another to hold in trust for the husband, a mortgage executed by the trustee in accordance with the terms of the trust need not be signed by the beneficiary's wife. Des Moines Ins. Co. v. McIntire, 99 Ia. 50 (68 N. W. Rep. 565). Neb. Comp. Stat., 1895, ch. 36, § 4, which provides, "the homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife," renders all conveyances or incumbrances made of a homestead absolutely void, unless such conveyances are not only signed and witnessed, but acknowledged, by both the husband and the wife. Horbach v. Tyrrell, 48 Neb. 514 (67 N. W. Rep. 485); Havemeyer v. Dahn, 48 Neb. 536 (67 N. W. Rep. 489; 33 L. R. A. 332). Prior to the enactment of the homestead law of 1877, the failure of the wife to join in a conveyance of the homestead where the title to the same was in the husband did not render such conveyance void. Schields v. Horbach, 49 Neb. 262 (68 N. W. Rep. 524). Construing and applying Tenn. Const., Art. 11, § 11, providing that homestead lands cannot be alienated without the joint consent of husband and wife, and Tenn. Act. 1879, ch. 171, exempting from sale under legal process real estate in possession of the head of a family to the value of $1,000, and giving him the right to elect "where the homestead or said exemption shall be set apart, whether living on the same or not," it is held that the words "set apart" and the right of special election have no application to cases where the question of homestead arises in conrection with the execution of private sales and mortgages between citizens in their personal and contractual relations to each other, and where the head of the family owns several tracts of land and resides with his family upon one of them, worth as much as $1,000, this, as between him (both as to himself and as trustee for his family) and those who take conveyances from him, is an adoption of the residence place as the homestead, and satisfies the law, and he may convey the other tracts free of the homestead right. First Nat. Bank v. Meachem, Tenn. (36 S. W. Rep. 724). For construction and application of Ark. Act, March 18th, 1887, requiring the wife to join in a conveyance of a homestead, and Act, April 18th, 1893, validating conveyances made since the

former act, see British & A. Mortg. Co. v. Winchell, 62 Ark. 160 (34 S. W. Rep. 891); Hill v. Yarbrough, 62 Ark. 320 (35 S. W. Rep. 433); Shattuck v. Lyons, 62 Ark. 338 (35 S. W. Rep. 436); Shattuck v. Byford, 62 Ark. 431 (35 S. W. Rep. 1107). North Carolina Con., Art. 10, § 8, construed and applied-necessity of joinder by the wife. Thomas v. Fulford, 117 N. C. 667 (23 S. E. Rep. 635).

Sec. 383. Conveyance of homestead between husband and wife. Under Starr & C. Ann. Ill. Stat., p. 1103, requiring conveyances of a homestead to be by the joint deed of husband and wife, it is held that a deed of lands claimed as a homestead which do not exceed the statutory limit, by the householder, even to his or her wife or husband, not subscribed and acknowledged by such wife or husband (possession not being abandoned or given pursuant to the conveyance) is a nullity; but if the lands conveyed exceed in value the statutory limit, the title passes under such a deed for the excess. Despain v. Wagner, 163 Ill. 598 (45 N. E. Rep. 129). In South Dakota it is held that the husband may execute a conveyance of lands claimed as a homestead directly to his wife. Johnson v. Brauch, 9 S. Dak. 116 (68 N. W. Rep. 173; 62 Am. St. Rep. 857). The court say: "As statutes inhibiting the alienation or incumbrance of the homestead without the concurrent assent of the husband and wife, evidenced by an instrument in writing, executed by both, and duly acknowledged, emanate from a regardful consideration of reciprocal duties, and are designed only to protect the home and family against the vicissitudes of fortune and the ravages of time and events, the spirit of such laws is not contravened by a conveyance direct from the husband to the wife, and it is useless for both husband and wife to join as grantors in such a deed. Comp. Laws, § 2590; Wap. Homest., p. 395, § 9; Furrow v. Athey, 21 Neb. 671 (33 N. W. Rep. 208; 59 Am. Rep. 867); Harsh v. Griffin, 72 Ia. 608 (34 N. W. Rep. 441); Albright v. Albright, 70 Wis. 528 (36 N. W. Rep. 254); Dull v. Merrill, 69 Mich. 49 (36 N. W. Rep. 677); Wilder v. Brooks, 10 Minn. 50 (Gil. 32; 88 Am. Dec. 49)."

Sec. 384. Miscellaneous notes. For construction of homestead statutes of Louisiana, see Hebert v. Mayer, 48

La. 938 (20 So. Rep. 170). For a case in which each of the five judges of the supreme court of North Carolina files an opinion discussing the nature of the estate given in a homestead by the constitution of that state and the right to make conveyance thereof, see Thomas v. Fulford, 117 N. C. 667 (23 S. E. Rep. 635). Where the owner of a part of a block, divided into lots without streets or alleys, upon which was located his residence, outhouses and a building leased to others for business purposes, devises "his homestead," the term will be construed as including the dwelling house with the usual and customary appurtenances. Smith v. Dennis,

163 Ill. 631 (45 N. E. Rep. 267).

HUSBAND AND WIFE.

EPITOME OF CASES.

Sec. 385.

Antenuptial contracts. An antenuptial

Nathan v.

contract procured by fraud may be set aside. Nathan, 166 Mass. 294 (44 N. E. Rep. 221). A husband's antenuptial conveyance of land to his wife for the support of her and the children of the proposed marriage, which empowers her to sell the land with his consent, does not give her any authority to make a sale after his death. Smith v. Turpin, 109 Ala. 689 (19 So. Rep. 914). Where an antenuptial contract provides for the payment of an annual sum out of the husband's estate to the widow in lieu of dower, such sum is chargeable against the whole estate. Christy v. Marmon, 163 Ill. 225 (45 N. E. Rep. 150). The right of a widow to claim a statutory allowance pending the settlement of her husband's estate may be barred by an antenuptial contract. Appeal of Staub, 66 Conn. 127 (33 Atl. Rep. 615). Citing, Paine v. Hollister, 139 Mass. 144 (29 N. E. Rep. 541); Weaver v. Weaver, 109 Ill. 225; Peck v. Peck, 12 R. I. 485 (34 Am. Rep. 702); Tiernan v. Binns, 92 Pa. St. 248; In re Heald, 22 N. H. 265. Particular evidence held insufficient to justify a decree reforming an antenuptial contract. Rensink v. Wiggers, 99 Ia. 39 (68 N. W. Rep. 569).

Sec. 386. Deeds of separation. Just and equitable conveyances made between a husband and wife in pursuance of an agreement of separation which are executed without coercion or undue influence will be sustained. Caffey's Ex'rs v. Caffey, 12 Tex. Civ. App. 616 (35 S. W. Rep. 738). The court say: "At common law, agreements between husband and wife, commonly known as separation deeds,' have usually been treated as against public policy, and as capable of a partial enforcement only. All deeds for future separation are held to be absolutely void; but where the spouses have already separated, or have determined upon a separation, and are in the act of executing it, a conveyance by the husband, intended as a provision for the support of the wife, will be upheld. In other respects a deed of separation was held void. This was the carefully restricted doctrine at an early day in the English courts, and as so limited it has been universally recognized in the courts of this country. The tendency of the later English cases is to extend to deeds of separation a more liberal support (1 Bish. Mar. & Div., § 634a), while by the weight of authority in the American courts they are held valid in so far as they settle the rights of property between the husband and wife, provided they have been entered into without coercion or other undue influence, and the provisions are just and equitable. Hitner's Appeal, 54 Pa. St. 110; Hutton v. Hutton, 3 Pa. St. 100; Dillinger's Appeal, 35 Pa. St. 357; McKennan v. Phillips, 6 Whart. 571 (37 Am. Dec. 438); Loud v. Loud, 4 Bush. 453; Mc Cubbin v. Patterson, 16 Md. 179; Randall v. Randall, 37 Mich. 563; Robertson v. Robertson, 25 Iowa 350; McKee v. Reynolds, 26 Iowa, 578; Walker v. Walker, 9 Wall. 743. See, also, Fox v. Davis, 113 Mass. 255 (18 Am. Rep. 476); Switzer v. Switzer, 26 Grat. 574. In most of the cases cited the only interest in the property relinquished by the wife in the agreement was her dower in the husband's lands. But we think that in a jurisdiction where the spouses hold each an equal interest in the property acquired during marriage, the same principles should apply to deeds of separation which make a partition of the common property." A contract by a husband and wife, in view of separation, whereby, in consideration of a conveyance of a fair and adequate proportion

of her husband's property to her, she relinquishes all her rights as wife and widow, is valid. Hilbish v. Hattle, 145 Ind. 59 (44 N. E. Rep. 20).

Sec. 387.

Conveyances between husband and wife. A wife may be authorized to act as an attorney in fact for her husband in the conveyance of her separate real estate. Rogers v. Roberts, Tex. Civ. App. (35 S. W. Rep. 76). Although a husband and wife could not contract directly with each other equity will enforce a mortgage given by her to a third person to secure to her husband the repayment of the purchase price of land which he purchased and conveyed to her, which mortgage was made in pursuance of an agreement between the husband and wife at the time the land was conveyed to her. Eckermeyer v. Hoffmeier, 98 Ky. 724 (34 S. W. Rep. 521). She may maintain ejectment against her husband when he wrongfully deprives her of the possession of her land. Kimbrough v. Kimbrough, 99 Ga. 134 (25 S. E. Rep. 176). Under the strict rule of the common law a conveyance made by a husband directly to his wife is void. Claflin v. Ambrose, 37 Fla. 78 (19 So. Rep. 628). A conveyance of real estate direct from a husband to his wife, in good faith and for a valuable consideration, is valid. Merchants' & Laborers Bldg. Ass'n v. Scanlan, 144 Ind. 11 (42 N. E. Rep. 1008); George Taylor Com. Co. v. Bell, 62 Ark. 26 (34 S. W. Rep. 80); Johnson v. Brauch, 9 S. Dak. 116 (68 N. W. Rep. 173; 62 Am. St. Rep. 857.) Minn. Gen. Stat. 1894, § 5534, which, in effect, declares invalid conveyances of real estate between husband and wife, refers only to direct conveyances from one to the other and not to indirect conveyances through third persons; and it is immaterial that a conveyance from one to the other through a third person is in pursuance of a previously made and invalid agreement between husband and wife for such a conveyance. Jorgenson v. Minneapolis Threshing Co., 64 Minn. 489 (67 N. W. Rep. 301). Under Miss. Code, § 2294, a conveyance by a husband to his wife is not valid, as against third persons, unless it be both acknowledged and recorded. Snider v. Udell Woodenware Co. 74 Miss. 353 (20 So. Rep. 836). The provision requiring such conveyances to be recorded has no