The plaintiff, Georgia Ann Slaughter, nee Latimer, asserts claim to the land in controversy under a deed executed by Joel Latimer in 1869. At that time Joel Latimer resided on the lands as a homestead, and continued to reside upon them until his death in 1874. When said conveyance was executed, Joel Latimer was a married man, and his wife did not join him in the conveyance. She survived him, and defends this suit as landlord, claiming a right to the possession. The tract of land sued for contains only seventy acres, and when the deed was executed, its value did not exceed five hundred dollars.
The deed from Joel Latimer to Georgia Ann Slaughter recites as its consideration, that he, Joel, in 1859 became administrator of the estate of said Georgia Ann’s father, of which she, the said Georgia Ann, was sole distributee, and that as such administrator he had received a large sum of money — $5,000 or more — which he had never paid or accounted for. This money was received by Joel in 1859, and the conveyance was made in partial payment of it.
It is settled by our decisions that the surviving widow’s claim of homestead exemption takes effect at the death of the husband, and is controlled by the law then of force, with the single qualification that, as against debts of the husband, it is governed in quantity by the law of force when the debt was contracted. Watts v. Burnett, 56 Ala. 340; Wilson v. Brown, 58 Ala. 62; Blum v. Carter, 63 Ala. 235; Giddens v. Williamson, 65 *512Ala. 439. Now,.as the debt of Latimer to Mrs. Slaughter was contracted before the constitution of 1868 became binding, and Mr. Latimer died after the act of April 23, 1873, had repealed all former exemption statutes, and before they were. re-enacted, February 9th, 1877,- — Code of 1876, § 2844 — it follows that as against Mrs. Slaughter’s claim, Mrs. Latimer is entitled to no homestead exemption whatever. This, because at the time her homestead exemption accrued by her husband’s death in 1874, there was no statute in force which secured exemptions against debts, contracted before the constitution of 1868 became binding. — Lovelace v. Webb, 62 Ala. 271.
The present action, however, is brought, and can be maintained only on Mr. Latimer’s deed, which bears date in 1869. Ejectment can only be maintained on a legal title and right to the immediate possession. Mrs. Slaughter must recover on her deed, or she can not recover at all; and her right of recovery must date from the date of her deed. The law courts can deal only with legal rights, and can enforce only legal remedies. The fact that the land in controversy can, by proper proceedings, be made subject to a debt contracted in 1859, can not aid a legal title which dates only from 1869. Till that deed was made Mrs. Slaughter had no jus i/n re. As a muniment of title to support an action of ejectment, that conveyance was void under the constitution of 1868, because it was Latimer’s homestead, and was executed without the volunatary signature and assent of his wife. — Miller v. Marx, 55 Ala. 322; McGuire v. Van Pelt, Ib. 344.
Affirmed.
At a subsequent day of the term, the appellants, by their attorneys, Shaver & Hutcheson, applied for a rehearing, in support of which they contended as follows: (1). The debt in payment of which this deed was executed, was contracted prior to the constitution of 1868, namely, in 1859. The deed was made in 1869, after the constitution became binding. At the time the debt was contracted, no mode of alienation of +he homestead was prescribed, and the husband could convey without the wife’s signature and assent. To pronounce the deed void, because it does not conform to the mode of alienation prescribed by the constitution of 1868, is to make that provision of the constitution retroactive. But such a construction would impair the obligation of contracts, and hence, would be violative of the Federal constitution. — Thomp. on Horn. §§ 10, 11, 12, 292, 469; Gunn v. Barry, 16 Wall. 610; Edwards v. Kearzey, 96 U. S. 595. (2). “ A.conveyance to secure a debt which isprwileged against the homestead exemption will pass the right of homestead, although the signature of the wife is *513imperfectly acknowledged or attested, or although the wife does not join in the deed at all, since, as to such debt, there is no homestead exemption.” — Thomp. on Horn. § 469; Wood v. Lord, 51 N. H. 448; Strachn v. Foss, 42 N. H. 46; Burnside v. Terry, 51 Ga. 186. (3). The homestead exemption clause-of the constitution of 1868, by express terms, applies to “ any debt contracted since the 13th day of July, 1868, or after the-ratification of this constitution.” And it further provides that. “ such exemption, however, shall not extend to any mortgage' lawfully obtained, but such mortgage or other alienation of’ stock homestead, by the owner thereof, if a married man, shall' not be valid -without the voluntary signature and assent of the wife of the same.” Here we have a, single section of the constitution creating -and defining a homestead and limiting it to certain debts in the first part, and prescribing a mode of alienation of such homestead at the conclusion. The words, such homestead, necessarily refer tó the homestead therein created and defined. As to debts contracted prior to the dates mentioned in the constitution, stock homestead did not exist; but as to those debts, another homestead existed, and no mode of alienation of that homestead has ever been enjoined. The mode of conveyance is expressly limited to the homestead therein created. Expresmm facit ces'sare taciitom. There is-no reason for holding that the first part of the constitutional provision under consideration has merely aprospectime operation,, and that the the remainder is retrospective in its operation. (4). There are two homesteads recognized by the law, the homestead of the husband or head of the family and the widow’s homestead. The husband’s homestead terminates at his death : the widow’s vests at that time and is dependent upon the law then of force. The husband’s homestead, then, is a life estate but in the conveyance in this ease, the husband reserves a life estate in the land conveyed — hence he does not convey his. homestead, and at his death in 1874, under the law then in force, the .widow was entitled to no homestead as against a debt contracted1 before the constitution of 1868 became binding, and hence there was then nothing to prevent the conveyance of the remainder in fee taking effect. — Thom, on Homestead and Exemptions, § 543; Lovelace v. Webb, 62 Ala. 271.