¶1charged the jury as follows:
¶2The plaintiff in this action must recover on his title alone. A deed from one person to another, conveying land, is of no effect and passes nothing until delivery. If the jury believe that the deed from Swain to plaintiff was not delivered before the commencement of this suit, he cannot recover. Residence with a family on the premises, printa fa*162cie makes them a homestead. While the premises were a homestead it was out of Welden’s power to convey them without the concurrent action of his wife. If, however, it had ceased to be'their homestead, then the wife’s signature is immaterial. At the time of the' execution of the deed to plaintiff, the. premises continued a homestead if the wife had not abandoned residence there. If Welden went to Washington Territory with the intention of making only a temporary residence or stay there, atid of eventually returning to this State, as his home, then it was necessary for his wife to execute the deed conveying the premises, with .him, in order to render it valid, to convey them, although she should then have been living in Washington Territory,, and should have continued to reside there subsequently. But if they went there with the--view of making-it their permanent home, then it was not ne7 cessary for the wife to join. If Swain was bound by his written agree - ment made with Welden at the time the latter made the deed to him, then Mitchel, the assignee of Swain, is also bound, and therefore cannot recover. Undoubtedly Swain was bound to convey to Welden, whether Welden was indebted to him or not. The agreement was absolute." If, then, Swain would have been bound by the terms of this agreement, to reconvey the premises to Welden, Mitchel must show affirmatively that he bought and' paid for the land in good faith, and without notice of this agreement, or he cannot recover.
¶3The jury found for the plaintiff