DISSENTING OPINION.
SnodgRASS, J."We do not concur in the holding that the homestead exemption applies to the interest of a husband in land held in joint tenancy *93with the wife. He is not the owner of the property, or sole possessor as ■ contemplated by our law. «
Under the Constitution, “ a homestead in the possession of each head of a family, and the improvements thereon, to the value, in all, of one thousand dollars, shall he exempt from sale under legal process during the life of such head of a family, to inure to the benefit of the widow, and shall be exempt during the minority of their children occupying the same.” Constitution of 1870, Art. XI., Sec. 11.
The statute of 1870 on this subject is in exactly the same terms, exempting “ a homestead in the possession of each head of a family.” It also provided that such homestead should inure to the benefit of the widow, and be exempt during the minoi’ity of the children occupying it, and until the youngest child reached the age of twenty-one years.
The sixth section of the Act provided that “the homestead in the possession of a husband shall, upon his death, go to his widow during her natural life, with the products thereof to her own use and benefit and that of her family who reside with her, and upon her death it shall go to the minor children of her deceased husband, free from the debts of- the father, mother, or said children; and upon the death of said minor child or children, or their arrival of age, the same may be sold and the proceeds distributed amongst all the heirs at *94law of the deceased Read of a family according to tlie laws of descent and distribution in this State.”
. The seventh and eighth sections are as follows:
“ Sec. 7. Upon the death of said head of a family without widow or minor children, said land shall he sold for the payment of the debts as may be legally established against his estate, and the remainder distributed among his heirs according to the rules of descent in force at the time in this State.
“ Sec. 8. If the head- of a family is married, and his wife obtain a divorce on account of his fault or misconduct, the title to the homestead shall be vested by the decree of the Court granting the divorce in the wife, and after her death it shall pass to their children.”
These sections quoted show conclusively that the homestead contemplated was to exist on land owned by the head of a family; that it was such as might inure to the benefit of his widow (because she was such) after his death, and which would descend to his children, or, when sold, the proceeds might be distributed “ among all the heirs at law of the deceased head of a family,” “ amongst his heirs.”
It was an estate too which, after the death of wife or children, might be sold “ to pay debts legally established against his estate,” and was such a one that, if the wife obtained a divórce on account of his fault or misconduct, was to he vested by decree of Court in the wife for life, and after her death in “their children.”
*95These provisions show, first, that the land subject to homestead must belong to the husband in severalty, and especially that they do not apply to lands held by husband' and wife in joint tenancy. Such land goes to the survivor on the death of either. Taul v. Campbell, 7 Yer., 319; Berrigan v. Fleming, 2 Lea, 271; Shields v. Netherland, 5 Lea, 201; McRoberts v. Copeland, 1 Pickle, 211.
It is manifest, then, that a homestead on it would not inure to the benefit of his widow as such, and for her use and benefit and that of her family residing with her, and upon her death to the minor children of her deceased husband, because on his death the entire fee would vest in her, and “her family residing with her” could take no interest in it whatever, nor upon her death would it go to the minor children. of her deceased husband. It would go to her devisee, or, in default of a will, to her children or heirs, and not to his, unless, of course, they were the same.
And, for the same reason, it could not be sold and proceeds distributed anjongst his heirs in the contingencies provided for as quoted. Hor, upon divorce granted for his misconduct, could it be vested in the wife for life with remainder to their children, because that would be to limit her own fee for life, and deprive her of the power to devise her estate after diseoverture. If upon dissolution of the marital relation the property would vest in her, it would be absolutely. These considerations, it seems to us, show conclusively that *96the homestead law is not applicable to such a tenancy; but there are others. If a legal homestead does exist on such an estate, what is the effect of it? Suppose a divorce granted to the husband. lie would still remain the head of the family, and the homestead right would exist in him. Then, it must continue to the destruction of the wife’s interest in the fee for life; so that in that event a homestead would be carved out exclusively for him in land which did not belong to him, but which in fact belonged also to another. So, too, the husband can abandon a legal homestead, and the fee in it may be sold in that event for his debts, and it will vest in the purchaser free from the homestead right; but it cannot be said that such sale would affect the wife’s right in a joint tenancy, even if she joined in the abandonment because her interest in the fee, her right of survivorship, would not be affected by either abandonment or sale.
The Act of 1879, amending the homestead law of 1870, does not affect the question by adding to the words “ a homestead,” the woi'ds “ or real estate belonging to each head of a family,” because these words made no other change in the law than to give the husband, or head of the family, the right to elect where he would locate the homestead. Flatt v. Stalder & Co., 16 Lea, 379. Now, suppose the husband elects to locate it on the joint tenancy of himself and wife, and dies leaving other lands. The wife, according to the case be*97ing considered, would take the selected homestead as such (although it was her own), and would thereby be cut out of any homestead in the husband’s laud. This would inevitably result if such an interest was a proper homestead, but we have held it was not, and defeated this very result in her favor. McRoberts v. Copeland, 1 Pickle, 211.
There are many- considerations of like character which go to prove that such a joint estate in land was not within the contemplation of the law-makers in establishing “ a homestead in possession of the head of a family;” and there is still a part of the statute unquoted which we think clearly shows that such an estate, nor any other estate held in common with others, was within such contemplation, and that only such as was exclusively within the ownership and possession of the head of a family was contemplated — such as he held in severalty, and could be set apart to him by metes and bounds, and that without resorting to a Court to partition and carve out for him such estate.
The third and fourth sections of the Act provide for levy upon the real estate of the debtor upon which the homestead is situated by execution and attachment, and directs that the levying officer shall summon three disinterested freeholders and have them set apart the homestead of the debtor out of the real estate levied upon. They are to fix the precise boundaries, and the remainder of the lands are to be sold. If it is of greater value than $1,000, and is so situated that it cannot be *98divided so as to set apart the homestead, the freeholders shall certify the fact, and the officer shall sell the whole and pay proceeds to the Clerk of the Court rendering judgment or condemning the land for sale; and he shall, under order of the Court, invest $1,000 in the purchase of a homestead for the family of the debtor, and the creditor take the surplus.
Now, it is clear that this cannot apply to an interest held jointly with the 'wife any more than with any one else, because, if it does so apply, it forces the sale of her land, and makes her take in lieu of all of it and all interest in it, her family share in the part allotted as homestead, or in that purchased for the benefit of the family. This, upon the theory that such is the effect that results under the law, and must result if this land 5s within its meaning. That these consequences could follow no one can maintain, and thus it appears that such an estate was never within tha intent of the Act.
There are more reasons why such an estate could not be burdened with a homestead, by proper construction of our Act, than there are why a tenancy in common could not. The tenancy in common, while, like this, a legal estate, has no termination in survivorship, but will descend to heirs, and may inure to the benefit of a widow, not because of her own, but because of lier husband’s interest; and yet the reason of a want of an interest, and possession in severalty, which pre*99vents a tenancy in common being so burdened, exists here, and equally precludes the possibility of the existence of a homestead upon a joint tenancy, and to this extent authority against homestead on a • tenancy in common is authority against a homestead here. It was ten yeai’S ago decided that no such right existed in favor of a tenant in common. Avans v. Everett, 8 Lea, 76. And this has ever since been followed. But the direct question came before us at Knoxville, September Term, 1886, and it was then held such an interest as the wife’s on survivorship could not be taken into consideration in fixing homestead, but the wife owned such land, and homestead must be assigned out of other lands of the husband. Roberts v. Copeland, 1 Pickle, 211, opinion by Judge Caldwell. It came again before this Court at Nashville, last term, and we there held that the homestead law did not apply to a joint tenancy of husband and wife.
These cases settled the law in accord with the case referred to, and many others unreported. They are sound in reason, and should be adhered to as the only proper construction of the statute. It does not matter that one was an oral opinion. It was in accord with the written one cited, and, besides, this Court, of course, adheres to principles settled, however it may be done, and does not have one law to administer orally and another in writing. The one delivered in this case was oral, but since adjournment at Jackson a written opinion has been prepared.
*100In this opinion not only is the case in 1 Pickle referred to impliedly overruled, but the case of Avans v. Everett, 3 Lea, 76, would share the same fate if the reasoning of Judge Caldwell in this case should he adhered to when that question afises, for it is .based upon authority hostile to it, and which was referred to and rejected by Judge Cooper, who delivered the opinion of the Court in the 3 Lea case. Ve regard the overruling of the 1 Pickle case, and the oral opinion at Nashville, as not only erroneous, but unwise in policy. We therefore respectfully, but earnestly, dissent from the present ruling.
Lurton, J., concurs in this dissent.