dissenting.
I am unable to concur in the opinion of my associates. When this case was before us on a former occasion we held that the contract by which Frederick Teske agreed to convey all of his farm in Madison county, Nebraska, to his son Carl Teske, was valid, and binding on him as to all of the land therein described, except his homestead interest, and was void as to that interest only, because it was not signed and acknowledged by his wife, who was then living. The homestead interest then was what was retained by Frederick and his wife, and they undoubtedly were entitled to have it admeasured and set off to them at any time they chose to demand it. They made no such demand, but delivered possession of all of the land embraced in the contract to Carl, and lived with him for. many years on the whole tract in accordance with the terms of the contract. Frederick finally became dissatisfied about some unimportant matter, when he left the home and went to Mrs. Dittberner’s, to whom he then conveyed the whole of the land embraced in the ^contract. Now, having held that Frederick was bound by the contract to convey to Carl all of the land *706except so much as would constitute a homestead, or in other words, his homestead interest, it follows that he could, convey nothing to Mrs. Dittberner beyond that interest. Therefore, it seems plain that she obtained nothing by the deed in excess of that interest, which was so much of the land in value and extent as would then amount to $2,000. This she was then, and not before that time, entitled to have admeasured and set off to her. I am of opinion that Ave should so hold. To determine otherwise and declare that she was entitled to have so much of the land as would amount in A’alue and extent to $2,000 at a date many years before she acquired any interest therein, would be to give her more than she received by Frederick’s conveyance, and would result in depriving Carl of a portion at least of what he had earned, and was justly entitled to receive under his contract.
It therefore seems clear to me that the judgment of the trial court should be Reversed and the cause remanded, with instructions to appraise the land and admeasure and set off to Mrs. Dittberner so much of it as at the date of her deed would amount in extent and value to $2,000.