Opinion of the Court.

erty was ordered to satisfy the same, which in due time was had, and at which sale B. A. McFarland, who was formerly an officer of the bank, but who was at that time a liquidating agent of the bank, became the purchaser. The sale was confirmed, and a deed made to him. Thereafter Jane Riley, on the 7th day of November, 1913, filed an action in the district court of Craig county, asking that the judgment rendered in the cause of the bank against Moses Riley be vacated, and that the sheriff's deed issued to her be canceled, and that she be declared entitled to a homestead in said property, to which action the bank and McFarland filed an answer, which was a general denial and a statement of the entire facts as above given, to which a reply of general denial was filed. The cause was tried before the court, and after the evidence was introduced the court rendered a judgment, setting aside the judgment in No. 834, which was the case of the Bank v. Moses Riley, in so far only as it affected the homestead in controversy, and also restraining the enforcement of the judgment rendered in case No. 1093, which was the action brought to foreclose the mortgage given by Jane Riley to the bank, and decreeing that Jane Riley was entitled to the premises as a homestead, and that neither the bank nor McFarland could dispossess or interfere with her possession and occupancy thereof. The bank and McFarland have appealed to this court.

It being an established fact that this property occupied by Jane Riley and her children constituted the home of Moses Riley as a homestead at the time of the institution of the suit of the bank against him, case No. 834, and at the time the sale of said property was had in said proceeding, the question is presented, Did Jane Riley waive her homestead right in such property by becoming the

Cherokee National Bank et al. v. Riley.

purchaser at said sale, and is she estopped from asserting the homestead claim to this property by executing a mortgage to the bank to procure the money with which to purchase the property, and to secure an individual indebtedness due to other parties by her, or can her failure to assert a homestead in said actions before the judgments and the sale of said property bar her from now asserting a claim to the same? At first blush one would, perhaps, conclude that this question should be answered in the affirmative, as it is evident that she failed to assert her homestead claim, and failed to speak when she had every opportunity so to do, and as she apparently acquiesced in all the proceedings had. It is true that under the homestead laws of some of the states she would be held to have waived her homestead right, and would be estopped from asserting it now, but under our Constitution and statutes this is not true; for under the decisions of our court based upon the Constitution and the statutes, the sale of a homestead, except for the purposes and in the manner provided by law, is void. This being true, the sale of this property in the attachment proceedings in behalf of the bank against Moses Riley was void, and the deed of the sheriff to Jane Riley, which attempted to convey this property to her, was void, and conveyed no title whatever. This being true, it follows that the mortgage executed by her to the bank was likewise void, and conveyed no title to it, and the judgment of the court rendered in the foreclosure action, the debt named therein not having been created for any of the purposes for which a homestead could be sold, was likewise void, and the deed executed by the sheriff in said action conveyed no title to the purchaser. In the case of Alton Mercantile Co. v. Spindel et

Opinion of the Court.

al., reported in 42 Okla. 210, 140 Pac. 1168, this court says:

"Section 3342, Rev. Laws 1910, reserves to every family residing in the state a homestead, which shall consist of the home of the family, whether the title to the same shall be lodged in or owned by the husband or wife, and said section exempts such homestead from attachment or execution, or any other species of forced sale for the payment of a debt. Section 3343 defines a homestead of a family, not in a city or town, to consist of not more than 160 acres of land. Sections 1 and 2, article 12, of the Constitution, and the foregoing sections of the statute provide for the exemption of 160 acres of land not within a city or town, as a homestead for the family, which cannot be alienated or incumbered unless the instrument be subscribed by both husband and wife. The requirement of a joint act on the part of the husband and wife to affect the homestead is a provision for the protection of the children, as well as for either parent, and the only exception to the rule is provided by section 1146 of the Revised Laws of 1910, where the husband or wife becomes hopelessly insane, in which case a sale could be made by application to and upon order from the proper court. The contention that Spindel and his children occupied the premises as their homestead from the spring of 1905 until some time during the year 1907 is not disputed, nor is the fact that his wife was insane and confined in an asylum in Illinois disputed. When S. and his children moved upon this land in the spring of 1905, with the intention of making it their home, the premises became impressed with the homestead character, and no act or omission on the part of S. without the consent of his wife could result in abandonment of the homestead by the family. The homestead is for the benefit of the entire family, and such joint interest is to be regarded as paramount to the rights of any individual member thereof. It was held in Morris v. Ward, 5 Kan. 239, that: 'No alienation of the homestead by the husband alone, in whatever way it may be effected,

Cherokee National Bank et al. v. Riley.

is of any validity. Nothing that he alone can do, or suffer to be done, can cast the slightest cloud upon the title to the homestead; it remains absolutely free from all liens and incumbrances.' See, also, authorities cited. George Spindel, a married man, having selected the premises in controversy as a homestead, could not divest the premises of a homestead character by abandonment, without the free consent of his spouse; and, she being insane, and thereby unable to give her free consent, no act nor omission on the part of George Spindel would operate to divest the premises of its homestead character."

Likewise in the case of Whelan v. Adams et al., reported in 44 Okla. 696, 145 Pac. 1158, L. R. A. 1915 D, 551, this court held:

First: "Section 2, art. 12, of the Constitution prohibits the sale of the homestead of the family, where the owner is a married man, without the consent of the wife, given in such manner as may be prescribed by law."

Second: "An attempted conveyance by deed of the homestead of the family, by a married man, given without the wife's consent in the manner prescribed by law, is void."

Third: "Where the relation of husband and wife exists, the deed of the former to the homestead of the family conveys no title, and this notwithstanding the fact that the husband and wife be living separate and apart, or even though the wife may have, without justifiable cause, abandoned the husband."

See authorities cited in 44 Okla. 701-705, 145 Pac. 1160, 1161.

And in the course of the opinion in this case the court says:

"We deem the fact of what caused the wife to leave and remain away from home, and whether her abandonment was voluntary or involuntary, as immaterial. They

Opinion of the Court.

were still husband and wife, never having been divorced, and there is no exception written in our Constitution authorizing the husband to sell the homestead without the wife's consent, upon her voluntary abandonment of him. Neither are we disposed to write into the language used an implied exception."

See authorities cited.

Further, the court says:

"Section 883, Wilson's Rev. and Ann. Stat. 1903, provided that, the husband or wife executing the instrument relating to the homestead, without being joined with the other, it could only be avoided by the one not joining. In Maloy v. Cameron, 29 Okla. 763 [119 Pac. 587], Justice Williams called attention to the fact that said section did not appear to have been extended in force by the Constitution. This observation, in our judgment, stated a correct conclusion. The statute mentioned is, without doubt, repugnant to section 2, art 12, of the Constitution, providing how the homestead of the family may be sold, and was therefore not put in force by section 2, art. 25, of the Constitution. By section 82, Wilson's Rev. and Ann. Stat. of 1903, it is provided that, where the title to the homestead is in the husband, and the wife abandons him for the period of one year, or from any cause takes up her residence outside of the state, he may convey, mortgage, or make any contract relating thereto without being joined therein by her. We think that this section of the statute must likewise fall. To hold otherwise would be to create an exception, whereby when one of the two facts appears, the husband could convey the homestead without the consent of his wife. The fact that the wife may have, without cause, taken up her residence outside of the state, or that she may voluntarily abandon her husband for a period of one year, does not, of itself, dissolve the marriage relation."

And in this opinion they quote extensively from a Tennessee case as follows: