In most of the states in which the homestead right is recognized, the statute provides that the husband shall not convey or incumber the homestead property except with the joinder, or, sometimes, the consent, of his wife.93 he law. McNeer v. McNeer, 142 111. 388, 19 L. R. A. 256, 32 N. E. 681; Hill v. Chambers, 30 Mich. 422.

92. Post Sec. 591.

93. Thompson, Homesteads, Sec. 465; Waples, Homsteads, c. 12; statutory requirements as to the mode of joinder by the wife in the husband's conveyance, or of indication otherwise of her consent, must usually be strictly complied with.94 Accordingly, a conveyance by the husband, executed by the wife, but purporting merely to release her dower rights in the property, has been held to be insufficient, under a statute requiring a joint conveyance or their joint consent,95 as has a separate conveyance by the wife to the grantee of the husband.96

The statute frequently provides that the husband and wife shall acknowledge the conveyance, a private examination of the wife being sometimes required. Such a provision, as in the case of the release of dower, is usually regarded as mandatory, and a noncompliance therewith will render the conveyance void, at least so far as the land conveyed does not exceed the value of the statutory homestead right.97 Occasionally the view has been taken that, although the statute requires the joinder of the wife in a conveyance of the homestead,

15 Am. & Eng. Enc. Law, 665 et seq.

94. Watts v. Gordon, 65 Ala. 546; Myrick v. Bill, 5 Dak. 167; Knox v. Brady, 74 111. 476; Howell v. McCrie, 36 Kan. 644, 59 Am. Rep. 584; Showers v. Robinson, 43 Mich. 502, 5 N. W. 988; Dickinson v. McLane, 57 N. H. 31.

95. Burrows v. Pickens, 129 Ala. 648, 20 So. 694; Pipkin v. Williams, 57 Ark. 242, 38 Am. St. Rep. 241, 21 S. W. 433; Kitchell v. Burgwin, 21 111. 40; Sharp v. Bailey, 14 Iowa 387, 81 Am. Dec.

489; Herbert v. Kenton Building & Sav. Ass'n 11 Bush (Ky.) 296; Connor v. McMurray, 2 Allen (Mass.) 202; Compare Perley v.

Woodbury, 76 N. H. 23, 78 Atl. 1073.

96. Poole v. Gerrard, 6 Cal. 71, 65 Am. Dec. 481; Howell v. McCrie, 36 Kan. 636, 59 Am. Rep. 584; Duncan v. Moore, 67 Miss. 130, Dickinson v. McLane, 57 N. H. 31; Christian v. Clark, 10 Lea (Tenn )

630

97. Smith v. Pearce, S5 Ala. 264, 7 Am. St. Rep. 44; Shad v. Smith, Fla 76 So. 897; Vanzant v. Vanzant, 23 111. 536; American lb. Farnsworth v. Hoover, 66

Sav. & Loan Ass'n v. Burghardt, 19 Mont. 323, 61 Am. St. Rep. 507; Horbach v. Tyrrell, 48 Neb. 514; Lambert v. Kinney, 74 N. C. 348; Cross v. Everts, 28 Tex. 523.

In some states it is considered that, though the wife fails properly to join in or assent to her husband's conveyance or incumbrance, the instrument becomes effective if the property thereafter loses its homestead character,98 while sometimes a contrary view is taken.99 The conveyance has usually been regarded as effective to the extent to which the property conveyed exceeds in value or extent the statutory limitation upon the right of exemption.1

97a. Turner v. Bernheimer, P5 Ala. 241, 36 Am St. Rep. 207, 10 So. 750; Polk v. Stephens, 136 Ark. 159, 189 S. W. S37; Burkett v. Burkett, 78 Cal. 310, 3 L. R. A 781, 12 Am. St. Rep. 58, 20 Pac. 715; Reedy v. Finney, 118 lowa, 276, 91 N. W. 1069; Weaver v. Michello, 193 Mich. 572, 160 N. W. 612; Furrow v. Athey, 21 Neb. 671, 59 Am. Rep. 867, 33 N. W. 208; Hall v. Powell, 8 Okla 276, 57 Pac. 168. Contra, Byrd v. Byrd, -Fla- 74 So. 313; Kitterlin v. Milwaukee Mechanics' Mut. Ins. Co., 134 111. 647, 10 L. R. A. 220, 25 N. E. 772; Shields v. Bush, 189 111. 534, 82 Am. St. Rep. 474, 59 N. E. 962; Ellingwood v. Elling-wood, 91 Vt. 134, 99 Atl. 781.

98. Miners' Sav. Bank v. Sandy, 71 Fed. 840; Huntress v. Anderson, 110 Ga. 427, 78 Am. St. Rep. 105, 35 S. E. 671; McDonald v. Crandall, 43 ll1. 231, 92 Am. Dec. 112; Smith v. Provin, 4 Allen (Mass.) 516; Crook v. Lunsford, 2 Lea (Tenn.) 237.

99. Alford v. Lehman 76 Ala. 526; Pipkin v. Williams, 57 Ark.

242, 38 Am. St. Rep 241, 21 S. W. 433; Gleason v. Spray, 81 Cal. 217, 15 Am. St. Rep. 47, 22 Pac. 551; Gray v. Schofield, 175 III 36, 51 N. E. 684; Bruner v. Bateman. 66 Iowa, 488, 24 N. W. 9; Amphlett v. Hibbard, 29 Mich. 298; Cum-mings v. Busby. 62 Miss. 195; Stalling's v. Hullum, 89 Tex. 431; Martin v. Harrington, 73 Vt. 193. 84 Am. St. Rep. 704, 50 Atl. 1074.

1. Snedecor v. Freeman. 71 Ala. 140; Sargent v. Wilson, 5 Cal. 504: McDonald v. Crandall, 43 111. 231, 92 Am. Dec. 112; Wallace v. Har-lis, 32 Mich. 380; Howell v. Bush, 54 Miss. 437; McCreery v. Schaffer, 26 Neb. 173, 41 N. W. 996; Atkinson v. Atkinson, 37 N. H. 434; .Joyner v. Sprigg, 132 N. C. 580. 44 S E 122; Hildebrand v. Taylor, 6 Lea, (Tenn.) 659; Whetstone v. Coffey, 48 Tex. 269. In Massachusetts, a contrary view was at one time adopted (Richards v. Chace, 2 Gray [Mass:] 383), but this was subsequently changed by statute (Smith v. Provin, 4 Allen [Mass.] 516). See Pub. St. Mass. v. 123, Sec. 7.

Sec. 248 ] Estates Arising From Marriage.

The statutory requirement of the joinder of the wife applies as well to a mortgage as to as absolute conveyance of the homestead.1a But it does not apply in the case of a mortgage given by the husband to secure the purchase money.lb consorts in joint tenancy.3 Apart from such a statutory declaration, the wife cannot properly be said to have any estate in the homestead property of her husband during his life, and the application of the term "estate" to her statutory right to prevent any alienation by him, or to her contingent right to succeed, on his death, to the homestead privilege, is to be avoided.4 That the joinder of the wife is necessary, in the case of a conveyance of the husband's homestead, or that she has a right to succeed, on his death, to the homestead privilege, does not in any sense make her the owner of an estate in the land during the husband's life.

Lc. Willingham v. Slade, 112 Ga. 418, 37 S. E. 737; Lunt v. Neeley, 67 Iowa, 97, 24 N. W. 739; Hurt v. Cooper, 63 Tex. 362; Coker v. Roberts, 71 Tex. 597, 9 S. W. 665.

Occasionally a purchaser for value without notice, actual or constructive, of the homestead character of the property has been held to take tree from any adverse claim based upon such character,1c and there are to be found occasional intimations of such a view, apart from actual decision.2

In California, and one or two states which adopted its statutory provisions, the legislature, in view. apparently, of the fact that the survivor of the marriage is given the homestead property, provided in terms that homestead property should be regarded as held by the la. Thompson v. New England Mortgage Security Co,, 110 Ala. 400, 55 Am. St. Rep. 29, 18 So. 315; Hart v. Church, 126 Cal. 471, 77 Am. St. Rep. 195, 58 Pac. 910; Way v. Scott, 118 Iowa, 197, 91 N. W. 1034; Jenkins v. Simmons, 37 Kan. 496, 15 Pac. 522; Tong v. Eifort, 80 Ky. 152; Girzi v. Carey, 53 Mich. 447, 19 N. W. 139; Alt v. Banholzer, 39 Minn. 511, 12 Am. St. Rep 681, 40 N. W. 830; Hubbard v. Sage Land, etc., Co., 81 Miss. 616, 33 So. 113; Amer. Sav., etc., Ass'n v. Burg-hardt, 19 Mont. 323, 61 Am St. Rep. 507, 48 Pac. 391; McCreery v. Schaffer, 26 Neb. 173, 41 X. W. 996; Sampson v. Williamson, 6 Tex. 102, 55 Am. Dec. 762; Anderson v. Stadlmann, 17 Wash. 433, 49 Pac. 107; Moran v. Clark, 30 W. Va. 358, 8 Am. St. Rep. 66, 4 S. E. 303; Dunn v. Buckley, 56 Wis. 190, 14 N. W. 67.

Ark. 367, 50 S. W. 865; Van Sandt v. Alvis, 109 Cal. 165, 50 Am. St. Rep. 25, 41 Pac. 1014; Christy v. Dyer, 14 Iowa, 438, 81 Am. Dec. 493; Sheldon v. Pruess-ner, 52 Kan. 579, 22 D. R. A. 709, 35 Pac 201; Amphlett 7. Hib-bard, 29 Mich. 298; Billingsley v. Niblett, 56 Miss. 537; Roby v. Bismarck Nat. Bank, 4 N. Dak. 156, 50 Am. St. Rep. 633, 59 N. W. 719; Roy v. Clarke, 75 Tex. 28, 12 S. W. 845.

2. Taylor v. Hargous, 4 Cal. 268, 60 Am. Dec. 606; Lynn v. Sentel, 183 111. 382, 75 Am. St. Rep. 110, 55 N. E. 838; Cropper v. Goodrich, 89 Kan. 589, 132 Pac. 163; Bauman v. France, 37 Neb. 807, 56 N. W. 395.