L Deleg.a_ of0“sa°fe 5nE ee ° trUSt-
It was alleged in the supplemental complaint that the sale under the deed of trust was made by a stranger to it, without the knowledge or consent of the trustee; the answer admitted that the sale was not *144made directly by the trustee, but averred that he authorized the appellant to make a sale whenever he saw proper and to do whatever was necessary in that behalf, and that the sale was in fact made by Aldridge under the authority and as the agent of the trustee. If it were conceded that the trustee could lawfully delegate such power, it would devolve upon the party asserting the sale to show that it had been delegated to the party who made the sale. In this case the defendant alleged that the trustee had conferred his power upon Aldridge, and the burden was upon him to establish it. We are directed to no proof of the fact, and cannot find that it existed. For this reason, if for no other, the sale was invalid, and the mortgage stands as though no attempt to sell had been made.
The court properly found that the land sold under execution embraced the homestead of the mother of the minor plaintiffs, and that it descended to them, under the constitution of 1874, free from liability for her debts during their minority. Their homestead right was superior to the curtesy of their father (Thompson v. King, 54 Ark. 9), and therefore to the claim of purchasers from him.
But it is insisted that the rights of the parties are to be determined by the Constitution of 1868, and that it did not extend the benefit of homestead exemptions to married women. If the first proposition were correct, we should concur in the conclusion contended for; but we deem it incorrect. The acquisition of the land and the marriage of the parents occurred before the Constitution of 1874 was adopted; but these facts vested no right of curtesy. Before any such right exists, there must be the additional fact of the birth of issue, which is not shown to have occurred before the Constitution of 1874 was adopted, which extended the homestead right to married women. This was in effect a change in the law *145prescribing the descent of property, but it disturbed no vested right to curtesy, for the simple reason that no right had vested.
Persons who would be entitled tp inherit under existing laws may suffer detriment by changes in the law that alter the course of devolution ; but there is no such thing as a vested right in a prospective heirship or in the maintenance of the laws of descent, and though their change disappoint reasonable expectations, it comes within no constitutional inhibition. Cooley’s Const. Lim. (6th ed.) p. 438 et seq.
3. Estate of jecteto execul tiou. sale.
While the curtesy of the husband is postponed to the homestead right of the minors, it is an interest in the land which is subject to sale under execution. So that the appellant took by his purchase under execution the interest of the husband, but acquired no right to the use or enjoyment of the homestead during the minority of the children. The fact that it was the homestead of the mother and descended to the minors free from her debts does not exempt the interest of her husband from liability to sale for his debts ; for the exemption operates only as-against her debts.
The minors claim as their lawful homestead that part of the land situate in St. Francis county ; and as does not appear to exceed in amount or value what they are entitled to claim, it should be allowed them as against their father and those claiming under him. The.exemption is not asserted as to the Lee county tract, and the defendant acquired the right to its immediate possession ; but as the children’s right of homestead is superior to the husband’s right of curtesy, and both were acquired subject to a prior lien, the latter should be first sold to satisfy it — that is, the Lee county land must be sold before resorting to the land in St. Francis county.
The plaintiffs set up a contract with the defendant x x whereby he bound himself “to relinquish his *146against the land,” in consideration of a sum paid in cash and a sum to be paid and which is alleged to have been duly tendered; and insist that under this contract the defendant is precluded from claiming the land. He denies that he made the agreement and pleads the statute of frauds. See Mansf. Dig. sec. 3371, subd. 4. Upon the issue of fact we find against him. Upon the oral proof alone he can claim no advantage, and the written receipt of his attorney of record turns the scale against him.
There is more merit in his plea of the statute of frauds. The plaintiffs to overcome it say (1) that the receipt is a sufficient writing to satisfy the statute, and (2) that the contract was not one for the sale of lands or any interest in or concerning them.
We do not consider the receipt a sufficient writing to answer the requirement of the statute ; 'it not only does not disclose the terms of the contract relied upon, but, of itself and without the aid of oral proof, it furnishes no intimation even of the essential provisions of the agreement.
6. Agree■meut to rereíase within statute of frauds.
The other response to the plea — that is, that the contract was for a redemption of land and not for the sale of an interest in or concerning’ it — has presented a more difficult question. But we think a little scrutiny discovers in it a fatal error. The contract was not made or discussed until after the time to redeem had expired and the rights of the execution defendant were extinguished. The purchaser had then acquired a perfect equitable title to the defendant’s interest, and he held a naked legal title, subject to be divested whenever the purchaser should see fit to demand a deed. The defendant had no substantial interest left, and no right to demand’any. Whiting v. Btitler, 29 Mich. 122.
He might acquire an interest, just as other persons might; but his former ownership gave him no advantage in that respect. So long as the right to defeat the pur*147chase exists, agreements to extend the time or modify the conditions for redemption have been held not to come within the statute, for the defendant is in many respects regarded as the owner of the land, and by such agreements purchases nothing, but merely holds what he already has. Such is not the case when the sale has become indefeasible, for as the purchaser is then entitled to the land without regard to the will or conduct of the defendant, if the latter would acquire, he can but purchase it. To speak of an agreement under such circumstances as a contract to redeem involves a contradiction in terms ; for redemption implies a subsisting right as against a defeasible claim. Black’s Law Die. p. 1008. We have examined the cases cited and many others, and have not found that cases like this have ever been held not to come within the statute. On the contrary, we find that such cases are held to be within it. Lucas v. Nichols, 66 Ill. 41; Smalley v. Hickok, 12 Vt. 153-63 ; Op. of Campbell, J. in Whiting v. Butler, 29 Mich. 144; People v. Rathbun, 15 N. Y. 528.*
As the appellant disaffirms the contract because it was not in writing, he is liable to refund the money paid upon it; and as he holds the mortgage for which the land is bound, he should in equity be compelled to credit upon it the amount paid to him upon his repudiated contract. People v. Rathbun, 15 N. Y. 528.
For the error in holding that contract to be binding, and for errors growing out of it that entered into the stating of the account, the judgment must be reversed, and the cause remanded with directions to enter a decree in accordance with this opinion.