Graves, J.
The bill in this cause was filed by Phillips to compel the specific performance of a contract executed to him by Stauch for the conveyance of a farm of a little over ninety-two acres of land.
The questions discussed before us arise out of the claim of the defendant that the property agreed to be conveyed embraced his homestead, and that his wife has refused to join in any conveyance or release, by which an alienation of the homestead would be effected, or her right to dower would be cut off, and the claim on the part of the complainant, which the defendant resists, that the contract ought to be enforced with a deduction or compensation for any estate or right the defendant is unable to convey.
There is another difficulty in the case growing out of the uncertainty of the contract, as to the terms of the security to be given by complainant to secure the payment of a portion of the purchase money, but as this point was not raised by counsel, and its solution is not found essential to the decision of the case, we abstain from any discussion of it.
[379]*379The counsel for complainant, in the able argument addressed to us, contended:
First, that the answer failed to present a case which would authorize a defense based on the law exempting homesteads.
Second, that supposing the pleading to be sufficient to allow a defense of that kind, that still the evidence showed that whatever homestead right the defendant may have possessed in the farm, at the time of the contract, was waived before the bill was filed. And—
Third, that if a part of the premises constituted a homestead, and the remainder was subject to the wife’s contingent dower right, the defendant should be decreed to convey whatever right and estate in the premises he can legally convey by deed executed by himself alone, and to compensate complainant by deduction from the purchase price or otherwise for the deficiency.
The foregoing propositions may be conveniently considered in the order in which they are stated.
First. The statements in the bill and the allegations and admissions of the answer are believed to be sufficiently explicit on the hearing here to admit the defense under the homestead law. When a case has been heard in the Circuit Court on pleadings and proofs, and is brought here to be heard again, as in the Court below, and the pleadings are in substance sufficient, we are not disposed to regard objections of a formal nature only. — Dye v. Mann, 10 Mich., 291.
The bill before us states that defendant at the time of the contract was the owner of the premises in fee, that they consisted of 92 36-100 acres of land, with a dwelling house, barn, and the usual out-buildings, that the defendant was in possession, that when complainant went to take possession, the defendant and his wife resided in the dwelling house, that he agreed to give $50 per acre for the land, and that it is now worth $70 per acre.
[380]*380The answer admits the defendants’ ownership, avers that the property is not worth to exceed $50 per acre, that at the time of the contract the defendant was a married man, and with his wife who is still living, occupied the farm as a homestead, and that his wife refused and still refuses to join in any release or conveyance of the property to complainant.
We think there is enough in these pleadings to allow us to consider the question of exemption, and we find evidence in the record that the parties believed that this matter was in issue, since a portion of the proof was directed to the point. The whole evidence was embodied in a stipulation in which the facts were admitted, and this passage is there found.: “It is also admitted that at the time of making said contract for the sale of said premises said defendant had a wife and with his wife and family resided upon said premises as his homestead.”
It being settled that the pleadings authorized the introduction of evidence to show that defendant had a homestead in the premises at the time of the bargain, the bill and proof make it certain that the defendant did own and occupy a homestead in the premises at the time named.
Second. The complainant maintains that the defendant’s surrender of possession in March, under the agreement to sell, the subsequent residence in Macomb County, and the tender of a deed on the 16th of April, and demand of payment of $1,500 of the purchase money, and the mortgage to secure the balance, constituted a waiver of all right under the homestead exemption law, and that the bond for a deed became operative in equity.
If instead of the contract or bond, the defendant had given his individual deed of his homestead, or of the farm including the homestead, it would have been wholly invalid as to such of the premises as the homestead embraced.— Dye v. Mann, 10 Mich., 291, Ring v Burt, 17 Mich., 465— It could not have had a contingent operation in respect [381]*381to the homestead. It would not have been voidable merely as to that, but would have been wholly invalid.
Therefore no subsequent relinquishment of possession or residence elsewhere could have given it vitality. While the conditions essential to the existence of the homestead right continued, no alienation by the defendant alone could be valid, and no alienation of defendant alone while such conditions remained, could be vitalized or rendered valid by a subsequent change of residence or home. A new grant or other authorized disposition after the removal of the impediment would be indispensable.
This position does not appear to be controverted. But it is suggested that though the defendant by himself could not convey the homestead while it remained intact by occupancy, that nevertheless he could make his personal contract for a conveyance, and that such contract would support a bill for specific performance, if filed after possession given by the vendor, and a residence by him fixed elsewhere.
Whatever may be thought of this distinction when applied to some cases, it is deemed to be untenable when referred to this case. The contract made by defendant was intended to have a direct and present operation against the farm, including the homestead, and to serve as a binding agreement for the conveyance of the legal title. And in fact as claimed by complainant, it sufficed to place him in possession.
If valid it must have conveyed presently an equitable title, and the complainant now contends that it gave him the right to insist upon a conveyance of the legal title, subject only to the dower right of defendant’s wife. The contract, therefore, was in form adapted to operate as an equitable conveyance of the homestead, and to serve as a ground for specific performance.
The law as explicitly disallows the transfer of the equitable title by the husband without the concurrence of [382]*382the wife, as it does the legal title, (Ring v. Burt, 17 Mich., 465), and the agreement in question was utterly invalid as an alienation in equity of the homestead. The subject matter of the contract was not expectant, but was actually in being and present. The difficulty was that it was not alienable by the means employed. The invalidity of the contract in the sense and to the extent
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Graves, J.
The bill in this cause was filed by Phillips to compel the specific performance of a contract executed to him by Stauch for the conveyance of a farm of a little over ninety-two acres of land.
The questions discussed before us arise out of the claim of the defendant that the property agreed to be conveyed embraced his homestead, and that his wife has refused to join in any conveyance or release, by which an alienation of the homestead would be effected, or her right to dower would be cut off, and the claim on the part of the complainant, which the defendant resists, that the contract ought to be enforced with a deduction or compensation for any estate or right the defendant is unable to convey.
There is another difficulty in the case growing out of the uncertainty of the contract, as to the terms of the security to be given by complainant to secure the payment of a portion of the purchase money, but as this point was not raised by counsel, and its solution is not found essential to the decision of the case, we abstain from any discussion of it.
[379]*379The counsel for complainant, in the able argument addressed to us, contended:
First, that the answer failed to present a case which would authorize a defense based on the law exempting homesteads.
Second, that supposing the pleading to be sufficient to allow a defense of that kind, that still the evidence showed that whatever homestead right the defendant may have possessed in the farm, at the time of the contract, was waived before the bill was filed. And—
Third, that if a part of the premises constituted a homestead, and the remainder was subject to the wife’s contingent dower right, the defendant should be decreed to convey whatever right and estate in the premises he can legally convey by deed executed by himself alone, and to compensate complainant by deduction from the purchase price or otherwise for the deficiency.
The foregoing propositions may be conveniently considered in the order in which they are stated.
First. The statements in the bill and the allegations and admissions of the answer are believed to be sufficiently explicit on the hearing here to admit the defense under the homestead law. When a case has been heard in the Circuit Court on pleadings and proofs, and is brought here to be heard again, as in the Court below, and the pleadings are in substance sufficient, we are not disposed to regard objections of a formal nature only. — Dye v. Mann, 10 Mich., 291.
The bill before us states that defendant at the time of the contract was the owner of the premises in fee, that they consisted of 92 36-100 acres of land, with a dwelling house, barn, and the usual out-buildings, that the defendant was in possession, that when complainant went to take possession, the defendant and his wife resided in the dwelling house, that he agreed to give $50 per acre for the land, and that it is now worth $70 per acre.
[380]*380The answer admits the defendants’ ownership, avers that the property is not worth to exceed $50 per acre, that at the time of the contract the defendant was a married man, and with his wife who is still living, occupied the farm as a homestead, and that his wife refused and still refuses to join in any release or conveyance of the property to complainant.
We think there is enough in these pleadings to allow us to consider the question of exemption, and we find evidence in the record that the parties believed that this matter was in issue, since a portion of the proof was directed to the point. The whole evidence was embodied in a stipulation in which the facts were admitted, and this passage is there found.: “It is also admitted that at the time of making said contract for the sale of said premises said defendant had a wife and with his wife and family resided upon said premises as his homestead.”
It being settled that the pleadings authorized the introduction of evidence to show that defendant had a homestead in the premises at the time of the bargain, the bill and proof make it certain that the defendant did own and occupy a homestead in the premises at the time named.
Second. The complainant maintains that the defendant’s surrender of possession in March, under the agreement to sell, the subsequent residence in Macomb County, and the tender of a deed on the 16th of April, and demand of payment of $1,500 of the purchase money, and the mortgage to secure the balance, constituted a waiver of all right under the homestead exemption law, and that the bond for a deed became operative in equity.
If instead of the contract or bond, the defendant had given his individual deed of his homestead, or of the farm including the homestead, it would have been wholly invalid as to such of the premises as the homestead embraced.— Dye v. Mann, 10 Mich., 291, Ring v Burt, 17 Mich., 465— It could not have had a contingent operation in respect [381]*381to the homestead. It would not have been voidable merely as to that, but would have been wholly invalid.
Therefore no subsequent relinquishment of possession or residence elsewhere could have given it vitality. While the conditions essential to the existence of the homestead right continued, no alienation by the defendant alone could be valid, and no alienation of defendant alone while such conditions remained, could be vitalized or rendered valid by a subsequent change of residence or home. A new grant or other authorized disposition after the removal of the impediment would be indispensable.
This position does not appear to be controverted. But it is suggested that though the defendant by himself could not convey the homestead while it remained intact by occupancy, that nevertheless he could make his personal contract for a conveyance, and that such contract would support a bill for specific performance, if filed after possession given by the vendor, and a residence by him fixed elsewhere.
Whatever may be thought of this distinction when applied to some cases, it is deemed to be untenable when referred to this case. The contract made by defendant was intended to have a direct and present operation against the farm, including the homestead, and to serve as a binding agreement for the conveyance of the legal title. And in fact as claimed by complainant, it sufficed to place him in possession.
If valid it must have conveyed presently an equitable title, and the complainant now contends that it gave him the right to insist upon a conveyance of the legal title, subject only to the dower right of defendant’s wife. The contract, therefore, was in form adapted to operate as an equitable conveyance of the homestead, and to serve as a ground for specific performance.
The law as explicitly disallows the transfer of the equitable title by the husband without the concurrence of [382]*382the wife, as it does the legal title, (Ring v. Burt, 17 Mich., 465), and the agreement in question was utterly invalid as an alienation in equity of the homestead. The subject matter of the contract was not expectant, but was actually in being and present. The difficulty was that it was not alienable by the means employed. The invalidity of the contract in the sense and to the extent mentioned, has not only prevented it from operating as an equitable conveyance, or from attaching to the homestead; but has disabled it from operating as such a conveyance, and from attaching against property exempt when it was made. And no ground is discovered upon which a court of equity could mould such a contract into a binding 'obligation of the defendant to convey the very property to which the agreement has never attached. There 4is no occasion for dwelling upon the conduct of the parties since their differences commenced. They have been at variance since the default of complainant on the first of April, 1869, and each has acted upon his own theory of the business, and the propositions of neither have been acceded to by the other. The complainant has required more than ' the defendant would concede, and the defendant has offered less than the complainant would accept. These matters have no essential influence upon the contested points in the case.
The result upon this branch of the case is that the action is based upon the contract, and that the Court is not authorized to found upon that, a decree for a conveyance of the homestead.
The remaining inquiry is whether the record discloses a case in which the Court ought to require the defendant to convey what he can, by deed executed by himself alone, and compel him to make compensation for deficiency.
There are certain principles which govern the Court in administering this equity.
In proceeding to give a purchaser something different from that which the vendor contracted to' sell, the Court [383]*383is enforcing a contract which the parties never in fact made, and the jurisdiction is therefore to be exercised under many restrictions.
It has accordingly been settled that the contract will not be enforced with compensation when a material part of the subject matter is wanting. — Fry on Spec. Perf. §§ SOS, 797. — Nor when a reasonable estimate of the compensation is unattainable for the want of sufficient data. — Id. §§ 818, 814; nor when the difference in value of the interest contracted for, and the interest actually to be conveyed is incapable of computation, id. § SOS; nor when the alienation of the partial interest of the vendor might prejudice the rights of third persons interested in the estate, id. 8O4.
The farm in question in this case contains a little over 92 acres, and is valued by complainant at a trifle over $6, 340, and by the defendant at about $4,600. To give relief on the principle of compensation as contended for, would exempt from the conveyance the homestead right of the value of $1,500, and embracing the dwelling house, and and would leave the balance of the premises subject to the contingent right of dower of defendant’s wife.
This would necessarily exclude from the conveyance a very material part of the subject matter of the contract, and almost certainly result in great pecuniary injury to all parties interested. The adjustment of the compensation would be quite difficult in a case like this, and especially that part of it founded on the contingent dower right. That is quite different from the case where the right is consummate. The interest of defendant’s wife would also be exposed to some detriment by partial alienation. These considerations taken together, inspire the opinion that the case is not one in which the Court ought to compel a conveyance with compensation. The case appears to be a hard one for complainant, and we should be glad to relieve him if circumstances permitted.
The decree below must be reversed, and one entered in [384]*384this Court dismissing the bill, but without prejudice to any proceeding at law the complainant may be advised to institute upon the bond for a deed mentioned in the pleadings.
The defendant will recover no costs.
The other Justices concurred.