The bill of exceptions, as to one point reserved, is in the following language: “The defendants then asked the court to give the following charge, which was in writing, viz., ‘If the jury believe the evidence, thejr must find for the defendant’, and plaintiff objected to the giving of this charge. The court overruled plaintiff’s objection, and. gave the charge to the jury; to the giving of which charge the defendants jointly and severally excepted.” The recital quoted, that the defendants excepted, is so manifestly a clerical misprision that we will treat the exception as having-been projierly reserved by the plaintiffs.
We entertain no doubt that, under the facts adduced on the trial, the land in controversy constituted the homestead of Winfrey Bonds on January 5, 1880, the date of the attempted conveyance by him and his wife to Sprague.—Smith v. Pearce, 85 Ala. 264.
*269The one other question presented by this record is, whether, in case the wife fails to acknowledge a conveyance of the homestead, as required by section 2508 of the Code, at the time of its execution, or subsequently during the life of the husband, she may do so efficiently, as against the heirs, after his death. The point has not been decided in this State, nor elsewhere that we are aware of. It has been several times adjudged, that the certificate of such acknowledgment may be added, and that the acknowledgment itself may be made, at any time after the signing of the deed, and be effectual by-relation from the date of signature, provided the rights of purchasers or creditors have not supervened.—Johnson v. McGehee, 1 Ala. 186; Nelson v. Holley, 50 Ala. 3; Hendon v. White, 52 Ala. 597; Balkum v. Wood, 58 Ala. 642; Cahall v. Citizens' Mut. Build. Asso., 61 Ala. 387; Smith v. Pearce, supra; Vancleave v. Wilson, 73 Ala. 387. And in some of these cases it is said, that such after acknowledgment and certificate will have relation back to the delivery of the instrument, and validate the otherwise void conveyance from that time, as against the grantor and his heirs.—Hendon v. White, supra. We apprehend, however, that what was meant by this reference to heirs was no more than this, when applied to a case like the present: that where the subsequent acknowledgment was made in the life-time of the husband, neither he, nor his heirs after his death, could impeach the deed thus perfected. The acknowledgment involved in that case was made by the grantor himself, and hence no question arose, or could have arisen, as to the vested rights of his heirs. No other of the cases refers to heirs at all, and the question now presented is, we repeat, new to this court, and entirely an open one so far as adjudications in this or any other States are concerned.
On principle, however, it seems to us clear, that the acknowledgment relied on here can not have the effect claimed for it. This conclusion, it may be admitted, is to the last degree inequitable, in that it involves payment to the ancestor, for lancls which notwithstanding pass to the heirs; but it can not be avoided, without violence to well settled legal doctrines. The deed of Bonds and wife to Sprague, being of the homestead, and not acknowledged by the wife, as. required by the statute, was absolutely void.—Code, § 2508;, Crim v. Nelms, 78 Ala. 604; DeGraffenreid v. Clark, 75 Ala. 425. The husband, at the time of his death, had a perfect title to the land. The deed had no operation by way of estoppel, or otherwise, against him. It was an utter nullity.—McGuire v. Van Pelt, 55 Ala. 345; Halso v. Seawright, 65 Ala. 431; Alford v. Lehman, 76 Ala. 526. Upon his death, *270liis perfect title passed instantly into 1ns lieirs, the plaintiffs in this suit. With the title thus lodged in Bonds’ children, his widow has no connection. In the lands she liad no interest, except in recognition of the title of the lieirs. No estate then existed out of the heirs, which she could convey, except by way of release to the heirs themselves. It would be an anomaly, indeed, to hold under this state of law and fact that the widow, thus without alienable interest of any land or to any extent in the land, could, by the mere acknowledgment of a deed, which ivas essentially a nullity when the heirs took a perfect title, defeat their rights, and in legal effect convey their lands info third persons.
We do not think it can be done. We apprehend that the power to give vitality to such a void conveyance, by after acknowledgment, ceases whenever the estate, assuming the invalidity of the deed, has passed into third persons, or rights of third persons have attached to it. We can not conceive that it can be material whether these third persons are heirs, devisees, purchasers or creditors, or whether their estates or rights have accrued by descent, devise, sale, or judgment liens. This conclusion, we think, is enforced by a consideration of two clearly established, propositions of law: First, a deed can not be delivered alter the death of the grantor; second, that the mere fact that the deed of the homestead, void for the lack of the wife’s privy acknowledgment, is given into the possession of the nominal grantee, is only a conditional delivery, and a conditional delivery, unless it be in escrow, is, in legal contemplation, no delivery at all. Prom these postulates it results, that the deed had never been, and could never be delivered, and nothing that the widow could do could, in any way, affect the title of the heirs.—Cahall v. Citizens’ Mut. Asso., 61 Ala. 246; Jackson v. Leek, 12 Wend. 105; Sholnberger v. Look, 34 Pa. St. 24; Fischer v. Hall, 41 N. Y. 416; Fay v. Richardson, 7 Pick. 91; Woodbury, v. Fisher, 20 Ind. 387; 5 Amer. & Eng. Encyc. Law, pp. 450-1.
These views necessitate a reversal of the judgment, and a remandment of the cause.
Reversed and remanded.