The attempted conveyance by plaintiff to defendant was, at most, an attempted gift. There is no case in which a party has been compelled to perfect a gift which he has left incomplete in the mode of making.

Wadhams v. Gay, 14 Am. Law Reg. 425; Antrobus v. Smith, 12 Ves. Jr. 39; McFadden v. Jenkyns, 1 Hare, 458; 1 Story, Eq. § 433; Fry, Spec. Perf. 70, 71; Otis v. Beckwith, 49 III. 121.

A homestead cannot, under our laws, be abandoned or granted, except by an instrument in writing executed and acknowledged by both husband and wife if both were living.

Civil Code, SS 1242, 1243. See Barber v. Babel, 36 Cal. 18; Flege v. Garvey, 47 Cal. 376; Gagliardo v. Dumont, 54 Cal. 496; Graves v. Baker, 68 Cal. 133; Porter v. Chapman, 65 Cal. 368; Tipton v. Martin, 71 Cal. 325.

In case of a divorce, when the homestead property has been selected from the separate property of either husband or wife, it must be assigned to the former owner.

Civil Code, § 146, div. 4.

The word homestead in the sections of the Code relating to its conveyance and incumbrance, has reference to the entire estate in the property.

Tipton v. Martin, 71 Cal. 327: Graves v. Baker, 68 Cal. 133; Porter v. Chapman, 65 Cal. 368; Gagliardo v. Dumont, 54 Cal. 499.

Works, J., delivered the opinion of the

court:

This case presents two questions necessary to be considered:

1. Can a husband make a valid conveyance to his wife, of his separate real estate, upon which he has declared a homestead which is still subsisting at the time of the conveyance? 2. If so, what was the effect upon the title, of a divorce granted to the wife subsequent to the conveyance, the property rights of the parties not being adjudicated in such divorce proceedings?

or incumbered except by an instrument executed and acknowledged by both husband and wife. Civil Code, 1242, 1243: Barber v. Babel, supra; Flege v. Garvey, 47 Cal. 375; Gagliardo v. Dumont, 54 Cal. 498; Graces v. Baker, 68 Cal. 133; Porter v. Chapman, 65 Cal. 365; Tipton v. Martin, 71 Cal. 325.

The cases cited construe the statute as enacted in the interest of the wife, where the declaration is by the husband, and hold that no conveyance in derogation of her rights under the homestead can be effective unless she joins in the same. But all of the cases relate to conveyances to third parties, which are necessarily in derogation of her homestead rights. It is true the case of Tipton v. Martin, supra, was a conveyance to the wife, but only in trust and for the benefit of the cestui que trust. The case before us presents an entirely different question. The conveyance was not in derogation of the homestead rights of the wife. Being a conveyance of the legal title from one of the joint owners of the homestead right to the other, the property must be held to remain a homestead as before. The requirement of the statute that the wife shall join in the conveyance only applies to a conveyance or abandonment of the homestead. deed under consideration did not in any way affect the homestead, it is not within the statute, and no reason occurs to us for holding such a conveyance to be void.

As the

In the case of Gagliardo v. Dumont, supra, it was said: "Under the restraints imposed by the Homestead Law, neither the husband nor the wife had power to transfer the homestead by a separate conveyance, nor could either incumber it to the prejudice of the other or of both, or to the destruction of the homestead itself. The obligation between them, in respect to its preservation, was reciprocal. Neither could, without the consent and concurrence of the other, alienate or transfer it. It was created as a place of residence for the family; and it is the policy of the law to preserve it intact for that purpose, until both the husband and wife shall mutually resolve to destroy it by alienation or abandonment. In pursuance of that policy its destruction is prohibited, except by the joint act of both in the mode provided by the Homestead Law."

1. In this State either husband or wife may enter into any agreement or transaction with the other, respecting property, which either might if unmarried (Civil Code, § 158); therefore a husband may convey his real estate directly to his wife, as he may to any other

person.

The effect of declaring the homestead was to convert the separate title of the husband into a joint title in himself and wife to the extent of the homestead (Civil Code, § 1237, 1242, 1265; Barber v. Babel, 36 Cal. 14); and

sent of the parties, expressed by a joint conveyance. If this deed could be held to have that effect, it might be declared void. But as its effect is to leave the homestead intact and vest in the wife the legal title to the property, subject thereto, no right intended to be protected by the Constitution and legislation under it is infringed or affected in any way. The question is an open one in this State, but we are not without authority to support such conveyance. Spoon v. Van Tassen, 53 Iowa, 494; Green v. Farrar, 53 Iowa, 426; Thompson, Homesteads, § 473; Platt, Married Women, $ 70, p. 225; Riehl v. Bingenheimer, 2 Wis. 86; Baines v. Baker, 60 Tex. 140; Ruhs v. Hooke, 3 Lea (Tenn.) 302; Harsh v. Griffin, 72 Iowa, 608.

So in Spoon v. Van Tassen, 53 Iowa, 494, the court said: "Section 1990 of the Code provides: A conveyance or incumbrance by the owner is of no validity unless the husband and wife, if the owner is married, concur in and sign the same joint instrument.' It is urged by appellant's counsel that it would be absurd to require the wife to sign a conveyance to herself. This may be admitted, but it does not follow that a deed from the husband to the wife will operate as a surrender of the husband's homestead rights in the property conveyed. It is the policy of the law to preserve to every family a homestead; such a course greatly subserves the interests of society and of good government; hence, the law has wisely thrown restrictions about the manner of conveying or incumbering the homestead. If the nature of these restrictions is such that they cannot be observed in the case of a conveyance by the husband to the wife, it follows that the husband cannot convey his homestead rights to the wife, rather than that the conveyance shall prove effectual notwithstanding its failure to comply with the conditions of the statute. It does not follow that the deed to the wife is a nullity; it may have operated to vest in the wife the legal title to the property. But the property continued still to be the homestead of the family. The declaration in the deed of the intention to surrender homestead rights and allow the wife the absolute disposition of the property is ineffectual, because not expressed in the manner required by the law. After the conveyance the homestead remained, with the title, it may be conceded, in the wife."

In the case of Riehl v. Bingenheimer, 28 Wis. 84, the deed was to a third party in trust for the wife, and the court said: "It is contended by counsel for the plaintiff that the conveyance by Paul Bingenheimer to Judge Paine, is void, because the premises sought to be conveyed by it were a homestead, and the wife of the grantor did not join in such conveyance. The statute then was, and still is, that a mortgage or other alienation of a homestead by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same. This statute was enacted to protect the wife, and to enable her to protect her family, in the possession and enjoyment of a homestead, after one

Under the circumstances of this case, we are of the opinion that the conveyance to Judge Paine was not an alienation of the homestead within the meaning and intent of such statute. The express trust which was attempted to be created by that conveyance is clearly a passive one, and the grantee took no title by virtue of the conveyance, but the legal estate vested immediately in the defendant, the plaintiff and Elizabeth, to the extent of the estate therein granted to them respectively."

It is claimed by the respondent that the Homestead Laws of other States differ from our own, and for that reason the decisions of the courts of such States cannot be relied upon. But we find that the statutes in the States referred to are the same, in principle, as the Code of this Stute, in respect to the power and manner of alienating the property. However this may be, we should not hesitate to hold such a conveyance to be valid, independent of authority. That such conveyances should be upheld seems to us to be eminently just and entirely consistent with the letter and spirit of the Homestead Laws. We can see no just reason for permitting the husband to question his own conveyance of the property; and, as no one else is complaining, or could be injured thereby, the same must be upheld.

The respondent makes the point that this was a mere gift, and the mode of making it being incomplete, it cannot be enforced. If the gift were not perfectly executed and this were an attempt to compel a specific performance, the rule invoked would be applicable. But as we have held that the execution of the conveyance was perfect without the signature and acknowledgment of the wife, and the action is by the grantor to avoid the same, the point is not well made.

2. We pass to the question as to the effect of the divorce upon the title. At the time the divorce proceeding was instituted, and the decree rendered therein, the property was a homestead upon the separate property of the wife by virtue of the declaration by the husband and his subsequent conveyance to her. There was no adjudication as to their rights in the property. In that proceeding the rights of the parties to the property might have been determined, and if the plaintiff had shown any just ground for setting the whole or any part of the same off to him, this might have been done for a limited time, under subdivision four, section 146, of the Civil Code, which provides that "If a homestead has been selected from the separate property of either, it shall be assigned to the former owner of such property, subject to the power of the court to assign it for a limited period to the innocent party.

The husband having conveyed the property to the wife, by a valid deed, prior to the commencement of the divorce suit, she must be regarded as the "former owner" under this section and entitled to the property, subject only

to the power of the court to set the same apart to the husband, for a limited time, if he appeared to be the innocent party.

Petition for rehearing denied March 23, 1889.

Edmund H. DUCHEMIN

v.

Charles B. KENDALL.

(....Mass.....)

1. An agreement by the equitable owner of 1000 shares of corporate stock of the par value of $10 per share, which stock is held by trustees under a trust agreement to sell 500 of such shares at $1 per share, and the execution of such agreement by his delivering to the buyer the trustees' receipt for the stock and receiving in return $500 in cash and the buyer's receipt for 500 shares of the stock, constitute sufficient consideration for

an agreement on the part of the buyer to secure

for the seller a bona fide bid of $5,000 for the remaining 500 shares within twelve months, or at the end of that time to take the stock himself at that price.

2. A sale, by the equitable owner, of corporate stock held by trustees, under a trust agreement, transfers the seller's interest subject to the execution of the trust, and is not within the provisions of Public Statutes, chap. 78, § 6, which render void every contract for the sale of stock "unless the party contracting to sell or transfer the same is at the time of mailing the contract, the owner or assignee thereof, or authorized by the owner or assignee or his agent to sell or transfer" the same.

3. There is a sufficient tender on the part of the seller in a contract by which one agrees to procure for another a bona fide bid of a certain amount for certain stock within twelve months

or at the end of that time to take the stock himself at an agreed price at the seller's option, if the seller mails a notice which must, by due course of mail, reach the buyer one year from the date of the agreement, and which informs the buyer that he is expected to take the stock, which is actually tendered to him four days thereafter and payment demanded; especially where the buyer makes a general refusal to comply with the agreement.

(May 9, 1889.)

ON report from the Superior Court of Suffolk

County. Judgment for plaintiff.

This was an action to recover damages for breach of an alleged contract for the purchase of certain corporate stock. At the trial in the superior court before Barker, J., the case was withdrawn from the jury and submitted to the supreme judicial court upon an agreed statement of facts and the court's findings thereon.

From the agreed statement of facts it ap peared that in 1885 plaintiff became the owner of 1000 shares of Addax Basting Machine Company's stock of the par value of $10 per share. In March, 1886, he transferred his certificate therefor to one Bayley and received from him a receipt stating that the stock was held subject to plaintiff's order for three months. Bayley surrendered the certificate to the company and took out one in his own name for the stock. In April, 1886, Bayley, with the knowledge and consent of plaintiff, assigned and transferred the stock to Charles B. Kendall and

stock.

Executory contracts for the sale of stock may be made with an intent to actually deliver the stock, and at common law, they are legal and valid. Irwin v. Williar, 110 U. S. 499, 508 (28 L. ed. 225, 229); Cook, Stock and Stockholders, 352–361.

Such contracts, although entered into for pure purposes of speculation, however censurable, are, nevertheless, not prohibited by law (Smith v. Bouvier, 70 Pa. 325; Kirkpatrick v. Bonsall, 72 Pa. 155; Hatch v. Douglas, 48 Conn. 116; Flagg v. Baldwin, 38 N. J. Eq. 219; Kent v. Miltenberger, 13 Mo. App. 503); even though the seller has not the goods nor any other means of getting them than to go into the market and buy them. Clarke v. Foss, 7 Biss. 540.

An "option," "put," "call," "straddle," or other similar stock exchange contract may be made with an intent to actually deliver the stock, and, if so, is unobjectionable and is enforceable. Bigelow v. Benedict, 70 N. Y. 202; Harris v. Tumbridge, 83 N. Y.

Biss. 53; Webster v. Sturges, 7 Bradw. 560; Tenney v. Foote, 4 Bradw. 594; Lyon v. Culbertson, 83 Ill. 33; Gilbert v. Gaugar, 8 Biss. 214; Maxton v. Gheen, 75 Pa. 166; Hess v. Rau, 95 N. Y. 359; Knowlton v. Fitch, 52 N. Y. 288; White v. Smith, 54 N. Y. 522; Cameron v. Durkheim, 55 N. Y. 425; Third Nat. Bank v. Harrison, 10 Fed. Rep. 243.

An executory contract for the sale of goods for future delivery is not infected with the quality of a wager by reason of the fact that at the date of a contract the vendor had not the goods; had not entered into any arrangement to provide them, and had no expectation of purchasing them, unless by a subsequent purchase in the market. Conner v. Robertson, 37 La. Ann, 814.

An agreement to make a "corner" in stock, by buying it up so as to control the market and then purchasing for future deliveries, is illegal. Sampson v. Shaw, 101 Mass. 145; Raymond v. Leavitt, 46 Mich. 447, 13 Cent. L. J. 110; Morris Run Coal Co. v. Barclay Coal Co. 68 Pa. 173; Arnot v. Pittston & E. Coal Co. 68 N. Y. 558.

testator gave his wife "my dwelling house as now stands, together with all the land, furniture," etc., and by the last clause provided as follows: "As to all the rest, residue and remainder of my real estate I give and bequeath the same to my said wife during her life only," the wife takes a fee in the dwelling house and the land connected therewith, and a life estate in the other real estate mentioned in the last clause.

2. Where the only evidence accessible, as to the manner of selling, for delinquent taxes, certain lots which should have been sold separately consists of what may be gathered from the collector's notice and deed, and the notice is consistent with a sale either of separate parcels or of the whole tract at once, if the deed recites but one sum received, refers to the sale in the singular number, treats the taxes on the several lots as one tax, etc., it will be sufficient to show that the

land was sold as one tract, notwithstanding the covenant of the collector that he observed the

directions of the law.

3. A mortgagee who assigns the debt holds

the legal title to the mortgage entirely for the benefit of the assignee, and retains no title which he can assert in any action or proceeding; and payment to the assignee revests all title in the

mortgagor.

4. Where a mortgagee of land, by a single instrument duly executed under seal and acknowledged, makes an absolute assignment of his mortgage debt and of the mortgage, such assignment is sufficient to vest in the assignee the full legal title of the mortgagee to the mortgaged premises, although no words of inheritance are used.

5. After a lapse of forty years, the authority of an attorney to make an entry to foreclose a mortgage may be inferred from his assumption to act for the holder of the mortgage, together with the facts that the mortgage was in his possession, that the lands were afterwards taxed to the person for whom he assumed to act, and that there is a fair inference that such person afterwards claimed to be owner.

(May 9, 1889.)

it; and the mortgage can have no validity apart from the debt, nor otherwise than as an incident to the debt. Union Mut. L. Ins. Co. v. Slee, 10 West. Rep. 159, 123 Ill. 57; Olds v. Cummings, 31 Ill. 188: Delano v. Bennett, 90 Ill. 533; Towner v. McClelland, 110 Ill. 542.

The rule applies to a note as the representative of the debt. Conn. Mut. L. Ins. Co. v. Talbot, 12 West. Rep. 289, 113 Ind. 373.

As a mortgage is a mere incident of the debt which it is intended to secure, it follows that whatever is sufficient to transfer the title to the debt will also transfer the interest of the mortgagee in the land. Green v. Hart, 1 Johns. 580; Jackson v. Bronson, 19 Johns. 325; Wilson v. Troup, 2 Cow. 231; Cooper v. Newland, 17 Abb. Pr. 342; Wyman v. Smead, 31 How. Pr. 1; Langdon v. Buel, 9 Wend. 80; Jackson v. Blodget, 5 Cow. 202; Parmelee v. Dann, 23 Barb. 461; Pattison v. Hull, 9 Cow. 747; Thomas, Mortg. 16, 101, 102.

The debt being the principal obligation, a guaranty of its payment would generally pass with an assignment of the debt as a security collateral thereto, and a formal assignment of the guaranty, if assignable, would not be necessary to vest the same in the assignee of the bond. McLaren v. Watson, 26 Wend. 425; Smith v. Starr, 4 Hun, 123.

A mortgage is a lien, and it is a mere shadow of the debt which it was made to secure. A transfer of the debt carries with it the mortgage, but a trans

petitioners' appeal from a judgment

respondents upon a petition for partition of certain lots of land in Lawrence. Judgment for petitioners.

The lands of which partition is sought are a portion of the estate of Benjamin G. Boardman, Sr., who died in Boston in 1858, leaving a will which was duly probated. His widow, Sarah W. Boardman, and his children, Benjamin G. Boardman, Jr., Moses B. Boardman, Edwin A. Boardman and Charles W. Boardman survived him.

The heirs of these children are the parties to this suit, and the heirs of Benjamin G. Boardman, Jr., are the only ones who resist parti tion.

The plaintiffs claim that the will gave the widow only a life estate in these premises, that the fee therein subject to the life estate descended to the testator's children, and has vested in these parties by inheritance.

The children of Benjamin G. Boardman, Jr., claimed that the will vested the fee in said lands in the widow, and that she has conveyed the same to their father, from whom they have inherited it; and further, that after the death of the testator their father acquired good title to said lands by a sale and deed of the same to him for nonpayment of taxes assessed to the testator as the owner in possession on the first day of May, 1857.

Messrs. J. P. & B. B. Jones, for petitioners:

Only a life estate in these lands was devised to the widow.

Boardman v. Boardman, 4 Allen, 179; Sherratt v. Bentley, 2 Myl. & K. 149.

A sale for taxes after the death of the testator was contrary to the statute; for "If property could be taken out of the hands of the administrator to pay taxes, it might leave two anterior classes of claims unpaid, contrary to the declared purpose of the statute."

fer of the mortgage without the debt is a nullity. Merritt v. Bartholick, 36 N.Y. 44; Kellogg v. Smith, 26 N. Y. 18.

Before foreclosure it is impossible to separate the debt from the pledge, so that the latter shall reside in one person, while the debt shall reside in another. Jackson v. Willard, 4 Johns. 41; Aymar v. Bill, 5 Johns. Ch. 570.

The security cannot be separated from the debt and exist independently of it; and it is a legal maxim that the incident shall pass by the grant of the principal, but not the principal by the grant of the incident. Jackson v. Willard, 4 Johns. 41; Aymar v. Bill, 5 Johns. Ch. 570; Cooper v. Newland, 17 Abb. Pr. 342; Merritt v. Bartholick, (36 N. Y. 44, 47 Barb. 253.

A mortgage is not considered a conveyance of land within the Statute of Frauds, and it may be assigned by parol. Allerton v. Lang, 10 Bosw. 32 Bedell v. Carll, 33 N. Y. 581; Westerlo v. DeWitt, 36 N. Y. 340; Mack v. Mack, 3 Hun, 323, 5 Thomp. & C. 528.

The assignment of a mortgage given without a bond or other extrinsic evidence of debt, and containing no express covenant to pay, transfers to the assignee only mortgagee's remedy against the land. Hone v. Fisher, 2 Barb. Ch. 560; Severance v. Griffth, 2 Lans. 38; Caryl v. Williams, 7 Lans. 416 Coleman v. Van Rensselaer, 44 How. Pr. 368.