the Constitution. That it is competent for the Legislature, in the absence of constitutional restriction, to prohibit the alienation of the homestead without the wife’s signature is well settled. * * * § 5052, Rev. Codes 1905 (now 5608, Comp. Laws 1913), in force when the mortgage in suit was given, required the wife’s signature. She did not sign it. It was therefore invalid. In some states a conveyance of the homestead executed by the husband alone is not wholly void, but has the limited effect of transferring the husband’s interest, but subject to the homestead estate. Gee v. Moore, 14 Cal. 472. In this state, however, a conveyance of the homestead which is not executed by both husband and wife is void.”
The case from which we have just quoted is directly in point. The conveyance there involved, as here, was a mortgage, and it was determined to be invalid, and, for this reason, of no effect. The statute prohibiting the alienation of the homestead, unless the instrument of conveyance is signed and acknowledged by both husband and wife, a conveyance not so executed is wholly void, regardless of the value of the homestead.
Though the homestead exceed in value $5,000, it cannot be incumbered, except both husband and wife join in the conveyance, though, according to the statutes hereinafter cited, it may be levied on under execution, for the enforcement of a judgment, and the interest of the claimants to the homestead, over and above $5,000, subjected to the satisfaction of the judgment. See §§ 5611 to 5620, both inclusive, Comp. Laws 1913. But that is an entirely different matter than placing a voluntary incumbrance thereon, which only may be accomplished by compliance with the provisions of § 5608, supra.
But here arises, out of § 208 of the Constitution, a very important question, viz., Can a homestead, in any event, even though it exceed in value $5,000, be sold at a forced sale?
§ 208 of the Constitution provides that—
“The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws, exempting from forced sale to all heads of families a homestead, the value of which shall be limited and defined by law, and a reasonable amount of personal property; the kind and value shall be fixed by law. This section shall not be construed to prevent liens against the homestead for labor done and materials furnished in the improvements thereof, in such manner as may be prescribed by law.”
It is thus seen that this constitutional provision requires the Legislature to pass laws exempting the homestead from forced sale.
