(dissenting.) — The nature and importance of the question call for a brief statement of the reasons, which compel me to dissent from the conclusion, that the lien created by the official bond of the tax-collector attached to a homestead which he had sold and conveyed before suit on the bond.
Section 2 of article 14 of the constitution of 1868, which was in force at the date of the bond, provides, that any lot in a “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 otherfinal 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.” Under our constitution, the rule has been rejected, which prevails in some of the States, that a lien, however created, attaches to the homestead, but remains dormant during its occupancy, and comes into vitality on its cessation. While actual occupancy as a homestead is requisite to the claim of exemption, the owner’s power of alienation, when so occupied, is unrestrained except by the requirement bf the voluntary signature and assent of the wife, acknowledged and certified as provided by statute. A creditor has no right to subject the homestead, because the owner and occupant may have conveyed it to another, though the conveyance may be voluntary, or made under circumstances, which stamp it as fraudulent, being without injury to him. But a conveyance without such signature and assent of the wife is a nullity, conferring no rights, and if, on the execution of such conveyance, the owner abandons the homestead, the lien, eo instanti, attaches. — Fellows v. Lewis, 65 Ala. 343; Alford v. Lehman, 76 Ala. 526.
In construing constitutions, the form or manner of expression should not be regarded, so much as the nature and purposes of the provisions, the evil to be remedied, and the benefit *553to be secured — -the end to be accomplished.— Carroll v. State, 58 Ala. 396. A State constitution should be interpreted in the light of the common law, when pertinent, and of its predecessors, if any. Exemptions of-property from the payment of debts, which, in the absence of statutory or constitutional provisions, would have been subject, has been the policy of the State from its earliest organization ; and from time to time statutes have been enacted enlarging the kind and quantum of the property exempted. Provisions were incorporated for the first time in the organic law, expressly declaring exemptions, in the constitution of 1868. These statutory and constitutional exemptions are founded in a humane and benevolent policy, looking to the promotion of the public weal, by protecting the wife and children against ihe improvidence of the husband and father, and securing to the family a home, a shelter from misfortune and adversity ; and in furtherance of this beneficent policy, in which they originated and have been perpetuated, they have always received a liberal construction.
The security and protection of the homestead seem to have been an object of special care, and a special end to be accomplished. Though personal property is also exempted, the owner retains unrestricted power to transfer, or to create liens thereon ; whilst as to the alienation of the homestead, preventive power is conferred on the wife — no mortgage or other alienation shall be valid without her voluntary signature and consent, whatever may be its form. A mere contract to alienate, though operating if it were valid as a conveyance of an equitable title, and having the voluntary signature and assent of the wife, does not give a right to insist upon a conveyance of the legal estate. The courts cannot compel the wife’s performance. — Jenkins v. Harrison, 66 Ala. 345; Phillips v. Stauch, 20 Mich. 369. It will scarcely be controverted, that an equitable mortgage comes within the letter and spirit of the constitutional provision, and that no lien attaches to the homestead under such mortgage, which the courts will enforce, certainly without the signature and assent of the wife. The lien on the property of the tax-collector, which the statute declares shall be created by the execution of his official bond, is founded in contract, as much as that of a mortgage would be, and on this ground are based the right of subrogation, and the power of the court to enforce the lien. In Knighton v. Curry, supra, it is said : “The statute subjecting the property of a tax-collector to a lien for any default he may commit, the lien attaching on the execution of his official bond, is of the same dignity' it would be, if in express words it was written as a stipulation of the bond. If so written, the bond would only repeat and declare its legal effect and operation, And if so written, in the absence of the statute, it *554would operate as an equitable mortgage, and as such a court of equity would enforce it.” — County of Dallas v. Timberlake, 54 Ala. 403. A lien thus created and of such nature can have no more force or operation to deprive the owner of the homestead, than an equitable mortgage would have, or than if the lien, independent of the statute, were expressly stipulated in the bond. In Illinois, the statute provided, that the homestead shall be exempt from levy and forced sale for debts contracted after a stated time; “and no release or waiver of such exemption shall be valid unless the same shall be in writing, subscribed by such householder, and acknowledged in the same manner as conveyances of real estate are by law required to be acknowledged.” The bond of the tax-collector was also declared by statute to be a lien on all his real estate, within the county, at the time of filing thereof. Under these statutes, it was held that the lien can not be enforced as against the homestead ; that “the homestead right is protected against all liens and sales, and against all modes of conveyance, whether by deed absolute or mortgage, unless it shall be released or disposed of in the mode prescribed by the act. — Hume v. Gossett, 43 Ill. 297. The constitution does not secure the homestead as a personal privilege of the debtor, but as an absolute right, essential to the well being of the household, of which he cannot be deprived, except by alienation with the voluntary assent of the' wife, accompanied by her signature. By express provision, the exemption does not extend to a mortgage lawfully obtained, and executed in the mode prescribed. The section being general, conferring an immunity, and expressly excepting a specified lien, indicates the exclusion of all other liens, unless otherwise provided in the constitution. — Hxpressum faeit, eessare taciturn. Moved by the frequent necessity of a waiver of exemptions, the framers of the constitution of 1875, while incorporating therein verbatim the homestead exemption as declared by the former constitution, provided another and additional mode of waiving the exemption, but still requiring the signature of the wife. In view of the policy of exemptions, and giving the constitutional provisions a liberal construction, the inference arises, that it was intended, the owner being a married man, that the household should not be deprived of the homestead, directly or indirectly, by being subjected to debts contracted by the husband, in any mode other than specifically prescribed, or otherwise authorized by the constitution. To this end, the voluntary signature and assent of the wife in the mode provided is essential. Under the constitution, the legislature could not declare a lien, to be created by the contract of the husband as security for a pecunia^ liability, which the courts can enforce against the homestead, without regard to the *555signature and assent of the wife. I do not wish to be understood as intimating a doubt of the correctness of the decisions, which hold, that a right of exemption can not be asserted, under the constitution and the statutes,, against a judgment for a tort. No lien arises in such case until judgment and execution thereon. But I do not regard, as a logical sequence from this rule, that a lien, which does not necessarily depend on the commission of a tort, but is created by the execution and filing of the bond, and rests in contract, should be declared and enforced on a homestead, which the tax-collector has sold and conveyed before judgment is rendered against him in his official capacity— a homestead which can not be sold .by virtue of the execution lien, and can be subjected only by enforcing a prior contractual lien. No reference is intended in this opinion to the exemption so far as enlarged by'mere statutory provisions, as to which, it may be, different rules should be applied.