stbcd0™’ nSt^oin in «onveymg ■2. BWD AND WIpt fes may“testifyDefendant’s wife joined in the mortgage, only ^or ^10 Pul'Pose relinquishing dower. She had no interegj. yle homestead during her husband’s life, nor vested right to a future interest. The courts regard the family only in construingthe law, and determining its policy. The wife’s concurrence in the alienation of the homestead is not, in this State, necessary. Only confusion, on this point, arises from considering decisions from those States, where, by Statute is. She was entitled to'defend to avoid preclusion of L d°wer> an<^ <luoad hoe might testify for herself, care being t^hen to disregard it, so far as it might assist the defence of the husband. She failed to establish her defence, and, for the rest, her testimony may go for nothing.-
Passing by the interests of the. wife, we are called to determine, First: Whether the lots in the mortgage were, in fact, when it was made, a part of the homestead of defendant Kuobel; and, next: Whether, if so, they could be encumbered in the manner attempted.
.3. home-Husband ee uiePbusiiu‘ss on. The first is a question of fact. It appears that the deCendant had resided, with his family, upon an enclosed parcel of ground in Ft. Smith, embracing the platted lots, lying contiguous m one block, and that the whole enclosure was at first used for family convenience. It included, with the residence, a small garden, stable and open space, all together under $5,000 in value. All these might, under the Constitution of 1868, have been held as a homestead. Wassell v. v. Tunnah, 25 Ark., 101.
It is certainly reasonable that the owner of such a homestead, after its character, as such, had been impressed by residence and acts manifesting intention, should lie allowed to transact any business upon it he might deem necessary for the support of his family, to erect conveniences proper for the business, and to, occasionally, rent out such portions of the premises as could be temporarily spared. It would very much neutralize the advantages of a homestead if these things could not be done. It vrould discourage industry and domestic thrift; and so it has been held by many authorities, to be found collected in the text books, that the character of homestead, once impressed, is not lost for any portion of it, by such uses, alone. It is certainly true, upon the other hand, and equally reasonable, that any one may, by acts equally indicative of intention, contract the area of his homestead, by cutting off a portion .and appropriating it permanently to uses apart from his family conveniences. It is a matter of intention to be derived from the facts.
In this case, the owner, who was a stone mason, and also .a brewer, had, before the mortgage, erected a brewing house and carried on the business upon the mortgaged portion of •the premises, at intervals, from about the year 1857 to within two weeks of the date of the mortgage. During this period the brewery had been several times closed. There had been a cellar dug upon the same lot “for stowing away beer,” which had been used also for storing milk and vegetables for family use. Defendant, Knoble, slept in the brewery, not, it seems, for want of room in his house, but •on account of the business, and because he did not live pleasantly with his wife. The dwelling was wholly on the part of lot five, not mortgaged, and upon lot four, making, independently of the mortgaged premises, a front of seventy-five feet running back one hundred and forty. It consisted of.two rooms and a kitchen. The family consisted of himself, wife and six or seven children. Plaintiff knew the family and the situation of the premises. There was also a stable on the back end of lot six. The garden occupied the back ends of lots four and five. The defendants say, further, that the brewery was always considered a part of the homestead, and that the main dwelling was considered toe small for the family.
Upon this evidence we think the Chancellor properly considered the character of the homestead, as impressed at the time of the mortgage upon all three of the lots. .They might have been scheduled as such, against an execution, as-was done in Wassell’s case, (supra).
4. same: oítxm°afr 1868'31 01 Estoppel, A more difficult question, and one entirely new, is presented by the use of the words in the mortgage, describing^ie an<^ a ^a-lf conveyed ; ‘‘the same being the lots upon which the said Joseph Knoble now has a brewery, and not a part or parcel of Ms homestead.” By plain principles of law these words will estop the defendant from claiming the mortgaged lots as a part of his homestead, unless it should appear from the circumstances that such estoppel would contravene the policy of the law. Neither in law nor in equity is an estoppel allowed to have that effect — either to remove an incapacity depending on facts, or to establish conclusively a state of things without which the instrument would be invalid. The reason is too obvious to admit of question. The law might, otherwise, at times be evaded* or its policy defeated by a few strokes of the pen. The question then really is, conceding that the homestead, up to this time, embraced all, does this mortgage, executed under the circumstances, contravene any public policy or violate any law ? Have the parties by force of an estoppel, attempted to do what otherwise they could not have done?
If so, the mortgage cannot be upheld. If not, it should be enforced.
The constitution of 1868, then in force, amongst other things, exempted as a homestead, in the hands of every married man or head of a family “ any lot in any 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 five thousand dollars and provided further, that it should “ not be encumbered in any manner while owned by him,” except in certain cases not here in question.
Actual residence is a palpable thing of which every one must take notice, and aiiy attempt by a lender to take, or a borrower to give a mortgage on an actual residence, must of necessity be an effort to evade the constitutional policy.. It would be mere child’s play to enable the lender to neutralize that, by exacting from the borrower a statement in the instrument, denying the character of the property, and then closing his mouth by an estoppel.
But this is not exactly, nor, indeed, substantially such a case. The defendant retained his dwelling-house, and a considerable amount of ground with it; seventy-five feet in front, running back one hundred and forty feet, to an alley. What he cut off constituted no part of his actual residence, although occasionally used for family convenience, The brewery-house and cellar had not been built with a view to domestic convenience. The head of the family slept there, mostly, but that is explained by the necessity of watching the brewerage, and by his disagreeable relations with his wife. The use of the cellar, for vegetables and milk, was not designed in its structure. It was for storing beer. There is no proof of the uses of the stable. It may have been to keep a horse for the business of the brewery, or it may have been for family purposes.
. Minimum f^Sted £y It is to be observed that the Constitution does not limit the minimum extent of the lot. The resident majr make his homestead as small as he pleases, provided it be not so tracted as to show an intent to evade the law, by making it too small for actual use as a homestead.- This is a matter to be determined by a Chancellor, or a jury, on evidence. Provided he does not retain a homestead fairly reasonable in extent, with his actual residence upon it, there is nothing in the policy of the Constitution to prevent the owner from utilizing other portions of his property as a basis of credit— although he might, if so disposed, have held it all against execution. His design so to separate it, may be as fairly inferred from acts and circumstances, as was his orignal design to invest it with the homestead character.
. There is no mode prescribed by which he must declare his intention before encumbering the part separated. Why should he be' burdened with the expense of first taking it out of the same enclosure, or running a cross fence? If he has a right to do the thing, he has the right to manifest his intention in his own way. It is the doing of the thing, not the mode of doing it, which contravenes the law, if it be contravened at all.
Some perplexity has arisen in our minds, from a class of cases in equity, arising under laws made for the protection of persons supposed to be under a pressure of undue influence from creditors or lenders. The general current of authority is, that they are not allowed, contemporaneously, with the loan or benefit, and by the same instrument given for security, to waive the. benefit of the protection. A familiar instance is the case of a note given, waiving all exemptions ; or a deed of trust, waiving the right to redeem, after sale, in those States where that right is given for a limited time by Statute. But those are all manifest efforts to elude laws, which throw a shield over an unfortunate class, who require to be protected against their own improvidence. In the case now in judgment, giving full effect to the mortgage, the defendant would still appear to be left in the possession of a fair and reasonable homestead — suitable "to his condition in life. This is all the constitution contemplated. The court can take notice of the general course of human affairs, and knows that a large number of home•steads, and tenement houses, in towns and cities, are upon .areas much smaller than that reserved by the defendant, .and make comfortable residences.
The result of the reasoning is, that one owning a lot in a 'town might, then, to any reasonable extent, have retained the whole of it as a homestead, if kept for family convenience or pleasure. But he was not required by any policy to retain forever, as part of his homestead, more of it than he might deem reasonably sufficient, and might determine to hold and use the balance as other property. He might manifest his intention in any sufficient way, without being ■driven to visible separation by walls. Any facts or circumstances showing a permanent design, may be considered. -As it was a thing, in itself, which he might properly do, it would show no intent to evade the law to declare it in a mortgage of the property so divested of its homestead char-acter. With this qualification that the amount retained must appear to be reasonable, and bona fide, and not color-able.
It appeal’s to us that the Chancellor, under the circum.-stances shown, erred in holding the mortgage void as against public policy, and should have decreed a foreclosure.
Reverse the decree and remand the cause, with instructions to the court below to decree and execute a foreclosure, in accordance with this opinion and the practice in equity.