delivered the following dissenting opinion.
I cannot agree with the court in its announcement of the law in this case. The only point of difference is upon the question *841of whether a husband and wife, by uniting in giving a deed in trust containing an after-acquired property clause, can prospectively so waive their exemption as to defeat the future acquisition of a homestead during the life of the mortgage ? In discussing this question I deem it unnecessary to enter upon any general discussion as to the validity of the after-acquired property clause frequently found in contracts of the character now under review. It is enough to say that these clauses have been frequently upheld in proper cases by the courts of almost every state. Our own court, however, has made it plain that these clauses have their limitations. In the case of Fidelity, etc., Co. v. Sturtevant Co., 85 Miss., 509, 520; South. 783, 784; 109 Am. St. Rep. 716, this court said: “We do not wish to be understood as having committed ourselves to the broad doctrine that a mortgage of chattels thereafter to be acquired is unlimited, and in all circumstances to be sustained.” Again the court says: “ A careful study of the cases will disclose: (1) That in each instance the contract had reference to some particular designated property, which may, in the ordinary course of things and with reasonable certainty, come into existence. (2) The assignor or mortgagor must, at the date of the contract, have an actual interest in or concerning the subject. There must be an interest in prcesenti, of which the future acquisition is the product, or in such wise incident to or connected with it, constituting a tangible and substantial predicate of a contract.” It is thus seen, from the authorities in this state, that where a mortgage is given on certain designated property then existing, having in it a clause including property to be thereafter acquired by the mortgagor, this court has clearly indicated that such clauses have their limitations. The provision in this trust deed is not in express terms a waiver by the husband and wife of the right to acquire exemption. If this were the ease, we hardly think it would be contended that such a stipulation would have any validity; but the effect of the deed in trust, if it is upheld, when sought to be enforced against a homestead subsequently acquired, *842makes ika waiver. The mortgage as to the after-acquired property is executory, and is a mortgage of a mere possibility. In the case of Teague v. Weeks, 89 Miss., 360; 42 South. 172, this court held that an executory contract of a debtor to waive exemptions allowed by law was void as against public policy. In section 153, vol. 1, Jones on Mortgages, it is said: “A conveyance of what does not exist does not operate as a present transfer in equity any more than it does at law. The difference is merely that at law the conveyance, having nothing to operate upon, is void; while in equity what is in form a conveyance operates’by way of present contract, to take effect and attach to the subject of it as soon as it comes into being. The agreement to convey then ripens into an actual transfer. Equity considers that as done which the mortgagor has distinctly agreed to do, and is in consequence bound to do.”
The only validity which attaches to this kind of conveyance is derived from the equity courts. But, in order to enforce future-acquired property contracts in mortgages, equity will not act in eases where it destroys the public policy of the state. The equity of the public in the preservation of so necessary a policy of the state as that of the right -of a citizen to acquire the exemption allowed by law is stronger and higher than can possibly be in the equity of a creditor to contract away the right from the debtor. When certain formalities have been complied with, the homestead may be sold or incumbered. While the exempt property may be sold or incumbered, and its natural increase mortgaged, when it is actually owned, we have found no authority which holds that the debtor may preclude himself by any sort of an executory contract from the right to acquire a homestead. Such an executory contract is void, both in law and in equity. In section 354, vol. 1, Page on Contracts, it is held that “ a covenant in a contract whereby the promisor agrees in advance to waive his right of exemption in his property is void in most jurisdictions, on the theory that the statute is enacted for the protection of necessitous debtors, and to allow them to *843contract away their right in advance would be to defeat the purpose of the statute.” In Greenhood on Public Policy, p. 497, it is said, if the waiver of exemptions is to prevail, “ a few words contained in any note or obligation would operate to change the law between those parties, and so far disappoint the intentions of the legislature. If effect shall be given to such provisions, it is likely that they will be generally inserted in obligations for smaller demands, and in that way the policy of the law will be completely overthrown. Every honest man who contracts a debt expects to pay it, and believes he will be able to do so without having his property sold on execution. No one worthy to be trusted would therefore be apt to object to a clause subjecting all his property to levy on execution in case of nonpayment. It was against the consequences of this overconfidence, and the readiness of men to make contracts which may deprive them and their families of articles indispensable to their comfort, that the legislature has undertaken to interpose. . . . The law seeks to mitigate the consequences of men’s thoughtlessness and improvidence, and it does not allow its public policy to be evaded by any language which may be inserted in the contract.”
The reason of the law applies with just as much force to the waiver of the prospective right to acquire a homestead by virtue of the future-acquired property clause in a deed in trust as it does to the waiver of exemption by the debtor from execution. In truth, there is more reason to apply this rule to the future-acquired clause contained in trust deeds, for the reason that, if it is ripheld, it is not only a waiver of exemption, but it is a waiver before the debtor ever acquired the property on which the waiver is to operate. The limitations on the rule as to the upholding of contracts in reference to future-acquired property should not be relaxed, but should be more rigid. No rule of law could be announced which would be more inimical to the policy of the exemption laws, and open wider the door to oppression, than to hold that a party taking a mortgage could in*844corporate in it an after-acquired clause to operate prospectively and defeat the right of a debtor to acquire future exemptions. To uphold this stipulation in a deed in trust, when it is sought to take away from a debtor the right to acquire a homestead, necessarily makes it apply to all after-acquired property, irrespective of its character, and under it a debtor’s home may be stripped of all that is in it. Whatever this contract may be called, its effect cannot be escaped, and it is exactly the same in its effect as if the wife and husband had executed this mortgage on certain specific property and additionally waived their right to acquire any property in the future which might be exempt under the law. They have not said this in express words, but the effect is to say this. In the case of Moran v. Clark, 30 W. Va., 358; 4 S. E. 303; 8 Am. St. Rep., 66, are to be found many authorities on this subject, all of which hold that a. contract waiving the right to claim exemptions is a nullity.
I rest my view of this case on the broad ground that a clause-of this sort in a deed in trust cannot operate to defeat the acquisition of future exemptions, by the mortgagor. If a mortgagor own a homestead or other exempt property actually in existence at the time, he may mortgage that property, though it be exempt, and the increase of that property. He may mortgage his homestead and the crops to be grown on his homestead, because these things have a potential existence; but he may not in his mortgage convey away prospectively his right to acquire a homestead. No creditor ever took a security from his debtor, relying on property to be after acquired as sole security. Eew debts would be made if the creditor had to rely for his security on the future possible acquisitions of a debtor. The creditor relies on more tangible security. This exact case has not been before decided by this court; but all the authorities unanimously hold that a debtor cannot waive his exemption right, and that is what this contract does.
The authorities quoted in the opinion in chief have no application to this case. There was no question of exemption discussed there, or thought of.