(after stating the facts).
Section 3901 of Kirby’s Digest being an act of March 18, 1887, provides in effect that no conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity unless his wife joins in the execution of such instrument and acknowledges the same. Under this statute we have always held that a deed purporting to convey the homestead of a married man is a nullity if his wife fails to join in the execution of the deed. Pipkin v. Williams, 57 Ark. 242; Oliver v. Routh, 123 Ark. 189, and cases cited, and Waters v. Hanley, 120 Ark. 465.
In the last mentioned case we held that a husband cannot make a contract to convey, the homestead which will be binding upon his wife. The court said:
“It is clear that if the husband cannot make a conveyance of the homestead without the concurrence of his wife, he cannot make a contract to convey the homestead which will be obligatory upon his wife. If he could make a contract to convey the homestead which would be obligatory upon his wife the statute could be easily evaded and would be of no force.”
The defendant testified that his father gave him the forty-acre tract in controversy and put him in possession of it. He said that his mother acquiesced in the gift, but does not claim that she participated in the transaction.
On the other hand, his mother testified that she did not in any way participate in the gift and that the land in question was a part of their homestead.
It is insisted by the defendant that the land was not a part of his father’s homestead; that his father did not attempt to impress it with the homestead character until just before his death in June, 1915, and that he had given the land to him in August, 1911, and that he continued in possession of it up to the time of his father’s death. In support of this contention, counsel point to the testimony of the plaintiff herself. On cross-examination after answering that the land was all in a solid body, she was asked the following: “Now, at what time did you make a selection of the forties involved in this suit as your homestead and dedicate it as such? A. Well, of course, I made the selection — when my husband knew he was going to die he made the selection and that has been my selection all the while there.”
When her testimony is 'Considered as a whole, we do not think that it is susceptible of the construction that she and her husband had not intended to impress the land in controversy with the homestead character until after the husband had given it to the defendant and had placed him in possession of it. The forty acres in controversy and the forty acres. on which their dwelling house stood were adjoining forties. They had been purchased at about the same time. McLeod had lived on one of these forties for over twenty years prior to his death. There was a field which extended in part over both forties and this was the main field in cultivation on the lands. At another place in her testimony the plaintiff said that the forty-acre tract in controversy had been considered a part of their homestead by them ever since they had established their residence on the adjoining forty. Two of the other brothers said that the land in controversy had always been considered a part of the homestead.
Under these circumstances we think a preponderance of thfe evidence establishes the fact that the land in controversy had been impressed with the homestead character before McLeod ever attempted to give the land to his son, and the learned chancellor erred in holding otherwise.
It follows under the authorities above cited that the attempted gift by McLeod to his son was of no validity because his wife did not join therein.
There were certain improvements made on the land by the defendant, but according to his own testimony these were not worth more than $150.00 According to the testimony of his brothers they were worth much less. The three acres of land cleared by him amounted to thirty dollars, ten dollars per acre being the price fixed for clearing land by all the witnesses. According to the testimony of one of his brothers the nine rolls of wire purchased by him were not worth more than that. Two of his brothers also testified that the rental value of the ten acres of land which were cleared was worth four dollars per acre. This would amount to one hundred and twenty dollars for three years, and in our judgment the rents would about offset the improvements.
The decree will be reversed and the cause remanded with directions to enter a decree in accordance with this opinion.