(Dissenting).
The fault in the majority opinion is, that it is giving the wife — Eluora Childs — a homestead right in a non-existent estate, because G-. C. Childs’ rights under the contract were forfeited when he defaulted. We held in Collum v. Hercey, 176 Ark. 714, 3 S. W. 2d 993, that a judgment against the husband was binding on the wife, even though she was not a party to the litigation. The rationale of that holding; is applicable here: when Lambert declared the contract forfeited — as he had a right to do —■ then all interest of Q-. C. Childs was forfeited, and left nothing for his wife to claim as homestead.
It is my view that the case at bar is ruled by such cases as Souter v. Witt, 87 Ark. 593, 113 S. W. 800; and White v. Page, 216 Ark. 632, 226 S. W. 2d 973; and cases therein cited. This was a simple sale and rent contract whereby Childs could have acquired the title if he had performed the condition precedent. He did not perform. In Souter v. Witt (supra), this Court said of a contract like the one here: “It is also equally certain that, when the contract is made to depend on a condition precedent —in other words, when no right shall vest until certain acts have been done, as, for example, until the vendee has paid certain sums at certain specified times — then also a court of equity will not relieve the vendee against the forfeiture incurred by a breach of such condition precedent. ” In White v. Page (supra), we said: “The contract in the case at bar did not state in express words, ‘time is of the essence’; but our cases hold that evidence may establish such fact in the absence of a specific statement in the contract.” The evidence in the case at bar in this regard is just as strong as that in White v. Page, where we held that there had been a default and a forfeiture.
In Hanson v. Brown, 139 Ark. 60, 213 S. W. 12, the Court considered a contract of sale and rent in which there was a default and a forfeiture, just as here; and this Court said: ‘ ‘ For the reasons already given, it is apparent that Mrs. Hanson had no homestead interest in the lands ...” I maintain that Elnora Childs had no homestead right in a nonexistent estate; and it was certainly nonexistent when G. C. Childs defaulted and Lambert declared the forfeiture.
For these reasons, I respectfully dissent; and the Chief Justice joins mo in this dissent.