less than $5,000, and set aside the whole tract of land to defendant as exempt.
The court gave a personal judgment against the defendant for the amount of the note and interest. It also ordered and decreed that plaintiff’s mortgage was no lien on the land.
A determination of whether plaintiff’s mortgage is a lien on the land will dispose of the case, for if it is not a lien, no other question presented here will really be material.
§ 5608, C. L. 1913, 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.”
This identical statute was construed in the case of Swingle v. Swingle, 36 N. D. 611, 162 N. W. g12. See, also, Farmers’ Bank of Mercer County v. Knife River Lumber & Grain Co., 37 N. D. 371, 163 N. W. 1053; Yusko et ux. v. Studt et al., 37 N. D. 221, 163 N. W. 1066; Rasmussen v. Stone, 30 N. D. 451, 152 N. W. 809; Severtson v. Peoples, 28 N. D. 372, 148 N. W. 1054.
In Swingle v. Swingle, supra, it in substance was held that the homestead, as defined by § 5608, can be conveyed or incumbered only where the instrument of conveyance, is executed and acknowledged by both husband and wife. The mortgage here was executed and acknowledged by the husband only. It is certain that the land in question is the homestead of the defendant and his wife. The mortgage, as so executed and delivered, was absolutely null and void.
Again, this court has, as early as 1906, settled the question that a mortgage similar to the one in the case at bar was absolutely null and void. In the case of Garr, Scott & Co. v. Collin et al., 15 N. D. 627, 110 N. W. $1, this court, speaking through Judge Young, construed § 5608, C. L. 1913. which was § 5052, Rev. Codes 1905, and § 3608, Rev. Codes, 1899, and there used the following language:
“The Constitution of this state (§ 208) charged the Legislature with the duty of protecting the homestead by suitable laws. One of the means adopted by the Legislature for accomplishing this end, and it is common to many states, is the requirement that a conveyance thereof shall not be effective unless signed by both husband and wife. There is no constitutional restriction in this state inhibiting this legislation. It, on the contrary, merely carried into effect the mandate of
