The portion of the statute, which, according to my understanding, is to govern this matter, is as follows: "and no release or waiver of such exemption shall be valid, unless made by deed executed by the husband and wife, with all the formalities required by law for the conveyance of real estate." Comp. Stats. 474, sec. 1. In the very teeth of this statute we are asked to hold that the homestead here has been released by the separate deeds of the husband and wife, executed during the life of the husband.
The policy of the law has wisely provided that this most important right, this tabula e naufragio, this last plank from the shipwreck, shall not be lost, unless the husband and wife lose their hold of it at the same time and by the same act. In some way, it is not material to us to inquire how, the wife has been induced to execute this deed alone; probably because the husband then refused to join in it. And it is proposed that, the first time a matter of this kind is brought to the notice of the court, the law should be judicially repealed. Why? I am not able to see any reason for doing so, and I therefore think that the homestead of the plaintiff is not released.