Beaed, Chief Justice.
The plaintiffs in error, Edward E. Jones and Lettisha Jones, brought this action against the defendants in error, John D. Losekamp and the Montana and Wyoming Oil Company, to cancel a certain lease executed by plaintiffs to defendant Losekamp and to enjoin defendants from occupying the leased premises, or interfering with defendants’ rights therein. Upon the trial of the cause the court dismissed the petition on the merits and rendered judgment against .plaintiffs for the costs of the action. From that judgment plaintiffs bring error.
On April 14, 1906, and prior thereto, plaintiff Edward E. Jones was the owner of the E Já of the SW %. and the SW yi of the SW %. of Sec. 34, Tp. 56 N., and lot 3 of Sec. 3, Tp. 55 N., all in Range 97 W. in Big Horn county. The [102] plaintiffs are husband and wife, and on said date were, with their children, residing on said premises, the dwelling house and other buildings being situated upon said lot 3. Oh said date the plaintiffs signed and acknowledged an instrument in writing or lease by the terms of which they granted to defendant Losekamp the right to enter upon and prospect said premises for oil, gas, coal and other minerals, and should either be found in paying quantities, to extract the same upon certain stipulated royalties. There was reserved “ten acres from .this lease and from the abov-e described land that portion that is and being around and near the house and other buildings which this lease shall have no effect on.” . Edward E. Jones alone is named in the lease as lessor, but it is signed and acknowledged by both himself and his wife. There is no release or waiver of the right of homestead in the premises, contained in the body of the lease, nor does the certificate of acknowledgment contain a clause substantially as follows, “including the release and waiver of the right of homestead.” The lease was assigned by Losekamp to his co-defendant, The Montana and Wyoming Oil Company, and soon after the execution of the same said company entered upon a part of said leased premises and commenced boring for oil and gas, and has continued such operations with reasonable diligence, with the result that about November, 1906, a well producing oil was discovered, and subsequently and before the commencement of this action other wells were drilled by said company on the premises, two of which proved to be productive, each, having a producing capacity of about one •hundred and fifty barrels of oil per day. .Said company expended in said operations and in prospecting and development work on the premises under the terms of the lease, and relying in good faith thereon, not less than $25,000; all of which was done with the knowledge of plaintiffs, and without objection or protest on their part until the commencement of this action, which was nearly three years after the execution of the lease. In April, 1908, the ten acres reserved from the lease were surveyed and the boun[103] daries thereof established as desired by Edward E. Jones, and satisfactory to defendants, and which was then and ever since has been retained by plaintiffs as their place of residence and has been so occupied by them. The purpose of Jones in marking the boundaries of the ten acres was to segregate the ten acres reserved from the leased land. The value of the land owned by Jones at the time of the execution of the lease was $4800, and of the ten acres reserved and marked off therefrom $800, including the improvements thereon. No selection could have been made of ten acres about the buildings on said land, in accordance with the terms of the lease, which would at that time have exceeded in value the sum of $800. On July 14, 1908, Edward E. Jones received and receipted for $50, as the proceeds from oil produced from said land in lieu of the royalties reserved in the lease, and on May ios 1909, he received and accepted $43 in lieu of royalties to that date. No part of said lot 3, upon which plaintiff’s dwelling house and other buildings are situated, has been occupied, prospected or explored by the defendants.
The foregoing condensed statement of the facts found by the district court, material to a determination of the questions here involved, we think sufficient for that purpose. ■
■ The questions involved are: (1) Is the lease, as executed, valid as to the homestead? (2) What constituted plaintiff’s homestead at the time the lease was executed? (3) Is the lease valid as to the excess after carving out of the premises a homestead of the value of $1500? (4) Are plaintiffs estopped from claiming more than the ten acres as their homestead?
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Beaed, Chief Justice.
The plaintiffs in error, Edward E. Jones and Lettisha Jones, brought this action against the defendants in error, John D. Losekamp and the Montana and Wyoming Oil Company, to cancel a certain lease executed by plaintiffs to defendant Losekamp and to enjoin defendants from occupying the leased premises, or interfering with defendants’ rights therein. Upon the trial of the cause the court dismissed the petition on the merits and rendered judgment against .plaintiffs for the costs of the action. From that judgment plaintiffs bring error.
On April 14, 1906, and prior thereto, plaintiff Edward E. Jones was the owner of the E Já of the SW %. and the SW yi of the SW %. of Sec. 34, Tp. 56 N., and lot 3 of Sec. 3, Tp. 55 N., all in Range 97 W. in Big Horn county. The [102] plaintiffs are husband and wife, and on said date were, with their children, residing on said premises, the dwelling house and other buildings being situated upon said lot 3. Oh said date the plaintiffs signed and acknowledged an instrument in writing or lease by the terms of which they granted to defendant Losekamp the right to enter upon and prospect said premises for oil, gas, coal and other minerals, and should either be found in paying quantities, to extract the same upon certain stipulated royalties. There was reserved “ten acres from .this lease and from the abov-e described land that portion that is and being around and near the house and other buildings which this lease shall have no effect on.” . Edward E. Jones alone is named in the lease as lessor, but it is signed and acknowledged by both himself and his wife. There is no release or waiver of the right of homestead in the premises, contained in the body of the lease, nor does the certificate of acknowledgment contain a clause substantially as follows, “including the release and waiver of the right of homestead.” The lease was assigned by Losekamp to his co-defendant, The Montana and Wyoming Oil Company, and soon after the execution of the same said company entered upon a part of said leased premises and commenced boring for oil and gas, and has continued such operations with reasonable diligence, with the result that about November, 1906, a well producing oil was discovered, and subsequently and before the commencement of this action other wells were drilled by said company on the premises, two of which proved to be productive, each, having a producing capacity of about one •hundred and fifty barrels of oil per day. .Said company expended in said operations and in prospecting and development work on the premises under the terms of the lease, and relying in good faith thereon, not less than $25,000; all of which was done with the knowledge of plaintiffs, and without objection or protest on their part until the commencement of this action, which was nearly three years after the execution of the lease. In April, 1908, the ten acres reserved from the lease were surveyed and the boun[103] daries thereof established as desired by Edward E. Jones, and satisfactory to defendants, and which was then and ever since has been retained by plaintiffs as their place of residence and has been so occupied by them. The purpose of Jones in marking the boundaries of the ten acres was to segregate the ten acres reserved from the leased land. The value of the land owned by Jones at the time of the execution of the lease was $4800, and of the ten acres reserved and marked off therefrom $800, including the improvements thereon. No selection could have been made of ten acres about the buildings on said land, in accordance with the terms of the lease, which would at that time have exceeded in value the sum of $800. On July 14, 1908, Edward E. Jones received and receipted for $50, as the proceeds from oil produced from said land in lieu of the royalties reserved in the lease, and on May ios 1909, he received and accepted $43 in lieu of royalties to that date. No part of said lot 3, upon which plaintiff’s dwelling house and other buildings are situated, has been occupied, prospected or explored by the defendants.
The foregoing condensed statement of the facts found by the district court, material to a determination of the questions here involved, we think sufficient for that purpose. ■
■ The questions involved are: (1) Is the lease, as executed, valid as to the homestead? (2) What constituted plaintiff’s homestead at the time the lease was executed? (3) Is the lease valid as to the excess after carving out of the premises a homestead of the value of $1500? (4) Are plaintiffs estopped from claiming more than the ten acres as their homestead?
The Constitution of this state (Constitution, Article XIX, Sec. 1, Homesteads), is as follows: “A homestead as provided by law shall be exempt from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists.” Long prior to the adoption of the Constitution the [104] laws of the Territory provided for homesteads, declared who should be entitled thereto, and defined the same. (Ch. 21, Laws 1869.) Section 5 of that act as amended and reenacted by Ch. 83,-S. I/. 1886, .reads: “Every owner or occupant of a homestead as established by this act, may voluntarily sell, mortgage or otherwise dispose of, or encumber the same; Provided, That every such sale, mortgage, disposal or encumbrance shall be absolutely void, unless the wife of the owner or occupant of such homestead, if he have any, shall, separate and apart from her said husband, freely and voluntarily sign and acknowledge the instrument of writing, conveying, .mortgaging, disposing of, or encumbering such homestead, and the officer taking her acknowledgment shall fully apprise her of her right and the effect of signing and acknowledging such instrument.” This provision appears as Sec. 2784, R. S. 1887.' The legislature of 1895 passed an act, entitled, “An act concerning conveyances and providing, for the cancellation and discharge of mortgages and deeds of trust.” The first section of that act provides a short form for a warranty deed and declares its effect. Section 2 likewise provides for a quit claim deed, and section 3 for a mortgage. In a separatq paragraph at the end of Sec. 3, is the following, “When the grantor or grantors in any such deed or mortgage for the conveyance of any real estate desires to release or waive his, her or their homestead right therein, they or either of them may release or waive the same by inserting in the form of the deed or mortgage (as the case may be), provided in sections one (1), two (2), and three (3), after the words 'State of Wyoming’ in substance the following words, .‘hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of this state,’ and in such case such instrument shall be acknowledged in the manner provided by section 2784 of the Revised Statutes of Wyoming.” Sec. 4 of the act provides how mortgages and deeds of trust may be discharged. Sec. 5 of the act provides a general form of certificate of acknowledg[105] ment, followed in a separate paragraph with, “No deed or other instrument shall be construed as releasing the right of homestead, unless the same shall contain a clause.expressly releasing or waiving such right. And in such case the certificate of acknowledgment shall contain a clause substantially as follows, 'including the release and waiver of the right of homestead/ or other words which will expressly show that the parties executing the deed or other instrument intended to release such right. And no release 'or waiver of the right of homestead by the husband shall bind* the wife unless she join in such release or waiver.” This - provision and Sec. 2784, R. S. 1887, above quoted, were made one section by the revisers (R. S. 1899, Sec. 2770), with some changes in the wording, but we have quoted the several acts as passed by the legislatures. It may be that prior to the act of 1895 it was not necessary for the instrument to contain a clause releasing or waiving the right of homestead or to refer to that fact in the certificate of acknowledgment’in order to release or waive that right; but, considering all of these acts together, we think it was clearly the intention of the legislature to require since that. time, such statement to be contained in the body of the instrument and in the certificate - of acknowledgment, to make a valid conveyance of the homestead, or to release the homestead interest in the land conveyed. The lease in question in this case being defective in both these respects must be held to be invalid as to the homestead.
2. What, then, is the homestead the alienation or encumbrance' of which is thus restricted? The homestead mentioned in the Constitution is “a homestead as provided by law.” The first Territorial legislative assembly of Wyoming Territory passed an act, entitled, “An.act to' provide for homesteads in the Territory of Wyoming.” (Ch. 21, Taws 1869.) Section x of that act is as follows, “Every householder in the Territory of Wyoming, being the head of a family, shall be entitled to a homestead, not exceeding in value the sum of fifteen hundred dollars, exempt -from execution and attachment arising from any debt, contract'or [106] civil obligation entered into or incurred after the first day of January, A. D. one thousand eight hundred and seventy.” Section 4 of that act is as follows, “The homestead mentioned in this act may consist of a house and lot or lots, in any town or city, or if a farm consisting of any number of acres not exceeding one hundred and sixty acres, so that the value does not exceed fifteen hundred dollars.”' The homestead so provided for, defined and limited still continues to be, so far as we are advised, the only homestead provided for by law. If it is within a town or city it may consist of an unlimited number of lots without regard to the number of acres they may contain; but if a farm it cannot consist of more than one hundred and sixty acres, although the value of the full one hundred and sixty acres may be much less than fifteen hundred dollars; but in neither case can it consist of more land than will amount in value to that sum. The language of the statute above quoted, that every owner or occuupant of a homestead as established by this act may voluntarily sell, etc.; provided, that every such sale, etc., places the restriction as to disposition, only upon the homestead as limited in quantity by the act establishing it. We do not overlook another provision of the statute to the effect that when any creditor shall be of the opinion that any homestead provided for in this act is of greater valúe than $1500, such creditor may proceed against said homestead as in ordinary cases, and if said homestead shall sell for more than $1500 and costs, the excess shall be applied to the payment of the demand of such creditor, the sum of $1500 being paid to the owner of the homestead; nor the further provision of our probate law, that if the homestead is returned in the inventory appraised at more than $1500, the appraisers must determine whether the premises, (not the homestead), can be divided without material injury, and if they find they can be thus divided, they must admeasure and set apart to the parties entitled thereto such portion of the premises, including the dwelling house, as will amount in value to $1560, [107] giving the metes, bounds and full description of the portion set apart as a homestead. In. the case of a sale by a creditor it is clear that the homestead exemption is only $1500, and under the probate law the homestead of the deceased which is to be set apart to those .entitled to it, is such portion of the premises as will amount in value to $1500. It is apparent, therefore, that where these statutes speak of the homestead as being of greater value than $1500, they mean the premises occupied or claimed as such, and not the homestead exempt from forced sale, or to which the restriction upon disposition applies. And, again, our probate law was taken from the California statutes, in which state there is provision made for those entitled to a homestead to select,, plat and record a declaration of homestead, while we have no such provision in our statutes, or any statute declaratory of the effect of such selection if made. In the case at bar, the premises being of greater valúe than $1500,' the plaintiffs’ homestead consisted of such portion of the premises, including the dwelling house, as amounted in value to the sum of $1500 at the time the lease was executed.
3. Is the lease valid as to the excess after carving out of the premises a homestead of the value of $1500? Our view of the law on that question is well expressed in the opinion of the Supreme Court of Minnesota in the case of Weitzner v. Thingstad, 55 Minn. 244, where that court said: “It does not follow, however, where such a contract' includes lands other than the homestead, that it is also void as to such other lands. A contract to convey a homestead by the husband alone, is not illegal in the sense of being prohibited as an offense. The illegality is not that which exists -where the contract is in’ violation of public policy or sound morals, or founded on an illegal consideration, which vitiate the whole instrument.’ The sole object of the statute was to prevent the alienation of the homestead without the wife’s joining in the conveyance or contract. The policy of the law extends no further than merely to defeat what it does not permit. It merely withholds from the hus[108] band the power to alienate the homestead in that way, — in other words, provides that the homestead is not grantable in that way; and it was never held that.the whole grant would be void, merely.because a part of the land was not grantable." (See also, Wallace v. Harris, 32 Mich. 380; Engle v. White, 104 Mich. 15; Cooper v. Cooper, 127 N. W. (Mich.) 266; McGuire v. Van Pelt, 55 Ala. 344; Weston v. Dolye, 130 Ill. 415; Gillespie v. Fulton Oil & Gas Co., 236 Ill. 188; Wilson v. Wilson, 120 N. W. (Neb.) 147; Atkinson v. Atkinson, 37 N. H. 434; Bank of Louisiana v. Lyons, 52 Miss. 181.
This construction of the statute is just and equitable. It secures to the parties entitled thereto the homestead provided by law and permits the owner of the property to dispose of the excess. It follows, therefore, that the lease in question in this case is valid as to that portion 'of the premises not included in the homestead.
4. The defendants contend that the plaintiffs are es-topped from claiming the lease to be invalid, or to claim more than the ten acres as their homestead, by permitting defendants to expend a large sum of money in prospecting and developing the lands, and thereby greatly increasing its value, without objection or protest. On the other hand the plaintiffs contend that the doctrine of estoppel in pais does not apply to a married woman. While we are inclined to the opinion that, in this state where the disability of a married woman, as it existed under the common law, to contract and deal with her property has been almost entirely removed, she may be estopped in the same manner and to the same extent as a feme sole, we do not think that question arises in this case. The defendants had not entered upon or conducted any of their operations upon that part of the premises which could be properly regarded as the homestead, and until they did so there was no call for objection or protest on the part of the plaintiffs. The dwelling house and appurtenances were all situated on lot 3, which, according to the findings as to value, was sufficient to constitute [109] plaintiffs’ homestead, and no part of which had been occupied' by defendants. The court found the value of the entire tract consisting of 158 acres to be $4800 at the date of the lease, the witnesses testifying to the value per acre. The value of the ten acres at that time, as found by the court, was $800,• leaving the value of the, 148 acres covered by the lease $4000, or -about $27 per acre. According to these findings, which are sufficiently supported by the evidence, fractional lot 3, containing 38 acres, including the ten acres, was worth $1556, substantially the quantity of land to which plaintiffs were entitled as a homestead. The facts being before the court, we think the matter should be settled in this proceeding. The judgment of the district coúrt should be- modified as above indicated; and the cause will be remanded to the district court with direction to enter a decree canceling the lease as to said lot 3, and. declaring it valid as to the remainder of the premises; and as so modified the judgment of the district court will be affirmed.
Modified and Affirmed.
Scott and Pottee, JJ., concur.