I am constrained to dissent from the decision in this case. It is said that an action to reform an instrument for a mistake is in the nature of a suit for specific performance of a contract, and that no performance will be enforced against a married woman because her contracts are void. Whatever reason there may have been in this rule formerly, I think it fails upon the facts of this case, in view of the legislation of this state. The common-law disabilities of' married *453women, so far as tlieir separate estate is concerned, is entirely removed by statute. She may make contracts relating to such estate in the same manner and to the same extent as though she were sole, and subject herself to all legal and equitable remedies on such contract. As early as Conway v. Smith, decided nearly twenty years ago, it was held that a married woman was liable in an action at law on a note executed by herself and husband, to pay for improvements on her separate estate; and the doctrine of that case has been repeatedly affirmed since. Indeed, at the present term we have decided that a married woman, having no separate estate, may purchase upon credit a farm, carry it on, and have the benefit of the crops, thus acquiring a separate estate. Dayton v. Walsh. See, also, Meyers v. Rahte, 46 Wis., 655. Thus, in respect to her own property, a married woman has precisely the same legal capacity to make contracts as a single woman.
I refer to this legislation for the purpose of observing that decisions in actions for the specific enforcement or reformation of contracts executed by husband and wife, where the common-law disabilities of coverture exist, are to be applied with much caution to their contracts made in this state. The property intended to be mortgaged in this case was the homestead of the husband. By our statute, a mortgage or other alienation by a married man of his homestead is not valid without the signature of the wife to the same. In Godfrey v. Thornton, 46 Wis., 677, it was held that this statute did not vest any estate in the wife, living the husband, in the homestead, but operated only as a disability of the husband, living the wife, to alienate his homestead, without her consent, evidenced by her signature to his alienation. In this case, the wife did consent to the husband’s mortgaging his homestead. She evidenced that consent by signing and acknowledging the mortgage, which, as the court below found, was intended by all parties to include the homestead.
Why, then, should not the mortgage be reformed so as to *454correct tbe mistake in the description, and make it express the real contract of the parties ? It is said that this cannot be done, because the wife, quoad the homestead, stands where she did at common law, subject to the same disabilities. But if this is so, what is the object of the statute making the alienation of the homestead by the husband valid, with her consent evidenced in writing? Is there no efficacy in that statute; no power to contract conferred by it upon the wife? Certainly, it makes the written assent of the wife essential to the validity of the husband’s alienation; it is potent to change to that extent, at least, the common-law status of the wife. Upon the facts, I can see no objection whatever to correcting the description of the property so as to make the mortgage include the premises which all parties intended and supposed it did include when executed. On the decease of the husband, the wife became possessed of the property as heir-at-law. After being so possessed, she recognized the validity of the mortgage by taking out a policy of insurance on the premises, making the loss payable to the mortgagee. If she really had no power whatever to make a contract in the first instance, these circumstances might not increase the equities of the mortgagee; but as it is, they tend to show the contract the parties intended to make. The intent being clearly proven, the wife having consented to the husband’s mortgaging his homestead, the mortgage should be corrected to express the contract of the parties.
In Schmitz v. Schmitz, 19 Wis., 207, an action was brought to correct a mistake in the description of a mortgage executed by' a husband and wife on the homestead. The mistake was corrected in the court below so as to carry out the intention of the parties to the instrument. On appeal to this court, the point was made that the mortgage could not be corrected or reformed, because it was executed by a married woman. But the court did not have occasion to pass upon the question, as it held that the evidence in the case clearly identified the *455premises embraced in the mortgage as being the same before as after the correction, so that the defendants could not have been injured by the correction. In Smith v. Armstrong, 24 Wis., 446, husband and wife contracted as vendors of land, and a specific performance of the contract was enforced in favor of the vendee. True, there was no question made as to the power of a married woman to make the contract; it seems to have been assumed that she had such power,, and that a court of equity would enforce her contract in-that behalf.' Other cases of like effect may be found in our reports, where the question as to the validity of a contract of a married woman does not seem to have been raised. These cases only have a negative value, perhaps. But my intention was not to discuss the question at length, but only state some of the reasons why I dissented from the decision.
On an «qual division of the justices present and acting in the determination of the appeal, the judgment below was affirmed.