(dissenting). The authorities on the question involved in this case are nearly equally divided, which leaves us free to follow our own views, uninfluenced by the precedents established by other courts. Two cases which may be selected as leading unes on this subject are Weitzner v. Thingstad, 55 Minn. 244, supporting the conclusion now reached by the majority of this court, and White v. Bates, 234 Ill. 276, announcing the contrary conclusion. I think the reasoning of the Illinois court is sound.
The statute' (C. & M. Digest, $ 5542) does not declare that an executory contract for the sale of a homestead is void. It merely declares that a “conveyance, mortgage or other instrument affecting the homestead of any married man” shall not be valid “unless his wife joins in the execution of such instrument and acknowledges the same.” Such a contract does not involve moral turpitude in its performance, nor does it offend against any public declared policy, though the statute fixes a limitation on the husband’s right to convey the homestead. He can do so only with the consent of the wife. A conveyance of the homestead without her consent is void, but, since the statute itself does not declare invalid the husband’s executory contract to sell the homestead, I fail to see the force of the contention that the contract is void because a conveyance in performance of a contract is invalid unless the wife joins in it. It would be different, of course, if the contract was one involving moral turpitude, for no rights can accrue under a contract to do an unlawful or immoral act. Such is not the effect of a contract to sell and convey the homestead. The obligor merely undertakes in such a contract to sell and convey certain property in a manner prescribed by law; and if he fails to comply, he should be held liable for all damages resulting from his breach of the contract. The effect is the same as if the contract were one to sell and convey property to which the obligor had no title at the time. Though beyond his power to perform the contract, he is liable in damages for its breach. The fact that such a contract would embarrass the wife and cause her unwillingly to join in the conveyance of the homestead, rather than to see her husband mulcted in damages, affords no sound reason for the court to declare the contract void, though it might appeal strongly to the Legislature on a proposal to enact such a law.
This court has heretofore decided that a contract to pay an agent’s commission under a contract for sale of the homestead is valid. Branch v. Moore, 84 Ark. 469; Chandler v. Gaines-Ferguson Realty Co., Ark. 262.
The conclusion now announced by the majority is, I think, in conflict with those eases, for, if a contract for the sale of the homestead is void, then a contract for payment of a commission on such sale is likewise void. Both contracts should be controlled by the same principles.
I do not think it is important whether or not the wife joins in the contract to sell the homestead. She is not required to join in such a contract to make it valid. She must, in order to make such a contract offective, join in the execution of the conveyance a,nd acknowledge the s.ame,