McKenzie v. ShowsMcKenzie v. Shows
delivered the opinion of the court.
In this state, for more than thirty years, and since the opinion of this court in Harrell v. Miller,
Was the sale of all the merchantable timber, of certain dimensions, on the entire homestead, with an indefinite time for its removal, a conveyance of аn interest in the land, or an incumbrance upon it, and invalid, and of no fоrce, because of the failure of the wife to join in the deеd? The growing trees are a part of the realty, and may be, in case the lands are what are denominated timber-lands in contradistinction to other lands called agricultural lands, a very valuable part of the realty. In a readily supposable case, the sаle and removal of the entire forest growth would practically destroy the value of the realty. In the case at bar it is allegеd in the bill, and not denied in the answer, that the lauds in question would be only worth аbout one-half as much as they are, if the timber should be taken off.
Under our own decision referred to, the sale of the growing timber is a sаle of a part and parcel of the land itself. It is a convеyance of an interest in the land — in the present case, an important interest. By all authorities, it is an incumbrance upon the homestead. Says Cooley, J., in Post v. Campau,
But it is useless to multiply authorities. The question cannot be regarded as-unsettled in оur courts, if Harrell v. Miller is followed to its logical conclusion. The growing trees are part and parcel of the land, by that case, and the sаle of such trees, and especially the wholesale conveyance shown in the case at bar, with the large diminution in value оf the homestead, is clearly and inevitably the sale of an interеst in the land, and constitutes an incumbrance upon it.
There is no estаte in reversion expectant upon which the appellаnts can enter upon the proper sale of the homestеad by the husband and wife jointly, for the reason that the attempted сonveyance aud incumbrance of the husband alone, in the sale by deed of the timber, was absolutely invalid to convey any right or titlе. Collins, the purchaser of the timber, acquired nothing by the invalid conveyance from the husband alone.
"We are not inclined to eat away a wise and most beneficent statute, designed for the welfаre and support and comfort of wives and children, by engrafting any exceptions upon it. The law must be upheld and enforced as written, and this we do by declaring Yawn’s deed to the timber on the homestead an incumbrance upon the title, and invalid for any purpose.
Affirmed.