harmony with the doctrine heretofore expressed by this court on the same subject. In a later case-Jerdee v. Furbush, 115 Wis. 277, 95 Am. St. Rep. 904, 91 N. W. 661-it is held that a conveyance of the homestead by the husband, without the wife's signature, conveys an equitable right to the legal title, enforceable on the extinguishment of the homestead by the death of the wife or otherwise. In the latter decision, Ferguson v. Mason, 60 Wis. 377, 19 N. W. 420, was, as we read the opinion, reluctantly followed to its logical consequences. It is said, in the course of the opinion, that the court, in the prior case (Ferguson v. Mason), followed judicial decisions made under statutes more or less similar to those of Wisconsin, citing a number of such decisions, in preference 555 to decisions to the contrary under like statutes, citing another line of decisions, in which is included from this state the case of Clarke v. Koenig, 36 Neb. 572, 54 N. W. 842. After discussing the subject further, it is observed by the court: "The law has thus stood for nearly a quarter of a century, and whether the court's construction of the statute was right or wrong it must now be considered the law the same as if the idea involved were literally expressed in the statute. It relates to property. It has become, by the lapse of time, a rule of property, which, by wellsettled principles, can only be rightly changed by a legisla tive enactment."

It is obvious that the court regards the later case as being ruled by Ferguson v. Mason, 60 Wis. 377, 19 N. W. 420, solely by reason of the application of the doctrine of stare decisis, and it is followed with apparent hesitation.

On the other side it is held, in Weitzner v. Thingstad, 55 Minn. 244, 56 N. W. 817, that the contract of the husband, without his wife joining therein, to convey his homestead is void for all purposes, and the husband is not liable in damages for its nonperformance. To the same effect is Barton v. Drake, 21 Minn. 299. The supreme court of Alabama, in Alford v. Lehman, Durr & Co., 76 Ala. 526, holds that an attempted conveyance of the homestead, not executed in the manner provided by statute by both husband and wife, is a nullity, neither passing any estate to the grantee nor operating by way of estoppel against the grantors. After quoting from several other decisions of that court, it is observed by the court: "These decisions have failed to recognize any

distinction between the conveyance of the homestead premises, and the mere right of homestead, which is recognized by some respectable authorities, and in support of which the appellants' counsel have made a most earnest and forcible argument. It is manifest that, if the owner were permitted to encumber the fee or reversion of his homestead, as distinguished from the mere right of undisturbed occupancyand by a mode of alienation dispensing with the voluntary 556 assent and signature of the wife-the provision of the constitution under discussion would have little more binding efficacy than a rope of sand, and its policy could be evaded by the husband with fatal facility. All that would be necessary, to effect such alienation, would be for the husband alone to convey or mortgage the premises one day, and abandon them the next; all of which might be done against the most earnest protest of an unwilling wife': See, also, Phillips v. Stauch, 20 Mich. 369; Hall v. Loomis, 63 Mich. 709, 30 N. W. 374; Pipkin v. Williams, 57 Ark. 242, 38 Am. St. Rep. 241, 21 S. W. 433; Thimes v. Stumpff, 33 Kan. 53, 5 Pac. 431.

In so far as this court has heretofore expressed itself regarding the scope and effect of our homestead statute, its decisions have generally been favorable to a liberal construction of the act, such as would grant the fullest measure of protection to the rights and interests of the homestead claimants. The trend of the decisions has been toward a construction which would render an agreement or contract affecting the homestead, not executed in the manner provided by the act, void for all purposes. Generally, it is held, as we view the several utterances on the subject, that a contract relating to the homestead, not signed and acknowledged as required by the act, is a nullity, and incapable of creating any rights, or affording a basis for the granting of relief either legal or equitable in its nature, not only in the homestead estate, but in the property itself embraced in the homestead. It is very true that most of these decisions apply to contracts affecting directly the homestead right and estate, and yet, if the reversionary estate is to be regarded as separable from the homestead estate, and capable of alienation by contract, executory in form or substance, then there is no reason why the doctrine obtaining in Wisconsin, as announced in Jerdee v. Furbush, 115 Wis. 277, 95 Am. St. Rep.

904, 91 N. W. 661, should not be held applicable here, and a conveyance or contract to convey, purporting to convey all and every estate in the land, held to create an equitable right to the legal title, enforceable on the extinguishment of the homestead by the death of the wife 557 or by abandonment of the homestead. All of our prior utterances we are satisfied, are inconsistent with this view and with such a construction of the homestead act. The very first utterance of this court on the subject is to the effect that a mortgage on the homestead, signed by the husband alone, is void. It is said: "The law proceeds upon the theory that both husband and wife are entitled to the benefit of the homestead act, and this right cannot be waived except by the consent of both": Bonorden v. Kriz, 13 Neb. 121, 12 N. W. 831; Aultman & Taylor Co. v. Jenkins, 19 Neb. 209, 27 N. W. 117. It is held in Swift v. Dewey, 20 Neb. 107, 29 N. W. 254, that a mortgage of a tract of land including a homestead, executed by a married man without the concurrence and signature of the wife, is invalid for the purpose of impairing, dismembering, or in any manner affecting such homestead or its appurtenances. To the same effect is McCreery v. Schaffer, 26 Neb. 173, 41 N. W. 996. Larson v. Butts, 22 Neb. 370, 35 N. W. 190, is a case wherein it is decided that a contract to convey a homestead, entered into by a wife in her own name, will not be specifically enforced because not signed and acknowledged by both husband and wife. "The title to a homestead," say the court in another case, "cannot be devested, or encumbered, by deed, unless such deed be executed and acknowledged by both husband and wife": Betts v. Sims, 25 Neb. 166, 41 N. W. 117. Whitlock v. Gosson, 35 Neb. 829, 53 N. W. 980, was a case where a mortgage had been executed on a homestead without the signature of the wife and under circumstances which appeal strongly to a court of equity for the granting of any relief which could be extended by the application of legal or equitable principles, and yet the court said, after quoting the statute, that it was a plain provision against encumbrance of any kind and refused relief altogether. Clarke v. Koenig, 36 Neb. 572, 54 N. W. 842, cited by the supreme court of Wisconsin, was a case regarding the specific performance of a contract for the sale of a homestead and it is said in substance: It is the settled law of this state that the courts will not

specially enforce such contracts not executed in the manner 558 pointed out by the act, and it is also held that the value of the property would not change the rule. In this case the subject matter of the controversy was a house and lot occupied as a homestead in a city. The doctrine thus announced is clearly inconsistent with and in opposition to that obtaining in Wisconsin and other jurisdictions holding similar views. We may cite also Violet v. Rose, 39 Neb. 660, 58 N. W. 216, Prout v. Burke, 51 Neb. 24, 70 N. W. 512, as being in entire harmony with the cases preceding. But the court has gone further and committed itself to the doctrine that such a contract creates no rights, either legal or equitable, but is a nullity for all purposes as declared by the statute. In Meek v. Lange, 65 Neb. 783, 91 N. W. 695, it is held that because of the provisions of section 4 of the homestead act, an executory contract for the sale of the homestead to which the wife is not a party is invalid and its nonperformance does not furnish a basis for recovery of damages for the loss of the bargain. In the opinion it is said: "The doctrine that the contract was totally void, and would support no action for damages, is certainly supported by text-writers and many decisions": Citing numerous authorities in support of the proposition. Of like effect are Solt v. Anderson, 63 Neb. 734, 89 N. W. 306; Buettgenbach v. Gerbig, 2 Neb. (Unof.) 889, 90 N. W. 654.

An examination of these several decisions and considerations of the homestead statute convinces us that the operation of the statute, and especially section 4, nullifies the parol agreement relied on by the appellee in so far as it relates to and affects the homestead property of the promisor, and that specific performance of the contract as to such real estate should not be decreed by a court of equity.

No valid objection, it would seem, from the foregoing discussion, can be urged against the authority of a court of equity to compel specific performance as to that part of the real estate involved in the present controversy not embraced within the family homestead: Swift v. Dewey, 20 Neb. 107, 29 N. W. 254; Weitzner v. Thingstad, 55 Minn. 244, 56 N. W. 817.

559 An examination of the evidence leads to the conclusion that the findings of fact and the views as expressed with reference thereto in the last opinion, except as the home

stead is affected, are sufficiently sustained, and for that reason should be adhered to. The former opinion is modified as herein indicated, and the parol agreement on which the action is based, in so far as it relates to the homestead, is held to be a nullity and of no force and effect. The judg ment last entered is set aside and vacated, and the cause remanded to the district court for further proceedings in harmony with the views herein expressed.

It has been suggested that since the submission of this cause on rehearing, Frederick Teske, one of the appellants herein, has died. The rule is that where one of the parties dies between the date of submission of the cause in this court and the filing of an opinion therein, judgment may be entered as of the day on which the cause was submitted: Black v. Shaw, 20 Cal. 68; Danforth v. Danforth, 111 Ill. 236; Jeffries v. Lamb, 73 Ind. 202; Bank of United States v. Weisiger, 2 Pet. (U. S.) 481, 7 L. ed. 492; Bergen v. Wyckoff, 84 N. Y. 659.

The judgment entered in this court on this rehearing will, therefore, be entered as of the first day of January, 1903. Reversed.

A Contract to Make a Will, devising land, though resting in parol, may be enforced, if its terms are clearly established and the promisee has performed it on his part, at least where his performance consists in rendering personal services to the promisor which cannot be adequately compensated in money: See the monographic note to McCoy v. McCoy, 102 Am. St. Rep: 240, 241; Russell v. Sharp, 192 Mo. 270, 111 Am. St. Rep. 496, and cases cited in the cross-reference note thereto.