It may be that as to those portions of the homestead not covered by the mortgage which had been conveyed away by the widow after her husband's death with the participating in or acquiescence of the children therein, the children, under the evidence in this case, being of age, have either actually waived their rights or estopped themselves from raising any question as to the effectiveness of such transfers. But it appears that they are not estopped to question the validity of the mortgage their mother made to Proctor, and the proceedings foreclosing the same, in so far as their title is concerned, because they had nothing to do with the execution of the mortgage and were not made parties to the foreclosure proceedings.
Upon the death of their father, Edward Barnott, his homestead, under the express provisions of Article X of the Constitution, inured to the benefit of his widow and heirs. It is true, Barnott had before his death endeavored to convey the homestead to his wife by making a voluntary conveyance to Peden who then conveyed to Mrs. Barnott, but this conveyance was ineffectual, and in so far as the children were concerned, absolutely void. By a line of carefully considered cases, this court has held that the homestead provided for in the Constitution was provided for the benefit of the family, and that it could not be conveyed, either directly or indirectly, by the husband to the wife; that a conveyance by the husband to the wife was void, *Page 71
and that upon the death of the husband the homestead "inured to the benefit of the widow and heirs," regardless of the ages of the children or heirs, unless of course it had previously been conveyed away by the husband in his lifetime, joined by his wife, in the only way provided in the Constitution by which it could be alienated. See Byrd v. Byrd,
Proctor, the mortgagee, was put on record notice as to the homestead character of the property mortgaged by Mrs. Barnott, then Mrs. Peden, to him in 1928. Edward Barnott homesteaded this property and when the federal government conveyed the property to him in 1892, the conveyance or patent showed that he had acquired it under the homestead law. Furthermore, he occupied the property as a homestead until his death, and since then his widow has been in continuous possession of this portion of the property, being that on which the home was and is located.
As against the children of Edward Barnott, the deed of the homestead to Mrs. Barnott, made in November, 1892, being void, her mortgage to Proctor is, as to the children's title, also ineffectual and void. I do not believe that the twenty-year statute, Chapter 10171, of the laws of 1925, can impart validity to the deed to Mrs. Barnott in so far as the rights of the children were and are concerned. To *Page 72 hold otherwise would be in effect to hold that the Legislature could put a limitation upon the homestead rights of the children expressly guaranteed to them by the Constitution, which limitation the Constitution makers did not see fit to provide.
The dominant public policy of the State as to homestead property is established by the Constitution itself, and that policy cannot be changed or impaired, directly or indirectly, by the Legislature.
In the cases which I have cited, and in numerous other decisions by this court, the constitutional provision that the homestead inures to the benefit of the children, as well as the widow, has been given full force and effect. This is a continuing provision, and applies to and protects the rights of the children after the death of the head of the household until they themselves have seen fit to lawfully convey away or otherwise part with those rights.
For these reasons, on this point, I respectfully dissent.
ELLIS, C.J., concurs.
