executory contract as a clause in a note or contract, "waiving the benefit of all exemption laws," is ineffectual, and will not be enforced. That the sale of the homestead under a deed of trust, or under a decree of foreclosure of a mortgagee thereon, is not a "forced sale," within the meaning of the constitution which exempts a homestead from "forced sale."

We will now examine our own constitutional and statutory provisions as to the subject, and see if, under these principles, the deeds of trust are valid or otherwise. Section 48, article 6, of the constitution of 1872, provides that "any husband or parent residing in this state, or the infant children of deceased parents, may hold a homestead of the value of one thousand dollars, and personal property to the value of two hundred dollars, exempt from forced sale, subject to such regulations as shall be prescribed by law; provided that such homestead exemption shall in no wise affect debts or liabilities existing at the time of the adoption of this constitution; and provided further, that no property shall be exempt from sale for taxes due thereon, or for the payment of purchase-money due upon said property, or for debts contracted for the erection of improvements thereon." In Speidel v. Schlosser, 13 W. Va. 686, a majority of this court held that this section of the constitution does not, ex proprio vigore, confer a right to a homestead. It simply imposed on the legislature the duty to pass an act whereby a homestead of not less than one thousand dollars might be claimed by any husband or parent residing in this state, or the infant children of deceased parents, which should be free from forced sale for debts or liabilities other than those named in the said section 48, as deemed proper by the legislature. The same point was decided in Holt v. Williams, 13 W. Va. 704. Here is clearly no countenance given to the idea that it was the design of the constitution to take away the dominion that the owner himself had over his property, and to deny him the right to sell or encumber the homestead. It gave him the right to hold, as exempt from "forced sale," a homestead of the value of one thousand dollars, under such regulations as might be prescribed by law, but did not deny to him the right to dispose of the homestead as he chose. It was a privilege secured to him, but not putting his property beyond his control. It did not evince a public policy that it was necessary that one thousand dollars of his property should be set apart for the use of his family beyond his own control over it. This court, in Donaldson v. Voltz, 19 W. Va. 156, held

that section 6, chapter 193, Code 1872-73, so far as it excepts from the benefit of the exemption from execution debts due for rent, is in violation of section 48, article 6, of the constitution. If the legislature did its duty, and put in force the fortyeighth section of article 6 of the constitution, they must of course be governed by its provisions, and not provide for exceptions to the right of exemption not specified in the constitution.

The first homestead act under this constitution is chapter 193, acts 1872-73, which provides, by section 9, that "any husband or parent, desiring to obtain the benefit of such homestead, shall make a declaration of such intention, and therein. describe, with convenient certainty, such homestead, so that it may be distinguished from other property. If such husband or parent should die before making and recording a declaration of such intention, the same may be made by the widow, guardian of the infant children, or some person appointed by the circuit court or county court of the county for that purpose; which declaration of such intention shall be acknowledged before some officer authorized to take acknowledgment of deeds for record, which the party shall have duly recorded in the clerk's office of the county court of the county in which such homestead is situated, in a book to be kept for the purpose." All this was done in this case.

Section 11 provides that "any such husband or parent, except a married woman, at the time of contracting the debt, may in writing waive the right to claim the benefit of such homestead as to such debt; provided, in the case of a husband, his wife shall join him in such waiver, and their acknowledgment, and her privy examination, be taken and recorded as provided for in case of deeds of conveyance." It is argued from this right being conferred, that it is the only mode in which they could agree that the homestead should be encumbered. But we have seen, where the statute is silent on the subject, that the courts have generally held that no such waiver could be in advance made by an executory contract. This the legislature knew, and by this statute authorized it to be done. But in this statute is indicated no intention to deprive the owner of the homestead from selling it, or executing a deed of trust cn it. It was under this act (chapter 193) that the homestead in this cause was set apart, and of course this is the law that must govern it. Whether a subsequent legislature could make it subject to debts, or change it in any

way, the right of the owner to have entire control over it by selling or encumbering it does not arise in this case, as it was not attempted.

The next act on the subject is chapter 114, acts of 1877, in which, in section 3, occurs this language: "But nothing herein contained shall affect or impair any right acquired under chapter 193 of the acts of 1872-73." In this act the manner of setting apart the homestead is different. In this act is no repealing clause, nor is there any attempt to restrain the owner in his control over the homestead.

The last act on the subject is chapter 19, acts of 1881: Warth's Code, c. 41. In section 32 of this chapter, it is provided: "But nothing herein contained shall affect or impair any right acquired under chapter 193 of the acts of 1872-73." In this act, in section 33, it is provided that if the value of the homestead was more than the sum of one thousand dollars at the time it was set apart, or by reason of permanent improvements put upon it after it was set apart, a creditor could file his bill to subject the excess to his claim. Section 34 provides that, "in the case of the death of a husband or parent owning such homestead, the benefit thereof shall descend to his minor children, and shall be held and enjoyed by them as such homestead until all of the said infants attain the age of twenty-one years, unless they sooner die." There is nothing in the act except said section 34 restricting the right of the owner over said homestead, even if that does so, and nothing said about his right to waive the exemption or encumber the estate. What the effect of this statute will be on the owner's right to execute a deed of trust on such a homestead does not here arise, as this statute does not control the homestead sought to be exempted in this case. The act of 1872-73 controls this case; and, as we have before seen, it left the owner free to encumber his homestead if he chose to do so. Both the deeds of trust are valid, as the grantors therein had full power to execute them.

But it is insisted that the court erred in refusing to set aside the sale. Affidavits were filed in support of the motion to set aside the sale, because it was claimed the property sold for an inadequate price, and thereupon the purchaser offered to let the report of the sale be corrected, and the property reported as sold to him for two thousand five hundred dollars. This the court did, and the sale was confirmed to Clark at two thousand five hundred dollars. The affidavits for the owner stated

that "affiants believe that in the near future that the said property can be sold for an advance of from five hundred to one thousand dollars over the price it was sold to James Clark." Clark at once offered the five hundred dollars advance, and the court accepted it. The affiants did not say that at the time it was sold it would have brought two thousand five hundred dollars or three thousand dollars, but they believe that it would in the near future bring that price. In Kable v. Mitchell, 9 W. Va. 492, it was held that the court may, in the exercise of a sound dicretion, either affirm or set aside the sale, where, from the facts, evidence, and circumstances before it, it appears clearly that the sale was made at a grossly inadequate price; and the court may solve the question upon affidavits or depositions in connection with the fact that a greatly larger price is offered to the court for the land, and secured, or offered to be secured; or it may set the sale aside upon any evidence or fact or facts before it which clearly shows that the land sold at a greatly inadequate price. See also Hilleary v. Thompson, 11 W. Va. 113; Hartley v. Roffe, 12 Id. 401; Beaty v. Veon, 18 Id. 291.

In Trimble v. Herold, 20 W. Va. 602, it was held that this court will not set aside a sale of land made by a commissioner, on the ground of inadequacy of price, when there had been four sales of the land, three of which had been set aside,-the first, for inadequacy of price; the second, because of a cloud upon the title; and the third, on an upset bid. It is difficult to lay down any rule applicable to all cases; and whether a court will confirm a sale made by a commissioner under its decree must, in a great measure, depend upon the circumstances of each case: Hartley v. Roffe, 12 W. Va. 404.

Under the circumstances of this case, we do not think the court would have been justified in refusing to confirm the report, and setting aside the sale. The motion must be decided on the ground of inadequacy of price alone. We have held the deeds of trust were valid. As we have shown, there had been two public sales of the property, not far apart, and at each sale it brought two thousand dollars. True, the mere opinion of witnesses say it was worth three thousand dollars, and then say they thought in the near future it would bring two thousand five hundred dollars or three thousand dollars. The public sales test its value, when fairly made, better than the mere opinions of witnesses. One person thought it sold at its full value. It would have been error to set aside the sale

under the circumstances, or at least the court did not err in refusing to set it aside. There is nothing in the offer of Clark to show it sold at an inadequate price, as even the two thousand five hundred dollars would not pay his liens against it. The acceptance of Clark's advance bid, under the circumstances, was not, therefore, an error to the prejudice of the appellant. As we have seen, it would not have been error in the court to have refused to set aside the sale without any such offer.

It is also assigned as error that the court, in its decree, required the debtor to give a bond of $200 before the sale could be set aside. The decree provided: "But if the plaintiff, or some one for him, shall, within twenty days from this date, give to the special commissioner a bond, with good security, in the penalty of $200, with condition that, on a resale of said property, it shall sell for $2,750, or the parties to the bond will pay $200, then the said commissioner shall resell the said property on the same terms, and after the same advertisement as before; otherwise, the said sale shall stand confirmed to the purchaser at the price of $2,500." Of course, this was all irregular; no advanced bid had been made by the debtor, and a bond could not be properly executed payable to the commissioner. The manner in which a sale can be set aside on an advance bid is shown in Stewart v. Stewart, 27 W. Va. 177. This provision should not have been inserted, and the decree must be corrected by striking out said provision; and as the error was not to the prejudice of the appellant, when it is thus corrected, both decrees appealed from are affirmed, with costs.

HOMESTEAD-RIGHT TO ALIENATE OR ENCUMBER: Sampson v. Williamson, 6 Tex. 102; 55 Am. Dec. 762, and note 771; Austin v. Underwood, 37 Ill. 438; 87 Am. Dec. 254, and note 257; Dickson v. Chorn, 6 Iowa, 19; 71 Am. Dec. 382, and note 387; Stewart v. Mackey, 16 Tex. 56; 67 Am. Dec. 609, and note 612; note to Magee v. Magee, 99 Id. 574.

HOMESTEAD, MANNER AND MODE OF ENCUMBERING. A mortgage lien on a homestead cannot be created without the written consent of the wife; the husband alone, by his contract, cannot change the character or the pri ority of a mortgage lien on a homestead; neither can he alone restore it after loss, or re-create it, without the consent of the wife, in the exact manner prescribed by law: Jenkins v. Simmons, 37 Kan. 496. When the wife does not join the husband in making the deed, the status of the land as a homestead remains unaltered: Simpson v. Houston, 97 N. C. 344. If a loan of money is secured by a deed to the homestead of the debtor absolute on its face, contemporaneous with which is executed an agreement in writing to reconvey on the repayment of the money loaned, such deed is invalid, either as a conditional transfer or mortgage, when not signed and executed by the wife as