, a homestead right in the tenants in common. It was granted and intended to be secured by the constitution; and having been conveyed by the trust deed to appellant, it became vested in him. Eor every right their ought to be a remedy. That there might be, the State has established its various judicial tribunals. And if, in the course of asserting an expressly granted constitutional right, questions must arise which a common-law court is not competent to determine, and other instrumentalities for their solution are not provided by law, the aid of a court of equity may be invoked for that purpose, and to uphold the right. The present case is a proper one for its interposition. Complainant and defendants were at variance in regard to their respective interests. According to the views hereinbefore expressed, the former, when this suit was brought, was entitled to the homestead on the premises in controversy, to the extent of its constitutional limits. But it was in fact an unascertained parcel of a single, entire, larger tract, in which defendants also had and claimed an interest; and the location and boundaries which would enable each party to hold in severalty, were not defined. Complainant, besides, is a trustee, who is answerable over to his cestuis que trust for the right performance of his duties ; and he has shown a case which entitles him to the aid of a court of equity.
If the allegations of the bill in respect to the execution of the mortgage and trust deed, and the sale under the former, shall be admitted by defendants, or proved by the evidence to be taken, and nothing be shown that would impair their legal effect, then the chancellor ought to decree the mortgage of 1871 void as to the homestead property, and that this passed to complainant by the trust deed made to him ; and ought further, anless the parties come to an agreement on the subject, to appoint commissioners, and cause to be set off by 'iietes and bounds the land embracing the dwelling-house and appurtenances, and most advantageous thereto, not exceeding in area eighty acres, or in value two thousand dollars, as the homestead property, to be holden in severalty by *365complainant, subject to the trusts in said deed, and ought to cause him to be put in possession thereof.
A majority of the court hold that the chancellor erred in sustaining the demurrer to the bill; and that his decree dismissing it must be reversed, and the cause be remanded for further proceedings in conformity with this opinion.
STONE, J. —I have had much difficulty in solving the question, whether homestead can be claimed in lands of which the occupant is only a tenant in common with others. In personal property, held and owned in partnership, we have decided that the several partners can not claim exemption from sale on execution, under section 1, article XIY, of the constitution of 1868. The language securing the exemption under that section is so entirely like the language which protects the homestead for the use of the family under section 2 of same article, that I have found it difficult to draw a distinction between them. The argument of my brother Manning has very nearly, if not entirely, relieved me of that trouble. Each partner has an interest in, and lien upon the entire partnership property, for certain purposes. As between themselves, the partnership effects stand pledged for the payment of the debts of the firm; and it is only after all the liabilities are cancelled, and a balance left, that the several partners can claim a separate, or separable interest. Till then, the assets are not the subject of separate ownership. I speak, of course, of partnership effects, while the relation of partnership continues. When it is dissolved, and the ownership becomes several, a different rule prevails. Between tenants in common, the relation is different. Each owns a separable interest, and neither, by mere force of the relation, has any lien on the interest of the other. One may alien or incumber his interest, without affecting or embarrassing the equal rights of the other. The exemption of the interest of one from the payment of debts does not impair, or take away from the other, any right he has in- the property, or hinder the creditors of such other in the enforcement' of any liens or rights they may have to go against such interest.
I admit that, in allotting the homestead in lands held in common, some difficulties will be encountered. These difficulties will be enhanced, when, as in the present case, alien-ations have been made, which require a selection and carving out of the homestead, after the owner, in whose favor it is reserved, has ceased to have any interest, and, it is to be presumed, will not care to make the selection, if the right remain with him. Other cases might arise, in which it is not *366unreasonable to suppose the owner may fail, refuse, or be mentally incapable of selecting the homestead. Would the homestead, thereby, become lost to the family? Suppose the owner dies before it becomes necessary to make a selection. The constitution makes no provision for the selection by the widow, or by any one else, in such case. Are all the beneficial provisions of sections 3 and S of article XIV of the •constitution to be lost in such case? I think not. The varied and moulding powers of the Chancery Court would evidently come to the aid of such parties, and provide a remedy for the enforcement of this constitutional right.
The exemptions provided by the constitution are not intended to confer property, or to increase the ownership therein. They only protect and leave the owner in the undisturbed possession of such interest as he owns. Hence, they do not convert a tenancy in common into a tenancy in entirety. They do not relieve estates of incumbrances, or make absolute estates out of partial ones. Their theory is, that they put a lock on the machinery of the law, and place exempted property without the power and influence of its process. The area of the exemption is not enlarged, to compensate for defects of title, or fractions of ownership. Such interest, and such only, as the owner has in the given quantity exempted, is reserved for the use of the family; ana the owner and his family are permitted to retain and occupy it as it is, and only as it is.
I approve the arguments of my brother MANNING, on this question, and concur in his conclusions.
I incline to the opinion, that when the tract of land, on which a resident of this State resides — owned and occupied by him — exceeds the number of acres exempted, then the owner may select his homestead any where in the tract, although such selection may not embrace thq residence; and that the phrase, “ the dwelling and appurtenances thereon,” simply means, that the homestead selected carries with it whatever dwelling and appurtenances may be on it. My brothers, however, think and hold that the homestead must be so selected as to embrace the dwelling and appurtenances in wdiick the owner has his domicile. I do not dissent from their decision, but incline to the opposite opinion.