dissenting, filed the following opinion:
I am unable to agree with my learned associates in the construction they give to the homestead exemption law of 1851. It has seemed to me, that the exemption of a homestead, is intended more for the benefit of the debtor’s family, than of the debtor himself; to guard the wife and children against the rapacity of creditors, and the improvidence as well as the misfortune of the husband and father. Such a construction, therefore, should be given the statute as would afford the protection contemplated by the passage of the act. Put to so construe it as to permit the husband, by a simple mortgage, in which the wife does not join, and of which perhaps she is utterly ignorant, to bind the homestead, to the entire exclusion of the family, is to deprive the wife and family of all protection from the law, and enables a weak or unworthy husband to sacrifice the hallowed home with all its clustering associations, to satisfy the demands of unfortunate creditors. Such a construction to my mind defeats the very object of the law, opens wide the door to fraud, and invites the schemes of the unprincipled and
*61I regard the homestead law as recognizing these family rights, and placing them beyond the control of the husband as well as his creditors. Sec. 93, provides that no release or wamer of the exemption of the homestead shall be valid unless the same be in writing, signed by the householder cmd his wife, if he have one, and acknowledged, in the same manner that conveyances of real estate are acknowledged; evidently intending by this provision to put it out of the power of the husband to deprive the family of the homestead, without the full consent of the wife. Can we then reasonably come to the conclusion that in the very next Section, and indeed in the very next sentence, the Legislature intended to undo what they hadjust done, and give the husband absolute control over what they had just guarded with such zealous care ? The succeeding Section, it is true, provides that “ such exemption shall not extend to any mortgage thereof lawfully obtained,” but this must be construed with reference to the provisions of the Section preceding, and the general object of the exemption. I hold that a mortgage is here referred to, only as being one mode of releasing the homestead from the exemption attached to it, and believe that the words “ lawfully obtained,” have direct reference to the manner in which that release must be executed, according to the preceding Section, in order to be valid and binding on the wife. If, however, the husband could without consent of the wife, mortgage the homestead at pleasure, and the exemption does not extend to such a mortgage, then the homestead law which we have affected to regard with so much favor? as protecting the family against the husband as well as the creditor, becomes a mere farce.
If this statute must have a literal construction, and the exemption cannot extend to mortgages, it would, in my opinion, be but reasonable to confine its application to such mortgages only, as had been obtained, prior to the passage of the law. This it is conceived would be more in accordance with the spirit of the age, and the design of the Legislature, as generally understood and acted upon from the time this law was passed, to the commencement of the present action.
The act of 1858, is referred to, as establishing the construe*62tion asked by the Plaintiff, but to my mind, that act is declaratory only, and tbe provision referred to, inserted only to put the question here at issue beyond controversy.