H. A. Ferrell made a contract in writing with Fletcher Wood to purchase the homestead of the latter. Wood’s wife did not sign the contract. Upon the refusal of Wood to carry out the contract, Ferrell instituted this suit in the circuit court against him to recover damages.
The judgment of the circuit court was in favor of Wood, and Ferrell has appealed.
A majority .of the court is of the opinion that the .judgment of the circuit court was correct. This court has uniformly held that, under our statute, a deed or mortgage purporting to convey the homestead by a married man is void unless his wife joins in the execution of the conveyance. Pipkin v. Williams, 57 Ark. 242, and Oliver v. Routh, 123 Ark. 189, and cases cited.
This court has never decided the precise question ■raised by the appeal. The courts are divided on the question of whether an action for damages may be maintained against a husband for a breach of contract to convey his homestead where his wife did not sign the contract. The authorities on both sides of the question are cited and to some extent reviewed in a case note to 4 A. L. R. at page 1272. Courts favoring liability for a breach of such a contract say that it is not unlawful for a person to contract to sell and convey something lie does not own but expects to acquire, and that, if he unquali-fiedly undertakes to do that which later he finds he can not perform, he must respond in damages. There is a difference between such a contract and a contract to convey the homestead.
In the first instance, if the contracting party should acquire the land which he had agreed to convey to another, he could carry out the contract, and therefore should respond in damages for a failure to do so. A contract by a husband to convey his homestead is a mere nullity unless the wife signs the contract. This court expressly held in the case of Waters v. Hanley, 120 Ark. 465, that the husband can not make a contract to convey the homestead which will be binding unless his wife signs it. The court pointed out that if such a contract would be obligatory upon the wife the statute prohibiting the sale of the homestead without the consent of the wife could be easily evaded and would be of no force.
Again, it is urged that to hold that the husband can not be made to respond in damages for the breach of a contract to convey his homestead unless signed by his wife would have the effect to embarrass him in the sale thereof. We can not see how the failure to make him respond in damages would embarrass him any more than to hold that his contract to convey the homestead is not valid unless his wife signs the same. If any embarrassment is 'Caused in either event, it is caused by the passage of the statute, and not by placing a construction on it which its language clearly imports. If a man can not make a contract agreeing to convey his homestead that will be valid or binding without his wife’s concurrence, it is difficult to see upon what reason he should be made liable to respond in damages for a breach thereof.
As said by Judge Carland in Mundy v. Shellaberger, 161 Fed. 503, the reason for holding that a contract to convey the homestead without the concurrence of the wife is null and void and can not be used as a basis for the recovery of damages, is clearly and forcibly stated by Judge Mitchell in Weitzner v. Thingstad, 55 Minn. 244, 56 N. W. 817. We quote from his opinion as follows :
“But, notwithstanding some respectable authority to the contrary, it seems to us that to hold that a person is liable in damages for the nonperformance of a contract which he is under no legal obligation to perform would be illogical, and without analogy or precedent in the law. The very proposition involves a legal inconsistency. We think that on legal principles such a contract must be held void for all purposes, and not to constitute the basis of any action against the obligor. There are also strong practical considerations in favor of this view. While it is true, as counsel suggests, that to hold the husband liable for damages would not deprive him or his family of their homestead, yet to force him to the alternative of securing his wife’s signature to the conveyance, or of being mulcted in damages for not doing so, and to place the wife in the dilemma of either having to sign the deed or see her husband thus mulcted in damages might, and naturally would, often indirectly defeat the very object of the statute. There is nothing unjust to the obligee in holding such a contract absolutely void for all purposes. He is bound to know the law, and he always has actual notice, or the means of obtaining actual notice, of the fact that the land with which he is about to deal is a homestead.”
But it is insisted that this rule is contrary to the principles announced in Branch v. Moore, 84 Ark. 462. That was a case where a broker sued .the owner of a homestead to recover commissions for effecting a sale thereof, and the court held that it was no defense to the action that the land constituted the defendant’s homestead. Upon this branch of the case we quote from the opinion as follows:
“Appellant contends that the land constituted his homestead, and he could not lawfully authorize the appel-lee to sell it without his wife joining him in executing an instrument for that purpose, hut this contention is not tenable. Appellee is not seeking to enforce any contract to sell or convey the land, or any lien thereon. ■ The land has been sold. No party is seeking to avoid the sale. Appellee is asking only for compensation for services rendered.”
There the broker was suing for services he had performed in effecting a sale of the homestead, and his contract was collateral to the contract of the husband to convey the homestead without the concurrence of the wife. Here the breach of the contract of the husband to convey the homestead is made the basis of the suit. As above stated, if the contract is a complete nullity, it was void from its inception and can not be made the basis of the cause of action.
It follows that the judgment will be affirmed.
McCulloch, C. J., and Smith, J., dissent.