
    (June 21, 1917.)
    WESLEY HUGHES and ANNA HUGHES, Husband and Wife, Respondents, v. THE LATOUR CREEK RAILROAD CO., a Corporation, et al., Appellants.
    [166 Pac. 219.]
    Homestead — Encumbrance op — Joinder op Husband and Wipe — Necessity por.
    
      Held, That under sec. 3106, Key. Codes, providing that “No estate in the homestead of a married person, or in any part of the community property occupied as a residence by a married person can be conveyed or encumbered by act of the party, unless both husband and wife join in the execution of the instrument by which it is so conveyed or encumbered, and it be acknowledged by the wife as provided in Chapter 3 of this Title,” an instrument purporting to convey or encumber sueh property or any interest therein, in which the wife does not join, is void.
    [As to conveyance or encumbrance of homestead by one spouse only, see note in 95 Am. St. 909.]
    APPEAL from tbe District Court of tbe Eighth Judicial District, for Kootenai County. Hon. Robert N. Dunn, Judge.
    Action to quiet title to certain lands. Judgment on the pleadings of plaintiffs.
    
      Affirmed.
    
    Edward H. Berg, for Appellants.
    A husband has the absolute power to dispose of the common property of himself and wife to the extent and in the manner as he had of his separate property until a legal separation has been effected by a court of competent jurisdiction, and a division made under the direction of the court. (Bay v. Bay, 1 Ida. 566.)
    A statute like ours of 1913 which required the wife to join in conveyance did not affect property acquired prior to the passage of the act, as the legislative act could not in any way affect the husband’s right as it existed before the enactment. (Beade v. Be Lea, 14 N. M. 442, 95 Pac. 131; Spr echéis v. 
      
      Spreckels, 116 Cal. 339, 58 Am. St. 170, 48 Pae. 228, 36 L. R. A. 497.)
    It is admitted that the wife was more willing than the husband to make said transaction, and it is shown that she waited for more than a year and a half before disaffirming, and before commencing suit; that she lived upon the land and saw and knew of the improvements being made by the defendant railroad, which would enhance the value of the plaintiff’s land. Under the subject of equitable estoppel, see Eonnerupt v. Frandsen, 8 Wash. 551, 36 Pac. 493; Grice v. Woolworth, 10 Ida. 459, 109 Am. St. 214, 80 Pac. 912, 69 L. R. A. 584; Englwlm v. Ekrem, 18 N. D. 185, 119 N. W. 35.
    'James H. Frazier, for Respondents.
    The homestead occupied by the husband and wife as a residence is common property of the marital community, and the husband alone cannot convey or encumber it so long as it continues to be the residence of himself and wife. {Law v. Spence, 5 Ida. 244, 48 Pac. 282; Mabie v. Whitaker, 10 Wash. 656, 39 Pac. 172.)
    “Where the purchaser knows that the land is community property, his contract made with the husband alone for its sale is void.” (21 Cyc. 669c; Warburton v. White, 176 U. S. 484, 20 Sup. Ct. 404, 44 L. ed. 555; Holyoke v. Jackson, 3 Wash. Ter. 235, 3 Pac. 841; Hill v. Young, 7 Wash. 33, 34 Pae. 144.)
   BUDGE, C. J.

This action was brought by respondents, husband and wife, to quiet title to certain lands in Kootenai county. The material facts alleged in the complaint are: That the land was occupied by respondents as their community homestead; that respondent, Wesley Hughes, without his wife’s consent and without her joining in the execution of the instrument, delivered to the Latour Creek Railroad Company a deed to the timber on the homestead, receiving as consideration therefor certificates of stock in said, company; that by an agreement of even date it was stipulated that this timber should be bonded by the railroad company in order to procure funds to be used in building and equipping its railroad; and that the agreement also provided for a right of redemption, which right was thereby assigned by the railroad company to the respondent, Wesley Hughes.

The Railroad Company answered that its rights had been transferred to J. F. Howarth Company, as trustee. The latter was made a party and answered that its rights had been transferred to one Jos. H. Whelan, as trustee. The latter by separate answer admitted the community character of the property, that it was occupied by respondents as a residence, and affirmatively alleged that respondent, Anna Hughes, at the time of making the deed was more interested and willing to make the same than her husband; that the bonds had been sold to the public under the representation that they were secured by this timber; and “that the persons holding said bonds .... are relying upon said trust deed and upon the title vested in this defendant as such trustee under and by virtue of said deed.”

The trial court rendered judgment upon the pleadings, quieting title to the land in respondents, as prayed in their complaint. This appeal is from the judgment.

The briefs of counsel devote much time and cite many authorities in an endeavor to reach a satisfactory interpretation of sec. 2686, Rev. Codes, as amended by c. 105, Sess. Laws 1913, p. 425. That section relates to community property in general. What effect the 1913 amendment may have had upon the authority of a husband to convey community property, which was in existence as such property prior to the enactment of the amendment, it is not necessary for us to determine under the facts in this case.

Sec. 3106, Rev. Codes, was in force at the time the deed in question was given. That section has not been amended nor repealed, and is as follows: “No estate in the homestead of a married person, or in any part of the community property occupied as a residence by a married person can be conveyed or encumbered by act of the party, unless both husband and wife join in the execution of the instrument by which it is so conveyed or encumbered, and it be acknowledged by the wife as provided in Chapter 3 of this Title.” The sole question then presented for our consideration is, can a husband, without the wife joining in the instrument, convey or in any manner encumber community property, occupied by them as a residence. This precise question does not seem to have been directly involved in any previous case in this jurisdiction, but many other states have similar statutes, which have been often considered. The result of the decisions is summarized in Pipkin v. Williams, 57 Ark. 242, 38 Am. St. 241, 21 S. W. 433, in these words: “The decided weight of authority is that such deeds are void absolutely, not relatively; that they are mere nullities, and leave the property as if they had not been made. [Citing many cases.]” (See, also, Poole v. Gerrard, 6 Cal. 71, 65 Am. Dec. 481, with extensive note; Hart v. Church, 126 Cal. 471, 77 Am. St. 195, 58 Pac. 910; McGhee v. Wilson, 111 Ala. 615, 56 Am. St. 72, 20 So. 619; Freiermuth v. Steigleman, 130 Cal. 392, 80 Am. St. 138, 62 Pac. 615; Ainsworth v. Morrill, 31 Cal. App. 509, 160 Pac. 1089.)

It follows that "Wesley Hughes was without authority to give the deed in question and his purported deed, unaccompanied by the signature and acknowledgment of his wife, as required by the foregoing section, was void and operated to convey no interest whatever in or to the property therein described. Nor does the allegation in appellant’s answer that the respondent, Anna Hughes, was more willing to give the deed than her husband, constitute any defense or create an estoppel. Under the pleadings it is admitted that she did not join in the deed; failing in this, the entire transaction was a nullity.

The judgment is affirmed. Costs' awarded to respondent.

Morgan and Rice, JJ., concur.  