On Rehearing.
Fisk, J.Appellant’s counsel filed a petition praying for a rehearing upon several grounds therein set forth.. After considering such petition, we granted it upon the sole question whether the cause should be remanded for a new trial, as we ordered, or the action dismissed. The respective counsel have submitted written arguments on such rehearing, covering practically all of the points involved in the first opinion. Owing, however, to the importance of the questions, as well as the insistence of counsel for both parties of the correctness of their respective views, we have carefully reconsidered some of the more perplexing questions in the case, and, while we are forced to admit that they are not free from doubt, we have concluded to adhere to the views first expressed, and will,’ as briefly as possible, here supplement our former opinion by setting forth additional reasons for the faith that is in us, and also endeavor to point out more clearly to the trial' court and to counsel what we deem the proper practice to be pursued on such new trial.
Counsel for respondent, while not presenting a petition asking for a rehearing upon any of the points decided against his client, vigorously challenges the correctness of the court’s decision in some particulars *384which, deserve consideration. He makes an ingenious and quite plausible argument in support of his contention that the area and value of the homestead of plaintiff and family are wholly immaterial in a case like the one at bar where the rights of creditors are in no way involved, •and he cites and relies upon certain authorities as controlling, and especially the cases of Meisner v. Hill, 92 Neb. 435, 138 N. W. 583; Anderson v. Schertz, 94 Neb. 390, 143 N. W. 238; and Calmer v. Calmer, 15 N. D. 120, 106 N. W. 684. The last case was a controversy between the widow and certain heirs, and it was held that the rights of the widow are superior to the rights of the heirs as to the ■entire homestead, regardless of its value, where, as prescribed in § 6392 (now § 8090, Rev. Codes 1905), the value thereof exceeds the ¡sum of $5,000, a/nd such homestead cannot be divided without material ■injury. The learned judge who wrote the opinion very properly held that under such circumstances “the rights of the widow and the minor -children to the family homestead are very properly recognized as superior to those of the heirs. If the homestead cannot be divided without material injury, the family home must be preserved intact as ■against the heirs, whose right to inheritance is inferior in degree, and ¡should be postponed to the right of the decedent’s family to their home, ■even though the homestead exceeds $5,000 in value.” Indeed, in the light of such express statute to that effect, the court could not have held otherwise. Effect was merely given to the plain language of the ¡statute. This statute is manifestly just and humane. It does not take away the heir’s right of inheritance, but merely postpones the enjoyment of such right in the exceptional cases referred to. It is important, however, to note that the legislative policy, in dealing with the homestead as between the widow and the heirs in all cases not coming within such exception, is to restrict the homestead estate, in both area and value, to the limits prescribed in § 5049, Rev. Codes 1905, governing the extent and value of the homestead exemption. In view of such express legislative policy limiting and restricting the homestead as to both area and value, not only in favor of creditors, but also of heirs, how can it be seriously contended that no such restrictions or limitations were contemplated in favor of vendees ? Respondent’s contention, in effect, is that in enacting § 5052, providing that “the homestead of a married person cannot be conveyed or encumbered, unless *385the instrument hy which it is conveyed or encumbered is executed and acknowledged by both husband and wife,” the legislature used the word “homestead” in its broad and popular sense, and without any intention of restricting its meaning in accordance with the restrictions employed in the other sections of the statute, both with reference to exemptions and to the rights of heirs to inherit. The necessary result of such a holding would be that if A, who owns a section of land worth $50,000 with a dwelling thereon worth $10,000 upon which he and his family resides, as their home, gives to B for a cash consideration of $60,000 a deed thereto, without his wife joining, such deed is void in ioio and will, at the suit of A or his wife, be declared to convey nothing to B. We are unwilling to impute to the legislature any such intent. Why such discrimination against the vendee and in favor of heirs possessing no contract rights ? The vendee B under such circumstances .stands, it would seem, in as equitable a position as A’s creditors. He, no doubt, could become a judgment creditor of A by rescinding the contract of purchase and prosecuting an action against him for the recovery of the cash purchase price paid (De Kalb v. Hingston, 104 Iowa, 23) 73 N. W. 350), in which event nothing would be exempt in excess of the area and value of the homestead as fixed in § 5049. A could also in any other way become a debtor of B without his wife’s knowledge or sanction, and as against the claims of B in this form A’s wife, of course, eould not assert a homestead claim in excess of the limit aforesaid. The Nebraska court in Swift v. Dewey, 20 Neb. 107, 29 N. W. 254, in .speaking of the rights of mortgagees under similar circumstances, said: “The right of the defendants, Dewey & Stone, to proceed against the property of the plaintiff, Barnabas E. Swift, were the same as those •of a judgment creditor, neither greater nor less.” We are firmly persuaded that, in providing that the homestead of a married person cannot be conveyed or encumbered unless the deed or mortgage is executed .and acknowledged by both husband and wife, the legislature used the word “homestead” in its restricted meaning as given to it in the other sections of the act, with reference both to creditors and to heirs.
The cases of Meisner v. Hill and Anderson v. Schertz, supra, so confidently relied upon by respondent’s counsel, are recent cases from the Nebraska court, and in view of the fact that our statute on homesteads is very similar to the Nebraska statute, these cases deserve special con*386sideration. Before noticing them, however, á few words relative to the history of our homestead statute may be profitable. Pursuant to the rn.and.ate contained in § 208 of the state Constitution commanding the enactment of “wholesome laws, exempting from forced sale to all heads of families a homestead, the value of which shall be limited and defined by law,” the legislature in 1891 enacted chapter 67 of the laws of that year, repealing all laws in conflict therewith, and especially §§ 1 to 9 and 15 to 19 inclusive of chapter 38, Territorial Code 1877. Chapter 67 is practically the same as the Nebraska statute, and no doubt was borrowed therefrom. The commission in revising the Codes in 1895 changed the phraseology of some of the sections, and incorporated therein certain new sections, among which is § 3628, Rev. Codes 1895 (now § 5073, Rev. Codes 1905). This section, among other things, provides “that the real property which is subjected to the homestead estate by the county court, and in which such estate is ascertained and set off by such court, must not exceed in value or area the value or area prescribed in § 5049,” which section limits and defines the homestead exemption as we have observed. The Nebraska statute has no corresponding section, which fact, no doubt, accounts for the litigation which arose in the Nebraska courts over the question of the respective rights of the widow and the heirs of the decedent with reference to homesteads exceeding a stated area or value. Under a statute like ours such cases as Meisner v. Hill and like cases therein mentioned would not have arisen. The case of Meisner v. Hill is, however, an authority of more or less weight in respondent’s favor, as it deals with a question of statutory construction analogous to that in the case at bar, the only distinction being such as may exist between the rights of heirs to inherit and the rights of vendees to claim, under their deeds of purchase, the excess in area or value of the homestead over a stated limit for exemption purposes. This, as we view it, is, however, a very substantial distinction. But even if such decision were directly in point, we should decline to follow it. At the date our statute was borrowed, the construction placed upon the Nebraska statute by its supreme court was well settled contrary to the later decisions, and the well-recognized rule, of course, is that it will be presumed that we borrowed the construction along with the statute and as a part thereof.
*387Furthermore, and with due deference to the Nebraska court as constituted at the time these two cases were decided, we cannot agree with the rule there announced upon the point we are now considering, ■and we believe the better rule is stated in the earlier cases in that court. Meisner v. Hill was decided by a bare majority of the court, three of the judges dissenting, and in the other case, three judges of the court did not sit, two of whom dissented in the former case. In brief, we concur in the reasoning of Judge Fawcett in his dissent in the Meisner Case. We also believe the Nebraska court in Swift v. Dewey, supra, announced a sound rule of law to the effect that the rights of a grantee under his deed are the same as the rights of creditors to resort to the property in excess of the homestead exemption. If correct in these views, respondent’s principal contentions must be overruled. That we are correct seems to be the voice of a large majority of the courts. 21 Cyc. 551, and cases cited. See also the recent cases of Mason v. Truitt, 257 Ill. 18, 100 N. E. 202; Gillespie v. Fulton Oil & Gas Co. 236 Ill. 188, 86 N. E. 219; Wilson v. Wilson, 83 Neb. 562, 120 N. W. 147, (s. c.) 85 Neb. 167, 122 N. W. 856; Benton v. Collins, 125 N. C. 83, 47 L.R.A. 33, 34 S. E. 242; Thompson, Homestead & Exemption, §§ 476 to 480, inclusive.
Appellant’s counsel vigorously contends that the action should be dismissed instead of remanded for a new trial, while respondent’s counsel contend just as vigorously that a new trial should not be ordered generally, but only upon certain issues, asserting that the spirit of the so-called Newman law demands this.
While plaintiff has failed to prove sufficient facts to warrant the relief prayed for, we adhere to our former opinion that her action should not for that reason be dismissed, but the cause should be remanded for a new trial to enable her to supply the lacking proof. The contention of respondent has been duly considered in connection with the statute (§ 7229, itev. Codes 1905) providing for trials de novo in this court in equity cases. That statute, among other things, provides that “the supreme court shall try anew the question of fact -specified in the statement or in the entire case, and shall finally dispose of the same whenever justice can be done without a new trial, and either affirm or modify the judgment or direct a new judgment to be entered in the district court; the supreme court may, however, if it deem such *388course necessary to the accomplishment of justice, order a new trial of the action.”
We think the above statute also contemplates that there shall first be an adjudication by the district court of the issues in the case. As we said in the former opinion, nothing was adjudicated by the so-called judgment appealed from, and we think it consistent with proper practice under such statute to remand the cause to the end that the district court may hear such further testimony as it may deem necessary, and render a judgment adjudicating the rights of the parties.
Further, we deem it necessary to the accomplishment of justice that a new trial on all issues should be had, to the end, among other things, that upon the vital issue as to whether plaintiff in fact acknowledged the execution of the deed in question, the testimony may, if possible, be more fully and clearly brought out. The testimony on this point is very meager and unsatisfactory.
In the event the court finds that plaintiff did not acknowledge the deed in question, and further that the homestead claimed by plaintiff exceeds the extent and value of the homestead exemption prescribed by law, it will be necessary to segregate such homestead' from the remainder of the property, and this brings us to the question of procedure.
The plaintiff having invoked the equity powers and jurisdiction of the district court, that court has power to and should administer full equitable relief to the parties. The fact that no statutory procedure is laid down for the guidance of the court in determining the extent and value of the homestead, and for otherwise determining and adjusting the rights of the parties, is not an insuperable obstacle in the way of administering such equitable relief as the facts warrant. The court has a right to and will invent a suitable remedy in the premises, and we suggest that a suitable remedy to be pursued may be along the lines mapped out in the statute in analogous cases relative to the manner of ascertaining, appraising, and setting apart the homestead, as against execution creditors, found in § 5055 and succeeding sections of the Revised Codes of 1905. The court may hear testimony and determine the necessary facts, or it may appoint appraisers or referees to do so, and report to the court. In the event the homestead is found to exceed the limit as to value, and is incapable of being divided with*389out material injury, a sale thereof should be ordered as provided in § 5061, and the proceeds to the extent of $5,000 should be disposed of as provided in § 5062, and the remainder thereof paid to the defendant. But in case such homestead is capable of being divided, the court should find and designate the homestead boundaries, and quiet defendant’s title as to the remainder of the property. On the other hand, if it be found that the entire property described in the complaint and deed constitutes the homestead, plaintiff should have judgment for the relief prayed for in her complaint.
In view of the fact that the fee to this property appears to be in the plaintiff’s husband, we suggest that it would, at least, be good practice to cause him to be brought in as a party to the action. This may be done under § 6824, Rev. Codes 1905. If this is not done, we suggest that in the event-it is found necessary to order a sale of the homestead, the proceeds of such sale, to the extent of $5,000, should be deposited in court, and paid out only on the joint receipt of both the plaintiff and her husband, as provided in § 5062, aforesaid.
The costs in both courts will abide the final result of the litigation.
All concur, except Burke, J., who did not participate.