DISSENTING OPINION.
Caldwell, J.To secure the . debt sued on, Joyce mortgaged his interest in two tracts of land. That interest being an undivided one-half in one tract, and an undivided one-fourth in the other tract. Joyce and his wife now reside on the former tract, and have lived upon it as their home for *352many years. Tbe wife did not join Joyce in the execution of the mortgage. On that ground he defends this hill to foreclose, and claims homestead for himself and family in the mortgaged lands. The Chancellor denied them that right, and decreed the sale of the lands. His decree is affirmed by a majority of this Court.
In denying Joyce and his family the right of homestead, Chief Justice Turney and the writer cannot agree with the majority.
The Constitution and the statute declare that the homestead shall not be alienated without the joint conveyance of the husbaijd and wife, where that relation exists. Con., Art. XI., §11; Code (M. & V.), §2935.
Therefore, when the husband attempts to convey the homestead without the joint conveyance of the wife, as in this case, his deed is ineffectual to pass the homestead right as to either of them, and will only vest the' grantee with the husband’s interest in reversion, expectant on the termination of the homestead right. Marsh v. Russell, 1 Lea, 543; Kennedy v. Stacy, 1 Bax., 225; Hoge v. Hollister, 2 Tenn. Ch., 612.
It follows that if the right of homestead existed in favor of Joyce in those lands before the execution of the mortgage, it still exists, and should be allowed. But it is held by the majority that the right did not exist in the first instance, because Joyce did not own the lands in severalty, but only as a tenant in common with others.
*353Chief Justice Turney and the writer do not think this construction of the homestead law justified, either by its letter or spirit. The wise and humane object of that law is to secure the shelter, the comfort, and the independence of a home, of limited value, to the family of all citizens who may own an estate or interest in land capable of being in any way applied, used, or enjoyed as a home.
The words of the statute are broad and comprehensive. The property around which the benefits of the exemption are thrown,, is described as “ a homestead, or real estate, in the possession of, or belonging to, each head of a family” (Code, § 2935), whether the owner’s estate therein be “ legal ” or “ equitable ” or “ leasehold ” (Code, §§ 2937, 2938); and “ each head of a family owning real estate shall have the right to elect where the homestead or said exemption shall be set apart, whether living on the same or not.” Code, § 2936.
It is not easy to conceive how more plain and appropriate terms could have been used to embrace every kind and character of estate in lands.’ The term real estate means an estate in fee or for life in lands, and is used as synonymous with lands and tenements. 3 Kent, *401; 1 Wash. 'R. P., *45.
. Unmistakably it embraces estates in fee owned by tenants in common, as well. as estates in fee held in severalty. The statute makes no distinction. It includes all estates in land, and excludes none.
*354Estates of co-tenancy are very common in this State. They are created by our law of descent, whenever an owner of land dies intestate, leaving children, grandchildren, etc. Such estates existed when the homestead provision was incorporated into the Constitution and statute law of the State; and, being so clearly within the object and language of that provision, they must have 'been in the contemplation of the law-makers, and by them deemed subject to the exemption provided.
In the absence of an express declaration to that effect, we could not believe that any law-making power ever intended to extend the benefit of such an exemption to citizens owning real estate in severalty and not to those owning undivided interests as tenants in common. A law making such a distinction would, in our judgment, be both impolitic and unjust. It would be an unjustifiable discrimination in favor of some persons and against others, though alike deserving of the law’s favor and protection.
Such is not our law, which, as we understand it, is distinctly impartial, extending the right of exemption to “each head of a family owning real estate ,” whether in fee, for life, for years, in sev-eralty, in joint tenancy, or tenancy in common.
In Arnold v. Jones, 9 Lea, 548, it was decided that the right of homestead exemption existed in favor of a life tenant,. the Court saying:
“If the homestead, the place of residence and home of the family, is protected where the head *355of tlie family owns the fee, much more, it seems, it ought to be in favor of the poorer man, who has only an estate less valuable, liable to be determined. at any time by his death.”
It was also decided in Jackson, Orr § Co. v. G. W. Shelton and wife, ante, p. 82, that the right of homestead existed in a house and lot owned by husband and wife jointly as tenants by entire-ties. In the latter case, after holding that the comprehensive and unrestricted words “real estate” should he interpreted according to their ordinary legal meaning, the Court said:
“ The nature of the estate, or extent of the title of the beneficiary, was not of the essence of •the ■ scheme.' The purpose was to stay the hand of the . creditor as against a limited amount, in value, of real estate, of whatever character, belonging to any citizen who should he the head of a family. * * * * ■ Why 'not include the head of a family who owns land as tenant by entirety with his wife in the scope of a law whose purpose is so humane and commendable? To the extent of his interest he can use the land for the shelter, support, and benefit of his family in the same manner as could another man owning the absolute fee. He stands in the same or greater need of the law’s favor. Is he any the less deserving of protection because he does not own the whole estate? Of is the officer of the law to take what he has because he has not more? Manifestly not. The protection of such an interest is *356clearly within tlie spirit and letter of the statute. We can conceive, no satisfactory reason why the Legislature should not have intended to embrace in this wholesome provision all present interests in land naturally embraced in the language used in the Act.”
An eminent text-writer says: “The homestead laws have an object perfectly well understood, and in the promotion of which Courts may well employ the most liberal and humane rules of interpretation. This object is to assure to the unfortunate debtor, and his equally unfortunate but more helpless family, the shelter and the influence of home. A co-tenant ' may lawfully occupy every parcel of the lands of the co-tenancy. He may employ them not merely for cultivation, or for other means of making profit, but may also build houses and barns, plant shrubs and flowers, and surround himself with all the comforts of home. His wife and children may, of right, occupy and enjoy the premises with him. Upon the land of which he is but a part owner, he may, and in fact frequently does, obtain all the advantages of a home. These advantages are none the less worthy of being secured to him and his family in adversity, because the other co-tenants are entitled to equal advantages in the same home. That he has not the whole is a very unsatisfactory and a very inhumane reason for depriving him of that which he has.” Ereeman on Ex., Sec. 243.
To this view Mr.1 Thompson lends the weight *357of Ms opinion. Thompson on EL and E., Secs. 181 and 188.
It is said, in -substance, by the majority that estates of co-tenancy must be excluded from the exemption because no particular mode for the assignment of the homestead in lands held by co-tenants is expressly prescribed. To this we say the general provisions on this subject, as contained in §§ 2940, 2941, and 2944 of the Code, in connection with those then and now existing in Code, §§3993 and 4024, on the subject of partition and sale for division, afford the amplest direction and remedy for the allotment of homestead in every ease, whether the claimant have an estate in severalty or in co-tenancy with others. Hence, in the absence of an express exclusion of co-tenants from the benefits of a law whose terms 'are so broad and whose purpose is so general, we think they should be held to be included. In our opinion it is a harsh and unwise construction that excludes such pei’sons from the beneficial operation of a law whose provisions are, in express .terms, for the advantage of “ each head of a family owning real estate.” Such a rule of interpretation should not be applied in this case; for the Courts, almost universally, indulge a liberal construction in favor of the right of homestead. Thompson on H. and E., Secs. 4, 7, 731; 11 Heis., 520; 9 Lea, 548; 3 Pickle, 284; Jackson, Orr & Co. v. G. W. Shelton & wife, ante, p. 82.
This liberality of construction extends as well *358to the assignment of' homestead as to the ascertainment of the existence of the right. By the indulgente of such rule of construction, the Courts will readily find in existing statutes all necessary means for the assignment of homestead in lands held by tenants in common. In the case before us the complainant would only have to bring the other, co-tenants before the Court and have the lands partitioned in kind, if that could be done; and, if not, have them sold for division of proceeds. The interest of the debtor being thus separated from that of others, the creditor and debtor could each be protected by decree in conformity to the statute.
This might be some inconvenience to the creditor, but mere inconvenience in the assignment of homestead should not be allowed to defeat the right of exemption itself. No mere matter of inconvenience in the administration of a law can operate to its annulment. Yet, the reasons given for denying the right, by the Courts of those States which hold that homestead is not allowable in ' cases of co-tenancy, are reasons of convenience merely. Thompson on II. and E., Sec. 183.
The majority opinion follows the case of Avans v. Everett, 3 Lea, 76. But, not agreeing to the reasoning or conclusion in that case, we think it should now be overruled as contrary to the manifest purpose -and plain language of the constitutional and statutory provisions for the exemption of a homestead to “each head of a family owning real estate.”
*359The reasoning of the Court in that case is found in the following extract from the opinion.: “ The statute manifestly contemplates the occupancy of a specific portion of land capable of being set apart by metes and bounds. It is impossible to apply its provisions to an undivided interest in realty. The debtor owns nothing in severalty, and the creditor can neither ascertain nor, of course, subject the remainder after setting apart the homestead.” 3 Lea, 78.
To, our minds the- difficulty of applying those /‘provisions to an undivided interest in realty” is ■entirely removed by- the statute of partition, under which one co-tenant’s interest may be ascertained and separated from that of other co-tenants, either by partition in kind or by a sale of the whole land for a division of proceeds. By this means the rights of both creditor and debtor may be amply protected, while by the doctrine of that case those of the debtor are entirely destroyed and those of the creditor augmented.
The importance of uniformity and stability in judicial decisions can scarcely be exaggerated. Nevertheless, when it appears that a decision has departed from the plain mandate of the Constitution and the statute, as we believe to be true of that ■case, it should be overruled, and not longer followed. A decision which misinterprets a law,' and renders a provision which is just and impartial in its terms both partial and unjust in its administration, as we think that one does, should be de*360parted from whenever the mistake is discovered. That many debtors have lost their homesteads under the doctrine of that case, and that reparation cannot now he made, are not sound reasons for its perpetuation, and for .forcing others to undergo a like deprivation in the future.
¥e think that case should now be overruled, and that Joyce and family should not be driven from a place that has afforded them the shelter, comfort, and independence of a home, so long.
Turney, Oh. J., concurs in the dissent.