* * [Winkles v. Powell.] as a dwelling place as a home is the characteristic which distinguishes it (homestead) from other real estate. A man can no more have two homes than he can have two domiciles at the same time." In Woodstock Iron Co. v. Richardson, 94 Ala. 629, 10 South. 144, following Boyle v. Shulman, it was said: "It is legally impossible to have two homesteads at the same time." In Barber v. Williams, it was said: "Occupancy as a home, as a dwelling place, is the fact which impresses upon land the character of a homestead, drawing it within the influence of constitutional and statutory provisions, exempting it from liability for the payment of debts, or from subjection to administration, or intercepting the descent to the heir." As is obvious from Const. §§ 205, 206, statute and decision, the wife has no legal power with respect to the selection or establishment of an homestead by the husband in his lands. The fixing of that status-that impression of the homestead characteristic-upon his lands is unrestrictedly and unqualifiedly reposed in the husband. He may abandon an homestead once established. Indeed, he during his life may, if he chooses, so order his habitation as to have no homestead whatever in this state. "Neither the Constitution nor the statute confers on the wife any right or estate in the homestead during his life, but a mere power to prevent its alienation." (Italics supplied.)-Witherington v. Mason, 86 Ala. 345, 349, 5 South. 679, 681, 11 Am. St. Rep. 41. The statute (Code, § 4190) referred to in the majority opinion only has reference to the claim of exemptions against the demands of creditors. It does not assume to confer on the wife or minor children the right to fix the homestead character on lands of the husband or father; for, under our system, only the owner may do that. Indeed, the statute clearly presupposes that [Winkles v. Powell.] the exempt character of the property that may be claimed as exempt by the wife or minor children has been previously impressed upon it by the owner, the husband or father. This appears from the terms of the statute wherein it is provided that the wife or minor children shall, upon the contingencies enumerated with respect to the husband or father, "be entitled to interpose any and all claims of homestead or other exemption which the husband or father could have interposed." (Italics supplied.) If the statute should be read as conferring upon the wife or minor children the right to prevent the husband or father from abandoning an homestead once established, or, to qualify, correlatively, the owner's right to select his homestead, it would offend the Constitution by attempting to unwarrantably impose conditions on the benefit and exercise of a constitutional right.Coolsey's Const. Lim. p. 99; Marks v. Wilson, 115 Ala. 561, 563, 22 South. 134. However, the statute makes no such attempt. It merely confers under the circumstances enumerated upon the wife or minor children the claim power, as against the creditors of the husband or father, the absent or disabled husband or father could have exercised were he present and not disabled. makes no effort to affect the establishment of the homestead, nor to trench upon the rules with respect to its alienation. In the writer's opinion the statute is not in any way a factor in the matter presented for review. It As appears from the statement of facts in the majority opinion, Powell ceased, in 1885, to occupy the Marshall county place as an homestead, charged his wife with infidelity, and took up his abode elsewhere. This departure from its occupancy denuded that area in Marshall county of the characteristic of an homestead. He could not have claimed it as exempt against the [Winkles v. Powell.] claims of a creditor. He bought 130 acres of land in Winston county, Ala., and resided on it until his death, there raising a family by one not his wife. If homestead he had, it was this place in Winston county. He could not have two homesteads at the same time. He could not, under Constitution, statute, and decision, have an homestead in an area which he did not in the accepted legal sense actually occupy. As against a judgment creditor's execution, surely he could not have claimed the Marshall county place as exempt, for he did not occupy it in any sense. However outrageous and unjustifiable may have been Powell's abandonment and treatment of his wife Sarah and their daughter, that fact cannot in my opinion have any bearing or influence upon the inquiry, Was the Marshall county place the homestead of Powell when he undertook to convey it? If the deprivation of his right to select and establish another homestead, or to abandon one already established is a penalty for such wrongs, it is clear that the wife is given a far greater power with respect to the homestead than has been heretofore supposed to exist. In the Constitution she is given during the life of the husband only "a mere power to prevent its (homestead's) alienation."—Witherington r. Mason, supra. But if an homestead, once established, cannot be abandoned as Powell undertook to do here, then, as the writer views it, the power of the wife is greater than the Constitution's grant of the right of selection to the owner; its language being, "Every homestead to be selected by the It seems to me that the result attained on this appeal is the pronouncement of the forfeiture of Powell's constitutional right to select his homestead upon the wholly unrelated ground of his dereliction in duty to his wife Sarah and their daugh owner ** * * [Wilkins v. Hardaway.] ter. However reprehensible may have been his conduct in so doing, and however prone all good men are to frown upon wrong and to discountenance immorality, the writer cannot find therein any justification for the negation in any degree of Powell's unqualified constitutional right to select his homestead, which necessarily imports the right to abandon one already selected. So, holding these views, I cannot concur. Wilkins v. Hardaway. Specific Performance. (Decided May 11, 1911, Re-hearing Denied June 27, 1911. 1. Vendor and Purchaser; Contract; Option; Effect.-An option to purchase land is unilateral and only becomes effective and binding upon the purchaser exercising the right of option. 2. Frauds, Statute of; Contracts for Sale of Land; Description.Where the option to purchase definitely described the lands, except as to its western boundary, and that was to be determined by a line run on a level with the crest of the contemplated dam across a river, which dam was to be erected by the purchaser who could fix the crest of the dam in advance of its actual construction, and the purchaser within the period of the option, fixed the crest of the proposed dam, and located the western boundary line by survey, and ascertained the number of acres included within the boundary so fixed, the exercise of the option and a designation of the land rendered the contract valid under the statute of frauds. APPEAL from Chambers Chancery Court. Bill by B. H. Hardaway against J. C. Wilkins to enforce the specific performance of a contract. Decree for complainant and respondent appeals. Affirmed. STROTHER, HINDS AND FULLER, for appellant. The terms of the contract are not sufficient to meet the requirements of the statute of fraud, and the demurrers [Wilkins v. Hardaway.] to the bill should have been sustained.-Ala. Min. Land Co. v. Jackson, 121 Ala. 172; Alba v. Strong, 94 Ala. 163; Kopp v. Reiter, 37 A. St. Rep. 156; Raub v. Smith, 1 Am. St. Rep. 619; Wardell v. Williams, 4 Am. St. Rep. 814. Under these conditions the contract cannot be enforced.-Westbrook v. Hayes, 137 Ala. 572; Farmer v. Sellers, 137 Ala. 112; 4 Pom. Eq. sec. 1405. The alagata and probata must correspond.-Alston v. Marshall, 112 Ala. 641; Carter v. Thompson, 41 Ala. 375. The contract was not sufficiently definite in description. -Pait v. Gerst, 149 Ala. 287, and authorities there cited. E. M. OLIVER, for appellee. The description was suf ficiently definite, and the option was properly exercised to render the agreement valid.-20 Cyc. 271; 26 A. & E. Enc. of Law, 36; Fleishman v. Wood, 135 Cal. 256. The cases cited by appellant state correct principles of law but are without application to the case at bar. DOWDELL, C. J.-The contract, a specific performance of which is sought by the bill, in its inception was what is known as an "option contract," and hence unilateral, and only became an agreement of contract and sale, binding on the parties as such, upon the exercise of the right of option. In the option contract the land in question was definitely described, except as to its western boundary, and this boundary was to be determined by a line run on a level with the crest of a contemplated dam across the Tallapoosa river, to be erected by the owner of the right of the option, who, by the terms of the contract, had the right to fix and determine the height and crest of the dam in advance of its actual construction. Within the period of the option the crest of the proposed dam was fixed and determined, which furnished |