Polk v. Stephens

Kirby, J. (after stating the facts). Appellant contends that the deed under which appellees claimed title was absolutely void, having been made to convey the grantor’s homestead to his wife and children without the wife joimng therein. The statute provides, section 3901,Kirby’s Digest: “No conveyance or other instrument affecting the homestead of any married man, shall be of any validity except for taxes, laborers’ and mechanics’ liens, and the purchase money, unless his wife joins in the execution of such instrument, and acknowledges the same. ” In Kindley v. Spraker, 72 Ark. 228, the court held that a conveyance from a husband directly to his wife was valid, notwithstanding the statute and that the wife did not join therein. It was held that a conveyance to the wife, which meets her approval and shows her consent thereto, conforms to the intent of the law to the same extent as a conveyance by the husband to a third person in which the wife joins. The court quoted from Thompson on Homestead and Exemptions, see. 473, as follows: “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,” and continuing said, the weight of authority sustains this view. The policy of the homestead law is to protect the family, the wife and children in the enjoyment .of a home and it was not the purpose of this statute to make void a conveyance thereof by the husband directly to his wife and children, under which they would necessarily be as much protected as they could be if no conveyance of the homestead was made or the attempted conveyance was invalid, because of .the failure of the wife to join therein. The conveyance met the approval of the wife and was accepted by her, and the family continued to reside thereon certainly until she later joined in the conveyance to appellant. The deed was effectual to convey the lands and notwithstanding its wrongful cancellation by the decree of the chancery court, the title was not divested from the grantees, who appealed therefrom and caused said decree to be vacated. The purchase of the lands for a valuable consideration thereafter from the original grantor and a conveyance of same to appellee before .the reversal and vacation of said decree, would not have effect to constitute appellee a bona fide purchaser of the lands as against the claim of appellees under the original deed nor furnish any defense against their action for the possession of the lands. It can make no difference that a different reason was assigned by the trial court for its decision and upon which the verdict was directed, since no error was committed in the result reached. The judgment is accordingly affirmed.