72 Ark. 228 | Ark. | 1904
(after stating the facts). W. W. Spraker, a married man and the head of a family, owning a tract of land, conveyed the same to Isadore Spraker, his wife, who did not join in the conveyance as required generally by the statute, which provides (Act March 18, 1887) that “no conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity, except for taxes, laborers’ and mechanics' lien, and the purchase money, unless his wife joins in the execution of such instrument and acknowledges the same.” Was the conveyance valid? We think that the conveyance by the husband directly to the wife, which meets her approval, shows her consent to it, and meets the intent of the act to the same extent as a conveyance by the husband to a third person in which the wife joins. It seems that it would be unreasonable to believe that the legislature, in passing this act, intended that it should be applied to a conveyance by the husband of a homestead to the wife. In the case of Park v. Park, 71 Ark. 283, 72 S. W. 993, this court said: “The evident purpose of this statute was to protect the interest of the wife in the homestead by forbidding the husband either to sell or encumber it without her joining in the deed;” and “it is clear, we think, that the husband cannot make any conveyance of his homestead affecting the interest of his wife therein without her consent, for purposes other than those named in the statute.” The statute requiring a wife to join with her husband in the deed of the homestead does not prevent his conveying his interest therein to her. Lynch v. Doran, 95 Mich. 395. “To require a deed from herself to herself would be senseless.” Stevens v. Castel, 63 Mich. 111; Thompson on Homesteads and Exemptions, § 473, says: “The policy of these statutes, which restrain the alienation of the homestead without the wife joining in the deed, is to protect the wife and enable her to protect the family in the possession and enjoyment of a homestead, after one has been acquired.by the husband. They are not intended to interpose obstacles in the way of a conveyance of the homestead to the wife, or to the wife and children, with the consent and approval of the wife, whatever may be the form of such conveyance.” Turner v. Bernheimer, 95 Ala. 241. The weight of authority sustains this view.
The judgment of the court is sustained and affirmed.