The opinion of the court was delivered by
Powers, J.This is an appeal from the decree of the court of chancery dismissing the orators’ bill. The material facts set forth in the bill, may be summarized as follows: Robert Maranville, on the 27th day of October, 1868, was the owner, and, with his wife and minor children, was in the occupancy of certain premises in Pittsford, in which they had a homestead, and on that day Robert, by his sole deed, mortgaged said premises to one Curtis *378to secure an indebtedness then created. The Curtis mortgage was afterwards assigned to the defendant; and the mortgage debt being due and unpaid, the defendant commenced foreclosure proceedings against Robert, obtained his decree, and the time for redemption having expired, took out a writ of possession, and being about to execute such writ, this bill is brought in the name of Robert and his wife and minor children, setting up a homestead interest in the premises, and asking that commissioners be appointed to set out such homestead. The defendant demurs to the bill, and hence the facts are to be taken as true.
The defendant insists that Robert is estopped by his deed from questioning the title of the defendant under the mortgage, and that his deed had the effect to pass the title to the homestead during his lifetime, and that the rights of the wife and minor children to the homestead could only attach at his decease. In support of the latter proposition, the defendant relies upon the cases of Howe v. Adams, 28 Vt. 541; Davis & wife v. Andrews, 30 Vt. 678; and Jewett et al. v. Brook et al. 32 Vt. 65. Howe v. Adams is the earlier case, and upon it the others in some measure hinge. In that case, the husband, by his sole deed, conveyed the homestead. After such conveyance, a creditor of the husband whose debt accrued before the homestead law took effect, attached the homestead premises, and having obtained judgment upon his debt, levied his execution thereon, and the question in the case arose upon an ejectment brought by the creditor against the husband’s grantee. Now, it is obvious that the rights of such a creditor stand in an entirely different relation to the homestead estate, from the rights of the wife and children of the owner of the homestead, or the rights of creditors whose debts accrue after the homestead is acquired. By the express language of the homestead act, the homestead was liable to attachment upon debts existing before the law took effect, or before the homestead was acquired. As against such debts, there was no homestead, — the property remained as it was before the law was passed, and as the husband plight by his sole deed convey the property before the passage of the act, so after its passage he might do the same as against those creditors whose debts were superior to the home*379stead interest. This is all that is decided in Howe v. Adams. The effect of the husband’s deed upon the rights of his wife and children, or upon debts created after the homestead is acquired, is not involved in the case. In discussing the real question in issue in that case, the court uses language that bears directly against the claim of the defendant in the case at bar. The court say: “ But we are inclined to think that as to creditors whose rights are superior to the homestead interest, the act should be so construed, and the limitation upon the conveyance only extended to those persons whose interests are liable to be affected by the exception in the statute, that is, the wife and family and creditors ivhose interests are subordinate to the homestead interest.” The case of Davis wife v. Andrews turned upon the fact that the plaintiffs had abandoned the premises constituting their homestead. As the law then stood, a personal occupancy of the premises was essential to the homestead right; and the plaintiffs having abandoned the premises as a home prior to the deed to the defendant, had no homestead, and hence the limitation upon the husband’s right to convey, expressed in the homestead act, did not apply. The court in that case, it is true, use language that might seem to support the proposition of the .defendant in this case ; but they do not seek to extend the doctrine expressed in Howe v. Adams ; and citing that case as an authority for the views which they express, it is evident that they only intended to keep in its wake. In Jewett et al. v. Brock et al., the question came up as in Howe v. Adams, between a creditor whose debt was older than the homestead and the grantee of the husband, and the case was decided according to the doctrine enunciated in Howe v. Adams. Had the question arisen between the wife of Eastman and the parties holding the Tucker mortgage, the court, doubtless, in accordance with the views expressed in the above quotation from the opinion in Howe v. Adams, would have held the deed void as to the wife.
But whatever may be said of these cases, decided under the statute then in force, we are all agreed that the statutes now in force relating to the homestead, are sufficient authority for sustaining the bill in this case. The act now in force, and which governs this case, was passed since the above cases were decided, and pro*380vides, in substance, that no- homestead, nor any interest therein, shall be conveyed by the husband, and that his sole deed shall be wholly inoperative to convey any interest in the homestead. Surely, no more explicit language could be used to negative the right of the husband to convey either his own or his family’s interest in the homestead. His deed is absolutely void — he has no capacity to deed — and the title to the estate remains as if no deed-wore executed. This being so, no title whatever to, or interest in, the homestead of Maranville and his family, passed to Curtis under his mortgage ; and hence Lothrop got no such title or interest by his assignment of the mortgage ; and his decree, being limited by his mortgage, does not reach such title. Now then the attitude of the parties is this : the orators, as the bill states, are in the possession and occupancy of their homestead estate, and the defendant, without any title to such homestead estate, seeks to oust them. Can it be doubted that their possession even, is a better right than the defendant has ?
We think that the interest of the wife and children of Maranville in his homestead, was not affected by his deed to Curtis, and that they have a right of occupancy in the homstead, and are properly joined with the husband in a bill brought to arrest proceedings which threaten such occupancy.
It is urged that Maranville himself is estopped from setting up a homestead interest in the mortgaged premises. It is an essential element in the doctrine of estoppel by deed, that the deed itself which it is claimed works the estoppel, should be a valid instrument ; and as we hold his deed invalid as to his homestead, we do not think Maranville can be barred from claiming what he has never parted with. Doe d. Chandler et al. v. Ford, 3 Ad. & Ellis, 649; Housatonic Bank v. Martin, 1 Met. 294; Bigelow Estop. 283, 598.
The result is, the decree of the court of chancery sustaining the demurrer and dimissing .the bill, is reversed, and cause remanded to that court, with leave to the defendant to make further answer if he desires.