This was an action to recover damages for the refusal of the defendant to perform a contract to convey real prop*247erty. One of the defenses interposed by tbe defendant was that a part of the premises contracted to be conveyed was his homestead, and that his wife did not join in the contract, and that for that reason it was void. This appeal is from an order overruling a demurrer to this defense. The contention of plaintiff is that while a contract by the husband, without his wife joining therein, to convey his homestead, is so far void that it does not bind the land, and that specific performance cannot be enforced, yet it is only void in that sense and to that extent, and that the husband is nevertheless liable for damages for refusal or failure to perform it.
This court has repeatedly said that conveyances and contracts to convey the homestead, executed by the husband without his wife joining therein, are not merely voidable, but wholly void. Barton v. Drake, 21 Minn. 299; Law v. Butler, 44 Minn. 482, (47 N. W. Rep. 53.) It is true, however, as counsel for plaintiffs says, that the only point involved in any of these cases, and the only one really decided, was that such a contract did not bind the land; the question now before us never having been squarely presented or decided.
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 *248notice, of tbe fact that tbe land with wbicb be is about to deal is a bomestead.
(Opinion published 56 N. W. Hep. 817.)It does not follow, however, where such a contract includes lands other than tbe bomestead, that it is also void as to such other lands. A contract to convey a bomestead, executed by tbe husband alone, is not illegal in tbe sense of being prohibited as an offense. Tbe illegality is not that wbicb exists where tbe contract is in violation of public policy or of sound morals, or founded on an illegal consideration, wbicb would vitiate tbe whole instrument. Tbe sole object of tbe statute was to prevent the alienation of tbe bome-stead without tbe wife’s joining in tbe conveyance or contract. Tbe policy of tbe law extends no further than merely to defeat what it does not permit. It merely withholds from tbe husband tbe power to alienate tbe homestead in that way, — in other words, provides that tbe bomestead is not grantable in that way; and it was never held that tbe whole grant would be void, merely because a part of the land was not grantable. Danforth v. Wear, 9 Wheat. 673; Patterson v. Jenks, 9 Pet. 216-235; Wallace v. Harris, 32 Mich. 380-399; Poll. Cont. 264.
Tbe contract in suit was valid as to lands other than the bome-stead, and hence that part of tbe answer demurred to constituted only a partial defense. But a party has a right to set up a partial defense, and tbe demurrer was properly overruled.
Order affirmed.