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http://www.archive.org/cletails/cu31924019999527
A TREATISE
ON
HOMESTEAD MD EXEMPTION
BY
RUFUS WAPLES, LL.D.,
Author of a Treatise on Attachuent and GarnishmbnTi
▲ Treatise on Proceedings In Keu, a MANUAii '
ON Pabliauentabx FRAcnoE, STa
"The family, oldest of institutions, perpetually reproduces the ethical history
of man, and continually reconstructs the constitution of society. "All students
of sociology should grasp this radical truth.'" Prof. Henry B. Adams, of Jolmt
Mophins University. ' >
"family homes are the cells that compose the body politic."
CHICAGO
T. H. FLOOD AND COMPANY
1893
Copyright, 1893,'
BY
EUFUS WAPLES,
BTATE JOURNAL PRINTING COMPANY,
Frintebs and Stekeotxfbbs,
madison, wis.
PREFACE.
When planning the treatment of my threefold subject, 1
did not design so bulky a volume as this. In following the
plan of the principal topic, as shown in the accompanying dia-
gram, I have treated settled questions with brevity by stating
the points and citing the authorities ; but in dealing with the
numerous new questions arising in the last fifteen years, es-
pecially those out of the ordinary, I have found it necessary
to present positions mpre elaborately, to give the statutes
with the constructive decisions, and sometimes to follow them
with a running commentary. The purpose has been to reduce
this very statutory subject to a degree of system, so far as the
several state statutes approach uniformity. To -effect this,
and yet to present the law as it is (and not as one may con-
ceive that it should be), has been a task so difficult that it
could not be accomplished without room to work in. If I
have partially accomplished it so as to meet the approval of
those of the profession who are best informed as to the com-
plexity of the subject, I shall not regret the years spent upon
it, or further apologize for the length of this branch of the
subject.
Chattel exemption, as well as homestead, has given the
books a great accumulation of cases. Both topics are well
treated in the extensive work of Judge Thompson, following
the pioneer treatise of Mr. Smyth; and as they are kindred
subjects, I have given,the exemption of personalty such space
as it seemed to require. The chapter on the homestead laws
of the United States completes the treatise. ,
IV PEEFACE.
By having the statutes cited in connection with decisions
turning upon them the profession will readily see the bearing
of judicial constructions, and will understand that many of the
seeming conflicts are attributable to legislation rather than to
the courts. There are differences, however, which are not
chargeable to the statutes, "for which the author is not respon-
sible. "What further I have to say, of an explanatory charac-
ter, is relegated to the Introduction.
Homestead is a growing subject, of great importance to the
whole country, and especially to the states and territories
which have statutes upon it — and nearly all have them. Kot
only debtors and creditors, wives and widows and children,
but whole communities are vitally interested in the conserva-
tion of family homes. The vast litigation on the general sub-
ject forces itself upon the attention of the Bench and Bar of
the whole country, to whom this treatise is now respectfully
dedicated and submitted.
E. W.
Ann Aebob, Mich.
ANALYTICAL DIAGRAM/
'COITDITIONS.
of husband.
ol wife under some circumstances.
FamilyHeadship-\ of widow with children.
of other householder supporting de-
pendents.
by leasehold.
Oumerahip ■{ by freehold^ {f^'f/J^Pj*^^ for years.
1 for life.
Dedication,,
.Occupancy .
LlUITATIONB
Quantitative..
r Rural.
i Urban .
HOMESTEAD.
Rbbtsaihts.
Liabilities.
by equitable title.
by declaration,
by recording deed.
by inscribing "Homestead" on the
margin of the deed.
actual.
intentional, with preparations, in some
states.
.with temporary absence.
varies in acres from 40
to 200.
' varies from one lot to
one acre.
(five acres in small
^ towns of one state.)
Monetary ■{ varies from J500 to S5,00D.
by married owner
alone.
by husband and wife
without her acknowl-
edgment.
during the widow's es-
tate and the child-
. ren's minority.
f by express inhibition \ ^7 ""^f^'^""""-
f by provisions continu-
mg homestead to the
marital survivor.
hy provisions continu-
ing homestead to the
minor children.
by any absolute dispo-
sition of the home-
, stead by law.
( with vendor's lien,
■j without vendor's lien,
t borrowed, in some states. -
fwith recorded lien, in
J *» mechanics. . ^TtSfuf ?^c^ded lien,
"J to laborers. I, in some states.
' for materials.
o/Alienation....\ll^^^^'>' ^^^
' mortgage .
of Testamentary
Disposition...
for Purchase
Money
by implication.'
for Improve-
ments
for Debts Ante-
cedent
'to the homestead law.
to some designated date,
to purchase.
to recording declaration,
to occupancy.
for Liens
.f conventional ..
by operation of
by husband and wife
jointly.
by owner alone for cer-
tain classes of debts.
by unmarried benefi-
ciary.
aw.
[dormant, but ultimately enforceable.
Exemptions
for Fiduciary I of public ofHcer.
Obligation ■< of guardian or other trustee,
( of attorney at law.
- ™ . j by the owner.
jor ±ori 1 bv his wife, in some states.
the state,
the county or city,
for school purposes.
by attachment,
by execution,
by other process.
Jor Taxes, .
'from forced sale.
of
|foi
fromforeclosure\'\^-^^^l^^lf 0^^^ Property
* Subject to exceptions in several states.
TABLE OF CONTENTS.
Beferenoes are to pages.
Table op Cases xvii
Intboduction xcvi'
CHAPTER L
LEADING PRINCIPLES.
§ 1. The Qualified Family Residence 1
2. Policy — To Conserve Homes 3
3. The Property Exempted 5
(1) Property Habitable 5
(3) Property Oociipied by a Family 6
,4. Exemption from Ordinary Debts 8
5. Notice to Creditors Essential 10
6. States, as Creditors 13
7. Liability for Liens ......... 14
8. Prevention of Property-Indebtedness 16
9. The Governing Law . ' 19
10. Summary of Leading Principles 31
CHAPTER II.
CONSTRUCTION.
§ 1. Plain Statutes 24
3. Words — How Construed 8ii
3. Uniform Operation 27
4. Liberal Intjerpi-etation .28
5. Policy — How Far to be Considered 33
6. Charitable Grounds 36
7. Common Right 38
8. Ruling to Prevent Fraud 43
J 9. Restraint Upon Alienation 43
10. Law of Wife's Property . ^ 44
11. Statutes Not Extended by Construction 47
13. Rival "Equities" 50
13. Conflicting Interpretations 51
14. Constitutional Directions 53
yiU TABLE OF CONTENTS.
' CHAPTER IIL
FAMILY HEADSHIP.
§ 1. The Constitution of the Family 57
3. The Hearlship of the Husband 60
3. United Headship of Husband and "Wife 63
4 Desertion by the Wife 66
5. Divorce ; Effect on Homestead 67
6. Divorce ; Forfeiture by Divorced Party 73
7. Acquisition by Widower or Widow 75
8. Unmarried Beneficiary 79
9. Lack or Loss of Family . . . . . . . .83
10. Claiming After Loss of Family 88
11. Comment 98
CHAPTER. IV.
OWNERSHIP.
§ 1. Title Not Conferred by Law 103
3. Property Qualification of the Claimant 103
3. Character of the Title . - . . . • . . .108
4. Leasehold and Various Titles to Parcels 113
5. Life Estate 114
6. Equitable Title 117
7. Titles of Husband and Wife 130
8. Mutual Interest of Husband and Wife 135
9. Title Void or Fraudulent 136
10. Joint Tenancy and Tenancy in Common 131
11. Undivided Interest — Co-tenancy 134
13. Exemption of Undivided Interest 133
13. Co-tenancy of Husband and Wife 140
14. Partnership Property 143
CHAPTER V.
DEDICATION.
§ 1. Selection of a Homestead 146
3. Selection of Two or More Tracts 149
3. Platting 154
4. Form of Land Selected 158
5. Declaration: Methods 160
6. Declaration: Requisites 163
7: Notification 167
8. Recording 169
CHAPTER VL
OCCUPANCY.
g 1. The Condition Stated 175
3. Declaration and Occupancy as Conditions .... 176
3. Declaration Directory — Occupancy Essential .... 178
TABLE OF CONTENTS.
IX
§4.
5.
6.
7.
8.
9.
10.
ll.
13.
§1.
3.
3.
4.
5.
6.
7.
a
§1.
3.
3.
4.
5.
6.
7.
8.
9.
10.
Occupant Claiming Without Declaration 179
Principal Use 183
Subordinate Uses .......... 185
Intention to Occupy 189
Intent Subsequently Realized 193
Retroaction 199
Retroaction : Building Material 303
Inherited Homesteads ........ 204
Legal Possession as Occupancy 205
CHAPTER VII.
LIMITATIONS OF THE VALUE AND QUANTITY OF EEALTT.
Value and Quantity 308
Monetary Limit Only 210
Increase of Value After Acquisition 216
Quantitative Limit Only ........ 331
Indivisible and Excessive Property 323
Extension of Corporate Bounds 224
What Law Governs Limits 227
Exemption of Real and Personal Property .... 339
Table of Monetary Limitations 331
CHAPTER VIIL
EXEMPT BUSINESS PLACES.
Appurtenances 333
Business Houses Not Appurtenant 335
Dwelling and Business Houses as One Homestead Within the
Maximum 338
Means of Family Support ... ... 340
Dual Homesteads — " Business Homesteads " . . . . 343
Dual and " Business Homesteads " 246
" Business Homesteads " — Inci-ease of Exemption . . . 349
Alternate Homesteads 350
Business Uses as Indicia 351
Several Business Callings 354
CHAPTER IX
QUASI-ESTATE OF HOMESTEAD.
g 1. Qualification of the Legal Title
3. Defeasible but Indeterminate " Estate "
3. Similar to Dower ....
4. Right of Occupancy Called an " Estate "
5. The Right and the Estate:Compared
6. The Right Not Strictly an Estate
7. New Features but Not New Title
8. Trust Estate ....
9. Qualified Title ....
10. Exemption and " Estate of Homestead "
356
358
360
362
363
365
368
370
370
373
X TABLE OF CONTENTS.
CHAPTER X
LIABILITIEa
§ 1. Debts Prior to the Law 276
2. Debts Prior to Purchase and Occupancy 283
3. Debts Prior to Filing the Deed 287
4. Debts Prior to Designation of Homestead .... 292
5. Debts by Written Contract ' 294
6. Dormant Liens 296
7. Attachment Liens 302
(1) Claiming Homestead After Attachment .... 302
(2) Attaching After Homestead Has Been Established . . 307
(3) Effect of the Perfected Attachment Lien Upon the Home-
stead 318
8. Tort 333
9. Fiduciary Debts .... j .... 326
10. Taxes . . . . ' 327
CHAPTER XL
XJABILITY FOR PXTROHASE-MONEY AND IMPROVEMENTS.
§ 1. Exemption Inapphcable 331
2. When no Lien is Recognized ....... 333
3. Money Borrowed to Pay the Price — Subrogation . , . 337
4. Borrowed and Purchase-money Distinguished . . . . 341
5. Notes for Price in Third Hands 346
6. Marshaling Accounts, as to Homestead 350
7. Mortgage for the Price 352
8. Payment Esseatial to Ownership ■ 354
9. Price Returned when Title Fails 357
10. Insurance and Voidable Title 359
11. Improvements 361
CHAPTER XII.
RESTRAINT OF ALIENATION.
§ 1. Restraint and Exemption Relative 370
2. Sale by Husband and Wife 873
3. Trust Deed by Husband and Wife 375
4. Mortgage by Husband and Wife 377
5. No Alienation by Husband Alone 383
6. Sales Subsequently Validated 387
7. Wife's Right Relative to Sales . . ' 389
8. Estoppel by Sole Deed 393
9. Conveyance by Husband to Wife 395
10. Incumbrance Inhibited . . .' 398
11. Interests of Non-owning Beneficiaries 401
12. Conveyance to Pay Privileged Debts 403
TABLE OF CONTENTS. Zl
CHAPTER 2III.
RESTRAINT OF ALIENATION — CONTINUED.
§ 1. Restraint — As to Excess 405
3. Excess First Exhausted 410
3. Sale of Interests in Homestead Property 414
4. Assignment of Homestead 417
5. Conveyance Strictly Construed 419
6. Wife's Acknowledgment — How Construed .... 433
7. Wife's Joinder — In General 439
8. Leasing, as Alienation ........ 433
9. Exchange of Homesteads . 435
10. Proceeds for Investment in a New Home .... 488
11. Proceeds Held for General Purposes 443
CHAPTER XIV.
RESTRAINT OF TESTAMENTARY DISPOSITION.
§ 1. How Restrained . ' 446
3. Devise is Not Alienation 447
3. Authorization to Sell 450
4. Deed, Will and Claim 453
5. Testamentary Disposition Inhibited 456
6. Wills Consistent with Homestead Rights .... 461
7. Willing the Homestead and More — Election When Necessary . 463
8. Spirit of Exemption Laws — Election 465
CHAPTER XV.
SALE, WITH HOMESTEAD USE RESERVED.
§ 1. By Owner — Generally 469
3. By the Owning Husband's Sole Deed 473
3. Reservation of Use Necessary . . .... 475
4 Restraint and Exemption — When Correlative . . . 476
5. Sale by Solvent Owner Before Selection 478
6. No Sale by Insolvent Debtor 481
7. Sale by Husband and Wife 484
8. Execution Sale 486
9. Sale of the Reversion 488
10. Sale by Administrator • 490
11. No Sale, During Homestead Occupancy, by Administrator . 493
13. The Fee of Homestead Not an Asset ..... 494
13. Comment ' 496
CHAPTER XVL
FRAUD.
g 1. Fraudulent Acquisition 499
3. Buying with Another's Money 503
3. Exchanging Goods for a Homestead when They Have Not Been
Paid for 504
Xll TABLE OF CONTENTS.
§ 4. Fraudulent Selection from Liable Property . . . .508
5. The "Policy" to "Secure" Homesteads . .... 513
6. Fraudulent Conveyance — Creditors Disinterested . • .613
7. Remote Interests in Fraudulent Conveyances .... 515
8. Conveyances to Creditors' Prejudice 517
9. Liability to Creditors 531
10. Selling Liable Property 533
11. Fraudulent Liens 536
13. Fraudulent Transfer to Wife 539
13. Effect of Setting Aside a Fraudulent Transfer .... 531
14. Effect of Forfeiture, as to Creditors 534
15. Comment 536
CHAPTER XVIL
WAIVER.
§ 1. Inalienable Eights 539
8. Pre-agreement to Waive 540
3. Inchoate Rights . . . ^ 543
4. Rights of Dower and Homestead 544
5. No Waiver of Othere' Rights 545
6. Optional Exemption 547
7. Special Waiver 548
8. Absolute Waiver by Mortgage 549
9. Lien Not Waived by Taking Security 553
10. Usury Affecting Wa iver 553
11. Mode of Release 554
13. Pleading Waiver 556
CHAPTER XVIIL
ABANDONMENT.
§ 1. Permanent Removal 558
3. Temporary Removal 568
3. Removal to a New Home 567
4. Leasing the Premises 571
5. Cessation of Ownership 575
6. Family Headship Relative to Abandonment .... 580
7. Effect on the Wife's Rights 583
8. Effect on the Widow's Rights 584
CHAPTER XIX
EIGHTS OP THE SURVIVING SPOUSK
§ 1. Continued Right of Occupancy 589
3. Distributive Share . 593
3. Community Property 594
4 Title Vested in Survivor 598
5. Separate Property 600
6. Widower's Rights in General 605
7. Widow's Rights as to Conveyance 607
8. Relative to Insurance on Homesteads . . . . . 608
TABLE OF C0NTENT8. Xlll
CHAPTER XX
THE widow's homestead.
§ 1. Characteristics 611
3. Ante-nuptial Contract 612
3. Dower and Homestead 614
4. Dower or Homestead 618
5. The Widow's Occupancy . . . , . . . .621
6. Relative to Heirs .625
7. Relative to Alienation 630
8. Money or Realty in Lieu of Homestead . . . . . 634
9. In General" .686
CHAPTER XXL
THE children's HOMESTEAD.
§ 1. The Nature of the Benefit . 643
2. Selection After the Father's Death 645
3. Minors as Litigants ......... 648
4. ■ Rents and Profits 650
5. Relative to Indebtedness 65t
6. Necessitous Children . 654
7. Partition 655
CHAPTER XXIL
ALLOTMENT TO THE DEBTOR.
§ 1. Statutory Provisions . 661
3. The Debtor's Application 665
3. The Sheriff's Duty Before Sale 663
4 The Creditor's Contesting Affidavit 673
5. Confirmation by the Court . 675
6. Costs Impairing Contract 677
CHAPTER XXIIL
PLEADING AND PRACTICE.
§ 1. Ordinary Remedies 681
2. Parties — Husband and Wife 683
3. The Wife as Sole PlaintifE . , 687
4. The Wife as Sole Defendant 690
5. Minor Children as Parties 693
6. The Widow as a Party 695
7. Application for Homestead ....... 697
8. Probate Orders Setting OflE Homestead 703
9. Probate Orders to Sell Homestead ...... 706
10. Administrator's Suit as to Creditors 710
11. Relative to Foreclosure 714
12. Equity Rule as to Order of Sale 733
13. Statutory Rule as to Order of Sale 726
14. Claiming Before Execution Sale ~ , 739
15. The Preferable Practice as to Claiming 733
xtv
TABLE OF CONTENTS.
16. Execution as to Occupancy '''38
17. Pleading in Attachment Suits 'i'41
18. Effect of Not Pleading 746
19. Eulings on Question8 of Evidence 749
20. Injunction Against Sale ........ 758
21. Segregation and Other Proceedings Before Sale . . . 755
22. Judgment and Costs an Entirety 758
& 1-
3.
3.
4
5.
6.
7.
8.
9.
10.
11.
12.
CHAPTER XXIV.
EXEMPTION OF PERSONALTY.
Differentiation of Homestead and Chattel Exemption
Interpretation of Statutes .
What Law Applicable
The Right Absolute or Conditional
Who May Claim
How to Claim .
When to Claim
The Officer's Duty
Limitations
Money in Lieu of Chattels
Chattels in Lieu of Homestead
Chattel Exemption to Widows
763
764
766
768
770
776
777
779
782
784
785
787
CHAPTER XXV.
THINGS EXEiUPT.
§ 1. Household Goods
2. Furniture of Hotels, Boarding-houses, etc.
3. Clothing, etc., Worn on the, Person
4. Tools of Mechanics and Others .
5. Machinery .- . . .
6. Printing Presses, Types and Material
7. Wagons and Other Vehicles
8. Domestic Animals .
9. Things Needed in Busmess ; Stock in
10. Merchants' Stock in Trade
11. Crops and Provisions
12. Books, Pictures, Musical Instruments,
Trade
etc.. Outfits of Fishermen
and Miners, etc., Specially Exempted
791
793
795
796
801
802
803
806
811
818
815
818
CHAPTER XXVL
INCORPOREAL THINGS AND MONET.
1. Exemptible Interests 822
2. Wages of Laborers and Others 823
3. Wages, Salaries and Earnings 825
4 Choses in Action 828
5. Set-off Against Exempt Choses in Action 829
6. Money Deposited 834
7. Fire Insurance Money 885
TABLE OF CONTENTS. XV '
§ 8. Life Insurance Money 836
9. Pension Money and Its Investment 837
10. Pension Money in Ti-ansit 840
11. The United States Pension Act: Whether it Exempts Accumu-
lations from the Money 843.
CHAPTER XXVII.
EXEMPTION ENFORCED.
g 1. Debtor's Schedule 847
3. Schedule and Appraisement 853
3. Appraisement of the Widow's Allowance .... 850
4. Remedies for Wrongtul Levy 857
5. Damages Dependent on Legality of Claim for Exemption . 861
6. Replevin 863
7. Burden of Proof 864
8. Laches, and Passive Waiver 866
9. Waiver in Promissory Notes 869
10. Notice — Rank of Creditors 870
11. Mortgage, Relative to Waiver 873
CHAPTER XXVIII.
EXEMPTING ATTACHED CHATTELS.
§ 1. Claiming Before Judgment 876
3. Attachment and Execution Different as to Claiming . . 880
8. Effect of Judgment Upon Attachment 883
4. Conventional Waiver . . 885
5. Sale Pendente Lite
6. Garnishment in Foreign Jurisdiction
7. Garnishment and State Comity 892
8. Garnishee's Disclosure in Foreign Jurisdiction .... 896
9. Railroad Company Garnishee — Disclosure .... 898
10. Non-residents, as to Chattel Exemption 900
CHAPTER XXIX
EXEMPTION DENIED IN CERTAIN SUITS, ETC.',
§ 1. Suits Against Partnerships . 9G3
3. Partner's Share Held Liable 905
3. Partner's Share Held Exemptible 907
4. Suits for Antecedent Debts, etc 909
5. Suits for Purchase-money 910
6. Actions Ex Delicto 913
7. Fraudulent Concealment 916
8. Fraudulent Sale 918
9. Fraudulent Assignment 931
/
XVi TABLE OF CONTENTS.
CHAPTER XXX
FEDERAL HOMESTEADS.
§ 1. Distinctive Features 924
2. Beneficiaries .......... 926
3. Entry — What Land Open 929
4. Application and Settlement 932
5. Soldiers' and Sailors' Homesteads 934
6. Executive Acts 936
7. Judicial Action ......... 940
8. Settlers' Rights Relative to Railroads 943
9. Alienation Inhibited 946
10. Incumbrances 950
11. Title 953
TABLE OF CA-SES.
Beferences are to pages.
Aaron v. The State, 37 Ala. 106 : 81.
Abbott V. Abbott, 97 Mass. 136 : 259,
585.
V. Creal, 56 la, 175 : 423.
V. Cromartie, 72 N. C' 548 : 385,
480, 614, 018, 730.
T. Gillespy, 75 Ala. 180: 673, 858,
861.
Abell V. Lathrop, 47 Vt 375 : 403, 472.
Abercrombie v. Aldevson, 9 Ala. 981 :
83,97,775,798.
Abernathy v. Whitehead, 69 Mo. 3*0 :
289, 515.
Abney v. Pope, 53 Tex. 388 : 403.
Abraham v. Davenport, 73 la. Ill :
799.
Abrahams v. Anderson, 80 Ga. 570 :
824.
Achilles v. Willis, 81 Tex. 169: 185,
233.
Acker v. Alex. etc. E. Co., 84 Va. 648 :
557.
V. Trueland, 56 Miss. 30 : 149.
Ackley v. Chamberlain, 16 Cal. 182 :
177, 183, 184, 311, 312, 235,
810, 744.
Adair v. Hare, 73 Tex. 373 : 596, 657.
Adams v. Abernathy, 37 Mo. 196 : 561.
V. Adams, 46 la. 630 : 619.
V. Bachert, 83 Pa. St 534: 543.
V. Beale, 19 la. 61 : 269, 330, 402,
684.
V. Bushey, 60 N. H.' 290: 879.
V. Cowherd, 30 Mo. 458 : 913.
V. Dees, 63 Miss. 354 : 528.
V. Edgerton, 48 Ark. 419: 518.
V. Holcombe, 1 Harper Eq. 302 :
646.
Adams v. Jenkins, 16 Gray, 146 : 129,
146, 346.
Adger v. Bostick, 13 S. C. 64 : 407.
Adrian v. Shaw, 83 N. C. 474 : 480.
Agnew V. Adams, 26 S. C. 101 : 157,
, 279, 280.
V. Walden (Ala.\ 10 So, 224 : 868,
870, 885.
Aiken v. Ferry, 6 Saw. 79 : 942.
V. Gardner, 107 N. C. 336 : 673,
677.
Aikiu V. Watson, 24 N. Y. 483 : 834.
Airey v. Buchanan, 64 Miss. 181 : 528.
Akin V. Geiger, 53 Ga. 407 : 77, 455.
Alabama Conference v. Vaughan, 54
Ala. 443 : 793.
Albrecht v. Treitachke, 17 Neb. 205 :
893.
Albright v. Albright, 70 Wis. 528:
395, 896, 478, 678.
Alden v. Yeoman, 39 111. App. 53 :
778.
Aldrichv. Aldrich, 37111. 33: 940.
V. Anderson, 2 Land Dec. 71 :
947.
V. Thurston, 71 111. 324: 149, 158,
159.
Aldridge v. Mardoff, 33 Tex. 204 : 33.
Alexander v. Harrison, 3 Ind. App.
47: 760.
V. Holt, 59 Tex. 205 : 114, 341.
V. Jackson (Cal.), 25 Pac. 415 :
107, 718, 726.
V. Vennum, 61 la. 160: 423, 559.
V. Warrance, 17 Mo. 228 : 603.
Alford V. Alford.^88 Ala. 656: 158.
V. Lehman, 76 Ala. 526 : 393, 471,
557.
XVIU
TABLE OF CASES.
All V. Goodson, 33 S. C. 329 ; 864.
Allen V. Caldwell, 55 Mich. 8 : 119.
V. Chase, 58 N. H. 419 : 187.
V. Coates, 29 Miiin. 46 : 808.
V. Cook, 36 Barb. 374 : 292.
V. Dodson, 39 Kas. 220 ; 151.
V. Frost, 63 Ga. 659 : 525, 544, 548.
V. Grissom, 90 N. C. 90 : 908.
V. Hawley, 66 111.164: 118,266,
337, 495, 688.
V. Jackson, 133 111. 567 : 349.
V. Kellam, 69 Ala, 443 : 437; 579.
V. Klnyon, 41 Mich. 281 : 874.
V. Louisiana, 108 U. S. 80 : 679.
V. Manasse, 4 Ala. 554 : 59.
V. Perry, 56 Wis. 178 : 478.
V. Eussell, 39 O. St 336 : 606, 630,
836.
V. Shields, 73 N. C. 504: 380, 587,
653.
V. Strickland, 100 N. C. 225 : 871.
V. Towns, 90 Ala. 479 : 733.
V. Whitaker (Tex.), 18 S. W. 160 :
233.
Allen's Appeal, 99 Pa. St. 196: 36.
AUensworth v. Kimbrough, 79 Ky.
333 : 456, 593.
Alley V. Bay, 9 la. 509 : 164, 384, 395,
718.
Y. Daniel, 75 Ala. 403 : 880, 920.
Allison V. Brookshire, 38 Tex. 199:
764, 810.
V. Shilling, 37 Tex. 450 : 388, 568,
582.
AUman v. Gann, 39 Ala. 240 : 808.
Alstin V. Cundiflf, 52 Tex. 453 : 394.
Alsup V. Jordan, 69 Tex. 300: 792,
793, 850. §90.
Alt V. Banholzer, 39 Minn. 511 : 353,
354, 887.
V. Lafayette Bank, 9 Mo. App.
91 : 770, 920.
Altheimer v. Davis, 37 Ark. 316 : 298,
650.
Amend v. Murphy, 69 111. .337: 797,
859.
V.Smith, 87 111. 198: 776.
American Mortgage Co. v. Hopper,
48 Fed. 47 : 940.
Ames V. Eldred, 55 Cal. 136: 165,
212.
V. Martin, 6 Wis. 859, 861 : 810.
V. Winsor, 19 Pick. 248: 827.
Amos V. Cosby, 74 Ga, 793 : 483.
Amphlett v. Hibbard, 29 Mich. 298 •
134, 352, 384, 404, 430, 473,
751, 905.
Anchor t. Howe, 50 Fed. 366 : 937.
Anderson v. Anderson, 9 Kas. 113:
386.
V. Brewster, 44 O. St. 580: 737.
V. Brown, 'TS Ga. 713 : 550.
V. Carkins, 185 U. S. 483: 947.
V. Culbert, 55 la. 283: 426,427.
V. i3ge, 44 Minn. 216: 779, 807,
809.
V. Kent, 14 Kas. 207 : 559, 564.
V. McKay, 30 Tex. 186 : 185, 1196,
899.
V. Odell, 51 Mich. 492 : 880.
V. Patterson, 64 Wis. 557 : 873.
V. Peterson, 86 Minn. 547 : 549,
938.
V. Tribble, 68 Ga. 33 : 837.
Andrews v. Alcorn, 13 Kas. 351 : 378.
V. Hagadon, 54 Tex. 575 : 185,
190.
V. Melton, 51 Ala. 400 : 366, 637.
V. Richardson, 31 Tex. 287 : 357.
V. Rowen, 38 How. Pr. 128 : 430,
443, 445, 858.
Angell V. Johnson, 51 la. 635 : 866.
Angier v. Angier, 7 Phila. 305 : 570.
Anthony v. Chapman, 65 Cal. 73:
165.
V. Rice (Mo.), 19 S. W. 433 : 638.
Anthony A. C. Co. v. Wi;de, 1 Bush
(Ky.), 110: 516, 918.
Appeal of Overseers, 95 Pa. St 191 :
778.
Appeal of Williamson, 133 Pa, St
455 : 778.
Appleton V. Bascom, 8 Met (Mass.)
169; 287.
Archibald v. Jacobs, 69 Tex. 249 : 183,
196.
Arendt v. Mace, 76 Cal. 315 : 164.
I Arenz v. Reihle, 1 Scam. 340 : 781.
TABLE or CASES.
JCIX
Armitage v. Toll, 64 Mich. 413: 410,
875.
Arrastyong v. Moore, 59 Tex. 646 :
399.
V. Eoss, 20 N. J. Eq. 109: 45.
V. Stovall, 26 Miss. 275 : 555.
Arnold v. Estis, 93 N. C. 162: 493,
678.
V. Gotshall, 71 la. 573 : 179, 184,
S33, 282.
V. Grimes, 3 la. 1 : 940.
V. Jones, 9 Lea, 548 : 31, 35, 117.
V. Waltz, 53 la. 706 : 79, 878.
Arthur v. Morrison, 96 U. S. 108 : 24.
Arto V. Maydole, 54 Tex. 247 : 185.
Ashe V. Yungst, 65 Tex. 631 : 597.
Asher v. Mitchell, 92 III. 480 : 675.
V. Mitchell, 9 III App. 335 : 551.
Ashley v. Olmstead, 54 Cal. 616:
165.
Ashton V. Ingle, 20 Kas. 670: 181,
188, 275.
Association v. Atlanta, 77 Ga. 496 :
443.
Astley V. Capron, 89 Ind. 167 : 878.
Astrom v. Hammond, 3 McLean,
107:958.
Astugueville v. Loustaunau, 61 Tex.
333: 419.
Atchison Bank v. Wheeler's Adm'r,
30 Kas, 635 : 568.
Atherton v. Fowler, 96 U. S. 513:
135. 927, 930. 933, 949.
Atkins V. Paul, 67 Ga. 97 : 443.
Atkinson v. Atkinson, 37 N. H. 435 :
40 N. H. S49 : 66, 93, 3 il, 385,
417, 581, 695, 702.
V. Gatcher, 38 Ark. 103: 817.
V. Hancock, 67 la. 453 : 438.
Att'y Gen'l v. Smith, 31 Mich. 359 :
34.
Atwater v. Butler, 9 Bax. 899 : 540.
V. Woodbridge, 6 Ct. 333: 767.
Aucker v. McCoy, 56 Cal. 534 : 165,
177, 235.
Auld V. Butcher, 3 Kas. 155 : 767.
Aultman v. Heiney, 57 la, 654 : 515,
530.
V. Howe, 10 Neb. 8 : 668.
Aultman v. Jenkins, 19 Neb. 209 : 47,
396.
Aurora City v. West, 7 Wall. 82, 103 :
747.
Austin V. Aldermen, 7 Wall. 694:
679.
V. Loring, 63 Mo. 19 : 669.
V. McLaurin, 1 N. Y. S. 309 : 837.
V. Stanley,, 46 N. H. 51 : 189, 315,
975, 304, 558, 573.
V. Swank, 9 Ind. 109 : 339, 667,
853, 856.
V. Towns, 10 Tex. 34 : 563.
V. Underwood, 37 111. 438 : 336.
337, 340, 345, 346, 347.
Avans V. Everett, 3 Lea, 76 : 71, 135,
13a
V. Norman, 4 Sneed, 683: 189.
Avery v. Judd, 31 Wis. 363 : 403.
V. Stephens, 48 Mich. 246 : 198,
303.
Axer V. Bassett. 63 Tex. 545 : 252.
Axtell V. Warden, 7 Neb. 182 : 863,
950, 953.
Aver V. Brown, 77 Me. 195 : 824.
Ayres v. Probasco, 14 Kas. 175, 198 :
295, 378, 384, 386.
B.
Babb V. Babb, 61 N. H. 143: 180.
Babbitt v. Babbitt, 69 111. 377: 570.
Babcock v. GibV)s, 53 Cal. 639: 165,
177. 335.
V. Hoey, 11 la. 375 : 389, 433.
Bachelder v. Fottler, 63 N. H. 445 :
625.
Baohman v. Crawford, 3 Humph.
213 : 66, 77, 281.
Backer v. Meyer (Ark.), 43 Fed. 702 :
527.
Backus V. Chapman, 111 Mass. 386 : 2.
Baesker v. Picket, 81 Ind. 554 : 883.
Bagley v. Emberson, 79 Mo. 139: 45.
Bagnell v. Brodenck, 13 Pet. 436 : 944
Bailey v. Campbell, 82 Ala. 348 : 579.
V. Steve, 70 Wis. 316: 216, 441.
Baillif V. Gerhard, 40 Minn. 172: 181,
565, 566, 586.
XX
TABLE OF CASES.
Baily v. Wade, 24 Mo. App. 190:
782.
Baines v. Baker, 60 Tex. 14C : 133, 530,
570.
Bair v. Steinman, 53 Pa. St. 433:
778, 866.
Baird v. Trice, 51 Tex. 559 : 28, 40,
304, 399.
Baker v. Brickell, 87 Cal. 339 : 603.
V. Brintnall, 53 Barb. 188 : 779.
V. Freeman, 9 Wend. 36 : 863.
V. Hayzlett, 53 la. 18 : 804.
V. Jamison, 73 la. 698 : 558, 590,
593.
V. Keith, 72 Ala. 121 : 556, 654.
V. Koneman, 13 Cal. 9 : 397.
V. Legget, 98 K. C. 304 : 560.
V. Sheehan, 29 Minn. 335 : 904.
V. The State, 17 Fla. 406 : 186, 340,
620.
V. Willis, 123 Mass. 194 : 797.
Baldwin v. Robinson, 39 Minn. 244 :
225.
V. Rogers, 28 Minn. 544 : 515.
V. Stark, 107 U. S. 463 : 941.
V. Talbot, 43 Mich. 11 : 875.
V. Tillery, 62 Miss. 378: 149, 225.
V. Whiting, 13 Mass. 57 : 135.
Baldy's Appeal, 40 Pa. St; 328: 41,
280, 788, 856.
Balkum v. Wood, 58 Ala 643: 437,
471, 579.
Ball V. Bennett, 21 Ind. 437 : 915.
Ballard v. Waller, 7 Jones (N. C), 84 :
828.
Ballou V. Gile, 50 Wis. 614: 765.
V. Hale, 47 N. H. 347 : 135.
Balton V. Johns, 5 Pa. St 145 : 21.
Bancord v. Parker, 65 Pa. 336 : 888.
Bangs V. Watson, 9 Gray, 211 : 818.
Bank v. Buzzell, 60 N. H. 189 : 383,
429.
V. Oai-son, 4 Neb. 501 : 296.
V. Cooper, 56 Cal. 340 : 952.
V. Freeman, 1 N. D. 196: 789.
V. Goodman, 33 S. C. 601 : 762.
V. Green, 78 N. C. 247 : 241, 300,
487.
V. McLeod, 65 la. 665: 796. I
Bank v. Morris, 6 Hill, 362 : 301.
V. Roop, 80 N. Y. 591 : 403.
V. Shelton, 87 Tenn. 393 : 78, 93.
V. Smisson, 73 Ga. 433 : 391, 558.
V. Treadway, 17 Fed. 887: 174.
V. Truesdail, 38 Mich. 440: 403.
Bank of Constantine v. Jacobs, 50
Mich. 340 : 536.
Bank of La. v. Lyon, 53 Miss. 181 :
380, 405, 406, 550.
Bank of Pa. v. Wise, 3 Watts, 396 :
243.
Bank of San Jose v. Corbett, 5 Saw.
547: 338.
Bank of U. S. v. Halstead, 10 Wheat.
51: 13.
Banks v. Railway Co., 45 Wis. 173 :
896.
V. Rodenbach, 54 la. 695 : 825.
Bannon v. State, 49 Ark. 167 : 37.
Barber v. Babel, 36 Cal. 14: 131, 377,
384, 426, 485.
V. Harris, 15 Wend. 615 : 393.
V. Rorabeok, 36 Mich. 399 : 81,
33, 197, 336.
V. Williams, 74 Ala. 331 : 555, 616.
Barco-v. Fennell. 24 Fla. 378 : 630.
Barfield v. Barfiel.l, 73 Ga. 668 : 78.
V. Jefferson, 84 Ga. 609 : 316.
Barker v. Dayton. 28 Wis. 368 : 389,
478, 587.
V. Ellis, 68 Miss. 172 : 877.
V. Jenkins, 84 Va. 895 : 54, 638.
V. Owen, 93 N. C. 198: 366.
Y. Rollins, 30 la. ilZ: 401, 715,
716, 737.
Barlow v. Gregory, 31 Ct. 364 : 379.
V. McKinley, 24 la. 69 : 945.
Barnard v. Brown, 112 Ind. 53 : 831,
873, 923.
Barnes v. Gay, 7 la. 36 : 404.
V. Rogers, 23 111. 350 : 83,96.
V. White, 53 Tex. 631 : 185, 191.
Barnett t. Knight, 7 Colo. 365 : 170,
171, 509.
V. Mendenhall, 42 la. 296 : 44, 47,
374, 394, 419.
V. People's Bank, 65 Ga. 51 : 431.
V. Proskauer, 63 Ala, 486 : 438.
TABT.E OF CASES.
XXI
Barney v. Keniston, 58 N. H. 168:
305, 309, 780, 808, 883.
V. Leeds, 51 N. H. 253 : 59, 94,
315, 261, 581, 657, 668, 669,
706, 739.
Barns y. White, 5 Tex. 638 : 196.
-Barnum v. Boughton, 55 Ct 117:
789.
Baron v. Brummet, 100 N. Y. 373:
886.
Barrett v. Durham, 80 Ga. 386 : 96, 98.
V. Failing, lllU. S. 538: 78.
V. French, 1 Ct 363 : 474.
V. Richardson, 76 N. C. 433 : 489,
678, 725.
V. Simms, 62 Cal. 440 : 374, 708.
V. Wilson, 103 111. 303 : 405, 406,
730.
Barrows v. Barrows- (111.), 38 N. E.
983 : 297, 385.
Bartholemew t. West, 3 Dill. 398:
113, 118.
Bartholomew v. Hook, 38 Cal. 377:
164, 170, 410, 687, 754.
Bartlet v. Harlow, 13 Mass. 348 : . 135.
Bartlett v. Morris, 9 Porter, 266 : 24.
V. O'Donoghue, 73 Mo. 563 : 45.
V. Russell, 41 Ga. 196: 756.
Barton v. Brown, 68 Cal. 11 : 866, 883.
V. Drake, 31 Minn. 399 : 853, 877,
387, 408.
V. Mill, 78 Va. 468 : 10.
Bartram v. McCracken, 41 O. St. 377 :
380.
Bassett v. Hotel Co., 47 Vt 313 : 519.
V. In man, 7 Colo. 370: 878.
V. McKenna, 53 Vt. 438: 434.
V. Messner, 30 Tex. 604 : 155, 333,
224, 225, 236, 337, 718.
Batchelder v. Fottler, 63 N. H. 445 :
~ 263.
V. Shopleigh, 10 Me. 135: 797,
802.
Bates V. Bates, 97 Mass. 392 : 135, 144,
459, 616, 633.
V. Callender, 3 Dak. 256: 918.
V. Seely, 46 Pa. St. 348 : 143.
Battle v. John, 49 Tex. 203 : 142.
Batts V. Scott, 37 Tex. 65 : 181, 565.
Baxter v. Dear, 24 Tex. 17 : 315, 747.
V. Tripp, 12 R L 310 : 33, 34.
Bayless v. Bayless, 4 Coldwell, 350 :
787.
Baylies v. Houghton, 15 Vt. 636 : 893.
Baylor v. Bank, 88 Tex. 448 : 41, 251,
380.
Bayne v. Patterson, 40 Mich. 658;
780, 874, 931.
Beach v. Hollister, 3 Hun, 519 : 143.
V. Miller, 51 111. 306 : 945.
Bean v. Fisher, 14 Wis. 57: 691,
Beard v. Blum, 64 Tex. 59 : 358.
V. Johnson, 87 Ala. 729 : 65, 146,
270.
Beatty V. Rankin, 139 Pa. St. 358 : 540,
817, 873.
Beaty v. Vrom, 18 W. Va. 291 : 103.
Beavan v. Speed, 74 N. C. 544 : 480,
541, 614.
Beavans v. Goodrich, 98 N. C. 217 :
676.
Bebbv. Cronie, 89 Kas. 842: 2, 6, 181,
188.
Bechtoldt v. Fain, 71 Ga. 495 : 122,
698.
Beck V. Soward, 76 Cal. 527; 164, 170.
Becker v. Becker, 47 Barb. 497 : 787.
Beckert v, Whitlock, 83 Ala. 133:
556, 673.
Beckman v. Meyer, 75 Mo, 888 : 93, 94,
291, 873, 515, 562, 580, 583,
738.
' V. Stanley, 8 Nev. 257 : 45.
Beokner v. Rule, 91 Mo. 63 : 671.
Bedford v. Small, 31 Minn. 1 : 948.
Beebe v. GriflSng, 14 N. Y. 244 : 26^ 32.
Beecher v, Baldy, 7 Mich. 488 : 134,
169, 178, 353, 473, 546, 618,
780.
Beedle v. Cowley (la.), 53 N. W. 498 :
049.
Beegle v. Wentz, 55 Pa. St. 369 : 542.
Beekman v. Chalmers, 1 Cow. 584:
860.
Beers v. Haughton, 9 Pet 329 : 12, 13,
280.
Behymer v. Cook, 5 Colo. 395 : 305,
309, 729, 782, 802, 815.
XXU
TABLE OF CASES.
Belden v. Younger, 76 la. 567 : 318,
417, 559.
Belknap v. Belknap, 2 Johns. Ch. 463 :
857.
V. Martin,. 4 Bush, 47 : 179.
Bell V. Bell, 84 Ala. 64 : 458.
V. Davis, 43 Ala. 460: 555, 729,
866.
V. Devore, 96 111 217: 531, 918.
T. Hall, 76 Ala. 546 : 878.
V. Keach, 80 Ky. 43 : 878.
V. Morrison, 1 Pet. 351 : 281.
V. Schwarz, 37 Tex. 573 : 558. 596,
603.
Bellinger v. White, 5 Neb. 401 : 950.
Belloe V. Rogers, 9 Cal. 126 : 627.
Bellows V. Todd, 34 la. 18 : 932.
Beloitv. Morgan, 7 Wall. 619-633:
747.
Belote V. Wynne, 7 Yer. 543 : 281.
Below V. Robbins, 76 Wis. 600 : 850,
864, 890.
Bemis v. Bridgman, 43 Minn. 496:
948.
V. DrisooU, 101 Mass. 421 : 135.
136.
Benagh v. Turrentine, 60 Ala. 557 :
631, 696.
Bender v. Meyer, 55 Ala. 576: 65,
140.
Benedict v. Bunnell, 7 CaL 345 : 177,
211, 580.
V. Gaylord, 11 Ct. 332: 143.
V. Webb, 57 Ga. 348 : 550.
Benham v. Chamberlain, 3^ la. 358 :
285, 437, 439.
Bennett v. Baird, 81 Ky. 554: 186.
V. Child, 19 Wis. 366 : 200.
V. Cutler, 44 N. H. 70 : 261, 384,
417.
V. Hutson, 38 Ark. 762: 518, 531,
874.
V. Mattingly, 110 Ind. 197: 391.
Benson v. Aitken, 17 Cal. 164 : 564,
580.
Bentley v. Jordan, 3 Lea, 353 : 339, 342,
343, 346, 358, 369, 410, 500.
Benton v. Wickwire, 54 N. Y. 236-8 :
24.
Bentonville R. Co. v. Baker, 45 Ark.
252: 621.
Bequillard v. Bardett, 19 Kan. 382:
797, 814.
Berg V. Baldwin, 31 Minn. 541 : 810.
Bergsma v. Dewey, 46 Minn. 357:
749, 751.
Bernier v. Bernier, 72 Mich. 43 : 928.
Berrell v. Schie, 9 Cal. 104: 913.
Berry v. Boggess. 62 Tex. 239 : 356.
V. Dobson (Miss.), 10 So. 45 : 108,
124, 608.
V. Ewing, 91 Mo. 395: 201, 387,
289.
V. Hanks, 28 111. App. 51 : 774,
853, 918.
V. Nichols, 96 Ind. 287 : 878, 916.
Berthold v. Holman, 13 Minn. 335 :
767.
Bertrand v. Elder, 23 Ark. 494 : 518.
Best V. Allen, 30 111. 30 : 486.
V. Gholson, 89 111. 465 : 44, 345,
556.
Bevan v. Hayden, 13 la. 122 : 31, 811.
Bevett V. Crandall, 19 Wis. 610 : 798,
812, 813.
Beyer v. Thoming (la.), 46 N. W.
1074 : 155, 530.
Beyschlag v. Van Wagoner, 46 Mich.
91: 431.
Bibb V. Freeman, 59 Ala. 612 : 358,
517.
V. Janney, 45 Ala 329 : 875.
Bicknell \. Tnckey, 34 Me. 273 : 818.
Bigelow V. Pritchard, 31 Pick. 174 :
41, 280.
Biggers v. Bird, 55 Ga. 650 : 355.
Biggs V. McKenzie, 16 111. App, 286 :
776, 853.
Bilbrey v. Poston, 4 Bax. 333 : 546,
607.
Billings V. Baker, 38 Barb. 343 : 45.
V. Hall, 7 Cal. 1 : 767.
Billingsley v. Neblett, 56 Miss. 537 :
348.
V. Spencer, 64 Mo. 355 : 418.
Billmeyer v. Evans, 40 Pa. St 334 :
767.
Bills V. Bills, 41 O. St 306 : 230, 530.
TABLE OF CASES.
xxm
Bills V. Mason, 42 la. 329 : 19, 333, 347,
437.
Bingham y. Maxcy, 15 III. 290 : 778.
Binkert v. Wabash R Co., 98 111. 206 :
329.
Binzel v. Grogan, 67 Wis. 147 : 180,
441.
Bird V. Logan, 35 Kas. 228 : 426.
Birdsong v. Tuttle, 52 Ark. 91 : 774.
Birrell v. Schie, 9 Cal. 104 : 346.
Bishop V. Hubbard, 23 Cal. 514: 137,
140.
Bishop's Fund v. Ryder, 13 Ct. 87:
294.
Bissell V. Grant,35 Ct 288: 474.
Bittenger's Appeal, 76 Pa. St 105:
866.
Bitting V. Vandenburgh, 17 How. Pr.
• 80: 797.
Black V. Curran, 14 Wall. 469 : 267,
268, 486, 730.
V. Epperson, 40 Tex. 187 : 377.
V. Lusi, 69 111. 70 : 44, 405, 406,
419, 614, 676.
V. Rockmore, 50 Tex. 95 : 550, 597.
V. Singley (Mich.), 51 N. W. 704
420.
Blackburn v. Knight, 81 Tex. 326
183, 186, 756.
Blackman v. Clements, 45 Ga. 292
756.
Blackwell v. Broughton, 56 Ga. 390
59, 85, 96.'
Blackwood v. Van Vliet, 30 Mich,
118: 34.
Blair v. Marsh, 8 la. 144 : 347.
V. Parker, 4 111. App. 409 : 850,
853, 854.
V. Wilson, 57 la. 177 : 598.
Blair Town Co. v. Kitteringham, 43
la. 462 : 931.
Blake v. Tucker, 13 Vt 39: 393.
Blakeney v. Bank, 17 S. & R. 64: 21.
V. Ferguson, 20 Ark. 547 : 135.
Blakey v. Newby,'6 Munf. 64: 608.
Blalock V. Denham, 85 Ga. 646 : 286.
V. Elliott, 59 Ga. 837: 541.
Blanchard v. Jamison, 14 Neb. 244 :
951.
Blanchard v. Paschal, 68 Ga. 32, 34:
905, 908, 909.
V. Sprague, 3 Sum. 535 : 41.
Blandy v. Asher, 73 Mo. 27 : 69.
Blankenship v. Blankenship, 19 Kas.
159: 67,69.
Blassingame v. Rose, 34 Ga. 418 : 619.
Bledsoe v. Gary (Ala.), 10 So. 503 : 878.
Blessing v. Edmondson, 49 Tex.
333: 67.
Bliss V. Clark, 39 111. 590 : 265, 486,
495, 853, 918.
V. Smith, 78 IlL 359 : 823.
V. Vedder, 34 Kas. 57 : 803.
Blivins v. Johnson, 40 Ga. 297 : 318,
673, 738.
Block V. Bragg, 68 Ala. 291 : 678, 674,
914.
V. George, 83 Ala. 178 : 673, 696,
703,914.
Blose V. Bear, 87 Va. 177 : 15.
Blossom V. Brightman, 31 Pick. 285 :
135. .
Blue V. Blue, 38 HI. 9 : 117, 366.
Blum V. Carter, 63 Ala. 235 : 194, 575.
V. Gaines, 57 Tex. 119 : 85, 94,
593.
V. Light, 81 Tex. 414: 599, 604.
V. Merchant, 58 Tex. 400 : 353.
V. Rogers, 78 Tex. 530: 183, 249,
501.
Blythe v. Jett, 52 Ark. 547 : 520, 865,
921.
v. Dargin, 68 Ala. 870 : 437.
Board of Comm'rs v. Riley, 75 N. 0.
144: 316.
Board of Trustees v. Beale, 98 111.
248: 557.
Bockholt V. Kraft, 78 la, 661 : 733.
Boesker v. Pickett, 81 Ind. 554 : 866,
919.
Bogan V. Cleveland, 52 Ark. 101 : 520,
525, 865.
Bolckow Co. V. Turner, 23 Mo. App.
103: 910,913.
Boiling V. Jones, 67 Ala. 508 : 20, 227,
535, 687.
Bollinger v. Mining, 79 Cal. 7 : 380,
383, 599.
XXIV
TABLE OF CASES.
Bolt V. Keyhoe, 30 Hun, 619 : 879.
Bolton V. Landers, 27 Cal. 104 : 676.
V. Oberne, 79 la. 278 : 415.
Bomack v. Sykes, 24 Tex. 218 : 297.
Bond V. Hill, 37 Tex. 626 : 866.
V. Seymour, 1 Chand. (Wis.) 40 :
514.
Bonds V. Greer, 56 Miss. 710 : 24.
V. Strickland, 60 Ga. 624 : 393.
Bonham v. Craig, 80 N. C. 224 : 354.
Bonnel v. Dunn, 28 N. J. L. 155 ; 29
id. 435 : 580, 771, 860.
Bonnell v. Bowman, 53 111. 460 : 865.
Bonorden v. Kriz, 13 Neb. 121 : 396,
412.
Bonsall v. Conely, 44 Pa. St. 447 : 143,
903, 904.
Booker v. Anderson, 35 111. 66 : 579.
Boone v. Hardie, 87 N. C. 72 : 354
Boot V. Brewster, 75 la. 631: 219,
562, 674.
Booth T. Gait, 58 Cal. 254: 64.
V. Goodwin, 29 Ark. 633 : 298,
547, 027, 651, 657.
Bopp Y. Fox, 63 111. 540 : 907.
Bordages v. Higgins (Tex.), 19 S. W.
446: 369.
Borden v. Bradshaw, 68 Ala. 362:
828.
V. Northern Pac. R Co., 12 Sup.
Ct. Reporter, 856 : 942.
Boreham y. Byrne, 83 Cal. 23: 11,
164, 165, 169, 177, 293, 372,
433, 469, 667.
Borland v. O'Neile, 22 Cal. 505 : 888.
Boroughs V. White, 69 Ga. 842 : 417,
544, 548.
Borron v. SoUibellos, 28 La. Ann.
355 : 135, 136.
Bosley v. Mattingly, 14 B. Mon. 89 :
24, 33.
Bossier V. Sheriff, 37 La. Ann. 263:
39, 178, 293.
Boston, etc. Co. v. Condit, 19 N. J.
Eq. 394: 135.
Boston Belting Co. v. Ivens, 28 La,
Ann. 695 : 802.
Bouchard v. Bourassa, 57 Mich. 8 : 81,
33, 197, 225.
Boulden's Case, 57 Md. 314 : 873, 875.
Bourne v. Merritt, 22 Vt 429: 860.
879, 882.
Bowen v. Barksdale, 38 S. C. 142:
413. ,
V. Bowen, 55 Ga. 182 : 64, 547,
548, 687.
Bowker v. CoUins, 4 Neb, 496: 136,
742.
Bowles V. Hoard, 71 Mich. 150 : 198.
Bowman V. Norton, 16 CaL 220: 310,
393. 485, 486, 606, 744.
V. Smiley, 31 Pa. St 225: 231,
542, 668, 847, 873.
V. Tagg, 12 Phila. 345 : 885.
V. Watson, 66 Tex. 295 : 253.
Bowne v. Witt, 19 Wend. 475 : 83, 97,
795.
Bowyer's Appeal, 21 Pa. St, 210 : 401,
507, 547, 580, 778.
Boyce v. Danz, 29 Mich. 146 : 940.
Boyd V. Barnett, 24 111. App. 199 : 133.
V. Cudderback, 31 III 113: 44,
366, 384, 405, 433, 550, 554,
556, 613, 950.
V. Ellis, 11 la. 97 : 410.
V. Fullerton, 135 111. 437 : 159, 571.
V. FOrniture Co., 38 Mo. App. 210 :
910, 913.
Boyden v. Ward, 38 Yt 628 : 192.
Boykin v. Edwards, 21 Ala. 261 : 290,
771.
Boyle V. Shulman, 59 Ala. 566 : 164,
170, 426, 575, 579.
V. Vanderhoof, 45 Minn. 31 : 824.
V. Zacharie, 6 Pet. 659 : 13.
Boynton v. McNeal, 31 Gratt. 459 : 55,
531, 533.
V. Sawyer, 35 Ala. 500 : 579, 696.
Brackett v. Watkins, 21 Wend. (N.
Y.) 68 : 507, 547, 919.
Bradford v. Central Loan Co., 47
Kas.587: 358.
V. Limpus, 13 la. 424 : 737.
Bradley v. Bischel, 81 la. 80 : 709.
V. Curtis, 79 Ky. 327 : 333, 343,
352, 355.
V. Rodelsperger, 3 S. C. 336 : 84,
98, 641, 657.
TABLE OF OASES.
XXV
Bradshaw v. Atkins, 110 UL 333 : 376.
V. Hurst, 57 la. 745 : 81, 562, 594.
Brady v. Banta, 46 Kas. 131: 654,
694.
V. Brady, 67 Ga. 368 : 550.
Brainard v. Simmons, 67 la. 646 : 836.
V. Van Kuran, 23 la. 361 : 383.
Bralie v. Ballon, 19 Kas. 397 : 747.
Bramble v. State, 41 Md. 435, 441 :
775, 785.
Brame v. Craig, 13 Bush, 404: 269,
373, 373, 550.
Bramin v. Womble, 33 La. Ann. 805 :
145, 170, 173.
Branch v. Tomlinson, 77 N. C. 388:
541, 869, 885.
Brandon v. Brandon, 14 Kas. 343 :
67, 69, 263.
V. Moore, 50 Ark. 247 : 9, 897.
Brantley v. Stephens, 77 Ga. 467 : 671,
674.
Braswell V. McDaniel, 74 Ga. 319:
649, 777, 861.
V. Morehead, Busb. Eq. 36 : 300.
Branch, Ex parte, 73 N. C. 106 : 640.
Brennan v. Wallace, 35 Cal. 108 : 562,
563, 565.
Bresee v. Stiles, 22Wia 120: 615, 631.
Brettun v. Fox, 100 Mass. 335 : 258,
458, 466, 567, 585, 623.
Brewer v. Granger, 45 Ala. 580 : 144.
V. Linnaus, 36 Me. 428 : 570.
V. Wall, 23 Tex. 589: 388. 399,
568, 600, 603.
Brewster v. Davis, 56 Tex. 478 : 394.
V. Link, 28 Mo. 148 : 860.
Briant v. Lyons, 29 La. Ann. 64 : 655.
Bridewell v. Halliday, 37 La. Ann.
410 : 39, 337.
Bridge v. Ward, 35 Wis. 687 : 180.
Bridgers v. Howell, 37 S. C. 425 : 134,
652.
Bridgman v. Wilcut, 4 G. Gr. (la.)
563: 295.
Bridwell v. Bridwell, 76 Ga. 627 : 76,
455.
Brierre v. Creditors, 43 La. Ana 423 :
835.
Briggs V. Briggs, 45 la. 318 : 590, 59a
Brigham v. Bush, 83 Barb. 596 : 598,
787.
Brill V. Styles, 85 111. 305 : 940.
Brinkerhoff v. Everett, 38 111. 263 :
574, 586, 650.
Brinson v. Edwards (Ala.), 10 So. 319 :
901, 919.
Briscoe v. Bronaugh, 1 Tex. 336 : 333.
Broach v. Barlield, 57 Ga 601 : 355,
550.
V. Powell, 79 Ga. 79, 83: 543, 544,
550.
Broad v. Murray, 44 Cal. 328 : 331.
Broadstreet v. Clark, 65 la. 670 : 89&
Broadwell v. Broadwell, 1 Gilman,
595 : 391.
Brock V. Leighton, 11 Bradw. (HI
'App.)361: 159.
V. Southwick, 10 Tex. 65 : 597.
Brokaw v. McDougall, 20 Fla. 313
448, 618.
Bromley v. McCall (Ky.), 18 S. W;
1016: 720.
Bronson v, Kinsie, 1 How. (U. S.) 311
677.
V. Newberry, 3 Doug. (Mich.) 38
767.
Brookbank v. Kennard, 41 Ind. 339
897.
Brooks V. Chatham, 57 Tex. 33 : 196.
V. Collins, 11 Bu.sh, 633: 87, 456.
V. Hathaway, 8 Hun, 290 : 865.
V. Hicks, 20 Tex. 666 : 32.
V. Hildreth, 23 Ala. 469 : 852.
V. Hyde, 37 Cal. 373 : 104, 112, 117.
V. School Com'rs, 31 Ala. 237 : 33.
V. State, 54 Ga. 36 : 14, 394, 337.
V. Young, 60 Tex. 33 : 348.
Broome v. Davis (Ga), 13 S. E. 749 :
448.
Broussard v. Broussard, 43 La. Ann.
921: 953.
Brown v. Balfour, 46 Minn. 68 : 764,
765, 837.
V. Brown, 33 Miss. 39 : 631.
V. Brown's Adm'r, 68 Mo. 888:
66, 581, 772, 826.
V. Coon, 36 111. 243 : 61, 387, 406,
579, 588, 586.
XXVI
TABLE OF OASES.
Brown v. Cozard, 92 III. 178 : 880, 410,
735.
V. Davis, 9 Hun, 43 : 805, 865.
V. Doneghey, 46 Ark. 497 : 871.
V. Driggeis, 62 Ga. 354 : 394.
V. Heath, 45 N. H. 168 : 441.
V. Hebard, 20 Wis. 344: 827.
V. Hoffmeister, 71 Mo. 411 : 781,
800.
V. Keller, 32 111. 151 : 108, 112, 266.
V. Leitch, 60 Ala. 313 : 868, 875,
885.
V. McLennan, 60 Tex. 43 : 138, 142,
194, 222.
V. Manter, 31 N. H. 528: 393.
V. Martin, 4 Bush, 47 : 186, 189.
V. Peters, 53 Ark. 183 : 728, 888.
V. Starr, 79 Cal. 608 : 117. '
V. Warren, 16 Nev. 228: 953.
V. West, 73 Me. 23 : 818.
V. Watson, 41 Ark. 309 : 563.
Browning v. Bettis, 8 Paige, 568 : 886.
V. iHarris, 99 111. 463: 213,365,
409, 586.
Bruce v. Strickland, 81 N. 0. 267 : 44,
79, 493.
BrufE V. Stern, 81 N. C. 183: 917.
Brumbaugh v. Shoemaker, 51 la. 148 :
413, 737.
T. Zollinger, 59 la. 384 : 156, 718,
729, 758.
Brummett V. Pearle, 36 Ark. 471 : 953.
Bruner v. Bateman, 66 la. 488 : 430.
Brusie v. Griffith, 84 Cal. 303 : 801, 805,
807, 811, 824.
Bryan v. Kelly, 85 Ala. 569 : 777, 816,
' 847, 861, 880.
V. Ehoades, 96 Mo. 485 : 617, 705.
Bryant V. Lyons, 29 La. Ann. 64 : 686.
V.Woods, 11 Lea, 327: 19.
Buchanan v. Alexander, 4 How. 20 :
844.
Buck V. Ashbrook, 59 Mo. 300 : 389,
533, 535.
V. Conlogue, 49 111. 891 : 61, 586.
Buckingham v. Billings, 13 Mass. 82 :
37, 803.
V. Buckingham, 81 Mich. 89 : 46,
584.
Buckingham v. Fisher, 70 111. 131:
826.
V. Nelson, 43 Miss. 417 : 694.
Buckley v. Wheeler, 53 Mich. 1 : 874.
Bugbee v. Bemis, 50 Vt. 316 : 36, 38,
187, 193.
Bugg V. Russell, 75 Ga. 837 : 887, 339,
501.
Buie V. Scott, 107 N. C. 181 : 158.
Building Ass'n v. Chalmers, 75 CaL
833 : 384, 485, 608.
V. King, 83 Cal. 440 : 599.
Bull V. Coe, 77 Cal. 54 : 380.
V. Conroe, 13 Wis. 238 : 31, 335,
326.
V. Eowe, 13 S. C. 365 : 279.
V. Shaw, 48 Cal. 455 : 953.
Bullene v. Hiatt, 13 Kas. 98: 303,
304.
Bumgardner v. Circuit Court, 4 Mo.
50: 767.
Bumpus V. Maynard, 38 Barb. 636 :
795.
Bunker v. Locke, 15 Wis. 685: 83,
147, 151, 180.
V. Paquette, 37 Mich. 79 : 187,563.
Bunn V. Lindsay, 95 Mo. 350, 358 : 15,
288, 294.
Bunnel v. Stockton, 88 Cal. 319 : 74.
V. Hay, 73Ind. 453: 878.
Bunting v. Beideman, 1 Cal. 183 : 273.
Bunz V. Cornelius, 19 Neb. 107: 379.
Burbank v. Rockingham Ins. Co., 34
N. H. 550 : 950.
Burch V. Atchison, 83 Ky. 585 : 545.
V. Sheriff, 37 La. Ann. 725 : 563.
Burden v. Thayer, 8 Mete. 76 : 343.
Burdge v. BoHn, 106 Ind. 175: 831.
Burdick v. Kent, 53 la. 583 : 464, 593,
594.
Burfenning v. Railroad Co., 46 Minn.
20: 931.
Burgess v. Bowles, 99 Mo. 548, 547 :
464, 687.
Burgett V. Apperson, 53 Ark. 313:
706.
Burgwyn v. Hall, 108 N. C. 489 : 647.
Burk V. Osborn, 9 B. Mon. 579: 631.
V. Webb, 82 Mich. 173: 861.
TABLE OF CASES.
XXVll
Burke v. Gleason, 4fi Pa. St. 297 : 637,
646. 778, 788.
V. Hance, 76 Tex. 83 : 899.
Burkett v. Burkett, 78 Cal. 310: 121,
123, 384.
Burleson v. Burleson, 28 Tex. 418 :
629.
Burlington R. Co. v. Johnson, 38 Kas.
142: 945.
V. Thompson, 31 Kas. 180 : 901.
Burmeister v. Dewey, 27 la. 468 : 414,
727.
Bumap V. Cook, 16 la. 149 : 333, 339,
353, 380, 384.
Burnett v. Burnett, 17 S. C. 552: 453.
V. Walker, 23 La. Ann. 335 : 655.
Burns v. Bangert, 92 Mo. 167 : 389,
515.
V. Harris, 67 N. C. 140 : 144,
V. Jones, 37 Tex. 50 : 84, 94
V. Keas, 21 la. 257 : 269, 401, 590,
591, 622.
V. Ledbetter, 56 Tex. 386 : 357.
V. Lewis, 86 Ga. 591 : 582, 584,
739, 730, 746.
V. Thayer, 101 Mass. 436 : 346.
Burnside v. Terry, 51 Ga. 186 : 15, 130,
379, 294, 375, 404.
V. Watkins, 30 S. C. 459 : 330.
Bursen v. Goodspeed, 60 111. 381 : 120,
463, 494, 619.
Burson v. Fowler, 65 III. 146 : 61, 582.
Burt V. Box, 36 Tex. 114 : 645.
V. Randlett, 59 N. H. 130 : 641.
Burton v. Mill, 78 Va.-'468 : 333.
V. Spiers, 87 N. C. 87 : 117, 130,
480, 676, 679, 855.
Burtz V. Robinson, 59 Ga. 763 : 550.
Bush V. Lester, 55 Ga. 579 : 279, 355,
550.
V. Scott, 76 111. 524: 336, 343,739.
Butler V. Clark, 46 Ga. 466 : 825.
V. Nelson, 73 la. 732 : 384, 515,
530.
V. Pennsylvania, 10 How. (U. S.)
416: 767.
V. Shiver, 79 Ga. 172 : 817.
V. Stainback, 87 N. C. 316 : 410,
679, 716, 725.
Butner v. Bowser, 104 Ind. 255 : 764,
Butt V. Green, 39 O. St. 667: 419,
542, 730, 778, 781, 866, 868.
Butterfield v. Wicks, 44 la. 310: 464,
590, 593, 593, 620, 633.'
Butterworth v. Hoe, 113 U. S. 50:
941.
Butts V. Broughton, 73 Ala. 294 : 183,
428.
Buxton V. Dearborn, 46 N. H. 44 : 31,
158, 215, 559, 615.
Buzzell V. Hardy, 58 N. H. 331 : 730.
882, 866.
Byers v. Byers, 21 la. 268 : 74, 94, 745.
Byous V. Mount, 89 Tenn. 361 : 764,
810, 818.
Byram v. Byram, 27 Vt 295 : 627.
Byrd v. Curlin, 1 Humph. 466 : 919.
V. Jones, 37 Ark. 194: 525.
c.
Cabeen v. Mulligan, 37 111. 230: 180,
568.
Cabell V. Givens, 30 W. Va. 760 : 387.
Cadwalader v. Howell, 18 N. J. L.
138: 580.
Cady v. Eighmey, 54 la 615 : 940.
Cahall V. Building Ass'n, 61 Ala. 333 :
438, 439, 471.
Cahill V. Wilson, 62 111. 137 : 180, 568.
Cahoun v. McLendon, 42 Ga. 406 : 5a
Cain v. Chicago R. Co., 54 la. 255 :
590.
V. Leslie, 15 Ark. 312 : 953.
Calderwood v. Tevis, 33 Cal. 336 : 112.
Caldwell v. PoUak, 91 Ala. 353: 488,
730.
V. Seivers, 85 Ky. 38 : 561.
V. Truesdale (Ky.), 13 S. W. 101 :
729, 745.
Caleb -v. Burnett, 55 Miss. 83 : 653.
Calhoun v. Knight, 10 Cal. 393 : 807.
V. McLendon, 42 Ga. 406 : 59, 80,
* 83. 96.
V. Snyder, 6 Binney, 135 : 379.
V. Williams, 32 Gratt. 18: 75, 80,
85, 94, 97, 101.
Call V. Hagger, 8 Mass. 433: .767.
XXVlll
TABLE OF OASES.
Calladay v. Pilkington, 13 Mod. 513 :
37.
CaUanan v. Shaw, 19 la. 183: 730.
Callaway v. Carpenter, 10 Ala. 500 :
533, 918.
Galium V. Petigrew, 10 Heisk. 394 :
45.
Cameron v. Cameron, 83 Ala. 393:
646.
V. Fay, 55 Tex. 58: 441, 443.
V. Marshall, 65 Tex. 7 : 365.
V. Mason, 7 Ired. Eq. 180: 334.
V. Morris (Tex.), 18 S. W. 433 :
599, 704.
Cameto v. Dupuy, 47 Cal. 79: 136,
140, 637.
Cammack v. Lovett, 44 Ark. 180 : 535.
Camp V. Bates, 11 Ct 51 : 300.
V. Ganley, 6 III. App. 499: 854,
859.
V. Grider, 63 Cal. 30 : 380, 383,
599.
T. Smith, 61 Ga. 449 : 61, 65, 940,
950.
Campbell v. Adair, 45 Miss. 178, 183 :
31, 116, 147, 179, 186, 558, 563.
V. Babcock, 37 Wis. 513 : 363, 377,
436, 478, 693.
V. Elliott, 53 Tex. 159 : 881, 399,
415.
V. Gould, 17 Ind. 133 : 883.
Y. Jones, 53 Ark. 493, 497 : 518,
530, 535.
V. Macmanus, 33 Tex. 443 : 333.
V. Maginnis, 70 la. 589 : 333.
V. White, 95 N O. 491 : 669, 677,
793, 793.
Canal Co. v. Railroad Co., 4 Gill & J.
153: 34.
Cancemi v. People, 18 N. Y. 135 : 540.
Canfield v. Hard, 58 Vt. 317 : 117.
V. Mouger, 12 Johns. 347 : 747.
Cannon v. Bonner, 38 Tex. 491 : 351,
637, TU6.
V. Boutwell, 53 Tex. 636 : *430.
V. McDaniel, 46 Tex. 304 : 340.
Canole v. Hurt, 78 Mo. 649 : 603, 645.
Cantrell v. Conner, 51 How. (N. Y.)
45: 80.
Cantrell v. Connor, 6 Daly (N. Y.), 224 :
794.
V. Fowler, 34 S. C. 434: 158,^445.
Cantrill v. Risk, 7 Bush, 159 : 667.
Canty v. Latterner, 31 Minn. 339 : 386.
V. Sanderford, 37 Ala. 91 : 45.
Capek V. Kropik, 129 111. 509, 519 :
87, 63, 78, 404, 644
Caraker v. Matthews, 35 Ga. 571 : 835.
Carey v. Hess, 113 Ind. 398 : 767.
V. Hotaillng, 1 Hill (N. Y.), 311 :
348.
Carhart v. Harshaw, 45 Wis. 340, 347 :
409.
Carl V. Smith, 8 Phila. 569 : 919.
Carlisle v. Godwin, 68 Ala. 137: 19.
Carlton v. Watts, 83 N. C. 213 : 678,
767, 910.
Carmack v. Lovett, 44 Ark. 180: 53a
Camall v. Wilson, 31 Ark. 63 : 619,
621.
Carnrick v. Myers, 14 Barb. 9 : 865.
Carolina N. Bank v. Senn, 25 S. CL
578, 581 : 66.
Caroon v. Cooper, 63 N. C. 386 : 117,
120.
Carpenter v. Herrington, 25 Wend.
370: 817.
T. Providence Ins. Co., 16 Pet
495: 609.
V. Warner, 38 O. St 416 : 419.
V. Williamson, 25 Cal. 154: 607.
Carper v. Munger, 63 Ind. 481 : 431.
Carr v. Caldwell, 10 Cal. 385: 337,
347, 404.
V. Rising, 62 111. 14: 568.
Carre v. City, 41 La. Ann. 998; 43
id. 1131 : 766.
Carrigan v. Bozeman, 13 S. C. 876:
379.
Carrington v. Herrin, 4 Bush, 634 :
563.
Carroll v. Boston Ins. Co., 8 Mass.
515: 609.
V. Ellis, 63 Cal. 440 : 140.
V. Evans, 27 Tex. 363: 145.
V. Perry, 4 McLean, 35 : 953.
V. Safford, 3 How. 441 : 939, 953.
Carruth v. Grassie, 11 Gray, 211 : 810.
TABLE OF CASES.
xJtix
CJarson v. Arkansas, 15 How. (U. S.)
513: 677.
V. Biowder, 2 Lea, 701 : 629.
V. Kelly, 57 Tex. 380 : 597.
Carswell v. Hartridge, 55 Ga. 412 : 355.
Carter v. Carter, 20 Fla. 558: 541,
835, 869, 903.
V. Chambers, 79 Ala. 223: 901.
V. Champion, 8 Ct 549 : 304. •
V. Coleman, 84 Ala. 356 : 930.
V. Goodman, 11 Bush, 338 : 559.
V. Hawkins. 62 Tex. 398 : 568.
V. Hicks, 2 Lea, 511 : 348.
V. Hinkle, 13 Ala. 529 : 789.
V. McManus, 15 La. Ann. 676 :
165.
V. Randolph, 47 Tex 379 : 459,
600, 603, 621, 712.
V. Sommermeyer; 27 Wis. 665 :
180.
Cartwright v. Bessman, 73 Ga. 189 :
777.
Carty v. Drew, 46 Vt 346 : 764, 785.
Carver V. Lassallette, 57 Wis. 333:
409.
Cary v. Tice, 6 Cal. 636 : 178, 311, 580.
Case V. Dunmore, 23 Pa. St 98 : 507,
5l3, 543, 547.
V. Fish, 58 Wis. 56 : 874
Casebolt v. Donaldson, 67 Mo. 308 :
33, 119, 817, 668, 670.
Casey v. Yasser, 50 Fed. 258 : 941.
easier v. Byers, 38 111. App. 138 : 44
Cason V. Bone, 43 Ark. 17 : 868, 914
Casper v. People, 6 111. App. 28 : 854
Cass V. Martin, 6 N. H. 25 : 616.
Cassell V. Williams. 13 111. 387 : 516,
536, 781, 919.
Casselman V. Packard, 16 Wis. 114:
147, 180, 188, 240, 375.
Castle V. Palmer, 6 Allen, 401 : 358,
395, 516.
Castleberry v. Maynard, 95 N. C. 281 :
480.
Caswell V. Keith, 12 Gray, 351 : 798.
Catton V. Talley, 33 Kasi 356 : 478.
Cavender v. Smith, 8 la. 360 : 630.
Cearfofe8 v. State, 43 Md. 406 : 35.
Chafee V. Eainey, 31 S. C. 11 : 78,
Chafle V. McGehee, 88 La. Ann. 278 :
178.
Chalfant v. Grant, 8 Lea, 118 : 137.
Chalmers v. Turnipseed, 21 S. C. 136 :
657.
Chamberlain v. Brown, 33 S. O. 597 :
63, 78, 79, 648.
V. Darrow, 46 Hun, 48: 771.
V. Lyell, 3 Mich. 458 : 401, 571.
Chambers v. Cox, 33 Kas. 395 : 386.
V. Perry, 47 Ark., 400: 738, 739,
730, 734, 863, 868, 888.
V. Sallie, 39 Ark. 413: 397, 516,
519, 533.
Chambliss v. Jordan, 50 Ga. 81 : 41,
397.
V. Phelps, 39 Ga. 386 : 91, 380, 739.
Chandler v. Ford, 3 Ad. & E. 649 : 393.
V. Jost, 81 Ala/. 411: 697.
Chant V. Reynolds, 49 Cal. 213 : 938.
Chapin v. Hoel, 11 111. App. 310 : 853,
854
Chaplin v. Sawyer, 85 Vt 390 : 617.
Chapman v. Lester, 13 Kas. 593 : 412.
V. Peebles, 84 Ala. 383 : 553.
Chappell V. Spire, 106 111. 473: 404
Charles v. Charles, 13 S. C. 385 : 279,
756.
Charles River Bridge Case, 11 Pet
538 : ,768.
Charless v. Lamberson, 1 la. 435 : 179,
193.
Charpentier v. Bresnahan, 62 Mich.
360: 775.
Chase v. Abbott, 20 la. 154: 269, 346,
381, 402.
Chatten v. Snider, 126 Ind. 387 : 849.
Cheatham v. Jones, 68 N. C. 153 : 119,
120, 679.
Cheney v. Rodgers, 54 Ga. 168: 11,
64, 171, 393, 442, 687.
V. Rosser, 59 Ga. 861 : 441.
V. White, 5 Neb. 361 : 950.
Chenowith v. Chenowith, 14 Ind. 3 :
75.
Chesney v. Francisco, 13 Neb. 636:
786.
Chicago, etc. R. Co. v. Anderson, 48
Kas. 397: 751.
XXX
TABLE OF CASES.
Chicago, etc. R Co. v. Mason, 11 111.
App. 525 : 900.
V.Moore (Neb.), 48 N. W. 475 : 900.
V. Eagland, 84 111. 375 : 900.
V. Swinney, 38 la. 183 : 353, 354,
386, 945.
V. Titterington (Tex.), 19 S. W.
472: 386.
Chilcote V. Conley, 36 O. St. 547 : 419,
828.
Child V. Singleton, 15 Nev. 461 : 170,
171, 238.
Childers v. Henderson, 76 Tex, 664 :
599, 658, 659, 704
Chilson V. Eeeves, 29 Tex. 276 : 626,
709, 747.
Chipman v. McKinney, 41 Tex. 76 :
394, 304.
Chisholm v. Chisholm, 41 Ala. 337:
615.
Chism V. Chism, 41 Ala. 337 : 788.
Choen v. Porter, 66 Ind. 194 : 915.
Choice V. Charles, 7 S. C. 171 : 739.
Chopin V. Runte, 75 Wis. 861 : 80,
356, 363.
Christy v. Dyer, 14 la. 438: 179, 192,
333, 352, 355, 404.
V. Pridgion, 4 "Wall. 196 : 51.
Church V. Chapin, 35 Vt. 223 : 519,
711.
V. Hay, 93 Ind. 323 : 916.
V. Holcomb, 45 Mich. 41 : 880.
Chynoweth t. Tenney, 10 Wis. 397 :
874.
Cilinger's Appeal, 35 Pa. St. 537 : 588.
Cipperly v. Rhodes, 53 III 346 : 509,
524.
Citizens' Bank' v. Bowen, 25 Kas. 117 :
262.
Citizens' N. Bank v. Green, 78 N. C.
347 : 243, 793.
City Bank v. Huie, 1 Bob. (La.) 236 :
83.
V. Smisson, 73 Ga. 423 : 85, 488,
526, 561.
City of Atlanta v. Word, 78 Ga, 276 :
443.
City of New Orleans v. Robira, 42
La, Ann, 1102: 766.
Claghom v, Saussy, 51 Ga, 576 : 825.
Clancy v. Stephens, 93 Ala. 577 : 163,
637, 696.
Clapp V. Thomas, 5 Allen, 158 : 309,
882.
Clark V. Allen, 87 Ala 198: 405, 408.
V.Anthony, 31 Ark. 546: 520,
865.
. V, Averill, 31 Vt 513 ; 880,
V, Bailey, 5 Or. 343 : 947.
V. Bell, 67 Ga. 728 : 133, 697.
V. Bond, 7Bax. 288: 780.
V. Burnside, 15 111. 62 : 621.
V. Clark, 17 How. (U. S.) 315:
709.
V. Crosby, 6 111. App. 102: 366.
V. Estate of Conroe, 38 Vt 469:
945.
V. Evarts, 46 la. 248 : 47, 894» 427,
549.
V. Mayor, 29 Md. 283 : 24
V. Munroe, 14 Mass. 351 : 340.
V. Nolan, 38 Tex. 416 : 226, 598,
639.
V. Potter, 13 Gray, 31 : 279.
V. Sohatz, 34 Minn. 300 : 865.
V. Shannon, 1 Nev. 568 : 185, 188,
313, 333, 236.
V. Snodgrass, 66 Ala. 283: 30,
239, 667.
V.Spencer, 75 Ala. 49: 20, 209,
408, 555, 673, 696, 871.
V. Trawick, 56 Ga. 359 : 11, 279,
355, 725.
V. Utioa, 18 Barb. 451 : 36.
aarkin v. Lewis, 30 Cal. 634 : 485.
Clay V. Richardson, 59 la. 483 : 437.
Claybrooks v. Kelly, 61 Tex 634 : 356.
Clearfoss v. State, 43 Md. 406 : 32.
Cleaver v. Bigelow, 61 Mich. 47 : 121,
138, 14r, 685.
Clegg V. Houston, 1 Phila. 353 : 143,
905.
Cleghorn v. Greeson, 77 Ga. 843 : 554,
870.
Clem V. State, 33 Ind. 418 : 37.
Clement v. Lee, 47 Ga. 626 : 817.
Clements v. Lacy, 51 Tex. 156 : 138,
142, 194, 304, 846, 858, 570.
TABLE OF CASES.
XXXI
Clements v. Stanton, 47 Cal. 60 : 164,
170.
Clif t V. Kaufman, 60 Tex. 64 : 253.
Cline V. Upton, 59 Tex. 27 : 357, 563,
738.
Clingman v. Kemp, 57 Ala. 195 : 914^
916.
Clint V. Upton, 56 Tex. 320 : 353.
Clinton v. Estes, 20 Ark. 216: 530.
V. Kidwell, 83 IlL 429 : 771.
Close V. Sinclair, 38 O. St. 530 : 871.
V. Stuyvesant, 182 IlL 607 : 953.
Cloud V. Inhabitants, 86 Mo. 357:
647.
V. Kendrick, 83 Ga. 730 : 241.
Clubb V. Wise, 64 111. 157: 61, 123,
586.
Coach V. McKee, 6 Ark. 484: 768.
Coad V. Neal, 55 la. 528: 438.
Coatea V. Caldwell, 71 Tex. 19: 169,
181, 241.
V. Gerlach, 44 Pa. St. 43 : 397.
Cobb V. Hallyburton, 93 N. C. 652 :
679.
V. Smith, 88 IlL 199 : 563.
Cobbey v. Knapp, 38 Neb. 579 : 397.
Cobbsv. Coleman, 14 Tex. 594: 63,
114, 808.
Cochran v. Darcy, 5 S. C. 135 : 379.
V. Harvey (Ga.),-14 S. E. 580 : 817.
V. Miller, 74 Ala. 50 : 19, 30, 327.
Cochran's Adm'r v. Sorrell, 74 Ala.
310: 615.
Cookrell v. Curtis (Tex.), 18 S. W.
436 : 66, 695.
Coe V. Smith, 47 IlL 325 : 266, 267,
405.
Coffee V. Adams, 65 Ga. 347: 122,
777, 811.
CoflEey v. Joseph, 74 Ala. 371 : 458,
615, 637, 636, 703, 706.
V. Wilson, 65 la 370 : 817.
Coffin V. Reynolds, 37 N. Y. 640 : 834
V. Rich, 45 Me. 507 : 25, 33.
Coflfman v. Bank of Kentucky, 40
Miss. 29 : 379.
Cogan V. Christie, 48 Ga. 585 : 443.
Cogel V. Miokow, 11 Minn. 354 : 295,
862.
Cohen v. Davis, 30 CaL 187 : 170, 212,
673.
V. Sharp, 44 Cal. 29 : 953.
Cohn V. Hoffman, 45 Ark. 376 : 806.
Coker v. Roberts, 71 Tex. 598 : 384,
388.'
Colbert v. Henley, 64 Miss. 374: 149.
Colby V. Crocker, 17 Kas. 527 : 194,
410, 412, 551, 724.
Cole V. Bank, 59 N. H. 53, 321 : 187,
559.
V. Cunningham, 133 U. S. 107:
888, 890.
V. Favorite, 67 111. 457 : 748.
V. GiU, 14 la. 527 : 164, 179, 193,
333.
V. Green, 31 111. 103 : 776.
V. La Chambre, 31 La. Ann. 41 :
145.
V. Van Riper, 44 111. 68-4: 46.
Coleman's AppeaL 108 Pa St 366:
850, 866.
Coleman v. Allen, 75 Mo. 333: 953.
V. Ballandi, 33 Minn. 144 : 295,
363.
V. Brooke, 37 Miss. 71 : 788.
V. Hatcher, 77 Ala 217 : 852.
V. HilL44 Ark. 453: 953.
V. McCormick, 37 Minn. 179: 953.
V. Smith, 55 Ala 368 : 438.
Coles V. Yorks, 36 Minn. 888 : 675, 676.
College V. Harrison, 9 B. & C. 524 : 41.
Collender Co. v. Marshall, 57 Vt 232 :
418.
CoUett V. Jones, 2 B. Mon. 19: 873,
874.
CoUey V. Duncan, 47 Ga 668: 648,
755.
Collier v. Latimer, 8 Bax. 430: 808.
V. Murphy, 90 Tenn. 800 : 881.
V. Simpson, 74 Ga 697 : 366, 550.
V. Wood, 85 Ala 91 : 716, 874.
CoUins V, Boyd, 56 Pa St 403 : 888.
V. Boyett, 87 Tenn. 384: 35, 206,
582.
V. Chantland, 48 la 241 : 591, 718.
V. Nichols, 5 Ind. 447: 888.
Colquitt V. Brown, 63 Ga 440: 339,
380.
XXX 11
TABLE OF CASES.
Colson V. Wilson, 58 Me. 416: 309,
739, 883.
Colter V. Morgan, 13 B. Mon. 278:
391.
Columbia Ins. Co. v. Lawrence, 10
Pet 507 : 609.
Colvin v. Woodward, 40 La. Ann.
637: 555.
ColweU V. Carper, 15 O. St. 379: 115,
786, 874.
Comfort V. Mason, 96 Mo. 137 : 910.
Commercial Bank v. Corbott, 5 Saw.
547 : 170, 171.
Com. Nat Bank v. Chicago, etc. R.
Co., 45 Wis. 172: 898.
Commissioners v. Riley, 75 N. C. 144 :
864, 9ia
Commonwealth v. Baldwin, 1 Watts,
54: 14.
V. Boyd, 56 Pa. St 403 : 778.
V. Cook, 8 Bush, 330 : 14, 327.
V. Ford, 29 Gratt 683, 687 : 13,
336.
V. Lay, 13 Bush, 283 : 337.
V. Liquors, 108 Mass. 19 : 33.
V. New Bedford Bridge, 3 Gray,
339: 767.
Compare* v. Hanna, 34 Ind. 74-8:
747.
Compher v. Compher, 25 Pa. St 31 :
788.
Compton V. Patterson, 28 S. C. 115 :
279, 280.
V. Pierson, 28 N. J. Eq. 329 : 45.
Comstock V. Adams, 23 Kas. 524:
449, 462.
V. Comstock, 37 Mich. 97 : 352,
472, 526, 546, 688.
Conant v. Van Schaick, 24 Barb. 87 :
767.
Cone V. Lewis, 64 Tex. 332 : 785.
Conklin T. Foster, 57 111. 107: 113,
115, 120, 265, 495, 730.
Conley v. Chiloote, 25 O. St 334: 419,
883, 896.
Conn V. Conn, 58 la. 747 : 593, 622.
Connally v. Hardwick, 61 Ga. 501 : 64
Connaughton v. Sands, 32 Wis. 387 :
30, 59, 80, 568.
Counell V. Chandler, 11 Tex. 249:
627.
V. Fisk, 54 Vt 881 : 809.
Connelly v. Doe, 8 Blackf . 330 : 379.
Connor v. McMurray, 2 Alien, 202:
44, 384, 419, 422, 560.
V. Nichols, 31 111. 148 : 329, 419.
Conover v. Mut Ins. Co., 1 N. T. 290 :
950.
Consolidated Tank Co. v. Hunt (la),
48 N. W. 1057 : 806.
Conveiy v. Langdon, 66 Ind. 311 : 831.
Conway v. Elgin, 38 Minn. 469 : 353.
V. Sullivan, 44 III 451: 10, 61,
265, 324, 761.
V. Wilson, 44 N. J. Eq. 457 : 873.
ConweU v. Conwell, 100 Ind. 437:
850, 890.
Cook V. Baine, 37 Ala. 350 : 862.
V. Bohl, 8 lU. App. 293 : 853, 854.
V. Crocker, 58 Ga. 66 : 729.
V. Klink, 8 CaL 347 : 608, 685.
V. Meyer, 73 Ala. 580, 583: 45.
V. McChristian, 4 Cal. 23 : 41, 164,
211, 212, 280, 564
V. Moffat, 5 How. (U. S.) 316 : 767.
V. Newman, 8 How. (N. Y.) 533:
393.
V. Norton, 48 111. 26 : 737.
M. Scott, 6111 333: 777, 778, 781,
784, 919.
V. Walthall, 30 Ala. 334: 914
V. Webb, 18 Ala. 810 : 696.
Cooke V. Gibbs, 3 Mass. 193 : 795,
Coolidge V. Wells, 20 Mich. 87 : 196,
804
Coon V. Jones, 10 la. 133 : 719.
Cooney v. Cooney, 65 Barb. 524 : 445.
Coons V. Tome, 9 Fed. 532 : 851.
Cooper V. Basham (Tex.), 19 S. W.
704: 563.
V. Cooper, 24 O. St 488 : 94 96,
230, 580.
V. Corbin, 105 111. 334: 339.
V. Maupin, 6 Mo. 634 : 860.
V. Neuman, 45 N. H. 339 : 806.
V. Payne, 86 111. App. 155 : 850.
V. Reeves, 13 Ind. 53: 888.
V. Singleton, 19 Tex. 260 : 597, 600.
TABLE OF CASES.
XXXIU
Ooosa River Steamboat Co. v. Bar-
clay, 30 Ala. 120 : 767.
Copeland v. Sturtevant (Mass.), 30
N. E. 475: 709.
Copp V. Williams, 135 Mass. 401 : 792,
882.
Coppage V. Gregg (Ind), 37 N. E.
570: 830.
Corbett v. Wood, 82 Minn. 509 : 927.
Corcoran v-. Canal Co., 94 U. S. 741 :
608.
Cordier v. Cage, 44 Tex. 583 : 598.
Coriell v. Ham, 4 Greene (la.), 458:
767.
Cornelia v. Ellis, 11 111. 584: 783, 859,
Cornelius v. Kessel, 58 Wis. 337:
940.
Cornell v. Dakin, 38 N. Y. 353 : 858.
V. Hitchens, 11 Wis. 368 : 767.
Corner v. Bourg, 36 La. Ann. 615:
636.
Corning v. Einehart Medicine Co., 46
Mo. App. 16 . 913.
Cornish v. Frees, 74 Wis. 490 : 185.
Corp V. Griswold, 37 la. 379: 803,
807, 811.
Corpening v. Kincaid, 82 N. C. 203 :
489, 678.
Corr V. Shackelford, 68 Ala. 241 : 358,
639, 702.
Cotton V. Hamil, 58 la. 594 : 558.
V.Wood, 25 la. 43: 591.
Coughlin V. Coughlin, 26 Kas. 116 :
386, 434
Courie v. Goodv^in, 89 Ala. 569 : 557,
868, 883, 884.
Courier v. Sutherland, 54 N. H. 475 :
874.
Covanhovan v. Hart, 21 Pa St. 495 :
524.
Coville v. Bentiey, 76 Mich. 348: 781.
Cowan v. Creditors, 77 Cal. 403 : 904.
V. Main, 34 Wis. 569 : 817.
Cowdrey v. Cowdrey, 131 Mass. 186 :
360, 615, 616.
V.Hitchcock, 103 111. 363: 365,
621.
Cowell V. Lammers, 10 Saw. 246 : 135,
933.
Cowgell V. Warrington, 66 la. 666 :
47, 384, 394, 438, 571.
Cox V. Berry, 13 Ga. 306 : 767.
V. Bridges, 84 Ala. 553: 637.
V.Donnelly, 34 Ark. 763: 947,
951.
V. Holcomb, 87 Ala. 589 : 437.
V. Milner, 23 lU. 433 : 309.
V. Shropshire, 35 Tex. 113 : 514,
530, 579.
V. Stafford, 14 How. (N. Y.) 531 : .
59, 64.
V. Wilder, 3 Dill.' 45 : 516, 533, 583,
585.
Coyle V. Succession of Creevy, 34 La.
Ann. 539 : 39.
Crabb v. Potter (Ky.), 14 S. W. 501 :
588.
Crabtree v. Whiteselle, 65 Tex. Ill,
114: 194.
Cracken v. Alder, 98 N. O. 400 : 367.
Craddock v. Edwards, 81 Tex. 609 :
273, 567, 599, \
Craft V. Stouz (Ala.), 10 So. 677 : 837.
Cranch v. Gridley, 6 Hill, 250 : 914.
Crandell v. Nevada, 6 Wall. 35 : 13.
Crane v. Linneus, 77 Me. 61 : 840.
v. Salmon, 41 Cal. 63 : 607.
V. Stickles, 15 Vt. 253: 711.
V. Waggoner, 33 Ind. 83 : 131, 229,
398, 789.
Cranz v. White, 37 Kan. 319 : 840.
Crawford v. Coil, 69 Mo. 588 : 815.
V. Lockwood, 9 How. Pr. (N. Y.)
547 : 541.
V. Richeson, 101 111. 351 : 194^ 201,
313, 733.
Creager v. Creager, 87 Ky. 449 : 305,
386, 419.
Creath v. Creath. 86 Tenn. 659 : 583.
V. Dale, 84 Mo. 349 : 171, 391.
V. Dale, 69 Mo. 41 : 668, 670.
Creecy V. Pierce, 69 N. C. 67 : 117, 119,
1301.
Cribben v. Cribben (111.), 27 N. E. 70 :
658.
Crim v. Nelms, 78 Ala. 604 : 393, 577.
Crimmins v. Morrisey, 36 Kas. 447 :
656.
XXXI V
TABLE OF CASES.
Crisp V. Crisp, 86 Mo. 630 : 666, 670,
675.
Crocker v. Pierce, 31 Me. 177 : 309.
Crockett v. Gray, 31 Kas. 846 : 678.
V. Templeton, 65 Tex. 134 : 147,
148.
Croft Brothers, 8 Biss. 188 : 907.
Croker v. Spencer, 2 D. Chip. 68:
818.
Cromwell v. O wings, 7 Harr. & J. 55 :
: 860.
Cronan v. Honor, 10 Heisk. 353 : 873,
874.
Crosby v. Stephan, 33 Hun, 478 : 837.
Croskey v. Northwestern Co., 48 111.
481 : 364.
Cross V. Armstrong, 44 O. St, 618 :
837.
V. Evarts, 38 Tex. 533 : 44, 388,
899, 419, 433, 567, 568.
V. "Weare, 63 N. H. 135 : 261, 635.
Croup V. Morton, 49 la. 16 ; 53 la. 599 :
133.
Crout V. Santer, 13 Bush, 443 : 551.
Crow V. Brown, 81 Ala. 344 : 838.
V. Whitworth, 30 Ga. 38: 739.
Crum V. Sawyer, 138 111. 443: 398,
542.
Crumb v. Hambleton, 86 Mo. 501:
933.
Crummen v. Bennet, 68 N. C. 494:
180, 493, 515, 516, 533, 533,
535, g55, 918.
Cruz V. Martinez, 53 CaL 239: 941.
Culbei-tson v. Cox, 29 Minn. 309 : 608.
CuUam ■?. Cooper (Tenn.), Dea Term,
1888: 71.
Cullers V. James, 66 Tex. 498 : 857.
Culver V. Rogers, 28 Cal. 530: 374,
394, 509, 953.
Culvitt V. Williams, 35 La. Ann. 885 :
397.
Cumming v. Blood worth, 87 N. C.
83 : 338, 365, 480.
Cummings v. Busby, 62 Miss. 195 :
380, 559.
V. Cheshire Ins. Co., 55 N. H. 457 :
609.
V. Cummings, 51 Mo. 861 : 464
Cummings v. Johnson, 65 Miss. 843;
347: E34.
V. Long, 16 la 41 : 398, 675.
Cumnock v. Wilson (Neb.), 50 N. W.
959 : 548, 754
Cunninghan* v. Butler, 142 Mass. 47 :
889.
V. Conway, 85 Neb. 615 :-786, 857.
V. Freeborn, 8 Paige, 557 : 424.
T. Gamble, 57 la. 46 : 593, 683.
V. Hanney, 13 111. App. 437: 45.
Curlee v. Thomas, 74 N. C. 51 : 716,
833.
Curran v. Arkansas, 15 How. (IT. S.)
304: 768.
V. Gulp (Ky.), 15 S. W. 657 : 563.
Currier v. Earl, 1 Shep. 216 : 393.
V. Sutherland, 54 N. H. 475, 487 :
7, 188, 516, 531, 535, 729, 919.
V. Woodward, 63 N. H. 66 : 28,
189.
Curtis V. Des Jardins, 55 Ai-k. 136 :
315, 756.
V. O'Brien, 20 la. 376 : 541, 869.
V. Root, 80 111. 57 : 858, 355.
Cusic V. Douglas, 3 Kas. 133 : 41, 880.
Cutting V. Tappan, 59 N. H 568:
808.
Cutts v. Hardee, 38 Ga. 350: 767.
D.
Dailey v. May, 5 Mass. 318 : 798.
Dains v. Prosser, 88 Barb. 391 : 779,
805.
Dalton V. Webb (la.), 50 N. W. 58 :
489.
Daly V. Willis, 5 Lea, 100 : 607.
Damman v. Com. School Lands, 4
Wis. (*414) 438 : 768.
Dana v. Stanfords, 10 Cal. 269 : 534.
Danaher v. Prentiss, 33 Wis. 399:
747.
Danforth v. Beattie, 43 Vt 138 : 138,
516.
V. Wear, 9 Wheat 673 : 406.
V. Woodward, 10 Pick. 483: 37,
808.
Daniel v. Bush, 80 Ga. 318 : 363.
TApLB OP OASES.
XXXV
Daniels v. Hamilton, 53 Ala. 108:
778.
V. Lowry, 96 Ala. 519 : 427.
V. Man, 75 Ma 397 : 899.
V. Morris, 54 la. 369 : 74, 746.
Danley v. Rector, 10 Ark. 235 : 518.
Danvers v. Boston, 10 Pick. 518 : 38.
Darby v. Rouse (Md.), 23 A, 1110:
873,^ 875.
Darden v. Reese, 62 Ala 311 : 838.
V. Reese, 62 Ala. 34 : 790.
Darrah v. Cunningham, 72 la. 123 :
464, 466, 594.
Darst V. Bates, 95 111. 493 : 403.
Dart V. Woodhouse, 40 Mich. 399:
819.
Daudt V. Harmon, 16 Mo. App. 803 ;
388, 707, 713, 751.
V. Music, 9 Mo. App. 169 : 464,
637.
Davenport V.Alston, 14 Ga 271 : 112,
170, 213, 535, 672.
V. Brooks, 93 Ala. 637: 789.
V. Devereux, 45 Ark. 343 : 573,
621.
V. Hicks, 54 Vt. 23: 354.
V. Swan, 9 Humph. 186 : 880.
David V. David, 56 Ala. 49 : 158.
Davidson v. Davisj 86 Mo. 440 : 457,
464, 637.
V. Sechrist, 38 Kas. 324: 797, 800.
Davis' Appeal, 34 Pa. St. 256 : 788.
Davis V. Andrews,. 30 Vt 683: 182,
192, 215, 401, 472, 572.
V. Curry, 85 Ala. 133 : 697.
V. Day (Ark.), 19 S. W. 503 : 306.
V. Garret, 3 Iredell, 459 : 309.
V. Givens, 71 Mo. 94: 135.
V. Hays, 89 Ala. 563 : 884.
V. Henson, 29 Ga. 345 : 322, 323,
761.
i. Kelley, 14 la. 523: 562, 568.
V. Land, 88 Mo. 436 : 131, 289, 515^
603.
V. McCartney, 64 Tex. 584 : 84,
96.
T. Meredith, 48 Mo. 263: 823.
V. Murphy, 126 Mass. 145 : 136.
V. Prosser, 32 Barb. 290 : 865.
Davis V. Rupe, 114 Ind. 588 : 767.
V. Scott, 66 CaL 165 : 135, 983.
V. Tallot, 12 N. Y. 184 : 747.
V. Webster, 59 N. H. 471 : 808.
V. Wetherell, 13 Allen, 60 : 715.
Davis, etc. Co. v. Whitney, 61 Mich.
518: 685.
Davlin v. Stone, 4 Gush. 359 : 793.
Dawley v. Ayers, 23 Cal. 108 : 68.
Dawson v. Burrus, 73 Ala. Ill : 428.
V. Hay den, 67 111. 53: 366, 378.
V. Holt, 44 Tex. 174 : 61, 598.
V. Merrille, 2 Neb. 119 : 947.
Day V. Adams, 43 Vt. 517: 636, 688,
657.
Dayton v. Donart, 33 Kas. 356 : 385,
462, 478, 630, 650.
Dean v. Clark, 8 la. 753 : 838.
V. De Wolf, 16 Hun, 186 : 824.
V. King, 13 Ired. 20 : 436, 818.
V. McAdams, 22 Kas. 544 : 365.
Dearborn v. Phillips, 21 Tex. 449:
809.
Dearing v. Thomas, 25 Ga. 224 : 312,
672.
Dearinger v. Ridgeway, 34 Ind. 54 :
916.
Dease v. Cooper, 40 Miss. 114 : 637.
Deatherage v. Walker, 11 Heisk. 45:
546.
De Bruhl v. Maas, 54 Tex. 464 : 846,
354.
Decatur Mercantile Co. v. Deford, 93
Ala. 347 : 848, 879. '
Decuir v. Benker, 33 La. Ann. 330 :
59. »
Deere v. Chapman, 25 111. 498: 31,
112, 116, 226, 266.
Deering v. Beard (Kas.), 38 P. 981 :
567.
V. Ruflfner (Neb.), 49 N. W. 771 :
826. ~ '
Deeter v. Sellers, 103 Ind. 458: 905,
906.
DeffeHz v. Pico, 46 Cal. 389 : 740.
DeflEerback v. Hawke, 115 U. S. 392 :
958.
De Graffenreid v. Clark, 75 Ala. 425 :
183, 393, 408, 718.
XXXVl
TABLE OF CASES.
De Hart v. Haun, 136 Ind. 978: 760,
914.
Dehon v. Foster, 7 Allen, 57 : 890.
De Hymel v. Mortgage Co., 80 Tex.
493 : 343, 722.
Dei V. Habel, 41 Mich. 88 : 586, 615.
De La Howe v. Harper, 5 S. C. 470 :
279.
De Land v. Day, 45 la. 87 : 93?, 933.
Delashmut v. Trau, 44 la. 613: 515,
530.
Delavan v. Pratt, 19 la, 439 : 282, 362,
675. 704.
Dellinger v. Tweed, 66 N. C. 206 : 18,
325, 761.
Deltzer v. Scheuster, 37 111. 301 : 605.
Deming v. Williams, 26 Ct 226 : 397.
Den V. Hardenburgh, 10 N. J. L. 42 :
142.
Dendel v. Sutton, 20 Fed. 787 : 417.
Dendy v. Gamble, 64 Ga. 528 : 58, 59.
Denegre v. Haun, 14 la. 340: 715,
727.
Denis v. Gayle, 40 La. Ann. 291 : 9,
178, 293, 297, 298, 299.
Denni v. Elliott, 60 Tex. 337 : 340.
Dennis v. Omaha N. Bank, 19 Neb.
675: 561.
V. Railroad Co., 34 La. Ann. 958 :
766.
V. Wilson, 107 Mass. 591 : 14a
Denny v. White, 3 Cold. 384: 541.
Denton v. Reading, 22 La. Ann. 607 :
25.
Dentzel v. Waldie, 30 Cal. 138 : 555.
IJeposit Bank v. Wickham, 44 How.
431 : 795.
Derr v. Wilson, 84 Ky. 14: 873, 378,
470.
Desmond v. State, 15 Neb. 438 : 786,
869, 881.
Derille v. Widoe, 64 Mich. 593, 596 :
197, 394.
DeVries v. Conklin, 32 Mich. 255 j
45.
Dewhurst v. Wright (Fla.), 10 So.
702:270.
Dewitt V. Sewing Machine Co., 17
Neb. 533 : 19, 89a
Deyton v. Bell, 81 Ga. 370: 76, 632.
Diamond v. Palmer, 79 la. 578: 83&
Dick V. Powell, 3 Swan (Tenn.), 633 :
346.
Dickens v. Long, 109 N. C. 165 : 702.
Dickerson v. Cayroll, 76 Ala. 877 : 665.
Dickinson v. Mayer, 11 Heisk. 515:
81, 85, 306, 567.
V. MoLane, 57 N. H. 81 : 4^ 38a
394, 419, 429.
Dickman v. Birkhauser, 16 Neb. 686 :
583.
Dickson v. Chorn, 6 la. 19 : 296, 410.
Dieffenderfer v. Fisher, 3 Grant's
Cases, 80: 536,778.
Diehl V. Holben, 39 Pa. St 313 : 778,
847.
Dikeman v. Arnold, 71 Mich. 656:
35a
Dilger v. Palmer, 60 la. 117: 715.
Dilla V. Bohall, 53 Cal. 709 : 942.
Dillinger's Appeal, 35 Pa. St 357:
789.
Dillingham v. Fisher, 5 Wis. 475 : 950.
Dillman v. Will Ca^Bank, 36 lU. App.
272 : 618, 730, 758.
Dillon V. Byrne, 5 CaL 455 : 346, 404,
717, 912.
V. Kauff man, 58 Tex. 696 : 840.
Dingman v. Raymond, 37 Minn. 507 :
80a
Dipert v. Jones (Ind.), 30 N. E. 419 :
86a
Discus V. Hall, 88 Ala. 159: 65, 158,
270.
Dismuke v. Eady, 80 Ga. 289 : 98.
Ditson V. Ditson (la.), 53 N. W. 203 :
574, 614.
Doane v. Doane, 46 Vt 485 : 117, 119,
215, 459, 617, 626.
Dobbins v. First N. Bank, 112 IlL 566 :
21.
V. Commissionere, 16 Pet 435 : 18.
Dobbins' Distillery, 96 U. S. 395 : 314.
Dobkins v. Kuykendall (Tex.), 16 a
W. 743 : 190.
Dobson V. Butler, 17 Mo. 87 : 96.
Dodd V. Thompson, 63 Ga. 893 : 442,
814
TABLE OF CASES.
xxxvu
Dodds V. Dodds, 36 la. 371 : 590, 591,
623, 636.
Dodge V. Knight (Tex.), 16 S. W.
626 : 794, 867, 883.
Dodson's Appeal. 35 Pa. St 234 : 331,
668.
Doherty v. Ramsey, 1 Ind. App. 530 :
867.
Dolan V. Dolan, 91 Ala. 153: 686,
627.
Dollman v. Harris, 5 Kas. 597 : 378,
886, 390.
Donaldson v. Banta (Ind.), 29 N. E.
362 : 10, 323, 759.
V. Lamprey, 29 Minn. 18 : 181,
565, 570.
V. Voltz, 19 W. Va 156 : 103.
Donmeyer v. Donmeyer, 43 Kas.
444: 787,806.
Donuer v. Redenbaugh, 61 la. 369 :
395, 437.
V. Smith, 34 Cal. 1U-. 607.
Dooley v. Villalonga, 61 Ala. 139 :
430, 579.
Dopp V. Albee, 17 Wis. 590 : 41.
Dorn V. Dunham, 34 Tex. 366 : 135.
V. Howe, 53 CaL 630: 177, 335.
Dorrell v. Hannah, 80 Ind. 497 : 332,
759.
Dorrington v. Myers, 11 Neb. -388:
19, 20, 396.
Dorris v. Erwin, 101 Pa. St. 239 : 45.
Dorsey v. McFarland, 7 Cal. 343 : 385.
Dortch V. Benton, 98 N. C. 190 : 533.
Dossey v. Pitman, 81 Ala. 381: 30,
696.
Douch V. Rahner, 61 Ind. 64: 853,
854, 863, 890, 919.
Doughty V. Sheriff, 27 La. Ann. 355 :
170, 173.
Douglas V. Boylston, 69 Ga. 186:
850.
Douglass V. Craig, 13 S. C. 371 : 379,
280.
V. Freeholders, 38 N. J. L. 314 :
24,25.
V.Gregg, 7 jBax. 384: 281.
Douthett V. Kettle, 104 111. 356 : 339.
V. Winter, 108 IlL po : 339.
Dove V. Nunan, 63 Cal. 399 : 807. 811,
834
Dow V. Cheney, 103 Mass. 181 : 543.
V. Smith, 7 Vt 465 : 809, 810, 859.
Downing v. Blair, 75 Ala. 316 : 428.
V. Ruger, 21 Wend. 178 : 41.
Downs V. D^wns, 17 Ind. 95 : 788.
Doyle V. Coburn, 6 Allen, 71 : 85, 94,
258, 384, 560, 580. 581.
Drake v. Kinsell, 88 Mich. 233, 237 :
493.
V. Lake Shore, etc. R. Co., 69
Mich. 168, 179 : 893, 897.
V. Moore, 66 la. 58 : 144.
V. Painter, 77 la. 731 : 415.
Dreutzer v. Bellj 11 Wis. 114: 516,
539.
Drew V. Clark, Cooke (Tenn.), 374 :
391.
Driggs V. Norwood, 50 Ark. 43 : 518.
Drinkwater v. Moreman, 61 Ga. 395 :
19.
Drucker v. Rosenstein, 19 Fla. 191,
199 : 42, 186, 195.
Drury v. Bachelder, 11 Gray, 314:
580.
Drye v. Cook, 14 Bush, 459 : 433.
Dubois V. Cassidy, 75 N. Y. 398 : 886.
Dudley v. Shaw (Kas.), 24 P. 1114: 17,
374
Duff V. Duff, 71 Cal. 513 : 164
V. Wells, 7 Heisk. 17 : 833.
Duffy V. Willis, 99 Mo. 133 : 558.
Dugger V. Wright, 51 Ark. 335 : 733.
Duke V. Reed, 64 Tex. 705 : 67, 84, 88,
96, 459.
Dulanty v. Pynchon, 6 Allen, 510:
258, 562.
Dull V. Merrill, 69 Mich. 49 : 395, 396.
Dufnbould v. Rowley, 113 Ina 353 :
831.
Dunbar v. Mitchell, 13 Mass. 373 : 358,
393.
Duncan v. Alexander (Tex.), 18 S. W.
817 : 253.
V. Barnett, 11 S. C. 333 : 157, 84a
V. Eastin, 30 La. Ann. 1130: 145.
V. Frank, 8 Mo. App. 286 : 878,
933.
XXXVIU
TABLE OF OASES.
Duncan v. Louisville, 13 Bush, 378 :
552.
V. Moore, 67 Miss. 136 : 377, 880.
V. Spear, 11 Wend. 54:858.
V. Sylvester, 34 Me. 483 : 135.
Dunham v. Dunham, 138 Mass. 34 :
584, 690.
Dunkerv. Chedio, 4 Nev. 823: 371,
377, 384, 550.
Dunlap V. Edgerton, 30 Vt. 234 : 793.
V. Newman, 47 Ala. 439 : 646.
Dunlap, Ex parte, 71 Ala. 93: 33.
Dunn V. Buckley, 56 Wis. 193 : 30,
377, 410.
V. Tozer, 10 Cal. 171 : 573, 583,
685.
Dunton v. Woodbury, 34 la. 74 : 563.
Durant v. Davis, 10 Heisk. 533 : 343.
Durham v. Bostick, 73 N. C. 356 ; 333,
357, 500, 739.
Durland v. Seller, 37 Neb. 83 : 602.
Durner v. Kingsbury, 33 Mo. App.
519: 765.
Duval V. Rollins, 71 N. C. 221 : 514,
532, 855, 918.
Dwinell v. Edwards, 23 O. St. 603 :
131, 398.
Dye V. Cook, 88 Tenn. 275: 101, 281.
y. Mann, 10 Mich. 391 : 353, 406,
430, 473, 546, 618.
Dykes v. O'Connor, 18 S. W. 490:
586, 692.
Dyson v. Sheley, 11 Mich. 537 : 148,
, 184, 196.
E.
Earl V. Camp, 16 Wend. 563, 571 : 858.
Earle v. Bickford, 6 Allen, 549 : 948.
V. De Witt, 6 Allen, 530 :" 948.
V. Earle, 9 Tex. 630 : 67, 88, 96,
459, 568, 581.
V. Hale, 81 Ark. 470 : 953.
V. Hardie, 80 N. C. 177: 678, 679,
767.
Early v. Wilson (Neb.), 48 N. W.
148: 604.
Eastman v. Caswell, 8 How. Pr. 75 :
805, 811.
Eaton V. Bobbins, 39 Minn. 82'}' : 263,
'457.
V. Ryan, 5 Neb. 47 : 396, 743.
Baton's Appeal, '83 Pa. St. 153: 339.
Eaves v. Estes, 10 Kas. 314: 364, 787.
Eberhart's Appeal, 39 Pa St 512:
783.
Eberling v. Verein, 73 Tex. 389 : 388.
Ebert V. Gerding, 116 111. 216 : 404.
Eby V. Foster, 61 Cal. 387 : 274.
Eckert v. McKee, 9 Bush, 355: 841.
Eckhardt v. Schleoht, 29 Tex. 130:
362.
Eckman v. Scott (Neb.), 52 N. W.
833: 563.
Eddins v. Buck, 28 Ark. 507 : 397. •
Eddy V. O'Hara, 133 Mass. 56 : 834.
Edgcomb v. His Creditors, 19 Nev.
149: 805,810,811.
Edgell v. Hagens, 53 la. 233: 433.
V. Lowell, 4 Vt. 405 : 434.
Edmondson v. Blessing, 43 Tex. 596 :
148, 378.
V. Hyde, 2 Saw. 318 : 418.
V. Meacham, 50 Miss. 34 : 130, 516,
535.
Edson V. Trask, 22 Vt. 18 : 435, 443.
Edwards v. Edwards, 14 S. C. 11:
356, 912.
V. Fry, 9 Kas. 434: 181, 194, 200,
201, 294, 571.
V. Kearzy, 96 U. S. 595: 11, 41,
278, 678.
V. Mahon, 5 Phila. 581 : 323.'
V. McGee, 27 Miss. 92: 789.
V. Shoeneman, 104 111. 278: 376.
V. Thompson, 85 Tenn. 721 : 629.
Edwards' Lessee v. Darby, 13 Wheat
206: 210, 263.
Effinger v. Gates, 61 Tex. 590 : 185.
Egbert v. Egbert (la.), 53 N. W. 478:
543, 630.
Eggers V. Redwood, 50 la. 289 : 414,
737.
Eggleston v. Eggleston, 72 111. 24:
605, 626.
Ehle V. Deitz, 33 111. App. 547 : 848.
Eisenstadt t. Cramer, 55 la. 753 : 47,
433, 431.
TABLE OF CASES.
XXXIX
Elder v. Williams, 16 Kev. 416 : 805,
807, 853, 917, 918.
Eldridge v. Pierce, 90 111. 474: 213,
365, 366, 409, 495, 579.
Eli V. Gridley, 37 la. 876 : 430.
Elias V. Verdugo, 37 Cal. 418: 136,
140, 905.
EUerman v. Wurz (Tex.), 14 S. W.
333 : 363, 503, 537.
ElUot V. Elliot, 137 Mass. 116 : 616.
Elliott y. Mackorell, 19 S. C. 339 : 368,
657, 758.
V. Sleeper, 3 N. H, 535 : 555.
V. Whitmore, 5 Mich. 533, 586:
853.
Ellis V. Barnett, 65 Ga. 350 : 878.
V. Davis (Ky.), 14 S. W. 74: 83,
87,593.
V. "Welch, 6 Mass. 351 : 115.
V. White, 47 Cal. 73 : 80.
Ellison V. Halleck, 6 Cal. 893 : 637.
Ellsworth V. Savre, 67 la. 449 : 866.
Ellsworth, etc. E. Co. v. Gates, 41 Kas.
574: 945.
Elmore v. Elmore, 10 Cal. 326 : 211.
Elsberry v. Boykin, 65 Ala. 340 : 385,
435.
Elston v. Eobinson, 33 la. 208 : 179,
193, 303, 383, 384, 304, 437.
EJtsroth V. Webster, 15 Ind. 31 : 773.
Elwell V. Hitchcock, 41 Kas. 130 : 374
Ely V. Eastwood, 36 111. 108 : 15, 41,
394, 373, 431.
Emerson v. Sansome, 41 CaL 552:
140, 933, 933.
y. Smith, 53 Pa. St 90 : 536, 919.
Emmett v. Emmett, 14 Lea, 369 : 582.
Empey y. Plugert, 64 Wis. 603:. 937,
941.
Emporia Ass'n v. Watson (Kas.), 25
Paa586: 194,436.
EmsUe y. Young, 24 Kas. 783 : 144.
Engel y. Soheuerman, 40 Ga. 306:
889, 890.
Engelking y. "Von Wamel, 36 Tex.
469: 36.
England y. Clark, 4 Scam. 486 : 933.
Englebrecht v. Shade, 47 Cal. 638 :
115, 148, 185, 311, 332.
Englehardt v. Yung's Heirs, 76 Ala.
534: 195.
English y. Register, 7 Ga. 391 : 111.
Enochs y. Wilson, 11 Lea, 338 : 548.
Enzor y. Hurt, 76 Ala. 595 : 828, 839.
Epps V. Epps, 17, 111. App. 196 : 634.
Equitable Ins. Co. v. Gleason, 63 la.
277: 716.
Erb V. Cole, 31 Ark. 557 : 530, 865,
931.
Ericsson y. Brown, 38 Barb. 390 : 824
Eslaya v. Lepre,tre, 31 Ala. 504: 696.
Estate of Ackerman, 80 CaL 309 : 599.
Burdick, 76 Cal. 639 : 598.'
Burns, 54 Cal. 333 : 677.
Burton, 63 Cal. 36 : 600.
Busse, 35 Cal. 310 : 31, 272, 493,
606.
Crogan, 93 Cal. 370 : 598, 601.
Crowey, 71 Cal. 300: 177.
Delaney, '87 Cal. 176: 185, 311,
332, 601, 626, 671.
Gilmore, 81 CaL 240 : 600.
Hardwick, 59 CaL 293 : 600.
Headen, 53 Cal. 395: 599, 601,
708.
James, 33 CaL 417 : 459, 603, 657.
Moore, 57 Cal. 437 : 607, 633.
Orr, 29 CaL 103 : 31, 627.
Phelan, 16 Wis. 76: 41.
Eeed, 38 Cal. 410 : 164 170.
Romeo, 75 Cal. 379 : 644.
Taylor, 9 Pa. Co. Ct. 393 : 916.
Tompkins, 13 CaL 114 : 459y 608,
713.
Walkerly, 81 Cal. 579 : 600.
Walley, 11 Ney. 260 : 77, 170, 174
238, 641.
Wixom, 35 Cal. 320 : 606.
Etchebome y. Auzerais, 45 Cal. 131 :
683.
Etna Fire Ins. Co. y. Tyler, 16 Wend.
386: 609.
Etna Life Ins. Co. y. Franks, 53 la.
618: 433.
Eubank y. Landram, 59 Tex. 347:
592, 600.
Euper y. Alkire, 37 Ark. 383: 568,
865.
TABLE OF OASES.
Eustache v. Rodaquest, 11 Bush, 43 :
593, 626.
Evans v. Bryan, 95 N. C. 174 : 905.
V. Evans, 13 Bush, 589 : 6, 269,
490.
y. Grand Rapids,R Co., 68 Mich.
602 : 2, 220, 386. 701.
V. Harvester Works, 63 la. 204 :
836.
V. Montgomery, 4 Watts & S.
(Pa.) 218: 677.
V. Womack, 48 Tex. 233 : 185.
Eve V. Cross, 76 Ga. 693 : 649.
Eveleth v. Crouch, 15 Mass. 307 : 392.
Everett v. Herrin, 46 Me. 357 : 806.
Ex parte Barnes, 84 Ala. 540 : 673,
816, 866, 914.
-Brien, 3 Tenn. Ch. 33 : 7, 80.
Carraway, 38 S. C. 233 : 136, 403.
Ellis, 20 S. C. 344: 157,670.
Hewett, 5 S. C. 409 : 379.
Hopkins, 104 Ind. 157 : 907.
Kurz, 24 S. C. 468 : 403.
Lewie, 17 S. C. 153 : 649, 652.
Macay, 84 N. C. 63 : 330.
Pearson, 76 Ala. 531 : 790.
Ray, 30 S. C. 340 : 268, 657, 705.
Reavis, 50 Ala.310: 789.
Redd, 73 Ala. 548 : 848.
Sti-obel, 3 a C. 311 : 368, 644.
Young, 29 S. C. 298 : 279, 280.
Eylar v. Eylar, 60 Tex. 315 : 340, 394.
Eyster v. Hatheway 50 III 521 : 337,
. 339, 345, 346, 349.
F.
Fagan v. McWhorter, 71 Tex 567:
597,
Fairbairn v. Middlemiss, 47 Mich.
373: 119.
Fairbank v. Cudworth, 33 Wis. 358 :
403.
Faircloth v. pt. Johns, 44 Ga 603:
76.
Faivre v. Daley, 93 Cal. 664: 579, 741.
Falkner v. Folsom, 6 CaL 413 : 627.
Fallon V. Butler, 21 Cal. 30 : 637.
Falls V. Crawford, 76 Ga. 35 : 703.
Fanning v. Nat Bank, 76 111. 53 : 835,
835, 880.
Farlan v. Sook, 36 Kas. 397: 181.
Farley v. Hopkins, 79 CaL 203 : 64,
753.
V. Riordon, 72 Ala. 138 : 665, 674,
703.
V. Whitehead, 63 Ala. 395 : 310,
223, 416.
Farmer v. Simpson, 6 Tex. 310 : 355^
V. Taylor, 56 Ga. 559 : 550.
V. Turner, 64 la. 690 : 841.
V. Word, 72 Ga 16 : 857.
Farmers' Bank v. Franklin, 1 La
Ann. 393: 144.
Farnan v. Borders, 119 111. 228: 586.
Farner v. Turner, 1 la. 63: 803, 811.
Farnsworth v. Wood, 91 N. Y. 308 :
836.
Farr v. Reilly, 58 la 399 : 156.
V. Putnam, 60 Vt 54 : 633.
Farra v. Quigley, 57 Mo. 384: 170,
176, 285, 291.
Farrell v. Higley, Hill & D. 87: 817.
Farris v. State, 33 Ark. 70 : 864.
Farrow^ v. Fairow, 13 Lea, 120 : 268,
650.
Farwell Brick Co. v. McKenna, 86
Mich. 283 : 67, 583.
Faurote v. Carr, 108 Ind. 126 : 840.
Faut V. Talbot, 15 Ky. 712 : 192.
Fauver v. Fleenor, 13 Lea, 624 : 410.
Falvers v. Glass, 33 Ala 624 : 804, 810.
Fay V. Smith, 35 Vt. 610 : 933.
Fayette County v. Hancock (la.), 49
N. W. 1040 : 844.
Fearn v. Word, 65 Ala 33 : 19.
Fears v. Thompson, 82 Ala. 296: 556,
879.
Fegavary v. Broesoh, 52 la. 88 : 873.
Feldes v. Duncan, 30 IlL App. ^69,
474 : 29, 112, 562.
Felker v. Crane, 70 Ga 484 : 550.
Felner v. Bumgarner (Ark.), 17 S. W.
709 : 699, 756.
Fellows V. Dow, 58 N. H. 31 : 117,
119.
V. Lewis, 65 Ala 343, 356-7 : 82,
471, 516, 517, 665.
TABLE OF CASES.
xU
Fellows V. Smith, 131 Mass. 363: 900.
Fenwick v. Wheatley, 28 Mo. App.
641 : 669, 670.
Ferguson y. Hanauer (Ark.), 19 S. W.
749: 698.
T. Kumler, 27 Minn. 156: 408,
529, 535, 676.
V, Mason, 60 Wis. 377 : 383, 474,
475.
V. Reed, 45 Tex. 584 : 138.
Ferrer v. Ins. Co., 47 Cal. 429 : 272.
Fessler v. Haas, 19 Kas. 816 : 560.
Fick V. Mulholland, 48 Wis. 413 : 815.
Field V. Holland, 6 Cr. 8 : 351.
Fielder v. Jessup, 24 Mo. App. 91 :
889.
Fievel v. Zuber, 67 Tex. 275 : 340.
Fight V. Holt, 80 111. 84 : 605, 636, 657.
Finch V. Beal, 68 Ga. 594 : 442.
V. Houghton, 19 Wis. 163 : 720.
Fingurhuth v. Lachman, 37 Mo. App.
489: 906.
Fink \. O'Neil, 106 U. S. 272 : 327.
Finlen v. Howard, 126 IIL 259 : 764,
825.
Finley v. Dietrick, 13 la. 516 : 155,
, 325, 226, 237.
V. McConnell, 60 111. 259 : 366,
583. ,
V. Saunders, 98 N. C. 463 : 560.
f. Sly, 44 Ind. 366 : 775, 865.
Knlon V. Clark, 118 111. 33: 555.
Finnegan v. Prindeville, 83 Mo. 517 :
301, 388, 291.
Finnin v. Malloy, 33 N. Y. Superior,
883 : 810, 847, 859.
Firmstone v. Mack, 49 Pa. St 387 :
542.
First Nat Bank v. Ashmead, 23 Fla.
379: 421.
V. Baker, 57 la. 197 : 438.
V. Briggs, 33 III. App. 328: 380,
551.
V. Bruce (Cal), 39 P. 586 : 164, 191.
V. Bryan, 63 la. 42 : 433.
V. De la Guerra, 61 Cal. 109 : 13,
140, 311. •
V. Hackett, 61 Wis. 885, 348 :
908.
First Nat. Bank v. Hollingsworth,
78 la. 575 : 6, 11, 179, 219, 283,
351.
V. Jacobs, 50 Mich. 340: 178, 649,
685.
V. Jaggers, 31 Md. 51 : 900.
Y. Massingill, 80 Ga. 388 : 85, 147,
148.
V. Thompson, 73 la. 417 : 438.
V. Warner, 33 Kas. 537 : 187.
V. Weokler, 52 Md. 30, 43 : 879.
Fish V. Hunt, 81 Ky. 584 : ,366.
V. Sawyer, 11 Ct 545 : 474
T. Street, 37 Kas. 370 : 877.
Fishback v. Lane, 36 111. 437 : .582.
Fisher v. Cornell, 70 111. 316 : 180, 57a
V. Hall, 41 N. Y. 416 : 439.
V. Meister, 24 Mich. 447 : 44, Z5Z,
419, 472.
Fitzell V. Leaky, 72 Cal. 477: 511.
Fitzgerald v. Fernandez, 71 CaL 504 :
140.
V. Rees, 67 Miss. 743, 747: 25, 323,
227.
Fitzpatarick v. Gebhart, 7 Kas. 85 : 24
Flanagan v. Cushman, 48 Tex. 244 :
333, 340, 346.
V. Meyer. 41 Ala. 135 : 426.
Flanders v. Wells, 61 Ga. 195 : 544,
548, 873, 886.
Flatt V. Stadler, 16 Lea, 371 : 137, 267,
368, 560.
Fleetwood v. Lord, 87 Ga. 593 : n384,
649.
Flege V. Garvey, 47 Cal. 375 : 884,485,
681.
Fleming v. Henderson, 183 Ind. 334 :
849.
T. Graham, 110 N. C. 374: 708.
Flemister v. Phillips, 65 Ga. 676 : 548.
Fletcher v. State Bank, 37 N. H. 891 :
861.
Flint etc. Steamboat Co. v. Foster, 5
Ga. 194: 38.
Flora T. Eobbins, 98 N. C. 38: 667.
Floyd V. Mosier, 1 la 513 : 84, 94, 590,
622.
Fogg V. Fogg, 40 N. H. 283 : 183, 215,
668, 715,
xlii
TABLE OF OASES.
Fogg V. Littlefield, 68 Me. 53: 885.
Foley V. Cooper, 43 la. 376 : 395, 410,
737.
Folschow V. Werner, 51 Wis. 87 : 841.
Folsom V. Carli, 5 Minn. 337: 396,
566.
Foot V. Burch, 6 Barb. 60 : 34
Foote V. People, 18 111. App. 94: 858.
Ford V. Cobb, 30 N. Y. 344: 364, 787.
V. Dyer, 36 Miss. 343 : 864.
V. Ford, 70 Wis. 53 : 3.
V. Johnson, 34 Barb. 364 : 801.
V. Williams, 34 N. Y. 359 : 863.
Fordyce v. Hicks, 80 la. 273 : 140.
Fore V. Fore's Est. (N. D.), 50 N. W.
713: 621, 654, 789.
Foreman v. Meroney, 63 Tex. 733 : 89,
307, 573, 624.
Forgy V. Merryman, 14 Neb. 513 : 951.
Forsyth v. Bower, 54 Cal. 639 : 808.
, V. Freer, 63 Ala. 443 : 438.
Fort V. Powell, 59 Tex. 331 : 190.
Fortman v. Goepper, 14 O. St 558 :
364, 787.
Fortune v. Watkins, 94 N. C. 304 : 79.
Foss V. Foss, 58 N. H. 283: 189.
V. Straehn, 43 N. H. 40 : 113, 261,
384, 393, 593.
Fossett V. McMahan, 74 Tex 546 : 637.
Foster v. Byrne, 76 la. 895 : 838.
V. Dudley, 30 N. H.'463: 914.
V. Elliott, 33 la. 316 : 631.
V. Foster, 56 Vt 540 : 519, 711.
V. Leland, 141 Mass. 187 : 67, 260,
585, 623.
V. McGregor, 11 Vt. 595 : 516.
V. Milliner, 50 Barb. 393 : 747.
Fountain v. Hendley, 83 Ga 616 : 76,
77, 693.
Fournier v. Chisholm, 45 Mich. 417 :
386.
Fowler v. Gilmore, 30 Tex 433 : 788,
800.
V. Hunt, 48 Wis. 345:- 815.
V.Wood, 31 S. C. 398: 11, 379,
280.
Fox V. Brooks, 88 N. C. 234: 333,
335.
Fraley v. Kelly. 88 N. C. 337 : 676.
Franklin v. Coffee, 18 Tex. 413: 185,
191, 196, 399.
V. Ins. Co., 43 Mo. 495 : 360.
Franks v. Lucas, 14 Bush, 395 : 117.
Frantz v. Dobson, 64 Miss. 631 : 803.
Frazier v. Barnum, 19 N. J. Eq. 81^ :
795.
V. Syas, 10 Neb. 115: 774, 810,
918.
Freehling v. Bresnahan, 61 Mich. 540 :
774, 901.
Freeman v. Caldwell, 10 Watts, 9 :
938.
V. Carpenter, 10 Vt. 433 : 794, 809,
810.
V. Smith, 30 Pa. St. 264: 919.
V. Stewart, 5 Biss. 19: 180,^65.
French v. Fuller, 33 Pick. 104 : 359.
T. Fyan, 93 U. S. 169 : 941.
V. Stratton, 79 Mo. 560 : 547, 603.
Freund v. McCall, 73 Mo. 343 : 4M.
547, 653.
Frick Co. v. Ketels, 43 Kas. 537 : 410.
Frieberg v. Walzerin (Tex.), 30 Sa
60 : 741.
Friedlander v. Mahoney, 31 la. 315 :
435, 443, 785.
Friedman v. Sullivan, 48 Ark. 218 :
879.
Friend v. Garcelon. 77 Me. 36 : 840.
Frink v. Alsip, 49 Cal. 103 : 131.
Frisbie v. Whitney, 9 WaU. 198 : 135,
931, 933, 948.
Frits V. Frits, 33 Ark. 837 : 339, 400,
533.
Fromans v. Mahlman (CaL), 37 P.
1095: 165.
Frost V. Naylor, 68 N. C. 325: 828,
835.
V. Rainbow (la.), 53 N. W. 198 :
755.
V. Shaw, 3 O. St 270 : 543, 730,
781, 869, 873, 874.
Fry V. Canfield, 4 Vt 9 : 859.
Fuller V. Hunt 48 la. 163 : 433.
FuUerton v. Doyle, 18 Tex. 14 : 688.
Funk V. Israel, 5 la. 450 : 860.
Furguson V. Kumber, 35 Minn. 183:
877.
TABLE OF CASES.
xliii
Furman v. DeweH, 35 la. 170: 285,
438.
Furrow v. Athey, 21 Neb. 671 : 897.
Fusilier v. Buokner, 28 La. Ann. 594 :
64.
Fyfee v. Beers, 18 la. 11 : 118, 562.
G.
GafEord v. Stearns, 51 Ala. 434: 579.
Gage V. Neblett, 57 Tex. 874: 301,
V. Wheeler, 129 111. 197 : 397.
Gagliardp v. Dumont, 54 Cal. 498:
121, 384, 599, 708.
Gaine v. Casey, 10 Bush, 92 : 550.
Gaines v. Exchange Bank, 64 Tex.
18 : 157, 533.
V. Molen, 41 Ark. 233: 949.
' V. Thompson, 7 Wall. 347 : 941.
Gainus v. Cannon, 43 Ark. 503 : 188,
650.
Galliger v. Payne, 34 La. Ann. 1057 :
7, 89, 58, 59, 94, 96, 178, 580.
Galligher v. Smiley, 28 Neb. 194: 177.
Galveston v. Heard, 54 Tex. 420 : 829.
Gambette v. Brock, 41 Cal. 83 : 126,
165, 170, 177, 580.
Gamble v. Central R Co., 80 Ga 595 :
869.
V. Reynolds, 42 Ala. 236 : 862.
V. Rhyne, 80 N. C. 183: 678, 767.
Gangwere's Appeal, 36 Pa. St. 466:
873.
Ganong V. Green, 71 Mich. 1 : 861, 874.
Ganson v. Baldwin (Mich.), 53 N. W.
171.
Gant V. Henly, 64 Mo. 163 : 457.
Gapen v. Stephenson, 18 Kas. 140 : 201.
Garaty v. Du Bose, 5 S. C. 498 : 40,
58, 59, 80, 118.
Gardner v. Baker, 25 la. 343 : 558.
V. Douglass, 64 Tex. 78 : 196, 899.
V. Eberhart, 83 111. 316 : 159, 180.
V. King, 37 Kas. 671 : 871, 874,
V. Moore, 75 Ala. 394: 421, 427.
Garibaldi v. Jones, 48 Ark. 281 : 372,
298, 493, 578, 633, 650.
Garliok v. Strong, 3 Paige (N. Y.),
453: 397.
Garlock v. Baker, 46 la. 334: 395,
427.
Garner v. Bond, 61 Ala. 84 : 471.
V. Leverett, 82 Ala 410 : ,357.
Garret v. Farmer, 21 Mo. 160 : 780.
Garrett v. Beaumont, 24 Miss. 337 :
767.
V. Cheshire, 69 N. C. 396: 280.
V. Jones (Ala), 10 So. 703 : 152,
574.
V. Wade, 46 Ark. 493 : 871.
V. Weaver, 70 Tex. 463 : 181.
Garrison v. Grant, 57 Tex. 602: 147,
148.
Gasaway v. Woods, 9 Bush, 72 : 592.
Gass V. Van Wagner, 63 Mich. 610 :
782.
Gassoway v. White, 70 Tex. 475 : 252.
Gast V. Board of Assessors, 43 La
Ann. 1105: 766.
Gaster v. Hardie, 75 N. C. 460 : 918.
Gates V. Hester, 81 Ala 359 : 427, 579.
v. Salmon, 35 Gal. 576 : 32, 135.
V. Steele, 48 Ark. 539 : 66, 563,
572, 581, 633.
Gatewood t. Bryan, 7 Bush, 509 : 365.
Gatton V. Tolley, 23 Kas. 678 : 650.
Gay V. Halton, 75 Tex. 203 : 7, 80.
V. Hanks, 81 Ky. 552 : 593, 645,
V. McGuffin, 9 Tex. 501 : 185.
V. South worth, 113 Mass. 333:
883.
Gaylord v. Imhoff, 26 O. St. 317 : 143,
904.
V. Loughbiidge, 50 Tex. 573 : 362.
Gazley v. Price, 16 Johns. 267 : 607.
Gee V. Moore, 14 Cal. 472 : 485, 600,
606.
Geiges v. Greiner, 68 Mich. 153: 148,
226.
Geney v. Maynard, 44 Mich. 579 : 148,
184, 226.
Gentry v. Purcell, 84 Ind. 83: 323,
759, 760.
George v. Bassett, 54 Vt 217 : 309.
V. Fellows, 60 N. H. 398 : 809, 879.
Gerding v. Beall, 63 Ga 561 : 20, 76,
227, 239, 640.
Gerdner v. Douglass, 64 Tex. 79 : 196,
xliv
TABLK OF OASES.
German Ins. Co. v. Nichols, 41 Kas.
133:374
V. York (Kas.), 39 P. 586 : 441.
Gerson v. Gayle, 34 La Ann. 337:
170, 172.
Geskell v. Case, 18 la. 147: 788.
• Getchell v. Chase, 37 N. H. 106 : 914.
Getzler v. Saroni, 18 111. 511 : 516.
Gheen v. Summey, 80 N. C. 187 : 103,
480, 679.
Gibb V. Rose, 40 Md. 387 : 427.
Gibbs V. Patten, 2 Lea, 180 : 395, 529,
607.
Giblin v. Jordan, 6 Cal. 417: 140,
167.
Gibson v. Chouteau, 13 WalL 93 : 935,
944
V. Gibson, 15 Mass. 106 : 545.
V. Marquis, 39 Ala. 668 : 45.
V. Mundell, 29 O. St. 533: 433.
Giddens v. Williamson, 65 Ala. 439 :
19, 310, 667.
Gideon v. Struve, 78 Ky. 134: 667.
Gilbert v. Cowan, 3 Lea, 203 : 368.
V. Kennedy, 32 Mich. 5 : 631.
V. Neely, 35 Ark. 24: 327.
, Gile V. Hallock, 33 Wia 523 : 926.
Gill V. Edwards, 87 N. C. 77 : 10, 18,
324, 325.
V. Latimore, 9 Lea, 381 : 137.
Gillan v. Dixon, 65 Pa. St. 395 : 142.
Gilleland v. Ehoads, 34 Pa. St 187 :
536, 919.
Gilliam v. McCormack, 85 Tenn. 609 :
410.
V. Null, 58 Tex. 305: 251, 595.
Gillum V. Collier, 53 Tex. 593: 346,
354
Gilman v. Williams, 7 Wis. 336 : 903.
Gilmer v. O'Neal, 33 La. Ann. 980 :
39, 170, 172.
Gilmore v. Bright, 101 N. 0. 382 : 65,
79, 493.
Gilpelke v. Dubuque, 1 Wall. 175 : 52.
Gilson V. Parkhurst, 53 Vt 384: 743.
Gilworth v. Cody, 21 Kas. 702 : 181,
194, 200, 301, 294
Gimble v. Goode, 13 La. Ann. 352 :
694
Gimmy v. Doane, 23 CaL 638 : 70.
Giovanni v. First N. Bank, 55 Ala.
305: 905.
Girzi V. Carey, 53 Mich. 447 : 352.
Givens v. Dewey, 47 la. 414 : 7, 179,
282, 576.
V. Hudson, 64 Tex. 471 : 83, 96,
659.
Glaze V. Watson, 55 Tex. 563 : 346.
Gleason v. Spray, 81 CaL 317: 384^
485, 559.
Glendon v. Harrington, 38 Mo. App.
476: 782.
Glover v. Glover, 18 Ala. 367 : 564
V. Hill, 57 Miss. 240 : 461, 61&
v. Stamps, 73 Ga. 309 : 649.
Godfrey v. Thornton, 46 Wis. 677:
478, 550.
Goetter v. Pickett, 61 Ala. 387 : 557.
Goff v. Jones, 70 Tex 573 : 388.
Golden v. Conner, 89 Ala. 598 : 557,
884
Goldman v. Clark, 1 Nev. 516: 212,
335, 730.
Goltra V. Green, 98 111. 317 : 557.
Good V. Coombs, 28 Tex. 35 : 135.
v. Fogg, 61 111. 449 : 764, 783.
Goodall v; Boardman, 53 Vt 92 : 146,
748.
Goodenough v. Fellows, 53 Vt 108 :
633.
Goodloe V. Dean, 81 Ala. 479 : 183.
Goodrich v. Brown, 63 la. 347 : 156,
374, 380, 385, 438.
Goodwin v. Colo. Mort Co., 110 U. S.
1 : 11, 169, 171.
V. McCabe, 75 Cal. 584 : 933.
Goore v. McDaniel, 1 McC. 480 : 304
Goozen V. Phillips, 49 Mich. 7: 795,
799.
Gordon v. Lowther, 75 N. C. 193:
300.
V. McCurdy, 36 Mo. 304 : 780.
V. Mcllwain, 83 Ala. 347 ; 696.
V. Shields, 7 Kas. 320 : 798.
Gorham v. Daniels, 23 Vt 600 : 631.
V. Summers, 35 Minn. 81 : 365.
Goss V. Cahill, 43 Barb. 310 : 45.
Goudy V. Werhe, 117 Ind. 154 : 906.
TABLE OF CASES.
xlv
Gouhenant v. Cockrell, 30 Tex. 97 :
558, 567, 56.8, 579.
Gove V. Campbell, 63 N. H. 401 : 519,
641.
Governeur v. Elmendorf, 5 John. Ch.
79: 948.
Gowan v. Fountain (Minn.), 53 N. W.
863: 741.
Grace v. Kezar, 86 Ga. 697: 738, 741.
Gragg V. Gragg, 65 Mo. 343 : 457, 617.
Graham v. Crockett, 18 Ind. 119:
330, 850, 890.
V. Culver (Wy.), 39 P. 370 : 316.
V. Hastings, 1 Land Dec. 380 :
940.
V. Stewart, 68 Cal. 374: 81.
Grand Rapids, etc. Co. v. Weiden, 69
Mioh. 593: 169.
Grant v. Cosby, 51 Ga. 460 : 379.
V.Edwards, 86 N. C. 513: 103,
678.
V. Oliver, 91 Cal. 158: 953.
V. Parsons, 67 la. 31 : 716.
Grantham v. Kennedy, 91 N. C. 148 :
53.
Graves v. Baker, 68 Cal. 183 : 131, 165.
V. Campbell, 74 Tex. 576 : 561,
563.
V. Cochran, 68 Mo. 76: 705.
V. Hines, 108 N. C. 363 : 646.
V. Hinkle, 130 Ind. 157 : 866.
Gray v. Baird, 4 Lea, 313 : 343, 668.
V. Crockett, 30 Kas. 138: 337.
V. Gates, 37 Wis. 614 : 691.
V. Stockton, 8 Minn. 473 : 940.
Greely v. Reading, 74 Mo. 309 : 913.
y. Scott, 3 Woods, 657 : 158, 188,
341.
Green v. Blanchar, 40 Cal. 194 : 143.
V. Blunt, 59 la 79 : 866.
V. Cheek, 5 Ind. 105 : 33.
V. Crow, 17 Tex. 180: 603, 631,
658.
V. Farrar, 53 la. 436: 133, 156,
173, 936.
V. Houston, 33 Kas. 35 : 953.
V. Lyndes, 13 Wis. 450 : 688.
V. Marks, 35 111. 304 : 96, 486, 495,
737, 858, 918.
Green v. Pierce, 60 Wis, 373 : 184, 288,
478, 575.
V. Raymond, 58 Tex. 80 : 803.
V. Spann, 35 S. C. 373: 330, 911.
V. United States, 9 Wall. 655 : 13,
837.
V. Van Buskirk, 7 Wall. 139 : 747.
V. Watson, 75 Ga. 473 : 548. '
V. Waller 83 Miss. 650 : 36.
Greene v. Beckwith, 38 Mo. 384 : 561.
V. Green, 11 Pick. 410: 570.
Greenhow v. James, 80 Va. 686 : 84.
Greenleaf v. Sanborn, 44 N. H. 16
875.
Greenman v. Greenman, 107 IlL 404
192.
Greeno v. Barnard, 18 Kas. 518 : 868,
728, 869.
Greenough v. Turner, 77 Mass. 333
44, 433, 545.
Greenway v. Goss, 55 Ga. 588 : 833.
Greenwood v. Maddox, 27 Ark. 655
37, 59, 80, 94, 138, 361.
Gregg V. Bostwick, 38 Cal. 220 : 158,
170, 177, 184, 188, 311, 313,
335, 374.
Gregory v. Ellis, 86 N. C. 579 : 646,
647.
V. Evans, 19 Mo. 361 : 780.
V. Latchem, 53 Ind. 449 : 853.
V. Oats (Ky.), 18 S. W. 331 : 356,
575.
Greig v. Eastin, 30 La. Ann. 1180:
595.
Gi'enada Co. v. Brogden, 113 U. S.
361 : 34.
Gresham v. Johnson, 70 Ga. 631 : 78."
V. Walker, 10 Ala. 370 : 777, 866.
Griffle v. Maxey, 58 Tex. 314: 253,
301, 647.
Griffin v. Griffin, 43 Ga. 533: 456.
V. Johnson, 37 Mich. 93: 430, 437,
587, 633.
V. Maxwell, 38 111. App. 405: 77&
V. McKenzie, 7 Ga. 163 : 767.
V. Nichols, 51 Mich. 579 : 46, 169,
197, 541,
V. Proctor, 14 Bush, 571 : 843, 866,
483.
xlvi
TABLE OF CASKS.
Griffin v. Sheley, 55 la. 513 : 562.
V. Sutherlanii, 14 Barb. 456 : 81,
562, 563, 771, 865.
Griffith V. Bailey, 79 Mo. 472: 561,
877.
V. Langsdale, 53 Ark. 73 : 888.
Grimes v. Bryne, 2 Minn. 89 : 41, 280,
814.
V. Portman, 99 Mo. 229 : 151, 373,
379.
Grinnell v. Railroad Co., 103 U. S.
739: S46.
Griswold v. HuflCaker (Kas.), 28 P.
696: 748.
V. Johnson, 22 Mo. App. 466 : 11,
170, 171, 201, 288.
V. Johnson, 5 Ct. 363 : 135.
Groesbeck v. Groesbeok, 78 Tex. 664 :
■ 581,
Grogan v. San Francisco, 18 Cal. 590 :
768.
V. Thrift, 58 Cal. 378 : 486.
Groover v. Brown, 69 Ga. 60 : 76, 640.
Grosholz V. Newman, 21 Wall. 481 :
189, 192.
Grothaus v. De Lopez, 57 Tex. 670 :
596, 634.
Grower v. Fletcher, ll6 U. S. 380:
949.
Grubb V. Suit, 32 Gratt. 203 : 323.
Grubbs v. Ellison, 23 Ark. 287 : 882.
Gruhn v. Richardson, 128 111. 178:
349, 401.
Grupe V. Byers, 73 Cal. 271 : 70.
Gruwell v. Seybolt, 82 Cal. 7 : 122, 600,
677, 705.
Guinn v. Spurgin, 1 Lea, 328 : 343.
Guiod Y. Guiod, 14 Cal. 506 : 385, 392,
582, 685.
Guise V. State, 41 Ark. 249 : 850.
GuUey v. Cole, 102 N. C. 333 : 44, 673,
676, 677.
Gun V. Wades, 65 Ga. 587 : 525.
Gunn V. Barry, 15 Wall. 610 : 11, 41,
136, 278, 280, 287, 327, 766.
V. Gudehus, 15 B. Mon. 447 : 81,
83, 97, 771.
T. Miller, 43 Ga. 377 : 455.
v. Thornton, 49 Ga. 880 : 279, 294
Gunnison v. Twitchel, 38 N. H. 62 :
261, 384, 417, 702.
Gunter v. Leckey, 30 Ala. 591 : 43.
Guptil V. McFee, 9 Kas. 30: 143, 800,
814, 903.
Guthman v. Guthman, 18 Neb. 98,
106: 642.
Gutterson v. Morse, 58 N. H. 539:
919.
Guy V. Downs, 13 Neb. 533: 573.
Gwynne v. Estes, 14 Lea, 673 : 410,
583.
V. Niswanger, 15 Ohio, 367: 953.
H.
Haas V. Shaw, 91 Ind. 384: 764,883.
Habergham v. Vincent, 3 Vesey, Jr.
204: 434.
Hackley v. Sprague, 10 Wend. 116 :
41.
Hadden v. Collector, 5 Wall. 107 : 35,
33.
Hadley v. Bryars, 58 Ala. 139 : 305,
309.
Hafer v. Hafer, 36 Kas. 534: 613,
656.
Hagar V. Adams, 70 la. 746 : 88a
Hageman t. Salisberry, 74 Pa. St
280: 540.
Hager v. Nixon, 69 N. C. 108 : 493,
640, 653, 655, 657.
Hair v. Hair, 10 Rich. (S. C.) Eq. 163:
570.
V. Wood, 58 Tex. 77 : 597.
Hairston v. Dobbs, 80 Ala. 589 : 697.
V. Hairston, 27 Miss. 704: 570.
Hait V. Houle, 9 Wis. 472 : 478.
Halbe's Estate, 9 Pa. Co. Ct 512:
877.
Hale V. Heaslip,a6 la. 451 : 282, 284,
304.
V. Richards, 80 la. 164 : 502.
Hall V. Fields, 81 Tex. 553 : 458, 459,
598.
V. Fulgham, 86 Tenn. 451 : 548.
V. FuUerton, 69 111. 448 : 387, 582l
V. Hai-ris, 113 111. 410: 649, 915,
917.
TABLE OF CASES.
xlvii
Hall V. Hough, 24 Ind. 273 : 862.
V. Johnson, 64 N. H. 481 : 708.
V. Loomis, 63 Mich. 709 : 352.
V, Mathews, 68 Ga. 490 : 78, 606.
V. Morgan, 79 Mo. 47 : 879.
V. Penney, 11 Wend. 44 : 817.
Hallman v. Hallman, 124 Pa. St. 347 :
693, 875.
Hajsey v. Fairbanks, 4 Mason, 206 :
309.
V. Whitney, 4 Mason, 206 : 418.
Halso V. Seawright, 65 Ala. 431 : 393,
438, 471, 579.
Ham V. Santa Rosa Bank, 62 Cal.
138 : 168, 170, 312, 378.
Hamblin v. Warnecke, 31 Tex. 91 :
492, 637.
Hambrick v. Jones, 64 Minn. 240:
348.
Hamill v. Henry, 69 la. 753: 123.
Hamilton v. Fleming, 26 Neb. 240 :
774, 884, 918.
Y. Fowlkes, 16 Ark. 340 : 952, 953.
V. Rogers, 67 Mich. 135 : 893.
Hammer v. Freese, 7 Harris (Pa.),
355 : 507, 547, 778j 784.
Hammersmith v. Avery, 18 Nev. 335 :
866.
Hammond v. Wells, 45 Mich. 11 : 364.
Hamrick v. People's Bank, 54 Ga.
503 : 337, 347. '
Hanby v. Henritze, 85 Va. 177, 1S5 :
6, 53, 490.
Hanchett v. McQueen, 32 Mich. 22 :
430, 472.
■ Hancock v. Herrick (Arizona), 29 P.
13: 719.
V. Morgan, 17 Tex. 582 : 188, 223,
350.
Hand v. Winn, 52 Miss. 788 : 61, 583.
Handy v. Dobbin, 13 Johns. 220 : 309.
Hanes v. Tiffany, 35 O. St. 549 : 918.
Hanks v. Crosby, 64 Tex. 483 : 653.
Hanlon v. Com'rs, 53 Ind. 133: 37.
Hanlon v. Pollard, 17 Neb. 368 : 194,
201.
Hanna v. Morrow, 48 Ark. 107 : 297.
Hannah v. Hannah (Mo.), 19 S. W.
87 : 656, 714.
Hannahs v. Felt, 15 la. 141 : 294, 304.
Hannon v. Engleman, 49 Wis. 378 :
351.
V. Sommer, 10 Fed. 601 : 385, 469,
478.
Hannum v. Mclnturf, 6 Bax. 335:
281.
Hansford v. Holdam, 14 Bush, 210 :
189, 562, 635.
Hanson v. Edgar, 34 Wis. 653 : 478,
581, 725.
Harbison v. Vaughan, 43 Ark. 589 :
96, 97.
Hardeman v. Downer, 39 Ga. 435 : 41,
280.
Hardie v. Campbell, 63 Tex. 292:
419.
Hardin v. Howze, 18 S. C. 74 : 368.
V. McCord, 73 Ga. 389 : 697.
V. Osborne, 43 Miss. 583 : 143,
653.
V. Wol^, 29 La. Ann. 383: 178,
373, 541, 555.
Harding v. Hendrix, 26 Kas. 583 : 828.
Hardy v. De Leon, 5 Tex. 211 : 185.
V. Lane, 6 Lea, 880 : 317.
V. Sulzbacker, 62 Ala. 44 : 408,
666.
Hargadene v. Whitfield, 71 Tex. 482 :
224, 251, 253, 357.
Harkness v. Burton, 39 la. 101 : 354,
886.
Harlan v. Haines, 135 Pa St. 48 : 866.
Harle v; Richards, 78 Tex. 80: 348.
Harley v. Davis, 16 Minn. 487 : 346.
Harlow v. Thomas, 15 Pick. 68 : 945.
Harmon v. Bynum, 40 Tex. 834 : 645,
650.
V. Wagener, 33 S. C. 488 : 730.
Harpending's Ex'rs v. Wylie, 13
Bush, 158 : 547, 548.
Harper v. Forbes, 15 Cal. 202 : 885,
564, 699.
v. Leal, 10 How. Pr. (N. Y.) 282 :
541.
Harrier v. Fassett, 56 la. 364: 785,
874.
Harriman V. Queen's Ins. Co., 49 Wis.
71 : 180, 510, 575.
xlviii
TABLE OF CASES.
Harrington v. Smith, 14 Colo. 376 :
782, 866.
V. Utterback, 57 Mo. 619: 289,
754
Harris v. Colquit, 44 Ga. 663: 213,
672.
V. Dale, 5 Bush, 61 : 365.
V. Glenn, 56 Ga. 94: 31, 343, 544,
729.
V. Hayues, 80 Mich. 140 : 798.
V. Seinsheimer, 67 Tex. 356: 653.
V. Visscher, 57 Ga. 229 : 143.
Harrison v. Andrews, 18 Kas. 535 :
194.
V. Martin, 7 Mo. 387 : 798.
V. Mitchell, 18 La. Ann. 360 : 144
V. Obertheir, 40 Tex. 385: 303,
704
Harsh v. GrifiEen, 73 la. 608: 123, 432.
Hart V. Evans, 80 Ga. 830 : 96, 98.
V. Hyde, 5 Vt. 828: 794, 859.
V. Leete, 104 Mo. 315 : 141.
V. Lindsey, 17 N. H. 385, 343 : 189.
V. Sanderson's Adm'r, 18 Fla. 103,
115 : 421.
Hartford Co. v. Miller, 41 Ct. 112:
135.
Harthouse v. Bickers, 1 Duer, 606:
810.
Hartley v. Roffe, 13 W. Va. 401 : 103.
Hartman v. Munch, 31 Minn. 107:
118, 263.
V. Schulfcz, 101 III 437: 117, 120,
216, 265, 495, 496.
V. Spiers, 94 N. C. 150 : 667.
V. Thomas, 37 Tex. 90 : 60, 873,
603.
Hartsfield v. Harvoley, 71 Ala. 231 :
654
Hartwell v. McDonald, 69 111. 298 :
130, 265, 266, 267, 487, 495,
730.
Hartzler v. Tootle, 85 Mo. 38: 389,
418, 515.
Harvey v. Ford, 83 Mich. 506 : 906.
V. Harrison, 89 Tenn. 470 : 837.
V. McAdams, 83 Mich. 473: 861.
V. Tyler, 2 Wall. 847 : 40.
V. Wickham, S3 Mo. 113: 387.
Hasenritter v. Hasenritter, 77 Ma
163: 464
Haskinv.Andros,4Vt609: 775,85a
Haskinsv. Bennett, 41 Vt. 698: 847.
Haslamv. Campbell, 60 Ga. 650: 48a
Hastie v. Kelley, 57 Vt. 393 : 187, 215,
880.
Hastings v. Dickinson, 7 Mass. 133 :
545.
V. Myers, 31 Mo. 519 : 464 788»
857.
V. Stevens, 39 N. H. 564: 616.
V. Whitney, 182 U. S. 357: 860,
938, 940, 942.
Haswell v. Parsons, 15 CaJ. 266 : 781,
850, 890, 892.
Hatch's Estate, 63 Vt 300 : 617.
Hatcher v. Crews, 88 Va. 871 : 54,
531.
v. Crews, 78 Va. 460: 55.
Hatchings v. Low, 15 Wall 77: 946.
Hatorff V. Wellford, 37 Gratt 356:
54, 640.
Hawkes v. Hawkes, 46 Ga. 304': 338,
346.
Hawkins v. Pearce, 11 Humph. 44 :
63, 775.
Hawks v. Hawks, 64 Ga. 339: 337,
338.
Ha worth v. Franklin, 74 Mo. 106:
910, 913, 918.
V. Travis, 67 111. 302 : 366, 495.
Hawthorne v. Smith; 8 Nev. 164:
170, 174, 394, 306, 744
Hay V. Baugh, 77 III. 503 : 146.
Hay, Matter of, 1 Copp, 368-4 : 927,
938.
Hayden v. Robinson, 88 Ky. 615: 413,
545, 551.
V. Slaughter, 43 La. Ann. 885 : 9,
. 398.
Haynes v. Hussey, 72 Me. 448 : 823.
V. Meek, 14 la. 820: 583, 718, 719.
V. Young, 36 Me. 557 : 945.
Hays V. Hays, 66 Tex. 606 : 398, 701.
Hayward v. Clark, 50 Vt. 617 : 841.
V. Ormsbee, 11 Wis. 3: 950.
Healy v. Connor, 40 Ark. 352 : 868,
T&BLB OT OASES.
xlix
Heard v. Downer, 47 Ga. 631 : 96, 488,
657.
Heara v. Kennedy, 85 Cal. 55 : 380.
Heath v. Keyes, 35 Wis. 668: 853.
Heathman v. Holmes (Cal.), 29 P. 404 :
188.
Heaton v. Sawyer, 60 Vt 495 : 73, 74,
97.
Hebert v. Mayer, 43 La. Ann. 839:
298.
Heckle V. Grewe, 135 111. 58; 26 111.
App. 339 : 907.
Hector v. Knox, 63 Tex. 613 : 47, 390.
Heidenheimer v. Blumenkron, 56
Tex. 308 : 794.
V. Stuart, 65 Tex. 321 : 394, 398.
Helf enstein v. Cave, 3 la. 287 : 295,
674, 701, 730.
Helm V. Helm, 30 Gratt 404: 54, 263,
423, 436, 628, 640, 689.
Hemeuway v. Wood, 58 la. 31 : 718,
746.
Hemmingway v. Scales, 43 Miss. 1 :
143.
Hempstead v. Johnson, 18 Ark. 134 :
520.
Henderson v. Ford, 46 Tex. 628 : 353,
584.
V. Hoy, 26 La. Ann. 156 : 145.
V. Rambow, 76 la. 330 : 154.
V. State, 96 Ind. 437 : 916.
V. TeiTy, 62 Tex. 284 : 432.
V. Tucker, 70 Ala. 381 : 555, 790.
Hendon v. White, 53 Ala. 597 : 579.
Hendrix v. Hendrix, 46 Tex. 8 : 640.
Henly v. Lanier, 75 N. C. 173 : 676.
V. Seaborn, 25 S. C. 481, 484: 451.
Henley v. Stemmons, 4 B. Mon. 133 :
552.
Henry v. Anderson, 77 Ind. 361 : 905,
906.
V. Gregory, 39 Mich. 68 : 46, 684.
Hensey v. Hensey (Ky.), 17 S. W. 333 :
173, 283, 386.
Henson v. Moore, 104 111. 403 : 19, 449,
468, 562.
Hentsch v. Porter, 10 Cal. 559 : 627.
Hepburn v. Griswold, 8 Wall. 603:
279.
Herbert v. Mayer, 43 La, Ann. 839 :
9, 299.
Herdman v. Cooper, 29 111. App. 589 :
143.
Hereth v. Yandes, 34 Ind. 102 : 747.
Herkimer v. Eice, 27 N. Y. 168 : 609.
Herrick v. Graves, 16 Wis. 157 : 147,
573.
V.Moore, 19 Me. 313: 945.
Herrold v. Keen, 58 Cal. 443 : 363, 599,
600, 601, 603, 708. .
Herron v. Knapp Co., 73 Wis. 553 : "
383, 478.
Hersehf eldt v. George, 6 Mich. 468 :
173, 516, 519, 526, 739.
Hersey v. Bennett, 38 Minn. 86 : ^Sl.
Hershey v. Dennis, 53 Cal. 77: 384.
Hershy v. Latham, 46 Ark. 542 : 51&
Hess V. Bolinger, 48 Cal. 349 : 943.
Hetrick v. Campbell, 14 Pa. St. 263 :
9,18.
Hettrick v. Hettrick, 55 Pa. St. 293 :
789.
Hewes v. Parkman, 30 Pick. 90 : 305,
' 507, 547.
Hewett V. Allen, 54 Wis. 583 : 441.
Hewitt V. Rankin, 41 la. 35 : 117, 13a
V. Templeton, 48 111. 867 : 366, 267,
387, 401, 486, 583.
Hiatt V. BuUene, 30 Kas. 557 : 7, 181.
Hibbern v. Soyer, 88 Wis. 319 : 514.
Hickey v. Behrens, 75 Tex. 488 : 749.
Hickman v. Cruise, 73 la. 538 : 798.
Hickox V. Fay, 86 Barb. 9 : 914.
Hicks V. Lovell, 64 Cal. 14 : 107.
V. Morris, 57 Tex. 658 : 840, 346,
527.
V. Pepper, 1 Bax. 42 : 567, 587,
631.
Hick's Tea Co. v. Mack, 19 Neb. 339 :
396.
Higgins V. Higgins, 46 Cal. 359 : 606.
Hightower v. Beall, 66 Ga. 102 : 553.
V. Cravens, 70 Ga. 475 : 554
V. Slaton, 54 Ga. 108 : 835.
Higley v. Millard, 45 la. 586 : 384, 377,
432, 675.
Hildebrand v. Taylor, 6 Lea, 659
548.
1
TA.BLE OF CASES.
Hill, Matter of, 1 Copp, 363 : 928.
Hm V. Bacon, 43 111. 477 : 149, 159, 701.
•V. Franklin, 54 Miss. 633: 58, 59,
96, 97.
V. Hill, 43 Pa. St. 198 : 41, 280.
V. Johnston, 29 Pa. St 862 : 551,
670.
V. Kessler, 63 N. C. 437 : 41, 380.
V. Loomis, 6 N. H. 263 : 775.
V. Miller, 36 Mo. 183: 936.
V. Myers, 46 O. St. 183 : 530.
V. Oxendine, 79 N. C. 331 : 158.
Hilleary v. Thompson, 11 W. Va.
113: 103. f
Hillyer v. Reoiore, 43 Minn. 354 : 814.
Hinesv. Duncan, 80 Ala. 113: 556,
575.
Hinsdale v. Williams, 75 N. 0. 430 :
493.
Hinson v. Adrian, 93 N. C. 121 : 667.
Hinton v. Adrian, 86 N. C. 61 : 299.
Hise V. Ins. Co. (Ky.), 13 S. W. 369 :
837.
Hissem v. Johnson, 27 W. Va. 652 :
840.
Hitchcock V. Holmes, 43 Ct. 538 : 793.
V. Way, 6 Adolph. & E. 943: 41.
Hixon V. George, 18 Kas. 353 : 363,
874, 514, 515, 574, 583, 630.
Hobaok v. Hobaok, 83 Ark. 399 : 640.
Hodge V. Houston, 13 Ired. 108 : 735.
Hodges V. Hickey, 67 Miss. 715 : 538.
V. Hightower, 68 Ga 381: 76,
648, 938. ,
Hodo V. Johnson, 40 Ga. 439 : 76, 455,
456, 606.
Hodson V. Van Fossen, 36 Mich. 69 :
46, 685.
Hoffman v. Fitzwilliam, 81 111. 531 :
837.
V. Hill (Kas.), 88 P. 633 : 314.
V. Hoffman, 79 Tex. 189 : 659.
V. Junk, 51 Wis. 613 : 147.
V. Neuhaus, 30 Tex. 633 : 603,
636.
V. Savage, 15 Mass. 130 : 143.
Hogan V. Hogan, 89 111. 437 : 376.
V. Manners, 83 Kas. 551 : 113, 115,
188, 386.
Hoge V. HoUister, 2 Tenn. Ch. 606 :
44, 384, 419, 433.
Hoisington v. Armstrong, 23 Kas.
110; 313.
V. Huff, 34 Kas. 379 : 869, 885.
Hoit V. Houle, 19 Wis. 473 : 405.
Hoitt V. Webb, 36 N. H. 158 : 158, 188^
215.
Holbrook v. Finney, 4 Mass. 566 : 341.
V. Perry, 66 la. 386 : 464, 5^3, 628.
V. Wightman, 81 Minn. 171-2 :
262, 263, 457, 491.
Holcomb V. Coryell, 11 N. J. Eq. 548:
135.
V. Winchester, 52 Ct 447 : 914.
Holden v. Pinney, 6 Cal. 285: 177,
193, 313, 687.
V. Stranahan, 48 la.' 70 : 800.
Holland v. Bergan, 89 Ala. 623 : 557.
V. Cruf t 30 Pick. 331 : 434.
V. Kreider, 86 Mo. 59 : 373, 374,
379, 484
V. Withers, 76 Ga. 667 : 147, 149.
Hollenbeck v. Donnell, 94 N. Y. 342 :
780.
Holliday v. Mansker, 44 Mo. App.
465: 871.
HoUiman v. Smith, 39 Tex. 357 : 565,
568, 570.
Hollins V. Webb, 3 Leg. R 74: 187.
Holloway v. HoUoway, 86 Ga 576 :
78, 648.
V. MoDhenny, 77 Tex. 657 : 106,
135, 579.
Holman v. Martin, 13 Ind. 553 ; 239.
Holmes v. Carley, 31 N. Y. 889 : 476.
V. Farris, 63 Me. 318 : 914.
V. Holmes' Estate, 36 Vt 536 :
193.
V. Tremper, 30 Johns. 89 : 864,
787.
V. Winchester, 138 Mass. 543 : 135,
144, 311, 904.
Holt V. Williams, 13 W. Va 704 : 103,
547.
Holtzinger v. Edwards, 51 la 384:
534.
Hombs V. Corbin, 84 Mo. App. 666 1
769, 783, 930.
TABLE OF CASES.
li
Home Ins. Co. v. Morse, 20 Wall. 451 :
539, 540.
Homer v. Sconfleld, 84 Ala. 313 : 437.
Homes v. Greene, 7 Gray, 399, 301 :
189.
Homestead Ass'n v. Enslow, 7 S. O.
19: 373,373,451.
Homestead Cases, 32 Gratt 331 : 136,
333, 337, 766.
Honaker v. Cecil, 84 Ky. 201 : 551.
Honone v. Bakewell, 6 B. Mon. 67 :
552.
Hood V. Cordova, 17 Wall. 1 j 333.
V. Powell, 73 Ala. 171 : 428, 439,
471. 579.
Hook V. Eicheson, 115 111. 431 : 4:04.
Hopkins v. Drake, 44 Miss. 619 : 864.
V. WoUey, 81 N. Y. 77 : 403.
Hopper V. Parkinson, 5 Nev. 283 : 355,
404.
Hopt V. Utah, 110 U. S. 579: 539,
'540.
Horgan v. Araick, 62 Cal. 401 : 241,
816.
Horn V. Arnold, 52 Tex. 161 : 688.
V. Tufts, 39 N. H. 498 : 138, 189,
215, 261, 393.
Hornby V. Sikes, 56 Wis. 382: 147.
Hornthal v. McRae, 67 N. C. 21 : 676.
Horton v. Kelly, 40 Minn. 198 : 410,
531, 875.
V. Summers, 62 Ga. 303: 648.
Hosea v. Talbert, 65 Ala. 173: 868,
885.
Hosford V. Wynn, 36 S. C. 130 : 379,
280, 445, 641.
Hoskins v. Litchfield, 31 111. 137 : 583,
605, 618, 689, 730, 748.
V. Wall, 77 N. C. 349 : 334
Hoskinson v. Adkins, 77 Mo. 537 : 45.
Hosmer v. Duggan, 56 Cal. 261 : 135,
933. ,
V. Wallace, 97 U. S. 575 : 135, 930,
933, 936, 949.
Hossfeldt V. Dill, 28 Minn. 469 : 816.
Hotchkiss V. Brooks, 93 IlL 886: 7,
180, 365. 266, 495.
3iot Springs E. Co. v. Tyler, 86 Ark.
205: 951.
Houghton V. Hardenberg, 53 Cal.
181: 941.
V. Lee, 50 Cal. 101 : 400, 441, 835.
Houk V. Newman, 36 111. App. 238 :
775.
Houlehan v. Rassler, 73 Wis. 557:
911.
Housatonic Bank v. Martin, 1 Met
394: 393.
House V. Bait. & O. R. Co., 48 Md.
130: 900.
V. Phelan (Tex.), 19 S. W, 140 :
383.
Houston, etc. R. Co. v. Winter, 44 Tex.
597 : 147, 158.
Houx V. County of Bates, 61 Mo. 391 :
431.
Howard v. Farr, 18 N. H. 457 : 883.
V. Lakin, 88 111. 86 : 912.
V.Logan, 81 111. 383: 563, 571,
586.
V. Mansfield, 80 Wis. 75 : 33.
V. Marshall, 48 Tex. 471 : 58.
V. North, 5 Tex. 316: 357.
V. Rugland, 85 Minn. 388: 776,
816, 817.
V. Tandy, 79 Tex. 450 : 785.
V. Williams, 2 Pick. 80: 798, 803.
V. Zimpleman (Tex.), 14 S. W. 62 :
63.
Howard Ass'n Appeal, 70 Pa. St 844 :
24. ■
Howard, etc. v. Railroad Co., 102 Pa.
St 220 : 866, 883.
Howe V. Adams, 28 Vt 541 : 81, 215,
402, 473.
Howell V. Jones (Tenn.), 19 S. W.
757 : 560, 630.
V. Bush, 54 Miss. 437 : 511.
V. McCrie, 36 Kas. 686 : 44, 426.
Howes V. Burt, 130 Mass. 368 : 135,
141.
Howland v; Fuller, 8 Minn. 80 : 771.
Howstienne v. Schnodr, 33 Mich. 374 :
4?3.
Howze V. Howze, 3 S. C. 383 : 61, 368,
644.
Hoyt V. Howe, 8 Wis. 753 : 396, 395.
V. Hoyt, 69 la. 174 : 144, 905.
lu
TABLE OF CASES.
Hoyt V. Van'Alstyne, 15 Barb. 568:
858.
Hubbard v. Moss, 65 Mo. 647 : 815.
V. Norton, 10 Ct 433 : 945.
V. Russell, 73 Ala. 578 : 458.
Hubbell V. Canaday, 58 III. 437 : 158,
185, 188, 333, 495, 644.
Huber v. Huber, 10 Ohio, 373 : 397.
Hudginsv. Sansome, 72 Tex. 231:
90, 596, 657.
Hudson V. Plets, 11 Paige, 180 : 445,
858.'
V. Stewart, 48 Ala. 806 : 615, 627.
Huey's Appeal, 29 Pa, St 219: 516,
533, 771.
Huf man's Appeal, 81 Pa. St 339: 788.
Hughes V. Hodges, 103 N. C. 236 : 44,
478, 490. 493.
V. United States, 4 Wall. 233 ;
931, 953.
V. Watt, 26 Ark. 238: 686, 698,
730.
Hugunin v. Dewey, 30 la. 368 : 896,
516.
Hume V. Gossett, 43 111. 299 : 14 316,
329, 495.
Humphrey v. Taylor, 45 Wis. 251:
'797,798,804.
Hunnicutt v. Summey, 63 Ga. 586:
143.
Hunt V. Johnson, 44 N. Y. 27 : 396,
397.
Hunter v. Bosworth, 43 Wis. 583:
873.
V. Law, 68 Ala. 365 : 369, 790.
V. Wooldert 55 Tex. 433 : 400.
Huntington v. Ghisholm, 61 Ga. 270 :
170, 749.
Hurd V. Hixon, 27 Kas. 723: 368.
Hurt V. Cooper, 63 Tex. 362 : 394, 398.
Huseman v. Sims, 104 Ind. 317 : 850,
890.
Huskinsv. Hanlon, 72 la. 37: 385,
386, 439.
Hussey v. Moser, 70 Tex. 42: 432,
596.
Hutcheson v. Grubbs, 80 Va. 351:
101.
V.Powell, 93 Ala. 619: 87a
Hutchinson v. Ainsworth, 63 CaL
286 : 164. 170, 384, 437.
V.Campbell, 1 Casey (Pa.), 373:
507, 548.
V. MoNally, 85 Cal. 619 : 463, 717.
V. Roe, 44 Mich. 389: 812.
V. Whitmore (Mioh.), 51 N. W^
451 : 783, 816, 863.
Button V. Frisbie, 37 CaL 475 : 948.
Hyatt V. Spearman, 20 la. 510 : 179,
282, 284, 333.
Hyman v. Kelly, 1 Nev. 148 : 720.
Hyslop V. Clarke, 14 Johns. 458, 465 :
434.
Ice V. McLaln, 14 111. 64: 781.
Iken V. Olenick, 43 Tex. 195 : 188, 350,
851.
Iliff V. Arnott 31 Kas. 673: 866.
Illinois Glass Co. v. Holman, 19 IlL
App. 30 : 836, 880.
Ilsley V. Stubb, 5 Mass. 380 : 860.
Inge V. Cain, 65 Tex. 75: 84, 96, 350,
897, 381, 398, 399, 853.
V. Murphy, 14 Ala. 389 : 696.
Ingle V. Lea, 70 Tex. 609 : 251, 353.
Innis V. Templeton, 95 Pa. St 862 : 45.
In re Allen, 78 Cal. 394: 147, 164, 170,
177, 182, 235.
Armstrong, 80 CaL 71 : 153.
Baldwin, 71 Cal. 74: 801, 802,
866.
Bowman, 69 CaL 345 : 272.
Cross, 3 Dill. 330 : 550.
Crowey, 71 Cal. 302 : 153, 186, 335.
Handlin, 3 DilL 290 : 903.
Henkel, 3 Sawy. 305 : 509.
Kennedy, 3 S. C. 227 : 368.
Lamb's Estate (CaL), 30 P. 508:
771.
Lambson, 8 Hughes, 233 : 59.
Noah, 73 Cal. 593 : 153, 178, 184,
385, 373.
Phelan, 16 Wis. 76 : 147.
Pratt 1 Cent L. J. 390: 533.
Schmidt's Estate (CaL), 39 Paa
714: 733.
TABLB or OASES.
liii
In re Sharp, 78 Cal. 483 : S72, 606.
Tertelling, 3 Dill. 339: 188.
Welch, 43 Minn. 7 : 537.
Williams' Estate (Pa.), 31 Atlan.
673: 646.
Worcester's Estate, 60 Vfe 420:
633.
Ins. Co. V. Baker, 71 Ind. 108 : 391.
V. Curry, 13 Bush, 312 : 106.
Int etc. R Co. v. Timmerman, 61
Tex. 660 : 649.
' Irion V. Mills, 41 Tex. 310 : 133, 360.
Irvin V. Garner, 50 Tex. 448 : 346.
Irwin V. Lewis, 50 Miss. 363 : 181,'528.
V. State, 6 Lea, 588 : 916.
V. Taylor, 48 Ark. 326 : 310, 671,
745.
Isaacs V. Tinley, 58 Ga. 457 : 355.
Ives V. MUls, 37 III. 78 : 44, 564, 853,
918, 919.
J.
Jacks V. Bigham, 36 Ark. 481 : 881.
Jackson v. Bowles, 67 Mo. 609: 653.
V. Jackson, 13 Ired. 159 : 735.
V. Du Bose, 87 Ga. 761 : 558, 561,
741.
V. Leek, 13 Wend. 105 : 439.
V. Parrbtt, 67 Ga. 310 : 544, 548.
V. Eeid, 83 O. St. 448 : 380, 568.
V. Eowell, 87 Ala. 685 : 701.
V. Stolton, 89 Tenn. 83 : 81, 71,
189, 878.
V. Van Zandt, 13 Johns. 176 : 41.
Jacobs V. Hawkins, 63 Tex. 1 : 191,
196, 888, 399, 571, 750.
Jacoby v. Distilling Co., 41 Minn.
337, 230 : 6, 181, 213, 509.
Jaffers v. Aneals, 91 111. 488: 583.
JaflErey v. McGough, 88 Ala. 648,
650 : 3, 151, 158, 159.
James v. Clark, 89 Ala. 606 : 637.
James' Estate, 23 Cal. 415 : 493.
Jaquith v. Scott, 63 N. H. 5 : 808.
Jardain v. Association, 44 N. J. L.
376: 840.
Jarman v. Jarman, 4 Lea, 675 : 559,
683.
Jarrell v. Payne, 75 Ala. 577: 458,
555, 645, 665.
Jarvais v. Moe, 38 Wis. 440: 6, 30,
147, 180, 564, 565, 570, 573.
Jelfeties v. Allen, 29 S. C. 501 : 641.
Jeffers v. Eadcliff, 10 N. H. 242 : 185.
Jelinek v. Stepan, 41 Minn. 413 : 363,
877.
Jenkins v. Bank, 106 U. S. 574: 709.
V. Bobbitt, 77 N. C. 385 : 300, 490.
V. Harrison, 66 Ala. 345 : 118, 385,
434, 427.
V. Lovelace, 62 Ala. 271 : 667.
V. McNall, 27 Kas. 583: 798,
803.
V. Simmons, 37 Kas. 496 : 55, 436.
V. Volz, 54 Tex. 686 : 138, 142,
194, 222, 719.
Jenness v. Cutter, 12 Kas. 516 : 263,
376, 378, 690.
Jennings v. Carter, 53 Ark. 343 : 755.
Jenny v. Jenny, 24 Vt 324 : 424. '
Jergens v. Schiele, 61 Tex. 255 : 709.
Jewell V. Clark's Ex'rs, 78 Ky. 898:
205, 286.
V. Grand Lodge, 41 Minn. 405 :
765.
V. Porter, 31 N. H. 34: 393.
V. Weed, 18 Minn. 273: 35.
Jewett V. Brock, 83 Vt 65 : 215, 401,
473.
V. Guyer, 38 Vt 309, 318 : 883.
V. Stockton, 3 Yerg. (Tenn.) 493 :
135.
J. I. Case Company v. Joyce, 89
Tenn. 337, 347 : 38, 136.
Johns V. Chitty, 1 Burr. 32 : 859.
Johnson v. Adleman, 35 111. 265 : 68a
V. Brook, 31 Miss. 1 : 380.
V. Bryan, 62 Tex. 634 : 481.
V. Dobbs, 69 Ga. 605 : 785, 910.
V. Edde, 58 Miss. 664: 785, 864.
v.Fay, 16 Gray, 144:379.
V. Fletcher, ' 54 Miss. 628 : 766,
910.
V. Franklin, 63 Ga. 878 : 341, 814,
815.
V. Gaylord, 41 la. 863 : 31, 493,
590, 591, 598, 594, 621.
liy
TABLE OF OASES.
Johnson v. Goss (N. K, not reported) :
392.
V. Griffin, etc. Co., ^5 Ga. 691 :
355.
V. Hahn, 4Neb. 149: 857.
V. Harrison, 41 "Wis. 386 : 147,
294, 463.
V. Hart, 6 Watts & S. 319 : 143.
T. Johnson, 13 R. I. 468 : 136.
V. Kessler, 87 Ky. 458 : 167.
V. Montgomery, 51 111. 185 : 555.
V. Moser, 66 la. 536 : lV9, 288.
V. Poullain, 63 Ga. 376: 405, 488.
V. Eaynor, 6 Gray, 107 : 258.
V. Richardson, 33 Miss. 463 : 115,
225.
V. Taylor, 40 Tex. 360 : 427, 598,
644.
V. Towsley, 13 Wall. 72 : 185, 931,
933, 936, 987, 941.
V. Turner, 29 Ark. 280 : 195, 547,
563, 574, 645, 651.
V. Vandervort, 16 Neb. 144 : 397.
V. Van Velser, 43 Mich. 208 : 433.
Johnston v. Davenport, 42 Ala. 817 :
788.
V. Dunavan, 17 Brad. (111. App.)
59: 582.
V. Martin (Tex.), 16 S. W. 550 :
193.
V. McPherran, 81 la. 230 : 521.
V. Savings Union, 75 Cal. 134 :
600.
Joiner v. Perkins, 59 Tex. 800 : 340,
346.
Jolly V. Lofton, 61 Ga. 154 : 488, 526,
828.
Jones V. Avery, 50 Mich. .326 : 824.
V. Blumenstein, 77 la. 361 : 584,
563, 568, 585.
V. Brandon, 48 Ga. 593 : 279.
V. Britton. 102 N. C. 166 : 9, 399,
300, 330, 438.
V. Cable (Pa.), 7 A. 791 : 143.
V. Clifton, 101 U. S. 228 : 896.
V. Comm'rs, 85 N. C. 278 : 855.
V. Crumley, 61 Ga. 105 : 122, 777.
V. Currier, 65 la. 533 : 396.
V. Dow, 18 Wis. 241 : 410, 73a
Jones V. Ehrlisch, 65iGa. 546: 785.
V. Gilbert, 135 111. 27 : 365, 618.
V. Goff, 63 Tex. 248 : 419, 430.
V. Hart, 63 Miss. 13 : 514, 528.
V.Jones, 15 Tex. ^47: 598.
V. Miller, 17 S. C. 380 : 78.
V. Postell, Harper (S. C), 92 : 458.
V. Eagland, 4 Lea, 543 : 268.
V. Bobbins, 74 Tex. 615 : 430.
V. Roper, 86 Ala. 210 : 428.
V. Scott, 10 Kas. 33 : 873, 874
V. Spear, 21 Vt 426 : 424.
V. Tainter, 15 Minn. 513 : 940.
.V. Tracy, 75 Pa. St. 417: 835, 899.
V. Trammell, 27 Tex. 183 : 570.
V. Waddy, 66 Cal. 457 : 311.
V. Yoakam, 5 Neb. 265 : 550, 950,
951.
Jordan v. Auti-ey, 10 Ala. 226 : 778.
V. Clark, 81 111. 465 : 618.
V. Godman, 19 Tex. 278 : 390, 360,
387, 560, 570, 583.
V. Imthurn, 51 Tex. 276: 190.
V. Peak, 88 Tex. 439: 297, 873,
'884,431,550.
V. Strickland, 43 Ala. 315 : 615,
788.
Juchert v. Johnson (Ind. Sup.), 9N. E.
418: 391.
Judd V. Randall, 36 Minn; 13 : 931.
Judge of Probate v. Simonds, 46
N. H. 368 : 361, 493, 635, 707.
Junker v. Hustes, 113 Ind. '534: 764,
829, 928.
Justice V. Baxter, 93 N. C. 405 : 366.
K.
Kable v. Mitchell, 9 W. Va. 492:
103.
Kaes V.' Gross, 92 Mo. 647: 377, 457,
464, 558, 562, 652.
Kahoon v. Krumpus, 13 Neb. 831:
730, 884.
Kaiser v. Seaton, 63 la. 468 : 886.
Kansas City, etc. R. Co. v. Gough, 35
Kan. 1 : 901.
Kansas City Mining, etc. Co. v. Clay
(Arizona), 29 Pac. 9 : 943.
TABLE OF CASES.
It
Kansas Lumber Co. v. Jones, 33 Kas.
195: 953.
E^nsas Pac. E. Co. v. Dunmeyer, 113
U. S. 639 : 144, 939.
Earn v. Hanson, 59 Mich. 380 : 564.
Kaser v. Haas, 37 Minn. 406: 136,
137.
Kaster v. McWilliams, 41 Ala. 303 :
575.
Kaufman v. Fore, 73 Tex. 308 : 563.
Kean v. Newell, 1 Mo. 754: 671.
Kearney v. Kearney, 73 Cal. 591 : 638,
677.
K%«fer V. Guffin, 38 111. App. 633:
' ■' 856.
Kefil V. Larkin, 73 Ala. 493 : 19, 30,
337, 665, 703, 878.
Keener v. Goodson, 89 N. C. 273 : 103,
300, 679.
Keififer v. Barney, 31 Ala. 196: 64,
83, 97.
Keith V. Homer, 33 HI. 534: 349.
V. Hyndman, 57 Tex. 435 : 186,
333, 337.
Kellar v. Houlihan, 33 Minn. 486:
865.
Keller v. Brioker, 64 Pa. St 379 : 847.
V. McMahan, 77 Ind. 63 : 761, 9H
916.
V. Struck, 31 Minn. 446 : 295.
Kellerman v. Aultman, 80 Fed. 888 :
9, 396.
Kellersberger v. Kopp, 6 CaL 565:
137, 140.
Kelley v. McFadden, 80 Ind. 536:
764, 863, 878, 919.
Kellogg V. Graves, 5 Ind. 509 : 788,
857.
V. IngersoU, 3 Mass, 97 : 945.
V. Malin, 50 Mo. 496 : 945.
V. Schuyler, 3 Denio, 73 : 914.
V. Waite, 12 Allen, 539 : 840.
KeUy V. Aired, 65 Miss. 495 : 460, 467.
V. Baker, 10 Minn. 134 : 146, 181,
188, 313, 313, 333, 240, 566.
V. DiU, 23 Minn. 435 : 187, 198,
294, 303, 304, 305, 809, 566,
739, 883.
V. Duffy, 31 O. St 437 : 330.
Kelly V. Garrett, 67 Ala. 304: 19, 515,
564, 703.
V. McGuire, 15 Ark. 555 : 33.
V. Stephens, 39 Ga. 466 : 338.
V. Whitmore, 41 Tex. 647 : 596,
688.
Kelsay v. Frazier, 78 Mo. Ill : 288, 389,
464.
Kelsey v. Kelley (Vt), 22 A. 597 : 519,
711.
Kemerer v. Bournes, 53 la. 173 : 88.1,
715, 716.
Kemp V. Kemp, 42 Ga. 533: 456, 463,
640, 657.
Kempner v. Comer, 73 Tex. 196 : 399,
536.
V. Heidenheimer, 65 Tex. 587 :
388.
Kendall v. Clark, 10 Cal. 17 : 740.
V. Kendall, 43 la 464: 633. '
V. Powers, 96 Mo. 143 : 121, 374,
484, 603.
Kenley v. Bryan, 110 111. 652: 317,
630.
V. Hudelson, 99 III 493 : 70, 562,
586.
Kennaird v. Adams, 11 B. Mon. 102:
534.
Kennedy v. Nunan, 52 Cal. 826 : 117,
120.
V. Stacey, 57 Tenn. 220: 11, 281,
872, 377, 384, 469, 546.
Kennerly v. Swartz, 83 Va. 704: 16,
101.
Kensell v. Cobleigh, 62 N. H. 298:
715.
Kent V. Agard, 23 Wis. 150 : 158, 919.
V. Lasley, 48 Wis. 357, 364: 147,
300, 478.
Kenyon v. Baker, 16 Mich. 373 : 798,
805, 813.
V. Gould, 61 Pa, St 393: 10, 333,
761.
Kerchner v. Singletary, 15 S. C. 535 :
670.
Kerley v. Kerley, 13 Allen, 287 : 358.
Kern's Appeal, 130 Pa. St 533 : 646,
790.
Kessinger v. Wilson, 53 Ark. 403 : 652.
Ivi
TABLE OF CASES.
Kessler v. Draub, 53 Tex. 575 : 7, 85,
87, 94, 317, 593.
V. Hall, 64 N. C. 60 : 354
Kestler v. Kern, 3 Ind. App. 488 : 764,
889, 897.
Ketchin v. McCarley, 36 S. C. 1 : 157,
169, 754.
V. Patrick, 83 S. C. 443 : 693, 706.^
Ketchum v. Allen, 46 Ct. 416 : 918.
V. Evertson, 13 Johns. 359 : 607.
Keyes v. Bump, 59 Vt 395: 36, 193,
567.
V. Hill, 30 Vt. 759 : 639.
V. Eines, 37 Vt. 360 : 315, 400, 445.
V. Scanlan, 63 Wis. 345 : 389, 478.
V. Wood, 31 Vt 331 : 347.
Keyser v. ^,ice, 47 Md. 308: 888, 890.
Keyte v. Perry, 35 Mo. App. 394 : 131,
603, 645.
Kabbey v. Jones, 7 Bush, 343 : 846.
Kidd V. Lester, 46 Ga. 331 : 77.
Kilbourn v. Demming, 3 Vt. 404 : 803,
859.
Kilgore v. Beck, 40 Ga. 396 : 733.
Kimball v. Blaisdell, 5 N. H. 533:
393.
V. Jones, 41 Minn. 318 : 803.
T. Wilson, 59 la. 638 : 384, 558, 675.
V. Woodruff, 55 Vt 339 : 817.
Kimble v. Esworthy, 6 Bradw. (lU.)
517 : 336, 348.
Kimbrel v. Willis, 97 111. 494: 87, 94,
365, 580, 586.
Kincaid v. Burem, 9 Lea, 553 : 607.
Kinder v. Lyons, 88 La. Ann. 718 :
39, 173.
Kinderley v. Jarvis, 35 L. J. Ch. 541 :
34.
King V. Dedham Bank, 15 Mass. 447 :
768.
V. Gilleland, 60 Tex. 371 : 604
V. Gotz, 70 Cal. 336 : 117, 130, 153,
177, 667.
V. Barter, 70 Tex. 581 : 353.
V. McCarley, 33 S. 0. 364 : 756.
V. Moore, 10 Mich. 588 : 473, 546,
817.
V. Ruble, 54 Ark. 418: 888, 931.
T. Skellie, 79 Ga. 149 : 647.
King V. Sturges, 56 Miss. 606: 116,
147, 186, 771.
V. Welburn, 83 Mich. 195 : 189, 184
Kingman v. Higgins, 100 IlL 319:
117, 130, 495, 586, 587, 614
Kingsleyv. Kingsley, 39 CaL 665:
136, 140, 143, 950.
Kinney v. Degman, 13 Neb. 337 : 941.
Kipp V. BuUard, 30 Minn. 84 : 676.
Kirby v. Giddings, 75 Tex. 679 : 317.
V. Reese, 69 Ga. 453: 117, 119.
Kirk V. Cassady (Ky.), 13 S. W. 1039 :
739, 745.
Kirkland v. Little, 41 Tex. 460 : 59S
Kirkpatrick v. White, 39 Pa. St ITS;
833.
Kirksey v. Cole, 47 Ark. 504i 653.
Kirkwood v. Domnan (Tex.), 16 S. W.
438 : 71, 598.
V. Koester, 11 Kas. 471 : 188.
Kitchell V. Burgwin, 31 IlL 40 : 6, 44
64 179, 564 698.
Kite V. Kite, 79 la. 491 : 590.
Kittei-lin v. Milwaukee Ins. Co., 134
111. 647 : 357, 397.
Klenkv. Knoble, 87 Ark. 388: 185,
339, 315, 431, 681.
Kline v. Ascension Parish, 33 La.
Ann. 563: 910.
Knabb v. Drake, 33 Pa. St 489 : 816,
443, 785.
Knapp V. Bartlett, 38 Wis. 68 : 797,
798, 804
V. Gass, 68 111. 493 : 619, 630.
V. O'Neill, 46 Hun, 817 : 809.
Kneetle v. Newcomb, 33 N. Y. 349 :
541, 787, 869.
Knevan v. Speeker, 11 Bush (Ky.), 1 :
516.
Knight V. Leak, 3 Dev. & Bat 138 :
735.
V. Leary, 54 Wis. 459 ; 953.
' V. Paxton, 134 U. S. 553 : 876.
V. U. S. Land Ass'n, 143 U. S.
161: 940.
V. Whitman, 6 Bush, 51 : 761.
Knopf V. Hansen, 37 Minn. 315 : 556.
Knox V. Hanlon, 48 la. 352 : 593.
V. Wilson, 77 Ala. .309 : 875, 885.
TABLE OF CASES.
Ivii
Kochling v. Daniel, 82 Mo. 54 : 547,'
644.
Kooourek v. Marak, 54 Tex. 201: 391.
Koons V. Rittenhause, 28 Kas. 359 :
182.
Kottenbroeck V. Craoraft, 36 O. St
584: 437.
Kraft V. Baxter, 38 Kas. 351 : 942.
Krauser v. Ruckel, 17 Hun, 463 : 824.
Kreider's Estate, 135 Pa. St. 578: 917.
Kresin v. Mau, 15 Minn. 116: 137,
146, 149, 158, 181, 221, 333,
304, 566. f
Krueger V. Pierce, 37 Wis. 269; '803.
Kruger v. Le Blanc, 75 Mich. 434 :
135, 138.
Kulage V. Schueler, 7 Mo. App. 250 :
770, 874, 918, 920.
Kuntz V. Baehr, 28 La. Ann. 90:
780.
V. Kinney, 33 "Wis. 510 : 80, 764,
837.
Kupferman v. Buckholts, 73 Ga. 778 :
341, 815.
Kurz V. Brusch, 13 la. 371 : 188, 319,
332, 275, 394.
Kutch V. Holly, 77 Tex. 230 : 571.
Kuttner v. Haines, 35 111. App. 307 :
108, 115.
Kyle Y. Kavenaugh, 103 Mass. 356 :
607.
V. Montgomery, 73 Ga. 337 : 835.
Kyte V. Peery, 35 Mo. App. 394: 603.
Labaree v. Wood, 54 Vt 453 : 743.
Lacey v. Clements, 36 Tex. 663 : 138,
583.
Lachman v. Walker, 15 Nev. 422:
11, 170, 174, 338.
Lackey v. Bostwick, 54 Ga. 45 : 355.
Laconia Bank v. Rollins, 63 N. H. 66 :
715.
Lacy V. Lookett (Tex.), 17 S. W. 916:
658.
V. Rollins, 74 Tex. 566 : 81, 94,
381, 597.
Ladd V. Adams, 66 N. C. 164: 303.
Ladd V. Dudley, 45 N. H. 61 : 379,
846, 348.
V. Ladd, 14Vfcl94: 434.
LahifE's Estate, 86 Cal. 151 : 606, 763.
Laing v. Cunningham, 17 la. 510:
382.
Lake v. Page, 63 N. H. 318 : 883, 439,
625.
Lallement v. Poupeny, 15 Mo. App.
577: 666.
Lallemoat v. Detert, 96 Mo. 182 : 666,
669, 672.
Lairiar v. Chisholm, 77 Ga. 306 : 835.
V. Sheppard, 80 Ga. 25 ■ 839, 380.
Lamb v. Chamness, 84 N. C. 379:
11, 379, 837, 676.
V. Davenport, 18 Wall. 807 : 935,
945, 949.
V. Mason, 50 Vt. 350 : 1, 40, 391,
347, 633, 743.
V. McConkey, 76 la. 47 : 283, 385.
V. Shays, 14 la. 567 : 675.
V. Wogen, 37 Neb. 236 : 66.
Lambert v. Kinnery, 74 N. C. 348:
372, 480, 780.
V. Powers, 86 la. 18: 727.
Lamore v. Frisbie, 43 Mich. 186 : 583.
Lanahan v. Sears, 103 U. S. 818 : .44,
338, 884, 419, 550, 554.
Land Co. v. Gas Co., 48 Kas. 518:
434
Lane v. Baker, 3 Grant's Cas. (Pa.)
484 : 332, 323, 760.
V. Maine Ins. Co., 13 Me. 44 : 950.
V. Partee, 41 Ga. 302 : 443.'
V. Phillips, 69 Tex. 340 : 7, 80.
V. Richardson. 104 N. C. 648 : 777.
V. Morey, 40 Minn. 396 : 950.
Langford v. Driver, 70 Ga. 588 : 133,
687.
V. Fly, 7 Humph. 585 : 385.
V. Lewis, 9 Bax. 127 : 20.
Langton y. Marshall, 59 Tex. 296:
481.
Langston v. Maxey, 74 Tex. 155 : 181,
573, 579.
V. Murphy, 31 111. App. 188 : 850.
Lansden v. Hampton, 38 111. App. 115 :
856.
Itui
TABLE OF OASES.
Laramore v. McKinzie, 60 Ga. 533 :
142, 550.
Larence v. Evans, 50 Ga. 316 : 41, 64,
379, 687.
Larey v. Baker, 85 Ga. 687 : 703.
Larkin's Estate, 133 Pa. St. 554: 779.
Larkin v. McAnnally, 5 Phila. 17:
919.
Larrison's Appeal, 36 Pa. St. 130 : 856.
Larson v. Reynolds, 13 la. 579 : 381,
384, 388, 420, 533, 718, 747.
V. Butts, 33 Neb. 370: 47, 396.
La Rue v. Gilbert, 18 Kas. 330 : 50, 60,
410, 413.
Lashaway v. Tucker, 61 Hun, 6 : 817.
Lassen v. Vance, 8 Cal. 371: 337,
340, 347.
Lathrop v. Ass'n, 45 Ga. 483 : 58, 78,
338.
V. Singer, 39 Barb. 396 : 392, 333,
333, 761.
Lauck's Appeal, 13 Harris (Pa.), 426 :
507, 516, 543, 547.
Laughlin v. Wright, 63 Cal. 113: 170,
177, 183, 184, 335, 274.
LaviUebauve v. Frederic, 20 La. Ann.
374: 873.
Lawrence v. Grambling, 19 S. C. 461 :
354.
Law V. Butler, 44 Minn. 482 : 387.
Lawler v. Yeatman, 37 Tex. 669 : 726,
729.
Lawyer v. Slingerland, 11 Minn. 447 :
433.
Lawson v. Pringle, 98 N. C. 450:
551.
Lay V. Gibbons, 14 la. 377: 410, 727.
V. Templeton, 59 la. 684 : 437.
Layon v. Grange (Kas.), 29 P. 585:
574.
Lazar v. Caston, 67 Miss. 375 : 409,
718.
Lazell V. Lazell, 8 Allen, 576 : 185,
333, 560, 695, 702.
Leach v. Fowler, 22 Ark. 145 : 518.
V. Leach, 65 Wis. 284: 396,478.
V. Pillsbury, 15 N. H. 137 : 189.
Leak v. Gay, 107 N. C. 468 : 31, 716.
Leake v. King, 85 Mo. 413: 84, 558.
Lear v. Hefifner, 38 La. Ann. 839 :
339.
V. Totten, 14 Bush, 104 : 6, 369, 456,
490.
Learned v. Corley, 43 Miss. 689 : 25.
V. Cutler, 18 Pick. 9 : 545.
Leavell v. Lapowski (Tex.), 19 S. W.
1004: 741.
Leavenworth, etc. R. Co. v. U. S., 93
U. S. 733 : 946.
Leavitt v. Holbrook, 5 Vt 405 : 859.
v. Metcalf, 3 Vt 343 : 794, 836,
859.
Le Blanc v. St Germain, 35 La. Ann.
389 : 373.
Ledford, Matter of, 1 Copp's Land
Laws, 361 : 937.
Lee V. Eure, 93 N. C. 5 : 300.
V. Hale, 77 Ga. 1 : 76, 456.
V. Ins. Co., 6 Mass. 319 : 385, 425.
V. Johnson, 116 TJ. S. 48 : 936.
V. Kingsbury, 13 Tex. 68 : 84, 96^
297, 373, 533, 747.
V. Miller, 11 Allen, 37: 164, 183,
193, 195, 304.
V. Mosely, 101 N. C. 311 : 493, 560.
V. Welborne, 71 Tex. 500 : 137,
341.
Leech v. Dawson, "23 Fed. 634: 709.
ILeeds v. Gifford, 5 Atl. (N. J.) 795:
351.
Lehman v. Bryan, 67 Ala. 558 : 564,
567, 579.
V. Kelley, 68 Ala 193: 536, 930.
Y. Warren, 58 Ala. 585 : 678.
Leibner v. Railroad Co., 49 la. 688 :
896.
Leggate v. Clark, 111 Mass. 308 : 45.
Leggett V. Van Horn, 76 Ga. 795:
838, 829.
Legro V. Lord, 10 Me. 165 : 514, 516.
Le Guen v. Gouverneur, 1 John. Cas.
436 : 747.
Lehndorf v. Cope, 133 111. 833 : 349.
Lenhoff v. Fisher (Neb.), 48 N. W.
831 : 818, 911.
Lenoir v. Weeks, 30 Ga. 596 : 800.
Leonard v. Clinton, 26 Hun, 288 : 837.
V. Ingraham, 58 la. 406 : 55&
TABLE OF OASES.
lix
Leonard v. Maginnis, 34 Minn. 506 :
863.
V.' Mason, 1 Lea, 384 :
Leonis v. Lazzarovich, 65 Cal. 53:
384.
Lessley v. Phipps, 49 Miss. 790 : 181,
279, 306, 528, 730, 744, 766.
Letchford v. Gary, 52, Miss. 791: 181,
538, 686, 905, 909.
Leupold V. Krause, 95 111. 440 : 133,
265, 849, 701, 709, 730.
Levasser v. Washburn, 11 Gratt. 573,
577: 14.
Levicks v. Walker, 15 La 245 : 869.
Levison v. Abrahams, 14 Lea, 336:
583.
V. Abrahams, 9 Lea, 178 : 559.
Levy V. Moog, 69 Ala 63 : 871.
V. Williams, 79 Ala 171 : 903.
Lewis V. Curry, 74 Mo. 49 : 377.
V. McGraw, 19 111. Ap. 313: 365.
V. Sellick, 69 Tex. 379 : 143.
V. Wetherell, 36 Minn. 386 : 950,
953.
Lewton v. Hower, 18 Fla 872, 883 :
362, 935.
Liebstrau v. Goodsell, 26 Minn. 417 :
181, 294, 566.
Lies V. DeDiablar, 13 Cal. 327: 5,
485.
Linch V. Broad, 70 Tex. 93: 339, 242,
250, 596, 639.
V. Mclntyre, 78 Ga 209 : 17, 133,
375.
Lincoln v. Claflin, 7 Wall. 133 : 348.
V. Eowe, 64 Mo. 138: 288, 668.
Lindenmuller v. People, 21 How. (N.
Y.) 156 : 33, 34.
Lindley v. Groff (Minn.), 34 N. W.
26 : 135.
V. Miller, 67 111. 244: 777, 944.
Lindsay v. Murphy, 76 Va 438 : 15,
560.
V. Norrill, 36 Ark. 545 : 339, 651.
Lindsey v. Brewer, 60 Vt. 627: 66,
519, 711.
V. Fuller, 10 Watts, 144 : 807.
V. Hawes, 2 Black, 554 : 941.
▼. Veasy, 63 Ala 431 : 947.
Line's Appeal, 3 Grant's Cas. (Pa)
198:668.
Linkenhoker v. Detrick, 81 Va. 44:
330, 549.
Linn Co. Bank v. Hopkins, 38 P.
606 : 149.
Linscott V. Lamart, 46 la 812 : 156,
284, 413, 668.
Linsey v. McGannon, 9 W. Va 154 :
11, 170.
Linton v. Crosby, 56 la 386 : 773.
Lishy V. Perry, 6 Bush (Ky.), 515 :
516, 667.
Litchfield v. The Register, 9 WalL
575 : 941.
Lithgow V. Kavenaugh, 9 Mass. 161 :
555.
Littell V. Jones (Ark.), 19 S. W. 497:
331.
Little V. Birdwell, 37 Tex. 690 : 637.
V. McPherson, 76 Ala 552 : 790.
Little's Guardian v. Woodward, 14
Bush, 587: 83, 369, 1587.
Littlejohn v. Egerton, 77 N. C. 379 :
133, 300, 480, 618.
Livermore v. Webb, 56 Cal. 492:
272.
Liverpool Ins. Co. v. Crede, 65 Tex.
118:353.
Lloyd v. Durham, 1 Winst. 388 : 43&.
V. Frank, 30 Wis. 306 : 410.
Loan Co. v. Blalook, 76 Tex. 85: 537-
Lock V. Johnson, 36 Me. 464: 896,.
899.
Locke V. Rowell, 47 N. H. 46: 183,
373, 559, 592.
Lock wood V. Younglove, 27 Barb.
505 : 785, 810.
Loeb V. McMahon, 89 IlL 487: 81,
605, 618.
V. Richardson, 74 Ala 311 : 790.
Logan V. Courtown, 13 Beav. 22 : 34
V. Walton, 13 Ind. 639 : 449.
Loomis V. Geeson, 63 111. 13 : 337, 730,.
740.
V. Smith, 37 Mich. 595 : 874.
Long V. BuUard, 59 Ga 355 : 132, 560^
V. Mostyn, 65 Ala 543 : 416, 428,
430.
Ix
TABLE OF CASES.
Long V. Murphy, 37 Kas. 375, 880:
524.
V. Walker, 105 N. C. 90, 108:
6, 52, 367, 489, 677, 678, 680,
952.
Longey v. Leach, 57 Vt. 377 : 45.
Longley v. Daly (S. D.), 46 N. W.
347:546,779,883.
Lord V. Hardie, 83 N. O. 341 : 820.
Lott V. Bewer, 64 Ala. 387 : 14.
V. Kaiser, 61 Tex. 671 : 891.
Louden v. Yeager (Ky.), 14 S. W.
966: 673.
Louisiana v. New Orleans, 103 U. S.
208 : 41, 679.
Love V. Blair, 72 Ind. 281 : 873, 906.
V. Breedlove, 75 Tex. 649 : 894.
V. Moynehan, 16 111. 277 : 689.
Lovejoy v. Albee, 88 Me. 414 : 893.
Lovell V. Doe, 44 Minn. 144: 720.
Lover v. Bessenger, 9 Bax. 393 : 546.
Low V. Anderson, 41 la 476: 390,
,404.
V. Hutchings, 41 Cal. 634 : 94a
V. Tandy, 70 Tex. 745 : 347.
Lowdermilk v. Corpening, 93 N. C.
333: 30,337,489,678.
Lowe V. Brooks, 23 Ga. 325 : 148.
V. Stringham, 14 Wis. 222 : 63,
775.
V. Webb, 85 Ga. 731 : 649.
Lowell V. Lowell, 55 Cal. 316 : 70.
V. Shannon, 60 la. 718 : 122, 156,
167, 739.
Lowry v. Fisher, 2 Bush, 70 : 346.
V. Herbert, 25 MLss. 101 : 789.
V. McAllister, 86 Ind. 543 : 878.
V. Parker, 83 Ga. 341 : 554.
Loyd V. Loyd, 82 Ky. 531 : 645.
Lozo V. Sutherland, S8 Mich. 168 : 131,
186, 138, 141, 700.
Lubbock V. McMann, 83 Oal. 328 : 6,
147, 163, 164, 165, 170, 177,
182, 274, 393, 561.
Lucas V. Pickel, 20 la. 490 : 394, 388.
Lufkin V. Galveston, 58 Tex. 545 : 339.
Luhn V. Stone. 65 Tex. 439 : 194.
Lumber Co. v. Gottschalk, 81 Cal.
641 : 366.
Lundberg v. Sharvey, 46 Minn. 390 :
156, 213.
Luntv. Neeley, 67 la. 98: 373, 415,
420, 432, 562.
Lusk V. Hopper, 3 Bush, 185 : 552.
Lute V. Reilly, 65 N. C. 20 : 730.
Luther v. Drake, 21 la. 92 : 894, 422.
Lyle V. Palmer, 42 Mich. 314 : 116.
Lyman v. Byam, 38 Pa. St 475 : 788,
789.
V. Fiske, 17 Pick. 381 : 570.
Lynch v. Dalzell, 4 Brown (Par. Cas.),
431: 609.
V. Lynch, 18 Neb. 586, 589: 136.
V. Pace, 40 Ga. 178 : 88.
Lynd v. Picket, 7 Minn. 138: 776,
816.
Lyon V. Ozee, 66 Tex. 95 : 363.
V. Sanford, 5CC.544: 804.
V. Welsh, 20 la. 578 : 686.
Lyons v. Conner, 57 Ala. 181 : 438.
Lytle V. Lytle, 94 N. C. 683 : 299.
M.
Mabry v. Harrison, 64 Tex. 386 : 304,
399, 640.
V. Johnson, 85 Ga. 340 : 703.
V. Ward, 50 Tex. 411 : 252.
Mace V. Heath (Neb.), 51 N. W. 317 :
831, 883.
V. Merrill, 56 Cal. 554 : 942.
Machemer's Estate, 140 Pa. St. 544:
637, 790.
Mack V. Adler, 33 Fed. 570 : 351.
V. Heiss, 90 Mo. 578 : 546, 707.
Macke v. Byrd (Mo.), 19 S. W. 70 :
705.
Mackreth v. Symmons, 15 Ves. 348 :
552.
Macmanus v. Campbell, 37 Tex. 267 :
174, 223.
Madden v. Jones, 75 Ga. 680 : 632.
V. Madden (Tex.), 15 S. W. 480 :
381.
Madigan v. Walsh, 32 Wis. 501 : 691.
Magee v. Magee, 51 111. 500 : 336, 337,
345, 347.
V. Rice, 37 Tex. 483 : 603.
TABLE OF CASES.
Ixi
Mahafify v. Mahafly, 63 la. 55 : 269,
591,622.
Mahan v. Scruggs, 29 Mo. 283 : 774,
780.
Mahon v. Cooley, 36 la. 479 : 353.
Main v. Bell, 27 Wis. 519 : 858.
Mallon V. Gates, 26 La. Ann. 610:
687.
Mallory v. Berry, 16 Kas. 293 : 810.
V. Norton, 21 Barb. 424 : 833, 864.
Malone v. Kaufman, 38 Tex. 454:
339, 346. •
Maloney v. Hefer, 75 Cal. 424: 147,
164, 170, 177, 183, 186, 235,
293, 762.
Malony v. Horan, 12 Abb. Pr. 289 :
395.
Malvin V. Christoph, 54 la. 562 : 877.
Mancliester V. Burns, 45 N. H. 488 :
441, 919.
Mandlove v. Burton, 1 Ind. 39 : 874,
919.
Mann v. Kelsey, 71 Tex. 609: 317,
443.
V. Mann's Estate, 53 Vt. 48 : 545.
V. Rogers, 35 Cal. 316 : 112, 170,
177, 184, 211, 212, 235.
V. Welton, 21 Neb. 541 : 786, 789,
863, 884.
Mannan v. Merritt, 11 Allen (Mass.),
582: 792.
Manning v. Dove, 10 Rich. 403 : 647.
V. Manning, 79 N. 0. 293 : 46.
Manseau v. Mueller, 45 Wis. 436 : 200.
Mantooth v. Burke, 35 Ark. 540, 544 :
952, 953.
Mapp V. Long, 62 Ga. 568 : 853.
Marbury v. Ruiz, 58 Cal. 11 : 486.
March v. England, 65 Ala 275 : 430,
579.
Mark v. The State, 15 Ind. 98 : 847,
' 853, 862.
Markham v. Hicks, 90 N. C. 204 : 299,
480.
Markoe v Wakeman, 107 111. 251 : 135.
Marks v. Marsh, 9 Cal. 96 : 686, 690.
Marquez v. Frisbie, 101 U. S. 473 :
937, 941.
Mart r. Lewis, 31 Ark. 203 : 410.
M^rrion, Matter of, 1 Copp, 363 : 928-
Marsh V. Holly, 42 Ct 453 : 135.
V. Lazenby, 41 Ga. 153 : 59, 60,
606.
V. Nelson, 101 Pa. St. 51 : 38.
Marahall v. Bacheldor (Kas.), 28 P.
168 : 364, 787.
V. Cook, 46 Ga. 301 : 241.
V. Cowles, 48 Ark. 362 : 947.
V. Sears, 79 Va. 49 : 55, 531, 533,
535.
Martel v, Somers, 26 Tex. 554 : 514,
530.
Martin v. Aultman (Wis.), 49 N. W.
749 : 221, 666.
V. Bond, 14 Colo. 466, 471 : 813.
V. Hargadine, 46 111. 332: 421.
V. Hughes, 67 N. C. 293 : 228.
V. Kirkpatrick, 30 La. Ann. 1214 :
295.
V. Knapp, 57 la, 336 : 156.
V. Lile, 63 Ala 406 : 555, 575.
V. Martin, 7 Md. 376 : 242, 374.
V. MoNeely, 101 N. C. 634 : 354.
V. O'Brien, 34 Miss. 31 : 32.
V. Piatt, 64 Mich. 639 : 420.
V. Sprague, 39 Minn. 53 : 137.
V. Walker, 43 La. Ann. 1019 : 702.
Martindale v. Smith, 31 Kas. 273:
449, 462.
Martou v. Ragan, 5 Bush (Ky.), 334 :
516.
Mash V. Russell, 1 Lea, 543 : 268, 583.
Mason v. O'Brien, 42 Miss. 420, 437 :
788.
Massey v. Womble (Miss.), 11 So. 188 :
576.
Massie v. Enyart, 33 Ark. 688 : 323,
518, 916.
Masten v. Amerman, 51 Hun, 244:
836.
Masters v. Madison Ins. Co., 11 Barb.
624: 950.
Matson v. Melchor, 43 Mich. 477:
519, 535.
Matthews v. Redwine, 25 Miss. 99:
808.
Mattox V. Hightshue, 39 Ind. 95: 45,
135.
Ixii
TABLE OF CASES,
Mauldin v. Cox, 67 Cal. 387 : ISl.
Mawson v. Mawson. 50 Cal. 539 : 599,
637, 708.
Maxon v. Periott, 17 Mich. 383 : 798,
799.
V. Scott, 55 N. Y. 347 : 530.
Maxwell v. Reed, 7 Wis. 583: 541,
781.
May V. Slade, 34 Tex. 305 : 649.
Mayfleld v. Maasden, 59 la. 517 : 179.
Mayman v. Reviere, 47 Tex. 357 : 408.
Mayor v. Hartridge, 8 Ga. 33 : 38.
Mayors v. Mayors, 58 Miss. 806 : 568.
Maysville Turnpike Co. v. How, 14 B.
Mon. 343: 768.
McAbe V. Thompson, 37 Minn. 134 :
776, 813, 816, 866.
McAbee v. Parker, 83 Ala. 169 : 674
McAfee v. Bettis, 73 N. C. 28 : 618,
646, 647.
V. Ky. University, 7 Bush, 135:
570.
McAlister v. Farley, 39 Tex. 561 : 640.
V. White (Vt), 13 Atlan. 602 : 651.
McAlpin V. Burnett, 19 Tex. 497 : 739.
McAnnich v. Miss. etc. R. Co., 30 la.
338: 27.
MoArthur v. Martin, 23 Minn. 74:
410, 413, 735.
McAuley's Appeal, 35 Pa. St 309:
873.
McAuley v. Morris, 101 N. C. 369:
676, 855.
McBrayer v. Dillard, 49 Ala. 174:
316.
McBride v. Reitz, 19 Kas. 133 : 827.
McBrown v. Morris, 59 Cal. 64 : 930.
McBryde v. Wilkinson, 29 Ala. 662 :
427.
McCabe v. Berge, 89 Ind. 335 : 915.
V. Mazzuchelli, 13 Wis. 584: 118,
375, 378.
McCaleb v. Burnett, 55 Miss. 83: 143.
McCall V. McCall, 15 La. Ann. 537 :
655.
V. Rogers, 77 Ala. 349 : 339.
McCanless v. Flinchum, 98 N. C. 358 :
678.
McCaun v. Hill, 85 Ky. 574: 667.
McCarthy's Appeal, 68 Pa St. 217:
316.
McCarthy v. Gomez (Tex), 19 S. W.
999: 697.
V. Van Der Mey, 43 Minn. 189 :
263, 493.
McCarty v. Steamer New Bedford, 4
Fed. 818 : 83.
McCauley v. Brooks, 16 Cal. 11 : 76a
McCauley's Estate, 50 CaL 544: 15,
394, 637.
McClary v. Bixby, 36 Vt 254: 138,
187, 315, 401.
McCleary v. Ellis, 54 la. 311 : 727.
MoCloy V. Arnett, 47 Ark. 453: 150,
298, 493, 706.
McClure v. BranifE, 75 la. 38 : 10, 117,
118, 184, 333, 333, 404.
McClurg V. Turner, 74 Mo. 45 : 631.
McClurkea V. McClurken, 46 HL 337
113, 365.
McCIuskey v. McNeely, 8 111. 578
777, 847.
McClusky V. Cromwell, 11 N. T. 601
34,47.
McComb V. Thompson, 43 O. St 139
419.
McConnaughy v. Baxter, 55 Ala 379
564, 579.
McConnell v. Beattie, 34 Ark. 113
733.
McCord V. Moore, 5 Heisk. 734: 418,
535, 918.
McCormack v. Kimmel, 4 Bradw.
131: 586.
McCormick v. Bishop, 38 la 333:
151, 179.
V. Neal, 53 Tex. 15 : 399.
V. Wilcox, 25 111. 247 : 294.
McCoy V. Brennan, 61 Mich. 362 : 783,
816, 863, 905, 909.
V. Cornell, 40 la 457 : 837.
V. Dail, 6 Bax. 137 : 807, S65, 875..
V. Grandy, 3 O. St 463 : 366.
V. McCoy, 36 La. Ann. 686 : 655.
V. Quick, 30 Wis. 521 : 691.
McCracken v. Adler, 98 N. C. 400:
158, 674, 679, 953.
V. Harris, 54 Cal. 81 : 306, 744
TABLE OF CASES.
Ixiii
McCrackin v. Weitzell, 70 la. 733 :
756.
V. Wright, 14 Johns. 193: 683.
McCrary v. Chase, 71 Ala. 540: 19,
560, 837, 871. '
' McCreary's Appeal, 74 Pa. St. 194 :
783. /
McCreery v. Fortson, 35 Tex. 641:
704.
V. Schaffer, 36 Neb. 173: 413.
McCrosky v. Walker (Ark.), 18 S. W.
169: 149.
McCrummen v. Campbell, 83 Ala. 566 :
556.
MoCuan v. Turrentine, 48 Ala. 70:
615.
McCue V. Smith, 9 Minn. 337 : 940.
V. Tunstead, 65 Cal. 506 : 807.
McCuUoch V. Maryland, 4 Wheat.
316 : 13. ■
McDaniel v. Mace, 47 la. 519: 155,
335.
V. Westberry, 74 Ga. 380 : 333.
MoDannell v. Ragsdale, 71 Tex 33 : 6,
181, 563, 584.
McDermott v. Kernan, 72 Wis. 268 :
573.
McDonald v. Badger, S3 Cal. 393 : 211,
671, 686.
V. Berry, 90 Ala. 464: 628, 633.
V. Campbell, 57 Tex. 614, 617-8:
245, 253, 801.
V. Clark (Tex.), 19 S. W. 1033:
741.
V. Crandall, 43 III. 281 : 366, 387,
401, 486, 583.
V. Edmonds, 44 CaL 338 : 633.
V. Logan Co. (Ark.), 18 S. W.
1047: 587.
V, McDonald, 76 la. 137: 464,
466, 620. ,
McDougal V. Bradford, 80 Tex. 558 :
596.
McDougall V. Meginniss, 31 Fla. 362 :
186.
McDowell V. Steele, 87 Ala. 493 : 903,
920,
McElroy v. McGriffln, 68 Tex. 208:
360.
McFarland v. Fish, 34 W. Va. 548:
840.,
V. Goodman, 6 Biss. Ill : 516,
522, 535.
V. Washington (Ky.), 14 S. W.
354 : 562, 585.
McGee v. McGee, 91 111. 548: 583,
613.
McGivney v. Childs, 41 Hun, 607:
■•874.
McGowan v. Baldwin, 46 Minn. 477 :
465.
McGrath t. Berry, 13 Bush, 391 : 548,
551.
V. Sinclair, 55 Miss. 89: 138, 141,
771.
McGuire v. Van Pelt, 55 Ala. 344:
138, 393, 471, 579, 665.
McHendiy V. Eeilly, 13 Cal. 76: 355.
McHugh V. Curtis, 48 Mich. 363 : 775,
803, 877, 901.
V. Smiley 17 Neb. 630 : 9, 19, 169,
396, 384, 396, 398, 561.
Mclnroy v. Dyer, 47 Pa. St. 118:
863.
Mclntire v. Plaisted, 68 Me. 368 : 609.
Mclnturf v. Woodruff, 9 Lea, 671:
568.
Mclntyre v. Roeschlaub, 37 Fed. 556 :
944.
McKee v. Wilcox, 11 Mich. 358 : 118,
119, 353, 375, 378, 472, 688.
McKeithan v. Terry, 64 N. C. 35 : 41,
303.
McKenzie v. Murphy, 24 Ark. 157:
37, 63, 96, 97, 150, 195, 775.
McKinney v. Hotel Co., 12 Heisk.
104:27.
V. Reader, 6 Watts (Pa.), 34 : 507,
542, 548.
McKinnie v. Shaffer, 74 Cal. 614 : 599.
McKinzie v. Perrill, 15 Ohio St. 168 :
169.
McLane v. Bovee, 35 Wis. 38 : 940.
V. Johnson, 48 Vt 49 : 434.
V. Paschal, 74 Tex.. 30: 334, 237,
339, 350, 403.
McLaren v. Anderson (Ala.), 8 So.
188 : 10, 333, 326, 673, 914.
Ixiv
TABLE OF CASES.
McLaughlin v. Bank, 7 How. 228 :
346.
V. Godwin, 23 Ala. 846 : 696.
V. Hart, 46 CaL 638 : 410, 413,
725, 875.
V. United States, 107 U. S. 526 :
930.
McLaurie v. Thomas, 39 III. 291 : 349.
McLaws V. Moore, 83 Ga. 177: 553,
554.
McLean v. Ellis, 79 Tex. 398: 27, 63.
McLellan v. Weston, 59 Ga. 883 : 441.
McLeran v. Benton, 43 Cal. 467 : 884.
McMahill v. McMahill, 105 111. 601:
583, 613.
McMahon v. Speilman, 15 Neb. 658 :
298.
McManany v. Sheridan (Wis.), 51 N.
W. 1011 : 703.
McManus' Estate <Cal.), 25 P. 413 : 800.
McManus v. Campbell, 37 Tex. 269.:
118, 905, 909.
McMaster v. Arliiur, 33 S. 0. 513:
649, 653.
McMasters v. Alsop, 85 IlL 157 : 783,
865.
McMillan v. Parker (N. C), 13 S. E.
764 : 144, 367, 952.
V. Warner, 38 Tex. 410 : 558, 562,
565.
McMurray v. Shuck, 6 Bush, 111 : 60.
McNair v. Reisher, 8 Pa. Co. Cfe 494 :
775.
McNally v. Mulherin, 79 Ga. 614 : 130,
917.
McPhee v. O'Eourke, 10 Colo. 301 :
64, 509.
McQuade v. Whaley, 31 Cal. 533: 170,
486.
McReynolds v. Counts, 9 Gratt. 242 :
631.
McRoberts v. Copeland, 85 Tenn. 311 :
139, 607.
McSkimiu v. Knowlton, 14 N. Y. S.
283: 827.
McTaggert v. Smith, 14 Bush, 414 :
6, 491, 548, 551.
Mc Williams v. Anderson, 68 Ga. 773 :
Mc Williams v. Bones, 84 Ga. 303:
356, 859.
V. McWilliams, 68 Ga. 459: 132.
Meacham v. Edmonson, 54 Wis. 746 :
96, 97.
Mead v. Larkin,.66 Ala. 87: 674.
Meade v. Finley^ 47 111. 406 : 138.
Meader v. Place, 43 N. H. 308: 66,93,
261, bSl.
Mebane v. Layton, 89 N. C. 896 : 158,
800, 480, 678.
Mechanics' Ass'n v. King, 83 Cal. 440 :
380, 383.
Medlenka v. Downing, 59 Tex. 39:
183, 191, 233, 251i'
Meech v. Meech, 37 Vt. 414, 418 : 457,
466.
Megehe v. Draper, 31 Mo. 510: 853.
Meguiar v. Burr, 81 Ky. 32 : 126.
Meigs V. Dibble, 73 Mich. 101, 118:
128, 505.
Mellichamp v. Mellichamp, 28 S. C.
135: 136.
Mellison v. Allen, 30 Kas. 383 : 947.
Melton V. Andrews, 45 Ala. 454: 333,
739.
Memphis v. United States, 97 U. S.
395: 678.
Menzie v. Kelley, 8 111. App. 359 : 776,
848, 853, 877, 901.
Mercer v. Chace, 11 Allen, 194 : 311,
283, 360, 615, 616, 695, 703.
Meredith v. Holmes, 68 Ala. 190 : 322,
338, 914.
Merrifield v. Merrifield, 82 Ky. 526 :
491.
Merrill v. Berkshire, 11 Pick. 369:
135..
Merriman v. Lacefield, 4 Heisk. 309 :
30, 615, 787.
Merritt t. Merritt, 97 IlL 349: 495,
618, 630.
Methery v. Walker, 17 Tex. 598 : 185.
Metz V. Cunningham, 6 Neb. 93 : 863.
Meux V. Anthony, 11 Ark. 411 : 520.
Meyer V. Berlandi, 39 Minn. 438: 295,
365.
V. Meyer, 23 la. 359 : 590, 593,
620, 632, 788, 801.
TABLE OF CASES.
]xv
Meyer v. Nickerson, 101 Mo. 184 : 669,
671, 672.
V. Pf eiffer, 50 111. 485 : 700.
Mlchaelis v. Michaelis, 43 Minn. 123 :
927.
Miohare v. Eckman (Fla.), 7 So, 365 :
863.
Mickles v. Tousley, 1 Cow. 114 : 771.
Middlebrooks v. Warren, 59 Ga. 230 :
232, 338.
Milburn Wagon Co. v. Kennedy, 75
Tex. 213: 154.
Mildmay v. Folgham, 8 Ves. Jr. 471 :
609.
MUes V. Fisher, 10 Ohio, 1 : 143.
V. Han, 13 Bush, 105 : 167.
V. Miles, 46 N. H. 261 : 598, 624,
694,695.
V. State, 78 Md. 398 : 771, 778.
Millard v. Jjawrence, 16 How. (U. S.)
251: 34.
Miller v. Brown, 11 Lea, 155 : 368.
V. Brownson, 50 Tex. 593 : 649.
V. Finegan, 36 Fla. 39 : 461.
V. Getz,'135 Pa. St 558: 873.
V. Little, 47 Cal. 348: 936, 933.
V. Marckle, 37 111. 405 : 423, 645.
V. Marx, 55 Ala 323 : 893, 438,
579, 588.
V. McCarty, 47 Minn. 331 : 875.
V. Menke, 56 Tex. 563 : 185, 343,
' 350, 647, 801.
V. Miller, 89 N. C. 403 : 300, 678.
V. Ruble, 107 Pa. St. 395 : 45.
V. Schnebly, 103 Mo. 368: 647,
705.
V. Shaw, 108 111. 277 : 555.
V. Sherry, 3 Wall. 337, 348 : 666,
780, 747.
V. Weeks, 46 Kas. 807 : 800.
V. Wolbert, 71 la. 539 : 434.
V. Yturria, 69 Tex. 549 : 482.
Miller's Appeal, 16 Pa. St. 300 : 231,
668, 778, 785.
Miller's Ex'r v. Finnegan, 26 Fla. 39 :
639.
Millington v. Fox, 13 N. Y. S. 334 :
837.
Mills V. Brown, 69 Tex. 344 : 181.
MUls V. Grant, 86 Vt 371 : 31, 315.
V. Grant's Estate, 36 Vt 269 : 187.
V. Hobbs, 76 Mich. 122, 136 : 199.
V. Spalding, 50 Me. 57: 11, 170,
346.
V. Van Boskirk, 33 Tex. 861 : 563,
567.
Milne v. Schmidt, 12 La. Ann. 538:
41.
Milwaukee Ins. Co. v. Ketterlin, 24
111. App. 188: 123. ^
Mims V. Ross, 42 Ga. 121 : 294, 455. •
Mineral Point R. Co. v. Barron, 83 111.
365 : 826, 901.
Minet v. Leman, 20 Beav. 369 : 34.
Minnesota v. Baohelder, 1 Wall. 109 :
941.
Minter v. Crommelin, 18 How. 88:
930.
Mintzer v. St Paul Trust Co., 74 Tex.
20 : 315, 543.
Missouri Life Ins. Co. v. Randall, 71
Ala. 320: 389.
Missouri Pac. R. Co. v. Whipsker, 77
Tex. 17 : 899.
Missouri R. Co. v. Maltby, 34 Kas.
135 : 889, 900.
Mitcham v. Moore, 73 Ala. 54 : 790.
Mitchell V. Bartlett, 51 N. Y. 453 : 380,
435.
V. Coats, 47 Pa. St 203 : 540, 817,
■ 873.
V. Hay, 87 Ga. 581 : 727.
V. Joyce, 69 la. 121 : 810.
V. Milhoan, 11 Kas. 617 : 194, 400,
444, 445.
V. Prater, 78 Ga. 767 : 442.
V. Rockland, 45 Me. 496 : 38.
V. Sawyer, 115 111. 650 : 780.
V. Skinner, 17 Kas. 565 : 515.
V. Warner, 5 Ct 497: 945.
Mitchelson v. Smith, 28 Neb. 586 : 30,
383.
Mix V. King, 66 111. 145 : 689, 748.
Mobley v. Andrews, 55 Ark. 333 : 697.
V. Griffin, 104 N. C. 112: 158,
367, 674, 953.
V. Mobley, 73 la. 654: 464, 593,
620.
Ixvi
TABLE OF 0ASE8.
Mock V. Pleasants, 34 ArK. 63 : 619.
V. Watson, 41 la. 244: 623.
Moflfat V. United States, 113 U. S.
24: 93].
Moffitt y. Adams, 60 la. 44 : 866.
Mohan v. Smith, 30 Minn. 259 : 676.
Mohawk R. Co. v. Artcher, 6 Paige,
83: 857.
Moline Plow Co. y. "Vanderhoof, 36
111. App. 36 : 568.
■' Moninger v. Ramsey, 48 la. 368 : 590,
593.
Monk V. Capen, 5 Allen, 146: 260,
615, 616.
Monniea v. German Ins. Co., 12 111.
App. 240: 836.
Monroe v. May, 9 Kas. 466 : 181, 194,
200, 201, 386, 514, 515, 530.
Monson v. Chester, . 23 Pick. 385:
38.
Montague v. Richardson, 24 Ct. 338 :
31, 818.
V. Selb, 106 111. 49 : 624.
Montgomery v. Casson, 16 Cal. 189:
768.
V. Robinson, 76 Cal. 339 : 380.
V. Tutt, 11 Cal. 190 : 717.
Montoursville Overseers v. Fairfield,
113 Pa St. 99 : 45.
Mooers v. Dixon, 35 111. 208: 495,
689, 748.
Moog V. Strang, 69 Ala. 98 : 4S8.
Mooney v. Moriarity, 86 111. App. 175 :
19, 217, 673, 748.
V. Railroad Co., 60 la. 346 : 896.
Moore v. Boozier, 42 Ark. 385 : 766,
878.
V. Dunning, 39 111. 130: 419, 580.
V. Flynn, 135 111. 74: 574.
V. Frost, 68 Ga, 296: 119, 535.
V. Granger, 30 Ark. 574 : 297.
V. Hageman, 27 Hun, 68 : 75.
V. Heaney, 14 Md. 563 : 900.
T. Ivers, 83 Mo. 29 : 121, 603.
V. Litchford. 35 Tex. 185 : 31.
V. Mcintosh, 6 Kas. 39 : 953.
T. Morrow, 28 Cal. 551 : 709.
V. O'Barr, 87 Ga. 305 : 739, 741.
V. Owsley, 37 Tex. 603 : 647.
Moore v. Parker, 18 S. C. 490 : 57, 80,
641, 657.
V. Reaves, 15 Kas. 150 : 118, 149,
362, 375, 378, 404, 515.
V. Robbins, 96 U. S. 530 : 931, 937,
941.
V. Titman, 33 111. 360: 44, 419,
495, 730, 748.
V. Whitis, 80 Tex. 440 : 185.
Moores v. Wills, 69 Tex. 109: 398,
584.
Mooring v. McBride, 62 Tex. 309 : 751.
Moran v. Claik, 30 W. Va. 358 : 103.
'541,547,550.
Morehead Banking Co. v. Whitaker
(N. C), 14S. E. 924: 417.
Moreland v. Barnhart, 44 Tex. 379 :
185, 191, 196, 399.
Morgan v. Holies, 36 Ct. 175 : 45.
V. Neville, 74 Pa. St. 53 : 896.
v.^tearns, 41 Vt. 398: 119, 215.
JJoriarity v. Gait, 112 111. 373.: 213,
217, 265, 266, 409, 495, 730.
Morrill v. Hopkins, 36 Tex. 686: 60,
373.
V. Seymour, 3 Mich. 64: 798, 812L
Morris v. Balkham, 75 Tex. Ill : 751.
V. Geisecke, 60 Tex. 633 : 391.
V. Sargent, 18 la. 90 : 115, 385,
423, 562.
V. Shafer, 93 Pa. St. 489: 778,
882.
V. Tennent, 56 Ga. 577 : 443, 443,
915.
V. Ward, 5 Kan. 239 : 314, 378,
384, 515, 630.
Morrison v. Abbott, 37 Minn. 116:
539.
V. MoDaniel, 30 Miss. 817 : 225.
v. Watson, 101 N. C. 340 : 677,
678.
V. Wilson, 30 Cal. 344: 632.
Morrissey v. Donohue, 32 Kas. 646 1
226.
V. Feeley, 36 111. App. 556: 849.
V. Stephenson, 86 111. 344 : 634,
751.
Morse Vv Goold, 11 N. Y. 381 : 41, 280,
768.
TABLE OF OASES.
IxVii
Morse v. Keyes, 6 How. Pr. 18: 805.
V. Towns, 45 N. H. 185 : 441.
Mortgage Co. v. Norton, 71 Tex. 683 :
398, 526.
Morton v. Blankenship, 5 Mo. 346:
940.
V. Carroll, 68 Miss. 699 : 653.
V. McCanless, 68 Miss. 810 : 143,
653.
V.Nebraska, 21 Wall 660, 674:
930.
Mosely v. Anderson, 40 Miss. 54:
116, 147, 186, 633, 864, 918.
V. Bevins (Ky.), 15 S. W. 537 : 366.
Moses V. McClain, 83 Ala. 370 : 393,
416.
Moshier v. Meek, 80 111. 79: 347.
Moss V. Warner, 10 CaL 306 : 31, 559,
563, 686, 690.
Motes V. Carter, 73 Ala. 553: 428,
576, 579.
Moughon V. Masterson, 59 Ga. 836:
488.
Moultrie v. Elrod, 33 Ga. 393 : 785.
Mouriquand v. Hart, 23 Kas. 594:
153, 181.
Moxley v. Ragan, 10 Bush, 158 : 539,
541, 869, 873. I
Moyer v. Drummond (S. C), 10 S. E.
953: 78.
V. McCuUough, 1 Ind. 339 : 940.
Mudge V. Lanning, 68 la 641 : 836.
Mueller v. Richardson (Tex. Sup.), 18
a W. 698 : 794.
Muhr V. Pinover, 67 Md. 488: 873,
874, 875.
Muir V. Bozarth, 44 la. 499 : 130, 423,
579.
V. Steinman, 52 Pa St 433 : 883.
Mulherrin v. Hill, 5 Heisk. 58 : 346.
Mullen V. Wine, 36 Fed. 206: 936.
Muller V. Inderreiden, 79 lU. 383 : 516,
535.
V. United States, 118 U. S. 271 :
931.
Mulliken v. Winter, 2 Duv. 256 : 836.
Mumper v. Wilson, 72 la 163 : 890.
Munchus V. Harris, 69 Ala 506 : 19,
560.
Mundell v. Hammond, 40 Vt 641 : 810.
Munds V. Cassidey, 98 N. C. 558 : 560,
774
Mundy t. Munroe, 1 Mich. 76 : 677.
Municipal Society v. Kent, 4 L. R. 9
App. Cas. 273 : 35, 33.
Munro v. Jeter, 34 S. C. 39 : 117, 134,
652.
Murchison v. Flyer, 87 N. C. 79 : 117,
130, 189, 480, 489.
Murdock v. Dalby, 13 Mo. App. 47 : 7,
58, 80, 116, 617, 878.
Murphy v. Cofieey, 33 Tex. 508 : 688.
V. Crouch, 24 Wis. 365: 395, 478,
516.
V. De France, 105 Mo. 53: 647,
694, 707, 713.
V. Hunt, 75 Ala 438, 441 : 11, 19,
164, 170, 564, 572, 579.
V. McNeil, 82 N. C. 231 : 79, 337,
480.
V. Rulh, 24 La Ann. 74 : 636.
V. Sherman, 35 Minn. 196 : 776,
816, 817.
Murray v. Rapley, 30 Ark. 568 : 365.
V. Sais, 53 Ga 257: 131, 171, 398,
442. I
Mut Life Ins. Co. v. Newton (N. J.),
15 Atl. 543 : 292.
Myers' Appeal, 78 Pa St 452 : 723.
Myers v. Conway, 90 Ala 109 : 920.
V. Ci-oft, 13 Wall. 291 : 949, 953.
V. Evans, 81 Tex. 317 : 384, 392.
V. Ford, 33 Wis; 134 : 75, 83, 93,
575.
V. Forsythe, 10 Bush, 394: 788.
V. Ham, 20 S. C. 522 : 157, 169,
445, 653.
V. Mott, 29 Cal. 359 : 309.
Mynatt v. Magill, 3 Lea, 72 : 885.
Myrick v. Bill, 3 Dak. 384, 293: 112.
K
Nance v. Hill, 26 S. C. 227 : 136, 157.
V. Nance, 28 111. App. 587 : 618,
920.
Nash V. Farrington, 4 Alien, 157:
305, 309, 536, 729, 817>
Ixviii
TABLE OF CASES.
Hash V. Norment, 5 Mo. App. 545:
923.
V. Young, 31 Miss. 134 : 461, 467.
Nashville Bank v. Ragsdale, Peck,
396: 309.
Naumburg t. Hyatt, 24 Fed. 898, 905 :
917, 918.
Neal V. Brockhan, 87 Ga 130 : 655.
V. Coe, 35 la. 407 : 185, 571.
V. Peikerson, 61 Ga. 346: 442.
V. Sawyer, 63 Ga. 352 : 60, 61, 65.
V. Seigel. 33 Ark. 63 : 525.
Neely v. Henry, 63 Ala. 361 : 549, 875,
885.
NefiE's Appeal, 21 Pa. St. 243 : 41, 788.
Nelson v. Commercial Bank, 80 Ga.
328 : 96, 98.
V. McCrary, 60 Ala. 301 : 515.
Neunnaier v. Vincent, 41 Minn. 481 :
294, 566.
Nevin's Appeal, 47 Pa. St 230 : 61.
Newbold V. Smart, .67 Ala. 336 : 356.
Newcomb v. Butterfield, 8 Johns.
343: 859.
Newell V. Hayden, 8 la. 140 : 896.
V. People, 7 N. Y. 99 : 26.
New England, etc. Co. v. Merriam, 3
Allen, 390 : 339.
New England Co. v. Eobson, 79 Ga.
757: 536.
Newhall v. Sanger, 93 U. S. 761 : 940.
Newkirk v. Marshall, 35 Kas. 77 • 953.
Newland v. Holland, 45 Tex. 588 : 67,
96, 695.
Newlin v. Osborne, 67 Am. Dec. 269 :
425.
Newman v. Farquhar, 60 Tex. 640:
391, 750.
. V. Franklin. 69 la. 244: 156, 558.
V. Home lus. Co., 30 Minn. 432 :
609.
V. Waterman, 63 Wis. 616 : 478.
V. Wiimts, 78 111. 397: 730.
New^Orleans v. Morris, 105 U. S. 600 :
515.
V. Paine, 49 Fed. 12 : 936.
Newsom v. Carlton, 59 Ga. 516 : 98.
Newton v. Calhoun, 68 Tex. 451 : 181,
573, 579.
Newton v. Howe, 39 Wis. 531 : 140,
909.
V. Summey, 59 Ga. 397 : 103.
Neyland v. Neyland, 70 Tex. 34: 597.
Nichol V. County of Davidson, 8 Lea,
389 : 157, 536, 607.
Nicholas v. Purczell, 31 la. 365 : 590,
592, 593, 598, 622, 626, 656,
657.
Nichols V. Claiborne, 39 Tex. 363:
803.
V. Council. 51 Ark. 36 : 947.
V. Denny, 37 Miss. 59 : 143.
V. Dibrell, 61 Tex. 539: 709.
V. Goodheart, 5 111. App. 574:
879.
V. Knowles, 17 Fed. 494 : 351.
V. Nichols, 61 Vt 436 : 423, 424,
559, 625.
V. Overaker, 16 Kas. 54: 337, 378,
404, 507.
V. Sennitt, 78 Ky. 630 : 667.
V. Shearon, 49 Ark. 75 : 398, 493,
652, 706.
V. Spremont, 111 111.631: 730.
Nicholson v. Leavitt, 4 Sand. 253 : 534
Niokols V. Winn, 17 Nev. 188: 135,.
930, 933.
Niehaus v. Faul, 43 O. St 63 : 230. _
Niles V. Harmon, 80 111. 396 : 403."
Noble V. Hook, 34 Cal. 639 : 164, 170.
Noel V. Ewing, 9 Ind. 37 : 449.
Nolan V. Reed, 38 Tex. 436 : ,155, 188,
334, 836.
Noland v. Wickham, 9 Ala. 169 : 808.
Norris v. Brunswick, 73 Mo. 257 : 910,
912, 913.
V. Callahan, 59 Miss. 140 : 460,
467.
V. Kidd, 28 Ark. 485 : 397, 517,
533, 739, 734, 888.
V. Morrison, 45 N. H. 490 : 117,
119, 616.
V. Moulton, 34 N. H. 392: 189,
215, 261, 616, 625, 668.
North V. Shearn, 15 Tex. 175: 101,
174, 400, 509, 730.
North Pres. Church v. Jevne, 32 IlL
314: 364.
TABLE OF OASES.
Ixix
North Star Works v. Strong, 33 Minn.
1 : 365, 675.
Northup V. Cross (N. D.), 51 N. W.
718 : 776, 863.
Norton v. Bradham, 21 S. C. 375, 381 :
31, 40, 66.
V. Nichols, 35 Mich. 150 : 433.
V. Norton (Ala.), 10 So. 436 : 616,
633, 705.
Notley V. Buck, 8 B. & C. 164: 34.
Notte's Appeal, 45 Pa. St. 361 : 389.
Nowland v. Lanagan, 45 Ark. 108:
878.
Howling V. Mcintosh, 89 Ind. 593:
10, 333, 759, 760, 916.
Nugent V. Carruth, 32 La. Ann. 444 :
178, 555.
Nussberger v. Conner, 78 Mo. 573:
817.
Nuzman v. Schooley, 36 Kas. 177 : 809.
Nycum v. McAllister, 33 la. 374 : 926,
950.
Nye V. Walliker, 46 la. 306: 156, 173,
315, 590.
o. ■
Oakley v. Oakley, 30 Ala. 131 : 696.
V. Van Noppen, 96 N. C. 347 : 669.
Oaks V. Heaton, 44 la. 116: 938, 947!
Oatman v. Bond, 15 Wis. 38 : 677.
O'Brien v. Hilburn, 9 Tex. 397 : 688.
V. Kreng, 36 Minn. 186 : 137.
V. Perry, 28 Mo. 500 : 940.
V. Young, 15 la. 5 : 433.
O'Connor v. Boylan, 49 Mich. 210:
535.
V. Ward, 60 Miss. 1037 : 514.
O'Docherty v. McGloin, 25 Tex. 73 :
90, 459, 631, 652,
O'Donnell v. Segar, 35 Mich. 367, 376 :
129, 509, 803, 813, 814, 901.
Officer V. Evans, 48 la. 557 : 515, 530.
Ogden V. Glidden, 9 Wis. 46 : 403.
V. Strong, 3 Paine, 584 : 35.
O'Gorman v. Fink, 57 Wis. 649 : 908.
V. Madden (Ky.), 5 S. W. 756 :
386.
Oliphant v. Hartley, 32 Ark. 465 : 518.
Oliver v. Snowden, 18 Fla. 823, 834 :
186, 192.
V. White, 18 S. C. 235 : 910, 914.
Olmstead v. Mattison, 45 Mich. 617 :
874.
Olson V. Orton, 38 Minn. 36 : 950.
O'Neil V. Beck, 69 Ind. 239 : 867.
V. Craig, 56 Pa. St. 161 : 542.
Ontario State Bank v. Gerry, 91 Cal.
94; 167,347,377,382.
Oppenheiraer v. Fritter, 79 Tex. 99 :
253, 501, 573.
V. Howell, 76Va.318: 55.
Orman v. Orman, 36 la. 301 : 373, 563,
591, 631, 699.
Ornbaum v. His Creditors, 61 Cal.
457: 185,311, 333.
Ordiorne's Appeal, 54 Pa. St 175:
'789.
Orr V. Box, 23 Minn. 485 : 290, 765.
V. Doughty, 51 Ark. 537 : 157.
V. Sbraf t, 23 Mich. 360 : 118, 131,
185. 233, 398, 739.
V. Stewart, 67 Cal. 275 : 950.
Ort V. Fowler, 81 Kas. 478 : 426.
Osborne v. Osborne, 76 Tex. 494 : 657,
V. Schutt, 67 Mo. 714:770.
V. Scoonmaker (Kas,), 28 P. 710:
558.
Osburn v. Sims, 62 Misa 429 : 461.
Osgood V. Maguire, 61 N. Y. 529 : 892.
O'Shaughnessy v. Moore, 73 Tex. 108 :
398, 526.
O'Shea v. Payne, 81 Mo. 516 : 388,
Ott V. Sprague, 37 Kas. 630 : 363, 375,
378, 886.
Ottumwa R, Co, v, Mc Williams, 71
la. 164 : 353.
V. Shannon, 91 Ind. 99 : 919.
V. Shannon, 75 Ind. 353 : 849, 863.
Owen V, Gibson, 74 Ga, 465 : 553.
Owens V. Hart, 62 la 630 : 156, 737.
V. Hobble, 83 Ala. 466 : 920.
P.
Pace V. Vaughan, 1 Gil. 30 : 859.
Pac. Min. Co. v. Spargo, 16 Fed. 348 :
953.
Ixx
TABLE OF OASES.
Packet Co. v. Keokuk, 95 IT. S. 80:
679.
Paddock v. Balgord (S. D.), 48 N. W.
840: 850.
V. Lance, 94 Mo. 283 : 874.
Paddon v. Bartlett, 3 Adolph. & E.
884: 41.
Padgett V. Norman, 44 Ark. 490 : 619.
Page V. Ewbank, 18 la. 580 : 179, 282.
V. Page, 50 Ga. 597 : 64, 620.
Paine v. Means, 05 la. 547 : 438.
Palmer v. Blair, 25 la. 230 : 590.
V. Conly, 4 Denio, 374 : 41.
V. Hawes (Wis.), 50 N. W. 341 :
240, 510.
V. Simpson, 69 Ga. 792 : 333.
V. Smith (Ga.), 13 S. E. 956 : 390.
Pardee v. Lindley, 31 111. 174: 187,
266, 405, 406, 644, 686, 730.
V. Markle, 111 Pa. St 551 : 351.
Pards V. Bittorf, 48 Mich. 275 : 46, 66,
572, 581.
Parham v. McMurray, 32 Ark. 261 :
886.
Pari.'!, etc. Ry. Co. v. Greiner (Tex.),
19 S. W. 564 : 690, 699.
Parisot v. Tucker, 65 Miss. 439 : 149,
225, 462, 629.
Parker v. Coop, 60 Tex. Ill : 317.
V. Haley, 60 la. 325 : 803.
V. King, 16 Wis. 223 : 225, 226.
V. Rhodes, 79 Mo. 88 : 910, 913.
V. Savage, 6 Lea, 406 : 10, 325.
Parkerson v. Wightman, 4 Strob. (S.
C.) 363 : 798.
Parkinson v. State, 14 Md. 184 : 25.
Parks V. Ct. Ins. Co., 26 Mo. App. 511 :
385, 389.
V. Cushman, 9 Vfc 320 : 309.
V. Hartford Ins. Co., 100 Mo. 373,
380 : 360.
V. Reilly, 5 Allen, 77 : 258, 623.
Parr v. Fumbanks, 11 Lea, 898 : 410,
583.
V. Newby, 73 Tex. 468 : 562.
Parrott v. Kumpf, 102 111, 423 : 213,
345, 500.
Parshley v. Green, 58 N. H. 271 : 797.
Parsons v. Cooley, 60 la 268 : 555.
Parsons v. Livingston, 11 la. 104 : 59,
78, 80, 84, 85.
Partes v. Stewart, 50 Miss. 721 : 64, 65,
147, 884, 398, 739.
Paschal v. Cushman, 26 Tex. 74: 224*
730.
Pasco V. Gamble, 15 Fla. 562 : 720.
Paston V. Blanks, 77 Tex. 330 : 207.
Pate V. Fertilizing Co., 54 Ga, 515 :
435, 443.
V. Harper, 94 N. C. 23 : 855.
V. Swan, 7 Blackf. 500 : 773, 862.
Patrick v. Baxter, 42 Ark. 175 : 297,
304, 671.
V. Ford, 5 Sneed, 530 : 325.
V. Rembert, 55 Miss. 87 : 333.
Patten v. Smith, 4 Ct 450-5 : 535, 802,
873, 918.
Patterson v. Kreig, 29 111. 514 : 422,
486, 686.
V. Linder, 14 la. 414:704
V, Patterson, 49 Mich. 176 : 625,
626.
V. Taylor, 15 Fla. 337: 421, 873.
Patton V. King, 26 Tex. 686 : 430.
Patty V. Pease, 8 Paige (N. Y.), 277:
403.
Paul V. Paul, 136 Mass. 286 : 67, 260,
585, 616, 623.
V. Reed, 52 N. H. 186 : 441.
Paulson V. Nunan, 72 Cal. 243 : 807,
879.
Paup V. Sylvester, 22 la. 371 : 788.
Payne v. Gibson, 5 Lea, 173: 840.
Peabody v. Minot, 24 Pick. 329 : 135.
Peake v. Cameron, 102 Mo. 568 : 285,
309.
V. Thomas, 39 Mich. 585 : 420.
Pearson v. Cox, 71 Tex. 246 : 859.
V. Minturn, 18 la. 36 : 285, 437.
Pease v. Sherlock, 63 Vt 692: 519,
710.
Peck V. Ormsby, 55 Hun, 265 : 213.
V.Webber, 7 How. (Miss.) 658:
304.
Peddle v. HoUinshead, 9 Ser. "•& R.
277: 670.
Peeler v. Peeler (Miss.), 8 So. 392 : 603.
Peevey v. Cabaniss, 70 Ala. 253 : 227.
TABLE OF CASES.
Ixxi
Pelan v. De Bevard, 13 la. 53 : 115.
Pelham v. Wilson, 4 Ark. 289 : 953.
Pelkey v. People, 8 111. App. 82: 853.
Pell V. Cole, 2 Met (Ky.) 252 : 365.
Pellat V. Decker, 72 Tex. 581 : 526,
571.
Pelzer v. CampbeU, 15 S. C. 596 : 124.
Pender v. Lancaster, 14 S. C. 25 : 56,
79, 101, 282.
Pendleton v. Hooper, 87 Ga. 108;
111, 739.
Pennel v. Weyant, 2 Harr. 501 : 392.
Pennington v. Seal, 49^ Miss. 528 : 11,
379, 514.
PentoD V. Diamond, 93 Ala, 610 : 761,
914
People V. Biggins, 96 111. 481 : 339.
V. Cameron, 7 111. 468 : 304.
V. Cooper, 83 111. 585 : 27.
V. Hoym, 20 How. (N. Y.) 76 : 33,
34
V. Johnson, 4 111. App. 346 : 886.
V. Lawrence, 36 Barb. 177 : 34
V. McClay, 3 Neb. 7 : 63, 863.
V. N. Y. Ry. Co., 13 N. Y. 78 : 24.
V. Palmer, 46 111. 403 : 777, 778,
847.
V. Plumsted, 2 Mich. 465 : 373.
V. Eossiter, 4 Cow. 143 : 14
V. Schoonmaker, 63 Barb. 44 : 34.
V. Shearer, 30 Cal 648 : 953.
V. Stahl, 101 111. 346: 339, 357.
V. Stitt, 7 ni. App. 394 : 365, 551,
586.
V. Supervisors, 13 Abb. New Cas.
431 : 24, 41.
V. Wright, 70 111. 398: 37.
Pepper v. Smith, 54 Tex. 115 : 570.
Perego v. Kottwitz, 54 Tex. 500 : 185.
Perkins v. Bragg, 29 Ind. 507 : 305,
309, 729, 883.
V. Pitts, 11 Mass. 135 : 135.
V. Quigley, 63 Mo. 498 : 149, 158,
615.
V. Trinka, 30 Minn. 241 : 948.
V. Wisner, 9 la. 320 : 797, 811.
Perrin v. Sargeant, 33 Vt. 84 : 41, 638,
651, 704
Perrine v. Perrine, 35 Ala, 644 : 696.
Perry v. Ashby, 6 Neb. 291 : 933.
V. MoLendon, 62 Ga. 604: 654
V. O'Hanlon, 11 Mo. 585 : 940.
V. Scott, 68 Tex. 308 : 560.
Peterman's Appeal, 76 Pa. St. 116:
788, 856.
Peterson v. Hornblower, 33 Cal. 375:
404
V. Little, 74 la. 333: 382.
Petesch v. Hambach, 48 Wis. 451:
478.
Petring v. Dry Goods Co., 90 Mo. 649 :
913.
Pettit V. Booming Co., 74 Mich. 314:
•837.
V. Fretz, 33 Pa, St 118: 45.
Petty V. Barrett, 37 Tex. 84 : 84 94,
181, 397.
Peverly v. Sayles, 10 N. H 358 : 31,
795.
Pfeiffer t. McNatt, 74 Tex. 640 : 349,
351, 854
Pfister V. Dascey, 68 Cal. 572: 165,
177, 335.
Phelan's Estate, 16 Wis. 76 : 79, 573.
Phelps V. Conover, 35 111. 272: 336,
346.
V. Finn, 45 la. 447 : 284, 675.
V. Goddard, 1 Tyler (Vt), 60 : 893.
V. Jepson, 1 Root (Ct), 48 : 143.
V. McDonald, 99 U. S. 306 : 709.
V. Phelps, 72 111. 545 : 541, 613, 869.
V. Porter, 40 Ga. 485 : 356.
V. Rooney, 9 Wis. 80 : 82, 147, 180,
188, 575, 577.
V. Shay (Neb.), 48 N. W. 896 : 364
952.
Philleo V. Smalley, 23 Tex. 498 : 181,
184
Phillips V. Bishop, 31 Neb. 863: 719.
V. Hunter, 3'H. Black. 403 : 892.
V. Mo. etc. R Co., 86 Mo. 540 : 27.
V. Root, 68 Wis. 138 : 573.
V. Springiield, 39 111. 83 : 516, 558,
563.
V. Stauch, 20 Mich. 369 : 352, 384,
420, 472.
V. Warner (Tex.), 16 S. W. 423:
113.
Ixxii
TABLE or OASES.
Phipps V. Acton, 12 Bush (Ky.), 375 :
372, 301, 547, 573, 635.
Pickens v. Reed, 1 Swan, 80 : 629.
Pickett V. Ferguson, 45 Ark. 177:
888.
Pierce v. Fort, 60 Tex. 464 : 433.
V. Gray, 7 Gray, 68: 798.
V. Jackson, 6 Mass. 342 : 309.
V. Kusic, 56 Vt 418 : 75.
V. Railway Co., 36 Wis. 283 : 893,
■ 896, 877.
Pierson v. Truax, 15 Colo. 223: 563,
780, 742.
Pike V. Miles, 23 Wis. 168 : 514, 516,
535.
Pilcher v. Railroad Co., 38 Kas. 516 :
875, 434, 945.
Pillow V. Bushnell, 5 Barb. 156 : 35.
Pinchain v. CoUard, 13 Tex. 383: 337,
346, 347, 739.
Pinkerton v. Tumlin, 32 Ga. 165 : 212,
673.
Pinkham v. Dorothy, 55 Me. 135 : 38.
Piper V. Johnston, 12 Minn. 60 : 333,
516, 533, 529.
Pittman's Appeal, 48 Pa St. 315 : 723.
Pittsfield Bank v. Howk, 4 Allen,
347:715.
Pixley V. Huggins, 15 Cal. 137: 953.
Pizzalla v. Campbell, 46 Ala. 40 : 333.
Plain V. Roth, 107 111. 588 : 380.
Plant V. Smythe, 45 Cal. 161 : 309, 880.
Planters' Bank v. Dickinson, 83 Ga.
711: 401,701.
Planters',-etc. Bank v. Willis, 5 Ala.
770: 673.
Plate V. Koehler, 8 Mo. App. 396:
459. 547, 653.
Piatt V. Sheriff, 41 La. Ann. 856 : 21,
327.
Platto V. Cady, 12 tVis. 465 : 83.
■Plimpton V. Sprague, 47 "Vt. 467:
847.
Plummer v. White, 101 111. 474 : 585,
683.
Poe V. Hardin, 65 N. C. 447: 300,
493.
Poland V. Vesper, 67 Mo. 737: 363,
519, 653.
Polk V. Wendell, 9 Cr. 99 : 930.
PoUak V. Caldwell, 91 Ala. 853:i572.
Pollard V. Thomason, 5 Humph. 56 :
771.
Pomeroy v. Buntings, 46 Ala. 254:
324
Pond V. Kimball, 101 Mass. 105 : 144,
866, 903, 906.
Pool V. Chase, 46 Tex. 310 : 433.
V. Wedemeyer, 56 Tex. 389 : 28,
38.
Poole V. Cook, 34 La. Ann. 381 : 39,
172.
V. Gerrard, 6 CaL 71 : 394, 423,
485, 555.
Pope V. Graham, 44 Tex. 198 : 366.
V. Harris, 94 N. C. 63 : 725.
V. Pope, 40 Miss. 616: 348.
Porter v. Bishop, 35 Fla. 749, 759:
937.
V. Chapman, 65 Cal. 865 : 131,
560, 561.
V. Pico, 55 C^l. 176 : 958.
V. Stewart, 50 Miss, 717 : 116,
186.
V. Sweeney, 61 Tex. 313 : 343.
Posey V. Bass, 77 Tex. 513 : 155, 325.
V. Lontey, 13 Phila. 410 : 854
Post V. Bird (Fla.), 9 So. 888: 699.
774, 921.
Potshuisky v. Krempkan, 26 Tex.
307: 294, 804, 866, 399.
Potter V. Safford, 50 Mich. 46 : 33.
Potts V. Davenport, 79 111. 456 : 116,
562.
Powe V. McLeod, 76 Ala. 418: 19.
Powell V. Eldred, 39 Mich. 553: 834.
Power V. Tuttle, 3 N. Y. 396: 41,
607.
Powers V. Leith, 53 Cal. 711 : 943.
V. Sample (Miss.), 11 So. 739.
Powles V. Innes, 11 M. & W. 10 : 609.
Prater. V. Prater, 87 Tenn. 78: 583.
Pratt V. Atkins, 54 Ga. 569: 379.
V. Burr, 5 Biss. 36 : 138, 506, 507,
547.
V. Deleran, 17 la. 807 : 727.
V. Topeka Bank, 12 Kas. 570 :
346, 347, 378, 728.
TABLE OF CASES.
Ixxiii
Pi'eiss V. Campbell, 59 Ala. 635 : 575,
579.
Prescott V. Prescott, 45 Cal. 58 : 164,
165, 170, 177, 211, 235.
V. Trueman, 4 Mass. 627 : 945.
V. Williams, 5 Met (Mass.) 433 :
945.
Pressley v. Robinson, 57 Tex. 458 :
207, 595.
Pribble v. Hall, 13 Bush, 66 : 269, 373.
Price V. Ass'n, 101 Mo. 107 : 707.
V. Osborn, 84 Wis. 34 : 45, 373.
Prichard v. Atkinson, 3 N. H. 335 :
945.
Pridgen v. Warn, 79 Tex. 588 : 840.
Primrose v. Browning. 59 Ga. 69:
442.
Prince v. Hake, 75 Wis. 638: 188.
V. Malone (Gal. Term, 1881) : 846.
V. Nance, 7 S. C. 351 : 786, 816.
Pritohard v. Ward, 64. Ga. 446: 157,
170.
Probate Court v. Wincb, 57 Vt. 282 :
6Q8.
Probst V. Soott, 81 Ark. 652: 835.
Prosser v. Hartley, 35 Minn. 340 : 814.
Prout V. Vaughn, 53 Vt. 451: 424,
519, 711, 873, 918.
Pryor V. Smith, 4 Bush, 379 : 346.
V.Stone, 19 Tex. 37: 158, 228,
232, 252, 577, 603.
Pudney v. Burkhart, 62 Ind. 179 : 862.
Puett V. Beard, 86 Ind. 173 : 830.
Pullen V. Monk, 83 Me. 412: 837.
Pulliam V. Sewell, 40 Ga, 73 : 41, 280.
Pureell v. Dittman, 81 Ky. 148 : 343,
347, 855, 500,
Purple V. Farrington, 119 Ind. 164:
906.
Putnam v. Young, 57 Tex. 464 : 709.
Putte V. Geller, 47 Mich. 560 : 519.
Pyett V. Rhea, 6 Heisk. 137: 780.
Q.
Quackenbush v. Danks, 1 Denio, 128 :
280.
Quehl V. Peterson (Minn.), 49 N. W.
391 : 565.
Quick V. Miller, 103 Pa. St. 67 : 45.
Quigley v. Gorham, 5 Cal. 418 : 804.
Quinby v. Conlan, 104 U. S. 430 : 937,
941, 949.
Quinn v. Brown, 71 la. 376 : 156.
V. Kinyon, 100 Mo. 551 : 31, 32.
Quinn's Appeal, 86 Pa. St. 447: 551.
K.
Rab'er v. Gund, 110 111. 581 : 113, 159,
213, 316, 365.
Race V. Oldridge, 90 111. 350 : 794.
Radcliff V. Wood, 25 Barb. '52 : 140,
145, 861.
Radford v. Lyon, -«5 Tex. 471 : 191.
333, 571.
Ragio V. State, 86 Tenn..a73 : 27.
Ragland v. Moore, 51 Ga..476: 729.
V. Rogers, 84 Tex. 617: 333, 640.
Jtailroad Co. v. Adams, 46 Ark. 159 ;
63.
V. Amos, 54 Ark. 163 : 315.
V. Baker, 122 Ind. 433 : 897.
V. pooley, 78 Ala. 534: 893.
V. Dunmeyer, 118 11.8. 639: 944.
V. Fremont County, 9 Wall. 89 :
932.
V. Kennedy, 90 Tenn. 185 : 832.
V. Knapp, 51 Tex. 593: 597.
V. Maltby, 34 Kas. 125: 893, 897.
V. May, 35 O. St. 347 : 896.
V. McShane, 22 Wall. 444 : 461,953.
V. Morgan, 42 Kas. 23 : 364, 787.
V. Prescott, 16 Wall. 603 : 953.
V. Ragland, 85 111. 375: 896, 899.
V. Smith, 9 -Wall. 95: 933.
V. Winter, 44 Tex. 597 : 253, 304.
Rainey v. Capps, 22 Ala. 388 : 579.
V. Chambers, 56 Tex. 17 : 632, 658.
Raley v. Ross, 59 Ga. 863 : 76.
Ramey v. Allison, 64 Tex. 697 : S9U
Ramsey v. Barnabee, 88 III. 135 : 801.
Randal v. Elder, 12 Kas. !257 : 112,
113, 147, 149, 151, 515.
Randall v. Buffington, 10 Cal. '491 :
509, 534
V. Tex. Cent R Co., 63 Tex. 586 :
386, 946.
btxiv
TABLE OF CASES.
Randell v. Edert, 7 Minn. 359: 940.
Randolph v. Little, 63 Ala. 397 : 11,
556, 637, 665.
Range Co. v. Alexe, 38 Mo. App. 184:
913.
Rankin v. Shaw, 94 N. C. 405 : 399,
533.
Ranney v. Miller, 51 Tex. 369 : 570.
Ransom v. Duff, 60 Miss. 901 : 733,
910.
Rasure v. Hart, 18 Kas. 340 : 793.
Ray V. Adams, 45 Ala. 168 : 410, 734
V. Hayes, 38 La. Ana 641 : 799.
V. Thornton, 95 N. 0. 571 : 673,
677.
V. Yarnell, 118 Ind. 113: 730, 731.
Rayburn v. Norton, 85 Tenn. 351:
548.
Raynes v. Whicher, 6 Allen, 393:
797, 803.
Read v. Livingston, 3 Johns. 500 : 434.
V. Rahm, 65 Cal. 343 : 165, 311,
313.
V. Sang, 31 Wis. 678 : 691.
Reasoner v. Markley, 35 Kas. 635:
953.
Reaume v. Chambers, 33 Mo. 36 : 131,
608.
Reoht V. Kelly, 83 111. 147: 541, 869,
885.
Re Church, 15 R L 345 : 799.
Cross, 3 Dill. 330 : 373.
Handlin, 3 Dill. 390: 144
Jones, 3 Dill. 343 : 814
Kennedy, 2 S. C. 316: 41, 380,
644
Lambson, 3 Hughes, 333 : 58, 63,
641, 644.
Poleman, 5 Biss. 536 : 418.
Smith, 3 Hughes, 307 : 144 905.
Turtelling, 3 Dill. 339 : 333.
Wells' Estate, 63 Vt. 116: 465,
593.
Wetmers, Deady, 585 : 799.
Whitehead, 3 N. B. R. 599 : 339.
Rector v. Ashley, 6 Wall. 143 : 944
V. Gibbon, 111 U. S. 276 : 941.
V. Rotton, 3 Neb. 171 : 373, 550,
687, 743, 747.
Redden v. Potter, 16 111. App. 265 :
918.
Redfern V. Redfern, 38 111. 509: 94
433.
Redfleld v. Hart, 13 la. 355 : 704, 729.
V. Parks, 133 U. S. 389 : 944
Red River, etc. Co. v. Sture, 33 Minn.
95 : 947.
Reece v. Renfro, 68 Tex. 193 : 360, 559.
Reed v. Bank, 39 Gratt 719 : 541.
V. Cooper, 30 Ka*. 574: 797, 798.
V. Def ebaugh, 34 Pa. St. 495 :
346.
V. Howard, 71 Tex. 204: 301.
V. Ownby, 44 Mo. 304 : 309.
V. Union Bank, 29 Gratt 719 :
54 230, 363, 549.
Reed Lumber Co. v. Lewis (Ala,), 10
So. 333: 870, 885.
Reeves v. Haynes, 88 N. C. 310: 79.
V. Petty, 44 Tex. 251 : 94 301,
658.
V. Sherwood, 45 Ark. 520 : 518.
Regan v. Zeeb, 38 Ohio St 483 : 618,
786.
Register v. Hensley, 70 Mo. 190 : 21,
464 637.
Reichart v. Felps, 6 Wall. 160 : 930.
Eeid V. McGowan, 28 S. C. 74: 405,
407.
Reifenstahl v. Osborne, 66 la. 567:
594
Reilly v. Reilly (IlL), 26 N. E. 604:
574 695.
Reinbach v. Walter, 37 111. 393 : 180,
737.
Reinhardt y. Reinhardt, 31 W. Va. 76 :
293, 643.
Reinhart v. Bradshaw, 39 Nev. 255 :
135, 933.
v. Soap Co., 33 Mo. App. 34: 933.
Reinstein v. Daniels, 75 Tex. 640 : 567.
Reithmiller v. People, 44 Mich. 380 :
25, 32, 34
Ren V. Driskell, 11 Lea, 649 : 31, 830.
Rendleman v. Rendleman, 118 IlL
357: 78.
Rennick v. Hendricks, 4 Bibb, 303:
553.
TABLE OF OASES.
Lkxt
Eepenn v. Davis, 72 la. 548:' 563.
Eeske v. Reske, 51 Mich. 541 : 49, 50,
194, 197, 198, 294.
Revalk v. Kramer, 8 Cal. 66 : 96, 384,
606, 608, 952.
Hex V. Commissioner, 6 AA & EI.
17: 24
Reybers v. McComber, 67 Cal. 895 :
882.
Reynolds v. Haines (la.), 49 N. W.
851: 886.
V.Hull, 361a. 394: 147, 152.
v. Morse, 53 la. 155 : 428, 423, 431.
V. Pixley, 6 CaL 165 : 137, 140,
211.
V. Robinson, 64 N. Y. 589 : 45.
V. Tenant, 51 Ark. 87: 304, 310,
745.
Rhea v. Rhea, 15 Lea, 527 : 268.
Rhead v. Hounson, 46 Mich. 244:
519.
Rhodes v. McCorraick, 4 la 368 : 151,
179, 184, 188, 319.
V. Williams, 13 Nev. 20 : 148, 905.
Rhorer v. Bvockhage, 86 Mo. 544 : 546,
574, 644, 653.
Rhyne v. Guevara, 67 Miss. 139 : 406,
409, 757.
Rice V. Nolan, 83 Kas. 28: 866, 885,
901.
V. Rice, 108 111. 199 : 265, 370.
V. Rudd, 57 Vt. 6: 187, 193, 567.
V. Southgate, 16 Gray, 142: 387.
Rich V. Tubbs, 41 Cal. 34: 601, 606.
Richai-da v. Chace, 2 Gray, 383 : 14,
384, 406, 554
V. Green, 73 111. 54 : 61, 64
V. Haines, 80 la 574: 866.
V. Hubbard, 59 N. H. 158 : 797.
V. Learning, 37 111. 482 : 849.
V. Shear, 70 Cal. 187 : 366.
Richardson v. Adler, 46 Ark. 48: 304
310, 671, 745, 882, 905.
V. Butler, 1 Va L. J. 120: 15.
V. Buswell, 10 Met. (Mass.) 506 :
818.
V. Duncan, 2 Heisk. 320 : 810.
V. Emswiler, 14 La. Ann. 658 : 43.
V. Hall, 124 Mass. 387 : 798.
Richardson v. Richardson, 49 Mo. 29 :
457.
V. Wallis, 5 Allen, 78 : 715.
V. Woodstock Co. (Ala), 8 So. 7:
429, 536.
Richie v. McCauley, 4 Pa St 471 :80a
Riddell v. Shirley, 5 Cal. 488 : 524
Riecke v. WestenhoflE, 85 Mo. 642 :
377, 379.
Riehl V. Bingenheimer, 28 Wis. 86 :
123, 375, 395, 897, 476.
Ries V. McClatchey, 128 Ind. 125 : 323,
760, 914
Eiggs V. Sterling, 60 Mich. 643: 169!.
194 "05.
Riley v. Gaines, 14 S. C. 454: 152.
V. Pehl, 23 Cal. 70 : 170, 211.
V. Smith (Ky.), 5 S. W. 869 : 7a
Eipperdon v. Cozine, 8 B. Mon. 466 :
552.
Ring V. Burt, 17 Mich. 465 : 352, 405,
406, 473, 549.
Rising V. Stannard, 17 Mass. 282 : 185.
Rix V. Capitol Bank, 2 Dilli 370 : 56a
V. McHenry, 7 Cal; 91 : 211.
Roach V. Hacker, 2 Lea, 634: 559,
566, 582.
V. Karr, 18 Kas. 534 : 426.
Robb V. McBride, 28 la 386 : 285, 487,
562, 573.
Robbins v. Bunn, 54 111. 48: 950, 95a
V. Cookendorfer, 10 Bush, 639:
422, 667.
Robert v. Adams, 88 Cal. 382: 798,
801, 807.
V. Coco, 35 La Ann. 199: 170,
172.
Roberts v. Cannon, 4 Dev. & Bat I*
267 : 33, 34
V. Cook, 68 Ga 334: 694
V. McGur, 83 Mich. 231 : 911, 9ia
V. Moudy, 30 Neb. 683 : 598, 773,
819.
V. Riggs, 84 Ky. 351 : 865.
V. Robinson, 63 Ga. 666 : 89a
V. Trammell, 55 Ga 383 : 375, 39a
V. Ware, 80 Mo. 363 : 547, 644
Robertson v. Paul, 16 Tex 473: 358».
4oa
Ixxvi
TABLE OF OASES.
Eobertson v. Sullivan, 31 Minn. 197 :
558, 569.
RobinsoM v. Baker, 47 MiGlitt,61© : 369,
625.
V. Davenport, 40 Tex. 333 : 373.
V. Hughes, 117 Ind. 393 : 773, 849;
906.
V. Leavitt. 7 N. H.. 103: 616.
V. McDonald, 11 Tex. 385: 138.
V. Smithey, 80 Ky. 636 : 116.
V. Stewart, ION. T. 189: 434.
V. Swearingin (Ark.), 17 S. W.
365 : 310, 730, 745, 840.
V. Wiley, IS N. T. 494: 31, 698,
/ 761.
V. Wilson, 15 Kas. 595 : 803, 304.
Robson V. Lindrum, 47 Ga. 353 : 619.
V. Rawlings, 79 Ga. 354: 536,874
Roche V. R. I. Ins. Co.,. 3 111. App.
360: 879.
Rook V. Haas, 110 IlL 528: 81, 265,
641, 656.
V. Kreig, 39 la. 239 : 404.
Roekafellow v. Peay, 40 Ark. 69 : 117.
Rockhey v. Rockhey, 97 Mo. 76 : 457.
Rockwell V. Hubbell, 3 Doug. (Mich.)
198: 41,380.
Roco V. G reen, 50 Tex. 489 : 38, 30,
45, 58.
Rodgers v. Ferguson, 32 Tex. 533:
804
Roe V. Gemmill, 1 Houston (Del.), 9 :
817.
Roff V. Johnson, 40 Ga. 555: 31, 77,
456, 606, 619, 645, 693.
Roger V. Adams, 66 Ala. 600 : 430.
Rogers v. Blum, 56 Tex. 1 : 333.
V. Braokett, 34 Minn. 279 : 913.
V. Fox (Tex.), 16 S. W. 781 : 773.
V. Green, 35 Tex. 735 : 736, 739.
V. Kinasey, 101 N. C. 559 : 9, 399.
V. Marsh, 73 Mo. 64: 388, 647,
707.
V. Mayes, 84 Mo. 520 : 644, 645.
V. Meyers, 68 111. 93 : 380.
V. Nichols, 20 Tex. 734 : 145.
V. Ragland, 43 Tex. 444 : 640.
V. Raiser, 60 la. 355 : 440, 441.
V. Renshaw, 37 Tex. 635 : 384
Rogers v. Savings Bank, 63 N. H. 428 :
; 187:
V. Trevathan, 67 Tex. 406 : 596.
V. Watermany 35 Pa. St. 184:
778.
Rohrer v. Cunningham, 138 Pa. St
163: 817.
Roigv. SchuJtz, 42 O. St. 165:, 419,
530.
Rolf V. Timmermeister, 15 Mo. App.
349, 707.
Rollings V. Evans, 23 S. C. 316 : 85.
Rollins V. Allison, 59 Vt. 188: 879.
V. O'Farrel 77 Tex. 90 : 579.
Root V. McGrew, 3 Kas. 215 : 41, 380.
Rose V. Blankenship (Tex.), 18 S. W.
101: 750.
V. Lumber Co., 73 Cal. 385 : 935,
953.
V. McHose, 26 Mo. 590 : 457.
V. Sharpless, 33 Gratt 153 : 535.
Rosenthal v. Scott, 41 Mich. 633 : 814
Ross V. Bourne, 14 Fed. 858 : 834
V. Bradford, 28 S. C. 71 : 445.
V. Hannah,. 18 Ala. 125 : 866.
V. Hawthorne, 55 Miss. 551 : 864
V. Hellyer, 36 Fed. 413 : 558, 565.
V. Smith, 44 Tex. 898 : 647, 705.
V. Worsham, 65 Ga. 624 : . 366,
550.
Rossiter v. Cossit, 15 N. H. 38 : 616.
Roth V. Insley, 86 Cal. 134: 953.
Rothgerber v. Dupey, 64 111. 453 : 38.
Rothschild v. Boelter, 18 Minn. 861 :
795.
Rottenberry v. Pipes,. 53 Ala. 447:
30, 494, 627, 637.
Roundy v. ConVerse, 71 Wis. 534:
873.
Rountree v. Dennard, 59 Ga. 629 : 80.
Roupe v. Carradine, 20 La, Ann. 244:
15, 41.
Rowe V. Kellogg, 54 Mich. 209: 46.
Rowell V. Powell, 53 Vt. 303: 309,
809.
Rowley v. Stray, 32 Mich. 70 : 84
Roy V. Clarke, 75 Tex. 38 : 353.
V. McPherson, 11 Neb. 197 : 604
Rozelle v. Rhodes, 116 Pa. St 134 : 840.
TABLE OF, CASES,
Ixxyii
Rube V. Sullivan, 23 Neb. 779 : 944;
Eubelman v. Kummel, 73 la. 40:
424,
Rudderow v. Stq,te, 31 N, J. L. 513:
25.
Rugg V. Hoover, 38 Minn. 404 : 365.
Ruggles V. Illinois, 108 U. S. 536 : 35.
Ruhl V. Kauffman, 65 Tex. 734: 191,
196.
Ruleman v. Pritchett, 56 Tex. 483:
431.
Runnels v. Runnels, 37 Tex 518 : 90,
457, 631, 637.
Runyan's Appeal, 27 Pa. St 121:
857.
Euohs V. Hooke, 3 Lea (Tenn.), 303 :
133, 395, 539.
Rush V. Gordon, 38 Kas. 535 : 188.
V. Valentine, 12 Neb. 513: 943.
Rushing v. Gause, 41 Ga 180 : 550.
Russ V. Henry, 58 Vt 388 : 193.
Russel V. Lowth, 21 Minn. 167 : 936.
Russell V. Cleary, 105 Ind. 503 : 760.
V. Dean, 30 Hun, 243 : 779, 866,
883.
V. Lennon, 39 Wis. 570 : 144, 815,
866, 903, 909.
V. Lewis, 3 Pick. 508 : 258.
V. Place, 94 U. S. 606 : 669.
V. Randolph, 26 Gratt 705 : 11,
279.
V. Rumsey, 35 IlL 362 : 437.
V. Speedy, 38 Minn. 303: 181,565,
566. 1
V. State, 77 Ala. 89 : 439.
Rutherford v. Jamieson, 65 Miss. 219 :
511.
Rutledge v. McFarland, 75 Ga. 774 :
■ 103.
V. Murphy, 51 Cal. 388 : 943.
V. Rutledge, 8 Bax. 33 : 806.
Rutt V. Howell, 50 la. 535 : 395.
Ruttenberg v. Pipes, 53 Ala. 453:
493.
Rutter V. Shumway, 16 CqIo. 95 : 764.
Ryan v. Pettigrew, 7 S. C. 146 : 739.
V. Wessels, 15 la. 145 : 394, 304.
Ryiiner v. Frank, 105 111. 336: 81,
265.
S.
Sa,ddleirs' Co. v. Badcock, 3 Atkyns,
554: 609.
St. Louis V. Gas Light Co. (Mo.), 9 S.
W. 681 : 135.
St Louis, etc. v. Hart, 38 Ark. 113 :
914
St Louis Type Foundry v. Publica-
tion Co., 74 Tex. 651 : 764.
St Paul's Church v. Ford, 34 Barb.
16: 135.
St Paul, etc. V. Forseth, 3 Land Dea
457: 940.
St Peter Co. v. Bunker, 5 Minn. 153 :
947.
Sale V. McLean, 39 Ark. 613 : 530.
V. Wingfield, 55 Ga. 633 : 338.
Sallee v. Walters, 17 Ala 488 : 58,,803.
Salsbury v. Parsons, 36 Hun, 13 : 817.
Sammis v. Smith, 1 N. Y. Sup. 444 :
797.
Sampson v. Williamson, 6 Tex. 109 :
297, 384, 431, 550, 554
Sanborn v. Stark, 31 Fed.' 18 : 351.
Sanderlin v. Sanderlin, 1 Swan, 441 :
59, 63.
Sanders v. Russell, 86 Cal. 119 : 708.
V. Sheran, 66 Tex. 655 ; 562.
Sandlin v. Robinson, 62 Ala. 477 : 517.
Sands v. Codwise, 4 Johns. 536 : 434.
V. Davis, 40 Mich. 14 : 941.
Sandwich Co. v. Zellmer (Minn.),, 51
N. W. 8(79 : 719.
Sanford v. Finkle, 113 IlL 146 : 133.
Sanner v. Shivers, 76 Ga, 335 : 835.
Sansberry v. Simms, 79 Ky. 537 : 593,
635, 641.
Sansom v. Harrell, 55 Ark. 573 : 741.
V. Harrell, 51 Ark. 439 : 640.
Santa Cruz v. Cooper, 56 CaL 339 :
94 96, 580, 640.
Sappington v. Oeschli, 49 Mo. 344 :
309, 880.
Sarahos v. Fenlon, 5 Kas. 593 : 225,
336.
Sargent v. Chubbuck, 19 la. 37 : 156,
173, 385, 437.
Sasser v. Roberts, 68 Ga. 353 : 817, 910.
Ixxviii
TABLE OF OASES.
Saulsbury v. McCallum, 65 Ga. 103:
525.
Saunders v. Commonwealth, 10 Gratt
494, 496 : 14.
V. Howard, 51 Tex. 23 : 403.
V. Wilson, 19 Tex. 194: 866.
Savage v. Davis, 134 Mass. 401 : 797,
806, 882.
Savannah, etc. R Co. v. Davis, 25
Fla. 917: 946.
Savery v. Browning, 18 la. 246 : 809,
880.
Savings Bank v. Evans, 28 S. C. 531 :
31.
V. Kennedy, 58 la. 454: 563.
V. United States, 19 Wall. 338,
239 : 13.
Sa\^T'er v. Heirs, etc., 38 Vt 349 : 796.
V. Perry, 63 la. 338 : 424.
V. Thompson, 4 Frost (N. H.),
510: 893.
Sawyers v. Sawyers, 93 N. C. 321 : 300.
Saylorv. Powell, 90 N. C. 303: 640,
641.
Scarborough v. Malone, 67 Ala. 570 :
579.
Schadt V. Heppe, 45 Cal. 433 : 81, 492.
Schaefer v. Kienzel, 123 111. 430 : 630.
Schseffer v. Beldsmeier, 9 Mo. App.
445 : 151, 518, 670, 758.
Schaife v. Argall, 74 Ala. 473 : 556,
567, 573, 579.
Schaller v. Kurtz, 25 Neb. 655 : 774,
918.
Schermerhorn v. Mahaffie, 84 Kas,
108: 694.
Scheuber v. Ballow, 64 Tex 166: 353.
Schlapback v. Long, 9 Ala. 525 : 905.
Schlarb v. Holderbaum, 80 la. 394:
465, 466.
Schlegel v. Beer Co., 64 How. (N. Y.)
196: 34
Schlicht V. State, 56 Ind. 173 : 916.
Schneider v. Bray, 59 Tex. 670 : 317,
435, 443, 592.
V. Hoffman, 9 Mo. App. 380 : 377,
457.
Schoffen v. Landauer, 60 Wis. 334 :
147, 409.
Schoolfield v. Houle, 18 Colo. 394:
938.
Schooner Pauline, 7 Cr. 152 : 34
Schouton V. Kilmer, 8 How. (N. Y.)
537 : 392, 822, 333, 761.
Schreiber v. Carey, 48 Wis. 215 : 118,
403, 730.
Schriber v. Piatt, 19 Neb. 625 : 888.
Schuelenburg v. Martin, 3 Fed. 747 :
351.
Schulenberg v. Harriman, 31 Wall
44: 946.
Schuler v. Miller, 45 O. St '325 : 418|,
419.
Schumann v. Piloher, 36 HL App. 43 :
850.
Schuyler V. Broughton, 76 CaL 524:
33, 165.
Schwacke v. Langton, 13 Phila. 403 :
836.
Scofield V. Hopkins, 61 Wis. 370 : 180,
194, 197, 300, 203, 204^ 394.
441, 513.
ScoUey v. Pollock, 65 Ga. 339 : 815.
Scott V. Brigham, 37 Vt 561: 316,
485, 443.
V. Cheatham, 78 Va. 83 : 15, 54
557.
V. Cunningham, 60 Tex. 566 :
658.
V. Kenan; 94 N. C. 396 : 53, 144.
908.
V. Lane, 109 N. C. 154: 703.
V. Simons, 70 Ala. 353 : 427, 438,
471, 579.
V. State,. 1 Sneed (Tenn.), 639 :
185.
Scruggs V. Foot, 19 S. C. 274 : 649.
Scull V. Beatty. 27 Fla. 426 : 447. 461.
Seals V. Pheiffer, 84 Ala. 859 : 687.
Seaman v. Luce, 23 Barb. 343 : 785„
865.
V. Nplen, 68 Ala. 463 : 393, 412,.
430, 471.
Seamans v. Carter, 15 Wis. 548 : 41.
Searle v. Chapman, 131 Mass. 19 : 117,
403, 413, 735, 875.
Sears v. Dixon, 33 Cal. 336 : 384, 485^.
486.
TABLE or OASES.
Ixxix
Sears v. Hanks, 14 O. St 298: 59, 112,
515, 516, 530, 533, 535, 730,
918.
V. Sears, 45 Tex. 557 : 67, 88, 96,
860, 459, 695.
Seatofl V. Anderson, 28 Wis. 215 : 403.
Seaton v. Marshall, 6 Bush, 429 : 58,
61.
V. Son, 33 Cal. 481 : 136, 140.
Seek V. Haynes, 68 Mp. 13 : 617.
Seeley V. GwUlim, 40 Ct. 106: 764,
792.
Seibert's Appeal, 78 Pa. St. 861: 381,
669.
Selb V. Mabee, 14 Bradw. (111. App.)
574:617.
V. Montague, 103111. 446: 617.
Seligson v. Collins, 64 Tex. 314 : 805,
730, 748, 755.
Sellers' Estate, 83 Pa. St 153: 788,
856.
Sentell v. Armor, 85 Ark. 49 : 138, 400.
Senter v. Lambeth, 59 Tex. 259 : 346.
Sergeant v. Steinberger, 3 Ohio, 805 :
143.
Servanti v. Lusk, 48 Cal. 238 : 140,
861, 909.
Settles V. Bond, 49 Ark. 114: 863.
Severson v. Porter, 73 "Wjs. 70, 77 :
9C8.
Sewall V. Jones, 9 Pick. 413 : 48.
Sewell V. Holland, 61 Ga. 608 : 443.
Seymour v. Cooper, 36 Kas. 539 : 833.
V. Sanders, 3 Dill. 437 : 925, 936,
947.
Shacklef ord v. Todhunter, 4 111. App.
271 : 169, 266.
Shacklett v. Soott, 23 Mo. App. 833 :
666, 668, 670.
Shadt V. Heppe, 45 CaJ. 437: 380.
Shaffer v. Hu£f, 49 Ga. 589 : 875.
Shannon v. Dillon, 8 B. Men. 889:
646.
V. Gray, 59 Tex. 251 : 644.
Sharon v. Wooldrlck, 18 Minn. 854 :
940.
Sharp V. Bailey, 14 la. 387 : 433.
V. Johnston (Tex.), 19 S. W. 359 :
569.
Sharp V. Spier, 4 Hill, 76 : 41.
Sharps v. Orm, 61 Ala 368: 438.
Shattless v. Melton, 65 Ga. 464: 648,
693, 697.
Shaw V. Davis, 55 Barb. 389: 796,
817.
V. Hearsey, 5 Mass. 533 : 359.
V. Millsaps, 50 Miss. 880 : 535.
Shawano Bank v. Koeppen (Wis.), 47
N. W. 733 : 514, 516.
Shay V. Wheeler, 69 Mich. 354 : 653.
Sheehy V. Miles, 93 Cal. 338: 657, 704.
Sheflfey v. Davis,, 60 Ala. 548: 678.
Shelby v. Burtis, 18 Tex. 651 : 391.
Sheldon v. Bliss, 8 N. Y. 31 : 857.
Sheley V. Detroit, 45 Mich. 431 : 35, 34,
788.
Shell V. Duncan, 81 S. C. 547 : 339.
V. Young, 83 S. C. 462 : 717.
Shelley's Appeal, 36 Pa. St 373: 542,
733.
Shelley v. Smith, 59 la, 453 : 835.
Shelo'r v. Mason, 3 S. C. 338 : 41.
Shelton v. Aultman, 83 Ala. 315 : 839,
428.
V. Carrol, 16 Ala. 148: 579, 696.
V. Hurst 16 Lea, 470 : 587.
Shepard v. Brewer, 65 111. 383 : 61, 123,
562, 586.
T. Cross, 33 Mich. 98 : 139.
Shepardson v. Rowland, 28- Wis. 108:
135.
Shepherd v. Cassiday, 20 Tex. 29:
558, 562, 567.
V. Murrill, 90 N. C. 308 : 866, 880.
V. White, 11 Tex. 354 : 838.
Shepley v. Cowan, 91 U. S. 830 : 941.
Sheppard v. Simpson, 1 Dev. 244:
725.
Sherman v. Clark, 24 Minn. 37 : 816.
Sherrible v. Chaffee (R. L), 31 Atl. 103 :
875, 878.
Sherrid v. Southwick, 43 Mich. 518 :
131, 138, 141, 352, 884, 472,
546.
Sherry v. Brown, 66 Ala. 51 : 556.
Sherwood v. Reade, 7 Hill, 431 : 41.
Shindler v. Givens, 68 Mo. 395 : 170,
171,388,66^,670,730. -
Ixxx
TABLE OF CASES.
Shinn v; Young, 57 Cal. 535 : 947.
Shipe V. Repass, 88 Gratt 734 : 55,,
531,. 533.
Shirack v. Shirack (Kas.), 34 Pac.
1107 : 574, 650;
Shirland v. Union Bank, 65 la. 96 :
563;
Shirley v. Teal, 67 Ala. 449 : 665.
Shiver v. Williams, 85 Ga. 583 : 910.
Shoemake v. Chalfant, 47 Cal. 433 : 70.
Shoemaker v. Collins, 49 Mich. 595 :
353, 430, 473, 688.
V. Gardner, 19 Mich. 96 : 688,
700.
Shoenberger v. Zook, 34 Pa. St. 34 :
439.
Shoet V. McGruder, 33 Fed. 46: 90.5.
Shofner v. Shofner, 5 Sneed, 95 : 639.
Shore v. Gastley, 75 Ga. 813: 78.
Shoreman v. Eakin, 47 Ark. 351 : 947,
950.
Shores v. Shores, 34 Mo. App. 308 :
115.
Short V. McGruder, 33 Fed. 46 : 513.
V. Medberry, 39 Hun, 39 : 824.
Showers v. Robinson, 43 Mich. 503,
510 : 493, 546, 547, 549, 587,
615, 644.
Shryock v. Latimer, 57 Tex 674 : 246,
251, 570.
Shubert v. Winston (Ala.), 11 So. 300 :
751.
Shumaker v. Johnson, 35 Ind. 33 : 45.
Sibley v. Baker, 33 Mich. 312: 403.
V. Lawrence, 46 la. 563 : 354.
Sides V. SchaiflE (Ala.), 9 So. 328 : 564.
Siebert v. Milligan, 110 Ind. Ill : 868.
Sigerson v. Sigerson, 71 la. 476 : 737.
Silberberg v. Pearson, 75 Tex. 387:.
394.
Silloway v. Brown, 13 Allen, 30 : 85,
87, 94, 135, 358, 580, 581, 616,
715.
Sillyman v. King, 36 la. 207 : 940.
Silsbe V. Lucas, 36 111. 462 : 337, 688.
Silverberg v. Trilling (Tex.), 18 S. W.
591: 719.
Simmon v. Walker, 38 La. Ann. 608 :
136.
Simmons v. Anderson, 56 Ga. 53:
372, 544, 548.
V. Ogle, 105 U. S. 271 : 953.
V. Spruill, 3 Jones' Eq. 9: 334
V. Wagner, 101 U. S. 360: 953.
Simon v. Walker, 38 La. Ann. 608 :
135.
Simonds v. Haithcock, 36 S. C. 595 :
157:
V; Powers, 38 Vt. 354 : 41, 638,
651.
Simons v. Bryce, 10 S. C. 354 : 450.
V. Lovell, 7 Heisk. 510: 813.
Simonton v. Mayblum, 57 Tex. 7 : 596.
Simpson v. Houston, 97 N. C. 344:
327.
V. Leech, 86 IlL 286: 907.
V. Rpbert, 35 Ga. 180 : 375.
V. Simpson, 80 Cal. 237 : 70, 555.
556, 777, 847, '862.
V. Wallace, 83 N. C. 477: 655.
Sims V. Eslava, 74 Ala. 594: 880.
V. Rickets, 35 Ind. 181 : 396.
V. Thompson, 39 Ark. 301 : 400.
Singer Manufacturing Co. v. CuUo-
ton (Mich.), 51 N. W. 687:
913.
Single V. Phelps, 30 Wis. 398 : 874.
Singletary v. Hill, 43 Tex. 590 : 603.
Singleton v. Hu£f, 49 Ga. 584: 619.
Sioux City, etc. Land Co. v. GifiEey,
143 U. S. 40: 944.
Size V. Size, 34 la. 580: 590, 591, 632.
Skaggs V. Nelson, 35 Miss. 88 : 339.
Skinner v. Beatty, 16 Cal. 157 : 333,
717.
V. Chapman, 78 Ala 376 : 30.
V. Hall, 69 Cal. 195 : 177, 233, 235.
V. Moye, 69 Ga. 476 : 85, 488, 526,
561.
V. Reynick, 10 Neb. 333: 951.
Y. Shannon, 44 Mich. 86 : 905.
909.
Skonten v. Wood, 57 Mo. 380: 116,
363, 464, 518, 547, 603, 617,
637.
Slagel V. Murdock, 65 Mo. '533 : 669.
Blanker v. Beardsley, 9 O. St. 589 :
786, 874.
TABLE, or OASES*
Ixxxi
Blatter v. Meek, 35 Ala. 538 : 696.
Slaughter v. Detiney, 15 Ind;49: 874,
915.
V. McBride„69 Ala. 510: 19, 393,
471.
Slavin v. Wheeler, 61 Tex. 658 : 570.
Sloan V. Campbell, 71 Mo. 387 : 912.
V. Price, 84 Ga. 172: 241.
V. Waugh, 18 la. 224: 283.
Sluder v. Rogers, 64 N. C. 289 : 279,
637.
Small V. Cli£ford, 38 Me. 213: 135.
V. Hicks, 81 Ga. 691 : 554.
Smalley v. Masten, 8 Mich., 529: 798*
812.
Smelting Co. v. Kemp, 104 U. S. 647 :
135, 933, 941.
Smiley v. Biffle, 2 Ban-, 52: 646.
V. Bowman, 3 Grant Cas. 132:
542. .
Smith V. Allen, 39 Miss. 469: 514
V. Bradstreet, 16 Pick. 264 : 304.
V. Brooke, 49 Pa. St 147 : 825.
V. Brown, 28 Miss. 813 : 279.
V. Bunn, 75 Mo. 559 : 558, 562.
V. Carmody, 137 Mass. 126 : 545.
V. Chadwick, 51 Me. 515: 305,
309, 729, 882.
V. Chiise, 71 Me. 164: 804
V. Chenault, 48 Tex. 455 : 118.
V. Dauel, 29 111. App. 290 : 854
V. Dean, 15 Neb. 433 : 397.
V. Deschaumes, 37 Tex. 429 : 138.
V. Eaton, 50 la. 488: 590.
V. Echels, 65 Ga. 326 : 811, 848.
V. Emerson, 43 Pa. St 456 : 536,
919.
V. Enos, 91 Mo. 579 : 171; 390.
V. Ewing, 11 Saw. 56: 940.
V. Ezell, 51 Ga. 570: 64 279, 687.
V. Fellows, 58 Ala. 467 : 870, 885.
V. Gibbs, 6 Gray, 298 : 802.
V. Gore, 28 Kas. 488 : 444
V.Grant,. 15 8. C. 150: 450.
V. Harris, 76 Ind. 104 : 906.
V. Headley, 33 Minn. 384 : 365.
V. High, 85 N. C. 93 : 334
V. Hill (la.), 49 N. "W;. 1043 : 838.
V. HUl, 22 Barb. 656 : 779, 858.
Smith V. Hollis, 46 Ark. 33 : 95a
V. Hunt, 68 N. C. 482 : 855.
V. Johnson, 71 Ga. 748 : 835.
V. Kerr, 2 Dill. 50: 516.535.
V. Laokeri 23 Minn. 454 : 362, 37T.
V. Mallone, 10 S. C. 40 : 451, 550.
V. Marc, 26 111. 150: 41, 294 373,
421, 550, 552.
V. McDonald, 95 N. C. 163 : 640.
V. McGinty, 101 Pa. St 402: 835.
V. Miller, 31 111. 157 : 44, 329, 405, .
406, 423, 556.
V. Omans, 17 Wis. 395 : 10, 18,
324 761.
V. Pearce, 85 Ala. 264: 429, 578.
V. Porter, 10 Gray, 66 : 385, 435.
V. Protin, 4 Allen, 516: 258.
V. Quiggans, 65 la. 687 : 184 188,
232.
V. Eagsdale, 36 Ark. 297 : 10, 323,
881.
V. Roberts, 61 Ga. 323 : 142.
V. Rogers, 16 Ga 479 : 795.
V. Rumsey, 88 Mich. 183 : 420,
472, 514, 516, 519, 730.
V. Scherck, 60 Miss. 491 : 348,
376, 380.
V. Shepherd, 63 Ga. 454 : 544, 54a
V. Shrieves, 13 Nev. 303 : 170, 171,
238
V. Sills, 126 Ind. 205 : 829.
V. Slade, 57 Barb. 641 : 765, 776,
785, 806.
V. Sinith, 12 Cal. 328: 112.
V. Steele, 13 Neb. 1 : 952.
V. Stewart, 13 Nev. 70 : 170, 213,
335.
V. Turnley, 44 Ga. 248 : 814
V. Uzzell, 56 Tex. 315 : 559, 570,
596, 601.
V. Van Hutton, 75 Tex. 625 : 81,
381, 597.
V. Whittle, 50 Ga. 636: 41, 294
855.
V. Wood, 83 Ind. 522: 323, 759.
V. Zuckmeyer, 53 la. 14 : 593, 622.
Smith's Estate, 51 Cal. 564: 627.
Smith's Ex'r v. Cockrell, 66 Ala. 64:
515.
Ixxxii
TABLE OF OASES.
Smothers v. Holly, 47 HI 331 : 865.
Smythe v. Fiska 33 Wall. 374: 838.
V. Kane, 42 Mo. App. 253: 781.
Snapp V. Snapp, 87 Ky. 554: 189, 667.
Snedecor v. Freeman, 71 Ala, 140 : 138.
Sneed v. Commonwealth, 6 Dana,
339: 25.
V. Jenkins, 90 Tenn. 137 : 790.
Sneider v. Heidelberger, 45 Ala. 126 :
41, 280.
: Snell V. Palmer, 12 Bradw. 337 : 436.
■ Snider v. Martin, 55 Ark. 139 : 730,
734.
Snodgrass v. Parks, 79 Cal. 55 : 107,
357.
V. Snodgrass, 40 Kas. 494: 69.
Snook V. Snetzer, 35 O. St. 516: 888,
890, 893.
Snyder v. People, 26 Mich. 110: 46,
352, 472, 546.
V. Snyder, 3 Barb. 621 : 41.
Solary v, Howlett, 18 Fla. 756 : 193,
195.
Solomons v. Shaw, 35 S. C. 112 : 280.
Somers v. Emerson, 58 N. H. 48 : 808,
919.
Sontag V. Schmisseur, 76 111. 541 :
605, 636.
Sorrels v. Self, 43 Ark. 451 : 936, 951.
Sossaman v. Powell, 31 Tex. 665:
459, 597, 603, 640, 652.
Soulier v. Sheriff, 37 La. Ann. 162 :
145.
Southerland v. Whittington, 46 Ark.
385: 949.
South Minnesota, etc. v. Gallipean, 3
Land Deo. 166 : 940.
South wick V. Davis, 78 Cal. 504: 31.
Souverbye v. Arden, 1 Johns. Ch.
355: 879.
Spafford v. Warren, 47 la. 47 : 427.
Sparger v. Campton, 54 Ga. 185 : 21,
333.
Sparrow v. Strong, 3 Wall. 97 : 949.
Spangler v. Kaufman, 43 Mo. App.
5: 773.
Spaulding v. Crane, 46 Vt. 393 : 6, 26,
183, 187, 189, 192.
V. Warner, 59 Vt. 646 : 519, 712.
Spaulding's Appeal, 52 N. H. 336:
263,625,657.
Spear v. Evans, 51 Wis. 43 : 363, 4ia
Speidel v. Schlosser, 13 W. Va. 686 :
103, 293, 547, 643.
Spelman v. Aldrich, 136 Mass. 117 :
840.
Spencer v. Blaisdell, 4 N. H. 198:
809.
v. Fredendall, 15 Wis. 666: 377,
426.
V. Geissman, 37 Cal. 99: 104, 113,
117.
Spengler v. Kaufman, 46 Mo. App.
644 : 826, 923.
Spier's Appeal, 26 Pa. St. 234: 789.
Spiess V. Neuberg, 71 Wis. 279 : 95a
Spikes V. Burgess, 65 Wis. 428 : 804
Spiro V. Paxton, 3 Lea. 75 : 137, 904.
Spitley V. Frost, 15 Fed; 399 : 30, 335,
687, 730, 743.
Sponger v. Compton, 54 Ga. 355 : 913.
Spoon v. Reid, 78 N. C. 344 : 157, 676.
V. Van Fossen, 58 la. 494: 123,
433.
Spooner v. i^letoher, 3 Vt 133 : 802,
859.
Sprague v. Birdsall, 3 Cow. 419 : 3&
V. Brown, 40 Wis. 612 : 863.
Springer v. Lewis, 33 Pa. St 191 : Sia
Sproul V. Atchison N. Bank, 22 Kas.
336: 514.
Squire v. Mudgett, 61 N. H. 149: 11,
117, 279, 625.
Stack V. Bare, 39 Kas. 100 : 889.
Stafiord v. Elliott, 59 Ga. 838: 544,
548.
Stahl V. Stahl, 114 111. 375 : 73.
Stallings v. Read, 94 Ind. 103 : 765,
776, 862.
Stamm v. Stamm, 11 Mo. App. 698 :
69.
Staniels v. Raymond, 4 Cush. 314 : 880.
Stanley v. Baker, 75 Mo. 60 : 291.
V. Ehrman, 83 Ala. 315 : 556.
V. Greenwood, 34 Tex. 335 : 323.
V. Snyder, 43 Ark. 439 : 66. 94.
95, 96, 514, 580, 590, 865.
V. Sullivan, 71 Wis. 585 : 745.
TABLB OF CASES.
Ixxxiii
atansell v. Roberts, 13 Ohio, 148: 339.
Stanton v. French, 83 Cal. 194: 776,
805, 811.
V. Hitchcock, 64 Mich. 816: 81,
430, 583.
V. McMullen, 7 III. App. 336 : 854,
863.
Staples V. Keister, 81 Ga. 773 : 341.
V. Staples, 4 Me. 583 : 824.
Stark V. Bare, 39 Kas. 100 : 893.
V. Starrs, 6 Wall. 402 : 953.
Starnes v. Allen, 58 Ala. 316 : 815.
State V. Atkine, 53 Ark. 803 : 723.
V. Barada, 57 Mo. 563 : 780, 783.
V. Batchelder, 5 Minn. 178 : 940.
V. Boulden, 57 Md. 818 : 764, 778,
785.
V. Bowden, 18 Fla. 17:' 904.
V. Burnett, 6 Heisk. 186 : 37.
V. Carroll, 9 Mo. App. 275 : 782,
874.
V. Chaney, 36 Mo. App. 513 : 877.
V. Clark, 54 Mo. 17, 36 : 35.
V. Cobb, 4 Lea, 481 : 916.
V. Com'rs, 34 Wis. 163 : 83.
V. Conner, 73 Mo. 572 : 869.
V. Cunningham, 6 Neb. 90 : 786.
V. Davis, 46 Mo. 108 : 290, 391.
V. Day (Ind. App.), 39 N. E. 436 :
906, 909.
V. Dittmar, 130 Ind. 54: 890, 891.
V. Diveling, 66 Mo. 375: 116, 288,
289, 515, 535, 668.
V. Emmerson, 74 Mo. 607 : 666,
778, 782, 871.
V. Finn, 8 Mo. App. 264: 80, 561,
783, 878. ■
'v. Geddis, 44 la. 539 : 385, 439.
V. Haggard, 30 Tenn. 390 : 780.
V, Hallett, 8 Ala. 159 : 564
V, Harper, 130 Ind. 33: 781, 849.
V. Harrington, 33 Mo. App. 476 :
850,' 890.
V. Heman, 70 Mo. 441 : 35.
V. Houck (Neb.), 49 N. W. 462 :
771.
V. Kane, 43 III App. 42 : 59, 80,
773, 780.
V. Kinne, 41 N. H. 338 : 14
State V. Koch, 40 Mo. App. 635 : 920.
V. Krumpus, 13 Neb. 831 : 884
V. Kurtzborn, 3 Mo. App. 337 :
774 783, 850.
V. Manly, 15 Ind. 8 : 305, 739, 882.
V. Mason, 88 Mo. 238 : 119, 878,
671, 672, 913.
V. Mcintosh, 100 Ind. 439 : 760.
V. Melogue, 9 Ind. 196 : 339„334
667, 866.
V. Moore, 19 Mo. 871 : 671.
V. Orahood, 37 Mo. App. 496 : 911.
V. Pitts, 51 Mo. 133 : U, 337.
V. PoweU, 44 Mo. 438: 671.
V. Eead, 94 Ind. 103: 778, 853,
905. '
V. Reitz, 63 Ind. 159 : 37.
V. Eomer, 44 Mo. 99 : 780.
V. Sanford, 12 Neb. 425 : 884
V. Shacklett, 87 Mo. 284: 671.
V. Spaude, 37 Minn. 322: 27.
V. Spencer, 64 Mo. 355 : 144 904
V. Springer, 45 Mo. App. 252 :
746.
V. Stewart, 89 N. C. 568 : 540.
V. The Judges, etc., 37 La. Ann.
109 : 39, 594
V. Thompson, 10 La. Ann. 133 :
53.
V. Turnpike Co., 16 O. St. 308 : 33.
V.Wilcox, 45 Mo. 458: 27.
V. Williford, 36 Ark. 155 : 881.
V. Wilson, 81 Neb. 463 : 611, 774,
786, 884
State Bank v. Carson, 4 Neb. 503:
136, 296, 687, 742, 878.
State Savings Bank v. Harbin, 18
S. C. 435 : 408, 413, 716, 717.
Stayton v. Halpern, 50 Ark. 329 : 398,
493, 706.
Stebbins v. Puler, 29 Vt. 289 : 445.
Steel V. Smelting Co., 106 U. S. 447 :
941.
Steele v. Leonori, 38 Mo. App. 675,
683: 774
V. Lyford, 59 Vt. 330 : 809.
Steen v. Hamblet, 66 Miss. 113 : 771.
Steenbergen v. Gowdy (Ky.), 19 S. W.
186: 363.
lixxiv
TABLE OF OASES.
Stein V. Burnett, 43 Mo. App. 477:
877.
Stephens v. Hume, 25 Mo. 349 : 121,
603.
V. Lawson, 7 Blatohf. 275 : 862.
V. Montgomery, 74 Ga. 832 : 103.
V. Smith, 62 Ga. 177 : 341.
Stephenson v. Eberhart, 79 Ga. 116 :
85, 488, 536.
Stevens v. Carson, 27 Neb. 501 : 884,
918.
V. Castel, 63 Mich. Ill : 396.
V. HolUngsworth, 74 111. 202: 158,
730.
V. Home, 62 Mo. 473 : 288.
V. Myers, 11 la. 183: 727, 755.
V. Stevens, 10 Allen, 146 : 355,
465, 406, 596, 593.
Stevenson v. Jackson, 40 Mich. 702 :
173, 352, 420, '472.
V. Marony, 29 111. 532 : 357. 683.
V. Moody, 85 Ala. 33 : 165, 749,
866.
V. Osborne, 41 Miss. 119: 41, 280,
767.
y. White, 5 Allen, 148 : 536.
Stevrart v. Brand, 23 la. 477 : 85, 466,
572, 590, 591.
V. Brown. 37 N. Y. 350 : 144, 874,
904, 905, 909.
V. Croes, 10111.443: 727.
V. Mackey, 16 Tex 56 : 84, 96,
295, 297, 387, 399, 421, 550,
568, 655.
T. Rhoades, 39 Minn. 193 : 566.
v. Stevi^art, 27 W. Va. 177 : 103.
V. Stishor, 83 Ga. 297-9: 418,553,
745.
V. Sutherland (Cal.), 28 P. 947 :
953.
V. Welton, 32 Mich. 56 : 801, 813.
Stiles V. Brown, 16 Vt. 565: 385, 425.
Stillson V. Gibbs, 46 Mich. 215: 779,
817. 864.
Stinde v. Behrens, 81 Mo. 354: 289,
531.
Stinson v. Richardson, 44 la. 373-5 :
117, 118, 395, 427, 576.
Stith V. Lookabill, 76 N. C. 465 : 820.
Stockton V. Knoolr, 73 Cal. 425 : 70.
Stockwell V. Bank. 36 Hun, 583: 840.
V. Thomas, 76 Ind. 506 : 915.
Stoinski v. Pulte, 77 Mich. 322: 684.
Stokes V. Amerman, 55 Hun, 178:
836.
V. Georgia, 46 Ga. 413 : 339.
Stone V. Darnell, 20 Tex. 14 : 174, 304,
355, 357.
V. McCann, 79 Cal. 460 : 671.
V. Spencer, 77 Mo. 356 : 769.
Stoops V. Woods. 45 Cal. 439 : 608.
Story V. Marshall, 24 Tex. 305 : 397.
V. Walker, 11 Lea, 515: 798.
Stotesbury v. Keitland, 35 Mo. App.
157 : 769, 920, 923.
Stout V. McNeill, 98 N. C. 1 : 144.
V. Rapp, 17 Neb. 463, 470 : 398.
739.
Stovall V. Fowler, 72 Ala. 77: 427.
Stow V. Lillie, 63 Ala. 259 : 572, 575.
Stowe V. Wyse, 7 Ct 214: 392.
Straat v. Einkle, 16 Mo. App. 115:
668, 669, 670.
Strachn v. Foss, 42. N. H. 43 : 261, 346,
392.
Strange v. Strange, 76 Va. 240: 54
557.
Strann v. Norris, 21 Ark. 80 : 535.
Stratton v. McCandliss, 32 Kas. 512 :
444.
V. Perry, 2 Tenn. Ch. 633 : 346.
Straus V. Rothan, 102 Mo. 261 : 910.
V. Sole Leather Co. (Mo.), 14 S. W.
913, 940.
Strauss v. Harrison, 79 Ala, 324 : 393,
438.
Streeter v. Rolf, 13 Neb. 388 : 940.
Strieker v. Kubusky, 35 111. App. 159 :
848.
Striker v. Kelly, 3 Denio, 333: 41.
Stringer v. Swensoni 63 Tex. 7 : fi71.
Stringfellow v. Sorrels (Tex.), 18 S.
W. 689 : 629.
Striplin v. Cooper, 80 Ala. 356: 577,
579.
Strohecker v. Irvine, 76 Ga. 639 : 366.
Strong' V. Clem, 12 Ind. 37 : 449.
v. Waddell, 56 Ala. 471 : 357.
TABLE OF OASES.
Ixxxv
Strouse v. Becker, 38 Pa. St 190 : 536,
835, 882, 917.
Struble V. Nodwift, 11 Ind. 64: 751.
Stubblefield V. Graves, 50 111. 103:
216, 217, 495, 671. '
etuckey v. Keefe's Ex'rs, 26. Pa. St.
397 : 142, 143.
v.McCJibbon, 92 Ala. 622: 761,
914.
Stults V. Sale (Ky.), 17 N. W. 148:
■7, 86.
Stunz V. Stunz, 131 111. 210 : 631, 636.
Sturgis V. Ewing. 18 111. 176 : 449.
Succession of Cason, 32 La. Ann. 790 :
595.
Cooley, 26 La. Ann. 166 : 636.
Cottingham, 29 La. Ann. 669:
516, 636.
Drum, 26 La. Ann. 539 : 636.
Durkin, 30 La. Ann. 669 : 59.5.
Edwards, 32 La. Ann. 457: 594.
Foulkes, 12 La. Ann. 537 : 41.
Furnlss, 34 La Ann. 1013: 39,
169, 172, 174.
Hunter, 13 La. Ann. 257: 457,
460, 631, 789.
Lessassier, 34 La. Ann. 1066:
594.
Marc, 39 La. Ann. 41 : 636.
Marx, 27 La. Ann. 99 : 594.
Melangon, 35 La. Ann. 535 : 655.
Norton, 18 La. Ann. 38: 594,655.
Robertson, 28 La. Ann. 832 : 636,
655.
Tassin, 12 La. Ann. 885 : 635, 789.
Taylor, 10 La. Ann. 509 : 41.
Wellmeyer, 34 La. Ann. 819:
594.
Sugg V. Tillman, 2 Swan, 208 : 535.
SuUings V. Richmond, 5 Allen, 187 :
545.
Sullivan v. Davis, 4 Cal. 291 : 607.
V. Hendrickson, 54 Cal. 258: 306,
■744.
I V. Lafayette County, 61 Miss. 271 :
739.
V. Winslow, 32 Ind. 153 : 916.
Sulzberger v. Sulzberger, 50 CaL 385 :
762.
Sumner v. McCray, 60 Mo. 493 : 515.
V. Sawtelle, 8 Minn. 272 : 231,
233.
Sunbolf v. Alford, 3 M. & W. 248:
795.
Supervisors v. People, 7 Hill, 513 : 26.
Supreme Council v. Perry, 140 Mass.
580: 765.
Surratt v. Young, 55 Ark. 447 : 883,
886.
Sutherland v. Tyner, 72 la. 332: 714.
Sutton V. Aiken, 68 Ga. 741 : 391.
V. Askew, 66 N. C. 172 : 79, 493.
Swan V. Stephens, 99 Mass. 7: 258,
616. 686, 715.
Swandale v. Swandale, 25 ^. C. 389 :
157. 652, 839.
Swaney v. Hutchins, 13 Neb. 266:
786.
Swart V. Kimball, 43 Mich. 448: 540.
Swartz V. McClelland (Neb.), 48 N. W.
461: 604.
Swearingen v. Bassett, 65 Tex. 273-4 :
30, 36, 353.
Sweeny v. Hunter, 145 Pa. St. 363 :
890.
V. Ross (Ky.), 15 S. W. 357 : 75.
Swenson v. Halberg, 1 Fed. 444 ; 417.
V. Kiehl, 21 Kas. 533: 181, 194.
Swift V. Dewey, 20 Neb. 107 : 47, 396.
Swope V. Ross, 29 Ark. 370 : 817.
V. Stanzenberger, 59 Tex. 390:
■ 196, 399.
Syme y. Riddle, 88 N. C. 463 : 134.
Symmes v. Drew, 21 Pick. 378 : 143.
Symonds v. Lappin, 82 IlL 313 : 407,
555, 675, 699, 751.
Tadlook v. Eccles, 20 Tex. 790 : 309,
532, 645, 744, 747.
Taffts V. Manlove, 14 Cal. 47 : 729.
Talbot V. Barager, 37 Minn. 308 : 675.
Talifero v. Rawlton, '34 Ark. 503:
525.
Talmadge v. Talmadge, 66 Ala. 199 :
564.
Tannahill v. Tuttle, 3 Mich. 104: 861.
Ixxxvi
TABLE OF OASES.
Tanner v. Billings, 18 Wis. 175 : 793.
V. Thomas, 71 Ala. 333: 700.
Tant V. Talbot, 81 Ky. 33 : 189.
Tappan v. Hunt, 74 Ga. 545 : 551.
Tarpley v. Tarpley, 10 Minn. 458:
391.
Tarrant v. Swain, 15 Kas. 146 : 138,
149, 181, 515.
Tasken v. Sheldon, 115 Pa. St. 107 :
866.
Tate V. GoflE (Ga.), 15 S. E. 30 : 655.
V. Laforest, 25 La Ann. 187 : 10,
323.
Taylor v. Baker, 1 Fla. 245 : 948.
V. Beachy, 14 IlL App. 259 : 854,
862.
V. Boulware, 17 Tex. 74: 58, 81,
85, 94, 224, 5rj3.
V. Chandler, 9 Heisk. 349 : 27.
V. Cox, 1 B. Mon. 429 : 135.
V. Duesterberg, 109 Ind. 165 : 831.
V. Hargous, 4 Cal. 372 : 212, 385,
564, 577, 601.
V. Huck, 65 Tex. 238 : 363.
■ V. McEIvin, 81 La. Ann. 283 : 59.
V. Pettus, 53 Ala. 287 : 20, 637.
V. Ehyne, 65 N. C. 531 : 730.
V. Rice (N. D.), 44 N. W. 1017 :
874.
V. Saloy, 38 La. Ann. 62; 11, 170,
172.
V. Smith, 54 Miss. 50 : 96, 97.
V. Taylor, 53 Ala. 135 : 20, 637.
V. Thorn, 39 O. St 569: 494, 660.
Teager v. Landsley, 69 la. 725 : 890.
Tedder v. Steele, 70 Ala. 347 : 553.
Temple v. Freed, 21 111. App. 238 : 771.
V.Scott, 3 Minn. 419: 445,833,
864.
Tenneut v. Pruitt, 94 Mo. 145: 11,
170, 171.
Tennessee v. Sneed, 96 U. S. 69 : 678.
Tenney v. Sly, 44 Ind. 269 : 390.
Terrell v. Hurst, 76 Ala. 588: 557,
870, 885.
V. Martin, 64 Tex. 121 : 135.
Terry v. Berry, 13 Nev. 515 : 135, 143,
905.
V. Terry, 39 Tex. 313 : 403, 647.
Terry's Appeal, 55 Pa. St. 344: 789.
Tex. etc. R. Co. v. Levi, 59 Tex. 674:
649.
Tharp v. Allen, 46 Mich. 389: 131,
134, 138, 141.
Thatcher v. Howland, .2 Met 45 : 146.
Thaxton v. Roberts, 66 Ga. 704 : 119.
Thayer v. Southwick, 8 Gray, 239:
914
V. Thayer, 14 Vt 118 : 434.
The Collector v. Day, 11 Wall. 113:
13.
The Homestead Cases, 22 Gratt 366 :
41, 279.
The J. L Case Co. v. Joyce, 89 Tenn.
337: 6.
The King v. Beeston, 3 Term E. 594,
595: 31.
The Secretary V. McGaiTahan, 9 Wall.
298: 941.
The Six Carpenters' Case, 8 Coke,
390: 860.
Thimes v. StumpfE, 33 Kas. 53 : 386,
534.
Thomas v. Dodge, 8 Mich. 51 : 169.
V. Guilbeau, 35 La. Ann. 927 : 39,
172.
V. Mueller, 106 111. 36 : 398.
V. Thomas, 73 la. 657: 464,466,
593, 633.
V. Williams, 50 Tex. 269 : 562.
Thomas' Appeal, 69 Pa. St 131 : 873.
Thomason v. Ashworth, 73 Cal 73 : 27.
V. Fannin, 54 Ga. 361 : 554.
Thompson v. Alexander, 11 Heisk.
313: 787.
V. Allen, 103 Pa St 44: 396.
V. Cragg, 24 Tex. 597 : 596.
V. Jones, 60 Tex. 94 : 399, 415.
V. King, 54 Ark. 9: 63, 138, 331,
605.
V. Neely, 50 Miss. 210 : 535.
V. Ogle (Ark.), 17 S. W. 593: 787.
V. Pickel, 20 la 490 : 377, 693.
V. Rogers, 51 la 333 : 438.
V. Ross, 87 Ind. 156: 10, 323, 759,
916.
V. Sheppard, 85 Ala 611, 619 :
357, 416, 431, 500, 553.
TABLE OF CASES.
Ixxxvii
Thompson v. Thompson, 51 Ala. 493 :
627, 788.
V. Tillotson, 56 Miss. 36 : 568.
V. Wickersham, 9 Bax. 216 : 317.
Thorns V. Tboms, 45 Miss. 273 : 687,
688. ,
Thorn v. Da|rlington, 6 Bush, ' 448 :
686.
V. Dill, 56 Tex. 145 : 340.
V. Thorn, 14 la. 49 : 141, 219.
Thorndike v. Norris, 24 N. H. 454 :
393.
Thornton v. Boyden, 31 111. 300 : 329,
423.
V. Murray, 50 Tex. 161 : 597.
V. Thornton, 45 Ala. 374: 615.
T. Vanstory, 107 N. C. 331 : 673,
677.
Threat v. Moody, 87 Tenn. 143 : 30.
Thredgill v. Pintard, 18 How. 34 : 949.
Threshing Machine Co. v. Mitchell,
74, Mich. 679: 118, 119, 137,
403.
Thrift V. Delaney (Cal.), 10 Pac. 475 :
933, 947.
Thurlow V. Warren, 83 Me. 164 : 903.
Thurston v. Maddox, 6 Allen, 427:
135, 136, 355, 404.
Tidd V. Quinn, '53 N. H. 341 : 361, 593,
657, 739.
Tiebout v. Mellican, 61 Tex. 514 : 636'.
/ Tiernan v. His Creditors, 63 CaL 386 :
147, 186, 313, 335.
Tift V. Newsotn, 44 Ga. 600 : 841, 361.
Tilden v. Criramins, 60 Vt. 546 : 418.
Tilford V. Torrey, 53 Ala. 130 : 339.
Tillman v. Bl-own, 64 Tex. 181 : 854.
Tillotson V. Millard, 7 Minn. 513 : 41,
181, 221, 283, 566.
V. Walcott, 48 N. Y. 188: 445,
836, 864.
Tilton V. Sanborn, 59 N. H. 290: 919.
V. Vignes, 33 La. Ann. 240 : 39;
178.
Timothy v. Chambers, 85 Ga. 367
703.
Tingley v. Bateman, 10 Mass. 343
893.
V. Gregory, 30 Neb. 196: 317, 728.
Tipton V. Martin, 71 Cal. 335: 31, 560.
Tirrel v. Kenney, 137 Mass. 30 : 545.
Titman v. Moore, 43 111. 169: 131,190,
561, 568, 583, 586.
Tladung v. Rose, 58 Md. 13; 143.
Todd V. Lee, 16 Wis. 480: 530.
V. McCravey, 77 Ala. 468: 878,
879, 883.
V. Railroad, 33 Mo. App. 110 : 889.
Toenes v. Moog, 78 Ala. 558 : 637, 665.
Tolman v. Leathers, 1 McCrary, 339 :
436, 430, 528.
Tomlin v. Hilyard, 43 III. 300 : 117,
265.
Tompkins v. Weeks, 26 Cal. 58 : 273.
Tompkins' Estate, 12 Cal. 114: 493.
Toms T. Fite, 93 N. C. 274: 333.
V. Logan, 93 N. C. 276 : 333.
Tong V. Eifort, 80 Ky. 152: 377, 379.
Tonsmere v. Buckland,' 88 Ala. 813 :
848.
Tootle V. Stine, 31 Kas. 66 : 525.
Torrance v. Boyd, 63 Ga. 22 : 78, 606,
701.
Totten V. Sale, 72 Ala. 488 : 880.
Tourville v. Pierson, 39 111. 446 : 179,
304, 398.
Town V. Elmore, 38 Mich. 305 : 779.
Towns V. Pratt, 33 N. H. 345: 795.
Townserid v. Brown, 16 S. C. 96:
134
V. Cowles, 31 Ala. 428 : 391.
V. Fenton, 30 Minn. 528 : 953.
Tracy v. Cover, 38 O. St 61: 530,
918.
Trager v. Feebleman (Ala.), 10 So.
213 : 850, 851, 886, 917.
Trammel v. Roberts, 55 Ga. 383 : 525.
Travis v, Davis (Ky.), 15 S. W. 525:
386.
Trawick v' Harris, 8 Tex. 313 : 67, 88,
96, 390, 459, 568.
Treadway v. Wilder, 13 Nev. 114:
953.
Tremble v. HerOld, 30 W. Va. 603 :
103.
Trenouth v. San Francisco, 100 U.S.
351 : 185, 9S0, 933. ,
Tribble v. Anderson, 63 Ga. 54-5 : 644.
Ixxxviii
TABLE OF CASES.
Trickey v. Schlader, 53 111. 78 : 265.
Trimble v. James, 40 Ark. 393 1 619.
Triplett v. Graham, 58 la. 135: 45,
888.
Trogden v. Saflford, 31 IlL App. 340 :
' 551.
Tromans v. Mahlmau (Cal.), 27 Pac.
1094: 183,569.
Trotter v. Dobbs, 38 Miss. 198: 64,
181, 381, 306, 525, 730, 744.
V. Trotter, 31 Ark. 145 : 656.
Trowbridge v. Cross, 117 lU. 109:
865, 861, 906, 907.
Truax v. Pool, 46 la. 356 : 155.
True V. Morrill, 28 Vt 674: 31, 147,
182, 192, 215.
Trulook V. Taylor, 36 Ark. 54: 940.
Trustees v. Hovey, 94 IlL 394: 556,
583.
Tryon v. Mansir, 3 Allen (Mass.), 219 :
806, 875.
Tucker v. Drake, 11 Allen, 145 : 139,
509.
V. Henderson, 68 Ala. 380 : 555.
V. Kenniston, 47 N. H. 367: 182,
315, 668, 715, 737, 758.
V. Tucker, 108 N. C. 385 : 380, 628.
Tullis V. Orthweln, 5 Minn. 305 : 781.
Tumlinson v. Swinney, 23 Ark. 400 :
37, 150, 195, 239, 397, 563, 563.
Tunstall v. Jones, 35 Ark. 374 : 333,
738. J
Turner v. Argo, 89 Tenn. 443: 63,
508.
V.Bennett, 70 IlL 363: 365, 605,
635.
V. Bernheimer (Ala.), 10 So. 750 :
39.5.
V. Borthwick, 30 Hun, 119: 779.
V. Railroad Co.. 19 Neb. 241 : 893.
V. Turner, 30 Miss. 428: 461, 467.
V. Vaughan, 38 Ark. 454: 533,
651, 883.
V. Whitten, 40 Ala. 530: 637.
Tumipseed v. Fitzpatrick, 75 Ala.
297: 645, 696.
Tuttle V. Buck, 41 Barb. 417 : 865.
V. Howe, 14 Minn. 145, 153 : 15,
294, 803, 304, 365, 366.
Tuttle V. Turner, 28 Tex. 778 : 304.
Twaddellv. Rogers, 14 Phila. 163:
882.
Twinam v. Swart, 4 Lansing, 263 :
781.
Twogood V. Stephen-s, 19 la. 412 : 724.
Tyler v. Jewett, 83 Ala. 93, 99 : 65, 105,
110, 115, 148, 158, 370, 579.
V. Johnson (Kas.), 28 P. 198: 362,
717, 953.
Type Foundry Co. v. Live Stock, etc.
Co., 74 Tex. 651 : 803.
Tyrrell T. Baldwin, 78 CaL 470: 600,
708.
u.
Udell V. Howard, 28 IlL App. 134:
782.
Uhl V. May, 5 Neb. 157 : 169.
tniman v. Jasper, 70 Tex. 446 : 398.
Umland v. Holcombe, 26 Minn. 286 :
181, 188, 213.
Underwood v. SutcllfEe, 77 N. T. 58:
836.
Union Mill Co. v. Dangberg, 2 Saw.
450: 953.
Union Pacific R. Co. v. Kennedy
(CoL), 20 P. 696 : 949.
V. Watts, 2 DilL 310: 944
United States v. A Distillery, 3
Blatch. 193: 814.
V. Bedgood, 49 Fed. 54: 937.
V. Curtner, 36 Fed. 396 : 931.
V. Fisher, 2 Cr. 358 : 24,
V. Gratiot, 14 Pet 536 : 935.
V. HalL9SU. S. 343: 841.
V. Hartwell, 6 Wall. 395 : 35.
V. Hearing, 36 Fed. 744 : 935.
T. Herron, 20 Wall. 251 : 13.
V. Hewes, Crabbe, 307 : 14.
V. Hoar, 2 Mason, 311 : 14
V. Howell, 4 Hughes, 483 : 13.
V. Iron Silver Mining Co., 128 U.
S. 673: 936.
V. Jones, 3 Wash. 309 : 35.
V. Knight, 14 Pet. 301 : 13.
V. Minor, 114 U. S. 234: 931, 937,
941.
i
TABLE or CASES.
Ixxxix
United States v. Mo. etc. R Co., 141
U.S. 358: 942,944.
V. Mullen, 7 Saw. 466 : 931.
V. Pratt, 18 Fed. 708 : 931.
V. Railroad Co., 17 Wall. 333 : 13.
V. Reed, 28 Fed. 483: 030, 944
V. Schurz, 103 U. S. 378: 941.
V.Stone, 3 Wall. 535: 931.
V. The Commissioner, 5 Wall.
563: 941.
V. Thompson, 98 U. S. 486 : 944
v. Thompson, 93 U. S. 586 : 13.
V. Throckmorton, 98 U. S. 61 :
937.
V. Williams (Nev.), 30 Fed. 309 :
930.
V. Wiltberger, 5 Wheat 95 : 35.
United States Express Co. v. EUyson,
28 la. 370 : 27.
Upman v. Second Ward Bank, 15
Wis. 449 : 180, 198, 395, 563.
Uppinghouse v. Mundel, 103 Ind. 338 :
889.
Uran V. Houdlette, 36 Me. 15 : 818.
Utley V. Jones, 93 N. G 361 : 299.
Vail V. Knapp, 49 Barb. 399 : 893.
Vanberg v. Owens (Ga.), 14 S. E. 562 :
655.
Van Bogart v. Van Bogart, 46 la. 359 :
558.
Van Buren v. Leper, 29 Barb. 389 :
787, 804, 805, 811.
Vance v. Burbank, 101 U. S. 514: 941.
Vancleave v. Wilson, 73 Ala. 387 : 412,
689.
Vanderhorst v. Bacon, 38 MicK 669 :
79^3, 794
Vandervort's Appeal, 43 Pa. St 462 :
646, 856.
Vandiver v. Vandiver, 30 Kas. 501 :
263, 463, 656.
Van Doran v. Marden, 48 la. 186 : 788.
Van Duzer v. Van Duzer, 65 la. 625 :
746.
Van Dyke v. Kilgo, 54 Ga. 551 : 142,
606.
Van Horn v. McNeill, 79 Ga. 121 : 85,
96, 98, 111, 488, 676, 739.
Vannoy v. Haymore, 71 N. C. 138 :
730.
Van Ratcliff v. Call, 73 Tex. 491 : 196,
30'l.
Van Reynegan v. Revalk, 8 Cal. 76 :
608.
Van Saiit v. Butler, 19 Neb. 3ol : 941.
Van Sickler v. Jacobs, 14 Johns. 434 :
793, 797, 865.
Van Sickles v. Town, 53 la. 359 : 422,
433.
Van Slyke v. Barrett (Tex), 16 S. W.
902 : 248.
Vanstory V. Thornton (N. C), 14 S. E.
637 : 147, 754
Van Wick v. Seward, 18 Wend. 385-
387 : 434
Van Wickle v. Landry, 39 La. Ann.
330: 178, 373, 470, 530, 541,
553, 554
Vanzant v. Vanzant 33 111. 541 : 44,
419, 621.
Varner v. Carson, 59 Tex. 306 : 391.
Varnum v. Abbott, 13 Mass. 474 : 135.
Vasey v. Trustees, 59 111. 188: 387,
486, 567, 583.
Vaughan v. Thompson, 17 111. 78 : 516,
873, 918.
Vaughn v. Powell, 65 Miss. 401 : 343.
V. Vaughn, 88 Tenn. 743 : 629.
Veile V. Koch, 37 111. 129 : 61.
Venable v. Wabash Ry. Co. (Mo.), 19
S. W. 45 : 619.
Ventriss v. Collins, 28 La. Ann. 783 :
135, 136.
Vermont Bank v. Elliott, 53 Mich.
356: 310.
Victor V. Hartford Ins. Co., 33 la.
210: 914
Vincent, Ex parte, 26 Ala. 145 : 36.
Vincent v. State, 74 Ala. 374 : 10, 323,
333, 913.
V. Vincent 1 Heisk. 343: 20, 787.
Vining V. Officers, 83 Ga. 332: 213,
' 754
V. Willis, 40 Kas. 609, 612 : 450,
461.
xc
TABLE OF CASES.
Vlsek V. Doolittle, 69 la. 603 : 156.
Vogelsong v. Beltzhoover, 59 Pa. St.
57: 783, 849.
Vogler Y. Montgomery, 54 Mo. 584:
113, 289, 515, 518, 535, 666,
668, 670, 730, 754
Von HoflEman v. Quincy, 4 Wall. 553:
41.
w.
Wabash R. Co. v. Seif ert, 41 Mo. App.
85: 889.
Waddel v. Cook, 2 Hill, 47 : 860.
Wade V. Jones, 20 Mo. 75 : 58, 59, 80,
928.
V. Kalbfleisoh, 58 N. Y. 282 : 10,
338.
V. Wade, 9 Bax. 612 : 35, 186, 189.
V. Weslow, 63 Ga. 562: 241, 815.
WafEord v. Gaines, 53 Ga. 485 : 346.
Waggle V. Worthy, 74 Cal. 366 : 576.
Wagnoh v. Keeuan, 77 Ala. 519 : 557.
Waite V. Fransiola, 90 Tenn. 191 : 783,
833.
V. Mathews, 50 Mich. 393 : 909.
Wakefield v. Fargo, 90 N. Y. 218 : 834.
Walcot V. Knight, 6 Mass. 418: 258.:
Waldo V. Gray, 14 111. 184: 784.
Wales V. Coffin, 13 Allen, 213 : 143.
Walker v. Bank, 7 Ark. 484: 768.
V. Chicago, 56 111. 277 : 38.
V. Darst, 81 Tex. 682: 502, 671.
V. Doane, 108 111. 286 : 617.
V. J ohnson, 64 Ga. 363 : 354.
V. Sherman, 30 Wend. 686 : 787.
V. Stone, 48 la. 93 : 933.
V. Thomason, 77 Ga. 682: 78, 697.
V. Young, 37 Tex. 519 : 61, 603.
Wallace-v. Collins, 5 Ark. 41 : 7. 97,
811. '
V.Hall, 19 Ala. 367: 588.
V. Harris, 32 Mich. 880 : 352, 405,
430, 472, 588, 615, 676.
Waller v. Harris, 20 WeSnd. 563 : 35,
26.
Wally V. Wally, 41 Miss. 648 : 788.
Walsch V. Call, 33 Wis. 159: 188,
815.
Walsh V. McMenomy, 74 Cal. 336:
366.
Waltermire v. Westover, 14 N. Y. 16:
768.
Walters v. People, 18 IlL 194; S. C,
65 Am. Dec. 730: 115, 146,
148, 180, 316, 573; 586, 671.
V. Walters, 11 Ired. 145 : 354.
Ward V. Huhn, 16 Minn. 159: 185,
136, 187, 221, 232, 905.
V. Mayfleld, 41 Ark. 94: 96, 97,
138.
Warden v. Eeser, 38 Kas. 86 : 436.
Warhmund t. Merritt, 60 Tex. 24:
340.
Wark V. Willard, 13 N. H. 389 : 392.
Warner v. Crosby, 89 111. 320 : 44, 366,
556, 618.
V. Cummock, 37 la. 643: 19, 384,
761.
Warrall v. Kem, 51 Mo. 150: 427.
Warren v. Doolittle, 5 Cow. 684 : 859.
V. Jones, 69 Tex. 463, 467 : 430.
V. Peterson (Neb.), 49 N. W. 703 :
743.
V. Raymond, 17 S. C. 178 : 450.
V. Van Brunt, 19 Wall. 646 : 941,
947.
V. Warren, 30 Vt. 080 : 347.
Washburn v. Goodheart, 88 111. 339:
808, 815, 848, 873, 874.
Washington v. Cartwright, 65 Ga.
177: 918.
Wassell V. Tunnah, 35 Ark. 103: 31,
115, 148, 334, 333.
Water Com'rs v. Brewster, 43 N. J.
L. 135 : 25.
Waterloo Turnpike Co. v. Cole, 51
Cal. 381 : 486.
Waterman v. Baldwin, 68 la. 355:
422, 484.
Watertown Ins. Co. v. G. etc. Co., 41
Mich. 131 : 472.
V. Sewing Machine Co., 41 Mich.
131: 353.
Watkins v. Blatschinski, 40 Wis. 347 :
317, 485.
V. Davis, 61 Tex. 414: 317, 443,
63a
TABLE OF OASES.
XCl
Watkins V. Lawton, 69 Ga. 671 : 554.
V. Overby, 83 N. C. 165 : 303, 480.
Watson V. Doyle, 130 111. 415: 266,
409.
v. His Creditors, 58 Cal. 556 : 600.
V. Lederer, 11 Colo. 577: 813.
V. Mancill, 86 Ala. 600 : 427.
V. McKinnon, 73 Tex. 210 : 144,
145.
V. Mercer, 8 Pet. 88 : 280.
V. Eainey, 69 Tex. 319 : 596, 753.
V. Saxer, 102 111. 585 : 113, 365,
438.
V. Simpson, 5 Ala. 333 : 19, 909.
Watters v. The People, 31 111. 178 :
645.
Watts V. Burnett, 56 Ala. 340 : 358.
V. Gorden, 65 Ala. 546 : 105, 110,
270, 430.
V. Leggett, 66 N. C. 197 : 618, 646,
647.
V. Miller, 76 Tex. 14 : 381, 597.
Waugh V. Montgomery, 67 Ala. 573 :
575.
Wayman v. Southard, 10 Wheat. 1 : 13.
Weaver v. Nugent, 73 Tex. 373 : 563.
Weaver's Appeal, 18 Pa. St. 307 : 778,
788.
Weaver's Estate, 35 Pa. St. 434 : 346.
Webb V. Baird, 6 Ind. 13 : 38.
y. Boyle, 63 N. C. 371 : 300.
V. Burney, 70 Tex. 333 : 433.
V. Cowley, 5 Lea, 723 : 93, 94.
. V. Davis, 37 Ark. 551 : 718.
V. Holt, 57 la. 716 : 841.
Weber v. Weber, 47 Mich. 569,: 45.
Webster v. Bowman, 35 Fed. 889:
950.
V. Bronston, 5 Bush, 523 : 733.
V. Orna, 45 Vt. 40 : 336.
Wedel V. Herman, 59 Cal. 513 : 164,
170.
Week V. Bosworth, 61 Wis. 78 : 85,
953.
Weeks v. White, 41 Kas. 569 : 947.
Wehrle v. Wehrle, 39 Ohio St 365 :
398.
Weigfeman v. Marsot, 13 Mo. App.
' ' 576 : 17. 374, 376, 484
Weiner v. Sterling, 61 Ala. 98: 65,
146, 438. ■ ,
Weini'ich v. Koelling, 31 Mo. App.
133 : 770, 920.
Weis V. Levy, 69 Ala. 309: 793, 852,
_ 856, 874, 917.
Weisbrod v. Daenioke, 36 Wis. 73 :
7,30,, 180.
Weisman v. Weisman, 133 Pa. St
89 : 826.
Welborne v. Downing, 73 Tex. 527 :
562.
Welch V. Rice, 31 Tex. 689: 581, 750.
Weller v. Moore, 50 Ark. 253 : 856.
V. Weller, 131 Mass. 446 : 35, 143,
144, 360, 616, 905.
Wells V. Barnett, 7 Tex. 584 : 185.
V. Lily, 86 III. 317 : 913.
Welsh V. Welsh, 41 La. Ann. 717:
460, 636, 676.
Werkheiser v. Werkheiser, 3 Rawle,
336: 165.
West V. Bennett, 59 Ga. 507 : 133. '
V. Ward, 26 Wis. 579 : 135, 136,
905.
Westbrook v. Jeffers, 33 Tex. 86:
423.
West River Bank v. Gale, 42 Vt 27 :
185, 192, 333, 391, 573, 6|5,
617, 743.
Weston V. Charleston, 2 Pet 449:
13.
V. Weston (Wis.), 49 N. W. 834 :
691.
Wetherly v. Straus, 93 Cal. 883 : 713.
Wetumpka v. Winter, 29 Ala 651 :
;36.
Wetz V. Beard, 12 O. St 431 : 573.
Weymouth v. Sanborn, 43 N. H. 171 :
346.
Whalen v. Cadman, 11 la, 336: 59,
88, 97.
Wharton v. Leggett, 80 N. C. 169 :
480, 640, 655.
V. Moore, 84 N. C. 479 : 366.
v. Taylor, 88 N. C. 330 : 338, 640.
Wheat V. Burgess, 31 Kas. 407 : 686.
Wheatley v. Griffin, 60 Tex 309 : 114,
388.
XOll
TABLE or CASES.
Wheedon v. Gorham, 38 Ct. 413 : 41.
Wheeler v. Christopher, 68 Ga. 635:
417. ,
V. Cropsey, 5 How. Pr. 388 : 810,
811.
V. Gage, 28 IlL App. 437 : 44.
V. Reddin, 55 Ga.' 87 : 379.
V. Smith, 63 Mich. 373 : 571, 580.
Wheelright v. Freeman, 13 Met. 154 :
358.
Whetstone v. Coffey, 48 Tex. 269:
133.
Whicher v. Long, 11 la. 48: 811.
Whipple V. Judge, 36 Mich. 343 : 32.
Whitaker v. EUiott, 73 N. C. 186:
334.
Whitcomb v. Eeid, 81 Miss. 567 : 789,
799.
V. Whitcomb, 53 la. 715 : 74, 745.
White V. Capron, 53 Vt. 634 : 797, 809.
V. Clark, 36 111. 385 : 357, 516, 580.
V. Downs, 40 Tex. 335 : 333.
V. Dunn, 134 Mass. 371 : 834.
V. Fulghura, 87 Tenn. 281 : 30,
410.
V. Gemeny (Kas.), 38 P. 1011 :
797.
v. Heffner, 30 La. Ann. II, 1380 :
904.
v. Owen, 30 Gratt. 43: 230, 376,
549.
V. Patten, 24 Pick. 324 : 393.
V. Plummer, 96 111. 394 : 365, 585.
V. PoUeys, 30 Wis. 503 : 403, 4,10,
412, 581.
V. Rice, 5 Allen, 73 : 358.
V. Rowley, 46 la. 680: 156, 418,
756.
V. Samuels, 54 Ga. 548 : 644
V. Wadlington, 78 Tex. 159 : 196,
503.
V. Wheelan, 71 Ga. 538 : 337, 500.
White's Adm'r v. Curd, 86 Ky. 191 :
343.
V. White, 63 Vt. 577 : 594.
Whiteacre v. Rector, 39 Gratt 714,
717 : 9, 14, 333.
White Deer Overseer's Appeal, 95
Pa. St 191 : 881.
Whitehead v. Conklin, 48 la. 478:
464, 593.
V. Nickelson, 48 Tex. 580 : 58.
V. Spivey, 103 N. C. 66: 533.
V. Tapp, 69 Mo. 415 : 66, 581, 772,
836.
Whiteman v. Field, 53 Vt 554: 73,
74, 567.
Whiting V. Eichelberger, 16 la. 422:
351.
Whitley v. Stephenson, 38 Miss. 115 :
788.
Whitney v. Traynor, 74 Wia 389:
354.
Whitsell V. Mills, 6 Ind. 339': 75.
Whittaker v. Pendola (Cal.), 30 P.
680: 949.
Whittenberg v. Lloyd, 49 Tex. 633 :
317, 435, 443, 593.
Whittington v. Calbert, 50 Ga. 584:
379.
Whittle V. Samuels, 54 Ga. 548: 372,
633.
Whitton V. Whitton, 38 N. H. 127:
1*85.
Whitworth v. Lyons, 89 Miss. 467:
580.
Wicker v. Comstock, 52 Wis. 315:
818, 814, 866.
Wicks V. Smith, 31 Kas. 413: 362.
Wiggin V. Buzzell, 58 N. H. 339: 73,
74, 97.
Wiggins V. Chance, 54 111. 175 : 495,
563.
Wilcox V. Hawley, 31 N. Y. 648 : 533,
787, 806, 810, 918.
V. Howe, 59 Hun, 268, 271 : 779,
878, 883.
V. Jackson, 13 Pet 498 : 938.
Wilder v. Brooks, 10 Minn. 50 : 396,
397.
V. Frederick, 67 Ga. 669 : 122, 270,
687, 698.
V. Haughey, 31 Minn. 101 : 118,
363, 529.
Wildermuth v. Koenig, 41 O. St 180 :
530.
Wildner v. Ferguson, 43 Minn. 113 :
834.
TABLE OF CASES.
XCIU
Wilds V. Vanvoorhis, 15 Gray, 139 :
14.
Wilhite V. Williams, 41 Kas. 288 : 797,
804.
Wilhoit V. Bryant, 78 Cal. 263 : 418.
Wilkins v. Marshall, 80 111. 74 : 562.
Wilkinson v. Alley, 45 N. H. 551:
798.
V. Leland, 2 Pet 627 : 476.
V. Merrill, 87 Va. 518 : 7, 85.
V. Scott, 17 Mass. 249, 257 : 892.
Williams v. Bowden, 69 Ala. 433:
10, 322, 323, 913, 914.
V. Dorris, 31 Ark. 468: 149, 192,
195.
V. Golden, 10 Neb. 482 : 786, 863.
V. Hall, 33 Tex. 215 : 223.
V. IngersoU, 89 N. Y. 508 : 892.
V.Jones, 100 111. 862: 333, 337,
339, 348, 500.
V. Link, 64 Miss. 641 : 824.
V. Miller, 16 Ct 143: 859.
V. Moody, 35 Minn. 280: 558, 563,
693.
V. Otey, 8 Humph. 569 : 646.
V. Pouns, 48 Tex. 144 : 432.
V. Eobbins, 15 Gray, 590 : 615.
V. Starr, 5 Wis. 534: 478.
T. Swetland, 10 la. 51 : 179, 372,
384.
V. Thorn, 70N. Y. 270: 836.
V. United States, 138 U. S. 514
930.
V. Wethered, 37 Tex. 180: 138,
597.
V. Whitaker (N. C.), 14 S. E. 924
628, 646.
V. Williams, 7 Bax. 116 : 546, 583.
V. Wills (Tex.), 19 S. W. 683 : 755.
V.Young, 17 Oal. 403: 63, 333,
686, 729.
Williams' Estate, 141 Pa. St. 436
790.
Williamson v. Harris, 57 Ala. 40 : 828,
880.
V. Krumbhaar, 132 Pa. St. 455
779, 861.
Willingham v. Maynard, 59 Ga. 330,
332 : 270, 362, 393.
Willis V. Cushman, 115 Ind. 100, 106{
767.
V. Farley, 24 CaL 491 : 627.
V. Jelineck, 27 Minn. 18: 137.
V. Matthews, 46 Tex. 483: 122,
809, 730, 744.
V. Mike, 76 Tex. 82 : 853.
V. Morris, 66 Tex. 628: 247, 777,
798, 801.
Williston V. Schmidt, 28 La. Ann.
416: 730.
Wills V. Downs, 38 111. App. 269: 907.
Wilmington v. Sutton, 6 la. 44: 78a
Wilson V. Biscoe, 11 Ark. 44 : 32.
V. Brown, 58 Ala. 62 : 358, 665.
V. Christopherson, 53 la. 481 :
47, 422, 431.
V. Cochran, 31 Tex. 680: 58, 59,
83, 96, 122.
V. Daniels, 79 la. 133: 565.
V. Ellis, 1 Denio, 463 : 865.
V. Fine, 14 Saw. 224 : 940.
V. Fridenburg, 19 Fla 461 : 448,
461, 618, 619, 620.
V. Gray, 59 Miss. 525 : 385.
V. Hyatt, 4 S. C. 369 : 754.
V. Joseph, 107 Ind. 490: 874, 888,
890.
V. Madison, 58 Cal. 1 : 306, 744.
V. McElroy, 32 Pa. St. 82: 833,
877.
V. McMillen, 80 Ga. 733: 548, 817.
V. Mills (N. H.), 22 A. 455: 178,
382, 429.
V. Patton, 87 N. C. 318: 299, 410,
678, 716, 875.
V. Paulson, 57 Ga. 596 : 309, 880.
V. Proctor, 28 Minn. 13 : 156, 214,
408.
V. Rogers, 68 Ga. 549 : 270.
V. Scott, 29 O. St 636 : 79.
V. Sparks, 73 N. C. 208 : 280.
V. Strobaoh, 59 Ala. 488 : 86li
V. Swasey (Tex.), 20 So. 48: 741.
V. Tauber, 98 N. 0. 275 : 667, 674
V. Wilson, 40 la. 230 : 745.
Wimbish V. Tailbois, Plowd. 38, 59:
43.
Wimer v. Pritchartt, 16 Mo. 253: 78a
XC17
TABLE OF CASES.
Winchester v. Gaddy, 73 N. C. 115 :
514
Windle v. Brandt, 55 la. 321: IS?,"*
576.
- Windley v. Tankard, 88 N. C. 323 :
676.
Wing V. Cropper, 35 111. 264 : 431, 550,
654, 688, 748.
V. Hayden, 10 Bush, 380 : 423,
551, 667.
Winfield v. Rhea, 73 Ga. 477 : 554
Wingler v. Mcintosh, 100 Ind. 439:
916.
Winkleman v. Wintleman, 79 la.
319: 415.
Winn V. Patterson, 9 Pet. 663 : 406.
Winslow V. NobJe, 101 111. 194: 345,
349, 528, 579.
Winter v. Simpson, 42 Ark. 410 : 883.
Winterfield v. Eaih-oad, 39 Wis. 589 :
880, 899.
Winters v. Davis, 51 Ark. 335 : 650.
Wis. Central R. Co. v. Price, 133 U.
a 496: 953.
Wise V. Frey, 7 Neb. 134: 904, 909.
v; Williams, 72 Cal. 547: 380,
883, 550.
Wisner v. Farnham, 2 Mich. 473:
196, 519, 689.
Wiswell V. Wilkins, 5 Vt. 87 : 135.
Witherington v. Mason, 86 Ala. 345 :
17, 375, 412, 437.
Witherspoon v. Duncan, 4 Wall. 310 :
939.
Withers v. Jenkins, 21 S. C. 365 : 228.
Witter T. Dudley, 43 Ala. 616 : 357.
Wochoska t. Woohoska, 45 Wis. 433 :
476, 478.
Woerther v. Miller, 13 Mo. App. 567 :
317, 376.
WofEord V. Gaines, 53 Ga 485 : 338,
912.
Wolf V. Fleishacker, 5 Cal. 244: 137,
140.
V. Ogden, 66 111. 234: 120, 463,
492, 494.
V. Wolf, 67 111. 55 : 605.
Wolfe V. Buckley, 53 Tex 641 : 317,
435, 592.
Wolfenbarger v. Standifer, 3 Sneed,
659: 764. 809.
WoW V. Summers, 2 Camp. 031 : 795.
Womble v. Battle, 3 Ired. Eq. 183:
334
Wood V. Bresnahan, 63 Mich. 614:
775, 798, 801, 901.
V. Lord, 51 N. H. 448: 66, 346,
348, 385, 393, 404, 581.
V. Morgan, 56 Ala. 397 : 705.
V. Railroad. 104 U. S. 329 : 946.
V. Timmerman, 29 S. C. 175 : 533.
V. Wheeler, 7 Tex. 35 : 224, 888,
400, 600, 723, 730.
Woodall V. Kelly, 85 Ala. 368 : 357,
553.
V. Rudd, 41 Tex. 375 : 455.
Woodbury v. Luddy, 14 Allen, 1 :
358, 580.
V. Murray, 18 Johns. (N. Y.) 400:
187.
Woodlie V. Towles, 9 Bax. 592 : 381,
342, 346.
Woodman v. Lane, 7 N. H. 245:
187.
Woods V. Chambers, 30 Tex 247:
515, 516, 530. 535.
V. Davis, 84 la. 364 : 73, 74, 84, 85,
94
V. Keyes, 14 Allen, 386 : 797.
V. Perkins (La.), 9 So. 48 : 38, 655.
V. Sanford, 9 Gray, 16 : 379.
V. Wallace, 30 N. H. 384: 616.
Woodstock Iron Co. v. Richardson
(Ala.), 10 So. 144: 885,434
Woodvpard v. Lincoln, 9 Allen, 239 :
695, 702.
V.Murray, 18 Johns. 400: 563,
771, 787.
V. Seaver, 88 N. H. 39 : 555.
Woodworth v. Comstock, 10 Allen,
425 : 79, 83, 97, 568, 580.
V. Paige, 5 O. St. 70 : 533.
Woolcutt V. Lordell, 78 la. 668 : 17,
374, 563.
Woolfolk V. Kemper, 31 Mo. App.
421 : 913.
V. Rickets, 41 Tex 358 : 568.
V. Ricketts, 48 Tex 28: 560, 570.
TABLE OF CASES.
XCV
Wooster v. Page, 24 N, H. 125 : 441,
836, 919.
Worland v. Kimberlin, 6 B. JJon.
608: 534.
Worman v. Giddey, 30 Mich'. 151 :
144.
Worshara v. Fi-eeman, 34 Ark. 55 :
400.
Worth V. Branson, 98 U. S. 118: 949.
Worthington v. Hanna, 23 Mich. 530 :
861.
Worrell v. McDonald, 66 Ala. 572:
428.
Wray v. Davenport, 79 Va. 19 : 1,65,
170, 230.
Wright V. Deyoe, 86 111. 490: 778,
881.
V. Ditzler, 54 la. 620 : 185, 233.
V. Doherty, 50 Tex. 34: 597, 694,
695.
V. Dunning, 46 111. 271 : 61, 273,
304, 565, 568, 586, 619, 730,
747.
V. Grabfelder, 74 Ala. 460 : 555,
880.
V. Hays, 34 Tex. 261 : 388, 603.
V. Hefifner, 57 Tex. 518 : 340.
V. James, 64 Ga. 533 : 78.
V. McNutt, 49 Tex. 425: 251.
V. Pratt, 31 Wis. 99 : 140, 143, 905.
V. Railway Co., 19 Neb. 175 : 893,
897.
V. SiTiith, 74 Me. 495 : 827.
V. Straub, 64 Tex. 64 : 20, 327, 301.
V. Westheimer (Idaho), 28 P. 430 :
47, 306.
Wyche t. Wyche, 85 N. C. 96 : 678,
735.
Wyckoff V. Wyllis,'8 Mich. 48 : 779.
Wygant v. Smith, 3 Lans. (N. Y.) 185 :
Wyman v. Prosser, 36 Barb. 368 : 609.
T.' Wyman, 26 N. Y. 258 : 609.
Wymond v. Amsburg, 3 Colo. 313 :
859.
Wyndham v. Chetwynd, 1 Burrow,
419: 53.
Wynn v. Flannigan, 35 Tex. 781 : 339.
Wynne v. Hudson, 66 Tex. 1 : 183,
351, 570.
Yale V. McLaurin, 66 Miss. 461 : 837.
Yarboro v. Brewster, 38 Tex. 397 : 493.
Yarborough v. Harper, 25 Miss. 112:
864.
Yates V. Gransbury, 9 Colo. 333: 917.
V. McGibben, 66 la 857 : 166, 319.
Yeates v. Briggs, 95 111. 79 : 586, 634,
683, 739.
Yelverton v. Burton,. 26 Pa. St. 351 :
316, 765.
Yooum V. Lovell, 111 111. 212: 555.
Yoe V. Hanvey, 25 S. C. 94: 459. 657.
York V. York, 88 111. 522 : 788, 857.
York Ry. Co. v. The Queen, 1 E. & B.
858 : 25.
Yost V. Devault, 9 la. 60 : 164, 179,
202, 352, 388.
Young V. Baxter, 55 Ind. 188 : 862.
V. Boulden, 57 Md. 314 : 784.
T. Goss, 42 Kas. 502 : 944.
V. Graff, 38 III. 20 : 486.
V. Morgan, 89 III. 199 : 213.
Youngblood v. Lathen, 20 S. C. 370 :
268, 709.
z.
Zapp V. Strohmeyer, 75 Tex. 638 : 85,
94, 459.
Zellers v. Beokman, 64 Ga. 747 : 648,
688.
Zellner v. Mobley, 84 Ga. 746 : 391.
Zelnicker v. Brigham, Ti Ala. 598:
665, 874, 880.
Zielke v. Morgan, 50 Wis. 560 : 776,
814, 815, 817, 866, 881.
Zimmer v. Pauley, 51 Wis. 282 : 30,
203, 573.
Zimmerman v. Franke, 34 Kas. 650 :
890, 900.
Zoellner v. Zoellner, 53 Mich. 620:
619, 628.
Zorn V. Walker, 48 Ga. 418 : 740.
Zundell v. Gess^ 73 Tex. 144: 339,,
500.
Zwernemann v. Von Rosenberg, 76
Tex. 522: 92, 599, 657, 658,
704.
INTRODUCTION.
The family historically precedes the state. It is the germ
from which all social, industrial and political institutions have
grown, and it continues to be the basis on which they all rest.
It is the primal source of property right and distribution, yet
the family is not represented in state government. The head
of it does not personate it at the ballot-box; does not cast
any vote for his wife and children ; for he has no greater voice
than that of his bachelor neigiibor. He exercises his right
of suffrage as a citizen : not as a husband and father. The
family, as such, has no voice whatever in the government.
The state, governed by individuals, bears directly upon in-
dividuals. In some important respects, the tendency to elevate
each citizen, as such, is in the right direction. Its degree of
accomplishment thus far, especially in the recognition of the
individual's liberty of contract, has been accounted the most
distinct and valuable result of modern society. But this has
been at tte expense of the family, as shown by Sir Henry
Maine. The influence of the home and the family has dimin-
ished as individualism and the liberty of personal contract
have increased in importance.
No legislation in modern times has done more for the rec-
ognition of homes and families than that for the fostering of
homesteads in this country, for the past fifty years. It has
been done somewhat at the expense of individualism and the
personal liberty of contract; yet not avowedly or designedly
so; it has antagonized some principles that had gained firm
ground, and has somewhat diverted their tendencies.
Homestead law lies within the general legal system as a
wheel within a wheel ; as a machine designed to run harmo-
niously within a greater organism but touching it at various
points and sometimes disturbing its usual action. The clashing
XCVlll INTEODDCTION.
does not represent what is properly termed a conflict of laws,
but it is the friction of innovations upon previously established
jurisprudence, meant to be adapted to it, but affecting its
operation upon the home and the family, and the individual's
right of contract and property disposition, under prescribed
conditions. On the other hand, this legislation tends to pro-
mote the individualism of the wife in her rights of contract
and property disposition in the face of previously established
jurisprudence.
Among the innovations of homestead legislation may be
briefly mentioned the recognition of the family institution as
an essential element of the governmental and social organism ;
the admission of its claims upon the state for protection and
conservation; the distinction of home property from other
realty, with special provisions in its favor; the coupling of
these provisions with conditions upon the married owner of
such property that he, upon its dedication, shall relinquish his
individual /ws disponendi and admit his wife to share in its
alienation or incumbrance; the giving to her and the minor
children the semblance of an estate in home property which
they do not own under any species of title; the delay in the
partition and settlement of homestead estates till minor heirs
reach their majority ; the taking of property out of commerce
to a degree, or hindering its free sale or exchange ; the limita-
tion of the notified creditor's security for debt due him; and
the modifications of the law of estoppel, mortgage foreclosure,
the vindication of liens generally as to the favored property,
and the encroachment upon the jurisdiction of courts.
If there were a uniform homestead system for all the states,
its adjustment to the general legal organisin would be not
free from difficulty; yet the subject could be treated with a
degree of unity and perspicacity which is impossible when
there are many different systems. Some forty states and
territories have homestead statutes. Those which so far ac-
cord with each other as to present a family likeness may be
said to constitute the prevalent system outlined in the diagram
placed at the beginning of this treatise. Those which are ex-
ceptional make a large minority of the whole. Indeed, the
former are not wholly free from exceptions to the prevalent
-system, while the latter are not whoUy incongruous with it.
INTRODUCTION. XCIX
Scarcely any two statutes agree in all particulars. There is
such variety of provisions that even the brief summary of in-
novations upon previously established law, above given, is not
applicable to every state. The difficulty of treating the
general subject is therefore greatly enhanced ; so that, instead
of simple and positive statements of law, it is frequently
necessary that they be qualified as applicable to particular
states only.
Some statutory provisions, which are substantially uniform
in several states, take on differences when sifted through the
judicial sieve. "Whether the variances are attributable to leg-
islation or construction, the effect upon the task of the com-
mentator is to render it more difficult than that of treating a
uniform system would be. So, if the following' pages be found
sometimes incumbered with exceptions to general statements
in decisions as well as in statutes ; if the treatment of ques-
tions be found sometimes apparently circuitous rather than
direct, it may be pleaded in extenuation that the subject itself
is wanting in unity, the statutes variant and the decisions
therefore often diverse. It is hoped that those who ride with
me over the extended road before us will attribute some ^ of
the jolting to the hills and hollows- of the way.
Those who look for dogmatic statements, applicable to the
whole country, on every point, will be disappointed. The re-
striction of every statutory provision to its own province, and
of every decision to its own local bearing when not of gen-
eral application, could not be neglected to save the text from
being tedious. To effect this restriction, two methods sug-
gested themselves : one, to name the states to which a prin-
ciple was applicable ; the other, to let the cited authority fix
the limitation. The former would have been awkward, cum-
bersome, and hardly practicable without extending the treat-
ise to two or three volumes. The latter method has been
adopted. The notes qualify and confine the statements of
the text, and relieve them in places from apparent contra-
dictions."
It has been frequently necessary, however, to discuss decis-
ions in the text, and to inquire whether their reasons are such
as to commend them to general acceptance. The principle of
st<we decisis has been religiously regarded, even to the recog-
C INTEODTJCTION.
nition of the legal apothegm: Res judicata facet exaTbo nigrum,
ex nigro album; exourvo rectum, ex recto curvum. But a thing
adjudged does not make white black and black white, etc.,
outside of the state where the adjudication is made, when the
deliverance is based on a local statute; nor does a decision on
any principle have authority beyond the jurisdiction within
which it is rendered. The reasons are open to discussion in
every other jurisdiction. It is the applicability of judicial
reasons, rendered in one state, to questions arising in another
that I have had occasion to review. Especially when decis-
ions of different states conflict on the same point or principle,
inquiry into the relative weight of the counter arguments ad-
duced has been found necessary to the proper treatment of
the subject. To give decisions only, without any attempt to
reconcile divergences, or to discuss principles, is to make a
digest — not a treatise.
The criticisms (if they may be so called) are not meant to
be captious, or wanting in respect for any court. I certainly
entertain the highest regard for the judiciary of the country —
not excelled for learning and probity by any in the world.
But two conflicting decisions cannot both be right. The
treatise-writer is no umpire to decide between them, but he
should treat them when they cross his path, or he should not
write at all. ISTot merely conflicts but erroneous tendencies
give occasion for review and suggestion. If there is a trend
towards the extension of homestead statutes without due re-
gard to the rules applicable to all construction ; if there is not
sufiicient prominence given to the law of notice to creditors rel-
ative to exemption; if the true policy of legislation favoring
homes is anywhere misunderstood ; or if there is anything of a
general character inviting suggestion, may not such matters
come under review without offense? For instance, it has been
gravely said, in view of the beneficence extended to debtors,
that homestead laws are not meant to be just to creditors.
Were this true, they would not be wor thy to be called laws ;
but its falsity may be exposed, without harshness, by calling
attention to the law of notice under which the creditor knows,
when he trusts the debtor, that he cannot look to thq lat-
ter's homestead as security.
Advance in the settlement of legal questions (not determined
INTEODirCTION. CI
by authbrity) is made precisely as in all other mooted points
of science — not by dogma but demonstration; not by the
opinion of one writer or many but by the acquiescence of think-
ers generally. It is therefore to the legal profession — on
benches and off — that open questions look for solution, until
finally settled by the courts.
The subject has grown upon me as its features have become
familiar. Its importance has been realized more and more, so
that home conservation now appears to me as one of the great-
est advances in civilization during the present century. It
ought to have recognition, in some appropriate way, this year
at the World's Columbian Fair.
So much by way of introduction, which in the parlance of
the old books may be fitly called The Author's Apology.
HOMESTEAD AM EXEMPTION.
CHAPTEK I.
LEADING PRINCIPLES.
1. The Qualified Family Residence.
S. Policy — To Conserve Homes.
3. The Property Exempted.
(1) Property habitable.
(2) Property occupied by a
family.
4. Exemption from Ordinary
Debts.
g 5. Notice to Creditors Essential.
6. States, as Creditors.
7. Liability for Liens.
8. Prevention of Property-Indebt-
edness.
9. The Governing Law.
10. Summary of Leading Princi-
ples.
§ 1. The Qualified Family Residence.
A homestead is ordinarily a family residence, but the word
has both a common and a technical meaning ; the latter is
employed in the title and text of this treatise. As a law term,
it may be thus defined : Homestead is a family residence owned,
occupied, dedicated, limited, exempted, and restrained in alien-
ability, as the statute prescribes.
In this sense, courts and the profession generally are in the
constant habit of using the word. In legal arguments, decis-
ions, reports, digests, statutes and constitutions, this is the
usual significance. The word is rarely used in its ordinary
sense and then qualified to show that an exempt, restricted,
statutory, family residence is meant.
The use of the term has been judicially reprobated, when
the property meant to be indicated was not exempt, in the
following words, quoted as italicised by' the court: "In con-
sidering the claims of anterior creditors and the creditor to
whom purchase-money is due, it is a wrong use of language
to call the estate a homestead. No hoinestead exists against
suoh claims." ' Even in pleading, the word, employed without
qualification, has been taken by the court in its technical sense.
I Lamb v. Mason, 50 Vt, 350.
2 LEADING PEINCIPLE8.
An averment, in a bill of complaint, that the land on which
the complainants lived was their homestead, was held to be
a sufficient allegation that its value did not exceed the statu-
tory limitation.' The word occurring in a will was construed
to express the legal sense, so that the devisee to whom the ,
testator had bequeathed his homestead could take only what
was within the limitation of the homestead statute.^ The
word is not always thus construed in testamentary disposi-
tions.' And, in pleading, greater particularity than that above
indicated would be required by many courts.* The safe rule
to ascertain whether the word is used as in common parlance
or in its technical sense — not only in wills and pleas but in
judicial opinions and any legal writing — is to gather the
meaning from the context.
It is curious to note that while courts usually employ the
word as above defined, or at least as meaning an exempt fam-
ily residence, they frequently follow the dictionaries when they
give a definition of it, as though it were without other signifi-
cation than that in common parlance." Even in opinions con-
taining such definition, the technical term may be found,
employed to represent the qualified family residence. To
give instances of the technical use would be superfluous, since
almost every case cited in this treatise affords an example of
such use.
The word ought never to be employed, in either of its
senses, to express mere exempt realty when the debtor's home
is not meant. Statutes, exempting a stated amount of real or
personal property or both, without reference to home or family,
are not homestead statutes, though sometimes so miscalled.
It is hoped that the definition above given will be found
generally accurate ; but all of the qualifications of the family
residence therein stated are not universally pertinent. Some
of the statutes impose no restraint of alienation upon the
1 Evans v. Grand Rapids R Co., 68 it is said : " The word ' homestead ' is
Mich. 608. used in the constitution in its popu-
2 Backus V. Chapman, 111 Mass. lar sense." But it is immediately
386. added : " It represents the dwelling-
3 Ford V. Ford, 70 Wis. 53. house wliere the family resides. Its
* See ch. XXIII, § 7. tests are use and quantity." The ap-
6 Jaffrey v. McGough, 88 Ala. 648, plication of these tests shows that the
650. In Bebb v. Crowe, 39 Kas. 342, technical homestead is meant
POLICY TO CONSEEVE HOMES.
houseliolder ; thle conditions of the homestead are not uniform
in all the states ; the' widow's homestead, and that under fed-
eral law, are not strictly within the definition. These excep-
tions will be noted in their proper place.
Since exemption is one of the characteristics of homestead,
why is it made a separate subject in the title of this treatise?
Why "Homestead cmd Exemption?" Were the treatment
confined to the first topic, there would have been, no rieed of
the second word ; but as it extends to the the protection of
chattels and of other realty than homesteads from forced sale
for debt, the second subject is not superfluously or tautologic-
ally inserted in the title.
§ 2. Policy — To Conserve Homes.
The conservation of family homes is the purpose of home-
stead legislation. The policy of the state is to foster fam-
ilies as the factors of society, and thus promote the general
welfare. To save them from disintegration and secure thej
permanency, the legislator seeks to protect their homes from
forced sales so far as it can be done without injustice to others.
The reader will note the important difference between the
policy to conserve homes for the good of society and the state,
and the policy to save the property pf poor debtors from exe-
cution for their own good. As elsewhere remarked herein,
homestead statutes are not poor laws made for the benefit of
the impecunious only. They protect the family homes of all
classes. Any head of a family, however solvent and afiluent,
may dedicate his home under the statutory conditions, and
feel sure that, whatever ordinary debts he may afterwards
incur; whatever embarrassments he may encounter incident
to such debts, — the home of his family is safe. It is evident,
therefore, that under the prevalent homestead system (leav-
ing now out of view the Exceptional statutes which provide
exemption for poor debtors and needy widows and orphans
only), the policy is not to secure to the householder a certain
money-worth of realty ; not to subserve the interests of im-
mediate beneficiaries only — but to protect homes as the pillars
of the state edifice. The charitable effects of homestead laws
are merely incidental.
The reasons which support this broad policy are cogent and
4 LEADING PEINCIPLES.
readily apparent. Families are the units of society, indis-
pensable factors of civilization, the bases of the commolawealth.
Upon their permanency, in any community, depends the suc-
cess of schools, churches, public libraries, and good institutions
of every kind. The sentiments of patriotism and independ-
ence, the spirit of free citizenship, the feeling of interest in
public affairs, are cultivated and fostered more readily when
the citizen lives permanently in his own castle with" a sense
of its protection and durability.
The state is concerned in the conjugal and parental rela-
tions ; in the promotion of marriages and the rearing of chil-
dren ; in the morality, refinement and religion of families and
communities ; and, oh the other hand, it is injured, and its
prosperity endangered, by the prevalence of divorces and by
everything which tends towards the disintegration of families
and the breaking up of homes. The proverb : " "When pov-
erty comes in at the door, love flies out at the window," is
not invariably true ; the beautiful picture, in Irving's Sketch
Book, of the wife consoling and encouraging her husband
upon the loss of his fortune, is not an exceptional one ; but is
it not true that, when the home itself has been taken away, the
tendency is against the healthy growth of the sentiments
above mentioned as conducive to the welfare of the state?
These reasons would lead us, a priori, to look for such a
policy in statutes relating to the home ; especially when we
reflect that the legislature is free to follow such reasons but
not to make donations, or indulge in class legislation merely
to benefit the proprietors of homes to the neglect of citizens
and others who have none.
Turning to those statutes, we find the policy clearly indi-
cated by their provisions making the heads of families and
tbeir households, in actual occupancy of homes constituted as
required, the onlj' beneficiaries.^
The exceptional statutes, before mentioned, indicate a dif-
1 The statutes abound in such ex- every famjly, whether owned by
pressions as these, describing the husband or wife ; " "A homestead
homestead and the beneficiaries : occupied as a residence by the family
"The homestead of the head of a of the owner," etc. They will be cited
family ; " " Every householder hav- freely in future chaptera
ing a family ; " " The homestead of
THE PKOPEETT EXEMPTED. 0
ferent policj^ when they accord the exemption of a certain
Tahie of realty to poor debtors, much on the principle of chat-
,tel exemption.
The decisions of the courts, in which the policy of home-
stead legislation is touched upon, do not invariably hold that
it is to conserve homes.' Those which do are fairly repre-
sented by an early one, in which it is said : " The leading idea
upon which the constitution and statutes are predicated is the
protection of the family, and not the exemption of a cer-
tain amount of real estate."^ Expressions, in other cases,
favoring a different policy, when unnecessary to the decree,
may be passed as oMter dicta. Those which avow the charity
theory, as a reason for extending the statute, will hereafter
come under review. No one opinion is now called to mind
in which that theory, or the benevolence of the legislator to
the poor, has been distinctly stated in the construction (and
not the extension) of a homestead law, and made a reason for
judgment.
§ 3. The Property Exempted.
(1) Property habitable: The purpose of the legislator is ef-
fected by exemption and by restraint upon thejMS disponendi
by sale or will. The former is the method now to be noticed.
It is property — not merely a privilege respecting it, or an
in disposable right in it, or a quasi-QstdA,e not proprietary or
transferable — which the law exempts. It is property which,
in the absence of exemption, would be liable to execution.
Personal rights and privileges not disposable would not be
liable to execution under any circumstances. They would be
lost by the execution of that on which they rest, if not re-
1 Mr. Kneeland, in his work on At- third, the subsequent performance ol
tachments, in the following passage, the requirements, if any, provided by-
shows family homes to be the purpose statute as a prerequisite for the crea-
of homestead legislation : " The first tion of such a right" Page 32S. See
requisite of a homestead is the fact Chs. Ill and Yl, post.
that it is essentially the home of the ^Lies v. De Diablar, 13 Cal. 338.
person claiming it. Three facts are Similar statements of the true policy
necessary to constitute a homestead : are found in many other cases ; but
First, its actual occupancy as a resi- it is not contended that those which'
dence by the family of the house- assume the charity policy are less,
holder ; second, the intention on his numerous,
part to make it a permanent home :
6 LEADIlSra PEINOIPLES.
served; and, under some circumstances, they have been re-
served in sales of homesteads.' They are benefits inseparably
connected with the homestead, but they do not constitute it.
It is home property which the law exempts. It must be
something habitable as a family dwelling-house — whatev9r the
appurtenances and the extent of land exempt with it. This
leading characteristic is essential to the statutory homestead.^
There' are statutes and decisions which call the exemption of
interests in realty by the name homestead; — even undivided
and partnership interests and property held in co-tenancy.
These statutes and rulings will be treated hereafter.' Such
interests are proper subjects of exemption; and that they
are exempted in certain states, in the interest of families or
whomever the legislator has made beneficiaries, is all that he
and the courts have meant when classifying such interests
with homesteads. In the absence of exemption, such interests
would be liable to execution for the debts of their ow;ners : so
their protection from it may be conducive to the welfare of
the debtor's family ; but there can be no home in a mere in-
terest, as there are no atoms in ideas.
(2) Property occupied iy a family: There must not only be
habitable property, but property inhabited by its owner's fam-
ily, to constitute a homestead according to nearly all the stat-
utes. The protection endures while the family endures ; ceases
when it ceases. The death of the parents and the termination
of the children's minority end the homestead. The property
remains, but all that made it a legally exempted family resi-
dence would be gone upon the happening of those events ; for,
though the children might still constitute a family and still
occupy the premises, they would not be such a family as the
legislator contemplated.*
iLear v. Totten, 14 Bush, 104; Mc- 111. 40; Jarvais v. Moe, 38 Wis. 440
Taggert v. Smith, 14 Bush, 414 ; MoDannell v. Ragsdale, 71 Tex. 23
Evans v. Evans, 18 Bush, 587 ; Wyche Jacoby v. Distilling Co., 41 Minn. 227,
V. Wyche, 85 N. C. 96; Long v. S30; Bebb v. Crowe, 39 Kas. 342
Walker, 105 N. C. 90, 108 ; Hanby v. Lubbock v. McMann, 83 Cal. 328
Henritze, 85 Va. 177, 185; Const, of Spalding v. Crane, 46 Vt. 293 ; First
Virginia, art. II, §§ 1,5; Va. Code N. Bank v. HoUinsworth, 78 la. 575 ;
(1873), c. 183, § 8 ; post, ch. XV, §§ 8- post, ch. VI, §§ 3, 4.
12. 3 Post, ch. IV, §§ 10, 11, 13, 14
2 The J. L Case Co. v. Joyce, 89 4 For authorities on the subject of
Tenn. 337 ; Kitchell v. Burgwin, 31 occupancy, see ch. VL
THE PEOPEETT EXEMPTED. I
The rule is that the required occupancy must be actual and
continuous, though temporary absence is allowable while the
home is maintained.' Constructive occupancy is exceptional.
It is extensively favored when there is ownership with intent
to occupy ; especially when there are preparations for making
a home. The intention and preparation consummated, the
owner is accorded protection from the date of purchase, and
held to have complied with the requirement of occupancy,
undet this exceptional view.^ It would seem that retroaction
by the law of relation would not give the creditor notice from
the date of purchase; but under some statutes and their con-
struction, the public may be said to have notice, when the title
is filed, that homestead may be claimed.
The rule is that to constitute such family as the homestead law
contemplates, the members must be bound lawfully together by
blood or afflnitj'^ ; their relation must be that of status, not
contract: such as that of parents and children. Husband
and wife, or either and a minor child or more, constitute a
family. The head with dependent members other than wife
or children, whom he is obligated to support, has a family.'
But when we find a single person recognized as a family,* or
a household unlawfully constituted accorded homestead rights
as such,''* we must note the case as exceptional.
Without controverting such unusual ruling, it may be said
confidently that the legislator when providing for a family
did not mean an individual/ and that he contemplated a law-
fully constituted family. How can the public welfare be pro-
moted by the conservation of a family immorally organized?
How can the policy of the law to preserve families by saving
them from the mischief of disintegration — from being Jinocked
to pieces with the official auctioneer's hammer — be advanced
by the exemption of the homes of associated persons living in
1 Hotchkiss V. Brooks, 93 111. 386 ; 1057 ; Wilkinson v. Merrill, 87 Va.
Givans v. Dewey, 47 la. 414 ; Weis- 513 ; post, ch. Ill, § 1.
brod V. Daenicke, 36 Wis. 73 ; Hiatt v. * Stults v. Sale, 17 N. W. (Ky.), 148 ;
Bullene, 30 Kas. 557 ; Currier v. Kessler v. Draub, 53 Tex. 575 ; ch. Ill,
Sutherland, 54 N. H. 475, 4S7; post, § 9.
ch. VI, Occupancy. ' Gay v. Halton, 75 Tex. 303; Lane
2 Ch. VI, §§■ 7-10. V. Philips, 69 Tex. 340; Ex parte
3 Murdock v. Dalby, 13 Mo. App. 41, Brien, 3 Tenn. Ch. 33.
47 1 Galliger v. Payne, 34 La. Ann.
0 LEADING PEINCIPLES.
habitual yiolation of law ? True, such immorally associated
persons may form a family, in a sense ; but the statutes em-
ploy the word family, as well as the word homestead, in a
technical sense. Not even every lawful household is contem-
plated : only married parents and growing children (or such
parents without children, or one parent with a child or more),
or a family head, and members dependent upon him for sup-
port, and whom he is legally bound to support, constitute such
a household as is favored by homestead laws, as a general rule.
Not every homestead, in the ordinary sense of the word, is
exempt : only the technical homestead, as defined in the first
section of this chapter, is protected from forced sale, accord-
ing to most of the statutes. There is exemption of realty,
as well as personalty, to insolvent and other debtors, not based
on family protection ; and there is exemption of business es-
tablishn^ents in one state ; both may conduce to the welfare
of the family. The " business homestead " may be a means of
family support — just as an exempt chattel may be — but that
is no warrant for the use of the term.^
The homestead, habitable and inhabited as above described,
is subjected to quantitative or monetary limitations ; and, in
some states, to both.^ Distinction is drawn between urban
and rural homesteads as to the extent of realty exempted, but
the monetary restriction is applicable to both classes.'
§ 4. Exemption from Ordinary Debts.
Exemption is only from ordinary debts contracted after the
date of its beginning. It protects the homestead property
from such debts, but does not relieve the debtor, either di-
rectly or by operation of law, from any indebtedness he may
have incurred. He continues liable for all his debts ; and they
may be prosecuted to judgment as though he were not a
householder with a family, and as though no homestead law
had ever been enacted.
No state attempts by homestead legislation to exonerate
the debtor from the duty of meeting his obligations. Home-
stead exemption statutes are not bankrupt laws. They oft'er
no discharge. Everywhere the debtor may be sued for his
ordinary debts as well as for any others, contracted at any
1 Post, ch. VIIL 8 Id., §§ 1, 3, 4
2 Ch. VII.
EXEMPTIOK FEOM OEDINAET DEBTS. 9
time, and judgment recorded against him will create a gen-
eral lien bearing upon all his real estate — except his home-
stead.
In most of the states, it is simply hy excepting the homestead
'from general judgment liens for ordinary debts, contracted
after notice, that its protection is effected. The law does not
inhibit the rendition of the judgment, but saves the home-
stead from any property liability resultant. jSTo valid writ
can be issued or executed against the favored property. The
family cannot be disturbed or deprived of the home.
In some states, a lien upon the homestead is created by a
general judgment for personal debt, but lies dormant during
the, family occupancy. When the homestead beneficiaries have
ceased to be such, it wakes to life and may be enforced against
the property which was homestead.^ By this method the
family enjoyment of the home is secured. Even in the ex-
ceptional instances where the fee may be sold in the vindi-
cation of such a general judgment lien, the family use is
reserved.
Exemption of homesteads from forced sale for any debt con-
tracted does not exonerate them from judgments in cases ex
delicto. They have no immunity against fines imposed by the
state upon their owners, prosecuted to judgment and execu-
tion. " Surely it would be contrary to the theory and design
of the homestead laws, which are said to be founded upon con-
siderations of sound public policy and for the public welfare,
if they were so construed as to interfere with the administra-
tion of public justice, and take away the potent means of pun-
ishing crime. The public welfare is best promoted by the
enforcement of the laws, and one of the most potent means of
their enforcement is by fines imposed for their violation. It
never could have been within the purview of the constitution
[framers] in enacting a homestead law, to deprive the state of
the means of punishing offenders against its laws by permit-
ting such offenders to claim- exemption against punishment
for a violation of the penal laws of the commonwealth." ^
1 Kellerman v. Aultman, 30 Fed. Gayle, 40 La Ann. 386 ; Brandon v.
888 ; MoHugh v. Smiley, 17 Neb. 630, Moore, 50 Ark. 347 ; Jones v. Britton,
6U; Hayden v. Slaughter, 43 La. 103 N. C. 167 ; Rogers v. Kimsey, 101
Ann. 385;' 8 So. 919; Herbert v. N. C. 559; post, ch. X, § 6.
Mayor, 43 La. Ann. 839 ; Dennis v. ^ Wliiteacre v. Rector, 39 Gratt
10 LEADING PEINCIPLES.
The general rule is that judgments, rendered for torts and
the like, fasten a lien on the homestead as on all the other
property of the wrong-doing defendants.^ And ordinary debts
contracted by borrowing money to pay for the homestead, or
for its improvement, are generally collectible from that prop-
erty by the enforcement of the general judgment lien. This
is not universally the case — some states allowing no execution
of judgment unless there be a pre-existing vendor's lien or
other specific property indebtedness.
However, where the statute excepts from exemption when
debts have been incurred in the purchase or improvement of
the homestead, whether there was a specific lien created or
not, a personal debt so incurred may be prosecuted to judg-
ment bearing a lien on the homestead enforceable by execu-
tion.'
§ 5. Notice to Creditors Essential.
The justice of homestead laws could not be vindicated, were
creditors deprived of their remedy against the property of
their debtors without notice. Trusting to that property as a
common pledge when giving credit, they cannot be afterwards
deprived of their remedy against it without a serious impair-
ment of their contract. While the remedy may be modified
by the law-making power, it cannot be so shorn as virtually
to deprive the creditor of his vested rights. It was on this
principle that the state constitutions and statutes which for-
merly exempted homesteasls from liability to judgment and
execution on debts antedating their adoption or enactment,
were declared to be in contravention of the constitution of the
United States. I^ot only the divesting of existing liens, but
the withdrawal of the remedy for collecting ordinary debts
from property liable at the date of the contract, was held un-
714, in; McCiure v. BranifE, 75 la. v. Henson, 29 Ga. 345 : Parker v. Sav-
38. age, 6 Lea, 406 ; Kenyon v. Gould, 61
1 McLaren v. Anderson (Ala), 8 So. Pa St 293 ; Wade v. Kalbfleisch, 58
188; Williams v. Bowden, 69 Ala N.Y. 283; Buiton v. Mill, 78 Va 468.
433; Vincent v. State, 74 Ala. 374
Tate V. Laforest, 25 La Ann. 187
Donaldson v. Banta (Ind.), 29 N. E.
363; Thompson v. Ross, 87 Ind. 156
Nowling V. Mcintosh, 89 Ind. 593
Smith V. Ragsdale, 36 Ark. 297 ; Davis
Compare Gill v. Edwards, 87 N. C.
77 ; Conroy v. Sullivan, 44 111. 451 ;
Smith V. Omans, 17 Wis. 395 ; post,
ch. X, § 8.
2Posf, ch. XI, §§ 2, 3, 4.
NOTICE TO OEEDITOES ESSENTIAL. 11
constitutional, because the creditors were not then affected
with notice.^
Thus, not only the justice but the constitutionality of home-
stead exemption depends upon notice given anterior to the
creation of the debt. Good faith is not violated by statutory
protection of the family home from execution, if the creditor
is notified before trusting his debtor that he cannot look to it
for his pay. The effect of the notice is to except the home-
stead from the rest of the debtor's property so that it does
not become a part of the common pledge. ,
Notice is absolutely essential in all the states. It is given in
different ways. The promulgation of the homestead law is
essential everywhere. The recording of the title is required in
some states as notice. The inscription of the word homestead
on the margin of the recorded title is further required in two
or three states. The filing of a "Declaration of Homestead"
in a designated public ofiice is another method. Actual occu-
pancy by the householder and his family is notice in several
states, and it is usually required as additional to the record
notices in the states prescribing them.*
While the legislature may adopt any proper form of adver-
tising to the public that those who trust cannot look to home-
steads for pay, it cannot dispense with notification and yet
divest the creditor of his remedy. All the reasons adduced
by the federal supreme court, to show that that remedy was
so far denied as to impair contract when debts anterior to the
adoption of the state constitution or the enactment of the
statute granting exemption were declared non-collectible from
the homestead, apply perfectly to all cases of exemption with-
out notice.
Everybody is presumed to take cognizance of the legal
1 Edwards v. Kearzey, 96 U. S. 595 ; IT. S. 1 ; Boreham v. Byrne, 83 Cal.
Gunn V. Barry, 15 Wall. 610 ; Lamb 23 ; Lachman v. Walker, 15 Nev. 422 ;
V. Chamness, 84 N. C. 379 ; Russell v. Murphy v. Hunt, 75 Ala, 488, Ul;
Randolph, 26 Gratt. 705 ; Fowler v. Linsey v. McGannon, 9 W. Va. 154 ;
Wood, 31 S. 0. 398 ; Clark v. Trawick, Taylor v. Saloy, 38 La. Ann. 63 ; Ten-
56 Ga. 359 ; Pennington v. Seal, 49 nent v. Pruitt, 94 Mo. 145 ; Griswold
Miss. 528 ; First N. Bank v. HoUins- v. Johnson, 22 Mo. App. 466 ; Cheney
worth, 78 la. 575 ; Squire v. Mudgett, v. Rodgers, 54 Ga. 168 ; Mills v. Spauld-
61 N. H. 149 ; post, ch. X, g§ 1-4 ing, 50 Me. 57 ; post, ch. V, g§ 7, 8.
2 Goodwin v. Colo. Mort. Co., 110
12 LEADING PRINCIPLES.
notice, and therefore he who gives credit is held to have done
so linowing that the homestead is inviolable. The presump-
tion of knowledge, like many other legal presumptions, is
violent in many cases; the creditor may not surely know
whether his debtor's family residence has been validly made
a homestead, or whether certain acts or omissions have
amounted to abandonment; but what better way of informing
the public can be devised than those above mentioned ? What
absolutely perfect plan can be invented to guard against fraud,
double-dealing and uncertainty? The notice necessarily is
general, and particular cases of wrong cannot all be anticipated
by the legislator. The presumption is that notice reaches and
informs all. And the justice of homestead exemption is vindi-
cated by showing that the protected property never becomes
liable to notified creditors — never susceptible of lien-bearing
under judgments for ordinary debts contracted with notice.
§ 6. States^ as Creditors.
The states and the general government stand on the same
footing with private persons when they are simply creditors.
Justice Matthews, as organ of the federal supreme court, after
showing that the state courts had been " practically unani-
mous " in holding that exemption bars the state as creditor,
put the federal government in the same position. It was de-
cided that it, on a judgment for an ordinary debt, cannot seize
and sell a homestead which is exempt by the law of the state
where it is situated ; " that the exemptions from levy and sale
under executions of one class [of judgments] apply equally to
all, including those on judgments recovered by the United
States." ' And there are prior decisions substantially in ac-
cord.^
In the case first above cited. Justice Matthews suggested,
in the opinion, that the exemption laws of the states are not
laws of the United States unless made such by congress ; and
he then entered into the inquirer whether the United States
had adopted the homestead act under consideration so as to
1 Fink V. O'Neil, 106 U. S. 272. ' States, 9 Wall. 655 ; United States v.
2 United States v. Eailroad Co,, 105 Knight, 14 Pet. "301 ; Beers v. Haugh-
U. S. 263; United States v. Thomp- ton, 9 Pet 829. Compare United
son, 93 U. S. 586 ; Green v. United States v. Howell, 4 Hughes C. C. 483.
STATES, AS CEEDITOES. 13
be bound by it. The conclusion, however, was the broad one
first above stated.
Distinction must be drawn between the government's posi-
tion as an ordinary creditor, and that as a suitor enforcing
governmental powers. " Statutes which derogate from the
powers and prerogatives of the government, or tend to dimin-
ish or restrain any of its rights or interests [as a government],
do not apply to it unless it is expressly named." ^ And it is
manifestly true that the express mention of the general gov-
ernment in a state statute would not enable a state legislature
to "derogate from the powers and prerogatives" of that gov-
ernment, unless congress should adopt the law ; • — and not then
unless the matter is within the authority of congress.
States cannot pass exemption laws that cripple the federal
government in the exercise of its police powers or. any other
of like character. In other words, it has been very well settled
(by decisions not on homestead exemption), that the states
have no authority to control the laws of congress to carry
into effect the powers vested in the general government.^
The ancient rule, that general statutes do not bear upon
the king in the absence of express or irresistibly implied
words to include him, was not applicable to those enacted for
the public good, like our family-protecting statutes. That
rule recognized statutes as made for subjects and not for the
sovereign. Our general government exercises sovereign pow-
ers, but its position is very different from that of a monarch
ruling by an assumed divine right over subjects held to obe-
dience. To a degree it is true here that our government can-
not be deprived of a right, privilege or interest by the impli-
cations of a statute ; certainly not, by even express statutory
provisions, when its I'ights and privileges are under the police
power. The rule has been learnedly treated by the courts.'
1 United States v. Herron, 20 Wall, bins v. Commissioners, 16 Pet. 435 ;
251; Savings Bank v. United States, The Collector v. Day, 11 Wall. '113;
19 Wall. 238, 239 ; Dwarris, p. 533 ; United States v. Railroad Co., 17
Sedgw. Stat & Const. L., pp. 105, 395 ; Wall. 333 ; Bank of U. S. v. Halstead,
Boyle V. Zacharie, 6 Pet. 659 ; Way- 10 Wheat 51 ; Beers v. Haughton, 9
man v. Southard, 10 Wheat 1. Pet 339.
2 McCuUoch V. Maryland, 4 Wheat ^ Commonwealth v. Ford, 29 Gratt
316 ; Weston v. Charleston, 3 Pet 449 ; 683, 6S7, citing Broom's Xegal Max-
Crandall v. Nevada, 6 Wall. 35 ; Dob- ims, 76, 77 ; United States v. Herron,
14
LEADING PEINCIPLES.
The governmental prerogatives of a state are as sacred as
those of the United States ; but, like the latter, when a state
is a creditor it stands with other creditors and is cut off by
exemption when not excepted from the general provisions.'
There seems to be no good reason against this proposition.
The state is presumed to have notice of the homestead law,
to know when exemption begins, to trust the debtor after-
wards with full knowledge that the homestead stands as no
common pledge for the debt. All corporations are affected
by the notice. Why should not artificial persons be cut off
with other creditors? The state is no sovereign in such a sense
as described in some of the above quoted decisions ; the fed-
eral government is no such sovereign ; American citizens do
not derive their rights from any government : so the reasons
given to sustain the theory that the government is not affected
by a statute unless expressly named, are not manifestly ap-
plicable. It is, only when some governmental power or right
is molested that the rule requiring expression applies. As a
mere creditor upon contract, a state or the national govern-
ment is on the same footing as any other creditor. This doc-
trine is now generally conceded.
§ 7. Liability for Liens.
The homestead is not released from any debt which it owes ;
from any obligation which it has incurred and which rests
upon it as a thing indebted by fiction of law. A lien, mort-
gage, or any liability, conventional or created by operation of
law, which has been attached to it, remains upon it unaffected
by homestead exemption. Whether such lien or property in-
debtedness existed before the homestead character was ac-
quired, or was put upon the property afterwards, the result is
the same.
20 Wall. 251, S6S; Saunders v. Com- v. Eossiter, 4 Cow. 143 ; Common-
monwealth, 10 Gratt 494, 496; Lev- wealth v. Baldwin, 1 Watts, 54 ; Lott
asser V. Washburn, 11 Oratt. 572, 577; v. Brewer, 64 Ala. 287; Brooks v.
Commonwealth v. Cook, 8 Bush, 220 ; State, 54 Ga. 36.
Whitacre v. Rector, 29 Gratt. 714 ; i State v. Pitts, 51 Mo. 133 ; Wildes
Bacon's Ab., Prerogative E. p. 92 ; v. Vanvoorhis, 15 Gray, 139 ; Rich-
State V. Kinne, 41 N. H. 238 ; United ards v. Chace, 2 Gray, 383. See Corn-
States V. Hoar, 2 Mason, 311 ; United mon wealth v. Cook, 8 Bush, 225 ;
States V. Hewes, Crabbe, 307 ; People Hume v. Gossett, 43 III. 297.
" LIABILITY FOE 'lIENS. 15
The creditor certainly has a vested right to his mortgage or
other form of lien which no legislature can divest by the pas-
sage of a homestead statute. His remedy may be qualified so
as to require him to exhaust other property first when the
mortgage covers other property, but his right in the home-
stead, his jus ad rei^i, cannot be denied.^
To this rule of property-indebtedness there is little excep-
tion. It has been held, however, in a state where the home-
stead system is declared by its highest court to be '' unlike that
in most of the other states," that the lien of a general judgment,
which is attached to realty before homestead has been declared
or created, cannot be enforced till the homestead right shall
have been terminated ; that the lien exists in full force and
validity all the while, and will take precedence over a trust
deed of later date when it comes to be vindicated after the
homestead has been abandoned or otherwise has ceased to
exist.^
This dpctrine is out of harmony with the general rule, and
it seems manifestly prejudicial to the lien holder, so crippling
his remedy as to seriously impair his right. His judgment
lien is thus postponed for an indefinite number of years, pos-
sibly for the period of his whole life. His property in the
judgment is so diminished that he could not sell it for half its
original worth. His remedy is so seriously impaired that there
is good ground for doubting the constitutionality of any leg-
islative provision that thus affects his lien after it has fastened
upon the land. >
There would be as much reason for allowing homestead to
thus affect a mortgage or any conventional lien resting on
land before it becomes a homestead. Such specific liens are
no more property rights than general judgment liens.
• The exceptional doctrine above noticed has not uniformly
1 Bunn V. Lindsay, 95 Mo. 250, S58; Butler, 1 Va. L. J. 120. See Va. Code
McCauley's Estate, 50 CaL 544 ; Eoupe (1887), § 3649, of which the courtj in
V. Carradine, 20 La. Ann. 344 ; Ely v. Blose v. Bear, said that -whatever
Eastwood. 36 111. 108 ; Burnside v. may be its effect on future cases, its
Terry, 51 Ga, 186 ; Tuttle v. Howe, 14 provision was not in existence when
Minn. 145, 152. this case arose. It is to be hoped,
2 Blose V. Bear, 87 Va. 177 ; Scott v. therefore, that future cases will be
Cheatham, 78 Va. 83 ; Lindsay v. brought into line with the prevalent
Murphy, 76 Va. 438 ; Richardson v. system respecting things indebted.
16 LEADIN& PEINOIPLES.
been recognized in the state of the cited decisions. It has been
held in a case more recent than any of those abpve cited ex-
cept the yery latest, that when a judgment has become a lien
upon land before the owner is entitled to a homestead, it is
paramount to a claim of homestead subsequently made.^
§ 8. Prevention of Property-Indebtedness.
Prevention — not cure — is the legislator's purpose as to
homestead property-indebtedness. He cannot cure; but he
has remedies at his command to prevent the plague or hinder
it. As already shown, general judgments for ordinary debts
are prevented from bearing any lien upon the homestead, so
that property-indebtedness cannot be created by them in favor
of notified creditors personal or governmental.
Conventional liens cannot be prevented readily without a
shock to public interests, and the states generally do not for-
bid their being fastened upon the homestead. But they are
hindered ; impediments are thrust in the way. The married
owner is restrained, by most of the statutes, from either mort-
gaging or selling his homestead property by his sole deed.
His wife has the veto power.^
Almost as generally, the husband may prevent the wife
from selling or mortgaging by refusing to join in the alienar
tion when she is the owner. These provisions guard against
the improvidence of either spouse by making the one a check
upon the other ; " and, as it is many times more difficult for
two to act together than for one to act alone, the chances of
keeping the home "for the children are greatly enhanced by
these impediments.
How is it that the legislator can invade private rights and
create such restraint upon alienation? He does not invade
them — does not create the restraint. He grants exemption
on conditions ; and one of the conditions is that the owner
shall consent to this restraint. There is consent implied when
the owner' makes declaration of homestead, or in any pre-
scribed legal way accepts the benefit of exemption.
The " homestead right," or " privilege," or " incumbrance,"
or " estate," bestowed on the wife (or the wife and children),
1 Kennerly v. Swartz, 83 Va. 704, tPost, ch. XII, § 5.
citing Const of Va,, art. IX, § 8. ^Id, §§ 3, 9,
PREVENTION OF PEOPEETT-INDEBTEDNESS. 17
when the declaration is filed, or the exempt character of the
home property created, is bestowed by the husband and not
by the state. It is done by the acceptance of the condi-
tions of the exemption grant. He thus voluntarily relin-
quishes his lordship over his castle so far as the wife. has
come to share its disposition with him. Now she may keep a
roof over her children's heads despite his speculative turn and
despite the sheriff's hammer. She is not obliged actively to
resist either, for she effects the purpose simply by withholding
her hand. 1
The end sought by the law-makers is the keeping of the
home in the family — the meeting of the mischief of house-
hold disintegration. The means are not commendable in every
instance, but doubtless this restraint upon alienation and in-
cumbrance is almost as effective to promote the conservation
of family homes as the positive inhibition of general judgment
liens in personal suits for debt.
In states where the acceptance of the exemption grant is
upon the condition that the owning marital partner shall give
an equal interest to the other, so that they become joint ten-
ants, the effect upon the family permanency is the same as that
above discussed. There is no denial of the right to sell (except
in one state), if both husband and wife agree to do so.' Their
conveyance needs the court's approval under an unusual stat-
ute requiring a judicial proceeding to dedicate the homestead
in the first instance.^ Husband and wife may mortgage or
otherwise incumber their homestead, by joining together to
do so ; ' but where there are restrictions upon sale, they usually
apply also to the creation of liens by married persons.
The reason why homesteads are allowed to be saddled with
property debts and allowed to be sold or abandoned, by the
joint action of husband and wife, is that if parents agree
upon any such disposition of the homestead, they may be pre- 1
sumed to act for the best interests of their children, or for
their own best good if they are childless. Were prevention
carried so far as to preclude such joint action, the homestead
1 Woolcut V. Lerdell, 78 la. 668 ; 1114 ; Witherington v. Mason, 86 Ala.
Weigeman v. Marsot, 13 Mo. App. 576 ; 345 ; post, ch. XII, §§ 1-3.
Dudley v. Shaw, 44 Kas. 688; 34 P. ^Linch v. Molntyre, 78 Ga. 309.
3Ch. XII, §4.
18 LEADmG PRINCIPLES.
protection would become a detriment rather than a benefit to
the family, in many instances ; and the property would be so
far taken out of commerce that the state would not have its
welfare promoted by the homestead system without a serious
drawback.
Eestraint of testamentary disposition is another means of
preventing the family's deprival of the homestead.^
Prevention, as a means- of saving the home, has been car-
ried so far as to exempt "from all liability," so that a judg-
ment for tort has been held not enforceable against the home-
stead.^ And even the interdiction of " any process whatever "
has been attempted. No doubt a legislature may regulate
the jurisdiction of courts, but there must be a limit to its
right to curtail it — else all process might be taken from the
courts. It is certain that the legislative department cannot
obliterate the judicial altogether without violation of the con-
stitutional distribution of governmental powers.
If the denial of any process against homesteads means that
the state or general government cannot reach such property
in executing a general judgment against the owner for fines,
or under a judgment for forfeiture or confiscation, or in vin-
dication of any right that may give rise to a proceeding in
rem, it would seem that the police and other governmental
powers (noticed in a former section) would be seriously im-
paired.
May not assessments, for street improvements, sewers, etc.
(which are not taxes but forced contributions), be collected
from the homestead property? May not federal remedies
directly against property be enforced? May not nuisances be
abated? Think of a householder having, his property im-
proved at the expense of his neighbor ! Suppose the general
government powerless to pronounce the condemnation of an
illicit distillery upon a homestead! Imagine the case of a
homestead holder who, with impunity, indulges the fancy of
cultivating malaria on his exempt city lot by maintaining a
putrid pond to breed 'bacteria!
i&ecji. XIV. Edwards, 87 N. C. 77; Bellinger v.
2 Conroy v. Sullivan, 44 111. 451 ; Tweed, 66 N. C. 206.
Smith y. Omans, 17 Wis. *395 ; Gill v.
THE GOVEENING LAW. 19
§ 9. The Governing Law.
The rights and relations of creditor and debtor, with re-
spect to homestead exemption, are governed by the law in
force at the date of the contract. " After a debt is contracted,
the legislature cannot diminish the. rights of the creditor, nor
take from the debtor property previously exempt to apply on
that particular debt." ' This is true as to every remedy that is
essential to the value of any stipulation to be enforced. The
contract between principal and surety forms no exception to
the rule. If there be a breach of the contract so as to give
cause of action, the question of exemption, after judgment,
with reference to execution, would be determined by the law
existing when the contract was made — not when the breach
occurred.^
The amount of exemption is governed by the law existing
when the debt was contracted.' If a lien has attached before
residency acquired, it holds good where exemption begins
with occupancy.''
Not only the amount exempted in quantity and value, but
the right of exemption itself, as against creditors, is governed
by the law existing at the time the debt was contracted ; as
against sureties, by the law existing when the liability was
assumed. The novation of the debt at a subsequent date does
not affect the exemption. A new liability, succeeding the
discharge of the original obligation, is governed by the law
. existing when it was assumed.'
Whatever of land or value was liable at the time the debt
1 Dewitt V. Sewing Machine Co., 17 iamson, 65 Ala. 439 ; Keel v. Larkin,
Neb. 533 (citing Dorrington v. Myers, 72 Ala. 493 ; Kelly v. Garrett, 67 Ala.
11 Neb. 388; Bills v. Mason, 42 la. 304 ; Blackwood v. Van Vleet, 11 Mich.
329 ; Warner v. Cummock, 37 la. 643) ; 252 ; Aycock v. Martin, 37 Ga. 124.
MoHugh V. Smiley, 17 Neb. 620; < Murphy v. Hunt, 75 Ala. 438
Mooney v. Moriarity, 36 111. App. 175 ; (lien attached while the owner of
Henson v. Moore, 104 111. 403. the homestead was a non-resident) ;
2 Bryant v. Woods, 11 Lea, 327; McCrary v. Chase, 71 Ala. 540 (to the
Drinkwater v. Moreman, 61 Ga. 895. same effect : overruling Watson v.
3 Powe V. McLeod, 76 Ala. 418. Simpson, 5 Ala. 233).
Thus, eighty acres were exempt un- 6 Keel v. Larkin, 72 Ala. 493 ; Fearn
der the Alabama constitution of 1868 v. Ward, 65 Ala. 38 ; Munchus v.
up to the act of April 28, 1873. Coch- Harris, 69 Ala. 506 ; Slaughter v.
ran v. Miller, 74 Ala. 50 ; Randolph v. McBride, 69 Ala. 510 ; Carlisle v. God-
Little, 63 Ala. 397 ; Giddens v. Will- win, 68 Ala. 137.
550 LEADING PEINCIPLES.
was contracted remains so when the debt is sought to be
collected. A subsequent law enlarging the quantity of realty,
measured by acres or money, which constituted the homestead
when the debt was contracted, would not curtail the credit-
or's remedy in proportion to the addition.'
Upon a change of constitution, the homestead rights of
debtors and the vested rights of creditors, existing under the
old, are not displaced by the new constitution.^ But a right
to claim homestead under a constitution or statute is lost bv
repeal of the law, if not claimed before."
The rule is that the homestead law in force at the time of
the making of a contract governs in subsequent proceedings
concerning the contract.* If, however, a new law has been
passed, providing for a method of procedure different from
the old, there is no apparent reason why the later should not
be employed if no rights, remedial or other, are infringed so
as to lessen the value of rights acquired under the contract.
Where the limitation of homesteads had been different
when a widow's right to one arose on the death of her hus-
band, from what it was under a new statute repealing the
former, her allotment was according to the old law, but the
proceedings under the new.'
The widow's right to homestead depends upon the law
granting it at the time of the death of her husband. If such
law made the declaration of homestead essential, and the hus-
band declared none, it was held that the widow cannot claim,
though a later law authorize her to do so.* On the other
1 Cochran v. Miller, 74 Ala. 50; 78 Ala. 376 ; Boiling v. Jones, 67 Ala.
Keel V. Larkin, 73 Ala 493; Wright 508.
V. Straub, 64 Tex. 64 ; Lowdermilk v. 6 The Tennessee code of 1858 said :
Corpening, 93 N. C. 833. See ch. VII, " The homestead exemption in the
§ 7, and the authorities there cited. hands of a husband shall, upon his
2 Gerding v. Beall, 63 Ga. 561. death, go to his widow during her
3 Clark V. Snodgrass, 66 Ala. 833. natural life or widowhood." Later
^Spitley V. Frost, 15 Fed. 399; Dor- acts, 1870 (3d ses.), ch. 80; 1879, ch.
rington v. Myers, 11 Neb. 388. 171, give homestead to the widow.
6 Dossey v. Pitman, 81 Ala. 381 ; Threat v. Moody, 87 Tenn. 143. Dis-
Clark V. Spencer, 75 Ala 49 ; Rotten- tinguished: Vincent v. Vincent, 1
berry v. Pipes, 53 Ala. 447 ; Taylor v. Heisk. 343 ; Merriman v. Lacefleld, 4
Taylor, 53 Ala. 135 ; Taylor v. Pettus, Heisk. 309. See Langford v. Lewis, 9
53 Ala. 387 ; Alabama Code of 1876, Bax. 127.
g§ 28S7, 3841 ; Skinner v. Chapman,
SUMMARY OF LEADING PEINCIPLES. 21
i
hand, a change of statute cannot affect a widow's vested home-
stead right.^
The rights of minors are governed by the law existing when
the parent died, from whom the rights are derived.^ The
tutor of a minor, appointed and qualified in 1877, filed his
final account, in which he was shown to be indebted to the
minor in 1888. There was judgment against him; but he
sought to enjoin the execution of the judgment against his
homestead, under the exemption act in force at the time of
his appointment. The constitution that was adopted two
years later excepted debts contracted or liabilities incurred
in a fiducia,ry capacity, from exemption. As the tutor's in-
debtedness to his ward was not ascertained till the filing of
the account, and did not arise from contract with the minor
but from legal obligation; and as the homestead had not been
previously set apart and registered as required by law ; ^ and
as the debt was contracted in a fiduciary capacity, the injunc-
tion was denied, as the later law governbd.^
Statutoty exemptions and privileges are granted subject to
modification and repeal. All agreements between debtors
and creditors are presumed to have been made with knowl-
edge of the contrdlling power of the legislature. In contem-
plation of law, every beneficiary of exemption knows that the
power which conferred the privilege he enjoys may recall it
at will. By the amendment or repeal of an act, no vested
right is divested, and no obligation of contract is impaired;
the legislature violates no constitutional provision.'
§ 10. Summary of Leading Principles.
1. The family is the object of homestead legislation in the
interest of society and the state.
2. The mischief which the law meets is family disintegra-
tion ; the remedy is home protection : so, in the application of
the remedy to the mischief, doubtful statutory provisions
should be liberally construed.
1 Register v. Hensley, 70 Mo. 189. Bull v. Conroe, 13 Wis. *333; Harris
2 Quinn v. Kinyon, 100 Mo. 551. v. Glenn, 56 Ga. 94 ; Sparger v.
» La. Const, of 1879, arts. 319, 330 ; Compton, 54 Ga. 185; Dobbins v.
Act 14 of 1880. First N. Bank, 113 111. 560 ; Moore
< Piatt V. Sheriff, 41 La. Ann. 856. y. Litohford, 35 Tex. 185; Leak v.
« Bolton V. Johns, 5 Pa St 145; Gay, 107 N. 0. 468; Cooley's Const
Bleakney v. Bank, 17 S. & R 64 ; Lira., p. 383, § 479 ; post, oh. VII, § 7.
82 LEADING PEINOIPLES.
3. The remedy is threefold: exemption from forced sale
for ordinary debts contracted after notice, restraint upon alien-
ation by the owner's sole act, and inhibition of testamentary
disposition.
4. The head of the family, owning the homestead, is pre-
sumed to assent to the imposed restrictions in consideration
of the benefits conferred.
5. The law neither gives nor takes away title from the
owner, nor affects it except by the owner's consent evinced
by his dedication of his property as homestead, or by his be-
coming the head of a family occupying it — thus voluntarily
placing himself under the law.
6. The title may be either freehold or leasehold or merely
equitable, but there must be the right of exclusive possession.
The fee may be voluntarily sold by the owner with the concur-
rence of his wife, while life estate or estate for years may be
retained — either which estate will support the homestead right.
Y. The wife's and the minor children's present interest in
the homestead (assented to by the husband-father when he
accepted the homestead conditions) is a quasi-esta,tG which
they enjoy but cannot convey, and which cannot be separated
from the owner's title.
8. The spirit of the homestead laws favors marriage and
opposes divorce ; favors the rearing of children and opposes
their disinheritance ; favors the widow and orphan and post-
pones the partition of the homestead among heirs whUe any
of them are minors.
9. The benefits may be surrendered by the husband and
wife, who may sell or incumber or abandon the home ; and,
acting together, they may obliterate the quasi-estsute of their
minor children by any of those means.
10. The benefits are accorded on conditions, the principal
of which are : family-headship, ownership, occupancy and dedi-
cation. The condition of occupancy is not slavish but allows
temporary absence with intent to return.
11. The state may modify or withdraw the benefits which,
though accepted by the beneficiary upon conditions, are not
vested rights of contract.
12. The rights of the beneficiary are governed by the law
in force when they were acquired, as to exemptions and lim-
itations.
8UiIMA.EY OF LEADING PEINOIPLES. 23
13. The limitations of homestead are quantitative or mone-
tary, or both, varied in quantity between urban and rural
homesteads ; and there is no exemption of any excess.
14. Creditors, giving credit after notice that the home occu-
pied by the debtor's family forms no part of the security for
the debt when prosecuted to judgment, are not wronged by
the exemption.
15. Political, public and private corporations, and all artifi-
cial persons, when in the capacity of creditors, are affected by
homestead laws precisely as other creditors.
16. Creditors may look to the homestead for its purchase-
money, or for the price of improvements thereon ; for, ex-
emption is not accorded to the beneficiary at the expense of
others.
17. Creditors may enforce against the homestead any lien
bearing upon it — any property-debt of the homestead itself —
since exemption has reference to personal debts only.
18. Property held in partnership, joint-tenancy, or tenancy
in common, and any undivided interest, may be the subject of
exemption though not susceptible of being homestead.
19. Indivisible home property, exceeding the maximum of
homestead in extent or value, may be sold by order of court,
and the proceeds of the exempt portion may be invested in a
new homestead, while the rest of the proceeds go to creditors.
20. Statutes which exempt in favor of poor debtors only,
and provide for impecunious widows and orphans only ; which,
though called homestead laws, merely save from execution a
prescribed value of realty and personalty, are not all- in ac-
cordance with the foregoing principles. The mischief which
they seek to meet is poverty ; the remedy is the reservation of
a part of the property from forced sale, or a part of its proceeds.
21. Federal homesteads, donated to settlers on the public
domain, are governed by principles peculiar to themselves,
and require separate treatment.
22. State homestead statutes are not uniform ; there are ex-
ceptional provisions to which sonpe of the above stated prin-
ciples are inapplicable.
23. Chattel exemption differs, in many respects, from home-
stead exemption, as to its leading principles.
CHAPTEE II.
CONSTRUCTION.
1. Plain Statutes.
3. Words — How Construed.
3. Uniform Operation,
4. Liberal Interpretation.
5. Policy — How Par to be Consid-
ered.
6. Charitable Grounds.
7. Common right
§ 8. Ruling to Prevent Fraud.
9. Restraint Upon Alienation.
10. Law of Wife's Property.
11. Statutes Not Extended by Con-
struction.
12. Rival "Equities."
13. Conflicting Interpretations,
14. Constitutional Directions.
§ 1. Plain Statutes.
Homestead statutes are subject to the established rules of
construction applicable to all statutes. There is no room for
construction when the intention of the legislature is so ex-
pressed as to raise no question of the meaning. The rule is
that courts must not interpret what has no need of interpreta-
tion.'
So it is held that where a provision of a statute is expressed
in clear, precise and consistent terms, it does not need to be
expounded, and courts are not permitted to go beyond it in
order to restrain, elude or extinguish it.^ It is not to be con-
strued either strictly or liberally ; not to be construed at all,
whether it be in a homestead statute or any other. Its mean-
ing is upon its face, presenting no problem to be solved, no
obscurity to be relieved, no difficulty to be removed, nothing
1 Arthur v. Morrison, 96 U. S. 108 ;
Schooner Paulina, 7 Cr. 53 ; Benton
V. Wickwire, 54 N. Y. 336-8; Mc-
Clusky V. Cromwell, 11 N. Y. 601 ;
People V. Schoonmaker, 63 Barb. 44 ;
Schlegel v. Beer Co., 64 How. (N. Y.)
196 ; People v. Supervisors, 13 Abb.
New Cas. 431; Clark v. Mayor, 39
Md. 383 ; Bonds v. Greer, 56 Miss. 710
Fitzpatrick v. Gebhart, 7 Kas. 35
Bosley v. Mattingly, 14 B. Mon. 73
Bartlett v. Morris, 9 Porter, 366
Logan V. Courtown, 13 Beav. 33;
Banderley v. Jarvis, 35 L. J. Ch. 541 :
Rex V. Commissioner, 6 Ad. & EL 17 ;
Notley V. Buck, 8 B. & C. 164.
2 Mallard v. Lawrence, 16 How.
(U. S.) 351 ; Douglass v. Freeholders,
38 N. J. L. 214; Howard Ass'n Ap-
peal, 70 Pa. St 844 ; United States v.
Fisher, 3 Cr. 358; People v. New
York Ry. Co., 13 N. Y. 78 ; Canal Co.
V. Railroad Co., 4 Gill & J. 152.
WORDS — HOW CONSTEUED. 25
to be interpreted : so a bare reading of the statute is suffi-
cient.^
Courts are not to be influenced by their own views of ex-
pediency or the wisdom of the legislature, or even by their
own opinions of the justice of an enactment, when the lan-
guage of the statute is plain and the intention of the legisla-
ture is free from doubt. They have no right to have any judi-
cial policy relative to any law."
Of the rule that statutes should be so construed as to give
meaning to every provision, it has been judicially said : " We
recognize the rule as valuable in aiding the court to discover
the legislative purpose, which is the paramount end of con-
struction ; but it is not permissible to absorb the statute in
the rule, nor to overturn the legislative will, that the rule
may live. It is our duty to look at the statute from its four
corners ; to change the collocation of words and sentences if
necessary ; to consider the general purpose, if that be clear ;
to look to the history of legislation on the subject, and if,
within the words of the statute so considered, the intent can
be discovered, to give it effect." '
§ 2. Words — How Construed.
It is a settled rule that words are to be understood in a
statute in their ordinary sense, unless a different shade of
meaning is thrown upon them by the context.' Technical
terms are taken in their technical sense. When the import
of words, either ordinary or technical, is obvious, there is no
occasion for interpretation.*
1 Buggies V. Illinois, 108 U. S. 536 ; Sheley v. Detroit, 45 Mich. 431 ; State
United States v. Hartwell, 6 Wall. v. Clark, 54 Mo. 17, S6; State v. He-
395 ; United States v. Wiltberger, 5 man, 70 Mo. 441 ; Waller v. Harris,
Wheat. 76r Coffin v. Rich, 45 Me. 20 Wend. 563 ; Jewell v. Weed, 18
507 ; Water Com'rs v. Brewster, 43 Minn. 273 ; Douglass v. Freeholders,
N. J. L. 125; Rudderow v. State, 31 88 N. J. L. 313; York Ry. Co. v.
N. J. L. 513; Pillow v. BushneU, 5 The Queen, 1 E. & B. 858; Munic. B.
Barb. 156 ; Sneed v. Commonwealth, Society v. Kent, L. R. 9 App. Cas.
6 Dana, 839; Cearfoss v. State, 43 373.
Md. 406; Denton v. Reading, 33 La. ' Fitzgerald v. Rees, 67 Miss. 478,
Ann. 607 ; Ogden v. Strong, 2 Paine 477.
584 ; Learned v. Corley, 43 Miss. 687. * United States v. Hartwell, 6 Wall.
2 Hadden v. Collector, 5 Wall. 107 ; 395 ; United States v. Jones, 3 Wash.
Beithmiller v. People, 44 Mich. 380; 209; Parkinson v. State, 14 Md. 184;
26 OONSTEUOTION.
The words " owned " and " occupied " have clearly defined
meaning. If we hear a man say, " That house is owned by
me, and occupied as a residence by myself and my family,"
there would be no room for misunderstanding him. There
are many other words and phrases of frequent occurrence in
the various homestead statutes which are entirely free from
ambiguity and are therefore to be received as they stand, with-
out any construction strict or liberal, if the established rules
of statutory construction are applicable to the legislation
under consideration. " Owned " cannot mean to be owned in
future ; " occupied " cannot be understood as intention to oc-
cupy ; " wife " is not a term applicable to a divorced woman ;
and other words, frequently occurring in homestead statutes,
are equally free from ambiguity.
An example of an obscure word, as distinguished from the
plain ones " owned " and " occupied " used in illustrating above,
may be found in a homestead statute which provides that a
dwelling-house, to be exempt from forced sale for debt, must
be used or kept by the householder. The italicised word is
obscure; for it may va.e2i,n 2>reserved, so that this condition of
homestead privilege would be that the householder shall pre-
serve the dwelling-house — not that he shall live in it neces-
sarily ; or, it may mean that he shall " keep house " therein,
making the word in accord with the preceding one, " used,"
rather than an alternate condition.
Interpretation became necessary. It was held that there
was alternation ; that one of two conditions are necessary to
the right of homestead under the statute : either " an actual
personal use " of a dwelling-house, as a family home, or " an
actual keeping of it," for a family home with the present right
and purpose of so using it.^
A word of very familiar use, and ordinarily free from ob-
scurity, may need interpretation when employed in a sentence.
What is more generally understood than the word family?
Allen's Appeal, 99 Pa. St. 196 ;,Green 513 ; Engelking v. Von Wamel, 26
V. Weller, 33 Miss. 650 ;. Vincent, Ex Tex. 469.
parte, 26 Ala. 145 ; Wetumpka v. i Keyes v. Bump, 59 Vt 395. See
"Winter, 29 Ala. 651 ; Waller v. Har- Bugbee v. Bemis, 50 Vt. 216 ; Spauld-
ris, 20 Wend. 561 ; Newell v. People, ing v. Crane, 46 Vt, 293 ; Beebe v.
7 N. Y. 99 ; Clark v. Utica, 18 Barb. Grifflng, 14 N. Y. 244.
451 ; Supervisors v. People, 7 Hill,
ONIFOBM OPERATION. 27
Yet, as found in the different homestead statutes, it may mean
the householder and his wife and children, in one connection,
while, in another, it may be applied to a household group not
united by ties of kindred. It has had the first meaning as-
signed it for the most part, but there are decisions which rec-
ognize the other ; the former under one form of statute — the
latter under another, so that there is not necessarily a conflict
of construction. The head of the latter kind of family may
convey his homestead.' ^
The word homestead is frequently employed in exemption
statutes as in common parlance, and more frequently in its
technical sense as defined in the first section of this work.
Which is intended by the legislator, in any case, may readily
be ascertained by the context ; and what he intended the courts
are bound to accept, if there be no ambiguity.
§ 3. Uniform Operation.
A statute must operate uniformly and equally upon all who
are subjected to it, under the circumstances which it embraces.^
It may not be applicable to all persons, but only to all per-
sons who are in the situation or circumstances contemplated
by the act.'
The uniformity required is not dependent upon the number
of persons within the operation of the statute, when it is broad
enough to include all who may come within it.*
Applying the principles to homestead exemption, it will be
seen that while the privilege is extended to heads of families
only, in most of the statutes on the subject, it is not objec-
tionable on that account as a matter of legislation. The pro-
vision is uniform as to all within the class ; and no one is
inhibited from coming within it. Manifestly, the judiciary
cannot defeat by construction what the legislature is bound to
1 McLean V. Ellis, 79 Tex. 398. State v. Burnett, 6 Heisk. 186; Mc-
2 People V. Cooper, 83 HI. 585 ; Peo- Aunich v. Miss. etc. R. Co., 20 la.
pie V. Wright, 70 111. 398 ; State v. 838 ; Thomason v. Ashworth, 73 Cal.
Eeitz, 63 Ind. 159 ; Hanlon v. Com'rs, 73.
53 Ind. 133 ; Clem v. State, 33 Ind. < Phillips v. Mo. etc. R. Co., 86 Mo.
418. 540; State v. Wilcox, 45 Mo. 458;
3 Ragio V. State, 86 Tenn. 373 ; Mc- U. S. Express Co. v. EUyson, 38 la.
Kinney v. Hotel Co., 13 Heisk. 104; 370; Bannon v. State, 49 Ark. 167;
Taylor v. Chandler, 9 Heisk. 349 ; State v. Spaude, 37 Minn. 333.
28 CONSTEUCTION.
follow as a principle. Courts cannot accord hoinestead rights
to one man and deny them to another, both being in like cir-
cumstances ; both complying with the conditions.
"What are we to understand when it is said of courts, rela-
tive to homestead cases, that they "have endeavored, as best
they could, to decide some of the questions presented, not
upon general rules founded upon known and fixed principles
which should govern all cases, but simply to determine the par-
ticular case by such rules of construction and analogy as were
considered most applicable " ^ — what are we to understand
from this? Certainly the full import of the words could not
have been meant. The meagerness of legislation is mentioned
as a reason for this course. But the enlightened tribunal
which made the deliverance has shown, in other decisions,
that departure from the fixed rule of uniformity is not coun-
tenanced.^
The rule of uniformity is so well established that the cita-
tion of authorities to sustain it seems superfiuous ; but the
following extract is so apt that its insertion needs no apology.
It is with reference to a homestead law.
" The statute is indeed to be liberally construed to insure
the beneficial purpose of the provision ; but the courts are not
to constitute themselves the almoners of such beneficent pur-
pose, and distribute bounties in their discretion, but rather to
give such construction as shall establish a general rule ap-
plicable to all cases." '
§ 4. Liberal Interpretation.
When a word, a phrase, a sentence, a section or a whole
statute does not express the intention of the legislature upon
its face, free from ambiguity, the oflBce of the interpreter is
called into exercise. Only in such a case is a homestead law
construable. The question raised is : What did the law-giver
mean by the word phrase, sentence, section or statute? That
meaning must be declared by the court, whether it be favor-
1 Eoco V. Green, 50 Tex. 489. ingly in Currier v. Woodward, 62
2 Pool V. Wedemeyer, 56 Tex. 289 ; N. H. 6,6, in which it was said : " We
Baird v. Trice, 51 Tex. 559. can only interpret the statute ac-
5 Judge Redfield in Bugbee v. cording to its terms."
Bemis, 50 Vt 219, quoted approv-
LIBERAL INTEEPEETATION. 29
able or unfavorable to the judges' Opinion of what homestead
laws should be. The meaning is to be impartially ascertained
without necessarily resorting to the rule of liberal construc-
tion.
If the matter to be construed may have two different ren-
derings, either apparently expressive of the legislative intent,
it becomes necessary to elect between the two. If the statute
is remedial, and one rendering tends to meet the mischief and
advance the remedy while the other does not, the former con-
struction must prevail. The scales being balanced equally in
other respects, preponderance must be given to one side by
the touch of the court. Liberal construction is the rule. It
is to be applied to homestead laws in such a case. They are
remedial. They seek to meet the mischief of unhousing fam-
ilies by exempting homes from forced sales. The mischief to
be met is not poverty in general, for the remedy is given only
to holders of real estate who are heads of families, by most of
the homestead statutes; it is not debt-paying, for th^ law
favors the payment of debts, and the exemption provided is
accorded to solvent as well as insolvent owners. The policy
of the homestead laws is the conservation of homes for the
good of the state ; the mischief to be prevented by those laws
is the breaking up of families and homes to the general injury
of society and of the state ; the remedy provided is the ex-
emption of occupied family homes from the hammer of the
executioner. Whether the exemption be only for the period
of occupancy by the head of a family, or be extended during
the life of his widow and the minority of his children, it is a
remedy to be liberally accorded whenever the intent of the
legislature is doubtful and the necessity of favoring or disfa-
voring a remedial provision is thus thrust upon the court.
The " mischief " and " remedy," as above set forth, have
been not always clearly kept in view. It has been said that
the debtor's benefit is the only design of the legislator in en-
acting a homestead law, and that there should be liberal con-
struction to effect that design since the statute is remedial in
nature and effect.' This seems to mistake both the mischief
and the remedy. Many like deliverances might be collected,
1 Felds V. Duncan, 30 111. App. 469, ^74.
30 OONSTEUOTION.
but courts cannot always explain their declarations minutely,
and one must understand that there was no thought of hold-'
ing all debtors beneficiaries of the exemption privilege, or of
denying that family conservation is really the object of home-
stead legislation. Apart from that object, there should not
be liberal construction to screen a debtor from paying his just
debts.
Eespeoting homestead statutes, liberal construction is the
rule so far as concerns exemption. Both the letter and mean-
ing of those statutes justify and require such interpretation.
The protection of the family home from forced sale should be
accorded by the courts in the same generous spirit which act-
uated the legislator in ordaining it. Within the true bounds
of construction, they are bound to expound the law as written
and designed, and cause it to be enforced so as to effectuate
the public-spirited motive of the law-giver wh«n providing for
the conservation of homes for the general welfare of all the
people of the state.
Courts have very frequently laid down that liberal con-
struction is the rule. It is very well settled that it is the rule
with respect to the exemption feature of homestead statutes.
The decisions do not always qualify the application of it, but
that is generally what is meant when general terms are em-
ployed. The professional reader will readily see that such
unqualified statements have not been meant to go so far as to
say that all the provisions of a homestead statute — such as re-
straint upon alienation, for instance ^ — must be liberally con-
strued.
Courts have not been lax in according to the homestead
beneficiary all his rights and privileges. The cases holding
liberal construction are so numerous that all cannot be con-
veniently given ; and those here cited (though several of them
are not discriminating) are presented with reference to the
liberal construction of the exemption provision of homestead
statutes.'
1 Mitchelson v. Smith, 28 Neb. B86 ; Sands, 33 Wis. 387 ; Jarvis v. Moe, 88
Chopin V. Runte, 75 Wis. 361 ; Zim- Wis. 440 ; Weisbrod v. Daemicke, 36
mer v. Pauley, 51 Wis. 282 ; Dunn v. Wis. 73 ; Swearingen v. Bassett, 65
Buckley, 56 Wis. 193 ; Kuntz v. Kin- Tex. 273-4 ; Roco v. Green, 50 Tex.
nay, 33 Wis. 510; Connaughton v. 489 ; White v. Fulghum, 87 Tenn. 381 ;
LIBERAL INTBEPKETATION. 31
Doubtless liberal construction is the rule relative to exemp-
tion, when there is something oonst/ruable. Courts mean that,
though they do not always particularize. In many of the
cases just cited, and numerous others, it is broadly stated that
homestead statutes are to be liberally construed, but they
must be understood that it is so only when there is something
needing interpretation, and only for the purpose of ascertain-
ing the intention of the legislature that the mischief may be
met and the remedy advanced. What a court has said broadly
in one place is often limited and elucidated in another, so that
the true doctrine appears. For instance, it was said by a su-
preme court that the exemption of a homestead from levy and
sale for debt should be construed so as to suppress the mis-
chief and advance the remedy;' but afterwards said, in an-
other homestead case : "Where the terms of the statute are
not plain, but admit of more than one construction — one of
which leads to great inconvenience and injustice, and possibly,
to the defeat or obstruction of the legislative intent — then
the court may, with a view to avoid such results, adopt some
other, construction more in accordance with the legislative in-
tent." ^ Here the true doctrine is fully vindicated. Evidently
the court had not meant, in the first case, that there should be
liberal construction, or any construction at all, of a homestead
statute when its terms are plain ; nor had it meant that such
a statute, when requiring construction, should be subjected to
any other when it admits of but one.
Jackson v. Shelton, 89 Tenn. 83 ; v. Adams, 28 Vt 541 ; True v. Mor-
Dickinson v. Mayer, 11 Heisk. 515, rell, 28 Vt. 674; Mills v. Grant, 36
520-1 ; Ren v. Driskell, 11 Lea, 649 ; Vt. 271 ; Tipton v. Martin, 71 Cal.
Arnold V. Jones, 9 Lea, 548 ; Barber 325 ; Soutliwick v. Davis, 78 Cal. 504 ;
V. Eorabeck, 36 Mich. 899 ; Bouchard Moss v. Warner, 10 Cal. 396 ; Graham
V. Bourassa, 57 Mich. 8 ; Campbell v. v. Stewart, 68 Cal. 874 ; Schadt v.
Adair, 45 Miss. 178, 18^; Wassell v. Heppe, 45 Cal. 483 ; Estate of Busse,
Tunnah. 25 Ark. 103 ; Eoff v. John- 35 Cal. 310 ; Estate of Orr, 29 Cal.
son, 40 Ga. 555; Norton v. Bradham, 101; Loeb v. McMahon, 89 111. 487;
■ 21 S. C. 375, 381; Robinson v. Wiley, Deere v. Chapman, 35 111. 498.
15 N. Y. 494; Bradshaw v. Hurst, 57 i Norton v. Bradham, 21 S. C. 375,
la. 745 ; Johnson v. Gaylord, 41 la. 381.
363; Bevan v. Hayden, 13 la. 123; 2 Savings Bank v. Evans, 28 S. C.
Montague v. Richardson, 24 Ct 338 ; 531, citing The King v. Beeston, 3
Peverly v. Sayles, 10 N. H. 358 ; Bux- Term R. 594-5.
ton V. Dearborn, 46 N. H. 44 ; Howe
32
CONSTEPCTION.
Where choice must be made between two renderings of
equal plausibility, resort may be had to the general tenor of
the statute. The established rule is applio£ible: "The spirit
of a law may be referred to in order to interpret .words ad-
mitting of two meanings ; but not to extend a law to a case
not within its fair meaning." i And the rule may be fairly
applied when phrases, sentences or paragraphs are susceptible
of two meanings. The cardinal purpose of the whole act has
then a controlling influence, and all the parts must be made
to harmonize if possible.^
" It is a fundamental rule of statutory construction that, if
possible, effect shall be given to all the language of an act
rather than that any part should perish by ascribing a greater
and conflicting force to another part. The homestead law
should be liberally construed to effect the objects in view in
its adoption ; but it cannot properly be enlarged by construc-
tion to create greater exempt estates than the legislature de-
scribed in the language used." ' ,
Courts cannot supply what is wanting in a plain law. It
has been aptly said : " The right to a homestead exemption
is purely statutory, and if not found in the letter and spirit
of the law, it cannot be raised by implication, through the
rule of liberal construction, which is applied to facilitate the
object of the statute where the subjects of its bounty are
made manifest." * And it may be added that the rule is ap-
plied to facilitate that object only when there is occasion to
resort to it in the interpretation of something needing to be
interpreted.
"We are not at liberty to disregard the statute; its pro-
visions are binding upon us ; and, in the absence of a compli-
1 Beebe v. Griffing, 14 N. Y. 344 School Com're, 31 Ala, 227 ; Dunlap,
2 Commonwealth v. Liquors, 108 Ex parte, 71 Ala, 73 ; Clearf oss v.
Mass. 19; Gates v. Salmon, 35 Gal. State, 43 Md. 406; Green v. Cheek, 5
576 ; Potter v. Safford, 60 Mich. 46 ; Ind. 105 ; Aldridge v. Mardoflf, 32
Reithmiller v. People, 44 Mich. 380; Tex. 204; Brooks v. Hicks, 20 Tex.
Whipple y. Judge, 36 Mich. 343 ; 666 ; State v. Commissioners, 34 Wis.
Kelly V. McGuire, 15 Ark. 555 ; Wil- 163 ; Howard v. Mansfield, 30 Wis. 75.
son V. Biscoe, 11 Ark. 44 ; Martin v. ^ Quinn v. Kinyon, 100 Mo. 551,
O'Brien, 34 Miss. 31 ; State v. Turn- 554.
pike Co., 16 Ohio St. 308 ; City Bank * Little's Guardian v. Woodward,
V. Huie, 1 Rob. (La.) 336 ; Brooks v. 14 Bush, 587.
POLICY HOW FAR TO BE CONSIDEEED. 33
ance with them, we can only declare the result flowing there-
from." '
Homestead is a strictly legal and statutory right, and equi-
table principles not recognized by the statute cannot be in-
voked to extend it, by a claimant of the right.^ The legis-
lative intent is all that the courts have to ascertain, and they
must find it in the statute itself. They are not at liberty to
limit or modify it by inferences froni statutes on other sub-
jects, when the intent is not clearly declared.'
9
§ 5. Policy — How Far to be Considered.
The policy of the state is so frequently adverted to in the
construction of homestead statutes that it may be necessary
to notice it briefly. The Supreme Court of the United States
has said that the policy of the government with reference to any
particular legislation is generally very uncertain;. that ''it is
a ground much too unstable upon which to rest the judgment
of the court in the interpretation of statutes." * Courts have
little to do with the policy of the law when construing an act.
Having ascertained the intention of the enactors according to
the establishe^d rules of interpretation, they must give it effect
whether the policy of the law be good or bad.'
If arguments, drawn from the policy of the law, or of the
state, or of the legislature (all meaning practically the same
thing), are to influence construction when the meaning of a
provision cannot be ascertained from the provision itself, or
from the context, or from the debates, or from any of the
sources which must first be resorted to, they should be re-
ceived with great caution, and with care on the part of the
expounder lest unwittingly his own predisposition influence
his conclusion.
The policy of the law is often given as a reason for con-
struction in decisions upon homestead statutes. It is a very
• Schuyler v. Broughton, 76 Cai ^ Pool v. Wedemeyer, 56 Tex. 287 ;
524. Bosley v. Mattihgly, 14 B. Mon. .73;
3 Casebolt v. Donaldson, 67 Mo. 308. Coffin v. Rich, 45 Me. 507 ; Linden-
s Barber v. Rorabeok, 36 Mich. 899 ; muller v. People, 31 How. (N. Y.) 156 (
Bouchard v. Bourassa, 57 Mich. 8. People v. Hoym, 20 How. (N. Y.) 76 j
* Hadden v. The Collector, 5 Wall. Baxter v. Tripp, 13 R L 310 ; Roberts
111. To the same effect : Municipal v. Cannon, 4 Dev. & Bat L. 367.
Society v. Kent, 4 L. R 9 App. Cas. 373.
3
34
CONSTRUCTION.
vague and uncertain reason for judgment. There is danger
that the judge unconsciously will substitute his own opinion
of the policy for that of the legislator ; so it has been held
that courts, when interpreting a statute, have no right to
judge of its policy.' Certainly they are not at liberty to pass
upon its merits, its expediency or its utility.^ They have the
right, coupled often with the duty, of determining the char-
acter of the law as to its tendency to promote virtue, liberty
and humanity, since, ia its construction, they are required to
be liberal for the promotion of such ends. But they must as-
certain the character from the act itself as therein expressed
or clearly implied — not from their own preconceived opin-
ion of the policy of the act. " All sorts of opinions, each va-
riant from the other, may be formed by different persons," on
the policy of the government, as was said in the federal case
above cited.*
Policy, as consistent or harmonious with the intention of
the law-giver, declared by him or inferred from the law under
consideration, or from that and acts in pari ma^ma altogether
establishing a continuous purpose, must be recognized by
courts ; and they should not readily deem it abandoned by the
legislator, in any particular case, because the language of the
statute is ambiguous, or too general to express the policy in
a particular instance; If the sense is consistent with settled
policy, general expressions are not to be taken as authorizing
a departure from that policy.'
If the policy of the law is not to be relied upon, as the
highest court has said, what shall we say of the policy of the
court ? What of the enlargement of state policy avowedly in
conformity to the latter? Take the following excerpt:
" It has come to be the settled policy of judicial rulings in
' this state, to construe our humane system of exemption laws
with an enlarged lijberality, that the remedy and benefaction
> Roberts v. Cannon, 4 Dev. & Bat. ' Mine* v. Leman, 20 Beav. 269 ;
I* 267. Greenhow v. James, 80 Va. 636 ; Gre-
2Sheley v. Detroit, 45 Mich. 431; nada Co. v. Brogden, 113 U. S. 261;
Eeithmiller v. People, 44 Mich. 280; Fort v. Burch, 6 Barb. 60; Baxter v.
People V. Lawrence, 86 Barb. 177 ; Tripp, 12 R, I. 810 ; Rowley v. Stray,
LindenmuUer v. People, 21 How. 33 Mich. 70; Attorney-General v.
(N. Y.) 156; People v. Hoym,30How. Smith, 31 Mich. 359; Blackwood v.
(N, Y.) 76. Van Vliet, SO Mich. Ua
POLICY — HOW FAE TO BE CONSIDERED. 35
intended for the protection of the poor may be advanced
rather than embarrassed by construction. And the spirit
rather than the letter of these beneficent laws is to be looked
to as the just criterion of interpretation." '
May we look beyond the letter for the meaning when there
is no obscurity or ambiguity and therefore " no room for con-
struction," on the plea that it is the policy of the courts to do
so? The sense before grammatical nonsense — always; but
no seeking of intent when the intent is not hidden. No jvdi-
cial policy of " enlarged liberality " is known in the established
rules of statutory construction.
In the case last cited, such liberality resulted in according
to a claimant a homestead which neither he nor his family
had ever occupied as a home; and it also resulted in the pro-
mulgation of this extra-statutory rule : that if a man " is com-
pelled by his poverty to occupy rented premises, the usufruct
of the soil by which his family is maintained must be h^ld to
fix the homestead intended to be protected."
This construction of the law, on ostensibly humanitarian
grounds, is unwarrantable from the spirit of the homestead
legislation, which is not for the poor alone but protects the
mansion of the millionaire where there is no monetary limit,
and cannot protect the abject poor who own no homa The
man who owns soil from which he receives usufruct entitling
him to homestead exemption (according to this deliverance)
is likely to be less an object of charity than those around him
w^ho own no soil, and who may chance to be his creditors.
If the rule announced is to prevail in any case, it ought to
be of universal application ; yet it did not control a case, on
similar facts, which soon followed it; usufruct did not fix
homestead in the latter.'* But in a later case, the decision de-
claring this rule was cited without qualification.' The doc-
trine, however, does not seem to have any root in the govern-
ing statute.*
1 Dickinson v. Mayer, 11 Heisk. 615, ' White v. Fulghum, 87 Tenn. 381.
6S0, Sneed, J. Approved, White v. See Arnold v. Jones, 9 Lea, 548.
Fulghum, 87 Tenn. 281. * Acts of Tenn. (1870-1), p. 98 ; Code
■iWade V. Wade, 9 Bax. 613, ap- Tenn., § 3114a.
~ proved in Collins v. Bozett, 87 Tenn.
834.
36 coNSTEUcrrioiir.
In the case last cited, it was said : " The homestead exemp-
tion is a favorite in this country, and all laws concerning it
are by the courts to be liberally construed in favor of the
claimant." But it is not true that favoritism among statutes
should influence their construction, however liberally any re-
medial one may be entitled to be construed when construable.
The policy of courts, to make any remedy a favorite, seems
unwarrantable.
With respect to homestead policy and interpretation, in a
comparatively recent decision, it was said : " Eight or wrong,
wise or unwise, from the beginning, neither the people in con-
vention, nor the legislature, nor the courts have taken any
backward step. Every change has extended the protection,
and these have been sufficiently frequent to make the progress
of expansion a steady march. When the courts have hesitated
or halted, they have been brought forward into line by the
law-making power.
"In the absence of definitive legislation to guide us, and
in obedience to the progressive tendency adverted to, we hold
against the preponderance of authority, but with the prepon-
derance of reason, that a partner in a solvent firm may desti-
nate his interest in partnership realty as a part of his home-
stead, and thus secure it from forced sale." '
The probability that legislation would advance so as to cover
the question decided was no reason for its anticipation by the
court.
§ 6. Charitable Grounds.
Doubtless charity, liberty, justice and morality demand lib-
eral construction in their favor when the statute is dubious
and therefore construable; but to hold homestead laws to
have been made for the impecunious debtor only, and to make
invidious distinctions between difl'erent classes of real estate
owners (all must be such owners who claim homestead), is to
go beyond the statutes of most of the states.
The legislative policy of conserving homes, though embrac-
ing the dwellings of wealthy householders as well as those of
the poor, is incidentally humane and charitable. But, even if
the prim^ design of the legislator were charity to the impe-
I Swearingen v. Bassett, 65 Tex. 273-4
CHAEITABEE GROUNDS. 37
cunious, his enactments must be just as well as charitable. It
goes without the saying that all laws must be just to com-
mend themselves to a court of justice.
A homestead law, providing that the right of creditors to
make their money out of property upon which they have
given, credit to the owner, vvithout notice to them prior to the
giving of the credit, would be unjust, however charitable to
the debtor and his family. In the language of Lord Holt :
" Let a statute be ever so charitable, if it gives away the prop-
erty of the subject it ought not to be countenanced." ' This
principle has been pointedly applied to exemptions from forced
sale under execution.^
It has been said : " The purpose and policy of the law is to
provide a home and shelter for the surviving husband or wife
and for the minor children." ' But the state confers no home.
Instead of " provide," it would be better to insert " protect."
The policy is to conserve the home already owned and pos-
sessed : not to bestow one upon the houseless. This was evi-
'dently the meaning of the court which had previously said :
" The estate of homestead is given to every householder hav-
ing a family, in the farm or lot of land, and buildings thereon,
owned or rightly possessed, by lease or otherwise, and occupied
by him or her as a residence." *
If the object of homestead laws is the protection of fam-
ilies from want and dependence, as has been said,'' the legis-
lator ought to have compassion on the abject poor families
of his state, instead of confining his charity to those who own
houses. To favor the freeholder, and withhold from the land-
less, the homeless and the penniless, is queer charity.
No doubt homestead statutes are remedial, and therefore
the intention of the legislature, evidenced by them, is to be
liberally construed Y'^hen construction becomes necessary ; and
the statutes are to be fully enforced — no vested rights being
molested. But the idea of their being thus construed as law«
1 Calladay v. Pilkington, 12 Mod. ■* lb., p. 518.
513. STumlinson v. Swinney, 83 Ark.
2 Danforth v. Woodward, 10 Pick. 400 ; McKenzie v. Murphy, 24 Ark.
423; Buckingham v. Billings, 13 157; Greenwood v. Maddox, 37 Ark.
Mass. 83. . 655.
3 Capek V. Ki-opik, 139 111. 509, 519.
38 OONSTEUOTIOJI.
^whose principal aim is charity has been too prevalent in de-
cisions.
What right has any court to assume, in the absence of evi-
dence on the subject in the case at bar, that the creditor is
rich and the debtor poor? Especially, in a homestead case,
when there is this known of the debtor : that he is a freeholder
or leaseholder — has a home — • while the creditor may be
homeless. If the homestead holder " is in debt it is because
some one has trusted him, and he has received an equal value
in money or other property to that which can be taken. The
creditor is not to be treated as an enemy who is robbing him.
He too may want a home, and often would have had one
could he have received his due. He may have a wife and
children likewise in need. He but demands a fair show before
the law to collect his debt and enable himself to acquire home
comforts, but no sentiment is wasted on him. . . . But
they are nevertheless as dear to him, and should be as sacred
to the courts." '
The prevalent system does not regard homestead as charity.
But there are exceptional ones which do. The charity idea pre-
vails where the homestead right is accorded only in case there
are minors in the family who have no property in their own
right sufficient for their support,^ and wherever it is accorded
only in case of poverty.
§ 7. Common Right.
A statute derogatory to common right is subjected to strict
construction. This rule is as well supported by decisions rel-
ative to different classes of cases as any other, though but a
few need be cited.'
Homestead exemption is not in derogation of the rights
of creditors, in the common-law states ; but in the one state
1 Judge Snodgrass, for the court, Pinkham v. Dorothy, 55 Me. 135
the J. I. Case Companj- v. Joyce, 89 Mitchell y. Eockland, 45 Ma 496
Tenn. 337, 5^7. Sprague v. Birdsall, 3 Cow. 4l9
2 Woods V. Perkins (La.), 9 So. 48. Webb v. Baird, 6 Ind. 18; Rothger-
8 Marsh v. Nelsou, 101 Pa. St 51 ; ber v. Dupuy, 64 111. 453 ; Walker v.
Mayor v. Hartridge, 8 Ga. 33 ; Flint, Chicago, 56 111. 377 ; Sutherland on
etc. Steamboat Co. v. Foster, 5 Ga. Statutory Construction, § 366, citing
194 ; Monson v. Chester, 33 Pick. 385 ; above cases.
Danvers v. Boston, 10 Pick. 513;
COMMON EIGHT. 39
governed by the civil law, it is so held, and the rule of strict
construction is applied. The debtor's property is the common
pledge to all creditors ; it is that to which credit is given,
though no conventional lien be created ; and hence any stat-
utory inhibition of its forced sale to make the debtor pay his
debts is deemed inimical to the creditor's right and interest,
and therefore to be strictly construed. For this reason, and
under the operation of this rule, homestead laws are, in that
state, strictly construed as being in derogation of common
rights, ^nd beneficiaries are required to bring themselves within
both their spirit and letter.^
It would be derogatory to common right, if the creditor
should be cut off from making his money out of the debtor's
property to which he had looked for security when giving
credit. In other words, if the world were not notified that the
homestead is exempt, any creditor might look to it for his se-
curity. But the world is notified by the statute, by the re-
cording when required, by occupancy, or in some way, in
every state (not excepting the one just singled out as holding
the strict construction theory), that creditors need not look
to the homestead for pay. After such notice, there is noth-
ing derogatory to common right in the law's withholding the
exempt property from the creditor.
While the common-law slates generally hold that the ex-
emption of homesteads is not derogatory to the common right,
yet there are decisions in those states which treat it as thwart-
ing a means long accorded to creditors in this country, as well
as in others, and therefore not to be extended by construbtion.
Without denying the doctrine of liberal interpretation for the
purpose of conserving family homes, they keep in view the
other side of the question when the privileges of debtors and
the rights of creditors come in conflict, The following ex-
cerpts may present this view :
" It is quite true that the homestead act is to have a liberal
J* -
1 Kinder v. Lyons, 38'La. Ann. 713 ; 34 La. Ann. 1013 ; Poole v. Cook, 84
Galligar v. Payne, 34 La. Ann. 1057; La. Ann. 331; Gilmer v. O'Neal, 38
Bossier v. Sheriff, 87 La. Ann. 263 ; La. Ann. 979 ; Thomas v; Guilbeau, 35
Tilton V. Vignes, 33 La, Ann. 240 ; La. Ann. 927 ; Bridewell v. Halliday,
Coyle V. Succession of Creevy, 34 La. 37 La. Ann. 410 ; State v. The Judges,
Ann. 539 ; Succession of Furniss, etc., 37 La. Ann. 109.
40 CONSTEUOTION.
construction to effectuate its purpose to provide homes for
the families of debtors ; but, at the same time, it is to be remem-
bered that it is in derogation of the general policy of the law
which subjects the property of debtors to the just claims of
their creditors ; and it is to have operation and effect so far,
and so far only, as the legislature has determined." ^
'' While we are disposed to uphold a very liberal construc-
tion of the homestead exemption, which, with proper limit-
ations, we think is consistent with the wisest public policy,
yet we cannot assent to such a construction as would infringe
upon the just rights of others, which also demand protection
from the courts of the country. " The sound principle of
morality and equity, that we should be just before we are gen-
erous, should apply to the departments of government which
represent the sovereignty of the people, as well as to the in-
dividual members who compose this sovereignty." ^
It is said that the exemption of a homestead from levy and
sale for debt should be construed so as to " suppress the mis-
chief and advance the remedy : " it is not in derogation of the
common law.'
The fact that real estate was not liable to execution, for the
ordinary debts of its owners, at common law, has nothing to
do with the question whether the creditor now has a right to
look to such property for his money. That right is universally
recognized, and therefore notice to him is necessary if the leg-
islator would take the right away either wholly or in part.
Hence the constitutional necessity pf limiting the operation
of exemption to debts subsequent to the passage of a law ex-
empting homesteads from execution for debt.
Some states fix a future day after which exemption shall be
opferativey others provide that debts, contracted after the'
adoption of the constitution or statute authorizing the home-
stead, shall not be enforceable by its execution, with certain
exceptions. There is nothing novel; for all statutes are to be
construed to operate prospectively, unless a retrospective effect
be clearly intended.*
The qualification is inapplicable to homestead statutes, so
1 Lamb v. Mason, 50 Vt. 350. 381. Contra: Garaty v. Du Bose, 5
8 Baird v. Trice, 51 Tex. 559. S. 0. 500.
'Norton V. Bradham, 21 S. C. 875, < Harvey v. Tyler, 2 Wall. 847;
COMMON EIGHT.
41
far as the accrued rights of creditors are concerned. It may
be said without any reference to retrospective intent on the
part of the legislator, that any law which exempts property
from forced sale for debt must be prospective.'
Though it is now well settled that the exemption granted
in homestead statutes cannot apply to debt antecedent to their
passage, and that such application would so seriously affect the
creditor's remedy as to impair his contract and therefore be
violative of the federal constitution,'^ yet there have been nu-
merous decisions holding or favoring such retroaction.'
" Statutes, by the authority of which a citizen may be de-
prived of his estate, must have the strictest construction ; and
the power conferred must be executed precisely as it is given,
and any departure from it will vitiate the proceedings ; and
this is so whether it be in the exercise of a public or private
authority, whether it be ministerial or judicial."*
Palmer v. Conly, 4 Denio, 374 ; Jack-
son V. Van Zandt, 12 Johns. 176
Hackley v. Sprague, 10 Wend. 116
People V. Supervisors, 10 Wend. 365
Snyder v. Snyder, 3 Barb. 621
Blanchard v. Sprague, 3 Sum. 535
Wheedon v. Gorham, 38 Ct 413 ; Per-
rin V. Sargeant, 38 Vt. 84 ; Siinonds
V. Estate of Powers, 28 Vt 554 ; Sea-
mans V. Carter, 15 Wis. 548 ; Paddon
V. Bartlett, 3 Adolph. & E. 884 ; Hitch-
cock V. Way, 6 Adolph. & E. 943 ;
College V. Harrison, 9 B. & C. 524;
Chambliss v. Jordan, 50 Ga. 81 ; Lar-
enoe v. Evans, 50 Ga. 316 ; Smith v.
Whittle, 50 Ga. 626.
1 Ely V. Eastwood, 36 111. 107 ; Smith
V. Marc, 36 IlL 150 ; Dopp v. Albee,
17 Wis. 590; Estate of Phelan, 16
Wis. 76; Succession of Taylor, 10
La. Ann. 509; Milne v. Schmidt, 12
La. Ann. 553 ; Succession of Foulkes,
13 La. Ann. 537 ; Roupe v. Carradine,
30 La. Ann. 244 : Shelor v. Mason, 3
S. C. 333 ; McKeithan v. Terry, 64
N. C. 23; The Homestead Cases, 32
Gratt. 366; Tillotson v. Millard, 7
Minn. 513.
2 Louisiana v. New Orleans, 102
U. S. 203; Edwards v. Kearsey, 96
U. S. 595 ; Gunn v. Barry, 15 Wall.
610 ; Von Hoffman v. Quincy, 4 Wall.
552.
3 Morse v. Goold, 11 N. Y. 381;
Cook V. McChristian, 4 Cal. 33 ; Cusic
V. Douglas, 3 Kas, 133 ; Root v. Mc-
Grew, 3 Kas. 315 ; Sneider v. Heidel-
berger, 45 Ala. 186 ; Gunn v. Barry,
44 Ga. 353 ; Pulliam v. Sewell, 40 Ga
73 ; Chambliss v. Phelps, 39 Ga. 386 ;
Hardeman v. Downer, 39 Ga. 435;
Be Kennedy, 2 S. C. 316; Hill v.
Kessler, 63 N. C. 437; Grimes v.
Bryne, 3 Minn. 89 ; Rockwell v. Hub-
bell, 3 Doug. (Mich.) 198 ; Stevenson
V.Osborne, 41 Miss. 119; Baylor v.
Bank, 38 Tex. 448 ; Bigelow v. Pritch-
ard, 21 Pick. 174; Hill v. Hill, 43 Pa.
St. 198; Baldy's Appeal, 40 Pa. St.
338 ; Neff's Appeal, 31 Pa. St. 243.
* Sharp v. Spier, 4 Hill, 76 ; Sher-
wood V. Reade, 7 Hill, 431 ; Striker
V. Kelly, 2 Denio, 323; Power v.
Tuttle, 3 N. Y. 396 ; Downing v. Ruger,
31 Wend. 178.
42 CONSTRUCTION.
§ 8. Ruling to Prevent Fraud.
Courts cannot be too careful to construe < tb.e homestead
statutes so as to discountenance fraud. The statutes them-
selves may almost be said to open the door to fraud, in some
respects. Certainly a great deal of moral fraud finds its way
into transactions which the statutes allow. Creditors not
being concerned in transactions in which exempt property
changes hands are not defrauded by them in a legal and
technical sense. Courts, however, should always disfavor mor-
ally fraudulent transactions, though they can give creditors
no relief where the statute gives no power to do so. It was
well said : " We believe that the provisions of the homestead
laws should be carried out in the liberal and beneficent spirit
in which they were enacted, but care should be taken at the
same time to prevent them from becoming the instruments of
fraud." '
The rule that statutes against fraud should be liberally in-
terpreted is a very ancient one, and is universally honored.
Under liberal interpretation, it was long ago held that cases
of fraud may be within the spirit of the statute when not
within the letter; that "all such statutes are in the advance-
ment of justice, and beneficial to the public weal, and there-
fore shall be extended by equity." ^
But, as Mr. Bigelow remarks, suet extension by the courts
is " so unusual and dangerous a proceeding as not to be ap-
plied to new cases without the strongest reason." ' The liberal
construction of doubtful provisions written in the statute,
however, is not a proceeding either dangerous or ilnusual,
when made in the interest of justice and against its opposite.
And statute^ not expresslj'' aimed against fraud are to be
liberally construed to save them from giving countenance to
it, when ambiguous expressions are liable to be understood
either as favoring or as disfavoring injustice. The scales hang-
ing equally so far as linguistic adjustment is possible, courts
are to make the right outweigh the wrong when bound to de-
cide one way or the other. It is presumed that the legislator
meant to be just. There is never presumption that he meant
1 Druoker v. Eosenstein, 19 Fla. 2 Wimbish v. Tailbois, Plowd. 38,
191, 199. S9.
3 2 Big. on Fraud, p. 60.
EESTEAINT UPON ALIENATION. . 43
to be unjust : so, before courts can hold that, they must find
unmistakable warrant in the statute.
Homestead laws form no exception to this rule. That they
should be construed so as to carry out the intention of the
law-giver is true: so of all statutes. That they, specially,
should be so construed because of their beneficence, does not
render them exceptional to the rule against fraud. Who would
say, that because statutes favoring liberty against slavery,
morality against vice, religion against sin, and the like, are to be
interpreted liberally to effect their intent, therefore fraud may
be protected under the cover of their wings V How paradox-
ical to say that a law to promote justice may have one of its
provisions of ambiguous import explained so as to defeat the
object of the law !
§ 9. Restraint Upon Alienation.
The general rule is that any owner may sell. A law forbid-
ding the sale of property, real or personal, would be against
commerce and against right. The restraint put upon the free
alienation of homesteads is, however, with the assent of the
property owner. When he complies with the conditions and
claims exemption, he has assented to. the curtailment of his
freedom to vend at pleasure, and has agreed to comply with
the law. The proffer on the part of the state, and the accept-
ance on the part of the property-holder, do not constitute a
contract. The state is free to alter the law at pleasure, and
the property-holder may abandon exemption at will, if he in-
jure no one by doing so. There is no contract, yet there are
mutual obligations. And so long as the householder claims
the exemption pirivilege accorded him by a statute which in-
hibits his sole alienation of the thing exempted, he is in the
position of one assenting to the restraint.
The general rule, without special reference to homestead
statutes, is that laws in restraint of the alienation of property
must be strictly construed. ^ And, with special reference to
those statutes, the liberal construction generally accorded them
is held to be so tempered that constitutional and statutory re-
strictions- upon alienation should be construed no more liber-
1 Richardson v. Emswiler, 14 La. Ann. 658 ; Gunter v. Leckey, 30 Ala. 591 ;
Sewall V. Jones, 9 Pick. 412.
44 CONSTRUCTION.
ally than may be necessary to effect the object of the legisla-
tor ; that the Jus disponendi is a vested right, protected by the
constitution of the United States.'
And it has been so frequently held that there can be no
conveyartoe of the homestead, so as to bar or defeat the ex-
emption right, without strict compliance with the terms of
the governing statute, that the rule may. be considered as es-
tablished.^
In the conveyance of homesteads, strict construction is the
rule in the interpretation of statutes with respect to the exe-
cution of deeds and mortgages, and their acknowledgment.'
The ofHcial certificate of the acknowledgment must be in full
compliance with the statutory requirement.*
But the rule of strict construction is not so rigid as to pre-
vent the correction of a manifest omission in the mortgage of
a homestead given by both husband and wife. A word or
figure supplied with their consent after signing, duly made to
appear to the court, will not render the instrument nugatory .°
" The homestead right can be barred only by complying
strictly with the laws prescribing the mode of alienation." °
§ 10. Law of Wife's Property.
Statutes which enlarge the wife's power over her separate
property are generally construed strictly, because they are
1 Hughes V. Hodges, 102 N. C. 236, v. Mills, 37 111. 73; Fisher v. Meister,
citing Bruce v. StricMand, 81 N. C. 24 Mich. 447 ; Cross v. Everts, 28
267 ; U. S. Const, art. 1, § 31 ; and Tex. 532 ; Barnett v. Mendenhall, 43
holding that a solvent owner may la. 296 ; Lanahan v. Sears, 102 U. S.
deed his land without his wife's 318.
joinder, except (1) when it has been 3 Wheeler v. Gage, 28 111. App. 427.
allotted to him as a homestead; * 76.; Warner v. Crosby, 89111. 320;
(2) when there are judgment liens on Best v. Gholson, 89 III. 465 ; Smith v.
it which may render allotment neces- Miller, 31 111. 157 : Boyd v. Cudder-
sary ; (3) when an undefined home- back, 31 111. 113; Vanzant v. Van-
stead has been reserved in a mortgage zantj 23 m. 485.
given ; (4) when the conveyance is * Casler v, Byers, 29 111. App. 128,
fraudulent and no homestead has and 129 lU. 657.
been allotted in other lands. A re- ' Greenough v. Turner, 77 Mass.
valuation is not allowable, after al- 332 ; Connor v. McMurry, 84 Mass.
lotment. Gulley v. Cole, 102 N. C. 333. 202 ; Moore v. Titman, 33 111. 360 ;
2 Connor v. McMurray, 2 Allen, Kitchell v. Burgwin, 21 111. 45 ; Hoge
203; Dickinson v. McLane, 57 N. H. v. HoUister, 2 Tenn, Ch. 606; Dickin-
31 ; Hoge v. HoUister, 2 Tenn. Ch. son v. McLane, 57 N. H. 31 ; Howell
606; Black v. Lusk, 69 III 70; Ives v. McCrie, 36 Kas. 636.
LAW OF wife's PEOPBETY. ' 45
innovations upon the common law, and are considered derog-
atory to her husband's rights. Courts construe them as not
increasing her right to hold and administer property, or to
make contracts, further than the natural import of the words
declare and authorize; that is, that the law increasing her
power over her separate property is not to be liberally con-
strued.i
When new rights are conferred upon a married woman rel-
ative to the management or disposition of her property, or
to her power to contract, the methods prescribed for her exer-
cise of such rights must be observed substantially in letter and
spirit.^
Since laws restraining the jus dispanendi must be strictly
construed (as shown in another section of this chapter), the
provisions of constitutions and statutes which forbid the hus-
band from alienating the homestead without the consent of his
wife ^ are inapplicable to the alienation of it by her when she
is the sole owner. She may convey her own separate property
without the consent of her husband, though it constitute the
family homestead, notwithstanding the provisions mentioned.
For the inhibition cannot be extended by implication, so as to
include her under the applicable rule of construction.*
It has been unwarrantably inferred, under the constitution
above cited, from her right to alienate her separate property
used as a family homestead, that she may abandon it, desert
her husband, give him notice to quit, and then remove him by
1 Sutherland on Stat. Constr., § 400, 2 Mattox v. Hightshue, 39 Ind. 95
citing Compton v. Pierson, 28 N. J. Shutnaker v. Johnson, 35 Ind. 33
Eq. 229 ; Cook v. Meyer, 78 Ala. 580, Bagby v. Emberson, 79 Mo. 139
583 ; Gibson v. Marquis, 29 Ala. 668 ; Hoskinson v. Adkins, 77 Mo. 587
Canty v. Sanderford, 37 Ala. 91 (and Bartlett v. O'Donoghue, 72 Mo. 568
other Alabama cases); Cunningham McCallum v. Petigrew, 10 Heisk. 394
V. Hanney, 13 111. App. 437 ; Triplett Leggate v. Clark, 111 Mass. 308 ; Beck-
V. Graham, 58 Iowa, 185; Quick v. man v. Stanley, 8 Nev. 257; Arm-
Miller, 108 Pa. St. 67 ; Dorris v. Er- strong v. Eoss, 20 N. J. Eq. 109 ;
win, 101 Pa. St. 389 ; Pettit v. Fretz, Montoursville Overseers v. Fairfield,
33 Pa. St. 118; Morgan v. Bolles, 36 113 Pa. St. 99; Miller v. Ruble, 107
Ct. 175; Weber v. Weber, 47 Mich. Pa. St. 895; Innis v. Templeton, 95
569; Longey v. Leach, 57 Vt. 377; Pa. St 363.
Reynolds v. Robinson, 64 N. Y. 589. 3 Const, of Mich., art 16, §§ 1-4;
Contra: Billings v. Baker, 28 Barb. Stat, of Wis., §§ 3325-6.
343 ; Goss v. Cahill, 43 Barb. 310 ; < Price v. Osborn, 84 Wis. 34.
De Vries v. Conklin, 33 Mich. 355.
46 CONSTEUCTION.
action of ejectment.^ This construction' Is at variance with the
law of domicile, of the wifely duties and of the letter and spirit
of the law of marriage, and is not likely to be followed in
states other than that in which the decision was rendered.
Evidently, upon her own return to the homestead, she would
have no right to enjoin him from returning. She could not
treat him as a common trespasser. By deserting her husband
she acquired no greater right over her property than she
would have had if she had remained at their common domicile.
She could have conveyed it without deserting him, and the
grantee could then have ejected both, so that they would go
out together, and the mutual conjugal duties would not have
been violated. Considered as a construction of the constitu-
tional provision restraining the husband only from alienating
the domicile without his wife's consent, the inference drawn,
from her right to sell when she is sole owner, that she may
therefore solely abandon it and then force him to do so, seems
extreme.
Under prior decisions, the'husband had a possessory interest
jointly with her, and her desertion of him and the famUy and
the home did not deprive him of it.^
The statute of another state which gives a married woman
absolute control of her separate property is construed not to
enable her to forbid her husband from entering upon the
premises.'
A wife cannot oust her husband from the homestead while
she remains his wife, though living apart frbm him, unless his
conduct would justify separation or divorce, it has been held;*
and the exception seems groundless.
The restraint, in most of the states, applies to both husband
and wife, whichever may own the homestead. Where dedicar
tion and recordation, of the property set apart as exempt, are
required, the wife alone cannot alienate or mortgage her own
separate property thus voluntarily dedicated, as a general rule;
1 Buckingham v. Buckingham, 81 People, 26 Mich, 110 ; Eodeon v. Van
Mich. 89. Fossen, 26 Mich. 69.
2 See Eowe v. Kellogg, 54 Mich. a Cole v. Van Riper, 44 111. 63-4.
209 ; Griffin v. Nichols, 51 Mich. 679 ; < Manning v. Manning, 79 N. C.
Pardo V. Bittorf, 48 Mich. 275 ; Henry 293.
V. Gregory, 29 Mich. 68; Snyder v.
STATUTES NOT EXTENDED BT CONSTEUCTION. 47
never, when the constitution or statute forbids conveyance
unless made by both spouses. The construction is strict, and
is not relaxed in favor of the wife.' Even if she makes her
separate deed accordant with a separate one -given by her hus-
band, it has been held that it would be inoperative.^
She cannot renounce homestead in a separate act by her,
though she might relinquish dower.' *
And even where formal dedication is not required, the right
to sell her own homestead has been qualified. It was held that
when abandoned by her husband she may sell it.* This was
held under a constitution which forbids the alienation of the
homestead without the joint consent of husband and wife
when the owner is married.*
§ 11. Statutes Not Extended by Construction.
When a statute does not reveal the intention of its framers,
and the proper resorts to ascertain the meaning (such as refer-
ence to the debates and to laws in ^pari materia) fail to cast
any light, it cannot be reyvritten by the courts under their
power of construction. Sense must be made of it, when that
can be done legitimately. The interpreter must bring the
sense out of the statute and not put a sense into it." That
the legislature intended to express something is a manifestly
rightful presumption ; yet, if nothing is found to be expressed,
after all rules of interpretation have been exhausted, it is plain
that the legislature has failed to effectuate the intent.
No consideration or argument drawn from the rule of lib-
eral construction will justify a court in adding to a statute
what the legislature has not put into it.'
1 Larson v. Butts, 22 Neb. 370; P. 430. Sullivan, C. J., said for the
Swift V. Dewey, 20 Neb. 107; Ault- court: "It is contended that the
man v. Jenkins, 19 Neb. 209. homestead and exemption statutes
2 Cowgell V. Warrington, 66 la. 666 ; should be liberally construed. We
Clark V. Evarts, 46 la. 248 ; Barnett concede this proposition. Section 4
V. Mendenhall, 42 la. 296. of the Revised Statutes declares,
'Eisenstadt v. Cramer, 55 la. 753; among other things: 'The Statutes
Wilson V. Christopherson, 53 la. 481. of this state, and all proceedings
* Hector v. Knox, 63 Tex. 613. under them, must be liberally con-
* Const, of Texas, §§ 50-2. strued, with a view to effect their
BLieber's Hermeneutics, 87; Mc- objects and to promote justice.'
Cluskey v. Cromwell, 11 N. Y. 601. Aside from this provision, we can
' Wright V. Westheimer (Idaho), 28 hardly conceive the necessity or pro-
48 CONSTEUCTION.
A court, usually conservative, has said : " By reason of our
meagre legislation, the courts, from necessity, *by libera,l con-
struction and intendment, have heen forced to infringe upon
that domain which more properly belongs to another department
of the government, and have endeavored as best they could to
decide some of the questions presented, not upon general rules
founded upon Tcnown and fixed principles which should govern
all cases, but simply to determine the particular case by such
rules of construction and analogy as were considered most
applicable." ^
There are parts of this extract which indicate that rules of
construction and reasons drawn from analogy were employed
by the court, though there is the frank avowal that " general
rules founded upon known and fixed principles which should
govern all cases" were not thought indispensable. Neither
" meagre legislation," nor any plea whatever, can justify a
court's encroachment upon the legislative domain. Nothing
will justify the extension of a statute by construction, so as to
make it express what was not meant by the framers. There
is a case (which will be cited when chattel exemption comes
to be treated) in which the court said that the statute ex-
empted only three hundred dollars but by construction the
amount had been increased to four hundred. By such con-
priety of strictly construing a stat- ity of cases, their operation is bene-
ute of mercy or benevolence. But, ficial and hilmana They assure to
as our statutes are silent upon the the family a home. 'They mitigate
question under consideration, this the harshness of the cruel, grasping
court will not undertake to supply creditor, and give to the unfortunate
■ omissions made by the lavr-nSaking debtor a place of refuge and a gleam
power. This court must distinguish of hopa' We are of the opinion that
between enacting laws and constru- an amendment of our homestead
ing them. Through motives of hu- laws, exempting the proceeds from
manity towards the debtor and his a voluntary sale for a reasonable
family, exemption and homestead time, would be in the interest of hu-
laws have been enacted. Prior to manity. For, however much such
their enactment the law was as cruel an amendment inay be desired, this
as Shylock to the unfortunate debtor, court will not assume the power to
and his wife and children had to suf- amend the statutes, and thus usurp
fer. It may be truthfully urged that the legislative functions of a co-
they sometimes assist unprincipled ordinate branch of our state govern-
men to consummate the most cruel ment."
frauds. However, in the vast major- i Eoco v. Green, 50 Tex, 489.
STATUTES NOT EXTENDED BY CONSTRUCTION. 49
structions of a statute as those above mentioned, it may be lost
. in its clothes.
It is not common for courts to admit that they go bej'^ond
the law, but there are many instances of such lapses without
acknowledgment. And the ppverty of the homestead claim-
ant, or the humanitarian spirit ot- the law, is made the reason
for the judicial enlargement of the statute in many a particu-
lar case, when the fact of such extension is not stated in the
opinion. Not only has homestead without occupancy been
awarded: homestead without either pccupancj'^ or family-
headship has been recognized from the date of ownership —
subsequent compliance with the occupancj'-condition being
held, to retroact,, by the law of relation, to the wedding-da}',
and to the prior day of the purchase of vacant land.' A young
freeholder's destitution of other land wasc adduced as a reason
for granting him exemption in this, and his attitude as one
looking for his bride to come was seriously mentioned, though
the statute made no partial provisions for such situations, and
though many of his creditors probably — and all, possibly —
were poorer than himself.
Unless the principle, on which the decision was founded,
has warrant in the statute as interpreted by a fixed rule ap-
plicable to all like cases, the court has here trenched on legis-
lative ground.
When a statute operates on conditions, confers a benefit
upon the performance of some act by the beneficiary, and
makes no provision for the retroaction of the performance so
as to make the benefit anterior by the law of relation, the
courts cannot render the condition retroactive. The home-
stead privilege is conferred on the conditions of ownership,
family occupancy, familj' headship, and sometimes the further
one of dedication. It seems very clear that the act of occu-
pying a home cannot render it exempt back t6 the date of
the purchase of the property now used as a family dwelling
for the first time, unless such retroaction is expressed or im-
plied in the statute.
There are numerous decisions, however, which hold such
retroaction, if the land-holder has meant to occupy, though a
year or more may have intervened between the purchase and
' Eeske v. Eeske, 51 Mich. 541.
50 CONSTRUCTION.
his occupancy of the property. They can be sustained only
on the ground that from the date when exemption was allowed
by law or constitutional provision the creditor had notice.
It is not designed to adduce the cases now, as they will be
presented hereafter, especially in the chapter on Occupancy.
It has even been held that the performance of this condi-
tion may not only relate back to the date of the purchase,
but also to that other requirement — family headship : so that
an unmarried man may become a land-holder, get married,
settle on the land with his wife at his leisure, and then defeat
a judgment rendered when-he had neither wife nor home.^
§12. Rival "Equities."
It was said by an able judge : ^' The preservation of the
homestead is, under the policy of our law, considered of more
importance than the payment of debts. Thatds what a home-
stead means — exemption from debts. It is not so much for
the debtor as for the debtor's family. And the family of the
debtor have, in this respect, equities superior to the creditor." ^
Is it so? Are we seriously to compare the value of home
preservation with the duty of debt-paying? Are there any
" equities " to be marshaled to ascertain which is " superior? "
Is the family to be housed by denying a creditor what is due
him? "Would its members be more benefited by roof -shelter
than by having an honest husband and father?
The case is wrongly put. The homestead is not exempt
from debts antecedent to the passage of the exemption law,
and all subsequent ones were contracted with knowledge on
the part of the creditor that they could not be enforced
against the homestead. No debt that exists against it (such
as a mortgage debt contracted by husband and wife) is put
in competition with any homestead " equity," by the policy
of the law. On the contrary, the homestead holder must pay
it, as an honest man, bound to benefit his family by setting
good example.
There is, therefore, no creditor of the homestead (outside
of the exceptions made by the statute), to come into rivalship
with the beneficiariesj to be denied a just claim because they
have " equities superior."
1 Reske v. Eeske, supra. * La Rue v, Gilbert, 18 Kas. 220.
CONFLICTING INTEEPEETATIONS. 51
The constitution and laws whence the policy stated was in-
ferred 1 do go very far towards suggesting the denial of rights,
when it is ordained in the former that the homestead of given
limits " shall be exempted from forced sale under anyprocess
of law," except for taxes, purchase-money or improvements.
But it does not mean that a creditor's right to make his money
out of a homestead, vested in him before the debtor and his
family had acquired the exemption right, may be brought into
competition with the latter and deferred to it. And no such
right (unless under one of the three exceptions) can be sub-
sequently vested in him. What is his due, the law accords.
He can get judgment against his debtor, the head of the home-
stead family, but not against his dwelling-house.
The learned judge doubtless did not mean that the creditor
should be wronged that the debtor and his family may be ben-
efited. The writer objects merely to the comparison, as though
these were claims to be ranked according to their privilege.
§ 13. Conflicting Interpretations.
It has already appeared, and wiU appear more palpably
further on, that there is not perfect agreement in the construc-
tion of similar statute provisions by courts of different states.
What is the profession to do under the circumstances ? Let
each practitioner respect the decisions of his own state as law
within its borders, when they are settled, yet let him remem-
ber that if they are demonstrably wrong they will be entitled
to no respect, as law, in other states. So, when he finds in the
reports of other states deliverances which are not supported
by good reason, and especially those which fail to follow the
statute ostensibly expounded, let him discard them as author-
ity in his state.
" If different interpretations are given in different states to
a similar law, that law, in effect, becomes by interpretation,
so far as it is a rule for action by the federal courts, a different
law in one state from what it is in another." ^
It is true that interpretations of statutes which have been
long acted upon cannot be suddenly changed without public
inconvenience and liability to injury. Lord Mansfield said :
1 Const. Kansas, art 15, sec. 9; 2 Christy t. Pridgeon, 4 Wall. 196.
Gen. Stat (1889), § 335.
52 CONSTEUCTION.
" When solemn determinations, acquiesced under, have settled
precise cases and become a rule of property, they ought, for
the sake of certainty, to be observed as if they had originally
formed a part of the text of the statute." *
§ 14. Constitutional Directions.
The legislature of a state, withiij the bounds of govern-
mental legislation and the limitations imposed by the federal
constitution, may do whatever is not forbidden by the state
constitution, provided it do not trench upon rights reserved
to the people. The inalienable personal rights to life, liberty
and happiness cannot be- wantonly disregarded; in other
words, tyranny cannot be exercised by the legislator.
"Within the bounds mentioned, the legislature may do what
is not constitutionally forbidden, and therefore may enact
homestead laws without express authorizationxby the consti-
tution. But, as it is not obliged to do so when the organic
law is silent on the subject, it may be required to do so by
that law. It is ordained in several state constitutions that
the legislature shall enact a homestead law; in several others,
homestead ordinances are incorporated which are self -opera-
tive; in some, directions are imposed. Where monetary or
chattel exemption is ordained by the "constitution, homestead
of realty may yet be left subject to the legislative will, or it
may be expressly required that a statute authorizing it shall
be passed, or restrictions upon the power (existing without
such requirement) may be put upon the legislature by the con-
stitution.
Take the following for illustration : " Every householder or
head of a family shall be entitled ... to hold exempt
from levy . . . issued on any demand for any debt hereto-
fore or hereafter contracted, his real and personal property,
or either, including money and debts due him, whether here
tofore or hereafter acquired or contracted, to the value of not
exceeding two thousand dollars, to be selected by him." ^ This
is neither a homestead ordinance, nor a requirement that the
1 Wyndham v. Chetwynd, 1 Bur- 396 ; Grantham v. Kennedy, 91 N. C.
row, 419; Gilpelke v. Dubuque, 1 148; Sedgwick on Stat & Const
Wall. 175 ; State v. Thompson, 10 Law, 254.
La. Ann, 133; .Long v. Walker, 105 , 2 Const. Va., art 11, § 1.
N. C. 90; Scott v. Kenan, 94 N. C.
CONSTITUTIONAL DIEBOTIONS. 53
legislature shall enact a homestead law : it is exemption of
two thousand dollars from execution. But, following this,
there is direction to the legislature: "The general assembly
shall . . . prescribe in what manner and on what condi-
tions the said householder or head of a family shall thereafter
set apart and hold, for himself and family, a homestead out
of any property hereby exempted, and maj'', in its discretion, ■
determine in what manner and on what conditions he may
thereafter hold for the benefit of himself and family such per-
sonal property as he may have, and coming within the exemp-
tion hereby made." ' The distinction apparent here between
" a homestead out of any property," and " personal property,"
indicates that realty may be set apart as a homestead while
there j'^et may be personal, property exempt, provided both do
not exceed the monetary limitation. The provision, relative
to the realty is mandatory while that respecting personalty is
directory. The mandate is confined to the regulating of the
homestead if the householder should elect to take part or all
of his constitutional exemption in that form.
Pursuant to the mandate, the legislature enacted, among
other things : " The homestead provided in this act shall
continue after his [the householder's] death, for the benefit of
the widow and children of the deceased, until her death or
marriage, and after her death or marriage for the exclusive
benefit of his minor children, until the youngest child becomes
twenty-one years of age, after which period it shall pass, ac-
cording to the law of descents, as other real estate, or as may
be devised by said householder, not being subject to dower,
yet subject to all debts, of the said householder or head of a
family." ^
This exemption was held constitutional, as being in harmony
with the above mandate and direction, and as containing noth-
ing inhibited ; so, upon the expiration of the homestead priv-
ilege, the property saved by it may be subjected to forced sale
to pay any or all of the householder's debts, accrued either,
before or after the homestead was set apart.'
The exemption may not continue after the death of the
householder, though he leave a widow and children. For the
1 2^._ g 5. 3 Hanby v. Henritze, 85 Va. 177.
2 Code of Va. (1873), ch. 183, § 8.
54 CONSTEUOTION,
exemption is from debts : how, if there be none? " It is clear,"
said the court in exposition of the above-quoted provisions of
constitution and statute, "that if the householder dies intes-
tate, and there are no debts as against which the homestead
can be held exempt, the exemption ceases altogether, and the
land therefore set apart as a homestead goes, if the intestate
died seized of an estate of inheritance, according to the stat-
ute of descents, to the heirs at law, subject to the widow's
right of dower, if the intestate leaves a widow." '
On the other hand, though the householder may pot have
exercised his privilege of claiming homestead, his widow may
claim it for herself and the children, if he left debts.^ If both
forego claiming, and the debts equal the estate in amount,
the whole property must be distributed ratably among the
creditors unless some of them are entitled to priority.' If
either have claimed homestead yet waived it in favor of cer-
tain creditors, all of the creditors share alike the excess above
exemption, and the homestead is last touched by those fa-
vored by the waiver.* If the householder has made a general
waiver of homestead, his widow cannot disregard it, and claim
after his death."
The exemption affects creditors — not heirs. 'So " estate of
homestead " is created so as to affect title by descent. The
householder is entitled to a real estate exemption and not a
mere right to claim homestead. This was held in a case in
which an insolvent claimed it, after having fraudulently con-
veyed the most of his realty to his wife, then made an assign-
ment in bankruptcy and claimed the full monetary exemp-
tion out of the property surrendered. Not getting his claim
allowed in the bankrupt court, he set it up agaiiist the realty
which he had conveyed to his wife, after his conveyance was
set aside for fraud. Homestead exemption was awarded to
him out of this property." It was so done on the above cited
articles of the constitution, and on prior decisions holding that
" where a conveyance is set aside for fraud, at the suit of the
1 Barker v. Jenkins, 84 Va, 895; * lb.; Strange v. Strange, 76 Va.
Helm V. Helm, 30 Gratt. 404 240.
2 Scott V. Cheatham, 78 Va. 83; 5 Reed v. Union Bank, 29 Gratt 719.
HatorfE v. Wellford, 27 Gratt. 356. « Hatcher v. Crew's Adm., 88 Va.
Ub.; Code of Va, ch. 136, § 35. 871.
CONSTITUTIONAL DIEEOTIONS. 55
grantor's creditors, he is not estopped as against them to as-
sert his claim of homestead in the property embraced in the
deed." ^ A small sum had been allowed the insolvent by the
bankrupt court — less than a hundred dollars — so he was al-
lowed to eke it out to the full limit^ of two thousand, out of the
land which he had sworn was not his — not being estopped
by his oath.^ It had previously been held that a debtor may
supplement his original homestead to make the aggregate
equal the maximum allowance.'
Ordination in a constitution that homestead exemption
" shall be construed liberally to the end that all intents thereof
may be fully and properly carried out," * is nothing more than
an insertion of the well known rule of interpretation that the
intention of the legislature must be respected. Courts would
have been bound to do this in the absence of the mandate
quoted. No greater obligation rests upon them by reason of
the application of the rule to a particular subject by the con-
stitution framers.
Constitutional provisions relative to homesteads cannot be
departed from by the judiciary, in the exercise of equitable
jurisdiction, to declare any indebtedness a lien on such favored
property, unless the debt be such as is excepted from the ex-
emption.'
By some state constitutions, the homestead is declared " ex-
empt from attachment, levy or sale, on any mesne or final
process issued from any court." ^ In construing such a pro-
vision, the court ssljs that it must take effect in one of two
modes : either by creating remedial rights, in certain persons,
enforceable by action or defense, or by limiting the jurisdiction
of the court. If the constitution prohibits judicial process, the
levy of an execution on the exempt property would be abso-
lutely void. The defendant may do nothing yet be secure. The
statutory requirement that the debtor must assert his right of
1 Shipe V. Repass, 28 Gratt. 734 ; < Const Va., art. XI, sec. 7.
Boynton v. McNeal, 31 Gratt. 459 ; ' Jenkins v. Simmons, 37 Kas. 496 :
Marshall v. Sears, 79 Va. 49. "The constitution of the state pre-
2 Hatcher v. Crews' Adm., supra. scribes the manner of its [the lien's]
SQppenheimer v. Howell, 76 Va. creation, and this must be strictly
318. Hatcher's fraudulent convey- followed."
ance set aside in Hatcher v. Crews, « Const. S. C, art 11, § 33. See
78 Va. 460. Const of Ga. (1877), art IX, §§ ], 2, 4.
56 - CONSTETIOTION.
exemption if he would avail himself of it would be nugatory,
and even derogatory to the constitution, under this construc-
tion. A sale on mortgage foreclosure, except for purchase-
money, would be invalid. A valid lien might be defeated by a
subsequently arising right of homestead exemption. The court
concluded : " That such consequences do not flow from the con-
stitution is evident, not only from the consideration of the
principles of construction, but from the opposite conclusions
reached by this court, in general harmony with the views
that have prevailed wherever the system of homestead exemp-
tions has been adopted. On the other hand, the conclusion
that the constitution intended, as its proper effect, the invest-
ing of the debtor with a right of exemption that must be as-
serted, ... is clear." '
1 Pender v. Iiancaster, 14 S. C. 25.
CHAPTEE III.
FAMILY HEADSHIP.
i 1. The Constitution of the Family.
3. The Headship of the Husband.
3. United Headship of Husband
and Wife.
4. Desertion by the Wife.
5. Divorce; Effect on Homestead.
6. Divorce; Forfeiture by Divorced
Party.
§ 7. Acquisition by Widower or
Widow.
8. Unmarried Beneficiary.
9. Lack or Loss of Family.
10. Claiming after Loss of Family.
11. Comment.
§ 1. The Constitution of the Family.
Family headship is as important a condition as ownership
and occupancy, and more generally required than dedication,
when the privilege of home exemption is to be accepted under
the statutory offer. It is not a condition universally requisite
but is very general. The legislator, to secure the stability of
family homes already established on real estate owned and
occupied by the housekeeper with his wife and children, or
with either, or with other dependents where they are recog-
nized by statute as members of the family, has provided that
his homestead, as defined or limited by law, shall be free from
liability to forced sale by ordinary creditors, while his own
right to incumber or alienate it is partially restrained.
ITot his own benefit only, but that of his family ; not the
benefit) of both only, but that of the public, is the purpose of
the legislature in thus favoring homes to secure their stability.
Homes are the units Avhich, summed up, compose the state;
they ar^ the factors which make up political society.
The head of a family, usually the owner of the residence
occupied by himself and his wife and children (or by other
dependeiits where the statute includes them as members of the
legal famfly), is not only himself a beneficiary, but the repre.
sentative and trustee of the other beneficiaries under his
charge.'
1 Moore v. Parker, 13 S. C. 490.
58
FAMILY HEADSHIP.
The conjugal and parental relations are the family elements
which the legislator has in view when' providing immunity for
homes. It is not likely that any homestead law would ever
have heen passed, had all families been mere aggregations of
persons without bonds of kinship and affection. It is the
father's and mother's fireside, with their children around it,
which such laws have primarily in view when guarding t!ie
home against forced sale and against private sale by one parent
alone. It is their home and their family which the state is
most interested in protecting and fostering and encouraging.
But, in the absence of the conjugal and parental relations,
there are groups of persons which appeal to the legislator for
protection : a son supporting his aged parents ; a brother main-
taining a dependent sister, and the like. Some statutes ex-
pressl}' name the classes of persons, outside of such relatives,
who may be homestead beneficiaries.
The word "family," as commonly employed, carries the
idea of members related to each other by blood or aflinity.
It'is a relation of status; not one of mere agreement or con-
tract. In this sense, servants or. employees are not members ;
and a man or woman is not the head of a family who has only
such persons living with him or her.^
The householder, claiming homestead. immunity, must be
under legal obligation to support the members of his house-
hold who are dependent upon him. Dependence alone is not
sufficient — the obligation, on his part, seems to be the test.^
In a broad sense, not only parents and 'their children, but
domestics and others composing the household are bound to-
gether by mutual relations — one of the group being the pro-
tector and provider while the others are his dependents or
subalterns ; ' but obligation to support them may be wanting.
The relation of master and servant, being one of contract and
1 Murdock v. Dalby, 13 Mo. App. 41, 2 Galligar v. Payne, 34 La. Ann.
47 ; Cahoun v. McLendon, 43 Ga. 406 ; 1057 ; Dendy v. Gamble, 64 Ga. 538 ;
Garaty v. Da Bose, 5 S. C. 498. See Lathrop v, Ass'n, 45 Ga. 483 ; Eoco
Wade V. Jones, 20 Mo. 75 ; Re Lamb- ■ v. Green, 50 Tex. 490 ; Hill v. Frank-
son, 3 Hughes, 233 ; Whitehead v. lin, 54 Miss. 633.
Niokelson, 48 Tex. 530 ; Howard v. 3 Wilson v. Cochran, 31 Tex. 6£0 ;
Marshall, 48 Tex. 471 ; SeatOn v. Mar- Taylor v. Boulware, 17 Tex. 74.
shall, 6 Bush, 439; SaUee y. Walters,
17 Ala. 488. '
THE CONSTITUTION OF THE FAMILY. 59
not of social status, is not the family relation. All such rela-
tions, when there is no duty on the part of the householder
to support those living with him, are beyond the contempla-
tion of the homestead laws in their provision for exemption,
as a general rule.'
Thfe statutory inclusion of " persons dependent for support "
on the householder, as members of the family, so as to entitle
him to homestead exemption, has been declared not to em-
brace orphans voluntarily housed, brought up and supported
by the claimant who was under no legal or natural obligation
to foster them. " However praiseworthy "... the- char-
ity " may be, the law, in its justice and wisdom, will not per-
mit him to impose, on his honest creditors, the burden of his
bounty." "
" Dependent for support " means actual and necessary de-
pendence by persons unable to earn a livelihood, who have
some natural claim.'
It is argued that if one could obtain a homestead as the
head of a family of members whom he is not bound in law to
support, he might refuse to support them after obtaining it and
become sole beneficiary.*
The moral obligation to support dependents has been thought
sufficient to render the obligor entitled to the homestead priv-
ileges when such dependents compose his family.' There can
1 Wilson V. Cochran, 31 Tex. 680; did it render them beneficiaries, under
Calhoun v. McLendon, 43 Ga. 406 ; Ga Const of 1868. Dendy v. Gam-
Marsh V. Lazenby, 41 Ga. 153 ; Sears ble, 64 Ga. 538 ; Blackwell v. Brough-
V. Hanks, 14 O. St. 298 ; Barney v. ton, 56 Ga. 393. And in Mississippi,
Leeds, 51 N. H. 353 ; Whalen v. Cad- the shelter of an adopted daughter
man, 11 la. 326 ; Garaty v. Du Bose, and her husband, who supported
5 S. C. 498 ; Sanderlin v. Sanderlin, 1 themselves, did not render the house-
Swan, 441. holder a head of family so as to en-
2Galligar v. Payne, 34 La. Ann. title him, to the exemption of his
1057. (See dissenting opinion.) Tay- residence from sale under execution,
lor V. Elvin, 31 La. Ann. 383. Hill v. Franklin, 54 Miss. 633.
SDecuir v. Benker, 33 La. Ann. ^Cox v. Stafford, 14 How. (N. Y.)
830 ; Cox V. Stafford, 14 How. (N. Y.) 531 ; Blackwell v. B rough ton, 56 Ga.
521 ; Whalen v. Cadman, 11 la. 336 ; 390 ; Greenwood v. Maddox, 37 Ark.
In re Lambson, 2 Hughes, 233. 658 ; Wade v. Jones, 30 Mo. 75 ; Par-
<In Georgia, a householder's de- sons v. Livingston, 11 la. 104; Allen
pendent sister and her children, liv- v. Manasse, 4 Ala. 554 ; Connoughtbn
ing with him, did not constitute his v. ^ands, 33 Wis. 887 ; State v. Kane,
family in such a sense as to entitle 43 111. App. 43,
him to a homestead as the head, nor
60 FAMILY HEADSHIP. .
be no such moral duty when there are no lawful means of
performing it: therefore, to hold that the duty of paying
honest debts must give way to this (as has beem held or in-
timated),' seems untenable.
"When there is legal obligation to support persons who are
not the children of the family head, the right to accqtfire a
homestead exists in the householder.^ It is not such legal ob-
ligation as arises from a contract to support persons, for a
consideration, who have no claim otherwise on the house-
holder, but it is where he is bound to maintain them as mem-
bers of his family without any corresponding compensation
contributed on their part.
§ 3. The Headship of the Husband.
The declaration or dedication of the homestead is usually by
the husband and father, as the representative of the family.
The statutes generally require that the owner and occupant
of the property to be set apart shall be a householder over
a family ; and the husband and father usually answers that
description. It is his household especially which the legis-
lator means to protect in their home, though the benefits of
the homestead provisions are hot limited to families in which
the conjugal and parental relations exist.
The husband, in dedicating his own property to family pur-
poses under the homestead law of his state, and recording it
as thus set apart, voluntarily gives certain rights, present and
prospective, to his wife ahd children, beyond those which they
had before. Or, if he lives in a state where formal declara#
tion and recording are not required, he is presumed to have
consented to the conferring of such rights upon his family by
marrying, becoming a father, and occupying his home. As
the representative of his family, he controls the home, makfe
the selection of the property they are to live upon, and may
change his domiqile at will, though he is not free to alienate
it by his own, separate act. In acquiring homestead, the. ac-
tion of the family head concludes the members composed of
his wife and children.'
iMcMurray v. Shuck, 6 Bush, 111; SNeal v. Sawyer, 69 Ga 353; Mor-
La Rue v. Gilbert, 18 Kas. 220. . rill v. Hopkins, 36 Tex. 686 ; Hart-
2 Marsh v. Lazenby, 41 Ga. 153; man v. Thomas, 37 Tex. 90 (see
THE HEADSHIP OF THE HUSBAND. 61
The wife and children are bound in duty to live wherever the
husband and father makes his home. His domicile is theirs.
His right of homestead immunity, and theirs, depends upon
their keeping together. He cannot make their residence apart
from his, and cut off their right to occupy the homestead with
himself, without forfeiting it. But his temporary absence,
while the right to return to the hearth-stone remains, and
while his home continues to be theirs, does not affect his family
headship.
A father who has his children at school away from home,
or .temporarily separated from him, in any way, while his re-
lation to them as his family continues, is still the head of it,
and may become the declarant of a homestead in his and their
behalf.^ It is necessary, however, that he should retain the
position of householder.^ Though living temporarily alone, he
controls the children who are under his charge, is responsible
for them, keeps a home for them, and answers the purpose
which the law has in view in making him the beneficiary of
the homestead provisions.
The subordinate beneficiaries are not affected by every act
of their head. What would expose the home place to forced
sale under ordinary circumstances would not necessarily do
so after the rights of such beneficiaries have been conferred.
What might work forfeiture, if he stood alone, will not al-
ways affect their vested rights. A judgment rendered against
Jbim for tort, which could be enforced by execution against any
other real estate of his, cannot be executed against his home-
stead, in some states, because of the rights and interests of
the wife and children in that particular property, and because
of the policy of the state to conserve it for the family.'
The parental relation is tenderly cherished by the state.
The right of the father to have a home for them protected
from the hammer of the official auctioneer is recognized and
secured in all the homestead states. The natural relation is
Walker v. Young, 37 Tex. 519) ; Daw- ler, 65 HI. 146 ; Clubb v. "Wise, 64 III.
son V. Holt, 44 Tex. 174 ; Nevins' Ap- 157 ; Buck v. Conlogue, 49 111. 391 ;
peal, 47 Pa. St. 330; Hand V. Winn, 53 Wright v. Dunning, 46 III. 371;
Miss. 788 ; Camp v. Smith, 61 Ga. 449 ; Brown v. Coon, 36 111. 343.
Howze V. Howze, 3 S. C. 333 ; Rich- i Seaton v. Marshall, 6 Bush, 439.
ards V. Green, 73 111. 54; Shepard v. ^Veile v. Koch, 27 111. 139.
Brewer, 65 lU. 383 ; Burson v. Fow- 3 Conroy v. Sullivan, 44 111. 451.
62 FAMILY HEADSHIP.
everywhere regarded as a sacred one which the law must re-
spect. But there is not quite the same consideration paid
to the artificial relation existing between persons and their
adopted children. Ordinarily, when the adoption is by some
legally required act, the parental relation is deemed to have
been established by compliance with the requirement, and the
law extends its recognition and protection as though the rela-
tion were natural. So far as homestead protection to artifi-
cial families is concerned, the governing statute of each state
must be consulted. One may stand im, loco pa/rentis to children
whom he has adopted ; or those whom he has brought into
his family by marriage with their mother, so as to become
their representative, capable of bestowing homestead rights
and protection upon them by selecting such property for the
purpose as the law allows to be dedicated.* The interests of
the state may be subserved ; the good of society may be pro-
moted, and therefore the policy of homestead legislation car-
ried out, by the recognition of his family headship.
The family head must be domiciliated in the state where he
seeks to acquire homestead, according to most of the statutes.
Were the rule otherwise, he might have several protected
properties ; indeed, he might have one in each homestead state,
and thus turn what the legislators meant as beneficial to the
state into a great abuse.
Some of the statutes confine the privilege of acquiring home-
stead immunity to citizens. The word citizen is used in dit
ferent senses "Whether the word, as employed in any of
those statutes, exclusively means a person either native born
or naturalized, is open to judicial construction.
Where the right of acquiring homestead immunity is con-
fined to citizens of the state, it has been held that a resident
or inhabitant may acquire, though he is not a citizen in the
political sense.''
Actual residence, without reference to citizenship, will en-
1 Chamberlain v. Brown, 33 S. C. 2 jioKenzie v. Murphy, 24Ark. 155;
697; 11 S. E. 489; Sanderlin v. San- Cobbs v. Coleman, 14. Tex. 594; Peo-
derlin, 1 Swan, 441 ; Meyer v. Drum- pie v. McClay, 3 Neb. 7 ; Hawkins v.
mond, 33 S. C. 165 ; 10 S. E. 952 ; Ca- Pearce, 11 Humph. 44
pek V. Kropik, 139 111. 509. Compare
Re Lambson, 3 Hughes, 333 ; post, % 7.
tTNITED HEADSHIP OF HUSBAND AND WIFE. 63
able a head of a family to declare upon his property, when
citizenship is not made indispensable.'
There is difference between the head of a family who is
married, and one who is single, with reference to the convey-
ance of the homestead. So, if a deed absolutely conveying
the homestead of the grantor, upon its face, be offered in evi-
dence, the fact that he is a married man may be proved by
parol; and the effect will be to strike the deed with nullity if
he only has signed it, when the law requires that his wife shall
sign also, to make the conveyance valid.^
The terms " married man " and " head of a family " are not
synonymous.'
"When the statute provides that the head of a family may
have a homestead exempted in land owned by him, the hus-
band, as such head, cannot have the homestead carved upon
his wife's land, nor is she entitled to have one upon her own
land. Both together cannot assert the homestead right in her
land as against a judgment on their joint debt.*
He is the head, and to him and his property the statute re-
fers. But, were she the head, there would be no reason for
denying her homestead on her own land (no judgment now
considered) ; for the use of masculine pronouns in the statute
would be of no consequence.
§ 3. United Headship of Husband and Wife.
The law recognizes husband and wife as the united head of
their family for homestead purposes. It allows either to own
the property upon which the homestead privilege of both is
based. It allows either to claim the benefit when the other
does not; and the plaintiff may ask immunity from debt on
his or her own separate property, or on that of the other
spouse, or on community property, as the title and the gov-
erning law may be.
Both the marital partners constitute one head of the family,
in some sense ; the husband alone is usually named ^n the
1 Dawley v. Ayers, 23 Cal. 108 ; * ' JcL; Thompson v. King (Ark.), 14
Williams v. Young, 17 Cal. 403 ; S. W. 925 ; RaUway Co. v. Adams, 46
Lowe V. Stringham, 14 Wis. 223. Ark. 159.
2 McLean v. Ellis (Tex.), 15 8. W. < Turner v. Argo, 89 Tenn. 443.
394 ; Howard v, Zimpelman (Tex.), 14
S. W. 62.
64 FAMILY HEADSHIP.
books as the head, as in common parlance. It is the home
of parents and children which the legislator especially seeks to
conserve. Though there be no children, the husband and wife
compose such a family as^the homestead provision seeks to ,
favor.' The law favors the marital relation. Especially do
the homestead laws favor it. Two persons bound by no ties,
such as two partners in business, living together, wouJd not
constitute a family, while a married pair are accorded family
privileges, under those laws.
The wife may represent the united head in applying for
homestead, at his request, or upon his neglect to apply in be-
half of the family.^ If the title is owned by the husband in
fee, it has been held that he only can declare homestead, or
have it accorded upon application.'
The wife need not state in her declaration that she makes it
because her husband has not done so. She should aver the
fact that he has not done so, and that she makes it for the
joint benefit of both.''* The assignment of reasons would be
advisable even where not required. If he has assented to her
application, it would be better to aver it ; but the circumstances
may be such that his assent would be presumed when she ap-
plies in behalf of the family.'
If he is away upon business, or is an invalid, or has habitu-
ally intrusted to her the conduct of his business, the presump-
tion would be the more readily recognized.
If the wife owns the fee, she is the proper person to have it
made the family reservation or exempt home." She has thus
the dedication of her own separate property. Her degree of
competency, however, varies in different states.'
But if she is childless, and the wife of a non-resident, she is
incompetent to claim homestead.^ In such case, she would
i Kitohell V. Burgwia, 21 111. 40 ; nally v. Hardwick, 61 Ga. 601 ; Far-
Trotter V. Dobbs, 38 Miss. 198 ; Partes ley v. Hopkins, 79 Cal. 303.
V. Stewart, 50 Miss. 731 ; Cox v. Staf- 3 Richards v. Greene, 73 111. 54
ford, 14 How. (N. Y.) 531. < Farley v. Hopkins, 79 Cal. 303 ;
2 McPhee v. O'Eourke, 10 Colo. 301 : Booth v. Gait, 58 Cal. 254.
Bowen v. Bo wen, 55 Ga. 183 ; Cheney 5 Connally v. Hardwick, 61 Ga. 501.
V. Rogers, 54 Ga. 168 ; Smith v. Ezell, epartee v. Stewart, 50 Miss. 730.
51 Ga. 570 ; Page v. Page, 50 Ga, 597 ; ' Fusilier v. Buckner, 38 La. Ann.
Larence v. Evans, 50 Ga. 216 ; Con- 594.
6Keiffer V. Barney, 31 Ala. 196.
UNITED HEADSHIP OF HUSBAND AND WIFE. 65
represent no family within the state. She would stand alone,
and therefore would not be entitled to a privilege accorded to
families. The state's interest is in family homes, so far as
homestead laws subserve it.
A husband having had all his separate property set apart as-
a homestead, his wife cannot have another one set apart out
of her property for the benefit of herself and her children —
two of whom are by a former husband and one by the present
head of the family — though all three of the children are
minors.' She is not the head of a family while she has a hus-
band, and any proceeding to give her alone a homestead, as
such, would be a nullity.^
Where homestead privileges are accorded by law to " every
resident " of the state,' may the husband and the wife each
claim, so that the united head of the family can have two
homesteads? Each is a "resident of the state." It is held
that though they are two residents in the ordinary acceptation
of the word, they are one for homestead purposes, so that,
living together, they cannot have'two exempt residences. If,
for instance, the wife is the legal owner, so that the home-
stead could not be sold for his debts even in the absence of an
exemption law, he cannot have another tract, which belongs
to him, saved from execution for his debts.*
The object of the legislator is to conserve the home occupied
by the family ; not to protect two homes of one married pair
from the claims of creditors.*
It is of little importance whether the homestead be owned
1 Neal V. Sawyer, 63 Ga. 353. him, exempt from sale on any final
2 lb.; Camp v. Smith, 61 Ga. 449, process obtained on any debt, with
451_ specified exceptions. The homestead
3 Ala. Code, 1886, § 3507. right and exemption continue during
* Beard v. Johnson, 87 Ala. 739 : the life of the beneficiary and the
in which Tyler v. Jewett, 83 Ala. 93, minority of his children, and during
and Discus v. Hall, 83 Ala. 159, are the widowhood of his widow if she
distinguished from it. See Partee v. has no homestead in her own right
Stewart, 50 Miss. 717. Const., art 10, g§ 3, 3, 5. When, by
sSeeWeiner v. Sterling, 61 Ala, 98; allotment, the wife's right to home-
Bender V. Meyer, 55 Ala, 576, rendered stead has arisen, it cannot be diverted
under the former code of Alabama, without her consent given by sign--
§ 3830. In North Carolina, every ing the deed for conveyanca Gil-
resident of the state has the right of more v. Bright, 101 N; C. 383; Gan-
homestead in his land allotted to son v. Baldwin (Mich.), 58 N. W. 171.
5
66 FAMILY HEADSHIP.
by the head of the family occupying it, or by one of the other
members. If the family would be rendered homeless by its
sale, the result would be what the legislator designed to pre-
vent. Sale by creditors of the husband-father, or by those of
another member owning the property, would be the same in
result.'
§ 4. Desertion by the Wife.
A husband does not cease to be the head of a family, in the
eye of the law, by reason of his desertion by his wife. As
the head, he keeps his home to which she may return. While
the marriage relation exists, he is what the homestead law
means by the term " head of a family," though he has no fam-
ily but his wife, and she has left the home.^ Should he die,
she would become a widow ; and her desertion of her husband
is not everywhere treated as an abandonment of the home-
stead, so as to cut her off from her rights as survivor.'
The relation of marriage is so sacred, and the sanctity of
the family home so reverenced by the law, that so long as
there is hope of such a deserter's return to the domestic
hearth, her legal right to do so is respected. Tier bonds of
wedlock, not severed by judicial decree, hold fast till death.
A wife who left her husband because of his ill-treatment of
her, and resided away from his home, but visited it frequently
to nurse him in sickness, was held not to have abandoned her
home, nor to have forfeited her rights as a wife under the
homestead law.*
But there are several cases which hold that a wife, by de-
serting her husband without cause, and living apart from
him till his death, forfeits all right to the homestead held by
him when he died."
' Carolina N. Bank v. Senn," 25 thqir majority, and their removal,
S. C. 573, 581. See Norton v. Brad- does not affect the right of the hus-
ham, 31 8. C. 381 ; Bachman v. Craw- band as "head of the family,'' under
ford, 3 Humph. 313. the laws of Arkansas.
2 Gates V. Steele, 48 Ark. 539; ^Lindsey v. Brewer, 60 Vt 637?
Brown v. Brown's Adm'r, 68 Mo. Lamb v. Wogan, 37 Neb. 236 ; JMeader
388 ; Whitehead v. Tapp, 69 Mo. 415 ; v. Place, 43 N. H. 308 ; Atkinson v.
Pardo V. Bittorf, 48 Mich. 375. See Atkinson, 37 N. H. 435 ; 40 N. H. 249 ;
Stanley v. Snyder, 43 Ark. 439, which Wood v. Lord, 51 N. H. 448.
holds that even the death of the wife, * Lamb v. Wogan, 27 Neb. 236.
and the arrival of the children at * Cockrell v. Curtis (Tex.), 18 S. W.
divorce; EFFECT ON HOMESTEAD. 67
Sflchi penalty for causeless neglect of wifely duties seems
just, and one that all legislatures well might adopt. The pol-
icy of the homestead provision is defeated by illegal separa-
tions of spouses, so that the reasons for exemption cease to
apply.
The wife's voluntary desertion of both husband and hearth-
stone has been held an abandonment of the homestead, and to
be equivalent to voluntary failure qf occupancy by a widow.
Where occupancy is an essential condition, required of all ben-
eficiaries, including widows,^ the deserting wife was treated
as though she bad voluntarily left the exempt premises after
ceasing to be a wife. It is intimated that the decision might
have been different, had she been driven from home by her
husband, and been kept out of it by a tenant after her hus-
band's death.^ Intentional leaving, in ignorance of her rights,
may forfeit her homestead.'
A wife deserted her husband, avowed her intention never
to return, wrote urgently for him to sell the farm, and finally
sold it herself to one who reconveyed to him. She was held
to have abandoned the homestead.* Certainly, she had given
up all idea of using it as the legislator designed. The benefi-
cent purpose to promote the welfare of the state by encour-
aging happy, thrifty, children-rearing homes, is not very well
furthered by the reckless separations of married parties, now
so common, which evince contempt for that purpose. '
§ 6. Divorce ; Effect on Homestead.
It is held that when granting a divorce, whether because of
the fault of the husband or the wife, the court may assign the
possession of the homestead to her, though the title be in him.'
It would seem, at first view, that the court could not oust
'the husband from the homestead and award sole custody
to the wife. She, not having title, derived her sole right to
436; Duke v. Eeed, 64 Tex. 705; 2 Foster v. Leland, 141 Mass. 187.
Sears v. Sears, 45 Tex. 5.57; Earle v. ' Paul v. Paul, 186 Mass. 286.
Earle, 9 Tex. 630 ; Trawick v. Harris, * Farwell, etc. Co. v. McKenna
8 Texi 313. See Blessing v. Edmond- (Mich.), 48 N. W. 959.
son, 49 Tex. 338 ; Newland v. Hoi- ^ Brandon v. Brandon, 14 Kas. 342 ;
land, 45 Tex. 588;,Fajwell, etc. Co. v. Blankenship v. Blankenship, 19 Kas.
McKenna (Mich.), 48 N. W. 959. 169.
1 Abbott V. Abbott, 97 Mass. 186.
68
FAMILY HEADSHIP.
the benefit of the homestead protection by her union with her
husband, and therefore it would seem reasonable that her
right would cease upon the dissolution of the marriage rela-
tion. Being at liberty to contract a second marriage, she
would apparently be acting beyond the spirit of the law by
taking another man to share her homestead privilege on prop-
erty belonging to her first husband. Her only interest is by
operation of law, and she should be kept within the purview
of the legislator when he made the beneficent provisions for
married women under the homestead laws. Especially, when
divorce is granted to the husband, against the wife, for viola-
tion of marriage duties in any way, would it seem unconscion-
able for the court to take his property and give it to her in
possession ; to take his home, sacred from creditors, and give
it to her who has proved unworthy to share the roof-tree and
hearth-stone with him and their children. Was not her right
to the occupancy of the home dependent upon his right?
Had she any claim upon it but what came from her union
with him?
On the other hand, the husband who has obtained a divorce
from his wife might marry another: he would be denied the
right of taking her to his own property because his former
wife is in occupancy, under the rule laid down. At his death,
his \yidow and children would be kept out of the property till
the divorced woman's death, if indeed the inheritance would
not be impaired under some statutes. And would the posses-
sion of the divorced wife preclude creditors from making their
money out of this property of his from the time it ceased to
be his homestead?
However plausible these considerations and queries may be,
there is another side to the argument, which has judicial
favor. The granting of the divorce and the adjustment of
property interests are cotempcraneous. The homestead is
that of both husband and wife, though he owns it ; both have
the right of possession before the divorce; one must have it
afterwards, and the court may decree that she shall be the
one. Neither had the sole right of incumbering, alienating
or enjoying it, before they were legally parted from each
other; their homestead rights were equal. "Where there is
statutory authorization given to the court to give to the wife
divoece; effect on homestead. 69
sucli share of her husband's real and personal property as
shall be just and reasonable, when divorce is granted for the
fault of either the husband or the wife,' the court may award
her the homestead.*
And the court may, though the wife be at fault, and the
divorce be granted against her, give her a judgment for ali-
mony with lien on the homestead owned by the husband,
under the same statutory authorization.'
Whether by exposure to sale under a lien, or by transfer to
the wife in making division of property, the husband loses his
homestead — loses his possession of it or his property in it —
he becomes entitled to select a new homestead. He and his
divorced partner, being novr no longer one, may each have a
homestead. To his newly-dedicated exempt residence, he
may take his new bride — the supposititious one before men-
tioned. To the old place, the divorced woman may welcome
her new husband, and over his head will be cast the protect-
ing shield of the law preventing forced sale.
It was held that, upon divorce granted a husband against
his wife for wrongs done him by her, consisting, in part at
least, of excluding him from their home after wrongfully in-
ducing him to convey the title of it, and of other property, to
her, there should be equitable division of the' property between
them.*
A divorced woman, occupying her homestead acquired in
her late husband's lands before the decree, and having her
children with her, has been held entitled to retain it.^ When
all the children are assigned to her in the divorce decree, she
and they continue the family — not the isolated husband.
Homestead being for the family and not for a single person,
there would seem to be reason for giving her and the children
the use of one acquired when the husband was a member of
the family. The fact that it was carved out of his separate
property ought not to deter, for its dedication as the family
homestead was done by himself, or with his consent.
1 Kansas Laws of 1870, p. 180. ■• Snodgrass v. Snodgrass. 40 Kas.
2 Brandon v. Brandon, 14 Kas. 343, 494.
_j^_ sBlandyv. Asher, 73 Mo. 37. See
3 BlankenRhlp v, Blankenship, 19 Stamm v. Stamm, 11 Mo. App. 598.
Kas. 159.
70 FAMILY HEADSHIP.
After a husband and wife had permanently separated, even by ,
agreement and without divorce or judicialsepa;ratioufrom bed
and board, she was awarded the right of acquiring and holding
property as if she had been legally divorced, and of having
homestead protection in the property she occupied as a
home.'
If it be conceded that he. had the same right, and if he
availed himself of it, the result would have been two home-
steads for the undivorced couple. The statute contemplated
one for each family. The domicile of the wife is that of her
husband. Homestead laws favor marriage and home: not
lawless separation and half-homes.
Though the husband obtain a divorce against his wife, the
property that was their homestead may be awarded to her.^
He obtains the divorce for cause. She, being in the wrong,
does not have the award as of right, with reference to the di-
vorce. But, with reference to the estate to be divided, it may
be better for all concerned that she should have the home
place — he having his rights in other property. Especially,
where there is an infant, or young children, may it be bet-
ter for her and them to remain xindisturbed in the family
home. The circumstances of each case may determine the
disposition of the children and the assignment of the home-
stead property to either spouse. When the wife obtains di-
vorce from her husband, if the terms of the decree award the
homestead to her " in trust for her support and for that of the
children," no trust is created but an absolute estate is trans-
ferred to her, it is held.^
Community property deeded by a husband to his wife, after
their divorce, gives her title ; and, the homestead being thereon,
she alone may incumber it thereafter.^ It is not still a home-
stead, however, where the property loses that character on
the dissolution of the marriage, so that either spouse may con-
vey whatever belongs to him or her.' The reason, upon which
rests the requirement that both must join in alienating the prop-
1 Kenley v. Hudelson, 99 IlL 493 ; 5 75.; Gimmy v. Doane, 33 Cal. 638 ;
S. C, 39 Am. Rep. 31. Shoemake v. Chalfant, 47 Cal. 433.
2 Stockton V. Knock, 73 Cal. 425. See Stockton v. Knock, 73 CaL 435;
3 Simpson v. Simpson, 80 Cal. 337. Lowell v. Lowell, 55 Cal. 316.
*Grupe V. Byers, 73 Cal. 371.
divoeoe; effect on homestead. 11
erty, disappears when both cease to be one. No family, no
homestead.
Under the provision that " a homestead or real estate in the
possession of, or belonging to, each head of a family," to the
extent of one thousand dollars of value, shall be exempt dur-
ing his life and shall inure to his widow and children at his
death,' it is held that the right of homestead exists in land
held by the husband and wife as tenants by entireties; and
that a wife, on obtaining a divorce with a decree vesting the
homestead in her, may assert her right against her husband's
creditors. If she has joined with her husband in a mortgage
to secure certain of his debts, she is not thereby precluded
from holding the homestead as exempt against his other
debts.2
A homestead, which was community property, was occu-
pied by the wife and children after her divorce from her hus-
band. There had been no division of the estate, when the
divorce was pronounced, as the statute directed to be done.'
In a suit brought fotr partition, it was held that the divorced
parties held the property as tenants in common, just as though
they had never been married ; that it should be partitioned,
and the husband's part rendered liable to forced sale, while
the wife's part continued exempt because she still occupied
the homestead with the children.*
1 Tenn. Code, § 3935. sided upon the property as their
2 Jackson v. Shelton (Tenn.), 16 homestead. In the year 1882, they
S. W. 143, overruling Cullam v. were divorced, without any mention
Cooper (Tenn.), Dec. Term, 1888, and or disposition of their property. The
distinguishing Avans v. Everett, 3 divorced wife continued to reside
Lea, 76. Judges Snodgrass and Lur- upon the property, and maintain
ton dissented. their minor children, without assist-
3 Texas Eev. Stat, art, 3864. ance from her former husband. In
*Kirkwood v. Domnan (Tex.), 16 the year 1885, Allen, the divorced
S. W. 438. Henry, J. : This suit was husband, executed a deed of trust
brought* by the defendants in error upon the property to secure a debt
for partition of a house and lot in that he owed the defendants in error,
the city of Waco. Bettie Kirkwood under which the property was sold
was once the wife of G. W. Allen, and conveyed to defendants in enor.
The property in controversy was The divorced wife was still residing ■
purchased during the existence of upon the property at the date of
her marriage with Allen, and was these transactions. Shortly after
their community property. They the execution of the deed of trust she
had some minor children, and re- married Ei-kwood, and continued to
72
FAMILY HEADSHIP.
§ 6. Divorce ; Forfeiture by Divorced Party.
Forfeiture of interest in the homestead estate may be made
a penalty for the violation of marital vows, or for any wrong-
doing in the marriage relation for which divorce is granted
would properly protect the wife in'
its use, but it might also have pro-
vided for its protection and use by
the minor children of the marriage,
subject only to the prohibiting clause
that the decree should not have the
effect, in form or in substance, of di-
vesting the husband of his title to
one-half. We think, however, that
the husband's interest in the property
can be so charged only in the divorce
suit, and as a part of the decree of
divorce. It not having been then
done, the former husband and wife
stood towards each other, after the
decree of divorce, as if they had
never borne that relation to each
other. Th^ then owned the prop-
erty as tenants in common, and sub-
ject to all the rules and regulations
of strangers bearing to each other
that relation. Whetstone v. Coffey,
48 Tex. 269. Bettie Kirkwood, hav-
ing a family, had a homestead inter-
est in the one undivided half of the
property that was owned by her;
and that interest was protected from
forced sale. But she had, no more
than any other tenant in common,
the i-ight to hold or occupy her co-
tenant's share, or to prevent its being
partitioned. As it could not be par-
titioned without being sold, it was
not within the meaning of the pro-
vision of the constitution that for-
bids a forced sale of a homestead.
To so hold would require that the
constitution should be construed to
forbid a partition of land owned by
tenants in common when it is resided
upon by one of the co-tenants, who
happens to be entitled to the home-
stead exemption, and it is incapable
of being equitably partitioned with-
reside on the land. It was agreed
that the land could not be equitably
partitioned, and that, if the court
found in favor of the plaintiffs, it
should be sold without the interven-
tion of commissioners for the pur-
pose of partition. The cause was
tried without a jui-y, and a decree
was rendered directing a sale of the
land, and a division of the proceeds
of sale equally between plaintiffs and
the defendant Bettie Kirkwood;
" and that each party pay the costs
• by him incurred, to be deducted
from the share in said proceeds be-
longing to such party." It is con-
tended for plaintiffs in error that the
homestead privilege of the wife sur-
vived the divorce, and consequently
that the deed of trust executed by
her former husband, and all of the
proceedings thereunder, were pro-
hibited by our constitution and laws.
It is provided by our statutes that
" the court pronouncing a decree of
divorce from the bonds of matri-
mony shall also decree and order a
division of the estate of the parties
in such a way as to the court ghall
seem just and right, having due re-
gard to the rights of each party and
their children, if any; provided,
however, that nothing herein con-
tained shall be construed to compel
either party to divest him or herself
of the title to real estate." Rev. St,
art. 2864. Allen and his wife, while
their marriage subsisted, each owned
an undivided one-half interest in the
property in controversy. It was in
the power of the court that decreed
the divorce, under the statute, not
only to make such a decree with re-
gard to the use of the homestead as
DIVOECJS; FOEFEITUEE BY DIVOECED PAETY.
73
against the party at fault.' Even if the wife obtain the di-
vorce, she may lose her homestead right as a consequence of
thus ceasing to be a member of the family, though she would
not lose her dower.^
Pursuant to statute, it is held that a mortgage given by the
husband only is valid as to the homestead, if the wife subse-
quently forfeits her right in the premises by obtaining a di-
vorce. Though she should survive him, and have the custody
of the children given her by order of court, neither she nor
they have any right of homestead as against the mortgagee.
They are not deemed members of his family from the time of
the divorce and the judicial decree therein giving her the cus-
tody of the children.'
A divorce, with the custody of the children, being granted
to the wife, does not divest the husband's homestead of its
exempt character.*
out being sold. Clements v. Lacy,
51 Tex. 150. In such a case, the ex-
empt interest in the land must be
converted into money, and the ex-
emption will then attach to that
The constitution exempts the home-
stead from forced sale, " except for
the purchase-money thereof, or a
part of such purchase-money, the
taxes due thereon, or for work and
matei'ial used in constructing im-
provements thereon." If, when the
land is sold for partition, the costs of
the suit are deducted from the pur-
chase-money, it is equivalent to a
forced sale for the payment of the
costs of a partition suit, a purpose
not found among those enumerated
in the constitution. The fact that
the costs are incident to the suit for
partition does not necessarily control
the question ; they may be adjudged
and collected as a personal demand
and as costs usually are. We do not
think that there was any error in
the proceedings, except in directing
that the costs adjudged against the
defendants be deducted from Betty
Kirkwood's share of the money pro-
ceeding from the sale of the land.
We think that thete was error in
that part of the decree, and it will
therefoi-e be reversed, and here ren-
dered, corresponding in all respects
with the decree appealed from, ex-
cept that the costs adjudged against
the defendants shall be a personal
charge against them, and not against
the proceeds of the sale of the land.
1 In Illinois, there is such provision.
Both dower and homestead right are
lost by liaving divorce granted
against the one otherwise entitled
thereto. Section 3 of the Exemption
Act, and section 14 of the Dower Act,
are construed together. Rendleman
V. Rendleman, 118 111. 257. For gen-
eral effect of divorce, see Barrett v.
Failing, 111 U. S. 533.
2Stahl V. Stahl, 114 IlL 375.
3 Rev. L. of Vt., § 1894; Heaton v.
Sawyer, 60 Vt. 495; Whiteman v.
Field, 53 Vt. 554; Gen. Stat, of N. H.,
ch. 134; Wiggin v. Buzzell,"58 N. H.
339.
* Woods V. Davis, 84 la. 264
74: FAMILY HEADSHIP.
There are circumstances under which the judicial deliver-
ance, expressed in the last sentence, would be of wide if not
general application. The divorced husband may have chiL
dren by his first wife, who are still minors living with hini.
He may have children by the second wife who obtainc a di-
vorce from him. The breaking of the bonds of wedlock sep-
arates the family into two. "Why may not he, still the hoad
of the family, be accorded the homestead, while she has other
property assigned to*her which she may dedicate as the home-
stead of her family, composed of herself and her children?
While the husband may retain his homestead, under the
statute of his state, after having acquired it as the head of a
family, though his wife may have obtained a divorce against
him, and she may have been awarded the custody of the chil-
dren,' and he literally may have no family left him, he has
been allowed to retain his homestead; but he could not now
declare upon an original homestead, as he is not the head of
a family.^
The wife being divorced, and the minor heirs being devisees
of the deceased husband and father (with their interest subse-
quent to the mortgage), a foreclosure' against the property
which had been the homestead was allowed — there being no
probate homestead designated out of the mortgaged prop-
erty.^
Even after judgment for alimony has been given the wife,
her divorced husband may hold the homestead exempt from
her judgment, since it creates no lien against it.^ But the
husband alone is not a family; the divorce may result in
breaking up the household, and there may be circumstances
in which a court may have the homestead attached as his
property, in an action for alimony.'
A divorced man is not a husband ; a divorced woman is not
a wife : on the death of the man who was her husband before
1 Woods V. Davis, 34 la. 264 : Byers Rev. L. of Vt, § 1894) ; Whiteman v.
V. Byeis, 31 la. 268 ; Whitcomb v. Field, 53 Vt 554 ; Wiggin v. Buzzell,
Whitcorab, 52 la. 715. 58 N. H. 339 (on Gen. St., ch. 124).
2 Heaton v. Sawyer, 60 Vt. 495 ; * Byers v. Byers, 21 la. 268 ; AVhit-
Wiggin V. Buzzell, 58 N. H. 329. comb v. Whitcomb, 53 la. 715.
3 Bunnel v. Stockton, 83 Cal. 319 ; 5 Daniels v. Morris, 54 la. 369.
Heaton v. Sawyer, 60 Vt. 495 (on ^
ACQUISITION BY A WIDOWEE OE WIDOW. 75
the divorce, the woman divorced from him does not become
his widow.'
§ 7. Acquisition by a Widower or Widow.
The head of a family who has a wife but no children ; or
children remaining, after having lost his wife; or even one
child, — may acquire the homestead right. A widower, with
children, whp may not have acquired while his wife was liv-
ing, may do so after her death. But if he is alone, he cannot
now declare homestead, or avail himself of such means of
avoiding creditors, in any way. With no wife nor children
left to him, and no family of any sort recognized by law, he
cannot take the original steps for acquiring homestead as the
head of a family. Under the laws of several states, he could
retain his homestead right without a family, if he had acquired'
it with a family.
A widower, whose children were married and lived apart
from him, was held not to have lost his exemption right,^ but
ordinarily he could not then have acquired it.
But with a widowed daughter and her child — his grand-
child — living with him, and dependent upon him, a widower,
with no other family, was judicially recognized as a house-
keeper with a family, and therefore entitled to a homestead.^
A widower without family, if a housekeeper owning and
occupying his dwelling-house with no more than the statutory
maximum,, holds it exempt under a statute which provides
that " the homestead of a housekeeper or head of a family
. . . shall be exempt." * The terms householder and head
of a family have been held not synonymous, so that a house-
keeper, without wife or children or other dependents, was
held not entitled to homestead, under a statute employing
both terras.*
All that has been said of the widower is true of the widow.
She may acquire a homestead in behalf of herself and her
children, by complying with the statutory requirements of
1 Moore v. Hegeman, 27 Hun, 68 ; 3 Sweeny v. Ross (Ky.), 15 S. W. 357.
Chenowith v. Chenowith, 14 Ind, 2; * Pierce v. Kusic, 56 Vt. 418.
Whitsell V. Mills, 6 Ind. 229. ^ Calhoun v. Williams, 33 Gratt
2 Myers v. Ford, 23 Wis. 134. 18 ; post, § 8.
76 FAMILY HEADSHIP.
ownership, of occupancy, and (wherever the law requires) of
dedication and recording, provided she has not already become
the beneficiary of the technical widow's homestead by surviv-
ing her husband.
He may have been poor, without the necessary property to
declare upon ; and she may have come into possession of means
after his death. In such case, she may originally acquire the
immunity right for herself and hers, just as a man may do
who has the necessary real estate by some title.
It more commonly happens that a widow, with her children,
moves into a homestead state, buys a home, and avails herself
of the homestead law. Under such circumstances, her posi-
tion is precisely that of a widower who does so. She acquires
as the head of her family : not as the survivor of the marital
community. She holds under conditions altogether different
from those which attend that kind of homestead which is
likened to dower, which does not depend upon occupancy as
a general rule, which is deemed an estate under several state
statutes, and which has little like the usual homestead, except
the name.
A widow, as the head of a family, may be entitled to have
a homestead accorded to her.* And it was held that, in such
case, it does not terminate because of the children's reaching
their majority.^ But a homestead of minor children, in their
portion of the estate, is terminated by "their majority. Then
their respective shares are accorded.' The widow herself
seems to have been regarded in the case next to the last cited,
as though she had taken homestead from her deceased hus-
band's estate, as an allowance, like dower. When a widow,
with a family of children, comes into a homestead state, set-
tles with them in a dwelling, in behalf of herself and her chil-
dren, why is her case different from that of a widower with
children who should do so? And if he would cease to be
protected when his children come to majority, why not she? ^
1 Fountain v. Hendley, 83 Ga. 616, Kalpy v. Ross, 59 Ga. 863; Faircloth
633 ; Deyton v. Bell, 81 Ga. 370 ; Lee v. St. Johns, 44 Ga. 603 ; Hodo t.
V. Hale, 77 Ga. 1 ; Bridwell v. Brid- Johnson, 40 Ga. 439.
well, 76 Ga. 687 ; Groover v. Brown, 2 Groover v. Brown, 69 Ga, 60.
69 Ga. 60 ; Hodges v. Hightower, 68 » Fountain v. Hendley, 83 Ga. 616.
Ga. 281 ; Gerding v. Beall, 63 Ga. 561 ; * Minor children could have home-
ACQUISITION BY A WIDOWEE OE WIDOW. 77
A widow may have a homestead carved out of estate of her
own and that of her minor child.^ But if she have no chil-
dren, and no household, she cannot, as the head of a family,.
claim homestead out of her. deceased husband's property.^
Nor out of any other property, even her own by her own
right, in that capaoity, it may be saiil.''
A widow, residing with her children, in her father's house,
is the head of her own family and may become the declarant,
when she is the owner, manager or controller of the farm or
property declared upon.* Leasehold as well as freehold is suf-
ficient basis for her to build upon, as in case of a male declarant.
There is no reason why she may not stand in loco parentis
to adopted children, and thus be the head of a family capable
of acquiring homestead; especially when she is legally bound
for their support. Family headship is a condition,in her case,
as well as in that of any other, when originally availing her-
self of the exemption benefit — not merely succeeding to the
right as surviving spouse. In some states such headship is
re.quired in the latter case. The widow's homestead from the
property of her deceased husband was denied on the ground
that she had no family dependent upon her,' though this was
not according to the general rule relative to that kind of
homestead.* "Widows are accorded homestead, in many states,
liiuch as they are accorded dower; and the having of children
or family of any sort does not signify. Indeed, the term
widow's homestead does not come within the definition of
homestead. Occupancy, family headship and other conditions
are not necessary to the widow's homestead, in many states ;
that is, the portion assigned her as her homestead from her
deceased husband's estate.
A step-mother who took care of the children of her hus-
stead set off to them on a separate homestead for the minor children in
apphcation made for them in Georgia, their undivided shares: she being
Const, of 1868. Eoff v. Johnson, 40 their guardian. Her husband died
Ga. 555 ; Fountain v. Hendley, 83 Ga. after the constitution of 1868 was
616. adopted, but before the present one.
1 Akinv. Geiger, 53 Ga. 407. Fountain v. Hendley, 83 Ga. 616.
2 Kidd V. Lester, 46 Ga. 331. * Baohman v. Crawford, 3 Humph.
8 In Georgia a widow took her 313.
homestead from her undivided share ' Kidd v. Lester, 46 Ga. 231.
of her husband's estate, and also a « Estate of Walley, 11 Nev. 260.
78 FAMILY HEADSHIP.
band — the family keeping together — stood in parental re-
lation to them. Having voluntarily taken upon herself the
obligation, she was under such moral duty as to entitle her to
have a homestead set apart for the benefit of herself and them.
She was the head of the family, within contemplation of law.
The rule may sometimes work hardship to preditors, but in
some states it is well recognized.'
A childless widower or widow, supporting an aged parent
or other dependent having moral claims upon him or her for
support, may be deemed the head of a family, and entitled to
exemption on that ground;^ but, if entirely alone, some other
statutory foundation must sustain the claim for the privilege
if it can be sustained at all. So it is held pointedly that a
widower without children living with him, and having no
family, is not entitled to exemption of estate as the head of a
family.' After one's exemption right has ceased with the loss
of his wife and children, he may have a second family and be
entitled again to claim homestead.*
If, while he is still the head, having minor children living
though his wife be dead, he marry again, his second wife be-
comes a beneficiary in the homestead.' But if he have no
children, and the exemption right be lost, it cannot be regained
by a second marriage.^ Then he may again apply for a home-
stead. But it has been held that he cannot, if he have indi-
gent adult daughters : the old homestead being held still good
in such case.'
Though the debtor may not have been the head of a family
at the time judgment was rendered against him, it is held that
he may become such before or at the time of the levy under
the judgment and then successfully claim homestead free from
the lien. By marriage, between the time of the judgment
and that of the levy, the debtor may save his home.' But it
1 HoUoway v. Holloway (Ga.), 18 * Shore v. Gastley, 75 Ga, 813.'
S. E. 943; Capek v. Kropik, 129 111. 'Barfield v. Barfield, 73 Ga. 668 j
509 ; Riley v. Smith (Ky,), 5 S. W. Gresham v. Johnson, 70 Ga. 631 ;
.869; Moyer v. Drummond (S. C), 10 Hall v. Mathews, 68 Ga. 490; Bank
S. E. 953 ; Chamberlain v. Brown v. Shelton, 87 Tenn. 393.
(S. C), 11 S. E. 439; Lathrop v. As- « Wright v, James, 64 Ga. 533.
Booiation, 45 Ga. 483, distinguished. ' Torrance v. Boyd, 63 Ga.. 23.
2 Parsons v. Livingston, 11 la. 104. schafee v. Eainey, 31 S. C. 11 (dis-
8 Walker v. Thomason, 77 Ga. 683. tinguished from Jones v. Miller, 17
UNMARRIED BENEFICIARY. 79
has also been decided that a ;mortgagor cannot remove or
affect the lien he has put upon his property by getting mar-
ried and clothing the lien-bearing premises with homestead
inviolability.!
Debtors are usually held more stringently to their conven-
tional obligations than to others.^
§ 8. Unmarried Beneficiary.
Family headship is not limited to married persons. A
maiden aunt, protecting and providing for her dependent
nieces, has been recognized as the head of a family entitled to
homestead exemption.' So also a single woman who sup-
ported an invalid sister living with her.* She may need it as
much as her married sister, but her recognition as one entitled
to it, as above mentioned, is exceptional. She would not
generally be accorded the right; only where the statutory
provision plainly expresses or implies her inclusion among
beneficiaries, will she be allowed to claim homestead as the
head of a family. Why not ? Because the homestead policy
is not to bestoW charity but to conserve homes ; mostly, those
of parents and their children.
An unmarried, childless woman does not answer the usual
statutory requirement that one must be a householder at the
head of a family to become a homestead beneficiary.^ In some
of the states, the family relation may exist between her and
those whom she has assumed to support, even though there
be no moral or legal obligation on her part to do so ; but the
general rule is to the contrary. And the general rule applies,
of course, to a person of either sex.
S. C. 380, and Pender v. Lancaster, 14 tion, except as he voluntarily sur-
S. C. 25). renders his own. Gilmore v. Bright,
1 Wilson V. Scott, 29 O. St. 636. 101 U. S. 382 ; Fortune v. Watkins, 94
2 A husband, in North Carolina, N. C. 304; Reeves v. Haynes, 88 N. C.
cannot have his land taken from 310 ; Murphy v. McNeil, 83 N. C. 231 ;
him by sale for debt without his con- Bruce v. Strickland, -SI N. C. 367 ;
sent, if it was acquired before the Sutton v. Askew, 66 N. C. 172.
constitution of 1868 was adopted, if ^ Arnold v. Waltz, 53 la. 706.
he was married before that date. He * Chamberlain v. Brown, 33 S. C.
may have homestead allotted out of 597.
it and leave the rest of it exposed. ^Woodworthv.Comstock, lOAlIen,
His rights and those of his creditors 425.
are not impaired by that constitu-
80 FAMILY HEADSHIP.
An unmarried man may have a family living with him, and
he may be its head.^ He may be the guardian of minors liv-
ing with him, and be entitled to exemption ; in that capacity
he has been recognized as the head of a family.- Indeed, he
may be as important a factor of state citizenship as any mar-
ried man could be. His wards need rearing, need a home,
need a fatherly director : so his homestead protection comes
within the policy of the legislator.
An unmarried son has been recognized as the head of a family
when his mother lived with him and was supported by him.
In his case it was declared to be not essential to family head-
ship that the head be legally bound to support the members —
moral obligation being sufficient.'
Distinction has been made between the head of a family
and the head of a household. The former has the relation of
status, while the latter that of contract, it is said. The former
may be illustrated by a father with reference to his children ;
the latter by a master with reference to employees living in
his dwelling.''
Householder has been held synonymous with lieaci of a fam-
ily, in construing a constitutional provision granting the home-
stead privilege to either: so an unmarried man, keeping
house, with no children or dependents living with him, was
denied the privilege.* He was a householder, but not such a
one as the statute contemplated, according to the construction.
An unmarried man, with a family constituted in derogation
of law, has been held entitled to hold his homestead free from
liability to forced sale by creditors.* So, an unmarried woman
who supported her infant child.^
1 Moore v. Parker, 13 S. C. 487; » Calhoun v. "Williams, 32 Gratt 18.
Greenwood v. Maddox, 37 Ark. 658 ; Servants and employees do not com-
Wade V. Jones, 20 Mo. 75 ; Parsons pose a family. Garaty v. Du Bose, 5
V. Livingston, 11 la. 104. S. C. 493 ; Calhoun v. McLlnden, 42
2Rountree v..Bennard, 59 Ga. 629. Ga 405.
3 State V. Kane, 42 111. App. 42 ; « Gay v. Halton, 75 Tex. 203 ; Lane
Wade V. Jones, 20 Mo. 75; Con- v. Philips, 69 Tex. 240; m: parte
naughton v. Sands, 33 Wis. 391 ; Par- Brien, 2 Tenn. Ch. 33.
sons V. Livingston, 11 la. 326. '' Cantrell v. Conner, 51 How. (N. Y.)
* Murdock V. Dalby, 13 Mo. App. 47. 45 ; Ellis v. White, 47 CaL 78.
Compare State v. Finn, 8 Mo. App.
264.
UNMARRIED BENEFICIABT, 81
The word family, as used in the homestead laws, ought to
be understood to mean a legally constituted household. It
seems improbable that courts generally will recognize a man
as the head of a family who lives in immoral relations with
its members, and who is not bound by the ties of wedlock.
When the term family occurs it usually means a legally con-
stituted family. Always in homestead statutes- it means this.
"What sort of state policy would be promoted by the conser-
vation of illegally constituted households?
Accordingly it is held that an illegal relation between a man
and a woman will not render them a family, though they to-
gether occupy a dwelling ; but that the relation of marriage
makes the two a family.'
Were no distinction to be made between the good homes
which constitute, in the aggregate, the state itself, on the one
hand — and the bad ones where law is set at defiance and the
sacred names of marriage,' family and parental relation insulted,
the effect of homestead laws would not always be salutary.
An unmarried head of a family is not subject to all the re-
straints upon the alienation of his homestead that a married
beneficiary would be. If he wishes to mortgage his home-
stead, there is no wife to join in the deed, and he may legally
act alone.* Nor is the exemption accorded him so endurable,
on the other hand, as that of a married man, who can trans-
mit his honiie to his widow and children with the immunity
stamp still upon it. The bachelor's death lets in the cred-
itors.
A bachelor may donate his homestead, despite his creditors,
under the law that exempts such property for the benefit of
every " resident " who may claim exemption. But they can
seize what he leaves at his death. Leaving no wife nor chil-
dren, he leaves his property free from exemption, and his
creditors free to get their rights. " No one ever supposed
that, on the death of a landholder, having a homestead, leav-
ing neither minor child nor widow, the descent of the home-
stead is governed by rules different from those which govern
lEockv. Haas, 110 HL 538; Eyhi- erland, 14 Barb. 456; Stanton v.
ner v. Frank, 105 III. 336 ; ^aron v. Hitchcock, 64 Mich. 316.
The State, 37 Ala. 108 ; Gunn v. Gude- ^ Smith v. Von Hutton, 75 Tex. 625 ;
bus, 15 B. Mon. 447 ; Griffin v. Suth- Lacy v. Rollins, 74 Tex. 566.
6
82 FAMILY HEABSHIP.
in the descent of other landed estate. All go to the devisee,
or heir, subject to a prime and paramount liability for the
debts of the ancestor." '
Where the statute did not require family headship, but
secured homestead exemption to the owner when the pre-
scribed quantity was " owned and occupied by any resident
of the state," the court said of it : " It does not restrict the
privilege of the homestead exemption to the case where the
' owner ' is a ' married man.' The statute speaks of the ' owner,'
'resident,' 'householder,' as descriptive of the persons who
are entitled to the benefit of the exemption. A man may be
an ' owner,' ' resident ' and ' householder ' without being mar-
ried. A single man may own property, reside upon it, and
have a family occupying the house with him. The next sec-
tion shows most clearly that the legislature did not intend to
confine the privileges of the homestead exemption to married
men. For it declares that a mortgage or other alienation of
the homestead by the owner thereof, if a married mem, shall
not be valid without the signature of the wife. This clearly
and obviously recognizes the case where the owner of a home-
stead is not a married man. In that case, the disability does
not apply.
" In this case, the plaintiff was a widower ; his children were
all married and away from home. But he was actually occu-
pying the premises in dispute. It appears that he Tiad rented
them, but boarded with his tenant, and had his bed in the
house, and slept there." So the court accorded him home-
stead.^
The statute was exceptional, and the decision is therefore
not of general authority. Is it in accord with prior decisions
of the same court ? '
§ 9. Lack or Loss of Family.
Family protection and conservation, for the good of the
state, being tjie general policy of the homestead legislation,
isolated persons and groups of persons not bound by the house-
1 Fellows V. Lewis, 65 Ala. 343, ' See Bunker v. Locke, 15 "Wis. 635 ;
356-7. Platto v. Cady, 13 "Wis. 465 ; Phelps
2 Myers v. Ford, 38 "Wis. 134, d.ting v. Rooney, 9 "Wis. 80.
R. S. of "Wis., oh. 134, § 33.
LAClC OE I-OSS OF FAMILY. 83
hold tie are excluded from the benefits. "While all the mem-
bers of a legally constituted family are beneficiaries, the law
looks to their representative as the one to whom the privilege
of accepting the conditions is accorded. And, since family
headship is an indispensable condition in most of the states,
the owner and occupant of a dwelling cannot have it set apart
as inviolable from the date of dedication, or claim exemption
from execution after judgment, when that condition has not
been observed. A person without family cannot become a j
beneficiary under the prevailing system of homestead.'
If more than one family reside together, each retains the
homestead character, and the head of one cannot be the head
of all as declarant of a homestead for all. It would be absurd
for several indebted householders to be protected from their
respective creditors by virtue of the homestead declaration of
one of them.
Some of the statutes expressly provide that dependent rela-
tives within a specified degree may be considered as members ,
of the family of one who supports them, though he have no
wife nor child. An adult sister, aged grand-parents, orphan
grand-children and others may thus become beneficiaries of
of homestead under the headship of their supporter who
would not be in lack of family. There must be a family of
some sort, legally recognized as such, under the prevalent
system. It is superfluous to say that one having no family
cannot have the headship of one.^ Thus a widower, with no
household but his housekeeper, is not the head of a family.'
When the family, constituting all the beneficiaries required
by the homestead provisions, has ceased to exist, the late
homestead has been held open to creditors.''
1 Ellis V. Davis (Ky.), 14 S. W. 74 ; * Abercrombie v. Alderson, 9 Ala.
Woodworth v. Comstock, 10 Allen, 981 ; Lynch v. Pace, 40 Ga. 173 ; Cal-
425 ; Lynch v. Pace, 40 Ga. 173 ; houn v. McLendon, 43 Ga. 406 ; Gunn
Keiflfer v. Barney, 31 Ala. 196 ; Aber- v. Gudehus, 15 B. Mon. 453 ; Bowne
crombie v. Alderson, 9 Ala. 981; v. Witt, 19 Wend. 475; Wilson v.
Whalen v. Cadman, 11 la. 336; Cochran, 31 Tex. 677; Barnes v.
Wilson V. Cochran, 31 Tex. 677. The Rogers, 33 111. 350 ; Woodworth v.
same rule was applied to chattel ex- Comstock, 10 Allen, 425 ; Whalen v.
emption. Bowne v. Witt, 19 Wend. Cadman, 11 la. 336.
475 ; Gunn v. Gudehus, 15 B. Mon. 3 EUis v. Davis (Ky.), 14 S. W. 74.
453. * Givens v. Hudson, 64 Tex. 471 ;
84
FAMILY HEADSHIP.
Homestead privileges and immunities cannot be acqui/red
by one who has no family, under a statute according them to
the head of a family ; but when once acquired, they may be
continued after the loss of all the members of the household,
by the liberal provisions of some of the states. Such provis-
ions are found, not in the sections conferring the benefit orig-
inally, but in those of the states relative to survivorship, the
descent of homestead estates, the disposition of the exempt
property after divorce, and the like ; or, the continuance of
the benefit in a single person may be found in the construc-
tion given by the courts to the statutory enactments on those
subjects.
If there is no provision, either expressed or implied, that a
homestead once legally dedicated shall be lost to the owner
by the loss of his family, the courts do not invariably hpld it
thus lost.
It can never be proper to speak of one as the head of a
family who has no member of it left to him. Manifestly it is
a contradiction of terms to say that one person, living habit-
ually alone, is the head of a family. So, when we find the courts
saying that he is, we should take their meaning rather than
their literal statement ; and we shall find that the holding is
that one who acquired homestead while he was a veritable
head of a family does not necessarily lose it when bereft of
all its members.
For instance, when it is said that the childless widow of a
householder,' or a childless widower,^ or a divorced husband
without the care of his children,' is each the head of a family,
entitled to exemption, we must take the meaning rather than
the literal declaration.
A husband, divorced at the suit of his wife, with no children
residing habitually with him, was still considered as the head
of a family entitled to homestead. Whether he or she had
Burns v. Jones, 37 Tex. 50 ; Petty v. right Davis v. McCartney, 64 Tex.
Barrett, 37 Tex. 84 ; Duke v. Reed, 64 584
Tex. 705 ; Inge v. Cain, 65 Tex. 75 ; i Bradley v. Eodelsperger, 8 S. C.
Stewart v. Mackey, 16 Tex. 56 ; Lee 336 ; Leake v. King, 85 Mo. 413 ; Floyd
V. Kingsbury, 13 Tex. 68. Community v. Mosier, 1 la. 513.
property is open to creditors when all * Parsons v. Livingston, 11 la. 104.
holding homestead right in it have ' Woods v. Davis, 34 la. 264
died or become of age or lost the
JLACK OE LOSS OF FAMILY.
85
been at fault was treated as immaterial, and the homestead
right was thought to be the same as it would have been, had
the marriage relation been dissolved by death.^ And when it
has been dissolved by death, the surviving husband has been
deemed the head of a family, though living alone.^
To the same effect, it has been held that the status of head
of a family, such as that of a husband and father, is not lost by
the loss of all the members.'
The theory, that homestead is not meant for the family but
" for the householder and his family," has been understood to
recognize him as a sole beneficiary when he has ceased to have
a family — just as though the benefit were expressly granted
to him independently of the family relation. This theory,
though contrary to the general policy of homestead legisla-
tion, which is to conserve families for the good of the state
(a purpose which cannot be repeated too often), finds color of
warrant in a state constitution which ordains that the general
assembly shall prescribe how the householding head of a fam-
ily shall set apart a homestead " for himself and family." * This
has .been construed to mean that the householder, after the
loss of his family, has yet the right to retain the homestead.*
While the family continues, the homestead is not! lost by a
change of state constitution.* That is, if homestead is author-
ized, or not inhibited, by the new organic law, and the statutes
are continued in force, the old homestead remains unaffected.
All homestead laws are repealable, however, as the privilege
granted is not a vested right ; that is, there is no contract be-
tween the beneficiary and the state arising upon his compli-
ance with the required conditions.
• Zapp V. Strohmeyer, 75 Tex. 638. 264 ; Wilkinson v. Merrill, 87 Va. 513 ;
2 Taylor v. Boulware, 17 Tex. 77; Blackwell v. Broughton, 56 Ga. 393.
Kessler v. Draub, 53 Tex. 579 ; Blum < Va. Const, art. XI, § 5.
V. Gaines, 57 Tex. 119. ^ Wilkinson v. Merrill, 87 Va. 513,
3 Rollings V.' Evans, 33 S. O. 316 ; overruling Calhoun v. Williams, 33
Kessler v. Draub, 53 Tex. 575 ; Taylor Gratt. 18.
V. Boulware, 17 Tex. 74 ; Silloway v. * First N. Bank v. Massengill, 80
Brown, 13 Allen, 34; Doyle v. Co- Ga 833 ; Van Horn v. McNeill, 79 Ga.,
burn, 6 Allen, 71 ; Parsons v. Living- 131 ; Stephenson v. Eberhart, 79 Ga.
ston, 11 la. 104 ; Stewart v. Brand, 117, distinguishing Skinner v. Moye,
S3 la 477; Woods v. Davis, 34 la. 69 Ga. 476, and City Bank v. Smisson,
73 Ga. 423.
86 FAMILY HEADSHIP.
A widower, who had a family when his homestead right
was created, was held to have that right unimpaired by the
loss of his wife and children by death and marriages, while ho
continues to occupy the premises. This, though previously
held elsewhere as has been shown, was recently decided for
the first time in a state whose statutes provide that every
bona fide housekeeper with a family resident in the common^
wealth shall hold land, etc., exempt from execution to the
amount of one thousand dollars, and that the exemption shall
continue after the death of the debtor for the benefit of his
widow and children, or for the use of the surviving husband
and children, when the deceased wife was the owner .^ The
court said : " Considering the entire act, and the spirit which
led to its enactment, it seems to us its only reasonable con-
struction is that, while the having of a family is necessary to
the creation of the homestead right, it is not necessary to its
continuance." And previously : " Can it well be supposed that
the legislature intended that, in the event of the death of the
wife, owning the homestead, the benefit of it should continue
to the husband during his occupancy, although he has no
family, and yet that if he be the owner of it, and his wife and
children die, or the latter marry and leave him, his right to
the exemption ceases?" Then, calling attention to the sur-
|Vivor's right of homestead, the court inquires, " "Why should
not the original owner have a right equal to the survivor, and
why should not the law favor the latter equally at least with
the former? Is the party to be worsted because he owns the
property? Can any reason be given why the same right
should not exist as to his own property as is given to him in
his wife's property after her death? Ought not a claim to a
homestead in his own property, as against his own creditors,
to be as much regarded as his claim to one in her property
after her death? The construction here contended for by the
creditor should not be given to a statute which was enacted
from a spirit of liberality toward the debtor." ^
It will be noticed that this construction was based on the
prevalent idea that homestead laws are to favor the debtor for
his own sake — not to conserve family homes for the welfare
1 Gen! Stat. Ky., ch. 38, art 13, §§ 9, 2 StultB v. Sale (Ky.), 17 N. W. 14a
18, 15.
LACK OK LOSS OF FAMILY.
87
of the state. The better idea seems to be that expressed by
the court in anothei^ part of the opinion : " It is no doubt also
true that the primwry object of the statute was the pr'otectAon of
families from, wamt and the giving of them a shelter.''^ This
must be for their conservation for the good of the state, else
there is an invidious distinction in a charity against those
who have no families. This matter was noticed when consid-
ering the policy of the homestead laws, in the first chapter
herein. The decision follows older ones in other states, and
there is no purpose to controvert it in this place.'
It is a very different case when a husband has been divorced
and he yet has minor children living, and yet occupies his
homestead to which they may return though now living with
their mother who has been granted the custody of them. He
still has a family and he is the head of it, though literally liv-
ing alone. The policy of the state favors family life and its
perpetuity : so it comports with the genius of homestead leg-
islation to protect the home that is awaiting its inmates under
the present care of the household head. The judicial award-
ing of the minor children to the wife and mother, on the
granting of the divorce, is not necessarily a breaking up of the
family forever. It is likely to prove such, but the decree does
not, in letter or spirit, inhibit the return of the children to the
hearth-stone of the father, with the mother's consent. The
divorce does not interfere with the descent of the father's home-
stead to his minor children, in case of his death, when he has
occupied the premises and preserved its exempt character till
that event. The divorced wife, as guardian of the minors,
may petition to have the father's homestead accorded them
upon his death. And this is so, though the wife may have
had life-estate in land assigned her at the time of the divorce
as well as the custody of the children.
The foregoing paragraph will not be received as law every-
where, but it briefly presents the points of the case now cited.*
1 The court cited the case of Sillo- Brooks v. Collins, 11 Bush, 623 ; Ellis
way V. Brown, 13 Allen, 30 ; Kimbrel v. Davis (Ky.), 14 S. W. 74
V. Willis, 97 111. 494 ; Kessler v. Draub, 2 Hall v. Fields (Tex.), 17 S. W. 82.
52 Tex. 575, and others, on this point ; In this case the divorced mother of
and relative to the cessation of family minors prayed, as their guardian, to
headship, with respect to homestead, have the deceased father's homestead
88
FAMILY HEADSHIP.
§ 10. Claiming After Loss of Family.
One who never claimed homestead while he had a family,
nor ever had homestead right vested in him by operation of law
as the head of a family, is unable to comply with all the con-
set apart for their usa After a long
statement of the facts, the court said :
"Mrs. Hall, by reason of the di-
vorce from her husband, could not
assert and did not assert any claim
for herself to the homestead of her
late husband, E. C. Hall. Duke v.
Reed, 64 Tex. 713 ; Trawick v. Har-
ris, 8 Tex. 312 ; Earle v. Earle, 9 Tex.
630; Sears v. Sears, 45 Tex. 557. She
was the duly-constituted guardian of
the minors, R E. Lee Hall and Elma
Hall, the children of herself and her
said husband, and in this capacity
made the application to the county
court iu the estate of said E. 0. Hall,
administration of which was therein
pending, to have the homestead
which he was occupying at his death
Bet apart for the use and occupation
of said minors. , This proceeding was
proper. The minors could have as-
serted no right to the homestead ex-
cept through a guardian.
" The land was the homestead of
E. G. Hall, not only by use and occu-
pation thereof as such, but he was
protected therein by exemption from
forced ^le. A divorced husband liv-
ing upon land occupied and used by
him as a homestead at the time of
the divorce, and set apart to him in
the division of the property between
himself and his wife when the mar-
riage was dissolved, may claim its
exemption from forced sale as the
head of- a family, although the chil-
dren do not reside with him, and no
matter whose fault occasioned the
divorce. Zapp v. Strohmeyer, 75
Tex. 638; 13 S. W. Rep. 9. Cases
have arisen for determination as to
who are constituents of a family
when persons are found living to-
gether not bound by near ties of
relationship, and rules have been
prescribed for determining whether
or not a particular aggregation of
individuals constitutes a family. In
Rooo V. Green, 50 Tex. 488, the gen-
eral rules deduced from the author-
ities are enunciated. From the re-
lationship of minor children to their
father we can have no doubt, under
our present constitutiori and laws,
that it is not necessary that the chil-
dren should reside with the father at
the time of his death to entitle them
to a light in his homestead. It is
not so required by the constitu-
tion. Const, art 16, § 53.1 By the
Revised Statutes (art 1993), the ex-
empt property must be set apart ' for
the use and benefit of the widow
and minor children, and unmarried
daughters remaining with the fam-
ily of the deceased.' Adult children,
including unmarried daughters who
do not remain with the family of the
deceased, do not share in the exemp-
tions; but the widow and minor
children do, although they may not
be with the deceased. That the chil-
dren were awarded by the court, in
the divorce proceeding, to the cus-
tody of their mother, can and ought
to make no difference. Their father
was still legally bound for their sup.
1 Const Tex., art 16, § 53 : " On the death of the husband or wife, or both,
the homestead shall descend and vest ... as other real property of the
deceased, . . . but it shall not be partitioned among the heirs . . .
BO long as the guardian of the minor children . . . may be permitted
under order of . . . court ... to use and occupy the same."
CLAIMING AFTKK LOSS OF FAMILY.
89
ditions to acquisition after he has ceased to have a family.
The conditions of property ownership and occupancy he may
still be able to satisfy, but family headship would be wanting.
There has been a good deal of doubt and misunderstand-
port, and it would be a double mis-
fortune to them to be deprived, on
account of the unhappy termination
of the marriage of their father and
mother, both of their right to the so-
ciety and protection of the father.
The home of the mother may be of
little value, and poverty may compel
her to sell or incumber it ; then where
could the childi-en go more pi-operly
for relief than to their father's home?
It has been held not necessary to the
existence of the homestead right
that the family should remain on
the land. To use and occupy the
homestead within the meaning of
the constitution does not require a
residence upon it. Foreman v. Me-
roney, 63 Tex. 738.
"There was no provision in this
case, in the division of the property
between Hall and his wife, for the
support and maintenance of the chil-
dren ; on the contrary, the division
was agreed on and expressly made
without reference to it, for their cus-
tody was left to the decision of the
court. It was given to the mothei-,
no doubt, because of their tender age,
which, required the care that only a
mother can give. They had no home-
stead rights as such in the home of
either their father or their mother.
At any time before his death the
father may have abandoned or sold
his homestead without affecting the
legal rights of his minor children,
and so the mother could seU her life-
interest in the eighty acres set apart
to her and the homestead which she
had bought in Sherman. It cannot
be said that, living with their mother
on a homestead belonging to her, the
children have a homestead, and con-
sequently cannot look to their father's
estate for one, when at any time the
mother may sell. Had she died
prior to her husband, and her home
had been set apart to the children*
then it might be urged with pro-
priety that the^ could not claim two
homesteads. But, their father being
dead, they will not be required to de-
pend on the contingency of home-
stead rights in their mother's estata
They have no home; they are the
minor children of a father, the head
of a family, who has died leaving a
homestead. The constitution is im-
perative in its command that it shall
not be taken from them so long as
their guardian 'may be permitted,
under the order of the proper court
having jurisdiction, to use and oc-
cupy the same.' The guardian will
be required to report annually to the
county court the condition of the es-
tate of the minors, showing their in-
come and cost of support and educa-
tion, and, whenever it may appear
that the use and occupation of the
homestead is no longer necessary, an
order will be entered requiring it to
be surrendered to the owners of the
fee. There is no limitation on the
right of the minors to the use and
occupation of the homestead with
their guardian, except the discretion
of the county judge, subject, of
course, to revision on appeal. No
issue as to the necessity of setting the
land apart to them has been made,
either by the pleadings or the evi-
dence, and the decision of the case is
rested squarely on the proposition
which we have stated as deduced
from the conclusions of the judge
who tried the cause below. We are
90
FAMILY HEADSHIP.
ing upon this subject, and decisions bearing upon it are seem-
ingly at variance with each other. All shades of view are
presented ; from the deepest to the most delicate.
The differences may be somewhat reconciled by noting, in
of the opinion that the minor chil-
dren of E. C. Hall have the right to
have the homestead set apart to them
for their use and occupation, although
their legal custody and residence
may have been with their mother on
a homestead belonging to her at the
death of their father ; and that the
court below erred in denying the ap-
plication of Mrs. Hall as the guardian
of said minors, unless E. C. Hall had
the right to dispose of the property
by will in such a manner as to defeat
the minors^ right of homestead.
' Every person competent to make a
last will and testament may thereby
devise and bequeath all the estate,
right, title and interest in possession,
reversion or remainder which he has,
or at the time of his death shall have,
of, in or to any lands, tenements,
hereditaments or rents charged upon
or issuing out of them, or shall have
of, in or to any personal property, or
any other property whatever, subject
to the limitations prescribed by law.'
Eev. St, art 4858. Such is our stat-
ute which authorizes a person to dis-
pose of his property by will. A will,
it will be observed, must be made
' subject to the limitations prescribed
by law.' We are aware that the su-
preme court has heretofore declined
to pass on this question. In Hudgins
V. Sansom, 73 Tex. 231 ; 10 S. W. Rep.
104, there was a will devising a large
estate. Mrs. Hudgins, the guardian
of the minor children, had been per-
mitted under order of the court to
occupy the homestead with her
wards. When the estate was ready
for partition, the court refused to
make partition of the homestead, and
on appeal to the district court the
same judgment was entered. There
was no specific disposition of the
homestead made by the will, but it
was embraced in the general words,
'all my real estate, wherever the
same may be situated.' It was held
' unnecessary in this case to consider
whether a testator could by will so
dispose of property used as home-
stead as to prevent the occupation
of it by a surviving wife or by guard-
ian with the minor children, under
perrpission of the proper court' And
in Little v. Birdwell, 37 Tex. 090,
Judge Moore said: 'We are not
called upon in this case to decide
whether a party can, by a testament-
ary disposition of his property, pre-
vent an appropriation of it being
made by the chief justice, as an al-
lowance to the widow and children,'
etc. The widow had made her ap-
plication when it was too late. More
than a year had elapsed, and the es-
tate had proved solvent and was
ready for partition. But in the case
of O'Docherty V. McGloin, 35 Tex. 73,
while perhaps not necessary to the
disposition of the case, it was said
by Chief Justice Wheeler that the
order setting apart the homestead
for the use of the widow and chil-
dren was certainly proper', irrespect-
ive of the disposition of the fee by
the will. And in the case of Run-
nels V. Runnels, 37 Tex. 518, where
the widow applied for her home-
stead exemptions in an estate where
the deceased had died testate, this
language is used : ' And since the
right of a devisee is certainly in-
ferior to that of a creditor, and only
equal to that of the heirs of an intes-
tate, it is an obvious consequence
CLAIMING AFTEE LOSS OF FAMILY.
91
each case, whether any right was vested while the family ex-
isted. After the loss of family, the late householder is al-
io v\'^ed to hold his homestead exempt, in states where he takes
as surviving spouse, or as the owner of an estate of homestead.
that the testator can, by will, impose
no insui)erable barrier to the asser-
tion of the widow's claim to the prop-
erty, in lieu of which the appellant
in this case is seeking an allowance.'
" Under the act of 1848 concerning
estates of deceased pereons, it has
been uniformly held that in case of
an - insolvent estate the fee to the
homestead vested, on the death of
husband or wife or both, in the re-
maining constituents of the family,
to the exclusion of the adult heirs,
and when the estate was solvent it
descended and was subject to parti-
tion as other property. Section 53 of
article 16 of the constitution of 1876
was doubtless intended for the ben-
efit of (he heirs, and shall we say the
devisees and legatees of a decedent,
by preventing the title from vesting
in the constituents only of the family
at the time of the death of the head.
But it also goes further, and protects
the survivor and the minoi' children
in the occupation and use of the
homestead, although the estate may
be solvent The hardship of making
partition of an estate against the in-
terests of the widow and minor chil-
dren when the estate is barely solvent
is apparent. Is there anything in the
language of the constitution that
would imply that the rule would be
different where there is a will? There
can be no reason for it, unless it
might be said that the law means to
leave the surviving husband or wife
free to dispose of all property at
pleasure. This, however, is not the
case, for, although the survivor, as
the-owner of the fee, may convey or
Incumber the homestead without re-
gard to the minor children living
thereon with him, yet, if he should
incumber it and die, the law would
interpose and set apart the home-
stead to the children, notwithstand-
ing the incumbrance. All contracts
are made with regard to the law ex- 1
isting at the time, and the law be-
comes a part thereof ; and a creditor
takes his chances on collecting his
debt during the life-time of the in-
cumbrancer. A surviving parent
may sell or incumber the homestead,
and the children have no right
thereto as such, that will prevent it ;
but, if he dies possessed of the legal
title, it becomes charged with all the
statutory exemptions even to the en-
tire defeat of the incumbrance. And
it can make no difference, so far as
public policy is concerned, whether
he died testate or intestate. Every
will executed by a testator is subject
to the law in force at the time of his
death affecting the property which is
devised by him. At common law the
right of the wife to dower could not
be defeated by the will of her hus-
band, and, if she was provided for in
the will in a manner inconsistent
with her right of dower, she could
elect whether she would take her
dower, or surrender that right and
take under the will as devisee. The
spirit of our laws from the earliest
days of the republiclias been to make
provision for the family on the death
of the head thereof. At first the
widow took the one-fourth, as under
the Spanish law, and, after this right
had been abrogated by the adoption
of the common law, subsequent laws
were enacted from time to time,
each extending and perfecting the
principle, which has steadily grown.
92
FAMILY HEADSHIP.
or (in some states) as one who acquired while he was the
head of a family by declaring, marking, recording or doing
whatever the governing statute required.
But where nothing is required to distinguish the homestead
There has been no limitation of the
right except that in favor of the own-
ers of the fee made in the present con-
stitution, which, while limiting the
rule in that respect, has extended it
with respect to the use of the home-
stead to the survivor and minor chil-
dren in solvent estates, as well as in
those which are insolvent.
"As said by Judge Gaines in the
case of Zwernemann v. Von Rosen-
berg, 76 Tex. 525 ; 13 S. W. Eep. 485 :
' The language " shall descen d and vest
as other property of the deceased "
was employed, we think, to deter-
mine the persons who should take,
and their respective interests, but not
the conditions which were to be im-
posed upon the inheritance.' And we
think, also, that it was not intended
to determine the manner in which
the homestead should descend and
vest in order to be preserved to the
family, whetlier by will or under the
statute of descent and distribution
The terms used will apply, whether
the deceased dies testate or intestate.
Though the language ' shall be gov-
erned by the same laws of descent
and distribution ' may apply to an in-
heritance where there is no will, yet
the language of the entire section,
taken together, does not exclude the
idea that it may apply both where
the property descends, in the absence
of a will, and where it vests under a
will. In the present case there is no
direct or absolute alienation by de-
vise of the land. It is, by the terms
of the will, to be sold under the di-
rection of the court, and the execu-
tor is made a trustee for the applica-
tion of the proceeds of the sale in the
manner directed therein. The dev-
isees, however, took vested inter-
ests, subject only to the use and oc-
cupation of the homestead, and the
administration of the estate in the
county court All of the estate of a
deceased person, whether devised or
bequeathed or not, except such as
may be exempted by law from the
payment of debts, is liable in the
hands of the devisees or legatees or
heirs to the payment of the debts of
the testator or intestate. The rights
of heirs and devisees or legatees are
equal; those of devisees can be no
greater than those of heirs; and,
whether the decedent died testate or
intestate, the rights of creditors are
not affected in all property not ex-
empt from execution. A will can no
more defeat the rights of creditors
than the course of descent cast at the
death of the intestate can. Nor can
a will affect the rights of the surviv-
ing husband or wife or the minor
children in property exempt from
execution, any more than it can affect
the rights of creditors in property not
so exempt
" The right of the minor children
to use and occupy the homestead
through their guardian is superior to
the right of the executor or the dev-
isees under the will, or the adult
heirs of an intestate, who take the
fee in the. land, or an interest there-
in, subject to the harden placed
thereon by the constitution and the
laws. It is not the policy of our law
to make any distinction in favor of
one who takes land by devise as
against one who takes as an heir.
Statutes govern in both cases. A
person may devise his property by
wUl to the exclusion of liis heirs, but
CLAIMING A.FTEE LOSS OF FAMILY.
93
from the realty, except occupancy ; and an occupant has not
manifested any design to hold his residence subject to the re-
straint which the homestead laws impose, while he had a
fa,mily — can he, upon losing his family, now for the first time,
claim exemption to defeat execution?
The decisions, which at first view seem to answer this ques-
tion in the affirmative, will be found to turn upon particular
statutes ; or to follow the erroneous assumption that the pol-
icy of homestead laws is to bestow charity upon impecunious
debtors ; or to uphold the novel rule that all homestead ques-
tions must be solved liberally in favor of the debtor regard-
less of the conditions on which the benefit is conferred ; or —
which is perhaps the most common — to turn upon the ques-
tion whether homestead is necessarily lost by the loss of family,
after having been once legally acquired.'
it must be done ' subject to the im-
itations prescribed by law.' We con-
clude that E. C. Hall, the father of
the minors, E. E. Lee Hall and Elma
Hall, did not have the right to dis-
pose of his homestead by will so as
'to prevent its occupation and use by
the guardian of said minors with
them under permission of the proper
court Counsel for appellee ask, in
the event the court should hold that
this cause was improperly decided
by the court below, and an erroneous
judgment rendered, that judgment
be not here rendered, giving the
guardian permission to occupy the
entire homestead during the minor-
ity of the children, but to remand
the cause for trial as to how much of
the homestead the guardian should
be permitted to occupy. There is
nothing left for the court below to
determine. Under the facts of this
case, it was the duty of the court to
set apart the homestead in its entirety
to the minors for their use and occu-
pation with their guardian. We
know of no law which would author-
ize the setting apart of a portion of
ithe homestead, and do not so construe
the constitution. It is treated as an
entirety, and is not subject to parti-
tion ' so long as the guardian of the
minor children of the deceased may
be permitted, under the order of the
proper court, having jurisdiction, to
use and occupy the same.' How long
she may be permitted to do this is a
question for determination hereafter
by the court, on proper application
made to it, showing that the reason
for such use and occupation no longer
exists, and whenever a proper case
may arise. We are of the opinion
that the judgment of the court be-
low should be reversed, and judg-
ment here rendered in favor of the
appellants, with direction to the dis-
trict court to enter the same as its
judgment, and to certify it to the
county court for observance."
Adopted by supreme court, June 23.
1891.
IBank V. Shelton, 87 Tenn. 393 (see
Tenn. Code, § 2940, M. & V.) ; Webb
V. Cowley, 5 Lea, 722; Meader v.
Place, 43 N. H. 807 ; Atkinson v. At-
kinson, 40 N. H. 249 ; Myers v. Ford,
22 Wis. 139 ; Beckman v. Meyer, 75
Mo. 333 ; Bradley v. Rodelsperger, 3
94 FAMILY HEADSHIP.
When the law protects from creditors the home of the head
of a family, and not the home of a single individual, it would
seem to be a very liberal interpretation indeed which would
give the protection to one living alone, having no family
whatever, present or absent. Yet it has been held that
when homestead right has been acquired by a head of a
. family, under a statute which limited the acquisition to " a
householder having a family," the right is not divested by the
loss of every inmate of the househald except him who had
been its head. This construction was supported by the re-
mark: "Any other construction would render a husband wh"D
had been deprived of his family by accident or disease, or by
their desertion without fault of his, liable to be instantly
turned out of his homestead by his creditors." ' Otherwise
stated, a different construction would hold the lone widower
to be not a " householder having a family," and therefore
liable to be made to pay his honest debts by the forced sale of
property not exempted by law.
" The reason assigned is not very satisfactory, or, at most,
is one to be addressed to the political departments of the gov-
ernment : so the decision seems to savor of what Jeremy Ben-
tham calls judge-made law," was said by a court that adopted
the interpretation.^ ^
S. C. 226 ; Kimbrel v. Willis, 97 III. particular provisions of the statutes
494 ; Redf ern v. Redf ern, 38 111. 509 ; governing when they vrere rendered.
Woods V. Davis, 34 la. 264; Byei-s v. i Sillovray v. Brown, 12 Allen, 34;
Byers, 31 la. 268 ; Floyd v. Hosier, 1 Doyle v. Coburn, 6 Allen, 71.
la 513 ; Greenwood v. 'Maddox, 27 2 Stanley v. Snyder, 43 Ark. 429.
Ark. 659 ; Zapp v. Strohmeyer, 75 And the following are cited as fol-
Tex. 638 ; Lacy v. Rollins, 74 Tex. lowing th.e Massachusetts cases : Bar-
566 ; Reeves v. Petty, 44 Tex. 251 ; ney v. Leeds, 51 N. H. 353 ; Webb v.
Burns v. Jones, 37 Tex. 50 ; Petty v. Cowley, 5 Lea (Tenn.), 722 ; Beckman
Barrett, 37 Tex. 84 ; Kessler v. Draub, v. Meyer, 75 Mo. 333 ; Taylor v. Boul-
52 Tex. 575. The Iowa statute de- ware, 17 Tex. 74 ; Kessler v. Draub,
clares that the surviving spouse, 53 Tex. 575 ; Blum v. Gaines, 57 Tex.
though childless, continuing to re- 119; Kimbrel v. Willis, 97 HI. 494.
side in the house used as a home- And the court adds : " A contrary
stead prior to the death of the other view was taken in Cooper v. Cooper,
marital partner, shall be deemed the 34 O. St. 488 ; Santa Cruz v. Cooper,
head of the family and entitled to 56 Cal. 339, and Gallighan v. Payne,
exemption. McClain's Code, § 3168 34 La. An. 1057, upon the maxim
et seq. The decisions, cited from that cessante ratione, cessat et ipsa
Massachusetts, New Hampshire, lUi- lex. Compare also Calhoun v. Will-
nois, Tennessee and Texas, turn on iams, 32 Gratt 18."
CLAIMING AFTEE LOSS OF FAMILY. 95
The court thus following the decisian first cited by it, not
only characterized it as judicial legislation, but also pointed
out, as explanatory of it, that " estate of homestead " was rec-
ognized where it was rendered. That it should have been fol-
lowed, after these concessions, seems singular : especially so,
in view of the vigorous dissent, of the Chief Justice. He
showed that, by the settled policy of his own state, " the
primary policy of the homestead laws " had " always been to
provide for the family, and that the protection which inures
to the benefit of the debtor himself " was " merely incidental." '
"Wherever the legislator has created homestead exemption
for the benefit and protection of families, and has made real
estate inviolable by execution when owned by the head of a
family, with restrictions as to the extent and value of the
favored home, and yet has not expressly or impliedly ex-
tended the benefit to solitary housekeepers, it is not for the
courts to interpose between the debtor and creditor, to ex-
tend the legislation. " The leading idea upon which the con-
stitution and statute are both predicated is the protection of
the family. To carry out this intent, the homestead of the
head of the family is protected from forced sale. . . . But
unless the person is the head of a family, the right of home-
stead cannot exist. And cannot the same person at one time
be the head of a family, and not at another? And if the
privilege is an incident to a certain state, and that state itself
ceases, why should not the incident fall with it? As the pri-
mary object of the law was the protection of the family, when
the family ceases to exist the reason for the privilege is gone ;
and why should not the privilege itself also cease? As the
end contemplated by the law can no longer be attained, why
should the means be preserved when they are no longer
wanted? As the law will not allow an individual the right
of homestead before he becomes the head of a family, why
should it allow him the right after he ceases to be such? The
only reason why the law will not allow it in the one case is
equally applicable to the other. "When an individual has not
been^ or has ceased to be, the head of a family, the law can-
not anticipate that he will thereafter become such in either
1 Stanley v. Snyder, supra, p. 435.
96
FAMILY HEADSHIP.
case. When he does in fact become the head of a family the
law protects him for their benefit. He is the representative
of the family. But where there is no family to protect, will
the law defeat the just claims of creditors for the purpose of
accomplishing no beneficial end ?
" It is true that he once had a family, and he also once had
protection for that family, but since the family has ceased to
exist the protection is not needed. . . . The privilege and
responsibility must go together. . . . The law does not
look to his past or future, but to his present condition." '
The position of the dissenting Chief Justice is well sup-
ported, if it be conceded that the claimant of a homestead was
seeking to acquire the exemption right now, for the first time,
after the loss of his family — not merely asserting a previously
vested " estate of homestead," or a previously vested " privi-
lege" upon his own property. Many decisions sustain the
principle that without existing family headship, the owner
and occupant of a home cannot acquire the homestead im-
munity.^ •
1 Quoted from Eevalk v. Kramer, 8
Cal. 66, in dissenting opinion of Cock-
rill, 0. J., in Stanley v. Snyder, 43
Ark. 435. He maintained that the
rule in Arkansas had been different
from that followed in the case from
which he dissented. He said : " As
long ago as McKenzie v. Murphy, 24
Ark. 155, Mr. Justice Fairchild, for
the court, said of a statute not mate-
rially varying from our present con-
stitutional provision in this respect,
that it intended an individual benefit
for the head of the family, that ' dis-
connected from the family, the head
of it was [is] entitled to no considera-
tion.' As late as Harbison v. Vaughan,
42 Ark. 539, the policy was re-afflrmed
in almost the same language. With-
out awaiting a change in the law, the
court now awards the debtor a home-
stead, not to protect his family
against the vicissitudes of fortune, as
was said in Ward v. Mayfleld, 41 Ark.
94."
2 Hill V. Franklin, 54 Miss. 632;
Taylor v. Smith, 54 Miss. 50 ; Meach-
am V. Edm'ondson, 54 Miss. 746 ; Black-
well V. Broughton, 56 Ga. 392 ; Heard
V. Downer, 47 Ga. 631 ; Hart v. Evans,
80 Ga. 330; Nelson v. Commercial
Bank, 80 Ga. 328 ; Barrett v. Durham,
80 Ga. 336; Van Horn v. McNeill, 79
Ga. 131 ; Calhoun v. McLendon, 42
Ga. 406 ; Gallighar v. Payne, 34 La.
Ann. 1057 ; Dobson v. Butler, 17 Mo.
87 ; Santa Cruz v. Cooper, 56 Cai 339 ;
Eevalk v- Kramer, 8 Cal. 66 ; Cooper
V. Cooper, 24 O. St 488 ; Inge v. Cain,
65 Tex. 75; Duke v. Eeed, 64 Tex.
705 ; Givens v. Hudson, 64 Tex. 471 ;
Davis V. McCartney, 64 Tex. 584;
Newland v. Holland, 45 Tex. 588;
Sears v. Sears, 45 Tex. 557 ; Wilson v.
Cochran, 31 Tex. 677; Stewart v.
Mackey, 16 Tex. 56 ; Earle v. Earle,
9 Tex. 630 ; Trawick v. Harris, 8 Tex.
313 ; Lee v. Kingsbury, 13 Tex. 68 ;
Green v. Marks, 35 111. 204 ; Barnes v.
Rogers, 33 lU. 290 ; McKenzie v. Mur-
CLAIMING AFTEE LOSS OF FAMILY. 97
The following case arose under a statute which provided
that " every citizen of this state, male or female, being a house-
holder and having a family," shall be entitled to homestead
exemption : ' A widower, without children, having a married
adopted daughter and her husband residing with hira, but no
other family, claimed that his dwelling was exempt. The court
said : " There are authorities which hold that a man who has
acquired a homestead exemption by reason of the fact that he
h^s a wife or minor children will not lose it by the death of
the wife and the attainment of majority and removal .of the
children. They rest upon the assumption that the homestead
exemption is an :estate which, once acquired, is not forfeited
by the act of God, or by circumstances over which the owner
has no control. We cannot assent to either the reasoning or
the result of these cases. i
" The homestead exemption is a privilege rather than an
estate. For the benefit of the family, the law exempts the
home of the family from the burden, which rests upon all the
other property, of being appropriated to the debts of the owner.
This immunity depends upon two contingencies: first, occu-
pancy as a home ; second, that the owner shall have a family:
When either ceases, the exemption is at an end." ^
A householder supported his aged parents, who, with him-
self, constituted the familj'^ of which he was the head. They
died, leaving him the sole occupant of the dwelling. Sued by
a creditor, he claimed exemption for his home ; but it was de-
nied him, for the reason, assigned by the court, that the home-
stead statute was for the benefit of the family — not to screen
a man from his creditors when he has no wife nor child nor
other dependent leaning on him for support.'
When a homestead has been set apart to the head of a
family, it continues inviolable while the family endures. The
phy, 24 Ark. 155 ; Ward v. Mayfield, Bowne v. Witt, 19 Wend. 475 ; Wha-
41 Ark. 94 ; Harbison v. Vaughan, 42 len v. Cadman, 11 Iowa, 226.
Ark. 539 ; Abercrombie v. Alderson, > Miss. Code of 1871, § 2135. (Same :
9 Ala. 981 ; Keiffer v. Barney, 81 Ala. Code 1880, § 1248.)
196; Calhoun v. Williams, 33 Gratt 2 Hill v. Franklin. 54 Miss. 633-5;
18 ; Gunn v. Gudehus, 15 B. Mon. 453 ; Taylor v. Smith, 54 Miss. 50 ; Meacham
He'aton v. Sawyer, 60 Vt. 495 ; Wood- v. Edmonson, 54 Miss. 746.
worth V. Comstock, 10 Allen, 435 ; ^ Calhoun v. Williams, 33 Gratt. 18.
Wiggin V. Buzzell, 58 N. H. 329;
7
08 FAMILY HEADSHIP.
i
family exists, though the children may have reached majority,
if the parents remain.^ Though the mother be dead, the
father with a second wife is still the head of the family and
the homestead secure. " All that a man has to do after secur-
ing homestead ... is to keep on being the head of a
family without break or interval." ^
The second wife, coming into the family while the first set
of children, or some of them, are yet minors, becomes its head
on the death of her husband, so that the exemption right con-
tinues without intermission, as there is no lack of family or
family headship.'
§ 11. Comment.
The true rule is, follow the statute. When a privilege is
granted upon conditions, most assuredly it is not granted
nakedly, with the terms disregarded. If the legislature has
granted nothing more than a conditional privilege, the courts
should not construe the plain grant of it into the creation of
an estate. If homestead is secured against the hammer in
favor of the owner provided he is its occupant with a family,
that is not to be expounded so as to protect a widower or
bachelor, without an inmate of his dwelling except himself,
from the ordinary course of law. And a wrongful exposition,
to the effect that one man is a family, cannot be strengthened
by repetitions. For a family necessarily embraces more than
one person. A legislature cannot make one person to be two
or more by any enactment nominally to that effect. It has
no jurisdiction to change the law of numbers — no power to
vary the multiplication table which must be ever the same
throughout the universe.
The weight of authority is decidedly against the right of
claiming homestead or acquiring the privilege of exemption
by any one who does not compljr with the condition of family
headship. Putting aside the subject of the continuance of the
right, after the loss of family, when it has already been ac-
quired, the right by survivorship, the widow and orphan's
1 Hart V. Evans, 80 Ga. 330 ; Van 336 (explaining Newsom v. Carlton,
Horn V. McNeill, 79 Ga. 131. 59 Ga. 516).
2 Nelson v. Commercial Bank, 80 3 Dismuke v. Eady, 80 Ga. 289.
Ga. 828 ; Barrett v. Durham, 80 Ga.
COMMENT. 99
homestead, and all the exceptional provisions of statutes which
do not require family headship, it may be considered settled
that the condition is indispensable when homestead is to be
acquired.
And the authorities so holding are well supported by reason.
1st. Unless the legislator can thrust the homestead obli-
gations upon a property holder without his consent, there
is nothing to show, that a householder has accepted the con-
ditions, under which the privilege of exemption is granted,
during the time he had a family, if he appears in court
to claim them after his family has ceased to exist. This
applies in states where no dedication is required. How can
the court know that the claimant has ever been under any re-
straint as to the alienation or testamentary disposition of the
real estate on which he lived with his family and now lives
alone? Is he to have the privilege without the burdens?
Leaving out of view the exceptional states which impose no
onerous conditions, we may confidently conclude that one
who did not put his home under the restraints of the home-
stead law while he had a family cannot assume that his ex-
emption right was acquired during that time and may be
asserted for the first time after being left alone, that he may
defeat his creditors.
2d. Where dedication and recording are required but have
not been observed, and the family has ceased, he who was
once the head of it cannot set up homestead to defeat credit-
ors, because they have trusted him without notice. Creditors,
looking upon the " Homestead Book," or the margin of the
recorded deed, or the deed itself where that must show the
existence of the exemption, may well conclude that the man
they propose to trust has not placed his property under the
restraints, and secured for it the iminunity, which the home-
stead law authorizes. It would therefore be unjust to allow
the debtor to claim exemption after judgment, — not to shield
his family of which he is bereft but merely — himself.
3d. The homestead immunity is not to protect single per-
sons, but families. It is not to protect the head of a family
in his individual capacity but as a member of the household
which he represents. It is secondarily for the family's sta-
bility — primarily for the good of the state. So, when the
100 FAMILY HEADSHIP.
family is gone, t^he reason for allowing its late head to acquire
this immunity is gone.
The statutes generally accord the right of acquiring the im-
munity, by compliance with conditions, to every owner of a
residence who is the head of a family. Some of them offer it
to every debtor and his family, though they hardly mean to
include him without it. But homestead laws generally offer
their conditional benefits without reference to the monetary
condition of the acceptor. Eich and poor are alike included,
though not the homeless poor.
The property qualification must exist, but the benefit of
these laws are offered to the non-indebted as well as to the
indebted, whose families might be unhoused by reason of fut-
ure indiscretions, misfortunes or losses of the husbands and
fathers but for the restraints which are imposed on aliena-
tion, testamentary disposition and execution. Take the family
away, and what motive is left the state for interfering be-
tween debtor and creditor? If any, it certainly is not family
conservation.
ith. There is no more reason for assigning lost family as a
ground for acquiring, than in assigning discontinued occu-
pancy, forfeited title, or any formerly existing qualification of
which the claimant might once have availed himself, but did
not. The aged widower, left alone in the world, needs to be
sheltered — not more than the aged woman who has never
had a family. Both may be proper objects of charity, but
homestead laws are not charitable enactments — their benefi-
cence being incidental. So, the argument that the ex-house-
holder needs charity may be as plausibly applied to the im-
pecunious spinster. Because he has had a wife and children,
is his need necessarily greater than hers?
No one would contend that because a man has kept house
with his family in a given dwelling, he can subsequently claim
homestead there when not occupying it. If he did not acquire
the immunity right during occupancy, he cannot after aban-
donment. As a general rule, if he did acquire, he lost by
abandonment. So, by parity of reasoning, if he did not ac-
quire while he had a household, he cannot after he has lost it.
Though a divorced husband may retain the homestead, or a
divorced wife may do so, under the judgment divorcing them ;
COMMENT. 101
and though a deserted spouse may still continue to enjoy the
privilege, yet a homestead cannot be originally acquired by a
divorced person who is without a family ; nor by a deserted
or deserting spouse unless family headship is legally in such
person claiming homestead originally.
Judgment was obtained against an unmarried man (who
was not a householder or head of a familv within the sense
of the term as employed in the homestead law),^ who some
eight years afterwards, when he had become married, claimed
by recorded deed a homestead m a tract of land subject to the
lien of the judgment. The court held the lien a vested right
of the judgment creditor, not subject to divestment by the
owner's change of status. The constitution excepted mort-
gages, deeds of trust, pledges and other securities, bearing on
the property when the exemption attached, from the opera-
tion of the exemption.^
It has been seriously.questioned elsewhere, however, whether
a debtor may not have homestead despite the lien fixed before
his marriage on the realty which he selects; — homestead that
will stand good against those holding liens upon it validly
acquired when it was not a homestead.' And it has been
decided that a , debtor, on becoming married, may select his
homestead free from ordinary debts existing before his mar-
riage. The reasoning of the court to support the position is
that the law giving the creditor his remedy and the law giv-
ing the debtor his exemption may be deemed as entering into
the contract creating the debt. The creditor knew that the
debtor might wed and thus avail himself of the exemption
provision.*
1 Calhoun v. Williams, 33 Gratt. 18. 3 Dye v. Cook, 88 Tenn. 375 ; Pen-
2 Kennerly v. Swartz, 83 Va. 704 der v. Lancaster, 14 S. C. 35 ; S. C, 37
(Hutcheson v. Grubbs, 80 Va. 331, Am. Eep. 730.
Code of Va. (1873), *^Ib.; North v. Shearn, 15 Tex. 175;
ch. 183, § 5, Trotter v. Dobbs, 38 Miss. 198.
CHAPTER IV.
OWNERSHIP.
1. Title Not Conferred by Law.
2. Property Qualification of the
Claimant
3. Clharacter of the Title.
4. Leasehold and Various Titles to
Parcels.
5. Life Estate.
6. Equitable Title.
7. Titles of Husband and Wife.
8. Mutual Interest of Husband and
Wife.
g 9. Title Void or Fraudulent.
10. Joint Tenancy and Tenancy in
Common.
11. Undivided Interest — Co-ten-
ancy.
12. Exemption of Undivided Inters
est.
13. Co-tenancy of Husband and
Wife.
14. Partnership Property.
§ 1. Title Not Conferred by Law.
The state bestows no homestead property on anybody. It
interferes with no man's title. It protects what he already
owns, under conditions and with limitations. It does not cre-
ate the homestead system as a charity. It does not confer
shelter and hearth-stone upon the houseless poor. It does not
distinguish between the poor and the rich in its policy for the
conservation of existing homes. It does not confine itself to
the shielding of the debtor from the creditor, as is popularly
supposed, except in a few states.
The homestead right has been called an incumbrance upon
land. The term is doubtless misapplied, but the right oper-
ates something like an incumbrance quoad creditors.
So it is held that, by the carving of homestead out of land,
the incumbrance is thus put upon it, but the title remains as
before. The owner (or the husband and wife, when one is the
owner, under statutory provision) may mortgage or sell the
property ; but the creditor cannot, while the homestead right
exis^ts, for he encounters the incumbrance or obstacle which
the law puts in his way by creating exemption.*
The homestead estate terminating when the beneficiaries
die or complete their minority or cease to compose a family,
1 Rutledge v. McFarland, 75 Ga. 774.
PEOPEETT QUALIFICATION OF THE CLAIMANT. 103
the property on which it was established reverts to its owner/
it is held. Eather, it is ipelieved of restraint; for the estab-
lishing of a homestead does -not give the owner a greater or
different title from what he had before. His clear, unincum-
bered title remains clear. His title, burdened with property-
debts, remains burdened. And, after the establishment, the
property continues liable to forced sale for debts of that char-
acter.^ " There is no magic by which superior liens are thrown
off, or deficient titles made perfect." ' When homestead has
been assigned to an occupant, he must still stand upon the
merits of his right of ownership and possession. If he had no
title before, he has no color of title after such assignment.
There is no conveyance of land or land title in the dedication,
allotment or setting apart of homestead.*
"What the law does is to qualify the owner's rights under
his title so as to give, present protection to his wife and chil-
dren, and insure future protection to them after his death,
while they continue to need it. It confers no title upon him ;
it gives them protection rather than interest in his title.*
§ 2. Property Qualification of the Claimant.
It has been contended that the condition of -ownership may
be disregarded in the acquisition of the exemption right. But
it is imperative. Non-compliance with this requirement is as
fatal as non-occupancy, the having of no family, or the neg-
lect of dedication, where all these conditions are required by
1 Stephens v. Montgomery, 74 Ga. favor of a husband or parent or or-
833. phan minor children, free from forced
V 2 Newton V. Summey, 59 Ga. 397. sale for debts, etc. lb.; Holt v. Will-
3 Bleckley, J., in deciding above iams, 13 W. Va., 704. Rents not af-
cited case. feoted. Donaldson v. Voltz, 19 W.
* Keener v. Goodson, 89 N. C. 373, Va, 156, construing Code 1872-3, ch.
Grant v. Edwards, 86 N. C. 513 ; 193, § 6, and Const., art. 6, § 48. See
Gheen v. Summey, 80 N. C. 187; Keble v. Mitchell, 9 W. Va. 493 ; Hil-
Littlejohn v. Egerton, 77 N. C. ^19. leary v. Thompson, 11 W. Va. 113;
s The constitution of West Virginia Hartley v. Eoff e, 13 W. Va. 401 ; Beaty
does not confer a right to a home- v. Vrora, 18 W. Va. 391 ; Tremble v.
stead. Speidelv.Schlosser,13 W.Va. Herold, 20 W. Va. 603; Stewart v.
68.6. Const. 1873, art. 6, § 48, con- Stewart, 27 W. Va. 177, all reviewed
strued. It authorizes a homestead in Maran v. Clarke, 30 W. Va. 358,
law exempting f 1,000 of property, in on judicial sales of homesteads, etc.
104 OWNERSHIP.
statute. The last named is less generally required than the
others ; the family condition, and even occupancy, are not uni-
versal requisites; but ov^nership by some title is an essential
everywhere, required by every statute. And the absurdity of
allowing a claimant in another man's real estate where the
latter is privileged to claim it himself, the same moment, is
repulsive to common sense. Yet it has been argued that if
one claims homestead in another man's land, no ojtie but the
owner has any ground of complaint; that the claimant may
thus secure an exemption right which attaches to the land he
does not own, so that, if he should buy it afterwards, it would
be free from judgments entered against him betw^een the date
of his claiming exeniption and that of the purchase. It is
said : " By filing the declaration, the party indicates his inten-
tion to make the land his homestead, and, if he afterwards
acquires an outstanding title, it attaches itself to the home-
stead already acquired, and perfects the homestead right. If
it were otherwise, a homestead could not be secured which
would be safe against forced sales, unless there were at the
time a perfect fee-simple in the party who seeks the home-
stead right. In case of a title in any respect imperfect, the
claimant cquld not perfect his title to the homestead except
at the risk of losing it altogether, through the intervention
of a creditor, and by the very means adopted to render it
more secure ; and, under such a construction of the statute, it
would not be available to the greater portion of the class in
this state who need it most." Under this line of reasoning, it
was really held that a claimant may secure the homestead ex-
emption right in land that he does not own by any species of
title.i
Putting aside what is said about " a perfect title in fee," " a
title in any respect imperfect," and similar phrases ; and merely
saying, in passing, that homestead laws do not designate the
character of the ownership but merely require ownership of
some kind, one cannot telp noticing- the concluding remark of
the quotation. It is virtually this : " If the landless cannot se-
cure present exemption in land to be hereafter acquired, the
greater portion of the poor would have no homesteads." The
1 Spencer v. Geissman, 37 Cal. 99; Brooks v. Hyde, 37 Cal. 373.
PEOPEETY QUALIFICATION OF THE CLAIMANT. 105
idea is that the government should paternally confer home-
steads on all who need them most, whether they comply with
the condition of ownership or not. Subsequent compliance is to
retroact, by the law of relation, from purchase to the time of
the declaration, according to the gist of this decision. The
statute governing the court authorized no such retroaction.
Fallacy follows Irom the wrongful assumption that the
policy of the homestead legislation is not merely to protect
homes but to provide them ; or, in some way, help the poor to
homes. The following statement of the policy was made in
a state which requires ownership as a homestead condition (as
is done everywhere, ex necessitate, since the state cannot pro-
tect property when there is none to be protected) : " The
policy of the constitution and statutes is not restricted to' the
mere preservation of homesteads already acquired, but ex-
tends to encouraging their acquisition, in order to prevent and
avoid the unmixed evil and misfortune of a homeless popula-
tion ; ' and if we look beyond the essential characteristics of a
homestead — actual occupancy as a home, a dwelling place —
and enter upon an inquiry as to the tenure upon which the
right of occupancy depends, we are sure to contravene this
policy.'"^ From this statement of policy as a premise, the
court making it infers, not that a man unable to purchase a
homestead, from want of means, will be helped paternally by
the government (as some decisions go the length of virtu-
ally holding by their application of the law of relation to pur-
chases), but that one living in a rented house may have his
homestead there while improving purchased land adjoining as
an addition to his homestead. JSTo doubt. But this conclusioii
does not follow from the statement of the homestead policy.
It is unfortunate that that dictum was inserted into so good
an opinion.
Can real estate, occupied as a homestead, but not paid for,
be subjected to the payment of a debt created after the con-
tract of purchase, to the extent of the purchase-money paid
after the creation of the debt?
The question is asked with reference to the common statu-
1 Tyler t. Jewett, 83 Ala. 93, 99, quoting from Watts v. Gordon, 65 Ala.
546. ■
106 OWNEESHIP.
tory exemption of homesteads with debts antecedent to the
purchase excepted therefrom.^
"It seems to us," the court said in answering the question,
" considering the rights of creditors, the moral obligations of
debtors, and the reason for adopting the section [cited], the
word purchase was intended to be understood and applied in
the sense of acquisition of a homestead by fully paying for
it ; for ownership of land cannot be absolute, but is condi-
tional and held in trust for the vendor until the purchase
price is paid.^ . . . The underlying principle ... is
that the homestead of a debtor shall not be exempt from the
payment of any just debt or liability, except when he has paid,
or to the extent he has- paid, therefor prior to the creation of
such debt or liability. For there is no difPerence in principle
or effect between purchasing and paying for a homestead
with means that ought to have been applied to payment of a
pre-existing debt, and paying wholly or partially after crea-
tion of the debt, the purchase price of a homestead, even if it
was bargained for prior to the existence of the debt. In one
case as well as in the other the means used by the debtor to
pay for the homestead may have been obtained directly from
the creditor when the debt was created." '
A home place, occupied by a man and wife for twenty
years, was conveyed to him six months after her death. The
long occupancy created no presumption of ownership in the
face of the deed coming from one whom the surviving hus-
band recognized as the true owner by the very act of accept-
ing it.*
A husband Contracted to purchase ground, partly on credit.
The deed was to be given on his making the final payment.
He built a dwelling-house on the land, and occupied it, with
his family, as their home. His wife made and filed a declara-
tion of homestead on the property. The payments had been
made from the joint earnings of both, so far as made at all:
iGen. Stat, of Ky., ch. 38, art. 13, 537. Compare Griffin v. Proctor, 14
§ 16, under which the question arose. Bush, 571.
2 Citing Ins. Co. v. Curry, 13 Bush, < Holloway v. Mcllhenny Co. (Tex.),
313. 14 S. W. 340.
SMosely v. Bevins (Ky.), 15 8. W.
PEOPEETT QUALIFICATION 01? THE CLAIMANT. 107
SO whatever property right had been acquired belonged to the
community. The husband sold the house and assigned the
contract of purchase, without his wife's joinder — the vendee
making the final payment and receiving the title deed.
An action of ejectment was brought by this vendee to re-
cover possession of the house and lot. The wife claimed it as
homestead. The question was whether her husband had
transferred any legal right of property, without her consent
and signature; in other words, whether the property was
homestead.
Not having been paid for, the property was never owned
by the husband and wife; so she had declared homestead
upon property when she was wanting one of the necessary
conditions : ownership. Her husband had not the legal title —
only a contract to have it on payment of the price. This con-
tract he assigned to another, who complied witrh the essential
and received the title-deed. The ownership passed, by the
title, from him who had promised to convey to the husband
and wife on receipt of the price, to the assignee who did pay
it : so no homestead was ever owned by the occupants of the
property.
The husband, as head of the community, had the disposi-
tion of the property-right in the contract, just as though it
had been his separate property.' The equitable interest of
the community was at his disposal, since no homestead re-
straint of alienation forbade.
The ejectment suit was successful, on the view above pre-
sented of the facts stated. The transactions are declared fair
and free from fraud. The law imposes no obligation, on a
husband to his wife, to complete such a contract of purchase.
The imperfect obligation, if any, was not enforceable by her
against him in a court of justice. Only in foro consoientim,
could there have been any obligation, by him to her, so far as
the facts show ; and they do not show that there was any in
that — the highest court. " The husband had lawful right to
refuse to complete his purchase."^ The wife had no legal
ground of complaint. The legal title was in the person who
had made the executory agreement to sell, who was not bound
1 Cal. Civ. Code, § 173. Pac. 415 ; Snodgrass v. Parks, 79 Cal.
2 Alexander v. Jackson (Cal.), 35 55 ; Hicks v. Lovell, 64 Cal. 14
108 OWNEESHIP.
to convey the land till payment. He could not have been
compelled to do so, at the time the wife of the occupant made
the homestead declaration, which was therefore a nullity.'
He had not parted with the legal title till he gave it to the
plaintiff in the ejectment suit. The court was clearly right
in holding that the homestead claimed was fatally wanting
in the essential condition of ownership.'^ Where there is no
ownership, it follows most assuredly that the widow of the
occupant cannot have homestead assigned to her out of the
land.'
It has been denied that there can be homestead in a build,
ing, when the site is not owned. If the owner of it does not
own the ground on which it stands, he may move it off but
cannot hold it exempt from his debts, according to this view.*
§ 3. Character of the Title.
The statutes, which all require that the property shall be
owned by him who claims it as exempt from forced sale, do
not declare whether the title shall be absolute or qualiiied,
whether in fee or for life or a term of years, whether a free-
hold or a leasehold. There might be conflicting claims between
owners under differently charactered titles to the same land,
were it not for that other condition : occupancy. He who act-
ually occupies the premises, with his family, and makes it his
1 Snodgrass v. Parks, supra. had conveyed it and was a mere oc-
2 Alexander v. Jackson, supra. cupant. It would be a strange doc-
3 Berry v. Dobson (Miss.), 10 So. 45. trine that an owner of land could put
Campbell, J. : The appellant had no a family on each quarter-section of
right as to the land derivative from his land, and thereby place it beyond
her deceased husband, for he had no the reach of creditors, — his own and
interest in the land which. was trans- the occupant's, — which would re-
missible. He was not owner of any suit if the occupant could claim it as
estate in it He was but tenant at exempt. The appellant had no right,
will, and this tenancy terminated by virtue of of the conveyance of the
at his death. Homestead right is land to her, for her grantors had noth-
founded on ownership of some as- ing to convey. They had been ad-
signable interest in the land. It must judged against by the decree of the
be " owned and occupied." It may chancery court, and the appellant, as
be the lowest kind of estate, but it their grantee, was in privity with
must be an interest in the land. Code, them, and bound by the decree.
§ 1248 ; 9 Amer. & Eng. Enc. Law, Affirmed.
tit " Homestead." The husband had < Kuttner v. Haines, 85 111. Ap. 307 ;
no interest whatever in this land, but Browu v. Keller, 33 111. 151.
CHAEAOTEK OF THE TITLE. 109
and their home, under a legal right of possession, can find no
successful competitor for the homestead privilege in one who
holds a title different from his in kind, even though it be in
fee, which is not supported by occupancy.
The owner for life, occupying the premises lawfully, is the
lord of the manor while he lives, and the owner in fee-simple
cannot displace him. He can maintain it against all tres-
passers. In the absence of exemption immunity, his estate is
liable to creditors for his debts, and therefore a proper sub-
ject for the protection vouchsafed by the legislator to home-
steads.
So, the owner for years, with legal right of possession, actu-
ally occupjang with his family, is an owner within the stat-
utory meaning of the requirement that the homestead shall be
" owned and occupied." These terms are frequently coupled
together in the homestead laws. "When not, equivalent ex-
pressions are usually employed. But the character of the title
is never specified.
The law governing homestead ownership under the prevail-
ing system is stated very clearly, and with a near approach to
perfect accuracy, in the following excerpt from a judicial
opinion : " It was not contemplated, nor intended, by the term
' owned,' as employed in the constitution, that absolute own-
ership, or an estate in fee, should be essential to the valid ex-
emption of real property from the payment of debts. There
is no limitation to any particular estate, either as to duration,
quantity or extent. It is the land on which the dwelhng
place of the family is located, used and occupied as a home,"
which the constitution and statutes protect, however inferior
ttiay be the title, or limited the estate or interest ; not because
there is an estate or interest in the land, but because it is the
homestead, the dwelling place and its appurtenances. Protec-
tion of the estate or interest, of whatever dignity or inferior-
ity, is incidental to the preservation of the homestead, The
statute, adopting this construction of the constitution, ex-
pressly declares : ' Such homestead exemption shall be opera-
tive to the extent of the owner's interest therein, whether it
be a fee or a less estate.' An absolute or qualified ownership —
a fee simple or equitable estate, or for life, or for years —
meets the requirements of the constitution and statutes, and
110
OWNEESHIP.
effectuates their policy and purposes. Whatever right or claim
the debtor may have, which may be subjected to the payment
of debts, or is capable of alienation, falls within their operation,
and the homestead exemption may be successfully claimed,
except as against the true owner, or a superior title. The uses
to which the land is devoted, and not the quality and quantity
of the estate, impress the characteristics of a homestead. The
lot leased by the complainant was his homestead at the time
he contracted to purchase the lot in controversy, and contin-
ued such so long as he continued to lease, use and occupy it as
the dwelling place of himself and family." ^
The expression in the third sentence of this extract, that it
is " not because there is an estate or interest in the land,"
ought to have been qualified so as to read, " not only be-
cause — ■," since occupancy alone is not enough. Something
must be owned by some sort of title to render it susceptible of
exemption and protection from execution. The condition of
ownership cannot be overlooked, without error ; and from a
reading of the expression needing qualification in connection
with the context, it will appear that the learned judge did not
overlook it. There are remarks further on, in his opinion re-
specting the policy of homestead legislation, which, it must be
noticed, are not fully in accord with the recognition of present
ownership by some kind of title as one of the conditions upon
which homestead protection is offered.
There may be the case of one who has parted with his title
yet retains possession in such a way as to be protected as owner
quoad the creditors. Such a one was allowed to claim ex-
emption. He had donated his land after judgment for debt
had been rendered against him but had retained possession
and had continued to occupy it as his homestead. He inter-
posed his exemption claim to prevent sale under the judg-
ment, and the court allowed it — holding that no interest in
realty, beyond that which possession implies, is necessary to
sustain such plea against a lien inferior to the exemption
right. This would seem to recognize the validity of the
general lien but to rank it below exemption considered as a
lien or incumbrance. It will strike the reader at once that
1 Tyler v. Jewett, 83 Ala. 93, 98 ; Watts v. Gordon, 65 Ala. 546.
CHAEACTEE OF THE TITLE.
Ill
the claimant could have held no lien or incumbrance on his
own land. The implication of ownership from the fact of
occupancy is a position which appears to be better grounded.
If homestead right existed in the claimant and had not been
given up by the donation, the general judgment would not
have fastened any sort of lien upon the land under the law of
most of the states.^
1 Pendleton v. Hooper (Ga.), 13
S. E. 313. Bleckley, C. J.: "The
premises in controversy consist of six
acres, and are of the estimated value
of $400. Hooper was in possession
vs^hen the judgment against him vs^as
rendered, and has remained in pos-
session ever since. He parted with
the paper title by a voluntary con-
veyance made to several persons,
some of them minors, on the day the
judgment was rendered, and at an
hour subsequent to its rendition. The
lien of the judgment was made
neither better nor worse by this con-
veyance. Had he parted also with
possession, and never reserved the
same, his ownership of the property
would have been at an end ; but, as
he retained poksession, he is still the
owner against all the world except
his donees. They may choose never
to disturb him, or assert any title
against him. That possession of land
imports ownership is familiar law.
2 Bl. Comm. 196 ; English v. Eegis-
ter, 7 Ga. 391. Naked possession is
the lowest and most imperfect de-
gree of title, but it is nevertheless
enough to hold oflf creditors, where
exemption is claimed under section
3040 of the code, and where the
terms prescribed in sectiop 2041 are
complied with. Here there was a
compliance with these terms pend-
ing the levy, and while Hooper was
in possession. It is not disputed that
he was the head of a family, or that
he would be entitled to the exemp-
tion, if he had not divested himself
of all title except possession. But
he retained the very thing which the
law of exemption is solicitous to pro-
tect. It cares not how little interest
the debtor may have, so long as he
remains in its actual enjoyment
The exempt land is " for the use and
benefit of the family of the debtor ; "
so says the code. The exemption
does not depend on the quality or
duration of the estate which the
debtor has in the land. A tenancy at
will or at sufferance will protect it
from levy and sale as his property,
equally with an estate in fee-simple.
The exemption attaches to the land,
not merely to his estate in it Our
exemption laws do not cut up exempt
property into divers estates, but pro-
tect the physical thing as a whole
from the levy and sale, so long as the
exemption continues. Van Horn v.
McNeill, 79 Ga. 122, 138 ; 4 S. E. Rep.
111. Of course, it is not meant to say
that, if others have an interest in the
property as well as the debtor who
has claimed the exemption, the prop-
erty would not be subject to sale, so
far as their interest is concerned.
But a forced sale of an exempt
thing, whether it be land oi; person-
alty, cannot be made as the property
,of the debtor against his claim of ex-
emption, while he is the head of a
family, and holds possession, unless
the debt be one which for some rea-
son overrides the exemption. The
law devotes the thing to the use and
benefit of the family, as against the
ordinary rights of his creditors.
112
OWNEESHIP.
Briefly stated, the law in most states seems to be that in-
terest in land, with possession and exclusive right of posses-
sion, held under lease or any other title, gives the family
occupants the right to claim the benefit of homestead exemp-
tion.'
Manifestly, exemption relates to something which could be
sold under execution in the absence of it.^
If the claimant has any interest whatever in land, with the
right of possession, he may have it protected ; that is, it may
be exempted. Ifhe has none, what is there for the state to
protect? "What can the creditor get?
The possessor without right can be ousted only by the true
owner or some one having a right to possess ; ' but there mjist
be some estate upon which to build a homestead exemption
right.''
Though a building on rented ground, owned by the occu-
Some debts are superior to the ex-
emption right, but the one involved
in this case is not of that class. How,
then, can the land be consistently
treated as the property of the debtor
for the purpose of subjecting it to
sale, and not so treated for the pur-
pose of exempting it? The creditor's
lien being inferior to the debtor's
right to have the enforcement of the
lien suspended, of what concern to
the creditor is it that the debtor has
no title to the land, as against third
persons to whom he has conveyed it
by a deed of gift? Even were he a
trespasser relatively to his donees, he
would, while in possession, be owner
relatively' to his creditors. The court
below decided the case correctly.
Judgment affirmed."
1 Feldes v. Duncan, 30 III. App. 469,
475; "Watson v. Saxer, 103 111. 585;.
Deere v. Chapman, 25 111. 498. The
Act of 1873 gives an " estate of
homestead " in Illinois : the former
act gave mere exemption. Raber v.
Gund, 110 111. 581; Conklin v. Fos-
ter, 57 111. 107 ; Bartholomew v. West,
3 Dill. 393 ; Sears v. Hanks, 14 O. St.
301 ; Vogler v. Montgomery, 54 Mo.
584; Eandal v. Elder, 13 Kas. 261.
2 Conklin v. Foster, 57 la 107;
Randal v. Elder, 12 Kas. 361 ; Deere
v. Chapman, 35 IlL 498; Sears v.
Hanks, 14 O. St. 301 ; Vogler v. Mont-
gomery, 54 Mo. 584; Bartholomew
V. West, 3 Dill. 293.
3Foss V. Strachn, 43 N. H. 40;
Davenport v. Alston, 14 Ga 271 ; Mc-
Clurken v. McClurken, 46 111. 327;
Brown v. Keller, 82 111. 151 ; Brooks
V. Hyde, 37 Cal. 367; Spencer v.
Gejssnian, 37 Cal. 96 ; Mann v. Rog-
ers, 35 Cal. 316 ; Smith v. Smith, 12
Cal. 228 ; Calderwood v. Tevis, 23 Cal.
336.
i In Myrick v. Bill, 3 Dak. 284, S9S,
it is said : " The rule seems to be well
settled that while a very limited es-
tate in the land, perhaps a mere lease-
hold interest, may be sufficient to
support a claim of homestead, some
estate in the land is essential. There
can be no homestead right in a build-
ing alone, apart from the land on
which it stands. . . . Brown v.
Keller, 32 111. 153; . . . Daven-
port V. Austin, 14 Ga. 271." The
LEASEHOLD, AND VARIOUS TITLES TO PAECELg. 113
pant, is personal property ; and he, as lessee of the ground,
has the right to remove his house at the end of the lease, and
even though he should mortgage it as a chattel, it is his and
his wife's homestead while they keep their family home in it,
and therefore he cannot subject it to chattel mortgage with-
out her consejit.i
An easement, such as a railroad or common road, gas or
water mains, may be upon a homestead without affecting its
character as exempt property. The ownership is not affected.^
§ 4. Leasehold, and Tarious Titles to Parcels.
So far as leased property is susceptible of being conserved
as a home, by the protection afforded to dedicated homes in
general under the homestead laws, it is governed by the same
rules that apply to homesteads based upon property held by
more enduring titles.
The lease may have but a year to run, but the wife and
children of the lessee are interested in the preservation of
their temporary home, and therefore the general rules gov-
erning it are the same as those relative to a home held in fee,
so far as they are applicable.
As homestead may exist in an estate held by leasehold,
crops growing upon a leased plantation held and worked as a
rural homestead are exempt. If such a crop has been taken
and sold under execution, the lessee may maintain an action
for conversion ; and the title to the land on which the crop
was grown is not drawn in question.'
last sentence quoted does not state a 433. In this case, damages for con-
universal rula A house on leased verting a growing cotton crop were
ground may be that to which home- claimed. The plaintiff and appellant
stead exemption can cling, under alleged that his homestead consisted
some statutes ; and why not anywhere of sixty-five acres planted in cotton ;
unless real estate is made the only that he had a wife and seven children
nucleus of the right? A family may 'living with him on this sixty-five
live in a house on leased ground, acres of land, and that they had no
may need protection, and if the other home. That on 14th September,
head of the family owns the dwell- 1887, his growing crop of cotton on
ing, why may not homestead protec- this sixty -five acres of land, and about
tion be extended to it? a bale of seed cotton, which had been
1 Hogan V. Manners, 33 Kas. 551. picked therefrom, and was lying in
2 Randal v. Elder, 13 Kas. 357. the field, were levied on by a con-
3 Phillips V. Warner (Tex.), 16 S. W. stable by virtue of an alias writ of
314
OWNERSHIP.
A leasehold title, to a homestead enjoyed by husband and
wife, may be such as to require the signature of both to its
execution in favor of J. M. Warner,
appellee herein, against the appellant,
for the sum of $141.25, by said War-
ner's express direction, and on the
26th September, 1887, were sold at a
sum greatly less than their value,
which appellee received the benefit
of. That appellant claimed his cotton
as exempt, both at the time of the
levy and sale. Appellee answered by
a general demurrer, and specially
that the question of homestead was
raised, which the county court had
no jurisdiction to hear and determine ;
and that a growing crop of cotton on
a homestead is not, under the law,
exempt from forced sale. He further
answered by a general denial, and
that on the 28th January, 1886, in
the justice court, appellee recovered
a judgment against appellant for
$173.20, and on 14th September, 1887,
under an alias execution, the prop-
erty mentioned in plaintiff's petition
was levied on and sold as charged by
plaintiff. Appellee further pleaded
that the question of homestead title
and right was raised, and the county
court had no jurisdiction to determine
the case. On March 17, 1888, there was
a trial resulting in a verdict and judg-
ment in appellee's favor. A motion
for a new trial being overruled, ap-
pellant brings his case to this court.
The appellee's plea to the jurisdiction
was not maintainable. The title to
land was not involved in the issue to
be tried, as pi'esented in plaintiff's pe-
tition. The question was the exemp-
tion of the property seized, taken, and
converted. Appellant (plaintiff below)
did not own the land, but had it leased.
The court below appears to have held
that a leasehold would not support
a homestead and exemption claim,
under our constitution and laws. In
Wheatley v. Griffin, our supreme
court says: "The great current of
authority is to the effect that the
homestead right wiU attach to an
equitable estate, an estate for life, or
even a leasehold interest The au-
thorities bearing upon this subject
are given in sections 170-172, 174, 176,
Thomp. Homest & Ex., and these au-
thorities and the reasons given therein
are de&med conclusive of this ques-
tion." 60 Tex. 209. " Crops growing
on a rural homestead are exempt
from forced sale. The exemption
from sale of the homestead itself was
to enable the owner to support him-
self and family, and this object would
be defeated if the creditor were per-
mitted to seize and sell the growing
crop." Alexander v. Holt, 59 Tex.
205; Cobbs v. Coleman, 14 Tex. 598;
1 Civil Gas. Gt App., § 951 ; 2 Civil
Gas. Ct. App., § 423. The court erred
in not submitting to the jury as 'the
law of this case the special charge
asked by plaintiff, which is as fol-
lows, viz. : " You are chai'ged, gentle-
men of the jury, that a homestead
may exist in a leasehold interest in
land whether that interest be for
twelve months or more ; and, if you
believe from the evidence that the
plaintiff therein rented, for the year
1887, the land on which the growing
cotton which was sold under defend-
ant's execution was raised, and was
only a tenant on said land, and that
said land was the homestead of him-
self and family for that year, and oc-
cupied as such, though for only one
year, then the said growing crop,
under the law, would be exempt as a
growing crop on his homestead, not
subject to sale under defendant's exe-
cution." Judgment is reversed, and
cause remanded.
LEASEHOLD, AND VARIOUS TITLES TO PARCELS. 115
transfer.^ As the home of the family, the leased property ia
subjected to the restraints put upon homesteads in general,
with respect to incumbrance or alienation, for leasehold title
is a species of ownership recognized by the homestfead statutes,
as interpreted.^
The right of a lessee cannot be disturbed by the widow of
the deceased lessor in claiming to have homestead assigned
her out of the property held by him, when his lease has not
expired, and when she had filed no claim to homestead before
the death of her husband, the lessor.' But she may become
entitled so far as to have the rents'.*
It seems needless to say that a tenant has no homestead, as
against the landlord, after his lease has expired.'
The ownership of a homestead may be partly under one
kind of title and partly under another. The beneficiary may
hold his dwelling-house by leasehold and a garden appurtenant
by freehold. His home farm may be half held in fee and half
under life tenure — the whole not exceeding the monetary or
qualitative limit, where there is either restriction or both.
Indeed, every species of title may exist, each in relation to a
different part of the homestead, provided the owner has the
exclusive right of possession as to the whole, under the vari-
ous titles to the parts.
If the beneficiary has his family home on a leased lot, he
may acquire an abutting lot by purchase, and use both as his
homestead, within the prescribed limitation.*
Homestead under different titles is explained in the follow-
ing extract : " "We have therefore, as postulates, that the right
to homestead exemption does not depend on the nature of the
title, or the degree or character of the estate, but will be de-
termined by occupancy and uses " \co^lJ[>led with the title, it
should be said] ; " and that a homestead may consist of two
iPelan v. De Bevard, 13 la. 53; 'Shores v. Shores, 34 Mo. App. 208.
Morris y. Sargent, 18 la, 90. ^Ib.
2 Hogan V. Manners, 33 Kas. 551 ; 5 Kuttner v. Haines, 35 IlL App.
Conlilin v. Foster, 57 111. 104 ; Shores 307.
V. Shores, 34 Mo. App. 208 ; Johnson « Walters v. People, 18 III. 194 ;
V. Richardson, 33 Miss. 462 ; Pelan v. S. C, 65 Am. Dec. 730 ; Englebreoht r
De Bevard, 13 la. 58. Compare Col- v. Shade, 47 Cal. 637 ; Tyler v. Jewett,
well V. Carper, 15 O. St. 279, and 83 Ala. 93, 99 ; Wassell v. Tunnah, 25
Ellis V. Welch, 6 Mass. 351. Ark. 101.
116 OWNERSHIP.
or more adjoining pieces of land so connected, occupied and
used as to constitute, in contemplation of law, one tract. The
logical and obvious consequence is that it is not essential that
the several lots or pieces shall be held by the same title or the
same kind of title." ^
The dwelling-house may be separately described in a deed,
yet constitute a part of the homestead belonging to the free-
hold.2
§ 5. Life Estate.
The holder of a life estate may have a homestead carved
out of it. It would not affect the case if the life title were
in a woman while the remainder is in the children. She would
be entitled to claim homestead as against her creditors, if
the occupant of the property while thus claiming.' Her claim,
in such case, would be to an original homestead, against her
own creditors ; not for the technical widow's homestead. She
would claim precisely as a man would, under similar circum-
stances. .
The homestead right is a fee-simple interest, where an es-
tate in fee supports it ; * but it is a life interest when supported
by a life estate, and there is no inconsistency.'
The " estate " is the same after the acquisition of the home-
stead character as it was before. The beneficiary of the pro-
tection accorded does not obtain any additional property
right from the state. The term " estate of homestead " is
misleading if it induces the public to think that additional
property-title of any sort is meant.
As already remarked, the homestead is irrespective of the
character of the title or tenure by which the beneficiary holds
it. Yet upon appraisement for division or any purpose, the
property-value is estimated — not his mere interest. For in-
stance, one who haslife estate in property worth five thousand
dollars, where that is the monetary maximum of a homestead,
cannot demand that sum from property sold as an entirety.
1 Tyler v. Jewett, supra; King v. s Robinson v. Smithey, 80 Ky. 636.
Sturges, 56 Miss. 606 ; Partee v. Stew- < Murdock v. Dalby, 13 Mo. App.
art, 50 Miss. 717 ; Campbell v. Adair, 41 ; Skonten v. Wood, 57 Mo. 380.
45 Miss. 170 ; Mosely v. Anderson, 40 ' Ih.; Deere v. Chapman, 25 111. 498 ;
Miss. 54 Potts V. Davenport, 79 IlL 456 ; State
2 Lyle V. Palmer, 43 Mich. 314. v. Diveling, 66 Mo. 375.
EQUITABLE TITLE. 117
He, holding life estate in land of that value, had not an"inter-
est worth that sum. The simple value is estimated.^
This rule works well where there is limitation of quantity.
But it may not be applicable when the limitation is in value
only. Where the measure of homestead exemption is value '■ —
not quantity — the beneficiary has been held entitled to the
full amount though his title be a life estate ; not limited to
the value estimated as though the title were in fee." "A
homestead i-ight in an estate less than a fee is not as valuable
as a homestead right in a fee, and it must therefore be of a
correspondingly greater extent territorially in order to effect
an equality in the rights of the respective owners." ^ This
view seems to be exceptional to the general rule.
§ 6. Equitable Title.
A possessor of land under an equitable title may claim home-
stead thereon, acquire the usual immunities and subject him-
self to the same disabihties as though he held under a legal
title. He may have mortgaged it before dedication, and have
nothing left in him but the right of redemption ; he may have
conveyed by trust deed ; he may never have acquired the
property except under a title bond or a contract to purchase,
and yet have exclusive right of possession and the privilege of
dedicating the property to homestead purposes with the ac-
companying exemption and restraints — subject only to the
paramount right of the mortgagee or vendor, as the case may
be. The general doctrine, that there may be homestead un-
der an equitable title with exclusive right of possession is es-
tablished.*
1 Brown v. Starr, 79 Cal. 608 ; Spen- Peay, 40 Ark. 69 ; Blue v. Blue, 38
cer V. Geissman, 37 Cal. 99 ; Brooks 111. 9 ; Tomlin v. Hllyard, 43 111. 300
V. Hyde, 37 CaL 366 ; Arnold v. Jones, Hartman v. Schultz, 101 111. 437
9 Lea, 545 ; Franks v. Lucas, 14 Bush, Kmgman v. Higgins, 100 111. 319
395. McClure v. Braniff, 75 la. 38 ; Hewitt
2 Squire v. Mudgett, 63 N. H. 71 ; v. Rankin, 41 la. 35 ; Stinson v. Rich-
N. H. Gen. L., ch. 138, g§ 1, 5. ardson, 44 la. 373-5 ; Caroon v.
3J&. Cooper, 63 N. C. 386; Burton v.
*Canfield v. Hard, 58 Vt 217: Spiers, 87 N. C. 87; Murchison t.
Do3,ne V. Doane, 46 Vt. 485 ; Fellows Plyler, 87 N. C. 79 ; Creecy v. Pierce,
V. Dow, 58 N. H. 31 ; Norris v. Mor- 69 N. C. 67 ; Munro v. Jeter, 34 S. O.
rison, 45 N. H. 490 ; Searle v. Chap- 39 ; Kirby v. Reese, 69 Ga. 453 ; King
man, 131 Mass. 19 ; Kookafellow v. v. Gotz, 70 Cal. 236 ; Kennedy v. Nm-
118 OWNKESHIP.
Equitable title to land, used as a homestead, is protected
from forced sale, but there must be the right of ^ possession,
and ownership by some title.' There must be such ownership
as to render the property susceptible of becoming the basis of
the homestead right; and this may be by purchase under
bond, with possession.^ This will support the claim, and will
subject the property to that restraint upon alienation which
attends homestead, though payment has not been fully made.'
The rule, with respect to such restraint, is the same, whether
the title be equitable or legal.*
A verbal coninraat to purchase, accompanied by possession,
has been deemed sufficient ownership to enable the possessor
to claim the right of homestead, and held to impose disability
to convey without joinder by his wife.^ And a contract to
pv/rchase, written but not executed, has been held sufficient
basis for the homestead right,* though this is not universally
admitted.'.
Where there is actual occupancy by a family, though the
premises be not owned by the head of it under any perfected
title whatever, it is held that it will be respected as a home-
stead if there be a contract to purchase. The reasoning is
that as equity sometimes considers as done what parties have
agreed to do ; as it treats the contemplated vendor as trustee
of the title for the vendee; as it treats the contemplated
vendee as trustee of the purchase-money for the vendor ; as it
gives the same effect to the equitable estate thus erected that
the law gives to the legal estate, and such estate goes to the
vendee's heirs or devisees at his death, — so it will protect an
occupied homestead, under contract to purchase, against alien-
ation by the husband without his wife's consent. And the
nan, 52 Cal. 326 ; Smith v. Ohenault, 'I'd.
48 Tex. 455 ; McManus v. Campbell, * Wilder v. Haughey, 21 Minn. 101
37 Tex. 369; Wilder v. Haughey, 21 Hartman v. Munch, 31 Minn. 107.
Minn. 101 ; Threshing Machine Co, » McKee v. Wilcox, 11 Mich. 858
V. Mitchell, 74 Mich. 679; Orr v. Fyfee v. Beers, 18 la. 11.
Shraft, 23 Mich. 360; Schreiber v. 6 Bartholomew v. West, 2 Dill. 293
Carey, 48 Wis. 215. Moore v. Eeaves, 15 Kas. 150 ; McCabe
1 Smith V. Chenault, 48 Tex. 455 ; v. Mazzuchelli, 13 Wis. 534 ; Allen v.
McClure v. Branife, 75 la. 38. Hawley, 66 111. 164.
2 Stinson v. Richardson, 44 la. 373- ' Garity t. Du Bose, 5 S. C. 493. See
875. Jenkins v. Harrison, 6g Ala. 345.
EQUITABLE TITLE. 119
wife may perform the contract, on the husband's neglect to
do it, just as she may redeem a mortgage to save her right of
dower.^
But a contract purchaser cannot claim homestead rights in
land which he has deeded to another purchaser on completing
his own payments.^
Equiiy of redemption is held sufficient. The mortgagor, in
possession, holds his property exempt from other debts than
that secured by the mortgage. He has the right of redeem-
ing it from that incumbrance, not necessarily by means of the
homestead (which is primarily bound for the mortgage debt),
but by any other. His homestead right is in the land, there-
fore, rather than in his redemption right ; but it is held that
the homestead right may be supported by an equity of re-
demption.' This is true as to the general creditor, after mort-
gage by himself and wife with release of the homestead right.*
H he remains in possession as trustee of the mortgagee,' no
one can complain that the debtor holds no title beyond the
right to redeem. The mortgagee is secured, and other cred-
itors cannot disturb the household for the personal debts of
its head, under the circumstances, when the debts were con-
tracted subsequent to the acquisition of the homestead im-
munity.
A mortgage deed duly executed to secure a debt, conveying
the land on which the homestead rests, leaves no right in the
grantor or grantors but that of redemption; and if they never
redeem there is nothing to which the homestead right can at-
tach.* If homestead is taken after the giving of such deed,
there would be no defense to an action of ejectment brought
on the deed.' Eut if the grantors remain in possession, cred-
1 McKee v. Wilcox, 11 Mich. 358. 41 Vt. 398 ; 88 Mo. 323 ; distinguish-
2 Fairbairn v. Middlemiss, 47 Mich, ing Casebolt v. Donaldson, 67 Mo.
373. Under a partly paid certificate 308 ; and overruling State v. Mason,
of purchase of school land in Mich- 15 Mo. Ap. 141.
igan, homestead right was success- * Fellows v. Dow, 58 N. H. 81 ; Nor-
fuUy claimed. Allen v. Caldwell, 55 ris v. Morrison, 45 N. H. 490.
Mich. 8, ' Threshing Machine Co. v. Mitch-
3 Fellows V. Dow, 58 N. H. 31; ell, 74 Mich. 679.
Creecy v. Pierce, 69 N. C. 67 ; Cheat- « Kirby v. Reese, 69 Ga. 453. Seo
ham V. Jones, 68 N. C. 158 ; Doane v. Moore v. Frost, 63 Ga. 396.
Doane, 46 Vt 485 ; Morgan v. Stearns, ■ Thaxton v. Roberts, 66 Ga. 704
120 OWHEESHIP.
itors other than the grantee cannot disturb him. They can-
not execute their judgment by selling the right of redemption
while the homestead right exists.
This is from the doctrine, already enunciated, that equity
of redemption is title sufficient to support homestead. Though
property may be heavily burdened with trust debts, the equi-
table estate is not destroyed.^ Homestead is analogous to
dower which may be given in an equity of redemption or other
trust estate ; ^ or rather, in land held under such right. One
cannot live in a mere equity ; the home cannot be in any right ;
it is in realty which may be supported by equitable title only.
After one has given a trust deed upon community land to
secure a debt, he has enough interest remaining to enable him
to make a valid claim of homestead,' because he yet has an
interest susceptible of being sold under execution,* in the ab-
sence of homestead protection. That is, if he is in possession
of the tangible property. If his interest is intangible — a mere
right of some sort subject to execution but not susceptible of
habitation, he may have exemption accorded him, but home-
stead in it would be impossible.
Exemption applies to the equitable interest which the family
have in the homestead, but homestead exemption to real prop-
erty on which that interest is based, so that the legal owner's
merely personal obligations cannot be enforced against the
property. This exemption, after his death, continues in favor
of those who remain as beneficiaries of the equitable estate :
that is, his widow and minor children. If the property is
within the monetary exemption limit, there is nothing for the
administrator to sell on the death of the legal owner.' -
§ 7, Titles of Husband and Wife.
The husband and wife are as one in the holding of the
homestead. Neither can have title in it adversely to the other.
1 Burton v. Spiers, 87 N. C. 87
Murchison v. Pljler, 87 N. C. 79, 82
Cheatham v. Jones, 68 N. C. 153
< Kennedy v. Nunan, 52 Cal. 326.
SHartman v. Schultz, 101 Bl 437;
Conklin v. Foster, 57 111. 104; Bur-
Crummen v. Bennett, 68 N. C. 494. sen v. Goodspeed, 60 111. 377 ; Wolf
2Creeoy V. Pearce,69N. C. 67; Ca- v. Ogden, 66 111. 224; HartweU v.
roon V. Cooper, 63 N. C. 386. McDonald, 69 111. 298 ; Kingman v.
8 King V. Gotz, 70 CaL 336. Higgins, 100 UL 319.
TITLES OF HOSBAND AND WIFE. 1.21
Thus, if the husband lease it without her concurrence, the
tenant cannot set up possession against her.V
The equitable interest may be in the husband ; the legal, in
the wife : yet the homestead may satisfy all the requirements
necessary to exempt it from forced sale ; '^ and the titles are
not adverse.
When the husband makes a declaration of homestead upon
his separate property, he creates a joint title theretq in him-
self and-wife. And, to convey or incumber it thereafter, both
must join.' ,
There seems to be no obstacle to the holding of a home-
stead in joint tenancy when the husband and wife are the only
joint tenants; and some of the courts go even farther.''
The joint-title, created by the husband's'declaration of home-
stead upon his separate property, is merely a title to estate of
homestead — not to the realty itself, as a general rule. The
husband conveys no land to his wife by declaring homestead ;
he lets her in to equal control as to alienation, and equal right
to enjoyment, and to that protection which the law gives to
all homestead holders. But when the state's purpose, rel-
ative to homestead conservation, has been accomplished, the
land title is as before. Wherever a different result obtains,
there is exception to the general rule.
The family head may have homestead right in property be-
longing to his wife ; or, at her death, upon becoming tenant
by curtesy, he may hold his home exempt under that title.
And it is held that he may then convey his interest free from
creditors' claims.'"*
1 Mauldin v. Cox, 67 Cal. 387 ; First mont, 54 Cal. 498 ; Flege v. Garvey,
N. Bank v. De la Guerra, 61 Cal. 109 ; 47 Cal. 375.
Frink v. Alaip, 49 Cal 103. * Cleaver v. Bigelow, 61 Mich. 47 ;
2 Orr V. Shraf t, 23 Mich. 360 ; Mur- Tharp v. Allen, 46 Mich. 389 ; Sher-
ray v. Sells, 53 Ga. 257; Crane v. rid v. South wick,, 43 Mich. 515; Lozo
Waggoner, 33 Ind. 83 ; Dwinell v. v. Sutherland, 38 Mich. 168.
Edwards, 23 O. St 603. s Kendall v. Powers, 96 -Mo. 143;
3 Burkett v. Burkett, 78 CaL 310 ; Davis v. Land, 88 Mo. 486 ; Moore v.
Barber v. Babel, 36 Cal. 14 ; Tipton Ivers, 83 Mo. 29 ; Stephens v. Humei,
Y. Martin, 71 Cal. 325 ; Graves v. 35 Mo. 349 ; Keyte v. Peery, 25 Mo.
Baker, 68 Cal. 138; Porter v. Chap- App.'394; Eeaume v. Chambers, 32
man, 65 Cal. 365 ; Gagliardo v. Du- Mo. 36 ; 1 Wash. Real Prop., 139.
122 OWNEESHIP.
As a general rule, homestead, granted on application of
eitLer spouse, wiU avail the other. But it has been held that
a homestead granted on application of a married woman,
without stating out of whose property it is to be carved, will
not avail her husband against his creditors. However, if both
spouses occupy the premises sought to be dedicated, and he is
the owner and knows of her application and makes no objec-
tion, he and his heirs will be bound by the granting of her
application.^ It would secure a life estate to her in her hus-
band's separate property, but would have ultimately no effect
on the title of his heirs.' She should make it appear whether
the property to be dedicated is separate or community prop-
erty. Especially is this necessary where the law does not
allow her to declare upon her separate property.'
The homestead may be upon land one part owned by the
husband and another part by the wife, yet be exempt as a
whole. It is a matter of indifference whether it be owned by
the one or the other, or by both together, or by each in parcels.*
But if the wife holds the title, and the husband an interest,
that will not prevent creditors from executing the husband's
interest in collecting their claims against him, antedating the
acquisition of the homestead — his interest being considered
an equitable asset." And even the wife's separate contribution
may be liable.'
1 Linch V. Mclntyre, 78 Ga. 209 ; he applies : the property being pre-
Coffee V. Adams, 65 Ga. 347. Grounds sumably his. Bechtoldt v. Fain, 71
of application should be set forth, Ga. 495 ; Langf ord v. Driver, 70 Ga.
under the Georgia constitution of 588 ; Mc Williams v. McWiUiams, 68
1877; ownership of the property Ga.459. Thewife was allowed home-
should be stated if married woman stead when she had averred that her
is applicant Wilder v. P'rederick, husband refused to make applica-
67 Ga. 669; Clark v. Bell, 67 Ga. tion. Long v. Bullard, 59 Ga. 355.
728 ; Jones v. Crumley, 61 Ga. 105. But when granted on her application,
2 Gruwell v. Seybolt, 83 CaL 7. it will not be in the way of a prior
3 In Georgia, where a married deed given by her husband to secure
woman cannot take homestead from debt West v. Bennett, 59 Ga. 507.
her separate property while she lives * Lowell v. Shannon, 60 la. 713 ;
with her husband, it is necessary for Wilson v. Cochran, 31 Tex. 680 ; Wil-
her to state from whose propei-ty the lis v. Matthews, 46 Tex. 478.
homestead is to be set apart when * Croup v. Morton, 49 la. 16, and 53
she makes application for homestead. la. 599.
The husband need not so state when * Hamill v. Henry, 69 la. 752.
TITLES OF HUSBAND AND WIFE. 123
The home is rightfully to be enjoyed equally by husband and
wife, though the title be in one of them.'
The legal title of property may be conveyed from husband
to wife, though the homestead right is in it. Both together
have the estate of homestead, before and after the convey-
ance. The transfer of the legal title, from one to the other,
does not? affect it. It is not as though both should join in con-
veying it to a stranger, which would destroy the homestead
estate. In transferring to each other, their children's home is j
not molested; in joining to transfer to a stranger, the chil-
dren's home is lost.^
Creditors are not affected by the conveyance of the home-
stead from the debtor to his wife. It is not the conveyance
which prevents them from collecting the debts due them from
the property : it is the statute.^ '
One who has declared a hbmestead on his own property
may convey it to his wife without her signature. The object
of requiring both to join, in abandoning or conveying to others,
is to protect her.* Such conveyance does not affect the family
right of security : husband, wife and children have the same
protection as before. But the title is in her : so, in case of
divorce, she becomes sole owner with exclusive possession, as
to him.*
The husband cannot convey his wife's title in their home-
stead ; his illegal attempt to do so cannot affect her interest,
if the homestead is upon community property, for instance.'
For, though the civil law rule is that the husband, as head of
the community, may convey it, as representing the rights and
1 Sanford v. Finkle, 112 IlL 146. as the property did not exceed $1,000
2 Milwaukee Ins. Co. v. Ketterlin, in value, under the case of Leupold
34 m A pp. 188; Green v. Farrav, 53 v. Krause, 95 111. 440."
la. 436; Eiehl v. Bingenheimer, 38 *Burkett v. Burkett, 78 CaL 310;
Wis. 84; Irion v. Mills, 41 Tex. 310; Riehl v. Bingenheimer, 28 Wis. 86;
Shepard v. Brewer, 65 IE 883 ; Clubb Baines v. Baker, 60 Tex. 140 ; Spoon
V. Wise, 64 111. 157. v. Van Fossen, 53 la. 494 ; Green v.
3 Boyd V. Bamett, 24 IlL App. 199. Farrar, 53 la. 426; Harsh v. Griffin,
It is said in this case : " Even if we 72 la. 608 ; Euohs v. Hooke, 8 Lea
had found that the sale . . . was fTenn.), 303 ; Piatt's Eights of Mar-
made with the intent to defraud the ried Women, § 70.
complainant as alleged in the bill, * Burkett v. Burkett, 78 Cal. 810.
still the conveyance would be good, ^ Whetstone v. Coflfey, .48 Tex. 269.
124 OWNEESHIP.
interests of both, there ia 'an exception when homestead has
been declared upon it — a state of things which the civilians
never contemplated.
A constitutional provision which secures to a married woman
the property she owns at the time of her marriage, or which
she subsequently acquires, and exempts it from liability for
her husband's debts, and gives her sole disposition of it free
from her husband's control, is not so much to declare affirm-
■ atively her rights as to negative those of her husband and
his creditors. Her legal status as a wife is not changed.' Her
personal earnings belong to her husband still, according to the
rule of the common law,^ and therefore land bought with them
is considered as purchased with the husband's money, and
given to the wife by him in disregard of the rights of cred-
itors to the money. In- such case, there is no resulting trust
to him, for he intended a gift to his wife. He has no estate
in the property — not even an equitable one — and therefore
cannot claim homestead in it.^
The ownership of a homestead must be by such title as to
give the proprietor an assignable interest, if his widow is to
take it at his death as the homestead. If, before his marriage,
the owner conveys title to his lands and then lives upon them
as a tenant during his married life, his widow has no claim to
the widow's homestead therein.* She may live on the home
place under the leasehold title, till the lease expire, if it has
some time to run at his death, unless the rights of others in-
tervene.
The heirs of a wife who had died before her husband of-
fered to prove that her estate was insolvent, to support their
claim to two hundred acres of land as her homestead. As it
had not been shown that either she or her husband had title
to the land at the time of her death, the testimony was ex-
cluded. Though the husband and his family had occupied it,
he had accepted a conveyance of it subsequent to her death,
1 Bridges v. IJoweU, 27 S. 0. 425; 3 Story Eq. Jur., g§ 1202, 1204. And
Townsend v. Brown, 16 S. C. 96 ; Pel- on homestead in equitable estata
zer V. Campbell, 15 S. C. 596. Munro v. Jeter. 24 S. C. 29.
2 Syme v. Riddle, 88 N. C. 463. * Berry v. Dobson (Miss.), 10 So. 45 ;
3 lb.; citing Hill on Trustees, 91 ; Miss. Code 1880, § 1848.
M0TUAL INTEREST OF HUSBAND AND WIFE. 125
thus raising the presumption that title was in the grantor at
the date of the deed.'
§ 8. Mutual Interest of Husband and Wife.
A dwelling-house and the ground on which it stands may
each be worth the amount of the statutory exemption, and
one may bo owned by the husband and the other by the wife.
Where no formal selection and recordation are required, and
the two estates are enjoyed together by the married couple,
are they in ,condition to defeat a forced sale of either prop-
erty? If the husband is the owner of the house, may he claim
it as exempt in case a judgment be rendered against him and
■execution be directpd against it? At the same time, in case a
judgment be rendered against her and the land be levied
upon, may she claim that as exempt and defeat the execution?
Certainlj'- this family cannot be entitled to two homesteads,
nor can it play the double part suggested. Either he alone,
as the head of the family, may claim homestead right for both
in the house which he owns and in which bothUive, and which
is worth the whole amount of the. exemption, or she alone
may claim it in her land. If he neglects or refuses to claim
till the house be levied upon, but retains his right to claim at
any time, will this preclude the wife from setting up exemp-
tion right in the land to defeat an execution already laid ?
It would seem that, under the circumstances, the husband
■would be the "householder", and "occupant" within the
meaning of those words as used in the constitutions and stat-
utes according the homestead right ; and that the wife has no
right to claim except what she derives from him, for the bene-
fit of the family of which he is the head. But it has been
held, under circumstances such as above suggested, that she
may resist execution against the land by claiming homestead
in it.«
1 Holloway v. Mollhenny, 77 Tex. levied upon by some one else for his
857. debt" Was it not pertinent for them
2 Kruger v. Le Blanc, 75 Mich. 424 to inquire whether/ his right to claim
The value of the building owned by the family homestead protection ex-
the husband was not ascertained, isted at the very moment when his
The court said : " It is of no concern wife was seeking to defeat their levy
to these defendants, what he [the hus- by setting up her right to do so?
•band] might do if his property were Since it is certain that the husband
126 owiraESHip.
If this husband and wife had been joint owners of both the
house and the land, they could not have had two homes pro-
tebted ; and it is as irregular to have two properties, either
susceptible of being claimed when danger comes. The law is
generous towards families but does not contemplate a game
of hide-and-seek when the sheriff comes. Being separate own-
ers, the case is clearer — they could not have a homestead
apiece.
There is, however, as much reason in allowing marital joint-
owners to have two hon^esteads as in. permitting unmarried
ones to have them ; and it has been decided that joint-owners
who have not the relation of man and wife, if each has a sep-
arate house on the joint premises, and occupies it as the home
of himself and his family, will be entitled to homestead ex-
emption — each to the full maximum.' The general rule is
that there must be exclusive right of possession ; and this can-
not be by unmarried owners in joint tenancy. The decision
last cited, and similar ones, are to be understood with refer-
ence to exemption. The interest of each joint tenant doubt-
less may be exempted to the amount of the honfiestead max-
wnv/m, of value, under the governing statute.
§ 9. Title Toid or Fraudulent.
The ownership required must be valid in law. There is no
public policy in favor of conserving fraudulent homes. True,
the statutes make no distinction between honest men and
rogues when providing who may be beneficiaries of exemp-
tion ; but the thing exempted must be honestly owned by the
beneficiary in whose name the privilege is granted — that is,
the head of the family who represents the other beneficiaries
of his household.
The existence of liens does not affect the ownership so far
as the requirement of the condition is concerned. An incum-
and wife could not claim two home- husband's house, occupied by both
steads for their one family, was it not himself and his wife as their home,
pertinent for the defendants to show according to the rule prevailing in
that her claim was inconsistent with other states. If it was worth less than
his right? Husband and wife cannot $1,500, the wife's land may have been
have a homestead apiece. Gam- exempt in such quantity as to make
bette V. Brock, 41 Cal. 84 The home- up the maaAmum.
stead of the Michigan case was the i Meguiar v. Burr, 81 Ky. 32;.
TITLE VOID OE PEAUDULBNT. 127
brance may be as great as the value of the property incum-
bered, yet the ownership remain all that is required. The
owner may not have paid for the property. Ownership does
not depend upon the ^rioe having been paid. The grantor
has his lien; but other creditors are powerless to proceed
against the property — just as they would be if the debtor
did not owe a dollar upon it.^
The purchase, however, must have been an honest and hon-
orable one, not made to defraud creditors, if the condition of
ownership is to be considered accordant to law.
Certain merchants bought goods on credit, exchanged them
for a house a^d lot, and then sought to hold such real estate
as a homestead against the creditors of whom they had pur-
chased the goods. They had nothing else to which the cred-
itors could look for payment.
The statute, under which the homestead was claimed by
one of the merchants who occupied the house and lot with his
family, contained the inhibition : " A homestead shall not be
subject to forced sale on execution or any other final process
from a court." It had been contended by counsel that this
inhibition covered such a case as the one at bar ; but the court
said : " If such a construction of the law as is contended for
in this case should prevail, its title should read, ' An act for
preventing the payment of honest debts, and for the promo-
tion of frauds upon creditors by debtors.' . . . The de-
fendants were merchants, in possession of a stock of goods,
and in that character, and under those circumstances, replen-
ished their stock by the purchase of goods of the plaintiffs
upon credit. After acquiring possession of the goods so pur-
chased, they transferred their whole stock in fraud of their
creditors, and took in exchange therefor these premises. The
mere statement of the facts decides this case in the conscience
of every honest man : that neither in law nor justice the ex-
emption should be allowed. The defendants. cannot expect the
court to assist them in consummating the intended fraud. A
party cannot turn that which is granted him for the comfort
of himself and family into an instrument of fraud. ... A
defendant cannot expect this court to consent that he may
1 Lee V. Welborne. 71 Tex. 500.
128 OWNEBSHIP.
use the law as an instrument of fraud by claiming a home-
stead which he has fraudulently acquired in the manner pre-
sented in this case. . . ." '
This view of a fraudulently acquired homestead is also taken
in another case. The strong language of the court above
given is approvingly quoted in the latter : " The mere state-
ment of the facts decides the case in the conscience of every
honest man. The defendants cannot expect the court to assist
them in consummating the intended fraud." But distinction
was drawn between "intended fraud," and the transfer of
goods for a farm (under almost precisely similar circumstances
to those above related), from which the court, in the case now
under consideration, did not infer fraud. Though the goods
had been bought upon credit, and were exchanged for forty
acres of land, and the land then claimed as a homestead against
the creditors who had furnished the goods ; and though the
debtor was insolvent and knew himself to be so when he made
the exchange ; and though his homestead exemption could be
allowed only at the expense of his creditors, the court deemed
its acquisition not fraudulent on the following reasoning:
" "We know of no rule of law in this state that deprives a per-
son, whose indebtedness may be equal to or exceed his re-
sources, from taking a part of his property to purchase a
homestead. This is not fraud upon creditors. It is not a con-
cealment of his property. He merely puts the property into
a shape in which it will be the subject of beneficial provision
for himself and his family, which the law recognizes and allows ;
and such property having all the requisites of a homestead as
to ownership, value and occupancy, it will be held exempt
from levy and sale on execution by his creditors." ^
This decision is not that a fraudulently acquired homestead
has the essential condition of ownership to support it, but
that the homestead in question was not thus acquired. The
opinion seeks to distinguish the facts of this case from those
of the one preceding, by finding a different intention on the
part of the debtor. The reader of the two recitals in the re-
ports may not discover this difference, but since it was drawn,
he cannot understand this decision as contrary to the former.
1 Pratt V. Burr, 5 Biss. 36. 2 Meigs v. Djbble, 73 Mich. 101, lia
TITLE VOID OB FEACDULENT. 129.
It is said, indeed, in the latter : " This is a very diflPerent case
from one where the party obtains property on credit with the
intention at once to place it beyond the reach of creditors by
exchange of the whole for a homestead. Such a proceeding
would be evidence of a fraudulent intent in the purchase of
the property at the outset, and the case would fall within the
ruling of the court in " — the case first cited on this point.'
That the debtor Knew, when he bought the forty acres for
a homestead, that he did so by exchanging the goods therefor
at the expense of his creditors, is plain enough; and that
the transaction was fraudulent seems clear enough ; but the
court, while holding that the fraudulent acquisition of a home-
stead is not a compliance with the condition of ownership, in-
ferred from the facts that the exchange, in this case, was not
in fraud. If the debtor did not have a fraudulent intention
when he bought the goods, but did have it when he exchanged
them for the land, there would seem to have been a fraudulent
acquisition of the homestead.
Putting property not exempt into property exempt is not
technically a concealment of it, but it is the placing of it be-
yond the reach of creditors, which is virtually the same.
The cases cited to sustain the position that there was no
fraud do not seem in point. The first, containing some ob-
servations on the subject which were not necessary to the
decision, is that an insolvent debtor may exchange notes ante-
dating the dedication of his homestead (and therefore bearing
upon it), for notes post-dating it (and therefore not bearing
upon it), with the consent of the creditors holding the notes which
have not gone into third hands.^ JSTo fraud in that, surely.
The second case is one of chattel exemption. The court
thought it no fraud in an insolvent debtor to exchange prop-
erty not exempt for a yoke of oxen exempt, " with the intent
to defeat the claims of creditors." ' This would seem to over-
look the distinction as to the fraudulent intent made by the
court when citing this authority from the reports of its own
state.
'That is, in Fratt v. Burr, suxyra, 2 Tucker v. Drake, 11 Allen, 145.
cited by the court in this connection, {See Adams v. Jenkins, 16 Gray, 146.)
in MeigB v. Dibble, 73 Mich. 113. ' O'Donnell v. Segar, 25 Mich. 367,
876.
9
130 OWNERSHIP.
Often there is question whether property has been acquired
honestly or fraudulently; and the subject, so far as it concerns
homesteads, is relegated to a future chapter on fraud. The
proposition now is that the ownership, required as one of the
conditions to homestead privileges, must be real, legal, free
from fraud in its acquisition.^ Certainly, property claimed as
a homestead cannot be treated as such against one from whom
it was acquired by defrauding him. Under such circum-
stances, its conveyance does not require the signature of the
wife of the wrong-doer, since the homestead character never
attached to the property?
A wife claimed title by deed from her husband through a
third person, and also claimed homestead against his creditors.
The court said : " If the plaintifif can recover at all it must
be by virtue of her title derived frona her husband's convej'-
anoe in fee-simple; and if that conveyance was in fraud of his
creditors, her title fails without regard to the value of the
land, and notwithstanding her homestead right. ... If
fraudulent (though the question would then arise whether, in
spite of that fact, she would be entitled to a homestead on
appropriate proceedings to assign and set it out), she could
not recover in this action." The action was trespass quare
clausum?
Where a disclosure of all his property is required of an ap-
plicant for a homestead in realty and personalty, the withhold-
ing of a part is fraud, and it debars him from right of exemption ;
no homestead can be awarded him.* Such a result, author-
ized by statute, is held not unconstitutional when the consti-
tution itself declares that " the legislature can pass such laws
as they think proper to ferret out and punish fraud." °
A " homestead in realty and personalty " is merely exemp-
tion to a given amount, allowed the debtor, from execution. It
is not homestead in the general acceptation of the term, but
its unlawful claiming seems to illustrate the fraud condemned
in the cited case.
' Muir V, Bozarth, 44 la. 499 ; Burn- 2 Muir v. Bozarth, 44 la. 499.
side V. Terry, 51 Ga. 190; Babb v. SBabb v. Babb, 61 N. H. 142.
Babb, 61 N. H. 142. See Edmunson ^McNally v. Mulherin, 79 Ga. 614.
V. Meaoham, 50 Miss. 84 * Jh
JOINT TENANCY AND TENANCY IN COMMON. 131
§ 10. Joint Tenancy and Tenancy in Common.
To acquire homestead rights and privileges, with the com-
pensating restraints, the claimant or his wife must not only have
exclusive ownership under some species of title, but also ex-
clusive right of possession. Nothing seems clearer than this.
Without such exclusion, he could not rightfully occupy, nor
make the requisite declaration under statutes prescribing it, nor
record hig homestead as required in many states, nor transmit
to his widow and minor children the rights and possession
usually accorded them under the homestead laws. Without
exclusive title and right of possession^ he could not comply
with any of the four conditions of the prevalent system of
homestead except that of having a family.
There could be no occupancy of a dwelling as a whole, un-
less with the consent of the other joint-tenants or tenants in
common. They might agree to sole occupancy by one for a
stated time, for a consideration or without one ; but if so, he
would hold as their lessee or by sufferance, and not because
he is one of the joint or common tenants.
Each has the right of possession ; the legal right is in each
for all — not for himself exclusively. He holds ^e/- my etper
tmit. It is not such a possession as the homestead laws con-
template; not such as they build upon. Merely as a joint-ten-
ant, he has no occupancy which the legislator can protect; no
such home as can be conserved for the benefit of the family.
Dedication, as a condition to the acquisition of homestead, re-
quired in many states, is impossible without exclusive ownership
of s6me sort, and exclusive right of possession. A residence
owned and possessed jointly with others, or in common with
others, cannot be wholly set apart by one. It cannot partially
be set apart by one, for that would not be a dedication of the
dwelling but only of an undivided interest in it, which the law
does not recognize, since that interest alone cannot be the home
of his family. Nor could it be set apart by all the joint-ten-
ants, or tenants in common as the case may be ; for the law offers
homestead protection to separate families and not to a com-
munity of them. Husband and wife, indeed, might be such
tenants and yet become homestead beneficiaries, since their
home is one and their interests are one. But no other two
joint-tenants or tenants in common could unite in the dedica-
132 OWNERSHIP.
tion of the property held by them so as to have the protection
of it as one homestead for both. The impracticability of it
will appear when we reflect that the liabilities of each may be
different from those of the other. The interest of one might
become liable to forced sale while that pf the other might not.
The sale of such interest would render the home no longer
protectable. So, one might abandon his homestead right:
what then would become of the other's right ? It would not
save the dwelling-house for his family.
ITo statute authorizes the dedication of an undivided interest
in a family residence, as a homestead. Without such authori-
zation (since the right is solely statutory), there can be no
such homestead.
Notice of homestead holding is impracticable without sole
ownership and exclusive right of possession. Such notice as
homestead statutes require cannot be given to the public, if
there be nothing more than joint-tenancy or tenancy in com-
mon. It is prescribed in some statutes that the word Some-
stead shall be written in the margin of the recorded title.
That is meant as notice to the public that the property here
recorded by title is a family residence free from liability for
the ordinary debts of the owner ; and it is a warning to all
persons not to trust the owner with reliance on that property
to secure the loan, or rather with the idea that the property
could be subject to execution upon a judgment for the debt.
If the word should be inscribed in the margin of a title in
joint-tenancy or tenancy in common, it would not be true.
The whole property is not exempt, and the notice therefore
would be misleading.
So any other inscriptipn of record, prescribed by statute as
notice to the world that the registered property is exempt,
would be a deception and a fraud where the property is not
really exempt as a house used by the household (or a farm,
with appurtenances in either case), but is really liable so far
as concerns the interests of all the joint-tenants or tenants in
common except the one who lives with his family in the
house; and not even exempt as to him, since he does not
wholly own by any sort of title nor have the right of exclu-
sive occupancy : so there is indeed no exception, with respect
JOINT TENANCY AND TENANCY IN COMMON. 138
to the homestead itself, and the notice would be altogether
misleading, false and fraudulent.
No notice except occupancy is required by several statutes.
The use of a dwelling and appurtenances as a family home is
held sufficient to put those upon inquiry who may be about
to loan money to the owner and occupant of the property and
to trust him thinking the real estate liable to execution. But
occupancy, as notice, would be misleading if the occupant is
only a joint tenant or tenant in common. Having no exclu-
sive right of possession, such notice would give a wrong 'im-
pression. It would not be true that aU the real estate occu-
pied, or indeed any of it, is a homestead as understood in the
prevalent system. If the interest of the. occupant is exempt,
under the statutes and their construction in some states, it is
yet untrue that the family dwelling itself is exempt and in-
violable as a homestead. The right of survivorship in joint-
tenancy is inconsistent with homestead in joint-tenancy. The
object of the prevalent system of homestead, so far as its
purposes of benevolence are affected, and indeed so far as its
broader purpose of home conservation is concerned, is rather
to benefit the wife, the widow and the children than the head
of the family himself, as courts have frequently said. But how
is the widow to be protected, or the orphan minors, when the'
dwelling-house they occupy passes to the survivor of the hus-
band and father? She can no more have the widow's home-
stead in it than she can have dower. They can have nothing,
for they inherit nothing.
Here stands this law of survivorship, an insurmountable
barrier to the transmission of homestead estate to the widow
and children. Wherever homestead is recognized by the courts
as existing in realty held by joint-tenancy or tenancy in com-
mon, this distinction should be kept in view : such homestead
differs from the ordinary one in the circumstance that the
tenant in possession occupies solely bjj^ reason of the suffer-
ance of those who each have an equal right to occupy. If
they permit him to claim homestead, the rest of the world
have no right to complain. His possession could not be dis-
turbed by his creditors on the ground that the sole ownership
is not in him.
It may be said, with this distinction in view, that the states
134 OWNERSHIP.
which award homestead to such an owner do not materially
depart from the general rule governing the subject. Several
of them, however, merely a>ward exemption to the interest..
There may be exemption. The interest of a joint-tenant or
a tenant in common may be protected by law, so that bis
share of the proceeds of the property may be reserved for
him when the whole has been sold ; or, his interest may be
exempted from liability to forced sale for his ordinary, per-
sonal debts. This is exemption — not homestead protection.
It is like chattel exemption. It is more like the reservation
to him of a stated sum in case of the sale of his property, real
or personal, under execution for his debts.
Such exemption of the interest of a co-tenant or tenant in
common is allowed in several states. It is allowed in some
of them under their homestead laws. If not authorized by
those laws, it is held so by the courts in administering them,
and must be received, therefore, as law in those states.
Such exemption is very different from homestead protec-
tion, although the terms may be confounded. It does not
necessarily interfere with rights of the other joint-tenants or
tenants in common. Indeed, the legislature cannot rightfully
affect the rights of the others.
§ 11. Undivided Interest — Co-tenancy.
The authorities will be found fully in accord with the fore-
going views, if we keep in mind that homestead exemption is
a different thing from the exemption of an undivided interest
in a homestead, and take the meaning of courts in their use
of terms rather than their literal expressions when those ex-
pressions would seem to favor the acquisition of homestead in
property held in joint-tenancy or tenancy in common.
First let us faotice those decisions in which right terms are
employed.
It is held that when statutes require ownership in a home-
stead, entirety is meant — not an undivided part or an undi-
vided interest.'
The possession of a tenant in common is for his co-tenants
I Beecher v. Baldy, 7 Mich. 488 ; Amphlett v. Hibbard, 39 Mich. 398 ;
Thaip V. Allen, 48 Mich. 393.
UNDIVIDED INTEEEST CO-TENANCY.
135
as well as for himself. He cannot acquire, therefore, a right
of homestead in land of which he is thus possessed.'
How can homestead, with all of its privileges and restric-
tions, be accorded to one joint-tenant, when his entry and
possession is not exclusive, but inures to the benefit of all ? ^
One tenant in common cannot dedicate the common prop-
erty, or his interest in it, as a public highway,' nor give the
right of way.^
How can he have the metes and bounds of a homestead laid ,
off upon real estate held in common? He cannot do it so as
to convey his interest by private deed to a grantee, as a spe-
cific part designated by boundaries, without the consent, and
to the prejudice, of his co-tenants.^
A tenant in common cannot divest the interest of his co-
iReinhart v. Bradshaw, 19 Nev.
355 ; Niokals v. Winn, 17 Nev. 188 ;
Terry v. Berry, 13 Nev. 515 ; Ather-
ton V. Fowler, 96 U. S. 513. See
Hosmer v. Wallace, 97 U. S. 575;
Trenouth v. San Francisco, 100 U. S.
351 ; Smelting Co. v. Kemp, 104 U. S. -
647 ; Frisbie v. Whitney, 9 Wall. 193 ;
Johnson v. Towsley, 13 Wall. 'iS;
Hosmer v. Duggan, 56 Cal. 261;
Davis v. Scott, 56 Cal. 165; Cowell
V. Lammers, 10 Saw. 246 ; Avans v.
Everett, 3 Lea, 76 ; Bemis v. Driscoll,
101 Mass. 421 ; Holmes v. Winches-
ter, 138 Mass. 543 (Mass. Stat. 1855,
ch. 238); Weller v. Weller, 131 Mass.
446 ; Howes v. Burt, 130 Mass. 368 ;
Bates V. Bates, 97 Mass. 393; Thur-
ston V. Maddox, 6 Allen, 437'; Sillo-
way V. Brown, 13 Allen, 30 ; Ward
V. Huhn, 16 Minn. 159; St. Paul's
Church V. Ford, 34 Barb. 16 ; West
V. Ward, 36 Wis. 580; Ventress v.
Collins, 38 La. Ann. 783 ; Borron v.
Sollibellos, 28 La, Ann. 355; Simon
V. Walker, 28 La. Ann. 608.
2Wiswell V. Wilkins, 5 Vt. 87;
Small V. Clifford, 38 Me. 313; Ter-
rell V. Martin, 64 Tex. 121 ; Taylor v.
Gox, 3 B. Men. 429 ; Lindley v. Groff
(Minn.), 34 N. W. 36 ; Davis v. Givens,
71 Mo. 94 ; Blakeney v. Ferguson, 20
Ark. 547.
'Scott V. State, 1 Sneed (Tenn.),
639 ; St. Louis v. Gas Light Go. (Mo.),
9 S. W. 581.
< Merrill v. Berkshire, 11 Pick. 369.
5 Rising V. Stannard, 17 Mass. 383 ;
Bartlet v. Harlow, 13 Mass.- 848;
Varnum v. Abbott, 13 Mass. 474;
Perkins v. Pitts, 11 Mass. 135 ; Bald-
win V. Whiting, 13 Mass. 57: Pea-
body V. Minot, 34 Pick. 329 ; Blossom
V. Brightman, 21 Pick. 285 ; Holcomb
V. Coryell, 11 N. J. Eq. 548 ; Boston,
etc. Co. V. Condit, 19 N. J. Eq. 394 ;
Hartford Co. v. Miller, 41 Ct. 113;
Marsh V. Holly, 43 Ct.453; Griswold
V. Johnson, 5 Ct. 363 ; Jeffers v. Rad-
cliff, 10 N. H. 343; Whitton v. Whit-
ton, 38 N. H. 137; Ballou v. Hale, 47
N. H. 347 ; Duncan v. Sylvester, 24
Me. 483 ; Jewett v. Stockton, 3 Yerg.
(Tenn.) 492 ; Gates v. Salmon, 35 CaL
576; Good v. Coombs, 38 Tex. 35;
Dorn V. Dunham, 24 Tex. 366 ; Mat-
tox V. Hightshue, 39 Ind. 95; Shep-
ardson v. Rowland, 38 Wis. 108;
Markoe v. Wakeman, 107 111. 351;
Cornish v. Frees, 74 Wis. 490 ; West
V. Ward, 26 Wis. 579.
186 OWNERSHIP.
tenant by taking possession of, and claiming homestead in,
the common property. " The right of homestead is always
subordinate to the prior rights or interests of other persons in
the property." '
Before land held in common has been partitioned, home-
stead cannot be assigned in any part of it, because it is not
then known what particular portion will be given to any one
of the co-tenants. Each is seized " by one and by all," yet no
one exclusively owns a foot of the land. It is impossible,
where the law requires homesteads to be set apart by metes
and bounds, that there can be any such setting apart before
partition.^ When a court or commissioners have assigned
homesteads in such property, though illegally, there would be
no wrong in so ordering a partition afterwards as to give to
each tenant his share previously admeasured, if it can be done
without injustice to any.' When land is sold to effect parti-
tion, the exempt interest of any owner may be demanded out
of the proceeds.*
One may have an exemption right in his undivided interest
in land, by statute. If such a one buy the other interests in
the land, so as to become sole owner of the whole as a home-
stead, would a judgment lien prior to his purchase, *recorded
against his then existing interest, now become operative over
the whole? This is answered in the negative.'
It has been frequently held that homestead cannot be carved
out of an undivided interest in real estate.^
' Lynch v. Lynch, 18 Neb. 586, 589 ; is held in Illinois, Iowa, Arkansas,
Bowker v. Collins, 4 Neb. 496 ; State Texas, Vermont and Michigan."
Bank v. Carson, 4 Neb. 502 ; Gunn Exposition of Minn. Gen. Stat 1878,
V. Barry, 15 Wall. 623 ; Homestead ch. 68, § 1.
Oases, 22 Gratt 331. ^Bemis v. DriscoU, 101 Mass. 418;
* Nance v. Hill, 36 S. C. 227. Thurston v. Haddocks, 6 Allen, 427;
» Melliohamp v. Mellichamp, 28 J. I. Case Co. v. Joyce, 89 Tenn. 387 ;
S. C. 135. , Avens v. Everett, 3 Lea, 76 ; Barron
* Ex parte Carraway, 38 S. C. 333. v. SoUibellos, 38 La. Ann. 355; Ven-
' Kaser v. Haas, 27 Minn. 406 (ex- tress v. Collins, 38 La, Ann. 783 ; Sim-
plaining Ward V. Huhn, 16 Minn, mon v. Walker, 38 La. Ann. 608 ; Lozo
159), and saying : " That the owner v. Sutherland, 38 Mich. 168 ; West v.
of an undivided interest only cannot Ward, 26 Wis. 579 ; Cameto v. Du-
claim the exemption is held in Massa- puy, 47 Cal. 79 ; Kjngsley v. Kings-
chusetts. New Hampshire, California, ley, 39 Cal. 665 ; Seaton v. Son, 83
Indiana and Wisconsin ; the contrary Cal. 481 ; EMas v. Verdugo, 37 Cal.
UNDIVIDED INTEEEST CO-TENANOY. 137
Where a different rule prevails, the fact that one has an un-
divided interest. in a tract of land larger than the homestead
limit will not entitle him to claim a greater exempt acreage
than he would if he owned the whole.' If the whole is mort-
gaged, and the wife has joined in the act, the foreclosure will
defeat the homestead riglit. Now, if, after foreclosure and
sale, the homestead beneficiaries desire to redeein their inter-
est, to claim homestead right therein, they can do so only by
redeeming the whole tract.-
A statute which exempts "a homestead or real estate''^ to a
given value, " m tlic possession of, or belonging to, each head
of the familj'," who •' shall have the right to elect where the
homestead or said exemption shall be set apart, whether liv-
ing on the same or not;'' and which requires the homestead'
to be set apart by metes and bounds,' is held to preclude
homestead in an undivided interest. The right does not at-
tach to such interest. A home occupied by the owner of such
an interest in it cannot be his homestead. He may mortgage
his interest \vithout his wife's joining in the act.*
The terras of this statute, distinguishing between homestead
and exemption, may give color to a claim of exemption in a spe-
cies of property not susceptible of being laid off by metes and
bounds. Certainly there is more latitude here for construction
in favor of saving to J;he debtor his interest as a joint-tenant or
418 ; Bishop v. Hubbard, 23 Cal. 514 ; which makes the best case possible
Kellersberger v. Kopp, 6 Cal. 565; for the other side. The following
Reynolds v. Pixley, 6 Cal. 165 ; Wolf are cited by the court : Avens v.
V. Fleischacker, 5 Cal. 244. Contra, Everett, supra; Flatt y. Stadler, 16
Kaser v. Haas, 27 Minn. 406 ; but Lea, 371-9 ; Chalfant v. Grant, 8 Lea,
compare Ward v. Huhn, 16 Minn. 159 ; 118 ; Spiro v. Paxton, 3 Lea, 75 ; Gill v.
Kresin v, Mau. 15 Minn. 116, and Lattimore, 9 Lea, 381 ; HoUins v.
Kelly V. DilV 23 Minn. 435. In the Webb, 2 Leg. R. 74. See several cases
above cited case of the J. L Case Com- cited in the dissenting opinion, 89
pany v. Joyce, the denial of home- Tenn. 351.
stead in an undivided interest — in i O'Brien v. Krenz, 36 Minn. 136;
realty held by joint-tenancy — is Ward v. Huhn, 16 Minn. 142.
strongly put for the court by Judge ^ ii,_; Martin v. Sprague, 29 Minn.
Snodgrass. Much of the opinion is in 53 ; Willis v. Jelineok, 37 Minn. 18.
explanation of Tennessee statutes, but ^ Tennessee Code, §§ 2935-6, 3940-1,
the general argument is applicable 3944.
everywhere. See also the dissenting * Threshing Machine Co. V.Joyce
opinion of Judge Caldwell (with (Tenn.), 16 S. W. 147.
eoncuiTence of the chief justice).
138 OWNEESHIP.
tenant in common, than there is in other homestead statutes
which have been construed to do so. Doubtless, however, the
exposition of the court is correct. ISTo occupancy of a home
by an owneT is possible when the occupant is not the owner
of ihat home but only of an undivided part of it. No free-
holders, appointed to lay off a homestead to him, could pos-
sibly do so out of any "real estate," however extensive —
however exceeding many fold the legal maximum of quantity
or value when his interest is only that of a joint-tenant or
tenant in common.
§ 12. Exemption of Undivided Interest.
There are cases which have been cited as favoring the ex-
istence' of homesteads in mere interests — mere rights in
dwelling-houses and lands without ownership of the houses or
ground with exclusive right of possession — mere ideal realty
(a contradiction of terms), in which there could be no hearth-
stone or roof-tree. Evidently, whatever the terms used, the
courts have meant that joint-tenants and tenants in common
may have their interests exempt: not that they could live
in an undivided interest and have homestead therein. Or they
have meant that the owner of the interest could claim par-
tition and then have his homestead laid off to him from his
allotted portion. And sometimes they have made deliverances
ijnder the momentary impression that exemption from forced
sale is synonymous with homestead or homestead right.^
JSTo doubt husband and wife may hold in joint-tenancy, for
they are one in such sense that the possession is exclusive ; and
where they so hold, the survivor takes sole title, and there is
1 Horn v. Tufts, 39 N. H. 478 ; Dan- Ferguson v. Reed, 45 Tex. 584 ; Clem-
forth V. Beattie, 43 Vt. 138 ; MoClary ents v. Lacey, 51 Tex. 150 ; Jenkins v.
V. Bixby, 86 Vt. 254 ; Greenwood v. Volz, 54 Tex. 636 ; Brown v. McLen-
Maddox, 37 Ark. 660 ; Ward v. May- nan, 60 Tex. 43 ; McGrath v. Sinclair,
field, 41 Ark. 94 ; Hewitt v. Rankin, 55 Miss. 89 ; Greenwood v. Maddox,
41 la. 35; Tarrant v. Swain, 15 Kaa. 37, Ark. 648; Sentell v. Armor, 35
146; Snedecor v. Freeman, 71 Ala. Ark. 49; Thompson v. King (Ark.),
140; MoGuire v. Van Pelt, 55 Ala. 14 S. W. 925; Lozo v. Sutherland, 38
344; Robinson v. McDonald, 11 Tex. Mich. 168; Sherrid v. Southwick, 43
385 ; Smith v. Deschaumes, 37 Tex. Mich. 518 ; Tharp v. Allen, 46 Mich.
429 ; Williams v. Wethered, 37 Tex. 389 ; Qeaver v. Bigelow, 61 Mich. 47 ;
130 ; Lacey v. Clements, 36 Tex. 663 ; Kruger v. Le Blanc, 75 Mich. 434
EXEMPTION OF DNDIVIDED INTBEEST. 139
nothing in conflict with establislied law or principle.' Eut
how can any other joint-tenant or tenant in common have that
exclusive possession which is essential to homestead occupancy?
And how can even conjugal co-tenants have a homestead on
their undivided land when the statute requires that it shall be
upon the land of the owner, and makes provisions impractica-
ble where there is joint-tenancy? ^
No doubt homestead is practicable on land owned by hus-
band and wife whose interests are undivided, provided the
statute accords ; but it is not practicable for a home or home-
stead to exist when the interest of the joint-tenants are such
that each owner has right of possession, one for all, and all
together do not constitute one family so as to have one home —
and it is hardly possible that the legislator can make it prac-
ticable.
It has been held, however, that a tenant in common, carry-
ing on a hotel, leasing the interests of the other tenants in
common, and residing in the hotel with his family, is entitled
to homestead in the property when it appears that he has no
other real estate upon which to establish and claim a home-
stead.'
There seems to, be nothing in the statutes of the state in
which this was held which limits the benefit of homeste'ad to
persons who have no realty but that claimed as homestead.^
This point may be discussed elsewhere. Here the case is cited
for its bearing on the doctrine of homestead owned by tenants
in common. The court holds that the doctrine is settled in
the state that homestead can be claimed by a tenant in com-
mon.^
Two brothers owned forty acres in common. One of them
was married, and though the land was held in common, he was
recognized as having a homestead interest in it. They also
owned in common and cultivated a large tract of land besides.
1 Jackson V. Shelton, 89 Tenn. 82;. Judge Caldwell in the J. I. Case Co.
distinguishing McRoberts v. Cope- v. Joyce, 81 Tenn. 351.
land, 85 Tenn. 211, and Ames v. Nor- 3 King v. Welbarn, 83 Mich. 195.
man, 4 Sneed, 682, and overruling * Howell's Stat, of Mich. , §§ 7731-
Cullom V. Cooper (Tenn.), Dec. term, 7739.
1888 ; Tenn. Code (M. & V.), §g 3935-7, 5 Citing Shepard v. Cross, 33 Mich.
3946 ; (T. & S.) § 2 1 13a ei seq. 98.
2 See the able dissenting opinion of
140
OWNERSHIP.
They cbntracted to furnish money to a cattle-raiser for haH
his profits, and borrowed money to do so. The business proved
a failure, and their land (except the forty acres) was sold to
pay debts. The married brother died, and the single one con-
veyed his interest in the forty acres to the widow. She claimed
the whole as her homestead exempt from the debts of the
partnership, and of the surviving brother as one of the part-
ners. It is clear enough that the forty-acre tract had not been
used in the cattle business and was not an asset of the part-
nership. But was not the unmarried brother's interest liable?
Had it remained in his hands, perhaps it would have been ; but
his conveyance of it to his sister-in-law may have been in set-
tlement of property rights between himself and his deceased
brother's estate, as the court said. It cannot be decreed to
have been conveyed in fraud of creditors in the absence of
proof of such fact. This was the conclusion of the court,'
The exemption of interests in personal property has little or
no analogy to the selection and dedication of a homestead.
Such exemption has been allowed to joint-tenants or tenants
in common.^ It is not practicable to allow it without a divis-
ion of the property so that the beneficiary may own in sever-
alty. If the chattel is indivisible, such as a reaping machine,
the interest of one partner cannot be separated without sale.
If it consists of wheat, a slaare may be separated from the
rest.'
§ 13. Co-tenancy of Husband and Wife.
It has been mentioned that when there are but two joint-
tenants, and they are husband and wife, the property held by
1 Foi-dyce t. Hioks, 80 la. 272. empt home. Wolf v. Fleischacker, 5
2Sei-vantiv.Lusk,43CaL238;Rad- Cal. 344; S. C, 63 Am. Dec. 131;
cliS V. Wood, 35 Barb. 53. Reynolds v. Pixley, 6 Cal. 165 ; Giblin
3 Newton v. Howe, 39 Wis. 531 ; v. Jordan, 6 Cal. 417 ; Kellersberger v.
Wright V. Pratt, 31 Wis. 99. In Cali- Kopp, 6 Cal. 565 ; Bishop v. Hubbard,
fornia, before 1868, land held in com- 28 Cal. 517 ; Elias v. Verdugo, 27 Cal.
mon or by joint-tenancy was not ex- . 418 ; Beaton v. Son, 33 CaL 481 ;
empt under the homestead law : so a Kingsley v. Kingsley, 39 Cal. 665;
difference will be found between the Emerson v. Sansome, 41 Cal. 553 ; Ca-
earlier and the later cases presented meto v. Dupuy, 47 Cal. 79 ; First Nat
below, though the later ones can go Bank v. De La Guerra, 61 Cal. 109 ;
no further than to hold that the in- Carroll v. Ellis, 63 Cal. 440 ; Fitz-
terest of the tenant is exempt — not gerald v. Fernandez, 71 CaL 504.
that it can possibly constitute an ex-
CO-TENANACY OF HUSBAND AND WIFE. 141
them as such may be made their homestead and occupied by
them as such, without any of the absurd results which have
been suggested. But they cannot join in conveying an un-
divided interest in such homestead property to a third person,
so as to make him a joint- tenant or a tenant in common with
them without destroying their homestead privilege.'
The husband was the head of his family. He had an in-
terest in the tract of land on which he resided greater than
the homestead limit of value in his state. His wife also
owned an interest in it greater than the monetary homestead
maximum. It was held, in a suit in which the husband was
sued as debtor, that the whole exemption could be claimed by
him to protect his interest as far as it would do so.^
In stating the exceptional case of married joint-tenants and
such tenants in common — very curious as the exception is —
some courts have gone beyond it and held, not only that they
may hold and occupy their dwelling as their homestead under
such title and without partition (which is certainly correct),
but that they may hold it in common with others.' This,
literally taken, is in direct conflict with the well-considered
decision cited above on this point. If others have interest in
the family dwelling, the married Qccupants cannot exclusively
own, nor have exclusive right of possession.
The occupancy would be by sufferance, so far as the interests
of others are concerned. Those others may be bachelors to
whom the law offers no homestead rights ; rather, they may
be persons who have not complied with any of the conditions.
With their consent, the man and wife might still occupy the
dwelling, but it could not be wholly a homestead in the tech-
nical sense of the word, and the law does not recognize a part
of a one.(
With the assent of his co-tenants in common, one may claim
homestead as against his creditors, it has been said, without
qualification and without reference to the exceptional situation
of marital parties as co-tenants ; * but evidently only the exemp-
tion of the interest owned by him in the homestead could have
been meant.
1 Howes V. Burt, 130 Mass. 368. Tharp v. Allen, 46 Mich. 389 ; Sherrid
2 Hart V. Leete, 104 'Mo. 315. v. Southwiok, 43 Mich. 515.
'Lozo V. Sutherland, 38 Mich. 168; <McGrath v. Sinclair, 55 Miss. 89;
Cleaver v. Bigelow, 61 Mich. 47 ; Thorn v. Thorn, 14 la. 49.
142 OWNERSHIP.
Husband and wife being tenants in common, and his inter-
est in the land being sold in bankruptcy proceedings against
him only (except two hundred acres reserved as the home-
stead), the purchasers became tenants in common with the
wife.' This is not a case where exemption of the interest of a
tenant in common is treated as homestead.'
It has been held (the homestead right not being distin-
guished from the mere right of exemption) that a husband
and wife owning an undivided interest in land may claim
homestead therein. His interest alone will not be considered
when the value of the liomestead is estimated ; he is necessa-
rily the occupant of the undivided property when he has
homestead right in it, and his wife's interest must be counted
with his in estimating the property.'
If a man and woman own real estate in common, and they
marry each other, all objection to homestead in property held
,in common or by co-tenants would vanish in their particular
case; They would have title and exclusive right of possession
to the whole, and all the usual difficulties would disappear.
The wife of a partner in undivided land may apply to have
a homestead set apart in it, with the consent of her husband,
who does not himself apply, and may have the land parti-
tioned for the purpose.''
An estate vested in a husband and wife is held as an en-
tirety, and not by moieties, and the title therefore not an
ordinary joint-tenancy.' One cannot incumber or alienate
the property without joinder by the other, though the hus-
band has the rents and, profits while the wife lives.^ It has
been held, however, that the husband's interest can be seized
1 Battle V. John, 49 Tex. 202. < Himnicutt v. Summey, 63 Ga. 586.
2 In Texas a tenant in common So, if the property has been' already
may have a homestead estate in land divided. Harris v. Visscher, 57 Ga.
held in cdmmon. His estate is not 229. But not exempt against prior .
limited to his undivided interest in 200 debts due by partner. Van Byke v. ^
acres constituting a rural homestead Kilgo, 54 Ga. 551. Wife would be
but may be an undivided interest of too late to apply after bankruptcy
200 acres in a larger tract. Lewis v. surrender. Smith v. Roberts, 61 Gx
Sellick, 69 Tex. 379 ; Jenkins v. Volz, > 223. See Laramore v. McKinzie, 60
54 Tex. 639 ; Clements v. Lacy, 51 Tex. Ga. 533.
156; Tex. Rev. Stat,, g 2336; Brown 'Gillan v. Dixon, 65 Pa. St 895;
v. McLennan, 60 Tex. 48. , Den v. Hardenburgh, 10 N. J. L. 43.
3 Herdman v. Cooper, 29 111. App. « Bates v. Seely, 46 Pa. St 248 ;
589. Stuckey v. Keefe's Ex'rs, 26 Pa. St.
PAIOTNEESHIP PEOPEETT. 143
and sold on execution during coverture,^ and that the husband
alone may convey his interest.^
A husband and wife together may be one tenant in com-
mon : they taking one moiety and a co-grantee the other.'
The law of survivorship, however, applies as in any joint-,
tenancy,* where it is recognized; but it is disfavored or abol-
ished in some of the states, except in respect to joint trustees.*
Still it would seem that it can be created by will or deed. It
has been held that a state cannot divest joint-tenants of the
right of survivorship."
The homestead of the widow derived from her late husband,
which is akin to dower, is different from other homesteads —
not requiring the same conditions: it is held that it would not
be lost by another's acquiring an interest in common with
her, such as an easement appertaining to the homestead es-
tate and enjoyed in common.'
The mother and children may be co-tenants of a home-
stead,— she having a terminable interest and they the fee,* —
yet the children's interest be liable to probate sale,' when the
exemption statute is merely to protect the homestead from
creditors — not to restrict the power of the courts to deal
with it as belonging to heirs."*
§ 14. Partnership Property.
It is generally held that partnership property cannot be the
subject of homestead exemption." For the policy of the state
397 ; Wales v. Coffin, 13 Allen, 313 ; ' Weller v. Waller, 181 Mass. 446 ;
"Hemmingway v. Scales, 43 Miss. 1 ; Dennis v. Wilson, 107 Mass. 591 ;
S. C, 3 Am. Eep. 586 ; Beach v. Hoi- Symmes v. Drew, 31 Pick. 378 ; Hoff-
lister, 8 Hun, 519. man v. Savage, 15 Mass. 180.
1 Tladung v. Rose, 58 Md. 13. » Hardin v. Osborne, 43 Miss. 533.
2 Benedict v. Gaylord, 11 Ct 383. » McCaleb v. Burnett, 55 Miss. 83.
3 Johnson v. Hart, 6 Watts & S. 319, lo Morton v. McCanless, 68 Miss. 810 ;
4 Stuckey v. Keefe's Ex'rs, 36 Pa. 10 So. 78 ; Miss. Code of 1857, art. 151,
St 397. p- 468 ; Acts 1865, p. 137.
5 Lowe T. Brooks, 33 Ga. 335; "Terry v. Berry, 13 Nev. 515;
Phelps V. Jepson, 1 Root (Ct), 48; Rhodes v. Williams, 13 Nev. 30;
Nichols V. Denny, 37 Miss. 59 ; Jones Bonsall v. Conly, 44 Pa, St 447 ;
V. Cable (Pa.), 7 A. 791 ; Sergeant v. Clegg v. Houston, 1 Phila. 353 ; Kings-
Steinberger, 3 Ohio, 305 ; Miles v. ley y. Kingsley, 39 Cal. 666 ; Gaylord
Fisher,10 Ohio, l;lWash.Real Prop. v. Imhoff, 26 O. St 317.; Guptil v.
(5th Ed.), 408. MoFee, 9 Kas. 30 ; Wright v. Pratt,
«Green V. Blanchar, 40CaL 194. 31 Wis. 99; Russell v. Lennon, 39
144: OWNERSHIP.
is not to perpetuate partnerships but to protect homes. !N"o
homestead is offered to firms by statute ; that is, no safeguard
is thrown around the property of a partnership, to save it
from execution, in the way family residences are saved.
The member of a firm cannot have a home for his family
in the share which he has in the firm's effects, or in his share
of the real estate of the firm. He cannot build a house in
such unseparated share.
Even though the real estate, claimed by an individual part-
ner as his homestead, stands in his name, and he has the legal
title, he cannot acquire homestead exemption right in it, if it
really belongs to his firm. He cannot acquire such right as
against his partners, or as against their creditors.^
When there has been a dissolution of partnership, and a
late member owns certain property in severalty derived from
the firm, there would seem to be no reason why he may not
have the benefit of a chattel exemption law.^ If one partner
can have individual ownership of a chattel by consent of his
copartners after a suit against the firm has been prosecuted
to judgment, it may come under the operation of exemption
law.' But the judgment creditor cannot be thus divested of
his general lien by such action on the part of the copartners.*
Partnership assets, when no longer the exclusive property
of a firm, but that of the individual members, may be subject
to statutory exemption.* Unless there are creditors of the
firm, there can be nothing to hinder exemption.
Wis. 570 ; Re Smith, 3 Hughes, 307 ; Stout v. McNeil, 98 N. C. 1 ; Scott v.
Re Handlin, 3 Dill. 390 ; Holmes v. Kenan, 94 N. C. 296 ; Burns v. Harris,
Winchester, 138 Mass. 543; Weller 67N. C. 140. And it is held that a cred-
T. Weller, 131 Mass. 446; Pond v. itor cannot question the allotment
Kimball, 101 Mass. 105 ; Bates v. of homestead to one partner, from
Bates, 97 Mass. 393 ; State v. Spencer, partnership lands, — the other part-
64 Mo. 355. ners consenting. McMillan v. Parker
'Drake v. Moore, 66 la. 58; Hoyt (N. C), 13 S. E. 764.
V. Hoyt, 69 la. 174. 5 Watson v. McKinnon, 78 Tex.
2Worman V. Giddey, 30 Mich. 151. 310; Harrison v. Mitchell, 13 La.
3 Burns v. Harris, 67 N. C, 140. Ann. 260 ; Farmers' Bank v. Frank-
4 In North Carolina, partners may lin, 1 La. Ann. 393 ; Brewer v.
consent that one of them shall have Granger, 45 Ala. 580 ; Stewart v.
homestead laid oft in partnership Brown, 37 N. Y. 350 ; Eadcliff v.
realty, despite the creditors. McMil- Wood, 35 Barb. 52,
Ian V. Parker (N. C), 13 S. E. 764;
PAETNEESHIP PEOPBETY. 145
If a mortgage be given by co-owners to secure a loan, and
one subsequently buy the other's part, he cannot claina home-
stead in the land against the mortgage. Especially is this true
when he h,as assumed the whole mortgage-note as the pur-
chase-price, since exemption does not apply to the vendor's
lien.*
A partner was allowed his homestead claim to one half a
tract of land that had been owned by the firm, after the other
partner had dissolved the partnership by deeding his interest to
his wife.^ The transfer to the wife did not make her a part-
ner ; but it made her joint-owner of undivided realty.
1 Soulier v. Sheriff, 37 La. Ann. 2 Watson v. McKinnon, 73 Tex.
163. Undivided property cannot be 210. As to the dissolution by the
the object of ^ homestead right in conveyance : lb.; Carroll v. Evans,
Louisiana. Brannin v. Womble, 33 37 Tex. 363 ; Rogers v. Nichols, 30
La. Ann. 805 ; Henderson v. Hoy, 36 Tex. 734 ; Story on Part, §§ 307, 358 ;
La. Ann. 156 ; Cole v. La Chambre, Lindl on Part, pp. 330, 698, 700.
81 La. Ann. 41 ; Duncan v. Eastiu, 30
La. Ann. 1130.
10
CHAPTEE. Y.
DEDICATION.
1. Selection of a Homestead
3. Selection of Two or More Tracts.
3. Platting.
4. Form of Land Selected.
§ 5. Declaration: Methods.
6. Declaration: Requisites.
7. Notification.
8. Recording.
§ 1. Selection of a Homestead.
The beneficiary is confined to one homestead. He occupies,
with his family, but one. He may own several houses sus-
ceptible of being family residences, and all may be used as
homes by different persons under lease from him, and each
may be the homestead of a tenant, if dedicated as such upon
leasehold title, by the lessee ; yet the landlord himself can
claim only his own residence as his homestead. It would be
manifestly absurd to hold that his tenants can have home-
steads in the houses he has rented to them, and that he could
include all or any of the leased tenements with the real estate
he occupies as a home, to constitute his homestead.
Why is selection necessary? It is common enough for a
man of means to have a winter and a summer residence ; to
have a city and a country home, yet he can have but one
homestead, in the legal sense. He cannot have one, and his
wife another, in that sense. He and his wife cannot have one,
and his minor children another, in that sense. He may oc-
cupy a tract of land larger than that which the statute exempts.
It therefore is necessary for him to select from his realty the
house and land to be exempted, and dedicate it by making a
declaration (in states which require this), to protect it from
execution for his personal debts, upon his compliance with
the condition. It is well settled that one person cannot have
two homesteads.'
1 Beard v. Johnson, 87 Ala. 729 ; 55 Ala. 576 ; Kresin v. Mau, 15 Minn.
Hayv. Baugh, 77 111. 503 ; Walters v. 116; Kelly v. Baker, 10 Minn. 134;
People, 18 111. 194; Weiner v. Ster- Adams v. Jenkins, 16 Gray, 146;
'ing, 61 Ala. 98; Bender v. Meyer, Thatcher v. Howard, 3 Met 45 ; Good-
SELECTION OF A HOMESTEAD. 147
When a homestead, within the prescribed value, has been
duly established, it has been held not impaired by the erection
of a second dwelling for a tenant, upon the exempt grounds,
and that the second will not be subject to execution, unless
the property be of the full monetary extent without it.'
It is quite settled that there could have been no declaration
upon the two dwellings, when the homestead was established ; "^
but the subsequent erection of a dwelling-house on land al-
ready impressed with the homestead character, for a purpose
other than a home for the declarant and his family, has been
held not to aflfect the dwelling really occupied. The declarant
remains the beneficiary as to his own residence.'
It has been held that after a homestead of the value of one
thousand dollars (the limit under the applicable statute) has
been laid off, if the debtor increase its value by building, his
creditors may reach the excess by proceeding in equity but
not by execution.* This is not the rule in every state. Ordi-
narily there would be division before sale, or a division of the
proceeds after sale when the property is indivisible in kind.
A tenant at will, or a lawful possessor under any title, who
is the head of a family and occupies the premises with his
family, may have a home, part of which is held under one
kind of title, and part under another, and the home be ex-
empt ; ' for the parts constitute but one home. He may have
a distinct home, and then add to it, enlarge it by acquiring
additional ground and out-buildings, or by constructing new
all V. Boardman, 53 Vt. 92 ; True v. nan v. His Creditors, 63 Cal. 286 ;
Morrill, 28 Vt. '672 ; EandeU v. Elder, First N. Bank v. MassengiU, 80 Ga.
13 Kas. 260 ; SchoflEen v. Landauer, 333 ; Holland v. Withers, 76 Ga. 667 ;
60 Wis. 334; Hornby v. Sikes, 56 Wis. Reynolds v. Hull, 36 la. 394
383 ; Hoffman v. Junk, 51 Wis. 618 ; i Lubbock v. McMann, 82 Cal. 226.
Kent V. Lasley, 48 Wis. 257, 264; ^Ib.; Tiernan v. His Creditors, 62
Johnson v. Harrison, 41 Wis. 386 ; Cal. 386 ; Maloney v. Hef er, 75 Cal.
Jarvis v. Moe, 38 Wis. 440 ; Herriok 434; In re Allen, 78 CaL 394.
V. Graves, 16 Wis. 157 ; In re Phelan, 3 Lubbock v. McMann, supra; Cal.
16 Wis. 76 ; Casselman v. Packard, Civ. Code, §§ 1341-3.
16 Wia 114; Bunker v. Locke, 15 ^Vanstory v. Thornton (N. C), 14
Wis. 635 ; Phelps v. Eooney, 9 Wis. S. E. 637.
70 ; Houston, etc. R. Co. v. Winter, 6 King v. Sturges, 56 Miss. 606 ; Par-
44 Tex. 597 ; Crockett v. Templeton, tee v. Stevcart, 50 Miss. 717 ; Camp-
65 Tex. 134; Garrison v. Grant, 57 bell v. Adair, 45 Miss. 170 ; Mosely v.
Tex. 603 ; In re Allen, 78 Cal. 394 ; Anderson, 40 Miss. 54.
Maloney v. Hefer, 75 Cal. 434; Tier-
148 DEDICATION.
apartments to his dwelling ; and he may dedicate the whole
as one homestead, within legal limitations.
Though the householder occupy a leased lot, he may add by
purchase an adjoining lot and hold it by a different title, and
occupy both as his exempt home, if both constitute a single
residence with its necessary appurtenances, provided he do
not thus exceed the quantitative and monetary limitation.'
One urban lot being the quantitative limit, it cannot be ex-
tended by the erection of a business block thereon which en-
croaches upon an adjoining lot, and yet remain exempt. Though
the family residence of the owner was a part of the block, and
that part not worth more than the monetary limit, the whole
block was subjected to execution, when such extension had
been attempted.^
A house built for two families, part occupied by the owner
and part by his tenant, was held to be not wholly exempt.'
A husband, who has divided the homestead, giving his wife
half of the exempt land which she continues to occupy, can-
not acquire homestead right in another tract of land ; but his
half of the first may remain exempt and still constitute part of
the homestead as originally held.* "Were he allowed to make
such an exchange at will, the piiblic would find it difficult to
know what part of his landed estate could be looked upon as
security when he is trusted. He certainly could not have one
homestead and his wife have another.
A man living upon his wife's property as the family home-
stead cannot pre-empt another one on the public domain.'
If a homestead continues in legal existence as an exempt
residence after the constitution, under which it was estab-
lished, has been superseded, the beneficiary cannot have an-
other set apart to him under the new constitution. If the
new one allows more exemption than he already enjoys, he
may have his old benefit supplemented.^
1 Tyler v. Jewett, 82 Ala. 93, 99 ; adjoining lot owned by the same oo-
Wassel V. Tunnah, 25 Ark. 101 ; En- cupant was considered allowabla
glehardt v. Shade, 47 Cal. 627 ; Wal- Geiges v. Greiner, 68 Mich, isa
tersv. People,18Ill. 194;S. C.,65 Am. < Crockett v. Templeton, 65 Tex.
Dec. 730. 134. Compare Edmonson v. Bless-
2 Geney v. Maynard, 44 Mich. 579. ing, 42 Tex. 596.
3 Dyson v. Sheley, 11 Mich. 627. ^ Garrison v. Grant, 57 Tex. 602.
But a homestead projecting on an ^ First National Bank v. Maseen-
SELECTION OF TWO OK MOEE TEAOTS. 14:9
§ 2. Selection of Two or More Tracts.
The separation of the homestead into parts, by a street or
other intervening space, does not confine the exemption right
to a single part.^ Though a homestead may be confined by a
statute (or by the construction given to a statute) to a single
tract of, land, yet that is not universally required ; and it is
plain that there may be but one family residence upon a farm
or town property, while parts of the dwelling and appurte-
nances are separated. All, taken together, may constitute a
single home, susceptible of dedication as a homestead.
While the, homestead is limited to one tract or piece of land
or one place of abode,^ it may be composed of contiguous
pieces, and each piece may be held under a different title.'
And the titles need not be legal, since equitable interest is
suificient, as heretofore shown.*
"When homestead is limited in quantity by the provision
that it shall not exceed a given number of acres, the circum-
stance that the beneficiary lives with his family on a home-
stead of less than the maximum allowance is no reason for
claiming another tract as exempt when it is not contiguous
to that which he occupies.*
gill, 80 Ga. 333. Thus, under the 15 Kas. 150 ; Linn Co. Bank v. Hop-
Georgia constitution of 1868, exempt- kins (Kan ), 28 P. 606 : " Two tracts
ing realty and personalty to the of land touching only at one point
amount of $3,000, Massengill had had are not contiguous. In the case of
a "homestead of realty and person- Kresin v. Mau, 15 Minn. 116 (Gil. 87),
alty " set off to him. After the adop- it was said : ' Two tracts of land
tion of the constitution of 1877, he mutually touching only at a corn-
had another "homestead of realty mon corner — a mere point — cannot,
and personalty " set off to him. The according to any ordinary or author-
latter was held unauthorized. Ex- ized use of language, be spoken of as
emption under the latter is $1,600 of constituting one body or tract of
realty and personalty. He could have land.' The same construction has
his first homestead " supplemented " been placed upon acts of congress in
to reach that sum, if found below it ^ relation to the entry of public lands.
See Holland v. Withers, 76 Ga. 667. 1 Lester, Land Laws, p. 360. See,
1 Acker v. Trueland, 56 Miss. 30; also. Hill v. Bacon, 43 111. 477; Ald-
Parisot v. Tucker, 65 Miss. 439. See rich v. Thurston, 71 111. 324 ; Thomp-
Baldwin v. Tillery, 63 Miss. 378 ; Col- son, Homest. & Ex., §§ 120, 145, 147.
berfc V. Henley, 64 Miss. 374 ; Perkins The order of the district judge dis-
V. Quigley, 63 Mo. 498. charging the attachment levied upon
2 Randal v. Elder, 13 Kas. 257. the S. W. i of the N. E. i of section
' Randal v. Elder, 13 Kas. 257. 21, in township 19, of range 24, should
* Chap, on Ownership ; Tarrant v. be reversed."
Swain, 15 Kas. 146 ; Moore v. Reaves, ^ McCrosky v. Walker (Ark.), 18
150
DEDIOATIOir.
Contiguity is not invariably required. A homestead may
include land separated by an easement (such as the right of
S. W. 169. CockrUI, C. J. : " The ap-
pellant is the owner of an undivided
half of a forty-acre farm, upon which
he has established a homestead. He
is also owner of an undivided half of
a tract of timbered land, containing
one hundred and thirteen and one-
half acres, distant one mile from the
farm. The court found from the
evidence that the last mentioned
tract had long been in use in con-
nection with the homestead, to sup-
ply fuel for its use, but declared that
such use did not constitute it a part
of the homestead, and for that rea-
son declined to direct the clerk to
issue a supersedeas to withhold it
from sale on execution.
"The only question presented by
the appeal is whether a homestead
can embrace land a mile away from
that upon which the dwelling is sit-
uated, when used in connection with
the homestead. The courts divide
in their answers to this query. In
Thomp. Homest. & Ex., p. 145, the
cases upon the two sides are collected,
and it is there said that ' the weight
of authority is that the detached
tracts of land, although used and cul-
tivated as a part of the farm, form
no part of the statutory homestead.'
It is difficult to determine how the
question stands on the adjudicated
cases. Some of the decisions on the
question are of no value in determin-
ing the legal meaning of the term
'homestead,' because they are con-
trolled by the phraseology of the
written law, which they construe.
There is no express ruling upon the
point by this court, but the question
has been several times most perti-
nently adverted to. In the first de-
cision upon the question of the
homestead exemption in this state.
Chief Justice English defined a
homestead as 'the place of a home
or house ; that part of a man's landed
property which is about and contig-
uous to his dwelling-house.' Tum-
linson v. Swinney, 23 Ark. 403. In
McKenzie v. Murphy, 24 Ark. 158,
Judge Fairchild, in delivering the
opinion of the court, speaks of the
homestead ' as the land, or town or
city lot, upon which the family resi-
dence is situated.' In Wilhams v.
Porris, 31 Ark. 468, Chief Justice
English treats the definition given in
Tumlinson v. Swinney as applicable
to the provisions of the constitution
of 1868. As late as 1886, Judge Smith,
in announcing the judgment of the
court in McCloy v. Amett, 47 Ark.
453 ; 3 S. W. Rep. 71, repeated the
same definition in a case governed
by the constitution of 1868, and said
that that was ' the defined legal sense
of the term.' There was nothing in
the phraseology of the act first re-
ferred to, or in the constitution of
1868, to restrict the meaning of the
term 'homestead.' The definition
thus frequently sanctioned by the
judges of this court is substantially
that given by Webster, Worcester,
and the Imperial Dictionary, as well
as by Burrill, Bouvier and Anderson.
In neither of the cases cited was
there a claim of a non-contiguous
tract of the land as a part of the
homestead, and, while the cases may
be said not to be strictly controlling
as authority, they are entitled to
great respect, as the opinions of some
of the first jurists of our bench, to
the effect that the common accepta-
tion of the term as given by the lexi-
cographers is also its legal meaning.
" We find notliing in the constitu-
tion of 1874, the provisions of which
govern this cause, indicating that the
framers of that instrument intended
SELECTION OP TWO OE MORE TEAOTS.
151
way) into two tracts, yet retain the exempt character.^ The
easement may not be for the benefit of the public. It may be
necessary to the homestead holder in the enjoyment of his
own property. He may require it when other property sep-
arates his from a public road or street. In this respect, a
homestead is not different from other real estate. So prem-
ises may be divided in the setting-apart of a homestead,
though it be necessary to create an easement to enable one
having the rear part of a building, or tract, or lot, to have an
outlet.^ The part assigned as a homestead would be of little
value as a home, unless the means of ingress and egress were
provided, if its situation is in the rear of a lot. Contiguous
tracts, forming one plantation, were treated as a homestead
though only one of them was occupied as such.'
to enlarge the commonly-accepted
meaning of the term. It prescribes
that the homestead of any resident
of the state who is married or the
head of a family shall not be subject
to lien or sale, with certain excep-
tions, and that ' the homestead out-
side of a city, town or village, owned
and occupied as a residence, shall
consist of not exceeding one hundred
and sixty acres of land, with the im-
provements thereon, to be selected by
the owner.' Art 9, §§ 3, 4. The
privilege of seleclflon cannot be con-
sidered an enlargement of the home-
stead privilege. It is rather a restric-
tion, for the selection is limited to
lands upon which the homestead has
been already impressed, and is in-
tended as a means of carving a part
out of the whole when the home-
stead exceeds the area limited by the
constitution. Even where it is held
that the homestead may consist of
non-contiguous tracts, a capricious
and unreasonable selection of non-
contiguous tracts within the home-
stead area is not permitted. Jaffrey
v. McGough, 88 Ala. 648; 7 South.
Rep. 333. By the terms of the con-
stitution, the lands claimed as a
homestead must be 'occupied as a
residence,' and it is limited to a
given area, ' with the improvements
thereon.' As the improvements must
comprise a dwelling-house, and must
be upon the lands claimed as a home-
stead, it would seem to follow that
the constitution contemplates that
the homestead should be the land
upon which the dwelling is situated ;
and that goes to confirm the view
that the term is used throughout in
its commonly-defined sense. We con-
cur, therefore, with the circuit court
in the ruling that it was not intended
that the homestead might include a
tract of non-contiguous laud lying a
mile away from that upon which the
residence is situated. From a num-
ber of cases, Bunker v, Locke, 15
Wis. 635 ; Randal v. Elder, 13 Kas.
260; Kresin v. Mau, 15 Minn. 116
(Gil. 87) — may be selected as stating
the reason for the rule."
1 Allen v. Dodson, 39 .Kaa 330;
Randal v. Elder, 13 Kas. 357, S61.
2 Schaeffer v. Beldmeier, 9 Mo. App.
445; McCormick v. Bishop, 38 la.
333 ; Rhodes v. McCormick, 4 la. 368.
3 Grimes v. Portman, 99 Mo. 339.
152 DEDICATION.
They would not generally be so treated. Non-occupancy
would be fatal to any claim for the inclusion of a tract ad-
joining the farm actually used, in most of the states. If the
decision cited is to be followed in the state where it was ren-
dered, it hardly will be in others. Parts of a home farm may
be devoted to pasturage or may lie idle, and yet the exemp-
tion right remain unforfeited ; but, to extend the exemption
to a contiguous tract of wild or neglected land seems unwar-
ranted by any homestead statute.
When the law does not limit homestead to the particular
place where the beneficiary resides but allows land appurte-
nant thereto to be assigned with it as such, it is not abso-
lutely necessary that such land should be adjoining to the
home tract.*
A homestead may embrace more than one lot or tract. If
it embrace separate parcels, there must be unity of use so as
to constitute together one dwelling or residence or home
farm.^ And this is true, whether the different parcels be con-
tiguous or not. The criterion is the home character.
In selecting and dedicating a homestead, the owner has no
right to declare upon two or more pieces, when he could
just as well select the allowed quantity, having the value per-
mitted by statute, in one lot or tract. He must not incom-
mode others that he may have two or three of the richer
fields of a farm separated from each other. Homestead in
parcels is allowable only when necessary.
Even if the quantitative limit has not been reached, it can-
not be eked flut by another piece of land on which a business,
not connected with, or essential to, the homestead, is done.'
The owner is not obliged to reach the 'maximum. It is his
right to do so, and very natural that he should, but he cannot
disregard the condition that all he selects must be truly a
home for himself and his family. The fact that he and they
occupy one piece of land will not avail when the question
arises whether he has complied with all conditions in respect
to the others.
Two tracts widely separated could not be set apart as the
1 See Eiley v. Gaines, 14 S. C. 454. ' Mouriquand v. Hart, 23 Kas. 594 ;
2 Reynolds v. Hull, 86 la. 394. Garrett v. Jones (Ala.), 10 So. 703.
SELECTION OF TWO OK MOEE TEAOTS. 153
homestead of the widow from the decedent's property, it was
held.'
This probably would not be so held everywhere. The
widow's homestead is a very different thing from that which
the owner originally sets apart and dedicates as the home of
his family. The widow, taking her homestead very much as
she takes her dower, in many of the states, is not invariably
required to occupy it as a condition of retaining it. When
not so required, why may not her portion as homestead con-
sist of widely separated tracts, just as her portion as doWer
maj' be, when there is any necessity for it?
There is very good reason, however, why the original dedi-
cation or selection of a home for the family by its head,
should not be that of two widely separated tracts. Both
could not be occupied as a homestead, and thus an essential
condition to the enjoyment of the immunity from execution
would be wanting. Such disconnected parcels are allowable
only where occup9,tion is unnecessary, or where, under excep-
tional statutory provisions, certain/ amounts in money or land
are saved to the debtor when execution is pending against his
property though no homestead has been previously dedicated.
Such provisions create exemption rather than homestead ; and
if a given number' of acres, or a given money- value of land,
is saved* to him, it would not matter that the thing exempt is
in parts and they widely separated. The home ide~a does not
enter into the apportionment.
Where the protection of the family home is the policy of
the legislator — not merely the saving of a certain sum to
the insolvent debtor — the purpose is accomplished when the
household is secured from disturbance, though the extent of
the allowable acreage be not covered by the selected site. A
piece of land many miles away from the home, not cultivated
or otherwise used for family purposes, is not necessary to the
accomplishment of the legislator's purpose.
Good faith must be observed in the selection of homestead
by the owner. Creditors have no notice of the selection but
by his occupancy of the premises, in several states. If he has
1 In re Armstrong, 80 Cal. 71 ; King v. Gotz, 70 Cal. 336 ; In re Crowey, 71
Cal. 302 ; In re Noah, 73 Cal. 593.
154 . DEDICATION.
an outlying tract in addition to his home farm, how shall they
know that they may not trust him, looking to that as secu-
rity? What justice can there be in letting him have that
as a means of credit, yet allovr^ing him to claim it as exempt
when the creditor is about to seize it?
The owner of two lots lived with his family in one and
rented the other to a tenant. Apprehensive that creditors
would attach the latter, he induced the tenant to vacate it ;
and he brought it within his home inclosure on the day before
attachment was really levied upon it ; and he admitted that
he did so to render it part of his homestead, and for the pur.
pose of defeating his creditors. Both lots were held to be
embraced in his homestead.'
From the time he thus actually employed both, his home-
stead included both, no doubt ; but the rule is not general that
debts existing prior to dedication could be thus avoided. Both
lots were deemed in use as one homestead, when the attach-
ment was levied, but what notice had the creditor, at the time
he trusted the debtor, that the rented property was not liable?
'No prior, formal dedication and recordation of the home-
stead as such was required by the statute of the state where
the cited decision was rendered. Debtors there may claim at
the eleventh hour. Use is required, but it may be business
use as well as home occupancy, and the use or occupancy may
begin just before a levy with the sole purpose of defeating
the levy, as this decision holds. Creditors cannot be quite
sure that the premises occupied by the debtor are all that will
prove exempt when pay-day comes. There is no notice of
any sort as to what unoccupied property is good security, un-
less the debtor has already a home of the maximum quantity
or value.
§ 3. Platting.
When the dwelling was partly on forty acres belonging to
a husband and partly on an equal tract belonging to his'wife,
he could not resist execution by injunction, but should have
resorted to the platting of the land in order to save the parts
of the two tracts and the residence.^ That is, he should have
1 Milburn Wagon Co. v. Kennedy, 2 Henderson v. Rainbow, 76 la. 320.
75 Tex. ai3.
, PLATTING. 155
complied with the law so as to make his home reservation
known to creditors. The conjunction of the parts of the two
tracts may not have made a body of land larger than the stat-
ute allows ; but how could the public know what parts were
selected? The law governing the case provides that the home-
stead may embrace one or more lots or tracts of land, with
improvements and appurtenances, not exceeding half an acre
within a town plat or forty acres without such plat, unless the
value be less than five hundred dollars. In such case, the
quantity may be enlarged to reach that value. It cannot in-
clude lots or tracts which are not contiguous unless they are
habitually used together, in good faith, as one homestead.
The selection may be by the owner (husband or wife), by mark-
ing the bounds and giving description such as is usual in in-
struments conveying land, which description, with the plat,
shall be recorded in the Homestead Book. If the owner (hus-
band or wife) fail to make, plat and record as directed, he
does not thus forfeit the right of exemption ; but the officer
executing the writ against the property may cause the home-
stead to be marked off, platted and recorded at the defendant's
expense.^
A rural homestead, circumscribed by the extension of town
boundaries after its dedication, may retain its former dimen-
sion when not platted so as to be parceled as town lots.^
When corporate bounds are extended so as to include a
rural homestead, it will not thus be subjected to the urban
limitation of quantity, though lands adjoining it be blocks,
lots and streets.'
Part of, a rural homestead, protruding within town lines, is
not limited by the urban rule when the land has not been
platted and does not abut on a street. Used for agricultural
purposes and a home for years, it does not necessarily lose its
exemption character or its rural advantages because of the
encroachment of the town upon it.*
1 McClain's Code of Iowa, §§ 3163 8 Posey v. Bass, 77 Tex. 512 ; Bas-
etseq. sett v. Messner, 30 Tex. 604; Nolan
2Finley v. Dietrick, 13 la. 516; v. Reed, 38 Tex. 436.
McDaniel v. Mace, 47 la. 519 ; Truax < Beyer v. Thomeng (la.), 46 N. W.
V. Poo], 46 la. 356 : the town not be- 1074; McDaniel v. Mace, 47 la. 509.
ing incorporated, the country quan-
tity allowed.
156 DEDICATION.
When the statute exempts " one lot," " two lots," " half a
lot," etc., in any incorporated town, the lot is understood to ,
be such a one as the plat of the town shows.'
Platting city lots is not everywhere made essential to the
dedication of a homestead within the corporate limits. It
may be postponed till the ground has been levied upon, when
it will be the duty of the seizing and selling officer to have
the platting done and the homestead officially set apart. Mean-
while the householder is under the protection of the home-
stead law.2
If the law does not make the selecting, platting and record-
ing of the homestead an essential to the beneficiary's enjoy-
ment of the privilege of exemption, he may occupy his home
and let such acts alone till his land is levied upon, or about to
be. He may then claim, and make it the duty of the seizing
officer to have the platting and recording done. He is not
deemed guilty of laches by such delay, and he forfeits none of
his rights.'
Sale by the officer without platting when demanded strikes
with nullity not only the adjudication of the exempt portion
of the property but that of any other that might have formed
a portion of the homestead.* Recording of the platting is es-
sential to the validity of the sale.'
But, since the statute requiring platting is directory, it is
held that if the owner and the officer fail to designate the
homestead before execution, the sale of that with other land
will not be void, even if it be voidable.* If both husband and
wife join in the conveyance, there is no need of platting.'
A farm, jutting into an incorporated village, with the dwell-
ing-house within the village lines, may yet be accounted a
rural homestead, when the part thus protruding has not been
1 Wilson V. Proctor, 28 Minn. 13 ; Hart, 63 la, 620 ; Goodrich t. Brown,
Lundberg v. Sharvey, 46 Minn. 350. 63 la, 247 ; Visek v. Doolittle, 69 la.
2Sargeantv. Chubbuck, 19 la. 37. 602.
3 Sargeant v. Chubbuck, 19 la. 37 ; s White v. Eowley, 46 la. 680.
Nye V. Walliker, 46 la. 306 ; Linscott « Newman v. Franklin, 69 la. 344 ;
V. Lamart, 46 la 313 ; Green v. Far- Martin v. Knapp, 57 la. 336. See
rar, 53 la. 426. Brumbaugh v. Zollinger, 59 la. 384.
iLinscart v. Lamart; 46 la. 312; See Farr v. Reilly, 58 la. 399.
White V. Eowley, 46 la. 680 ; Lowell '' Quinn v. Brown, 71 la. 376.
V. Shannon, 60 la. 713; Owens v.
PLAaiiNa. 15Y
platted.^ It is generally the duty of an owner occupying
more acreage than the law exempts, to have it platted, where
the law prescribes the mode, or directs it to be done ; but
neglect to do so is not necessarily fatal to the exemption
right.^
The requirement that the homestead shall be reserved, or
set off from non-exempt property, has been held a condition
to the enjoyment of the exemption privilege; so that, upon
neglect of it, the whole property will continue to be liable.'
Where exemption takes effect by operation of law, without
any act on the part of the beneficiary, creditors cannot avail
themselves of the debtor's acts or neglects relative to home-
stead sislection.*
The laying ofp, or designating by metes and bounds, certain
land as homestead, is not a necessary act in the creation of a
homestead right. It makes certain what is to be held exempt ;
and, when the owner is in possession of other landed prop-
erty, it may be necessary that the particular acreage, which is
to be held with his family dwelling-house, should be distinctly
selected and made known to creditors. If, however, only the
number of exempt acres is owned by him, and the law accords
him such exemption without making the platting, or setting
of it out, a condition, he may simply occupy it and hold it
free from any judgment rendered on any ordinary debt after
the beginning of his occupancy of it.'
1 Orr V. Doughty, 51 Ark. 527. Carley, 26 S.,C. 1. A judgment beara
2 When land in greater quantity no lien on such land. lb.; Duncan v.
than that which the law exempts is Barnett, 11 S. C. 33.3, distinguished.
owned by the head of a family, he On waiver, see Agnew v. Adams, 26
should have the prescribed quantity S. U. 101. Occupancy is not neces-
laid out, platted, and the plat re- sary to a claim of homestead in that
corded, in Georgia. Pritchard v. state. Nance v. Hill, 26 S. C. 227 ;
Ward, 64 Ga. 446. Swandale v. Swandale, 25 S. C. 389.
3 Spoon V. Eeid, 78 N. C. S44 ; If the homestead be worth more than
Nichol V. Davidson, 8 Lea, 389 ; Gaines $1,000, the debtor may pay the excess,
V. Exchange Bank, 64 Tex. 18. sixty days after litigation over the ap-
* In South Carolina, no declaration praisement has ceased. Simonds v.
or formal selection of a homestead is Haithcock, 26 S. C. 595. Notice of
required. The owner of land worth exceptions filed to appraisement by
no more than $1,000 has it exempt by judgment creditors need not be
law. He cannot waive the exemp- served on the judgment debtor, who
tion in favor of creditors. Myers v. is a party. Ex parte Ellis, 20 S. 0. 844.
Ham, 20 S. 0. 522; Ketchin v. Mo- ^Ketchen v. McCarley (S. C.) 11 S.
158 DEDICATION.
It has been held that in an action to recover land bought
by the plaintiff at an execution sale, under a judgment on a
note, advantage can be taken of the fact that homestead was
not laid off ; though the defendant did not specially claim it.'
The court said : " It appears from the evidence offered by the
plaintiff [the purchaser] that no homestead was laid off, and
that the land was all that the judgment debtor owned. .
The debt was presumably of the date of the judgment." ' It
therefore became material to show the date of the note.' The
judge stated incidentally, as a fact found, that the indebted-
ness was contracted prior to 1868.
§ 4. Form of the land Selected.
Land should be selected so that the number of acres be
embraced in a compact body, when practicable, and not pur-
posely laid out in an irregular shape to secure the most valu-
able tract within the limited quantity.^ But the use made of
the land may be such that a disconnected piece may be con-
sidered to form a part of the main portion of the homestead."
As far as practicable, the legal subdivisions of land by the
survey's of the general government should be observed in the
selection of a state homestead, when a half or quarter or
eighth or sixteenth of a section is the limit.' This is not a
fixed rule but it is favored by the courts, rather than the
will of the debtor to select a very irregular tract from selfish
motives. It is not a rule to be followed when it works un-
reasonably.'
Judge Somerville humorously says : " A homestead, if we
could suppose such a case, fenced in the shape of an animal, a
E, 1099; Cantrell V. Fowler, 34 S. C. 83 Ala. 93: Houston, etc. E. Co. v.
434. Windsor, 44 Tex. 597, 611 ; Prior v.
1 Buie V. Scott, 107 N. C. 181 ; Mob- Stone, 19 Tex. 371 ; S. C, 70 Am. Deo.
ley V. Griffin, 104 N. 0. 112. 350; Gregg v. Bostwick, 33,Cal. 220;
2 Hill V. Oxendine, 79 N. G. 331; Perkins v. Quigley, 63 Mo. 498 ; Hoitt
Mebane v. Layton, 89 N. 0. 396. v. Webb, 36 N. H. 158; Buxton v.
3Mobleyv. Griffin, 104 N. C. 113; Dearborn, 46 N. H. 43; Greely v.
McCracken v. Adler, 98 N. C. 400. Scott, 3 Woods, 657 ; Hubbai-d v. Can-
< JafErey v. McGough, 88 Ala. 648 ; ady, 58 111. 425 ; Stevens v. HoUings-
Kresin t. Mony, 15 Minn. 116. worth, 74 III. 203.
Bid.; David v. David, 56 Ala. 49; sjaflfrey v. McGough, 88 Ala. 648,
Alford V. Alford, 88 Ala. 656; Discus 653; Aldrioh v. Thurston, 71 111. 334.
V. Hall, 83 Ala. 159; Tyler v, Jewett, 'Kent v. Agard, 33 Wig. 150.
FORM OF LAND SELECTED. 159
bird, a flower-garden, or other fantastic shape, would not cease
to be exempt from execution on this account, provided it be
of lawful area and value, and the entire tract owned was in
this particular form ; although it is manifest that a selection
in these quaint forms, made from a large tract of land, would
be unreasonable and capricious, and not allowable. If so, like
the cloud described by Hamlet to Polonius, it might just as
well be ' the shape of a camel,' a ' weasel,' or a ' whale,' as in
any other that might be dictated by the fancy of the person
making the selection." ^
Judicial notice should be taken of the fact that government
land is parceled in sections, and half and quarter sections, etc.,
and that city property is platted and divided into squares and
lots. And if a homestead claimant has his home and farm on
a forty-acre tract, for instance, and that tract is about the
monetary limit of exemption, or within it, the court will deem
that his homestead rather than parts of it and of another
tract. So, if there are several lots, the one occupied by him,
of the proper value, will be understood as his homestead;
and an adjoining lot will not be included with it so as to
render the value greater than the amount legally exempted.^
But if one adjoining lot, or more, are used with that on which
the dwelling Stands for home purposes, and all together do
not exceed in value the statutory limitation, they may all be
exempt.'
In the older states, where boundaries are irregular, follow-
ing running streams or other meandering lines, it will be
found impracticable to confine the homestead, limited to a
given number of acres, to squares or oblong forms, as may be
readily done in the newer states where the land is laid off
originally in sections. But it should never be allowed the
homesteader to cut a tract into such a shape as to injure the
remaining land for no other purpose than to give himself
the richest part of it. Suppose he should select forty acres,
in the form of a cross, with an acre's width to the upright and
to the horizontal piece, carving this out of a plantation of
1 Jaffrey v. McGough, 88 Ala. 651. 681 ; Hill v. Bacon, 48 111. 478; Ald-
2 Brock V. Leighton, 11 Bradw. rich v. Thurston, 71 111. 824.
(111. App.) 361 ; Gardner v. Eberhart, 8 Boyd v. FuUerton, 125 111. 437.
83 111. 316; Raber y. Gund, 110 111.
160 DEDICATION.
many hundred acres : would any court countenance it ? This
is an extreme case supposed; but there may be selections
approaching to such an absurdity, such as that condemned by
Judge Somerville, above noticed. In the absence of any stat-
ute prescribing the form of the homestead, courts ought never
to permit a selection manifestly made in disregard of the rights
of others. Creditors are interested in the parts of a tract
which are not exempt; and it never was the intent of the
legislator to cut them off from their remedy against non-
exempt property while protecting a limited quantity as a
homestead. While the confinement of a homestead to the
regular shape of quarter or half sections of land, or to the
form of city lots, as suggested by the learned judge quoted, is
not a rule because not everywhere practicable, it may be laid
down as a rule that one authorized to select, declare and re-
cord a homestead within a quantitative limitation, cannot be
permitted to carve it out of his land in such form as to leave
the remainder worthless or to impair its value so that credit-
ors shall be injured.
§6. Declaration — Methods.
Dedication may be by declaring and recording, or simply
by occupancy. The condition of dedication is necessary to
the acquisition of the homestead character, in every state
where there is a homestead law, though there is exemption,
in a few others, without it — exemption without recognition
of the technical homestead. In the majority of the homestead
states, the only dedication required is family occupancy. 'No
selection and declaration are necessary, in these, to the acqui-
sition of the householder's right and privilege ; and he need
not make claim, or have his exempt home set apart from the
rest of his real estate, till judgment against him, or some
other cause, shall have rendered it necessary for him to ask
that it be set apart to him by the court.
In a minority of the homestead states, it is required that,
in addition to occupancy, there must be selection, declaration
and recordation before the premises occupied can be invested
with the homestead character. Each of the following para-
graphs explains a method :
The declaration of homestead must be executed and ac-
DEOLAEATION : METHODS. 161
knowledged and recorded like the grant of real property. It
must show that the declarant is the head of a family, or the
wife of one who makes the declaration for the joint benefit
of herself and her husband, and that the latter has not made
a declaration; that the declarant resides on the premises
claimed as a homestead ; and there must be a description of
the property claimed, and a statement of its value in cash.*
The selection of the homestead by the owner, husband or
wife, is made by marking the bounds and giving description
such as is usual in instruments conveying land, which descrip-
tion, with the plat, shall be recorded in the Homestead Book
provided for the purpose.^
A conveyance of the property, stating that it is designed
to be held as a homestead exempt from sale on execution,
must be recorded ; or, a notice with a description of the prop-
erty, so stating, written, acknowledged and subscribed by the
owner, as a deed, must be recorded in the Homestead Exemp-
tion Book of the county. Like property, owned by a married
woman and occupied by her as a residence, may be designated
in like manner, with like effect.'
The homestead consisting of land and a dwelling, worth not
exceeding five thousand dollars, maj?^ be selected by the hus-
band or wife, or by both, or by other head of a family. The
declaration must be written, stating the declarant to be the
head of a family (or married to one), residing with the family
on the selected premises ; and it must contain a description of
the property. It must be signed and acknowledged by the
declarant, and recorded as a conveyance is required to be.*
To entitle any person to the benefit of the homestead act,
he shall cause the word homestead to be entered of record on
the margin of his recorded title.'
Any one claiming homestead may, at any time, m9,ke a writ- i
ten declaration, signed by the declarant, stating the property \
selected and claimed as exempt, which must be filed for rec-
ord in the office of the probate court of the county in which
1 Deering's Annotated Code and ' Throop's An. Code of New York,
Stat of Cal., §§ 1337 et seq.; Revised §§ 1397-1404.
Stat Idaho, §§ 3035 et seq. ^ Genl. Stat of Nevada, 1885, § 539.
2 McClain's Code of Iowa, §§ 3163 « Gen. Laws of Colorado, ch. 76, § Z.
et seq.
11
162 DEDICATION.
the property is situated. The filing of such declaration for
record shall operate as notice of its contents.'
The claimant may file, in the registry of deeds in the county
or district where the land lies, a certificate signed by him de-
claring his wish to have exemption, and describing the land
and buildings ; and the register shall record it in a book kept
for that purpose.^
To be entitled to the full benefit of a homestead exempt
from levy, seizure, garnisheeing or sale, the householder pr
head of a family shall declare, by deed duly recorded in the
deed-book of the county in which such homestead or the
greater part thereof is situated, his intention, to claim such
homestead, with a descriptiun of the property so claimed. If
such intent is expressed in the deed or will conveying such
property, it shall not be necessary for the householder or head
of the family to execute a deed, declaring such intent.'
" The owner or the husband or wife may select the home-
stead and cause it to be marked out and platted." ... It
" shall be marked off by fixed and visible monuments, unless
the same shall embrace the whole of a subdivision or lot, and
in giving the description thereof, when marked off as afore-
said, the direction and distance of the starting point from
some corner of the dwelling-house shall be stated. The de-
scription of the homestead, certified and acknowledged by the
owner, shall be recorded by the register of deeds of the proper
county in a book called the ' homestead book,' which shall be
provided with a proper index." If the owner fail to mark
and record as directed, his right is not lost, as an officer in
charge of an execution against the property of the householder
may mark, plat and record the homestead.*
The homestead of the householder becomes exempt upon
its occupancy by him and his family from the date of the re-
cording of his deed ; but " any married woman may file her
claim to the tract or lot of land occupied by her arid her hus-
band, or by her, if abandoned by her husband, as a home-
stead ; said claim shall set forth the tract or lot claimed, that
» Code of Alabama, § 2838. of West Va. 1881, ch. 19, §§ 33-3;
2 Rev. Stat of Maine, ch. 81, § 61. , Warth's Code, ch. 41.
3 Code of Virginia, oh. 183, § 4 ; Acts * Compiled Laws of Dakota (1887),
§§ 3458-9.
declaeation; eeqdisites. J.63
she is the wife of the person in whose name the tract or lot
appears of record, and said claim shall be acknowledged by
her before some officer authorized to take proof or acknowl-
ment of instruments of writing affecting real estate, and be
filed in the recorder's office." The effect of her recorded dec-
laration is to restrain her husband from alienating without
her jqinder.^
A homestead holder, to avoid loss of the exemption privi-
lege when about to be absent for more than six months, may
save it by notice of his claim containing a description of the
property, duly subscribed and acknowledged, and filed in the
office of the register of deeds of the county where his home-
stead is situated.^
A homestead, not exceeding one thousand dollars in value,
may be selected by the owner who. occupies it with his family
as a home, at any time before sale. The wife may select when
the husband neglects or refuses to do it.'
§ 6. Declaration : Requisites.
Where exemption is a constitutional right, incident to home-
stead, and there is no monetary limit fixed to it by the consti-
tution, the legislature may yet make a statutory limitation,
and prescribe the means by which the debtor may avail him-
self of the benefit.*
Where the constitution or law of a state requires that the
legal homestead quantum shall be regularly set apart when
there is more than that amount of land in the occupied tract,
the widow of a debtor whose whole plantation had been sold
for debt could not eject the purchaser on the ground of her
homestead claim. The deceased debtor had never caused his
eighty acres to be set apart from the tract, and that neglect
left her without homestead right, after the sale.*"
Declaration of homestead, where it is required by statute,
must be made in form sufficient to comply with the require-
ment, and must state that the declarant and his family reside
1 Rev. Stat of Missouri. 1889, §5435; < Const Cal. XVII, 1; Civ. Code
Gen. Stat of Vermont, oh. 68, § 7. Cal., § 1237 ; Lubbock v. McMann, 82
2 Gen. Stat of Minnesota, ch. 68, Cal. 226 ; Ham v. Santa Eosa Bank,
g 9, p. 768. 62 Cal." 138 ; S. C, 45 Am. Rep. 654.
3 Code of Washington, 1881, §§ 342, « Clancy v. Stephens (Ala.), 9 So. 522.
2415.
164 DEDICATION.
on the premises.* Without this statement made and filed,
the declarant cannot be heard to prove by other evidence that
he and his family were occupants when a conveyance was
made in contravention of the homestead right.^
It would be of no legal significance to file notice of an in-
tention to declare and occupy.' This would be no such notifi-
cation as the legislator designed ; would not be a compliance
with any law. And, in the absence of notice, when that is re-
quired, there can be no homestead.*
Where the beneficiary is required to file a declaration and
claim of homestead in a designated office, or with a certain
officer, his failure to do so will cut him off from defending his
temporary absence or his limited leasing of the premises when
the question of his abandonment of them is raised. He will
be deemed never to have acquired the exemption, or deemed
to have forfeited his right.' He must not only file his decla-
ration at the proper place, but in time to avail himself of ex-
emption.*
When the declaration is on a wife's separate property, her
examination and acknowledgment must be in strict compli-
ance with the law, to bind her.' But when partly on her
separate property and partly on community, and the declara-
tion is made by herself, she may be presumed to have con-
sented to the filing of it on her separate property.'
A joint declaration that the homestead to a given amount
was acquired and improved with the husband's separate means
may be adduced in evidence against the wife as tending to
remove the presumption that the homestead is community
property, though it may not wholly overcome it.' She is not
iBoreham v. Byrne, 83 Cal. 2b; 8 Murphy v. Hunt, 75 Ala. 438, 441 ;
Lubbock T. MoMann, 82 Cal. 226 ; Boyle v. Shulman, 59 Ala. 566.
In re Allen, 78 Cal. 294; Malony v. « Estate of Reed, 28 Cal. 410; Bar-
Hefer, 75 Cal. 424 ; Laughlln v. tholomew v. Hook, 23 Cal. 277.
Wright, 68 Cal. 113; Prescott v. 'Beck v. Soward, 76 Cal. 527;
Prescott, 45 Cal. 58 ; First Nat. Bank Hutchinson v. Ainsworth, 63 Cal. 286 ;
of San Luis Obispo v. Bruce (Cal.), 29 Cal. Civ. Code, § 1186 ; Wedel v. Her-
P. 488; Lee v. Miller, 11 Allen, 37; man, 59 Cal. 513. ,S'ee Clements v.
Cole V. Gill, 14 la. 527 ; Alley v. Bay, Stanton, 47 Cal. 60, rendered before
9 la. 509 ; Yost v. Devault, 9 la. 60. § 1186 was adopted. {See % 1191.)
2 Boreham v. Byrne, 83 Cal. 23. » Arendt v. Mace, 76 CaL 315.
» Cook V. McChristian, 4 Cal. 23. » Estate of Bauer, 79 Cal 304 ; Duff
« Noble V. Hook, 24 Cal. 639. v. Duff, 71 CaL 513.
DECLAEATION : REQUISITES.
165
estopped by such declaration from resorting to other evidence
to show her rights in the property.*
The declarant of homestead must conform to law,^ and act
jointly with his wife in creating the homestead where so re-
quired.'
Declaration of homestead may be proved by a duly-certified
transcript of it, with the declarant's affidavit attached.*
The requirement that the value must be stated in the dec-
laration is substantially satisfied by the allegation that it does
not exceed the statutory limit.' The estimate at a fixed sum,
under the limit, complies with the law." When such estimate
was qualified with the word " about," it was held sufficient.'
But a declaration without a statement of value is void,^ and
one estimating the value above the monetary limit is defective,'
where the statute requires an estimate in the declaration.
A declaration without occupancy at the time of its filing is
nugatory where the statute requires the two conditions to be
observed simultaneously.'"
1 lb. See Anthony v. Chapman, 65
Cal. 73 : Carter v. McManus, 15 La.
Ann. 676 ; Werkheiser v. Werkheiser,
3 Rawle, 336.
2 In Virginia, there is no homestead
exemption unless it is claimed and set
apart according to law. Wray v. Dav-
enport, 79 Va. 19.
3 The husband alone could not ore-
ate homestead in California under the
act of 1860 (Stats. 1860, p. 311),
amended by act of 1863 (Acts 1863,
p. 519). Gambette v. Brook, 41 Cal. 83 ;
Boreham v. Byrne, 83 Cal. 33.
* Stevenson v. Moody, 85 Ala. 83
(vyithdrawing the case of the same
title in 83 Ala. 418) ; Code, § 3788.
6 Schuyler v. Broughton, 76 Cal.
534.
6 Read v. Eahm, 65 Cal. 343.
' Graves v. Baker, 68 Cal. 134.
8 Ashley v. Olmstead, 54 Cal. 616.
9 Ames V. Eldred, 55 Cal. 136.
10 Fromans v. Mahlman (Cal.), 27 P.
1095. The court, after stating facts,
said : " It is settled law in this state
that to constitute a valid homestead,
the claimant must actually reside on
premises when the declaration is
filed. Prescott v. Prescott, 45 Cal. 58 ;
Babcock v. Gebbs, 53 Cal. 639 ; Aucke?
V. McCoy, 56 Cal. 534; Pfister v.
Dascey, 68 Cal. 573 ; 10 Pac. Rep, 117 •
Lubbock V. McMann, 83 Cal. 328 ; 33
Pac. Rep. 1145. The question, then,
is, does the evidence show that Mrs.
Mahlman was actually residing on
the premises in controversy when she
filed her declaration of homestead?
We are unable to see how this ques-
tion can be answered otherwise than
in the negative. The obvious pur-
pose of the statute in providing for
the selection of a homestead was t6
thereby make a home for the family,
which neither of the spouses could
incumber or dispose of without the
consent of the other, and which
should at all times be protected
against creditors. To effect its pv»r-
pose the statute has been liberally
construed in some respects, but the
-166 DEDICATION.
To ascertain whether the property claimed as exempt is
within the monetary limit, it must be appraised as though th'e
claimant held title in fee. He may have far less — a life in-
terest — a leasehold —but he is not entitled to have a greater
quantity of property removed from liability for debt, on that
account. His boundaries do not enlarge as his title grows
less.'
The provision which allows exemption to a given amount
in the dwelling and land constituting the home, "owned by
the debtor " and to be " set apart to him," has been ejfpounded
so as to allow the husband the full benefit from his share of a
jointly owned homestead by himself and his wife ; to entitle
him to the entire exemption out of his interest without estimat-
ing that of his wife. It is reasoned that though there can be
no mortgage or release of the homestead without the wife's
signature and acknowledgment ; and though she succeeds to
the homestead, as exempted, during her occupancy after his
death, yet the exemption is to him during his life,- and he has
the power of absolute disposal of the property. The exemp-
tion of his property from sale for his debt is declared to be
the meaning of the statute. " There is no need of any ex-
emption of the wife's property, because it is not liable for his
debts. He is the housekeeper, and the exemption is to him,
that, as the head of the family, he may provide it with a
house. If, where the property is owned jointly by the hus-
band and wife, the homestead, which the law gives' to the hus-
band, be taken partly from her interest, then she would be
compelled to contribute to an ex!emption to him, not allowed
requirement as to residence at the into in about a month. It was held
time the declaration is filed has been that they were not actually residing
strictly construed. Thus the court on the premises when the declaration
has many times used and emphasized was filed, and hence that no home-
the word " actually," to show that stead was thereby selected. Here it
the residence must be real, and not clearly appears from the evidence
sham or pretended. In Babcock v. that the respondents went to Hay-
Gibbs, supra, the homestead claim- wards, not to make their home or
ants went to their lots in the evening, place of abode there, but only to
and spread a blanket for a rOof, and spend a night or two, and then re-
slept under it The next day they turn to their homes in San Francisco,
filed a declaration of homestead, and This was not enough to constitute an
commenced the erection of a house, actual residence."
which they completed and moved i Yates v. McKibben, 66 la. 357.
NOTIFICATION. 167
out of his own property. In such case, upon the death of the
husband, would the wife own any portion of the homestead
in fee, or merely have a qualified or conditional interest in it?
The exemption is to him; against his debt ; out of his prop-
erty ; and it follows that the interest of the wife cannot be
made to contribute to it." ^
§ 1. Notification.
Notification to the public that certain property is held as a
homestead is of great importance. Purchasers at private
sale, froni the beneficiaries, are entitled to know that the con-
veyance must be in accordance with the requirements for the
alienation of that class of property. Purchasers at judicial
sale are equally interested in knowing. Creditors ought to
be informed, so that they may not be deceived as to the
property of their debtors at the time they trust them — may
not mistake a shadow for substance.
The legislator, with reference to restraints upon alienation
as well as to exemption and the peculiar provisions affecting
the estate of a decedent homestead beneficiary, has made the
acquisition of homestead to depend upon notice.
In voluntary dedication of homestead, notice is either of
two kinds : JSTotice to the public by a recorded declaration, or
notice by occupancy. Where the latter is deemed suflicient
by the legislator to put purchasers and creditors upon inquiry,
no formal description of the home property, as a homestead,
in the title deed ; no special record in a book kept for the pur-
pose to which the public may look; no inscription in the
margin of the recorded title ; no actual notification, written
or verbal, to any one concerned, is required. The occupancy,
being open and notorious, is deemed sufficient.
Doubtless it is suflicient to show that the dwelling with its ap-
purtenances is the occupant's home, but it does not necessarily
show that it is his homestead, in the legal sense. It seems to
put all who are concerned upon inquiry ; and the legislator,
in states where occupancy alone is deemed notice, leaves the
purchaser and creditor to ascertain for themselves the cbar-
1 Judge Holt, for the court, in See Giblin v. Jordan, 6 Cal. 416 ; On-
Johnson v. Kessler, 87 Ky. 458. Com- tario State Bank v. Gerry, 91 Cal. 94;
pare Miles v. Hall, 13 Busli, 105. and Lowell v. Shannon, 60 la. 713.
168 DEDICATION.
acter of the property occupied as a home or to neglect it at
their peril.
It is not to be assumed that every householder desires to
avail himself of the homestead provisions. A poor man, with a
family, living on the only real estate which he owns, may
find the conditions to the enjoyment of the privilege of ex-
emption too onerous in his case. He may not be willing to
diminish his credit by cutting himself off from the right of
mortgaging his property, if he lives where that would be one
of the results of accepting the homestead privilege. Where
such result; does not follow dedication, he may not wish to
place himself in a condition which would impair his general
credit, since he would be less trusted if his only property
should cease to be liable for his obligations. He might not
wish to destroy the prop which sustains his credit.
Such a householder might not wish to subject his limited
estate to the rules governing the homesteads of decedents.
He might desire that, at his death, an adult son should enter
at once upon the possession of his portion of the home farm,
and not be obliged to await the majority of a minor child of
the decedent. It is therefore by no means certain that the
occupant of a home means to dedicate it as a homestead by
his occupancy.
Since penning the last two paragraphs, the writer has found
the following (not specially noticed before), which is fully in
accord : " The object of the convention [in making the registry
of the declaration necessary to homestead exemption] was
transparent, and, it seems to us, a very wise one. It saw that
the effect of the homestead provision coupled, as it was, with
the prohibition of the conventional waiver thereof, would be
to cripple the credit and resources of the beneficiaries, which,
under many circumstances, would be more injurious than bene-
ficial. It therefore gave them the option of availing them-
selves, or not, of the privilege, as their interests might require.
It said to them : If you desire to secure your homestead from
the risks and chances of business, you may do so by register-
ing your exemptions as required by law. If, on the contrary,
you desire to retain your whole property in a situation to
serve as a basis of credit, for the purpose of conducting or
extending your business operations, we leave you the option
KECOEDING. 169
of doing so by simply abstaining from registry. It never
meant to say : You may abstain from registry until you have
obtained credit, and you may then defeat your creditors by
subsequent registry." '
In states where there are no onerous conditions; where
mere occupancy is notice ; where the householder may mort-
gage or sell unfettered ; where he need not claim exemption
till an execution is levied upon his property, the above re-
marks are inapplicable. The notice which is given to the
public, by occupancy, in such case, is that a certain sum or a
given quantity of real estate is exempt from forced sale when
not subject to lien.
In some states, the promulgation of the homestead law is
notice to creditors that exemption to a stated amount may be
claimed from that date, or a stated time, by any debtor hav-
ing a family and living with him, at the time of claiming, in
the home claimed.
If there is no prescribed method of selection, occupancy of
a home, with right of possession, is- sufficient, when the quan-
tity and value of the premises are within the legal limits. In
such case, no formal notice to the public, or to an officer in
charge of an execution, is necessary — the state of . things
operating as sufficient notice that the property is exempt.^
The continued residence of a family upon their homestead
is notice that the householder has some interest in it, and "a
person purchasing is bound at his peril to inquire as to the ex-
tent of that interest," it is said.^
§ 8. Recording.
Compliance with the condition that homestead shall be de-
clared and recorded is essential to the right of enjoying the
privilege of exemption, when the statute imposes that condi-
tion.''
iSuccessionof Furniss, 34La. Ann. leford v. Todhunter, 4 Bradw. 371;
1013^. Myers v. Ham, 20 S. 0. 523 ; Ketchin
2Beecher v. Baldy, 7 Mich. 488; v. McCarley, 36 S. G 1.
Thomas v. Dodge, 8 Mich. 51 ; Grand s McHugh v. Smiley, 17 Neb. 636 ;
Rapids, etc. Co. v. Weiden, 69 Mich. Uhl v. May, 5 Neb. 157 ; McKinzie v.
572 ; Riggs v. Sterling, 60 Mich. 643 ; Perrill, 15 Ohio St 168.
Griffin v. Nichols, 51 Mich. 575; < Goodwin v. Colorado Mortgage
Coates V. Caldwell, 71 Tex. 19 ; Shak- Co., 110 U. S. 1 ; Boreham v. Byrne,
170
DEDICATION.
"Where the declaration must be executed and acknowledged
and recorded like the grant of real property, and mast show
that the declarant is the head of a family, or is the wife of
the head of a family who makes the declaration for the joint
benefit of herself and her husband ; and that the declarant
occupies the premises, with his family; and also must describe
the property and state its value,' the courts hold that there
must be compliance with the statute in manner and form.^
If it is required that " to entitle any person to the benefit of
[the homestead act] he shall cause the word ' homestead ' to be
entered of record on the margin of his recorded title," ' such
inscription is essential to the benefit. Justice Harlan said for
the court: " "We are not at liberty to say that the legislature
intended actua^ notice to creditors of the occupancy of par-
ticular premises as a homestead to be equivalent to the entry,
on the record of title, of the word ' homestead.' The require-
ment that the record of the title shall show that the premises
a/re occupied as a homestead before any person can become
83 Cal. 23 ; Lubbock v. McMann, 82
Cal. 226; In re Allen, 78 Cal. 294;
Beck V. Soward, 76 Cal. 527; Malony
V. Hefer, 75 Cal. 424; Laughlin v.
Wright, 63 Cal. 113; Hutchinson v.
Ainsworth, 63 Cal. 286 ; Ham v. Santa
Rosa Bank, 62 Cal. 138; S. C, 45 Am-
Rep. 654 ; Wedel v. Herman, 59 Cal.
513; Clements v. Stanton, 47 Cal. 60;
Prescott V. Prescott, 45 Cal. 58 ; Gam-
bette V. Brock, 41 Cal. 78 ; Mann vj
Rogers, 35 Cal. 316; Gregg v. Bos-
tick, 33 Cal. 220 ; McQuade v. Whaley,
31 Cal. 533; Noble v. Hook, 24 Cal.
639 ; Riley v. Pehl, 23 CaL 70 ; Bar-
tholomew V. Hook, 23 Cal. 278 ; Estate
of Reed, 38 Cal. 410 ; Cohn v. Davis,
20 Cal. 194 ; Commercial Bank v. Cor-
bett, 5 Saw. 547 ; Lackman v. Walker,
15 Nev. 422 ; Child v. Singleton, 15 Nev.
461 ; Smith v. Shrieves, 13 Nev. 303 ;
Smith V. Stewart, 13 Nev. 70 ; Estate of
Walley, 11 Nev. 264 ; Hawthorne v.
Smith, 8 Nev. 164 ; Mills v. Spauld-
iug, 50 Me. 57 ; Lawton v. Bruce, 39
Me. 484 ; Davenport v. Alstin, 14 Ga.
271 ; Murphy v. Hunt, 75 Ala. 438,
441 ; Boyle v. Shulman, 59 Ala. 566;
Linsey v. McGannon, 9 W. Va. 154 ;
Taylor v. Saloy, 38 La. Ann. 62 ; Ger-
son V. Gayle, 34 La. Ann. 337 ; Gil-
mer V. O'Neal, 32 La. Ann. 983;
Bramin v. Womble, 32 La. Ann. 805;
Doughty v. Sheriff, 27 La. Ann.
355 ; Robert v. Coco, 25 La. Ann. 199;
Tennent v. Pruitt, 94 Mo. 145 ; Shind-
ler V. Givens, 63 Mo. 395 ; Farra v.
Quigley, 57 Mo. 284; Griswold v.
Johnson, 22 Mo. App. 466; Barnett
V. Knight, 7 Colo. 365. See Pritoh-
ard V. Ward, 64 Ga. 446 ; Hunting-
ton V. Chisholm, 61 Ga 270; Wray
V. Davenport, 79 Va. 19.
1 Deering's Annotated Stat of Cal.,
§g 1237-1268; Rev. Stat. Idaho,
§§ 3035-3088.
2 The ( lifornia cases above cited,
s Gen. Laws Colo., 1877, ch. 76, § 3;
Gen. State., §§ 1631-3.
EECOEDING. 171
entitled to the benefits of the statute is absolute and uncon-
ditional." And an answer failing to show compliance with
this requirement was held fatally defective, and the homestead
right was denied, in a suit by a purchaser for possession.'
Where the exeniptionist is required not only to occupy the
land but to record his title before immunity from debt can be
enjoyed relative to the land as his homestead, he will not be
protected by simply living upon the land, with his family.^
But exception was made in favor of one who had exchanged ;
one homestead for another yet had not recorded his title to
the latter. Homestead right, being already acquired, was not
lost by the failure to record the new property to which the
exemption had immedi ately attached on exchange.'
The fact, that one property had been exchanged for an-
other, and the homestead character transferred from one to
the other, appearing in the deed, would have been notice to
the public, had the deed been recorded.^ So long as it re-
mained unrecorded, it would seem that the public, notified
only by the record, would understand the first property to be
exempt, and the second (for which the first was exchanged)
liable for _ debt.
The husband can mortgage the property actually occupied
as a residence by himself and his family, without his wife's
consent, where the necessary act of recording, to complete
the right of exemption, has been neglected.^ He can do so,
because the property is not homestead. He may not only
act alone in creating a lien, but he may also alienate it in any
way that would be legal in disposing of any of his other
realty, for the reason that a condition necessary to the com-
pletion of the homestead character is wanting. It is equally
clear that if the home has not been rendered exempt by com-
pliance with this condition, it is open to creditors.
When registry of homesteads is made essential to their es-
tablishment, it must precede the recording of a mortgage to
1 Goodwin v. Colo. Mortgage Co., ' Smith v. Enos, 91 Mo. 579 ; Creath
110 U. S. 1 ; Barnett v. Knight, 7 v. Dale, 84 Mo. 349.
Colo. 365. ' 4 Cheney v. Eodgers, 54 Ga. 168;
2Tennent v. Pruitt, 94 Mo. 145; Murray v. Sells, 53 Ga. 357.
Shindler v. Givens, 63 Mo. 395 ; Farra » Child v. Singleton, 15 Nev. 461 ;
V. Quigley, 57 Mo. 384 ; Griswold v. Smith v. Shrieves, 13 Nev. 303 ; Corn-
Johnson, 33 Mo. App. 466. mercial Bank v. Corbett, 5 Saw. 547.
1T2 DEDICATION.
save the lien from bearing on the home set apart. Exemp-
tion, in such case, is inoperative against debts contracted
prior to registry, where pre-existing debts of ordinary char-
acter are collectible by judgment and execution against the
homestead.' It is too plain for argument, that an existing
mortgage cannot be defeated by a subsequent declaration of
homestead. The declaration cannot operate ex post facto}
Recording, or lodging for the purpose of recording, is neo-
; essary to convey the interest of either marital party in the
■ homestead, when the statute makes the wife's deed and ac-
knowledgment depend upon record.'
The importance attached to recording does not everywhere
have recognition. Where the statute requires that home-
stead be recorded, but adds that the neglect to record shall
not affect the householder's exemption right, or words to
that effect, it is held that he is guilty of no lacJies, and loses
no rights, if he lets recording alone till the sheriff plats and
sets apart and records his lot after a levy upon it.*
Selection is necessary when property, greater in quantity
or value than the law exempts, is levied upon, and the home-
stead is to be reserved from it. It is not important that the
selection be made before the levy; it may be done at any
time before sale, in such way as to notify the officer in charge
of the writ. The notification to him should be such as will
enable him to omit the reservation from the sale ; that is, the
1 Kinder v. Lyons, 38 La. Ann. 713 ; " Such exemptions, to be valid, shall
Succession of Furniss, 34 La. Ann. be set apart and registered, as shall
1013. Claims of homestead exemp- be provided by law." La. Const, of
tions affecting debts and contracts 1879 ; Broome v. Davis, 87 Ga. 584.
existing before the constitution of ' Hensey v. Hensey (Ky.), 17 S. W.
1879 are governed by the law in 333 ; Ky. Gen. Stat., ch. 38, art 13,
; force at time of contract. Thomas § 13; ch. 24, § 81. Under the New
■ V. Guilbeau, 35 La, Ann. 937 ; Poole Hampshire statute of 1851, the wife's
V. Cook, 34 La. Ann. 331 ; Gilmer v.
O'Neal, 32 La. Ann. 980; Gerson v,
Gayle, 34 La. Ann. 337.
2 Taylor v. Saloy, 38 La. Ann. 63
Gilmer v. O'Neal, 33 La. Ann. 983
Braniin v. Womble, 32 La. Ann. 805,
See Gerson v. Gayle, 34 La. Ann. 337
Robert v. Coco, 25 La. Ann. 199
Doughty V. Sheriff, 37 La. Ann. 355,
signature to a mortgage previously
executed by her husband and re-
corded, had no effect when made
without seal or witnesses. Wilson v.
Mills (N. H.), 22 A. 455.
. * Sargent v. Chubbuck, 19 la. 37 ;
JSTye V. Walliker, 46 la 306 ; Green
V. Farrar, 53 la. 436.
EECOKDING.
173
boundaries should be made known with certainty. This is re-
quii'ed, though there be no formal method prescribed.^
On June 13, 1881, a judgment was rendered against a de-
fendant, named Treadway, for over $10,000 ; on the 9th of
July execution was issued and land levied upon ; on the 5th of
August the land was sold to the plaintiff at judicial sale, and
six months thereafter he received his title from the sheriff,
which was then duly recorded.
On the 1st of August, 1881, after the levy, Treadway mar-
ried, and he and his wife afterwards lived on the- land as their
homestead, until the trial of the suit brought for their eject-
ment by the purchaser at judicial sale. Treadway claimed to
have lived there long before, and to have supported the defend-
ants as members of his family — a fact contested.
The ejectment suit turned upon the question of the validity
of the judicial sale. Treadway occupied before the levy ; he
may have had a legal family before, though not married till
afterwards, but he had filed no declaration before. Yet the
court said: '^From the instant the declaration of the home-
stead was filed for record, the property in contest became
and was ' a homestead as provided by law,' and from that in-
stant it came within the protection of the constitution and
statute, and could not be levied upon, or sold for or upon any
debt or liability not excepted and mentioned in the constitu-
tion."
The constitution expressly excepts only taxes, obligations
contracted for the purchase of the homestead and for its im-
provements, and liens given by husband and wife.^ It is silent
as to property debts, or liens attached before the declaration
of homestead, and therefore the court thought them cut off
by the declaration.
The conclusion of the court may be thus stated: That
when recording the homestead declaration is the method pre-
scribed by law for fixing the exemption right, it may be done
after judgment and levy, before sale, when the time of so
doing is not otherwise specified ; that a sale of the property,
after such recordation, would be void, unless for a debt which
•Fii-stNatB^nkv. Jacobs, 50 Mich. Herschfeldt v. George, 6 Mich. 468;
340 ; Beeoher v. Baldy, 7 Mich. 488 ; Stevenson v. Jackson, 40 Mich. 703.
2 Const Nev., § 104.
174 DEDICATION.
is excepted from exemption ; that the right is attached when
the property is dedicated as a homestead, so as to prevent the
execution of a judgment, and levy already made.'
But how can the recording of such declaration affect the
lien of a judgment already rendered and of a levy thereunder?
That is, if the lien has attached before the declaration, how
can the recording of the declaration dislodge it? The court
did not hold that no lien attached but that such liens were not
excepted from the .exemption by the constitution. If the dec-
laration had been made and recorded before the levy of the
execution, no lien would have been created by the levy ; but,
made afterwards, it could not affect the lien, if one had at-
tached, if the general law governing liens had not been abro-
gated. The law is as decided, in the state where the decision
was made, by virtue of it ; but it cannot command general in-
fluence.
Considered as notice, recordation after credit has been ob-
tained on the faith of the property not dedicated (and, in this
case, held by an unmarried man believed to have no legal
household), was poor notice to the creditor.
Of a constitution which required the recording of homestead
declaration (as- the one above cited), it was said by the supreme
court expounding it : " The constitution, after defining the
exemptions, says : ' Such exemptions, to be valid, shall be set
apart and registered, as shall be provided by law.' Then, until
set apart and registered, there is no valid exemption, which
means, practically, no exemption at all. If there existed no
valid exemption when the debt was contracted, certainly the
constitution did not intend to leave it in the power of the
debtor to create such an exemption thereafter, to the prejudice
of antecedent creditors. "What is the object of registry?
IS'otice to whom? To third parties dealing with the debtor.
What would be the use of such notice given after the debts
have been contracted ? " ^
1 Nevada Bank v. Treadway, 17 174; Stone v. Darnell, 30 Tex. 14;
Fed. 887. Citing: Hawthorne v. Macmanus v. Campbell, 37 Tex. 267.
Smith, 3 Nev. 183 ; Lachman v. '^ Succession of Fumiss, 34 La. Ann.
Walker, 15 Nev. 425 ; Estate of Walley, 1013-14
11 Nev. 364 ; North v. Shearn, 15 Tex.
CHAPTER YI.
OCCUPANCY.
1. The Condition Stated
2. Declaration and Occupancy as
Conditions.
3. Declaration Directory — Occu-
pancy Essential.
4. Occupant Claiming "Without
Declaration.
5. Principal Use.
§ 6. Subordinate Uses.
7. Intention to Occupy.
8. Intent Subsequently Realized.
9. Retroaction.
10. Retroaction : Building Material.
11. Inherited Homesteads.
13. Legal Possession as Occupancy.
§ 1. The Condition Stated.
Occupancy is one of the conditions upon which the privilege
of exemption is tendered hy the legislator. This condition is
found in all the statutes, generally speaking, and in nearly the
same phraseology in all ; certainly the requirement is sub-
stantially the same wherever this condition is imposed ; and,
as already said, there is a near approach to universality in
making this requirement. No other feature of the homestead
system approximates so closely in all.
Actual occupancy — literal living in the exempt home —
family residence there — ■ present use by a household of a
dwelling place as an abiding habitation — is the condition.
The head of the family, on compliance with this and the other
conditions, is privileged to avail himself of the beneficent offer
of the legislator.
In the acquisition of the exemption right, compliance with
this condition is indispensable. In the retention of the right,
literal, continuous, actual occupancy is not so strictly required,
as wiU be shown hereafter. The subject now in hand is oc-
cupancy as a condition to the acquisition of a homestead.
Legal possession may exist without actual occupancy, but
this alone is not a condition in the acquisition of the home-
stead privilege. True, occupancy must be attended by it;
the mere use of a house and its appurtenances as a residence,
without the right thus to use it, would be of no avail. Pos-
176 OCCUPANCY.
session is often constructive ; the owner is deemed in posses-
sion when he holds the title and controls the property, though
he may never have set his foot upon it ; but the exemptionist
must be an occupant, as the authorities cited in the following
sections fully show.
Contemplated occupancy has been countenanced in some
decisions, though it is believed to have no warrant by any
statute ; such decisions will be considered in their place ; the
purpose now is to show that the current of authority follows
the statutes, establishing the proposition that actual occupancy
by the owner and his family is an essential condition to the
acquisition of the exemption privilege.
§ 2. Declaration and Occupancy as Conditions.
In the states where both declaration and occupancy are es-
sential to the acquisition of the homestead immunity, the
householder cannot put ofif claiming exemption till his prop-
erty has been levied upon for debt, nor even till judgment has
been rendered against him, a!nd then defeat the remedy of his
creditors by showing that he actually occupied his home be-
fore the debts were contracted. In those states, the home-
stead character begins only at the time of the declaration of
occupanc3% ownership and family headship.
The declaration is insufficient if it do not state that the de-
clarant and his family reside on the premises at the time it is
made. Without such statement, the declaration is not even
admissible in evidence to prove the existence of a hoinestead,
under a statute requiring the averment of occupancy to be
made in the instrument and duly recorded. It is not sufficient
to declare that the property, fully' described, is owned and
possessed by the declarant, that it is within the statutory lim-
itation of value and that the declarant is a married man ; for
there is still the radical defect — the omission of the aver-
ment of actual occupancy. There may be possession, in a
legal sense, through a tenant, or even personal possession,
without actual occupancy of the described property as the
home of the owner and his family, at the time the declaration
is made and recorded as notice to the world. Enforcing this
requirement, it was judicially said that the statute requiring the
averment of occupancy was an enabling act and intended as
DECLARATION AND OCCUPANCY AS CONDITIONS. 177
such ; that it had to be obeyed in order to make a selection
and dedication ; that the ability to protect the property as
homestead from forced or voluntary sale depended upon com-
pliance with this requirement. " Nothing could make the
premises a valid, protected homestead without such a declara-
tion as the statute required. Actual residence on the land
would not so make it, in the absence of a suflBcient declara-
tion. A declaration sufficient in form without residence, and
residence without a sufficient declaration, are alike ineffectual"
to constitute the homestead." And it was also said : " In all
cases, residence on the land was requisite [by the act under
construction] to consummate the claim of homestead." '
No particular length of time is prescribed as essential to
the occupancy necessary to entitle one to declare homestead.
One day may suffice;- but all of the conditions — actual oc-
cupancy, ownership, family headship and dedication, must
co-exist, in those states where they are required ; for the ob-
servance of all the conditions but one will not excuse the
neglect of that.'
The statutory provisions that the house and land, constitut-
ing the residence of the claimant, may be selected as the
homestead, and that it may be selected from any real prop-
erty occupied and owned . . . (with no contrary or quali-
fying provisions express or implied), is construed to require
actual occupancy in the acquisition of the exemption provided
in the statute.*
1 Boreham v. Byrne, 83 Cal. 23, 36-8. Cal. 220 : S. C, 91 Am. Dec. 637 ; Mann
Citing Gregg v. Boatwick, 33 Cal. v. Rogers, 35 Cal. 316 ; Gambette v,
220 ; S. C, 91 Am. Dec. 637 ; Mann v. Brock, 41 Cal. 83 ; Prescott v, Pre&-
Rogers, 35 Cal. 316; Gambette v. cott, 45 Cal. 58; Babcock v. Gibb^
Broci, 41 Cal. 88. 52 Cal. 629; Dora v. Howe, 52 QaX
2 Skinner v. Hall, 69 Cal. 195. In 680; Aucker v. McCoy, 56 Cal. 524;
this case the declarant's family did Laughlin v. Wright, 63 Cal. 113; Ma-
notreside with him, and the property louey v. Hefer, 75 Cal. 424; In re
declared upon was not all occupied Allen, 78 Cal. 294 ; Lubbock v. Mo-
by him as a residence but was in use Mann, 82 Cal. 336 ; Ackley v. Cham-
fer other purposes : yet the declara- berlain, 16 Cal. 182 ; S. C, 76 Am. Dea
tion was held good. 516; Estate of Crowey, 71 Cal. 300;
3 Galligher v. Smiley, 28 Neb. 194. King v. Gotz, 70 Cal. 286 ; Pfister v.
* Deering's Annot. Code & Stat, of Dasoey, 68 Cal. 573 ; Benedict v. Bun-
Cal., g§ 1337-1263 ; Boreham v. Byrne, nell, 7 Cal. 345 ; Holden v. Pinney, 6
83 Cal. 33; Gregg v. Bostwick, 33 Cal. 334, 625 ; Skinner v. Hall, 69 Cal.
13
178 OCCUPANCY.
It is said that the conditions on which homestead protection
is vouchsafed, such as fanaily occupancy, ownership, and mone-
tary value, must co-exist at the time the declaration is made.'
And when they cease, the benefit has been held to cease with
them.^ Monetary value, however, is not a condition but a re-
striction, so that a given sura shall not be exceeded. The point
of the deliverance is that the real conditions must be complied
with by the defendant when he made the declaration.
§ 3. Declaration Directory — Occupancy Essential.
The citations above made may be suflScient to show the
rule in those states which make exemption depend upon the
recorded declaration of occupancy at the beginning, and date
its effect upon creditors from the time they had such notice.
There is an exceptional course, where the statute, though
providing for the declaration, makes it merely directory, and
expressly provides that if it be not made, occupancy shall be
sufficient to enable the householding head of a family to claim
exemption at any time — even after a writ of execution has
been issued against his home. It is provided that the selec-
tion of the homestead may be by the owner, husband or wife,
by marking the bounds and giving description such as is usual
in instruments conveying land, which description, with the plat,
shall be recorded in the Homestead Book. But it. is added
that if the owner fail to mark, plat and record as directed, he
does not thus forfeit the right of exemption; but the officer
executing a writ against the property may cause the home-
stead to be marked off, platted and recorded.'
It will be seen that acquisition does not depend upon dec-
laration, since there could have been no possibility of forfeit-
ure, had declaration been made an essential condition — there
would have been nothing to be forfeited, in the absence of
that which was essential to the original creation. It will be
further seen that inscription in the Homestead Book was not
195 ; In re Noah, 73 CaL 590 ; Gary v. 2 chaflfe v. MoGehee, 38 La. Ann.
Tice, 6 Cal. 625. 278 ; Nugent v. Carruth, 32 La, Ann.
1 Dpnis V. Gale, 40 La. Ann. 286
Bossier v. Sheriff, 87 La. Ann. 263
Gallagher v. Payne, 34 La. Ann. 1057
Tilton V. Vignes, 33 La. Ann. 240
Const. La., art. 223.
444 {overruling Hardin v. Wolf, 29
La. Ann. 333). Compare Van Wickle
V. Landry, 29 La. Ann. 380.
3 McClain's Iowa' Code, g§ 3163-9.
OCCUPANT CLAIMING WITHOUT DECLAEATION. 1Y9
meant to be the only notice to creditors, as it is in other states
having the same requirement.
Actual occupancy is made to take the place of both as well
as to perform its own ofBoe, in the acquisition of homestead.
Notorious home-keeping on the premises is notice, as in states
where it is the only notice to creditors. It also answers for
declaration — or, rather, is sufficient without it, as a means of
acquiring, — thus also following the rule in the majority of the
states.
The requirement, " the homestead must embrace the house
used as a home by the owner thereof," ' means that there must
be actual occupancy ; ^ that the " use " shall be by the family
of the owner, and is essential to' his enjoyment of the exemp-
tion immunity ; ' that the homestead character does not at-
tach to property before its actual occupancy as the family
habitation — the prior intention to occupy it giving, no exemp-
tion right or claim though subsequently followed by occu-
pancy;^ that though the home consists only of a room, a flat
or any part of a house, such part becomes exempt because of
its family occupancy, while the rest of the building would be
liable to creditors because of its non-occupancy as a home.^
§ 4. Occupant Claiming Without Declaration.
The enactment : " That every householder having a family
shall be entitled to an estate of homestead, to the extent in
value of one thousand dollars, in the faria or lot of land and
buildings thereon, owned or rightly possessed, by lease or other-
wise, and ocowpied hy him or her as a residence" " is held to
mean that the homestead must be in fact the home ; that the
land must embrace a dwelling-house actually used as a resi-
dence by the owner and his family ; " that the homestead must
be determined by occupancy and not by intention ; - that the
1 McClain's Code, la,, § 3169. First N. Bank v. HoUingsworth, 78
2 Yost V. Devault, 9 la. 60; Hyatt la. 575.
V. Spearman, 30 la. 510. 5 Rhodes t. McCormick, 4 la, 368;
3 Cole V. Gill, 14 la. 537; Page v. McCormick v. Bishop, 28 la. 233;
Ewbank. 18 la. 580. ' Mayfield v. Maasden, 59 la. 517 ; John-
* Belknap v. Martin, 4 'Bush, 47; son v. Moser, 66 la. 586; Arnold v.
Grvans v. Dewej', 47 la. 414 ; Elston v. Gotshall, 71 la. 572.
Robinson, 23 la. 208 ; Christy v. Dyer, « Starr & Curtis' Ann. Stat of III.,
14 la. 438 ; Williame V. S wetland, 10 p. 1197. ^ ,
la. 51 ; I Campbell v. Ayres, 18 la. 253 ; ' Kitchell v. Burg win, 31 111. 40. ,
Chartess v. Lamberson, 1 la. 435; sxourville v. Pierson, 39 III 446;
180 OOCUl'ANCY.
occupancy comes too late, after judgment ; that the exemp-
tion right does not attach till the claimant is the head of a
family, the holder of the title, and the occupant of the prem-
ises with his family ; ' and that a tract of land must be actually
occupied as a homestead to become exempt.^
The following terms of exemption are found in many stat-
utes, in almost the same words in all which are here quoted
from one : " A homestead, to be selected by the owner thereof,
consisting ... of land . . . , and the dwelling-house
thereon and its appurtenances, owned and occupied by any
resident of this state, shall be exempt from seizure and sale
on execution. . . . " '
It is held, in construing this provision, that the word " oc-
cupied" should have controlling effect; * that it is the actual
homeland no other, which is exempt;' that the word "home-
stead" means a place of residence, implying occupancy or
literal possession ; ' that the chief characteristic of the home-
stead is that it is the land on which the dwelling of the owner
and his family is situated.'
" The homestead of every housekeeper or head of a family,
consisting of a dwelling-house and appurtenances, and the land
used in connection therewith, not exceeding the amount and
value herein limited, which is or shall be used by such house-
keeper or head of a family as such homestead, shall, together
with the rents, issues and products thereof, be exempt from
attachment and execution, except as herein provided." *
Reinbach v. Walter, 37 111. 393 ; Free- < Weisbrod v. Daenicke, 86 Wia 73.
man v. Stewart, 5 Biss. 19. ^ Jarvais v. Moe, 38 Wis. 440.
' Shacklef ord v. Todhunter, 4 111. ^ Upham v. Second Ward Bank, 15
App. 271. Wis. 449 ; Phelps v. Rooney, 9 Wis.
2 Gardner v. Ebenhart, 82 EL 316; 70; Harriman v. Queen's Ins, Co., 49
Hotchkiss V. Brooks, 93 111; 886. And, Wis. 71.
generally, that there must be actual 'Bunker v. Locke, 15 Wis. 635.
occupancy, as distin'guished from See, to like effect with foregoing de-
constructive, and from mere legal cisions: Bridge v. Ward, 35 Wis. 687 ;
possession. Fisher v. Cornell, 70 111. Casselman v. Packard, 16 Wis. 114;
316 ; Titman v. Moore, 43 111. 169 ; Binzel v. Grogan, 67 Wis. 147 ; Free-
Cabeen v. Mulligan, 37 III 230 ; Wal- man v. Stewart, 5 Biss. 19 ; Carter v.
ters V. People, 21 111. 178 ; Cahill v. Sommermeyer, 27 Wis. 665. But see,
Wilson, 63 111. 157 ; Walters v. The as not fully in accord, Scofleld y.
People, 31 III 178. Hopkins, 61 Wis. 370.
3 Wis. Stat. (Sanborn & Berryman), s Rev. Stat Ma (1889), sec. 5435.
§ 3983.
OCCnPANT CLAIMING WITHOUT DECLARATION. 181
Where no formal dedication is required, there yet must be
actual occupancy prior to sale under execution to enable the
debtor to avail himself of the exemption privilege relative to
his home.' There must be actual residence or use for home-
stead purposes."
Failure to occupy a donated homestead on public domain is
a forfeiture of whatever rights the applicant may have ac-
quired.'
Both husband and wife must settle upon a pre-emption
homestead. One hundred and sixty acres are given to a
family of husband and wife as community property, and the
land must be occupied by them.* Actual occupancy is neces-
sary both in the acquisition and retention of a homestead.'
■ A constitutional provision is as follows : " A homestead
. . . occupied as a residence by the family of the owner
. . . shall be exempted from forced sale by any process of
law . . ." * It is construed to" mean, by homestead, the
dwelling-house where the owner's family resides: the tests
being use and quantity — the latter being specified in the same
article.'
Occupancy is necessary to the creation of the character of
immunity.* And it must be family occupancy ; not that of
the owner alone. A married man's- conveyance was held
1 Letchford v. Gary, 53 Miss. 791 ; Liebstrau v. Goodsell, 26 Minn. 417 ;
Irwin V. Lewis, 50 Miss. 363; Lessley Kresia v. Mau, 15 Minn. 116; Don-
V. I^hipps, 49 Miss. 790; Totter v. aldson v. Lamprey, 39 Minn. 18;
Dobbs, 38 Miss. 198. Kelly v. Baker, 10 Minn. 134; Tillot-
^McDannell v. Ragsdale, 71 Tex- son v. Millard, 7 Minn. 513.
23 ; Coates v. Caldwell, 71 Tex. 19 ; 6 Const Kansas, art 15, § 9 ; Gen.
Langston v. Maxey, 74 Tex. 155 ; Stat Kas. (1889), § 385.
Newton v. Calhoun, 68 Tex. 451; 'Bebb v. Crowe, 39 Kas. 842;
Petty V. Barrett, 87 Tex. 84; Batts v. Mouriquand v. Hart, 23 Kas. 596.
Scott 37 Tex. 65 ; Philleo v. Smalley, ^Hiatt v. BuUene, 20 Kas. 557 ; Tar-
23 Tex. 498. rant v. Swain^ 15 Kas. 146 ; Moore v.
3 Garrett v. Weaver, 70 Tex. 463; Reaves, 15 Kas. 150; Farlan v. Sook,
Tex. Rev. Stat, §§ 3943, 3947. 26 Kas. 397 ; Ashton v. Ingle, 20 Kas.
* Mills V. Brown, 69 Tex. 244. 670. But see, as favoring construct-
sMinn. Gen. Stat, ch. 68, § 9; Ja- ive occupancy : Swenson v. Kiehl, 21
coby V. Distilling Co., 41 Minn. 237, Kas. 533 ; Gilworth v. Cody, 31 Kas.
230 ; Baillif v. Gerhard, 40 Minn. 172 ; 702 ; Monroe v. May, 9 Kas. 466 ; Ed-
Russell V. Speedy, 38 Minn. 303 ; Um- wards t. Fry, 9 Kas. 424
land V. Holcombe, 26 Minn. 286;
182 OCCUPANCY.
\
good, though his wife did not join in the deed. She lived out
of the state all the time he had occupied, and therefore there
had been no such occupancy by his family as to give the ex-
emption right.'
Under similar statutory requirement, similar ruling has been
had. It is held that, should the husband alone mortgage his
land exceeding in quantity the statutory limit, it would hold
good as to the excess.^ And it will hold good for the whole,
if the claimant of homestead do not show actual occupancy,
with selection of the legal quantity exempt, at the time the
mortgage was executed.'
Actual occupancy of the new homestead, when an old one
has been exchanged for it, has been held necessary in order to
give it the exempt character.*
A mere tarrying for a night at a new place, followed by a
declaration of that place as the family homestead ; but not by
actual residence there, will not be sufficient to make a legal
change of homestead.' Actual occupancy is the rule' as
against constructive ; ' and where it is not applicable, the stat-
ute will be found to authorize exemption of a certain sum, in
favor of the insolvent debtor, rather than to protect his home-
stead.
§ 5. Principal Use.
A declaration of homestead covered two adjoining lots, both
together within the statutory limitation of value. The fam-
ily dwelling was upon one, and a business house and chicken
yard upon the other. Only the first lot was held duly dedi-
cated and exenapt.* The decision was based on a former one,
in which it had been said : " It is the principal use to which
the property is put, and not quantity, which furnishes the test
• Koons V. Eittenhouse. 38 Kas. 359. 5 Fromans v. Mahlman (Cal.), 27
2Goodloe V. Dean, 81 Ala. 479; De Pac. 1094; Cal. Civ. Cod«, § 1263.
Gratfenreid v. Clark, 75 Ala. 425 ; 6 Lubbock v. McMann, 82 Cal. 238,
Butts V. Broughton, 73 Ala. 394. and other cases cited in Fromans v.
s Goodloe V. Dean, 81 Ala. 479. Mahlman.
« Currier v. Sutherland, 54 N. H. ' True v. Morrill, 38 Vt. 673; Davis
475, 487; Tucker v. Kenniston, 47 v. Andrews, 30 Vt. 683; Spaulding
N. H. 267. See Fogg v. Fogg, 40 v. Crane, 46 Vt. 292 ; Lee v. Miller, 11
N. H. 283, and Locke v. Rovi^ell, 47 Allen, 87.
N. H. 46. 6 In re Allen, 78 Cal. 393.
PEINCIP-AL USE. 183
in determining the question wliether or not property is sub-
ject to dedication as a homestead. And if only a part of the
land described in the homestead declaration be actually used
and appropriated as the home of the family, the remainder
not so used and appropriated forms no part of the homestead
claim in the sense of the statute." ^
The principal use is the- test of homestead. If it is for fam-
ily living, the law means to protect it from forced sale. If it
is for making money by renting to tenants and the like, the
property may be subjected to forced sale.^
The claimant of an urban homestead, who has kept it rented
to tenants ever since building upon it, using himself only a
roadway upon it, can claim exemption only with regard to
the strip thus used. The court, so holding, said that to pro-
tect the rented part as homestead " Hrould be a perversion of
the spirit, letter and purpose of the constitution ; " . . .
" would be an extravagant, not a liberal construction." ^
The owner of a hotel lived in it with his family; but as it
was used " primarily and principally as a hotel for the accom-
modation of the public," while the residence therein of the
owner and his family " was but incidental to the business of
running the hotel," it was held that " it would be doing vio-
lence to the statute to regard property so used as a honie-
stead, which is, and was intended to be, the place where the
home is."*
But there is a late case in which it is held that a building
occupied by a hotel-keeper and his family may be used for the
sole purpose of conducting a hotel, yet be exempt as a home-
stead, under a statute making occupancy a condition. The
court said that to hold otherwise " would be in plain defiance
of the statute and would render it nugatory as to those en-
1 Maloney v. Hefer, 75 Cal. 423, Tex. 39 ; Wynne v. Hudson, 66 Tex. 1.
dting Ackley v. Chamberlain, 16 Cal. The rented premises (in the first case
182 ; S. C, 76 Am. Dec. 516 ; Gregg cited) had been a part of the claim-
V. Bostick, supra. ant's homestead, but the building
2 Blum V. Rogers (Tex.), 15 S. W. upon it for renting purposes, and the
115 ; Garrett v. Jones (Ala.), 10 So. actual and continued renting, consti-
702. tuted abandonment Archibald v.
3 Blackburn v. Knight, 16 S. W. Jacobs, 69 Tex. 249.
(Tex.) 1075 ; Medlenka v. Downing, 59 * Laughlin v. Wright, 63 Cal, 13a
184 OCCUPANCY.
gaged in the business of hotel-keeping. The benefits of this
statute are to be secured to all owners of land which they oc-
cupy with their families, and who have no other home. There
is no intent apparent anywhere to exclude the families of
hotel-keepers from the benefits of this act." ^
The syllabus puts the point more strongly perhaps than the
court : " The homestead exemption may be claimed in prem-
ises occupied by the owner exclusively for hotel purposes, if
jhis, family reside therein and have no other residence or
home." ^ '
Granting that the latest decision on the point makes law for
its own state, the doctrine of principal use as family home
prevails elsewhere.'
A homestead used for the sale of intoxicating liquors in
contravention of statute, by the owner with his wife's knowl-
ec^ge and consent, was subjected to the satisfaction of a judg-
ment recovered for such violation of law.*
And, in a later case, property thus prostituted by the owner,
without the consent, and against the remonstrance, of his wife,
was held liable. The pourt said : " The consent by the wife is
not required when the husband is the owner. It may be that
this consideration of the law will in some cases cause a loss of
homestead rights, and lead to hardships ; but, if so, it is be-
yond our control. We must interpret the law as we find it.
The general assembly may have thought it better to make the
homestead liable in such cases than to permit the homestead
right to operate as a shield for the protection of the offender
against the consequences of his wrongful acts." *
■A part of a homestead may lose its exempt character by its
devotion to business purposes when it can no longer be con-
sidered as an appurtenance of the part occupied as a family
residence.*
»King V. Welborn, 83 Mic'h. 195; 'Rhodes v. McCormick, 4 la. 374;
Howell's Mich. Stat, § 7731. Contra: In re Noah, 73 Cal. 590; Mann v.
liaughlin v. Wright, 63 Cal. 113. See Rogers, 35 Cal. 319 ; Gregg v. Bost-
Green v. Pierce, 60 Wis. 373 ; Philleo wick, 33 Cal. 328 ; Ackley v. Cham-
V. Smalley, 23 Tex. 498. bfirlain, 16 Cal. 183 ; Laughlin v.
* Citing the statute and section, as Wright, 63 Cal. 113.
above. See Geney v. Maynard, 44 * Arnold v. Gotshall, 71 la. 573.
Mich. 578; Dyson v. Sheley, 11 Mich. SMcClure v. Branifif, 75 la. 38, 43.
S3a 6 J6.; Smith v. Quiggans, 65 la. 637.
SUBORDINATE USES. 185
§ 6. Sulbordinate Uses.
When homestead has been declared upon premises already
subjected to family occupancy, and the whole are used as a
home, the subordinate employment of a part, in connection
with the whole, for purposes which would not in themselves
be adequate to entitle that part to exemption, may not always
be such as to divest it of the homestead character appertaining
to the whole.i
Since a shop used by the householder, situated in his exempt
premises, may be considered a part of his homestead, so a part
of the dwelling, appropriated to business purposes, may be so
considered.^
A dwelling-house, used for storing household furniture',
while the building is undergoing repairs, and the family board-
ing temporarily in a neighboring house awaiting the comple-
tion of the repairs, has been deemed the habitation of the
family.'
A vacant lot, situated on one side of a public square while
its owner's family residence was on the other, occasionally
used as a place for staking out a horse and cow, was not such
use for " homestead purposes " as would shield it from cred-
itors.* Such use is often diiBcult of ascertainment, giving rise
to many questions in the application of the law to particular
circumstances.^
The burden of proof is on him who claims a place as his
principal home and therefore exempt, when he is living away
from it temporarily."
iLazell V. Lazell, 8 Allen, 576 ; West Arto v. Maydole, 54 Tex. 347 ; Pere-
River Bank v. Gale, 42 Vt. 27 ; Hub- gov v. Kottwitz, 54 Tex. 500 ; An-
bell V. Canaday, 58 111." 437 ; On- v. drews v. Hagadon, 54 Tex. 575 ;
Shraft, 23 Mich. 260 ; Clark v. Shan- Barnes v. White, 53 Tex. 631 ; Evans
non, 1 Nev. 568 ; Englebrecht v. v. Womack, 48 Tex. 233 ; Moreland
Shade, 47 Cal. 628 ; Estate of Delaney, v. Barnhart, 44 Tex. 279 ; Anderson
37 CaL 176 ; Ornbaum v. His Cred- v. McKay, 30 Tex. 186 ; Franklin v.
itors, 61 Cal. 457 ; Klenk V. Knoble, Coffee, 18 Tex. 413; Methery v.
37Ark. 288; Achilles V.Willis, 81 Tex. Walker, 17 Tex. 593; Gay v. Mc-
169; Moore V. Whitis, 30 Tex. 440. Guffin, 9 Tex. 501; Wells v. Bar-
s' Wright v. Ditzler, 54 la. 630 ; nett, 7 Tex. 584 ; Hardy v. De Leon,
Smith V. Quiggans, 65 la. 637. 5 Tex. 311 ; Englebrecht v. Shade,
• 3 Neal V. Coe, 35 la. 407. 47 Cal. 637.
* Efflnger v. Gates, 61 Tex. 590. " The claimant of an urban and
'Miller v. Menke, 56 Tex. 563; country homestead, who lives in
186 OCOUPANCT.
" The almost uniform current of decisions is that actual oc-
cupation of property, as a home of the family, is necessary to
impress upon it the character of a homestead." ^ Yet where one
hundred and sixty acres were allowed as a rural homestead, it
was held that the portion not employed by the residence^nd
inclosures might be devoted to any use without forfeiture of
the exemption right ; ^ which is, however, no exception, since
the actually occupied home must be held in conjunction with the
land. And even if it is a little apart from the land, it may give
the exempt character to the latter, for it is held : Actual occu-
pancy as owner, tenant at will, or lawful possessor under any
title, entitles the head of a family living with him to home-
stead right of a stated value. The dwelling may stand apart
from a farm cultivated by the exemptionist, and be held under
a different title, yet both together may constitute the home-
stead as understood by the legislator.'
Actual occupancy being required, it is held the farming of
land upon shares but not living upon it, though living in a
house adjoining, is not a possession of such land as a home-
stead, and does not render it exempt.*
An owner of two lots, who resides with his family upon
one, and rents the other with the building thereon to a tenant,
cannot have homestead in the latter, under a statute which
defines the homestead as " the dwelling-house in which the
claimant resides and the land on which the same is situated." ^
One who remained as tenant of his house after he had sold
• it, and cultivated a tract adjoining, at the same time, which
he owned, and upon which he subsequently built, was held to
hold the tract exempt from execution.^
Occupancy may be without the having of a home on the
town, must establish that the country bell v. Adair, 45 Miss. 170 ; Mosely v.
part 'claimed is used for homertead Anderson, 40 Miss. 54.
purposes, in Texas. Keith v. Hynd- < Wade v. Wade, 9 Bax. 618.
man, 57 Tex. 425. 5 civil Code of Cal., § 1337 ; Ma-
iDrucker v. Eosenstein, 19 Fla. lone v. Heter, 75 Cal. 433; In re
191, 195; Oliver v. Snoveden, 18 Fla. Crowey, 71 CaL 300; Tieman v. His
833, 834. Creditors, 63 Cal. 386 ; Blackburn v.
2 McDougall V. Meginuiss, 31 Fla. Knight, 81 Tex. 336.
363 ; Baker v. The State, 17 Fla. 406. « Bennett v. Baird, 81 Ky. 554.
' King V. Sturges, 56 Miss. 606 ; Compare Brown v. Martin, 4 Bush,
Porter v. Stewart, 50 Miss. 717 ; Camp- 47.
SUBDEDINATE USES. 187
property occupied, when one lives in a hired dwelling and
employ his own contiguous or near-lying land as part of his
home place — there being no house on the premises. So it
was said : If the exemptionist " ow^ning and occupying a house
and an adjoining garden had sold the house and the land
under it, but had continued to own and occupy the garden,
and as a lessee had remained in the house, the garden might
continue to be a part of the place of his home ; and adjacency
is not a requisite of the homestead right." '
A dwelling-house is essential in some states.^
Upon exchange of homesteads, the temporary continuance
of occupation by one .of the parties after having ceased to own
his residence is not such a blending of ownership and occu-
pancy as gives the right of exemption, though the other con-
tracting party consented to the delay in removing.'
A homestead house on leased land may be moved to an-
other site, and preserve its exempt character during transit.
The creditor would not be injured by the transfer of the
building from one rented lot to another. The - homestead
character is none the less protected because the house is per-
sonal property ; for even when a debtor was in the act of re-
moving such property from his state, it was held inviolable
as to a creditor's power to levy upon it.*
A father deeded his farm to his children in consideration of
their caring for him. He and they continued to live upon it,
and he was held to have retained his homestead right.' It did
not matter in which of the beneficiaries the title was lodged.
All the members of the family, including the father, had home-
stead rights. The necessary ownership and exclusive right of
possession, under some title, existed in the family. That was
1 Rogers v. Savings Bank, 63 N. H. lot, and the homestead may extend
43S ; Allen v. Chase, 58 N. H. 419 ; so as to include part of another not
Cole V. Baijk, 59 N. H. 53, 331. joined to it, to make up the value of
2 A homestead on land without a |500. Hastie v. Kelly, 57 Vt. 293 ;
dwelling-house is not recognized in Spaulding v. Crane, 46 Vt. 297.
Vermont. RL., §1894; Eicev. Rudd, 3 Windle v. Brandt, 55 la. 221.
57 Vt. 6 ; Bugbee v. Bemis, 50 Vt. < Bunker v. Paquette, 37 Mich. 79,
318 ; Mills v. Grant's Estate, 36 Vt citing Woodbury v. Murray, 18
269 ; McClary v. Bixby, 36 Vt. 269 ; Johns. (N. Y.) 400.
Nor in New Hampshire. Woodman 5 First N. Bank v. Warner, 32 Kas.
V. Lane, .7 N. H. 245. But, in Ver- 537.
mont, there may be a house on one
188 OCCUPANCY.
all the state cared for in its effort to conserve and foster
homes.
Buildings on the homestead farm, or city reservation, con-
stitute no part of the homestead and are liable for debts when
they are used for other purposes than that of the owner's
home or as appurtenances to that home. Dwelling-houses on
such land, rented to tenants, may be the homesteads of those
tenants, but they form no part of the owner's residence, and
are not exempt as his property, but subject to general judg-
ment liens.^
The main use of a dwelling being that of a home for a
family, other subordinate uses will not .destroy its homestead
character. Such subordinate uses may be its employment in
part for business purposes, even by one renting a portion of
the house for the purpose, without the forfeiture of the ex-
emption right.^
A tenement was held to be protected as a homestead, in a case
described by the pleadings as " an open and notorious house
of prostitution, used and kept as such by [the homestead bene-
ficiary], and well known to be such by him and his family."
It was also used as a place for selling liquors " without license
and contrary to law." Without the payment of the required
tax in advance is evidently meant.
The court, assuming that such was the character of the
premises, held them exempt as a homestead, notwithstanding
the criminal purposes to which they were prostituted.' The
law contemplates the conservation of lawful homes only.
1 Ashton V. Ingle, 30 Kas. 670; were occupied by the family. "This
Kirkwood v. Koester, 11 Kas. 471 ; occupation would usually be suffi-
Greeley v. Scott, 3 Wood, 657 ; Cas- cient to make it the residence of the
selman v. Packard, 16 Wis. 114 ; Kurz family, and bring it within the pro-
V. Bursoh, 13 la. 371 ; Rhodes v. Mc- visions of the homestead law in this
Cormick, 4 la, 368 ; Hoit v. Webb, 36 state," said the court, dting Susb v.
N. H. 158 ; Gregg \. Bostwiok, 33 Gordon, 38 Kas. 585 ; Hogan v. Man-
Cal. 230 ; Iken v. Olenick, 43 Tex. ners, 33 Kas. 551 ; In re Tertelling, 2
195. Contra, Hancock v. Morgan, 17 Dill. 339 ; Phelps v. Eooney, 9 Wis.
Tex. 582; Nolan v. Reed, 38 Tex. 535 ; 70; Kelly v. Baker, 10 Minn. 154;
Hubbell V. Canaday, 58 111. 435 ; Kelly Umland v. Holcombe, 26 Minn. 288 ;
V. Baker, 10 Minn. 154 ; Clark v. Gainus v. Cannon, 42 Ark. 50a iSee
Shannon, 1 Nev. 568. Heathman v. Holmes (Cal.), 29 P. 404.
2 Bebb V. Crowe, 89 Kaa. 343. The s Prince v. Hake, 75 Wis. 638, dis-
second story of the main building, tinguishing Walsch v. Call, 33 Wis.
and part of the iirst, and of the cellar, 159.
INTENTION TO OCCUPY. 189,
§ 7. Intention to Occupy.
" Occupancy is essential to the existence of the homestead
right, and, for the purpose of its creation or inception, the oc-
cupancy must be actual; but when the premises have become
invested with the homestead character, and a homestead has
been once acquired, a constructive occupancy may be sufficient
to retain it, and it will not be lost by a temporary absence
with no intention of abandonment. The statute exempts only
a homestead in fact, the place of the home. It does not un-
dertake to exempt a contemplated future homestead, and
therefore the mere intention to occupy the premises at some
future time as a home, without actual occupancy, is insuffi-
cient to impress upon them the homestead character." '
"Residence and intention to remain are necessary to the ac-
quisition of domicile.^ Mere intent is insufficient; but it is
all-important when domicile has first been acquired, and the
question of giving it up is to be decided.'
As was said by the Chief Justice of the United States : " A
secret intention of the seller, not made known, cannot affect a
purchaser. Unless the purchaser knew, or from the circum-
stances ought to have known, that the lots were a part of the
homestead, he had the right to treat with and purchase from
the husband without the concurrence of his wife." And he
held, for the Supreme Court, that a mere intention to make
a lot part of the homestead, and the building of a kitchen
upon it after its sale, will not clothe the lot with the exemption
character.*
The testimony of an interested witness in his own favor,
that during his absence with his family he secretly intended
to resume his home, is of little worth in the absence of cir-
cumstances to sustain it. What was locked within his breast
during his absence, no other person can know.'
1 Currier t. Woodward, 63 N. H. 63, Hansford v. Holdam, 14 Bush, 310
in exposition of Gen. L., eh. 138, § 1. (qualifying Brown v. Martin, 4 Bush,
2 Leach y. Pillsbury, 15 N. H. 137; 50): Wade v. Wade, 9 Bax. (Tenn.)
Foss V. Foss, 58 N. H. 383 ; Norris v. 613 ; Murchison v. Plyler, 87 N. C. 79.
Moulton, 34 N. H. 393; Holmes v. » Hart v. Lindsey, 17 N. H. 335, 348.
Greene, 7 Gray, 399, 301; Horn v. ^Grosholz v. Newman, 31 Wall.
Tufts, 39 N. H. 498 ; Austin v. Stan- 481. (The case from Texas.)
ley, 46 N. H. 51 ; Snapp v. Snapp, 87 s Spaulding v. Crane, 46 Vt 300.
Ky. 554; Tant v. Talbot, 81 Ky. 33;
190
OCCUPANCY.
Use and intent must co-exist in order to impress the home-
stead stamp upon real estate.' It has however been held that
if the head of a family buys the site of an intended home and
begins 4;o build a family dwelling-house on it with the inten-
.tion of occupancy by him and his family, he has the home-
stead immunity before actually moving upon the premises,
and cannot convey the property without his wife's joinder in
the deed.^
1 Fort V. Powell, 59 Tex. 321 ; An-
drews V. Hagadon, 54 Tex. 571 ; Jor-
dan V. Irathurn, 51 Tex. 276.
2Dobkins v. Kuykendall, 81 Tex.
180 ; 16 S. W. 743. Gaines, J., after
stating the case : " In 1888 the plaint-
iS brought this suit against both the
husband and the wife. It was in the
ordinary form of trespass to try title.
The defendants answer that they
bought the land intending to make it
their homestead, and made prepara-
tions to improve it for that purpose ;
that they had never abandoned it,
and had not, since the purchase,
owned any other land. She also
pleaded, in effect, that when defend-
ant Simon Kuykendall bought of
plaintiff he intended to buy. and
plaintiff intended to sell, all the land
lying between the Powers, the Meis-
enhelter, the Keith, and Lauderdale
surveys, and prayed that, if the deed
should not be construed to convey
the whole of that tract, it should be
reformed in accordance with the
real contract of the parties. In the
view we take of the case, it is suffi-
cient to say that there was testimony
tending strongly to show that the
plaintiff intended to sell the land as
claimed by the defendants. On the
other hand, the plaintiff's testimony
in rebuttal was sufficient to author-
ize the jury to have found that only
eighty acres or a little more was in-
tended to be conveyed. The cojirt
charged the jury, in effect, that if,
when the plaintiff conveyed to Kuy-
kendall, it was the intention of the'
grantor to sell, and of the grantee to
buy, only the eighty-two or eighty-
three acres of land lying west of the
tract in controversy, they should
find a verdict for the plaintiff ; and
also that, if their intention was to
convey the whole of the tract, then
the quitclaim deed from Kuyken-
dall to plaintiff reconveyed the land
in controversy to the latter, and they
should also find a verdict for the
plaintiff, unless at the date of that
deed the premises were the home-
stead of the defendants. But the
jury were also instructed that, if it
was the intention of the parties to
the first deed to convey the whole
tract, and if the defendants had dedi-
cated it as their homestead when
Kuykendall made the deed to plaint-
iff, they should find a verdict for the
defendants. The jury were also cor-
rectly instructed as to what acts
were necessary to constitute a dedi-
cation of land as a homestead when
there had been no actual occupancy
as a residence. The jury having
found for the defendants, and judg-
ment having been rendered accord-
ingly, the plaintiff, having appealed,
now complains that ' the court erred
in making a charge to the jury upon
the homestead question.' It is in-
sisted that there was no evidence to
warrant a charge upon that issue.
In reference to this assignment, it is
sufficient to say that the undisputed
testimony showed that the defend-
INTENTION TO OCCUPY.
191
" The actual use of a lot for the convenience of the family
has always been regarded as the most satisfactory evidence of
an intention to make it part of the homestead. In reported
cases involving controversies over the intent, this best evidence
of it did not generally exist, and the determination of the
issue has been forced to other means. But even the positive
and formal declaration of both husband and wife of a con-
trary intent, as has been held, are not sufficient to divest
property, actually used as a homestead, of the homestead pro-
tection, even when the declaration is made at the very time to
which the issue is confined." ^
Where the statutory authorization of exemption was of " a
dwelling-house, out-buildings, and the land used in connec-
tion therewith, not exceeding five hundred dollars in value,
and used or Tcept by the householder or head of a family as a
homestead," it was construed to require " more than the naked
intention of the head of the family to make the premises his
acres lying west of the land in con-
troversy, they should find for the
plaintifif, no further instruction upon
that phase of the case was either
necessary or proper. The charge is
admirable for its brevity and clear-
ness, and is not subject to any just
criticism. It is also insisted that the
court erred in not granting a new
trial, because of the errors in the
charge, and because the evidence
showed that there was no intention
to convey the land in controversy by
the deed from plaintiff to Kuyken-
dall. The evidence upon that ques-
tion was conflicting, and it was the
province of the jury to weigh the
testimony and to determine the issue.
Even if the verdict should appear to
us to be against the weight of the
evidence, we could not disturb it."
iRuhl V. Kauffman, 65 Tex. 734,
citing Jacobs v. Hawkins, 63 Tex. 1 ;
Radford v. Lyon, 65 Tex. 471 ; Med-
lenka v. Downing, 59 Tex. 32. See,
First -National Bank of San Luis
Obispo V. Bruce (Cal.), 29 P. 586 ; Cal.
Civ. Co3e, § 1241 (4).
ants had made such preparations
upon the land as evinced their inten-
tion to make it their home, and that,
under the rule of decision in this
court, by such act, coupled with their
intention ultimately to reside upon
it, the homestead became complete,
and continued until that intention
was finally abandoned. Franklin v.
Coffee, 18 Tex. 413; Moreland v.
Barnhart, 44 Tex. 275; Barnes v.
White, 53 Tex. 628. The second as-
signment of error raises the same
question in a different-form. The
third is that ' the court should have
charged the jury that, if there was
any ambiguity in the description in
said deed, and that said description
needed correction to conform to the
true facts, the defendant Simon Kuy-
kendall had the power to make this
correction alone, without being
joined by his wife, as he in fact did
do by the quitclaim deed introduced
in evidence.' The court having
charged that if the parties to the deed
from the plaintiff to-Kuykendall in-
tended to convey only the eighty
192 occaPANOY.
family home, at some indefinite future time, to establish a
homestead right. One of two conditions is essential to the
existence of a homestead right under the statute. There rnust
be either an actual personal use, by the head of the family, of
a dwelling-house and lands appurtenant as a family home, or
an actual keeping by him of the same for a family home with
the present right and purpose of so using it. . . . Tp give
the construction contended for the word ' kept ' would be add-
ing an additional ground or condition to the statute for ac-
quiring a homestead and establish a dangerous precedent in
this class of cases, as the intention of the head of the family,
being locked up in his own breast, would not be known to, or
readily ascertainable by, persons dealing with him. Such a
doctrine would be productive of fraudulent claims to home-
steads upon testimony that would be difficult to meet and
practically disprovable. . Where the premises have
never been used or kept as a homestead by the head of the
family he can acquire no right to a homestead therein by a
mere intention to use them as such at some indefinite future'
time." '
Intent to occupy, not carried out till a lien has attached,
will not avail to defeat the lien.^
He who has voluntarily put a lien upon his land cannot de-
feat its vindication on the plea that he had purchased the land
for a homestead and that he and his wife had designed it for
that use, if he Jived with her and the rest of his family on
other premises, when he gave the lien, though the dwelling he
then occupied and owned was on leased land.'
1 Keyes v. Bump, 59 Vt. 395 ; True Solary v. Howlotfc, 18 Fla. 756 ; Oliver
V. Estate of Morrill, 28 Vt 672; v. Snowden, 17Fla. 823; Leev.MiUer,
Spaulding v. Crane, 46 Vt. 292; Bug- 11 Allen (Mass.), 37; Faut v. Talbot,
bee V. Bemis, 50 Vt 216 ; West River 15 Ky. 712 ; Wiiliams v. Darris, 31
Bank v. Gale, 42 Vt 27 ; Davis v. Ark. 466 ; Charles v. Lamberson, 1
Andrews, 30 Vt 678. In Vermont la. 435 ; Cole v. Gill, 14 la. 527 ;
the finding of a county court that Christy v. Dyer, 14 la. 438; Elstonv.
premises are " used or kept " as a Robinson, 23 la. 208 ; Holden v. Pin-
homestead is conclusive. Russ v. ney, 6 Cal. 235. Mere intent without
Henry, 58 Vt 388 ; Rice v. Rudd, 57 acting is nothing. Greenman v.
Vt 6 ; Boyden v. Ward, 38 Vt 628 ; Greenman, 107 111. 404.
Holmes v. Holmes' Estate, 26 Vt 536. s Johnson v. Martin, 81 Tex. 18 ; 16
2Grosholz V. Newman, 21 Wall. S. W. 550. Henry, J. :" This suit was
481; True v. Morrill, 28 Vt 672; brought by the appellee to recover
INTENT SUBSEQUENTLY EEALIZED.
193
§ 8. Intent Subsequently Realized.
The claimant " was not occupying any part of the tract
when he inherited an interest in it. He swears, however, that
it was his purpose to make his home upon the land ; and if,
the amount of a promissory note,
and to foreclose a deed of trust made
by appellants to secure it The ap-
pellants pleaded that the land con-
veyed by the deed of trust was their
homestead. The cause was tried by
the court without a jury, and the
following iindings of fact were filed
by the judge: 'At the time of the
execution of said note and deed of
trust defendant did not occupy the
land in controversy, but at said time
he and his wife occupied a house in
the town of Brownwood, which said
house belonged to defendant, and
was used by him as a place of busi-
ness and as a residence ; and, further,
that said house was situated on land
which was leased by defendant for a
term of five yeai's, of which two and
one-half years had expired. At the
time of the execution of said note de-
fendant had inclosed the land in con-
troversy, and had built thereon a fish-
pond or water-tank, and had put flsh
therein. He had also cleared away
the spot of land upon which to build
a house, and had a placed thereon
certain stones for a foundation
thereof. He had also expressed an
intention of making said land a home
for himself and family. No other
steps were taken by the defendant
towards making said land his home
until more than one yea.r after the ex-
ecution of said note. He then planted
some trees on said land, and about five
months thereafter he built a house,
which he has since used as a home
for himself and family.' The court
concluded that at the time of the exe-
cution of the deed of trust the land
was not entitled to exemption as a
homestead, and gave judgment ac-
13
cordingly. The defendant proposed
to testify that at the date of the exe-
cution of the deed of trust he owned
no homestead except the land in
controversy. The evidence was ob-
jected to, and excluded. The witness
had been permitted to testify to the
facts. The excluded testimony was
merely his own conclusion, which it
would have been error to admit.
The defendant also proposed to testify
that the land was purchased by hira
' for the purpose alone of a home for
himself and his family,' and that,
prior to the execution of the deed of
trust, he and his wife went upon the
land, 'and mutually designated and
B,et apart said tract of land as their
homestead by examining the same,
and by agreeing between themselves
that the same should become their
future homestead,' and that ' it was
their intention at the time of the ex-
ecution and delivery of said deed of
trust to make a homestead out of the
tract of land upon which it was
given.' To whatever extent the ex-
cluded evidence was not liable to the
objection that it was a statement of
a conclusion of the witness, instead
of the facts upon which such conclu-
sion was predicated, it must be held
to have been properly rejected, be-
cause it was immaterial. The facts
found by the court, that the defend-
ant owned a house situated in a town,
and upon land which he held a lease
for, in which he resided and con-
ducted his business, precluded his
acquisition of a homestead in the
country by the performance of the
acts, and with the intention claimed
by him to have existed. We think
that if all of the acts with regard to
194r OCCUPANCY.
after he acquired a right in it, he manifested this intent, his
interest would be protected from forced sale." '
Intent, with slight acts, have been held sufficient to acquire
homestead.''
The constitutional authorization that a homestead occupied
as a residence by the family of the owner shall be exempted
from forced sale by any process of law,' and the statutory
provision in accordance,* have been so far extended by the
courts as to exempt unoccupied property when there were
preparation and intention to make it a residence.*
It has been decided in several states that the purchase of
real estate to be occupied as a homestead, and actually so oc-
cupied as soon as practicable, renders the property exempt as
such from the date of the purchase.'
The rule varies in different states. In one it is said: "To
constitute a valid claim of homestead, there must be actual
occupancy in fact, or a clearly-defined intention of present
residence and actual occupancy, delayed only by the time nec-
essary to effect removal or to complete needed repairs or a
dwelling-house in process of construction." ' So, in that state,
it was held that an intestate, who bought property just before
his death with the view of repairing it and making it his home,
should be regarded as having established it as his homestead
the land in controversy, as well as v. McLennan, 60 Tex. 43 ; Jenkins v.
the purpose or intention of the de- Volz, 54 Tex. 639 ; Clements v. Lacy,
fendant with regard to making it his 51 Tex. 150.
future place of residence, be ad- ' Const Kansas, art 15, § 9.
mitted, it still must be held that the < Gen. Stat Kas. (1889), § 235.
house that he was occupying in town ' Swenson v. Kiehl, 21 Kas. 533 ;
was beyond conti-oversy exempt as a Gilworth v. Cody, 31 Kas. 702.
homestead. He could not have two « Emporia Ass'n v. Watson (Kas.),
exemptions at the same time. It is 25 Pac. 586 ; Gilworth v. Cody, 21
not necessary for us to hold, and we Kas. 702 ; Harrison v. Andrews, 18
do not now decide, that, if he had Kas. 535 ; Colby v, Crocker, 17 Kas.
owned no homestead in town, the 527; Mitchell v. Milhoan, 11 Kas.
proof was not sufficient in other 617; Edwards v. Fry, 9 Kas. 417;
respects to attach the exemption Monroe v. May, 9 Kas. 466 ; Eiggs v.
claimed to the land in controversy. Sterling, 27 N. W. 705 ; Scofield v.
We find no error in the proceedings, Hopkins, 61 Wis. 374 ; Reske v. Reske,
and the judgment is affirmed." 51 Mich. 541 ; Crawford v. Richeson,
'Crabtree v. Whiteselle, 65 Tex. 101 111. 351; Hanlon v. Pollard, 17
111, 114. Neb. 368.
2 Luhn V. Stone, 65 Tex. 489 ; Brown ' Blum v. Carter, 63 Ala. 235.
INTENT SUBSEQUENTLY EBALIZED. 195
free from his debts when his widow and children took it at
his death, before the contemplated improvement and occu-
pancy had been accomplished.*
In another state, it is judicially said : " The property must,
when claimed as exempt, be stamped with.the charsicter of a
home by some circumstance other than the intention to make
it so. A bare lot unoccupied cannot be a homestead. Lum-
ber placed upon it for the purpose of building is not occu-
pancy, even though there may be a contract made for the
building. ... It would be difficult to draw the line where
exemption begins to attach to unoccupied land, if this claim
of immunity is allowed."- And it is held in another state,
that, a mere intention to erect and occupy a dwelling does not
impress the homestead character upon the site.'
When the claimant of homestead had recorded his declara-
tion of intention to make his premises his homestead, and had
begun to build a house but had not actually occupied it as the
statute required, it was held that these preliminary acts did
not avail against his creditors.* Here was a strong case for the
claimant, if intention ought ever to avail him. He had noti-
fied creditors by the record, and had openly begun to build.
In some states, the legal requirements of occupancy would
hare' been so construed as to shield him from his creditors.
Here is an illustration to foUov — ^ but it must be remembered
that the statutes were not precisely the same, under which
the last cited and the next cited cases were tried.
When a man had purchased land, and begun to erect a
dwelling and a business house on it, four or five months be-
fore judgment was rendered against him, he was allowed to
defeat the lien of the judgment by moving upon the land, after
the decree had been duly recorded, and by having his wife
join him there some three months after he had gone thither.
Pie clainied to have intended to make the property his home-
stead at the time the erection of the buildings was begun.
The court said : " Where the purchase is made for the pur-
1 Englehardt v. Yung's Heirs, 76 Tumlinson v. Swinney, 32 Ark. 403 ;
Ala. 534 McKenzie v. Murphy, 34 Ark. 167 ;
2 Drucker v. Rosenstein, 19 Fla. 191, Johnson v. Turner, 39 Ark. 380.
198; Solary v. Hewlett, 18 Fla. 756. <Lee v. MUler, 11 AUen (Mass.), Sa
» Williams v. Dorris, 31 Ark. 466 ;
196 OOOUPANCT.
pose of a homestead with a view to an early occupancy, and
this is followed in reasonable time by such occupancy, this
may secure the homestead as such from the time of its pur-
chase. Some time must usually intervene in the prepara-
tion of the property for actual occupancy, and the homestead
character is not made to depend on the personal presence of
the members of the family." ' Not on the personal presence,
but on family occupancy ; not on each member being ready
to respond at call, but on the fact that the property is the
family habitation. Is there not obscurity in the last clause
of the above quotation? An insolvent debtor, having a home-
stead, cannot have another, after assignment for the benefit
of his creditors, on the grodhd that he has begun to improve
the property thus claimed and intends to make it his home-
stead.'' Could he have a second by actual occupancy?
In a state where both the constitution and the correspond-
ing statute require that the homestead shall be " owned and
occupied " by the exemptionist,' the courts formerly under-
stood that actual occupancy was meant; but now there is
much latitude of construction. There it was formerly held
that actual occupancy by a family is a requisite to the enjoy-
ment of a homestead exempt from execution ; that the mere
ownership of the prescribed quantity of land with intent to
build upon it and to make it the family residence is insuiEcient ;
that a contemplated residence is not yet a residence ; that the
law knows no exeriipt home in futuro, when no dwelling or
place of abode of any kind has been even begun to be erected ;
that there must be a homestead in fact for the exemption to
protect from creditors.*
Yet the intent to make a homestead on a vacant city lot
1 Van EatclifE v. Call, 73 Tex. 491 distinguished from Gardner v. Doug-
(quoting and approving Gardner v. lass, 64 Tex. 79 ; Swope v. Stanzen-
Douglass, 64 Tex. 78) ; Ruhl v. Kauff- berger, 59 Tex. 390 ; Franklin v. Cof-
man, 65 Tex. 734; Jacobs v. Hawk- fee, 18 Tex. 417; Barns v. White, 5
ins, 63 Tex. 1 ; Brooks v. Chatham, Tex. 628.
57 Tex. 38 ; Moreland v. Barnhart, 44 ' Const of Michigan, art XVI,
Tex. 280; Anderson v. McKay, 30 §§1-4; Howell's Stat, §§ 7731-9.
Tex. 190; White v. Wadlington, 78 <Coolidge v. Wells, 20 Mich. 87;
Tex. 159. Wisner v. Farnham, 3 Mich. 472 ;
'Archibald v. Jacobs, 69 Tex, 248, Dyson v. Sheley, 11 Mich. 537.
INTEKT SUBSEQUENTLY EEALIZED. 197
was held to render it exempt. The owner, having purchased
the site of his contemplated home, inclosed it, and applied its
proceeds to the accumulation of a fund for building a dwelling-
house on the lot, was held to have it exempt from forced sale
from the date of purchase to any reasonable time within which
the building might be erected. Whatever the particular im-
provements done on this particular site with the view of mak-
ing it a family home, the law was broadly stated to be as fpl-
lows : " A city lot purchased with the intention of making it
a homestead for the purchaser and his family will be exempt
from levy and sale on execution from the time of purchase,
even-though unimproved and without a dwelling thereon, if the
purchaser incloses it and uses and occupies it with the con-
stant purpos^ of making it his home, and uses the proceeds
thereof, and such means as he can procure, within a reason-
able time, to erect a house thereon for his family, provided it
does not exceed in quantity and value the constitutional limit.
What will be regarded as a reaspnable time must necessarily
depend upon the circumstances of each particular case." ^
The inclosing of a lot is in itself no indication that a dwell-
ing is to be erected upon it, in the state where this decision
was rendered, for neither fields nor city residences are there
required to be fenced : so that act may be left out of the list
of reasons given. Occupancy in any other way than as a fam-
ily home gives no homestead right, in face of the constitu-
tional condition that there shall be occupancy by a family —
for in that sense the court evidently understood the word as
used in the constitution, while a diiferent sense is attributable
to it in the quotation above made. The occupancy of a city
lot as a market place, or of a plantation as a sheep-ranch, is
not such as to fulfill one of the conditions necessary to the en-
joyment of homestead right.
Omitting this second reason as inapplicable, let us see
whether the third — using the proceeds to erect a house —
is any better sustained. Is there any homestead statute in
iDevillev.Widoe, 64 Mich. 593,535, beck, 36 Mich. 899; Bouchard v.
in which it is said : " The following Bourassa, 57 Mich. 8 ; Griffin v. Nich-
authorities will be found to support ols. 51 Mich. 575. See, also, Scofield
the views herein expressed : Reske v. v. Hopkins, 61 Wis. 370 (21 N. W. R.
Eeske, 51 Mich. 541 ; Barber v. Rora- 259)."
198 OCOTJPANCT,
any state of the Union which makes the disposition of the
rents and profits of a vacant lot or houseless plantation, any
ground for or condition to the enjoyment of homestead ex-
emption? If not in the statute, a court cannot supply the
omission without legislating.
Nothing is left but the intention of building and occupying
a home. The court's mention of the inclosing, occupying
otherwise than as a home, and using the proceeds, is merely
the support of the owner's declaration by the recital of cor-
roborative facts. Ifothing but intent remains. Can one read
the constitutional and statutory provisions for homestead, and
conclude that all may be reduced to this?
The duration of the time in which intent will hold the home-
stead right depends upon circumstances, if the decision quoted
above be sound. In the case decided, it held good some three
years. There might be a case in which a worthy man (or an
unworthy, one, for the law makes no distinction between them
relative to homestead right,) might find it necessary to intend
for ten years before his savings would prove sufficient for the
erection of even a humble home.^
The subsequent user or occupation of the premises as a
family residence has no retroactive effect so as to render the
property exempt from a lien antedating the erection of the
building, and its occupancy by the family of the owner.^
The intent to occupy must not only antedate the subjection
of the homestead site to the lien, but it must be established by
circumstantial o^ other evidence to have had such prior ex-
istence; otherwise (the intent being questionable), the court
where this doctrine prevails will hold the homestead right
non-existing.'
The same court subsequently held : " Present intention of
occupancy as a homestead, with present action to carry the
A The case above criticised scarcely by, established a wood-yard on the
goes farther than that of Reske v. contehiplated home site, inclosed the
Reske, 51 Mich. 541. A young man, ground, built a barn, dug a well and
unmarried, bought a lot, held it three intended to ' erect a dwelling-house
years without occupying it ak a and occupy it
dwelling place, yet was given the ' Avery v. Stephens, 48 Mich. 246 ;
benefit of the homestead exemption, Upman v. Second Ward Bank, 15
because he had married meanwhile. Wis. 449 ; Kelly v. Dill, 33 Minn. 435.
moved his residence to a house'near 'Bowles v. Hoard, 71 Mich, 150.
EETEOAOTION. 199
intention into effect, constitutes a homestead in law." Intent
alone is now held insuflBcient: it must be accompanied by
" present action." One would think the action must be that
of moving upon the homestead and occupying it as a family
residence ; but the court will be satisfied with the planting of
trees and nothing more for the first seventeen months, fol-
lowed then by the making of a contract for the building of a
dwelling.
Such " present intention," and such very slight " present
action " at the time of the purchase, gave the lot the exemp-
tion character eo instanti, in the estimation of the court, so
that the mechanics, whose lien would have been good on ordi-
nary property, was powerless of hold on this. The woman
who held the homestead had her house and kept her money,
under the benevolent provision of the law and its very liberal
construction.!
§ 9. Ketroaction.
The law of relation, with reference to the exemption right,
is not created or even recognized in any homestead statute.
Until the conditions of ownership, family headship and occu-
pancy (and dedication too in states where that is required),
have been complied with, and the homestead privileges thus
fully acquired, no exemption right exists in embryo, suscep-
tible of being made available by some subsequent act that shall
relate back to the time when the claimant first intended to
acquire the right, so as to defeat intervening obligations.
There are decisions, as has been shown, which teach that
occupancy relates back to the filing of the declaration, even
to the purchase of the property. It has even been held that
an unmarried man, having no family whatever, having no
dwelling-house ahd not being a householder in any sense, may
buy a vacant lot with the view to making it a home — then
1 Mills V. Hobbs, 76 Mich. 123, 1S6. house ; and there is nothing in the
The mechanics had no notice that statute requiring the owner to give
the building was claimed as a home- notice to the contractor, subcon-
stead while doing their work. The tractor or material-men, that such
court said : " There is nothing in the owner claims the premises as a home-
record to show that McCartney did stead. It is the fact of its being a
not know that it was a homestead homestead, or not, that determines
when he contracted to build the the Tight of lien."
200 OCC0PANOT.
get married, build a house, occupy it, and successively claim
exemption from the date of purchase : his occupancy relating
back to his marriage, and both to the compliance with the
single condition of ownership. Preparation to occupy, and
even mere intention to do so, have been held to bar creditors,
when such preparation or intent was followed by actual oc-
cupancy. In other words, the debtor has been relieved from
his obligations contracted between the time of first .occupying
and that of first forming the design of doing so, in his own
mind.
The criticism of the cases cited in this and the foregoing
section turns on the want of notice to the public. The court
rendering them may have considered that the constitutional
designation of a day when the exemption provision should
become operative was sufficient notice to the public, so that
all who should thereafter give credit would know that pay-
ment might be defeated by subsequent homestead acquisition.
The decisions, however, seem to disregard the compensatory
character of homestead ; the balancing of its benefits and its
burdens.
It has been held that when a debtor buys property and
makes preparation for building a dwelling-house upon it,
judgment creditors when docketing their judgments are pre-
sumed to know what he has done or is doing on the land,
"indicating his intention of making it his homestead; and
any further notice to them was deemed superfluous." '
So, where the constitutional exemption is of " a homestead
. . . occupied as a residence by the family of the owner,"
it was judicially held that : " A purchase of a homestead with
a view to occupancy, followed by occupancy within a reason-
able time, may secure ab initio a homestead inviolability." ^
Property purchased for a home, and occupied within a sub-
sequent period which the court characterized as " reasonable,"
was protected from forced sale by the application of the law
of relation — from occupancy to purchase — so that the prop-
> Soofield V. Hopkins, 61 Wis. Monroe v. May. 9 Kas. 466, 475 ; Gil-
371-2; Kent v. Lasley, 48 Wis. 257: worth v. Cody, 21 Kas. 702; Const
Manseau v. Mueller, 45 Wis. 436; Kas., art 15, § 9; Gen. Stat (1889),
Bennett v. Child, 19 Wis. 366. § 235.
2 Edwards v. Fry, 9 Kas. 417, 435;
EETKOAOTION. 20l
erty "was treated as inviolable from the date of its acquisi-
tion.'
"When the statute makes no provision relative to intention,
the courts take note of circumstances rather than of interested
professions. The claimant's testimony that he intended to
occupy is strdngly repelled by proof of the facts that he had
contracted to sell the property claimed and had received pay-
ments on his contract.^ But when preparations for living in
the house, even from the date of purchase, are proven to the
court, they strongly support the claimant's own testimony
that he intended to occupy from that time.'
The doctrine of the state, where the last-cited decisions
were rendered, seems to be that evidence of intention must be
taken with caution ; but that intention, when established, is a
circumstance to be received as favorable to constructive occu-
pancy.
In another state, though the statute confined the exemption
right to the dwelling " in which the claimant resides, and its
appurtenances and the land on which the same is situated,"
and fixed a limit in quantity and value, yet it was construed
to include property purchased with intent to reside on it,
though the purchaser did not reside there. And the property
was declared exempt from the day of purchase, through the
intervening time from the date of the contract to that of act-
ual occupancy.*
It has been held that occupancy relates back to the filing of
the deed declaratory of homestead selection, so that it will be
in time to save the homestead from execution if one should
move upon the land before a judgment becomes a lien. It
is held that the occupancy then begun is retroactive to the
time of filing, so that the land is deemed a homestead from
that date.' If the deed was filed before the debt was con-
tracted, the creditor is debarred his remedy by the subsequent
action of the debtor in taking up his home on the land."
1 Monroe v. May, 9 Kas. 466. v. Cody, 21 Kas. 702 ; Crawford v.
2Gapen v. Stephenson, 18 Kas, 140. Richeson, 101 111. 357.
' Monroe v. May, 9 Kas. 466. ' Finnegan v. Prindeville, 83 Mo.
4Hanlon v. Pollard, 17 Neb. 868 517.
(Neb. Comp. Stat. (1889), cb. 36, g 1),. - SGriswold v. Johnson, 23 Mo. App.
citing Edwards v. Fry, 9 Kas. 417 ; 466. See Berry v. Ewing, 91 Mo. 395.
Monroe v. May, 9 Kas. 466 ; Gilworth
202 OCCUPANCY.
On the other hand, in a state where declaration is author-
ized but not made indispensable, it was held that occupancy
after the creation of a debt did not reach back by the law of
relation so as to save the homestead from execution for that
debt.!
Intention did not create retroaction; nor preparation to
occupy ; nor subsequent family occupancy.^
§ 10. Eetroaction : Building Material.
Where the homestead law is : "A homestead, to be selected
by the owner thereof, consisting, when not included in any
city, or village, of any quantity of land not exceeding forty
acres, used for agricultural purposes, and when included in
any city or village, of any quantity of land not exceeding one-
fourth of an acre and the dwelling-house thereon and its ap-
purtenances, owned and occupied by any resident of this state,
shall be exempt from seizure or sale on execution, from the
lien of every judgment, and from liability in any form for the
debts of such owner, except laborers', mechanics' and purchase-
money liens, and mortgages lawfully executed, and taxes law-
fully assessed, and except as otherwise specially provided in
these statutes ; and such exemption shall not be impaired by
temporary removal with the intention to re-occupy the same
as a homestead, . . ." ' the word " occupied " is construed
to be not confined to actual occupancy, but to include intended
occupancy. It is said : " The occupancy required by the stat-
ute does not mean actual, physical occupation by the owner
personally, for the same section requiring it declares that such
exemption shall not be impaired by temporary removal with
the intention to re-occupy the same as a homestead." And
then an argument is drawn from the extension of the exemp-
• Elston V. Robinson, 33 la, 208 ; our statute there is an unbroken
Yost V. Devault, 3 la. 345. series of decisions that occupancy,
2 In Elston v. Robinson, 33 la. 210, the use of the house by the family as
the court used the following Ian- a homestead, are essential require-
guage : " The fact that the owner ments to impress the property with
commenced a building upon a lot be- the character of a homestead. A
fore the right of the creditor at- mere intention to occupy it, though
tached, but which, by no other act subsequently carried out, is not suf-
of the owner, had been impressed flclent."
with the homestead character, would 3 Annotated Stat. Wis., § 3983.
not make the same exempt. Under
keteoaction: building mateeial. 203
tion to the proceeds of sale held for investment in a new
home. Then it is added: "The lonafide intention of acquir-
ing the premises for a homestead, without defrauding any one,
evidenced by overt acts in fitting them to become such, fol-
lowed by actual occupancy in a reasonable time [in this case
the exemptionists had not actually occupied at all], must be
held to give to the premises answering the description pre-
scribed in the statute the character of a homestead, and the
homestead exemption thus secured covers not only the land,
•but such materials so used thereon, and relates back to the
time of purchase with such intent to make the premises a
homestead." ^
To quote further from the court : " It would seem that ma-
terials actually upon the ground, and designed to be used in
the construction of a dwelling-house, well, or other essentials
of a homestead, with the intention of the owner to occupy the
same, with his family, as such, would also be exempt." And
this seeming was inferred from prior decisions (which were
approved), holding that "lath, shingles and lumber, obtained
by the debtor for the purpose of repairing the dwelling-house
occupied by him as a homestead, and actually deposited upon
land included in the homestead, were exempt.^
That is to say, without any statutory warrant expressed, as
soon as building material, for a family dwelling to be, is lodged
upon ground set apart as a homestead, or intended to be set
apart, it is impliedly exempt, being devoted to a use which
renders it a thing set apart under statute, which no creditor
may touch.
It seems very plain that the statute means that the prop-
erty shall be " occupied " at the time exemption attaches —
not at a future time; that occupmicy means habitation by the
family — not mere preparation to inhabit. There is no qual-
ification of the word " occupied," by the legislator, in that
part of the statute which lays down how homestead is to be
acquired ; but there is the express further provision that the
exemption, when once acquired, "shall not be impaired by
temporary removal with the intention to re-occupy: " from
which we may logically infer that he meant that temporary
I Scofleldv. Hopkins, 61 Wis. 370. ^Krueger v. Pierce, 37 Wis. 269;
Zimmer v. Pauley, 51 Wis. 285.
204 OOCUPAifCT.
removal is a cessation of occupancy which woald forfeit the
exemption but for this further provision. One cannot re-
occupy without having first occupied and ceased to occupy.
Intention is limited by the statute to re-occupancy. It should
have been coupled with occupancy as one of the conditions
of acquiring a homestead, if the legislator had meant to make
intention and preparation to occupy equivalent to occupancy.
If the expression of such means of acquiring was not neces-
sary, why was it necessary in that part of the statute which
provides for the means of retaining the exemption right?
Why should "intention to re-occupy" be expressed, and "in-
tention to occupy" be omitted?
The argument drawn from the statutory provision, respect-
ing temporary removal with intent to re-occupy, does not sus-
tain the proposition that " the occupancy, required by the
statute [in acquiring exemption in the first instance], does not
mean actual, physical occupation by the owner personally."
And the argument from the further provision of the stat-
ute exempting the proceeds of a homestead sale while held
'' with the intention to procure another homestead therewith,
for a period not exceeding two years," seems equally falla-
cious. Why should the legislator expressly make the bene-
ficiary's intention a condition here, and significantly avoid it
in the part of the statute declaring how exemption shall be
acquired? If the expression was necessary where used, it
was necessary where it is omitted, if intention and prepara-
tion to make a homestead were meant to be equivalent to actual
occupancy.
The reasons on which the decision is based do not seem to
be such as should commend themselves to the bench and bar
of other states having statutes which require occupancy as a
condition to the acquisition of exemption of homesteads,
though it is law in the state where it was rendered, where
it had been foreshadowed, and in many respects anticipated
by prior deliverances.^ '
§ 11. Inherited Homesteads.
The rule requiring occupancy as a condition to the enjoy-
ment of the exemption right finds no exception in the case of
1 Scofield V. Hopkins, 61 Wis. 370.
LEGAL POSSESSION AS OCOnPAHCY. 205
inherited property which has never been the home of the
claimant.^ Distinction, however, has been made between in-
heritance and purchase, favoring the former, with respect to
the homestead right".^ One who lived on a part of bis father's
■ land, and who inherited it on his father's death, was adjudged
entitled to hold it exempt from his own debts previously con-
tracted, on the ground that his creditors had not trusted him
in consideration of his ownership of the land.'
In exposition of a statute which provided that homestead
exemption " shall not apply to sales under execution, attach-
ment or judgment, at the suit of creditors, if the debt or
liability existed prior to the purchase of the land or the erec-
tion of improvements thereon," * the courts construed the
word " purchase " not to mean acquisition, but to be confined
to its sense as distinguished from taking by descent. The con-
clusion was that though the debtor may have contracted debts
before inheriting property which he uses as a homestead, his
creditors are debarred ; but that, if he had purchased the prop-
erty after contracting the debts, and then used it as a home-
stead, they could have subjected the property to the payment.'
What did the legislator design? That property acquired
after the creation of indebtedness, in any way, should be liable
to forced sale after judgment, seems the manifest meaning. The
limitation of the word " purchase " to its ordinary meaning,
and the disregard of occupancy, under some sort of title, as a
condition to the enjoyment of the homestead right, would open
the door to all debt-contracting young men for entering into
their subsequent inheritances, with their families, without
having their patrimony liable for their antecedent debts. Such
a result was hardly contemplated by the legislator, and seems
against the sjj^rit of the statute. '
§ 12. legal Possession as Occiipancy.
" A homestead, in the possession cf each head of a f amilyj
and the improvements thereon, to the value in all of one
thousand dollars, shall be exempt from sale, under legal pro-
cess, during the life of such head of a family, to inure to the
iCreager V. Creager, 87 Ky. 449. ■• Gen'l Stat. Ky., ch. 38, art. 13,
2 Jewell V. Clark's Ex'rs, 78 Ky. 398. § 16.
8 lb. « Jewell V. Clark's Ex'rs, 78 Ky. 398.
206 OOOUPANCT.
benefit of the widow, and shall be exempt during the minority
of their children occupying the same — nor shall said property
be alienated without the joint consent of husband and wife,
when that relation exists. This exemption shall not operate
against public taxes, nor debts contracted for the purchase-
money of such homestead, or improvements thereon."*
An illustration of " enlarged liberality " of construction fol-
lows in allowing homestead exemption, under the constitution
and laws as above given, to qne who did not live upon the
property held exempt and never had lived upon it, as his
home. JHe owned a lot, and was in legal possession, and the
court held that - sufficient compliance with the constitutional
requirement ; that is, that land " in the possession of each
head of a family " is equivalent to " a homestead in the posses-
sion of each head of a family." Mention is made that the
owner tilled the lot as a garden ; that he was poor — had no
other land — and it was said, in comparison of two statutes :
" It certa;inly could not have been intended, under the latter
law, to ostracise the poor man from its benefits simply be-
cause the land upon' which he earns his bread had no house
upon it. If . . . he is compelled by his poverty to occupy
rented premises, then, under this law, the usufruct of the soil
by which his family is maintained must be held to fix the
homestead intended to be protected. . . . We hold that
the possession and use of the land, whether it be improved
and resided upon or not, or whether, in the language of the
ancient law, it be a ' messuage or a croft,' is none the less a
homestead in the sense of the statute, and is protected under
the law." 2
Legal possession of prdperty used for family support has
been held sufficient.' ,
1 Tenn. Const. 1870, art. 11, § 11 ; language in Code, § 2114a, construed
Acts 1870-1, ch. 80, p. 98, embodying directly opposite in Wade v. Wade,
substantially that section of the con- 9 Bax. 613. This last case is ap-
stitution. proved in Collins v. Boyett, 87 Tenn.
2 Dickinson v. Mayer, 11 Heisk. 334; but, in the matter ot enhvrged,
521. The language of the " latter liberal construction, D. v. M. is ap-
statute," thus construed, is : "A proved in 87 Tenn. 281.
homestead in the possession of each ' It was held not necessary in
head of a family." Act Jan. 81, Texas for the family of a decedent
1871, Acts of 1870-1, p. 98. Same homestead holder to actually oc-
LEGAL POSSESSION AS OOCUPANCT. 207
Mere occupation, without title or color of title, legal or
equitable, from " the sovereignty of the state," is not sufficient
to support homestead donation, under a provision as follows :
" No person shall settle upon or occupy, nor shall any survey
be made or patented . . . upon any land titled or equi-
tably owned under color of title from the sovereignty, of the
state, evidence of the appropriation of which is on the county
records or the general land office, or where the appropria-
tion is evidenced by the occupation of the owner or of some
person holding for him." '
cupy the land. If used for their son, 57 . Texi 453. Const, of Texas,
support^ and no other homestead is art 16, § 53.
acquired, it remains exempt. Fpre- i Texas Rev. Stat, §§ 3936, 3951 ;
man v. Meroney, 63 Tex. 733, dis- Paston v. Blanks, 77 Tex. 330. Pos-
tinguished from Fressley v. Robin- sessory right is always essential.
Caldewood v. Tevis, 37 CaL 367.
CHAPTEE YII.
LIMITATIONS OF THE VALUE AND QUANTITY OF REALTY.
1. Value and Quantity.
3. Monetary Limit Only.
3. Increase of Value After Acquisi-
tion.
4. Quantitative Limit Only.
5. Indivisible and Excessive Prop-
erty.
6. Extension of Corporate Bounds.
7. What Law Governs Limits.
8. Exemption of Real and Personal
Property.
§ 1. Talue and Quantity.
In granting home protection, the state does not treat every
town residence or country farm, owned and occupied by the
head of a family, as a homestead in the legal acceptation of the
word. It designates the quantity and the value within which
the person entitled to the protection may have a homestead
in the legal sense of the term. It does not invariably limit
him in both quantity and value, but such double restriction is
required by several of the statutes.
Some of the states have monetary restrictions but not quan-
titative, while others have the latter without the former;
some require both limitations when homesteads are first dedi-
cated but do not subsequently confine them to the pecuniary
restriction when they have increased in value. The equality
of the urban and rural homestead in monetary estimate is
not invariably required, even in the declaration and dedication
of the exempt realty. The quantitative limit is not inflexible
in every case, but some statutes make it elastic so as to meas-
ure with the appraisement; thus most of those which pre-
scribe the two-fold gauge are construed to imply the shrinkage
of quantity as the price enhances.
First will be considered the double limitations by which the
town and country homesteads are required to be equal in
value, though not in extent ; by v\fhich any person entitled to
choose may take either yet have the full exemption.
There is great latitude in the allowances, comparing the
limit of one state to that of another, which will appear from
VALUE AND QUANTITY. 209
a few illustrations. Eighty acres in the country or a lot in
town, neither exceeding two thousand doUars in value includ-
ing improvements ; ^ forty acres in the country or a town lot
(or parts of lots equal to one), neither exceeding fifteen hun-
dred dollars in value including improvements ; ^ one hundred
and sixty acres in the country or a town residence not limited
in quantity, neither exceeding two thousand dollars in value
including improvements ; ' one hundred and sixty acres in the
country or two contiguous lots in town, neither exceeding two
thousand dollars in value including improvements : * these few
examples are the best that can be found of double limitations
with equality of exemption preserved between rural and urban
homesteads. Illustrations of both restrictions will follow, in
their place, showing material variances from those given above.
Where the double limitation is prescribed, it is impracticable
to continuously restrain the homestead to both. The effect is
to decrease the quantity as the value is increased. "When the
homestead is selected, declared or set out, it may be precisely
of the allowable quantity and estimate ; but land is not sta-
tionary in price, and its rise in the market or the improve-
ments put upon it after dedication, may render it of so much
greater worth than it had at first that the quantity must be
reduced to keep it within the law of exemption. There are
states which do not hold subsequent advances in value as af-
fecting the original allowance of acreage, but the topic now
is the rise of value in those states which do so hqld. In them,
the excess of value is liable to be reached by creditors though
the quantitative limit be not in excess. In other words, only
so much of the original quantity as is within the monetary
limitation remains exempt.
Increase in value operates as a reduction of the area, ren-
dering appraisement and partition necessary in case of a judg- '
ment creating a lien on the excess, or one vindicating a pre-
1 Const. Ala., art 10, sec. 3. A de- 2 Const Mich., art 16, §§ 1-4 ; How-
clarant claimed eighty-eight acres ell's Stat, §§ 7731-9.
worth no more than $3,000 : held, that ' Acts of Miss., 1883, p. 140, amend-
he should have declared which eighty ing the Eev. Code of 1880, §§ 1248-9.
of the eighty-eight constituted his See Miss. .Code of 1893, exempting
homestead. Clark v. Spencer, 75 $b,000, if the homestead is recorded.
Ala. 49. 4Comp. Stat Neb. (1889), ch. 36,
§§ 1-16.
14
210 LIMITATIONS OF VALUE AND QUANTITY.
existing lien. When the reduction has reached the point
where divisibility of the property is impracticable, the house-
holder ceases to have a homestead, in kind, while he retains
his exemption right to the amount of the monetary limit and
may claim from the proceeds of a forced sale.'
A homestead, like any other real estate, is likely to fluctu-
ate in price.^ The law of supply and demand affects it. If it
is partially taken out of commerce by the restraint upon alien-
ation which prevails in several states, it is still affected by the
rise or fall of neighboring real estate not thus restrained.
Besides, every improvement put upon the land or buildings
enhances the value. These and other causes frequently render
a lot or farm of the prescribed dimensions worth far more than
the prescribed price, when it is appraised a few years after
dedication, at the instance of judgment creditors aimipg to
reach the excess.
§ 3. Monetary Limit Only.
Many states fix no diniensions to a homestead either urban
or rural, but do not exempt it beyond a stated sum. What-
ever the quantity of realty held by the beneficiary, he can-
not claim the protection of the state against' his creditors so
far as concerns any surplus of value beyond the fixed limit.
The favorite ultimatum of exemption seems to be one thou-
sand dollars. Several states have prescribed that sum as the
monetary limit within which the home will be protected from
forced sale.' Some prescribe less, some more, varying from
five hundred^ to five thousand dollars.' Those providing
1 Vermont Bank v. EUiott, 53 Mich. (Throop), §§ 1397-9 ; West Virginia
256 ; Farley v. Whitehead, 63 Ala. Const., art VI, § 48.
395 ; Giddens v. Williamson, 65 Ala. < The following instances of $500
439. limit: New Hampshire Gen. Laws,
2 Beckner v. Rule, 91 Mo. 63. ch. 138, pp. 330-3 ; Vermont Gen.
3 The following, to illustrate the Stat., ch. 68.
.|1,000 limit: Illinois Annot Stat., ^xhe following are examples of
p. 1097 et seq.; Giouque's Ohio Rev. $5,000 limit: California Code & Stat.
Stat, § 5488; Kentucky Gen. Stat (Deering's), §§ 1237 et seq.; Idaho
(1888), pp. 574-8; North Carolina Stats. (1887), § 3058; Nevada Gen.
Const, art X, sees. 3.3,4, 8; South Stat, § 539. (The $5,000 limit in
Carolina Const, art I, sec. -30, art II, Texas, is not the sole restriction as
sec. 32 ; Tennessee Const, art. XI, in the above three states.)
§ 11 ; New York An. Code Civ. Proc.
monetIey limit only. 211
money exemptions from the proceeds of realty and personalty
are not considered in this section. Onty homesteads are now
in hand, and only those which are without territorial restric-
tion.'
In the absencd of any quantitative restriction, the home-
stead is measured by value only.^ Eleven hundred acres of
land, not worth more than the ultimatum, five thousand dol-
lars, were held exempt as a homestead.^ The tract was mainly
used as a pasture, though lived upon by the family of the
owner ; and it was considered as " occupied " in the sense re-
quired by statute which is strict in its provisions relative to
homestead use.*
The exempt realty, if not exceeding the prescribed mone-
tary value where that is the only limit, may consist of more
than one town lot, if they are contiguous and constitute to-
gether but one family home duly occupied as such.^ And by
parity of reasoning, two contiguous tracts of land might con-
stitute one home farm worth no more than five thousand dol-
lars.
An estimate of the actual cash value must appear in the
declaration of homestead.* It is the only limitation, and
1 In addition to the examples above Chester, 138 Mass. 543, in ex. of Stat
given, there are others which belong of 1855, oh. 238.
to the class now being treated, re- 2 Estate of Delaney, 87 Cal. 176 ;
stricted in other amounts ; as, Louis- Mann v. Rogers, 35 Cal. 319 ; Gregg
iana, at $3,000. Const. La., §§ 219, v. Bostwick, 88 Cal. 320 ; McDonald
330. By the constitution of Georgia v. Badger, 33 Cal. 393.
of 1868, the Umit was |3,000 ; by 3 First N. Bank v. Guerra, 61 Cal
that of 1877, $1,000. See Civ. Code, 109 ; Ornbaum v. His Creditors, 61
g§ 3055, 5135. Under the former, real Cal. 455.
and personal exemption ampunted *Prescott v. Prescott, 45 Cal. 58.
to $3,000 ; under the latter, to $1,600. And actual occupancy has always
In Virginia, there is exemption of been one of the tests. Cook v. Mc-
real or personal property, or of both, Christian, 4 Cal. 24 ; Reynolds v.
selected by the debtor, to the amount Pixley, 6 Cal. 165 ; Riley v. Pehl, 23
of $2,000, in addition to the articles Cal. 74; Ackley v. Chamberlain, 16
exempt from levy or distress for rent. Cal. 181 ; Elmore v. Elmore, 10 Cal.
Const. Va., art. XI, <;§ 1, 3, 5. A 336; Eix v. McHenry, 7 Cal. 91;
town lot or a farm, worth not more Benedict v. Bunnell, 7 Cal. 3i6 ; Gary
than $800, is exempt in Massaehu- v. Tice, 6 Cal. 636.
setts. Mercier v. Chace, 11 Allen, 5 Englebrecht v. Shade, 47 CaX. 687 ;
194. The laud must be owned by McDonald v. Badger, 23 Cal. 394.
the householder — not held in com- ^oiv. Code Cal., § 1263; Jones v.
mon with others; Holmes v. Win- Waddy, 66 Cal. 457 ; Read v. Rahm,
65 Cal. 343.
212 LIMITATIONS OF VALUE AND QUANTITY.
therefore an indefinite allegation that the property selected
is worth "five thousand dollars and over," was held not ad-
missible.' But when the premises were estimated at eight
thousand, the declaration was received, and the court said
that it was not invalid because the value of the property was
in excess of the limit fixed for a, homestead.^
The whole premises could not be the declarant's homestead,
in the legal meaning of the code, and the declaration upon
the whole, without partition cutting off three thousand dol-
lars' worth as non-exempt, would seem to have been an im-
proper course. In case of judgment and execution, partition
would be necessary, since the surplus is liable to creditors.'
A substantial declaration of the value, without giving de-
tails, is sufficient.'' If such declaration is erroneous ; that is,
if it is an under-estimate, creditors may have it corrected by
appraisement; or they may have the whole property sold
when it is not susceptible of partition, and execute their judg-
ment upon the excess.'
The monetary restriction usually has reference only to the
homestead, but there are decisions favoring the exemption of
, other property with it to make up the maximum of exemp-
tion.*
Where the only criterion is value, a homestead not exceed-
ing the maximum has been held good without any formal
declaration or designation.' But it must be regularly desig-
• Ames V. Eldred, 55 Cal. 136. ceeding in value the sum of $5,000,"
2 Ham V. Santa Bosa Bank, 63 Cal. . . . it was held that business stores,
135 ; S. C, 45 Am. Rep. 654. separated from each other, may he
' Tiernan v. His Creditors, 63 Cal. included in the homestead, and that
386. the law does not Umit the uses to
* Read v. Rahm, 65 Cal. 343. which the property may be put in ad-
5 Mann v. Rogers, 35 Cal. 319 ; dition to its use as a home ; that in
Gregg V. Bostwick, 33 Cal. 333 ; Cohen addition to the dwelling, there may
V. Davis, 30 Cal. 187 ; Holden v. Pin- be other structures for other pur-
ney, 6 Cal. 386 ; Taylor v. Hargous, 4 poses. Smith v. Stewart, 13 Nev. 65 ;
Cal. 373 ; Cook v. McChristian, 4 CaL 1 Comp. Laws, Nev. 568 ; Clark v.
34. Shannon, 1 Nev. 668; Goldman v.
6 In Nevada, where is exempted by Clark, 1 Nev. 516 ; Ackley v. Cham-
statute, " The homestead, consisting berlain, 16 Cal. 181 ; Kelly v. Baker,
of a quantity of land [not limited], 10 Minn. 134 ; Stats, of Minn. 498.
together with the dwelling-house ' Pinkerton v. Tumlin, 33 Ga. 165 ;
thereon and its appurtenances, not ex- Bearing v. Thomas, 35 Ga. 334.
MONETARY LIMIT ONLY. 213
nated if the premises occupied as a home do exceed the fixed
value exempt ; that is., the portion containing the home must'
be separated from so much as enhances the estimate above the
prescribed limit.' If this cannot be done, the creditor may-
cause the whole to be sold, but the exempt amount must be
reserved from the proceeds and given to the debtor.^ If a
selection by the owner exceed the legal limit, the court may
order the sale of the property and the investment of the pro-
ceeds in a new home of the required estimation, in one state.
Or, if the property, claimed as his homestead by the debtor-
owner, consists of scattered parcels, the court may order that
they be sold and invested in property suited for a home.^ The
excess, above the monetary limit, is liable.^
Where the law exempts one lot regardless of value, and re-
quires it to be occupied as a family residence (though not inhibit-
ing other uses in connection with the home purpose),^ what
are we to understand by the word "lot? " Is it necessarily a
town or a city lot according to the municipal plan or plat?
Or is it such subdivision as the platting of the land, containing
the homestead sets forth as a " lot? " It has been held that
in a town of over five thousand inhabitants, the size of the lot
is governed by the map of the survey of the land from which
the homestead is claimed.'
1 Davenport v. Alston, 14 Ga. 371. stead, are exempt, to the extent of
2 Dearing v. Thomas, supra. $1,000, from sale on execution. N. Y.
3 Harris v. Colquit, 44 Ga. 663 ; Code, § 1397. The exemption ceases
Blivens v. Johnson, 40 Ga. 297 ; on non-occupation. § 1400. The lien
Georgia Code, § 5185. of a judgment attaches to the sur-
* Young Y. Morgan, 89 111. 199 ; plus above $1,000. § 1403. A mort-
Moriarty v. Gait, 113 111. 373; Raber gage on exempt property is ineflfect-
V. Gund, 110 IlL 581 ; Eldridge v. ual until the exemption has been
Pierce, 90 111. 481 ; Browning v. Har- canceled. § 1404. How it may be
ris, 99 111. 463. In Parrott v. Kumpf, canceled. § 1403. Not ineffectual as
103 111. 438, held that if the home- to surplus. Peck v. Ormsby, 55 Hun,
stead is not properly released in the 365. In Georgia, if the debtor's right
mortgage, the purchaser takes the of exemption in laud is less than the
excess over $1,000 unless the home- value of the land, the difference is
stead has not been set off, so that he liable for his debt. Vining v. OfH-
gets no right of possession by his cers, 83 Ga. 332.
purchase. Only excess of value lia- 3 Jacoby v. Distilling Co., 41 Minn.-
ble on collector's bond. Crawford 337, 230; Umland v. Holcombe, 28.
V. Bioheson, 101 111. 351. In New Minn. 286 ; Kelly y. Baker, 10 Minn.
York, a lot and buildings, occupied 134.
as a residence, designated as a home- 6 Lundberg v. Sharvy, 46 Mimj. 350 ;■
314
LIMITA'nONS OF VALUE AND QUANTITY.
The statutory limitation of a homestead to a " lot," however,
is not always governed by the map of the survey. The mean-
ing of the word is to be sought from the legislative intent,
from the context, etc., as in the interpretation of other words.'
49 N. W. 60. GilflUan, C. J. : " Accord-
ing to the complaint the plaintiff is
the owner of two adjoining lots in
Portland division of Duluth, accord-
ing to the recorded plat thereof, on
which stands, partly on each lot, the
dwelling-house occupied as their res-
idence by himself and family. As
we understand the complaint, the
lots in that division, including those
of the plaintiff, are twenty-five feet
wide by one hundred and forty feet
deep, while in the remainder of the
platted portion of the city of Duluth
the ordinary size of lots is fifty feet
by one hundred and forty feet The
defendant, the bank, having a judg-
ment against him, has caused exe-
cution to issue and to be levied upon
the two lots. The action is to set
aside the levy, the plaintiff claiming
that both lots are exempt because of
his homestead. The statute (Gen. St.
1878, oh. 68, § 1) exempts ' a quantity
of land not exceeding in amount one
lot, if within the laid-out or platted
portion of any incorporated town,
city, or village having over five thou-
sand inhabitants.' In Wilson v.
Proctor, 28 Minn. 13 ; 8 N. W. Rep.
830, the court had occasion to define
the word ' lot ' as used in this statute,
and it was held not to be synonymous
with 'tract' or 'parcel,' but to be
used in the sense of a city, town, or
village lot, according to the survey
and plat of the city, town or village
in which the property is situated. It
was admitted that the construction
was not free from difficulty, but it is
the only one indicated by the terms
of the act, and any other would lead
to greater difficulty. There would
be no trouble in applying the term
as thus construed if city; town, and
village lots were uniform in size, so
that the word would express a fixed
standard of quantity. But, as every
one knows, they vaiy not only as be-
tween different cities, towns, and vil-
lages, but as between different parts
of or additions to the same city, town,
or village. Thus, in some additions
to the city of St. Paul, lots are sixty
by one hundred and fifty feet, in
others fifty by one hundred and fifty,
in others forty by one hundred and
twenty to one hundred and fifty. In
such case, which size of lots is to be
taken to ascertain the quantity ex-
empt? If the homestead is claimed
in an addition where the lots are
forty by one hundred and twentj', is
that size or the size in some othte
addition where they are sixty by one
hundred and fifty to be taken as the
measure of the quantity to be ex-
empt? No reason can be given to
justify going from one addition
over to another to get the measure
of quantity that would not equally
justify going for that purpose to some
other city, town, or village. The
only practicable rule is to be gov-
erned by the plat in which the land
claimed is laid out or platted. It is
true in a plat there may be fractional
lots or lots materially less than the
ordinary size of lots on the plat, but
in such case the ordinary or prevail-
ing size in the addition would prob-
ably be taken as the measure. The
case seems a hard one, but there is
no other way of disposing of it that
would be justified by the statute.
Order reversed."
1 Ante, p. 25.
MONETAE Y LIMIT ONLY. 215
Two half-lots may constitute one lot witbin the meaning of
the word as used in a statute.' The word does not imply that
the ground must be platted as an essential to the constitution
of a statutory lot. Even when platting is contemplfited by
the legislator, if the provision is merely directory, there may
be exemption without conformity to the direction ; that is,
compliance may be deferred till it shall have become neces-
sary by the levying of an execution.^ Then the officer must
have the land platted and the debtor's homestead set off be-
fore sale. Neglect of this would invalidate the sale.
In a state where five hundred dollars' worth of v realty is
exempt, there was a debtor whose dwelling, occupying, an
acre and a half, was estimated to be worth four hundred and
fifty dollars. He had a disconnected lot, worth six hundred
and fifty, used as part of his homestead. Both being sold, he
was held entitled to the value of the first lot, and fifty dollars
from the proceeds of the second, to make up his allowance.'
But it has been held that the exemption amount could not
be pieced out, by adding disjoined parcels, when the occupied
home was worth less than the maximum.* For the statute
requires that the exempt realty must not only be owned by
the beneficiary, but used as the home of his family.^
This rule, however, did not exclude the proceeds of a home-
stead, sold by its owner in an adjoining state, from being held
exempt though never used or occupied for homestead pur^
poses for which they were intended.'' The exemption limit
was the same in both states.' The exemption of proceeds of
^Ante,'p. 115. shire and the proceeds brought to
2 Nye V. Wallaker, 46 la. 306 ; Vermont to be invested in a new res-
Mintzer v. St Paul Trust Co., 74 Tex. idenoe.
20; ante, ■p. 156. 'New Hampshire exempts home-
3 Hastie v. Kelley, 57 Vt. 293. stead to the value of 1500. Gen. Laws,
« Mills V. Estate of Grant, 36 Vt. oh. 138, pp. 380-2. That sum is saved
269 ; Davis v. Andrews, 30 Vt 683 ; the debtor from execution. Austin
True V. Morrill, 28 Vt 672. v. Stanley, 46 N. H. 51 ; Buxton v.
5 Doane v. Doane, 46 Vt 485 ; Mor- Dearborn, 46 N. H. 43 ; Horn v.
gan V. Stearns, 41 Vt 398; McClary Tufts, 39 N. H. 484; Hoitt v. Webb,
V. Bixby,36Vt257; Jewettv. Brock, 36 N. H. 158; Norris v. Moulton, 34
32 Vt 65 ; Davis v. Andrews, 30 Vt N. H. 392 ; Tucker v. Kenniston, 47
683 ; Howe v. Adams, 28 Vt 544. N. H. 267 ; Barney v. Leeds, 51
eKeyes v. Rines, 37 Vt 260. The N. H. 253; Fogg v. Fogg, 40 Nl H.
homestead was sold in New Hamp- 289.
216 LIMITATIONS OF VALUE AND QUANTITY.
an old homestead, designed for investment in a new one, is a
common provision,^ and in this case the court respected those
coming from an adjoining state, through comity.
The two instances given above, in one of which all the pro-
ceeds of one lot, and iifty dollars more from those of a discon-
nected one, were allowed as exempt to make up the maxi-
mum, while in the other only the proceeds of one lot were held
exempt, are not in conflict with each other. For, in the first
instance, the disconnected lot had been in use as a part of the
homestead, while in the second there had been no such use of
the outlying lot.
* § 3. Increase of Talue After Acquisition.
There is a marked difference in the provisions of the stat-
utes relative to the increase of value after a homestead has
been acquired. Under some of them, the beneficiary is not
entitled to the increase above the maximum value. He is
allowed that value though his home be sold, as indivisible, in
order to satisfy his creditors out of the surplus.^
As was said in a late opinion : " Whatever rights may be
conferred upon citizens of other states under exemption stat-
utes, it is clear to us that such a claim [to have the benefit of
1 Starr & Curtiss An. Stat. 111., premises are not permitted to be held
p. 1097 et seg. In Wisconsin, the pro- as one homestead, though both be
oeeds of the sale of a homestead, de- worth no more than $1,000. Waltera
signed for investment in a new one, v. People, 18 111. 194. But a farm,
are exempt for two years. Rev. Stats, composed of different tracts, occu-
Wis., § 8983. And the interest of notes pied as a home, and being within the
taken for the price, which the holder monetary limit, and consisting of not
meant to employ in paying for and more than forty acres, is exempt If
improving a new residence, was held it exceed that acreage and that value,
exempt, Bailey v. Steve, 70 Wis. 316. the excess is liable to creditors. If a
This may sufSce for illustration of single lot, occupied as a homestead,
the exemption of such proceeds in exceeds $1,000 in value, the " estate
many states, though interest on notes of homestead " includes no more,
may not be so generally held exempt though the lot be part of a larger
2 For instance, the limit in Illinois tract, all used as a homestead in the
is |1,000. If the homestead is worth common meaning of the word. And
more, and cannot be divided, the the excess of value of that lot is lia-
debtor is entitled to that amount out ble to creditors. Raber v. Gund, 110
of the proceeds of a judicial sale. IlL 581 ; Hartman v. Shultz, 101 Ilh
Stubbleaeld v. Graves, 50 111. 103; 437.
Hume V. Gossett, 43 111. 299. Two
INCREASE OF VALUE AFTER ACQUISITION. 217
the increase] caji have no foundation in reason or authority
in this state. In growing states, cities, towns aiid communi-
ties, property which is to-day worth but a thousand dollars
may next year be worth five thousand. In some of the larger
cities of the state, the growth in value of real estate has been
such that a thousand dollars' worth of property, only a few
days ago, is now worth many thousands." '
Yet it has been held, where this rule prevails, that there
can be no re-assignment of homestead to reduce the quantity
when the value has increased : the court saying that if that
were permissible, a new assignment might be had to increase
the quantity in case of diminution in value.^ But, without re-
assignment, the excess is liable to the creditor.
A new homestead, within the statutory limitations, may be
purchased by the beneficiary whose old one has been sold be-
cause of its excess and indivisibility ; and, under one statute, it
seems that the judge of probate may order the sale of scat-
tered lots worth together no more than the limit, and the in-
vestment of their price in a dwelling-house for the beneficiary's '
family as above stated.
When the constitution or statute of a state restrains exe-
cution on the debtor's home if the property is worth no more
than a given sum — for instance, two thousand dollars — there
is no such restraint implied as to any excess of value, above
that sum.' As a judgment creditor has the right of making his
money out of that excess, after homestead estimated -at the
monetary limit has been laid off, it seems equally clear that
if, years after, another judgment creditor should look to any
excess above the thousand dollars in value for the satisfaction
of his judgment, he might cause a revaluation of the home-
stead and levy upon the excess if any. But some of the courts
say " Not so." * The reason given by them is : " The policy
of the act is to secure a fixed and permanent abode for the
head of the family, his wife and children, in the possession of
which they should not be disquieted and disturbed, if by their-
1 Mooney v. Moriarity, 36 111. Ap. In Nebraska the excess above $3,000
175; Moriarity v. Gait, 113 111. 373; is liable.
Stubblefleld v. Graves, 50 111. 103. * Hardy v. Lane, 6 Lea, 380 ; Tenn.
2Kenley v. Bryan, 110 111. 653. Code, §§ 3116a, 2118a.
STingley v. Gregory, 30 Neb. 196.
218 LIMITATIONS OF VALUE AND QUANTITY.
industry they so far improve the premises as to make them
really more valuable than they were when first assigned to
them." 1 ... Is it the policy of the act that such improve-
ments may be made at the expense of the creditor, or out of
money that ought to have gone to him ; made so as to raise
the value from one to fifty thousand dollars, and yet he be de-
nied a revaluation and payment out of the sum in excess of
that which the law has declared exempt ? If so, such policy
should have been clearly expressed or plainly implied by the
statute.
Another (and better) reason given is that after homestead
has been set apart, by commissioners, and their certificate
(showing that fact, the metes and bounds of the reservation,
etc.), has been registered, good and valid title vests in the
owner as head of the family, and. in his widow and minor
heirs at his death, exempt from execution, according to the
statute which the court was expounding.^
But what is to be understood by the paragraph of the opin-
ion next to the concluding one ? It is : " We do not intend to
decide, one way or the other, what right creditors might as-
sert, in cases where debtors might expend extravagant sums
upon the homestead, accumulations which ought to be applied
to their debts." '
Where acceleration of value is to the benefit of the owner,
and is protected as exempt, however much it may enhance the
homestead above the original limitation, it is possible for very
costly homes to defy the creditors of an insolvent, and quite
common for dwellings or farms, originally worth no more
than a few hundred dollars, to become worth as many thou-
sands and yet remain exempt.
The statutory limitation of homestead being confined to
quantity, in the following words : " If within a town plat it
must Hot exceed one-half an acre in extent, and if not within
a town plat, it must not embrace in the aggregate more than
^orty acres ; but if, when thus limited, in either case its value is
less than five hundred dollars, it may be enlarged till its
value reaches that amount," * . . . there is no monetary
limit whatever to the growth of value after the homestead
1 lb. ' Hardy v. Lane, supra.
2 §§ 3116a, 2118a, Tenn. Code. < McC.'s la. Code, § 3171 (1996).
INCEEASE OF VALUE AFTEE ACQUISITION. 219
has been acquired. Eeferring to a homestead of forty acres,
with buildings estimated to cost about ten thousand dollars
(having terraces and drives, etc.), it was said : " It has seemed
to be the policy of legislation in this state not to place restric-
tions on the value of homesteads. We have no grealter discre-
tion in the application of the law in a case like this than in a
case where the homestead as to value would be at the other
extreme." ' ^
The statute fixes no dedication limit of five hundred dol-|
lars ; it makes the rule flexible as to quantity where the urban
half acre or th« rural forty-acre farm is worth less than that
sum.^
In such case, the estimate is made' on the basis of the title
in fee. If the householder has a less title, such as a life estate,
he cannot have the quantity enlarged in consequence. When
the claim for an excess of the statutory quantity is made, the
burden of proof is upon him to show that the whole does not
exceed in value the sum above stated — according to the' au-
thorities above cited.
The section following the one quoted contains another lim-
itation, which is relative to appurtenances: The homestead
"must not embrace more than one dwelling-house, or any
other buildings except as such are properly appurtenant to the
homestead ; but a shop or other building situated thereon, and
really used and occupied . . , and not exceeding three
hundred dollars in value, may be deemed appurtenant to such
homestead." There are no other limitations of value.
It is impossible that all the homesteads, in any state, can be
of equal value, one with another. Whether urban or rural,
they are subject to the fluctuations of the real-estate market,
and difference of value is caused by improvements on the one
hand, and by dilapidation upon the other. When it is alleged
and proved that a certain dwelling is the homestead of a party
1 First N. B'k v. HoUinsworth, 78 like that of Iowa. Compiled Laws of
la. 575, 58S. The court goes on to Dak. (1887), §§ 2449-2468, 5778-5781.
say that " there is no evidence of ^ Boot v. Brewster, 75 la. 631 ; s. C,
fraud or design to cheat in mating 36 N. W. 649 ; Rhodes v. McCormack,
the expenditures." ..." It is 4 la. 368 ; Kurz v. Brusch, 13 la. 871 ;
conceded that the defendant is in- Thorn v. Thorn, 14 la. 49 ; Yates v.
solvent," etc. The Dakota statute is McKibben, 66 la 357.
220 LIMITATIONS OF VALUE AND QUANTITY.
litigant, we can hardly conclude that the legal quantity and
value exempt by law have been alleged and proved to be the
exact extent and true appraisement of that family residence.
If there is an allegation of the number of acres legally ex-
empt, is the price implied? It has been judicially so held, as
the following extract will show : " The constitution authorizes
the selection and holding of a homestead in the country, not
exceeding forty acres of land, not exceeding in value one thou-
sand five hundred dollars. Now, if one says, ' This whole par-
cel of forty acres is ray homestead, selected by me under the
constitution,' would not that be considered, by every one hear-
ing the remark, as an averment implying that the whole prem-
ises were worth not to exceed the constitutional limit? There
is no necessity of any technicality of pleading, either at law
or in equity, in this age of liberality and advancement in the
administration of justice. That averment is sufiicient, either
in declaration or bill of complaint, which necessarily covers
with its language the full information of the claim sought to
be collected or enforced. The language of the pleader, in the
bill of complaint before us, clearly imports that the whole forty
acres is claimed as a homestead, which necessarily implies that
it is not worth over one thousand five hundred dollars ; and
that as plainly as if the fact itself were stated in words and
figures." '
As the report shows that the homestead had been held
twenty-two years, and that, besides the dwelling-house and
other- buildings, there was a barn, one hundred feet long, on
this tract of forty acres, it is not likely that the homestead
had not risen above the value of one thousand five hundred
dollars since its selection. One cannot but think that some
persons would be inclined to make a negative answer to the
question propounded by the court in the extract quoted above.
If the allegata be sufficient, the probata should correspond :
the pleader should prove that his homestead is not worth more
than one thousand five hundred dollars, if he has alleged it.
Every one knows that homesteads have increased in value by
improvements within the period mentioned, or may have thus
increased.
I Evaijs V. Grand Rapids, etc Co., 68 Mich. 603.
Q0ANTITATIVK, LIMIT ONLY. 221
§ 4. Quantitative Limit Only.
The only limitation in some states is that of extent. "What-
ever the value, the quantity of real estate selected is the only
criterion.' Even though the double restriction be required in
the original selection or setting apart of the homestead, the
test of value is omitted when the quantity has been reduced
to a designated amount or below it, under the provisions of
several states. Thus, where the monetary limit of twenty-
five hundred dollars is fixed by a constitution for a rural
homestead of one hundred and sixty acres, or for an urban
one of an acre, each with its improvements, it is provided that
if the former be reduced to less than eighty acres, or the latter
to less than a quarter of an acre, no monetary test shall be
applied.^
When there is quantitative limitation, the homestead right
will be confined to it, though the tract occupied may be much
larger. There was a farm of about one hundred acres which
was sold — the grantor before the sale, and the grantee after-
wards, occupied it as a home residence; but no more than
forty acres of it were held exempt.'
In the pioneer state, where the first homestead was author-
ized and where the rule of limitation has undergone many
changes, the present provision is this : The homestead of a
family to the amount of two hundred acres of land with im-
provements, or a lot or lots in a town to the value of five
thousand dollars exclusive of improvements, used as a home or
as a place of business by the head of the family, is exempt, with
the improvements thereon, except as to claims for purchase-
money, improvements or taxes.* It will be observed that
1 For example : In Florida there is Wis., p. 1717, § 2983. In Minnesota,
exemption of one hundred and sixty a city lot or eighty acres of rural land,
acres in the country, or half an acre Sumner v.'Sawtelle, 8 Minn. 372 ; Til-
in town, with improvements. Mc- lotson v. Millard, 7 Minn. 419. A
■Clellan's Dig. of Laws of Fla., pp. town home in Minnesota cannot be on
528-9. In Kansas, one hundred and- parts of lots. Kresin v. Mau, 15 Minn,
sixty of "farming land," or one aci-e 118; Ward v. Huhn, 16 Minn. 161.
in town, including improvements. 2 Const, of Arkansas, art IX, §§ 3-6 ;
■Const, of Kas., art. 15, § 9 ; Taylor's Dig. of Stat, of Ark., g§ 3590-3.
Gen. Stat (1889), §§ 335, 2593-7. In 3 Martin v. Aultman (Wis.), 49 N.W.
Wisconsin, forty acres " used for ag- 749.
ricultural purposes," or one-fourth of * Const of Texas, art 16, §§ 50-2.
an acre in town, with improvements. In Texas a home and a business es-
-Saaborn & BeiTyman's An. Stat of tablishment are both exempt
222 LIMITATIONS OF VALUE AND QUANTITY.
there is no limit whatever to the monetary value of the country
home of two hundred acres. If it has liad improvements put
upon it before its selection and dedication, so as to render it
worth ten thousand dollars or more, it could still be selected.
Or, if it be improved after selection, to that or any amount, it
would still be exempt under the constitution.
The site of the urban home must not exceed five thousand
dollars in value, but the dwelling and other improvements are
not estimated, and they may be worth far more than the
ground on which they stand. They subsequently maj' be en-
larged and embellished to any degree. The only danger of
transcending the homestead limit is in rendering the ground
too valuable. It is thus seen that both rural and urban home-
steads are practically without monetary limitation.
The only difference between them is that the town ground-
site is limited monetarily while the country land is not. Two
householders, acquiring homesteads at the same time, are
treated differently because one settles in town and the other
in the country. One's city lot or lots may be of the full
maximum value, five thousand dollars, while the other's plan-
tation of two hundred acres may be worth twice or several
times as much. Buildings and other improvements may be
equal - — they are not estimated in either case. The fact that
this disparity is made by the constitution does not relieve it
wholly of objection. Were it statiitory only, perhaps it would
be questioned. This distinction between town and country
homesteads is not found in other states, as to monetary
value.
Even the plantation acreage has been extended beyond the
statute figures to cover the case of the owner of an undivided
interest in a tra^ct of land consisting of more than two hun-
dred acres. His homestead right was found to be not con-
fined to his undivided interest in two hundred acres with
improvements, but to extend to an undivided interest of two
hundred acres of the whole tract.'
If the homestead plantation, after having been duly dedi-
cated or set out, should ever find itself in town by reasoh of
the extension of the municipal corporation limits, would it
1 Brown v. McLennan, 60 Tex. 43 ; Jenkins v. Volz, 54 Tex. 639.
INDIVISIBLE AND EXCESSIVE PKOPEKTT. 223
then come under the five thousand dollars limitation? The
negative has been held.'
This extensive messuage need not be all of a piece. It may
consist of different parcels, and they are not required to be
contiguous.^ Its parcels, however, must constitute one home,
or a home and a business place ; these two need not be joined
or adjacent.' .
While the same beneficiary may have a homestead and an
exempt business place both within town lines, or both with-
out town lines, it seems that he cannot distribute his exemp-'
tion right so as to have it partly urban and partly rural,
uWess he can show good cause for such distribution.*
§ 5. Indivisible and Excessive Property.
It was held, in one state, that when a homestead has been
reduced to its " lowest practicable area," and still exceeds the
monetary limit, it is not exempt ; no part of it is protected
from creditors, and there is no restraint of alienation. The
owner may mortgage it or sell it at will, and a judgment
creditor may sell it under execution." The homestead is ex-
empted by the constitution in that state, yet the terms are
such that an indivisible home property, excessive in value,
fails to answer the description of the homestead contemplated
by the framers of the instrument, and the statute accords.*
It frequently happens that the quantitative and monetarjr
limits cannot each be at its maximum. A town lot, or a quar-
ter section of land in the county, may be worth far more than
1 Bassett v. Messner, 30 Tex. 604, acres, in Texas, cannot be made less
636. The limit was less when this by the beneficiary who owns that
decision was rendered. Allen v. amount of land and more, in a
Whitaker (Tex.), 18 S. W. 160. tract, it would seem. Eadford v.
SMaomanus v. Campbell, 37 Tex. Lyon, 65 Tex. 471. Citing to the
367 ; Ragland v. Rogers, 34 Tex. 617 ; same effect, Medlenka v. Downing,
Williams v. Hall, 33 Tex. 215 ; Camp- 59 Tex. 37 (as rendered " without the
bell V. Macmanus, 32 Tex. 442 ; Home- aid of statute)."
stead Cases, 31 Tex. 678. 5 Farley v. Whitehead, 63 Ala. 295.
3 Stanley v. Greenwood, 24 Tex. * Ala. Code, 2820. Present constitu-
325 ; Pryor v. Stone, 19 Tex. 871 ; tion like that of 1868 in this respect
Hancock v. Morgan, 17 Tex. 582. Acreage changed. See Pizzalla v.
« Keith V. Hyndman, 57 Tex. 435. Campbell, 46 Ala. 40; Melton v. An-
Kural homestead of two hundred drews, 45 Ala. 454.
224 LIMITATIONS OF VALUE AND QUANTITY.
the highest estimation allowed as exempt. In such case, the
quantity must be reduced, if practicable. But limit has been
fixed to the reduction. A state, which limits the town home-
stead to an acre, and the country one to one hundred and
sixty acres, provides that the former to the extent of a quarter
of an acre, and the latter to the extent of eighty acres, shall be
exempt " regardless of value." That is to say, that when once
duly established and within the value of twenty-five hundred
dollars, it is not lost when thus reduced, though the quarter of
an acre, or the eighth of a section in value, exceed that sum.'
The general rule is, however, as already stated, that property
designated as a homestead, but limited by law, is liable to
forced sale for debt so far as it exceeds the limitation.-
The lienholder can satisfy his claim against the excess only
(according to a decision after a change of statute), if he holds
a deed of trust on the homestead property given by both the
debtor and his wife, to secure a debt, and the husband has
since died. Upon his death, her homestead rights, as against
the trust deed, become established.' The value of the prop-
erty at the time of the death determines whether there is
excess of the statutory limitation.*
§ 6. Extension of Corporate Bounds.
"When the rural homestead becomes urban by the extension
of town limits, it ought to be measured by the rule applicable
to the latter, if it has been laid out as town lots. If, on the
contrary, it is brought in-by the extension of the corporation
lines, but is still used for agricultural purposes, and is yet a
homestead farm, it would be within the spirit of the constitu-
tions and laws treating upon the subject to hold it still a
rural homestead, entitled to its original acreage. The decis-
ions are not all in accord, even under the same or similar leg-
islation,^ as the following examples show :
1 Digest Stat, of Arkansas (1884), 483 ; Paschal v. Cushman, 26 Tex. 74 ;
§g 2994-6 ; Const of Arkansas, art. 9, Gregg v. Bostwick, 33 CaL 233.
§§ 1-8. The monetary maximuui s MoLane v. Paschal, 74 Tex. 20.
has been reduced from five thousand < lb.; Wood v. Wheeler, 7 Tex. 35.
to two thousand five hundred dol- •'• Favorable to rural measurement :
lars. Dig., § 2994 ; Wassell v. Tunnah, Taylor v. Boulware, 17 Tex. 74 ; Bas-
35 Ark. 104. sett v. Messner, 80 Tex. 604; Nolan
2 Hargadene v. Whitfield, 71 Tex. v. Reed, 38 Tex. 435 ; Finley v. Diet-
EXTKKSION OF COEPOKATE BOUNDS. 225
A rural homestead becoming urban by its inclosion within
incorporated limits, or becoming surrounded by land platted
by others, does not have to be reduced in area as a necessary
consequence.'
Town limits were extended so as to include one's rural home-
stead of seven acres ; but, as the exempt land had not been
platted, the owner was adjudged to have lost no right in it as
a rural homestead.^
A homestead partly in town and partly in the country, con-
sisting of a hotel (in which the householder resided with his
family and also conducted his business as a hotel-keeper),, and
of a farm slightly separated from the urban property, was
recognized as legally exempt, since the monetary value of the
whole was not in excess of that allowed by law,'
"Where one lot, with its improvements, is the urban limita-
tion, and forty acres the rural, it is yet held that the latter
quantity, if unplatted, may be within corporation limits.* And
further, that this may be platted after its acquisition as a
homestead without forfeiting the exemption.' But two platted
lots, resided upon by the owner, and both together within the
monetary limits, are not exempt if a business block is situated
rick, 13 la, 516 ; Barber v. Rorabeck, lage, not over |2,000 in valua In
36 Mich. 399. Unfavorable : Bull v. Mississippi tlie head of a family may
Conroe, 18 Wis. 233 ; Parker v. King, hold his town residence exempt to
16 Wis. 333 ; Sar,ahos v. Fenlon, 5 the extent of |2,000, or his country
Kas. 593. residence to that extent if embrao-
1 Baldwin v. Robinson, 39 Minn. 344 ; ing not more than one hundred and
Gen. Stat Minn. (1878), ch. 68, § 1 ; sixty acres. Miss. Acts 1883, p. 140,
Finley v. Dietrick, 13 la. 516; Mc- amending g 1248 of Rev. Code of
Daniel v. Mace, 47 la. 509 ; Bassett v. 1880, as to quantity. Formerly, the
Messner, 80 Tex. 604 ; Barber v. Rora- allowance was greater. Morrison v.
beck, 36 Mich. 399. McDaniel, 30 Miss. 217 ; Johnson v.
2 Posey V.Bass, 77 Tex. 513; 14 S.W. Richardson, 83 Miss. 463. Within
156. the money value, part of the prem-
3 Parisot v. Tucker, 65 Miss. 439. ises may be used for business. Bald-
Mississippi Code, 1880, § 1248, allows win v. Tillery, 62 Miss. 37& The
" the land and buildings owned and same acreage and value are allowed
occupied as a residence,'' not exceed- in Nebraska. Comp. Stat. Neb. (1889),
ing eighty acres not over |2,000 in ch. 36, §§ 1-16 ; Spitley v. Frost (Neb.),
value. Section 1249 allows the land 15 Fed. 299, SOS.
and buildings owned and occupied * Barber v. Rorabeck, 36 Mich. 899.
as a residence in a city, towri or vil- 5 Bouchard v. Bourassa, 57 Mich. 8.
15
226 LIMITATIONS OF VALUE AND QUANTITY.
thereon.' Parts of adjacent lots, worth not more than the
maximiim, constituting together the site of the family resi-
dence, were held exempt.^
If a, tract of the dimensions allowed for a rural homestead
be taken in so as to be embraced within the corporate limits
of a village or town, it does not therefore lose its exempt
character as excessive in quantity. While yet unplatted, and
not exceeding the monetary limit in value, it is still exempt
as before the extension of the corporation lines so as to em-
brace it.'
The right to the number of acres of land allowed for a rural
homestead, not exceeding the monetary limitation, has been
held to be not affected by the inclusion of the exempt acres
within town limits after the selection of the homestead. This
ruling has been supported by reference to the benevolent pur-
pose of homestead legislation and the rule of liberal construc-
tion based on that purpose. And it has been defended on the
argument that the right to the rural homestead was vested,
and could not be divested by the action of the authorities in
changing the boundaries of the town. Without conceding
that there was a vested right, others holding to liberal con-
struction maintain that it is a valuable right, and sustain the
ruling on grounds of public policy.* But there are counter
deliverances.'
The homestead acre within city limits need not be occupied
as a home in every part to entitle it to the legally authorized
exemption, provided none of it is used for a different or in-
consistent purpose. The acres of a rural homestead are sub-
ject to the same view.* But if a part of the tract run into an
incorporated town, it will be liable for debt, though the whole
should not exceed the number of acres exempt by law as a
rural homestead.'
iGeney v. Maynard, 44 Mich. 579. v. Chapman, 35 111. 498; Webster v.
«Geige3 v. Grelner, 68 Mich. 153: Orne, 45 Vt 40; Nolan v. Eeed, 38
8, C, 36 N. W. 48. In Michigan, a Tex. 435; Clark v. Nolan, 38 Tex. 416.
town lot, or forty acres in the coun- Vested right: Bassett v. Messner, 30
try, not exceeding $1,500 in value, ia Tex. 604.
the limit. Howell's Stat,, § 7731; 5 Bull v. Conroe, 13 Wis. 360 ; Par-
Const, art. 16, § 3. ker v. King, 16 Wis. 337.
9 Barber v. Rorabeck, 36 Mich. 399. e Morrissey v. Donohue, 38 Kas. 646.
* Barber v. Rorabeck, 36 Mich. 399 ; ' Sarahas v. Fenlon, 5 Kas. 592.
Finley v. Dietriok, 13 la. 516 ; Deere
WHAT LAW G(>VEEN8 LIMITS. 227
The number of acres constituting a country homestead can-
not retain their inviolable character with reference to forced
sales after having come within incorporated town limits ; only
the urban quantity can then be thus favored,' though the re-
duction from the greater number of acres to the less, under
statutory construction, may depend upon the platting into
lots.2
This reduction of quantity, when a rural homestead is con-
verted into an urban one, cannot be laid down as an invaria-
ble rule. The contrary has been held, upon construction of
provisions that do not expressly authorize any variation from
the rule. Though the statute limited the area of a rural
homestead but not of an urban, it was construed to allow one
to be located partly in town and partly in the country, within
the urban monetary limit.'
§ 7. What Law Governs Limits.
The limitations are to be governed by the law in force
when the debt, sought to be enforced against the hornestead,
was contracted. Whatever was then the quantum and value
exempt is now the only impediment to the creditor. Addi-
tions under new statutory authorizations cannot aflfect his
remedy against the excess of the old homestead. It would be
manifestly unjust to him were the rule otherwise; and the
rule cannot be otherwise without trenching upon the consti-
tution which protects his vested rights, and his remedy to en-
force them so far as it is essential to those rights- So, if the
monetary limit be raised, or the allowable extent be enlarged,
by statute or even by constitution, the debtor will not be pro-
tected against debts previously contracted so far as the subse-
quent additions to his homestead are concerned.''
If the surety of a creditor is proceeding against the debtor's
iGray v. Crockett, 30 Kas. 138, and ^Pee^ey v. Oabaniss, 70 Ala. 253;
31 Kas. 346. Keel v. Larkin, 72 Ala. 493 ; Coch-
2SeeFinley V. Dietrick, 12 la. 516. ran v. Miller, 74 Ala, 50; Boiling v.
3 Fitzgerald v. Rees, 67 Miss. 473, Jones, 67 Ala. 508 ; Gerding v. Beall,
under Code of 1880, § 1249. See 63 Ga, 561 ; Hawks v. Hawks, 64 Ga.
amendment. Acts of 1883, p. 140, asi 239; Dixon v. Lawson, 65 Ga. 661;
to the rural acreage. See Keith v. Lowdermilk v. Corpening. 92 N. C.
Hyndman, 57 Tex. 425; Bassett v. 333; Wright v. Straub, 64 Tex. 64;
Messner, 30 Tex. 604, 606. McLane v. Paschal, 62 Tex. 103.
228 LIMITATIONS OF TALUE AND QirANTITT.
homestead, the time when he contracted as surety governs as
to what portion of the property is liable now ; that ,is to say,
what was then homestead is exempt now as to him, and no
more, though, the homestead may have been enlarged since in
extent, value, or both, under a subsequent law.' When the
limitation is fixed by the constitution, the legislature cannot
enlarge or diminish it.^
While a lien cannot be dislodged by a statute, a new one
cannot be saddled upon a homestead by statute after its ex-
empt character has been established, unless for obligations
coming under the exceptions to exemption.'
A monetary limit fixed by one constitution may be contin-
' ued unchanged by another succeeding it so as not to affect
a homestead right acquired under the former. Where two
thousand dollars in value was the limitation, and a new con-
stitution reduced it to one thousand, an applicant for home-
stead to the larger amount, whose right had accrued under
the first instrument, was allowed his prayer after the second
had gone into effect. The second constitution had been made
before the right accrued but had not been ratified : so the ap-
plicant's right was governed by the former one. There was
this provision in the second — the constitution now in force :
" Homesteads . . . which have been heretofore set apart
by virtue of the provisions of the existing constitution of this
state, and in accordance with the laws for the enforcement
thereof, or which may be hereafter set apart at any time, shall
be and remain valid as against all debts and liabilities existing at
the time of the adoption of this constitution, to the same extent '
that they would have been had said existing constitution not
been revised." Commenting on this provision, the court said :
" The phraseology of the section which we have quoted clearly
contemplates that the setting apart of the larger allowance,
provided for by the constitution of 1868, might go for an in-
definite time in the future, and that the property so set apart
' at any time ' should be protected against any and all debts,
etc., which arose whilst that constitution was in force. The
1 Keel V. Larkin, supra. ' Gumming v. Bloodworth, 87 N. C.
■^ Wharton v. Taylor, 88 N. C. 230 83 ; Lanahan v. Sears, 103 U. S. 3ia
(orerruZingf Martin V. Hughes, 67 N. 0.
293) ; Withers v. Jenkins, 21 S. C. 365.
EXEMPTION OF EEAL AND PEESONAL PEOPEETY. 229
new constitution (1877) is to be considered as speaking from
the time it became authoritative and operative as a constitu-
tion, and not from the time the convention framed it and
agreed to it. The term ' hereafter ' does not mark a period
ending with the actual substitution of the new constitution for
the old, but an intermediate duration hegmning with that sub-
stitution. It follows that the application we are dealing with
is consistent with both constitutions and did not come too late.
As to the class of debts and liabilities here involved, the
■ homestead and exemption provisions of the earlier constitu-
tion are by the later one continued in full force." '
After the repeal of a homestead or any exemption law, a
claim not founded on rights existing when the law was in
force — not asserted then — cannot be successfully preferred.^
A new constitution having fixed the monetary maximum of
homestead exemption higher than the former one had done, it
was construed to have no retroactive effect. The holder of a
homestead under the old constitution, which was of the maxi-
mum value when designated, and which had since increased to
the highest sum allowed as exempt under the new provision,
was held not authorized to claim more.'
§ 8. Exemption of Real and Personal Property.
In a state where real and personal property, or either, as
the debtor may choose, is exempt from execution to a certain
limit of value, there is exemption but not necessarily any
homestead protection as such. A piece of land or a chattel
may be above this value yet indivisible : then the exempt sum
is reserved from the proceeds of an execution sale, as in case
of excessive and indivisible homesteads in other states. The,
selection of land or chattels, within the limits, should be by
the owner: by the husband, if he is the owner;* by the wife,
if she is ; * and it has been held that a brother may select for
1 aerding V. Beall, 63 Ga. 561. . Martin, 13 Ind. 553; Sullivan t.
2 Clark V. Snodgrass, 66 Ala. 238. Winslow, 23 Ind. 154. Six hundred
SLinch v. Broad, 70 Tex. 92 ($5,000 dollars of real or personal property,
maodmumhj Const. Texas); McLane or of both, or of either, exempt in
\. Paschal, 63 Tex. 103. Indiana.
* State V. Melogue, 9 Ind. 196 ; Aus- * Crane v. Wagoner, 83 Ind. 83.
tin V. Swank, 9 Ind. 109 ; Holman v.
230 LIMITATIONS OF VALUE AND QUANTITY.
his sister who is the owner, when living in her family and con-
tributing to its support.'
Tttere is an allowance in lieu of homestead, determined by-
facts existing when a surplus remains after selling the home-
stead and satisfying creditors so far as the non-exempt por-
tion can do so. The court, in disposing of the surplus, makes
the allowance. This course, not presented here as generally
followed, is authorized by a state statute.^
There is a constitutional exemption of real or personal
property, or both, selected by the debtor, to the amount of'
two thousand dollars, in addition to the articles exempt from
levj' or distress for rent.'
What part of this amount is taken in realty as a homestead
must be claimed by the owner. All the exemption, to the
amount of two thousand dollars, he may have in realty set
apart as a homestead as required by statute.* He is not .en-
titled by virtue of the constitution, if he fails to comply with
the mode prescribed by statute. The constitution does not
confer the exemption absolutely, but authorizes it upon his
selection of the property ; and the legislature has pointed out
how the selection shall be made. The code is held to be rec-
oncilable with the constitution, in this matter.^
The constitution of another state exempts property real or
personal, or both (belonging to the head of a family, trustee
of minors, etc.), to the amount of sixteen hundred dollars.^
There are two forms of homestead exemption recognized:
one under the constitution directly and the other under stat-
ute ; but the beneficiary cannot have both.
In another state, a defendant may select real or personal
property to the amount of one hundred dollars, — ^the value
ascertained by appraisers at the time of levy, — which shall be
exempt in " any civil proceeding whatever," except on judg-
1 Graham v. Crockett,'18 Ind. 119. 3 Const Va., art XI, §§ 1, 3, 5.
2 Ohio Rev. Stat, § 5441 ; Niehaus ^Va. Code, ch. 183; Wray v.
T. Faul, 43 Ohio St 63 ; Bills v. Bills, Davenport 79 Va. 19.
41 Ohio St 306; Bartram v. Mc- ^ Ljnkenhoker v. Detriok, 81 Va.
Gracken, 41 Ohio St 377 ; Jackson v. 44 ; Reed v. Union Bank, 29 Gratt
Reid, 32 Ohio St 443; Kelly v. 719 ; White v. Owen, 80 Gratt 43.
Duffy, 31 Ohio St 437 ; Cooper v. « Const. Ga. (1877), art IX sec. 1
Cooper, 24 Ohio St 488. et seq.
EXEMPTION OF EEAL AND PEESONAL PEOPEETT.
231
ment for breach of promise to marry or for seduction. If the
property seized is indivisible, the defendant is entitled to a
hundred dollars from the proceeds of sale.'
In yet another, three hundred dollars' worth of realty or
personalty or both are saved to the debtor from execution,'
the value ascertained by appraisement, and the exempt amount
reserved from the sale of indivisible property, as above.^ The
exemption must be claimed by the debtor, since otherwise his
right to it would be forfeited. He would be deemed to have
acquiesced in the sale of all the property levied upon. When
duly claiming, he retains or rather avails himself of the right,
so that even if all must be sold because not susceptible of
division, he would have the amount of the exemption paid to
him from the proceeds.' A claim made on the day of sale was
held to be in time.*
1 Rev. Code of Md., p. 623.
2 Brightly's Pur. Dig., I, pp. 636-8.
3 Bowman v. Smiley, 31 Pa, St. 225 ;
Dodson's Appeal, 25 Pa. St 234;
Miller's Appeal, 16 Pa. St 300 ; Line's
Appeal, 2 Grant's Cas. 198.
1 Seibert's Appeal, 73 Pa. St 36L
MoNETAEY Limitations.
No money
Alabama . .
Arizona , . .
Arkansas . .
California
Colorado . .
Florida . .
Georgia
Idaho (head of family)
Idaho (others)
Illinois
Iowa .... No money
Kansas ^ . . . No money
Kentucky
Louisiana
Maine
Massachusetts
Michigan
Minnesota . . No money
Mississippi
Mississippi (if recorded) . .
Missouri
Montana
Nebraska
Other states
$2,000
4,000
2,500
5,000
2,000
limit
1,600
5,000
1,000
1,000
limit
limit
1,000
2,000
500
800
1,500
limit
2,000
3,000
1,500
2,500
2,000
No money
Nevada
New Hampshire
New Jersey .
New Mexico .
New York
North Carolina
North Dakota
Ohio . . .
Oklahoma
South Carolina
South Dakota
Tennessee
Texas, urban
Texas, rural . . No money
Utah (head of family) . . ■
Utah (wife)
Utah (each child) ....
Vermont
Vii-ginia
Washington ......
West Virginia
Wisconsin . . No money
Wyoming
No homestead law.
^5,000
500
i,000
1,000
1,000
1,000
5,000
1,000
limit
1,000
5,000
1,000
5,000
limit
1,000
500
250
,500
2,000
1,000
1,000
limit
1,500
CHAPTEE YIII.
EXEMPT BUSINESS PLACES.
§ 1, Appurtenances.
3. Business Houses Not Appurte-
nant.
3. Dwelling and Business Houses
as One Homestead Within the
Maximum.
4. Means of Family Support.
5. Dual Homesteads — " Business
Homesteads."
§ 6. Dual and "Business Home-
steads."
7. " Business Homesteads " — In-
crease of Exemption.
8. Alternate Homesteads.
9. Business Uses as Indicia.
10. Several Business Catlings.
§ 1. Appurtenances.
The exemption of a homestead generally includes the ap-
purtenances of the family dwelling. These are not confined
to barns, stables and the other usual out-buildings, but may
include the shop of an artisan, the studio of an artist, the of-
fice of a doctor or lawyer, or any like appendage, used by the
head of the family in pursuing his personal calling. Such
shop or office is required to be on the homestead premises,
and included within the limitations prescribed to them as to
value andj extent.^
Shops rented to tenants are not protected as appurtenances
of the lessor's homestead, though on the home lot ; ^ and a sa-
loon for the sale of intoxicating liquors was held not exempt,
though it was part of the dwelling-house.' A house solely used
as a hotel is not a homestead.*
» Orr V. Shraft, 33 Mich. 360 ; Hub-
bell V. Canaday, 58 111. 427 ; Wright
V. Ditzler, 54 la. 630 ; Smith v. Quig-
gans, 65 la. 637 ; West River Bank v.
Gale, 43 Vt. 37; Mercier v. Chace, 11
Allen, 194 ; Lazell v. Lazell, 8 Allen,
576; Clark v. Shannon, 1 Nev. 568;
Skinner v. Hall, 69 Cal. 195; Orn-
baum V. His Creditors, 61 Cal. 457 ;
Englebrecht v. Shade, 47 Cal. 638;
Estate of Delaney, 37 Cal. 176 ; Re
Tertelling, 3 Dill. 339; Pry or v. Stone,
19 Tex. 371 ; Wassell v. Tunnah, 25
Ark. 101 ; Kelly v. Baker, 10 Minn.
134; Sumner v. Sawtelle, 8 Minn.
273 ; Tillotson v. Millard, 7 Minn. 419 ;
Ward V. Hughn, 16 Minn. 159 ; Kre-
sin V. Mau, 15 Minn. 116; Piper v.
Johnston, 13 Minn. 60.
2 Kurz V. Brusch, 13 la. 371.
3 Arnold v. Gotshall, 71 la. 672;
McClure v. Braniff, 75 la. 38, 43.
* Green v. Pearce, 60 Wis. 873.
APP0ETENANCES.
233
The rule is that a mechanical or business or other append-
age must be merely incidental to the home purpose. This
rule will be recognized under the prevalent system of home-
stead. It will not be respected under exceptional methods of
a few states. Wherever homestead, so called, is nothing more
than exemption to a specified amount in value of realty, this
rule will be found inapplicable.' Where a factory, storehouse,
block of stores, mills, and the like, are clainied as appendages
of the messuage — -not exempt by statute under their proper
business names, but by construction, under the general name
of homestead — the adjunct is often far more valuable than
that to which it is attached.
If a lot is not appurtenant to the family residence, but sev-
eral squares away from it, it constitutes no part of the home-
stead, though used for family purposes.'
1 Achilles v. Willis, 81 Tex. 169 ; 16 S.
W. Rep. 746. Gaines, J. : " This action
was brought by appellants to restrain
the appellees from selling two lots or
parcels of land in the city of Aus-
tin, under execution. The plaintiffs
claimed that the lots constitute their
homestead, and that therefore they
were exempt from forced sale. On one
of the parcels known as ' Lot 12,' in
block 19, was situated a dwelling-
house ; and the other, called the ' La-
vaca-Street Property,' was distant
some three or four blocks from the
former, and had upon it a butcher's
shop and a part of a stable. The in-
junction was dissolved as to the lat-
ter, but was perpetuated as to the
former, lot. The appellees have not
assigned errors, and therefore the sole
question before us is whether or not
the court erred in holding the La-
vaca-street lot subject to forced sale.
The plaintiff, Andreas Achilles, testi-
fied that he bought lot 13, in block
19, as a residence for his family in
1886, and that they moved upon the
lot, and made their home there for
some three or four months ; that he
then rented the property, and made
his family residence in the second
story of a house leased by him, and
used as a place of business, but that
he never intended to abandon lot 12
as his homestead. He also testified
that in 1887 he bought the Lavaoa-
street lot, which w'as on the opposite
side of the street from his business
house. He also testified ' that he used
this property as a wood-yard till he
failed, in December, 1887; that in
January, 1888, his brother, A. H.
Achilles, bought the stock of goods
from his ti'ustee, and run the busi-
ness, including the wood-yard busi-
ness, up to March 31, 1890, till after
the levy ; that during that time he
clerked for his brother and had no
interest in the business; . . . that
the Lavaca-streeti lot has a stable on
it, half of'the stable being on his lot,
and the other half on the adjoining
lot ; that the middle of the stable is
his line, and that the stable runs
back east seventy-six feet ; that the
stable is about thirty feet wide ; that
there is a bedroom in the corner of
the stable on his part about eight feet
square ; that there is a butcher shop
in the south-west corner of his lot
234
EXEMPT BUSINESS PLACES.
Where two lots adjoined each other, and one and a part of
the other were occupied as the family home of the house-
holder, and both were within the monetary limitation, a por-
tion of the second lot was held liable to execution for debt,
because it was devoted to business purposes. The householder
pursued thereon his business calling of wagon-building and
general blacksmithing. The test applied was that of princi-
pal use; and it was found that the portion of the second lot
whose status was in question was principally devoted to busi-
ness uses. Had the question of liability been with reference
to the whole property — both lots — it might have been
about twenty and one-half by four-
teen and one-half feet, and a shed-
room to it, fofrteen and one-half
feet by eight feet ; that the shop and
shed-room buildings do not belong to
him; that they belong to August
Hoecke, and were there when he
bought the property, and were rented,
and that since he bought he has
rented the ground covered by them,
and received ground-rent, $5, up to
about Januaiy 1, 1890, and that since
that time Hoecke has occupied it, but
paid him no rent, but a little meat ;
that he was using the stable for his
cow and horses and wagon and feed
at the time he failed, and has used it
ever since in the same way ; that the
stalls in which he keeps his horses
and cow are on the north side of the
stable, on the other lot, and the bins
where he keeps his feed are on the
south side, and on his lot, and the
bedroom is on the south side ; that
all the lot, except the part covered
by the stable and shop and shed, is
what has been used for a wood-yard.'
He also testified ' that he bought this
lot for the purpose of using the same
in connection with his homestead on
lot 12, in block 19, and that since he
purchased it he has been keeping his
horses and cow therein, with feed for
them, and his fire-wood, chickens,
etc., and used the lot as a yard to
wash the family clothing.' No other
witness testified with reference to
this matter. It may be doubted
whether the testimony discloses such
use of the lot as would entitle it to
be exempt from forced sale. A part
was rented, and the open space seems
to have been mainly used as a place
to deposit wood kept in connection
with plaintiff's business. But con-
ceding, for the sake of the argument,
that such use was shown, does it fol-
low that it would not be subject to
sale under execution? The head of
a family is not entitled to two resi-
dence homesteads. He is entitled to
one, which may consist of two or
more detached lots. The nucleus
must be the lot upon which the dwell-
ing is situated. This lot will draw to
it such others as may be conveniently
near to it, and may be used in con-
nection with it for the comfort and
convenience of the family. The
plaintiffs established in this case that
lot 13 was their homestead proper.
They failed to show that the lot in
question had ever been used in con-
nection with it for home purposes.
The xourt below held that, under
these circumstances, it had never be-
come a part of the homestead, and
we are not prepared to say that this
conclusion was not correct The
judgment is therefore ajSarmed."
BUSINESS HOUSES NOT APPUETENANT. ' 235
thought that the principal use was that of a home ; and thia
view would have accorded with decisions in several states.
The court, however, separated the first lot and the part of
the second, on which the dwelling-house and appurtenances
were situated, from the rest, and held the latter liable, quot-
ing approvingly from a prior decision : " It is the principal
use to which the property is put, and not quantity, w^hich fur-
nishes the test in determining the question whether or not
property is subject to dedication as a homestead. And if
only a part of the land described in the homestead declaration
be actually used and appropriated as the home of the family,
the remainder not so used and appropriated forms no part of
the homestead claim in the sense of the statute." '
The court applied the general rule that property cannot be
impressed with the character of a homestead unless actually
occupied by the householder and his family as their home
residence.^
§ 2. Business Houses Not Appurtenant.
The construction, given to the statute of the state whence
the cases are cited in the last two notes, is that the home-
stead embraces only the dwelling-house and appurtenant out-
buildings and land constituting the family home, and not
disconnected establishments used for business or other pur-
poses; that the purpose of the legislator is to exempt the
home, and not necessarily property to the possible maximum
value — ■ five thousand dollars. What may be considered the
leading case on this point ' was rendered under a statute since
modified, but which has been literally copied in another state,*
and there differently construed." The case last cited from the
former state was discussed but not followed. It was expressly
1 In re Allen, 78 Cal. 293 ; Maloney Cal. 286 ; Aucker v. McCoy, 56 Cal.
V. Hef er, 75 Cal. 433 ; Gregg v. Bost- 536 ; Dorn v. Howe, 53 Cal. 630 ;
wjck, 33 Cal. 220 ; S. C, 91 Am. Dec. Babcock v. Gibbs, 52 Cal. 629 ; Pres-
637 ; Ackley v. Chamberlain, 16 Cal. cott v. Prescott, 45 Cal. 58 ; Mann v.
182; S. C, 76 Am". Deo. 516. Rogers, 35 Cal. 319.
■2 In re Noah, 73 Cal. 590 ; In re » Gregg v. Bostwick, 33 Cal. 330.
Crowey, 71 Cal. 300 ; Skinner v. Hall, * Nevada, Act of 1865.
69 Cal. 195 ; Pfister v. Dascey, 68 Cai. » Smith v. Stewart, 13 Nev. 65. See '
573 ; Laughlin v. Wright, 63 Cal. Goldman v. Clark, 1 Nev. 516.
118; Tiernan v. His Creditors, 63
236 EXEMPT BUSINESS PLACES.
stated that the decision in that case was rendered when the
statute of its state was precisely lilie the one under construc-
tion, yet it was held that a dwelling-house, two store build-
ings used in merchandising, and a store-house used for storing
goodsj all separate from each other, but all standing upon one
piece of ground, were exempt as a homestead. It was further
held that the statute exempts a tract of land on which the
homestead is located, to the extent of five thousand dollars in
value, and allows it to be used in any way, for any business
or calling, provided it is the site of the homestead and used
and claimed as the family home.
It had previously been held in a case with which the last
one cited is in accord (though rendered under a prior and
somewhat different statute), that the owner of two lots, who
lived on one and had a public livery-stable on the other, and
who had mortgaged the latter to secure his note, was entitled
to hold both lots and their improvements exempt as his home-
stead. He was relieved from his mortgage because his wife
had not joined in its execution. The court said the debtor
has the privilege of selecting any land included in the home-
stead tract, provided it does not exceed five thousand dollars
in value, and that he is not limited in the uses to which it
may be applied.^ This is exemption, but not homestead.
This decision, under a former statute, was followed; and
that of a neighboring state, under a statute from which the
present one was copied, was not followed. JSTone of the stat-
utes, however, gave warrant for treating business establish-
ments as homesteads, or as parts, of homesteads. The one
which was alike in the two states, and still in force in the lat-
ter, is as follows, with respect to the part construed :
' "The homestead, consisting of a quantity of land, together
with the dwelling-house thereon and its appurtenances, not ex-
ceeding in value five thousand dollars, to be selected by the
husband and wife, or either of them, or other head of a fam-
ily, shall not be subject to forced sale on execution, or any
final process from any court, for any debt or liability con-
tracted or incurred after November 13, 1861, except process
• to enforce the payment of purchase-money. . . .
1 Clark T. Shannon, 1 Nev. 477 ; Nev., Act of 1861, §§ 4-7.
BUSINESS HOUSES NOT APPUETENANT. 237
" Said selection shall be made by either the husband or
wife or both of them, or other head of a family, declaring
their intention in writing to claim the same as a homestead.
Said declaration shall state . . . that they . . . are,
at the time of making such declaration, residing with their
family, or with the person or persons under tKeir care and
maintenance, on the premises, particularly describing said prem-
ises, and that it is their intention to use and claim the same
as a homestead." . . .^
There is a provision that when indivisible property includ-
ing the homestead shall be subject to execution, five thousand
dollars shall be reserved to the debtor from the proceeds.^
By simple inspection, the professional reader will see that
there is nothing exempted but the homestead. Its appurte-
nances are a part of it, and consist only o'f out-buildings and
such other things as are usual, and necessary to the purposes
of the family. There is nothing further exempted by express
provision. To find anything further implied would tax the
keenest ingenuity.
Whether we take the word homestead as used in common
parlance, or in its technical sense, we shall be unable to ex-
tend its meaning so as to include anything more than the
family residence and its auxiliary appendages for domestic
use, and the land belonging to the home, all constituting the
premises repeatedly mentioned in the statute.
In common language, no one would point to a merchant's
business house, or to a public liver^'^ establishment, and say :
" That is my friend's homestead ; that is his family residence."
In legal language, no one would seriously say, pointing to
such a house : " That is a homeste.ad where the owner resides
with his family as the statute requires."
There is not a word or an implication in the statute which
favors, in the slightest degree, the exemption of a business
establishment. There is nothing which entitles the benficiary
to the maximum of the monetary limitation, when his family
residence and appurtenances and the land with it are worth
less. When worth more, and not susceptible of being set apart,
its owner may have the maximum from the proceeds, after
1 Gen. Stat. Nev. 1885, § 539, from 2 Ih, § 541.
the Act of 1865, above noticed.
238 EXEMPT BUSINESS PLACES.
execution. But this does not furnish any implication that a
homestead worth less than that sum may be eked out with
buildings not used as homestead — not occupied as such by
the family according to the statute.
There is no room for construction, either strict or liberal,
since there is no ambiguity, and the meaning of the legislator
is plainly expressed, leaving nothing for the court to do but
to follow the statute.
In the state where this construction was given, the profession
will recognize the force of stare decisis, and take the law as
expounded by the court. But as the same statute has been
followed in another state, where it originated, without any
interpolations by construction, what is the profession to un-
derstand in the other homestead states which have each
authorized one honiestead and required its occupancy by the
family of the householder? It would seem that they ought
not to give the construction, and its reasons, any extraterri-
torial influence. Especially would it seem so, when the views
of the supreme courts of the two states are conflicting, so that
both cannot be accepted as law throughout the country.'
§ 3. Dwelling and Business Houses as One Honiestead
Within the Maximum.
In one of the cases above cited,^ it was held that the mort-
gage of a public livery-stable by the owner without his wife's
joinder was null and void and did not estop him from claim-
ing the property subsequently as exempt under the law ex-
empting homesteads. It was said, by way of reasoning, that
the statute exempted five thousand dollars' worth of prop-
erty, though no part of it was pointed out to show that the
homestead must reach the maximum, and the reader will look
in vain to find it.
This is not recognized as law in another state where the
limitation of exemption is the same, and the phraseology of
the provision, on this subject, substantially the same.
' Even in Nevada, in cases vehere exempt. Lachman v. Walker, 15
business places are not dravcn in Nev. 423 ; Child v. Singleton, 15 Nev.
question, the decisions recognize that 461 ; Smith v. Shrieves, 13 Nev. 303 ;
It is the home of the family, occu- Estate of Walley, 11 Nev. 264; Bank
pied as such, which is to be declared of San Jose v. Corbett, 5 Saw. 547.
upon and recorded, that it may be ^ Clark v. Shannon, 1 Nev. 477.
DWELLING AND BUSINESS HOUSES AS ONE HOMESTEAD. 239
■ On the contrary, it is held that "the resident may make his
homestead as small as he pleases, provided it be not so con-
tracted as to show an intent to evade the law, by making it
too small for actual use as a homestead." This was held under
a constitutional exemption of " any lot in any city, town or
village, with the dwelling and appurtenances thereon, owned
and occupied by any resident of this state, and not exceeding
in value five thousand dollars "... which should " not
be incumbered in any manner while owned by him."
Besides his homestead, the householder had a brewery which
he alone mortgaged, declaring in the instrument that it was
not a part of his homestead. Afterwards he sought to hold
it, and his dwelling too, as exempt — both within the limit — •
then five thousand doUars. He discordantly meant to keep
the money he had obtained by the mortgage and repudiate
the mortgage, as the mortgagor in the other case successfully
did. But the court denied him such double-dealing, declared
that there was no homestead minimwn of value fixed by law,
and recognized his right to dispose of his brewery without
his wife's joinder, as it was a business establishment consti-
tuting no part of his messuage.^
Where the wife is a beneficiary to the highest amount of
the exemption if the homestead is worth so much (as she gen-
erally is), her husband alone cannot mortgage or sell any part
of it without her consent. But a commercial building, a
brewery or other business edifice, is not a part of the home-
stead, and does not become such when the family residence
and its land and appurtenances fall below the extreme allow-
ance. If not a part of the homestead, the husband alone
rnav mortgage it. Any question concerning the restraint of
his jus disponencli must be strictly construed.
A different view of the homestead grant has been taken.
The law having authorized the exemption of a limited quan-
tity of land with the dwelling occupied by the beneficiary, it
was argued : " 'Eo limitations were imposed by the legislature
upon the use which should be made of the homestead of
eighty acres, or of one lot, provided only it was a dwelling
iKlenkv.Knoble, 37 Ark. 298, 303-7; ney, 33 Ark. 400; Frits v. Frits, 83
Ark. Const, of 1868, art. 13, §§ 3, 3, Ark. 337 ; Lindsay v. Norrill, 36 Ark.
since superseded ; Tumlinson v. Swin- 545.
240 EXEMPT BUSINESS PLACES.
place of the party claiming the exemption:" therefore, " as
to the balance, beyond what was required for the site of his
house, the claimant seems to have been left free to allow it to
remain uninclosed, unimproved, vacant and idle, or to devote it
to any use which he might choose." '
^^. Cleans of Family Support.
The scope of the exemption of the homestead has been en-
larged by construction so as to include the beneficiary's
" usual means of employment for the support of his family."
In illustration it was said that a mill-owner, who has a farm
attached to his mill, can hold both his residence and' mill ex-
empt, but not the farm, if his cultivation of it is a business
secondary to milling. This ruling was with reference to a
rural homestead allowed by statute to consist of not more than
one hundred and sixty acres. Only such portion of the tract
as was ancillary to the business of lumberings in connection
with the saw-mill, was decided to belong to,the homestead, and
to be exempt.
Justice Bradley, in delivering the opinion, said, of his own
exposition : " The amount of property which the necessary in-
terpretation of the exemption will sometimes embrace will
undoubtedly appear as a great hardship and injustice to cred-
itors. It is a great stride from the state of things in which
the sanctity of a debt induced the legislature not only to take
from the debtor all his property, but even his liberty itself.
It may be a question whether it is not carrying the principle
of exemption too far for the public welfare. It is true that
the farmer without his farm, the blacksmith without his forge,
the miller without his mill, the trader or business man with-
out his shop, in fine, any citizen without his place to work and
labor or pursue his ordinary calling, is deprived of the power
to support himself and his family, and becomes a burden in-
stead of a help to the community. These, establishments or
places of labor or occupation are respectively adjuncts of a
man's homestead, and, within the intent and meaning of the
constitution,^ form a part of it. "Whether the provision is
1 Kelly V. Baker, 10 Minn. 124; Contra: Casselman v. Packard, 16
Palmer v. Hawes (Wis.), 50 N. W. "Wis. 115.
341 ; Baker v. The State, 17 Fla. 406. '■ Of Florida.
MEANS OF FAMILY SUPPOET.
241
politic or impolitic, is a question with which the courts are
not concerned. . . . The mill, in the sense of the consti-
tution, is appurtenant to, and part of, the debtor's homestead.
If it be objected that the value is unreasonably great, we an-
swer that the constitution prescribes no limit of value and the
courts cannot prescribe one." ^
Considered as means of family support, are homestead crops
exempt ? Distinction should be made between crops grow-
ing on a homestead and those which have been gathered and
thus separated from the soil. While the former take the
character of the land as to exemption,^ the latter do not.'
The non-exemption of gathered crops is nob, however, uni-
versally recognized.^ And even though crops be exempt, it
is too late to claim the benefit after they or their proceeds
have been surrendered to creditors.' Crops are the produce
of the homestead soil. What is produced by the householder's
skill, without the aid of the soil, is not exempt."
A man and wife having joined in giving a deed of trust on
their homestead and their cotton crop, the husband was sus-
> Greely v. Scott, 3 Woods, 657, 660.
2 Alexander v. Holt, 59 Tex. 205.
Questioned: Sloan v. Price, 84 Ga. 172.
sCoates v. Caldwell, 71 Tex. 19;
Lee V. Welbome, 71 Tex. 500 ; Hor-
gan V. Amick, 62 Oal. 401 ; Bank v.
Green, 78 N. C. 247.
<MarshaU v. Cook, 46 Ga. 301 j
Wade V. Weslow, 62 Ga. 562.
5 A head of f amUy, having a home-
stead, voluntarily paid to the sheriff
proceeds of cotton raised on it
towards satisfying a judgment
against him and others. Afterwards
a rule was taken to distribute the
money so as to have it applied also
to another judgment. It was too<
late for him to recall it after the
shpriflE had already paid it over.
\:!loiid V. Keifirick, 83 Ga. 730. A
crop raised by the debtor, by use of
exempted property and his own
labor, cannot be subjected to execu-
tion in Georgia for prior debts. Kup-
ferman v. Buckholts, .73 Ga. 778;,
16
Wade V. Weslow, 62 Ga. 563 ; John-
son V. Franklin, 63 Ga. 378.
6 The Georgia Code, § 2026, ex-
empts from levy and sale (except as
provided for in the constitution),
"all produce, rents or profits arising
from homesteads in this state." Ex-
pounded: "To be exempt they must
have been ' produce, rents or profits '
arising directly from the use of the
homestead or exempted property,
such as crops and rents . . . • "
so "debts due a physician, in the
earning of which his skill was the
principal factor; and the use of a
. . . house set apart as a home-
stead ; and riding an exempted horse
in paying his physician's calls, were
mere incidents ; " the debts " were
not exempt from garnishment. ..."
Staples V. Keister, 81 Ga 772, in
which Wade v. Weslow, 62 Ga. 562;
Johnson v. Franklin, 63 Ga; 378;
Kupferman v. Buckholts, 78 Ga. 778,
are distinguished.
24:2 EXEMPT BUSINESS PLACES.
tained in using the cotton to pay a creditor other than the
holder of the deed ; and it was held that his wife could not
prevent such disposition of it on the ground that it should
have been applied to the payment of the debt secured by the
deed of trust.' It would seem that the creditor, holding the
deed of trust, had just right to complain of the application of
the crop to the payment of another creditor.
The usufruct of homestead property is not exempt because
that which produces it is so. In the absence of any law cre-
ating the exemption, the income of such property, when it
has taken independent form, is liable to the creditor.^ Were
a different rule to prevail, the income "could be capitalized
and recapitalized from that one nucleus to the building up
of coUossal fortunes in defiance of debts past and future.
And what a door would be opened to frauds and perjuries,
as each owner of a homestead would be tempted to allege and
establish that all his estate, no difference how acquired, was
but the increment of his own, or the homestead of some re-
mote ancestor ! " *
When upon the death, of their father his homestead land
belongs to his children, the rent which falls due after the death
is not a part of his estate. It belongs to the children and is
not liable for his debts.* The owner of the reversion is enti-
tled to rents falling due after it has become vested.'
§ 5. Dual Homesteads — " Business Homesteads."
Under the constitutional provision : " The homestead in a
city, town or village shall consist of a lot or lots, not exceed-
ing in value five thousand dollars at the time of the designa-
tion of the homestead, without reference to the value of any
improvements thereon ; provided, that the same shall be used
for the purpose of a home, or as a place of exercising the call-
ing or business of the head of a family," * it is held that an
1 Vaughn v. Powell, 65 Miss. 401. Martin v. Martin, 7 Md. 376 ; Story's
2 Citizens' National Bank v. Green, Eq, 475 ; Wood's Landlord and Ten-
78 N. C. 347. ant, 476 ; 1 Wash. Real Prop. 137, 519 ;
3 J6. 3 id. 389. See. Linch v. Broad, 70 Tex.
< Porter v. Sweeney, 61 Tex. 313. 93, and cases there cited.
5 Burden v. Thayer, 3 Mete. 76; « Constitution of Texas, 1876, art
Bank of Pa. v. Wise, 3 Watts, 396 ; XVI, § 51.
DUAL HOMESTEADS — "BUSINESS HOMESTEADS." 243
urban homestead may embrace one lot or more where the
householder exercises his calling, in addition to the lot or lots
where his family resides; that the disjunctive form of the
proviso must be construed to mean, not that there is one ex-
empt property which must be used either as a home or as a
place of business, but that there may be two properties, — one
for residence and the other for business ; that these need not
be contiguous but may be entirely detached from each other.
A different construction, said the court, " would involve us in
inextricable difficulty, or lead to results which would evidently
contravene the object sought to be secured by the constitution,
as is manifest when considered in connection with the previous
legislation and decisions of this court. . . . When it be-
came apparent that this court did not regard the place of
business of the head of the family, if entirely distinct and
separate from their home, as within the exemption by reason
of its use, then there was an enlargement of the homestead
exemption as we find it in the present constitution. ... If
the clause in the proviso had been connected by the conjunc-
tion and, ... it would have had an entirely different ef-
fect from what we think was intended, or lead to absurd
results. In that case there would have been no exemption
of an urban homestead unless there were lots used for both a
home and a place of business." '
The facJs of the case in which this construction was made
were as follows : Menke was a merchant who resided with his
family on two lots containing his dwelling-house, a garden, a
stable and the usual appendages of a family residence. He
had a storehouse besides, situated on two lots which fronted
the court-house square of the town, entirely disconnected from
the other property. Being about to make an assignment as
an insolvent, he erected a new brick store-house on his business
lots, in close proximity to the store he was then using, moved
his goods into it, and employed his old store-house as a ware-
house. As all four- of the lots, mimis the improvements, did
not exceed five thousand dollars in value when first designated,
all were held exempt.
The homestead with its appurtenances, and the business es-
1 Miller v. Menke, 56 Tex. 539, 549.
244 EXEMPT BUSINESS PLACES.
tablishment with its appurtenances — the new brick store and
all improvements (however much the property was enhanced
in value by the improvements), were free from forced sale by
creditors.
The court, in showing that there may be two exempt estab-
lishments — one a homestead and the other a business place —
both, though not necessarily contiguous, enjoyed by one per-
son — said that the home may be abandoned and the other
retained, or vice versa. Ceasing to use a store for business
purposes would be abandonment just as ceasing to live in the
dwelling would be. It will be seen that one of the conditions
or indicia of homestead differs in the two cases. Not family
occupancy but business use is the criterion when a merchant
claims his store-house, or the manufacturer claims his factory,
as exempt.
Eural homesteads, consisting not only of family dwellings
but the land on which farmers pursue their calling, must be
in family occupancy. This is a general rule which is still ob-
served where separate " business homesteads " (as they are
paradoxically called) are recognized in towns without this re-
quirement.
If, under the constitution whose construction has just been
noticed, the family homestead should be terminated by aban-
donment, could the " business homestead " still be maintained
by use for the support of the family? There is no answer
to this question in the opinion and decision making the con-
etruction, above cited. The better answer would be in the
negative. The right of exemption ought not to continue
after the home has been broken up, since the policy of home-
stead exemption is to conserve homes for the good of society
and the state • — not to enrich one class of citizens at the ex-
pense of another.
The exempt business establishment, under this view, would
be deemed subordinate to the protected home, dependent upon
it for a right to exist, appendant to it as means for support-
ing the family. But in the state to which the decision above
mentioned applies, the constitution makes either home-occu-
pancy or business-use suflBcient ; at least, so the court con-
strued it. But, in either case, the benefit is confined to heads
of families.
DUAL' HOMESTEADS — "BUSINESS HOMESTEADS." 246
In the language of Judge Walker, in a case following that
above considered,' in the same court, speaking of the constitu-
tion of 1876 : " Now, for the first time in our history, the head
of a family imaj'' possess a dual homestead, disjoined and iso-
lated as respects locality of lots and houses within a town or
city, and each of them dedicated to distinct uses. The one,
domestic — the hearth-stone home; the other, the industrial
home, or place of work or of business for the head of the
family. The one, his ' vine and fig tree ; ' the refuge of the family
against the misery and desolation which the homeless know;
the other, a sea-wall uplifted against the tide and waves of
poverty and disaster, securing to him a spot of earth where
he, and his family after him, may toil and earn their bread."
This duality of homestead and other provisions of the consti-
tution are declared in the same opinion to be " in advance of
similar benefactions hitherto extended under our former con-
stitutions and laws, and are doubtless f£|,r in advance, in the
characteristics named, of the laws of any people on the globe."
' While the court denies that the object is to aflEord protec-
tion to the capital which is invested in business, or to encour-
age its extension and increase, it admits that such results niay
ensue.
The point of the decision, however, is that there cannot
be triplicate homesteads. A druggist had his exempt do-
mestic home situated on two acres of ground in the town of
Hillsboro ; his drug-store, on other lots, situated in a different
part of the town, which was his business homestead ; and he
claimed another lot or lots where his vrarehouse stood de-
tached from the store, as also exempt.
Under the section of the constitution already quoted, why
not? There is no limitation of the number of lots, and it
had long been the law, and yet is, that the lots need not be
contiguous. But probably the court wisely saw that the al-
lowance of triple homesteads would 'soon be followed by claim
for quadruple ones. The reason assigned for holding the
warehouse not exempt was that the facts did not show that
the storing of goods in it was a use of it in the exercise of
th9 druggist's business. Suppose the facts had shown it?
1 McDonald v. Campbell, 57 Tex. 614, 617-18.
2i6 EXEMPT BUSINESS PLACES.
Suppose they had shown forty diflferent houses and lots so
used?
A more general reason given is as follows : " Whilst the law
means to allow the head of a family, exempt from execution,
one or more lots where he may exercise his vocation and con-
duct his business, its scope is not intended to extend so far as
to protect from execution a lot or lots in excess of the lot or
lots on which the vocation or the business of the head of the
family is followed, even though such extra lots might be actu-
ally used in a way which was incidentally useful or profitable
to the business which was being followed." '
In the case cited just before this one, a warehouse was held
exempt, though not differing from the one in this case except
that it was on a lot adjoining the store held exempt as a busi-
ness place • — a difference not material, since the law does not
require that lots must be contiguous in order to be exempt, as
has been already remarked. The allowance of both residen-
tial and business homesteads is confined to one state.
§ 6. Dual and " Business Homesteads."
As this new departure — the allowance of dual homesteads —
is important, further construction of the section under consid-
eration ^ should be noticed. The designation therein of the
business homestead as " a place to exercise the calling or busi-
ness of the head of a family " is held to be employed in a very
broad sense. The words calling and business are held to " em-
brace every legitimate avocation in life by which an honest
support for a family may be obtained. The former was proba-
bly used in the sense of 'profession' or 'trade,' which would
embrace all such employments as by course of study or ap-
prenticeship in any of the learned professions, liberal arts, or
mechanical occupations, a person has acquired skill or ability
to follow. . . . The latter word was probably used, in
contradistinction to the other, to denote . . . ' that which
occupies the time, attention and labor of men for the purpose
of profit or improvement.' " '
An illustration is found in a later case. A firm consisting
1 Td., p. 617. 3 Shryock v. Latimer, 57^ Tex. 674
2g 51, art. XVI, Constitution of
Texas, 1876, already quoted.
DUAL AND " BUSINESS HOMESTEADS." 247
of three members, owning lots not exceeding the limitation in
value, erected thereon a factory for the manufacture of cotton-
gins. In connection with the factory, they established a gen-
eral mercantile business. One member took charge of this,
another superintended the factory in which many operatives
were employed, while the third traveled in the interest of the
firm. At times, each had worked in the factory.
The point was made by counsel that as the firm, manufact-
urers of gins, had in their employment many persons and
large and expensive machinery, such a place of business was
not, in legal contemplation, the place of business for the head
of a family, nor was such machinery to be considered as tools
or apparatus of trade, and that therefore the machinery was
not exempt.
The court said the only limitations, by the constitution of
1876, are value a,t the time the lots were designated, and use
in the calling or business of the head of a family ; and added r
^'l^either the value of the improvements placed upon it [the
ground], nor the nature and extent of the operations carried
on there, will subject it to forced sale ; and all the machinery
annexed to the freehold in such manner and under such cir-
cumstances as to become a part of the realty would follow
the title of the freehold and be exempt with it as parts of the
homestead." ^
One of the partners having ceased to work in the factory
and having given his time to the mercantile establishment
was held to have abandoned the business homestead ; but the
others continued and enjoyed protection in it, though each
may have had a domestic homestead of his own, in addition.
The case shows that under the coupled terms, calling and
business, the most extensive manufacturing establishments
may claim protection from creditors; that the most costly
machinery, worth ten times the monetary limitation as to the
value of the ground, is protected when attached to the realty ;
and tliat not individuals alone, but jirms may become benefi-
ciaries of the exemption provision ; and that abandonment by
one member of a firm does not affect the rights of the other
members. Corporations, as such, have not been held capable
1 Willis V. Morris, 66 Tex. 628 ; Low v. Tandy, 70 Tex. 745.
248 EXEMPT BUSINESS PLACES.
of becoming homestead beneficiaries ; they cannot even have
" business homesteads," since they, as artificial persons, cannot
be heads of famiUes. They may be included among benefi-
ciaries, however, at the next advance in the progress of home-
stead exemption.
Partners, having their office in a large building of which
they owned a fourth, were denied their claim of their interest
as a business homestead,' mainly because it was not adapted
to their particular calling.
The proprietor and keeper of a hotel had his family living
with him in the establishment. After a While he built a store-
house, moved with his family into the rear of it, and condupted
the grocery business therein. Later, his wife carried on mil-
linery in the front part of the store. On the death of the
husband, his wife claimed the entire property — hotel and
store — as homestead. She succeeded. But when, after-
wards, she quit her business and went to live with her adult
son elsewhere, taking the minor children with her, and mort-
gaged the whole property, she lost the homestead privilege.^
The two establishments were treated as a " residence home-
stead " and a " business homestead." " We think," the court
said, " both pieces of property were homestead, and on his
iVan Slyke v. Barrett (Tex.), 16 not be pretended in this case that
S. W. 902. The court said, after Curtis & Atkinson were using the
stating the facts: " The building may whole, or even one-half, of their
have been adapted to use as a store property rights in the building. They
or a bank, but not to the trade of were, at ibest, sharing with another
these cattle dealers. Shryock v. Lat- one room on the upper floor of a
imer, 57 Tex. 674. The laws and the building, in which they had a one-
constitution will not force a home- fourth interest. Could it be said
stead out of every interest in prop- that their entire interest would be
erty whether it suits the calling or exempt? We think not. The law of
occupation or not. Many illustra- homestead rights could not be inade
tions might be given where there to apply to such a case. The parties
would be an interest in a building have brought themselves within its
and a calling to which a business provisions. This being our view of
homestead could attach, and yet it the case, no other question need be
might be impossible, by decree of the considered. The judgment of the
court, to set apart such an interest as lower court ought to be reversed, and
a homestead for the business. A the cause remanded."
person claiming the benefit of the law 2 Harle v. Richards (Tex.), 14 S. W.
must come within the reach of the 257 ; 78 Tex. 80.
law to secure its protection. It can-
"business homesteads" INOBEASE OF EXEMPTION. 249
[the owner's] death, descended and vested one-half in the
widow and the other half in the children, subject to the right
of occupancy by the widow and minor children.
" To entitle the store-house to protection as a business home-
stead separate fron;i a residence, the head of the family must
have a calling or business to which the property is adapted
and reasonably necessary ; and such property inust be used as
a place to carry on the calling or business of the head of the
family, and is .protected so long as so u^ed.^
" "W^hen the widow closed her millinery business and ceased
to use the store-house for business purposes and went to live
with her son, we think it v?as thereby abandoned and divested
of its homestead character and became liable to forced sale
for debts and subject to partition." ^
If living in the " business homestead " saves a " residence
homestead " from the consequences of abandonment when it
is leased for hire, would the converse be true? That is, would
the doing of business in the " residence homestead," with the
other rented out, save the latter from the consequences of
abandonment as a " business homestead? " If not, why?
Leasing out property not needed for homestead purposes
exposes it to liability;' and there should be no difference,
whether the property be claimed as homestead of one class or
of the other.
§ 7. " Business Homesteads " — Increase of Exemption.
The raising of the protection from naked land worth two
thousand dollars to the same sort (i. e., vacant lots) worth
five thousand, by the provision of the constitution under con-
sideration, is not retroactive. It does not cover, with the
mantle of protection, any additional ground, if that which was
worth two thousand dollars when designated under the old
constitution is now worth five thousand dollars under the new,
without counting the value of the improvements, which may
be worth many-fold more.* For insta-jaoe : A beneficiary owned
1 Id., citing PfeiiflEer v. McNutt, 74 poses, not for business purppses, w^s
Tex. 640. required by the successive Texas con-
2 Id stitutions of 1845, 1856 and 1869. Sev-
^Blum V. RogeiB, 78Tex. 530. eral town lots might constitute a
< Adtual use for homestead pur- homestead, but they must all be ust^d
250 EXEMPT BUSINESS PLACES.
six stores, two of which he occupied with his own mercantile
business. He also owned a dwelling situate on four lots of
ground, which, without the residence and appurtenances
thereon, was estimated at two thousand dollars in 1859, but
at five, thousand dollars in 1877. The lots containing the
stores which the beneficiary occupied were estimated at four-
teen thousand dollars exclusive of the stores and all improve-
ments.
It was contended that all the vacant lots were worth no
more when first acquired than the allowance under the pres-
ent constitution, and that the value then should be taken ;
that the four lots containing the family residence were then
worth no more than two thousand dollars; so, more property
should be set apart as exempt to make up the additional three
thousand dollars, under the constitution as it now is. But
the court declined to take this view.'
The term iusineas homestead seems to be a misnomer. If,
because a factory or a merchant's store-building is used to
support the owner's family, it may be designated by this term,
why may not an exempt chattel employed for the same pur-
pose be so designated ? Domestic animals are exempted to a
prescribed number in most of the states, because they contrib-
ute to the support of the owner's family — but we do not call
a horse a homestead.
§ 8. Alternate Homesteads.
The idea of duality of homestead, already advanced, may
havfe given rise to that of alternate homesteads. A bene-
ficiary had two improved lots, and he and his wife occupied
sometimes the one and sometimes the other. Had one been
claimed as the domestic aaid the other the business place, both
might have been protected under the cases which have already •
passed under brief review ; but such was not the case. The
question was whether the property under seizure was exempt.
If the other was, that could not be unless one of the two was
for that purpose. Iken v. Olenick, husband alone unless previously
43 Tex. 195. Contra, Hancock v. abandoned' as a business place. Miller
Morgan, 17 Tex. 582. The constitu- v. Menke, 56 Tex. 539 ; Inge v. Cain,
tion of 1876 first included business 65 Tex. 75.
establishments with homesteads, i Llnch v. Broad, 70 Tex. 92, citing
which cannot be conveyed by the McLane v. Paschal, 62 Tex. 103.
BUSINESS USES AS INDICIA. 251
used for business purposes and therefore exempt. It so hap-
pened that the beneficiary and his wife were living on the
seized lot at the time the levy was made. The court decided
that they held that by actual occupancy, and so the seizure
had to let go its grip. But had the other property been aban-
doned by a temporary removal only?
It will be seen that the alternate occupancy of two homes
may lead to great abuse. It is permanent occupancy of neither,
and no homestead would be allowed in either, under the laws .
of the states generally. There seems to be no provision, in
those of the state where this case arose, which countenances
alternation of homes, though permanent exchanges are per-
missible and not uncommon. IS^or did the court hold that
habitual alternation is tolerable in that state. It merely held
that the property actually occupied by the man and wife, at
the time execution was levied upon it, was exempt as their
homestead, claimed by them as such, though they had been
living, sometimes at that place and sometimes at another.'
For the doctrine of duality of homestead does not allow
two domestic places to be exempt as homes. It is confined to
two places, one occupied by the family and the, other used by
the head of it in his calling or business.
§ 9. Business Uses as Indicia.
The owner of both may enlarge either or both by improve-
ments without incurring liability to creditors, though the in-
crease of value take it far beyond the monetary limit at the
time of the homestead designation. But he cannot erect a
building adjoining his business house, and lease it to tenants
without exposing ifto liability to forced sale. The indicium —
use by himself in his calling or business — would be wanting.'
" Use, for the purposes of a home," being one of the consti-
tutionally reqaired-^conditions to the exemption of real prop-
1 Ingle V. Lea, 70 Tex. 609. 640. See further, sec. 51 of art. 16
^ Hargadene v. Whitfield, 71 Tex. of Texas Constitution ; Rev. Stats, of
483. 490, citing, as to use : Wynne t. Tex., arts. 2336, 2004, 2009 ; Wright v.
Hudson, 66 Tex. 1 ; Shryock v. Lati- McNutt, 49 Tex. 425 ; Gilliam v. Null,
mer, 57 Tex. 674 ; Medlenka v. Down- 58 Tex. 805 ; Cannon v. Bonner, 38
ing, 59 Tex. 89 ; Iken v. Olenick, 42 Tex. 490 ; Baylor v. Nat. Bank, 38
Tex. 301. To which citations may be Tex. 454.
added: PfeifEer v. McNatt, 74 Tex.
252 EXEMPT BUSINESS PLAGES.
erty, in favor of the head of a family, was construed to refer
to lots other than those on which the family resided.' But
he could hold two lots as exempt when his store covered
part of both as his business establishment, and also a ware-
house attached thereto, the court said. Liberal construction
of ,the term, " place for the exercise of the calling or business,"
was expressly recc^nized by the court. And (presumably under
the same liberality) it was held that ceasing to use the store,
: by reason of failure in business and making an assignment,
was not abandonment so long as the merchant meant to
resume business there wheriever pecuniarily able to do so,
whether in the former line or any othef.^
It has been held that a partner may have homestead right
in his interest in partnership realty ; that such interest may
be secured from forced sale as a part of his homestead, when
the partnership firm is solvent ; that his occupancy of such
property as his place of business is such use as will be deemed
a destination of it as homestead ; and that his creditors, him-
self and his partners cannot impose any lien upon this interest
as a business homestead of the partner, except for purchase-
money and improvements.'
A merchant's place of business was on a lot different from
those on which he lived. He owned an undivided interest in
the business lot. The cessation of his business upon his death
did not divest his interest of its exemption character. That
interest passed to his heirs, and an allowance, in lieu of
homestead, was due to his widow and minor children.*
" Property used by the head of the family for carrying on
the business he pursues for the support of his family is just as
much a part of the urban homestead as the urban residence ;
and when the homestead character attaches it continues until
t voluntarily abandoned. . . . To be an abandonment that
would subject such property to seizure and sale, there must be
a voluntary . . . closing of the business. . . ? Being
1 Axer V. Bassett, 63 Tex. 545. See. ^Swearingen v. Bassett, 65Tex.267.
Railway Co. v. Winter, 44 Tex. 597 ; « Clift v. Kaufman, 60 Tex. 64 ;
Liverpool Ins. Co. v. Ende, 65 Tex. McDonald v. Campbell, 57 Tex. 615 ;
118 ; Ingle v. Lea, 70 Tex. 609. Mabry v. Ward, 50 Tex. 411 ; Hender-
2 Hargadine v. Whitfield, supra; son v. Ford, 46 Tex. 628 ; Pryor v.
Gassoway v. White, 70 Tex. 475 ; Stone, 19 Tex. 371.
Bowman \. Watson, 66 Tex. 395. 3 Clift v. Kauffman, 60 Tex. 64 ;
BUSINESS USES AS INDICIA. ) 253
Harter's [the homestead holder's] place of business at the time
of his death, we think it immatetial that the business was con-
ducted in the name of Weaver. . . . Conceding there was
fraud on his part in resuming and conducting the business in
the name of Weaver, we cannot see how that could be mad^ to
operate as an estoppel against appellee's homestead claim. The
property being homestead, and protected against creditors, could
not be the subject of fraudulent dealing as to creditors. . . .'
Whatever right appellants had, remained unchanged by reason
of the business being resumed and carried on in the name of
Weaver.^ Harter had obtained his stock of goods on credit.
Those who furnished him with the goods required that the
business should ie so conducted' to protect it against the d&tnands
■of Harter's other creditors." Such use of the homestead — to
protect non-exempt goods from creditors — was held not
fraudulent as to creditors.'
A debtor whose business had ceased at his " business home-
stead " more than a week before, sold the place to a purchaser
who knew that the creditors of his grantor were about to at-
tach it. It was held that there had been no abandonment,
and that the sale was without fraud.* But the leasing of a
store-house from year to year is abandonment of the home-
stead right.'
An insolvent's " business homestead " being attached, he
and his wife conveyed it to their son. No attachment lien
was created, for the constitution ordains that " no mortgage,
trust deed or other lien on the homestead shall ever be valid
•except for {)urchase-money therefor or improvements made
thereon." " There is no difference made between the part of
the homestead used by the family and that used for business.''
Such liens being void, they are not vitalized by the subsequent
divestiture of the homestead character.' The defendant may
plead his exemption against such attachment and prevent the
dine V. Upton, 56 Tex. 330 ; Griffle ^ Oppenheimer v. Fritter, 79 Tex.
V. Maxey, 58 Tex. 314. 99 ; Duncan v. Alexander (Tex.), 18
1 Citing Beard v. Blum, 64 Tex. 59. S. W. 817.
2 Citing Blum v. Merchant, 58 Tex. « Const, of Texas, art 16, sec. 50.
400. ' Willis V. Mike, 76 Tex. 83.
» King T. Harter, 70 Tex. 581. 8 lb,; Inge v. Cain, 65 Tex. 80.
* Scheuber v. Ballow, 64 Tex. 166.
254 EXEMPT BUSINESS PLACES.
maturing of the lien by judgment — otherwise he risks being
treated as having waived his exemption.
A gambling-house is not a " business homestead," though
conducted by the head of a family.' For the word lawful
must be understood to qualify the term used, so that only
law'ful " business homesteads " are exempt ; just as the word
family^ when occurring in statutes, means a legally consti-
tuted family.^
§ 10. Several Business Callings.
Suppose the head of a family has more than one calling and
carries all on in his business house, will that be countenanced
by the courts under the section of the constitution copied
above?
An instance is given of one who had several callings, pursu-
ing all of them for a livelihood. He was a notary, convey-
ancer, postmaster and mayor of his town. The court, in
treating his peculiar case, said : " We cannot see that' this
fact (multifarious employments) should militate against his
rights to have some place protected by law from forced sale
where he can do business and support his family. It may be
asked, however, should he have more than one such place, or
should he have several places protected for several avocations?
Could he legally claim one house exempt for the transaction
of his business as mayor and deputy postmaster, and another
as a notary public and conveyancer? We must answer this
question in the negative. But we are met by the fact in this
case that these two houses are connected by arch wajrs through
the partition wall running between them, from which it is
suggested that there are not two distinct places used in the
exercise of the several callings. We do not think that the
fact that the houses were connected by these openings should
necessarily control the case. Suppose a man should in this
way try tp protect a block of business houses by doing a con-
veyancing business in one corner of them. This would be an
absurdity ; it would be too unreasonable to admit of discus-
sion. The law is intended as a protection to a fair and reason-
able claim falling within its provisions; not an unfair and
unreasonable claim." The conclusion was that the claimant
1 Tillman t. Brown, 64 Tex. 181. ^Ante, ch. Ill, § 8, p. 7.
SEVERAL BUSINESS CALLINGS. 255
should^ be protected in one of the buildings only, where he
might prosecute more than one calling.'
Where unity of homestead is maintained but shops allowed
thereon in which heads of families prosecute their callings,
which is generally allowed in all the states, there can be no
objection that a lawyer is also a notary and conveyancer, at-
tending to the three callings in his one office in his residence
or on the home premises ; that an insurance office and a real
estate office are comljined in one and employed by the house-
holder in the prosecution of two agencies ; that a barber who
is also a cupper (as formerly it was common), has his shop in
his homestead yard, and the like.*
1 Pfeiffer v. McNatt, 74 Tex. 640.
* See, further, on topics slightly touched in this chapter, more extended
treatment in others :
On exemption of crops, ch. XXV, § 7.
On exemption of partnership interests, ch. IV, § 14.
On claiming in attachment cases, ch. X, § 7 ; ch, XXIII, §§ 17-19 ; ch.
XXVIII, §§ 1, 2, 8.
On fraud upon creditors, ch. XVL
On limitation to one homestead, oh. VII, § 1.
CHAPTEE IX.
QUASI-ESTATE OF HOMESTEAD.
1. Qualification of the Legal Title.
3. Defeasible but Indeterminate
"Estate."
3. Similar to Dower.
4. Right of Occupancy Called an
" Estate."
5. The Right and the Estate Com-
pared.
§ 6. The Right Not Strictly an Es-
tate.
7. New Features but Not New
Title.
8. Trust Estate.
9. Qualified Title.
10. Exemption and "Estate of
Homestead."
§ 1. Qualification of the Legal Title.
Estate of homestead is a term that has come somewhat into
use, though it is eschewed by the courts in most of the states.
If employed only in the sense in which we may speak of dower
as an estate, meaning, for instance, that it is an estate for life,
or for years, it may not mislead. If, on the other hand, we
use the term as though it designated a new kind of estate dis-
tinguishable from those of freehold long established, we may
create confusion if we do not lead to error.
The estate in fee may be qualified by restraint of alienation
and of testamentary disposition, and may be clothed with cer-
tain immunities. The estate for life, of a widow, may be
qualified or absolute; may be defeasible by remarriage or
non-occupancy. The estate for years, of a minor, may be sub-
ject to conditions.
The qualifications or conditions, affecting the tenure, do
not, in any case, constitute a distinctive "estate of home-
stead " to be classified among freehold estates as a new spe-
cies. The privileges, accorded by law to the beneficiary claim-
ing them, attach to any title by which he may hold — even to
leasehold. Exemption of realty from forced sale does not
differ in character from exemption of chattels from such sale ;
yet who would claim an estate in personal property? or con-
sider it, therefore, analogous to an estate? Who would claim
homestead estate in his household goods?
QUALIFICATION OF THE LEGAL TITLE. 257
Paradoxical as it may seem, one may have a home in mov-
able property, such as a house on wheels, a wharf-boat in
which a family permanently abides — perhaps in a floating
dwelling moored from time to time to the shore — possibly in
any home having no "local habitation." Take a house on
wheels; there can be no "homestead estate" in it, but it may
be exempt under the homestead law, though it is , a chattel.
" House is necessarily embraced in the word homestead.^ If
the head of a family owns a house and no interest or estate
in the land on which it stands, the house is a chattel. If he .
occupies it with his family, ijt is their home. He may be com-
pelled to move it from one lot to another as fast as Ipgal pro-
cess can oust him, still, though ambulatory, unsatisfactory, and
in all its appointments mean.; though it advertises the thrift-
less poverty of its proprietors, and is a caricature of the
princely possibility of the exemption laws, it is the home of a
family, and is embraced in the spirit and purpose, if not the
letter, of the constitution." ^ Such a novel, migratory', chattel
home might exist in any state, and would be protected under
the homestead laws of several, even perhaps of some which
recognize the homestead right as a peculiar and unique " es-
tate of homestead." Its introduction here may serve to show
that homestead is not always an estate of any kind.
But it is said in the same state in which the above decision
was rendered : " The homestead right when fixed is an estate
in the land — it is more than a mere privilege of occupancy.
The land on which the estate has been fixed is exempt from
execution, nor can it be a subject of mortgage by its owner.
The creditor has no rights in it nor to it as a. security ; nor is
he defrauded by the debtor holding it or by any disposition
he may make of it." '
What kind of an estate in land ? It is one in fee, or for life, '
or for a term^ or at wiU : not a new kind of estate in land.
The estate of homestead has no independent existence, apart
from the title.* However, it resembles an estate in some re-
spects : hence the title of this chapter.
1 Franklin v. Coffee, 18 Tex. 417. SHargadine v. Whitfield, 71 Tex.
See Scott v. Dyer, 60 Tex. 135. 483-^5.
2 Cullers f. James, 66 Tex. 498. * Kitterlin v. Milwaukee Ins. Co.,
134 111. 647.
17
258 QUASI-ESTATE OF HOMESTEAD.
§ 2. Defeasible but Indeterminate '' Estate."
Under a statute exempting homestead to a certain value
when owned and occupied by the beneficiary as his family
residence, or rightfully possessed as such ; and containing the
exemption to his widow and minor children during their oc-
cupancy of the premises ; and forbidding the husband to con-
vey without joinder by his wife, it was held that these pro^
visions created a new kind of estate, resembling freehold,
defeasible but indeterminate.' It was held to be such a free-
hold estate " as will avail the tenant in defense to a writ of
entry." ^ " If the tenant seek to defeat the suit by justifying
his acts of possession under some right less than the entire
freehold, he must specify the right or title upon which he re-
lies, and disclaim it as to the residue." '
Such " estate of homestead " is not disposable by will; * and
the court, so holding, evidently meant that the realty, on
which the exemption right rested, would not be affected by
last testament so as to defeat the exemption provisions for
the widow and children of the testator. This is a qualifica-
tion of the estate in fee, or for life, or for years, as the case
may be : not a new kind of estate based on the limitation sug-
gested. This restriction no more justifies the use of the novel
term than others which usually accompany the homestead
privileges.
In the language of Judge Gray: "A right of homestead
under our statutes [those of his state] is a freehold estate
defeasible, during the life of the householder, only by deed in
which his wife, if any, or, if she is insane, her guardian joins,
or by acquiring a new homestead. . . . The title in the
homestead estate after the death of the husband and father,
and so long as either the widow remaining unmarried or any
child under age continues to occupy it, most nearly resembles
iBrettun v. Fox, 100 Mass. 235
Kerley v. Kerley, 13 Allen, 287
Woodbury . v. Luddy, 14 Allen, 1
^Ib., citing Dunbar v. Mitchell, 13
Mass. 374 ; Russell v. Lewis, 2 Pick.
508 ; Wheelright v. Freeman, 12 Met
Silloway v. Brown, 12 Allen, 33 ; Du- 154 ; Johnson v. Raynor, 6 Gray. 107.
lanty v. Pynchon, 6 Allen, 510 ; Doyle See Castle v. Palmer, 6 Allen, 401 ;
V. Coburn, 6 Allen, 71 ; White v. Parks v. Reilly, 5 Allen, 77 ; Waloot
Rice, 5 Allen, 73 ; Smith t. Provin, 4 v. Knight, 6 Msiss. 418.
Allen, 516. < Brettun v. Fox, 100 Mass. 235.
2 Swan V. Stephens, 99 Mass. 7.
DEFEASIBLE ETDT INDETERMINATE " ESTATE." 2^^
that of husband and wife at common, law under a grant to
both of them, by which they become seized not of moieties,
but of the entirety, jje?" tout et per my, and neither could dis-
pose of any part without the assent of the other. But, al-
though the title in the homestead estate is in the widaW
during widowhood and in all the minors respectively while
under age, the right of possession and enjoyment is in those
only of the family who remain in the occupation of the home-
stead. This is the only construction which will reconcile all
the provisions of the statute, and, while avoiding the anomaly
and inconvenience of frequent changes in the title of the real
estate upon any child's temporary departure from or return to
the homestead, will carry out the purpose of securing one
home for the family, free from the intrusion of creditors or
strangers." '
Applying the principle, the learned judge says : " In this
case, the only minor child having voluntarily left the prem-
ises and taken up her abode elsewhere with her guardian,
though she still had a joint title with the widow in the home-
stead estate, yet, while not living thereon, had no right of
possession, and could not maintain an action in the nature of
trespass for an entry upon and occupation of the premises.
We need not therefore consider the embarrassment attending
the maintenance of such an action by a ward against her
guardian. So long as the child resides elsewhere, the exclu-
sive right of possession was in the widow, who might main-
tain an action against a trespasser. The guardian of the child
had no better right to the use or occupation than any stranger.
The result is that this action cannot be maintained in the
joint names of the widow and the minor child. But the writ
may be amended by striking out the name of the child, and
the wid,ow will thereupon be entitled to judgment against the
defendant." ^
It will be seen, by inspection of the foregoing, that estate
in homestead, as distinguished from the estate out of which it
is carved, is "the right of possession and enjoyment" "in
1 Abbott V. Abbott, 97 Mass. 136, , ^Ib., 139, 140, citing on trespass for
citing, on the nature of the joint entry, French v. Fuller, 23 Pick. 104.
possession, 2 BLCom. 183; Shaw v.
Hearsey, 5 Mass. 533.
260 QUASI-ESTATE OF HOMESTEAD.
those only of the family who remain in the occupation of the
homestead."
It will be seen, further, that distinction is made between
" the title in the homestead estate " and such right of " posses-
sion and enjoyment." The non-occupying minor did not lose
her title to the property by losing her " right of possession
and enjoyment," nor did she lose her " estate in homestead."
The court does not seem to have thought that the minor
had forfeited her estate in the homestead, for it is intimated
that she might return at will, and that the widow was in pos-
session — one for all — during the girl's absence. So this " es-
tate " was something different from the " right of possession
and enjoyment," and also different from title to the land.
There might have been adult heirs who would have shared in
the title to the land, but not in thie " estate in homestead,"
nor in the " right of possession and enjoyment," There seems
to be some confusion in these terms thus brought together.
" The right of homestead " is first declared to be a " freehold
estate defeasible during the life of the householder " except in
certain ways; then we have the distinctions above pointed
out, and finally it is said : " This is the only construction
which will reconcile all the provisions of the statute." '
§ 3. Similar to Dower.
The right or interest which is awarded the widow as her
homestead from her husband's estate is frequently ca,lled an
" estate of homestead " by the court from which the above
decisions are cited.^ The sense is much the same as when we
^ay " estate of dower," meaning the widow's life estate in her
portion of her deceased husband's landed property, and not
meaning a new kind of title. In some states she takes abso-
lutely ; in others she has no property right of homestead but
only the personal privilege of occupancy which she cannot
convey.
By a statute giving the right of homestead to a wife, which
may, be set off and assigned her during the life of her hus-
band, it was held that such right does not constitute a vested
1 16., p. 139. V. Chaoe, 11 Allen, 194 ; Monk v. Ca-
2 Paul V. Paul, 136 Mass. 386 ; Cow- pen, 5 Allen, 146 ; Weller v. Waller,
drey v. Cowdrey, 131 Mass. 186; Fps- 131 Mass. 446.
ter V. Leland, 141 Mass. 187 ; Mevcier
SIMILAR TO DOWEK. 261
estate or interest in the land, prior to the assignment ; that
her right is inchoate and similar to that of dower ; that no
estate technically rests in the wife ; and that she has no such
right or intent as can be set up in defense to an action of tres-
pass quare dcmsum f regit. Under a former statute she could
not set up such interest as an estate in land in defense of such
an action, though the homestead had been assigned.'
In the case first cited above the court said: "^The wife can-
not be considered, at least while her husband lives, as having
any vested estate in the premises until her homestead has
been assigned her; till then she has merely an imperfect, an
inchoate right, which is not assignable, and is not a vested
estate. . . ." Evidently, the term estate is employed in the
sense in which it would be used in speaking of dower. The
court is not to be understood as implying that the wife, after
homestead has been assigned her, would have any estate in it
of a character distinguishable from estate for life. The quali-
fications imposed by the homestead law do not make her
vested right a new and peculiar estate thus distinguishable ;
as the law conferring dower does not make such right an
estate outside of the usual classification of estates. The wife's
or widow's estate in the homestead, like her estate of dower,
is a life estate of freehold ; and the former maj' be an estate
for years in leasehold, under some statutes.
The two statutes above cited have been thus compared, with
reference to the homestead right of the widow. In the first :
" Her interest was a mere personal right to occupy during her
life. It was no estate that she could transfer to another."
In the second : " The homestead right was secured to the
wife, widow and children of every person owning and occu-
pying a homestead, for and during the life of such wife or
widow and the minority of such children. The homestead
right thus exempted js not the entire estate in the homestead,
but a life estate merely." ^
1 Tidd V. Quinn, 53 N. H. 341 ; Gen. N. H. 40; Strachn v. Foss, 43 N. H.
Stat. N. H., oh. 134, § 1; Acts of 43 ; Horn v. Tufts, 39 N. H. 484 ; Gun-
1868, ch. 1, § 33. See Gen. Laws N. H. nison v. Twitchell, 38 N. H. 63;
1878, ch. 138, p. 330 ; Barney v. Leeds, Fletcher v. State Bank, 37 k H. 391 ;
51 N. H. 353; Judge of Probate v. Atkinson v. Atkinson, 37 N. H. 434;
Simonds, 46 N. H. 368 ; Bennett v. Norris t. Moulton, 34 N. H. 397.
Cutler, 44 N. H. 70 ; Header v. Place, "- Cross v. Weare, 63 N. H. 125, qwoi^
43 N. H. 307 ; Foss v. Strachn, 43 ing from the above cited cases in 46
262 QTTASI-ESTATE OF HOMESTEAD.
Yes, the widow has life-estate, the minor heirs an estate for
years, both in the freehold estate ; but there is no " estate of
homestead " to be distinguished from these as a separate class ;
and the court did not so intend. The term " estate in home-
stead" has been thus frequently applied,^ but not with strict pro-
priety when there was no property right ; a mere privilege.
§ 4. Right of Occupancy Called " Estate."
The right to the use and occupancy of the homestead is a
substantial interest, which, by the laws of most of the states,
inures to the benefit of the surviving members of the benefi-
ciary's family. It is this substantial interest which is fre-
quently called " estate in homestead." ^ It is usually an estate
for life of the surviving spouse, and an estate for years of the
minor children. It is generally made conditional — depend-
ent upon occupancy, but may be absolute, and is so under sev-
eral homestead systems, so that the holder of the estate is
not confined to a particular use of it.'
The survivor stands in place of the deceased owner, having
the same rights, and may retain or dispose of the estate in
the property as the owner could have done, to the extent of
that estate, when the statute declares him or her " entitled
to hold " it, for the term designated. The meaning is " the
right to possess the property in virtue of a legal ownership,
and is not limited to an actual personal occupancy ; and un-
less the term ' homestead ' itself implies a condition, the ten-
ure is that of an ordinary tenant for life. . . . The sur-
vivor takes a life estate in the homestead premises analogous
to that of dower." *
and 53 N. H. See Gen. Laws of N. H. Skouton v. Wood, 57 Mo. 380, modi-
1878, ch. 138, p. 380. See Batchelder fied by Poland v. Vesper, 67 Mo. 737.
V. Fottler, 63 N. H. 445, overruling 2 1 Wash, on Real Prop. 343.
Spaulding's Appeal, 53 N. H. 336. ' Holbrook v. "Wightman, 31 Minn.
1 Otto V. Sprague, 37 Kas. 630 ; Citi- 168, 170^ decided under statute since
zens' Bank v. Bowen, 85 Kas. 117 ; amended by Laws 1889, cb. 46, § 63
Wicks V. Smith, 31 Kas. 413 ; Hixon et seq.
V. George, 18 Kas. 353 ; Moore v. * Holbrook v. Wightman, 31 Minn.
Reaves, 15 Kas. 150 ; Brandon v. 171-3, modifying l^aton v. Robbins,
Brandon, 14 Kas. 343; Helm v. Helm, 39 Minn. 337, and saying: "Eighty
11 Kas. 19; Vandiver v. Vandiver, 30 acres, and the dwelling-house there-
Kas. 501. See Jenness v. Cutter, 13 on, owned and occupied, etc., consti-
Kas. 516; Herrold v. Keen, 58 Cal. tute the exempt homestead. This
446, and casas therein cited. See the law transmits to the survivor for
THE EIGHT AND THE ESTATE COMPAEED. 263
; If a surviving hasband or wife has an unconditional life es-
tate in the homestead, the fee may be administered upon as a
part of the decedent's estate when it is not in the survivor.
This life estate, being unconditional, need not be occupied by
minor heirs, nor even by the surviving spouse, in order to pre-
serve its exemption. Being owned absolutely for life, it may
be alienated at the will of the owner. The exemption priv-
ilege, however, would not pass to the grantee with the life
estate. The title would be shorn of this immunity.'
The occupant owning a homestead may not hold the legal
title,- yet be a beneficiary within the provisions of the law.^
§ 5. The Right and the Estate Compared.
The study of the subject in hand will be greatly facilitated
by reference to the decisions of a state which, under one stat-
ute, denied " estate of homestead," but, under a later one em-
ploying the term, maintain it. Of the homestead right, under
-the old law, it is now said :
" A right so precarious and restricted was not only to some
■extent anomalous in the law of real property, but it failed to
meet the varied wants and necessities of homestead occupants
and their families, growing out of the ownership of such an
interest. Temporary removals, even, could not safely be made
without giving color to the claim of abandonment ; and, if the
•occupant did not happen to own the estate to which the right
life, not merely to retain it as a to pay debts due by the general es-
family residence, nor as long as it tate of the decedent The court said
shall remain a homestead." Ed- in deciding McCarthy v. Van Der
wards' Lessee v. Darby, 12 "Wheat. May, speaking of a surviving wife's
306, 310 ; Dwarris on Stat. 179, note; homestead right : " This estate is an
Wilder v. Haughey, 21 Minn. 101. absolute, unconditional estate for Ufe.
1 McCarthy v. Van Der May, 43 It is not qualified by or subject to a
Minn. 189 ; Holbrook v. Wightman, distinct or independent right of oc-
31 Minn. 168, both under old statutes; cupancy by the minor children. The
Laws 1876, ch. 37, since amended ; survivor has the sole right to the use,
Lawsof 1889, ch. 46. By the homestead enjoyment and disposition of such
law of Minnesota, in Gen. Stat. 1878, estate during his or her life. . . .
ch. 68, § 1, the right of the wife and "We need not consider . . . the
of minor children depends upon their effect of the act of 1889."
occupancy. The Laws of 1889 affect ^ Jelinek v. Stepan, 41 Minn. 413 ;
ihe estate in fee so that it is no longer Hartman v. Munch, 31 Minn. 107;
.an asset of the decedent's estate to be "Wilder v. Haughey, 31 Minn. 101.
administered, and cannot now be sold
264 QUASr-ESTATE OF HOMESTEAD.
attached, however valuable he may have rendered it by im-
provements, and however imperative his necessities might re-
quire a change of residence, he could not sell or otherwise
dispose of it to any one except the owner of the estate, who
might. allow him something or nothing for it, just as he saw
fit. The homestead occupant thus circumstanced was placed
completely at the mercy of the owner of the legal title.
" Again, the right of the surviving husband or wife to the
homestead might be defeated altogether, by partition proceed-
ings at the suit of the heirs, at that advanced period of life
when the comforts of a home are most needed. With a view
of remedying these inconveniences and manifest defects in the
prior law, and placing the right of homestead upon a substan-
tial and Solid basis, the legislature, in 1873, passed an amend-
atory act, radically changing some of the provisions of the
homestead law," providing " that every householder having a
family ' shall be entitled to an estate of homestead, to the ex-
tent in value of one thousand dollars, in the farm or lot of
land and buildings thereon, owned or rightly possessed, by
lease or otherwise, and occupied by him or her as a residence ;
and such homestead, and all right and title therein, shall be
exempt from attachment, judgment, levy or execution, sale
for the payment of his debts, or other purposes, and from the
laws of conveyance, descent and devise, except as hereinafter
provided.' . . . Since this estate is measured exclusively
by the value of the premises themselves, it follows that where
the owner of the fee and the owner of the homestead is the
same person, such owner cannot have any disposable interest
in the premises independent of the homestead, where the total
value does not exceed one thousand dollars ; and since the
homestead, in such case, comprises the entire interest, it fol-
lows that any conveyance by the owner which does not con-
form to the requirements of the statute with respect to the
conveyance of homesteads, wiU be inoperative and void as to
such homestead. . . .
" The right of homestead having been . . . enlarged
into an estate, it follows that, like all other estates, it can have
no separate existence independent of the title which consti-
tutes one of its essential elements. Every owner of a home-
stead, under the present law, has no estate in the premises.
THE EIGHT NOT STEICTLy AU ESTATE.
265
either in fee, for life or years, to the extent of $1,000. Where
the head of the family, having an estate in fee in the home-
stead premises, dies, and the right of homestead devolves upon
the surviving husband or wife by operation of law, a life es-,
tate is carved out of the fee for the purposes of such estate of
homestead, and the heirs take a reversion in fee only, expect-
ant upon the termination of such life estate! In like manner,
where the homestead is cast upon the children of the family,
an estate for years is, by operation of law, carved out of the
fee for the purposes of such estate of homestead in the chil-
dren. These rights, flowing from the present statute, are anal-
ogous to the common-law doctrines by which the inheritance
of the heirs is subjected to the dower of the wife and the
curtesy of the surviving husband." '
§ 6. The Right Not Strictly an Estate.
The right of homestead, under the older legislation, was not
an estate in land. It was not alienable so as to become vested
in a grantee. It was a right to enjoy a homie free from lia-
bility to forced sale to pay the debts of the owner of the land.
' Mr. Justice Mulkey, for the court,
in Browning v. Harris, 99 111. 460-3.
Further to show that homestead
estate now exists in Illinois, White
V. Plummer, 96 111. 394, holding that
a surviving wife has such homestgad
estate that she may rent it. Eldridge
V. Pierce, 90 111. 474, holding that the
homestead estate embraces the entire
interest up to $1,000. Leupold v.
Krause, 95 111. 440; Hartman v.
Schultz, 101 III. 437 ; Watson v. Saxer,
102 111. 585 ; Rice v. Bice, 108 IlL 199 ;
The People v. Stitt, 7 111. Ap. 294;
Ryhiner v. Frant, 105 111. 826; Kim-
brell V. Willis, 97 111. 494; Cowdrey
V. Hitchcock, 103 111. 262 ; Moriarty
V. Gait, 113 111. 378 ; Eaber v. GuBd,
110 111. 581; Rock v. Haas, 110 111
528 ; Trowbridge v. Cross, 117 111. 109
Lewis V. McGraw, 19 111. Ap. 313
Hotchkiss V. Brooks, 93 111. 387
Hartwell v. McDonald, 69 111. 393
Conklin v. Foster, 57 111. 104 ; Tom-
lin V. Hilgard, 43 111. 300; Trickey
v. Schlader, 52 111, 78; McCIurken v.
McClurken, 46 III 337 ; Jones v. Gil-
bert, 135 111. 27; Bliss v. Clark, 39
111. 590; Conroy v. Sullivan, 44 IlL
451 ; Turner v. Bennett, 70 111. 263.
By the Act of 1873 (Laws of Illinois),
p. 99, it was enacted, "That every
householder having a family shall
be entitled to an estate of homestead,
to the extent in value of $1,000, in
the farm or lot of land and buildings
thereon, owned or rightly possessed,
by lease or otherwise, and occupied
by him or her as a residence, . . ."
and it was made exempt from sale
for debt and from the laws of con-
veyance, descent, and devit,j, with
certain exceptions. By the Act of
1887, it is provided that, " No release,
waiver or conveyance of the estate
so exempted shall be valid " untess in
writing signed by the husband and
wife, duly acknowledged, etc., or by
order of court in case of a minor's
releasing, etc.
266 QUASI-ESTATE OF HOMESTEAD.
with restraint upon his power of alienation. It was a right
which could be waived, abandoned or terminated in modes
provided by law. Whether the legal title was in the husband
or the wife, the modes were applicable.
This mere right of homestead enjoyment was not an estate;
it was not, technically speaking, a right or title or interest to
real estate, or in it. The owner's title for years, for life, or
forever, was not divested by subjecting it to the family right of
homestead enjoj'^ment. His title was not afifected by the re-
straint upon alienation. Where he was allowed to sell, it
must be subject to the homestead right, which was held to be
an immediately irremovable incumbrance (unless the special
mode prescribed by statute was employed), but which did not
diminish his title.^
In some principal aspects, the older legislation, under which
the courts did not recognize "estate of homestead," were not
materially different from the present in which the term is
nominally employed, and to which the courts attach impor-
tance. The act of 1851 provided: "There shall be exempt
from levy and forced sale under any process or order from
any court of law or equity, the lot of ground and the build-
ings thereon occupied as a residence and owned by the debtor,
being a householder and having a family, to the value of one
thousand dollars ; . . . and no release or waiver of such
exemption shall be valid unless in writing, subscribed" by
husband and wife and acknowledged as in conveyances of real
estate " as conditions to the alienation of the homestead."
The term " estate of homestead " is not employed, but terms
nearly equivalent are used. The liability of any excess of
value beyond the limitation is the same under both that and
the present law.^ It was liable to liens under both.' And by
simple comparison of the two acts (that of 1851 and that of
1 Warner v. Crosby, 89 111. 320, 498 ; Shaoklef ord v. Todhunter, 4 111.
336-8 ; Hewitt v. Templeton, 48 111. Ap. 371 ; Brown v. Keller, 33 111. 151 ;
367; McDonald t. Crandall, 48 III. Blue v. Blue, 38 111. 9.
331 ; Coe v. Smith, 47 111. 285 ; Hart- « Watson v. Doyle, 130 111. 415 ; Mc-
well V. McDonald, 69 111. 293 ; Daw- Donald v. Crandall, 43 111. 331 ; Clark
son V. Hayden, 67 111. 58 ; Finley v. v. Crosby, 6 111. App. 103 ; Haworth
McConnell, 60 111. 859 ; Boyd v. Cud- v. Travis, 67 111. 303; Eldridge v.
derback, 31 111. 113 ; Pardee v. Lind- Pierce, 90 111. 478 ; Hotchkiss v.
ley, 31 111. 174; Allen v. Hawley, 66 Brooks, 93 111. 386.
III. 164; Deere v. Chapman, 85 111. 3 Moriarty v. Gait, 118 111. 377.
THE EIGHT NOT STKIOTLT AN ESTATE. 267
1873) with each other, and both with intervening acts, it will
be seen that there is no very radical change relative to the
main subject, exemption.
Justice Davis, of the nature of the homestead right, said :
" It cannot in an absolute sense be said to be an estate in the
land ; the law creates none and leaves the fee as it was before,
but in substance declares that the right of occupancy shall not
be disturbed while the homestead character exists. "While this
continues, the judgment creditor cannot lay his hands on the j
property, nor the husband sell it without the consent of his
wife, and not then without an express release, on the part of
both, of the benefits of the law. The purpose of the legisla-
ture was to secure a homestead for the family, and the dispo-
sition of the property, either by judicial sale or private con-
veyance, was left unaffected except so far as was necessary to
accomplish this object. As long as the property retained its
peculiar character, it was within the protection of the law ;
but the exemption from sale under execution or by deed (ex-
cept with homestead waiver) could be lost by abandonment or
surrender; that is to say, by acts in pais."
. . . As land including a homestead " can be sold by the
owner subject to the homestead, so a judgment is a lien on
the land subject to the homestead, and the land or fee can be
sold under execution subject to the homestead ; and the pur-
chaser, as in the case of a deed by the debtor without the
Avaiver, has the absolute title when the, homestead right
ceases." '
This opinion of Judge Davis was approvingly quoted in an-
other state (whose statutes on this subject were similar to
those which he had expounded), in the following language :
" This has been the uniform holding of this court up to the
present time ; . . . that the fee remained unaffected ; or,'
rather, not divested out of the owner, or vested in those claim;
ing exemption, and was therefore liable for the satisfaction of
debts of the owner, subject to the right of homestead." ^
1 Black V. Curran, 14 Wall. 463, Donald, 69 III 293, in which it is said
468-9, Davis, J., construing 111. Stat. ; that the United States Supreme Court
rendered, 1871 ; citing Hewitt v. in Black v. Curran, supra, mistook
Templeton, 48 111. 367 ; Coe v. Smith, the Illinois statute.
47 111. 235. Compare Hartwell v. Mo- 2 Flatt v. Stadler, 16 Lea, 371 ; oit-
268 QUASI-ESTATE OF HOMESTEAD.
The legal estate of the head of the family. may be sold for
his debts, while the homestead right of occupation and enjoy-
ment may remain to him and his family ; that is, the land may
be sold, subject to the homestead exemption right in that land ;
or, in yet other words, the reversion of the homestead may be
sold. Where such course is authorized, there is no inconsist-
ency in the co-existence of the legal estate, and what is called
the homestead estate, in the same real property.'
The exemption of real estate from sale under legal process,
during the life of the beneficiary and that of his widow, and
the minority of his children, With inhibition of alienation un-
less both the husband and wife join in the act, does not neces-
sarily preclude the sale of the reversion under legal process.^
§ 7. New Features but Not New Title.
Under the rulings of another state, the mere right of exemp-
tion, conferred by constitution or statute, is not an estate.
The assignment of homestead is to designate to what property
the exemption attaches ; not to confer estate upon any one.'
Yet, after such assignment, the property possesses new char-
acteristics which qualify it. It becomes the family homestead,
vested in the head of the family as the representative of the
members ; and they, with him, are the objects of the protec-
tion afforded by the exemption.*
Following the same line of argument where the home'stead
holder can convey the fee, the homestead right, in another
state, has been held a privilege and not an estate of home-
stead.'
ing Jones v. Eagland, 4 Lea, 543 ; heirs cannot divest themselves of
Gilbert v. Cowaij, 3 Lea, 303 ; Hicks their right Farrow v. Farrow, 13
V. Pepper, 1 Bax. 43. Lea, 120.
, » Gilbert v. Cowan, 3 Lea, 303 ; 3 Ex parte Ray, 30 S. C. 246 ; El-
' Mash V. Russell, 1 Lea, 543. liott v. Mackorell, 19 & C. 339 ;
2 Held under the constitution of Youngblood v. Lathen, 20 S. C. 370.
Tennessee, art. 11, § 11, and act of ■• Jjt re Kennedy, 3 8. C. 337 ; Howze
1879, that lands of debtor may be v. Howze, 3 S. C. 239 ; Ex parte Stro-
sold subject to right of homestead, bel, 3 S. C. 311. See Hardin v. Howze,
Flatt V. Stadler, 16 Lea, 371. See IS S. C. 74.
Black V. Curran, 14 Wall. 469. The ^in Kentucky, the owner of a
sale by the husband alone would not homestead may convey the fee. He
affect the wife's homestead right, may invest the price in a new home-
Ehea v. Rhea, 15 Lea, 537. Minor stead, preserving the exemption. At
NEW FKATUEES BUT NOT NEW TITLE. 269
In several states, the homestead right is liot treated as an
aflBrmative one but rather of negative character; an exemp-
tion rather than positive property right ; ' but the wife's home-
stead interest in her husband's dedicated property is held to
be real property within the meaning of the statute for the
redemption of property from tax sale.^ Her right is said to
be more like a vested interest or title than her dower right is
in his other realty.'
But her right of occupancy after his death is not a right in
his estate taken by inheritance, but merely a personal one un-
accompanied by title or interest, to or in the property.*
The nature of the homestead tenure has been stated sub-
stantially as follows : Where the homestead of a decedent who
owned the property continues to his widow for life and to
his children during- their minority, and then goes to his heirs
by the laws of descent, it is to be considered a particular es-
tate carved out of the estate proper, of the decedent. That
is, while in the hands of the widow and minors, it is such
particular estate. Its reversion to the heirs renders it quite
different from personal property exempted in their favor
which becomes theirs unqualifiedly.'
This " partipular estate " is nothing more than one for life
or for years carved out of the estate in fee. The court mak-
ing the -above statement has deprecated inquiry into the pecul-
iarities of title, as unprofitable and misleading, saying : " If we
look beyond the essential characteristics of a homestead . . .
and enter upon an inquiry as to the tenure upon which the
right of occupancy depends, we are sure to contravene this
his death, the homestead goes to his estate in fee in the realty set apart as
widow and children, with its exemp- a homestead from the property of
tion character retained. Indivisible the deceased debtor. Evans v. Evans,
property including a homestead may 13 Bush, 587; Pribble v. Hall, 13
be sold by order of court and $1,000 Bush, 66 ; Brame v. Craig, 13 Bush,
reserved for the debtor out of the 404.
price. Lear v. Totten, 14 Bush, 101 ; i Burns v. Keas, 21 la. 257 ; Robin-
Genl. Stat. Ky., ch. 38, art 18, §§ 13, son v. Bakgr, 47 Mich. 619 (11 N. W.
13. " This court has frequently held 410).
that the homestead right is not an ^ Adams v. Beale, 19 la. 61.
■estate in the land but a mere privi- 3 Chase v. Abbott, 30 la. 154.
lege of occupancy." Little's Guard- * Mahafly v. Mahaflfy, 68 la. 55.
ian v. Woodward, 14 Bush, 588. The s Hunter v. Law, 68 Ala. 365.
widow and children do not take an
270 QUASI-ESTATE OF HOMESTEAD.
policy " — the policy of the law in protecting and encouraging
homesteads.'
§ 8. Trust Estate.
The interest of the family in the property dedicated by ita
head has been declared a trust estate.
" The homestead estate, being set apart for the use and ben-
efit of the family, is in the nature of a trust estate; and when
it is sought to "subject the same to the payment of any
claim for which it may be liable, the party must file his peti-
tion setting forth the grounds of his claim, how and in what
manner the estate is liable, and the names of the cestmi que
trusts." ^
Considered as a trust estate, the equitable owners of the
homestead are the members of the family — the beneficiaries,
including the head^ The legal owner of the land on which
the homestead estate is based is the husband or wife, or both;
but neither could have homestead set apart in the land unless
there were a family. The number of the members is imma-
terial— there may be only the husband and wife — but there
must be a family, great or small, since it is for that, and that
only, the exemption right is created.'
Homestead and dower right do not attach to the naked
legal title in land held in trust.''
§ 9. Qualified Title.
The nature of homestead is virtually the same in all the
states where there is exemption of realty from execution, and
the restraints on rights of ownership usually attending it.
Some employ the term " estate of homestead," while others
use different ones, but everywhere it is true that government
confers no property, title or interest upon the householder, but
merely qualifies, or enables him to qualify, what he possessed
before. His fee remains his fee, shorn of its alienability to
some extent, and also of its disposability by will to some de-
gree. So, if his title is less than the fee. It will be observed
1 Tyler v. Jewett, 83 Ala. 93, 100, "Wilder v. Frederick, 59 Ga. 669. See
quoting Watts v. Gordon, 65 Ala. 546. Dewhurst v. Wright (Fla.), 10 So. 70a
See Discus v. Hall, 83 Ala. 159 ; Beard 3 Willingham v. Maynard, 59 Ga.
V. Johnson, 87 Ala. 729. 880, 333.
2 Wilson V. Rogers, 68 Ga. 549; ^ Rice v. Rice, 108 111. 300.
QUALIFIED TITLE. 271
that the quahfioations are all negative. The dedicated prop-
erty he cannot bequeath freely by testament, cannot sell by
his sole act, and his creditors cannot sell it for his debts.
These negative qualifications are generally made in the home-
stead states, though not without exceptions as to some of
these inhibitions. The positive statement of a statute that he
shall have estate of homestead forms no exception, for noth-
ing but restrictions and immunities are meant ; no positive
estate is conferred; the qualifications of title already held are
negative, as in the states where such estate is not recognized.
It may be said to be as nearly uniform as anything in home-
stead law is, that the legal owner of the homestead has his
interest affected negatively only when he dedicates it and ac-
cepts the conditions.
The interest of the minor, while his parents live, is no prop-
erty-right in or to the homestead. They can dispose of it
■without affecting any right of his which he can assert, or his
next friend or the probate or orphans' court can assert against
their action. After his parents' death, leaving the property
unsold, he cannot make any disposition of it whatever. Adult
heirs are held aloof while he occupies the premises. If there
is any estate of homestead now, held by him in any way dif-
ferent from that held by his co-heirs who are adults, it can be
nothing but the defeasible right of occupancy for a term of
years — and this can hardly be termed an estate in contradis-
tinction from the legal estate which all the heirs in common
hold.
The widow's homestead comes more nearly to the require-
ments of any estate than those already considered. It is usu-
ally held for life; defeasible by abandonment, generally — by
remarriage, less generally — by neither, in a few states. There
is nearly as much plausibility in calling her limited homestead
interest an estate as there is in attributing the term to her
dower right. It has negative qualities which the latter wants :
non-liability for debt ; and non-alienability, for the most part ;
but there is positivity in the creation of this new twin-sister
to dower. So the widow's right may be called a life-estate
without violence to any principle.
The right to occupancy of the homestead, or the receipt of
the rents and profits, cannot be alienated by the widow, though
272 QUASI-ESTATE OF HOMESTEAD.
it may be abandoned by her. She cannot sell ; she cannot
abandon the rights of the minor children ; but she can give
up her own right, and an abortive attempt to alienate it may
be abandonment in the eye of the law.
Her right, under the provision above mentioned, is lim-
ited to the usufruct (wholly hers when there are no minor
children), free from liability to forced sale. This continues
during her life. The purpose is to give her a home and sup-
port : so she need not occupy the premises to preserve their
inviolable character but may lease them, since she may thus
make them more conducive to effect the benevolent purpose
of the law towards her. She is not obliged to cultivate a
farm or live upon it to preserve its character as exempt land.
If she could legally alienate the homestead property, the ex-
emption benefit would not appertain simply to the homestead
right but would be a reservation of land from forced sale
without regard to its use. If she attempts to convey the prop-
erty, she forfeits her homestead right as in case of direct aban-
donment.'
The homestead for the widow may be set apart from any
portion of the decedent's estate which is suitable for the pur-
pose, though it may have been used by him as a place of busi-
ness.^ As to suitability for the purpose, the court .trying an
appealed case will presume the evidence to have been suffi-
cient to establish it and thus to support the order setting apart
the property.'
§ 10. Exemption and "Estate of Homestead."
A husband and wife resided upon a lot in San Francisco, in
a dwelling situated on the front part of it. The property was
owned by both in community. The wife had it recorded as
their homestead. Afterwards they built another dwelling on
1 Garibaldi v. Joues, 48 Ark. 231 ; of Busse, 35 Cal. 310 ; and distin-
Phipps V. Acton, 12 Bush (Ky.), 875 ; gui^hing In re Noah, 73 CaL 590.
Locke V. Rowell, 47 N. H. 46 ; Wright ' In re Sharp, supra; Ferrer v.
V. Dunning, 46 111. 271 ; Whittle v. Insurance Co. 47 Cal. 429 ; Livermore
Samuels, 54 Ga. 548; Ormanv.Orman, v. Webb, 56 Cal. 492; Tompkins v.
26 la. 361. See Craddook v. Edwards, Weeks, 26 Cal. 58 ; In re Bowman,
81 Tex. 609. 69 Cal. 345 ; Bunting v. Beideman, 1
2InreSharp,78Cal.483, ajoproOTJigf Cal. 182; Cal. Code Proc, § 1465 et
In re Bowman, 69 Cal. 245; Estate leq.; Civ. Code, tit. 5, div. 2.
EXEMPTION AND "ESTATE OP HOMESTEAD." 273
the rear part of the lot and rented it to a tenant. Then a
judgment creditor of the husband levied upon the whole lot.
The wife enjoined .the sale, alleging that the whole property-
was within the value of the homestead limit — five thousand
dollars. By agreement the whole case seems to have been
disposed of on the trial of the injunction.
It was held that while the declarant of homestead cannot
include two dwellings in his declaration, if he subsequently '
add another to the one he ha,s legally dedicated and occupied,
the effect will be not to vitiate the property first declared upon
when the second house stands on a part of the dedicated
ground. The whole will not thus be subjected to execution
for debt. And it was held the second house, though rented
to a tenant, will not be so subject, unless it enhance the value
of the whole property beyond the statutory limit ; or, rather,
unless the property be worth five thousand dollars without
the new house and the ground it stands upon. The method
of segregation, in such case, is pointed out by statute.
The following extract is from the opinion of the court :
" The whole lot being adapted to use as a homestead, and act-
ually used as such at the time of the dedication, it then be-
came as an entirety affected vrith the homestead character.
And this is so without regard to the value of the lot, either at
the time of its dedication or at any subsequent period. There
is no statutory limit as to the value of the property which
may be selected and upon which the character may be im-
pressed. When the attributes of residence and selection ac-
cording to law exist so as to express its essence, the homestead
becomes an estaU in the premises selected, exempted by law
from forced sale. They may be of greater or less value than
the interest in them exempted by law. The excess, if there
be one, though it may be homestead in fact, is subject to the
jti,s disponendi of the owner and the claims of his creditors.'
But it does not follow that the excess in value is subject to
seizure and sale at the instance of an execution creditor. If •
the property so impressed with the character of homestead is
worth more than the homestead exemption, and the creditor
desires to avail himself of that excess, the proceedings pro-
1 Citing Ham v. Santa Rosa Bank, 62 Cal. 1C9.
16
274 QUASI-ESTATE OF HOMESTEAD,
vided by the code ' must be taken for the admeasurement and
application of such excess.^ It follows that a sale, unless made
under order of court, and for purposes of segregation of the
excess as provided in the sections referred to, would convey-
no title. But though the sale of a homestead under execution
conveys no title, it may create a cloud and involve the home-
stead claimant in litigation, and will therefore be enjoined.'
" So far as we have been able to discover, no case has be-
fore arisen under our statutes where the precise question now
submitted has been presented. In every case whei;e it has
been held that a second tenement used for purposes other
than the residence of the family has operated to prevent the
homestead character from attaching to such second tenement
-and the land used in connection therewith, such second tene-
ment existed at the time of the attempted homestead selec-
tion, and was not one constructed after the homestead charac-
ter had attached to the land. Here the homestead character
had attached before the second building was constructed, and,
reasoning from the analogy of the statutes and of the cases
cited, the construction of such a building was not an act which
relieved it of the homestead character, and rendered the land
subject to direct seizure and sale under exemption." And the
court adds that if the second building had increased the value
of the whole property beyond the statutory limit, the plaint-
iff would have been entitled to make the levy, but not to sell;
only as a basis for proceedings under the statute to ascertain
the excess, to make partition, and for sale of the part not nec-
essary to make up the maximum.*
Judge Paterson dissented, saying it was immaterial whether
the second house was built before or after the declaration;
that the sole question before the court was whether the prop-
erty was exempt ; that the statute provides that the homestead
shall consist of " the dwelling-house in which the claimant re-
sides and the land on which the same is situated ; " * and the
i Citing Civ. Code, §§ 1245-1259. *Lubbuck v. McMann, 82 Cal. 226,
2 Citing Barrett v. Simms, 62 Cal. Fox, J.
440. i Citing Civ. Code Cal., g§ 1237,
3 CiMwgi Culver v. -Rogers, 38 Cal 1240; Gregg v. Bostwick, 33 Cal. 238 ;
620; Eby v. Foster, 61 CaL 287. S. C, 91 Am. Dec. 637; Laughlin v.
Wright, 63 Cal. 116.
EXEMPTION AKD "ESTATE OF HOMESTEAD." 275
dissenting opinion concludes as follows : " It has been held uni-
formly that, in order to be exempt from execution, the prop-
erty claimed as a homestead must be actually occupied as a
residence by the familj'' of the owner — temporary absences
excepted, of course — and that any portion of his real estate
not so used is not exempt from execution, whatever may be
its extent or value; and that where houses and lots are rented
for money rent to tenants who are not servants or employees
of the owner, the latter cannot claim them as a part of his
own home and residence, although they may adjoin the same." '
The differences between the two opinions turn upon the
definition of homestead. The word is used in the constitution
in its ordinary sense : " The legislature shall protect by law
from forced sale a certain poHion of the homestead, and other
property of all heads of families." ^ The statute employs the
term in its technical sense, as will be seen in the requirements
for its selection, dedication, alienation, exemption and various
provisions inapplicable to an ordinary place of residence.'
The court used the word in the common, and the dissenting
judge used it in the legal, sense. So the court understood the
entire family residence, irrespective of value or quantity, to
be susceptible of dedication so as to constitute an estate of
homestead, though only the value to the amount of five thou-
sand dollars would be exempt under the statute. On the
other hand, the dissenting judge recognized only the exempt
portion to be susceptible of dedication as homestead.
Courts in other states, under statutes not materially dis-
similar, will be likely to understand homestead as the dissent-
ing judge did, as they have understood it heretofore. Even
■where " estate of homestead " is recognized, it will generally
be confined to exempt property, while that which is not ex-
empt will be held liable to execution, whether attached to the
home farm or lot, or disconnected.
1 Citing Ashton v. IngaJl, 30 Kas. 2 Const Cal., art. 17, § 1.
670 ; Austin V. Stanley, 46 N. H. 51 ; ^Deering's Code & Stat CaL,
Kurz V. Brusch,13 Kas. 371; S. C, §§1337-1363. See especially, §§ 1237,
81 Am. Dec. 435 ; Casselman v. 1340, Civ. Coda
Packard, 16 Wis. 114; S. C, 82 Am.
Dec. 710.
CHAPTEE X.
LIABILITIES.
1. Debts Prior to the Law.
3. Debts Prior to Purchase and
Occupancy.
3. Debts Prior to Filing the Deed.
4. Debts Prior to Designation of
Homestea,d.
5. Debts by Written Contract
6. Dormant Li6ns. \
7. Attachment Liens.
(1) Claiming Homestead After
Attachment
§ 7. Attachment Liens (continued).
(2) Attaching After Home-
stead Has Been Estab-
lished.
(3) Efifect of the Perfected
Attachment Lien Upon
the Homestead.
8. Tort
' 9. Fiduciary Debts.
10. Taxes.
§ 1. Debts Prior to the Law.
Antecedent debts are those prior to the passage of the
homestead law or to the date fixed by the law for the begin-
ning of exemption. They are debts contracted, or incurred,
before notice given that the family residence is not to be liable
therefor. The enactment of the exemption statute is deemed
such notice on the presumption that creditors know the law.
It seems almost incredible that legislatures and courts ever
have thought that a creditor could be cut off from making, his
money out of property to which he had looked when trusting
its owner. "Without any notice whatever that such property
would be screened from the sheriff's eye by the veil of exemp-
tion, he had trusted the owner. The legislatures of several
states — even the conventions that made constitutions — seem
to have seen no injustice in cloaking the property of debtors
with exemption, and leaving unnotified creditors in the lurch.
Solemn contracts between debtors and creditors, with im-
plication that, if necessary, all the means of the former should
be exhausted in payment of value received, were disregarded
by the obligor under countenance of legislation. It was not
till the highest court of the country had declared such legis-
lation unconstitutional, that those laws were abrogated, and
debtors left to the old rules of integrity.
DEBTS PEIOK TO THE LAW. 277
There seemed to be a notion that creditors had no rights
which debtors were bound to regard. There was an impres-
sion that contracts had no reference to their remedies which
legislators were bound to recognize. The principles of equity,
apart from the constitutional inhibition to pass laws impair-
ing the obligations of contracts, ought to have controlled the
courts, especially when mortgages and other liens under equity
cognizance were concerned. But homestead and exemption
laws had to be considered as something outside of the ordinary
realm of jurisprudence, exceptional to established principles,
based upon humanity rather than upon justice^ — with the
humanity confined to one of the contracting parties.
, In what sense would a contract be impaired by the subse-
quent passage of a law exempting from execution property
that was liable before under the contract ? What is the rea-
son that underlies the decisions of the highest court declaring
such a law unconstitutional?
The contract would be impaired because the creditor's rem-
edy against the debtor's property, existing when the contract
was made, would be taken away to the extent of the exemp-
tion; and the reason underlying the decisions is that the
debtor's property is the common pledge of his creditors. It
is that which gives its owner credit. Creditors trust his prop-
erty rather than himself.
Homestead laws have been said to be in derogation of com-
mon right because they interfere with the creditor in his ef-
forts to collect his just debts. While the argument, drawn
from this consideration, in favor of the strict construction of
exemption laws, does not meet with general favor ; and while
it is entitled to little when the exemption law has been passed
and the homestead dedicated and the world notified before
the giving of the credit by contract, yet it is true that the
debtor's property, liable for debt before the passage of an ex-
emption law, cannot have its siaims changed in that respect by
the passage of the law, without derogation of the creditor's
right.
The laws that sought to deprive the creditor of his remedy
and relieve the debtor of his promise were retroactive. They
referred to future executions, it is true ; but they looked back
to contracts anterior to themselves. A claim perfectly good
278 LIABILITIES.
yesterday is reduced in value from par to zero by a law passed
to-day : a practical retroaction though not technically such as
would be violative of the constitution, A contract with a
perfect legal remedy yesterday is shorn of its means of en-
forcement and therefore rendered valueless to-day : an impair-
ment which the spirit of the constitution forbids.
The ground of unconstitutionality was found in the prohibi-
tion of the states from passing any law impairing the obliga-
tion of contracts. It was held to be impairment when the
creditor's remedy is denied him. It is as bad for him to lose
his means of enforcement as to have the contract itself de-
stroyed. The old homestead laws which put liable property
out of the way and even declared it inviolate cut straightly be-
tween the contract and the remedy, severed them from each
other, and left a useless promise in the hands of the creditor
while the means of performance were gone. That is, this was
true unless he could find other property to pounce upon. But
the laws were as bad as if they had denied execution alto-
gether ; for it might be that the debtor had no property but
his homestead.
" The remedy subsisting in a state when and where a con-
tract is made and is to be performed is a part of its ohliga-
tion; and any subsequent law of the state which so affects
that remedy as substantially to impair and lessen the value of
the contract is forbidden by the constitution and is therefore
void." This was said by the highest court of the country
relative to a state constitutional inhibition of "execution or
other final process issued for the collection of any debt against
a homestead " of the certain value designated. There had
been judgment rendered on debts contracted prior to the
adoption of that inhibition, and the state court had held the
homestead not liable for them; and the above-quoted remark
was made in the reversing decision.'
This decision was in accord with a prior one rendered by
the same court.^ The doctrine enunciated, that the remedy
is part of the obligation, and state laws impairing it are in
contravention of the constitution of the United States, is now
1 Edwards v. Kearzy, 96 U. S. 595 ^Gunn v. Barry, 15 Wall. 610.
(case from North Carolina, 74 N. C.
241).
DEBTS PEIOE TO THE LAW. 279
well established, and applied to homestead laws and exemp-
tions.*
The constitutional inhibition is to states — not expressly to
congress. Whatever the spirit of it may be, however congress
or the general government entire may be constrained by that
spirit from doing injustice, the letter bears only upon the
states. It is hardly presumable that the framers of the consti-
tution meant to invest congress with the power of coming
between contracting parties and rendering their mutual obli-
gations nugatory which were perfectly valid when taken. So
far as passing uniform bankrupt laws, the framers did mean
that congress might intervene between debtor and creditor.
If further intervention was to be tolerated, why did they
not say so? "Why did they confine the grant to the bankrupt
law?
It is the prevailing opinion, however, that congress can af-
fect the remedy of a contract. The supreme court said dis-
junctively : " ISTor can it be truly said that congress may not,
by its action, indirectly impair the obligation of contracts, if
by the expression be meant rendering contracts fruitless or
partially fruitless. Directly it may, confessedly, by passing a
bankrupt act, embracing past as well as future transactions.
This is obliterating contracts entirely." ^
If it is possible for congress constitutionally to obliterate
iLarab v. Chamness, 84 N. C. 379; Whittington v. Colbert, rO Ga. 581;
Sruder V. Rogers, 64 N. C. 389 ; Fow- Chambliss v. Jordan, 50 Ga. 81 ;
ler v. Wood, 31 S. C. 398 ; Ex parte Larence v. Evans, 50 Ga. 316 ; Gunn
Young, 39 a 0. 398 ; Bull v. Rowe, 13 v. Thornton, 49 Ga. 380 ; Jones v.
S. C. 365 ; Douglass v. Craig, 13 S. C. Brandon, 48 Ga 593 ; Ladd v. Dud-
371 ; Carrigan v. Bozeman, 13 S. C. ley, 45 N. H. 61 ; Squire v. Mudgett,
376 ; Charles v. Charles, 13 S. C. 385 ; 61 N. H. 149 ; The Homestead Cases.
Cochran v. Darcy, 5 S. C. 135 ; Ex 23 Gratt 366 ; Russell v. Randolph,
parte Hewett, 5 S. C. 409 ; De La 26 Gratt. 705 ; Pennington v. Seal, 49
Howe V. Harper, 5 S. C. 470 ; Comp- Miss. 538 ; Lesley v. Phippsj 49 Miss,
ton V. Patterson, 28 S. C. 115;, Has- 790; Smith v. Brown, 38 Miss. 813;
ford V. Wynn, 36 S. C. 130 ; Agnew v. Coffman v. Bank of Kentucky, 40
Adams, 17 S. C. 364 ; Clark v. Tra- Miss. 39 ; Barlow v. Gregory, 31 Ct.
wick,56Ga. 359; Wheeler V. Redding, 364; Clark v. Potter, 13 Gray, 21;
55 Ga. 87 ; Bush v. Lester, 55 Ga. 579 ; Woods v. Sanford, 9 Gray, 16; John-
Pratt V. Atkins. 54 Ga. 569 ; Wofford son v. Fay, 16 Gray, 144.
.V, Gaines, 53 Ga. 485 ; Grant v. Cosby, 2 Strong, J., in Legal Tender Cases,
51 Ga. 460; Smith v. Ezell, 51 Ga. 13 Wall. 457; Hepburn v. Griswold,
570; Burnside v. Terry, 51 Ga. 186; 8 Wall. 603.
280 LIABILITIES.
contracts entirely, it can be done only by way of enacting a
bankrupt law : so that has nothing to do with " rendering
contracts fruitless " in any other way.
It has been held that vested rights may be divested by a
state law, when a contract is not impaired.'
Some of the old laws and decisions thereon disregarded
judgments rendered on debts existing prior to the passage of
the exemption statutes, disregarded attachments duly laid
and even judgment liens already matured, and even pre-exist-
ing mortgages. No agreement between debtor and creditor
was too sacred to be touched. All right and equity was dis-
regarded under the legislator's assumption that it was a hu-
mane and beneficent policy for the state to step between the
creditor and the debtor to protect the latter from the conse-
quences of his own voluntarily-taken obligations. The courts,
as if they thought the state legislatures unrestricted in power,
sustained such laws and denied creditors the right of enforc-
ing their contracts in many instances.^
The assignment of a homestead T;o a bankrupt is void as to
debts antedating the authorization of a homestead.'
It was held that the debtor's homestead was exempt from a
1 Beers v. Haughton, 9 Pet. 353; 40 Pa St. 338; Baylor v. San An-
Watson V. Mercer, 8 Pet. 88. {Con- tonio Bank, 38 Tex. 448.
tra, Gunn v. Berry, 15 Wall. 619, by a Fowler v. Wood, 31 S. C. 398. (See
way of argument) See Allen v. Fowler v. Wood, 26 S. C. 169.) Ante-
Shields, 72 N. C. 504; Wilson v. homestead debts in South Carolina
Sparks, 72 N. C. 208 ; Garrett v. Ches- are those contracted before the adop-
hire, 69 N. C. 396. tion of the constitution of 1868.
2 Gunn v. Barry, 44 Ga. 353 ; Pull- Douglas v. Craig, 13 S. C. 371. But a
iam V. Sewell, 40 Ga, 73 ; Chambliss senior lienholder, with claim prior to
V. Phelps, 39 Ga 386 ; Hardeman v. 1868, need not first exhaust the homer
Downer, 39 Ga 425; Hill v. Kessler, stead. Ex parte Young, 29 S. C. 298.
63 N. C. 437 ; Re Kennedy, 2 S. C. The creditor may enforce his ante-
216 ; Stephenson v. Osborne, 41 Miss, homestead claim by legal remedy, '
119 ; Sneider v. Heidelberger, 45 Ala. and therefore is denied resort to an
126; Grimes v. Bryne, 3 Minn. 89; equity proceeding to vacate home-
Rockwell v. Hubbell, 3 Doug. (Mich.) stead proceedings. Compton v. Pat-
198 ; Root V. McGrew, 3 Kas. 215 ; terson, 28 S. C. 115. Assignment of
Cusic V. Douglas, 3 Kas. 133 ; Cook homestead is null as to debts prior to
y. McChristian, 4 Cal. 23 ; Bigelow v. 1868. Hosf ord v. Wynn, 26 S. C. 180 ;
Pritchard, 21 Pick. 174; Morse v. Agnew v. Adams, 17 S. C. 364. ' Cred-
Goold, 11 N. Y. 281. (See Quacken- iters' rights lost by laches. Solomons
bush V. Danks, 1 Denio, 128.) Hill v. v. Shaw, 35 S. 0. 113.
Hill, 42 Pa St 198 ; Baldy'a Appeal,
DEBTS PEIOE TO THE LAW. 281
judgirrcnt TeTHlered on an account in 'which some of the items
were for antecedent debts and some subsequent to the date
when the statute came into operation.^ Had the court given
judgment for the former only, the right of execution would
have been clear; but, having allowed the whole amount, and
forced sale to pay the subsequent debts being inhibited, the
property was protected from the entire judgment in the opin-
ion of the court.
An antecedent debt, novated after the passage of the ex-
emption act, may be collected by forced sale of the home-
stead.^ A judgment rendered after the passage is not to be
hindered by exemption, if the creditor prove that the debt was
contracted before.'
A land-owner obligated himself by contract when he was
unmarried and not entitled to exemption. Before judgment
had been rendered against him, he took a wife, became the
head of a family and was entitled to exemption. When ex-
ecution was levied against his land (owned and not exempt
when the debt was contracted), he claimed that it was exempt.
The value of the land was within the constitutional and statu-
tory limit.
The creditor contended that the land was liable upon debts
contracted before the debtor's marriage. The court said that
debts existing at the time of th§ enactment of the homestead
law could not be affected by the enactment, and it claimed to
be in advance of the United States supreme court in so hold-
ing ; * but it decided that debts originating after the enactment
are on an entirely different footing. Marriage may put the
debtor in a position to avail himself of the exemption which
the creditor knew he could have by getting married. E"o lien,
had attached to the property before the marriage ; none could
attach afterwards by virtue of the judgment.^ Had a lien been
acquired by judgment or levy before marriage, a different
question would have arisen, on which the court thougjit it un-
1 Bachman v. Crawford, 3 Humph, on this matter, Kennedy v. Stacey, 1
213. ' Bax. 230; Hannum v. Mclnturf, 6
2 Woodlie V. Tovvles, 9 Bax. 592 ; Bax. 335.
Belote V. Wynne, 7 Yer. 543 ; Bell v. 5 Jd., citing North v. Shearon, 15
Morrison, 1 Pet. 351. Tex. 174; Trotter v. Dobbs, 38 Miss.
3 Douglass V. Gregg, 7 Bax. 384 198.
* Dye V. Cook, 88 Tenn. 375 ; citing
282 LIABILITIES.
necessary to intimate an opinion.^ Such lien, legally created,
would seem as stable as a conventional one.
§ 2. Debts Prior to Purchase and Occupancy.
In some of the states, the homestead is exempt from ordi-
nary debts, and all- others except a few specified ones to be spe-
cially treated in this chapter, which have been created after
the passage of the exemption statute or constitutional ordi-
nance so providing, or after the date fixed for the exemption
to become operative. A provision that " the homestead may
be sold for debts contracted prior to the purchase thereof " ^
was construed to render the property liable for any debt ante-
dating not only the purchase but the establishment of the
homestead by actual occupancy. The statute thus construed
directs that declaration be made, but does not render it essen-
tial ; so it is held that the date of occupancy fixes the time of
the beginning of exemption.' This accords with the general
doctrine — actual occupancy being almost everywhere essen-
tial to exemption, and the two beginning together. Under
the operation of this rule, between the dates of purchase and
occupancy the property is liable for debts then or previously
contracted.* The rule is the same, whether the debt be for-
eign or domestic'
A householder obtained title to his homestead in 1883. A
judgment had been reridered against him in 1882, and the sub-
sequently purchased realty became subject to it. A general
execution had been issued. The court, in deciding upon the
claim that the property was exempt, said : " The indebtedness
was contracted prior to the acquisition of the homestead, and
for such indebtedness it could be sold, unless it was acquired
with the proceeds of a prior homestead, and this is not
claimed."'
' Id., citing Pender v. Lancaster, 14 * Hale v. Heaslip, 16 la, 451 ; Page
S. C. 25. V. Ewbank, 18 la. 580 ; Delavan v.
2McC]ain's Iowa Code, § 3167 Pratt, 19 la 429 ; Hyatt v. Spearman,
(1992) ; la Code (1873), § 1992 ; Rev. 20 la. 510 ; Elston v. Robinson, 23 la
Stat. (1860), § 2281, 208 ; Peterson v. Little, 74 la 233.
3 Arnold v, Gotahall, 71 la 572; 5 Laing v. Cunningham, 17 la 510;
First N. Bank V. Hollingsworth, 78 la Brainard v. Van Kuran, 22 la. 261.
575 ; Johnson v. Moser, 66 la. 536 ; « Lamb v. McConkey, 76 la. 47.
Givans v. Dewey, 47 la 414
DEBTS PEIOE TO PUECHASE AND OOOUPANOT.
283
This rule, that after the purchase but before occupancy
the land is liable, is not followed where the statute exempts
from the date of purchase.'
The novation of a prescribed debt, made before actual oc-
cupancy', renders the property liable after that event.' If the
owner, by wrong-doing, before occupancy of the homestead,
has pecuniarily benefited himself; and if the circumstances
are such that the person wronged can maintain action on an
cient to convey the wife's potential or
other interest in the real estate ; and, if
the mortgage is not sufficient to con-
vey her interest, it is also insufficient
to convey the homestead interest of
the husband. In the latter respect
mortgage, etc., is unlike the convey-
ance of real estate in general, because
the conveyance of the general estate
may be sufficient to convey the hus-
band's title, but not that of the wife ;
whereas, as said, the mortgage of the
homestead must be sufficient to con-
vey the wife's interest therein ; other-
wise it is invalid, for such purpose,
as to both husband and wife. So the
question is, is the mortgage sufficient
as to the wife to convey the home-
stead? Upon that subject, section 21,
chapter 34 General Statutes, provides
that a deed of a married woman, to
be effectual, must be acknowledged
before the proper officer, and lodged,
for record in the proper office. As
has been construed by this court, it
is as essential, to make the deed ef-
fectual against a married woman, to
have the samarecorded or lodged for
record in the proper office as it is
that she should acknowledge the
same before the proper officer. This
requisite not having been complied
with, the mortgage was ineffectual
to convey either of the appellants'
homestead right. The judgment is
reversed, and remanded with direc-
tions for further proceedings consist-
ent with this opinion."
2 Sloan V. Waugh, 18 la. 324.
1 Hensey v. Hensey (Ky.), 17 S. W.
333. Bentley, J.: "The appellants
allege in their answer that the mort-
gage was not recorded or lodged for
record, and that they, at the time the
action to foreclose the mortgage was
brought, were living on the land,
with their family, as a homestead,
and the land was not worth as much
as |1,000. The court, not deeming
the answer sufficient, gave judgment
for the sale of the land to satisfy the
mortgage lien. This was error. It is
well settled by tills court that the
debtor with a family may in good
faith move on the land, and make a
home of it, and thereby acquire a
homestead in it, notwithstanding his
indebtedness was created prior to his
moving on the land, provided the in-
debtedness was not created before
the purchase of the land or the erec-
tion of the improvements. So the
only question is, does the mortgage
defeat the appellants' right in that
regard? Section 18, article 13, chap-
ter 38, General Statutes, provides:
' No mortgage, release, or waiver of
such exemption shall be valid unless
the same be in writing, subscribed by
the defendant and his wife, and ac-
knowledged and recorded in the ,
same manner as conveyances of real
estate.' Of course, this language
means conveyances of real estate by
the husband and wife; and it de-
clares that the mortgage, release, etp.,
to be valid as a conveyance or release
of the homestead right, must be suffi-
284 LIABILITIES.
implied promise, there is debt antedating the establishment of
the homestead, and it may be collected from the property.'
Though a homestead may have been validly conveyed and
re-acquired by its owner, w^hile ordinary debts against him
existed, it will be liable for all indebtedness contracted before
the re-acquisition.^
Ordinary debt contracted before the homestead was estab-
lished may be prosecuted to judgment afterwards so as to
create a lien upon the property, which is held to outrank the
mortgage of the homestead made subsequent to the contract-
ing of such debt. This rule is confined to the parties and
others chargeable with notice of the character of the debt.'
Under the rule that a debt existing when the homestead
was acquired is collectible against the homestead, judgment
upon it is held to create a lien retroactive in effect from the
date of the debt : so that a senior judgment on a junior debt,
not thus pre-existing, is postponed to it.* But, prior to judg-
ment, such antecedent debt is without lien, so that an unnoti-
fied purchaser of the homestead is not affected.^ He takes,
subject to the lien, if his purchase is after it is attached.^
The retroaction above mentioned must have statutory sup-
port to sustain it, since it does not stand upon any settled
principle.
The wife need not sign a mortgage on the homestead given/
to secure a debt created prior to the establishment by actual
occupation, where such debts are collectible from the prop-
erty. Such a mortgage is held valid as to her, because it
creates no additional burden relative to her rights and inter-
ests, while it would be invalid as to persons innocently pur-
chasing the property before judgment on the secured debt, to
whom evenihe recordation of the mortgage would not be
legal notice.'' For they would have bought while there was
no lien upon the property, and while the debt was merely a
personal one.
1 Warner v. Cammack, 37 la. 643. * Phelps v. Finn, 45 la. 447,
2 Butler V. Nelson, 73 la. 733. 5 Higley v. Millard, 45 la. 586.
3 Hale V. Heaslip, 16 la. 451 ; Hyatt « Kimball v. "Wilson, 59 la. 638.
V. Spearman, 20 la. 510 ; Elston v. i Higley v. Millard, 45 la. 586. See
Robinson, 33 la. 208. See Linscott v. ch. XII, § 4
Lamart, 46 la, 313.
DEBTS PEIOE TO PDECHASE AND OCCUPANCY. 285
A homestead may be exchanged for one of equal or less
value without subjecting the new one to liability for debts con-
tracted by the owner after the acquisition of the old one but
before that of the new.' Courts are liberal to the debtor
making the exchange. The time necessary to effect it is con-
sidered, and a reasonable interval between the sale of the first
and the purchase of the second is respected, when the exchange
is effected in this way and not by direct swapping with the
owner of the new home. Meanwhile, the proceeds of the old
are held exempt."
If the new is of greater value than the old exempt property
was, so that it was paid for by the addition of a sum greater
than the proceeds of the latter ; if the circumstances are such
that the acquisition of the new homestead cannot reasonably
be considered in lieu of the old one, the property would be
liable for debts prior to its purchase.'
A debtor bought a homestead and paid for it, but had it
deeded to his wife to defeat his creditors. Occupied by him
and her, the home was attached. There was an attachment
for a claim subsequent to the acquisition of the homestead,
and a second attachment for one prior to that acquisition.
There was judgment, and the land was sold under the first
attachment. The purchaser came into possession, having paid
the debtor and his wife to relinquish, any claim. The title of
the purchaser was construed to be no better than that of the
debtor had been, and therefore subject to the lien of the sec-
ond attachment bond on a debt antedating the acquisition of
the homestead.*
A father secured the exemption of fifty acres of land, as the
head of a family having no members except a minor son. The
exemption expired with the son's minority. The son then
bought the land for valuable considerajiion, and held posses-
sion for four years, without notice of an outstanding judg-
ment against his father. The court held that the lien of the
1 State V. Geddis, 44 la. 539 ; Ben- ^ Cases last cited,
ham V. Chamberlain, 39 la. 358 ; Fur- ^ parra v. Quigly, 57 Mo, 284.
man v. Dewell, 35 la. 170 ; Eobb v. < Peake v. Cameron, 102 Mo. 568 ;
McBride, 28 la. 386; Sargent V. Chub- 15 S. W. 70; Rev. Stat. Mo. (1879),
bock, 19 la. 37 ; Pearson v. Minturn, §§ 3689, 2695.
18 la. 36 ; Lamb v. McConkey, 76 la,
47.
286 LIABILITIES.
jcidgment had ceased to be operative, because the son had
held for four years before the levy was made to enforce the
judgment against the father.*
Where exemption is inapplicable to " sales under execution,
attachment or judgment at the suit of creditors, if the debt
or liability existed prior to the purchase of the land or the
erection of, improvements thereon," ^ it is held that the repair
of the home building is not meant by " erection of improve-
ments." So, a householder, occupying a homestead within
the monetary limit, who made repairs after having contracted
a debt, did not render the homestead liable therefor — the
debt not being for the repairs.'
Inheriting land is the same as the purchase of it, so far as
the statutory provisions relative to anterior debts are con-
cerned.* But a different view was formerly taken. A house-
keeper resided, with his family, on a part of his father's land,
and continued to occupy the same home after his father's
death, and after his acquisition of title by descent. Judgment
was rendered against him on a debt contracted prior to his
acquisition of the title. He was held entitled to hold his
homestead against this judgment, on the ground that he had
not disappointed the expectation of the creditor by expending
money or property for this land which would otherwise have
gone to satisfy the creditor.'
"When a surety has a right of action by way of recourse
against his defaulting principal, and the right relates back to
the time of his contract of suretyship, upon his payment for
his principal, it is held superior to a homestead right acquired'
by another after he had signed his obligation ; that a cause of
action arising prior to the homestead exemption takes preced-
ence of the exemption claim.
In a case involving this matter as one of rank, it was said
that when the surety took his obligation there was no home-
iBlalock V. Denham, 85 Ga. 646; 'O'Gorman v. Madden (Kj.), 5
11 S. E. 1038 ; Ga. Code, §§ 3040, 3583. S. W. 756.
2 Gen. Stat of Kentucky (1888), * Creager v.. Creager, 87 Ky. 449.
pp. 574-8 (new ed.), ch. 38, art. 13, 'Jewell v. Clark, 78 Ky. 398. The
§ 16 ; Hensey v. Hensey (Ky.), 17 reconciliation of this case with that
S. W. 333 ; Travis v. Davis (Ky.), 15 last above cited is put on the ground
S. W. 535. of non-occupancy by Creager.
DEBTS PEIOE TO FILING THE DEED. 287
stead law. His taking it " created an existing cause of action,
contingent " upon his principal's default. " An implied con-
tract was then raised by the law between" them, that the
principal should indemnify the surety ; " and this implied con-
tract took effect from the date of the surety's signing the
bond, and not merely from the time he paid the money : the
payment in such case relating to the inception of the implied
liability. Thus, where such a liability was created by reason
of the surety's signing as aforesaid, and afterwards a honae-
stead act was passed ; and the surety, after the passage of the
act, paid the debt, it was ruled that the demand of the surety
was superior to the claim of homestead exemption.' And
when he signed the bond, " the implied contract of indemnity
took immediate effect and became a vested right, arising on a
contract which subsequent legislation could not divest, even
if. so intended, for this would amount to impairing the obli-
gation of a contract — a contract implied by law." ^
Declaration of hotnestead cannot dislodge a lien already
fixed upon the realty declared upon, however the lien may
' have been created.'
§ 3. Debts Priol- to Filing the Deed.
, The " homestead shall be subject to attachment and execu-
tion upon all causes of action existing at the time of the ac-
quiring such homestead, except as herein otherwise provided ;
and for this purpose such time shall be the date of the filing,
in the proper office for the records of deeds, the deed of such
homestead, when the party holds title under a deed ; but when
he holds title by descent or devise, from the time he becomes
invested with the title thereto ; and in case of existing estates,
such homestead shall not be subject to attachment or levy of
execution upon any liability hereafter created." ^
lEice V. Southgate, 16 Gray, 142; when he was an obligor on a forfeited
Appleton V. Bascom, 3 Met, (Mass.) forthcoming bond, did not free his
169. property^ from the lien of the bond,
2 Berry v. Ewing, 91 Mo. 395; since it had the force of a judgment
Harvey v. Wickham, 28 Mo. 113 ; after its return to the clerk's office,
. Gunn V. Barry, 15 Wall. 610. which occurred before the declara-
3 The recording of a declaration of tion had been made. Cabell v. Giv-
homestead, under the statute of West ens, 80 W. Va. 760.
Virginia, Acts of 1864, chapter 39, * Eev. " Stat of Missouri (1889),
288' LIABILITIES.
By this statute, homesteads are liable for all debts created
before the filing of the title deeds evidencing their ownership,
in the state where it was enacted.'
The filing of a deed, after judgment and issuance of execu-
tion, will be of no avail.^
Under the provision relative to existing estates, exempting
them from liability for debt accruing after the passage of the
law, the rule is practically the same as in cases of subsequent
purchase ; for, in either circumstance, liability for debt exist-
ing prior to homestead acquisition remains as though no ex-
emption law had been passed. The design of the legislator
was to secure to heads of families and housekeepers, who held
land when the law was passed, homesteads therein from the
date of the passage free from subsequent debts ; and to secure,
to those afterwards acquiring lands, homesteads therein free
from debts created after the filing of their deeds. In both
cases, exemption begins with the acquisition of the home-
stead evidenced by the record.'
A non-resident, acquiring land for a homestead and filing
his deed, has it protected from his subsequent debts if he oc-
cupy it as his home before those debts have ripened to judg-
ment liens. His exemption is not affected by the fact of his
non-residence at the time of the acquisition of the land of his
homestead.*
If a homestead is liable for debts antecedent to its acquisi-
tion, it does not matter whether they were contracted in the
state where the homestead lies or in some other. The locus
in quo of the debt or cause of action has no effect on the ques-
tion of the liability of the property. No preference is* to be
given to home creditors over foreign.^
The obligation of a principal to a surety who has had to
pay for him is a cause of action dating back to the time the
suretyship was assumed, by the law of relation — not fixed by
§5441; R. S. (1879), § 3695 ; Laws of » Bunn v. Lindsay, 95 Mo. 250;
1887, p. 197. / Lincoln v. Eowe, 64 Mo. 138 ; Shind-
1 O'Shea v. Payne, 81 Mo. 516 ; Kel- ler v. Givens, 63 Mo. 394.
say V. Frazier, 78 Mo. Ill ; Rogers v. ' State v. Diveling, 66 Mo. 375.
Marsh, 73 Mo. 64 ; Stivers v. Home, * Finnegan v. Prindeville, 83 Mo.
62 Mo. 473 ; Griswold v. Jolinson, 22 517.
Mo. App, 466 ; Daudt v. Harmon, 16 » O'Shea v. Payne, 81 Ma 516.
Mo. App. 203,
DEBTS PEIOE TO FILING THE DEED. 289'
the date when the fact became apparent that the surety would
have to paJ^ The principal cannot hold his honiestead ex-
empt against such debt if it was acquired after the execution)
of the bond signed by the surety. This was held relative to> ■
a curator's bond.' If the homestead had been acquired at
any time after the curator's default, when the surety's con-
tingent obligation first became certain, it would seem that his
homestead ought not to be exempt as against the debt thus
due by him to his surety ; but the case cited does hot go so
far.
If an exempt homestead be sold under execution, though
the sale be null, it may becloud the title ; so, in such case, th©
cloud may be relieved by means of a bill in equity.^
The burden of proof is on the purchaser at an administra-
tor's sale of a homestead to show that cteditors' claims ante-
date homestead acquisition, it was held.' That is, if he seek to
establish his title, he must not only show his deed, but also
show that the administrator had the right to sell the property
to satisfy valid claims.
From the proceeds of land bought by a husband in his wife's
name, and subsequently sold by his creditors for his debts
after having had the conveyapce to the wife set aside for
fraud, a sum was allowed him to purchase a homestead ; but
this cannot be done if the debts sued upon accrued before the
statutory exemption.* The fraud of the husband did not miti-
gate against the allowance, since it is said that no fraud upon
creditors can be perpetrated by any disposition a debtor can
make of his homestead.'
Property deeded to a wife, partly in consideration for a
homestead in a state (other than the one where the deed was
given), where husband and wife must join in a homestead
conveyance, was held not in fraud of creditors and therefolte'
not susceptible of being subjected to the husband's debts." It
was contended, in the argument on the case cited, that as
1 BeiTy V. Ewing, 91 Mo. 395. ling. 66 Mo. 375; Vogler v. Mout-
2 Harrington v. Utterback, 57 Mo. gomery, 54 Mo. 577 Abernathy v.
519. Whitehead, 69 Mo. 80; Hartzler v.
s Kelsay v. Frazier, 78 Mo. 111. Tootle, 85 Mo. 23.
4 Buck V. Ashbroot, 59 Mo. 200. eStinde v. Behrens, 81 Mo. 25i
5 Davis Y. Land, 88 Mo. 438 ; Burns overriding Stinde v. Behrens, 6 Mo.
V. Bangert, 92 Mo. 167 ; State v. Dive- App. 309.
19
290 LIABILITIES.
\
homestead laws have no extraterritorial force, the proceeds
of property exempt in one state are not necessarily so when
brought into another ; ' and that when exemptionists sell their
homestead with intent to take the price to another state, they
lose the right of exemption.^
But the court held that the homestead had not been aban-
doned ; that the husband and wife, having the right to sell it,
could legally agree that part of the consideration should be
property situated beyond the bounds of the state to be con-
veyed to the wife ; that she could hold it as a homestead free
from liability, and that no liable property had been put out
of the reach of creditors.'
The exception " otherwise provided," in the section above
quoted, is found in the following: "Whenever such house-
keeper or head of a family shall acquire another homestead
. . . the prior homestead shall thereupon be liable for his
debts, but such other homestead shall not be liable for causes
of action against him to which such prior homestead would
not have been liable: Provided that such other shall have
been acquired with the consideration derived from the sale or
other disposition of such prior homestead, or with other means
not derived from the property of such housekeeper or head of
a family." * That is to say, the new homestead, to take the
place of the old, must have been acquired by means other
than those derived from non-exempt property, so that cred-
itors shall not have their remedy impaired.
The title of a new homestead which takes the place of the
old does not have the date of its. exemption fixed by the filing
of the deed. If no deed has been filed, it is exempt from oc-
cupancy as the successor of the former homestead, and all
debts acprued after the filing of the first deed are precluded
from enforcement against the new home from that date.' The
second, however, must have been acquired with the proceeds
from the sale of the first, or by other means not liable to cred-
» Citing Boykin v. Edwards, 31 Ala. 8 Tex. 313 ; Jordan v. Godman, 19
261. Tex. 375.
' Citing State v. Davis, 46 Mo. 108 ; ' Stinde v. Behrens, supra.
On- V. Box, 33 Minn. 485 ; Tenney v. * Rev. Stat Mo. (1889), § 5443 ; (1879),
Sly, 44 Ind. 369 ; Traweck v. Harris, § 3696.
6 Smith V. Enos, 91 Mo. 579.
DEBTS. PEIOK TO FILING THE DEED. 291
itors,' in order to stand in the former's position. It would be
manifestly unjust to allow the exemptionist to sell at will,
pocket the money, carve a new homestead from lia;ble lands,
sell again, dedicate again, and so on ad fl,njmitum,.
A substituted homestead must be bought with the proceeds
of that in lieu of which it stands, or with means not liable to
creditors, in order to render it exempt against debts accrued
after the filing of the deed of the former homestead. If the
new homestead be not purchased with such proceeds or means,
it will be liable for debts due up to the time when its deed
was filed — just as in case of the first homestead.^
The owner of two tracts of land held one as his homestead
while the other was unimproved. After having contracted a
debt, he sold the home tract and invested a part of the pro-
ceeds to build a house on the other to be occupied as a home-
stead in lieu of the one sold. But the latter was not exempt
from the debt as the former had been. With respect to it,
the debt antedated homestead dedication, though not the ac-
quisition of the land or the filing of the deed.' Whether the
owner had the design of ultimately making the unimproved
tract his homestead, at the time he purchased it, was imma-
terial.' It is true that subsequent occupancy has been held,
under the statute above cited, to relate back to the filing of
the deed, so as to bar intervening debts ; * but no such retro-
action is permissible when another hon;iestead has been en-
joyed between the dates of filing and occupancy.
Under a statute similar to the one above considered, provid
ing that the homestead should not be exempt as to debts ex-
isting when the deed of the property was left for record, it
was decided that immediate occupancy after recording was
not essential to exemption against debts contracted between
the dates of record and occupancy.'
The proceeds of a homestead are not ' exempt if the seller
means to take them to another state,'
•Beckman V. Meyer, 75 Mo. 333; 6 West River Bank v. Gale, 43 Vt
Creath v. Dale, 84 Mo. 849. 27 ; Lamb v. Mason, 45 Vt. 500 ; Gen.
2 Farry v. Quigley, 57 Mo. 284 Stat Vt (1863), ch. 68, § 7 ; (1850), ch.
3 Stanley v. Baker, 75 Mo. 60. 65, S 6.
< Finnegan v. Prindeville, 83 Mo. ^ State v. Laies, 46 Mo. 108.
517.
293 LIABILITIES.
§4r. Debts Prior to Designation of Homestead.
It is prescribed, in one section of a statute : " A lot of land,
with one or more buildings thereon, not exceeding in value
one thousand dollars, owned and occupied as a residence by a
householder having a family, and heretofore designated as a
homestead, as prescribed by law, or hereafter desigiiated for
that pv/rpose, as prescribed in the next section, is exempt from
sale by virtue of any execution issued upon a judgment recov-
ered for a debt contracted after the 30th day of April, 1850;
unless the judgment was recovered wholly for a debt or debts
contracted before the designation of the property, ov for the pur-
chase-money thereof." And the next section prescribes that
designation shall be by recording the deed of the homestead,
or of a notice describing the property, stating that it is de-
signed to be held exempt, subscribed, acknowledged and cer-
tified and recorded like a deed in the Homestead Exemption
Book.i
In construing, the court said : " The first section exempts
the homestead from sale under execution for debts thereafter
contracted, to the value of one thousand dollars. . . . The
second . . . declares that no property shall be exempt
. . . for a debt contracted . . . prior to the recording
of the deed or notice mentioned in the previous part of the
same section." The exemption was held not applicable to in-
debtedness arising from torts, but only to debts created by
contract and antedating the designation of the ho^estead.^
And even the latter were held not to be discharged, as against
the property, but the only efi^ect of the exemption was to post-
pone the lien of a judgment thereon while the homestead
right existed.'
The homestead continues liable, after its designation by the
filing of the deed or notice, for a debt previously created,
under a statute similar to that above cited.*
A statute provides " that no person, after the first day of
March next (1874), who has not made, and had recorded, a
' Throop's New York Code of Civ. s Allen v. Cook, 26 Barb. 374.
Proc, §§ 1397-8, Act of AprillO, 1850. ^New Jersey Eev. Stat, p. 1055,
2Lathrop v. Singer, 39 Barb. 396; § 3; Mut Life Ins. Co. v. Newton
Schouton V. Kilmer, 8 How. (N. Y.) (N. J.), 15 AtL 543.
537. See Cook v. Newman, 8 How. I
(N. Y.) 53a
DEBTS PEIOE TO DESIGNATION OF HOMESTEAD. 293
declaration of intention [to hold homestead as previously pre-
scribed], shall have the benefit of such homestead as to debts
contracted before the recording of such declaration." ' Such
declaration must describe the property; must be duly ac-
knowledged before the proper officer, and must be recorded
in a book kept for the purpose by the clerk of the county in
vsrhich the homestead is situated.^
Such a declaration was duly recorded August 26, 1874, and
the homestead was held ■ exempt as to debts contracted after
that date but not as to any contracted from the first of March
to that date. But, whether debts contracted after the adop-
tion of the constitution and before the first day of March
should be exempt (if the latter date, or a prior one, had been
the time of the recording) was not decided — the court say-
ing that the question was not presented.'
A debtor dying, his widow, in 1880, made the declaration
in behalf of their children ; but as they stood in his shoes, the
homestead was liable for his debts contracted after the date
fixed by the statute.*
Debts are deemed antecedent to homestead acquisition, and
therefore susceptible of being enforced against it, up to the
time when the property is dedicated by both declaration and
occupancy, under some statutes.*
Though the debts antedate the purchase and dedication of
the homestead, and though judgment thereon will bear upon
it, it has been held they may be defeated by the dedication
and occupancy of land as a homestead prior to the rendition
of the judgment. The position of the court was that debts
antecedent to the purchase and dedication (though not to the
passage of the law), to be collectible from the homestead,
1 Acts of West Virginia (1873-3), oh. * Reinhardt v. Reinhardt, 21 W. Va.
193, § 10; Acts of West Virginia 76.
(1881), oh. 19, § 33. Warth's Code, sBoreham v. Byrne, 88 GaL 38,
ch. 41: "Nothing herein contained S6-8, and cases therein cited; Lub-
shall afEect or impair any right ac- bocli v. MoMann, 83 CaL -336 ; Ma-
quired under chapter 198 of the acts loney v. Hefer, 75 Cal. 434; Deni^v.
of 1873-3." Gayle, 40 La. Ann. 291 ; Bossier v.
2 Acts of 1872-3, §9. Sheriff, 37 La. Ann. 363; Code and
3 Speidel v. Schlosser, 13 W. Va Stat. Cal, § 1237 et seq.; Const La.,
686, 701. art 333.
29J; LIABILITIES.
must be liens upon it.' But if they are secured by liens,
homestead laws cannot dislodge them, and there would be no
need of allusion to them in an exemption law. They differ
from ordinary personal debts in their susceptibility of being
collected from the homestead after being prosecuted to judg-
ment. It has been held that a judgment rendered and re-
corded does not operate as a lien upon real estate afterwards
purchased by a judgment debtor, who occupies it as a home-
stead instantaneously with the act of purchase.^
When a lien has attached it cannot be dislodged by anjn
subsequent homestead declaration and occupation of the land
on which it rests.'
§ 5. Debts by Written Contract.
Where " the homestead may be sold for debts created by
written contract executed by the persons having power to
convey, and expressly stipulating that the homestead is liable
therefor, but it shall not in such case be sold except to supply
the deficiency remaining after exhausting the other property
pledged for the payment of the debt in the same written con-
tract," * it is held that the words " created by written con-
tract " refer to the mode of making the obligation rather than
to the time when the liability begins. The written contract,
as evidence of the obligation, may bear date at the time the
debt is contracted or at a later time.'
1 Hawthorne v. Smith, 3 Nev. 164 ; v. Whittle,_50 Ga. 637 ; Gunn v. Thorn-
Culver V. Rogers, 38 Cal. 520 ; Be ton, 49 Ga. 380 ; Burnside v. Terry,
Henkel, 3 Saw. 305. 51 Ga 186 ; Mims v. Ross, 42 Ga. 131 ;
2 Neumaier v. Vincent, 41 Minn. 481. Ryan v. Wessells, 15 la, 145 ; Han-
Compare Kelly V. Dill, 33 Minn. 435, nahs v. Felt, 15 la. 141 ; Hawthorne
and Liebetrau v. Goodsell, 36 Minn. v. Smith, 3 Nev. 164, 168 ; McCau-
417. On this subject see difEerent ley's Estate, 60 Cal. 544; Willis v.
views, in decisions on statutes similar Matthews, 46 Tex. 478 ; Chipinan v.
to that of Minnesota : Deville v. Wi- McKinney, 41 Tex. 76 ; Potshuisky
doe, 64 Mich. 593 ; Reske v. Reske, 51 v. Krempkan, 26 Tex. 307 ; McCpr-
Mich. 541 ; Edwards v. Fry, 9 Kan. mick v. Wilcox, 25 111. 247 ; Ely v.
417 ; Gilworth v. Cody, 21 Kan. 702 ; Eastwood, 26 111. 108 ; Smith v. Marc,
Scofield v. Hopkins, 61 Wis. 570. 26 111. 150 ; Kurz v. Brusch, 13 la.
3 Bunn V. Lindsay, 95 Mo. 250, .^58; 371 ; Lucas v. Pickel, 20 la. 490 ;
Johnson v. Harrison, 41 Wis. 381 ; Bishop's Fund v. Ryder, 13 Conn. 87.
Tuttie V. Howe, 14 Miun. 14-5. 152; * McC.'s la. Code, § 31 68 (1993).
Brooks V. The State, 54 Ga. 36 ; Smith » Stevens v. Myers, 11 la. 183.
DEBTS BY WEITTEN CONTEAOT., 295
Contracts are presumed to include homestead statutes as
well as all others which bear upon the agreement, so that the
rights of the parties remain unafiPected by the subsequent re-
peal of a statute in force when they contracted.' The leie
contractus does not govern so as to affect the operation of
homestead exemption upon the remedy.^
A lien is created by agreement between parties contracting
to that effect, and it has been held that a homestead cannot
be subjected to one in any other way.' But in many states
homesteads may be subjected to liens in other ways. Judg-
ments for torts or taxes create liens. Assessments do. Under
some acts of the United States, liens on homesteads may
arise.
Even a written confession of judgment, in which the de-
fendant consents that execution may issue against any of his
property, " homestead included," is held insufficient authoriza-
tion for the sale of it.* But this is not the law in every state ; '
nor anywhere, if the confession be followed by the rendition
of judgment, provided no interest of wife or children or other
homestead beneficiary intervenes.
It has been suggested that an equitable lien may be created
on a homestead by contract, when money is advanced to re-
move an existing lien, even though the instrument, intended
to create a legal lien in favor of those advancing the money,
should be void.*
The phrase " created by written contract " applies to any
written agreement by competent parties as \V^ell as to deeds
of sale or mortgage ; " but is not to be extended, by construc-
tion, to cover a verbal agreement designed to be reduced to
writing but never written.^ Consent to have the homestead
1 Bridgman v. Wilcut,' 4 G. Gr. (la.) by the debtor, will hold good as
563. against homestead claims of his fam-
2 Helfenstein v. Cave, 3 la. 287. ily — the date of the debt being prior
" Meyer v. Berlandi, 39 Minn. 438 ; to that of the homestead creation, but
Keller v. Struck, 31 Minn. 446 ; Cole- the date of the confession subsequent
man v. Ballandi, 33 Mmn. 144 ; Cogel Martin v. Kirkpatrick, 30 La. Ann.
V. Mickow, 11 Minn. 354. 1314
* Rutt V. Howell, 50 la. 585. * Ayres v. Probasco, 14 Kaa 175,
5 In Louisiana, exemption not ap- 198.
plying to antecedent debts by the act ' Foley v. Cooper, 43 la. 378.
of 1865, it was held t^at confessions of 8 Rutt v. Howell, 50 la. 535.
judgment on prescribed debts, made
296 LIABILITIES.
made liable, by written contract with one creditor, will not
lay the property open to execution by any other creditor; it
is not a general waiver of exemption. If such contract in
favor of a particular creditor be a mortgage, a general cred-
itor cannot be subrogated to the rights of the favored mort-
gagee. The latter would share pro rata with all the other
creditors in case of a general assignment by the owner for the
benefit of creditors, and could only proceed against the home-
stead under his mortgage after the exhaustion of the other
property ; that is, after his share from the general assignment
has proved inadequate to satisfy his claim.^
§ 6. Dormant Liens.
If a statute limits homestead to the time of occupancy, a
judgment against the owner is a dormant lien on the home-
stead which springs to life when occupancy ceases — whether
it cease by sale, abandonment or otherwise.^ This doubtless
needs qualification. Personal judgments against homestead-
holders do not create liens against homesteads, as a general
rille. Where they create dormant ones — liens with enforce-
ment suspended during occupancy — the owner certainly can-
not dislodge them by sale or otherwise.
Where exemption from liability to " attachment, levy or
sale upon execution or other process issuing out of any court "
of the state was limited to the time during which the prop-
erty " shall be owned and occijpied by the debtor as a home-
stead," it was held that a judgment against a debtor in a
court of record in his county created a lien upon the home-
stead, but that such lien could not be enforced while the debtor
owned and occupied it.'
The property may be subjected to liens though they cannot
be enforced while the homestead right exists. They follow
the property, however, and may be enforced when it is in
third hands, after the expiration of the exemption right. The
1 Dickson v. Chorn, 6 la. 19. » McHugh v. Smiley, 17 Neb. 620,
-•Kenerman v. Aultman, 30 Fed. 624; Eaton v. Eyan, 5 Neb. 47 ; State
888, Brewer, J. ; Code Civ. Proc. Neb., Bank v. Carson, 4 Neb. 498 ; Hoy t v.
§ 477; Ses. L. Neb. 1875, p. 45. In Howe, 3 Wis. 752; Folaom v. Carli,5
1879 the homestead law was changed. Minn. 264
Dorrington v. Myers, 11 Neb. 388;
Bank v. Carson, 4 Neb. 501.
DORMANT LIENS. 297
creditor's remedy is thus postponed but not defeated. And
when it becomes operative, it is not too late for the creditor
to have a judgment recognizing a homestead in favor of his
judgment debtor set aside as void because the conditions of
homestead have ceased to exist.' Present inhibition of forced^
sale is not exemption from ultimate liability.^
The general rule of law is (as already remarked), that
when a lien upon land exists before the establishment of the
homestead right upon it, it cannot be displaced by the subse-
quent creation of the right. The lien-holder has his jus ad
rem, and not a mere remedy which may be affected by legis- /
lation. But it has been held doubtful whether such right in
the thing cannot be displaced by the subsequent occupancy
of the thing itself, as a homestead, by the debtor.'
A lien created on a homestead while it is occupied, by a levy
then duly laid, may hold good when the occupancy ceases,
where the statute exonerates homesteads from sale under ex-
ecution, but not from levy ; and does not protect property
from such sale after it has ceased to be a homestead. The
creditor, having made legal seizure, may await the death of the
homestead-holder (and he may even have to wait much longer,
if a wife and minor children survive), and finally sell what
was the homestead, and get tardy payment of his debt. Such
a levy was held to have created a lien which was good against
a subsequent purchase under a mortgage given by the debtor-
owner after the levy.*«
Yet the fee of real estate cannot be sold by order of a pro-
bate court, upon the petition of an administrator, for the
1 Denis v. Gayle, 40 La. Ann. 286. And the constitution of that state
{See Culvitt t. Williams, 35 La. Ann. of 1869 was the same in regard to
335, as to " continuing jurisdiction." ) such liens. Jordan v. Peak, 38 Tex.
2 By the constitution of Texas of 429 ; Petty v. Barrett, 37 Tex. 84.
1845, a lien on the homestead could 3 Hanna v. Morrow, 48 Ark. 107,
be created but was inoperative unless citing Moore v. Granger, 80 Ark. 574 ;
it could be enforced without a forced Patrick v. Baxter, 43 Ark. 175 ; Turn-
sale. Sampson v. Williamson, 6 Tex. linson v. Swinney, 22 Ark. 400 ; Nor-
109 ; Bomack v. Sykes, 24 Tex. 218 ; ris v. Kidd, 38 Ark. 485.
Inge Y. Cain, 65 Tex. 75. When the ■* Brandon v. Moore, 50 Ark. 347 ;
lien-bearing property ceased to be Chambers v. Sallie, 29 Ark. 412 ; Nor-
used as a homestiead, foreclosure was ris v. Kidd, 38 Ark. 485 ; Const, of
allowed. Lee v. Kingsbury, 13 Tex. 1868, Act of 1852.
68; Stewart v. Mackey, 16 Tex. 56.
298 LIABILITIES.
payment of the debts of the intestate, subject to the home
stead right of a minor child, under a constitutional provision
by which the widow and minor children of the decedent home-
stead-holder are entitled to the usufruct of the homestead
during her life and their minority, and which exempts such
property from the lien of any judgment except for purchase-
money, taxes, improvements or indebtedness of fiduciaries.^
Under such provisions, the sale of a homestead by an ad-
ministrator to pay the debts of the decedent, while the chil-
dren were minors, was declared to be void. The administra-
tor had sold under an order of court, and had subsequently
bought the property himself from the purchaser at the pro-
bate sale. On reaching their majority, the children brought
an action of ejectment, to recover the property. The home-
stead right had terminated with their minority ; it no longer
existed when their suit was instituted. But they were held
entitled to the property as heirs : the sale being a nullity ; and
the property, in their hands, was held liable for their father's
debts.^
And dormant liens may be enforced against property that
was homestead but which has ceased to be such.^
Where judgments rest as dormant liens upon homesteads,
enforceable as soon as the family occupancy of the beneficia-
ries ceases, it is reasoned that no higher evidence that the
property is no longer needed as a home need be found than
the fact that the owner has sold it. The conditions, upon
which th© exemption is granted, cease upon sale. Then a judg-
ment or mortgage, previously suspended, becomes operative.^
The lien of a judgment against the owner of a homestead
is dormant as to that property while held by him ; but if he
sell it, the lien awakes to life and may be enforced against the
1 Const. Ark. 1874, art IX, §§ 6, 10 ; 3 Lamb v. Shays, 14 la. 567 ; Cum-
Stayton v. Halpern, 50 Ark. 339 ; mings v. Long, 16 la, 41.
McCloy V. Arnett, 47 Ark. 445, under < Herbert v. Mayer, 43 La, Ann.
Const. 1868, XIV, 5; Act of 1852; 839; S. C, 8 So. 590; Const of La.,
Garabaldi v. Jones, 48 Ark. 236; art 319; Civ. Code La., art 3397;
Nichols V. Shearon, 49 Ark. 75. Denis v. Gayle, 40 La. Ann. 391 ; Hay-
2 Nichols V. Shearon, 49 Ark. 75 ; den v. Slaughter, 43 La. Ann. 385 ;
Altheimer v. Davis, 37 Ark. 316; S. C, 8 So. 919.
Booth V. Goodwin, 29 Ark. 688;
Wehrle v. Wehrle, 39 Ohio St 865.
DORMANT LIENS. 2^9
late homestead property in the hands of the vendee. Should
the vendor of such property repurchase it, before the enforce-
ment of the lien, the exemption would not revive, nor the
lien be displaced or rendered again dormant.^
There may be a suspended judgment lien on a homestead :
as when the statute allows judgments to be docketed against
it but prevents their enforcement during the time the home-
stead remains exempt, yet allows execution afterwards. Mean-
while, the exemptionist may sell the land on which the bene-
fit rests, subject to the judgment, but also protected for the
time being by the suspension of the lien. The purchaser ac-
quires this protection with the land, so far as the homestead
extends with the land.-
" This lien is created by the act of docketing, and eo instanti
attaches to the debtor's estate in the land, and there is noth-
ing else to which it can adhere ; but its enforcement is deferred
by the law until the exemption expires. There is no unde-
fined, shadowy interest, springing into existence in the future,
to which the li.en then attaches itself, meanwhile awaiting its
advent, but it fastens at once upon the estate of the debtor in
the land, to be enforced at a future uncertain time.
" This gives the creditor a present interest in the land as a se-
curity for his debt, and leaves the debtor free to do whatever
an owner, not in debt by docketed judgment, could do with
his own property, with the single proviso that he must not
carry his spoliations, not necessary to the full enjoyment of the
premises, so far as to impair the security they afford to his
debt." »
A lien against a homestead, resulting from the docketing
of a judgment, may be enforced on the death of the debtor
who leaves no widow or children.*
There is no need of a levy to complete the lien, in.such case.'
I Herbert v. Mayer, 43 La. Ann. ^ Smith, C. J., in Jones v. Britton,
839; Denis v. Gayle, 40 La, Ann. supra.
291; La. Const., art. 219; Civ. Code, < Rogers v. Kimsey,-101 N. C. 559.
3391 Held, that since the act of 1876-7,
'''Jones V. Britton, 102 N. C. 167; chapter 253, no lien is created on the
Jtankin v. Shaw, 94 N. C. 405 ; Mai'k- homestead by docketing a judgment,
ham V. Hicks, 90 N. C. 204 ; Wilson Utley v. Jones, 92 N. C. 261 ; Mark-
V. Patton, 87 N. C. Sib; Hinton v. ham v. Hicks, 90 N. C. 204.
Adrian, 86 N. O. 61. 6Lytle v. Lytle, 94 N. C, 683;
300 LIABILITIES.
The holder of this dormant lien is not a reversionist ; he
cannot bring an action of waste. The homestead is not a
determinable fee, nor a reversionary estate. The occupant
may commit waste without becoming liable to the action of
waste. But there is a limit : he must not wantonly and uri-
necessarily reduce the value of his M^hole premises so as to
impair the value of the lien which is enforceable on the home-
stead when the exemption shall have ceased.^
The committing of waste, such as the cutting of the wood
ofif the premises, may be enjoined where there is a judgment
operating as a lien upon a homestead worth not more than
the statutory limit of value, if the wood-land constitutes a
valuable part of the property. An injunction may be issued
restraining the homestead occupant himself from cutting tim-
ber beyond what is necessary for his own use ; or restraining
a third person, to whom he has sold the wood, from cutting
and hauling it away.^
May a valid lien be displaced by the death of the debtor? It
has been held so ; held that his lien-bearing property may be
relieved by that event, in favor of his family, if he was occu-
pying it as a homestead when he died. It is said: "Had he
lived, such use of the property could not have displaced the
lien given by him ; upon his death, however, the property, to
the extent of the interest which he owned at the time the
trust deed was executed — the same having become in fact his
homestead — was discharged of the lien, and his family were
entitled to hold it free from the claims of all creditors, his
estate being insolvent.
" It matters not what the lien may be ; unless it be such as
under the constitution may be enforced by the sale of the
Sawyers v. Sawyers, 93 N. C. 321 ; The " reversionary intei'est " could be
Lee V. Eure, 93 N. C. 5 ; Miller v. sold in that state formerly ; i. e., the
Miller, 89 N. C. 403 ; Mebane v. Lay- land subject to the homestead right,
ton, 89 N. C. 396. The husband could sell it without
' Formerly held a determinable fee, joinder by the wife. Jenkins v.
in North Carolina. Poe v. Hardie, Bobbitt, 77 N. C. 385. This was be-
65 N. C. 447. Then called a "deter- fore 1870.
minable exemption." Bank v. Green, 2 Jones v. Bfitton, 102 N. C. 166;
78 N. C. 247. A quality of exemp- Webb v. Boyle, 63 N. C. 271 ; Gordon
tion attached to existing estate. Lit- v. Lowther, 75 N. C. 193 ; Braswell v.
tlejohn V. Egerton, 77 N. C. 379; Morehead, Busb. Eq. 26; Camp v.
Keener v. Goodson, 89 N. C. 273. Bates, 11 Conn. 51.
DORMANT LIENS. 301
homestead, upon the death of the head of the family, it must
give way to the homestead exemption.
" Persons, in taking liens, contract with reference to this
fact, and cannot complain if the event occurs which they
might have foreseen would defeat the lien." '
It will be observed that the statement in this quotation is —
not that the occupancy — setting apart or designating of the
homestead ^ — displaced the lien, but that the death of the
debtor did so. Th^ property was indebted; it was liable to be
proceeded against in rem, whoever might hold the title ; and
it is therefore difficult to perceive how the death of him who
pat the burden on could take it off. As the lien-holder had
a vested right in the property,^ it is equally difficult to see
how any legislature, or convention making a state constitution,
could impair that right. And it would seem to follow that
"persons, in taking liens," may contract with reference to
constitutional guaranties, and conclude that, if the lien is valid
when made, the property cannot escape its indebtedness by the
death of anybody.
The theory of the court rendering the decision is that the
lien was only conditionally .m rem when created; that the
statute qualified it, so that the creditor knew when contract-
ing that his lien was defeasible by the death of the debtor. This
novel exception to the general rule governing property obli-
gations leaves the rule itself intact, unaffected in the states to
which this statute and decision are inapplicable.
That court has frequently avowed the principle that an at-
tached lien cannot be detached by exemption ; that when a
judgment lien has attached to real property, it cannot be ren-
dered nugatory by any attempt of the debtor to stamp the
lien-bearing property with the homestead character.'
Liens resting on the homestead are not displaced to give
the widow and minor heirs an exempt home at the expense of
the lien-holders.'*
A privileged debt, bearing on no particular property spe-
• 1 Griffie v. Maxey, 58 Tex. 314, cit- Reed v. Howard, 71 Tex 304; Wright
ing Reeves v. Petty, 44 Tex. 350. v. Straub, 64 Tex. 66 ; Gage v. Neb-
2 Bank v. Morris, 6 Hill, 363. lett, 57 Tex. 374
s Van RatclifE v. Call, 73 Tex. 495 ; ■* Pbipps v. Acton. 13 Bush, 375.
302 LIABILITIES.
cially, ought to be satisfied out of other than the homestead
property, if practicable.'
§ 7. Attachment Liens.
(1) Claiming homestead after attachment: "When the law
gives the right of attachment for debt, it gives also that of sale
to complete the object : the satisfaction of the debt. " Such
right is, from the time the lien attaches by seizure, a vested
right and property. In this respect, there is no difference be-
tween a lien secured by a levy of an attachment and one se-
cured by the docketing of a judgment, or the levy of an exe-
cution, except that it may be defeated by the dissolution of
the attachment, or failure to obtain judgment." This was
said in deciding that an owner cannot defeat an attachment
lien by selecting the attached property as his homestead after
the seizure. And it is added : " There is no reason to suppose
from the language, either of the constitution or of the statute,'
that it was intended to give to the debtor the power, by his
acts, to deprive others of rights' previously obtained in his
property. They could be deprived of such rights only by due
process of law." '
There is an unguarded remark, in the quotation from the
decision first above cited, that, in respect to the vested right
of the lien-holder, " there is no difference between a lien se-
cured by a levy of an attachment and one secured by the
docketing of a judgment or the levy of an execution, except
that it may be defeated by the dissolution of the attachment
or failure to obtain judgment." There is this marked differ-
ence : the attachment lien always bears on specific property
while the ordinary judgment creates a general lien. And this
is an important difference in its bearing on subsequent home-
stead selection, as will be pointed out particularly hereafter.
It is true, as judicially said, that there is no difference be-
tween the liens as to the creation of vested rights; but the
point to which attention is called (and which perhaps was not
pertinent to the thought of the court), is that there is no
vested right lodged in the judgment creditor by a general
1 Harrison v. Obertheir, 40 Tex. 885. 3 Kelly v. Dill, 23 Minn. 433, 439;
2 Constitution and Stat, of Minn. Tuttle v. Howe, 14 Minn. 145,
ATTA.CHMENT LIENS. 303
judgment which would preclude the debtor from claiming,
homestead in realty levied upon under the judgment, before
or at the time of the levy, since tljere would.be no specific
lien upon it. Other realty of his might satisfy the judgment.
Whether the debtor would be permitted to claim home-
stead in realty specifically burdened by an attachment lien,
when the creditor has a vested right of lien on the particular
property claimed, is a diflPerent question ; and a question that
has been fully answered by the decisions next cited. The an-
swer is negative — except that, as against other than the at-
tacher, the homestead may be legally claimed.
When property, not exempt from execution, has been at-
tached, no subsequent action of the owner, such as claiming
it as a homestead, moving upon it, making it the family home
and complying generall)' with the legal requisites for estab-
lishing a homestead, will defeat the attachment lien. When
the preliminary seizure has been effected legally, it precludes
homestead dedication as effectually as levy after judgment
could do so.'
So, an attachment not dissolved is like an execution levy
not set aside. Either is a bar to homestead claim, but either
may be removed or dissolved on proper pleading and proof so
as to make way for homestead claim.
Again it is said, under a different statute, that attachment
of land for debt is not defeated by the debtor's becoming a
resident of the state and claiming homestead after the levy
but before the inchoate lien has been perfected by judgm«nt.^
That is to say, the inchoate lien is not displaced by the mere
compliance with the requisites for obtaining a homestead
without taking steps in the attachment case to dislodge the
lien. Such a homestead would be subject to the lien subse-
quently perfected by judgment.
To the same effect, it is said under another statute that at-
tachment of real estate having been laid so that the lien has
taken hold, it is not dislodged by the subsequent conversion
of the realty to homestead purposes.' When the lien is ma-
1 Avery v; Stephens, 48 Mich. 246. 3 Bullene v. Hiatt, 13 Kas. 98 ; Rob-
2Watkins v. Overby, 83 N. C. 165 ; inson v. Wilson, 15 Kas. 595.
Ladd V. Adams, 66 N. C. 164; Mc-
Keithan v. Terry, 64 N. C. 25.
304 LIABILITIES.
tured by judgment, it will be held, by the law of retroaction,
to have existed as a perfect lien from the date of the levy,
and therefore prior to the dedication of the land levied upon,
as a homestead. The decisions may riot show the distinction
above indicated, between the contingent and the perfected at-
tachment lien, but they hold that subsequent homestead selec-
tion will not defeat a prior lien.^ And that the lien of a judg-
ment on attachment reaches back, by the law of relation, to
the date of the preliminary levy.^
Should an attachment of a house and land be made, yet the
inchoate,, contingent lien, thus created, be never ripened by
judgment, the homestead dedication of the seized property
between the dates of seizure and the judgment .of dissolution,
would be perfectly good. What had seemed a lien upon it
was no lien, since the dissolution, by the law of relation, re-
troacts as well as the other sort of judgment mentioned.
And, as above remarked, even though the attachment be
sustained by judgment, the homestead established after the
attaching and before the judgment would hold good as to
ordinary creditors, though not as to the attaching creditor.
The rule may be thus briefly stated : The lien created by the
levy of an attachment is not displaced by the making a home-
slead of the land attached, before the lien has been followed
by judgment.*
After judgment sustaining an attachment, it is too late to
claim homestead in the attached property as against the per-
1 Lee V. Miller, It Allen (Mass.), 37 ; MoKinney, 41 Tex. 76 ;' Potshuisky v.
Elston V. Robinson, 21 la. 531 ; Tour- Krempkan, 26 Tex. 307 ; Reynolds v.
villa V. Pierson, 39 111. 447 ; Kresin v. Tenant, 51 Ark. 84 ; Richardson v.
Matr, 15 Minn. 116; Coolidge v. Adler, 46 Ark. 43 ; Patrick v. Baxter,
Wells, 20 Mich. 79 ; Hale v. Heaslip, 42 Ark. 175 ; Ryan v. Wessels, 15 la.
16 la. 459 ; HyatI, v. BuUene, 20 Kas. 145 ; Hannahs v. Felt, 15 la 141 ; Bul-
557 ; Kelly v. Dill, 23 Minn. 435. lene v. Hiatt, 12 Kan. 98 ; Robinson
2 Wright V. Dunning, 46 111. 976; v. Wilson, 15 Kan. 595; Carter v.
Austin V. Stanley, 46 N. H. 51 ; Tuttle Champion, 8 C.onn. 549 ; Lyon v. San-
T. Howe. 14 Minn. 145 ; Tuttle v. ford, 5 Conn. 544 ; Kelly v. Dill, 23
Turner, 28 Tex. 773. Minn. 435 ; Tuttle v. Howe, 14 Minn.
3 Baird v. Trice, 51 Tex. 555 (over- 145 ; Smith v. Bradstreet, 16 Pick. 264 ;
ruling Stone V. Darrell, 20 Tex. 11); People v. Cameron, 7 111. 468; Peck
Clements v. Lacey, 51 Tex. 150 ; Rail- v. Webber, 7 How. (Miss.) 658 ; Goore
road Co. v. Winter, 44 Tex. 597 ; Mabry v. McDaniel, 1 McCord, 480.
T. Harrison, 44 Tex. 286 ; Chipman v.
ATfAOHMENT LIENS. 306
fected attacliment lien.' For then the debt sued upon has be-
come a property debt, like a mortgage. It is no longer an
ordinary one, as it was before, but it now is secured by a lien
on specific property.
This effect of the attachment judgment does not depend
upon the defendant's course — his appearance in the case or
his absence and default. Whether the attachment proceedings
were i/nter partes or ex parte; whether inpersonamk or in rein,
this effect is the same ; for the defendant in any case must
have had notice, either by service or publication, so as to have
had opportunity to defend, else the whole proceeding would
be null and void. If notified, whether he respond or not, the
proceedings, if done according to statute, and continued to
judgment^ will result in a valid, specific lien vindicable upon
the property attached as that of the debtor. All the reasons
applicable when the defendant appears and defends, yet fails
to plead homestead, apply also when he stays away and allows
default or allows judgment in rem. The lien created is the
same in either ,case. It would be a mere mockery to have at-
tachment proceedings if their result could be defeated and the
lien dislodged by subsequent claim. The general rule is that
the lien will stand.
This rule is not without exception ; or, rather, it is not al-
ways followed ; for in the state affording several of the above-
cited decisions, it has been narrowed, if not disregarded.
After an attachment had been sustained by judgment, the
debtor, in a separate action, successfully asserted homestead
in the land attached;^ It was remarked by the court, in ac-
cording the homestead, that the debtor had not defended in
the attachment suit. "Whether that fact made a difference is
not apparent ; for any attachment without notice is a nullity ;
while any with notice may be defended ; and the failure of
the debtor to defend cannot affect its legality.
It is said that' property not exempt at the date of judgment
I Perkins v. Bragg, 29 Ind. 507; 395 ; Kelly v. Dill, 23 Minn. 435 ; Bar-
State V. Manly, 15 Ind. 8 ; Smith v. ney v. Keniston, 58 N. H. 168 ; Drake's
Chadwick, 51 Me. 515 ; Hadley v. Att, § 244oi; Waples' Att & Gar.,
Bryars, 58 Ala. 139 ; Hewes v. Park- pp. 164-7 ; post, ch. XXIII, § 17.
man, 20 Pick. 90 ; Nash v. Farrington, 4 ^ Seligson v. Collins, 64 Tex. 314.,
Alien, 157 ; Behymer v. Cook, 5 Colo.
20
306 ' LIABILITIES.
may become so by being dedicated as a homestead before the
time of sale.' This is so in several states, as to general judg-
ments. The debtor selects his homestead before sale. No
lien is therebj'^ dislodged; no vested right of the judgment
creditor is thereby divested ; for the judgment creates none.
It is rendered subject to the right of the debtor to select his
exempt portion, l^o «pecific lien rests upon any piece of the
defendant's property. So, the particular piece selected after
judgment, not exempt at the time of the judgment, becomes
so by selection, before sale.
But an attachment judgment does affect particular prop-
erty — does confirm a specific lien upon the property attached
and makes it as good as a mortgage: how now can subsequent
selection of it as a homestead be tolerated without divesting
the lienholder of a vested right?
Where recording is essential to the creation of an attach-
ment lien, there is no reason why homestead may not be de-
clared between the act of attaching and the date of recording.
There would then be no lien in the way.^ If the attachment
be recorded after the homestead declaration, it may be dis-
solved on showing that the attached property is exempt by
reason of the timely homestead declaration.
On the other hand, if the recording of the declaration of
homestead is necessary to exemption, the property may be
validly attached before the recording; and, even though the
proceeds of a former homestead have been invested in realty
designed for a new one, it has been held that the new prop-
erty is attachable before the recording of the homestead dec-
laration.'
1 Trotter v. Dobbs, 38 Miss. 198 ; of trust had a homestead interest,
Lessley v. Phipps, 49 Miss. 790. In from the date of the recording of his
Davis V. Day (Ark.), 19 S. W. 502, it deed.
was held that an execution sale did '■'Wilson v. Madison, 58 Cal. 1 ; Mc-
not convey the homestead interest of Craoken v. Harris, Si Cat 81 ; Sulli-
a claimant under a trust deed made van v. Hendrickson, 54 Cal. 258 ;
and recorded after the judgment but Hawthorne v. Smith, 3 Nev. 185.
before the sale. The judgment, being ' Eev. Stat, of Idaho, §§ 3071-2,
founded upon a debt contracted 3088-9; Wright v. Westheimer
under the constitution of 1874, was (Idaho), 28 P. 430. The court, by
not a lien upon the homestead of the Sullivan, C. J., said, after stating the
defendant Cohn v. Hoffman, 45 facts : " The third and fourth specifi-
Ark. 376. The holder of the deed cations of error will be considered
ATTACHMENT LIENS.
307
(2) Attaching after homestead has heen established: It is set-
tled Deyond question that homesteads are as free from attach-
ment as from execution. If their owners use the means pro-
vided by law, the}'' can effectually defeat any effort to subject
together, and are as follows : Third.
' The court erred in failing to find
that said property was exempt from
execution and attachment, and was
not subject . to the debt sued on by
Westheimer & Sons against the
plaintiff.' Fourth. 'The court erred
in failing to hold that the property
in dispute in this action was exempt
from seizure, levy, and sale under
execution and attachment, because
of the fact that plaintiff procured the
money to purchase this property from
the sale of property on which he had
a valid homestead exemption under
the laws of the state of Idaho.' The
contention is that, as the property at-
tached had been purchased with the
proceeds of the sale of the homestead
of appellant, and that as appellant
purchased said property as a home
for himself and family and filed his
homestead declaration therefor as
soon as he had established his resi-
dence thereon, the same is exempt
under the homestead laws. The
question for consideration, th'in, is,
under the homestead laws of the
state of Idaho, can a person sell his
homestead, which is exempt from
execution and forced sale, and pur-
chase another home with the pro-
ceeds thereof, and hold the same,
exempt from execution and attach-
ment, without filing in the proper
county recorder's office the declara-
tion of homestead required by sec-
tion 3071 of the Revised Statutes of
Idaho? The evidence contained in
the record establishes the following
facts: That the appellant, with his
family, consisting of a wife and eight
small children, was residing in the
town of Blackfoot, Bingham county ;
{hat he was the owner of the home
in which he was then residing ; that
he had filed in the proper recorder's
oflSce his declaration of homestead,
claiming the said property as a
homestead, and that the same was
exempt from execution and forced
sale; that, being indebted to divers
persons, he concluded to sell said
homestead, purchase another of less
value, and pay certain of his ci-edit-
ors with the surplus. He thereupon
sold his homestead, paid part of his
debts, and invested $1,000 of the pro-
ceeds of the sale of said homestead
in the lots and premises in ques/tion,
for the purpose of making a home for
himself and family. He removed his
family thereon about December 3 or 4,
1890, and filed his homestead decla-
ration therefor on December 4, 1890.
That appellant filed his homestead de-
claration after the levy of the attach-
ment, on November 21, 1890, and be-
fore the levy of the second wiit of
attachment, December 5, 1890. The
second writ of attachment is not a
lien upon said homestead, because
the homestead declaration was filed
prior to the levy of said writ. Rev.
St. Idaho, § 3039. The writ of at-
tachment, levied upon said premises
on November 21, 1890, is a valid lien
thereon, unless the fact of its having
been purchased with a part of the
proceeds arising from the sale of the
fonner homestead of appellant ex-
empts it from such lien. Section
3070, Rev. St. Idaho, is as follows:
' In order to select a homestead, the
husband or the head of the family,
or, in case the husband has not made
such selection, the wife, must ex-
ecute and acknowledge, in the same
308
LIABILITIES.
such property to the payment of judgments, on ordinary debts
contracted after it became exempt, under the operation of
either writ. In other words, the general rule is that home-
manner as conveyance of real estate
is acknowledged, a declaration of
homestead, and file the same for rec-
ord.' Section 3071 provides what
such declaration must contain. Sec-
tion 3072 provides that such declara-
tion must be recorded in the oflSce of
the recorder of the county in which
the land is situated. Section 8078
provides that, after the filing of the
declaration for record, the premises
therein described constitute a home-
stead. Section 3038 provides that
the homestead is exempt from exe-
cution and forced sale, except as
provided in title 7 of the Revised
Statutes. Section 3039 provides that
the homestead is subject to execution
or forced sale in satisfaction of judg-
ments obtained for certain debts and
incumbrances, and, among others, in
an action in which an attachment
was levied upon the premises, before
the filing of the declaration of home-
stead. This provision applies to the
case at bar, unless it is excepted for
the reason of its having been pur-
chased with the proceeds of the
former homestead. The writ of at-
tachment was levied November 21,
1890, the homestead declaration was
filed December 4, 1890. Section 3041
provides that a homestead can be
abandoned only by a declaration of
abandonment, or a grant or convey-
ance thereof, executed and acknowl-
edged by the husband and wife, if
the claimant is married, and by the
claimant, if unmarried. From the
above provisions it will be observed
that to select a homestead in this
state, under the homestead law, cer-
tain things must be done and per-
formed before it is a homestead, or is
exempt from execution and forced
sale, and that after a homestead has
been once acquired it can be aban-
doned only as the statute prescribes.
The appellant in this case abandoned
his first homestead by selling and
conveying it to one C. S. Smith.
There is no pi-ovision in the statutes
of Idaho exempting the money for
which a homestead may be sold from
execution or attachment until it may
be invested in another homestead,
except in cases of involuntary sales,
which provision is not applicable to
this case. Our statutes are silent
upon the question under considera-
tion. They contain no provisions for
an exchange of one homestead for'
another, nor the purchase of another
with the proceeds of the sale of the
one exempt, nor for the exemption
of the new homestead so purchased.
. . . The statutes of some of the
states permit the exchange of one
homestead for another, and the sale
of one, and with the proceeds thereof
the purchase of another, and hold
the latter exempt from attachment
and execution; but states having
such statutes do not require the
making and filing of a homestead
declaration as a precedent condition
to the procurement of a homestead,
and its exemption from attachment
and execution. We are of the opinion
that, under our statutes, a residence
purchased with the proceeds of the
sale of a former homestead, which
was exempt from attac^mept, and
execution, does not for that reasou
become a homestead, and. exempt
from attachment and execution un-
der our homestead laws. The re-
quired homestead declaration must
be filed in order to secure the benefit
of the exemption, laws. The judg-
ATTACHMENT LIENS. 309
steads are not attachable for such debts.^ They are liable fo;!r
debts contracted before the time when the exemption charac-
ter was impressed on the homestead, and they cannot be saved
from the effect of the writ by pleading that character under
such circumstances.^ Homesteads, being exempt from ordinary
debts contracted after they have been established, may be
saved from attachment by timely plea, just as they may be
saved from execution by the same means. The ordinary cred-
itor cannot make his debt a lien-bearing one as to the debtor's
hom'estead by means of .attachment if the debtor will exercise
his right to have the attachment dissolved by showing to the
court, in the attachment proceedings, that the attached prop-
erty is exempt.'
Will the attachment of a homestead be effectual, if the
debtor fail to plead exemption to dissolve it? If he sit idly
by and see the attachment followed by judgment against his
homestead, will the effect be to fasten a lien upOn the prop-
erty? Or would the whole attachment proceeding be an ab-
solute nullity?
It is said to be unnecessary for the defendant to set up his
homestead right when the plaintiff has made no allegation rel-
ative to it which requires an answer.^ But, though there be
no mention of the debtor's homestead in the attachment plaint-
iff's pleadings (as there ordinarily is not), the sheriff's return
is in the case ; and if that shows that the homestead has been
attached under the pleadings, is there no necessity for the de-
fendant to set up his homestead right if he would save it ?
ment of the court below should be 13 Johns. 320 ; Wilson v. Paulson, 57
affirmed, and the respondents are Ga. 596 ; Cox v. Milner, 33 111. 422 ; Sa-
entitled to judgment against the ap- very v. Browning, 18 la. 246 ; Nash-
pellant for their costs on this appeal, ville Bank v. Ra'gsdale, Peck, 296 ;
and it is so ordered." Davis v. Garret, 3 Iredell, 459.
1 Plant V. Smythe, 45 Cal. 161 ; My- 2 Peake v. Caimeron, 102 Mo. 568.
ers V. Mott, 29 Cal. 359 ; Crocker v. SHadley v. Brj^ars, 58 Ala. 139;
Pierce, 31 Me. 177 ; George v. feassett, Kelly v. Dill, 23 lilinn. 435 ; Barney
54 Vt. 317 ; Powell v. Powell, 58 Vt. v. Kenistbfa, 58 N. H. 168 ; Perkins v.
303; Parks v. Cushman, 9 Vt. 320; Bragg, 29 Ind. 507 ; Clapp v. Thoinaa,
Pierce v. Jackson, 6 Mass, 243 ; Spen- 5 Allen, 158 ; Nash v. Farrington, 4
car V. Blaisdell, 4 N. H. 198; Halsey Allen, 157; Colson v. Wilson, 58 Me.
V. Fairbanks, 4 Ma;sOn, 206; Sapping- 416; Smith v. Chadwick, 51 Me. 515;
ton V. Oeschli, 49 Mo. 344; Reed v. Behymer v. Cook, 5 Colo. 395.
Ownby, 44 Mo. 204; Peake v. Cam- < Willis v. Matthews, 46 Tex. 483;
eron, 102 Mo. 568 ; Handy v. Dobbin, Tadlock v. Eccles, 20 Tex. 790.
310 LIABILITIES.
The general propositipn is true that an attachment lien can-
not be created on exempt property,' provided the exemption
is pleaded ; provided the defendant uses the means of prevent-
ing such result. Courts are not presumed to know that the
attached property is exempt. Even where homesteads are re-
corded, and where the record is notice to all the world, it is not
notice to the courts in such a sense as to require or even to
authorize them to take judicial cognizance of the exemption.
^Even if they were deemed affected by the notice, may tiiere
not be a homestead waiver? If the defendant chooses to let
his homestead become saddled with a property debt, is the court
to prevent him? If he chooses to let his homestead be sold
under an ordinary judgment and" execution, is the court to pre-
vent him? Leaving out of the question all others' rights,
and confining the matter in hand to the exemptionist himself,
it seems that he would be concluded by allowing his home-
stead to become subject to a perfected lien ; and that an attach-
ment would ripen into such a lien if allowed to take its course,
whether the res be a homestead or some other thing.
It has recently been held that a defendant whose homestead
is attached may delay "till after judgment and tjien success-
fully claim the res?
This ruling was made in a case where a debtor claimed
homestead in' property on which he had not lived for six years,
and who had had a home elsewhere during the time. On the
trial he professed to have had an intention to return during
his absence. It was not a case of selection after general judg-
ment, but of maintenance of homestead despite a lien created
by attachment proceedings in which he had not sought to dis-
solve the attachment on the ground that the res was his home-
stead and therefore exempt. The doctrine of the case is that
the attachment of a homestead is an absolute nullity. The
court said such conclusion relative to attachment had never
before been declared in the state, but referred to cases in
which it had been " adverted to." '
The facts of this case show the danger of the doctrine. The
defendant's long absence, with a home elsewhere, may have
1 Ackley v. Chamberlain, 16 Cal. ' Citing Irwin v. Taylor, 48 Ark.
181 ; Bowman t. Norton, 16 Cal. 220. 226 ; Reynolds v. Tenant, 51 Ark. 87 ;
* Robinson v. Swearingin (Ark.), 17 Richardson v, Adler, 46 Ark. 43.
S. W. 365.
ATTACHMENT LIENS. 311
led the attaching creditor to believe that he had abandoned
his homestead ; and an abandoned homestead is always liable
to attachment.^ The plaintiff could not know of his debtor's
secret intention to return during his six years of absence. This
is only one of many cases in which the continuance of a de-
clared homestead is doubtful. If the exemptionist need not
plead to attachment, but may sit supinely by and treat the
proceeding as an absolute nullity, he could thus put his creditor
to disadvantage in all doubtful cases. He could keep him
from attaching liable property after this exempt property, to
an amount sufficient to satisfy the debt, had been attached.
And there are so many cases of doubtful homestead right,
constantly occurring, that the rule of absolute nullity would
prove mischievous. On the other hand, it is always perfectly
■easy and practicable for the homestead holder to set up his
exemption in the attachment case, and have the attachment
dissolved.
It is true that the attaching creditor has notice, either by
record or known occupancy, that the homestead is exempt ;
and, therefore, it may be argued that the debtor ought not to
be required to go to the trouble and expense of pleading his
exemption right in order to defeat an attachment. But the
debtor's hardship is no greater tbjan that of any property-
holder who has a perfect title, yet is driven to defend and set
it up against an action of ejectment. It seems for the public
good that, instead of letting a homestead-holder sit by till an-
attachment has ripened into judgment and then claim exemp-
tion, the better rule would be that he must plead his right be-
fore judgment, or be deemed to have waived it.
If, under the operation of this rule, the occupant of a re-
corded or otherwise publicly known homestead should be
wantonly put to expense and annoyance by fruitless attach-
ments, he has such remedy in damages as one would have for
ejectment suits brought without color of cause, merely to
worry him and subject him to expense.
In the present ^tate of the law as given by the courts, it is
the safer course for the practitioner to plead homestead in an
attachment case and have the suit set aside, rather than to
1 Larabee v. Wood, 54 Vt. 453 ; Goodall v. Boardman, 53 Vt 93.
312
LIABILITIES.
risk his client's right of homestead by allowing the case to go
on to judgment. Should the court, after judgment, hold that
a valid lien has been fastened on the property, it must be re-
membered that it is well settled homestead law that there can
be no exemption against any valid lien.
It is not only safer to plead, but it is'neoessary to do so to
save the homesiead wherever non-action is deemed waiver.
Presumption of waiver, created by failure to plead exemption,
may possibly be removed ; ' but it cannot be done eflfectually
after the maturity of a valid attachment lien. And it is not
universally conceded that the lien may be saddled on a home-
stead when the defendant allows the case to go on to judg-
ment against him because of his failure to defeat it by plead-
ing pxemption. Even where he appeared in the case and set
up other defenses but neglected this, he was not held to have
waived his homestead immunity, but allowed to claim it after
judgment, in an attachment case. The court mentioned the
fact that exemption had not been pleaded, by way of argu-
ment to prove that it had not been passed upon by the court,
and was therefore still available.
The court said : " The only question involved in this case is
whether lot No. 5, in block No. 16, in the city of Bunker Hill,,
in Russell county, was and is exempt as a homestead from a
certain attachment and judgment and order of sale. The at-
tachment was levied upon the property on June 30, 1888.
The judgment was rendered on October 8, 1888, and the prop-
erty was sold on an order of sale issued on such judgment on
January 26, 1889; and on March 2, 1889, Andrew Hill, who
was the defendant below, and the judgment debtor, and who
is now the defendant in error, moved the court to set aside
the sale upon the ground ' that at the time of the rendition
of said judgment said lot 5, block 16, was, and for a long time
prior thereto had been, and ever since has been, a part of the
homestead of said defendant and his family, used and occu-
pied as such, and exempt from seizure and sale by virtue of
process issued on such judgment.' The court sustained the
riiotion, and the plaintiff, M. HoflFman, brought the case to
this court for review. As the court below found in favor of
1 Hoisington v. Armstrong, 33 Kas. 110.
ATTACHMENT IJEN8. 313
Hill, the party claiming the property as his homestead, and
against Hoflfman, the party claiming under the attachment,
the judgment, and the order of sale, and the sale, it will be
proper for this court to construe the evidence introduced
upon the motion to set aside the sale liberally for the purpose
of upholding the views of the court below ; and, construing
the evidence in this manner, we think the facts of the case are
substantially as follows : For several years prior to the levy
of the aforesaid attachment Hill was the owner of lots ISTos. 5
and 6, in block ISTo. 16, in the city of Bunker Hill. These lots
adjoined each other, and constituted only a single tract of
land, and together contained only about one-eighth of an acre.
Hill was the head of a family consisting of himself and his
wife and an adopted daughter. There was a building on lot
No. 6, the porch of which extended over the boundary line
between the two lots and onto lot JSTo. .'5, which building Hill
and his family occupied and used as a residence, and also as a
hotel and boarding-house. There was also a building on lot
'So. 5, which Hill and family used in connection with their
residence, hotel and boarding-house. There 'were also out-
buildings partly on both lots. Hill and his family in fact used
these two lots together as a homestead and for hotel and
boarding-house purposes ; and this they had done for several
years prior to the levy of the aforesaid attachment, and they
still occupy the same for such purposes. Hoffman claims that
the property is not a homestead under the provisions of the
homestead exemption laws, for several reasons, but none of
them are tenable. He also claims that the question as to
whether the property was a homestead or not had been pre-
viously determined by the court upon a motion to dissolve
the attachment, and had therefore become res adjudicata.
But the motion to dissolve the attachment was not based
upon the ground that the property was a homestead, nor did
it in any manner present any such ground ; and it was not
filed or iprosecuted by Hill and wife, but by Hill alone. Mrs.
Hill was not a party to the action, nor did she make any ap-
pearance in the case ; and it does not appear that she ever
consented to the attachment or the judgment or the order of
. sale or the sale. The motion to discharge the attachment was
based upon the ground that the grounds for the attachni'ent
814 LIABILITIES.
were not true. We think the decision of the court below in
this case must be affirmed." ,
And the court further added that it had held uniformly that
no alienation of the homestead of a husband and wife, and no
subjeetion of it to any lien or incumbrance, can be effected
without their joint consent, except for taxes, purchase-money
and improvements.'
Doubtless joint action is requisite in selling their homestead
or voluntarily subjecting it to any lien ; but are the three lia-
bilities, named by the court, the only, exceptions to the crea-
tion of liens without their consent? There are several federal
statutes under which liens may be created upon a homestead.
If the householder establish a distillery upon his homestead
lot without paying the required tax in advance and without
complying with the other requisites, the land and buildings
as well as the paraphernalia of the distillery may be seized
and a lien thus created under which the government may pro-
ceed in rem and have the homestead condemned and sold as
forfeited.^ There may be forfeiture of realty under an insur-
rection law still upon the statute-book, by process m rem,^
and homesteads form no exception. Judgments for torts are
usually enforceable against homesteads.
The court probably meant that, as a general rule, married
persons must join in order to sell or incumber their home-
stead, but did not think it necessary to advert to forfeitures.
The particular thing meant was that attachment is not an ex-
ception; But would it be denied that they may waive exemp-
tion, in case of attachment, either expressly or impliedly?
And could there be stronger implication than failure to plead
exemption when setting up other defenses? It would have
been an effective plea in the attachment case under review.
The attaching creditor would have asked that the homestead
be segregated from the part not exempt, and would have main-
tained his attachment as to the latter, if the plea had been
filed. As it was, he was cut off from all remedy by the laches
of the defendant. The court stated that the property at-
tached was not all in use as a homestead, yet held all free
iHoflfmau v. Hill (Kas.). 38 P. 633, Blatch. 193; Dobbins' Distilleiy, 96
citing Morris v. Ward, 5 Kas, 339. U. S. 395.
2 United States v. A Distillery, 3 sU. S. Rev. St, §§5308-11.
ATTACHMENT LIENS. 315
from the attachment that had been prosecuted to judgment
in default of an exemption plea. The opinion states : " It fol-
lows from the decisions made by this and other courts of last
resort that it makes no difference that the homestead, or a
part thereof, may be used for some other purpose than as a
homestead where the whole of it constitutes only one tract of
land not exceeding in area the amount permitted to be ex-
empted under the homestead exemption laws, and where the
part claimed as not a part of the homestead has not been .
totally abandoned as a part thereof by making it, for instance,
'another person's homestead or a part thereof, or by using it
or permitting it to be used in some other manner inconsistent
with the homestead interests of the husband and wife." '
It has been decided, upon reasoning which should pass cur-
rent everywhere, that when a portion has been segregated
from the homestead, the attachment of it cannot be defeated
by the plea of exemption.^
In states where the homestead-holder must plead his rights
against attachment (as well as against ejectment or any other
wrongful procedure against his homestead), the plaintiff's rights
are secured ; for he may cause an excessive homestead to be
laid off, or an abandoned portion segregated, when he finds
that his suit will not hold all that has been attached, upon the
defendant's claiming exemption. And, if all is exempt and so
' Contra, a wife has been held con- that there was sufiScient evidence ad-
cluded by her husband's not pleading, duced to sustain thg^ court in finding
Baxter v. Dear, 24 Tex. 17. that the debtor had manifested the
2 Curtis V. Des Jordins (Ark), 17 intent to contract the limits of his
S. W. 7C9. Cockrill, C. J.: "The homestead, and that the separation
bill of exceptions does not profess to had been effected prior to the act of
contain all the evidence introduced March 18, 1887, which prohibits the
upon the trial. The only question, conveyance or incumbrance of the
therefore, is, does the judgment fol- homestead without the assent of
low from the court's special finding the wife, if that act may be said to
of facts? The finding is, in sub- affect such a case. Railway Co. v.
stance, that the store-house which Amos, 54 Ark. 162; 15 S. W. 363.
was condemned to be sold under the After the separation, the segregated
attachment had been segregated by part was not embraced within the
the judgment debtor from his home- homestead (Klenk v. Knoble, 37 Ark.
stead propertj'. The question as to 303), and was therefore the subject
what constitutes such a separation is of seizure and sale."
not pi'esented, for the presumption is
316 LIABILITIES.
claimed, he may be in time to look to other property to make
liis money.
In gtates where the husband represents and binds the other
homestead beneficiaries in litigation involving the. home as in
any other, he. defends against attachment for all ; and if the
result is against him they are concluded.' In those where the
wife must be made a party and served with process, her posi-
tion is that of an attachment defendant, and she may plead
homestead though he do not, and save the home for all the
■ beneficiaries. In states where she is not made a party yet
privileged to make herself one, she may intervene, in the suit
against her husband, and plead homestead.^ She may be pre-
sumed to know of the attachment, since it is the duty of the
officer to take possession under the writ. But as real estate
is not subject to manucaiption, and may be seized by giving the
husband notice of seizure and making return to court, she
may not know in fact that the attachment has been laid. In
such case, it would be hard for her to have an attachment lien
perfected against her homestead because her husband has failed
to plead exemption. And her rights, under some statutes,
would remain in the homestead — the lien being subject to
them. Under others, her failure to plettd would conclude her.'
If the homestead be sold on credit, with no view of buying
another with the price when collected, the credit may be at-
tached.* For, in such case, the beneficiaries have given up
their benefit voluntarily, and the state's policy of making
homes permaneut would not be furthered by saving the price
to them to the prejudice of their creditors.
So, if a debtor has absconded from the state, or has become
a non-resident, there would seem to be no reason why a home
should be conserved for him, though his family might be kept
; together in it, to the good of the state. Attachment has been
' allowed under such circumstances.*
When the homestead law confines exemption to realty, it
has been held that the surplus proceeds of a sale of the home-
stead under a deed of trust are subject to garnishment, if the
1 Barfield v. Jefferson, 84 Ga. 609. ^See McCarthy's Appeal, 68 Pa. St.
"- McClure v. Braniff, 75 la. 38. 217 ; Yelverton v. Bui'ton, 26 Pa. St
' Graham v. Cul vdr (Wy.), 29 P. 270. 351 ; Boa:rd of Comm'rs v. Riley. 7.)
^Knabb v. Drake, 23 Pa. St. 489; N. C. 144; McBrayer v. Dillard. 4i)
Scott V. Brigham, 27 Vt 561. Ala. 174.
ATTACHMENT LIENS. 317
debtor failed to set up his homestead right ia the land at the
proper time.' If the wife joined in such deed, she cannot
afterwards, as a widow, have surplus proceeds assigned her as
homestead, after the foreclosure.^ The consideration received
for the deed of trust, if covering the homestead right, leaves
nothing further to be claimed.
Whether the proceeds of a homestead sale are liable to at-
tachment or garnishment depends upon the disposition which
the vendors mean to make of them. They would be liable if
held for ordinary purposes,' but not if held to purchase an-
other homestead.* This distinction is pretty general where
thepe is no statutory provision making a dififerent local rule.
While a homestead, or the money frOm its sale held for re-
investment in another home, is as exempt from attachment as
from execution, and will be protected from either writ when
the exempt character is brought to the knowledge of the court,
it may be attached when excessive in quantity if the exempt
portion be reserved to the debtor and saved from the opera-
tion of the lien.' If the surplus can be distinguished from
the exempt quantity, only that ought to be attached ; but if
the whole is proceeded against, the plaintiff should except the
exempt portion in the prayer for judgment with privilege. If
he does not, the court should except it in the judgjnent; This
will be found applicable only when homesteads are not re-
quired to be set out by metes and bounds, or their value ascer-
tained by appraisement, when the benefit first begins.
It goes without the saying that homesteads may be at-
tached for such debts as antedate the beginning of exemption,
or any others not affected by exemption, provided the statu-
tory conditions for resort to the extraordinary remedy exist.
In such case, the attachment lies as against any other prop-
erty.*
A husband owned land under a contract for a deed. He
assigned to his wife and it became the homestead of both. A
I Casebolt v. Donaldson, 67 Mo. 309. Schneider v. Bray, 59 Tex. 670 ; Kess-
2Woerther v. Miller, 13 Mo. Ap. ler- v. Draub^ 53 Tex. 575; Wolfe v.
567. Buckley, 52, Tex. 641; Watkins, , v.
'Kirby, v. Giddings,, 75. Tex. 679 ; Blatschji^ski, 40 Wis. 347.
Mann v. Kelsey, 71 Tex. 609; Whit- e Parker v. Coop, 60 Tex. 111.
itenberg v. Lloyd, 49 Tex. 633. ^ Thompson v. Wickersham, 9 Bax.
«Watkins v. Davis, 61 Tex. 414; 316,
318 LIABILITIES.
judgment was rendered against him after the assignment;
subsequently, his wife was garnished for the same debt and judg-
ment against her, as garnishee, was rendered. Jfeither judg-
ment held good against the land : the former, because the land
contract was not his, having been conveyed at a time when
he is presumed to have been solvent, and ostensibly for valid
consideration ; the latter, because the land was her homestead
when it was conveyed and when the judgment of garnishment
was rendered.'
(3) Effect of the perfected attachment lien upon the home-
stead: Attachment is always subject to existing incumbrance :
resting upon the property attached. The property debt of
the thing adjudged to have been validly attached ranks below
older lien debts and below prior incumbrances, whether
founded upon debt or not.' The plaintiff attaches only the
defendant's right in the thing. The proceeding is in rem, but
the res is the defendant's property right only — not also other's
rights. The action is not a general but a limited proceed-
ing in rem. So the attachment lien, perfected by judgment
retroacting to the date of the attaching, rests on what the de-
fendant's property right is. The title of the property being
in him, the lien is good as to that; but incumbrances on tho
property existing before the attachment are not affected.
Wherever, in afiy state, the homestead benefit of the fam-
ily— the .wife and children — is held to be an incumbrance
upon the title of homestead property; wherever these benefi-
ciaries are recognized as having legal rights in such prop-
erty— in its enjoyment though not in its title — the attach-
ing creditor must be understood to attach subject to such
rights. And only what is attached is affected by the perfec-
tion of his inchoate lien by judgment.
The beneficiaries' right, or their incumbrance on the prop-
erty, differs from an incumbrance by mortgage and like liens ;
it is not a lien in any proper sense ; it is more nearly akin to
a servitude ; but it burdens the property and is as clearly ir-
removable by a subsequently created lien as a prior mortgage
would be. The state having provided for the burdening of
homestead property in this novel form, from motives of pub-
1 Belden v. Younger, 76 Iowa, 567.
ATIAOHMENT LIBNS. 319
lip policy to conserve homes, cannot have meant that junior
incumbrances should be marshaled above the homestead right
of the family.
The husband, v?ho is the head of the falnily and the title
holder, cannot claim to own an incumbrance on his own prop-
erty ;• no one can hold a lien upon his own title; no one can
have any interest in property adverse to his right to his
property. It follows, that the husband cannot claim any
homestead right in his realty as against his title.
The effect of the perfecting of the creditor's attachment lien
upon the homjgstead of the debtor is to make the property liable
to the vindication of that lien, and to leave the debtor-owner
without any recourse. He has no incumbrance to interfere. His
right of property is liable to be sold to satisfy the lien. Butsale
must be subject to the right-(or incumbrance, if the term is al-
lowable) of the wife and children, whose enjoyment of the prop-
erty, for the period of homestead endurance, is secured by law.
They must be left undisturbed in their home, while he — not
as a co-incumbrancer but as the husband — must be left with
them that the family may remain intact, and the policy of the
state respected.
That this is his position seems clear upon the reflection that
a homestead-holder without a family (a character tolerated in
some states) would have nothing to protect him in his con-
tinued residence in a homestead subjected to a valid attach-
ment lien upon his property right therein, and sold to satisfy
such lien. He would stand precise^ as though he had sold
the property himself at private sale. He would have no
marital or parental relations to bind him to the home. He
had no incttmhranee in the nature of homestead right, on the
property : so, when the title is gone, all is gone.
The husband-father has no right of continued occupancy
after valid forced sale to satisfy the attachinent lien on his
property dedicated as the family homestead, any more than his
bachelor or childless-widower neighbor would have, except as
the head of a family which has homestead right, with whom
it is his privilege and his duty to live. The subsequent loss
of his family would be to him the loss of his right to stay.
The death of his wife and the arrival of all his children to
the age of majority would leave him without anything to
320 LIABILITIES.
support a claim to occupancy., Then the purchaser at the at-
tachment sale could take possession.
Must the wife plead homestead, in behalf of herself and the
minor children when there are any, to save their rights against
attachment? It has been shown that the general rule is that
the owner of an attached homestead must plead exemption
before judgment, if he would prevent the perfecting of the
attachment lien ; that the homestead is not liable to attach-
ment, but that waiver is presumed in the absence of plea;
that by pleading exemption and sustaining the plea by proof,
the attachment may be, and of right must be, dissolved. If
the husband, the head of the family, and the owner of the
homestead property, fails to plead exemption, the wife may
do so in some states, and save both the title, and the rights
of any sort, to or in the homestead property from having an
attachment lien fastened upon it.
Pleading is necessary to keep the property free from lien;
but the question above put is whether it is necessary in order
to preserve the wife and children's rights to the continued en-
joyment of the homestead. No. They hold the right as an
incumbrance or servitude upon the property, and it stands
good, like a mortgage, without being set up in the attachment
proceedings. It has no business to oppose the creation of a
junior incumbrance which cannot affect itself^ — just as a senior
mortgage is unconcerned about the birth of a junior.
The family, apart from the member of it who holds the
title, owns no property in the homestead- — nothing that it
can sell, or mortgage, or lease, or donate — but has rights in
it secured by law which the attachment is not directed
against, and which the family therefore need not plead.
If a widower, with minor children, has his homestead at-
tached, is his plea of exemption necessary to save his chil-
dren's right to the enjoyment of the home till their majority?
The father is the natural guardian of his infant children
and represents them in legal matters. H4 represents his wife
too, ordinarily, though in homestead law she stands apart
from him so far as to be not affected by his failure to plead ;
but the rule is not universal. As a beneficiary of the ex-
emption provision, she is not cut off by his failure to plead,
as above shown ; as the holder of a peculiar incumbrance, she
ATTACHMENT IIEN8. 321
is not put below a subsequent lienholder by attachment so far
as occupancy is concerned, though she does not compete with
him as having anything affecting the homestead title. And,
if she has minor children, by the husband-owner, they share
her position. But, when there is no wife, the widower repre-
sents his minor children, not only as to any property rights
they may have through him but also as to any incumbrance
or right of enjoyment they have in his homestead.
It may be asked whether, in case of no plea, and the conse-
quent completion of the attachment lien, they would still hold
an incumbrance on the homestead older than the attachment
lien and not dislodged or outranked by it? Not if their father
had waived it for them by failure to plead. Just as a senior
mortgage may be waived in favor of a junior, so the peculiar
homestead incumbrance may be waived by one who has the
control of it and the right of waiver^ such' as a father must
have respecting the homestead right of his motherless chil-
dren, unless they hold by their own right.*
Another answer is, that such children have no such incum-
brance independent of their father while he lives. "When he
waives homestead right and lets the property go under an at-
tachment, the children are in the position they would have
been in if he had sold the property. They have no veto
power upon the sale as their mother had when living. It is
true that their homestead rights existing at their father's
death may survive him. The law so provides. The policy
of the state is to keep them a home. But it is not the policy
of the state to keep them a home despite their living father.
They must abide his action ; live with him ; go with him when
he has sold his home or has let it be sold.
It seems, for the reasons above given, that the homestead
rights of present enjoyment, of a wife and children, are re-
served to them without pleading, unaffected by a perfected
attachment lien vindicable by the sale of the title ; but that
those rights of the wifeless owner, with children, need to be
pleaded in order to be saved.
1 Children inheriting from their father be, sold, they may retain the
mother become tenants in common homestead during their minority,
with their father. Broad v. Murray, Littell v. Jones (Ark.), 19 S. W. 497.
44 Cal. 228. If the curtesy of their
21
322 LIABILITIES.
"What would be the effect of fastening an attacliinent lien
upon the homestead by judgment (through the failure of the
debtor to plead exemption), at a time when he has a wife and
minor children living with him on the property, upon their
rights at his death? Would they not only have right of
asylum while he should live, despite the lien and the loss of
title by sale thereunder, but also after his death — she during
her life or widowhood, and they during their majority?
The attachment, being ab initio subject to the vnoumhrmice
they held, could not afifect such homestead rights. The judg-
ment could not extend the lien over more than it covered in
its incipiency. Nothing lodged in others could be reached to
pay the defendant's liability. The case may be likened to the
sale of a fee subject to a life estate for years.
The right of survivorship may be lost to the widow, so far
as the title is concerned, by the creation of a valid lien on the
homestead, in a third person, and sale thereunder ; her dower
right would certainly fall; but her homestead right of asylum
would be protected when not subject to the lien.
§ 8. Tort.
Exemption laws are mostly enacted with reference to the
relation of debtor and creditor. They have reference to heirs
so far as to postpone their enjoyment of inherited property
under some circumstances. But, since they protect from ex-
ecution against debts rather than other liabilities; against
"debts contracted," as the phrase frequently occurs in the
homestead statutes, they do not seem to contemplate the pro-
tection of a wrong-doer for liability for his own torts, or for
any trespass committed by him. Where a constitution or
statute exempts debtors' homes from " sale on execution, or
any other process from a court, for any debt contracted "
(using the language quoted or language of similar impdrt), it
is generally held that there is no exemption provided from
obligations arising from torts.^
1 Kenyon V. Gould, 61 Pa. St. 292; ■Williams v. Bowden, 69 Ala. 433;
Kirkpati-ick V. White, 29 Pa. St. 176 ; Meredith v. Holmes, 68 Ala. 190;
Lathrop v. Singer; 89 Barb. 396 ; Davis v. Henson, 39 Ga. 345 ; Edwards
Schouton V. Kilmer, 8 How. Pr. (N. Y.) v. Mahon, 5 Phila. 531 ; I/ane v.
527; McLaren v. Anderson (Ala.), 8 Baker, 2 Grant's Cas. (Pa.) 424;
So. 188; Vincent V. State, 74 Ala. 374; Dorrell v. Hannah, 80 Ind. 497;
TOET. 323
Since the exemption relates to " debt contracted " only, it
does not screen the householder against a judgment awarding
damages against him for breach of promise to marry, which is
called a quasi-tovt}
Exemption from sale under any judicial process, "issued on
any demand for any debt contracted," is the language of a
constitution under which it was held that a fine is not a " debt
contracted," in the sense in which this phrase is employed.''
Where the phrase, or a like one, occurs in other constitutions,
or in statutes, it does not extend exemption to defeat execu-
tions for torts.'
"When the use of a home for the sale of intoxicating liquors
is inhibited by law, and the owner incurs pecuniary penalties
and costs for such use, the homestead is .held liable under the
judgment imposing the fine, notwithstanding the fact that the
wrong-doer's wife and co-householder did not join in the vio-
lation of the law and consequent subjection of their home-
stead to a monetary burden.*
A defaulter, having funds belonging to the state, cannot
claim the privilege of a debtor and treat the state as a mere
creditor, and shield himself under exemption and homestead
laws.'
When the claimant of the homestead seeks to prevent exe-
cution for liability for his own crime or tort, he should not be
treated as a debtor entitled to the benefit of exemption.' But
whether the homestead be liable for the torts of its owner de-
pends upon the terms of the exemption. Courts interpret the
restriction upon the creditor's remedy according to its expres-
Sniith V. Wood, 83 Ind. 532; Gentry ^Lathrop v. Singer, 39 Barb. 896;
V. Purcell, 84 Ind. 83 ; Thompson v. Schouton v. Kilmer, 8 How. (N. Y.)
Ross, 87 Ind. 156 ; Nowling v. Mcln- 537 ; Lane v. Baber, 3 Grant's Cases,
tosh, 89 Ind. 593 ; Donaldson v. 434 ; Davis v. Henson, 39 Ga. 345.
Banta (Ind.), 29 N. E. 363 ; Ries v. ' ^ McClure v. 6raniff, 75 la. 38.
McClatchey, 128 Ind. 125. 5 Vincent v. The State, 74 Ala. 274.
1 Burton v. Mill, 78 Va. 468 ; Whit- « Williams v. Bowden, 69 Ala. 433 ;
acre v. Rector, 29 Gratt. 714 ; Grubb Meredith v. Holmes, 68 Ala. 190 ;
V. Suit, 32 Gratt 203 ; Wade v. Kalb- Massie v. Enyart, 33 Ark. 688 ; Smith
fleisch, 58 N. Y. 282 ; 1 Minor's Inst, v. Eagsdale, 36 Ark. 397 ; Lathrop v.
253 ; 4 lb. 457 ; Va. Code, ch. 136, § 19. Singer, 39 Barb. (N. Y.) 896 ; Tate v.
2Whiteacre v. Rector, 29 Gratt Laforest, 35 La. Ann. 187 (denying
714^15 ; Const Va., art 11, § 1 ; Code, the benefit of insolvent law).
ch. 183.
324 LIABILITIES.
sion in the constitution or statutes which they are called upon
to interpret. Under phraseology different from that above
quoted, they have held the homestead exempt from execution
of judgments in actions of tort.^
If an action on an implied contract sounds not in tort but
in contract, a judgment thereon cannot be executed against
property non-liable for debts created by contract.''
Exemption from liability as vrell as debt would include that
from torts as well as from contracts.'
Judgment in an action for slander may be executed against
a homestead which is protected from " any debt growing out
of, or founded upon, any contract express or implied." ' But
Tinder a statute exempting froni " debts contracted " and an-
other requiring the wife's signature to any alienation of home-
stead by her husband, it was held that a judgment on such an
action could not be enforced against his homestead.' The
court confessedly extended the terms of the first act, saying:
"The judgment in this case was not strictly a 'debt con-
tracted.' " It was unqualifiedly not such. Construed with
the second statute, the first was not supplemented so as legiti-
mately to make the judgment a " debt contracted,'' nor to
make both warrant the protection of the homestead from exe-
cution. The court said : " In the light of both these laws this
court has constantly held that it was the evident intent of the
legislature to protect the homestead as a shelter for the wife
and children, independently of any acts of the' husband. He
cannot deprive them of their right to it without the consent
of the wife, either by his contracts or his torts."
This is not universally-received doctrine on this subject.
Protection from contracts is not protection from torts, and
restraint of alienation does not make it so. The family may
need protection from the effect of the wrongs and misdemean-
ors done by its head as well as from his ill-advised contracts
made without his wife's joinder ; but the question is, not what
the family may need, but what has the legislator enacted.
That upon a judgment in an action ex delicto, a homestead
iConroy v. Sullivan, 44 111. 451; » Smith v. Omans, 17 Wis. 395.
GUI V. Edwards, 87 N. C. 77; Smith * State v. Melogue, 9 Ind. 196.
V. Oaians, 17 Wis. 395. ' Conroy v. Sullivan, 44 IIL 451.
2 Crane v, Waggoner, 27 Ind. 53.
TOET. 325
caimot be sold under an. execution, was held in exposition of a
constitutional provision.^
Much depends upon the sense in/which the word " debt "
or " indebtedness " is used, when the question of its inclusion
of liability for tort is under consideration. It has been de-
cided that the contract clause of the federal constitution does
not protect the action for tort, and that therefore a home,
stead is exempt from execution in such action commenced be-
fore the exemption right accrued though finished by judgment
afterwards. That is to say, the debt created by the judgment
did not relate back to the committal of the tort so as to ante-
date the exemption law and therefore come under the protec-
tion of the constitution inhibiting the impairing of contracts.^
It seems erroneous to say that the relation of debtor and
creditor exists before judgment because of tbe tort and the
claim for damages;' but, after judgment decreeing damages
in a certain sum, there is nothing erroneous in the application
of the law of relation to the debt thus created, and in making
-"it affect intermediate sales, when the purchaser had notice.
If the tort-claim is not a debt till judgment, it is then a
lien-bearing debt, though there is no specific lien upon the
homestead. The general lien requires seizure to make it spe-
cific on the property seized.
One who has a right of action for tort is not a creditor
while his action is pending, but he becomes one when he gets
judgment in his favor. Does not such judgment, giving dam-
ages against the defendant, retroact by the law of relation so
as to strike with nullity, or with voidable character, any trans-
fer of real property by him, after the institution of the suit
for the purpose of defeating the execution of the judgment?
Such a ti-ansfer has been so far disregarded as to allow the
property to be subjected to execution under the tort judg-
ment.*
A sheriff sold land under execution, treating the defend-
ant's claim bf homestead as a nullity. The sale was set aside
in consequence, though the record showed that the judgment
1 The N. C. Const, of 1868 ; Gill v. Const U. S., art 1, § 10 ; Const Tenn.,
Edwards, 87 N. C.,77; Dellinger v. art 1, §20; art II,- §3.
Tweed, 66 N. C. 206. ^ So held by way of statute exposi-
2 Parker v. Savage, 6 Lea, 406; tion. Patrick v. Ford, 5 Sneed, 530.
<Langford v. Fly, 7 Humph. 585.
326 LIABILITIES.
was for tort from which there was no exemption. The ground
of invalidating the sale was that the cause of action did not
appear on the face of the writ or in the journal entry of the
judgment. It was not for the sheriff to go beyond the writ
to inquire whether the judgment was for debt or for tort ; for
a cause of action, against execution of a judgment upon which
the plea of homestead would have been available, or for a
cause to which exemption has no reference. Homestead had
been pleaded: so the clerk should have issued no execution
till the court had acted on the plea.^
§ 9. Fiduciary Debts.
Liability incurred in a fiduciary capacity includes that of a
defaulting tax collector (and his sureties, it is held), under a
constitutional provision for homestead which excepts debts
created in such capacity from exemption.^ The provision re-
ferred to is that " every householder or head of a family shall
be entitled ... to hold exempt from levy, seizure, gar-
nisheeing, or sale under execution, order or other process
. . . real and personal estate, or either , . . the value
not exceeding two thousand dollars, to be selected by him,"
except for the purchase price of the property; for services of
a laborer or mechanic ; " for liabilities incurred by any public
officer, or officer of a court, or any fiduciary, or any attorney
at law, for money collected ; " " for a lawful claim for any
taxes, levies or assessments . . . ; " " for rents hereafter
accruing ; " and " for the legal or taxable fees of any public
officer or officers of a court, hereafter accruing." ' The sure'
ties' homestead property was held under the exception em-
bracing " public officers" or "other fiduciary," though the
language does not plainly include them. The court said : " As
soon as there is a breach of the condition of the officer's bond,
he and his sureties,' by one and the same act, besome liable to
the party injured. The liability incurred by the officer is at
the same time incurred fey the surety." Clearly ; there can
be no doubt of the surety's liability ; but as he is not an offi-
cer, nor a fiduciary of any sort, is his homestead liable to be
1 McLaren v. Anderson (Ala.), 8 So. 3 Const Va., art 11, § 1 ; Code of
188. 1873, ch.-183.
2 Commonwealth v. Ford, 29 Gratt
683.
TAXES. 327
proceeded against by "levy, seizure, sale under execution,
order or other process, issued on any demam,d" etc., as the
constitution has it? Could it not have been more plausibly
reached under the clause relative to " lawful claims for any
taxes? "1
"Where debt contracted in a fiduciary capacity is excepted
from exemption, a judgment for money or property misap-
propriated by an agent, in violation of his trust, may be en-
forced against his homestead.* A tutor for a minor, indebted
in that capacity, cannot claim homestead exemption from the
debt.' Such debt may be prosecuted to judgment, and execu-
tion may be levied upon the homestead as on any other prop-
erty, where the law grants no exemption as to such liability.*
A homestead assigned the debtor in bankruptcy proceed-
ings was held free from a fiduciary debt which had not been
discharged by those proceedings.*
§ 10. Taxes.
Taxes are usually mentioned among the obligations not af-
fected by homestead exemption. It is necessary to include
them among the other exceptions where they are considered
as debts, if the state is to retain its remedy. The sovereign
creditor is, like any other, entitled to the same remedies, and
liable to the same obligations in many respects. It is bound
by its own laws. Its rights against a debtor are no more,
sacred than those of any other creditor. If the state has an
ordinary claim against him, it must submit to the same cur-
tailment of remedy, the same limitation of right to the forced
sale of his property that it has imposed upon all creditors.^
Different terms are used, in different state statutes, to save
the tax-claim from the effect of the exemption provision, but
they are all meant to leave the remedy for the collection of
1 Com. V. Ford, supra; Homestead other person, in North Carolina.
Cases, 33 Gratt. 366. lb. ; Lamb v. Chamness, 84 N. C. 379 ;
2BrideweU v. Halliday, 37 La. Ann. Murphy v. McNeil, 83 N. C. 331.
410. ^ Loomis v. Gerson, 63 IlL 13 ; Green
3 Piatt V. Sheriff, 41 La. Ann. 856. v. United States, 9 Wall. 655; Fink
* Gilbert V. Neely, 35 Ark. 24, with v. O'Neil, 106 U. S. 372; Common-
reference to the constitution of Ar- wealth v. Lay, 13 Bush, 383 ; Gunn
kansas of 1868. v. Barry. 15 Wall. 610 ; State v. Pitts,
6 Simpson v. Houston, 97 N. C. 344. 51 Mo. 133. Compare Commonwealth
And the exemption follows the land v. Cook, 8 Bush, 230 ; Brooks v. The
ijrhen it is sold by the debtor to an- State, 54 Ga 36.
328 LIABILITIES.
taxes untouched, and they all have the same reason underlying
them. The reason is that revenue must be had for the sup-
port of the state, the county or the municipality laying the
assessment, and that property is the source whence such rev-
enue should be derived ; and that, since homesteads are pro-
tected by the state and minor governments, they should bear
their proportion of the burden, since there is no danger that
a tax, which is never more than a small percentage of the
property value, need ever deprive the owner of his home. and
leave his family shelterless.
The reason, and the language excepting taxes from the
operation of exemption, is virtually the same in all the states.
The tax, bearing a lien upon the property taxed, may be 'en-
forced by judgment and sale, either by a judicial proceeding
against the property itself, or by a personal suit against the
delinquent praying for judgment against him simply, or for
such judgment with recognition of the lien, and vindication of
it by the sale of the property taxed. In a proceeding directly
against the property only, seizure and notice must precede
judgment, and the writ following it should be venditioni ex-
ponas. In a personal proceeding simply, no seizure precedes
judgment, and the writ following it is fieri facias. These
differences cannot affect the right of the estate, or of any subor-
dinate tax-collector, to collect the tax by forced sale of the
homestead.
A tax-sale, a sale for the non-payment of taxes, a sale on
execution issued on a judgment recovered for taxes, are all the
same so far as the liability of homesteads for taxes assessed
upon them are concerned. They are usually treated as equiv-
alent expressions. Thfe general language exempting home-
steads from debts does not include tax debts when any one of
the above expressions are found among the exceptions.
A different view, however, has prevailed in one state. Un-
der the statutory provision : " 'So property shall, by virtue of
this act, be exempt from sale for the non-payment of taxes or
^sessments," it has been held that " A sale on an execution,
although issued on a judgment recovered for taxes, is not a.
sale for the ' non-payment of taxes ' in the ordinary accepta-
tion of that term. A * tax-sale,' or, what is the same thing, a
' sale for the non-payment of taxes,' has a distinct and well
defined meaning. It means a sale made in a proceeding m
TAiES. 329
rem, and was so generally understood when the homestead
law was enacted ; . . . not a sale on an execution issued
on a judgment 4w^ersow.am."' ^
A judicial proceeding in rem, with notice to the delinquent
owner of the property, with sale following judgment, would
certainly be within the provision quoted ; but that a suit in
personam, followed by judgment and execution, " for the non-
payment of taxes," would not be within that provision, is a po-
sition not commending itself to general favor. Even in the
state where the decision was rendered from which the above
extra,ct is taken, this position was not so well , established at
the time as to prevent two of the judges from dissenting
both to the reasoning and the conclusion of the opinion. Else-
where, this position seems entitled to no following. The in-
tention of the legislator, generally speaking, is to leave the
law for the collection of taxes unaffected by homestead laws.
Tax on homesteads, as well as upon other realty, is a lien,
generally of the highest rank, susceptible of being vindicated
by judicial proceeding, under which the lien-bearing thing may
be subjected to forced sale so that the purchaser shall have a
valid title, subject to redemption where the statute so provides.^
The liability of homestead property for taxes does not differ
from that of any other property.' The state, county, or city,
as the case may be, proceeds against it as though there were
no exemption law in existence. There is none, so far as tax
debt, and the remedy for collecting it, are concerned. Home-
steads are not exempt from taxes : that is the sense of all the
real-estate exemption laws which embrace taxes among the
exceptions.
A homestead sold under execution for taxes, where exemp-
tion does.not apply to them, is conveyed to the purchaser free
from, any homestead right of the delinquent tax-payer.*
iDouthett V. Winter, 108 III. 330; v. Sheppard, 80 Ga. S5; Stokes v.
Douthett V. Kettle, 104 III. 856 ; Peo- Georgia, 46 Ga. 413 ; Colquitt v.
pie V. Stahl, 101 111. 846 ; Humes v. Brown, 63 Ga. 440 ; Cooper v. Corbin,
Gossett, 43 111. 399; Connor v. Nich- 105 111. 224; Binkert v. Wabash E.
ols, 81 111. 148 ; Thornton v. Boyden, Co., 98 111. 206 ; People v. Biggins, 96
81 111. 200 ; Smith v. Miller, 31 111. 157. . 111. 481.
2 Eaton's Appeal, 83 Pa. St. 153; 3 Lufkin v. Galveston, 58 Tex. 545.
Lufkin V. Galveston, 58 Tex. 545 ; See Galveston v. Heard, 54 Tex. 420.
Shell V. Duncan, 31 S. C. 547 ; Lamar « Shell v. Duncan, 81 S. C. 547.
330 LIABILITIES.
Exemption holds good against claims of the state which
have not been excepted. If taxes have been specially reserved
from the general exclusion of claims against homesteads, it is
fair to infer that the legislator did not mean to make any
other state claim collectible against such favored property.*
"When taxes have been excepted from the operation of an
exemption law, it does not follow that the state may execute
a judgment against a defaulting tax collector's homestead.
The suit against him, for money collected and not paid over,
is not a suit for taxes in the sense in which the phrase is used
m the exemption laws. The state, having deliberately forbid-
den forced sales of homeste&ds in all cases but the expressly
excepted ones, must abide by its own statute.^ Its rights
must be determined precisely as that of other creditors are
ascertained : by reference to the governing law. _ Whether
thq defaulting tax collector's home is exempt depends upon
what latitude may be given properly to the word tax or taxes
when excepted.
The redemption of a homestead sold for taxes may be by
the wife of the beneficiary, as head of the family, when he is
situated so that he cannot act. And her tender of the tax
money and what else is required, within the time allowed for
the redemption, is sufficient. The purchaser is bound to give
up the property.' And if the husband is so situated that he
can act, but does not, why may not she tender payment and
redeem the property?
" Under the law, . . . the home- chase-money, though the fact may
stead exemption ^id not extend to not have been ■ pleaded. Green v.
process issued to enforce the pay- Spann, 25 S. C. 273.
ment of taxes or obhgations con- ' Colquitt v. Brown, 63 Ga. 440.
tracted for the purchase of ... a 2 Ren v. Driskell, 11 Lea, 643.
homestead, 'provided the court or ^ Lamar v. Sheppard, 80 Ga. 25;
authority issuing said process shall Adams v. Beale, 19 la. 66. In North
certify thereon that the same is is- Carolina a widow, as tenant-for-life
sued for some one or more, and no of her homestead, may forfeit hei-
other of said purposes.' " Such cer- title by suffering the property to be
tificate held essential. Burnside v. sold for taxes, and failing to redeem
Watkins, 30 S. C. 459. The circuit within a year. Tucker v. Tucker,
judge may indorse on the judgment, 108 N. C. 235. See Jones v. Britton,
even at the term after the judgment 102 N. C. 166 ; Ex parte Macay, 84
was rendered, that it was for pur- N. C. 63.
CHAPTEE XI. •
LIABILITY FOR PURCHASE-MONEY AND IMPROVEMENTS.
1. Exemption Inapplicable.
2. When no Lien is Recognized.
3. Money Borrowed to Pay the
Price — Subrogation.
4. Borrowed and Purchase-money
Distinguished.
5. Notes for Price in Third Hands.
6. Marshaling Accounts, as to
Homestead.
§ 7. Mortgage for the Price.
8. Payment Essential to Owner-
ship.
9. Price Returned when Title
Fails.
10. Insurance and Voidable Title.
11. Improvements.
§ 1. Exemption Inapplicable.
Purchase-money is the equivalent for the thing bought. It
is a term employed in homestead laws to express the debt
owing by the purchaser for his homestead. It is the unpaid
price of the land. It is the consideration or essence of the
contract of purchase while the land is the object. The price
and the object are presumed to be equal ; the contract is mut-
ually fair between the parties; the scales of justice are in
equipoise.
Manifestly, the purchaser cannot have both the thing bought
and the price ; cannot have both while the seller has nothing.
Just as consistently might the seller take the purchase-money
and retain the thing for which it was given. Such injustice
cannot be tolerated in favor of either, party by any round-
about maneuvre, any indirect method, any ingenious construc-
tion of contract, any countenance of dishonest dealing on the
plea of liberality or humanity to the purchaser and his fam-
There is no constitutional authority in the state to take from
one citizen and give to another, leaving the bereft party with-
out any quid pro quo. Neither the state nor the nation can
take private property, even for public use, without " adequate
compensation." To deny a vendor the price of his property
is the same as to take the property itself for the private use
of another person who renders no equivalent.
332
LIABILITY FOE PUECHASE-MONEY, ETC.
The state can no more do this by homestead laws than by
any other means ; cannot do it indirectly any more than di-
. rectly. So, were those laws all silent on the subject of pur-
chase-money, the stipulated price of the homestead would yet
be a debt susceptible of prosecution to judgment, and the
judgment could be executed upon the land. Even in the ab-
sence of any vendor's lien, such judgment could be executed
upon the land, though the plaintiff might be obliged by law
first to exhaust other property.
The homestead statutes are not silent, however, on this
subject, but they expressly except debt for purchase-money
from those affected by exemption provisions. All but one or
two make the exception declaratively, and that one or two do
it impliedly. They do not all employ the same terms. From
the narrow restriction of the non-exempt debts for purchase-
money to those evidenced by act of mortgage, to the broad
provisions which include money borrowed to pay the price,
there is much included variety. These extremes, with the in-
termediate provisions of more moderate tenor, each subjected
to a crucible of construction different from those which try the
rest, present to the profession a variegated landscape which
must now be particularly explored after the judicial guides
who have gone before.
Whatever the differences statutor^'^ and constructive, uni-
formity remains respecting the proposition that the purchaser
of property for a homestead, or any other purpose, cannot
have the land and repudiate the price, by means of any statu-
tory or constitutional provision ; that he can have no exemp-
tion from the debt incurred by his contract of purchase; that
he cannot retain both the object and the consideration of the
contract; that, according to the homely, nursery aphorism
(worthy to be received as a legal maxim), he " can't have the
pudding and eat it too."
The general rule, with little exception, is that homesteads
are liable for their purchase-price, and that there is no exemp-
tion from such a debt. Equity creates a lien upon such prop-
erty in favor of the vendor, even when there is no conventional
creation of it. The debt is a property debt, and a judgment
upon it may be enforced against the indebted thing, when a
homestead, as readily as against any other property fictitously
WHEN NO HEN IS EEOOGNIZED. 333
indebted. The general liability of homesteads, for unpaid pur-
chase-money, is well established.^
The nature and scope of this lien are clearly stated by the
late Judge "West, as follows : " Without any contract or agree-
ment, by operation of law this lien springs at once out of the
contract of purchase, and exists and survives until waived, or
extinguished by payment, as between the original parties to the
notes, wholly independent of any agreement, verbal or writ-
ten. Hence the averment in the petition in this case as to the
existence of the vendor's lien, though not as full as it should
have been, was sufficient." ^
The veiidor's privilege remains intact, though the property
he has sold may have passed subsequently through successive
hands, and the last holder may have paid the price to his im-
mediate grantor and claimed homestead in the property.'
Purchase-money may be collected froni the homestead,
however often the evidence of the debt may have been
changed, if it can yet be traced. The lien which attends the
claim continues good against the homestead.*
§ 2. When no Lien is Recognized.
Several states allow no exemption from any obligation
whatever which is incurred in the purchase of property for a
homestead. Such debt can be prosecuted to judgment, and
the judgment executed against the homestead, though there
be no recognized vendor's lien expressed or implied, in law or
equity, and the householder's obligation for the purchase-
money be merely personal.
Though a note or bond given for land create no lien, yet
iToms V. Fite, 93 N. C. 374; Toms Curtis, 79 Ky. 337; Williams v.
V. Logan, 93 N. C. 376 ; Fox V. Brooks, Young, 17 Cal. 403; Skinner v.
88 N. C. 234; Durham v. Bostipk, 73 Beatty, 16 Cal. 157.
N. C. 857 ; Tunstall v. Jones, 25 Ark. 2 Joiner v. Perkins, 59 Tex. 300,
374 ; Williams v. Jones, 100 111. 362 ; citing Flanagan v. Cushman, 48 Tex.
Palmer v. Simpson, 69 Ga, 793 ; Mo- 244 ; Rogers v. Blum, 56 Tex. 1 ;
Daniel v. Westberry. 74 Ga. 380; Briscoe v. Bronaugh, 1 Tex. 326;
Christy v. Dyer, 14 la. 438 ; Cole v. Hood v. Cordova, 17 Wall. 1 ; White
Gill, 14 la. 537 ; Burnap v. Cook, 16 la. v. Downs, 40 Tex. 335.
149 ; Hyatt v. Spearman, 20 la. 510 ; 3 Sparger v. Cumpton, 54 Ga. 355 ;
Bills V. Mason, 43 la. 339 ; Campbell Greenway v. Goss, 55 Ga. 588 ; Mc-
V. Maginnis, 70 la. 589 ; Patrick v. Daniel v. Westherrjr, 74 Ga. 380.
Eembert, 55 Miss. 87; Bradley v. * Bradley v. Curtis, 79 Ky. 337.
834
LIABILITY FOE PUEOHASB-MONEY, ETC.
"obligations contracted for the purchase of a homestead"
are excepted from those which cannot be enforced against it.
Such note or bond prosecuted to judgment may be collected
under execution.* Judge Ashe, in delivering the court's opin-
ion, after recognizing the principle above stated, , and after
saying that it is settled in his state that the vendor of real
estate who has conveyed it by deed has no lien upon the land
for the purchase-money,^ interprets the constitutional provision
that " no property shall be exempt from sale for taxes or for
payment of obligations contracted for the purchase of said prem-
ises,"' so as to make it read as follows: " No property shall
be exempt from sale for taxes or from execution for payment
of obligations contracted for the purchase of said premises."
He adds : " This gives no lien to the holder of the note for the
purchase-money, but its plain and evident meaning is that if
such holder shall obtain a judgment on the instrument and
issue his execution against the vendee, his (the vendee's) right
to a homestead in the land purchased by him shall not be an
impediment to the sale of the land under the execution." ^
If the vendee indorses notes which he holds from a third
person and passes them to the vendor of his homestead, his
position is as though he had given his own notes to secure
the purchase-money, and the homestead is not exempt from
that debt — for the case is not as though the vendor had ac-
cepted the notes as payment, without indorsement.' And
the same learned judge, speaking for the court in another
case, says that the term " obligation " in the above quotation
from the constitution, " is not used in its technical sense, but
embraces every contract to pay for the land, wJiether ly spe-
cialty or parol; but the contract, we are of the opinion, must
be made with the bargainor and the consideration must be the
price of the land purchased." So it was held that one who
has not discharged his obhgation to pay for land is not enti-
tled to homestead in it against a judgment on his contract;
and that if the bargainee agreed with the bargainor to pay a
1 Smith V. High, 85 N. C. 93. Jones' Eq. 9 ; Hoskins v. Wall, 77 N.
2 Citing Womble v. Battle, 3 Ired. C. 249.
Eq. 183 ; Cameron v. Mason, 7 Ired. 3 Const N. C, art 10, § 3.
Eq. 180 ; Simmons v. Spruill, 3 * Smith v. High, supra.
6 Whitaker v. Elliott, 73 N. G 186.
WHEN NO LIEN 18 EECOGNIZED. 335
note which the latter owed to a third person, in considera-
tion of the land purchased, the land is liable for the payment
of thfi debt.'
Of the vendor's lien for purchase-money, and the enforce-
ment of the debt without it by ordinary Judgment and exe-
cution, it is judicially said: "It is insisted by defendants in
error that, as plaintiff in error is not entitled to the vendor's
lien, he cannot enforce the payment of the debt as purchase-
money. The statute exempting the homestead from forced
sale for the payment of debts contains this exception : ' No
property shall by virtue of this act be exempt from sale for
the non-payment of taxes or assessments, or for a debt or lia-
bility incurred for the purchase or ijnprovement thereof.'
" The exemption and exception from its operation are parts
of the same statute, and must be read together as one act ;
and as to the excepted cases it is as if there were no exemp-
tion. If the only purpose of this exception to the statute
was to preserve the vendor's lien, it is difficult to see why it
should have been inserted, as it would give to the vendor no
additional security, and would add nothing to his rights.
" A vendor's lien is a mere creature of the courts of equity,
and not cognizable in courts of law. It is in the nature of a
trust, equity regarding the purchaser as holding the estate
for the payment of the purchase-money upon the principle
that one who has gotten the estate of another ought not, in
conscience, to be allowed to retain it and not pay the consid-
eration money.
" This lien ... in this state cannot be transferred by
assignment to the assignee of the note given for the purchase-
money. . . .
" That the demand, here sought to be enforced, was a lia-
bility incurred for the purchase of the premises, cannot be
questioned. It is the common understanding of the term,
purchase-m,oney, that it means money paid for the land, or the
debts created by the purchase. In using the language, ' debt
or liability incurred in the purchase,' it was not intended to
restrict the operation of the exception to oases only where
the party held a vendor's lien.
1 Fox V. Brooks, 88 N. C. 234.
336
LIABILITY FOE PDKCHASE-MONEY, ETC.
" It is true that authorities may be found, to sustain the
position of defendants in error, in some of the states; but
they are based upon constitutional or statutory provisions
widely different from our own. In some there are no excep-
tions to the exemption, and in others the vendor's lien is ex-
cepted in express terms." '
It is not strictly true that there is any state in which there
is no exception to exemption ; but the court probably meant
that in some of them the exceptions are not ^expressly named.
Again it is said, in the same state, respecting the character
of debt for a homestead : " The sole question presented in this
case is whether the debt in question is a debt ' incurred for
the purchase ' of the premises in which defendants in error
claim an estate of homestead. "We cannot doubt that it is.
The land was sold by Gray to Jones. For a part of the pur-
chase-price Jones gave his notes, payable to the vendor, with
Beale as security. The notes were sold and assigned by the
payee to "Williams. "Williams afterwards, by an arrangement
with Jones, surrendered these notes to him, and took from
him, in lieu thereof, and as security for the same debt, the
note of Jones alone, and a trust deed upon the land so bought,
to secure the payment thereof.
" The statute as to homestead exemption provides that ' no
property shall, by virtue of this-act, be exempt from sale . . .
for a debt or liability incurred for the purchase or improve-
ment thereof.' This debt is admitted to be the same debt as
that for which the original notes were given, and it is agreed
that the first notes were given for purchase-money. It falls
clearly within the express words of the statute. . . .
" There is ho ground for saying the limitation in the statute
was intended merely to protect the vendor's lien. It is not so
limited by its words. . . .
" The plaintiff in error represents or stands in the place of
the vendor, as the owner of the debt for the purchase of the
property. "Without reviewing in detail the cases referred to
by the counsel, we merely say we find nothing in former de-
1 Kimble v. Esworthy, 6 Bradw. 51 111. 500, and Bush v. Scott, 76 111.
(111.) 517 ; approving Austin v. Un- 534 ; and holding inapplicable, Phelps
derwood, 87 111. 438 j Magee v. Magee, v. Conover, 25 111. 273.
MONET BOEEOWED TO PAY THE PEIOE SUBEOaATION, 337
oisions of this court at all incompatible with the views herein
expressed." *
§3. Money Borrowed to Pay the Price — Subrogation.
Money borrowed of a third person by the vendee of a home-
stead, and paid to the vendor,* is purchase-money for which
the purchased property is liable to such third person, under
the broad application of the tevra purehase-money in many of
the homestead statutes.^
Since borrowed money, paid for homestead property, is
treated as purchase-price, the creditor has his lien on the prop-
erty bought; or, where he has not, he may obtain a lien-
bearing judgment.' The homestead is liable for money bor-
rowed to pay a balance due on the purchase-price.''
1 Williams v. Jones, 100 IlL 363;
distinguishing Eyster v. Hathaway,
50 IlL 533.
2 Allen V. Hawley, 66 lU. 164; Ma-
gee V. Magee, 51 111. 500 ; Austin v.
Underwood, 37 111. 488 ; Silsbe v. Lu-
cas, 36 111. 46)3 ; Lassen v. Vance, 8
Cal. 371 ; Carr v. Caldwell, 10 Cal.
385; Hamriok v. Peoples' Bank, 54
Ga. 503; Nichols v. Overaoher, 16
K^n. 54; Pinchain v. Collard, 13 Tex.
333.
3 Bugg V. Russell, 75 Ga. 837. Chief
Justice Jackson, for the court, says :
" While homestead rights are consti-
tutional and favorites of our law,
fraud is not; and to permit Bugg to
perpetrate such a fraud as to make a
homestead out of the money which
he begged Russell to lend, without
paying a dollar of it back to him,
would be to sink law and equity into
a slough of iniquity and putridity
nauseating to every sense of moral
purity. The court was right to make
him pay the debt" Notwithstand-
ing the usuriousness of the interest
stipulated, the creditor was allowed
to recover, and homestead exemption
not allowed to favor fraud. The
court, evidently with righteous indig-
nation, said of Bugg : " Shall he not
23
pay the man whose money got him
the homestead right out of the prop-
erty, before he asserts and sets apart
that right paid for by Russell? Jus-
tice, equity, law, common sense, all
demand that he shall; and Russell
was not far wrong when he said that
he would not pay him two dollars
and a half for his homestead. The
sense of right in the heart of an hon-
est man, when a swindler would
cheat him, nine times out of ten, is
the law of the land. Not a cent of
usury went into the money which
paid for the land ; this $1,135 is free
from it; it bought for Bugg and
Bugg must pay for it Inasmuch as
such must be the result of this in a
hundred trials, it is needless to con-
sider allegations of error on minor
points. It is well, however, to add
that the case is distinguishable from ■
Anderson v. Tribble, 68 Ga. 33 and 66
Ga 584. There the title was in Trib-
ble, and never had been in another,
out of whom Anderson's money, and
his money alone, put it in Tribble.
If there be obiter in that case, or
loose expressions which are at all at
issue with the ruling now made, we
cannot see their equity."
* White V. Wheelan, 71 Ga. 533.
838 LIABILITY FOE PUKCHASE-MOUEY, ETC.
" Whatever may be the decision of other states of the Union
as to the liability of property set apart as a homestead for the
debts oi the person interested in the homestead," said ttie
court in deciding the above cited case, "the law is fefettted by
the repeated rulings and decisions of this court in this ista'te,
that the p'roperty is liable for the puTchalse-money loandd to
extinguish an incumbrance on the homestead, although this
incumbrance may only be the u-npaid purchase-monefy for the
property set apart for the homestead." ^
The lender of the money, in this case, held no mortgage or
conventional lien of any kind. He loaned the homestead
holder two hundred dollars for the payment of a balance due
upon his purchase of the homestead. He took merely a prom-
issory note for the loan, but proved the purpose, and recov-
ered. The homestead holder, with that money, had taken up
his last remaining note from his vendor; and the money bor-
rowed for the purpose was " purchase-money " within the
statute and the decisions.
It is held that a homestead, set apairt beifore pnrdhase-moneV
was made collectible from such property, does not become
liable by the passage of an act rendering homesteads liable,
so far as an antecedent debt of the owher for such money is
concerned.^ ISTot as an antecedent debt ; but cdrtaiinly it Wilmld
be liable under the vendor's lien, if that bore upon the prop-
erty when the homestead was created. The legislature, by
providing that homesteads shall be liable, ddes not imply
that liens prior to the declaration of liaibility shall 'be dis-
lodged. The vested right of the lien-holder cannot thus be
divested. And the court, holding as above stated, should not
be understood to teach that vested rights can be divested
either by implication or express enactment.
A resulting trustee has no protected home&tead, when he
has bought it with borrowed money, against the lender. A
grantee, holding for another person, acquires no right from
the resultiHg trust. His position is that of a purchaser hold-
ing nominal title but mortgaging the property purchased to
secure the promised price.^
1 lb.; Middlebrooks v. Warren, 59 Lathrop v. Association, 45 Ga. 483 ;
Ga, 232; Sale v. Wingfield, 55 Ga. Kelly v. Stephens, 89 Ga. 466.
622 ; Woflford v. Gaines, 53 Ga. 485 ; 2 Hawks v. Hawks, 64 Ga. 239.
Hawks V. Hawks, 46 Ga. 204, 207; 'Shepherd v. White, 11 Tex. 354;
MONEY BOEKOWKD TO PAY THE PEIOE — SUBROGATION. S'iO"
"When the legal title is given to the'hushand, any allegation,
that the money wasadvaneed'hy others in behalf of 'th« wife
musi'be duly established to create a ' resulting trust itt her
favor, as against the creditors of her husband.'
Of course, like any other allegation, it must be piioved,.ibut
the presumption would be so strong against the creationj-^if
such trust that it would seem to require something morethan
the testimony of the husband and wife to e.stabiish the faet,
in the face of the title, andagainst the interests of thecreditors.
An alien, tracing his money to its investment by -another in
a tract of land, would seem entitled to a money judgment
against the investor, and a lien on thelaild susceptible of fore-
closure, though no resulting trust in it would be raised in his
favor. If such funds are employed 'by a huSband,"Comple-
mented by his wife's money, to buy a 'homestead, a lien -for
purehase^raoneyis not thus created.^
It is right that, without any express subrogation, the lender
of the purchase-money has, and ought, to 'have, his'law-ereated
recourse against the homestead bought with it. Those who
deny this rest upon the consideration that he is not 'the holder
of the vendor's lien (which istrue); and that, though* the -de-
nial of his right AvouM^be unjust to him, the homestead laws
do not purport to be founded upon justice to creditors (which
is untrue, since exemption aSects only those who have given
credit after notice).'
A homestead was abandoned and another acquired. The
beneficiary's notes for the first property were out, but he- sold
it. An agreement was made 'between the three parties : 'him-
self, 'his vendee land the holder of the -notes, -by which his
vendee agreed- to take up the notes, and give his own with
lien on the land he had purchased, which had been the ^orig-
Re Whitehead, 3 N. B. E. 599 ; New Skaggs v. Nelson, 25 Miss. 88 ; Zun-
England, «tc: Co. v. Merriam, S'AIlen, dell v. Gess, 73 Tex. 144 ; Wynn v.
890. Flannigan, 35 Tex. 781; Malone-v.
iSheltonv. Anltman,- 83 -Ala. 315 ; Kaufman, 38 Tex. 454; Notte's Ap-
McCall V. Rogers, 77 Ala. 349; .Mo. peal, 45 Pa St 361; Bugg v. Russell,
Life Ids. Co. v. Randall, 71 Ala. 220; 75 Ga. 837; Eyster v. Hathaway, 50
Tilford V. Torrey, 53 Ala. 130. 111,521 ; Burnap v. Cook, 16 la. 149;
2Zund6ll v. Gess, 73 Tex. 144. Bentiey v. Jordan, 3 Lea,. 353 ; Lear
' Williams v. Jones, 100 111. 363 ; v. HeSner, 28 La. Ann. 839.
Stansell v. Roberts, 13 Ohio, 148;
340 LIABILITY FOE PURCHASE-MONKY, ETC.
inal homestead above mentioned. He gave the new notes.
It was held that equity will enforce the intention to secure
the notes by lien, and that there was no homestead in the
way.'
The lender of money to pay the purchase-price of a home-
stead, who takes a deed of trust on the land, has the right of
being subrogated to the vendor's lien ; but if he takes a chat-
tel mortgage, the rule is otherwise.^ Of course, subrogation
may be created, in the latter case, by agreement.'
One who loans money to enable another to purchase a
homestead, and who becomes subrogated to the rights of the
vendor against the land, cannot be defeated in collecting it by
the claim of homestead immunity on the part of the borrower.''
The court said, in the first case just cited : " The transaction
. . . may be regarded as if the appellants had furnished
the means of paying the purchase-money of the land upon an
agreement that they were to have the same remedies to re-
cover the money thus provided that the original vendor pos-
sessed to enforce his demand.
"So well is it established in our own state by frequent de-
cisions that the effect of such a transaction is to subrogate the
parties who have purchased the claim against the vendee, or
have furnished him the means to pay the debt due the vendor,
to all the rights and remedies and liens previously held by the
latter to enforce his debt, that there will be no necessity to
strengthen the principle by argument, but we merely refer to
autho^*ities to sustain it." *
The lender who takes a mortgage to secure his advances
which the purchaser pays to his vendor, whether those ad-
vances be in money or goods, is held to have the same rights
as the vendor himself would have, were the mortgage given
directly to him.*
1 Thorn v. Dill, 56 Tex. 145. 57 Tex. 518 ; Flanigan v. Cushtnan,
2Pridgen v. Warn, 79 Tex. 588; 15 48 Tex. 244; Cannon v. MoDaniel, 46
S.W. 559; Hicks V.Morris, 57 Tex. 658. Tex. 304. See Denni v. Elliott, 60
3 Fievel v. Zuber, 67 Tex. 275. Tex. 337 (deed of trust to lender).
* Warhmund v. Merritfc, 60 Tex. 24 ; 6 "Warhmund v. Merritt, 60 Tex. 24.
Eylar v. Eylar, 60 Tex. 315; Joiner 6 Austin v. Underwood, 37 111. 438;
V. Perkins, 59 Tex. 300 ; Dillon v. Eylar v. Eylar, 60 Tex 315 ; Pridgen
Kauffman, 58 Tex. 696 ; Hicks v. Mor- v. Warn (Tex.), 15 S. W. 559 ; Lassen
riB, 57 Tex. 658; Wright v. Heflfner, v. Vance, 8 Cal. 271; Clark v. Mun-
BOEEOWED AND PUECHASE-MONEY DISTINGUISHED. 341
Money advanced to purchase sapplies for making a crop
has been regarded in the nature of purchase-money and there-
fore ground for good claim against the homestead.'
§ 4. Borrowed and Purchase-money Distinguished.
" A homestead in possession of each head of a family, and
the improvements thereon, to the value in all of one thousand
dgUars, shall be exempt from sale under any legal process
during the life of such head of a family, to inure to the ben-
efit of the widow, and shall be exempt during the minority of
their children occupying the same. This exemption shall not
operate against public taxes, nor debts contracted for the pur-
chase-money of such homestead, or improvements thereon." "
The statute, to effectuate this article, provides " such estate
shall not be exempt from sale for the payment of public taxes
legally assessed upon it, or from sale for the satisfaction of any
debt or liability Gontracted for -its purchase, or legally incurred
for improvements thereon." '
Moore sold land to Polk, partly on credit. He enforced his
lien, and the land was sold under a decree and bought by Jor-
dan, who paid most of the purchase-money, and gave his note
for the balance to Polk ; that is, the excess of his bid over the
sum due to Moore, who was fully paid. The clerk and master
reported the sale to the court, and that Jordan had paid the
purchase-money in full ; so the sale was confirmed. Polk sued
upon his note, and Jordan and wife, defendants, claimed
homestead in the land. ^
The court said, after holding that Polk had not the vendor's
lien : " A more difficult question is, whether Polk is not en-
titled, under our homestead laws, and without reference to tho
vendor's equitable lien, to subject the homestead right to the
satisfaction of his debt by virtue of the fact that it is for the
purchase-money of the land. . . . It is obvious that the
homestead is not exempt from sale ' for the satisfaction of any
debt or liability contracted for its purchase.' It may be sold
by execution issued on a judgment recovered on such a debt,
roe, 14 Mass. 351; Holbrook v. Fin- 2 Const Tenn., art 11, § 11.
ney, 4 Mass. 566. = Rev. Stat Tenn. (T. & S.), § 2114a'
I Stephens v. Smith, 63 Ga 177;
Tift V. Newsom, 44 Ga. 600.
342 LIABILITY FOE PURCHASE-MCMIEY, ETC.
or otherwise subjected by legal process.^ The creditor pro-
ceeds, 7H>t hy.vii'tiieof the- vender's fe'ewj .which is only enforce-
able in equity, aad may be. lost, by waiver, but by. virtue of
the general right of a creditor to subject his debtor's property
by ' legal process,' — the homestead exemption not applying to
sudh a debt. Unless, therefore, the facts in this case take the
' debt or liability ' out of the proviso of the statute, the right
to subject the property, covered by the homestead claim, to
its satisfaction, would seem to be clear. . . .
" The fact is indisputable that the purchase-money repre-
sented by the note in controversy has not been paid, and it is
this fact which prevents the operation of the homestead ex-
emption. The statute has guarded against the injustice of
exempting land from liability for the debt by which it was
Obtained ; — an injustice so obvious that the courts of the states,
where no statutory provision on the subject exists, have made
the exception themselves. . . ' . All the authorities agree
that the homestead continues liable as long as any part of the
purchase^money remains unpaid." ^
" It is the debt which the statute provides for, without re-
gard to the form it may assume." '
Judge Freeman says of money borrowed to pay for a horae--
stead : " This could in no sense be held to be the purchase-
money of the land. That had been paid by " the purchaser
with borrowed money. "This was a debt for borrowed
money, advanced or loaned, it is true, to pay for the land, but
still but a debt for loaned money. The lien on the face of
the note did not make it such. That was a form of security
carried out by the parties themselves, but is not a vendor's
lien, but one by contract.
> " The using of borrowed money to pay for land does not
give the lender the right even to be subrogated to the vendor's
lien, much less does the note given for such money give such
lien. . . .
"This being so," one who paid a judgment rendered in
favor of the lender and others " cannot claim to be subrogated
"S"
. \ Citing Woodlie. v. Towles, 1 Mem- the last quoted statement, Bush v.
phis L. J. 68 ; S. C, 1 Leg.- Rep. 331. Scott, 76 111. 535 ; Harris v. Glenn, 56
2 Bentley v. Jordan, 3 Lea, 358, Ga. 94.
Cooper, J., for the court, citing for ' lb.
BOEEOWED AND PaKCHASE-MONEV DISTINtrUISHED. 343
to a vendor's lien by having paid the judgments stayed by
him. The notes themselves were not entitled to such lien;
and, as a matter of course, paying them cannot give such a
right." So, the bill, filed by the borrower and his wife for
the homestead bought with the money of another, was sus-
tained.*
Decisions are not uniformly favorable to the borrower. It
is maintained that as money borrowed to pay a lien-holder is
not in the nature of purchase-nvoney, the lender, without con-
tract to that effect, is not subrogated to the rights of the
former lien-holder.^ But if the borrowing transaction is such
that it created a property-debt against the land subsequently
or simultaneously bought, a lien will be created which will
hold against the homestead right.'
The doctrine is that the mere fact that money was loaned
to raise the lien does not show subrogation.
Borrowed money is not " purchase-money " as the phrase is
used, though the borrower may buy land with it, give his notes
for it to the lender, and secure them upon the land purchased.
The lender may have a lien given him upon the land bought,
but it is not the vender's lien.* The latter is always to secure
the price of the land. So a note held by the vendor may have
been renewed, and the rate of interest changed, yet his lien
would not be lost.^ But a third person, lending money to
take up such note, should have himself secured by conven-
tional lien (since the money he advances is not technically
" purchase-money "), in states where the language of the statute
is not broad enough to give such advances as favorable a po-
sition as they have under the statutes of several other states,
l^owhere is a lien established by the mere loan of money to
the purchaser of a homestead to enable the latter to pay for
the property. The debt created by the borrower is merely a
personal debt. But it is generally favored above other per-
sonal debts of the homestead holder by excepting it from the
• Gray v. Baird, 4 Lea, 213, citing * G-ray v. Baird, 4 Lea, 313 ; Durant
Durant V. Davig, 10 Heisk. 53g. v.Davis,lQHei&k.533k Contra: Gnmn
2 White's Adm'r v. Curd, 86 Ky. v. Spurgin, 1 Le3, ^88.
191 ; Griffin v. Procter, 14 Bush, 571. 6 Bentley v. Jordan, 3 Lea, 353. See
spurcell V. Dittman, 8J Ky. 148; De Hymel v. Mortgage Co., 80 Tex.
Bradley v. Curtis, 79 Ky. 327. 493.
344 LIABILITY FOE PUEOHASB-MONEY, ETC.
exemption provision. While other ordinary debts, prosecuted
to judgment against him, result in no general judgment lien
against the homestead, a debt for borrowed money to pay for
a homestead I or its improvement, when prosecuted to judg-
ment, against him, does result in a general judgment lien in
vindication of which the homestead may be subjected to forced
sale, according to many statutes. Exemption is inapplicable
to such an ordinary debt, where this rule prevails.
Whether this rule prevails or not, in any particular state, is
sometimes left questionable by the language of the statute
there. If only purchase-money is excluded from the opera-
tion of exemption, borrowed money to pay purchase-money
clearly is not. But take this provision : " No property shall,
by virtue of this act, be exempt from sale for non-payment of
taxes or assessments, or for a debt or liability incurred for the
purchase or improvement thereof." ^ It will be noticed that
the phraseology is peculiar. It is not that " no property
shall ... be exempt from sale for the non-payment of
taxes, assessments " and its purchase-price or the cost of im-
provements. This would have been a natural form of ex-
pression, if the exclusion of technical " purchase-money " was
meant, and the cost of improvements was meant. But we
have the roundabout verbiage, " debt or responsibility in-
curred for the purchase," which would not be out of the way
if borrowed money to pay the price was meant to be included.
Does it not seem probable that the legislator employed this
language for the purpose of including such borrowed-money
debt as well as the price proper? If one borrows money to
pay his vendor, he certainly "incurs" a debt. He "incurs"
this debt, not iy the purchase, but " for the purchase " as the
statute has it. So, if there is " a debt or liability incurred
for . . . the improvement " of his homestead, may it not
have been done by pbtaining a loan with which to pay the
carpenter, as weU as by going in debt to the carpenter him-
self?
Were the question pristine, it would seem that the legisla-
tor not only meant that debt contracted by borrowing to pay
for a homestead or its improvement should be excepted from
1 HL Stat (S. & C), p. 1102, IT a
BOEEowED And puechase-money distinguished. 345
the exemption, but that he said what he meant. As it is not
new and open under the statute cited (though similar phrase-
ology may yet have construction under other statutes), it
seems now necessary to show how the rightful interpreters
have answered: " Where money is borrowed with a view of
being used in the purchase or improvement of real estate, and
is so used, it cannot, in such case, be said properly that the
liability or debt incurred by such borrowing is a debt incurred
for the purchase of the property, or a debt or liability for the
improvement thereof. As between the lender and the bor-
rower, it is a liability for money loaned. As between the bor-
rower and the vendor to him of the property, it may be pur-
chase-money ; and as between the borrower and the maker of
the improvements, it may be regarded as paid for a debt ' for
the improvement thereof.' " ' How consonant would have been
the addition: As between the borrower and" the lender of
money to be used and actually used in buying a homestead,
the debt created is " incurred for the purchase ! "
It had been held that if the lender advanced cash to pay
the price of the homestead at the time of the purchase, the
purchaser incurred a debt or obligation to him for the pur-
chase, for which the homestead was liable.^ And that when
a balance of price was paid by a third person at the request
of the homestead purchaser, the debt incurred by the latter
was for purchase-money.' But if the nioney is lent to the pur-
chaser, that he may pay it over to the vendor, this is not a
debt incurred for the purchase, it is held.*
The difference between purchase-money and borrowed-
money-to-pay-purchase-money is that the former is secured by
the vendor's lien while the latter is not secured by any lien.
There may be a conventional lien created by the agreement
of the parties — the lender and the borrower — but the law
creates none. Wherever, then, such broad language, as that
above quoted from the statute, is found in other statutes and
held to include loans to the purchaser that he may pay the
price, the lender has no lien by virtue of his loan, but he may
1 Parrott v. Kumpf, 102 IlL 423, ^7. cited in the Parrott Case ; Winslow
2Austinv. Underwood, 37 111.438. v. Noble, 101 111. 194. See Best v.
3Magee v. Magee, 51 III. 500. Gholson, 89 HL 465.
^^Eysterv. Hathaway, 50 III. 521,
3i0 IJABILITY FOK PDKCHASE-MONEY, ETC.
get judgment and vindicate the general judgment-lien against
the borrower's homestead' — for there is no exemption,
§ 5. Notes for Price in Third Hands.
The authorities sustain thje proposition that the character
of a debt and of the vendor's right of payment out of the land
he has sold is not affected by cbanging the form of the evi-
dence of the debt b}' securing it, with additional security, real
or personal, or new^ security, or higher security.'
"Nor, as between the parties, is, the lien waived, lost or
abandoned by the fact that the original note for the purchase-
money was, by the direction of the vendor, executed to a third
person. Nor is such a lien lost, as between the parties, by tho
fact that such third person afterwards surrenders to the vendee
his original note (as in this case), and takes others in its stead." '^
A man and wife bought land on which the vendor owed ;i
thousand dollars to his grantor^ which debt was a lien upon
the land. All the parties agreeing, the marital purchasers
gave their joint note to their vendor's grantor who retained
his lien . Then title was passed to the wife only, by the vendor,
who acknowledged the payment to him of fifteen hundred
dollars, which included the thousand of the note. It was held,
under these circumstances, that the wife, though a married
1 Bentley v. Jordan, 3 Lea, 353, 860
Austin V. Underwood, 37 111. 438
Wafford v. Gaines, 53 Ga. 485
Hawkes v. Hawkes, 46 Ga. 204
Weaver's Estate, 25 Pa. St 434:
Reed v, Defebaugh, 24 Pa. St 495.
Compare Harley v. Davis, 16 Mini .
487 ; Phelps v. Conover, 25 111. 314 :
Chase v. Abbott, 20 la. 154 ; Dick v. Eyster v. Hathaway, 50 111, 522 ;
Powell, 2 Swan (Tenn.), 632; Mul- Adams v. Jenkins, 16 Gray, 146.
herrin v. Hill, 5 Heisk. 58 ; Stratton 2 Joiner v. Perkins, 59 Tex 800,
V. Perry, 2 Tenn. Ch. 633 ; Burns v. citing De Bruhl v. Maas, 54 Tex. 473 ;
Thayer, 101 Mass. 426; Ladd v. Dud- Gillum v. Collier, 53 Tex. 592; Clem-
ley, 45 N. H. 61 ; Weymouth v. San- ents v. Lacey, 51 Tex. 150 ; Irvine v.
born, 43 N. H. 171 ; Strachn v. Foss, Garner, 50 Tex. 448 ; Flanagan v.
42 N. H. 43 ; Wood v. Lord, 51 N. H. Cushman, 48 Tex. 241 ; Prince v. Ma-
448; Kibbey v. Jones, 7 Bush, 243; lone (Gal. Term, 1881, declining to
Pryor v. Smith, 4 Bush, 379 ; Lowry follow Malone v. Kaufman, 38 Tex.
V. Fisher, 2 Bush, 70; Pratt v. To- 154). See, also. Hicks v. Moms, 57
peka Bank, 12 Kas. 570 ; Woodlie v. Tex. 659 (expressly overruling Ma-
Towles, 1 Leg. Rep. 331 ; McLaughlin lone v. Kaufman, supra) ; Pinchaiii
V. Bank, 7 How. 228; BiiTell v. Schie, v. CoUard, 13 Tex. 333; Senter v.
9 Cal. 104 ; Dillon v. Byrne, 5 Cal. Lambeth, 59 Tex. 359 ; Glaze v. Wat-
455; Mills v. Spaulding, 50 Me. 57; son, 55 Tex. 563.
NOTES FOE PEICE IN THIKD HANDS. 347
woman whien she made the note, could not hold the land and
repudiate her contract.'
A mortgage that is valid against a homestead, or a note for
purchase-money, may be assigned so that the transferee shall
be subrogated to the rights of the original holder.^ At the
request of the owner of the homestead^ with the obligation to
pay assumed, subrogation would take place.' If the purchaser
of a homestead has agreed to pay the purchase-money to a
pers©n other than his grantor, such person derives from thej
agreement between the contracting parties, and that between
the grantor and himself, for valid consideration, the right and
lien which the grantor would have had.* And it has been
held that an attaching creditor may redeem the land attached
from a mortgage, and become in equity the assignee of the
mortgage debt, as though he had been requested by the mort-
gagee to redeem it. So he is entitled to " keep the debt on
foot," with its securities, against the debtor.*
" The assignment of a note, given for the purchase of real
estate, carries with it 'the lien of the vendor and all the equi-
ties and remedies the latter would have had if he had never
parted with the debt. And this on principle would seem to
be the better rule. "What reason can be given why, if the as-
signment of the debt carries with it the lien, any and all other
equities and rights do not necessarily follow? The principal
thing is the debt ; the lien is an incident and the principal one
that attaches to it. If, then,^the debt and the principal inci-
dent pass to the assignee, why not all other equities and
rights?"*
The vendor's lien may be waived by giving up the note and
taking personal security for the debt instead of the property
sold. It has been held that the assignment of the original
note is waiver of the lien.^ Ordinarily, the note and lien go
together into the hands of the assignee. The note, without
iPurcell V. Dittman, 81 Ky. 148. *Pinchain v. Collard, 13 Tex. 333;
2 Lamb v. Mason, 50 Vt. 350 ; Keyes Hamrick v. Bank, 54 Ga. 53.
V. Wood, 21 Vt 331 ; Pratt v. Bank, 6Lamb v. Mason, 50 Vt. 851 ; War-
10 Vt S93. ren v. Warren, 30 Vt. 530.
s Magee V. Magee, 51 111. 500 ; Aus- « Bills v. Mason, 43 la. 339, 833 j
tin V. Underwood, 37 111. 438 ; Carr Blair v. Marsh, 8 la. 144,
V. Caldwell, 10 Cal. 385 ; Lassen v. • Moshier v. Meek, 80 111. 79. See
Vance, 8 Cal. 371. Ontario State Bank v. Gerry, 91 Cal. 94
348 LIABILITY FOE PURCHASE-MONET, ETC.
the lien, would be worthless if the debtor owned nothing but
his homestead.
Nothing which the debtor can do, short of payment, can
rid the home of the lien bearing upon it. He cannot relieve
the property by selling it. Should he sell, and afterwards
take the property back, the original lien would remain.
The cancellation of a deed absolutely conveying the home-
stead, and executed by both husband and wife, does not re-
: invest them with such right as to prevent the land from sale to
satisfy unpaid purchase-money notes held • by a party which
acquired them before the cancellation.'
If the assignee of a note, given for homestead purchase-
money, should surrender it to the maker and take the latter's
note in exchange, it is held that the property will be bound
by a trust deed given to secure the note.^ The new note, in
such case, stands in the place of the old one, and is evidence
of a debt incurred by the purchase of the homestead property ;
for the consideration has merely changed form without chang-
ing character.'
An exemptionist, renewing a note with lien on his home-
stead which had been originally given before his marriage,
rebinds the hypothecated property.* And he cannot avoid
responsibility hy having that property conveyed afterwards
to his wife, through a third person, in fraud of the creditor
holding the secured note, to whom it was given.^
If the deed given to the intermediary was fraudulent, that
from him to his grantor's wife will be deemed tainted with
the same disease.'
A deed of trust of land subject to homestead and subject to
the purchase-money lien is not fraudulent because of such
reservations.' There might be fraudulent concealment of the
' 1 Brooks V. Young, 60 Tex. 33. * Hambrick v. Jones, 64 Miss. 240 ;
2 Williams v. Jones, 100 111. 362, on Miss. Code,- 1880, § 3692 ; Smith v.
statute providing that " no property Scherck, 60 Miss. 491. See Billingsly
shall ... be exempt from sale v. Neblett, 56 Miss. 537.
. . . for a debt or liability incurred 'lb.
for the purchase or improvement 6 Pope v. Pope, 40 Miss. 516 ; Lin-
thereof." Kimble v. Esworthy, 6 dfeln v. Claflin, 7 Wall. 133; Carey
Bradw. 517. v. Hotailing, 1 Hill (N. Y.), 311.
3 Wood V. Lord, 51 N. H. 44a See ' Carter v. Hicks, 3 Lea, 511.
Ladd V. Dudley, 45 N. H. 61.
NOTES FOE PEICK IN THIED HANDS. 349
homestead character of the property and of the purchase-
money lien which would outrank the trust deed ; but, if the
grantee of the trust is made acquainted with the true state of
facts, there certainly would be no fraud in giving the deed.
There are some transactions, reported in the books, which
seem to contradict what has been above said, that nothing
which the debtor can do, short of payment, can rid the home
of the lien bearing upon it.
A purchaser bought a house and lot on credit, and then
deeded the property to his wife. He gave his note for the
purchase-money; and, at his request, the note was bought by
a third person. The homestead, thus bought but not paid for,
was held exempt from judgment on this note given for pur-
chase-money and transferred to third hands in the course of
business. It was even held that if the wife herself (who had
become the holder of the legal title to the property) had been
the maker of the note, and had requested the third party to
purchase it, he would have had no right against her estate of
homestead ; that, admitting the acts of herself and husband to
be fraudulent, the holder of the note could not make his
money, as purchase-money 6r in any way, out of the property
thus obtained without price or consideration.^
The court said that the right, which the payee of the prom-
issory note had had, to enforce the vendor's lien, was per-
sonal, and was ended when he indorsed the note to a third
person, though the maker consented to the transfer, or ad-
vised it.''
If the lien was once fastened upon the realty, could it be
■dislodged by the transfer of the evidence of the debt? It
was a property/ debt if the property was bound for it, as in
case of all vendor's liens whether on homesteads or not, and
of all liens on realty, whether on homesteads or not. For
•exemption has nothing to do with lien debts.
1 Gruhn v. Richardson, 128 111. 178. by the ruling in Allen v. Jackson,
Citing Winslow v. Noble, 101 111. 194 ; 123 IlL 567."
Eyster v. Hathaway, 50 III. 533. ^ Gruhn v. Richardson, supra, cit-
Adding: "Even the fraudulent acts ing Richards v. Learning, 27 111. 433;
of the party entitled to a homestead Keith v. Horner, 33 111. 534 ; Mc-
are not allowed to divest that right. Laurie v. Thomas, 39 111. 391 ; Lehn-
Leupold v. Krause, 95 111. 440. The dorf v. Cope, 133 111. 833.
"Oase made is, as we think, governed
350 LIABILITY FOE PUKCHA8E-M0NEY, ETC.
The lender, by advancing the price to the purchaser, becomes
only an ordinary creditor, though a favored one where the
exemption statute excepts the debt due him against the house-
holder from the operation of the exemption. ,His , credit is
merely personal, no doubt ; and, should he assign it, the as-
signee does not have, necessarily, the same right to obtain a
general judgment lien bearing on the homestead, that the as-
signor had possessed. Whether this right passes on assign-
ment depends on the statute of each state as construed by
the supreme court of each. But everywhere a lien-bearing
debt is a property debt, and one non-lien-bearing is per-
sonal.
If the statute, in excepting from exemption, names the char-
acter of debt that is thus excepted (and not the kind of cred-
itor whose clkitn is to be good against the homestead), it
wcwld seem that transfer or assignment would not forfeit .the
right. For instance, if any dehi incurred for the purchase of
the homestead is the lai^guage employed, and if the courts con-
strue the language to include debts created by loan of money
to pay the vendor, then the transfer of the debt ought not to
forfeit the right reserved by the exception of such debt from
the operation of exemption. On the other hand, if the stat-
ute provides that persons advancing money, to' purchasers
of homesteads, to pay the price, shall not be affected by the
homestead exemption law, the assignment of their claitns to
others who are not loaners would not carry with it the right
to create a lien on the homestead by judgment, to be fol-
lowed by execution and forced sale. '
§ 6. Marshaling Accounts, as to Homestead.
A debtor, insolvent apart from a costly and elegant home-
stead, gave his note for five thousand dollars in consideration
of several loans previously made to him, the first of w;hich
was of fifteen hundred dollars before he had acquired the
homestead. He had hiade payments exceeding this last men-
tioned loan without directing their application. The payee
did not indorse them on the note nor designate their applica-
tion to any special loan. " In view of the evident purpose of
the law to protect the homestead, held that the payments
should be so applied as to cancel the fifteen hundred dollars
MARSHALING ACCOUNTS, AS TO HOMESTEAD. 351
indebtedness which might otherwise be a lien on the home-
stead.'"
The general rule governing payments on an open account
is that they are to be applied to the extinguishment of the
items in the order of their dates.^ The court, in the case above
mentioned, considered that the running account had been set-
tled by the giving of the note, so that the rule did not apply,
if indeed it had not consisted previously of " distinct debts^"
rather than items of account. If neither party elected to
what items of indebtedness the five thousand dollar note pay-
ment should be accredited, " then the law applies it according
to its own notions of justice." '
The court admitted that the rule for applying payments, so
as to preserve the creditor's security by crediting them to un-
secured itemsi or to those less secured, has strong support on
authority, if slightly modified,* so as to be applied only under
equitable considerations applicable to special cases. ,
It held that ' since neither party had elected whether the
payment should be applied to the extinguishment of the fif-
teen hundred dollar debt, it should be so applied as to pre-
serve the homestead to the debtor and his wife. The court
added : " Under the head of ' The justice of the case,' the ap-
pellant calls attention to the character t)f the homestead in
. this case, it being stated that it contains about forty acres,
with buildings costing about ten thousand dollars, with ter-
races, drives, etc., and that the homestead was built in part
with the money obtained from the plaintiff. It has seemed
to be the policy of 'legislation in this state not to place restric-
tions on the value of homesteads. We have no greater dis-
cretion in the applitjation of the law in a case like this than in
a case where the 'homestead as to value would be at the other
extreme. In either case, the rule applicable to the facts is
1 First N. Bank of Stewart v. Hoi- ^Citing Whiting v. Eichelberger,
linsworth, 78 la. 575. (The extract is 16 la. 423, and referring to the pre-
f rom the syllabus of the reported case.) vious citations.
2/6.; ciimgr Field V. Holland, 6 Cr. * Citing Leeds v. Gifford, 5 Atl.
8; Mack V. Adler, 33 Fed. Eep. 570; (N. J.) 795; Hersey v. Bennett, 28
S&hulehburg v. Martin, 3 Fed.' Eep. Minn. 86; Coons v. Tome, 9 Fed. 533 :
747; Pardee v. Markle, 111 Pa. St Sanborn v. Stark, 31 Fed. 18. See
551 ; HannOn v. Ehgleman, 49 Wis. Nichols v. Knowles, 17 Fed. 494
378; Hersey v. Bennett, 38 Minn. 86.
352 LIABILITY rOK PPRCHASE-MONBY, ETC.
the same. Again, while the statement as to the cost may he
true, it is doubtful, in view of the record, if, after discharging
the four-thousand-dollar incumbrance, there remains a home-
stead of extravagant value. The house seems to have been
built when the defendant was thought to be solvent and pros-
perous in business. . . . It is conceded that the defend-
ant is insolvent, and that his other property has been applied
to the payment of his debts. To us it does not seem a greater
hardship to the plaintiff than to the other creditors." ^
If there is error in this decision, it is, perhaps, attributable
to treating the application of the payments as coming under
an exception to the rule above stated. The homestead was
liable for debts contracted prior to its purchase and occupancy,
and the fifteen hundred dollar debt seems to have been prior.
§ 7. Mortgage for the Price.
A mortgage for the purchase-money, given simultaneously
with the taking of a deed absolute in form, is deemed prior to
the transfer so far as to give it precedence over later liens put
upon the property.^ A married man may act alone in securing
the purchase-money to his vendor, when acquiring property
to be dedicated as a homestead, for his wife's right in it has
not yet arisen. Hence it is held that though the requirement,
that the signature of the wife must accompany that of the .
husband in the conveyance of the homestead, is strictly en-
forced, yet mortgages to secure purchase-money are excepted
from the requirement.'
The signatures of both husband and wife are unnecessary
when a mortgage is given to secure the price of a homestead
to'be established. Only the one taking the title need sign.*
Nor is the wife's signature essential to the renewal of an
1 First N. Bank v. HoUingsworth, Phillips v. Stauch, 20 Mich. 369 ; Stev-
supra. enson v. Jackson, 40 Mich. 703;
2 Curtis V, Root, 30 III. .57. Watertown Ins. Co. v. Sewing Mar
SBeecher v. Baldy, 7 Mich. 488; chine Co., 41 Mich. 131; Sherrid v.
Dye V. Mann, 10 Mich. 391 ; McKee Southwick, 48 Mich. 515 ; Shoemaker
V.Wilcox, 11 Mich. 358; Ring V.Burt, v. Collins, 49 Mich. 595; Hall v.
17 Mich. 465 ; Fisher v. Meister, 34 Loomis, 63 Mich. 709 ; Girzi v. Carey,
Mich. 447 ; Snyder v. People, 36 Mich. 53 Mich. 447.
106 ; Comstock v. Comstock, 27 Mich. * Christy v. Dyer, 14 la. 438 ; Yoat
97 ; Wallace v. Harris, 32 Mich. 380 ; v. Devault, 9 la. 60.
Amphlett v. Hibbard, 39 Mich. 398;
MOKTGAGK FOB THK PEICB. 863
obligation which would otherwise be soon prescribed by time,
by which a mortgage on the homestead is continued in forcei,*
However stringent the rule of restraint against the husband's
sole alienation of the homestead, and against his creation of a
lien upon it without his wife's concurrence, exception is made
in case of mortgage to secure the purchase price.^
The wife's signature is necessary to a mortgage given by
the husband to secure a loan obtained by him and paid as part
of the price in exchanging his old homestead for a new one,
when the mortgage is to rest on the latter.' The mortgage
in such case is not given to the guarantor, to secure purchase:
money, but to another to secure him for money loaned by
him for any purpose the borrower may design. It is such a
hypothecation of the homestead as involves the safety of the
wife's home, and her signature is essential to the validity
of it.
To pay the price, the husband has been allowed to convey
the homestead, notwithstanding the rule forbidding alienation
without her consent.*
The reason is that the wife's seenrity of home is not af-
fected by such a transaction. She has no right to it till the
home is paid for ; and what goes to pay does her no wrong,
The spirit of the restraint upon alienations imposed by statute
is not violated by acts of the husband which do not affect the
home. For instance, if homestead enjoyment remain unmo-
lested, the husband alone may grant the right of w^y through
the exempt property, when he is the owner of the legal title.'
1 Mahon v. Cooley, 36 la. 479. See not confined to the rights of the wife,
Burnap v. Cook, 16 la. 149. but extends to every right — the deed
2 In Minnesota, a conveyance or is wholl3' void. Conway v. Klgin, 38
mortgage of the homestead made by Minn. 469.
a married man without his wife's ' Dikeraan v. Arnold, 71 Mich. 658>
signature is absolutely void, unless * In Texas the husband alone may
given to secure the price of the home- convey land to satisfy the claim for
stead. Alt v. Banholzer, 39 Minn. 511. its purchase-money, if done in good
The iavalidity as not cured by subse- faith and not to defraud the wife of
quent abandonment of the homestead homestead rights. Eoy v. Clarke, 73
right Barton v. Drake, 21 Minn. 299. Tex. 28 ; Clements v. Lacy, 61 Tex.
Nor is want of the wife's signature 160.
remedied by subsequent divorce. Alt * Ottumwa R. Co. v. Mo Williams,
V. Banholzer, supra. See Same par- 71 la. 164. To nearly same effect
ties, 86 Minn. 57. And the invalidity is Chicago R. Co. v. Swinney, 38 la. 183.
23
354
LIABILITY FOE PUECHASB-MONEY, ETC.
So he may grant a license to mine upon it, when the home
of the family is not thereby disturbed ; at least, such grants
are not necessarily void because not signed by the wife.^ And
on the same principle, he alone may give a mortgage to se-
cure purchase-money.
An unrecorded mortgage for purchase-money has been given
preference over a recorded mortgage for debt not excepted
from exemption, though both were held valid and both had
been duly foreclosed.^
A mortgagor, without title, gave a mortgage on promise
of the mortgagee to procure him the title to the land thus pre-
mortgaged. It was held to be a purchase-money mortgage,
against the land subsequently owned by the mortgagor as his
homestead.'
A verbal promise not to foreclose a mortgage was held not
obligatory.*
§ 8. Payment Essential to Ownership.
The purchaser of a dwelling or land for a homestead buys
as though he had any other purpose. He may contract alone.
If he is married, his wife need not join in the mortgage to
secure the purchase-money,' as already shown.
Land bought by a husband for a home, but not paid for,
may be given up by him alone ; or he alone may secure the
purchase-money, by mortgage to the grantor. The reason is
that ownership being necessary to the enjoyment of exemption,
the right does not attach, quoad the creditor, till the price has
been paid.' He alone may adjust equities and incumbrances
existing prior to the purchase.'
' Hariness v. Burton, 39 la. 101 ; have been sold. Semble. Lawrence
Chicago E. Co. v. Swinney, 38 la. 182. v. Grambling, 19 S. C. 461.
See Sibley v. Lawrence, 46 la. 563, 3 Whitney v. Traynor, 74 Wis. S89.
relative to leasing a coal mine on a * Martin v. McNeely, 101 N. C. 634 ;
homestead. Boone v. Hardie, 87 N. C. 73 ; Bonham
2 Walker v. Johnson, 64 Ga. 368. v. Craig, 80 N. C. 224 ; Kessler v. Hall,
The proceeds of a judicial sale of a 64 N. C. 60 ; Walters v. Walters, 11
homestead, sold on claim for pur- Ired. 145.
chase-money, must be applied to the ^ Davenport v. Hicks, 54 Vt 33 ; Alt
satiafaction of the oldest execution, v. Banholzer, 39 Minn. 511. See au-
in South Carolina, though under that thorities in sec. 6.
exemption the property could not * De Bruhl v. Maas, 54 Tex. 464.
7 Gillum V. Collier, 53 Tex. 593.
PAYMENT ESSENTIA r. TO OWNERSHIP. 355
Ownership being one of the conditions of homestead, the
purchaser cannot claim the privileges of exemption against
his vendor whom he has not paid ; for he does not. own as to
him. The vendor's right is superior ; and it has been held that
the title is not fully vested in the purchaser before the pay-
ment of the price.' This is clearly true when he holds land
under a bond for title,^ or has given a mortgage for the pur-
chase price.'
If title is taken and notes given for the purchase-money,
they are considered anterior to the taking of the title, since
it is said that the contract must precede the purchase. Both
transactions are one, in a sense, but it is held that purchase-
money notes would bear on a homestead as evidences of pre-
existing debt, independent of the special statutory provision
that purchase-money debts shall so bear.* The contract to
purchase precedes its execution.'
If the purchase-money has not been paid, the vendor can
recover the property by ejectment, or suit /to recover under a
statute so empowering him to proceed.*
The purchaser's title, when he has not paid for the prop-
erty purchased, though not good against the vendor, cannot
be disregarded by others on the ground that the price has not
been paid. . As to them, the condition of ownership, in respect
to homestead, has been observed.'
A contractor to sell land advanced money to the party
agreeing to buy, for the purpose of having a dwelling-house
built upon it. The house was built, with the understanding
that the advances should be repaid before the giving of the
deed. The buyer occupied the dwelling as his homestead,
which he assigned to his wife. The contractor to sell (who
had received part of the price, on the contract) deeded the
• Stone V. Darnell, 20 Tex. 14. Carswell v. Hartridge, 55 Ga. 412;
2 Farmer v. Simpson, 6 Tex. 310, Biggers v. Bird, 55 Ga. 650. See
3 Curtis V. Koot^ 20 IlL 57. Lackey v. Bostwick, 54 Ga. 45 ; John-
^Piircell V. Dittman, 81 Ky. 148;. son v. Griffin, etc. Co., 55 Ga. 691;
Bradley v. Curtis, 79 Ky. 327. Bush t. Lester, 55 Ga. 579 ; Isaacs v.
6 Christy v. Dyer, 14 la. 441 ; Ste- Tinley, 58 Ga. 457.
Tens V. Stevens, 10 Allen, 146. Com- "McHendry v, Reilly, 13 Cal. 76;
pare Thurston v. Haddocks, 6 Allen, Clark v. Trawick, 56 Ga. 859 ; Smith
429. V. Whittle, 50 Ga. 626; Hopper y.
« Broach v. Barfield, 57 Ga 601 ; Parkinson, 5 Nev. 233.
35& LIABILITY FOE PCECHASE-MONET, ETg.
property to another person, who repaired and improved it,
and paid taxes and insurance on it.
The contractor to sell was sued by the other party to the
contract for specific performance. The wife of the latter was
declared to be entitled to the conveyance on payment of the
balance of the price, and on reimbursing the person who had
paid taxes in the sum thus expended. Her homestead right
was held paramount to the advances made to her husband by
the contractor to sell, for the purpose of erecting the dwell-
ing-house ; and also to the sums expended by the person to
whom the deed had been given, in making repairs.*
Two joint purchasers of land paid for it in part — one pay-
ing more than the other. The one who had paid the more,
■died: the other administered on his estate, caused it to be re-
sold with titles withheld till full payment of the price and the
land to stand pledged for such payment. One-half the price
was to be paid to the heirs of the deceased and the other
half to the administrator: the original joint purchasers. The
administrator became the purchaser of the land. He was
found indebted to the estate on account of the interest of the de-
ceased in the land, and also for rents and profits accruing before
the resale. He was held not entitled to homestead as against
his indebtedness; The money owing by him was purchase-
mopey payable to the distributees of the estate of the deceased.'
Co-purchasers, becoming tenants in common, acquire no
right of homestead which can be interposed by one against
the other who claims for excess of his part paid on a mort-
gage" to secure the purchase-money.'
No homestead right is acquired by a purchaser who takes
a. deed against a lien (reserved in the deed which he takes), to
secure the payment of a stated sum of money though not
purchase-money, technically speaking. He obtains the prop-
erty with its liability for the lien.*
Land not paid for cannot . even be applied to the payment
of funeral expenses to the displacement, of the vendor's lien.'
'Chopin V. Runte, 75 Wis. 361; SRobertson v. Paul, 16 Tex 473.
McWilliams v. Bones, 84 Ga. 203. See Phelps v. Porter, 40 Ga. 48S, on
'' Edwards v. Edwards, 14 S. G. 11. application of personalty, unpaid for,
3 Newbold v. Smart, 67 Ala. 326. to the support of widow and chil- -
* Berry v. Boggess, 62 Tex. 239. See Area.
Olaybrooks v. Kelly, 61 Tex. 634
PEICE EETUENED TVHEN TITLE FAILS. S6l
A vendee in possession under warranty cannot defend against
the payment of the purchase-money either in equity or at law
while he retains possession, except on the ground of fraud or
the inability of the vendor to respond to his covenants by
reason of his insolvency .^ And when the deed shows on its
face that the purchase-money has not been paid, a sub-vendee
is charged with notice, and is not an innocent purchaser.''
A judgment in a suit for the recovery of purchase-money
ought to show that it was rendered on that kind of claim ; but,
when it does not show this, the purchaser of a homestead,'
sold under the judgment, may establish that fact by extrinsic
evidence when his title is attacked on the ground that the
property was exenapt.'
§ 9. Price Returned when Title Fails.
In a suit for purchase-money, the plaintiff cannot recover
when he has given no title to the purchaser. Though the de-
fendant may be the owner by title subsequently obtained of
one who could rightfully convey, he will not be bound by his
contract with one who had no such right, and any form of
lien held by the latter will prove abortive.* The purchaser
getting no title, his wife can claim no homestead in property
which he does not own and to which she claims no title in her
own right.*
The purchaser of a homestead who obtains no title is en-
titled to have his money back, with interest.' It was said,
perhaps unnecessarily, in the beginning of this oha'pter, that
he cannot have both the property and its purchase-money ;
but he can have one. If his title fails, why should he not
have his money back, which he has paid out for nothing?
A purchaser, evicted by the holder of a paramount title,
becomes a creditor of his grantor to the amount of the price
1 Thompson v. Sheppard, 85 Ala. ony, 39 111. 532 ; Freeman on Judg-
611, 619; Woodall v. Kelly, 85 Ala. ments, 180.
368 ; Sti-ong v. Waddell, 56 Ala. 471 ; * Farmer v. Word, 73 Ga. 16.
Garner v. Leverett, 32 Ala. 410. ^Snodgrass v. Parks, 79 Cal. 55.
2 Witter V. Dudley, 42 Ala. 616. « Cline v. Upton, 59 Tex. 37 ; Bums
s Durham v.^Bostwick, 73 k C. 356; v. Ledte^tter, 56 Tex. 386; Stone v.
People V. Stahl, 101 111. 346 ; White v. Darnell, 35 Tex. Sup. 435 : Andrews
Clark, 36 IlL 285 ; Stevenson v. Mar- \». Richardson, 31 Tex 387 ; Howard
V. North, 5 Tex. 316.
358 LIABILITY FOR PUECHASB-MONBT, ETO.
paid. He has been a creditor from the date of the payment,
though the fact has not appeared till his eviction.
The grantor's widow cannot interpose her homestead right
in the property thus abortively sought to be sold by her late
husband, against an execution issued by the plaintiff on a
judgment giving him back his money, because of breach of
warranty. 8he might claim homestead in the land, if her
right was accorded by an existing statute and she had not
joined in the deed, and her husband really owned but did not
legally convey. But if her right arose after the sale (though
before the eviction of the vendee), by the passage of a statute
creating it in the interval between those two events, it is held
that she cannot interpose her claim against the- plaintiff re-
covering the price on breach of warranty.^
The vendee is as much entitled to have his money back
when he has bought at judicial sale provoked by the vendor as
owner, as when he has bought at private sale. Whatever the
transaction, if the court is a mere agent, the duty of war-
ranty is not affected by the fact that the sale is judicial in
form.
Of the court as an agent, the following extract is illustra-
tive : " Reliance seems to be placed on the fact that the sale
of the land was made by the master " [in chancery]. . . .
" The court acquired jurisdiction to order a sale of the land
by virtue of the contract entered into between the complain-
ant and defendant to the suit in the original trade. The court
and its oflBoer, the master, were therefore the agents of tTie
vendee, the owner of the land — as much so in reality, though
not in form, as if he had executed to them a regular power
of attorney to sell, and to a*ppropriate the proceeds in con-
formity with the contract. He was entitled to the surplus
proceeds of sale after satisfying the debt of his vendor and
the costs of suit. If the master, after entering all proper
credits on the notes given to him, had, under order of the
court, transferred the notes to the defendant, there could not
have been a doubt that the unpaid balance would have been
a ' debt or liability contracted for the purchase ' of the land." "
1 CoiT V. Shackelford, 68 Ala. 341 ; v. Burnett, 56 Ala. 340 ; Wilson v.-
Bibb V. Freeman, 59 Ala. 613 ; Watts Brown, 58 Ala. 63.
2 Bentley v. Jordan, 3 Lea, 353, 359.
INSUEANCE AND VOIDABLE TITLE.
To avoid a deed for a homestead, the party praying for the
rescission of the contract must return the price or considera-
tion received, 'according to the rule of equity.^
§ 10. Insurance and Voidable Title.
A stranger to a contract cannot impeach the transaction
because of its effect on the homestead, resulting in a mort-
gage upon it prohibited by the law of the place of con-
tract. This was laid down in a case presenting the following
facts: The occupant of a building, which was claimed as ex-
empt, conveyed it to a firm, to pay debt, who reconveyed
to him on the same day, and took his notes therefor and held
the vendor's lien. He insured the property and transferred
the policy to the firm. The building was burned, and a trans-
feree of the notes and policy sued the insurance company for
the loss.
The company pleaded in defense that the transaction be-
tween the insuring occupant and the firm was void under the
homestead laws of the state where it took place; that the
notes given by him, with security in the nature of a mortgage,
gave no rights against the homestead or exempt business
place; and that the plaintiff (the transferee of the notes and
policy) had not derived them from a holder having any insur-
able interest.^ The court said the transaction was not abso-
1 Pearson v. Cox, 71 Tex. 246. improvements made thereon, as here-
2 The transaction was had in Texas, inbef ore provided, whether such
Tlie constitution of that state provides mortgage, or trust deed or other lien,
(sec. 50) that the homestead of a f am- shall have been created by the bus-
ily shall be protected from forced band alone, or together with his wifej;
sale for debts except for purchase- and all pretended sales of the home*
money, taxes, work done and mate- stead, involving any conditions of de-
rial used for improvements contracted feasance, shall be void." Section 61
for in writing, leith the consent of the limits the country homestead to two
vrife given as required in a convey- hundred acres and improvements,
ance of the homestead. " Nor shall and the urban to a lot or lots worth,
the owner, if a married man, sell the no more than five thousand dollars,
homestead without the consent of and improvements irrespective of
his wife given in such manner as value. Eitlier species must be used
may be prescribed by law. No mort- for residence or business by the head •
gage, trust deed or other lien on the of a family. Temporary renting is
homestead shall ever be valid except permitted, if no other homestead has
for the purchase-money therefor, or been acquired.
SbO LIABILITY FOE PURCHASE-MONEY, ETC.
lately void. It would hold till questioned by some one having
the right to question it. The insurance company was a
stranger to it and could not successfully assail it. , As be-'
tween the parties to it, the notes were valid and the security
/attached to such interest or estate in the property as was
conveyed to the firm. The deed or mortgage given by the
homestead occupant to secure his notes to the firm " would
be effective in several contingencies to pass some sort of sub-
stantial iiiterest in the insured property itself ; under the de-
cisions of that state," the court said.'
The actual form which the security for the notes took from
Jthe written instruments between the maker and the first holder
(the firm) was that of securing a vendor's lien for purchase-
money, the court said. The conclusion was that the plaintiff,
as the transferee of the notes and security and policy, repre-
sented such an insurable interest as would support a recovery
for the loss by fire.^
Had the wife of the homestead holder attacked his convey-
ance of it to the firm, she would have had no difiioulty in hav-
ing it declared void under the section above cited. Indeed,
the terms of that section are so broad an inhibition of sale
\vithout her joinder that it would seem a contravention of the
policy of the law to conserve homes if we allow sole sale by
him to be merely voidable under any circunistances, when
purchase-money, or some other exceptional matter, is not in-
volved. It was not involved in the conveyance to the firm.
If the firm acquired title in any way ; if, for instance, the
homestead character did not exist at the date of this first sale,
then it is quite clear that purchase-money figures quite prom-
inently in the reconveyance. The notes, taken by the firm
and secured to them, were purchase-money notes, and the
court's conclusion seems unanswerable.
The firm's possession of the policy was rightful, by the
terms of the agreement — they being appointed to receive the
proceeds,'
' Citing Jordan v. Godman, 19 Tex. 2 Parks v. Hartford Ins. Co.: 100
«73j Sears v. Sears, 45 Tex. 557; Mo. 373, 55ft
Reece v. Renfro, 68 Tex. 193; McEl- » Franklin v. Ins. Co., 43 Mo. 4S5.
roy V. McGriffin, 68 Tex. 208 ; Irion
vi Mills, 41 Tex. 3ia
IMPEOVEMENtS. '''{ 361
§ 11. ImproTements.
Most of the homestead statutes couple improvements with
purchase-money, and except debts created thereby from the
operation of exemption. Improvements, as the word is used
in those laws; embrace the erection of dwelling-houses and
appurtenant buildings, their betterment and repair, and what-
ever is made a fixture of the'homestead.^ It is quite common
to include material furnished and labor done, in building or
preserving home structures, in the general term, improve-
ments. Shades of difference appear when comparing the stat-
utes, but the general rule is that legally created claims for
anything wrought or contributed to make the home or en-
hance its value shall be collectible from the owner, even to
the execution of judgment against his homestead.
The rule is certainly just. There is no more reason for
exempting a dwelling-house and its additions and auxiliary
structures from such claims than there is fOr exempting the
land on which they stand from the payment of its price. It
would be unconscionable, in either case; to let the occupant
have the property for nothing; to give him a homestead at
the expense of the grantor and constructor.
The dwelling and appurtenances upon rear estate at the
time of its purchase, constituting a part of it, are not to be
separately considered here under the caption of this section,
since the unpaid price for the whole has been already treated
as purchase-money. If the vendor of the buildings and the
grantor of the land were different persons, the terra purchase-
money would be applicable to the price due to either.
Most of the states provide that the mechanic, laborer and
material-furnisher shall have a lien upon the homestead for
their contributions to it, or provide for their creation of a lien
or privilege. Even clerical and domestic service, rendered on
the homestead, is privileged in a few states; and, in several, it
is so, with respect to personal property Liens upon crops of
the homestead farm, for utensils, fertilizers, plantation sup-
plies, money advanced to make the crop, and the like, created
by contract authorized by statute, have been likened to that
for purchase-money.^
1 Greenwood v. Maddox, 27 Ark. 2 Tjf t v. Newsom, 44 Ga. 600.
660.
362 LIABILITY FOE PUEOHASE-MONEY, ETC.
Statutory requisites, for the creation of the mechanic's, la-
borer's or furnisher's lien, must be observed. As exceptions
to exemption, they have been construed strictly; so that,
while debts contracted for the erection of buildings and for
labor done in the dwelling-house and in the field were held to
be within the exceptions, a different view was taken of work
done to improve the land and of money advanced for that
purpose. The debts contracted for the labor and loan for that
purpose were not privileged by the statute.^
Material and labor furnished for putting up the home build-
ings, in good faith, are not secured by a lien in equity where
there is none by law.^ And if a legal lien may be created by
contract so as to bear upon the homestead, married benefici-
aries of exemption must join in the creation.' So, where there
is no lien against the homestead, by law, for supplies furnished,
the debt created is merely personal of the obligor. Though
the head of a family, for supplies furnished to it, has a judg-
ment rendered against him, it is not a lien on the homestead.*
But it does not follow from the lack of lien, that the home-
stead would not be liable for such debts when prosecuted to
judgment. Exemption does not cut off all ordinary debts but
only those rendered non-collectible against it, by statute.
A promissory note, given for building material worked up in
a homestead house, was prosecuted to judgment, with its con-
sideration stated in the finding of the court. The homestead
was liable under the judgment, in the absence of liable
chattels.*
1 Lewton v. Hower, 18 Fla. 873, of the constitution of that state, made '
883. in Lyon v. Ozee, 66 Tex. 95. Cain-
' 2Chapin v. Eunte, 75 Wis. 369; pare Taylor v. Huck, 65 Tex. 338.
Spear v. Evans, 51 Wis. 43 ; Campbell See Gaylord v. Loughbridge, 50 Tex.
V. Babcock, 37 Wis. 513; Smith v. 573; Eckhardt v. Schlecht, 39 Tex.
Laokor, 33 Minn. 454; Coleman v. 130.
Ballandi, 33 Minn. 144 ; Cogel v. * Daniel v. Bush, 80 Ga. 318. See
Mickow, 11 Minn. 478; EUerman v. Willingham v. Maynard, 59 Ga. 330;
Wurz (Tex.), 14 S. W. 333. Delavan v. Pratt, 19 la. 439.
3 In Texas, to hold a homestead for * Tyler v. Johnson (Kan.), 38 P.
material furnished with consent of 198. Green, C, after stating the facts:
the wife of the homestead holder, it " It is claimed that the iinding of the
must be shown that she consented court that the indebtedness for which
before the purchase, according to the the note was given was for lumber
construction of article 16, section 50, and material furnished by Tyler and
IMPEOVEMENTS.
363
The vendor of personal property contracted with the vendee
that the ownership and possession of it should remain in him
till payment. The vendee affixed it to his realty. The prop-
erty consisted of a windmill and a wheel and chain. The con-
tract was sued upon, and the defense was that the chattels
had become fixtures of the , homestead, and were exempt.
They were regarded by the court as personal property, as be-
tween the plaintiff and defendant, by virtue of their contract,
though they may have become part of the realty, as to oth-
ers. The court say (in the syllabus prepared by one of them,
the organ) : " In the sale of personal property that is to be
affixed to realty, the contracting parties at the time of the
sale have the power, as between themselves at least, to fix the
used by Hamill in the erection of a
dwelling-house, on the premises in
question while he was still the owner,
and the judgment entered upon such
finding, constituted a lien upon the
property of Hamill, whether a home-
stead or not ; that for that particular
debt there was no homestead exemp-
tion. This question involves the
construction of section 9 of article 15.
of the constitution. Section 9 pro-
vides for the exemption of one hun-
dred and sixty adres of farming land,
or one acre within the limits of an
incorporated city, occupied as a resi-
dence by the family ; ' but no property
shall be exempt from sale for taxes,
or for the payment of obligations
contracted for the purchase of said
premises, or for the erection of im-
provements thei'eon.' The plain read-
ing of this clause of the constitution
is that there shall be no exemption
for the purchase-price of land or for
improvements erected thereon. The
court in this case found that the debt
for which judgment was given was
for improvements. This finding was
conclusive as the finding of the
amount due. Reed v. Umbarger, 11
Kan. 307. This court has said, in a
case where there was a judgment
upon several promissory notes given
for the purchase-price of land, that
the judgment should be an ordinary
personal judgment against the de-
fendant for the amount of the note
and costs, authorizing an ordinary
execution to be issued against the
property in general of the judgment
debtor, subject to execution ; and on
such an execution, the officer, after
exhausting the personal property of
the judgment debtor subject to exe-
cution, might levy on such real es-
tate (or on any other real estate of
the judgment debtor subject to exe-
cution), whether the real estate first
mentioned was occupied as a home-
stead or not. Greeno v. Barnard, 18
Kan. 578. In construing this same
clause of the constitution with refer-
ence to obligations contracted for
the purchase-price of the homestead
it has been said : ' There is no home-
stead exemption law as against obli-
gationg contracted for the purchase-
money. As to such obligations, the
rule is just the same as if no exemp-
tion law had ever been adopted. And
land held as a homestead is, with
respect to such obligations, governed
by just the same rules as if it were
not a homestead.' Nichols v. Over-
acker, 16 Kan. 54." Compare Steen-
bergen v. Gowdy (Ky.), 19 S. W. 186.
364 LIABILITY FOK PUECHASE-MONEY, ETC.
status of such property and say whether, when aflBxed to
the realty of the vendee, it shall remain personal property or
become a part of the realty." ' It seems certain enough that
parties, by their conventions, cannot determine whether things
shall be real or personal so as to conclude anybody but them-
selves and their privies.
The court concluded : " If said property did not constitute
an improvement upon the realty, the homestead would be ex-
empt from the payment of the debt contracted therefor, and
the sale of the homestead to satisfy such debt should be en-
joined." " (
"Where the mechanic's lien, not expressly mentioned among
the exceptions to debts cut off by exemption, was claimed to
be included under the provision excepting lawful mortgages,
such alien was found fatally defective for want of description
of the property on which it was claimed to rest. There was
a written list descriptive of the dwelling-house, the materials
used, the style of architecture, the quality of the work and
the compensation to be paid, signed by both the contesting
parties; but, distinctly because the locus of the structure had
not been set out by metes and bounds, nor by anj"^ way that
would exclusively identify it, there was held to be no com-
pliance with the law, and the claim against the homestead
failed.'
The law may regulate the rank of liens ; and it has been
thought that the legislator msij authorize the marshaling of
the mechanic's, laborer's and material-man's liens above prior
mortgages.* This may be right to a limited extent. The
lj,bor, skill or material put upon mortgaged property aug-
ments the security of the mortgage debt. But if the subse-
quent lien is So great as to cover the value of the mortgaged
1 Marshall v. Bacheldor (Kan.), 38 agent for buying a water wheel to be
P. 168, Strang, C, citing Fortman attached to the homestead property
V. Geopper, 14 O. St 558 ; 1 Benj. on as an improvement All v. Goodson,
Sales, § 425 ; Tied. Sales, g§ 83, 85. 33 S. C. 229. See Phelps v. Shay
216.,- ciUng Eaves v. Estes, 10 Kan. (Neb.), 48 N. W. 896.
314; Railroad Co. v. Morgan, 43 Kan. 3 Hammond v. Wells, 45 Mich. 11;
23; Ford v. Cobb, 20 N. Y. 344; Const Mich., art XVI, § 2.
Holmes v. Treiwper, 20 Johns, 29. * North Pres. Church v. Jevne, 33
In South Carolina, a homestead was 111. 214 ; S. C, 83 Am. Dec. 261 ; Cros-
held liable for the commissions of an key v. Northwestern Co., 48 111. 481.
impeov:ements.
365
property (thus rendering the mortgage worthless if given a
second place), the legislator cannot give it such lower rank
without divesting the vested right of the mortgagee.
The recognition of the laborer's and mechanic's lien on the
homestead, by constitutional or statutory provision, does not
include the lien for material furnished. The maxim, Eo^pressio
unius exclusio alterius, is held applicable.'
If the statute does include the material-man's claim and
renders it susceptible of becoming a lien, all requirements
must be observed. Otherwise notes given for material fur-
nished for the erection of improvements on the homestead
cannot be enforced as a lien, and the property may be sold
clear of incumbrance,^ by the owner, or by him and his wife,
if he has one, where the law requires the joinder of both in
alienation.
Though requirements as to form and record of mechanic's
and other liens must be observed by the lienholder, he is not
responsible for the neglect of officers when he has complied
with the law on his part.^
* Cumming v. Bloodworth, 87 N. C.
83, declaring the act of 1869-70 (Bat
Rev., ch. 65) to be in conflict with
Const., art 10, §§ 3, 4, which gives to
every resident of the state who owns
and occupies land, a homestead not
exceeding $1,000 in value, exempt
from debt except for taxes, purchase-
money, and liens of laborers and me-
chanics.
2 Dean v. McAdams, 23 Kas. 544.
See Murray v. Rapley, 30 Ark. 568.
3 In Minnesota, the mechanic's
claim is no lien on the homestead till
a statement of it has been duly filed.
Meyer v. Berlandi, 39 Minn. 438;
Rugg V. Hoover, 38 Minn. 404 If
filed against more land than is sub-
ject to it the lien is not vitiated.
Smith V. Headley, 33 Minn. 384 ; North
Star "Works v. Strong, 33 Minn. 1.
See Tuttle v. Howe, 14 Minn. 145.
Nor is its legality affected by the
failure of the officer to record it lb. ;
Oor^am v. Summers, 25 Minn. 81.
Tlie record must show on its face
that the claimant is entitled to the
lien. Clark y. Schatz, 24 Minn. 300 ;
Kellar v. Houhhan, 32 Minn. 486. In
Kentucky the mechanic's lien on the
homestead, for repairs or additional
improvements of the dwelling, must
be written and recorded, and signed
by the wife as well as himself- if the
householder is married. Otherwise
for constructing the homestead build-
ing originally. Roberts v. Riggs, 84
Ky. 351. If the owner is a married
woman, the mechanic, to make his
lien hold good, must aver tliat the im-
provements were for the benefit and
comfort of herself and family, and
were necessary. /6.; Pell v. Cole, 3 Met. '
(Ey.) 253 ; Harris v. Dale, 5 Bush, 61 ;
Gate wood v. Bryan, 7 Bush, 509 ; Gen.
Ky. Stat, ch. 53, art 2, § 3. In Texas
a mechanic's lien must be recorded
within six months. Without record,
it is nugatory. Cameron v. Marshall,
65 Tex. 7; Tex. Rev. Stat 3165, 3174
366 LIABILITY FOR PtTECHASE-MONBY, ETC.
"Where claim for labor done on the homestead for its im-
provement is excepted from exemption, is a lawyer's services
in defending the homestead to be classed with such labor? ' It
is reasoned, in the affirmative, that if the lawyer could not
hold the homestead liable, he would not give his services, and
that his professional aid is " in the nature of labor done and
purchase-money thereon."- It might be as plausibly argued
that a doctor would not attend the family of a householder
unless he could hold the homestead responsible for his bill, and
therefore he is to be considered as a laborer on the premises,
entitled to recover from them.'
A widow who had a life' estate of homestead married a
second husband, who erected improvements. At her death
he was allowed compensation for them.* But a purchaser at
sheriff's sale, when ejected from their homestead by the widow
and minor children of the late owner, was denied compensa-
tion for the improvements he had made.'
As against a judgment for improvements put upon land by
one to whom they equitably belong, one claiming homestead
in the improved property cannot have it ; it is not free from
the lien of the judgment." But it has been held that the bur-
den of proof is upon the purchaser of a homestead, sold under
a mechanic lien, to show that he is within the law after the
householding debtor has set up his exemption. He may show
Homesteads in California were liable tion. Pope v. Graham, 44 Tex. 198 ;
on judgments for debts secured by Potshuisky v. Krempkan, 26 Tex.
mechanics', laborers' or vendors' liens 309 ; Tuttle v. Howe, 14 Minn. 145.
upon the premises, prior to March 9, > Yes, according to Strohecker v.
1887. Walsh V. McMenomy, 74 Cal. Irvine, 76 Ga. 639. Compare Collier
356. See Richards v. Shear, 70 Cal. v. Simpson, 74 Ga. 697, and Eoss v.
187. In California, by the act of 1887, Worsham, 65 Ga. 624.
homesteads are liable on mechanics' ^ 2b.
liens for work and material In build- ' Medical bills are privileged by the
ing and repairing them. The lien is Georgia Code agamst homesteads,
good, though filed after the declara- * Bond v. Hill, 37 Tex. 626.
tion of homestead, if the material ^ Andrews v. Melton, 51 Ala. 400.
was furnished before. Lumber Co. 6 Barker v. Owen, 93 N. C. 108;
V. Gottsohalk, 81 Cal. 641. So, in Ken- Wharton v. Moore, 84 N. C. 479;
tucky, a homestead is not exempt Justice' v. Baxter, 93 N. C. 405. See
from payment for improvements Saunders v. Wilson, 19 Tex. 194, and
made before it was set apart as a M'Coy v. Grandy, 3 Ohio St. 463;
homestead. Fish v. Hunt, 81 Ky. Moseley v. Bevins (Ky.), 15 S. W.
584. Nor in the other states, where 527, ovei'ruUng GviSia v, Proctor, 14"
the lien had attached before dedica- Bush, 57t.
IMPEOVEMENTS.
367
by the record or by recital in the judgment that the lien had
been duly filed, but the recital of such fact in the writ has
been held insufficient.'
1 McMillan v. Parker (N. C), 13
S. E. 764. Avery, J.: "The record
of a judgment, execution, levy, and
sale of a tract of land as the prop-
erty of a defendant in an action for
possession, the sheriff's deed to the
plaintiff, or to one with whom the
plaintiff connects himself, by mesne
conveyances, together with evidence
or admission of the identity of the
land conveyed by the sheriff with
that declared for in the complaint,
and of the actual possession of some
portion of said land by the defend-
ant when the action was brought,
will, nothing more appearing, con-
stitute a prima facie proof of title
in the plaintiff. Mobley v. Griffin,
104 N. C. 112 ; 10 S. E. Rep. 143. But
where it is admitted, as in this case,
that the sale under the execution was
made to satisfy a debt contracted
since the homestead provision of the
constitution became operative, and
without assigning a homestead to the
defendant in execution, when he did
not hold one under a previous allot-
ment, the burden of proof is shifted,
and the onus is on the plaintiff to
show the liability of the land to be
sold to satisfy the debt. Mobley v.
Griffin, supra; Long v. Walker, 105
N. C. 90; 10 a E. Rep. 858; Mc-
Craoken v. Adler, 98 N. C. 400 ; 4 S. E.
Rep. 138. The plaintiffs in this case
have taken up this burden, and at-
tempted to bring themselves within
the exception (contained in article
10, section 4, of the constitution, and
provided for in chapter 41 of the
Code), by showing that the sale was
made to satisfy a subsisting mechan-
ic's lien upon the land. They of-
fered the record of the action before
the justice of the peace, from which
it appeared that the plaintiffs com-
plained for ' an account for labor
done in November, December and
January in the years 1887 and 1888
to the amount of $128.88.' The judg-
ment was entered on the judgment
docket in the following form, after
entitling the case: 'Judgment by
confession in J. P. court of Har-
nett coimty on the 13th of July,
1888, in favor of plaintiff and against
defendant for $128.82, and the fur-
ther sum of costs in this action.
Docketed Aug. 23, 1868, 10 A. M.
J. P. costs, 80 cents ; C. S. C. costs,
$1.05.' On the 6th of June, 1888, the
plaintiffs had filed a lien, the form of
which we need not discuss, with an
account for furnishing and putting
tin on a roof, amounting to the sum
of $187.82. In Boyle v. Robbins, 71
N. C. 133, the act of 1868-69, ch. 117,
§ 9 (which has been brought forward
and re-enacted in the Code, section
1791), was construed to require, at
least by implication, that the justice
of the peace should set forth in the
judgment the date of the lien, and
that it should also embody a gen-
eral description of the property which
the plaintiff seeks to subject to pri-
mary liabilitj"- under it. If only per-
sonal property be bound by the lien,
the justice must insert in his execu-
tion a requirement that the specific
property subject to the lien shall be
first sold before seizing other goods
or chattels, while, if the property de-
scribed in the notice be land, the jus-
tice's judgment must be docketed in
the superior court, and the clerk
must incorporate in the execution a
similar direction as to the order of
selling. So that the judgment cannot
be enforced in strict compliance with
3(58
LIABILITY FOE PURCHASE-MONEY, ETC.
Where there is liability for improvements, a judgment on
an obligation for them is a lien which will attach to the hoihe-
stead after its sale; and it is even maintained that' the pur-
chaser is presumed to know that a general judgment lien is
upon a debt for improving, the homestead, though the judg-
ment does not disclose the faot.^
Because a mechanic or material-man has no lien on the
homestead when he has neglected to record his claim, or has
neglected to observe some other statutory requisite, he does
not lose his debt, necessarily. He still has his claim against
the householder, and may prosecute it to judgment, and thus
create, a lien upon all the defendant's realty, except the home-
stead.'' The vendor may lose his lien or fail to create one, yet
the law unless the officer whose duty
it IS to issue execution has gotten
such information from the record in
his court as will satisfy him that
some property, described with rea-
sonable certainty, is subject to the
lien, and consequently to a prior lia-
bility for the debt The most con-
venient riiethod of recording the
date of the lien and the descrip-
tion of the property bound by it is to
embody it in the judgment, which
will constitute a part of the record
in either court, no matter which offi-
cer may find it necessary to insert
the date and description in the execu-
tion. The case at bar illustrates the
importance of adhering to this rule
for another reason. It is essential
that the judgment should be identi-
fied as that bi'ought within the period
prescribed in the statute (Code, § I'i 90)
to enforce the lien. The defendants
in the answers deny that this judg-
ment was rendered upon Ihe account,
iiled as a lien, and, while some cir-
cumstances tend to show that the
same claim was or may have been
the subject both of the lien and the
3,ction, we have no evidence suffi-
cient to establish absolutely the iden-
tity of the two accounts. The bur-
den being on the plaintiffs to bring
the judgment within the exception,
under section 4, article 10, of the con-
stitution, before he can establish the
validity of the sale of the defend-
ant's homestead, we think that in
failing to connect the judgment and
execution with the lien filed they
have failed to adduce testimony that
is essential to show their title. The
words inserted in the execution after
the words, ' You are commanded to
satisfy said judgment,' and before
the words, ' Out of the personal prop-
erty of the defendant within your
county, to wit, by first selling the
right, title and interest which the
said owners had in the property at
the time of filing their lien, and
next " — do not answer the purpose
of connecting t'ne lien with the judg-
ment. If it were true that the plaint-
iffs recovered two judgments against
the defendants for sums nearly the
same as that claimed in the lien,
neither being for an identical amount,
he might issue on either, selecting
the one not secured by some other
means than the lien."
iHurd V. Hixon, 37 Kas. 722;
Greeuo v. Barnard, 18 Kas. 518.
2 Miller v. Brown, 11 Lea, 155.
IMPEOTEMENTS. 3C9
have his rightful claim against the homestead-holder.^ There
is nothing peculiar in the law stated, as any lien-bearing debt
may survive the loss of-the lien-right, with regard to any other
property as well as homestead.
The essentials for the creation of a lien, for improvements
put upon the homestead at the instigation of the owner, do
not apply when the improvements^ are involuntary ; as when
they are made by a city. The assessment creates the lien ; ^
and the governing principle is different.'
1 Bentley t. Jordan, 3 Lea, 853. *Ante, p, 19,
'Bordages v. Higgins (Tex.)k 19
a'W. 446.
24
CHAPTEE XII.
ReStR'AlNT OF AliiEN'lTfdN.
§ 1. Restraint and Exemption Rela-
tive.
2. Sale by Husband and Wife.
3. Trust Deed by Husband and
Wife.
4 Mortgage by Husband and Wife.
5. No Alienation by Husband
Alone.
6. Sales Subsequently Validated.
§ 7. Wife's RigW Relative to Sales.
8. Esteppei'by Sole Deed.
9. Conveyance by Husband to
Wife.
10. 'inciiinbifarice rnhiibited.
■"ll. liitei'ests of Non-owning Bene-
ficiaries.
12. Conveyance to Pay I*rivileged
Debts.
§ 1. Restraint and Exemption Relative.
In several states the dedication of a homestead is a volun-
tary act on the part of the householder by which he consents
to accept certain disabilities. He obtains the benefit of ex-
emption by the acceptance of the conditions upon which it is
offered. He S,grees that he shall no longer have sole control
of his own dedicated property, so far as selling or incumber-
ing it is concerned, as long as he enjoys the protection from
forced sale, which he has iij return for yielding his own right
to sell or mortgage it. He can regain his individual right to
alienate only by abandoning his privileges.
Though not a contract, the mutual arrangement between
himself and the state, with the proffer of the law on one side
and his acceptance by dedication on the other, is somewhat in
the nature of corresponding obligations.
The state does not arbitrarily forbid his selling his own at
will, or his using it to promote his credit, by pledging or
mortgaging it for the purpose of raising money, whenever he
conceives it to his interest so to do. It does not inhibit the
selling of his home or subjecting it to a lien by any positive
enactment to that effect. It merely provides that he shall
have exemption from forced sale, with certain exceptions, if
he will consent to accept that benefit on the terms offered.
The state does not make any invidious distinction between
him and others when it thus makes the restraint upon the
EESTRAINT AND EXEMPTION EELATIVE. 371
alienation of his dedicated ho'mestead depend upon 'his volun-
tary acceptance bf the 'terms. The law is general, -Weing
applicable to all real-estate owners having families living with
them in the dedicated homes. Were it to make' the arbitrary
distinotioil between property holders that one should not have
the power to^ell^his own, while another' should have it, with
nothing conditional in either case, it would be an unconstitu-
tional discrimination.
In states where no declaration or any form of dedication is
required, the acceptance of the state's- terms is not so appar-
ent; but even in these, restraint of alienation, being confined
tcf homesteads, may be Considered as accepted by the' owner
when he becomes a householder and 'holds his home as exefmpt
under the statute.
There ar'e yet bther states which give exemption protection
yet' ijmpose n6 restraint upon the owner. In such, if inutual-
itj' of obligation between them and him is wanting, there is
nothing of which the owner or debtor can complain. In no
case is thestate liiider any obligatioii which prevents it from
repealing the exemption law at Will.
There is no contrS,ct between the state and the homestead
holder : the mutuality above mentioned is rather incidental
than contractual.
It would seem that no One should be prevented from .pay-
ing his debtfe by the sale or incumbrance of any property he
has; that the debtor and his wife together ought not to be
hindered in joining together to relieve themselves of the ob-
ligation to pay, though their home be lost to them in conse-
quence. And it has been held that a statute forbidding' this is
unconstitutional.'
The legislator, having left liens upon the homestead, created
prior to its dedication,'unaffected; and having granted no ex-
emption against antecedent debts, justifies the inviolability of
the homestead from attacks to make it pay later debts by the
consideration .that the' oreditdrs had ilotice that the property
was not liable. ' Under this view, the appropriation of it by
the owner to pay such debts by sale and the surrender of the
proceeds for the purpose, or by subjecting it to a lien tosecure
iDunker v. Chedic, 4 Nev. 823; Const Nev., art 4, § 30.
372 EE8TEAINT OF ALIENATION.-
the debt, may be constitutionally forbidden, so long as the
property remains unabandoned as a homestead. The right of
the beneficiaries to abandon the dedicated homestead and give
up their privileges remains intact ; so they may resume the
right and power of alienation at wUl. The husband cannot
resume this right and power, however, by disclaimer of the
exemption right.*
One who has not complied with the terms of the homestead
law requiring selection and dedication holds his home as he
does his other property, and is not restrained in the alienation
of it.''
The following extract from a decision will further present
the doctrine of free disposal in the absence of dedication :
" It is argued by counsel for plaintiffs that the declaration
is required only to protect the land claimed as a homestead
ivova. forced sale. The act cannot be so construed; nor has it
ever been so construed. It is manifest from the perusal of
the. act that it was to disable either spouse from making a
voluntary alienation of the land, but only when a sufficient
declaration was made. If there was no sufficient declaration,
the power of the husband to alienate the land of his own will
remained unimpaired." '
When no declaration is required, disability to sell has been
imposed with the grant of exemption.*
Where exemption and restraint of voluntary alienation are
not correlative, the statutes creating the former are not con-
strued to imply the latter. In some of the states, ih.Q jus dis-
ponendi is not affected by homestead laws, at the present
time ; in others, it was formerly left unrestrained, though now
restricted to the joint action of husband and wife when the
owner is married. The principle, however, is established, that
statutory exemption cf property from forced sale does not
necessarily imply that voluntary alienation by the owner is
inhibited.'
1 Robinson v. Davenport, 40 Tex. Anderson, 56 Ga. 53;' Homestead
334; Williams v. Swetland, 10 la. 56 ; Ass'n v. Enslow, 7 S. C. 19.
Lambert v. Kinnery, 74 N. C. 348. » Boreham v.- Byrne, 83 CaL 23, S8.
2 Derr v. "Wilson, 84 Ky. 14 ; Bore- < Kennedy v. Stacey, 1 Bax. 230.
ham V. Byrne, 83 Cal. 33, $8; People Act of May 5, 1870.
V. Plumsted, 2 Mich. 465 (under stat- ' Brame v. Craig, 13 Bush, 404 ;
ate now superseded); Simmons v. Kennedy y. Stacey, 37 Tenn. 323;
SALE BY HOSBAND AND WIFE. 3T3
Under general statutory terras of exemption from seizure
and sale, without any express restraint upon voluntary alien-
ation, a mortgage given by the/owner upon his exempt home
was treated as nugatory, though he was free to sell the prop-
erty— free to do so after having given the mortgage, and
competent to grant an unincumbered title. The reason given
was that the exemption right is not susceptible of being
waived by a contract of mortgage.' The restraint upon alien-
ating, which is a usual feature of homestead laws, is not found
in all ; - and it is true generally that where there is no re-
straint put upon alienation, the owner may mortgage, sell or
donate his homestead property without doing anything to the
prejudice of his creditors, for they are said to have no con-
cern with it.'
§ 2. Sale by Husband and Wife.
Where " a conveyance or incumbrance by the owner is of
no validity unless the husband and wife, if the owner is mar-
ried, concur in and sign the same joint instrument,"* the
homestead right can be directly conveyed only by their joint
action in a deed, or by abandonment;^ but if the owner
alone contey the property, and a subsequent purchaser buy it
of tlie first vendee, he is said to be not affected with notice of
the invalidity of the first conveyance, and to acquire a good
title.*
Homestead Ass'n v. Enslow, 7 S. C. 61 ; Brame v. Craig, 13 Bush, 404.
19 ; Re Cross, 3 Dill. 320 ; Dawson v. The owner may dispose of his $1,000
Hayden, 67 111. 53 ; Smith v. Marc, 26 homestead at will. His title is not a
HI. 150; Ely v. Eastwood, 36 111. 108; mei-e life estate with the fee exposed
Eector v. Eotton, 3 Neb. 171 ; Ed- to creditors. Derr v. Wilson, 84 Ky.
mondson v. Blessing, 43 Tex. 506; 14. But his creditors may sell it
Jordon v. Peck, 88 Tex. 429 ; Hart- after his death, subject to occupancy
man v. Thomas, 37 Tex. 90 ; Morrill by his widow and children, if he has
V. Hopkins, 36 Tex. 687 ; Stewart v. died without making any disposition
Mackey, 16 Tex. 57 ; Lee v. Kings- of it. lb.
bury, 13 Tex. 71. » Grimes v. Portman, 99 Mo. 229;
1 Van Wicile v. Landry, 39 La. An. State v. Mason, 88 Mo. 238 ; Holland
330 ; Hardin v. Wolf, 39 La. An. 333 ; v. Kreider, 86 Mo. 59 ; Beckmann v.
Le Blanc v. St. Germain, 25 La. An. Meyer, 75 Mo. 333.
289. * McC. la. Code, § 3165 (1990).
2 In Kentucky the husband's power 6 Lunt v. Neeley, 67 la. 97. Com-
of alienation is not affected, the stat- pare Price v. Osborne, 34 Wis. 34
ute merely exempting from coferoive ^ lb.
process. Prebble v. Hall, 13 Bush,
374 EB9TKAINT OF ALIENATION.
. The husband alone cannot sell a tract of land,, within the
homestead acrfiagf,,.which.he owns and. occupies with his fam-
ily; for the exemption, right attaches to all of it,, when it^is
not platted), and does not- exceed- the prescribed number of
aores.^
Both husband and wife joining, in a ,sale- with .conveyance
and acknowledgment, on her part, it is not generally necessary
that the rennnciation of the . homestead right should be ex-
pressed in .the deedi. It has. been, .decided that in a deed con-
veying, the homektead, made by husband and., wife, jointly,
there need be no express renunciation of; their homestead
right, nor any reference, to it.? If the property is free from
liability when sold, it will go so into the bands of theipur-
chaser.' But it will become liable to the purchaser's debts,
like any other property of his, under general judgment against
him.
The purchaser off a homestead steps into the shoes of the
grantor, so, far, as s concerns its liability at the tirae^i It cannot
be attacked- in his hands for debts of the grant6r which could
not have been enforced against it before the sale. It has ceased
to be a, homestead by the transfer, if the grantee has not made
it .his. own exempt home ; but it has not been rendered de-
fenseless against, the obligations of the grantor, unless for
taxes,, purchase-money, improvements, or whatever else the
governing statute may have excepted from the general ex-
emption. And the purchaser may plead and prove the grant-
or's exemption right.*
If any reservation is meant, it should be expressed.'
When a i statute or a constitution requires the joint consent
of husband and wife to the alienation of the homestead, the
consent need not be written unless that method is prescribed."
The wife's assent to the grant of an easement,. on the home-
stead, to a railroad company, conferring right of way, may be
iWoolout V. Lerdell, 78 la, 668, < El well v. Hitchcock, 4t Kas. 130;
citing Goodrich v. Brown, 63 la 247, Gerrhan Ins. Co. v. Nichols, 41 Kas.
and Barnett V. Mendenhall, 43 la. 296. 133 ; Hixon v. George, 18 Kas. 253.
^Weigeman v. Marsot, 13 Mo. Ap. » Martin v. Martin, 30 Kas": 708.
676. 6 Dudley v. Shaw (Kas.), 24 Pac.
'Holland v. Kreider, 86 Mo. 59; 1114
Kendall v. Powers, 96 Mo. 142.
TRUST-DEED BT. -HUSBAND AND WIFE. 375
proved by parol testimony or any kind of evidence that would
be admissible to suppprt.any other material fact. It need not
be in writing, — much less, need, it be by signature to a deed.'
The wife, does not becgme. surety for her husband when
bpth sign a conveyance of their homestead of which he is the
owner. She docs not jeopardize her separate property by thue
signing the deed of such homestead.''
W)iere dedication is effected by a court proceeding — not
by a recorded declaration or by occupancy merely — the home-
stead, ,cann,ot be alienated by both husband and wife unless the
deed, be apprqved by the court.'
§ 3. Trust^depd by, Husband. and WJfe.
The inability of the husband to alienate, his homest.ea,d with-
out his wife's consent and her, participj},tion in the act of con-
veyance'extends to conditional sa^es,, suph as those by mort-
gage or de,ed of .trust. Otheryrise he might easily deprive her
of home protection, by hypothecating his property, allowing
it to be sol^ an,^ failing tq redeem, it,
The inhibition, operating as a restraint (since thus one ben-
eficiary oap^pt, deprive the other of the exemption, right,
when they are man and,, wife), extends also to the alienation
of equitable inter^ests. The husband's conveyance of an equi-
table interest in a homestead to secure the payment of a pre-
existing debt crea.t^s no lie^, when, the wife does not sign.''
If the creditor has no conventional lien, and if no lien is cre-
ated by law in favor of pre-existing debts. against a homestpad,
the husband, alone cannot give him one. That is all the cited
cases import. The wife cannot defeat or even impede a lien-
creditor ; she can defeat her husband's purpose to convey an
equitable interest as security for an existing obligation. Or-
dinary pre-existing debts must be reduced to judgijient before
1 Id.; Pilcher v. Railroad Co., 38 fer v. Huff, 49 Ga. 589 ; Burnside v.
Kas. 516. Terry, 45 Ga. 630 ; Simpson v. Rob-
2 Witherington v. Mason, 86 Ala. ert, 35 Ga, 180.
345. * Moore v. Reaves,. 15 Kas. 150;-
SLinoh v. Mclntyre, 78 Ga. 209. MoKee v. WiJcox, 11 Mich. 368;
Formerly alienation was inhibited in McCabe v. Mazzuchelli, 13 Wis. 478.
Georgia. Now it requires the sane- Joint deed : Ott v. Sprague, 37 Kas.
tion of the Superior Court See Rob- 620. Compare Reihl v. Bingenhei-
.erts V. Trammel], 55 Ga. 383 ; Shaf- mer, 38 Wis. 84.
37*1 RESTRAINT OF ALIENATION.
they can bear a lien on the homestead. Then the lien is gen-
eral, as though there were no homestead.
If both husband and wife have joined in giving a deed of
trust, and it be foreclosed after his death, she may be denied
homestead claim to the remaining proceeds after the satisfac-
tion of the debt.i And it follows that the purchaser at the
foreclosure of a deed of trust takes the land free from any
claim of homestead made by the wife of the grantor after the
sale.^ The deed of trust, covering more realty than the home-
stead but including it, being ' regularly given by the wife as
well as the husband, becomes a complete alienation of the
whole upon foreclosure.
A wife, who had life-estate in property which included hers
and her husband's homestead, joined him in conveying the
property by deed of trust, under which the whole was sold.
It was not necessary that she should acknowledge the deed so
as to make the non-exempt portion of the property pass by
the act, since the governing statute put her in the position of
&feme sole with respect to such acknowledgment ; but as there
could be no release or waiver of her homestead right without
her acknowledgment, the purchaser was required to pay her
one thousand dollars — the maximum of the exemption —
upon the property being found indivisible so that her home-
stead could not be set apart in kind.'
The law favors the payment of debts ; and a deed of trust
for the purpose, given by both husband and wife, ought to be
everywhere enforceable.''
A deed of trust on the homestead, duly executed by husband
and wife, may be renewed by the husband alone so as to pre-
vent prescription.' In renewing the note about to become
outlawed, he creates no new obligation ; he binds his wife to
nothing to which she was not bound before ; he burdens the
1 Woerther v. Miller, 13 Mo. App. * The husband and wife may exe-
567. cute a deed of trust to sedire a debt,
^ Weigman v. Marsot, 13 Mo. App. in Vii-ginia, -which will hold good
576. against the homestead. And it is
3 Knight V. Paxton, 124 U. S. 552 ; queried whether he alone may not
1 Starr & Curtis' Annot Stat. IlL, do so. White v. Owen, 30 Gratt. 43.
ch. 53 ; Bradshaw v. Atkins, 110 111. 5 Smith v. Scherck, 60 Miss. 491 ;
833, 339 ; Edwards v. Shoeneman, 104 Jenness v. Cutler, 12 Kas. 500.
111. 278; Hogan v. Hogan, 89 111. 427.
MOETGAGE BY HUSBAND AND WIFE. 377
homestead with no weight that was not previously incumbent
upon it. This reasoning is not entirely satisfactory ; the wife's
joining in the renewal of the note would seem more regular.
As a party, she ought to be left to her own action. So it
has been held that, under statutes forbidding a husband to
mortgage the homestead without the consent of his wife, he
cannot enlarge the terms of a mortgage previously given, nor
renew it, nor extend the statute of limitations respecting it.^
§ 4. Mortgage Iby Husband and Wife.
As mortgage is a species of alienation, or the creation of a
lien where not a kind of alienation, the general rule is that
both husband and wife must join in creating it upon the
homestead, whether the title be in the one or the other, or in
both.2
Is the joinder of both necessary to the giving of a mortgage
to secure a debt antecedent to the homestead?
As to antecedent debts, there is no homestead. They may
be prosecuted to judgment creating a general lien, as though
there were no homestead law ; and the lien will bear upon the
homestead just as upon any other realty of the judgment
debtor. And this has led to the conclusion of some courts
that there need be no joinder by the wife, when the husband
mortgages his ho/mestead to secure such a debt.'
The received doctrine, however, is that her joinder is neces-
sary. And it is supported by both reason and authority.
There is a difference between the general liability of the
homestead for such debts, and the particular liability which is
created by mortgage; between an ordinary debt which may
be collected of the homestead after judgment, and a property
1 Dunn V. Buckley, 56 Wis. 190, 74 Mo. 49, rendered under Wagner's
193; Campbell v. Babcock, 37 Wis. Stat, p. 697; and see Schneider v.
513 ; Spencer v. Fredendall, 15 Wis. Hoffman, 9 Mo. App. 380 ; Black v.
666; Barber v. Babel, 36 Cal. 31; Epperson, 40 Tex. 187; Tong v.
Thompson v. Pickel, 30 la. 490. Eifort, 80 Ky. 153 ; Duncan v. Moore,
sjelinek v. Stepan, 41 Minn. 412; 67 Miss. 136; Ontario Bank v. Gerry
Furguson v. Kumber, 35 Minn. 183 ; (Cal.), 37 P. 531 ; Fleming y. Graham
Smith V. Lackor, 33 Minn. 454; Bar- (N. C), 14 S. E. 930.
ton V. Drake, 31 Minn. 3s9 ; Kaes v. 3 Kennedy v. Stacey, 57 Tenn. 330 ;
Gross, 93 Mo. 648; Eiecke v. Westen- Dunker v. Chedic, 4 Nev. 833 ; Higley
hofif, 85 Mo. 643. See Lewis v. Curry, v. Millard, 45 la 586.
3T8 EEST«AINT OF AtlENATION.
debt which, m?Ly be, proceeded upon m rem. The husband
alone Cc|,n,no]fc,CQu,vei:t, the. less liability to the greater.; the ordi-
nary personal obligation, to property indebtedness with respect
to the homesteiad,. without making the wjfe'.s home less certain
of continuance than it was before.
As, he alone .cannot sell the , hojnestead outright . to an ante-
cedent creditor in consideration of .the cancellation of the debt
(which, by, the, civil, law, would be daUon.&n^pcdement), with-
out his wife's consent, it would seem, by parity of reason, that
he alone cannot put a lien upon it under which it may be sold.
Though there is no homestead as to antecedent creditors,
there is a requirement in several states that the homestead
shall. be, the las|; property exhausted under a general judgment
bearing upon it with other realty; and also under a mortgage
covering that and other property.? Thus, a distinction is made
between that and other property when all is liable. Wher-
ever this distinction exists, there is an additional reason why
the wife should have her chance of home continuance saved
to her from any ill-advised conversion of the ordinary ante-
cedent debt to that of one secured by a specific lien upon the
homestead.
The authorities preponderate in favor of these reasons,
though not all based, upon them. Good reasons, whether
those above assigned or others founded upon statutes and the
policy of the state, will be seen in the opinions. It may be
concluded that the question above put should be answered in
the affirmative.^ In a state which has since extended its ex-
ceptions to exemption, it was held that a mortgage made
alone by a husband or wife is void,' except for purchase-
money.* After a joint sale by both, with abandonment, the
foreclosure of a mortgage given hj the husband alone would
not affect the wife.*
After a husband and wife had mutually conveyed a part of
their homestead property, the purchaser found that it had
' Jackson v. Shelton, 89 Tenn. 82. Probasco, 14 Kas. 175. See Jenness
2 Moore v. Reaves, 15 Kas. 150 ; Ott v. Cutler, 13 Kas. 500.
V. Sprague, 37 Ka.s. 630 ; McCabe v. * Pratt v. Topeka Bank, 13 Kas.
Mazzuohelll, 13 Wis. 478; McKee v. 570; Andrews v. Alcorn, 13 Kas.
Wilcox, 11 Mich. 358. 351 ; Nichols v. Overacker, 16 Kas. 54.
3 Morris v. Ward, 5 Kas. 339 ; Doll- ^ Morris v. Ward, 5 Kas.. 839.
man v. Harris, 5 Kas. 597 ; Ayers v.
MOKTGAGE BY HUSBAND AND WIFE. 379
been validly incumbered,. returned the deed, leased the prop-
erty for six years, and received from the grantors a promise of
an uinincunj-bered title, to be given at the end of that time. The
agreement was binding on the husband and wife, who were
legally obligated to convey the part of their homestead de-
scribed in the deed at the stipulated time. The return of the
instrument,, meanwhile, did, not impair the sale. The pur-
chaser's rights under the-contract; dated from, the delivery of
the. deed to ;him.' j
Restraint upon alienation by which the husband cannot
mortgage his qwn land occupied by his family as a homestead
without his wife's consent and signature is not for the benefit
of creditors. Husband and wife together may convey their
homestead, within the monetary limit, without receiving any
consideration whatever, and yet the creditors are not injured,
since they could not have any claim against that species of
property, according to the statutes and judicial expositions.^
The moral fraud of such a transaction is relegated to the
court of conscience.
A husband and wife joined in mortgaging two tracts of
land. Subsequently the husband sold one of them with full
warranty, and upon that the mortgage was afterwards fore-
closed. The purchaser from the husband could make the
other tract bear its portion of the mortgage burden, notwith-
standing the assertion of homestead right in it on the part of
the widow and minor heirs of the husband now deceased, to
whom it had been set apart."
No lien attaches to real estate by virtue of a judgment
against its owner, when such property is not subject to levy
and sale in satisfaction of the decree.* Ordinarily, the fore-
closure of a valid homestead mortgage is like any other.'
1 Bunz V. Cornelius, 19 Neb. 107. mortgage of a homestead owned by
(Souverbye v. Arden, 1 Johns. Ch. a married person that both spouses
255 ; Connelly v. Doe, 8 Blackf. 330 ; join in the act, by Mo. Kev. Stat
3 Wash. Real Erop. 385 ; Tiedeman (1879), § 3689. Riecke v. Westenhoff,
on Real Prop., § 813, on the efEect 85 Mo. 643.
of returning the deed.) ^ Grimes v. Portman, 99 Mo. 229 ;
2 Tong V. Eifort, 80 Ky. 153 ; Dowd Freeman on Judgments, §g 839, 840,
V. Hurley, 78 Ky. 260. 355 ; Freeman on Executions, § 349 ;
5 Calhoun v. Snyder, 6 Binney, Holland v. Kreider, 86 Mo. 59.
135 ; Hall v. Morgan, 79 Mo. 47. It 5 in California, a claim secured by
was made necessary to the valid mortgage must be presented for al-
380
KESTEAINT OF- ALIENATION.
The assent of husband and wife occupying their homestead,
to its incumbrance, must be contemporaiieous. Both must
sign the instrument. A deed of trust given by the husband
alone, though he is the owner of the property, cannot be ren-
dered valid by a later conveyance from the wife to the cred-
itor.'
To secure a joint and several promissory note of a husband
and wife, they mortgaged their homestead. Upon his death,
: the homestead was set apart to her out of his estate. Unless
■ the mortgagee's claim was presented for allowance against the
estate, the mortgage could not be foreclosed.^. A complaint
against the wife alone, on foreclbsure, praying for a personal
judgment against her but not averring the presentation of
the" claim, is insufficient to constitute a cause of action.^
In every foreclosure of a mortgage of the homestead, hus-
band and wife being interested, both must be made parties
defendant.^ Even though the wife be disinterested directly, as
when the mortgage was given by the husband before marriage
and thus has priority to any right of hers, she should be made
lowance to the administrator of the
deceased mortgagor's estate, before
it can be foreclosed on the home-
stead. Even if foreclosure has been
commenced during the mortgagor's
life, and the plaintiff has waived re-
course against any other property,
and the plea of lis pendens has been
filed, the plaintiff cannot proceed
further in his action without present-
ing his claim to the representative of
the decedent mortgagor. Bollinger
V. Manning, 79 Cal. 7 ; Gal. Civ. Code
of Proc, §§ 1475, 1503; Camp v.
, Grider, 63 Cal. 30 ; Wise v. Williams,
;" 73 Cal. 547. Where the mortgaged
homestead is the whole estate (there
being no other assets) the rule is the
same. Bollinger v. Manning, supra.
But if the mortgage is on a home-
stead which is the separate property
of the wife, and the mortgagee
* waives all claims against the hus-
band's estate, he need not present his
claim to the administrator. Bull v.
Coe, 77 CaL 54; Shadt v. Heppe, 45
Cal. 437. Nor need he present his
claim when the mortgage was given
by both husband and wife, if the
husband has been adjudged insolv-
ent. Montgomery v. Robinson, 76
Cal. 339. For the rule in Illinois,
when mortgagees waive homestead
right, and the mortgage covere other
lands than the homestead, see First
N. Bank v. Briggs, S3 111. App. 338,
citing Rogers v. Meyers, 68 III. 93;
Brown v. Cozard, 93 111. 178 ; Plain v.
Roth, 107 111. 588.
1 Miss. Code, 1880, g 1358 ; Duncan
V. Moore, 67 Miss. 136 ; Cummings v.
Busby, 63 Miss. 195 ; Bank of La, v.
Lyon, 53 Miss. 181 ; Johnson v. Brook,
31 Miss. 1. Compare Smithv. Scherck,
60 Miss. 491.
2 Mechanics' Ass'n v. King, 83 Cal.
440 ; Camp v. Grider, 63 CaL 30.
3 Hearn v. Kennedy, 85 Cal. 55. Dis-
sent by Beatty, C. J.
<Burnap.v. Cook, 16 la. 149; Good-
rich V. Brown, 63 la 347.
MOETGAGE BY HUSBAND AND WIFE. 381
a party to the foreclosure if the sale is meant to bind her
thereafter relative to right of dower.' Though she be dead,
and succeeded by a second wife ; and though she had not
signed a mortgage which was therefore invalid, it is held that
the second wife must be made a party to the foreclosure.^
But a mortgage put upon premises by the husband, before
the homestead had become such by actual occupancy, may be ■
foreclosed without making her a party.'
A husband cannot mortgage his homestead to his wife, if
the law prohibits all mortgages of homesteads. Both he and
she cannot together incumber such property with a mort-
gage, when all mortgages are forbidden. A constitutional
inhibition is paraphrased as follows : " E"© mortgage, trust-
deed, or other lien created by the husband, whether alone or
together with his wife, shall ever be valid." This is the Ian
guage of the original, with the addition of the phrase begin-
ning with the word " whether." *
The court argued that the policy of the provision favors
the construction given, since the wife, indisposed to sell, might
be induced to incumber the homestead by plausible assur-
ances, on the part of the husband, of his ability to relieve it ;
and then her home might ultimately be lost to her. But it is
said that the inhibition does not apply to unmarried bene-
ficiaries — on the authority of the cases last cited.
If the protection of the wife is the only purpose of the leg-
islator, it might be inferred that the mortgage of a home-
stead to her by her husband was not meant to be forbidden.
The court thought this point new in the state, but could not
believe that any substantial distinction was made in the con-
stitution between the limitation of the husband's power and
that of the husband and wife, since the effect upon the wife's
rights might be as great by the exercise of the joint power as
by that of the husband's single power. The letter and spirit
of the constitution would be violated in either case.*
1 Chase v. Abbott, 20 la. 154 v. Van Button, 75 Tex. 636 ; Watts v.
2 Larson v. Reynolds, 13 la. 579. Miller, 76 Tex. 14 ; Inge v. Cain, 65
' Kemerer v. Bournes, 53 la. 173. Tex. 79.
•» Const Texas, art 16, § 50 ; Mad- * Madden v. Madden, supra; Groes-
den V. Madden (Tex.), 15 S. W. 480 ; beck v. Groesbeck, 78 Tex. 664 ; 14 S. W.
Lacey v. Rollins, 74 Tex. 566 ; Smith 793 ; Campbell v. Elliott, 52 Tex. 159.
382
EESTEAINT OF ALIENATION.
The question would not be aifected by the fact of the home-
stead being carved out of the husband's separate property.'
A mortgage was given by a husband and wife on their
homestead, and on other real estate, both belonging to her.
A second mortgage was given by her to another person, on
the. same real estate, less the homestead. The second mort-
gagee asked that the first be required to exhaust the home-
stead before resorting to the other realty, so that he, the
second mortgagee, who could not look to the homestead,
might have something upon which to satisfy his mortgage.
The court said that if neither of the two pieces of property
covered by the first mortgage was a homestead, the prayer
for such relief would be granted, " as the first mortgagee has
two funds for the satisfaction of his mortgage," while the
second mortgagee has but one. But the relief was denied,
owing to the homestead character of . one of ■ the properties
subject to the first mortgage lien.^
Suit was brought on a promissory note to obtain judgment
with recognition of lien upon the homestead of the defend-
ants, who were husband and wife. He had given his note to
a bank for borrowed money, and had pledged a contract to
purchase real estate, as security. Subsequently he had paid
for the land, and caused it to be deeded to his wife, who made
declaration of homestead upon it. The bank failed to record
the contract, but sued upon the note. The court said that if
the contract were a mortgage it would not be enforceable
against the homestead which had been declared by the wife.*
If a husband and wife join in executing a mortgage on their
homestead to secure his debt, and there are no witnesses, as
required by statute, to the signature of the wife who' signed
after' the mortgage had been recorded, she will not lose her
life estate in the homestead.*
1 Madden v. Madden, supra. it was delivered and recorded. Under
2 Mitchelson v. Smith, 28 Neb. 583. the act of 1851, no release or waiver
3 Ontario Bank v. GeiTy (Cal.), 27 of the homestead exemption was
P. 531 ; Cal. Civ. Code, § 1241 (4). valid ' unless made by deed ^xecuted
* Wilson V. Mills, 22 Atlan. (N. H.) by the husband and wife, with all
455, Clark, J., who said : " The de- the formalities required by law for
fendant did not release her home- the conveyance of real estate.' The
stead by signing her husband's mort- defendant has.had a life estate in the
gage, without witnesses or seal after premises set off to her as a home-
NO ALIENATION BY HUSBAND ALONE. 383
After a husband and wife had joined in mortgaging their
home property, they declared homestead upon it. The hus-
band died and the wife administered upon' his estate. The
mortgagee, in his complaint, expressly waived recourse against
any other property than the land mortgaged. The court held
that, as homestead had been declared on that property, the
mortgagee must preisent his claim against the husband's es-
tate, notwithstanding the waiver.' i
Amarried man cannot give a valid ttidftgage of his home-
stead without his wife's signature, when the law requires her
signature, though shemay b6 living apart 'from him ;> her right
of homestead may have expired ; or he may have been neces-
sitated to give it to obtain food.^
§'5. No Alienation by Hnsbaiid Alone.
Under the prevailing homestead system, where homestead
dedication or occupation ■ is one of the conditions to the en-
joyment of exemption, restraint mpon alienation is imposed
for the purpose of family protection and conservation. This
restraint applies to permanent fixtures' — to those that be-
come realty as part of the homestead.
Most of the statutes offering exemption of family residences
forbid the sale or incumbrance of the protected home by a
husband without the consent of his wife. The inhibition is ex-
pressed in diifferent terms in different statutes ; in some more
stringently than in others. Not only the wife's consent, but
her signature, is required by several statutes. And she must
be examined apart by the officer taking the acknowledgment,
and express to him that her signature was made knowingly
and voluntarily; and the officer must certify to the examina-
tion, under the requirement of some states.
Under the general rule that the husband alone cannot sell
stead, as against the plaintiff's mort- Buzzell, 60 N. H. 189." Gen. Laws
gage. Dickinson v. McLane, 57 N. H. of N. H., ch. 135, § 3.
31 ; Lake v. Page, 63 N. H. 318. The i Wise v. Williams, 88 Cal. 30, cit-
mortgage note was not signed by ing Mechanics, etc, v. King, 83 Cal.
the defendant. It was neither her 440 ; Bollinger v. Manning, 79 Cal. 7 :
debt, nor a contract respecting her Camp v. Grider, 62 Cal. 20.
property, and, beiiig a married 2 Herron v. Knapp, 72 Wis. 553;
woman, she could not bind herself Ferguson v. Mason, 60 Wis. 377.
by a promise to pay it, either by way ^ House v. Phelan (Tex.), 19 S. W.
of obntract or estoppel. Bank v. 140.
384 EESTBAINT OF ALIENATION.
or incumber his dedicated homestead, all alienation of it in
any form by his act, when the property itself is not liable in
rem, is absolutely void, not only as to the rights of his wife,
who does not join him in the deed, and as to the children, to
whom the law gives the protection of shelter and the com-
forts of a habitation, but also as to himself. His act is a nul-
lity, and he escapes the consequences which would follow it so
far as his own right and title is concerned but for the equi-
table rights and interests of his family. His deed or contract
is as though it was never written or designed.*
The right to sell includes the right to sell conditionally,
which is the same as to say the right to mortgage the prop-
erty ; ^ so the inhibition to sell is extended to mortgaging.'
The husband's sale conveys no title in law or equity, where
the wife has not joined, and the property is homestead.*
A husband alone cannot convey property which he has ac-
quired by the exchange of the homestead for the purpose of
making a new homestead, though it has not yet been occupied
by his family as such.^
The doctrine has been carried so far as this: When the
1 Cowgill V. Warrington, 66 la. 666 ; Boyd v. Cudderback, 31 111. 119 ; Jor-
AUey V. Bay, 9 la. 509 ; Williams v. dan v. Peak, 38 Tex. 439 ; Sampson
Swetland, 10 la. 51 ; Larson v. Rey- v. Williamson, 6 Tex. 102 ; Dunker t.
nolds, 13 la 579 ; Burnap v. Cook, 16 Chedic, 4 Nev. 383.
la. 149 ; Lanahan v. Sears, 103 U. S. 3 Gleason v. Spray, 81 Cal. 217 ; Bar-
318 ; Richards v. Chace, 3 Gray, 385 ; ber v. Babel, 36 Cal. 11 ; Burkett v.
Doyle V. Coburn, 6 Allen, 72 ; Connor Burkett 78 Cal. 310 ; Fledge v. Gar-
V. McMurray, 3 Allen, 303 ; Morris v. vey, 47 Cal. 371 ; Gagliardo v. Du-
Ward, 5 Kas. 239 ; Ayres v. Probasco, mont, 54 Cal. 496 ; Hershey v. Dennis,
14 Kas. 190; Coker v. Robeiis, 71 53 CaL 77 ; McLeran v. Benton, 43 Cal.
Tex 598 ; Kennedy v. Stacey, 1 Bax. 467 ; Leonis v. Lazzarovich, 55 Cal.
330 ; Hoge v. HoUister, 3 Tenn. Ch. 52 ; Hutchinson v. Ainsworth, 63 Cal.
606 ; Rogers v. Renshaw, 37 Tex. 286 ; CaL Civ. Code, § 1242.
635; Pastee v. Stuart, 50 Miss. 731; < Myers v. Evans, 81 Tex. 317; 16
Bennett v. Cutler, 44 N. H 69 ; Foss S. W. 1060. In Georgia a widow's
V. Strachn, 42 N. H. 40 ; Gunnison v. homestead may be sold, under order
Twitohel, 38 N. H. 72; Gleason v. of court, with the consent of the adult
Spray, 81 Cal. 217 ; Sears v. Dixon, 33 heirs, so as to give the purchaser title
Cal. 336; Revalk v. Kramer, 8 Cal. in fee. The proceeds of the sale may
66 ; Building Ass'n v. Chalmere, 75 be invested in other property, and the
CaL 333 ; McHugh v. Smiley, 17 Neb. rights of those heira will be trans-
626; Phillips V. Stanch, 30, Mich. 381; f erred to that. Ga. Code, § 2025;
Amphlett v. Hibbard, 89 Mich. 398; Fleetwood v. Lord (Ga;), 13 S. F.
Sherrid v. Southwick, 43 Mich. 515. 574.
2 Richards v. Chase, 3 Gray, 385 ; ' Cowgill v. Warrington. 66 la. 666.
NO ALIENATION BY HUSBAND ALONE. 385
boundaries of the homestead to be carved out of a tract Of
land greater than the exempt portion have not been estab-
lished, the husband alone, though owning the tract in his own
right, cannot convey it until that portion, including the family
residence, shall have been duly ascertained and reserved.'
Though the governing statute provides that a married man
shall not alienate his homestead without his wife's signature
to the deed, and her examination apart from him,^ yet if lie
acquire and occupy a new homestead with his family, before
the delivery of the deed of the old one to the grantee, the
alienation will hold good, though she merely signed it, and
had no private examination. The reason is, such sale is not
that of a homestead ; the day of delivery is the date of sale.''
The provision that land, occupied as a residence, shall not
be alienated by married beneficiaries without the joint con-
sent of both husband and wife, was held to imply that the
owner may sell it when unmarried; that the surviving hus-
band may sell it absolutely subject to the minor children's
right of occupancy.*
What the husband alone cannot do directly, he cannot do
indirect^. For instance, he cannot stand by and see it sold
under a void mortgage, and thus deprive his family of the
home protection vouchsafed to them by the law.'
"When a homestead has been sold for cash, or notes have
been taken for the price, the money or notes are usually ex-
empt if held to buy a new homestead.* Both husband and
wife should join in such sale.'
An owner cannot lease his homestead and thus deprive his
1 Goodrich V. Brown, 63 Ia.'347. * Hannon v. Sommer, 10 Fed. Rep.
2 Ala. Code, §3508. 601 (Cir. Ct, Dist Kansas); Dayton
s Woodstock Iron Oo. v. Richard- v. Donart, 23 Kas. 356.
son (Ala.), 10 So. 144 See same title, 5 Wood v. Lord, 51 N. H. ,448 ; Mor-
90 Ala. 268 ; Jenkins v. Harrison, ris v. Sargeant, 18 la, 90 ; Abbott v.
66 Ala. 356 ; Elsberry v. Boykin, 65 Cromartie, 72 N. C. 548 ; Parks v. Ct,
Ala. 340 ; Stiles v. Brown, 16 Yt. Ins. Co., 36 Mo. App. 511..
565: Mitchell v. Bartlett, 51 N. Y. SHuskins v. itanlon, 73 la. 37,
453; Lee v. Insurance Co., 6 Mass, ^Harper v. Forbes, 15 Cal. 302;
319; Smith v. Porter, 10 Gray, 66; Guiod v. Guiod, 14 Cal. 506; Dorsey
Barrows v. Barrows (111.), 38 N. E. v. McFarland, 7 Cal. 342; Taylor v.
983 ; Wilson v. Gray, 59 Miss. 525. Hargous, 4 Cal. 268 ; Atkinson v. At-
(See counter cases cited by the kinson, 40 N. H. 249.
court)
25
386 EESTEAINT OF ALIENATION.
wife of her home without her consent.* This rule, though
widely prevailing, has been qualified so that, where the quali-
fication is allowed, an owner may lea^e parts of the homestead,
not needed for household purposes, without his wife's con-
sent.^
An exempt family dwelling-house, on leased ground, mort-
gaged by the husband to secure money borrowed which was
used in the construction of the house, cannot be successfully
claimed as exempt from the demand of the mortgagee on the
ground that she did not sign the instrument.'
Though voluntary alienation may not be by the_husband
alone, he is yet entitled to receive and dispose of the price of*
homestead property paid in compensation for the taking of
afiy part of his homestead under the law of eminent domain.*
Some authorities make distinction between the voluntary and
involuntary granting of the right of way. And when it is
voluntary on the part of the husband who, owns the home-
stead, the authorities are not wholly agreed as to whether he
can convey alone, and whether the compensation paid to him
takes the exempt character.
It was held competent for a husband to give the right of
roadwaj'^ through the homestead without his wife's joinder,
when her interests were not affected.^ What he receives in
compensation, when his dwelling is removed for the road way,
is exempt as the house was before removal, when it has been
regularly condemned ; but if the husband alone should volun-
tarily convey the right of way, it has been held questionable
whether the price received by him would be exempt.*
On the other hand, it has been held, that the husband can-
not make a valid contract with a railroad company, giving
them the right of way across the homestead, without the
consent of the wife and her. signature to the agreement.'
iThimes v. Stumpfl, 33 Kas. 58; 'JFoflmierv. Chi8holm,45Mich.417.
Coughlin V. Coughlin, 26 Kas. 116; « Canty v. Latterner, 31 Minn. 289'
Ott V. Sprague, 27 Kas. 620 ; Cham- 6 Randall v. Tex. Cent. R. Co., 63
bers V. Cox, 23 Kas. 395 ; Hogan v. Tex. 586 ; Chicago, etc. R. Co. v. Tit-
Manners, 23 Kas. 551 ; Ayers v. Pro- terington (Tex.), 19 S. W. 472 ; Chi-
basco, 14 Kas. 190; Monroe v. May, 9 cago, etc. R. Co. v. Swenney, 38 la.
Kas. 476; Anderson v. Anderson, 9 182.
Kas. 112 ; DoUman v. Harris, 5 Kas. " Huskins v. Hanlon, 72 la. 37.
597. I Evans v. Grand Rapids, etc. R. Co.,
2 Harkness v. Burton, 39 la. 101. 68 Mich. 603.
SALES SUBSEQUENTLY VALIDATED. 387
There seems to be reason for this view ; for the unrestrained
right of conveying such way would imply that of *;onveying
like ways to other railways, so that the homestead might be
ruined. If the question depends upon her interest, as one of
the cases above cited seems to hold, it is easy to see that her
interest would be seriously affected by the granting of several
rights of way across the home farm, or by the granting of
one if the road is to run through the house or yard. If her
interest is the criterion, the court must pass upon it in each
case.
A householder held his land under a school certificate and
occupied it, with his wife, as homestead. He assigned his cer-
ficate without her concurrence by signature, but both surren-
dered possession to the purchaser. The transfer was declared
void for want of her signature ; and her surrender did not
operate as an estoppel to her subsequent assertion of interest
and claim of homestead. ^
The case turned upon the transfer by assignment. The
court held that act not merely voidable, as it would be in some
of the states, but absolutely void, since the statute inhibiting
conveyance without the wife's signature was positive, as be-
fore construed.^ The court said : " Under the statute, both
the husband and wife must be bound by the conveyance or
contract to convey, or neither is. Neither of them, acting
alone, can give it validity. So that, if it is to become effect-
ual by estoppel, the estoppel must operate as to both." '
§ 6. Sales Subsequently Talidated.
It has been held that subsequent abandonment of the home-
stead will inure to the benefit of the grantee when sale by the
husband has passed before.' And that, upon the death of both
spouses, a prior sale by the husband cannot be questioned by
the administrator, if there are no minor heirs' interests in-
volved.*
If, after a bond has been executed by a husband alone to
1 Citing Gen. Stat of Minn., c. 68, v. Templeton, 48 III. 367 ; McDonald
g 3 (1878) ; Bai;ton v. Drake, 21 Minn. v. Crandall, 43 111. 238 ; Brown v.
299 ; Alt V. Banholzer, 39 Minn. 511. Coon, 36 111. 243 ; Jordan v. Godman,
2 Law V. Butler, 44 Minn. 483. 19 Tex. 273; Stewart v. Maokey, 16
3HaU V. FuUerJon, 69 lU. 448; Tex. 56.
Vasey v. Trustees, 59 111. 188 ; Hewitt < I;?ion v. Mills, 41 Tex. 811.
388 EESTEAINT OF ALIENATION.
convey the homestead at a future time, the wife should die;
or if he and she should abandon their exemption right, the
other party- to the contract could enforce specific perform-
ance.' If the wife should refuse to join in the conveyance,
in conformity to her husband's executory agreement, the
other contracting party can recover of him whatever he may
have expended in good faith by way of improving the prop-
erty.'
Homestead owners, after giving bond to convey their home-
stead, are bound to comply and give their deed at the stipu-
lated time. If the bond requires the deed to be given to a
husband and wife, and it is really given to the husband alone,
he will hold for her, in trust, as well as for himself.'
A mortgage, void for want of the wife's joinder, does not
become valid at her death.'' Nor would the husband's exec-
utory agreement to sell ; but he would be liable to the grantee
for non-pesformance, if the latter had agreed to buy in good
faith.' And it has been held that, upon the wife's death,
specific performance can be enforced — that is, that such ex-
ecutory agreement would not be void."
' An imperfect conveyance cannot be ratified by the grantor
so as to render it valid, if his wife asserts her homestead right
in the property sought to be conveyed.'
Ileal estate not occupied as a residence may be validly
mortgaged ])y the husband-owner, so that his wife, who, with
her husband, occupies another home at the time, cannot after-
wards have it or a part of it included in the homestead plat
subsequently set out and recorded so as to affect the rights of
the mortgagee.' 'So subsequent adoption or selection of prop-
erty as a homestead can retroact so as to invalidate prior law-
ful conveyances,' whether by sale or mortgage ; for, a mortgage
1 Eberling v. Verein, 73 Tey. 839 ; « Allison v. Shilling, 37 Tex. 450.
GofiE V. Jone^, 70 Tex. 573 ; Brewer v. ' Coker v. Roberts, 71 Tex. 598 ;
Wall, 33 Tex. 689 ; Cross v. Everts, 38 Jacobs v. Hawkins, 63 Tex. 1 ; Wheat-
Tex. 534. ley v. Griffin, 60 Tex. 309 ; Wood v.
''lb.; and KempiSer v. Heiden- Wheeler, 7 Tex. 14; Texas Const,
heimer, 65 Tex. 587. art. 16, § 15.
3 Schriber v. Piatt, 19 Neb. 625, » Lucas v. Pickel, 30 la. 490.
* Larson v. Reynolds, 13 la. 579. 9 Yost v. Devault, 3 la. 345.
8 Wright V. Hays, 34 Tex. 261 j
Cross V. Evarts, 38 Tex. 534
wife's eight eelative to sales. 389
is a conTeyance held to be, inhibited by a "Statute which did
not expressly include incumbrances when forbidding convey-
ance by a husband or wife alone.^ t
One state inhibiting the alienation of a homestead by one
of thq marital parties without joinder by the other spouse, it
was held in another state that, because of such inhibition, a
sale solely by the husband to pay a pre-existing debt, and a
conveyance back to him with the vendor's lien preserved, were
void. The deist was not thus paid, nor was the vendor's lien
created in favor of the creditor.^
§ 7. Wife's Eight Eelative to Sales.
A wife cannot be deprived of her homestead rights by being
driven from her home by her husband, and then living apart
from him. She is still his wife and entitled to all the prop-
erty privileges and immunities which the law awards her,
So, when a discarded and outdriven wife subsequently ob-
tained a divorce with judgment for alimony against her hus-
band, she properly disregarded the sale of the homestead by
him alone, made after she had been sent away and before the
rendition of the judgment ; and she executed her judgment
against the property as his, and bought it at the judicial sale.
Her homestead right had continued all the while. His legal
right remaiped in him, notwithstanding his attempted con-
vej'ance of it without her signature. Though still his and her
homestead, the property could be subjected to forced sale at
her suit, since her judgment for alimony was a lien upon it,
and he was estopped from setting up his homestead interest
against it, after having alienated it in contravention of law so
far as he could do so. It is said that he had abandoned the
homestead and had thus forfeited the exemption. He could
not claim it for his vendee; nor against his wife whom he had
sought to defraud.''
If the wife is the owner of the homestead dedicated by her
alone, or with the concurrence of her husband, she cannot
afterwards alienate or incumber it without his consent, while
the dedication continues and its privileges are enjoyed by
1 Bab^ock V. Soey, 11 la. 375. ^Keyes v. Scan'.an, 63 Wis. 345;
2 Parks V, .Ct. Ins. Co., 36 Mo. App. Barker v. Dayton, 2B Wis. 368.
511.
390
KESTEAINT OF ALIENATION.
their family.* But when the family enjoyment has ceased,
the reason for the restraint no longer exists. So, when a wife
abandoned by her husband, conveyed her homestead, which
was her separate property, to her sister, the husband vainly
sought homestead therein after her death.*
If the title is in the wife, and she voluntarily conveys the
property to pay a debt of her husband, where the statute de-
clares such act of hers under coverture to be absolutely void,
nobody but herself can plead the statute against the convey-
ance ; for the plea of coverture is personal, and she alone is
privileged to plead it. True, if the property was homestead,
there would be interests that might be prejudiced, and relief
might be afforded. But aside from that, the deed would hold
between the parties.'
iDoUman v. Harris, 5 Kas. 597;
Low V. Anderson, 41 Iowa, 476.
2 Hector v. Knox, 63 Tex. 613.
3 Palmer v. Smith (Ga.), 13 S. K
956. Simmons, J. : " 1. Under the
facts reported the judge directed the
jury to return a verdict in favor of
Smith, the defendant, on <the ground
that the deed put in evidence from
Walls and his wife to Palmer, Stew-
art & Co. was made by Mrs. Walls in
payment of her husband's debts, and
was therefore void under our code ;
and that Smith, the defendant, could
plead this fact The record does not
show that Smith was privy in blood
or estate to Mrs. Walls. Where a
married woman, having a separate .
estate, conveys her property to a
third person in payment of her hus-
band's debts, and afterwards seeks to
recover the property, or to cancel
the deed, the deed will be declared
void, on her motion, as against all
persons who had notice that it was
made for such purpose. But where
she has conveyed her separate estate
in payment of her husband's debts to
one party, and another party is in
possession of the property, who is not
in privity with her in blood or estate,
and is sued therefor by the vendee of
the wife, the defendant cannot set up
in his defense that the deed is void
because made in payment of the hus-
band's debts. This plea of the wife
is a personal privilege, confined to
her or her privies; and, if she or
they do not set it up, no stranger has
the right to do so. The property
conveyed by her under such circum-
stances belongs to her; and, if she
honestly wishes it to remain In the
hands of her vendee in payment of
her husband's just debts, and does not
choose to claim it for herself, what
right has a stranger, who does not
hold under her, to set up this defense,
and put her money in his pocket?
The plea of infancy is a personal
privilege, and no one but the infant
can avail himself of it The plea of
usury is also>a personal privilege, and
no one but the party promising
usury, or his privies, can take ad-
vantage of it except in cases of in-
solvency. We think the plea of cov-
erture is also a personal privilege to
the wife, and can avail no one ex-
cept herself and her priviea We
therefore hold that under the facts
as disclosed by the record tlie deed
wife's . EIGHT EELATIVE TO SALES.
391
The husband, selling the homestead ostensibly to pay .a bal-
ance of purchase-money, but really to defraud his wife of her
rights in it, conveys no title good against her when the pur-
chaser had notice.* If the sale is one requiring her signature,
a misrepresentation of the effect which would follow the sign-
ing of the instrument may be fraudulent.^ It was held so
when a wife thus had been induced to sign away her home-
stead.'
Inducement to sign through fear will invalidate the wife's
signature.*
from Walls and wife to Palmer,
Stewart & Co. was not void as be-
tween these parties. Zellner v. Mdb-
ley, 84 Ga. 746; 11 S. E. Rep. 403;
Sutton V. Aiken, 63 Ga. 741 ; 1 Wait,
Act & Def. 157 ; Juchert v. Johnson,
(Ind. Sup.), 9 N. E. Rep. 413; Ben-
• nett V. Mattingly, 110 Ind. 197 ; 10 N.
E. Rep. 299, and 11 N. E. Rep.
793; Insurance Co. v. Baker, 71
Ind. 103. 3. The deed above re-
ferred to contained the following
clause : ' The said premises described
having been recently set apart as a
homestead by the ordinary of Fulton
county, Georgia, to-wit, in the month
of April, 1869.' Counsel for the de-
fendant in error contended that 'this
was homestead property, and eject-
ment could not be maintained upon
that deeii Plaintiffs are seeking to
recover homestead property on that
deed, and the constitution of 1868 de-
nied to the court the power of ren-
dering or enforcing such a judg-
ment' Under the facts reported, the
principle contended for does not ap-
ply. The evidence does not show to
whom or out of whose property the
homestead was set apart It does
not show that Walls and his wife
ever occupied the land as a home-
stead, nor does it show that they
ever resided in the state of Georgia ;
but we can infer that if they ever
did reside in Georgia, they had re-
moved to the state of Alabama, be-
cause the deed in controversy was
executed in that state, and the two
letters from Walls, the husband, at-
tached to the motion for a new trial,
show that he still resides in Ala-
bama. If they had never resided in
this state, no homestead could have
been set apart to them under its
laws. If they had had a homestead
set apart to them, and removed from
this state to another, under the rea^
soning of the decision in the case of
Bank v. Smisson, 73 Ga, 433, they
lost their homestead rights in the
property. If this property was the
wife's, its homestead could not have
been set apart to them out of it
We think, therefore, that the facts
as disclosed by the record could npt
defeat the deed as a conveyance of
the wife's prior title to the premises.
Judgment reversed."
1 Morris v.. Geisecke, 60 Tex. 633.
See Newman v. Farquhar, 60 Tex.
640.
2 Townsend v. Cowles, 31 Ala. 438 ;
Colter V. Morgan, 13 B. Kon. 378;
Broadwell v. Broadwell, 1 Gilman,
595; Drew v. Clark, Cooke (Tenn.),
374.
3Ramey v. Allison, 64 Tex. 697.
See Varner v. Carson, 59 Tex. 306 j
Lott V. Kaiser, 61 Tex. 671 ; Shelby y.
Burtis, 18 Tex. 651 ; Kerr on Fraud
and Mistake, p. 69.
* Kocourek v. Marak, 54 Tex. 201 ;
Tarpley v. Tai-pley, 10 Minn. (458.
392 KESTEAINT OF ALIENATION.
A husbaad, having sold th« family homestead without his
wife's joinder, and moved from it without her consent (though
she accompanied him as in duty bound), did not thus destroy
her homestead right. Afterwards they recovered possession
of the land as their hoipestead.'
§ 8. Estoppel Iby Sole Deed.
The general rule is that conveyance of homestead by the
husband alone is void even as to himself. But it has been
held that it will estop him, both at law and in equity, from
setting up any right or claim adverse to it ; that neither in his
own behalf, nor as the trustee or representative of his wife
and children, can he be heard to aver anything against his own
solemn asseverations in the conveyance. And it is further held
that his sole conveyance, when no homestead has been set
apart and the right to it was inchoate, operates upon his wife
and' children, so that, during his life-time, they cannot claim; •
not that they are estopped, but because he, as their represent-
ative, is estopped, and they cannot through him set up any-
thing adverse to his deed.^
The doctrine of estoppel, as thus enounced, does not deny
the wife's right to claim when her disabilities have been re-
moved by the death of her husband. So long as he remains
her legal representative, she cannot assert her own rights for
herself and her children. But the husband cannot deprive
her of her rights by conveying them by his sole deed ; cannot
release or waive her homestead right any more than he can
telease her dower right. He is estopped from denying his
'Myers v. Evans, 81 Tex. 317; 16 Mass. 807; Barber v. Harris, 15 Wend.
S. W. 1060. 615 ; Fennel v. Weyant, 2 Harr. 501 ;
2 Foss V. Straohn, 42 N. H. 40, cit- Currier v. Earl, 1 Shep. 216 ; White
i7ig on the general doctrine that a v. Patten, 24 Pick. 324; Dunbar v.
grantor is estopped from denying his Mitchel, 12 Mass. 873 ; Blake v.
deed, its covenants and recitals, Tficker, 12 Vt 39. The doctrine of
Stowe V. Wyse, 7 Ct. 214 ; Wilkinson Foss v. Strachn, applying the usual
V.Scott, 17 Mass. 249, 257; Kimball rule of estoppel to homestead con-
V. Blaisdell, 5 N. H. 533 ; Thorndike veyances, was repeated in the case
V. Norris, 34 N. H. 454 ; Wark v. Wil- immediately following. Strachn v.
lard, 13 N. H. 389 ; Brown v. Manter, Foss, 42 N. H. 43 ; Guiod v. Guiod, 14
21 N. H. 538; Jewell v. Porter, 81 Cal. 506; Bowman v. Norton, 10 Cal.
N. H. 84; Johnson v. Goss, N. H. 219.
(not reported) ; Eveleth v. Crouch, 15
ESTOPPEL BY SOLE DEED. 393
own deed, but she can controvert it on ucquirmg legal stand-
ing in court.' Had he legally negatived the homestead right
by abandoning the property as a residence, or had he trans-
ferred the right from one home to another by exchange, her
right to claim homestead in the property first held would have >
become extinct by such an act of his.^
The general law of estoppel does not apply, however, to a
husband who has given a deed of sale or mortgage, when the
law makes such act of his absolutely void, without his wife's
absent, or signature and acknowledgment. It never applies
to acts that are absolute nullities.'
The grantee of a homestead is presumed to have notice that
the grantor has no right to convey. He is notified either by
the record or by the notorious occupancy of the home by the
grantor — one or the other of these two kinds of notice being
sufficient in any state where sales of homesteads by a married
person without joinder by the other spouse are prohibited.
The grantee therefore i§ presumed to know the character of
the property which he purchases. And he, as all others, is
presumed to know the law. So he ought to be estopped as
well as the grantor. The absolute nullity of such transactions
relieves from the necessity of applying the rule of estoppel.
The husband alone cannot convey. His separate convey-
ance is absolutely void ; void even as to /himself ; and it does
not operate as an estoppel to him.*
Beneficiaries cannot claim successfully against a mortgagee
who had neither actual nor constructive notice that the prop-
erty mortgaged was subject to their homestead right.^ If he
has had notice, he cannot be heard to attack the regularity of
1 Wood V. Lord, 51 N. H. 448. Nolen, 68 Ala, 463 ; Halso v. Sea-
2 Horn V. Tufts, 39 N. H. 478. wright, 65 Ala. 431 ; MoGuire v. Van
' Housatonic Bank v. Martin, 1 Pelt, 55 Ala. 344 ; Miller v. Marx, 55
Met a94; Chandler v. Ford, 3 Ad. & Ala. 333.
E. 649. * Roberts v. Eobinson, 63 Ga. 666 ;
< Moses V. McClain, 83 Ala. 370; Georgia, Acts of 1876, p. 51"; Code,
Strauss y. Harrison, 79 Ala 334; §§ 2054, 5135 ; Cheney v. Eodgers, 54
Crim V. Nelms, 78 Ala. 604; Alford Ga. 168; Bonds y. Strickland, 60 Ga.
V. Lehman, 76 Ala. 536 ; De Graffeii- 624; Willingham v. Maynard, 59
reid v. Clark, 75 Ala. 425 ; Slaughter Ga. 330 ; Roberts v. Trammell, 55
V. McBride, 69 Ala. 510 ; Seaman v. Ga. 383.
"394: EESTEAINT OF ALIENATIOK'.
proceedings establishing the homestead. A purchaser, with
notice, cannot be heard for such purpose.'
Both husband and wife having absolutely conveyed their
homestead, she cannot claim successfully that the conveyance
was meant as. a mortgage, as against a purchaser from a third
person without notice of any such intendment.* Their con-
tinued residence upon the homestead was not such a circum-
stance as to put such purchaser upon inquiry as to their re-
served intention, when the recorded deed showed regular
transfer.'
Tet a deed to a homestead which is a complete conveyance
on its face may be sh9wn by parol to have been given as secu-
rity for debt, and to convey no title.*
The requirement that both husband and wife shall join in
the conveyance has bfeen held not satisfied by each making a
separate deed to the same purport.' There seems to be no es-
tablished rul3 of general authority on this subject. If the
two deeds together are substantially one conveyance, made on
the same day to the same grantee, with separate examination
of the wife and due acknowledgment. by her, they would not
be treated as nullities by every court.
Though the husband or wife contracts separately to convey
the homestead, or to incumber it, and signs the instrument to
effect the purpose, it is held that no damages can be recov-
ered of" either for the breach of such contract — it having
been void from its incipiency.' Were such a contract made
by the husband with fraudulent purpose, the wrong-doer
would doubtless be amenable to the law; but if with the be-
lief that the wife would sign, he would not be even liable to
damages for the value of land above the contract price, on
failure to complete the transaction by reason of her dissent.
If the price has already been advanced by the purchaser,
1 Brown v. Driggers, 63 Ga. 354. "> Dickinson v. McLane, 57 N. H. 31.
2 Love V. Breedlove, 75 Tex. 649. See Luther v. Drake, 21 la. 93 ; Poole
s lb.; Heidenheimer v.- Stuart, 65 v. Gerrard, 6 Cal 73.
Tex. 331; Hurt v. Cooper, 63 Tex. « Barnett v. Mendenhall, 43 la. 296 ;
363; Eylar v. Eylar, 60 Tex. 815. See Clark v. Kvarts, 46 la. 248; Cowgell
Alstine v. Cundiff, 53 Tex. 453. v. Warrington, 66 la. 666.
* Silberberg v. Pearson, 75 Tex. 387 ;
Brewster v. Davis, 56 Tex. 478.
CONVEYANCE BY HUSBAND TO WIFE. 395
doubtless he could recover that from the other party in-
competent to convey.' Or, if money has been loaned on a
mortgage signed by the husband alone, resting on the home-
stead, it would be recoverable immediately on the ground
that the instrument is a nullity. A junior mortgagee, finding
such an instrument impeding the recovery of his valid claim,
may have it set aside, though the owners of the mortgaged
homestead have not sought to do so.^ Specific performance
of a mortgage or sale by the husband alone cannot be en-
forced.* But money judiciously expended for the .improve-
ment and betterment of the property, by a purchaser in good
faith, may be recovered.'
It is held questionable, however, whether the wife may not
recover rents and profits from the purchaser for the time he
has held the homestead under such invalid conveyance.'
§ 9. Conveyance by Husband to Wife.
Family protection being the object of the law when inhib-
iting alienation, there is no contravention of the spirit of the
law when the homestead is conveyed to his wife, or to his
wife and children, by the owner who is the head of the family.'
A conveyance frona husband to wife, with no consideration
but " love and affection," was held fraudulent as to creditors,
though the latter could not subject the homestead to the pay-
ment of the debts due them, by reason of the fraud. Had
both husband and wife joined in conveying to a third person,
and the latter had conveyed to her, they would have lost their
homestead property.'
Had the husband conveyed to the wife directly to defraud
creditors, while he and she were in the occupancy of quarters
as a homestead other than the homestead thus conveyed, the
creditors would have the right of disregarding the convey-
ance.^
1 Donner v. Redenbaugh, 61 la. 269. v. Crouch, 24 Wis. 365. Compare
2 Alley V. Bay, 9 la. 509. ' Hoyt v. Howe, 3 Wis. 752, and Up-
3 Garlock v. Baker, 46 la. 334. man v. Bank, 15 Wis. 449. See Ma-
* Stinson v. Richardson, 44 la. 373. lony v. Horan, 13 Abb. Pr. 289 ;
8 lb. Castle v. Palmer, 6 Allen, 401 ; Turner
6 Albright v. Albright, 70 Wis. 538 ; v. Bernheimer (Ala.), 10 So. 750.
Dull V. Merrill, 69 Mich. 49; Riehl v. 'Euohs v. Hooke, 3 Lea, 302.
Bngenheimer, 28 Wis. 84; Murphy SQibbs v. Patten, 2 Lea, 180.
396 EESTEAINT OF ALIENATION.
It is held a TneritoTious coTisideration for the coiiTeyance of
a homestead by a husband to his wife, that she has a right to
it at his death, when there is no child and no one injured by '
the transfer.^ A reasonable provision may be made for the
wife's support, by a conveyance to her, in the nature of a set-
tlement.^
The transfer of a homestead by a husband, for the purpose
of having the grantee immediately conveyit to the grantor's
wife, which purpose was accomplished, was judicially treated
as a direct conveyance of the husband to his wife : therefore
not vitiated by lack of her signature.' But when the design
of preserving the homestead did not appear, in a like trans-
action, it was held that the right was lost, though both hus-
band and wife continued to occupy the dwelling all the while.*
A deed of a homesteaid, absolute in form, given by a hus-
band and his wife, when the legal title was solely in him, to
secure a debt, and containing a stipulation by the grantees
that he would reconvey to the wife upon receiving payment
for the debt, was construed as a mortgage.*
A wife's contract to convey her homestead cannot be spe-
cifically enforced, where the statute renders it nugatory with-
out her husband's signature and acknowledgment.* And a
husband's sale, conveyance or incumbrance is equally futile,
except with reference to any excess of property value above
the homestead allowance.' Should he convey directly to his
wife, any such excess would still be open to his creditors.*
Though a statute provides that "the homestead of a mar-
ried person cannot be conveyed or incumbered unless the instru-
ment by which it is conveyed or incumbered is executed and
1 Albright v. Albright, 70 Wis. 528 ; tent to defraud creditors. Dull v.
Wis. R S., §g 8203, 2270-2272. See Merrill, 69 Mich. 49.
Leach v. Leach, 65 Wis. 284. ^ Jones v. Currier, 65 la. 533.
2 Hunt V. Johnson, 44 N. Y. 27; 6 McHugh v. Smiley, 17 Neb. 636.
Sims V. Rickets, 35 Ind. 181 ; Wilder 6 Larson v. Butts. 22 Neb. 370 ; Neb.
V. Brooks, 10 Minn. 50; Jones V. Clif- Com. Stat, oh. 36, § 4; Swift v.
ton, 101 U. S. 238; Thompson v. Dewey, 20 Neb. 107; Bonorden v.
Allen, 103 Pa. St. 44 Kriz,. 13 Neb. 121 ; Aultraan v. Jen-
3 Stevens v. Castel, 63 Mich. Ill; kins, 19 Neb. 209.
Hugunin v. Dewey, 20 la. 368. Tlie ' Swift v. Dewey, 20 Neb. 107 ; Neb.
conveyance of a homestead by a hus- act of 1879, limiting to $2,000.
band to his wife is no evidence of in- 8 Hick's Tea Co. v. Mack, 19 Neb.
339.
CONVEYANCE BY HUSBAND TO WIPE. 397
acknowledged by both husband and wife,"^ yet the husband
alone may convey it to his wife. If the transaction is free
from fraud, and the rights of creditors and subsequent pur-
chasers are not contravened, there is no necessit}'' for both
husband and wife to join in conveying to a third person, that
such person may then deed the property to her. The direct
conveyance is as good as though the title had taken the cir-
cumlocutory course through a third party as trustee.^
The rule fails when the reason fails. The rule is that both
spouses shall join in the conveyance: what is the reason?
This restraint upon alienation is for the protection of the
marital parties, especially the wife, and to secure a home for
the family. The children may be unhoused by the mutual
action of their parents in conveying, but that is not likely to
occur. To guard against that danger, the approval of a court
to suph alienation or incumbrance is required in one state,
though the others hold the joinder of husband and wife in .a
deed or mortgage sufficient to pass homestead property, deem-
ing this sufficient protection to their children.
The reason is inapplicable when, husband and wife holding
homestead estate in real property, the one transfers to, the
other his or her legal title. Since the employment of an in-
termediary is futile, what utility can there be in a wife's join-
ir^g to convey land to herself?
The common-law rule is contrary to this; the husband's
deed, given directly to his wife, being void.'
•Neb. Com. Stat, ch. 36, § 4. ch. 36, §4, are to protect the husband
- ^FuiTow V. Athey, 31 Neb. 671; or wife. who do not join in' con vey-
Deming v. Williams, 26 Ct 236; ing; not for the benefit of others
Hunt V. Johnson, 44 N. Y. 37 ; Gar- who are without privity of interest
lick V. Strong, 8 Paige (N. Y.), 453 ; with either of them. Cobbey v.
Coates V. Gerlach, 44 Pa. St. 43; Hu- Knapp,33Neb.579. In Illinois the hu^-
ber V. Huber, 10 Ohio, 373 ; Brook- band's conveyance of his homestead
bank v. Kennard, 41 Ind. 339 ; Story to his wife really conveys to her only
V. Marshall, 24 Tex. 305; Wilder v. the excess above $1,000 of value.
Brooks, 10 Minn, 50; Baker v. Kone- This is held because the statute for-
man, 13 Cal. 9 ; Eddins v. Buck, 23 bids any transfer of the homestead
Ark. 507 ; Reihl v, Bingenheimer, 28 without the signature and acknowl-
Wis. 84. edgraent of both husband and wifa
3 Johnson v. Vandervort, 16 Neb. III. Rev. Stat, oh. 52, § 4; Barrows
144 ; Smith v. Dfian, 15 Neb. 432. The v. Barrows (111.), S8 N. E, '983 ; Kit-
provisiona of Neb. Com. Stat (1887), terlin v. Ins. Co., 134 111, 647 ; Gage
398 EESTEAINT OF ALIENATION.
The conveyance of the legal title from" the husband to the
wife does not affect the homestead right when their occu-
pancy of the home continues as before. " It is not material
in which the title may be." '
It does not matter which owns the homestead, or which is
the debtor ; the exemption operates alike in either case.^
§ 10. Incnmbraiice Inhibited.
Under constitutional inhibition that no mortgage, trust-deed
or other lien on the homestead shall be valid except for pur-
chase-money or improvements, whether such incumbrances
are created by the husband alone or by him and his wife, and
" all pretended sales of the homestead involving any condi-
tions of defeasance shall be void," ' no lien attaches when
both make an absolute deed and then have the homestead
conveyed back to them by the purchaser who reserves a mort-
gage for unpaid purchase-money — the object of the two con-
veyances being to secure a loan made by him to the husband
and wife.*
The lien-holder cannot enforce such unconstitutional lien on
the plea that he was misled by the representatives of the
homestead beneficiaries.'
The inhibition is imperative. It cannot be avoided by any
cunningly contrived series of conveyances. It cannot be over-
come by the apparent passage of an absolute title through any
number of parties. If the circumstances of a circuitous route
through several grantors and grantees clearly show that the
purpose is to create a lien on the homestead to secure a loan
to the owners, the whole transaction will be void as an at-
tempt to circiimvent the constitution.*
V. Wheeler, 129 IlL 197. The *us- Pierson, 39 111. 447 ; Crane v. Wag-
band may convey to his wife di- goner, 33 Ind. 83; Dwinell v. Ed*-
rectly all that is transferabla Crum wards, 23 Ohio St 608.
V. Sawyer, 132 111. 443; Thomas v. » Const Tex., art 16, § 60.
Mueller, 106 111. 36. * O'Shaugjhnessy v. Moore, 73 Tex.
1 McHugh V. Smiley, 17 Neb. 626; 108; Ullma!n v. Jasper, 70 Tei 446;
McMahon v. Speilman, 15 Neb. 653 ; Moores v. Wills, 69 Tex. 109.
Stout V. Rapp, 17 Neb. 462 ; Partee " Mortgage Co. v. Norton, 71 Tex.
V. Stuart, 50 Miss, 721. 683.
2 Stout V. Rapp, 17 Neb. 462, 470; OHays v. Hays, 66 Tex. 606; Heid-
Murray v. Sells, 53 Ga. 257 ; Orr v. enheimer v. Stewart, 65 Tex. 821 ;
Shaft, 23 Mich, 260; Tourville v. Inge v, Cain, 65 Tex. 75; Hurt v.
INOtTMEEANCE INHIBITED. 399
Under some circumstances, however, the voluntary creation
of a lieri upon a homestead by the beneficiaries would be an
abandonment of their exemption right. "With that given up,
there would be no violation of the constitutional provision
above mentioned, and the conveyance or mortgage would
stand good against the property. The property may have been
designated as a homestead, and preparations to occupy may
have been such as to give the property protection from cred-
itors under the decisions,' yet if the owners execute a mort-
gage upon it before actual occupancy, the homestead right
■will be deemed abandoned, and the lien -will be valid.^ And,
when the lien has attached, subsequent claim of homestead,
to defeat it, would be vain.'
While a homestead cannot be incumbered under the consti-
tution as it now exists, mortgages existing before its dedica-
tion may be enforced. A mortgage given on his homestead
by a man to a woman, in contemplation of,marriage with her,
and which was recpgnized in his will after their marriage, was
sustained as valid, though there was no cbnsideration but the
marriage itself.* '
The foreclosure of a mortgage on a homestead, without
making the wife a party, was held void ; but it was declared
that if the exemption was applicable to only an undivided
half interest in the land, and the owner of the other half had
joined in giving the mortgage, and had afterwards conveyed
his part to the wife, the foreclosure would hold good as to
that half interest.'
Cooper, 63 Tex. 362 ; Armstrong v. by the husband or by him and his
Moore, 59 Tex. 646. wife jointly, except for purchase-
• Inge V. Cain, 65 Tex. 75 ; Gardner money or improvements. By the
V. Douglass, 64 Tex. 76 ; Moreland v. constitution of 1845, of that state,
Earnhardt, 44 Tex. 375, 280 ; Ander- art. 8, § 22, forced sales of home-
son V. McKay, 30 Tex. 190 ; Franklin steads conveyed no right unless some
V. Coffee, 18 Tex. 413. further act of transfer accompanied
2 Kempner V. Comer, 73 Tex. 196 ; them. Campbell v. Elliott, 62 Tex.
Jacobs V. Hawkins, 63 Tex. 1. 151. Distinguished from Cross v.
3 Potshuisky v. Krempkan, 26 Tex. Evarts, 28 Tex. 523 ; Brewer v. Wall,
308 ; Swope v. Stantzenberger, 69 28 Tex. 385 ; Stewart v. Mackey, 16
Tex. 38'7 ; Baird v. Trice, 61 Tex. 556 j Tex. 66.
Mabry v. Harrison, 44 Tex. 286. By * McCormick v. Neel, 58 Tex. 15.
the constitution of Texas, no incum- » Thompson v, Jones, 60 Tex. 94.
brance can be put upon a homestead
400 EESTEAINT OF ALIENATION.
A mortgagee, foreclosing on a homestead and becoming the
purchaser, cannot retain proceeds above his lien to satisfy or-
dinary debt due him by the mortgagor.'
Where the mortgage of the homestead is inhibited except
for specified debts, one purchasing his co-tenant's interest can
mortgage only the part purchased — not his original interest.'
When he had mortgaged his interest, he .afterwards had the
property partitioned and fixed his dwelling on the share allot-
ted to him ; and it was held that he could claim it as exempt
from the mortgage he had given. 'No mortgage could hold
good, unless to secure debts specified in the constitiition as
exceptional to those exempted.'
Where homestead mortgages are forbidden, except for pur-
chase-money, etc., and a mortgagor seeks to avail himself of
the prohibition, it is incumbent on him to prove that the mort-
gaged realty is his homestead.^
In exposition of. a constitutional provision that, after the
homestead has been set apart, the debtor shall not "alienate
or incumber the property so exempted, but it may be sold by
the defendant and his wife, if any, jointly, with the sanction
of the judge of the superior court of the county where the
debtor resides or the land is situated, the proceeds to be rein-
vested upon the same uses," ' it is held that homesteads can-
not be mortgaged. Both husband and wife joining, and the
superior court nominally authorizing, the mortgage would be
a nullity. They may sell by permission of court, when the
price is to go to buy another home, but not otherwise. If
they obtain a loan on such a mortgage, they are allowed to
repudiate this securitj'^ with impunity. A wife, who had home-
stead carved out of her husband's separate property, obtained
a loan on the strength of it — she waiving the exemption
right. When her note became due, she failed to honor it; and
when sued upon the mortgage she set up its invalidity. Doubt-
less it was worthless on the ground that she did not own a
1 Hunter v. Wooldert, 55 Tex. 433 ; 2 Sims v. Thompson, 39 Ark. 301.
liforth V. Shearn, 15 Tex.; 175 ; Wood ssentell v. Armor, 35 Ark. 49;
V.Wheeler, 11 Tex. 133; Houghton Frits v. Frits, 33 Ark. 337.
T. Lee, 50 Cal. 101 ; Keyes v. Rines, * Worsham v. Freeman, 34 Ark. 55.
37 Vt. 260; Mitchell v. Millbraun, 11 « Const, of Ga,, 1877, art 9, g 3.
Kas. 638 ; 3 Jones on Morfc, § 1093.
INTERESTS OF NON-OWNING BENEFIOIAEIES. 401
foot of the land she had mortgaged. But the principal ground
on which the plaintiff was kept out of his money was the ab-
solute nullity of all homestead mortgages under the new con-
stitution. Had the husband and wife and the court made the
mortgage sued upon, it would yet have been an abortion, Ad-
mitting the title of the property to be still in the husband,
the court said that a new use had been created when it was
set apart as a homestead by the judgment of the ordinary.
The use was for the benefit of his wife during her life,, and
his children during their minority. "When the use ceases, the
husband becomes reinvested with all his rights which existed
prior to the creation of the use. (Was he divested of rights
before, by this constitution?) He can then either sell or mort-
gage the land. " But," says the court, " so long as the home-
stead estate remains, he cannot sell without the consent of his
wife, nor wi^'^out an order from the judge of the superior
court, nor as we now think can he mortgage it with the con-
sent of his wife and with an order of the judge of the superior
court." Twice elsewhere in the opinion, the nullity of all
homestead mortgages, under the new constitution, is unqual-
ifiedly stated.'
§ 11. Interests of Non-owning Beneficiaries.
The right of homestead, existing before any part of the
premises where the beneficiaries reside has been set off so that
the, homestead itself becomes something tangible, has been
treated as a mere incumbrance, upon the title of the husband-
owner, in favor of his wife and children.''
The exemption right cannot exist apart from that which is
exempted ; cannot be separately conveyed.'
The wife does not become joint owner with her husband in
the legal title to the homestead upon their becoming joint oc-
cupants of the home, for the right of exemption which she
thus enjoys is not an affirmative property right conferred
upon her by law.* Her interest is immediate and substantial,
1 Planters' Bank v. Dickinson, 83 Barker v. Eollins, 30 la. 413 ; Bow-
Ga. 711. yer's Appeal. 21 Pa. St. 310 ; Hewitt
2 McClary v. Bixby, 36 Vt. 360 ; v. Templeton, 48 111. 367 ; McDonald
Jewett V. Brock, 33 Vt 65 ; Davis v. y. Crandall, 43 111. 231.
Andrews, 30 Vt. 678. ' * Burns v. Keas, 21 la. 257.
8 Chamberlain v. Lyell, 3 Mich. 458 ;
26
402 EESTEAINT OF ALIENATION.
and it is secured against acts of alienation or forfeiture on the
part of her husband which would otherwise prove fatal with
respect to his Interest ; and she has estate in the homestead
so far as to be enabled to avail herself of a statutory author-
ization to redeem the property from a tax sale.* In some re-
spects her homestead right is of a higher character than that
of dower.'^
The wife and children oertainly have no jus in re while her
husband, their father, holds the full legal title in fee. The ob-
ject of requiring her signature to his deed of conveyance is
that she may relinquish her homestead right just as though
she were signing to release her dower right. She has no pres-
ent title to either dower or homestead, it is said ; certainly
she has no legal title in her homestead right, though it be
presently existing. The policy of the state, that a home for
the wife and children shall not be alienated by the house-
holder with the same freedom which he conveys as to the sale
of his other property, is satisfied when he procures a new
home for his family and moves into it with them. Then there
is no longer any incumbrance upon the first occupied home.
Considered as an incumbrance, the homestead right of the
wife is novel indeed. It would be upon her husband's legal
estate and against him. Yet it would be something which
she could not enforce against him, assign to a third party, or
renounce to the prejudice of the children or even herself. Her
creditors could not reach it. Yet her right, with all the diffi-
culties admitted, has been treated as an incumbrance on her
husband's property, in her favor ; and it has been likened to a
mortgage.' But^it is altogether unlike a mortgage in many
respects. It cannot be assigned, or foreclosed or canceled by
her. If the homestead is carved upon her own separate prop-
erty, and her right remaining is in the nature of a mortgage, she
would be both mortgagor and mortgagee — which is absurd.
The decision above cited in this section was rendered under
& statute which has been superseded by one which makes the
conveyance of his homestead, by a married man, absolutely
void unless the wife joins in the deed.*
When both spouses unite in mortgaging the legal title to the
t
» Adams v. Beale, 19 la. 61. ' Howe v. Adams, 28 Vt 541.
' Chase v. Abbott, 30 la. 154, * Abell v. Lathrop, 47 Vt 875.
CONVEYANCE TO PAY PKIVILEGED DEBTS. 403
land on which their statutory right of homestead rests, they
create equities, in favor of the mortgagee, superior to their
own. Thereafter, they hold the legal estate as trustees of the
mortgagee.^ But the mortgagee must exhaust, first, any prop-
erty mortgaged by them on which the homestead right does
not rest, if he holds two mortgages given by them, and one
involves the homestead while the other does not. The wife,
having signed both, is estopped from defeating the interests
she has conveyed.^
After mortgages had been satisfied out of the proceeds of
sale, by consent of junior judgment creditors who were parties
to the suit in which the sale was made, the owners of the land
claimed to have homestead rights which they demanded should
be satisfied out of the remaining proceeds. The mortgages
having been paid, the equitable "two fund doctrine" was in-
applicable to them, and the junior lien-holders — the judgment
creditors — were not subrogated to the rights of the, mort-
gagees, and therefore could not resist the claim to homestead.'
The owner and his wife having joined in a trust-deed to
secure a debt, thus incumbering their homestead, he died and
she abandoned the occupancy of the home. The purchaser at
the trustee sale sued the heirs for possession. It was held
that his right must be postponed to the allowance given by
statute in lieu of homestead,; and that he acquired no, title.*
§ 12. Conveyance to Pay Privileged Debts.
The husband alone may dispose of his OM-n property, which
has been dedicated as his homestead, to pay debtsfor which the
property was liable before dedication and which bear upon it
1 Threshing Machine Co. v. Mitch- v. Glidden, 9 Wis. 46 ; Darst v. Bates,
ell, 74 Mich. 679; Screiber v. Carey, 95 III. 493; Niles v. Harmon, 80 111.
48 Wis. 215 ; Fairbank v. Cudworth, 396 ; Jones on Mort, § 1633.
33 Wis, 358 ; Seatofl v. Anderson, 28 3 ^x parte Carraway. 28 S, C. 233 ;
Wis. 215; Avery v.Judd, 21 Wis. 262. Exi parte Kmz, 2^ 8. C. i68. (State
2 Threshing Machine Co. v. Mitch- Bank v. Harbin, ,18 S. C. 425, is. dis-
ell, 74 Mich- 679 ; Bank v. Trues- tinguiahed from the Carj-away Casp.)
dail, 38 Mich. 440; Sibley v. Baker, < A^iney v. Pope, 52 Tex. 288; Mc-
23 Mich. 812 ;, Searle v. Chapman, Lane v. Paschal, 47 Tex, 370 ; May-
121 Mags. 19 ; Hopkins V. AVoUey, 81 man v. Reviere, 47 Tex. 357; Terry.
N. y. 77 ; Bapk v. Ropp, 80 N, Y. 591 ; v. Teriy, 39 Tex. 813 ; Robertson's
Patty V. Pease, 8 Paige (N. Y.), 277; Adm'r v. Paul, 16 Tex, 472. See
White V. Polleya, 20 Wis. 503; Ogden, Saunders v. Howard, 51 Tex. 23,
404 BESTEAINT OF ALIENATION.
afterwards, because there is no exemption as to such property
liabilities.' Even where the wife's joinder and signature is
required in homestead alienation, the rule seems to be relaxed
when the purpose is to remove debts for which the property
itself is liable.^
It was held that when there are two mortgages, and the prior
one releases the homestead while the second one does not ;
and the junior mortgagee pays off the first mortgage, becomes
therefore legally subrogated to the senior's rights, and then
forecloses both mortgages together and buys the property at
the sale, he gets title free from the homestead claim.'
■ A mortgage given by a husband and his wife on tlpeir home-
stead, resting upon lots held by them in common, he cannot
recover for advances to pay it off after her death, when the
money was earned principally by her minor children — his
step-children — who lived with him and were beneficiaries of
the homestead.*
Land already subject to a lien does not become relieved of
it by the creation of the homestead estate upon it,' as has been
elsewhere herein fully shown — exemption not interfering
with the vested rights of lien-holders, and not having any ref-
erence to property debts.
The homestead may be validly hypothecated to secure a
joint note of the husband and wife,* or of the husband alone,'
both signing in either case. It may be validly hypothecated
to secure any debt of theirs — there being no restraint what-
ever when both join in the act.
Ilusband and wife may join in deeding the homestead to
secure a loan from the grantee, without divesting themselves
of their homestead right, if thej' retain possession of the prop-
erty : the deed being construed as a mortgage.'
iHook V. Richeson, 115 111. 431; 2 Wood v. Lord, 51 N. H. 448;
Chappell V. Spire, 106 111. 473 ; Nich- Burnside v. Terry, 51 Ga. 186.
ols V. Overacker, 16 Kas. 59. {See 3 Ebert v. Gerding, 116 111. 216.
Moore v. Reaves, 15 Kas. 150.) Dillon * Capek v. Kropik, 139 111. 509.
V. Byrne, 5 Cal. 455; Carr v. Cald- 'Hook v. Richeson, 115 111. 431;
well. 10 Cal. 385 ; Peterson v. Horn- Chappell v. Spire, 106 111. 473.
blower, 33 Cal. 275 ; Amphlett v. Hib- 6 Low v. Anderson, 41 la. 476.
bard, 29 Mich. 298 ; Hopper v. Par- ' Rock v. Kreig, 39 la. 239.
kinson, 5 Nev. 233 ; Christy v. Dyer, 8 MoClure v. Braniff, 75 la. Sa
U la. 438; Barnes v. Gay, 7 la. 26;
Thurston v. Maddocks, 6 Allen, 427.
CHAPTEE XIII.
RESTRAINT OF ALIENATION — Continued.
§ 7. Wife's Joinder — In GeneraL
8. Leasing, as Alienation.
9. Exchange of Homesteads.
10. Proceeds for Investment in a
New Home.
11. Proceeds Held for General Pur-
1, Restraint — As to Excess.
2. Excess First Exhausted.
B. Sale of Interests in Homestead
Property.
4 Assignment of Homestead.
5. Conveyance Strictly Construed.
6. Wife's Acknowledgment — How
Construed.
§ 1. Eestraint — As to Excess.
The excess above the quantitative limit is under no restraint
as to sale or mortgage.' The same is true of the excess above
the monetary limitation. If property, including the home-
stead but exceeding the limit, be mortgaged by the husband
alone, the lien will be void as to the homestead but valid as to
the rest.^
It is not always practicable to sever the salable quantity,
or the part representing the excess of value, after the whole
has been nominally sold. Suppose forty acres to be the limit,
and the farm including it to consist of sixty ; fifteen hundred
dollars the monetary allowance, and the farm sold at three
thousand dollars, or fifty per acre : manifestly, it would not
be just to make the purchaser pay fifty per acre for the ex-
cessive twenty acres which contain none of the improvements.
The validity of the sale of the exicess in value or quantity
may depend upon the prior disseveration of that excess from
the homestead itself; If property including the homestead
be sold and conveyed by one deed, how shall it be known
what part of the object of , the contract was legally conveyed?
I Pardee v. Lindley, 31 111. 174, 187 ; 111. 70 ; Reid v. McGowan, 28 S. C. 74 ;
Barrett v. Wilson, 102 111. 302 ; Hait
V. Houle, 19 Wis. 472. ,
2 Boyd V. Cudderback, 31 111. 113 ;
Smith V. Miller, 31 111. 161 ; Coe v.
Smith, 47 III 325 ; Black v. Lusk, 69
Bank of La. v. Lyons, 52 Miss. 181 ;
Johnson v. PouIIain, 62 Ga. 376 ; Cla^rk
v. Allen, 87, Ala. 198 ; Wallace v. Har-
ris, 33 Mich. 398; Ring v. Burt, 17
Mich. 465.
406 BESTEAINT OF ALIENATION.
By what mode shall the contracting parties sever the proper
quantity, reserved under the law, from the excess? How shall
fifteen hundred dollars' worth of homestead be singled out
from the overplus so as to leave the family undisturbed in its
exact rights and privileges? Under the hammer of an official
auctioneer, the whole of indivisible property may be sold, and
the exempt part of the price handed over to the beneficiary.
But the private sale of the homestead portion being void,
there seems to be no method devised, of universal acceptance,
by which the beneficiary of a limited homestead can volun-
tarily sell real estate including it without first effecting parti-
tion.^ If 'the homestead has been marked off by metes and
bounds, and the declaration thereupon duly recorded, there
would be means, after sale of that with more land, by which
the excess could be severed from the mass, and the convey-
ance would be good as to all but the homestead,^ unless the
purchaser, in consideration of the dwelling-house and im-
provements, has been misled to give more per acre than he
would have given for the excess.
If not defrauded, and not disposed to give up his purchase
for the reason above stated, the purchaser, buying the excess
while yet intermingled with the exempt portion of acres, or
value, may resort to a court of equity to have his exact pur-
chase determined.^
In most of the states, the sale of the homestead by the
sheriff upon execution is nugatory and the title void, if the
property is not in excess of the statutory limitation of value.*
And it is generally true, that a sale by the husband, under
such circumstances, is void ; the states which have no restraint
are few. And the rule, both with regard to sheriff's sale and
private sale by the husband, is that the title given thereunder
is void when there is no excess of quantity or value in the
homestead.
A sale, with reservation of the homestead, conveys the ex-
1 Rhyne v. Guevara, 67 Miss. 139 ; Dye v. Mann, 10 Mich. 291 ; Black v,
Richards v. Chace, 3 Gray, 383. Lusk, 69 II]. 74 ; Brown v. Coon, 36
2 Winn V. Patterson, 9 Pet. !663; 111. 347; Pardee v. Lindley,' 31 10.
Danforth v. Wear, 9 Wheat. 673. 187 ; Smith v. Miller. 31 111. 161.
3 Bank of La. v. Lyons, 52 Miss. < Barrett v. Wilson, 102 lU. 302.
184; Ring v. Burt, 17 Mich. 465;
EBSTEAINT — AS TO EXCESS. 407'
cess; but that excess must be subsequently ascertained.; and,
if there be none, nothing is conveyed ; and the vendee, who
has paid the price, is entitled to have it returned to him.
When a mortgage is given on land out of which, a home-
stead is to be taken by the mortgagor, and it is reserved from
the operation of the mortgage but is undefined, the extent
of the reserved portion must be ascertained judicially before
the foreclosure of the mortgage.' Just as in case of sale,
with like reservation, nothing is mortgaged if there be no exJ-
cess above the homestead limitation; the mortgagee gets
nothing, and is entitled to have his money returned if he has
paid any on the supposed or contingent mortgage. And the
rule would be the same, if he had advanced the money under
a judicial order ; for, if he get nothing, he is entitled to have
his money back in this case as in the other. . ;
There would be no meaning in a relinquishment of the
homestead right in a mortgage given before the existence of
such right. To plead in defense to an action to foreclose
that the land is a homestead is irrelevant. The plea, to be
effective, should be that the land was a homestead when the
mortgage was given.^ For it could not be made such to the
prejudice of the mortgagee after the lien had been fastened
upon the land, in his favor. The defense, that the land was
a homestead when the mortgage was given, is the same as to
plead the invalidity of the mortgage.
A debtor mortgaged his plantation, describing it by metes
and bounds, and also describing it as consisting of two hun-
dred acres. It proved to embrace forty-two acres more, and
he claimed homestead in the excess ; but it was denied him.
It was said that the claimed portion of land was within the
boundaries described, and there was no distinct r,eservation ;
that a homestead cannot be carved out of the entire tract as
against the lien imposed by the mortgage." This case involved
no question as to the validity of the mortgage given to the
extent of two hundred acres. Had not the land been de-
scribed by metes and bounds, only the stated acreage would
have been mortgaged, and there might have been homestead
allowed in the forty-two acres of excess.
1 Adger v. Bostwiok, 13 S. C. 64. « Eeid v. McGowan, 38 a C. 74
sSymonds v. Lappin, 82 III 313.
*08 EESTRAINT OF ALIENATION.
A debtor may sell liis homestead free from liens bearing on
his other lands ; and if he sell all together, the grantee will
get an equitable title to the number of acres exempt, even
though all may have been subsequently sold, by a creditor of
his grantor, under execution. He may still have the exempt
quantity, which he bought, carved out of the whole.' The
execution sale is void, as to the homestead,* under such cir-
cumstances, while the private sale by the debtor is good,
where he is not restrained from selling alone. And where
the wife's concurrence is necessary and is given, the sale of
the homestead is good, under like circumstances.
Where the method of dedicating homestead is orfy visible
occupancy,' right of exemption begins from the date of occu-
pancy, whether there has been special selection or setting
apart of the portion exempt or not. The excess above the
limit is still alienable, and still liable for debt, and still subject
to administration upon the death of the householder if the
executor or administrator then has the homestead separated
ft-om it. If he neglects this, and the widow continues to oc-
cupy the whole, she must pay the taxes and bear expenses on
the whole.*
It seems that a wife, induced to join her husband in the
mortgage of their homestead by the promise of the mortgagee
that he would convey other property to her husband, cannot
be deprived of her homestead by foreclosure of the mortgage
when that promise has not been fulfilled. If the only consid-
eration of the note and mortgage was the promise of the mort-
gagee to make the conveyance, and he never did this or offered
to do it, he cannot enforce the collection of the note and mort-
gage upon any equitable principle. There would be no con-
sideration for the mortgage. The mortgagor ought to be
allowed to compel compliance on the part of the mortgagee;
but, not doing so, the latter ought not to be allowed to foreclose.
Where an "estate of homestead" is created by statute in
place of " homestead exemption " under a former law, an ex-
cess above the statutory limitation of homestead value is still
I Clark V. Allen, 87 Ala. 198. sperguson v. Kumber, 25 Minn.
*Ib.; Clark v. Spencer, 75 Ala. 49 ; 183 ; Barton v. Drake, 31 Minn. 899.
De Graflenreid v. Clark, 75 Ala, 425 ; * Wilson v. Proctor, 28 Minn. 13.
Hardy v. Sulzbacker, 62 Ala. 44.
EESTEAINT ■
AS TO EXCESS. 409
liable to forced sale. The provisions of the two statutes are
held virtually alike in this respect.^ So, a householder, whose
residence was worth fifty thousand dollars,'was not protected
from execution as to forty-nine thousand of its value. The
" estate of homestead " was one thousand dollars' worth of the
whole. This could be sold or conveyed by him only in the
way pointed out by the statute ; but there was no restraint
upon his alienation of the rest. He did contract to sell his
residence; and, on the purchaser's subsequent consent to ac-
cept a deed subject to homestead right of one thousand dol-
lars, the court held the transaction valid though the grantor's
wife did not sign the deed.^
A, judgment lien does not attach to a homestead sold in
good faith by its owner. But if the sale is merely colorable,
made for the purpose of acquiring a new homestead and to
enable the vendor to avail himself virtually of the exemption
of two homesteads, the lien would' attach — if the new home-
stead has been acquired not with the proceeds of the one sold.'
The right to sell is not questioned ; the point is that there
Avas no sale under the circumstances. Having bought a new
homestead, the owner could not have exemption as to that
and yet have it in the other which had not been really dis-
posed of to get means of buying the new one.
The urban homestead, where it is not limited, in area but in
value, cannot be sold on execution by the sheriff so as to con-
vey any excess. He must have the homestead laid off, and
then sell the excess. If, however, the debtor has his residence
on one side of a street, and an orchard or like property on the
other which he has rented to a tenant, the latter may be sub-
jected to execution.* i The renting of the portion subjected to
execution may be treated as an abandonment of the homestead
right in it. Even if the residence portion was not worth the
maximum which the law allows to a homestead, the other
part, devoted to other than homestead use, may be subject to
1 Watson V. Doyle, 130 111. 415, m; Carhart v. Harshaw, 45 Wis. 340, 347 ;
Moriarty v. Gait, 113 111. 377 ; Brown- Schoffen v. Landauer, 60 Wis. 334.
ing V. HaiTis, 99 111. 463 ; Eldridge v. •• Code of Miss. (1880), § 1351 ; Ehyne
Pierce, 90 111. 478. v. Guevara, 67 Miss. 139 ; Lazar v.
2 Watson V. Doyle, supra. Caston, 67 Miss. 375.
'Carver v. Lassallette, 57 Wis. 333;
410 EESTEAINT OF ALIENATION.
execution. There seems to be no reason for confining this
rule to urban homesteads.
If there are surplus proceeds from the foreclosure of a mort-
gage given by husband and wife on land in which they had
homestead right, that right attaches to the surplus, and the
court may direct these proceeds to be invested in a new home-
stead for them.i They are entitled to this as against the gen-
eral creditors of the husband.^
§ 2. Excess First Exhausted.
By the law of several states, when the homestead has been
legally mortgaged with other property, it cannot be sold till
all the rest has been exhausted ; and the mortgagor may re-
quire the enforcement of his right in this respect.' "When
homestead, with other property, is made security otherwise
than by mortgage, the same order of sale is observed.*
This requirement is made in tender and commendable solic-
itude for the preservation of homes, pursuant to the policy of
the law. If the realty, in excess of the homestead, is sufficient
to satisfy the mortgage, the creditor cannot complain of this
order of proceeding to foreclose. If a senior mortgagee has
been satisfied, and yet some of the excess remains unsold, a
junior is required to exhaust it before selling the homestead.*
And this would be required of any mortgagee, whatever his
rank, wherever this rule of law prevails.
The right of the homestead mortgagors to have other prop-
erty, included in the same mortgage, exhausted before the
homestead be sold, may be supported by reason, in the ab-
1 White V. Fulghum, 87 Tenn. 281 ; 178 ; Dickson v. Chorn, 6 la. 19 ; Fo-
Bentley v. Jordan, 3 Lea, 353 ; Fauver ley v. Cooper, 43 la 376 ; Butler v.
V. Fleenor, 13 Lea, 624. Stainback, 87 N. C. 316, SSO; Wilson
2i&.; Gilliam v. McCormack, 85 v. Patton, 87 N. C. 318, <5^^- McAi--
Tenn. 609 ; Gwynne v. Estes, 14 Lea, thur v. Martin, 23 Minn. 74 ; Horton
673. Confra, Parr V. Fumbanks, 11 v.Kelly, 40 Minn. J93; Dunn v. Buck-
Lea, 393. ley, 56 Wis. 192 ; Lloyd v. Frank, 30
3 Frick Co. v. Ketels, 43 Kas. 527 ; Wis. 306 ; White v. Polleys, 20 Wis.
La Rue v. Gilbert, 18 Kas. 220 ; Colby 530 ; Jones v. Dow, 18 Wis. 253 ; Lay
V. Crocker, 17 Kas. 527; Marr v. v. Gibbons, 14 la. 377 ; Boyd v. Ellis,
Lewis, 31 Ark. 303 ; Ray v. Adams. 11 la. 97.
45 Ala. 168 ; Bartholomew v. Hook, * Spear v. Evans, 51 Wis. 42 ; Dunn
38 Cal. 277 ; McLaughlin v. Hart, 46 v. Buckley, supra.
Cal. 638 ; Brown v. Cozard, 68 lU. 5 Armitage v. Toll, 64 Mich. 413.
EXCESS FIEST EXHATJSTED. 411
sence of any statute expressly qonfe'rring it. It is a proper
presumption,, that the husband and wife, when joining to create
a lien upon land exceeding the homestead yet including it, or
an unmarried householder when doing so, did not design to
render themselves homeless unnecessarily. If the other prop-
erty should prove sufficient to satisfy the mortgage, they
would, as a general rule, mean that their home remain undis-
turbed.
On the other hand, it may be fairly assumed that the mort-
gagee understood this. Ordinarily, a mutual understanding
to this effect would be inoperative without its expression as a
part of the agreement; but, where the homestead is involved,
both parties know the beneficent spirit of the law governing
contracts which affect it.
The exemption right is not wholly ahd certainly waived by
the hypothecation of the homestead with other property to
secure debt; it is only contingently waived; the property
only subjected to lien on the happening of a future event : the
failure of the other property to satisfy the debt. For, besides
the mortgagor and mortgagee, there is another party : the
state, whose policy is to protect homes. This qualification of
waiver may be said to exist wherever the law requires the ex-
haustion of other property before the homestead when both
have been mortgaged together, if the mortgagors require it.
Can a junior mortgagee require a senior to exhaust the
homestead to satisfy the first mortgage which rests on that
and more land, that the junior may make his money out of
the excess which is all that his mortgage covers?
A husband and wife duly mortgaged their hohaestead and
more land. Subsequently, the husband alone put a second
mortgage upon the land excepting the homestead. The senior
mortgagee foreclosed and made the junior and certain judg-
ment creditors parties to the proceeding. These parties con-
tended that he ought to satisfy his lien from the homestead
portion and leave the rest for them, to satisfy their claims.
The homestead right is such an interest as entitles the ben-
eficiary owning it to require the exhaustion of other property
of his, incumbered with it, to be first exhausted. It is such
interest in the real estate of the married householder that it
will vest in the marital survivor for life and, in the heirs of
412 EESTEAINT OF ALIENATION.
the deceased owner, forever. . It is exempt from execution tot
the benefit of the owner's family. It is alienable by the mar-
ried owners alone.^
There is a principle that a lien-holder having choice of two
funds, one of which is subject to the lien of another creditor,
ought in equity to proceed against the one upon which the
other creditor has no claim (if it be suiScient), so as to give
the lattei; a chance to make his money.
This principle cannot be invoked to the injury of the cred-
itor holding a lien on the double fund, or of the common
debtor, or (as in tliis case) of the homestead beneficiaries.^
Unless there is statutory direction, it is not an invariable
rule that the senior mortgagee must exhaust the homestead
last. It has been held that when a mortgage covers the
homestead with other lands, the mortgagee cannot be com-
pelled, by another judgment creditor, to exhaust the home-
stead first.' Though such creditor's judgment may be a lien
on land other than the homestead, out of which he could make
his money if the other creditor, holding a mortgage on that
and the homestead too, could be required to look only to the
latter, yet he is powerless to compel such course. He may
have nothing left to proceed against after the first judgment
or mortgage has been, satisfied, while the debtor retains his
homestead.
This order of procedure is statutory. The rule may he
stated thus : A mortgagee of the homestead cannot be com-
pelled by other creditors of the mortgagor to exhaust other
property covered by the same mortgage before foreclosing the
homestead, unless so required hy statute. He may exhaust the
homestead first, if he chooses ; he may relinquish his lien upon
all but that, if he chooses ; and neither the debtor himself, nor
his wife as co-mortgagor, nor any of his judgment creditors,
can control the mortgagee in this matter.*
' Comp. Stat, of Nebraska, ch. 36, s La Rue v. Oilbert, 18 Kas. 220.
§ 17 ; Bonorden v. Kriz, 13 Neb. 121. < Witherington v. Mason, 86 Ala.
2 McCreery v. Schaffer, 26 Neb. 173 ; 845 ; Vancleave v. Wilson, 73 Ala.
Colby V. Crocker, 17 Kas. 527; La 387; Seaman v. Nolen, 68 Ala. 463;
Rue V. Gilbert, 18 Kas. 220; Brown White v. Polleys, 20 Wis. 530; Chap-
V. Cozard, 68 111. 178 ; McLaughlin v. man v. Lester, 12 Kas. 593 ; Seals v.
Hart, 46 Cal. 638 ; McArthur v. Mar- Chapman, 131 Mass. 19 ; Brown v.
tm, 23 Minn. 74. Cozard, 68 la 178.
EXCESS FIEST EXHAUSTED. 413
A judgment creditor may require a homestead to be first
exhausted by a mortgagee whose mortgage covers that and
bther realty, if it was dedicated as a homestead after his judg--
ment had been obtained.'
The exempted amount in homestead cannot be claimed from
the proceeds of two tracts, one of which was not the home-
stead, after both have been sold under vendor's lien, and noth-
ing remained over from the- homestead sale.^
There is no homestead against valid liens. Proceeds, to be
exempt, must be in excess of what was required to satisfy
the lien or liens on the homestead. If, though there was no
excess of homestead proceeds, there was excess of proceeds
from the sale of the other property which was sold at the
same time, that excess would belong to the debtor, but not as
homestead proceeds. It would not be exempt upon attack by
another judgment creditor.
"When, on the foreclosure of a mortgage, the debtor's land
was first exposed to sale in separate tracts but had no bid,
and then the whole including the homestead was sold to-
gether, .it was held that the law requiring the exhaustion of
other lands before the homestead had been observed by the
first offering.'
' Bowen v. Barksdale, 33 S. C. 142 ; void because the sheriff sold a part
State Bank v. Harbin, 18 S. C. 435. of the homestead in satisfaction of
2Ha,yden v. Robinson, 83 Ky. 615. an execution for which the home-
3 Brumbaugh v. Shoemaker, 51 stead was not in any event liable. In
Iowa, 148 ; 50 N. W. 493. Eothrock, this case the homestead was liable
J. : " 1. The counsel for appellant in after exhausting the other land em-
their argument say : ' No claim is braced in the decree of foreclosure,
made that the homestead was ever In White v. Eowley the execution
platted or recorded by the sheriff, was for a debt contracted after the
The fact that the sheriff offered the homestead right accrued. The home-
one hundred and sixty acre tract in stead was in no event liable for the
forties, ending with that on which debt. There was a dispute as to the
Brumbaugh lived, and received no boundaries of the homestead. The
bid, is claimed to have been a sub- plaintiff attempted to make a selec-
stantial compliance with the statute.' tion different from the government
In answer to this proposition, coun- subdivisions, and claimed that the
sel cite us to Linscott v. Laraart, 46 sheriff levied upon and sold pai-t of
Iowa, 313, and White v. Rowley, id. the homestead. Under these circum-
680., These cases are not analogous stances, it was held that it was the
to the case at bar. In Linscott v. duty of the sheriff to have caused the
Lamart it was held that the sale was homestead to be platted. It will be
4:14 BESTEAINT OF ALIENATION.
§ 3. Sale of Interests in Homestead Property.
Eeal estate, jointly owned by one Parks and his son, and
occupied by the former and his wife to the time of his death,
had been conveyed by the joint owners to a daughter of
Parks, though the wife did not join in the conveyance, and
though he remained in possession. Upon the death of both
parents, the daughter conveyed to one Bolton. Meanwhile,
creditors of Parks' sons had obtained judgment against them.
Bolton knew of this judgment when he bought the property,
and of the occupancy of the homestead by Parks, after selling
to his daughter, to the time of his death.
Bolton brought an action in equity, against the judgment
creditors, to quiet his title. It was held that Parks' undivided
interest in the homestead property was not conveyed to his
daughter, because his wife did not join in the conveyance;'
that the creditors, as judgment lien-holders, had the right to
question the conveyance, though Parks' heirs had not done
so ; that his undivided interest had descended to his wife and
children; that the judgment was a lien on the shares of the
two sons who were the judgment debtors; that those shares
observed that the plaintiff in that separate ti-aets, and endeavoring
case supposed that the selection he thus to sell before offering and selling
had made was valid, and there was a in a body, was exhausting the other
dispute as to what constituted the property, within the meaning of sec-
homestead. In the case at bar there tion 2281 of the revision. The same
was no dispute. The plaintiff avers rule was followed in Eggers v. Red-
that a certain quarter of the quarter wood, 60 Iowa, 389. We are content
section was his homestead and that with the reasoning and the conclu-
defendant knew it when he made sion reached in those cases, and are
the purchase. It is not a case where not disposed to overrule thern. What
the boundaries of the homestead were we hold is that the sale is not void,
in dispute. The precise question pre- and cannot be set aside upon the aver-
sented in this case was determined in ments made in this petition. Whether
Burmeister v. Dewey, 27 Iowa, 468, the sheriff would be liable in a prpppr
where it was held that a sheriff's sale proceeding for a misapplication of a
in foreclosure of a mortgage should part of the purchase-money we do
not be set aside where the sheriff not determine, because he is not a
first offered the land in forty-acre party to this action, and no relief is
tracts, according to the government asked against him. AflSrrhed."
subdivisions, and, receiving no bids, ' Iowa Code, § 1990 ; Belden v.
then offered and soldi the whole of Younger, 76 la. 567 ; Barnett v. Men-
the lands, including the homestead, denhall, 42 la. 296 ; Alley v. Bay, 9
It was there held that offering the la. 509.
lands other than the homestead in
SALE OF INTBEESTS IN HOMESTEAD PEOPEETY. 415
had been rightfully sold under execution to enforce the judg-
ment; and that Bolton, being chargeable with knowledge,
was not an innocent purchaser as to those shares, and there-
fore could claim no priority over the judgment creditors.'
The professional reader will perceive that this deliverance
recognizes that homestead right may exist in property held
by joint-tenancy. In states where this cannot be, such a
transaction as that detailed above would have a different legal
result. The sale by Parks and his son would have conveyed
the whole property to the daughter ; the sale by her to Bolton
would have given all to him, and his suit to quiet title would
have prevailed.
A verbal agreement for the transfer of a homestead, assented
to by both husband and wife, followed by giving possession
and performing the agreement, has been held to convey equi-
table title.^ And when a father had thus agreed with his son
and given him possession, and promised to pass legal title
to him by his last will, the equitable title was held to have
been passed, though the father revoked the bequest by a codi-
cil to hjs will. The son had died, the equitable title was judi-
cially recognized as being in his widow and children, notwith- •
standing the revocation of the devise.'
The sale of a homestead, by mortgage foreclosure to which
the defendant's wife was not made a party, was held not to
pass title, even to the half interest owned by him at the time
of the incumbrance. The ruling was avowedly in deference
to a prior decision, " without reference to our individual views
upon the matter," the court said.^
A conveyance of land, embracing the homestead and more
realty, though signed by the wife and acknowledged by her
in proper form, fails to transfer the homestead if the convey-
ance expressly states that she joined her husband therein
" solely for the purpose of relinquishing her dower interest in
the land." Under the following statutory provision : " When
1 Bolton V. Oberne, 79 la. 278, dting ' Winkleman v. Winkleman, 79 la.
the foregoing cases on the point of 319.
the wife's non-joinder ; and, on the * Thompson v. Jones, 77 Tex. 686,
last point, Lunt v. Neely, 67 la. 98. referring to a case between the same
2 Drake v. Painter, 77 la. 731. parties, 60 Tex. 9^ ; and citing Camp-
bell V. Elliott, 53 Tex. 151.
il6 EESTEAINT OT ALIENATION,
the homestead, after being reduced to the lowest practicable
area, exceeds two thousand dollars in value, and the husband
has aliened the same by deed, mortgage or other conveyance,
without the voluntary signature and assent of the wife, shown
and acknowledged as required by law, the husband, or, if he
fails to act, the wife, or if there is no wife, or she fails to act,
his minor children, may, by bill in equity, have the land sold,
and the homestead interest separated from that of the alienee,"
it was held that such conveyance, by the husband alone, vested
in the alienee no title of the homestead interest of two thou-
sand dollars.'
Eefore the above provision was enacted, no means existed
for carving a homestead, or saving its value, out of property
worth more than the monetary limit yet indivisible: so a
homestead thus circumstanced was deemed beyond the pale
of constitutional protection, and a married owner could alien
the whole without bis wife's joinder.^
The method prescribed by the section quoted is sale of the
whole realty by order of court to reserve from its proceeds
the sum protected as exempt in lieu of the homestead. The
purchaser gets good title to the whole, including the home-
stead, without the wife's signature, when the sale is under
such order. The husband has the primary right to receive
the sum reserved.'
A deed made by the husband alone conveys any excess of
realty above the homestead interest. If he file a bill to en-
force his lien on the whole of land which includes the home-
stead, the court acquires jurisdiction of the subject-matter.
If it also has jurisdiction of the parties, it may require the
complainant to do equity ; and so may order a sale of the land
and award two thousand dollars of the proceeds to the hus-
band as his homestead interest. The court may do this instead
of abating the purchase-money by two thousand dollars and
decreeing the sale of the excess for the payment of the bal-
ance. The former is deemed the better course and the more
equitable, since it saves the parties from the expense, delay
1 Thompson v. Sheppard, 85 Ala. Feb. 9, 1877 ; Long v. Mostyn, 65 Ala.
611, 617; Moses v. McClain, 83 Ala. 543.
870 ; Ala. Code (1886), § 2538 j Act of 2 Farley v. Whitehead, 63 Ala. 295.
' Thompeon v. Sheppard, supra.
ASSIGNMENT OF HOMESTEAD. 417
and inconvenience of another bill for the resale of the land to
separate the homestead interest from that which is not ex-
empt.^
§ i. Assignment of Homestead.
The exemption right to a certain sum from the proceeds of
a family residence sold under execution for debtis not an as-
signable interest. The husband alone may mortgage or sell
the property in which this interest of the family exists, but
cannot extinguish the interest by such act where the statute
authorizes the carving of a homestead of the limited value,
out of the property subject to that right and interest. The
husband and wife together may yield their right by waiver
but he alone cannot.^
When there had been judgment rendered against a wife,
the owner of a homestead enjoyed by herself and her hus-
band, she conveyed it by assigning her contract to purchase
it. He did not join in the assignment, but both joined in
abandoning the premises to the assignee. The judgment lien
was held valid against the property — the assignment being
absolutely void.'
The mortgagor should be made a party defendant, in fore-
closure proceedings, though he has made an assignment yet
claimed his homestead on which the mortgage rests. The
assignee cannot represent him, unless the mortgage was ac-
knowledged according to the statute of the state where the
homestead was situated.*
Where notice is required, creditors not notified or included
in the list of creditors filed in the probate court when home-
stead is assigned out of lands levied upon are not affected by
the assignment. As to them, the proceedings setting the
homestead apart are void.* The court remarked in a case in-
volving this requirement : " It was said in the argument that
the wife of a debtor is not supposed to know aU his creditors.
1 16. * Dendel t. Sutton, 20 Fed. 787 (Ct
2 Bennett v. Cutler, 44 N. H. 69 ; Ct, S. Dist niinois) ; Swenson v. Hal-
Atkinson V. Atkinson, 37 N. H. 434; berg, 1 Fed. 444.
Gunnison v. Twitchell, 38 N. H. 73. 5 Wheeler v. Christopher, 68 Ga.
»Belden v. Younger, 76 la. 567. 635; Boroughs v. White, 69 Ga. 843.
See Morehead Banking Co. v. Whit-
aker(N. C.),.14S, E934.
27
•418 BESTEAINT OF ALIENATION.
But she must know them if. she wishes to bind them. In
taking homestead, slje represents her Ijiushapd- She hg,s ofljy
his right, and must comply with the law just as he Mrould,
have to comply with it did he make the application in person." '
Exempt property may be excepted by t^e debtor frojn a
general a^signinent,^ It has been h«ld, that it mfty, be thus
excepted and claimed by the assjgjjor, though he may hav^e
waived, his right ip f^-ypr of, a preferred creditor,'
If his hpmestqad is undpr mortgage;, the cla,ini,of, exemption
cannot be ma,de hjtlae n;iQrtg3.gee, bHtit may l)^, made by the
mortgagor who makes the general a^sigpment.* His hoine-
stead right is subject tO the Hiprtg^ge, and, tha,t, right may be
assigned.
An assignment to creditors, from which a homestea,d with
more than the liniit is excepted, dpes not convey the excess
to the assignee.' T,his is sjmply because the excess was not
assigned. It will i be observed that the word h(>p^este§d aa
used aboye is employed, in the ordinary ^ — not the technical
sense. The assignee did not, in^rely rpserve his legally re-
stricted and exempt, family reside,nce, but his ffimily residence
unrestricted. Had he exempted his homestead, in t^e s^nse
in which the word is usually understood, as a legal; term, the
assignment would have conveyed the excess.
An insolvent's homestead, so far as it is liable for debts
contracted before it was dedicated, passes to the, assignee,
who may validly convey it. Should the conveyance be suh^
ject to the homestead right, that qualification will.be under-
stood as meaning any right against the order of assignineint.'
An ins,9lvent's " assignment, with his homestead right re-
served, creates no lien on a homestead set Otttifflr.hini before
judgment, tlioug^^ the legal tjtle of ,tjiat:has pass.ed to the as-
signee with title to the rest of the property assigned. The
debtor, howevpr, cp-n qonvey to a, purchase^ only his ,equitftble
interest aftejr tjie spt);lement of the assignee's trust.'.
Homestead exemption, considered as a personal' privilege,
1 Stewart v. Stisher, SSGa. 297-9. swilhoit v. Bryant, 78 Cal. 263.
■^ Hartzler v. Tootle, 85 Mo. 23, dis- ^ Tilden v. Crimmins, 60 Vt 546 ;
tinguishing Billingsley v. Spencer, 64 CoUender Co. v. Marshall, 57 Vt 332;
Mo. 355 ; McCord v. Moore, 5 Heisk. 734. Vji R. L., §§ 1901, 1920.
3 Re Poleraan, 5 Hiss. 526. 'Schuler v. Miller, 45 O. St 325.
* Edmondson v. Hyde, 2 Saw. 218. See Halsey v. Whitney, 4 Mason, 306.
OONVETANOB STEIOTLT 00N8TEUBD. 419
is not an assignable estate and does mot run with the land. It
is a possessory right which may be waived or abandoned.'
Before accepting any benefit of an assignment by the debtor
in which he has reserved his right of homestead, a creditor
may contest that right.''' It is otherwise, if the creditor has
accepted without objection to the reservation.
§ 5. Conveyance Strictly Construed.
The homestead can be conveyed, and the exemption liight
barred, only upon strict conxpliance with the terms of the
law.' While an absolute sale in good faith by husband and
wife may be valid under the constitution and laws of a state,
executory agreements to sell, and sales containing conditions
of defeasance, have been treated as nullities.*
When the cqnstitution of a state prohibits the forced- sale
of a homestead, one holding a. mor,tgs.gp on such. property
cannot go into a federal court and, by action of ejectment,
"get around the state constitution by the form, of his proceed-
ing." ^
The mortgage, if vahd, cannot be. rendered, nugatory with-
out affecting the vested rights of the mortgagee. E^o doubt,
by constitution or statute, the mortgaging of- a homestead
may be inhibited. Then the forced sale under mortgage, ma}'
be forbidden — the mortgage itself being, void.. But if the
mortgage, or any other lien, rested on the land before the
homestead character attached to it, why may it not be en-
forced anywhere?
iSphuJer v. Miller, 45 O. St 330; Tenn. Ch. 606 ; Connor v; McMurray,
McCombv. Thompson, 43-0. St 139; 2 Allen, 202; Fisher v. Meistei-, 24
Eoig V. Schultz, 43 O. St 165 ; Car- Mich. 447.
penter v. Warner, 38 O. St 416 ; Chil- * An executory agreement to sell
cote V. Conle.y, 86 O. St 547 ; Butt v. the homestead at a future time is
Green, 29 O. St.i 667 ; Conley v. Chil- void in Texas. Jones ■-'. Goflf, 63 Tex.
cote, 25 O. St ,334.. 348 ; Hardie^v. Oamphell, 63 Tex. 392..
2Creager v. Creager, 87 Ky. 449. But by the latter decision an abso-
' Dickinson v. MoLane, 57 N. H. 31 ; lute sale by the husband and wife is
Barnett v. Mendenhall, 42 la. 296; valid — not coming under the con-
Blaokiv. Lusk, 69111. 70; Vanzant v. stitution'al inhibition of "pretended
Vanzant;.33 111. 485; Ives v. Mills, 37 sales" involving a "condition of de-
111.73; Moor« V. Titman, 33 111. 360; feasance." And see AstugueviHe. v.
Connor v. Nichols, 31 111. 148 ; Cross Loustaunau, 61 Tex. 283;
V. Evarts, 38 Tex. 533; Moore v. Duur 'Lanahan v. Sears, 102 0. S. bit;,
ning, 39 111. 130 ; Hoge v. HoUister, 3
45JO EESTEAINT OF ALIENATION.
"When a homestead is illegally mortgaged, the invalidity is
not cured by the subsequent abandonment of the homestead
by both the marital parties. Eemoval of both from the prem-
ises will not render the conveyance valid which was void
when executed for want of the wife's joining in the deed.'
As such conveyance is a nullity, it will be no bar or estoppel
to the action of husband and wife in subsequently executing a
valid deed.^ The radical defect in the husband's sole deed
would not be healed by his wife's subsequent death.'
It has been questioned whether the wife's desertion of her
husband relieves from the requirement of a constitution that
the mortgage of the homestead of a husband and wife must
be signed by her to give it validity.' The question depends
upon a prior one : Is she still his wife, and constructively a
member of his family and a beneficiary of the homestead pro-
vision? If she never lived with him, it is held that he alone
may sell.' ,
Both a mortgage and a sale, by the husband alone, may be
good in part and bad in part. His sole disposition of the
homestead, in either way, would be wholly bad ; but there
might be other land sold or mortgaged with it that would be
validly conveyed by him. The nullity, as to the homestead,
does not extend to the conveyance of other lands in the same
instrument, not requiring the wife's signature in their aliena-
tion.'
Though the wife may claim to have sig;ied a mortgage of
the homestead in ignorance of the fact that the description of
land, in the instrument, included it, she will be held to her
act, in the absence of fraud or of anything said or done by
the mortgagee to mislead her.'
"Whether a sale under a mortgage is a " forced sale " has
been thought to depend upon the question whether it is ju-
dicially done or otherwise. "When a mortgage was foreclosed
1 Phillips V. Stauch, 30 Mich. 369 ; 704 ; Stanton v. Hitchcock, 64 Mich.
Bruner v. Bateman, 66 la. 488 ; Lunt 316.
V. Neeley, 67 la. 97. « Hanchett v. McQueen, 32 Mich.
2 Dye V. Maun, 10 Mich. 291; 22; Smith v. Eumsey, 33 Mich. 188;
Amphlett V. Hibbard, 29 Mich. 298. Griffin v. Johnson, 37 Mich. 92 ; Ste-
' Shoemaker v. Collins, 49 Mich, venson v. Jackson, 40 Mich. 702;
697 ; Larson v. Reynolds, 13 la. 579. Dye v. Mann, 10 Mich. 391 ; Wallace
* Martin v. Piatt, 64 Mich. 639. v. Harris, 33 Mich. 380.
» Black V. Singley (Mich.), 51 N. W. JPeake v. Thomas, 39 Mich. 585,
CONTBTANOB STEIOTLT (X)N8TETTED. 421
by order of court, the sale was deemed f forced, one ; when
the sale was by the mortgagee, pursuant to authorization in
the instrument, it was held not to be a " forced sale," such as
had been inhibited by the constitution and statute of the state
where the distinction was made at the time the decisions
making it were rendered.'
The distinction is thus drawn and illustrated : Forced sale
is alienation against the presumed will of the debtor ; so a
mortgage, containing the mortgagor's assent to alienation,
may be foreclosed without violating any inhibition of the
forced sale of the property hypothecated, though it be a
homestead.^
The mortgage of a homestead made by both husband and
wife, regular in all respects except a defect in the description
of the property conveyed, is susceptible of subsequent correc-
tion. It is not to be treated as void 'hj creditors or any per-
sons antagonistic to the conveyance. It precludes the attach-
ment or execution of the property in disregard of it as a valid
transaction. The defect may be corrected just as a convey-
ance from a person not married may be under like circum-
stances.'
An equity court will correct evident errors of description,
admitted to be such by both parties when the conveyance is
by husband and wife, of property including their homestead.*
An absolute deed cannot be reformed into a mortgage to pro-
tect a wife's homestead, though alleged to have been intended
and understood to be one by both husband and wife when con-
vej'ing.'
If the property sold by husband and wife includes their
homestead, it has been held that their right to enjoy the priv-
1 Jordan v. Peak, 38 Tex. 439 ; ' Bej'schlag v. Van Wagoner, 46
Stewart v. Mackey, 16 Tex. 58 ; Samp- Mich. 91.
son V. Williamson, 6 Tex. 103. Sim- ^ Gardner v. Moore, 75 Ala, 394i
ilar distinction was made in Illinois. And generally, as to error of descrip-
Wing v. Cropper, 35 111. 264 ; Smith tion : Carper v. Munger, 63 Ind. 481 ;
V. Marc, 26 Ul. 155; Ely v. East- Houx v. County of Bates, 61 Mo. 391.
wood, 26 III. 108. Contra: Leonis v. Lazzarovich, 55
2 Hart V. Sanderson's Adm'r, 18 Cal. 53 ; Martin v. Hargadine, 46 lU.
Fla. 108, 115 ; Patterson v. Taylor, 15 333.
Fla. 337. Mortgage of the home- 5 Harnett v. People's Bank, 65 Ga
stead by husband and wife is al- 51; Act (Ga.) Dec. 13, 1871 :" To pro-
lowed in Florida. First N. Bank y. vide for sales, etc."
it*hmead, 33 Fla. 379.
4'32 RESTHAINT OF AX.IENAn0N.
ileges secured to them by law must be expressly conveyed by
apt words or it will be presumed to have been reserved.'
There is no universally established rule that without ex-
press mention and waiver of the homestead right it will be
deemed reserved. A warranty deed made by the husband
and wife, and duly executed in all respects, is not everywhere
deemed insufficient to release an unmentioned homestead
right. The doctrine ought to be entertained and acted upon
with caution, by the profession, even where the courts have
avowed it. The doctrine has been denied.^
" The power of alienation is not derived from the statute
relating to alienation of the homestead. It is an incident of
the ownership of the property, independent of the homestead
law; and the directions and prohibitions Of the statute as to
the alienation are mere restrictions upon this antecedent
power. Without any such restrictions, the property pass6s
by a conveyance, as if there were no homestead. 'So express
waiver of the homestead is essential, unless the statute re-
quires it, because, the property having passed by the convey-
ance, the homestead necessarily ceases." '
An instrument, signed by both spouses, need not state that
the property conveyed is the homestead, since such averment
is not necessary to the validity of the conveyance.*
The necessity of the joinder of both is not obviated by the
husband's conveyance to the wife, and hers subsequently to a
third person,^ though his to her would be good as to title.^
The wife's sole signature to the transfer of the homestead
right is very different from such individual action to relin-
quish dower.'
1 eonnor v. MoMurray, 3 Allen, 202. s Note by Mr. Freeman to Pool v.
See Greenough v. Turner, 11 Gray, Gerrard, 65 Am. Dee. 482.
333 ; Eedfern V. Eedfern, 38 111. 509 ; ^Babcock ,v. Hoey, 11 la. 375;
Boyd V. Cudderback, 31 111. 113 ; O'Brien v. Young, 15 la. 5 ; Reynolds
Thornton v. Boyden, 31 111. 200 ; v. Morse, 53 la. 155 ; Van Sickles v.
Smith V. Miller, 31 111. 157 ; Patterson Town, 53 la. 359 ; Waterman v. Bald-
V. Kreig, 39 111. 514 ; Miller v. Marckle, win. 68 la. 255.
37 111. 405 ; Hodge v. Hollister, 3 Tenn. » Spoon v. Van Fossen, 53 la. 494
Cb. 606. - 6 Harsh v. Giffin, 73 la. 608. See
2 Waterman v. Baldwin, 68 la. 355 ; Luther v. Drake, 21 la. 92, rendered
O'Brien v. Young, 15 la. 5 ; Babcock under another statute.
V. Hoey, 11 la. 375 ; Bobbins v. Cook- "Sharp v. Bailey, 14 la. 387 ; Fuller
endorfer, 10 Bush, 629 ; Wing v. Hay- v. Hunt, 48 la. 163 ; Wilson v. CUiris-
den, 10 Bush, 280. tophen, 53 la. 481 ; Eisenstadt v. Cra*
wife's AckKOWLEBGMENT — HOW OONSTKUED. 423
§ 6. Wife's Acknowledgment — How Construed.
Courts strictly recjuirfe the observance of the' law respecting
the Wife's examination and acknowledgment apart from her
husband, while they readily lend the ear to her subsequent
com'plaints of duress, fraud and undue influence.'^ But the
rule is not to be pressed to the point of injustice.^ The wife's
signature to a sale or mortgage must be her free act. Pro-
cured by duress, it is of no validity.' I'he effect is the same
if she sign when insane, or wanting in mental capacity so
as to prevent her frbm acting with free and intelligent voli-
tion,^ though there may be circumstances under which the
rights of an innocent mortgagee will be maintained.*
The wife's signature is not essential to an agreement to con-
vey property fraudulently acquired as a homestead.* If not
validly acquired, and hot a homestead, the exemption provis-
ions do not apply : so, if the property fraudulently acquired
is susceptible of sale, the husband alone may sell. And if the
property was lawfully acquired, yet the homested,d character
fraudulently created, he alone may sell.
"When her- signature has been obtained by fraud practiced
upoti her by her husband, she may repudiate the act provided
the rights of the other contracting party are not infringed.
But it has been held that the fraudulent inducement and de-
ceptive statements of the husband to the wife will not militate
against the rights of an innocent grantee or mortgagee when
the wife has actually signed the instrument.' On such points
as this, the practitioner must look to the statutes and judicial
rulings of his own state, since no general rule can be stated.
There can be no doubt, however, that if the other contracting
party is privy to the fraud practiced by the husband upon the
wife, she may have the deed set aside.
mer, 55 la. 753. Compare Reynolds stienne v. Schnoor, B3 Mich. 274 ;
V. Morse, 52 la. 155. Lawyer v. Slingerland, 11 Minn. 447.
1 First N. Bank v. Bryan, 62 la. 42; 3 First Nat. Bank v. Bryan, 63 la.
Westbrook v. JefEers, 33 Tex. 86; 43.
Cross V. Everts, 28 Tex. 533 ; Nichols * Alexander v. "Vennum, 61 la. 160.
▼. Nichols, 61 Vt 426 ; Helm v. Helm, 6 Abbott v. Creal, 56 la 175.
11 Kas. 19. 6Muir v. Bozdrth, 44 la. 499.
2 Morris v. Sargent, 18 la. 90 ; Nor- " Edgell v. Hagens, 33 la 223 ; Van
ton V. Nichols, 35 Mich. 150; How- Sickles v. Town, 53 la. 2^9; fetnai
424 EESTRAINT OF ALIENATION.
A conveyance, in which the grantor and grantee design to
defeat the interest of the wife in the estate of her husband, is
void as to her interest. Such design is presumed when the
contracting parties linow that the effect of the conveyance
would be to deprive her of her right, were it valid. The ip-
validity is not avoided by the fact that there was a valid con-
sideration.*
Under the inhibition of the " mortgage or the alienation of
the homestead . . . without the voluntary signature and
assent of the wife," ^ it is held that an instrument of convey-
ance, duly signed, sealed and acknowledged, but inoperative
for non-delivery, cannot be enforced as to the homestead, but
may be, as to the husband, in equity proceeding, treating the
instrument as a contract to convey.^
If the wife's signature to a deed by her husband, for the
relinquishment of her dower, be attested by two witnesses,
though it be hot separately acknowledged where the statute
requires separate acknowledgment by her in assenting to the
conveyance of the homestead, it will prove effectual to val-
idate the conveyance upon the abandonment of the homestead
and the acquisition of another one before the delivery of the
deed to the grantee.*
Life Ins. Co. v. Franks, 53 la. 618 ; wise, 4 Johns. 536 ; Holland v. Cruft,
Sawyer v. Perry, 62 la. 338 ; Miller 20 Pick. 321.
V. Wolbert, 71 la. 539 ; Rubelman v. 2 So in Const of Ala., art X, § 2.
Rummel, 72 la. 40. 'Jenkins v. Harrison, 66 Ala. 345,
1 Nichols V. Nichols, 61 Vt 426 ; and cases cited.
Ladd V. Ladd, 14 Vt 194 ; Thayer v. * This under Alabama Code, §§ 1894,
Thayer, 14 Vt 118 ; Jenny v. Jenny, 2508, as construed in the case of
24 Vt 324 ; Jones v. Spear, 21 Vt 426 ; Woodstock Iron Co. v. Richardson
Prout V.Vaughn, 52 Vt 451; McLane (Ala.), 10 So. 144 Coleman, J.:
V. Johnson, 43 Vt 49; Edgell V. Low- "When this case was before the
ell, 4 Vt 405 ; Van Wick v. Seward, court at a former term, it was held
18 Wend. 385-7 ; Cunningham v. that a conveyance of the homestead,
Freeborn, 3 Paige, 557 ; Habergham in all respects eflectual for that pur-
V. Vincent, 2 Vesey, Jr. 204 ; Read pose, except that it was not acknowl-
V. Livingston, 3 Johns. 500 ; Hyslop edged by the wife as required by
V. Clarke, 14 Johns. 458, 465 ; 1 Story, law, was a nullity ; and that a proper
Eq., § 639; Bump's Fr. Cov. 282-3; acknowledgment made by the wife
Schouler, Ex. & Adm'rs, § 220 ; Nich- after the death of the husband did
ols V. Nichols, supra; Bassett v. not defeat or affect the title of the
McKenna, 52 Vt 438; Robinson y. heirs. This conclusion necessarily
Stewart, 10 N. Y. 189 ; Sands v. Cod- resulted from well-settled principles
WIFE S ACKNOWLEDGMENT — HOW CONSTEUED.
425
The signature of the wife to a mortgage, or any species of
alienation, is inoperative to divest her of her home protection,
when obtained by fraudulent misrepresentations by which she
was Induced to sign the instrument. Even though she is in
of law, as declared by repeated de-
cisions of this court, and many of
them being referred to in the opinion.
Richardson v. Iron Co., 90 Ala. 268 ;
8 South. Rep. 7. The question pre-
sented on this appeal was not con-
sidered in that opinion, and could
not have arisen from the evidence as
then stated in the record. The un-
disputed facts, as they appear in the
present record, show that the instru-
ment was signed and dated and
properly attested by two witnesses,
but not acknowledged by the wife in
the manner required by law for the
conveyance of a homestead, and a
few days prior to its delivery to the
grantee. That, at the time it was
signed, dated and attested, the
grantor and his wife occupied as a
homestead the land described in the
instrument The testimony further
shows that at that time the husband
and owner of the land contemplated
and was preparing to change his
homestead, and a few days there-
after actually removed to and occu- ,
pied another and different place as
his homestead. The evidence further
shows that, prior to his removal, the
grantor and grantee were negotiat-
ing for the sale and purchase of the
land then occupied as a homestead,
and, in pursuance of the understand-
ing between them, the instrument
was prepared, signed, dated and duly
attested, as above stated. The evi-
dence further shows that the grantor
retained the instrument in his own
possession and under his control
until he had acquired a new home-
stead. That subsequent to his re-
moval to the newly-acquired home-
stead the purchase-money was paid
for the premises conveyed, and the
deed, without the acknowledgment
by the wife, delivered to the grantee.
These facts are not controverted,
' Delivery is essential to give effect to
a deed ; . . . that, though signed,
attested or acknowledged, so long as
the grantor retains control over it, —
so long as he does not part with it, —
with the purpose that it shall inure
to the grantee, title will not pass
from him.' Jenkins v. Harrison, 66
Ala. 356 ; Elsberry v. Boykin, 65 Ala.
340. A deed or other writing only
takes effect from its delivery. Stiles
V. Brown, 16 Vt 565. A deed duly
signed and dated, but delivered at a
subsequent date, takes effect only
from the date of delivery , and the
delivery cannot relate back, so as to
vest title from the date of the deed.
Mitchell V. Bartlett, 51 N. Y. 453.
Notwithstanding there is a written
date, the true date may be shown by
extraneous evidence, even in the
most solemn instruments, as deeds
under seal. Lee v. Insurance Co., 6
Mass. 319. The deed only takes effect
from the actual time of its delivery,
and the actual date of delivery will
always control the date mentioned in
the deed. Tied. Real Frop., § 812 ;
Smith V. Porter, 10 Gray, 66 ; Newlin
V. Osborne, 67 Amer. Dec. 268. Ac-
ceptance by the grantee is essential
to pass title from the grantor and to
the validity of the deed. Tied. Real
Prop., §814; 66 Ala. 356, st«pm. The
writing and signing a note on Sun-
day is not the execution of it on that
day, unless it be delivered on that
day to the payee ; delivery being es-
sential to make it operative as a con-
tract If delivered on a subsequent
426 BK8TEAINT OF ALIENATION.
fault for not reading before Signing, there may be circum-
stances under whidh she Should vX>t be held to an agreement
thus evidenced : as when the notary before whom the act was
acknjowledged Was himself the inducer, !for his own benefit.'
" A mortgage of the homestead, to be of any Validity, re-
quires that the ' joint consent ' of both the hUsband and wife
should be given thereto ; and this consent must not be brought
about by any fraud, deception, or misstatement of any mate-
rial facts by the other party to the alienation, but must be the
voluntary and intelligent consent of both the husband and
wife."^ And her consent must be in writing.' And if she
has failed to assent, and the mortgage was fraudulently given
by the husband, she cannot make it valid by a subsequent act, .
since proceedings that are criminal cannot be ratified.*
A wife cannot be bound by any mortgage, assignment or
contract of any sort whifch deprives her of that home protec-
tion which the law vouchsafes to her in providing that her
residence (within restrictions as to quantity or value, or both)
shall be exempt from forced sale for debt. ISTo lien can be
created or enforced against such home, against her will, though
she may have no legal title in or to the property. Her hus-
band cannot change the ohafacter of any validly existing lien,
or the rank of a mortgage, by his contract, nor re-create a lost
lien, unless he do so jointly with her, or with her consent.'
One buying a homestead of a husband and wife gets good
day, not Sunday, it takes etteot as a' a gobd title. Keversed and re-
valid instrument from the day of de- manded."
livery. Flariagail v. Meyer, 41 Ala. i Warden v. Eeser, 38 Kas. 86, in
135. It is legally impossible to have which the following cases are distin-
two homesteads at the same time, guished: Roach v. Karr, 18 Kas. 534;
Boyle V. Shulman, 59 Ala. 569. If Ort v. Fowler, 31 Kas. 478. Nor when
tlie wife had died after the husband induced by violence. Helm v. Helm,
acquli-ed a new homestead, and be- 11 Kas. 19.
fore the delivery of the deed, accord- 2 Bird v. Logan, 35 Kas. 228.
ing to all the prilicipl6s of law cited ' Jetikins v. Siminons, 37 KaS. 496.
in the foregoing authorities, the deed * Howell v. McCrie, 36 Kas. 636.
took effect from the day of its de- ^ Jenkins v. Simmons, 37 Kas. 496 ;
livery, llie principle involved in the Spencer v. Fi-edendall, 15 Wis. 666 ;
present appeal is vitally different Campbell v. Babcook, 27 Wis. 512;
from that adjudicated on the foi'mer Barber v. Babel, 36 Cal. 11 ; Snell v.
appeal. Under the facts stated we Palmer, 12 Bradw. 337 ; Tolman v.
do not doubt the purchaser received Leathers, 1 licCrary, 329 • Anderson
V. Culbert, 55 la. 233.
wife's acknowledgment — HOW CONaXEUED. 427
title though apprised of the fact that the husband alone has
previously sold it.' But under such circumstances, as under
any othef, the wife iflilst sign the deed, since her verbal as-
sent to the sale or incumbrance of the common homestead is
fieV(3r of any force or effect.^
A chancery court will not specifica,lly enforce, as an exec-
utory agreement to convfiy, a conveyance by husband and
wife (3f their homestead, Whfeil th'e certificate of acknowledg-
ment is substantially defective, drt the averment that the ek- j
amination arid acknowledgment were rightly made but not so
certified by the oflBcer. Nor will such court t-eform a certifi-
cate OB sudh Showing. The wife's interest is hot conveyed.'
Biit a mistake may be t-eformed by such court, when the exe-
cution of the mortgage is regular, yet there is an error of
boundary description duly proven.*
A substantial compliance with the requirement that the
wife be eiamihed apart from her husband, shown by the cer-
tificate, will suffice. If it is certified that she signed volun-^
tarily without constraint or threat on the part of her husband,
the certificate may be received as sufficiently formal.'
1 Garlock v. Baker, 46 la. 334. craft, 36 O. St 584 (see Warrall v.
2 Donner v. Redenbaugh, 61 la. Kem, 51 Mo. 150) ; Gibb v. Rose, 40
269 ; Stinson v. Richardson, 44 la. Md. 887. Code of Alabama, section
■ 373 ; Clay v. Richardson, 59 la. 483 ; 1894, provides that, when a wife re-
Anderson T. Culvert, 55 la. 233 ; linquislies her dower, " her signature
Clark V. E-frarts, 46 la. 248. But it milst be attested by two witnesses,
was held that ratification, where ... or acknowledged by her,"
there are defects of forna, may be etc. Section 2508 provides that an
either express or presumed from acts, alienation of a homestead by a mar-
SpaSord v. Warren, 47 la. 47. ried man shall not be valid " without
3 Cox V. Holcomb, 87 Ala. 589 ; Ala. the voluntary signature and assent
Code (1886), § 2508 ; Balkum v. Wood, of the wife, which must be shown by
68 Ala. 643 ; Jenkins v. Harrison, 66 her examination, separate and apart
Ala. 345 ; Blythe v. Dargin, 68 Ala. from him, and prescribes the form of
370; Scott v. Simons, 70 Ala. 854; the certificate of her aoknowledg-
Gardner v. Moore, 75 Ala. 394 {see ment.
McBryde v. Wilkinson, 29 Ala. 663) ; * Witherington v. Mason, 86 Ala.
Stovall V. Fowler, 72 Ala. 77 ; Allen 845. See Daniels v. Lowry, 96 Ala,
V. Kellam, 69 Ala. 442; Watson v. 519; Code, § 2508.
MancilL 86 Ala. 600 ; RusseU v. Rum- « Homer v. Sconfield, 84 Ala. 313 ;
eey, 35 111. 363 ; Johnison v. Taylor, 40 Alabama Code (1886), § 2508. Liberal
Tex. 360 ; Hutchinson v. Ainsworth, construction as to grantee. Gates v.
63 Cal. 386; Kottenbroeck v. Cra- Hester, 81 Ala. 857; Sharps v. Orm,
428 . ' EESTEAINT OF ALIENATION,
Omission of saying she signed without threat was held fatal
to the certificate.'
If there be no requirement of law that the wife shall be ex^
amined separate from her husband upon signing a mortgage
or other conveyance, courts cannot hold her act inoperative
when she signs with her husband and the certificate shows
that fact, but not examination apart.''
The purpose of requirements that the wife must sign, must
I be examined apart, and must acknowledge, is to make sure
; that she gives consent to the conveyaiice. So, if her name is
not in the body of the instrument, her signature may show
her consent, being sworn and. certified. If the clerk's certifi-
cate is in the proper form and avers her acknowledgment, and
is conclusive on other matters, it is held that it cannot be con-
tradicted by evidence that the wife was not. examined apart
from her husband.'
The wife's signature, duly obtained, binds her, though her
name may not have been used in the instrument she signs.^
But when it is stated, in the concluding part of the deed,4;hat
she signs merely tp relinquish her right of dower, the signa-
ture will not be evidence of her consent to the entire deed.*
A clerk of probate may take the wife's acknowledgment
and make the certificate,* he acting as the minister of the
61 Ala. 263. Substantial compliance, Lyons v. Conner, 57 Ala. 181; Scott
when no fraud charged. Miller v. v. Simons, 71 Ala. 353; Butts v.
Marx, 55 Ala. 322 ; Moog v. Sti-ang, Broughton, 72 Ala. 294. The wife,
69 AIel 98 ; Downing v. Blair, 75 Ala. owning the homestead, need not be
316. Parol counter-testimony. Bar- examined apart when conveying
nett V. Proskauer, 62 Ala. 486. Com- withherhusband, in Alabama. Daw-
pare Strauss v. Harrison, 79 Ala. 334, son v. Burrus, 73 Ala. Ill ; Weiner
as to substantial compliance. v. Sterling, 61 Ala. 98 ; Forsyth v.
1 Motes V. Carter, 73 Ala. 553, under Preer, 68,Ala. 443 ; Cahall v. Building
" statute, acts of 1876-7 (Ala.), p. 88. Ass'n, 61 Ala. 232.
As to notary's certiiioate, etc., see "Shelton v. Aultman (Ala,), 8 So.
Morrell v. McDonald, 66 Ala 573; 332.
Coleman v. Smith, 55 Ala. 368 ; Mil- ♦ Shelton v. Aultman, 83 Ala. 315 ;
ler V. Marx, 55 Ala. 833. Hood v. Powell, 73 Ala, 171.
- Jones V. Roper, 86 Ala. 310, under ' Long v. Mostyn, 65 Ala. 543.
Code Ala. (1876), g 2822, act of April « Shelton v. Aultman, 82 Ala. 315;
23,1873. SeeCode Ala. (1886), §2508. Halso v. Seawright, 65 Ala. 431 ; Hood
Cahall V. Citizens' Association, 61 v. Powell, 73 Ala. 171.
Ala. 333 ; Miller v. Marx, 55 Ala. 332 ;
wife's JOINDEB^ IN, GENEEAL. 4:29
court, presumably authorized by it. His authority may be
:■: questioued.i
Under the provision that the conveyance of a homestead by
a married man must be separately acknowledged by his wife,
to give it validity, she is too late when she waits till her
widowhood before making the acknowledgment. The title
of the decedent's heirs is not affected by such a tardy act.^
The title of the decedent not having been divested before
his death, nothing can be done by the widow to affect their
rights.' The principle is well founded that a deed, void for
want of the wife's acknowledgment, cannot be validated by
her after interests of third parties have intervened. She can-
not make subsequent acknowledgment to their prejudice.*
§ 7. lb.: Wife's Joinder — In General.
The law does not require a wife to join in selling that which
she does not own ; it does not make her one of the grantors
of a homestead owned by her husband, when it makes her
consent, and even her signature to the deed, necessary to the
validity of the conveyance. She is not required to assume
the responsibility of the conveyance, nor any liability as a
seller : for she conveys nothing — sells nothing. She merely
assents to her husband's selling his own property which the
law inhibits his selling without her consent ; she signs to show-
that assent. Conveyance is void without it.'
1 Russell V. State, 77 Ala. 89. ties required by law for the convey-
^ Richardson v. Woodstock Ck)., ance of real estate.' The defendant
90 Ala. 266 ; 8 Sa 7. has a life-estate in the premises set
' Cahall V. Ass'n, 61 Ala. 246 ; Jack- off to her as a homestead, as against
son V. Leek, 13 Wend. 105 ; Shoen- the plaintiff's mortgage. Parkinson
berger v. Zook, 34 Pa. St. 24. v. McLane, 57 N. H. 31 ; Lake v.
< Smith V. Pearce, 85 Ala. 264; Page, 63 N. H. 318; 1 Atl. Rep. 113.
Wilson V. Mills (N. H.), 22 A. 455. The mortgage note was not signed
Clark, J. : " The defendant did not re- by the defendant It was neither her
lease her homestead by signing her debt, nor a contract respecting her
husband's mortgage, without wit- property, and, being a married
nesses or seal, after it was delivered woman, she could not bind herself
and recorded. Under the act of 1851 by a promise to pay it, either by way
ho release or waiver of the home- of contract or estoppel. Bank v.
stead exemption was valid ' unless Buzzell, 60 N. H. 189. Case dis-
made by deed executed by the hus- charged."
hand and wife, with all the formali- ^ Hood v. Powell, 73 Ala. 171 ; Ca-
430 BESTEAINT OF ALIENATION,
The married debtor's house, on leased land, claimed and oc-
cupied by him as his homestead, cannot be conveyed without
his wife's signature attached after examination apart from
him, where the law req^uires such joinder in the Qonveyapce
of real-estate homesteads.'
Though an unmarried owner contracted to borrow money
and mortgage his land to secure the payment, if he marry
between the dates of the agreement and its execution, it is
held that his wife will have her homestead right, in the prop-
erty, notwithstanding the fact that the lender be ignorant of
the marriage when accepting the mortgage instrwraent and
parting Avith his money.'' In such case, the lender is deceived
and morally defrauded by the borrower, hut the transaction
is legally consummated at the date of the signing of the mort-
gage, which, being invalid as to the homestead for want of
the wife's signature, fails to defeat her homestead right-
The lender would thus be greatly wronged^ but the rights.of
the wife are not lost or affected by the fraudulent acts of the
husband.^ It cannot be safely said that, in, every state, the
mortgage of land by one who is single when he nja^es th«-Gon-
tract, and is married when he executes the mortgage, and. who
takes the money of' the mortgagee who believes hijn to be still
unmarried and who therefore relies upon the mortgage, as
valid, will deprive the wife of anj'^ homestead right as against
the mortgage. The better view, perhaps, is that she would ac-
quire such right by marriage; that the mortgage would be
void; that the money would be fraudulently obtained, and
that the lender could recover it from the false mortgagor.
An attorney in fact may convey the homestead of a husband
and wife when duly authorized by them to do so.* But if not
duly authorized ; if the wife was not privily examined apart
from her husband before signing the power of attorney, he
hallv. Cit Mut Ass'n, 61 Ala. 232; ^Tolman v. Leathers, 1 McOrary,
Long V. Mostyn, 65 Ala. 543 ; March 329.
V.England, 65 Ala. 275; Dooley v. SEli v. Gridley, 27 la. 3';6.
Villalonga, 61 Ala. 129; Seaman v. < Jones v. Eobbins, ,74 Tex. 615 (dis-
Nolen, 68 Ala 463 ; Roger v. Adam3, tihguishing Jones v. Goff, 63 Tex.
66 Ala. 600. 258); Patten v. King:, 26 Tex. 686;
» Watts V. Gordon, 65 Ala, 646. Cannon v. Boutwell, 68 Te?. 626;
Warren v. Jones, 69 Tex. 462, 467.
wife's JOINDEE IN GBUEBAL. 431
would have no authoritj'- as thqir agent to convey,' unless the
property had been abandoned as a homestQad.^
A wife, who did npt join hpf husband in giving a power of
attorney to sell his land to pay debts contracted before the
exemption law had been adopted by constitutional provision,
was denied homestead in the land.' She neyep had had any
claina, as a homestead beneficiary, against suph antecedent debts.
The reason why the husband was competent to apply the land
to the satisfa,ction of such debts is that thpre never vv^s home-
stead as to them. The land wag liable to judgment, judgment-
lien, execution and forced sale for those debts i SQ, to pay them
without force, the hushan^' alone may sell the land to get the
means, of doing so,
The wife's sole signature (the husband's being wanting) to
the transfer of her hompstead right is very different from
such signature to relinquish, dower. In the latter case it
would be effectual, but not in the former.* The reason is ob-
vious. The dower right appertains to her alonq, aiid she
alone may rplinquish it. The hoipestead right is involved
with the family comfort and privilege, of which she and her
husband toget,her are made the managers. Her signature is
as important as his, in the giving- of it up; though the title
may be whoUy in him.
Where the wife's signature to the .alienation of a homestead
owned by her husband is not required by law to give the
conveyance efficacy, the only purpose of' her signing is to re-
linrjuish her right of dower. She has no legal interest in the
property, present or future ; no vested right ; no means of
preventing conveyance, though she may lose her home by it.*
Signing and acknowledging " solely for the purpose of re-'
linquishing dowpr interest " as stated in the deed, the wife
does not convey her homestead interest, tho,ugh the deed pur-
port^,,to cpnyey tlie entire property and is signed by both her .
and her husband.'
1 Jones V. Robbins, supra; Johnson 481 ; Eisenstadt v. Cramer, 55 la.
V. Bryan, 63 Tex. 634 ; Langton v. 753. Compare Reynolds v. Morse, 53
Marshall, 59 Tex. 396 ; Ruleman v. la. 155.
Pritchett, 56 Tex. 4?3. » Klenk v. Nobl,e, 87 Ark. 39&,
'^Ib. 6 Thompson v. Sheppard, 85 Ala.
3 Leonard v. Mason, 1 Lea, 384i- 611.
* Wilson V. Christopherson, 53 la.
432 EESTBAINT OF ALIENATION.
He alone cannot sell the homestead, though it exceed the
maximum limitation ; • and she cannot be said to have joined
in the sale when she expressly limits her signature to the re-
linquishment of her dower.
"Warranty of the title of homestead property by husband
and wife is binding upon both.^ The title may be in the hus-
band alone, so that he alone is really the grantor, and she
merely a renunciator of the homestead right ; but, in such
•, case, if there is a contract of warranty in the deed, and she
knowingly signs it after all the requirements of law have
been observed, she is like a third person stepping in to sign
and take upon himself the obligation of warranty.
The purchaser of a homestead from a husband and wife, evi- .
denced by a deed duly executed, given in payment of a pre-
existent debt, obtains good title though the husband may
have fraudulently induced his wife to join in the conveyance —
the purchaser being ignorant of that fact.'
A purchaser of property previously conveyed by a married
owner was held unaffected by notice that the prior sale was
invalid because not made jointly by the husband and wife.*
A purchaser without notice of the invalidity of the previous
alienation of a homestead is free from a claim of prior date
to that of the establishment of the homestead right, where
the creditor has not recovered judgment and thus created a
lien on the premises.^ Ordinary antecedent debts are not
property debts, and therefore cannot be in the way of the free
conveyance of the homestead. They become property debts
only when a judgment lien has been created. They differ
from other ordinary personal debts in their susceptibility of
being converted into property debts of the homestead.
After a husband had mortgaged his property, both himself
and his wife joined in the sale of it. Sabsequently she bought
it. When the mortgagee came to foreclose, she claimed home-
stead in the land, but was denied." -,
i/d 48 Tex. 144; Pool v. Chase, 46 Tex.
2 Amos V. Cosby, 74 Ga. 793. 210 ; Miller v. Yturria, 69 Tex. 649.
3 Webb V. Bumey, 70 Tex. 333; < Lunt v. Neeley, 67 la. 97.
" Hussey v. Moser, 70 Tex. 43 ; Hender- * Higley v. Millard, 45 la. 586.
son V. Terry, 63 Tex. 384; Pierce v. * Johnson v. Van Velsor, 43 Mich.
Fort, 60 Tex. 464 ; Williams v. Pouns, 308.
LEASING, AS, ALIENATION.
433
A wife may join in mortgaging her own land to secure her
own debt, or her husband's, and the lien will bear on the in-
cluded homestead.' She is not bound by a mortgage when
she does not join in the act, though the land be simply held
under title-bond.'' "Whether her signature is requisite to valid-
ity, in any case of mortgage or sale (when she has no title in
herself), depends upon her relation to the homestead estate or
right of herself and the family which she, with her husband,
represents. In other words, whether there is homestead or not.
"When no part of land mortgaged is the homestead, the
wife's signature is superfluous. A subsequent selection of a
part of the mortgaged land, by the owner (the mortgagor), as
his homestead, and its occupancy as such by himself and his
family, would have no effect on the mortgage. It could not
be treated as invalid for want of the wife's signature.' If
valid when executed, the mortgage remains valid, unaffected
by the subsequent declaration of homestead. It has been
fastened upon the property; the land has become a thing in-
debted ; and it would be novel indeed, and unjust, to allow
the mortgagors to deprive the mortgagee of his conventional
lien by anything that they could do short of payment.
§ 8. Leasing, as Alienation.
"When ordained by a constitution or statute, that the home-
stead of a husband and wife shall not be alienated without their
joint consent,^ the inhibition is applicable to a lease which de-
prives the beneficiaries of their occupancy of the home. The
husband alone cannot lease the premises without his wife's
joinder, though with her knowledge and verbal acquiescence.
A husband leased his homestead of eighty acres to a gas com-
pany for twenty-five years, giving them the privilege of pros-
pecting for coal, and for gas, oil and other minerals; and of
erecting engine houses, storehouses, derricks and other ma-
chinery.
Nearly a year afterwards, when the lessee had entered upon
the premises and expended large sums in erecting machinery
> Drye v. Cook, 14 Bush, 459. 3 Gibson v. Mundell, 29 O. St. 538 ;
2 Griffin v. Proctor's Adm'r, 14 Boreham v. Byrne, 83 Cal. 23, «.
Bush, 571, * Const, of Kansas, art. 15, § 9 ;
Comp. Laws of Kas. (1879), ch, 38, § 1.
28
434 EESTEAINT OF ALIENATION.
and buildings and in boring wells, both husband and wife con-
tracted to sell the homestead ; and they recognized the lease,
but did not recite it, in the contract. The recognition did not
correspond with the lease that had been given in some mate-
rial particulars. This contract to sell was followed by a con-
veyance in due form and substance, regularly signed by both
husband and wife. This sale was succeeded by one from the
grantee to a land company : so the case now considered was
between the two companies.
The trial court found that one of the conditions of the lease
from the husband to the gas corapanj^ was that the lessee
" shall not materially or unreasonably interfere with the occu-
pation and use of said premise's," by the lessor and his family,
as a homestead, or " enter upon the surface of the land pur-
chased and platted . . . into lots and streets, or drill or
sink shafts thereon, but is entitled to the gas, coal, oil and
other mineral, under the surface." On the other hand, the
appeal court said that the lessee had power, nnder the lease,
to occupy any part or the whole of the homestead. These
different conclusions, or inferences from the lease, are impor-
tant when the question, whether the wife's occupancy of the
homestead was disturbed by the lease, is made a factor in the
settlement of the main question, whether the husband was in-
hibited by the constitution from leasing without his wife's
consent. The trial court found for the gas company: the
supreme court did not affirm the decision.
The latter held that the lease of a homestead, by the , hus-
band alone, is such alienation as the above-cited constitution
and statute prohibit, if it give the lessee possession of the
premises in such a way as to interfere with the wife's posses-
sion and enjoyment of them. And, after reciting the facts,
^,nd showing that the wife's silence when the lease was given,
her recognition of the existence of a lease when she signed
the contract to sell, and her knowledge of the transaction, did
not amount to such " consent " as the legislator had contem-
plated, the court reversed the judgment and remanded the
case.'
1 Land Co. v. Gas Co., 43 Kas. 518 ; 516 ; Coughlin v. Coughlin, 36 Kas.
Pilcher v; At etc. R. Co., 38 Kas. 116.
EXCHANGE OP HOMESTEADS. 435
It is to be inferred that the leasing of a part of the home-
stead without his wife's consent and without disturbing her
occupancy of the home would not have been considered such
alienation as is prohibited. The whole homestead is doubtless
expressed when the constitution says a homestead; and the
inhibition is that it " shall not be alienated without the joint
consent of husband and wife when that relation exists." Leas-
ing for twenty-five years — for ten — for one — is all the same
so far as its character as a species of alienation is concerned.
§ 9. Exchange of Homesteads.
"Whoever may sell his homestead may swap it for another.
Man and wife may' do so where their joinder is requisite to
sale or mortgage. The new homestead acquired by exchange
must have the same record notice to the public that was nec-
essary to the old, in states where record is required, such as
filing the title, inscribing Homestead on its margin, or the like.
If both the exchanged properties were exempt before the
mutual transfer, both the contracting parties should furnish
such record evidence, each for his own new acquisition.
The voluntary exchange of a homestead for property not
previously exempt does not have the effect of giving it the
exempt character, as a general rule. The legislator has speci-
fied the kind of property to which it gives protection from
the creditor, and does not leave that discrimination to the
debtor. So when that which the law exempts has been vol-
untarily given by the owner for something not clothed with
such immunity, or has been converted into money (unless the
money is held temporarily as a means of obtaining other
property exempt by law), the exemption does not attach (as
a general proposition) to that which is taken in lieu of ex-
empt property.^
It is not essential, where property is exchanged, that the
■ realty given for a homestead shall have been exempt. That
which is received may have its homestead character from
1 Andrews v. Rowen, 38 How. Pr. Friedlander v. Mahoney, 31 la. 315 ;
138; Soott V. Brigham, 37 Vt 561; Wygant v. Smith, 3 Lans. (N. Y.)
Edson V. Trask, 33 Vt. 18 ; Schneider 185 ; Pate v. FertlUzing Co., 54 Ga.
V. Bray, 59 Tex. 668 (explaining 515; Watkins v. Blatschinski, 40 Wis.
Wolfe V, Buckley, 53 Tex. 641, and 347.
Whittenberg v. Lloyd, 49 Tex. 633);
436 EESTEAINT OF ALIENATION.
other causes — not from the peculiar nature of the land or
money given for it.^ The realty given in exchange may be
wild land, or mill property or business houses — not a family
home. The realty received may be a farm, or a house and lot
in town, ready for family habitation and homestead dedica-
tion, or it may have been the exempt home of another now
received free from liens.
If the property received in exchange is itself legally exempt,
it does not lose this characteristic by the transaction.
The rule applies to chattels, so that an article exempt may
be given for another similar article belonging to the exempt
class, without the loss of legal protection from execution ; and,
as a general, though not universal rule, real property may be
exchanged with like result.
As an exempt farming utensil may be so worn out that a
new one is needed in its place, so an exempt family dwelling
may be in such need of repair that it had better be tradejl off
for a new house. While the new one would come into the
possession of the exchanger with all the existing burdens
upon it (just as the old one would go with whatever liens for
purchase-money, taxes, improvements or other liabilities which
it might bear), it would have such immunity In the ftiture as
its predecessor had possessed.
There is difference, however, between exempt chattels and
realty dedicated as homestead, in this: No particularized
farming utensil, oxen, household furniture, or the like, is
designated, marked, branded or set apart as exempt before
the executioner comes ; the debtor is allowed by law certain
kinds of articles, but he is not required to have them distin-
guished from the rest of his personalty by dedication, record-
ation or any act, beforehand ; he may therefore swap horses
or any chattel, .and hold as exempt what he happens to have,
within the legal exemption, when the officer comes to sell his
goods. It is rarely required that exempt chattels shall be de-
scribed and recorded, but, where required,'' the exchange of
them is like that of recorded homesteads ; the thing taken in
exchange is not necessarily exempt by reason of the recorda-
tion of what was given in exphange. The homestead, in many
1 Emporium Aas'n v. Watson (Kas.), ^ Dean v. King, 13 Ired (N. C.) 30;
25 Pao. 586. Lloyd v. Durham, 1 Winst (N. C.) 288.
EXOHAITGE OF HOMESTEADS. 437
states, must have been preYiously selected according to forms
of law ; in most of them, must be actually occupied by the
family as a home; and, whjen allotted by the court just before
execution directed against realty in general, it must be in
a state of occupancy — except where the law merely exempts
a given value of realty without special regard to. its home-
stead character.
The ordinary creditor, being without' a lien to secure his
debt, is not concerned in the exchange, by his debtor, of one
piece of exempt property for another, whether it be real or
personal; He loses no right or remedy, since he had none
against the property first held by his debtor.
The law applicable to the exchange of homesteads is so sim-
ple, and so general in all the states, that it seems unnecessary
to extend the treatment of the subject to any great length.
The decisions of a single state may suffice to illustrate the
subject.
It is generally allowed . that an old homestead may be
changed for a new one, but not everywhere minutely pro-
vided hoy, and under what circumstances, it may be done.
Where it is authorized that the owner may change the metes
and bounds, and the record of the plat and description, from
time to time, or may make an entire change, but " shall not
prejudice conveyances or liens made or created previously
thereto, and no such change of the entire homestead, made
without the concurrence of the husband or wife, shall affect
his or her right or that of the children," • the new homestead,
if itself free from incumbrances when selected, takes the place
of the old in relation to debts contracted prior to the first se-
lection and during its continuance.'^ Though the new home is
liable for debts ante-dating the selection of the old one,' it is
not for those subsequently contracted and not prosecuted to -
judgment,* unless the value of the new place exceeds that of
the first ' — other money being requisite to its purchase be-
sides the proceeds of the first homestead — so as to render it
answerable for obligations to the extent for which the sum
1 McC's la. Code, S 3175 (2000). < Pearson v. Minturn, 18 la 36;
2 Sargent v. Chubbuck, 19 la 37; Eobb v. McBride, 38 la. 386.
Elston V. Eobinson, 21 la 581. 'Lay v. Templeton, 59 la 684;
3 Bills V. Mason, 43 la 329. Benham v. Chamberlain, 39 la 358.
438 EE8TKAINT OF ALIENATION.
newly invested was liable. The fact that additional money
has been invested will not render any part of the new home
liable unless its value is greater than the old one was. The
burden of proof is on him who alleges that his new home-
stead was bought with the proceeds of the old, for the pur-
pose of having it declared free from claims prior to its origin.^
And when it was impracticable to find what part of the value
of the farm was exempt before its exchange for another, the
new homestead could not be relieved from a debt existing at
the date of the exchange.^
The holder of a homestead exchanged it for a half interest
in another property in which he already owned the other half
interest. The latter half continued to be subject to a judg-
ment lien created before the exchange.' Changing residence
from one place to another, and complying with the exemption
laws so as to make the second take the place of the first as a
homestead, operates so as to make a general judgment lien,
then bearing on the second, apply to the first, while the sec-
ond is relieved from it, just as the first was exempt before the
exchange : so it has been held.*
An owner who gives up one for another homestead, and
has the latter conveyed to his wife, does not thus forfeit the
protection against the debts which could not be urged against
the first property. The second occupies the same exempt po-
sition, as though he had taken the title of it in his own name."
Changes in the metes and bounds of a homestead cannot be
made to aifect the rights of a mortgagee, or any third person,
without the consent of the party interested, and that of both
husband and wife when the homestead-holder is married.'
§ 10. Proceeds for Investment in New Home.
In making an exchange, reasonable time is allowed with.re-
gard to the investment of the proceeds of the old exempt res-
idence in the purchase and establishment of a new one, the
removal from one home to the other, and the like.' During
1 First N. Bank v. Baker, 57 la. 197 ; ' Thompson v. Rogers, 51 la. 333.
Paine v. Means, 65 la, 547 ; First N. * Furman v. Dewell, 85 la. 170.
Bank v. Thompson, 73 la. 41T. See "Jones v. Brandt, 59 la. 382.
Atkinson v. Hancock, 67 la. 452, and * Goodrich v. Brown, 68 la. 247.
Coad V. Neal, 55 la. 538. ' Cowgell v. Warrington, 66 la. 666 ;
2 Paine v. Means, 65 la. 547. Watson v. Saxer, 103 111. 585.
PEOCEKDS FOE INVESTMENT IN NEW HOME.
439
such interval, debts contracted are as though incurred after
the dedication of the new home, unless the debtor has fraud-
ulently gained credit by holding out that his means of pay-
ment were not exempt.^ They must be held for the distinct
purpose of purchasing a new home, since they otherwise
would be liable to garnishment ^ or any remedy of the creditor.
If one sells his homestead and invests the proceeds in prop-
erty in a state other than that in which his homestead was
situated, and afterwards sells that property, he cannot claim
exemption for its proceeds on his return to his former state.
The homestead character which had attached to the price re-
ceived for his home would be lost by the investment in an
other state.'
•Benham v. Chamberlain, 39 la.
358; State v. Geddis, 44 la. 537.
2 Huskins v. Hanlon, 72 la. 87.
3 Dalton V. Webb (la.), 50 N. W. 58.
Granger, J.: "Prior to May, 1885,
the plaintiff was owing the defend-
ant Webb, which claim has since
May, 1885, been placed in judgment,
aggregating some $576.15. Prior to
May, 1885, the plaintifE was the owner
of four hundred and fifty-four acres
of land in and about the town of
Tabor, Iowa. In May, 1885, the
plaintiff sold the entire tract to C. F.
Lawrence for $15,000, which amount
was exhausted by the payment of in-
cumbrances on the land and an in-
debtedness of plaintiff to Lawrence.
A very much disputed question in
the case, and one of grave doubt un-
der the evidence, is whether or not it
was then agreed, as a part of the
consideration for the land, that the
plaintiff should continue to occupy
his home on the land during his life,
he then being a man some sixty-nine
or seventy years of age. It is a fact
that he continued to reside on the
land, or a part of it, for two years
after the sale, when a son of C. F.
Lawrence, to whom part of the land
had been deeded, paid to the plaintiff
$3,500 to vacate the premises. Of this
$3,500, $1,000 were paid on an indebt-
edness of plaintiffs to one Wadham,
and of the remainder about $700
were invested in what the plaintiff
now claims as his homestead, one*
half being paid on the purchase price
and the other half on improvements;
The remaining $800 were by the
plaintiff invested in an attempt to pro-^
vide him a homestead in Nebraska,
under the general homestead law,
the money being used in buildings
and other improvements on the land.
Afterwards the homestead claim in
Nebraska was sold for $1,350 and this
amount was paid towards the present
homestead of plaintiff. The present
homestead was purchased of one
Goodell. the purchase price being
$3,150, the plaintiff assuming a mort-
gage thereon of $800. Plaintiff's
statement in evidence is : ' For the
property I now claim as a homestead
I paid Mr. Goodell about $3,150. I
took it subject to a mortgage of $800,
paid $350 of the homestead money on
it, and the balance was paid from
money coming from Nebraska land.'
For the purposes of the case we will
assume that the $1,500 that plaintiff
received from Lawrence in 1887 to
MO
EESTEilSTT OF ALIENATION.
The circumstances of delay in procuring the new place may
be such as to cut off from it the exemption that attached to
the old. Investment of the proceeds of the latter in another
state will debar the owner from claiming exemption from
debts antedating the establishment of his new home pur-
vacate the premises are the proceeds
of a homestead interest, without say-
ing that such would be our finding
upon a consideration of the evidence.
The defendant Webb has, by an exe-
cution issued on his judgment, levied
on the present homestead, and this
action is to determine the hability of
the homestead therefor. The district
court decreed the homestead exempt
In doing so, we thinly, it erred. No
more than $350 of the purchase price
of a homestead representing a value
of about $2,500 can be said to be the
proceeds of the former homestead,
unless we hold that the $1,350 for the
Nebraska land were, when invested
in this homestead, the proceeds of the
former homestead, and to be pro-
' tected as such. To so hold is to over-
rule the case of Eogers v. Eaisor, 60
la. 355 ; 14 N. W. Rep. 317. That
case, in its purpose, is an exact paral-
lel to this, and the principle there an-
nounced is conclusive of the question
we are considering. In that case the
proceeds of an Iowa homestead were
taken to Missouri and invested in a
homestead there. Afterwards the
Missouri homestead was sold and an-
other homestead purchased in Iowa.
It was sought to be subjected to the
payment of a debt from which the
former Iowa homestead was exempt.
In deciding the case, the following
language is used : ' What, then, was
the character impressed on the pro-
ceeds of the Iowa homestead when
taken to Missouri for re-investment?
The laws of Iowa ceased to operate
upon it, and to affect its character, as
soon as it was invested in real estate
in the state of Missouri. It was not
the proceeds of the sale of a home-
stead under the laws of Missouri, for
those laws can apply only to a home-
stead held under the laws of that
state. It follows that the fund aris-
ing from the sale of the Iowa home-
stead, upon being carried into Mis-
souri, lost the distinctive character of
being the proceeds of a sale of a
homestead.' The case holds that the
new homestead in Iowa is not ex-
empt The $350 of the proceeds of
the former homestead invested in the
purchase price of this could not
change the rule. The homestead laws
receive and are entitled to liberal
interpretation, but it should only be
done within the spirit of the legisla-
tive purpose. At best but |800 of the
$1,350 from the Nebraska land were
ever the proceeds of 'a homestead,
and under the rule announced that
part lost its character as homestead
property, and is no longer entitled to
exemption. Some importance is at-
tached to the fact that the wife did
not go to Nebraska with her husband,
nor consent to the use of the money
there. It is true that she did not de-
sire to go, and that plaintiff, because
of her health, did not think she
should, but the record does not show
that she ever had or made any ob-
jection to the investment of the
money there ; nor does it appear that
before the investment in Nebraska
there was any purpose to invest it in
the Iowa homestead. We think there
should be a decree dismissing plaint-
iff's petition, and the cause is re-
manded for that purpose. Reveraed."
PEOCEBDS FOE INVESTMENT IN NEW HOME. 44-1
chased by those proceeds when brought back. The proceeds
have lost their exempt character and therefore cannot trans-
fer it to the new purchase : so that comes into being with all
the responsibility of an original establishment under the ex-
emption laws.'
The proceeds of the sale of a homestead are exempt if " htld
with the intention to procure another homestead therewith "
within the time prescribed by statute, or to complete a new
homestead within such time.^
It is held that a statutory provision exempting the pro-
ceeds of a homestead for two years when held to purchase an-
other, does not make it a condition that the holder shall
remain in the state for the time, nor that he shall intend to pur-
chase his new homestead within the state.' This is very gen-
erous towards other states. The policy of the law having
state welfare in view by the conservation of homes is here
broadened so as to aid in the protection of them in sister com-
monwealths : a commendable liberality, if the creditor be left
out of sight. Were all the states to act upon the same prin-
ciple, the stability of homes would be better secured.
The rule governing involuntary exchanges is that the prop-
erty received in lieu of exempt property takes the exemption
character, -whether it had it before or not. Illustration is
found where exempt property is burned, and the insurance
paid takes its place under the protection of the law from ex-
ecution.^
A homestead having been sold, and the price invested in a
new exempt residence, there was not necessarily any interim
when either the land or the price was liable for the ordinary
obligations of the owner.'
If homestead land is exchanged for other land, or sold and
• Rogers y. Raisor, 60 la. 355. to personal property in New Hamp-
2R. S. of Wis., § 2983;, Bailey v. shire: Wooster v. Page, 54 N. H. 125 ;
Steve, 70 Wis. 316 ; Binzel v. Grogan, S. C, 20 Am. Rep. 128 ; Paul v. Reed,
67 Wis. 147 ; Scofield v. Hopkins, 61 53 N. H. 136 ; Manchester v. Bums,
Wis. 370; Hewett v. Allen, 54 Wis. 45 N. H. 488; Morse v. Towns, 45
583. N. H. 185. See Brown v. Heath, 45
3 Hewett V. Allen, 54 Wis. 583. N. H. 168.
* Houghton V. Lee, 50 Cal. 101 ; Cam- 5 Cheney v. Rosser, 59 Ga. 861. Pro-
eron v. P'ay, 55 Tex. 58 ; German Ins. viding for re-investment : McLellan
Co. V. York (Kas.), 39 P. 586. Contra as v. Weston, 59 Ga. 883.
442
EESTRAINT OF ALIENATION.
other land taken in payment with the design of living upon it
as a homestead, it does not matter that the husband owned
the former, and the deed to the latter is given to the wife.
For homestead purposes, it is immaterial which spouse holds
the title. The husband, as head of the family, is presumptively
in possession when both live together and keep house on the
property. This occupancy gives notice ; so creditors of the
wife are presumed to know that the property is the family
homestead though the paper title be in her and not in the
head of the household.^
1 Broome v. Davis (Ga), 13 S. E.
749. Bleckley, C. J. : " Before the
translation of our Brotfier Lumpkin
to this bench, though his judicial ac-
Quracy was remarkable, he shared in
' the fallibility which is inherent in all
courts except those of last resort In
some rare instances he committed
error, and the very last of his errors
is now before us for correction. The
facts of the case are correctly set
forth in the .reporter's statement.
1. It is settled law that property paid
for in full with other property pre-
viously set apart, in due and proper
manner, under the homestead and
exemption laws, takes the place of
the latter, and is impressed with the
homestead character. Mitchell v.
Prater, 78 Ga. 767 ; 3 S. E. Rep. 658 ;
Murray v. Sells, 58 Ga. 257; Cheney
V. Rodgers, 54 Ga. 168, 59 Ga. 861 ;
Morris v. Tennent, 56 Ga. 577 ; Dodd
V. Thompson, 63 Ga. 393. This is true,
though the conveyance of the new
property be made to the wife (supra,
78 Ga., 8 S. E. Rep., and 53 Ga.); or
to the husband and wife {swpra, 54
Ga.); and the homestead right can
be asserted against a purchaser with
notice {supra, 53 and 54 Ga.). A
mortgagee stands on the same plane
with a purchaser. Lane v. Partee, 41
Ga. 203. 2. Could the creditor and
mortgagee of the wife, his rights
having attached while the paper title
to the land in controversy was in her,
stand upon that title, and claim pro-
tection as a mortgagee without no-
tice, notwithstanding the husband
was at the same time in actual pos-
session of the premises? Possession
of land is notice to the world of
whatever right or title the occupant
has. Cogan v. Christie, 48 Ga, 585;
Sewell V. ^Holland, 61 Ga. 608; A^
kins V. Paul, 67 Ga. 97 ; Finch v. Beal,
68 Ga. 594 ; Association v. Atlanta, 77
Ga. 496. In this state, notwithstand-
ing his reduced importance as a do-
mestic factor, the husband is still the
head of his family, and, though his
wife may reside with him, she does
not thereby divest his possessibn of
the homestead, and make the posses-
sion her own. Presumptively he is
the owner. Primrose v. Browning,
59 Ga. 69 ; Neal v. Perkerson, 61 Ga.
846 ; City of Atlanta v. Word, 78 Ga.
276. While for most purposes this
presumption would be rebutted by
the mere production of a conveyance
from a third person to the wife, yet
this alone should not excuse a stran-
ger, about to give her credit on the
faith of the premises, from consult-
ing the husband touching his rights
as the actual occupant His posses-
sion, to be of any force at all as no-
tice, must be treated as directing in-
quiry to be made of himself, and not
as a suggestion to go to his wife and
PROCEEDS HELD FOE GENEEAL PUEP0SE8. 443
§ 11. Proceeds Held for General Purposes.
When a homestead is voluntarily sold, its proceeds are not
exempt, if held for general purposes.* Homes are not con-
served by such sales. The very purpose of home exemption
is thwarted by them. Exempt lands sold, and the proceeds
converted into merchandise, are precisely as though exempt
chattels were exchanged for other personal property of a
character which the law does not hold inviolate from forced
sale.'
Sometimes the term, homestead, is made to stand for a cer-
tain monetary exemption, to the debtor, composed of realty
and personalty, or either; and, under such provision, things'
taken in exchange for exempt property have been covered
with the mantle of inviolability, when they were the same
kind of property that had been given in exchange.'
When the price of the homestead is held with no purpose
to convert it into a new home, it is as though it had been in-
vested in stocks or merchandise, and is not exempt.
- Intention to invest the proceeds of a homestead, voluntarily
sold, in another homestead, must exist at the time of the sale
to render them exempt. Illustration is given as follows:
Smith never purchased or owned ariy land after selling his
homestead, and there is nothing in the record [of the case
being tried] that tends to show that he had any expectation
of purchasing any, except his own testimony that he, at the
time of the trial, intended to use the proceeds to buy another
deal with her upon what she might property, except with the approba-
say, fortified by documents in her tion of the proper judicial oOBcer.
possession. So long as a man clings Code, g§ 2025, 5313, 5318. The judg-
to his home in person, he has a right ment is reversed."
to be treated by strangers as the head i Mann v. Kelsey, 71 Tex. 609 ; Wat-
of the family, and as entitled to an- kins v. Davis, 61 Tex. 414 ; Schneider
swer for it and himself touching his v. Bray, 59 Tex, 669 ; Cameron v. Fay,
right to be there and remain. If the 55 Tex. 60 ; Whittenberg v. Lloyd, 49
true title to the property is in him, Tex. 643 ; Pate v. Fertilizing Co., 54
though the apparent title be in his Ga. 515 ; Friedlander v. Mahoney, 31
wife, he cannpt be driven out as the la. 315 ; Knabb v. Drake, 33 Pa. St.
result of contracts of sale or mort- 489.
gage made by her without his con- 2 ji^mji-ews v. Rowan, 28 How.
sent, and with persons who have not (N. Y.) 138 ; Wygant v. Smith, 2
consulted him. Indeed, he would be Lans. 185 ; Scott v. Brigham, 37 Vt.
iavapable of eflfectually consenting to 561 ; Edson v. Trask, 33 Vt 18.
iu.y oale or mortgage of homestead * Morris v. Tennent, 56 Ga. 577.
444: . EESTEAINT OF ALIENATION.
farm as a home for himself and his family. There was no
evidence that he had such intention at the time of the sale.
So the court said : " We do not think that the money . . .
is exempt from the payment of Smith's debts. . . . "We
think the intention to use the proceeds in procuring another
homestead should be formed at or before the time of sale,
and the intention should be to procure another homestead
immediately. It would not do to form the intention two
years after the sale, nor would a present intention to procure
the homestead two years after be sufficient. If the party him-
self supposed that he could get along without a homestead,
the law would not protect his money or his credits, and ex-
empt them from the payment of his debts, merely because it
supposed he needed a homestead. The law does not, in ex-
press terms, in any case exempt money or credits, merely
because they are proceeds of a homestead. The}' are ex-
empted only by a sort of equitable fiction drawn from the
spirit of the homestead exemption laws, and adopted for the
purpose of enabling persons to change their homesteads when
they desire." '
If the sale is a judicial one, to enforce a lien, any surplus
remaining cannot be applied to satisfy other debts not se-
cured by lien.^ But upon the death of both husband and
wife leaving no minor children, and no other children occu-
pying the premises, the late homestead may be sold under
execution for ordinary debts.'
Since a homestead cannot he seized and sold under execu-
tion to satisfy debts for which it is not liable, the proceeds of
a sale of a debtor's lands will be presumed not to embrace
the price of the homestead. His claim to have any part of
them exempt as such will be denied when the presumption
has not been removed. Where " the constitution exempts
the homestead from attachment, levy and sale by mesne
process, it is a criminal offense for the sheriff to sell such
homestead," it was held, " whether the homestead has been
set apart to the debtor or not." Where this is law, the sale
of a homestead is illegal and void. "This being so, the
1 Smith V. Gore, 23 Kas. 488 ; S. C, ' Strattou v. McCandliss, 33 Kas.
38 Am. Rep. 188. V 513.
2 Mitchell V. Milhoan, 11 Kas. 617.
PEOCEEDS HELD FOE GENEEAL PUEP0SE3. 445
money in the hands of the sheriff can in no sense be regarded
as its representative." '
The sale of exempt real or personal property by the sher-
iff is a nullity when the owner has not had the opportunity
of claiming. And it has been held that money recovered of
him by the owner, as damages, is exempt from attachment or
execution.^
1 Ross V. Bradford, 28 S. C. 71 ; Andrews v. Rowan, 38 How. (N. Y.)
Cantrell v. Fowler, 24 S. C. 428 ; 126 ; Hudson v. Plets, 11 Paige, 180 ;
Myers v. Ham, 20 S. C. 522; Hos- Stebbins v. Peeler, 29 Vt. 289 ; Keyes
ford V. Wynn, 33 a C. 309. v. Rines, 37 Vt 263; Mitchell v.
2 Cooney V. Cooney, 65 Barb. 524 ; Milhoan, 11 Kas. 617. See Temple v.
TillotBon V. Wolcott, 48 N. Y. 190; Scott, 3 Minn. 306.
CHAPTER XIY.
EESTRAINT OF TESTAMENTARY DISPOSITION.
^ 1. How Restrained.
3. Devise is Not Alienation.
3. Authorization to Sell.
4 Deed, Will and Claim.
5. Testamentary Disposition Inhib-
ited.
§ 6. Wills Consistent with Home-
stead Rights.
7. Willing the Homestead and
More — Election When Neces-
sary.
8. Spirit of Exemption Laws —
Election.
§ 1. How Restrained.
As a general rule, the homestead is not subject to the last
will and testament of the owner. The restraint is mostly bj'
implication. Few statutes expressly forbid the disposition of
homestead by will, but nearly all contain provisions inconsist-
ent with that power. ^
(1) Exemption being authorized in favor of the family as
well as its head, it would be defeated by devising the home
so as to prevent its enjoyment by the beneficiaries.
(2) Present as well as future benefits being conferred on the
wife and children of the householder, they may be deemed
vested rights when consented to by the act of dedication on
his part, so that he cannot divest them by will.
(3) The non-alienation clause, found in most of the statutes,
which forbids a married owner from selling or incumbering
the homestead by his sole act, may not inhibit testamentary
disposition by him, if the clause is to be confined to its letter;
but it usually means more than the literal terms express.
Eead with the other provisions usually accompanying it, it
may mean that the homestead property shall . not be passed
from the married owner to any other person by any instru-
ment made by him alone. This would not affect unmarried
proprietors, as the restraint of alienation does not.
(4) The law of survivorship, applied to married homestead
beneficiaries, is inconsistent with the power of disposition by
will.
DEVISE IS NOT ALIENATION.
447
(5) Wills, when allowed with reference to homesteads, piust
not contravene statutory rights ; and there can be none which
outs oif the right of election between the interest conferred by
testament ai^d that conferred by statute. A will, to be legal,
must be consistent with the homestead right. A will which
gives the homestead" beneficiar'y precisely what the law gives
would not be invalid should it give more.
(6) The spirit of the homestead legislation is against any
testamentary disposijiion of exempt realty which would defeat
the purpose and policy of the law.
(T) The right to devise remains intact when not expressly
or impliedly inhibited ; and all laws inhibiting or restraining
it should be strictly construed.
It is said that though there be a will, the decedent dies in-
testate, so far as his homestead is concerned, when his right
to dispose of it by last testament is inhibited. His heirs take
the homestead, though they be non-resident, and it has been
bequeathed to resident legatees so far as the form is con-
cerned. That is, in a state whose constitution exempts the
homestead from forced sale under, any process, and provides
that this exemption shall accrue to the heirs of the homestead-
holder, it is held that the property cannot be willed away
from them.' It is true that disposition by will is not forced
sale, nor any sort of sale; but the constitutional provision
that the exemption shall accrue or inure to the heirs could be
defeated if the owner could will it away from them.^
§ 2. Devise is Not Alienation.
The common restraint upon alienation, couched in such lan-
guage as " the homestead shall not be alienated without the
joint consent of husband and wife when the owner is mar-
ried," is not literally a restraint upon testamentary disposi-
tion. Other provisions may put such disposition beyond the
power of the owner, such as those vesting homestead right in
the surviving spouse for life, in the minor heirs for the years
of their minority, or those creating an estate of homestead
with such characteristics as render it inconsistent with the
owner's right of devise. But the usual non-alienation clause,
1 Scull V. Beatty, 27 Ela. 436 ; 9 So. 4. « Fla. Const. 1868, art 9, §§ 1, 3.
448 EESTEAINT OF TESTAMENTARY DISPOSITION.
standing alone, cannot be extended to affect the right of will-
ing the homestead, unless devise is a species of alienation.
Such a non-alienrtion clause^ was construed as inhibiting
testamentary disposition of the homestead by the head of a
family having a wife and children, while, at the same time, it
was held that no new right of property, or tenure, is conferred
upon the widow as to either heirs or creditors. Without the
exemption provision, heirs are not protected from creditors
though the widow's dower is inviolable. "With the provis-
ion, not only heirs, but the widow too, are protected, while
her dower right remains as before. Hence it was concluded
that the rights of the widow and children of a homestead-
holder are not controlled or modified by his will in respect to
the homestead. It will be noted that the court did not rely
wholly on the non-alienation clause, but drew upon other pro-
visions, to prove that the homestead was not subject to devise.^
Alienation is well illustrated by a sale — the property pass-
ing from the seller to the buyer. The former alienates — the
latter receives. Properly it cannot be said that a thing is
aliejaated to the buyer : it is alienated from the seller.
"When an owner dies intestate, his property descends to his
heir; but, as the heir is but a continuation of the ancestor,
there is no alienation of the property. If the owner dies tes-
tate, his legatee succeeds to the property, but the testator can-
not be said to have alienated it. Certainly, there was no such
effect produced immediately upon the act of making his will.
He was not then divested of any property right or interest.
The devisee then had no right or title vested in himself. The
testator still retained title, possession and control. He could
modify or revoke his will at pleasure. He could make a new
one with disposition of his property totally different from
that first designed and expressed.
Not only the testator, but the state, is free to change the
conditions of the will. The testament is as though it had
never been made, so far as concerns the power of the state to
control the making of devises. There is nothing vested — no
right fixed which the state would impair by limiting, or even
wholly denying, the will-making prerogative. The law author-
1 Const of Florida, art IX. SISS; Wilson v. Fridenbiirg, 19 Fla.
2 Brokaw v. McDougall, 20 Fla. 313, 461.
DKTI8B 19 NOT AUBNATION. - 449
izing, regulating or forbidding testaments, or affecting rights
of inheritance or legacy, may be changed at the will of the
legislature so as to bear upon all existing wills while the tes-
tator lives, up to the time the property willed becomes vested
in the devisee by the death of the testator. It is because the
bequest is not to take effect till the death of the testator, and
no right is vested till that event, that the rules of devise and
descent are subject to change meanwhile.'
A wiU does not divest the owner of the property wiUed, for
the power of alienation still remains in him to the day of his
death. It transfers nothing to the devisee which he can alien-
ate. The instrument is nothing more than the owner's writ-
ten expression of intention, of which the law takes no account
till he dies with his intention unaltered. It is what the
owner wishes at the time he dies, evidenced by written ex-
pression duly executed, that the law respects. Then there is
transfer from the testator to the devisee : but is that alien-
ation?
Answer: "A will is never a conveyance. A conveyance
operates in the life-time of the grantor, while a will does not
operate, until after the death of the maker. Of course death
transfers all property, and a will says where it shall go ; but
this does not render a will 'a conveyance.' ... It is
the death that transfers the property." ^
" When death occurs, the title to the property of the person
dying must be transferred to some person. It cannot remain
'In the deceased, and the will simply designates where it shall
go. The title may go to one or more of the persons occupy-
ing the property as a homestead, or it may go to some other
person." '
" It is not the will alone, however, that determines where
the property shall go, for the will operating alone would be
powerless. It is the will, and death, and the statutes, oper-
ating together, that determine where the property shall go.
Indeed, it is the statutes which give force and efficacy to all.
A wiUj which is never operative or in force during the life^
iCooley's Const Lim. (AngelPs ed.) Walton, 12 Ind. 639 ; Noel v. Ewing,
447 ; Henson v. Moore, 104 111. 403, 9 Ind. 37.
^9; Sturgis v. Ewing, 18 HI. 176; ^Comstock v. Adams, 38 Kas. 524.
Strong V. Clem, 12 Ind. 37 ; Logan v. ' Martindale v. Smith, 31 Kas. 273.
29 '
450 BESTEAINT OF TESTAMENTARY DISPOSITION.
time of the testator, is in this respect whblly unlike a deed or
contract, which must have forfce and effect as soon as it is ex-
ecuted. . . . It is true that a deed or contract may trans-
fer property upon a contingency, or upon a conditidh pre-
cedent or subse(Juent, or to be used or einjoyed only at or after
some future time; bilt still, whfen the deed or contract is exe-
cuted, rights becbme vested. . . ." '
Alienation is generally understood tb be conveyance of title
from one living party to another. It is defined as " the act
by which the title to an estate is V^bluntarily rfesigned by one
person and accepted by another in the forms prescribed by
law." 2
When a mortgage is not a sale subject to conditions but is a
hypothecation to secure debt, it is not an alienation.'
§ 3. Authorization to Sell.
The general right of a property owner to dispose of his
property by will, when it is restrained by statute or limited
or denied, is affected so far, and so far only, as the legislator
designed — the statute being strictly construed. But if the
right be denied, with exceptions made in a proviso, those ex-
ceptions must be construed in relation to the statutory inhibi-
tion, while the inhibition itself must be construed in relation
to the common-law right.
It is ordained, by constitution, " that the general assembly
shall enact such laws as will exempt from attachment and
sale, under any mesne or fina,l process issued from any court,
to the head of any family residing in this state, a homestead
in lands, whether held in fee or any lesser estate ; . . .
and every head of a family residing in this state, whether en-
titled to a homestead exemption in lands or not, personal
property not to exceed in value five hundred dollars. . •. ." '
1 Vining v. Wiliis, 40 Kai 609, Sik SBouv. Law Diet
Valentine, J., for the court, ih. exposi- ' Warren v. Raymond, 17 S. 0. 178 ;
tiou of Constitiition of Kansas, art. Sraitli v. Grant, 15 S. C. 150 ; Simons
15,g 9: "A homestead . . . shall v. Bryce, 10 S. C. 354
not be alienated without the joint * Const of South Carolina, as
consent of husband and wife, when amended in 1880. See art I, § 20 ;
that relation exists." Held, that tes- art II, § 32.
tamentary disposition is not aliena-
tion.
AtTTfiofeiZAtlON To SELL. 451
Pursuant to this requisitibk, t'he general assembly enactecl^:
" No waiter of thfe right of homestead, however solemn, made
by tbe head of the family, at any time prior to tlie assign-
ment of homestead, shall dlfea,t the homestead provided for
by this chapter : provided, howetrer, that no right of home-
stead shall exist or be allowed in any property, real or per-
sonal, aliened or mortgaged,, by any person or person's whotn-
soever, as against the title or claim of the alienee or, moi-t-
gagee, or his, her or their heirs or assigns." *
Treating this as a compiete inhibition of all disposition of
satih property by the owner (except the methods mentioned
in the proviso), — a rendering which seems broader than the
statute, — the court, in construing i^e statute, completely re-
versed the question hereinbefore discussed relative to tte
alienation and the testamentary disposition of a homestead.
Instead of asking whether prohibitirig alienation carries with
it a prohibition of devise, it asked whether authorisation to
sell or mortgage carries with it authorization to devise. This
■ivas right, conceding that the statute prohibited all disposi-
tion except by sale or mortgage.
The court salid, in the case in which the above coiistitutibrial
and statutory provisions were expounded,^ of one who had
willed his p;;operty to be sold to pay his creditors, that he
might have claimed exemption and had the property assigned
as his homestead, but, not having done so, bis widow had that
right, notwithstanding the will; that he might have pi-e-
cluded her right by alienating or mortgaging it ; ' and that the
question presented by the case was whiether his testamentary
disposition was such an alienation in the sense of tbe act as to
exclude her right to claiiri the exemption o'f the property after
his death.
On this question, tne court said :
'• The provisions of the homestead law, in the circumstances
authorizing the exemption, are general in their character,
specifying the cases in which the exemption is excluded, viz.,
alienation and mortgage by the debtor. These are clearly
1 Sen. Stat. South Carolina, §§ 1997, ' Citing Homestead Ass'n v, Ens-
1998. low, 7 S. C. 19 ; Smith v. Mallone, 10 ,
2Hendrix v. Seaborn, 25 a U. 481, S. C..40.
4S4.
4:52 EE8TBAINT OF TESTAMENTARY DISPOSITIUN.
exceptions to a general rule, and therefore are not to be ex-
tended or enlarged by implication. It is to be assumed that,
if other exceptions, such as a legacy or devise, had been in-
tended, they would have been added to the list."
By reference to the section under eonstruction, it will be
seen that the exceptions are not to the exemption but to
waiver prior to assignment. Before the owner's residence
has been assigned as a homestead exempt from forced sale, he
cannot waive his right to have it assigned but he may sell the
property or may mortgage it without being hindered by this
inhibition of the right to waive the privilege of having it as-
signed as a homestead. The inhibition of disposition by will
when the property has not been assigned may be inferred,
however, from another provision of the statute which now
will be considered.
After providing how the family residence may be clainied
and assigned as exempt, the legislature enacted : " If the hus-
band be dead, the wife or children ; if the father and mother
be dead, the children living on the homestead . . . shall
be entitled to have the family homestead [residence] exempted
in like manner as if the husband or parents were living. . . ." '
That is to say, the head of the family may have his residence
clothed with the homestead character, if he choose ; or, should
he not, his widow may ; or, should neither do so,^the children
may, after the death of the parents. This provision seems to
imply that the father and husband cannot defeat this right of
the widow and children by any testamentary disposition that .
would put the residence out of the family. This implication
seems to accord with the spirit of the statute.
The situation is peculiar. The state is interested in the
preservation of homes and may pass laws tending to keep
them in the. families occupying them, if the property right of
the owners is not arbitrarily taken away and given to others.
The right to have the family residence assigned as exempt
with the corresponding onerous conditions is left optional with
the owner. But, prior to his election, restraint of testament-
ary disposition is foisted upon him, according to the decision
under review — and there is no design now to question the
constitutionality of the restraint. Not only is the restraint
> Gen. Stat So. Car., § 1997.
DEED, WILL AND CLAIM.
458
prior to his election to have homestead assigned, but contin-
gent rights of wife and children are created prior to home-
stead designation. !N"o doubt the state may regulate will-
making, or forbid it, but a law to that effect should have
general bearing. This point, however, will not now be dis-
cussed. It will be assumed that the section under considera-
tion gives the wife and children the right to have homestead
assigned in the family residence if the husband-father has died
without exercising his right to have it done, and that he can-
not defeat their right by devising it beyond their reach.
It has been suggested that the father-husband, as to his
right of homestead, is like the first taker in a fee conditional
after issue born. He may alien by deed but not by devise.
The transfer must take place in his life-time or descend to the
heirs of limitation, per J'ormam doni. And the suggestion was
supported by reference to alienation or forfeiture by a joint-
tenant so as to defeat the jus accrescendi, who cannot, on
the other hand, devise the property, for the reason that the
devise cannot take effect till his death when it goes to the
survivor.'
The illustration is sufficiently apt, if inhibition of the hus-
band's right to devise be first established while the right to
sell remains ; but, if used in argument to prove the inhibition,
it would be the assumption of the proposition sought to be
established.
The testator (in the case mentioned) ^ had never exercised
his right to have his residence assigned as a homestead, and
might have paid his debts with it by selling it while he lived.
Not doing so, his wife succeeded to the right of having home-
stead assigned, if the will to have it go to pay debts was nu-
gatory. It does not appear that the property was exempt
from forced sale prior to its acquisition of the homestead char-
acter at the instigation of the husband, or the surviving wife,
or of their orphan children.
§ 4. Deed, Will and Claim.
Smith and wife deeded their homestead to their sons, sub-
ject to a deed previously made by him to her as trustee for
1 Jones V. Postell, Harper (S. C), Hendrix v. Seaborn, 25 S. C. 481,.
92; Burnett v. Burnett, 17 S. C. 552; JiS6.
3 Hendrix v. Seaborn, supra.
454 EESTKAINT OF TESTAMENTAEY DISPOSITION.
the sons' benefit. He drilled the same property to them, sub-
ject to the ^e^d qt trugt he h^4 given tj[? her. She accepted
the executorship upder the, will ; but, afterward^, nppn her re-
marriage, clainied homestead in the esj;ate which coijsisted of
ot^er realty be^jdes the homestead that had been both dieeded
and willed to the SQns.
What wa? the lpg3.1 effect qt the twp instruments — the
deeds to the sons ajad to the wife? aslis the court — and an-
swers: "Evidently they toicjax part sind parcel of one transac-
tion and must be construed together Sind. also in conijection
with Smith's will. . . . These papers are drawn in the
form of deeds, but in many of their features they certainly
partake very strongly of the nature and character of testa-
mentary instruments. . . . And looking at th,ese instru-
inents in the light of all the facts of this case exhibited by the
record, we wouldj we think, be justified, if necessary to do so,
in holding them to be deeds of apportionment mad,e in con-
templation of death, which can only be given the effect in.
tended, by th,e parties, by treating them as testamentary
instruments. If so, then unquestionably there was a hoine-
st.efid belonging to Smith at his death. And the fact, that his
wife may have consented to the disposition of it by these tes-
tamentary iost^uments, wiU not ajithorize her to claim for
herself and child to whom thei hQmest,^ad has thus been con-
veyed, the value of a homestead out of other property belong-
ing to the estate."
Considered as absolute conveyances, they vested the home-
stead in the sons : so the widow could not have another, the
court held. But if Smith was insolvent when he conveyed to
them; "if the effect is to hinder, delay or defeat the claims of
creditors, as it [the conveyance] was voluntary, it is certainly
fraudulent and void as to them. . . . Their right . . .
is superior to that of any one . claiming under a voluntary
conveyance." And the court denied that other property of
the estate could be withdrawn from liability to creditors by
being set apart as a homestead to the widow after the pre-
viously-existing one had been voluntarily conveyed in fraud
of their rights. " The hpmesteEid exemption cannot be dis-
torted in this way, so as to be made an engine of fraud upon
the rights of creditors." The claim for a second homestead
DEKI}, WSILL Aljtn CLAIM. 455
outj of non-exempt lands, i^ lipw of the first whicli had been
voluntarily conveyed, was denied.'
If th^ sons tpok by the joint deed of the husband and wife,
the subsequent will of Smith would seem superfluous as to the
hoi)i,^sit^ad. If that d^ed b^ qonsidered as a testament, the
fapt of her signing it would not make it operative as Iter will
whjlie she yet survived ; it wopld be his only — and subject to
thq objection that he could not will the homestead away from
hpr. The right view seems to be that it was a deed in which
she joined ?j,x\(\ thus cut off all her homestead rights in that
property and; precluded herself from claiming its equivalent
in other property at the expense of creditors.
A testator, who had never had any homestead set apart to
him, willed his property to his wife for life and in trust for
his minor children. She had the homestead assigned to her
and the children, notwithstanding the wiU, and against the
remonstrance of a judgment creditor of the deceased husband.
This was sustaiped by the court.^ It is said, in the reported
•opinion, that the property set apart " did not vest by the death
of the husband in any one, but by his will was transmitted to
the wife and minor cj^ildren for whose benefit the exemption
is sought."
If the husband could not have had a homestead set apart to
himself, after the judgment lien had attached, so as to affect
the creditor's right, could the widow dislodge the lien by any
application of hers, or by any action upon it? Unless exemp-
tion is made to precede the setting apart — to attach by mere
occupancy — the creditor's right was complete upon judgr
ment. The point of the decision is that the widow had the
right of having the homestead assigned when the decedent
had failed to do so, which seems indisputable, as she was the
head of a family and the occupant of the premises, and the
property had been transmitted to her for life in trust for
the children, by will, without possibly cutting her off from
any of her statutory rights.' And an estate not thus willed,
but carved 'out of the husband's separate property, is exempt
' Woodall V. Rudd, 41 Tex. 375. Akin v. Geiger, 52 Ga. 407 ; pms v.
^Bridwell v. Bridwell, 76 Ga. 637. Ross, 43 Ga. 131 ; Gunn v. ]|Iiller, 43
-' See Hodo v. Johbson, 40 Ga. 440 ; Ga. 377 ; Georgia Code! § SOOs!
■456 EESTEAINT OF TBSTAMBNTAET DISPOSITION.
as to creditors ; but adult heirs should not be prejudiced con-
cerning their rights.'
A testator willed land to his widow and children. They
occupied it as their home ; and the widow's portion, heing not
more than the law allows for a homestead, she had it laid off
as such. She held this, not as the technical " widow's home-
stead," assigned to her from her late husband's estate, but as
a homestead in her own property, devised to her and held in
fee. Had it been the former, it could have been sold by her
creditors subject to her life occupancy, and the occupancy of
the decedent's children during their minority, for the debts
she had contracted subsequent to its acquisition; but, being
the latter, it could not be sold by creditors. As the head of
a family, a woman has the same rights of homestead as a man;
when she owns property dedicated as a homestead, it is the
same as if he owned property so dedicated.
In the instance above stated, if only a widow's homestead
from the decedent's estate had been assigned her as a widow,,
the legal title would have been in the heirs ; but, as the title
was in her by virtue of the will, she had the right of aliena-
tion under the laws of her state, and this right is held incon-
sistent there with the right of creditors to sell it for her debts ;
for the court considered her in the precise attitude of a pur-
chaser of a homestead who subsequently has contracted debts
from which it is exempt.^
§ 6. Testamentary Disposition Inhibited.
The disposal of the homestead by testament may be infer-
entially forbidden by provisions inconsistent with it. An en-
actment that it shall descend to the surviving spouse is such a
provision. The following section of a statute is illustrative :
" The surviving husband or wife shall be entitled to hold for
the term of his or her natural life, free from all claims on ac-
count of the debts of the deceased, the homestead of such de-
ceased, as such homestead is or may be defined in the statutes
relating to homestead exemptions." '
'Lee V. Hale, 77 Ga. 1; Kemp v. Ky. 333; Gen. Stat of Ky. 483-5;
Kemp, 42 Ga. 533 ; Griffin v. Griffin, Lear v. Totten, 14 Bush, 104 ; Brooks
43 Ga. 528; EofE v. Johnson, 40 Ga. v. Collins, 11 Bush, 622. See Gregory
555 ; Hodo v. Johnson, 40 Ga. 440. v. Oats (Ky.), 18 S. W. 231.
2AUensworth v. Kimbrough, 79 3 Laws of Minn. 1876, ch. 37, § 2.
TESTAMENTARY BISPOgiTION INHIBITED. 457
The question was raised, whether the owner could divest
the interest of the survivor by will ; and it was answered in
the negative. The provision in favor of the survivor was
treated as controlling the law empowering testators to devise
their interests in lands. The spirit of the provision was
deemed irreconcilable with power in the owner to will the
homestead away from the survivor. The protection of the
homestead from devise was likened to the preservation of
dower from any attempt of the husband to defeat it by his
last testament. So, though there was no express denial of
the power to will a homestead in the act itself, the court
found the power denied by implication, from provisions in-
consistent therewith.*
Like provisions have been construed in the same way — the
right of homestead disposition by will being denied upon sim-
ilar reasoning.^
A statute which provides that the homestead, at the death
of its owner, " shall pass and vest in " his widow and children,
but all his " right, title and interest " " in the premises, except
the estate of homestead thus continued, shall be subject to
the laws relating to devise, descent," eto.^ puts it beyond the
power of the testator to deprive his widow of her life estate,
and the children of their estate for years, in the premises.
This section has been construed as excepting homesteads
from laws relating to devises, so that it inhibits the husband,
when willing his own property, from so devising as to put his
widow to election between a bequest and her homestead. It
is said to be as much beyond his power to devise the home-
stead as to alienate it by his sole deed.*
Where the homestead of " any resident of the state " is ex-
empt not only from his debts while he lives but " from admin-
istration " after his death,' it is held not disposable by will.
1 Holbrook v. Wightman, 31 Minn. v. Davis, 86 Mo. 440 ; Gragg v. Gragg,
168-, Eaton v. Robbins, 29 Minn. 327. 65 Mo. 343; Richardson v. Richard-
2Meech v. Meech, 37 Vt 414, m; son, 49 Mo. 39; Rose v. MoHose, 26
Succession of Hunter, 13 La. Ann. Mo. 590. Compare Gant v. Henly,
257 ; Runnels v. Runnels, 37 Tex. 64 Mo. 163. See Schneider v. Hofif-
515, 519. man, 9 Mo. App. 280, in exposition of
3 Rev. Stat of Missouri (1889), Mo. Stat, of 1865.
§ 5439 ; Rev. Stat (1879), § 2693. 6 Code of Alabama (1886), §§ 2507,
<Rockhey V. Rockhey, 97 Mo. 76; 3543.
Kaes V. Gross, 92 Mo. 647 ; Davidson
458 KKSTEAINT OP TESTAMENTARY DISPOSITION.-
The court, in exposition, said that it is not merely the home-
^t^a,d pf one dying intestate that is exempt, but the homestead
of " any resident " — thus including both testate and intestate
decedent^, It is declared expressly to be " exempted from
admini^tratiop." The effect is " to take the homestead out of
the operation q{ the ■w:ill during the life of the widow and the
minority of the children, for the purpose and to the extent
declared by the statute," the court said.^
The rights of widows and minor children to homestead can-
not be defeated by will, even where the owner may sell all
his property in his life-time.^ It has been held that the rights
of minor children to homestead cannot be defeated by the last
testament of their father, even if he has been divorced from
his wife. If his children have ceased to live with him, the
rule is the same. Though they share with their mother a
homestead which she has in her own right, the rule still holds.
While he lives, he has the enjoyment of the homestead he oc-
cupies, though the divorce was for his f^ult. It is even held
that a divorced wife, as guardian of her minor children, may
bring action for the setting apart of her former husband's
homestead, for their benefit.'
After divorce and a division of property between spouses,
the husband, having minor children, continued to occupy the
homestead as the head of a family, though the court had given
the wife charge of the children ; and he was entitled to claim
exemption. His homestead right could not be willed away
from those children, for it descended to them at his death,
notwithstanding the fact that they were under the care of
their mother, since the constitution* provided that on the
death of the husband or wife, or both, the homestead shall de-
scend as other real property of the deceased, but g^hall not be
partitioned among the heirs while the guardian of the minors
is allowed to occupy it by ord,er of coiirt. As their guardian,
the divorced wife may apply to have the homestead of their
deceased father set apart for their benefit. They are not to
lose this right on account of the divorce decree giving the
wife life tenure in certain real estate, on division of the prop-
1 Bell V. Bell, 84 Ala. 64 ; Jarrell v. 2 Brettun v. Fox, 100 Mass. 234.
Payne, 75 Ala. 577 ; Coffee v. Joseph, 3 Hall v. Fields, 81 Tex. 553; 17
74 Ala. 271. See Hubbard v. Eussell, S. W. 82.
73 Ala. 578. * Const, of Tex., art. 16, § 53.
TESTAMENTARY DISPOSITION INHIBITED.
459
erty between their divorced parents.' She, however, could
not successfully claim-any right to his homestead, in her own
behalf.^ The hompstea^4 ^^^ ^^y ^'^^ ^^^^) though the children
were not with him ; and she, as a divorced wife, had no right
in it, and no inheritance from it, whosever may have been the
fault which led to the divorce.'
As the withholding of homesteads from administration is
coijamon,^ the prijiofple aj^gve enupjciajie^, or the conclusion
from the fact, woi^ld seem to b^ of general application.
1 Hall V. Fields, 17 S. W. (Tex.) 83.
21&.; Duke v. Eeed, 64 Tex. 713;
Trawick t. Harris, 8 Tex. 313; Ear;e
V. Earle, 9 Tex. 630 ; Sears v. Sears,
45Tex. .557. '
sZapp V. Strohmeyer, 75 Tex. 638.
In Hall V. Fields, supra, the court
said : " From the relationship of
minor children to their father, we
can have no doubt, under our present
constitution and laws, that it is not
necessary that the children should
reside with tfeeir father at the time
of his death to entitle them to a
right in his homestead. It is not so
recjuired by the constitution. Const.,
art. 16, § 52. By the Revised Statutes
(art. 1993), the exempt property must
be set apart ' for the use and benefit
of the widow and minor children,
and unmarried daughters remaining
with the family of the deceased.'
Adult children, including unmarried
daughters who do not remain with
the family of the deceased, do not
shax-e in the exemptions; but the
widow and minor children do, al-
though they may not be with the de-
ceased. That the children were
awarded by the court, in the divorce
proceeding, to the custody of their
mother, can and ought to make no
difference; Their mother was still
legally bound for their support, and
it would be a double misfortune to
them to be deprived, on account of
the unhappy termination of the mar-
liage of their father and mother,
both of their right to the society and
protection of the father.
They had no homestead rights, as
such, in the home of either their
father or their mother. At any time
before his death the father may have
abandoned or sold his homestead
witl^out affecting the legal rights of
his minor children, and so the
mother could sell her life interest in
the eighty acres set apart to her and
the homestead which she had
boiight. ... It cannot be said
that, living with their mother on a
homestead belonging to her, the
children have a homestead, and con-
sequently cannot look to their
father's estate for one, when at any
time the mother may sell. Had she
died prior to her husband, and her
home had been set apart to the chil-
dren, then it might be urged with
propriety that they could not claim
two homesteads. But their father
being dead, they will not be required
to depend on the contingency of
homestead rights in their mother's
estate." Garrett, J.
<Yoe V. Hanvey, 35 S. C. 94; Es-
tate of James, 33 Cal. 417 ; Estate of
Tompkins, 13 Cal. 114; Plate v.
Koehler, 8 Mo. App. 396 ; Carter v.
Randolph, 47 Tex. 379; O'Docherty
V. McGloin, 35 Tex. 73 ; Sossaman v.
Powell, 31 Tex. 665; Bates v. Bates,
97 Mass. 393 ; Doane v. Doane, 33 Vt
650.
460 BBSTKAINT OF TESTAMENTARY DISPOSITION.
The will must never contravene the statute. "Whether the
homestead provision for the family be to conserve homes for
the good of the state, as it is in nearly all the states, or be a
charitable provision for impecunious widows and children, as
it is under some exceptional statutes, the rule is still the
same — that the provision cannot be defeated by testament-
ary disposition. In one state, where the owner of a home-
stead may freely sell it without the concurrence of his wife ;
I and may sell community property without her consent, as he is
• the head of the community, he cannot cut her off by will from
the right to cjaim a thousand dollars from his estate when she
has nothing of her own, or so much as will make up that sum
when added to her property if it be less.' She becomes a
usufructuary of the money, but the principal goes to the chil-
dren upon her death, and she is required to give security; but
if there be no children, she need give no security but may
take the allowance absolutely, since it does not return to the
estate.^ The court said, in the case last cited, that the act
was " intended to provide for the widow and minor children
of a deceased person, left in necessitous circumstances. . . .
It was a sum taken from the succession and bestowed as a
bounty upon the widow and minor children." This bounty
is called " homestead," but the humane policy of its author-
ization is very different from the policy of homestead laws in
general.
The right of the survivor of the marital homestead-holders
has been held to be subject to the disposal of the owner by
last testament ; that is, the husband or wife who has the legal
title may will it so that the survivor will take nothing. Only
in case of intestacy will the provision favoring the survivor
operate.'
The court say, in the case above cited, speaking of the stat-
ute cited : " It was not intended to interfere with the right of
the owner to dispose of shch property in the same manner
and with the same effect that he or she might dispose of other
1 Succession of Hunter, 13 La. ' Kelly v. Aired, 65 Miss. 495 ; Nor-
Ann. 257. ris v. Callahan, 59 Miss. 140; Miss.
2 Welsh V. Welsh, 41 La. Ann. 717, Code, 1880, § 1277.
and cases therein cited; Rev. Stat
of I^, § 2885.
WILLS CONSISTENT WITH HOMESTEAD EIGHTS. 461
real estate by will. "When there has been no testamentary
disposition of the homestead by the owner, the surviving hus-
band or wife, as the case may be, takes by descent ; but the
right of the survivor is not absolute, but dependent on the
owner dying intestate as to the homestead." ^
If the husband die intestate and childless, his widow does
not take half his estate and the homestead in addition.^
A husband willed his homestead. His widow owned an es-
tate in her own right, which, with thejmoney paid her on her
husband's life insurance -policy, was equal to what she would
have been entitled to from her husband's estate had she been
impecunious. Under these circumstances, the Will, devising
the homestead to another, was sustained.'
The disposition of the homestead by will being forbidden
by the constitution of a state, a testator was held to have died
intestate so far as his homestead was concerned. His testa-
mentary disposition of it went for nothing. The item be-
queathing the homestead was treated as unwritten.* Though
the legatee was a resident of the state, he acquired no rights ,
by the will against non-resident heirs.'
1 6. Wills Consistent with Homestead Rights.
A wife, owning the property constituting the homestead of
herself and her husband, may will a half interest in it or less,
so that the devisee may take at her death. The surviving
husband is not thus divested of any right.' The inhibition of
alienation without "the joint consent of husband and wife,
when that relation exists," is inapplicable to such a devise.
The disposition of property by will is not an alienation of it
in the sense of the inhibition. The title of the testator is not
divested by last will and testament, in any case. ISTotbing is
transferred or conveyed by him to the devisee ; he retains title
iThe remedy of the survivor when Code, 1880, g 1277. But see amend-
cut off is to renounce the will and ment, Acts of 1882, p. 112.
claim a distributive share of the es- * Scull v. Beatty 27 Fla. 426 ; 9 So.
tate, in Mississippi. Code. §§ 1172-4. 4 ; Wilson v. Fridenburg, 19 Fla, 461 :
(See Turner v. Turner, 30 Miss. 428; same parties, 21 Fla, 386.
Nash v. Young, 81 Miss. 134. ^Id.; Miller v. Finegan, 26 Fla ,29 ;
2 Glover v. Hill, 57 Miss. 240. Many S. C, 7 So. 140.
oases cited by counsel contra. ^Vining v. Willis, 40 Kas. 609.
' Osbum V. Sims, 62 Miss. 429 ; Miss.
i
462 KESTEAINT OP TESTAMENTARY DISPOSITION.
and control ; he may tnake a second will, a deed or a mort-
gage with reference to the same property first bequeathed,
since the one named as devisee acquires no rights prior to the
testator's death.'
It would be different if a wife or husband, having the legal
title to the homestead, should convey a half interest in it by
deed to be operative only at the death of the grantor. In
such case, the grantee would acquire a present interest which
he could convey with like restriction as to his grantor's death.
Rights are vested at once. This is such an alienation as con-
templated in the inhibition mentioned. Both the husband and
the wife must join to make such a deed relative to their
homestead.
The husband may will the homestead to his wife, and the
devise will take effect immediately at his death, though he
may have devised that his debts be first paid. The title was
transferred at once to her in such a case. She would have
been entitled to one-half, had there bfeen no will, and the testa-
tor could bequeath all, so as to give her entire possession
at his death, when he left lio children as occupants of the
homestead. The devise would have been subjec^ to their in-
terest had there been any such cliildrein thus bccu^ying.^
A homestead goes to the devisee exemjjt from the personal
debts of the testator, just as it goes to the widow and children
when the owner dies intestate.^ Both a rural and an urban
homestead were held to descend to heirs free from the de-
cedent's debts, when both Were within the monetary limit
and separated from each other only by a railroad.* There was
no will, but a devise of the same property to the heirs would
not have , altered the result.
A testator, possessed of land which had been set apart as
the homestead of himself and wife, bequeathed it. At his
death, his widow retained it as her homestead during her life.
The devisee, at her death, brought an action of ejectment to
^Ib.; Comstock v. Adams, 33 Kas. 'Johnson v. Harrison, 41 Wis. 381.
524; Martindale v. Smith, 31 Kas. So under Tay. Stat, 1171, §§ 4, 5;
273. Laws 1864, oh. 270.
2 Martindale v. Smith, 31 Kas. 370. <Parisot v. Tucker, 65 Miss. 439;
See Vandiver v. Vandiver, 20 Kas. Mississippi Code (1880), §§ 1248-9,
501; Dayton v. Donart, 22 Kas. 256; 1377. '
Comstock V. Adams, 23 Kas. 514, 524.
WILLING THE HOMESTEAD, ETC. ELECTION NOT NECES8AEY. 463
recover the land, under the will. It was objected that the
complaint did not aver h&^ long the widow's homestead right
was to endure^ or that it h^d been terminated. But as the
homestead had been the separate property of the husband, it
coiild not have been assigned to his widow by greater title
than life tenure; and ks her death was alleged in the com-
plaint, further particularity was unnecessary. It was further
objected that the decedent njay have left children who have
rights in the fathily homestekd, for a*Jght the cd'm|5iaint shows ;
but the court said that the allegation, that it had been set
apart to the widow, disposed of the objtection. The complain-
ant pleaded as devisefe under the will and as owner of the
land. General allegations may help to majce a complaint
certain againsi; such objections.'
"When the homestead of the Widow and minors has ter-
minated ih any way, the heirs take possession as though their
right had never been stispended. The estate goes into their
hands free from thfeir ancestor's liaibilities, under some state
homestead systems ; subject to such likbilities,- under others.*
§ 7. Willing the Homestead aud More: Election when
Unnecessary.
There is no need of election when the propeirty, devi«ed to
one who has the right o^ homestead under the statute, is not
greater than that which the devisee may take under the stat-
ute. In such case the rule of election has no application. The
will operates on nothing beyond the statutory allowance. No
written renunciation of it is necessary in such case when the
law itself gives the devisee precisely what the will purports to
give.
A husband willed to his wife all his estate after the pay-
ment of his debts, to be held during her widowhood, and to
be dispfosed of by her for her support if necessary — any bal-
ance, at hfer death, tO go to his children.
She, as executrix, had the will probated, paid debts, and
occupied the homestead. Three years after her husband's
death she was remarried. Then the children, all adiilts,
1 Hutchinson v. McNally, 85 CaL sen v. Groodspeed, 60 IlL 281 ; Kemp
619. V. Kemp, 43 Ga. 527.
2 Wolf V. Ogden, 66 IlL 224; Bur-
464 EESTEAINT OP TESTAMENTAEY DISPOSITION.
brought ejectment. The court said that she had probably in-
tended to act under the will, but recognized her right to claim
-under the statute. Since the will gave her no greater estate
than the law gave her, there was no necessity for election.'
She was entitled to the same homestead estate which her hus-
band had owned, there being no minor children.^ That, estate
was vested absolutely in her by the law then in force.' The
will did not give her more, but less, than the estate gave, for
it did not devise the property to her absolutely. It had been
held, before the decision on this will, that if a widow accept
property under a will which is greater in amount than that
which the law would give her, she cannot afterwards claim
homestead right when it is repugnant to the terms of the will.*
It would have been better, however, if the devisee under the
above stated will had formally renounced it instead of acting
apparently under it till her remarriage. She would thus have
avoided litigation and the setting of a precedent that may
lead to new cases under circumstances of doubtful election.
She certainly took a different estate under the law from that
which the testator sought to give her ; and, under such circum-
stances, election by formal act would have simplified the situ-
ation. Ordinarily, there should be election in such case, since
silence would imply assent to the will."
Occupancy has been considered equivalent to election to
take homestead when the question was between that and
dower or the distributive share of the estate.*
A widow who did not renounce her husband's will by for-
mal act,' but who occupied the family homestead tiU her death,
a period of six years, was held to have elected to take the
1 Burgess v. Bowles, 99 Mo. 543, 547; Kaes v. Gross, 93 Mo. 647, which had
Hasenritter v. Hasenritter, 77 Mo. 163. overruled it inadvertently.)
2 Register v. Hensley, 70 Mo. 190; » Register v. Hensley, 70 Mo. 189:
Skouten v. Wood, 57 Mo. 380. Daudt v. Music, 9 Mo. App. 169.
3 Wagner's Stat. (Mo.), p. 698, § 5 ; « McDonald v. McDonald, 76 la.
p. 88, §g 38, 35; Cummings v. Cum- 137; Thomas v. Thomas, 73 la. 657;
mings, 51 Mo. 361; Hastings v. My- Mobley v. Mobley, 73 la. 654; Dar-
ers, 31 Mo. 519; Freund v. McCall, rah v. Cunningham, 73 la.. 133 ; Hoi-
73 Mo. 343; Kelsay v. Frazier, 78' Mo. brook v. iPerry, 66 la. 386; Burdick
111. V. Kent, 53 la. 583; Whitehead v.
« Davidson v. Davis, 86 Tjio. 440. Conklin, 48 la. 478; Butterfield v.
(This case was approved in Burgess Wicks, 44 la. 310. •
V. Bowles, supra, and reconciled with ' la. Code, § 3453.
SPIRIT OF EXEMPTION LAWS ELECTION. ' 465,
homestead for life in lieu of dower. Her occupancy was
equivalent to election.^ If she occupied a larger tract thail
the law allows for homestead, which included the prescribed
amount, her right to homestead would not thereby be de-
feated, or the presumption of her election to take it over-
come.^
The wife is not required to elect between a bequest by the
husband of half his property — and her interest in the home-
stead.'
§ 8. Spirit of Exemption Laws — Election.
In a leading case, construing a will in which bequests
were expressly in lieu of dower but not thus given in lieu of
homestead — a case in a state where homestead devise is
not expressly prohibited by statute — the court took the
spirit of the statute into consideration, and inferred from
the non-alienation clause, the vesting of the homestead in the
widow and children of the decedent householder, and the
preservation of it from creditors for family use, — all under
the provisions of the statute, — that these purposes cannot be
defeated by the will of the householder. It is argued from
analogy, that as he cannot defeat dower he cannot defeat
homestead which resembles it. It is inquired : If the home-
stead is not to be kept for the widow and minor children,
" why should it not be appropriated to the purpose of paying
honest creditors as well as leave it to the caprice of the hus-
band to dispose of by will? Why should the husband be re-
strained from deeding or mortgaging it during his life and be
permitted to will it away when he dies?" Pertinent ques-
tions, had they been addressed to the legislature, the reader
may say ; but, to show the' spirit of the legislation already
done, they are admissible here. The will before the court
was silent as to homestead ; and the point to be decided was
whether the widowed devisee must elect between homestead
and the bequests. The intent of the testator on this point
was sought in the terms of the testament. She must be ex-
cluded from neither if exclusion does not clearly appear to
have been the intent.* The conclusion was that the husband,
'Schlarbv.Holdcrbaum, 80Ia. 394. »McGowan v. Baldwin, 46 Minn.
« Stevens v. Stevens, 50 la. 491. 477.
30 * Re Wells' Estate, 63 Vt 116.
4:66 EE8TEAINT OF TESTAMESTTAEY DISPOSITION.
who had expressly willed bequests to her in lieu of dower,
meant also that they should be in lieu of homestead ; but that
the spirit of the law forbade him from devising the homestead
from his wife and children absolutely: so she was put to her
election between her right under the will and her right under
the statute.! The court said no distinction could be made be-
tween dower and homestead as to the rule of election between
either and a bequest in lieu of it. The rule as to dower is
that the will must clearly show a bequest is in lieu of dower —
otherwise she may take both.
The spirit of a homestead statute similar to the one above
construed was held inconsistent with the power of the hus-
band to will the homestead.^ The statute exempted the home-
stead from execution ; forbade the sale or incumbrance of it
by the husband-owner alone ; and continued it after the hus-
band's death during its occupancy by his widow and minor
children. The right created was declared to be a freehold es-
tate during its continuance, which could not be terminated
by the will of the husband without violence to the spirit and
intent of the statute.'
A widow, not actually electing to take under her husband's
will, and not having her share of the estate laid off to her,
lived several years, till her death, on lands including the acre-
age allowed as a homestead (forty), and much more. This was
a passive election to take homestead in lieu of dower. Her
interest did not descend to her heirs, as it was a life estate.*
Her occupation of one hundred and sixty acres instead of
forty did not defeat her right to homestead in the included
forty .^ Her failure to have the limited area platted did not
defeat that right.^
A wife, by will, though she be' entitled to make one, can-
not cut off her surviving husband from his right of tenancy
by curtesy (called dower), or his right of homestead, when
they are conferred by law, or when he has the legal right of
election between the two.'
1 Meech v. Meech, 37 Vt 414. » lb.; Stevens v. Stevens, 50 la. 491 ;
2 Brettun v. Fox, 100 Mass. 234 Darrah v. Cunningham, 73 la. 13a
» 76. 6 Thomas v. Thomas, 73 la. 657.
*■ Schlarb V. Holderbaura, 80 la. 394. ' Stewart v. Brand, 23 la. 48L
Compare McDonald v. McDonald, 76
SPIEIT OF EXEMPTION LAWS — ELECTION.' 46'7
When a homestead is inalienable by a married woman act-
ing alone in the conveyance, while such person is duly author-
ized to devise any oi!^ her property without restraint, there
can be no doubt about the meaning. Alienation or convey-
ance cannot be then rightfully construed to include disposition
by will. Take these provisions :
"No conveyance of the homestead interest, when this interest
is separate property of the wife, shall be valid or binding unless .
signed and acknowledged by the husband living with his wife,
and also by her as the owner." ^ A married woman may dispose
of her estate, real and personal, by last will and testament, in
the same manner as if she were not married." Taking these
laws together, a married woman may dispose of her individ-
ually-owned homestead by will but not by deed. So the cited
sections have been understood, A wife, living with her hus-
band, willed her homestead to her brother. The will was
maintained by the court, which said that the legislature had
not intended to prevent the owner's disposition of homestead
property by will, " in the same manner and with the same ef-
fect " that other real estate may be devised. And the rule
was declared the same, whethei* the husband or wife be the
sole owner and ^testator.' Yet it was added that if the survi-
vor be dissatisfied with the will of his deceased spouse, his
remedy is by renouncing the will and claiming his distributive
share, whether it include homestead or other property ; or, if
the will made no provision for him, to claim without renounc-
ing.^ So, while the will of the testatrjx is valid, and will have
effect unless statutory rights are claimed, the deed of a mar-
ried woman alone would be absolutely void as a conveyance
of her homestead. In the absence of a will and of children,
the survivor takes the homestead by descent ; the right of sur-
vivorship depends on intestacy ; ' yet as the survivor may claim
under the statute despite the will, the difference between tes-
tacy and intestacy need not irrevocably affect the survivor's
rights.
' Under a statute expressly exempting homestead " from the
' Mississippi Code (1880), g 1260. ner v. Turner, 30 Miss. 428 ; Nash v.
2/6., § 1169. Young, 31 Miss. 134.
' Kelly V. Aired, 65 Miss. 497. » Kelly v. Aired, supra; Norris v.
*Ib., citing Code, §§ 1173-4; Tur- Callahan, 59 Miss. 140.
4:68 EE8TEAINT OF TESTAMENTAKT DISPOSITION.
laws of conveyance, descent and devise," ' the following case
arose : A wife, owning her homestead and other real estate
in her own right, and residing with her husband on the home-
stead, willed half of the land to her nephew, and the other
half (which included the homestead) to her brother. She cut
her husband off — not with a shilling — but with one ton of
hwy (printed in italics in the report of the case, perhaps to
call attention to the innuendo).
Her husband eschewed the hay by renouncing the will and
claiming under the statute. The court decided that he was
entitled to half the lands in fee, under the governing statute,''
and said that the homestead act in force at the time of the
wife's death, " in express terms exempts the homestead from
the laws of conveyance, descent and devise. Under this stat-
ute, which must control, the wife had no power to devise the
homestead to another, and thus deprive the husband of that
estate." '
» Stat of niiaois (Starr & G), ^ Dower Act, § 12.
p. 1097, Act of 1874 ' Henson v. Moore, 104 ID. 403, ^.
CHAPTEE XV.
SALE, WITH HOMESTEAD USE RESERVED.
1. By Owner — Generally.
3. By the Owning Husband's Sole
Deed
3. Reservation of Use Necessary.
4. Restraint and Exemption —
When Correlative.
5. Sale by Solvent Owner Before
Selection.
6. No Sale by Insolvent Debtor.
§ 7. Sale by Husband and Wifa
8. Execution Sala
9. Sale of the Reversion.
10. Sale by Administrator.
11. No Sale, During Homestead Oc-
cupancy, by Administrator.
13. The Fee of Homestead Not an
Asset
13. Comment.
§ 1. By Owner — Generally.
Since the jus disponendi is a common-law right, and any
legal restraint upon it must be strictly construed, it follows
as a general rule that a homestead, that is, the dwelling and
appurtenances occupied by a family and exempt from forced
sale, may be freely sold or mortgaged by the owner, except
so far as such alienation is validly interdicted.' Generally
speaking, there is no interdiction respecting the alienation' of
homesteads by unmarried owners. On the other hand, it is
almost as general that a married man cannot dispose of
his homestead without the consent of his wife. The inhi-
bition is not limited to those who are insolvent debtors but
extends to all husbands, whether indebted or not (though the
rule in one state is exceptional in this respect), and, by many
statutes, it extends to wives too when they own homesteads.
Where homestead dedication is optional with the owner,
and the privilege of exemption is dependent upon his action,
his power of alienation of his home property is unrestrained
up to the time of his making a valid dedication and thus tak-
ing upon himself the onerous conditions of the benefit.^
Where no formal declaration i^ required, disability to sell has
been imposed by the legislature in conjunction with the grant
of th6 exemption privilege.' And exemption has been ac-
'Hannon v. Sommer, 10 Fed. 601. 3 Kennedy v. Stacey, 1 Bax: 220.
2Boreham v. Byrne, 83 Cal. 23, 3S.
4:70 SALE, WITH HOMESTEAD USE EESEEVBD.
corded, with the owner left free to alienate without any res-
ervation ; ' and it has been accorded with the owner's selling
capacity unaffected though his right to hypothecate Was
taken away.^
There has been an important difference among expositors
as to the application of the restraint ; as to whether it is a re-
striction upon the alienation of the exempt realty itself, or of
such interest in it as is essential to family protection. The
diverging point, whence the holders of opposing views have
started oh their different roads, is the word homestead,. Stat-
utes, precisely alike in the employment of the word, have
been interpreted differently by the courts : most of them hold-
ing that the sale of the exempt realty is restrained, and the
others that only the sale of the interest above mentioned is
restrained ; the former holding that homestead means the ex-
empt family dwelling, while the latter treat it as the right or
privilege of occupancy. '
If homestead anywhere does not mean a prescribed quantity
of realty (measured by acreage or appraisement), but only the
right of occupancy, use and usufruct of such quantity, as
some assert, then only that would be affected by the common
alienation clause : why then might not the owner alone sell
the fee, reserving the homestead in that sense? His wife and
children would still be sheltered, and all that the law contem-
plates by exemption, under such a definition of homestead,
would remain. His wife's joinder would be necessary to sell
the use and privilege, but not to sell the realty with the use
reserved. First he could sell the fee, reserving life estate for
him and her ; then he could sell the life estate, reserving lease-
hold right at a stipulated rent — and the family would remain
with him on the premises with the homestead intact. The
children have no rights under the homestead laws, generally
speaking, which are vested presently in them beyond the con-
trol of their parents, their natural guardians. The wife has
no rights, under such laws, further than to be protected in her
homestead : so, if 'homestead be defined as above mentioned,
she can have nothing to say when that is not conveyed by her
ir)eir y. Wilson. 84 Ky. 14 i^Van Wickle v. Landry, 39 La,
Ann. 330.
BY OWNEE — GENEEALLT. 471
husband who merely sells his own property with that right
excepted from the sale. Nobody goes so far as this in claim-
ing the exceptional application of the restraint, but how can
these consequences be avoided? They stare the exceptional
definition in the face.
Everybody shrinks from such results. After citing several
cases of its own, a court said : " These decisions have failed
to recognize any distinction between the conveyance of the
homestead premises and the mere right of homestead, which
is recognized by some respectable authorities. . It is
manifest that if the owner were permitted to incumber the
fee or reversion of his homestead, as distinguished from the
mere right of undisturbed occupancy — and by a mode of
alienation dispensing with the voluntary assent and signature
of his wife — the provision of the constitution under discus-
sion ' would have little more binding eflRcacy than a rope of
sand, and its policy could be evaded by the husband with fatal
facility. All that would be necessary, to effect such alienation,
would be for the husband to convey or mortgage the premises
one day, and abandon th,em the next ; all of which might be
done against the most earnest protest of an unwilling wife." ^
Sole sale or mortgage by the husband is void.'
If, in a former case, decided by this court, there was any
recognition of a distinction between a conveyance of the fee
of homestead property, and that of homestead right in such
property,* the very opposite view is here strongly presented.
A statute which forbade the husband's conveyance of the
homestead or amy interest therein by his sole deed was held to
forbid his conveyance of either his own or his family's interest
in the homestead. His deed is absolutely void because he has
no capacity to make it.' He cannot alone sell the homestead
1 Const of Alabama (1875), art. X, McBride, 69 Ala. 510 ; Seaman v.
§ 2, which declares that a mortgage Nolen, 68 Ala. 463 ; Halso v. Sea-
or other alienation of a homestead, wright, 65 Ala. 431 ; Garner v. Bond,
by the owner, if a married man, 61 Ala. 84 ; Cahall v. Building A«s'n.
"shall not be valid without the vol- 61 Ala. 233; Balkum v. Wood, 58
untary signature and assent of the Ala. 643; McGuire v. Van Pelt, 55
wife." See Ala. Code (1876), § 3833. Ala. 344.
2 Alf ord V. Lehman, 76 Ala. 536-9. ^ Fellows v. Lewis, 65 Ala. 343.
3 Hood V. Powell, 73 Ala. 171 ; Scott » AbeU v. Lothrpp, 47 Vt 375.
v. Simons, 70 Ala. 853 ; Slaughter v.
472'
realty and waive the homestead right.' And, with homestead
meaning the exempt family-home-property, he cannot sell it
with the homestead right expressly reserved, without the
joinder of his wife in the conveyance.
After fixing the limit of forty acres of land not in any town,
plat, or a lot in such plat, neither exceeding fifteen hundred
dollars in value, as homestead, it is added, in the constitution
so restricting it, that a " mortgage or other alienation of such
)and by the owner thereof, if a married man, shall not be
valid without the signature of the wife to the same." ^ It is
held under this provision that alienation of the homestead
(the land exempt) by the husband alone is void as to both
himself and his wife.' A contract to sell the exemption right,
made by the husband alone, is void.* The right is not trans-
latable by both himself and his wife. The husband alone
cannot waive this right.-'
§ 2. By the Owning Husband's Sole Deed.
One state has this provision : " No mortgage or other alien-
ation by a married man, of his homestead, exempt by law
from execution, shall be valid or of any effect as to such
homestead, without the signature of his wife to the same." *
The inhibition is not exceptional in form or apparent signifi-
cation to that which prevails in nearly all the states which re-
strain the husband from alienating the homestead without his
wife's consent, and her signature to the deed. In several, the
« Jewett V. Brock, 33 Vt 65. See 131 ; Sherrid v. Southwick, 43 Mich.
Davis V. Andrews, 30 Vt. 678 ; Howe 515 ; ShoeiUaker v. Collins, 49 Mich.
V. Adams, 38 Vt. 541. • 597 ; Griffin v. Johnson, 37 Mich. 93.
* Const, of Michigan, art. XVI, §2. ^ Stevenson v. Jackson, 40 Mich.
« Dye V. Mann, 10 Mich. 291 ; Mc- 702 ; Ring v. Burt, 17 Mich. 465.
Keev. Wilcox, 11 Mich. 358; Ring V. 5 King v. Moore, 10 Mich. 538;
Burt, 17 Mich. 465 ; Fisher v. Meister, Beecher v. Baldy, 7 Mich. 488 ; Sny-
24 Mich. 447 ; Snyder v. People, 26 der v. People, 26 Mich. 106 ; Sherrid
Mich. 106 ; Comstock v. Comstock, 27 v. Southwick, 48 Mich. 515.
Mich. 97 ; Wallace v. Harris, 32 Mich. e Sanborn & B.'s Annot Stat of
880 ; Amphlett v. Hibbard, 29 Mich. Wisconsin (1889), § 3303 ; Wis. Rev.
298; Smith v. Rumsey, 33 Mich. 183; Stat (1858), ch. 134, § 34; R S. (1878),
Hanchett v. McQueen, 33 Mich. 23 ; § 2303 ; Laws of 1864, ch. 370, §§ 1, 2.
Phillips V. Stauch, 20 Mich. 369 ; Wat- The above extract is the same in all
ertown Ins. Co. v. G. etc. Co., 41 Mich, these successive statutes.
473
language is almost uniform with the provision quoted above.
The following specimens will suflBce to show this:
". . . Mortgage or other alienation of such land by the
owner thereof, if a married man, shall not be valid without
the signature of the wife to the same." ^
"A conveyance or incumbrance by the owner is of no valid-
ity unless the husband and wife, if the owner is married, con-
cur in and sign the same joint instrument." ^
" A homestead [describing itj shall not be alienated without
the joint consent of husband and wife when that relation ex-
ists." 3
" The homestead of a married person cannot be conveyed
or incumbered unless the instrument by which it is conveyed
or incumbered is executed and acknovrledged by both husband
and wife." *
". . . The husband shall be debarred from and incapable
of selling, mortgaging or alienating the homestead in any
manner whatever, and every such sale, mortgage or alienation
is hereby declared null and void; . . . provided, however,
that nothing herein contained shall be so construed as to pre-
vent the husband -and wife from jointly conveying, mortgag-
ing, alienating or in any other manner disposing of such home-
stead or any part thereof." '
By construction, however, the statute first quoted at the
beginning of this section is made exceptional to those verbally
like it in other states. The difference turns on the significa-
tion given to the word homestead. In other states that word
usually is held synonymous with the urban or rural quantum
of land and improvements authorized to be held as exempt,
while in this one it is construed to mean the merfe right of oc-
cupying and enjoying that quantum while the married bene- ,
ficiaries, or either of them, may live. Hence results, in the
latter, the conclusion' that a married owner of the exempt
realty may sell the title in fee without his wife's signature to
the deed, if he reserves life-estate interest for himself and her,
so that neither can be disturbed in the enjoyment and oocu-
1 Const. Mich., art. XVI, g 2. < Civil Code California, § 1243.
2 McCIain's Code of Iowa, § 3165. 5 Rev. Stat, of Missouri (1889), § 5435.
» Gen. Stat of Kansas (1889), § 2996 ;
Const of Kas., art 15, § 9.
474 SALE, WITH HOMESTEAD USE EE8EEVED.
pancy which constitute homestead according to this interpre-
tation.
This interprfetation was given (the old statute containing
precisely the same provision as that quoted above) in a case'
presenting the following facts :
A married householder conveyed his homestead to his
daughter, without his wife's signature, with this reservation:
"The party of the first part reserves the sole, free and abso-
lute use and control of all the above described lands so long
as he and his wife, or either of them, may live." On the
death of both parents the daughter took possession. A son
brought a suit of ejectment to recover his portion. The trial
court found that the deed did not convey the homestead, but
reserved and excepted it; that the deed conveyed the re-
mainder over on the expiration of a life estate to the grantor
for two lives in being; that the deed was valid, so that, on
the death of the grantor and his wife, the grantee took right-
ful possession of the land in fee simple.
On appeal it was held in general that an owner may convey
realty in fee with reservation of life estate ; that the common-
law rule of invalidity when such conveyance is a feoffment —
the freehold estate being created to commence infiduro — is
inapplicable here where the statute recognizes and defines es-
tates in expectancy as " a future estate is an estate limited to
commence in possession at a future day, either without the in-
tervention of a precedent eetate, or on the determination, by
lapse of time or otherwise, of a precedent estate created at
the same time.^ By the common law, there could be no re-
mainder conveyed unless a precedent estate was created at the-
same time ; that is, nothing could remain without an estate
precedent.' Under the statute cited, whether that preceding
estate be created in the instrument, or be in existence before
the conveyance and reserved therein, there may be remainder
to commence in future. So the court concluded that home-
stead land may be conveyed in fee, the conveyance to take ef-
' Ferguson v. Mason, 60 Wis. 377. Bissell v. Grant, 35 Ct 288: Const
2 Citing R S. (1878), § 2034. Wis., art. I, § 14 : "All lands within
? Citing 2 Washburn, Real Prop, the state are declared to be allodial,
(4th ed.) 592; Barrett v. French, 1 and feudal tenures are prohibited."
Ct. 362 ; Fish v. Sawyer, 11 Ct 545 ;
EESEEVATION OF USE NECESSAEY. 475
feot at a future time. Had the land conveyed been other tTian
a homestead, its sale, to have effect in future with life estate
reserved to the grantor, would have been clearly valid.
The sale of the homestead, as described in the statement of
facts, must be tested by the statutory provision relative to
such sale, extracted above.
§ 3. Reservation of Use Necessary.
As the court stated, it is as firmly established in this state
as in any, that a married man's unqualified deed of the home-
stead property, without his wife's signature, is an absolutfe
nullity. No reliance is put upon the law's reservation of the
homestead as presumably written in the deed, but the statute
is taken to be a prohibition of the sale of the exempt quan-
tum of realty by the husband-owner alone. It is conceded
by the court that such a deed should be held void, and not
held as a conveyance of the fee with the life estate reserved
to the grantor by law. Holding it void is said to be essential
to the protection of the wife in her rights ; . to save her from
litigation ; to prevent a " eloud upon , her interest or estate; "
and hence " the better rule is to hold- a mortgage or other in-
strument of alienation of a homestead absolutely void, if in
terms it conveys the whole estate and wants the signature of
the wife of the grantor." ^
. It will be observed that the nullity of such deed is not in-
ferred from the language of the statute but from reasons ab
inconvenienti so as not to conflict with the construction given.
But it will also be observed that the term homestead is em-
ployed, in the extract from the opinion in the case cited, in a
sense out of harmony with that construction ; for to speak
of the mortgage of a mere right of occupancy and enjoyment
would not be intelligible. The court here evidently meant
the exempt realty by the word " homestead."
The point of the decision, after these side concessions,, is
that the wife need not sign the deed conveying the property
if h'er homestead rights be reserved. The statutory term is
thus qualified and changed in meaning, apparently. It is
made to read as follows : No mortgage or other alienation
by a married man, of his homestead {or limited quantity of
1 Ferguson v. Mason, 60 Wis. 377, S90-1.
476 SALE, WITH HOMESTEAD USE EESEBVED.
realty), exempt by law from execution, shall be valid or of
any effect as to {the right of occupying and enjoying for life)
such homestead, without the signature of his wife to the same.
1 These parenthetical interpolations are fairly inferred from
the construction given by the court, which claims to have de-
parted from the letter of the statute to save its spirit, from
the language of the legislator tq. carry out his intentions.' ■
The application of the rule that the spirit should prevail
over the letter — or that what is not within the intention of
the makers of the statute is not within the statute — has not
been found necessary by the supreme courts of other states
when deciding causes turning upon statutory language almost
veriatim with the one thus interpolated and constructed. This
will be seen herein when their deliverances upon void sales
of homesteads come under review. They have not considered
such provisions ambiguous or needing interpretation. The
doctrine in general is that such inhibition renders alienation
by the husband without his wife's joinder absolutely void,
conveying nothing of his interest or hers in the homestead.''
§ 4. Restraint and Exemption — When Correlative.
There is a phrase in the non-alienation provision exception-
ally interpreted as above stated, which seems to throw light
upon the meaning of the legislator, if any is needed. It is
"exempt by law from execution." This phrase qualifies
" homestead." The sentence is : " !N"o mortgage or other alien-
tion by a married man, of his hom,estead, exemjpt iy law from
execution, shall be valid or of any effect as to such homestead
[*'. e., homestead exempt by law from execution], without the
signature of his wife to the same."
"What was the homestead thus exempt? What was pro-
tected from forced sale? It was land not exceeding forty
acres, with improvements, which was exempt. Creditors
could not touch the fee nor any less estate in this land. And
what they could not reach by forced sale, the husband alone
' lb.; citing to support the i-ule of 28 Wis. 84 ; Wochoska v. Wochoska,
interpretation, Wilkinson v. Leland, 45 Wis. 423.
2 Pet 627 ; 7 Bacon's Abr. (Lib. ed.), ^ Cases cited in section 5 of chap-
458, tit II, § 5 ; Holmes v. Carley, 31 ter 12.
N. y. 289; Riehl v, Bingenheimer,
EESTEAINT AND EXEMPTION WHEN COEEELATIVE. 477
*
could not alienate at private sale or in any way. The ex-
emption is made the measure of the restraint upon alienation,
by this statute. This is plain upon its face.
It is not everywhere true that exemption and restraint of
alienation are correlative, but anywhere the legislator may
make it so ; and that in the provision above quoted he has
made it so, would be said but for the construction of the
phrase to the contrary in the case under review. There this
point was made by counsel, and the court met it thus : " It
has been suggested that the exemption of a homestead from
the lien of judgments against the owner, and from sale on
execution issued on such judgments, is no broader or more
absolute than is the disability of the married owner to alienate
the same without the concurrence of his wife. Were this a
correct proposition, it would necessarily follow that if the
owner, without the concurrence of his wife, could convey the
reversionary interest in the homestead property, a judgment
against the owner would become a lien on such interest, And
the same might be sold on execution to satisfy the judgment.
But the proposition is not correct. The statute not only pro-
tects the homestead property from such liens and sales while
it remains a homestead, but it protects the same therefrom in
the hands of the grantee of the owner of such homestead, his
devisee and his heirs." ^
The point made by counsel was not respecting the duration
of the exemption but its subject; it was that the thing ex-
empted from forced sale is precisely the thing restrained from
alienation by its owner; that if that thing is nothing more
than life estate, the remainder may be executed for debt as
readily as it may be alienated by the owner.
Eecurring to the position of the court (that reservation of
the right of occupancy and enjoyment for life^ in the deed
conveying the fee, was a reservation of the homestead within
the meaning of the statute), the reader may ask whether the
husband alone could not have sold more, under the interpre-
tation of the court. Leasehold title is sufficient for homestead.
Could the husband alone have made a further sale — that of
his reserved life estate — stipulating that he have a lease of
iFei'guson v. Mason, supra, at p. 393, aiting R. S. Wis., §§ 2371, 3380-3.
478 SALE, WITH HOMESTEAD USE EE PEEVED.
the premises for his life, and that of his wife after him, and
pro'" ''sing to pay an annual rent? It is submitted that the
second sale would have been as consonant with the statute as
the first. It comes within the reasoning of the court.
Whatever the weight of the reasoning; however exceptional
the interpretation to that of similar statutes by the supreme
courts of other states, the law in the state where this decision
was rendered is necessarily just what the supreme court there
has declared it to be. And the decision has been there fol-
lowed, or cited with approval.'
And it had been partially foreshadowed. The conveyance
of title had been held ineffectual to destroy homestead when
there was no intention of abandoning possession.^ The wife's
acknowledgment to the conveyance of a homestead was not
required when she had no estate in the property coJiveyed.'
Several deliverances on alienation by one of the marital par-
ties had indicated, to some degree, the conclusion reached in
the case above reviewed.*
The surviving spouse has been sustained in the alienation of
the homestead, with the right of occupancy hy members of
the family reserved.'
§ 5. Sale hj Solvent Owner Before Selection.
In one state, however, distinction has been made between
solvent and insolvent owners, in a late decision overruling or
modifying many previous ones ; for it was held that a solv-
ent married' man, without joinder by his wife, may convey
his homestead when it has not been selected by him, or al-
lotted to him, though the right of selection or allotment ex-
ists.' The case was in exposition of the following provisions
of the constitution of that state : " Every homestead, and the
1 Newman v. Waterman, 63 Wis. Green v. Pierce, 60 Wis. 373; Allen
616; Leach v. Leach, 65 Wis. 292; v.' Perry, 56 Wis. 178; Kent v,, Las-
Albright V. Albright, 70 Wis. 536; ley, 48 Wis. 265; Petesch v. Ham-
Herrou V. Knapp, 72 Wis. 555. See bach, 48 Wis. 451 ; Hanson v. Edgar,
Keyes v. Scanlan, 63 Wis. 346. 34 Wis. 653 ; Williams v. Starr, '6
2 Murphy v. Crouch, 34 Wis. 365. Wis. 534.
3 Godfrey v. Thornton, 46 Wis. 677, » Hannon v. Sommer, 10 Fed. 601 ;
overruling Hait v. Houle, 9 Wis. 473. Constitution of Kansas, art 15, § 9;
* Woohoska v. Wochoska, 45 Wis. Dayton v. Donart, 22 Kas. 256 ; Cat-
423 ; Baker v. Dayton, 28 Wis. 367 ; ton v. Talley, 22 Kas. 256. i
Campbell v. Babcook, 27 Wis. 513; « Hughes v. Hodges, 103 N. C. 236.
SALE BY SOLVENT OWNER BEFOEB SELECTION. 479
dwellings and buildings used therewith, not exceeding in value
one thousand dollars, to b6 selected by the owner thereof, or,
in lieu thereof, at the option of the owner, any lot in a town
or village, with the dwelling and buildings used thereon,
owned and occupied by any resident of this state, and not ex-
ceeding the value of one thousahd dollars, shall be exempt
from sale under execution or other final process obtained on
any debt. But no property shall be exempt from sale for
taxes or for payment of obligations contracted for the pur-
chase of said premises. The homestead, after the death of the
owner thereof, shall be exempt from the payment of any debt
during the minority of his children, or any one of them. If
the owner of a homestead die, leaving a widow, but no chil-
dren, the same shall be exempt from the debts of her husband,
and the rents and profits thereof shall inure to her benefit dur-
ing her widowhood, unless she be the owner of a homestead
in her own right. Nothing contained in the foregoing sec-
tions of this article shall operate to prevent the owner of a
homestead from disposing of the same by deed; but no deed
made by the owner of the homestead shall be valid without
the voluntary signature and assent of his wife, signified on her
private examination according to lak." ^
These provisions are not artistically written, but the mean-
ing appears. The term homestead is employed throughout to
represent the exempt family dwelling of the owner limited in
value to $1,000 — not any fanciful "estate," right, incum-
brance or privilege. The restraint upon alienation by the
owning husband's sole deed is clear. The phrase, "to be
selected by the owner," is obscure, but other clauses enlighten
it ^— such as that protecting the homestead, after the owner's
death, in favor of his widow or minor children, which is not
to be construed as dependent upon his having made any selec-
tion during his life-time further than by occupancy.
The restraint upon the husband is not found in the exemp-
tion provision, but in that relative to alienation. Only a
debtor is benefited by exemption, but a solvent owner is af-
fected by the interdiction to sell without his wife's concur-
rence. This interdiction, as expressed in the article above
1 Const North Carolina, art X, §g 3-8,
480
SALE, WITH HOMESTEAD USB EESBEVED.
quoted, is substantially the same as that prevalent in most of
the states.
The present writer may be influenced unconsciously by the
desire to see the homestead laws of the country harmonized
as far as possible, so that a symmetrical system may result;
but, guarding against any such predilection, he may look dis-
interestedly upon the opinion of the court and the dissent, in
the case above cited.
^ The court held that an unembarrassed owner of land may sell
it free from all homestead rights, without his wife's assent, if
]t has not been allotted to him as a homestead, unless he has
mortgaged it with homestead right reserved, rendering allot-
ment necessary upon foreclosure. To simplify the point of
the decision, take a husband free from debt who owns land,
altogether unincumbered, which he occupies with his wife and
children as his and their home, but which he has not formally
selected as his exempt homestead within the monetary limit
of exemption : the deliverance of the court is that he can val-
idly convey it with complete title : without his wife's consent :
can he? A line of prior decisions seems to answer in the
negative; to hold formal selection by the owner otherwise
than by occupancy, or allotment by an oflBcer, not essential
to the existence of the exemptions or to the effectuality of
the restraint upon alienation.'
Several of these decisions were reviewed in the majority
opinion, and all cited in the minority one. The former dwelt
much on the meaning of homestead, and homestead right, and
may have been influenced by some fanciful definitions which
do not include realty as an essential idea in the term. It
quotes approvingly, from one of the above cited cases :^ "It
is the settled construction of this court, that the homestead
right is a guality annexed to land ... ; " from another,
1 Abbott V. Cromartie, 73 N. C, 892 ; N. G. 165 ; "Wyche v. Wyche, 85 N. C.
Lambert v. Kinnery. 74 N. C. 348; 90; Burton v. Spiers, 87 N. C. 87
Beavan v. Speed, 74 N. C. 544; Lit- Gumming v. Bloodworth, 87 N. C.
tlejohn V. Egert'on, 76 N. C. 468; 86; Murchison v. Plyler, 87 N. C. 81
Bank v. Green, 78 N. G. 247 ; Whar- Mebane v. Layton, 89 N. C. 399
ton V. Leggett, 80 N. C. 169; Gheen Markham v. Hicks, 90 N. C. 204
V. Summey, 80 N. G. 187 ; Murphy v. Castleberry v. Maynard, 95 N. G 281
McNeill, 83 N. G. 331 ; Adrian v. Shaw, 2 Gheen v. Summey, mpra.
83 N. C. 474; Watkins v. Overby, 83
NO SALE BY INSOLVENT DEBTOE.
4:81
" the incidental power to have the homestead allotted ; " ' from
another, " the right of homestead was a quaUPy cmnensed to
land {like a condition), whereby an estate is exenvpted from sale
under execution." ^
"With a slight modification Of the second of the above quo-
tations, the court, accepting these definitions, came to view
homestead as an ideal rather than a tangible thing, before its
formal allotment, saying : " The ideal homestead, created by
the constitution and Ideated by proceedings under the statute,
is born of financial erriba/rrassment, and exists as to any given >
body of land only when the creditor can arm the sheriff with
power to sell it to satisfy a judgment ; or a mortgagee, holding
subject to an express reservation of the right of homestead in
the land mortgaged, has the right to foreclose. . . . The
constitution does not annex the quality to the land of one who
is free from financial embarrassment, for the right, operating
as it does to exempt an estate from sale for debt, must of ne-
cessity be the creation of the debt." ' In other words, the debt
creates the right.
§ 6. No Sale by Insolvent Debtor.
The doctrine of the court is that there is no homestead in
land unless the owner is a debtor and has it allotted to him
pending execution ; that ,it is merely ideal before he comes to
extremity — not a tangible thing, and therefore the solvent
owner may sell the land his family occupies as a home with-
out his wife's concurrence ; that he may do so, because his
home, though within the monetary limit, is not a homestead in
the sense of the constitution.
The constitution means something tangible when treating
of homestead : for, a " lot in a city, town or village, with the
dwelling and buildings used thereon, owned and occupied by
any resident of this state, and not exceeding the value of one
thousand dollars," is not an ideal thing, not a quality, not an
incidental power, not a condition, but a dwelling-house and
ground which a family can occupy, selected by using it as a
home, by any owner who is a resident whether in debt or not.
And it is precisely this exempt realty, susceptible of being
1 Adrian v. Shaw, supra. ' lb.: Opinion, p. 348.
2 Littlejohn v. Edgerton, supra.
31
^82 SALE, WITH HOMESTEAD USE EESEKVED.
conveyed by deed (as an ideality, quality, incidental power or
condition is not), which the constitution forbids the owner's
conveying by deed without the wife's assent.
If there is fallacy in the reasoning of the court it seems at-
tributable to the common source — misuse of terms. Not
only the definition of homestead, but the purpose of the con-
stitutional provision under construction appears to have been
misapprehended so as to lead to the court's conclusion. Evi-
dently, from bare reading of the article, that purpose was the
conservation of homes for the welfare of the state, as the ob-
ject of like provisions in homestead laws and constitutional
ordinances, in other states, is understood to be. But the court,
throughout the decision, assumed that the purpose is one con-
ceived in humanity for impecunious debtors, founded in the
spirit of charity for insolvent land-owners to the exclusion of
all sympathy for the landless, designed to relieve the obligor
at the expense of the obligee without cost to the state. The
article, apparently, was thought to be classifiable with the
poor-laws, though not to benefit the abject poor, or those pe-
cuniarily below the class of freeholders. Hence the court con-
cluded that only owners in debt are entitled to homestead
protection ; only the wives of debtors have the veto power
over the conveyance of the family home.
The principal source of error in the doctrine laid down, if
there was error, appears to be in testing the wife's right of
defeating the alienation of her home, by the exemption rather
than by the non-alienation clause of the article. The restraint
is not upon the debtor but the owner — any owner, whether
in debt or not. " No deed made by the owner of the home-
stead ^hall be valid without the voluntary signature and as-
sent of his wife." If he has no wife, the inhibition does not
touch him. If he has one, she may aid in the preservation of
her home by refusing to sign it away, whether he be rich or
poor, creditor or debtor, thrifty or shiftless — so he be merely
an "owner" of the "occupied" "lot" and "dwelling," worth
no more than a thousand dollars.
It is not to save the home from the hammer only, that she
is accorded this right ; it is also to save it from the husband's
selling it from any motive, wise or unwise. Provident hus-
bands who can sell to advantage are not excepted from this
NO SALE BY INSOLVENT DEBTOE. 483
provision relative to owners any more than indiscreet, drunken
and profligate ones are excepted. Husbands must convince
their wives that the sale would be good for the. family, and
thus induce them to join in the conversance. The law pur-
posely makes the sale of the exempt home difficult in order to
conserve it, while it does not interdict alienation absolutely, as
theVe is hkely to be gobd reason for selling when two married
beneficiaries concur in the act.
The restraint upon the owner, for these reasons, is suffi-
ciently presented in the dissenting opinion of the case, to
which the reader's attention is directed. The decision will
speak for itself; it is law in its own state; whether the rea-
sons which underlie it will commend it to the profession be-
yond that state was a proper subject for inquiry. In justice,
to it, the cases cited and discussed therein, in addition to those
above cited here, should be presented.'
The conclusion of the court is that a solvent owner has no
exempt homestead which he is restrained from selling by his
sole deed ; that his residence, like all his other realt} may be
freely alienated by himself aloijp ; that it does not differ from
his other lands in this respect; that the constitution merely
gives him the right to claim homestead in case he should be-
come involved in debt ; that then he may select a thousand
dollars' worth of realty as exempt, or have it allotted to him
by the officer in charge of the execution, or by the court; that
what he has thus selected or has had allotted becomes in-
alienable without the assent of his wife, and that what he
sells alone while indebted is liable to subsequent homestead
claim as it would be to the wife's dower. • While this view of
homestead may seem difiPerent from the prevalent doctrine, it
must be respected as the law of the state, construed by a
court whose opinions are always learned and exhaustive.
In some respects the doctrine is rather against commerce
and jus disponendi than favorable. Persons dealing with the
seller of lands cannot always know whether he is in such a
1 Crummen v. Bennett, 68 N. C. 494 ; 93 N. C. 163 ; Gilmore v. Bright, 101
May ho y. Gotten, 69 N. C. 389; Hager N. C. 383; Lee v. Mosely, 101 N. C.
V. Nixon, 69 N. G. 108 ; Bruce v. 311 (cited in Hughes v. Hodges, 102
Strickland, 81 k G. 267 ; Sutton v. N. G. 286).
Askew, 66 N. G. 172; Arnold v. Estis,
484 SALE, WITH HOMESTEAD USE EESEEVED.
state of indebtedness as to preclude his right to give full title.
They have no notice by record. He may seem to be solvent
and flourishing, yet be financially in extremis. Is not the rule
of th« other states better? Is it not more conducive to the
interests of commerce and the free disposition of property to
have the limited home property exempt and inalienable by the
husband alone, while he may freely sell or mortgage all the
rest of his realty, with notice to the public of the reservation?
It would seem, from the exceptional doctrine laid down,
that not only the occupied dwelling or ground constituting
the debtor's family residence, but any other land of his, is sus-
ceptible of being allotted to him as exempt when execution is
pending; that he may then "select" his homestead. This
greatly adds to the uncertainty of the public as to what lands
may be contracted for without jeopardy, since it cannot be
well known whether the seller has yet come into that " con-
dition " of impecuniosity which will enable him to become a
beneficiary of the homestead law. ■
§ 7. Sale by Husband and Wife.
In statutes containing the clause that the owner shall not
alien or mortgage the homestead (meaning the prescribed
exempt quamMm of realty), without his wife's - joinder or
assent, the general rule is that any alienation of the fee
by both, which is silent as to reservation or release of the
right of use, conveys the entire right, title and interest,^ so
that the grantee is entitled to immediate possession, and may
oust the occupying grantors. Express reservation of the
right of use, or of life estate, or of anything excepted from
such conveyance, is necessary if anything is to be retained by
the grantors, as a general rule, in most of the states.
No doubt married grantors acting together, or any unmar-
ried grantor, may thus convey. And, after life estate has been
reserved, they may sell that with reservation of the right of
use for a term of years within their lives. And after that,
they may sell their right to this term, retaining leasehold only,
and yet have exemption right in that. "Were they to sell the
1 Weigeman v. Marsot, 13 Mo. App. Kendall v. Powers,' 96 Mo. 142 ;
676 ; Holland v. Kreider, 86 Mo. 59 ; Waterman v. Baldwin, 68 la. 265.
SALE BY HUSBANB AlvD WIFE. 485
fee, with express reservation of life estate, and then abandon
the premises, what would be the effect? Creditors could pro-
ceed against the life interest : for the holder of the fee could
not complain, since he would have no right to what he had
not bought ; and the grantors could not complain^ since thej'^
would have given up their homestead protection.
Married owners cannot thus sell the fee with reservation of
such less title as would preserve the home for the family for
a period, where the law invests their children with such " es-
tate of homestead " present or prospective as to render such
dispositions as those above mentioned inconsistent with such
right; especially, when assent by the owner to such provisions
is inferable from the act of homestead dedication.
" The homestead of a married person cannot be conveyed
or incumbered unless the instrument by which it is conveyed
or incumbered is executed and acknowledged by both husband
and wife." ^
This section is entirely free from ambiguity unless the word
homestead is liable to be taken for the mere right of family
occupancy instead of the exempt realty. Such misapplication
is precluded by the decisions upon this statutory restraint.
They treat the word in its palpable sense, as meaning the
property itself which is exempt as the family residence within
the monetary restriction fixed by another section of the stat-
ute. And it matters not whether the physical, tangible,
house-and-land homestead be owned by one spouse or by both ;
whether it is the husband's property or the wife's ; whether it
is community or separate property, both must unite in a joint
deed to convey or mortgage it.^ Separate deeds are insufficient.'
Under the section given, and the rest of the statute, there
is nothing to authorize the husband alone to alienate the
homestead, though the title be wholly in himself, and though
he reserved, for himself and wife, life estate therein. TJndei;
a former statute, it seems that the rule was different.* If the
property occupied as a home be worth more than the exempt
1 Civil Code of California, § 1242. Olarkin v. Lewis, 20 Cal. 634 ; Seara
^Building Ass'n v. Chalmers, 75 v. Dixon, 33 Cal. 266; GleasoU v.
Cal. 383 ; Flege v. Harvey, 47 Cal. Spray, 81 Cal. 217.
371; Barber v. Babel, 36 Cal. 11; 3 poole v. Gerard, 6 Cal. 72.
Lies' V. De Diablar, 13 Cal. 337; < Gee v. Moore, 14 Cal. 473 ; Bow-
486 SALE, WITH HOMESTEAD USE EESEEVED.
value, the excess has been held not subject to the inhibition
relative to mortgage by the husband alone.'
It has been held that the ovrner of a homestead (with his
wife's concurrence, if he be married) may sell the fee so as to
pass it to the grantee subject to the right of occupancy by the
grantor; that the effect of such sale would be to leave the
right in the grantor though no such reservation be expressed
in the conveyance, and that on the termination of the occu-
pancy, the grantee would become vested with aU the right,
title and interest. If the grantor deed the fee to one grantee
without express reservation of homestead use, and afterwards
to another with express reservation of it, the first takes the
land free from the homestead right after its abandonment,
while the second takes nothing.'^
§ 8. Execution Sale.
The supreme court of the United States inferred, from the
doctrine that there may be voluntary sale of the fee of the
homestead premises, with the right of use remaining in the
grantors, that there might also be forced sale of it with that
right reserved.' This was held in a case coming from a state
holding to the doctrine of such voluntary conveyance, in which
many of the above cited cases were adduced and discussed.
Itwas said : " The only difference between a conveyance made
by a judgment debtor who has a homestead and by the sheriff
under a sale or execution against his land is, one is the act of
the party, the other of the law — one a voluntary, the other
an involuntary conveyance, ... As the land can be sold
by the owner subject to the homestead, so a judgment is a
lien on the land subject to the homestead, and the land or fee
can be sold under execution subject to the homestead, and the
purchaser, as in the case of a deed by the debtor without
man v. Norton, 16 Cal 313 ; Sears v. McDonald v. Crandall, 43 111. 231 ;
Dixon, 33 Cal. 117; McQuade v. Vasey v. Trustees, 59 111. 191; Blisa
Whaley, 31 Cal. 536. v. Clark, 39 111. 590 ; Brown v. Coon,
1 Bowman v. Norton, 16 Cal. 313. 86 111. 343; Best v. Allen, 30 111. 30;
But see Marbury v. Euiz, 58 Cal. 11, Patterson v. Kreig, 39 111. 514 ; Young
and Grogan v. Thrift, 58 Cal. 378; v. Graff, 28 111. 20; Green v. Marks,
Waterloo Turnpike Go. ^. Cole, 51 35 111. 331. See Mdore v. Flynn, 135 ,
CaL 381. 111. 74.
« Hewitt V. Templeton, 48 111. 367 ; ^ Black v. Curran, 14 Wall. 469.
EXECUTIOIf SALE. ^ ^ 487
the waiver, has the absolute title when the homestead right
ceases."
But the state supreme court subsequently poiiited out that
the above deliverance was rendered under a misapprehension
of the decisions above cited and commented upon by the fed-
eral court. " This court has always made a marked distinc-
tion between cases of voluntary conveyance by the homestead
occupant and those of compulsory conveyance by the officer
of the law." Then the statutory inhibition of forced sale is
stated, with the remark : " It is not the mere homestead right
of occupancy which is exempted from levy and forced sale,
but it is tlie lot of ground occupied as a residence." ^
Put the exemption clause and the non-alienation clause to-
gether :
" There shall be exempt from levy and forced sale . . .
the lot of ground and buildings thereon occupied as a res-
idence."
" No release or Waiver of such exemption shaU be valid un-
less in writing, subscribed by the householder and his wife, if
he have one, and acknowledged in the same manner as con-
veyances of real estate. . . ." ^
There is nothing correlative between the two provisions.
The lot cannot be sold by the sheriff, but it may be sold by
the owner (as any other property of his), with ho restraint
upon him except that he cannot sell aqd transfer it alone when
he has a wife. The proposition that, if he and she can sell
and deliver the lot with full title, they can sell a less title and
withhold delivery for a certain time, or until the happening
of a future event, is not antagonized by the clause exempting
it from forced sale.
There might be good argument on the naked statute, that
since waiver of exemption must be expressed in tire deed, a
conveyance without such waiver is a nullity ; but the decis-
ions of the state are otherwise, and such argument would
be futile.
Chief Justice Bleckley lucidly explained that under the con-
stitution of his state it is physical property which is exempt
as homestead — not something carved out of it, leaving the
iHartwell V. McDonald, 69 111. 393. 2 Extracts from the statute passed
upon in Black v. Curran, supra.
488 SALE, WITH HOMESTEAD USB KESBEVED.
so-called reversion liable to execution. Nothing of it can be
forced to sale during the homestead duration. Upon its ter-
mination, the i^i-operty may be subject to execution. The
ownership remains unchanged by the dedication of the prop-
erty to family use, as it existed before. The two thousand
dollars' worth of realty exempt is estimated upon the full
title — not upon the owner's life estate, or his and his wife's,
with the children's uncertain estate for years added.'
Property was bought at the price of $2,500, of which $1,800
were paid from a fund derived from the sale of a homestead.
The exemption right in the new purchase was held to be
eighteen twenty-fifths of the value of the land. The remain-
ing seven twenty-fifths composed no part of the new home-
stead. A mortgage having been put upon the whole, it was
held not given for purchase-money except to secure the
$1,800: so the mortgagee could proceed against seven twenty-
fifths of the land at once, and eventually against the rever-
sionary interest in the whole, on termination of the home-
stead right.^
" A homestead exemption, actually and rightly interposed,
has the effect in law of dividing the freehold into two quasi-
ownerships,— the one for life, and the other in remainder.
The first, or life ownership, unless forfeited by abandonment
of the possession, is as much beyond the influence of the ex-
ecution as if it was the property of a stranger. Execution in
the hands of a sheriff fastens no lien on property so held,
either on the life estate or the remainder. The exemptioner
may sell the fee of the property so held and vest a good title
in the purchaser, to the same extent, and with the same limita-
tions on his powers of disposition, as would be the case if his
debt was not in execution, and was not reduced to judgment." '
§ 9. Sale of the Reversion.
The fee cannot be sold under execution so as to leave the
homestead unsold, when homestead means exempt realty.
1 Van Horn v. McNeill, 79 Ga. 121 ; v. Smisson, 73 Ga. 423 ; Skinner v.
Stephenson v. Eberhart, 79 Ga. 116 ; Moye, 69 Ga. 476.
Jolly V. Lofton, 61 Ga. 154 ; Haslam 2 Johnson v. PouUain, 62 Ga. 376.
V. Campbell, 60 Ga. 650; Heard v. s Caldwell v, Pollak, 91 Ala. 358; 8
Downing, 47 Ga. 629 ; Moughon v. So. 546.
Maaterson, 59 Ga. 836. See City Bank
SALE OF THE EETBESION. 489
" It is the actual homestead and the dwellings and other
buildings used therewith, or, in lieu thereof, such portion of
the owner's estate as he may elect as is occupied hy him, that
is declared to be exempt from sale under execution. . . .
The land shall be set apart by metes and hounds, and in case
of the debtor's death, Teaving a wife and no children, the rents
and profits thereof shall inure to the widow during her widow-
hood. . . . We cannot perceive how these provisions can
be made to apply to a mere remainder in lands dependent
upon a life estate. . . . There can be no homestead with-
out a home or the immediate possibility of a home upon the
land itself." ' But it is possible to sell the exempt realty with
the privilege of occupancy excepted for a stated time.
It was held that when the homestead property was liable
to execution for a debt older than the exemption law and
therefore not affected by it, but was sold subject to the debt-
or's hpmestead right or privilege (as it would exist against a
debt subsequent), the purchaser " took the land with the in-
cumbrance ; and, the whole tract having been allotted to the
debtor, only the reversionary interest passed " to the pur-
chaser.^ Before the present act which forbids the sale of a
reversionary interest in a homestead by a creditor, he could
sell to satisfy an antecedent debt, with the debtor's home-
stead privilege reserved to him ; that is, he could sell that in-
terest without exercising his right to sell the whole.'
"While the creditor may sell the entire interest of the
debtor, passing to the purchaser the fee-simple and driving
the debtor from his home [executing on antecedent debt], it
is clear that under the rule and reasoning [in the above-cited
cases], if he permits the sheriff, as his agent, in mercy to the
debtor, to sell ' subject to the homestead ' (allotted or unallot-
ted), the sale is valid and passes the reversionary interest
only." *
" The husband's deed, without the wife's concurrence, is ef-
fectual in passing what is called his estate in reversion, or, in
other words, the land itself, subject to the burden or incum-
1 Murchison v. Plyler, 87 N. C. 79. 202 ; Barrett v. Richardson, 76 N. C.
2 Wyche V. Wyche, 85 N. C. 96. 423.
s Lowdermilk v. Corpening, 93 N. C. * Long v. Walker, 105 N. C. 90, 108.
333 ; Corpening v. Kincaid, 82 N. C.
490 SALE, WITH HOMESTEAD USE EESEEVED.
brance of the homestead as defined in the constitution, and the
title to this can only be divested in the mode therein pointed
out. . . . While the plaintiff cannot deprive the defendant
of the possession of the land, he is entitled to a decree of fore-
closure and sale of the land charged with the homestead in-
cumbrance." '
"When the reversion is liable, a pending bill to sell it may
be amended so as to pray for the sale of the whole estate, if the
exemption has expired and the whole has become susceptible
of execution. " By what authority can it be claimed that the
property held as a homestead exemption, which remains after
the exemption expires, cannot be subjected to the debts of the
householder or head of a family? It is by law expressly so
provided," ^ . . . that is, it is provided that the property
can be so subjected under the state law cited, after the exemp-
tion has terminated.'
§ 10. Sale toy Administrator.
The homestead land is not generally an asset to be sold by the
administrator ; but it has been held to be : " If necessary to
pay the debts of the [deceased] husband, the homestead may
be sold, subject to the right of occupancy by the widow and
children ; but during the life of the husband it cannot be sold
by the creditor unless a lien is created upon it in the manner
provided by law, or when it ceases to be a homestead by his
abandoning the premises. "Whether the homestead is regarded
as an estate or the mere privilege of occupancy, it is certain
that no creditor can acquire a lien upon it unless the right Is
waived in the manner pointed out by statute." *
" When the right to the homestead passes to the widow, it
may be sold by the creditor, subject to the widow's occu-
pancy and that of the children if necessary to pay the debts
of the husband.
" In this case it is not the debt of the husband that is at-
tempted to be made, but that of the widow ; and, as far as
her right to a homestead out of the proceeds of the sale of her
1 Jenkins v. Bobbifct, 77 N. C. 385. 'Hanby v. Henritze, 85 Va. 177,
See Hughes V. Hodges, 102 N. C. 236. 185.
2 Const, of Virginia, art. 11, §§1,5; <Lear v. Totten, 14 Bush, 104;
Code (1878), ch. 183, § 8. Evans v. Evans, 13 Bush, 587.
SALE BY ADMINISTBATOE. 491
husband's real estate is concerned, it cannot be reached by her
own creditors. The chancellor should therefore invest the
proceeds in a homestead for the widow ; and if the husband's
creditors are seeking relief, it can be sold subject to the wid-
ow's occupancy, and that of her infant children, if any." '
In this extract, the reader will notice that the term Jwme-
stead is used in different senses. In the clause, " When the
right to the homestead passes to the Vidow," the meaning is
when the right of use or enjoyment of the property passes ; .
but the pronoun immediately following stands, not for that,
but for the property used, since the sale of it by a creditor
must be subject to the widow's and children's occupancy. In
the clause, "as far as her right to & homestead" the term does
not mean the exempt realty but her right in it. The last
mention of the term : " The chancellor should invest the pro-
ceeds in a homestead" conveys the idea of realty; the mean-
ing is that he shall invest in a dwelling, which creditors can
sell " subject to the widow's occupancy."
" The theory of the homestead exemption is that the debtor
requires a prescribed amount in value of land to be set apart
for the support of himself and dependent family, but to ac-
complish such a beneficent object he must have the right to
occupy and use it ; and hence it is an indispensable requisite
that a party claiming the exemption must be in the actual
possession. But a party having merely an interest in re-
mainder is without any right to the possession, and, in the
meaning of the law, not in possession." ^
An absolute, unconditional estate for life granted to the
widow of a homestead-holder by statute ' is not subject to the
right of occupancy by his minor children. She has the sole
use and disposition of her life estate in the premises. Free-
hold estate, with right of occupancy, is given to the marital
survivor, who is protected in its enjoyment as the united head
had been before its severance by the death of one spouse.
The minor children are not specially provided for, but trusted
to the natural instincts of the parent. Abandonment of the
homestead, by their widowed mother, leaves them no home-
» McTaggert v. Smith, 14 Bush, 414. 3 Gen. Stat Minn. (1878), ch. 46, § 3 ;
' Merrifield v. Merrifleld, 88 Ky. Holbrook v. "Wightman, 31 Minn. -
S36. 168.
i9i SALE, WITH HOMESTEAD USE EESEEVED.
stead rights to be asserted. They cannot claim, any as heirs
of their deceased father, for a life estate has intervened.'
Conveyance of such life estate divests the homestead right,
so that the property itself becomes subject to forced .sale for
debts. It is part of the assets of the decedent's estate, and the
fee may be sold to pay his debts. Sale of it by order of court
is not void, and therefore it cannot be collaterally assailed
even on the ground that the homestead right had not ter-
minated.^
"Where it is provided that the homestead property shall be
subject to the rules of descent and disposable by will, contin-
uing exempt from liability for the debts of the decedent par-
ent or those of his heirs inheriting it; and that it shall be sub-
ject to execution for the debts of the decedent only when he
or she has left no issue and no marital survivor, the fee cannot
be treated, as an asset distinguishable from the land itself.
Whatever may be said of the constitutionality of such a pro-
vision, and of its equitable character with reference to the
rights of creditors, the homestead cannot be executed for
debt while any heir exists, though the debtor's widow be dead
and all his children of age, where this rule prevails.'
An ordqr of sale, by a probate court, of land on which the
debtor with his family resides, without laying off the quantity
exempt and excepting it from the sale, when the court was
apprised of the facts by the petition filed and otherwise, is an
absolute nullity.^ And the sale of the reversionary interest,
reserving the rights of the widow and children, is held void.'
Under a constitutional provision, giving his widow and
children the usufruct of a decedent's homestead,^ the probate
court cannot order the sale of the fee of the homestead, for
the payment of debts of the estate, on petition of the admin-
1 McCarthy v. Van Der Mey, 43 Poe v. Hardin, 65 N. C. 447 ; Wolf v.
Minn. 189. Ogden, 66 111. 224 ; Estate of Busse, 35
■ilb. Cal. 310; Schadt v. Heppe, 45 CaL
sMcClain's An. Stat. la., g§ 3163- 433; Tompkins' Estate, 12 Cal. 114;
3185 ; Johnson v. Gaylord, 41 la. 362. James' Estate, 28 Cal. 415. See Judge
^McCloy V. Arnett, 47 Ark. 445
Ruttenberg v. Pipes, 53 Ala. 452
Yarboro v. Brewster, 38 Tex. 397
Hambliu v. Warnecke, 31 Tex. 91
Hinsdale v. Williams, 75 N. C. 430
of Probate v. Simonds, 46 N. H.
6 McCloy V. Arnett, 47 Ark. 445.
6 Const of Arkansas (1874), art 9,
§§ 6, 10.
I
NO SALE, DUEING OCCUPANCY, BY ADMINI8TKAT0K. 493
istrator.* When the homestead character has ceased to exist,
the property may be liable for the debts of the decedent.^
§ 11. No Sale, During Homestead Occupancy, by Ad-
ministrator.
An administrator, duly licensed by a competent probate
court, sold homestead lands subject to the exemption right of
the decedent's widow and children, and the widow became
the purchaser, and the sale was confirmed by the court. She
then sold the property. The heirs at law of the decedent
sued the widow's vendee for the land. Judge Cooley, in de-
ciding the case, says that at the time of the death of the house-
holder, "his family were left residing upon the land, and for
that reason it is claimed it would not be sold for the payment
of debts. But the statute does not exempt the fee in the land
as a homestead ; it exempts the land only while it is occupied
as a homestead by the widow and minor children. Subject to
the homestead right, therefore, the lands are assets when
needed for the payment oi demands against the estate." The
widow had sold out and left, and the heirs had become of age
before the suit was brought, so there was no one " to raise the
■question of the homestead." ' Had there been, perhaps the
sale would have proved voidable ; for the same learned jurist
said of this case, when deciding a later one : " It was not de-
cided . . . nor was it necessary to decide that the course
adopted [by the probate court] was the most suitable." . . .
:" But at most a sale subject to the homestead right would be
voidable on appeal; it would not be void." * While the con-
■stitutional provisions are admitted to continue the exemption
after the death of the owner during the minority of his chil-
dren or during the widowhood of his surviving wife, " they,
by implication at least, recognize the estate of the late owner
as having an interest in the homestead, which is assets, and
which at some time and in some manner must be subject to be
applied in the payment of debts, but they do not indicate the
time or point out the means of making the application. I^either
» Stayton v. Halpern, 50 Ark. 329 ; » Drake v. Kinsell, 38 Mich. 333,
<3aribaldi v. Jones, 48 Ark. 336. 287.
2 Nichols V. Shearon, 49 Ark. 75. * Showers v. Eobinson, 43 Mich. 502,
SIO.
/
494 SALE, WITH HOMESTEAD USE EESEKVED.
is there any statute that makes provision for the case." ' And
it is queried whether lands can be rightfully sold to pay the
debts of a decedent, subject to the homestead right. Weight
is given to the argument al inconvenienti drawn from the un-
certainty of the duration of the homestead right, and the diffi-
culty of estimating the value of the fee subject to that right.
" Selling the land under such circumstances is something like
selling the contingent interest of the heir expectant, if that
were salable," remarked the court. The conclusion seems to
be that the course pursued in several other states (from which
cases were cited) ^ should be followed : that of holding the fee
inalienable by the administrator while" the homestead right
rests upon the land. In the first case cited above by the
court, in which a statute providing for the setting off of a
homestead for the widow of a deceased debtor was under con-
struction, it was declared that the legislature had not meant
that the land set off to her should be sold subject to her right
of exemption, because such a course would be destructive to
the creditor's rights, for purchasers would be loath to buy
property subject to such an incumbrance.
In the second case cited, it was 101d that an administrator
could not sell the fee of homestead land subject to the widow's
exemption right, but must await the termination of that right.
In the third, that the administrator must apply for an order
of sale soon after the termination, since otherwise license then
to sell may be refused by the probate court. In the fourth,
homestead lands were treated as assets of the estate after the
homestead right had expired, but not liable to sale by the ad-
ministrator, subject to that right, before the expiration.
§ 12. The Fee of Homestead Not an Asset of the Estate.
The statutory creation, " Every householder having a fam-
ily shall be entitled to an estate of homestead, to the extent in
value of one thousand dollars, in the farm or lot of land and
buildings thereon, owned or rightly possessed, by lease or
otherwise, and occupied by him or her as a residence ; and
such homestead, and all right and title therein, shall be ex-
I lb. Wolf V. Ogden, 66 ni. 324 ; Taylor v.
2Eottenberry v. Pipes, 63 Ala. 453; Thorn, 39 O. St 569.
Burson v. Goodspeed, 60 111. 377;
THE FEE OF HOMESTEAD NOT AN ASSET. 495
empt," ^ . . . means that all the right and title which the
head of the family has in the premises shall constitute his
homestead and be exempt. " It is not the mere right of occu-
pancy which is exempted from forced sale, but it is the lot of
ground occupied as a residence." ^ " Plainly, no sale can right-
fully be made of the homestead by the administrator to pay
debts, where the property does not exceed in value one thou-
sand dollars, until the exemption in favor of the widow and
minor children has in some mode terminated.' If the home-
stead exceeds that value, the statute directs how the excess
may be sold, or indivisible property sold with the value re-
seryed from the proceeds.*
A sale of homestead premises in violation of the statute
may be set aside at the instance of the occupying beneficiary.'
A sale of it by an administrator to pay debts is void."
" This court has never recognized in any of its previous
decisions the doctrine, sometimes insisted upon, that there can
be a [forced] sale of the property, subject to the right of oc-
cupancy by the party entitled to a homestead. Even a sale
of the premises, where the homestead exceeds in value one
thousand dollars, is invalid unless,the provisions of the statute
in regard to assigning a homestead, and. for a sale where the
premises are not susceptible of division, have been substan-
tially complied with." ' A homestead, consisting of a lot of
ground and improvements not exceeding the monetary limit
of value, may be sold by the owner (his wife joining if he has
one), free from any lien of judgment against him, since such
lien does not attach where there is no excess of value.' It
attaches to any excess.' ,
1 Starr & C.'s An. Stat. Dlinois, ^iforer on Jud. Sales, § 495.
p. 1097, same as § 1 of Act of July 1, ' Hartman v. Schultz, 101 111. 437,
1873. m.
2Hartwellv. McDonald, 69 111. 293. SMoriarty v. Gait, 112 111. 373,
3 Hartman v. Schultz, 101 111. 437, citing Hartman v. Schultz, 101 111.
iJiS; Kingman v. Higgins, 100 111. 437; Kingman v. Higgins, 100 III.
319; Ano. Stat 111., Act 1873, § 2. 437; Haworth v. Travis, 67 111. 301;
<Merritt y. Merritt, 97 IlL 249; Hubbell v. Canaday, 68 111. 425 ; Wlg-
Hotchkiss V. Brooks, 93 111. 392. gins v. Chance, 54 HI. 175 ; Stubble-
»Conklin v. Foster, 57 111. 104; Al- field v. Graves, 50 III. 103; Hume v,
lenv. Havsrley, 66111. 164; Hubbell v. Gossett, 43 111. 297; Bliss v. Clark,
Canaday, 58 111. 425 ; Mooers V.Dixon, 39 111. 590; Green v. Marks, 26 111.
35 111. 208 ; Moore v. Titman, 83 111. 221.
358. 3 Eldridge v. Pierce, 90 III. 474
496 SALE, WITH HOMESTEAD USE KESEEVED.
If sale of the so-called reversion could be made before the
expiration of the " estate of homestead," it might prove of
very little value. In illustration it has been said : " The
widow or husband in whose favor the homestead is continued
being young, a purchaser buying the property at adminis-
trator's sale would consider the probable duration of the es-
tate in such party. The longer it would probably endure, the
less would be expected to be bid. Should the estate of home-
, stead be suddenly terminated by death or abandonment, the
purchaser could obtain a perfect title to the property, subject
to no burden, at vastly less than its real value, to the great
prejudice of the creditors of the estate of the householder or
the parties entitled to the remainder. It was surely never
intended that property should be thus needlessly sacrificed)
and any construction of the homestead act that would lead to
such a result would be mischievous in the highest degree." ^
§ 13. Comment.
To sum up the law of sales of home property with home-
stead use reserved : the right of alienation is perfectly free
before the exemption quality has attached. Though the privi-
lege of having it attach may already exist, the right of aliena-
tion everywhere remains untrammeled until that privilege
has been attached.
In states where there must be something done by the owner
• (or by his wife or her husband), such as filing a declaration, or
having " Homestead " inscribed upon the title, or iiaving the
prescribed quantity of realty set apart, the property does not
become exempt before compliance with the requisition, and
therefore the owner is free to sell.
In several states where family occupancy is deemed notice
of the homestead character of the property occupied, the ex-
emption quality attaches by law to homes without any act on
the part of the owner or his or her spouse.
The prevalent rule is that there is nothing correlative be-
tween exemption and voluntary alienation. The exception is
tha,t where an " estate of homestead " is created of such a char-
acter as to give the surviving spouse and the children of the
owner such rights as are inconsistent with the owner's power
of disposition, he has waived the power by dedicating his prop-
1 Mr. Justice Scott, for the court, in Hartman v. Schultz, 101 111. 443.
COMMENT. 497
erty to homestead use and has thus accepted the ternas of the
law.
Generally speaking, however, restraint upon voluntary alien-
ation is not a corollary of exemption. It is an independent
inhibition. It is found in the homestead statutes sometimes
coupled with the exemption provision, but usually otherwise,
and always unnecessary to the complement of that provision
excepting as above shown.
It was not thought necessary, in writing the foregoing sec-
tions of this chapter, to present, in detail, the provision of
each state for the restraint of the voluntary alienation of
homesteads — specimens being considered sufficient. If every
point of homestead law were run through all the states, and
the judicial deliverances on it discussed, the result would be
a volume as massive as any of our lexicons unabridged, and
the profession would become bewildered in the luxuriant re-
dundancy. Each specimen will represent its class as a sample
speaks for the cotton bale.
The law on the subject may be summarized thus :
(1) In the absence of any restraining clause, the owner may
convey his or her homestead, consisting of the prescribed
quantity of realty, just as he or she may convey any other
property.
(2) The common restraint prescribed is upon married per-
sons, forbidding one spouse to convey the homestead alone.
Acting together, married persons may convey their home-
stead just as they may convey any other property.
(3) The prohibition of the husband's selling without his
wife's joinder does not imply prohibition of her selling with-
out his joinder, if the homestead is her separate property :
so she may freely sell, so far as this prohibition is concernedi
(4) The right to sell a thing includes the right to sell less :
so any single owner who has the right to sell his homestead
property, or any married couple who have the right of selling
theirs by acting together, may sell it with the right of occu-
pancy reserved for a stipulated time or under stipulated con-
ditions. And, as the law confines homestead to no particular
title or ownership if there be exclusive right of possession,
the reservation may be that of life estate which will form
sufficient basis for homestead ; and the property right and in-
33
498 SALE, WITH HOMESTEAD USE EESEEVED.
terest may even be reduced to lease hold with the homestead
basis intact.
(6) The right of homestead occupancy cannot be sold, with
the fee of the property retained, since that would leave no
right of possession in the grantor, and therefore no basis for
homestead. It would be abandonment.
(6) Forced sales differ from voluntary sales with respect to
reservations. The interdiction of forced sales of homesteads
includes not only the property, but everything less : so, the
fee cannot be sold with right of occupancy left unsold ; and
states which permit this (of which specimens are given above)
are exceptional to the prevalent homestead system. The ex-
emption of the homestead is the exemption of all the right,
title and interest of the homestead holder therein; and it is
found in the exemption clause and not the alienatioij clause of
the homestead statute of each state.
(7) The homestead realty is not an asset of a decedent's es-
tate (leaving the right of occupancy in the widow and chil-
dren), except in states inharmonious with the prevalent home-
stead system.
(8) It cannot be said that the term, widow's homestead, is
generally indicative of real estate belonging to a widow ; for
it is used in such different senses in different states as to pre-
clude any generalization here. And the foregoing seven notes
are not meant to apply to that species of homestead.
(9) " Estate of homestead," wherever recognized, has such
peculiarities that the above general rules are not meant pre-
cisely to apply to it.
CHAPTEE XVI.
FRAUD,
1. Fraudulent Acquisition.
'3. Buying with Another's Money.
3. Exchanging Goods for a Home-
stead when They Have Not
Been Paid for.
4. Fraudulent Selection from Lia-
ble Property.
5. The "Policy" to "Secure"
Homesteads.
6. Fraudulent Conveyance —^Cred-
itors Disinterested.
. 7. Remote Interests in Fraudulent
Conveyances.
§ 8, Conveyances to Creditors' Prej-
udice.
9. Liability to Creditors.
10. Selling Liable Property.
11. Fraudulent Liens.
13. Fraudulent Transfer to Wife.
13. Effect of Setting Aside a Fraud-
ulent Transfer.
14. Effect of Forfeiture, as to Cred-
itors.
15. Comment
§ 1. Fraudulent Acq[nisitioii.
Homesteads ought to be honestly acquired. The benefit of
exemption is for those who have complied with the conditions
upon which it is offered. Ownership under some species of
title which carries with it the right of exclusive possession
is an indispensable cpndition. Compliance with it is not ren-
dered unnecessary or dispensable by any rule of liberal con-
struction. However much the law may favor the home when
acquired, it never encourages or excuses the rascally procure-
ment of the sacred possession. It would seem superfluous to
say -this — especially superfluous to prove this — were there
no decisions that seem to make the law encourage or excuse
such procurement.
Before noticing the few deliverances of that kind, the reader
will turn to the many which hold honest purchase and pay-
ment for homestead, or lawful inheritance or other acquisi-
tion of it, essential to the creation of the exemption character,
and therefore necessarily ante-dating the beginning of any
liberality of construction as to that character.
'No statute exempts homesteads from liability to pay their
purchase price. Some expressly provide that no property
600 FEATJD.
shall be exempt frpm liability " incurred for the purchase " of
it. The grantor, who has parted with land, is to be paid the
price, without any spell put upon the place by law to render
it inviolate. The lender of money to pay the grantor ought
to have the right of following it to the farm or town lot
bought by it, so that the homestead holder shall not have it
for nothing.^
Where the statute excepts the homestead from exemption,
not in case of debts contracted in making the purchase, but
in that of debt for the price due the grantor, the opportunity
for fraud in the acquisition of a homestead is greatly enlarged.
Especially, when only the. vendor's lien is made enforceable,
while side obligations (such as those created by borrowing
money to pay the vendor's claim after title has passed) are
not privileged debts against the property thus paid for, is the
field for fraud much widened. In such case, the legislator is
responsible for the evil results, and not the expositor.
When, however, the statute leaves the homestead liable for
all debts incurred in its purchase or acquisition, — whether
they are supported by a conventional lien or not, whether
they are due to the vendor or to his assignee, whether they
are directly owing to the vendor or were incurred by borrow-
ing money of others to pay him, — then the courts are not
excusable if they permit any one to acquire a homestead at the
expense of another without his consent.
To repeat the words of Chief Justice Jackson (elsewhere
quoted), when speaking of a borrower of money to pay for
a homestead : " Shall he not pay the man whose money got
him the homestead right out of the property, before he as-
serts and sets apart right paid for by ".the lender? " Justice,
equity, law, common sense, all demand that he shall. . . .
The sense of right in the heart of an honest man, when a
swindler would cheat him, nine times out of ten is the law of
the land." And again, in the same case, the righteously in-
dignant judge says that to permit the debtor to perpetuate
1 Williams v. Jones, 100 111. 362 ; Ky. 148 ; Thompson v. Sheppard, 85
White V. Wheelan, 71 Ga. 533; Zun- Ala. 619; Durham v. Bostick, 73
dell T. Gess, 78 Tex. 144; Bentley v. N. C. 856. These, and many other
Jordan, 3 Lea, 353; Pari-ottv.Kumpf, cases, are cited in the chapter on
103 lU. 437 ; Purcell v, Dittmap, 81 Liability for Purchase-money.
FEAUDULEHT AOQUISITION. 501
such a fraud as to make a homestead out of money which he
begged the lender to lend, "without paying a dollar of it
back to him, would he to sink law mid equity into a slough of
iniquity and putridity nauseating to every sense of moral
purity." And again : " While homestead rights are consti-
tutional and favorites of our law, framd is not" '
Contrast this decision with the following: A purchaser
bought a house, and gave his note for the price, which note
was purchased by a third person at the maker's request. Judg-
ment was obtained on the note, but the court held the house
exempt. The debtor's wife had become the owner, but the
case did not turn on that circumstance ; for it was said in the
decision that had she been the maker of the note, the house
would have been exempt ; that, admitting the acts of husband
and wife to have been fraudulent, the holder could not make
his money out of the property bought with his money .^ There
seems to be nothing in the statute under which this case was
decided to justify a conclusion different from that reached in
the preceding case.'
"Where homestead protection originated it is now said:
" The beneficent provisions of our homestead laws have been
the occasion of much enthusiastic comment, and of not a few
rhetorical flourishes in the opinions of this, court. That it is
politic and wise is proved by the tendency of the more recent
legislation on the subject throughout the states of the Union.
But while this court has ever construed, and will continue to
construe, our exemption laws liberally in favor of those they
were intended to protect, we cannot sanction an interpreta-
tion which would make them a mere cover for shielding prop-
erty from being subjected to the payment of honest debts." *
And then the court showed how " a wise and humane provis-
ion of our organic law is made an instrument of wrong, and a
reproach among honest men," by claimants of the benefit who
do not desire to use their lots as a part of their homes or the
direct comfort and convenience of their families,'but merely
1 Bugg V. Russell, 75 Ga. 837. < Blum v. Rogers, 78 Tex. 530; 15
2 Gruhn.v. Richardson, 128111.178. S. W. 115; Oppenheimer v. Fritter,
'Starr & C's Stat 111., p. 1097 e< 79 Tex. 99; 14 S. W. 1051.
seg.; Const. Ga., art. 9, g§ 1, 3. See
cases cited § 5, ch.21, ante.
502 FEAUD.
to save them from forced sale, by building houses to be let to
tenants, " drawing water from them " occasionally, " sowing
the ground in turnips ;" and it might have been added (draw-
ing upon instances in other states), planting a tree or two,
digging a well, dropping building material upon the ground
or building a fence around it. But the building of a stable is
deemed better than " sowing the ground with turnips," as cre-
ating a homestead.' Building corrals for stock, buying lum-
ber, purchasing wire for fencing, and planting — not turnips,
but alfalfa — were held suflBcient to show intent of occu-
pancy and to give present exemption."
The liberality of the construction given to the exemption
features of the law sometimes tends to the favoring of claims
not well founded. The danger has been thus pointed out :
" In avoiding the Scylla of oppression^ we must guard against
the Charybdis of dishonesty. ... As the act to prevent
frauds and perjuries was once said to be construed in such a
way and manner as to promote fraud, so the homestead pro-
vision of our constitution is liable to be so construed as to take
away the homesteads of honest creditors." '
§ 3. Buying with Another's Money.
The purchaser of a homestead paid for it by drafts upon
his bank account in excess of his deposits. Afterwards his
deposits made a balance in his favor, though the money de-
posited was not his own, but a trust fund. On settlement, he
was found indebted to the bank, and he gave his note for the
indebtedness. This note was assigned by the bank to its presi-
dent, who obtained judgment thereon, and levied upon the
homestead. The debtor enjoined ^- and the question was
whetjier the note represented the purchase-monej'^ with which
he had obtained his homestead. The court perpetuated the
injunction on the ground that between the time he overdrew
nis account to pay for the property and the time when he
gave his note, there had beon a balance in his favor.^ Had he
regularly obtained a loan of the bank and bought his home-
1 Ellerman v. Wnrz (Tex.), 14 S. W. « "Walker v. Darst, 31 Tex. 682.
333. « Hale v. Richards, 80 la. 164.
2 White V. Wadlington (Tex.), 14
S. W. 396.
503
stead* with it, the debt would not have been paid by deposit-
ing money, to his own account, suflBcient to make the payment,
if he gave no check to the bank for that purpose. Leaving
out of the question the fact that the deposit was of trust
funds (which, though held by him in a fiduciary capacity, were
thus mixed with his own), we may assume that the deposit
was that of his own money. If a settlement had then been
made, when the balance of his account was in his favor, and
he had then paid the loan by giving the bank a check on his
account, there would have been no question that the note
given on the settlement actually made, which was transferred
to the president and sued upon by him, was not for the pur-
chase-money of his homestead.
That the deposit which covered the deficit was not in pay-
ment of the loan is clear from the fact that he retained the
right of checking upon it, and did check upon it and thus
withdrew the money that belonged to the trust fund. Con-'
sidered as a loan, the debt was unpaid ; and the note given on '
settlement was for purchase-money, and the homestead was
liable, and the injunction wrong.
Could he do, by indirection, what could not be done directly?
Especially, white seeking to restrain a judgment by an equity
remedy, could he deny that he had obtained a loan by assert-
ing that he, while general manager of the bank, took the
money without giving the bank his note, or gave the money
in his official capacity to himself in his private capacity? He
ought not to be heard to say so. The seeker of equity must
do equity.
The court discussed banking, and showed that when a de-
positor's account is in his favor the bank owes him ; and when
it is against him, he owes the bank. This is true in a sense ;
but mere deposits are not understood to be payments of debts
to a bank unless checks upon them be drawn in favor of the
bank. An overdraft is usually met by a deposit only : but
an overdraft of a large amount purposely made by one in
control of the bank itself, and used to purchase real estate,
creates a debt to the bank which cannot be said to be liqui-
dated by a temporary deposit which is withdrawn before set-
tlement.
Viewing the whole transaction in the concrete, what do we
S04 FEAUD.
find? A homestead has been bought with the bank's money,
and the purchaser holds the real estate, and the bank is un-
paid, and a judgment for the debt is enjoined from execution
against the homestead thus obtained.
The court said (with respect to the general manager's using
the bank's money, without its consent, to buy the homestead)
that, if he consequently must be regarded as holding it in trust
for the bank, his trust was discharged when he met his over-
drafts by deposit of the school fund. But if right of prop-
erty had vested equitably in the bank upon the purchase of
the homestead with its funds, how was that right divested by
the trustee's deposit, without any settlement? Certainly,
if the bank meanwhile had availed itself of the right to claim
the property by its agent, the subsequent deposit would have
been no discharge of his assumed trust, in the absence of any
agreement to that effect.
It is difficult to infer from the statute of the state where
the above noticed case was tried, that the legislator meant
that purchase-money should not be collected from the home-
stead under such circumstances. Neither the letter nor the
spirit seems to favor the holding of a homestead with im-
punity against its unpaid price. The statute is as plain in
excepting from exemption when the judgment is for purchase-
money, as the statutes of any state. The general rule is that
homesteads are liable for purchase-money. The liability can-
not be avoided by complications and the substitution of one
debt for another while the purchase-money really remains un-
paid. Dolus circuitu non purgatur.
§ 3. Exchanging Goods for a Homestead when They
Have Not Been Paid for.
The humane provisions for the protection of families are
liable to great abuse. The establishment of a homestead at
the expense of an innocent neighbor, though managed so as
to escape the charge of legal fraud, is wrong-doing of the most
reprehensible character. To borrow money and invest it in a
home, and then defeat the lender's claim for reimbursement
by pleading the homestead exemption, would be so manifestly
unjust as to be condemned by all men of integrity. To pur-
chase goods on credit ; exchange those goods for a farm, and
^ EXCHANGING GOODS FOE A HOMESTEAD, ETC. 505
hold the farm against the vendors of the goods as an exempt
homestead, is quite as bad. But what are the courts to do in
such cases ? A mortgage for the purchase^money may be fore-
closed against the homestead, but if the money is one or two
removes from the immediate purchasing transaction, and there
is no law for the enforcement of the just debt, owed by the
householder, against that which the creditor virtually sold
him, but, on the contrary, a statute protecting him in his un-
conscionable claim of exemption, what can courts do but ex-
pound and enforce the law as they find it, and give the claim-
ant the homestead ? ^
The law allows it, and the court awards it
" We kno'w of no rule of law in this state," said the supreme
court deciding the case last cited, " that deprives a person,
whose indebtedness may be equal to or exceeds his resources,
from taking a part of his property to purchase a homestead.
This is not a fraud upon creditors. It is not a concealment
of his property. He merely puts the property into a shape in
which it will be the subject of beneficial provision for himself
and his family. . . "^ If the law connives at such moral
fraud, the court has merely carried out what it understood
the law to be. Is it indeed not reprehensible to acquire a
homestead at the expense of others without their consent? Is
it not to the prejudice of creditors when property already lia-
ble for their debts is converted suddenly into property not
liable, for the admitted purpose of keeping them out of their
dues?
The homestead which the law protects from creditors is
the family residence, owned and occupied by the beneficiary
with his dependents. The debts from which it is exempt are
the ordinary ones created after .notice to the world that the
family residence thus owned and occupied is not liable for
1 Meigs V. Dibble, 73 Mich. 101, in which the turning of a whole stock
which it seems that a stock of goods of goods into a homestead was held
had been bought on credit, and then fraudulent as against the vendors of
sold or exchanged for forty acres of the goods, who had not been paid,
laud ; and that one of the creditors In this case the court contended that
for the goods was defeated on exeou- there was no contemplated fraud
tion by the setting up of the land as when the goods were purchased ; in
an exeiiipt homestead. But the court that case, it was thought otherwise,
drew distinction between this case and ^ jb.
that of Pratt v. Burr, 5 Biss. 36, in
506 FEAUD.
those debts. If converting liable property into non-liable
property to defeat creditors frpm collecting debts created on
the faith of it is not a fraudulent concealment of it, it yet is
the putting of liable property out of their reach. It is the
debtor's taking for himself and his what ought, in all simple
honesty, to go to others. Doubtless, however, the court con-
sidered the creditors notified by the passage of the homestead
law.
We must always respect the decision of a capable and con-
scientious court, whether or not wp think it ought to be drawn
into precedent. Hes judicata faoit ex alio nigrum, ex eurvo
rectum, ex recto curvum.
It is a maxim of the civilians that " the law wrongs no man
but renders to every one his due:" a sentiment almost equiv-
alent to the Golden Rule. Juridical ethics, both in the civil
and the common law, is consonant with the purest morality.
Statutory law should conform to it as nearly as possible, by
enactment and construction.
In a case very similar to the one last cited, in which goods,
not paid for, were exchanged for a homestead, and then ex-
emption claimed for the latter against the vendor of the
goods, the judgment wa^ just the reverse. The debtor's course
was held fraudulent. The fraud was to the prejudice of the
creditor. The creditor's goods had gone to buy the property
claimed as exempt. It was held that the claim was uncon-
scionable, and that the homestead claimant may cut himself
off from all privileges under a homestead statute by his own
fraud and crookedness. No protection is extended to one who
takes property in exchange oE goods for which he owes, and
who thus seeks to defraud his creditors.'
The law that " a homestead shall not be subject to forced
sale on execution or any other final process from a court " is
held to have the same force and effect as though thus ex-
pressed : " A homestead shall be exempt from sale on execu-
tion or any other final process." But the right to waive the
exemption privilege by contract, surrender to the officer in
charge of a writ, or neglect to claim before sale ; and the liar
bility to forfeit the privilege by fraud, is recognized. Con-
troverting the opposite view, it was said by the court making
« Pratt V. Burr, 5 Blss. 36.
EXCHANGING GOOBS FOE A HOMESTEAD, ETC. 507
the exposUiion above stated : *' If such a construction of the
law as is contended for in this case should prevail, its title
should be read, ' An act for preventing the payment of honest
debts, and for the promotion of frauds upon creditors by
debtors.' " i
The facts on- which this exposition was made were stated
thus briefly by the court (after having been given in detail in
the statement of the case) : " The defendants were merchants,
in possession of a stock of goods, and in that' character, and
under those circumstances, replenished their stock by the pur-
chase of goods of the plaintiffs on credit. After acquiring
possession of the goods so purchased, they transferred their
whole stock in fraud of their creditors, and took, in exchange
therefor, these premises [the homestead]. The mere state-
ment of the facts decides this case in the conscience of every
honest man : that neither in law nor justice the exemption
should be allowed. The defendants cannot expect the court
to assist them in consummating the intended fraud." ^
A bill was filed against a man and wife (who did business as
Argo & Co., she being the company) to set aside a sale of
goods as fraudulent. Then, under an amended bill, three
lots were attached, which belonged to her. The firm an-
swered, admitted the correctness of the account, claimed that
the wife alone owned the business carried on in the firm name,
and that she was entitled to homestead in the lots attached.
There was judgment for the complainant and an order for
the sale of the lots. In afiirming the chancellor's decree, the
supreme court said :
" The law provides for the exemption of a homestead to
each head of a family. In law, though it may he otherwise in
1 Judge Miller in JPratt v. Burr, 5 11 Harris (Pa.), 93 ; Brackett v. Wat-
Biss. 36, citing on the point that, ex- kins, 31 Wend. (N. Y.) 68.
emption laws are grants of personal ^ Piatt v. Burr, 5 Biss. 86, 38-9:
privileges to debtors which may be Miller, J. The spirit of article 15,
waived or forfeited as above stated : section 9, of the constitution of Kan-
Hewes v. Parkman, 20 Pick. (Mass.) sas was declared to be that no person
flO ; MoKinney v. Reader, 6 Watts shall enjoy property as a homestead,
(Pa.), 34 ; Hutchinson v. Campbell, 1 or enjoy improvements made upon
Casey (Pa.), 873 : Lauck's Appeal, 12 it, against the just claim of one who
Harris (Pa.), 426 ; Hammer v. Freese, procured the property or the im-
7 Harris (Pa,), 255 ; Bowyer's Appeal, provements for him. Nichols v.
9 Harris (Pa.), 310; Case v. Dunmore, Overbacker, 16 Kas. 54.
508 FEAUD.
fact, the husband is the head of the family. She [the wife]
is not therefore entitled to homestead out of her own lands,
nor, as contended in argument, is the husband entitled to
homestead in lands belonging to the wife."
But the ordered sale was modified so as to be subject to
equity of redemption — the bill not having prayed to have it
barred.'
§ 4. Fraudulent Selection from Liable Property.
The doctrine that homestead may be selected, to defeat
creditors, from property liable for debts due them, has been
so pointedly laid down that it must be stated here, however
antagonistic to just principles it may appear. The profession
cannot disregard what rests on the principle of stare decisis,
even though the courts, in the exposition of statutes, admit
that principles of equity have no control. The doctrine has
been carried so far as the holding that creditors who have
had no notice, who have trusted their debtor ,on his assurance
that certain described property was amenable for the debt,
may be defeated by the subsequent selection of that same
property as exempt. It is more agreeable to the writer to
state the doctrine by excerpts from the reports.
" An insolvent debtor, in contemplation of insolvency,
moved into and made his dwelling in property \ . . which
constituted a large part of his assets, for the express purpose
of holding it as a homestead and thereby withdrawing it from
the reach of his creditors. . . . In a financial statement
made to the defendants, upon the faith of which they gave
him credit for the claims upon which their judgments against
him were recovered, he had included as part of his assets the
property" subsequently set up as his homestead. "It is
claimed that the first would render the claim of homestead
fraudulent as to creditors, and that the second would estop
him from claiming the exemption as against the defendants.
There is nothing in eitherpoint. A debtor in securing a home-
stead for himself and family, by purchasing a house with non-
exempt assets, or by moving into ajhouise which he already
owns, takes nothing from his creditors which the law secures
to them, or in which they have any vested right. He merely
1 Turner v. Argo (Teun.), 14 S. W. 930.
, FEAUDULENT SELECTION FROM LIABLE PKOPEETY. 509
puts his property into a shape in which it will be the subject
of a beneficial provision for himself, which the law recognizes
and allows. Even if he disposes of his property subject to
execution, for the very purpose of converting the proceeds
into exempt property, this will not constitute legal fraud.
This he may do at any time before the creditors acquire a
lien upon his property. It is a right which the law gives him,
subject to which every one gives him credit ; and fraud can
never be predicated on an act which the law permits. This
also disposes of the question of estoppel." ^
It is added, " Unfortunately our statute fixes no limit as to
value upon a homestead exemption. It must be confessed
that such a law may be greatly abused, and permit great
moral frauds ; but it is a question for the legislature, and not
for the courts." ^
" Does it vitiate the homestead character of the property
when the designation thereof as a homestead was for the pur-
pose of preventing the creditor from collecting his debt? The
purpose of the designation of the property as a homestead is
to put it out of the reach of creditors while occupied as a
home ; and such purpose, and the consequent result of such
designation, are warranted by the statute, though occurring
after the debt was contracted, and immediately before the
creditor had attached or levied upon the property, and though
the debtor had no other property liable for his debt.' In no
way does the statute rest upon the principles of equity, nor in
any way yield thereto." *
An insolvent woman owned a brick block which was in-
cumbered. She had other property on which she lived, and
which she mortgaged to raise money to apply to the removal
of the incumblrance on the more valuable property which was
not then her homestead but which she designed to make such
1 Jacoby v. Distilling Co., 41 Minn. 237. Here, the " homestead " -was
237, citing Tucker v. Drake, 11 worth $24,000 less a mortgage of
Allen, 145 ; O'Donnell v. Segar, 25 $10,000, consisting of a half interest
Mich. 367 ; North v. Shearn, 15 Tex. in a building block, though the
174 ; Cipperly v. Rhodes, 53 111. 346 ; " beneficiaries " lived up stairs over
Culver V. Rogers, 28 Cal. 530 ; Ran- one of the stores.
dall V. Buffington, 10 Cal. 491. On 3 Barnett v. Knight, 7 Colo. 865.
estoppel : In re Henkel, 3 Sawy. 305. * McPhee v. O'Rourke, 10 Colo. 301,
2 Jacoby v. Distilling Co., 41 Minn. 306.
510
PEATJD.
on abandoning the other after mortgaging it. She succeeded in
making the exchange ; and these transactions were held to be
not in fraud of her jreditors, notwithstanding her admitted
insolvency.^
1 Palmer v. Hawes (Wis.), 50 N. W.
341. Cole, C. J. : " There is no room
to doubt that Mrs. Hawes had the
fight to abandon the house and lot
in the Third ward, where she and
her husband had lived for many
years, and occupy the brick store on
Milwaukee street as and for a home-
stead. The law would permit her to
liiake that change, arid creditors^
could not object to it, though it
might be unfavorable to their inter-
ests. True, it appeared that the first
floor of this building had been used
and occupied as a store, and the third
floor as a photograph gallery, but the
second floor had been occupied as a
residence. The occupation and con-
struction of the building show that it
might well have the character of a
homestead impi-essed upon it, and the
proof is abundant that Mrs. Hawes
had selected and intended to occupy
it as her homestead. Since the case
of Phelps V. Eooney, 9 Wis. 71, it has
been held that the building need not
be devoted exclusively to the use of
a home for the family in order to re-
tain the character of a homestead,
but parts of it might be used for
business purposes. Harriman v. In-
surance Co., 49 Wis. 71 ; 5 N. W. Eep.
13. So the fact that portions of the
brick store were used for other pur-
poses than as a residence for the
famfly would not deprive it of its
homestead charaotei-, nor prevent
Mrs. Hawes from acquiring home-
stead rights therein. Of course, when
she selected and occupied the store
for her homestead, she necessarily
abandoned or lost her rights in her
former home. A person can have
but one home at a time. 'He may
have several houses at once, but only
one c£to be his home at a tima' Jar-
vais V. Moe, 38 Wis. 440. It seems to
us equally clear that Mrs. Hawes
might have sold her home in the
Third ward and applied the proceeds
of the sale to the payment of a mort-
gage on the brick block which B. F.
Eexford held, and no creditor could
justly complain of such an applica-
tion of the msney. As her counsel
says, she had a perfect legal right to
prefer one creditor over another, and
to pay one just debt in preference to
another. Now, suppose Eexford, in-
stead of taking a second mortgage on
the Third ward property, had pur-
chased the equity of redemption in
that property, and had applied, with
the. consent of Mrs. Hawes, its value
to the reduction of his mortgage on
the brick store. Could a creditor
complain of such a transaction as a
legal fraud upon his rights? We
think not. This, in fact, is what the
learned circuit court found that the
transaction amounted to. The cir-
cuit judge states that he finds that
the mortgage given, mentioned in
the testimony, on or about the 1st of
March, 1887, was given for the pur-
pose of reducing the indebtedness
upon the homestead, — meaning the
store, — and for no other purpose;
This finding is amply justified by the
evidence, and could not consistently
have been otherwise. We see no ele-
ment of fraud in the transaction, nor
anything of which creditors could
complain. It is very obvious that
when a debtor pays one creditor, his
ability or means to pay others is di-
minished ; but that does not make
such payment fraudulent in law.
FEAUDULENT SELECTION FEOM LIABLE PEOPEETY. 511
The owner of two tracts of land, either being susceptible of
being made his homestead, who conveys one of them by deed
of trust, without his wife's concurrence, and afterwards sells
the other upon which he had resided, and then moves upon
the one conveyed by deed of trust, will not be allowed to
hold it against a purchaser at sale under the trust deed.
" Homestead rights are to be protected according to law, but
are not to be perverted into instruments of fraud." '
Selection, from property that would be liable without it, is
contemplated by statutes which save to the debtor a certain,
amount in land, to be selected by him or set apart by the offl;
cer charged with the execution. Under such statutes, cred-
itors are deemed to have notice that such setting apart from
the general property may be done, and therefore to have
trusted their debtor with such understanding. In the selec-
tion by the debtor or the oflBcer, therefore, there is no fraud.
It was held not fraudulent for a litigant to declare a home-
stead on his land during a litigation which resulted in a judg-
ment against him.^
Homesteads cannot be carved out of partnership property,
to the prejudice of creditors, for the use of members of an
insolvent firm.'
Therefore we fully agree with the debts which were pressing on her.
court below in the conclusion that She wished to secure a home, and
the evidence fails to show that Mrs. improve her pecuniary condition.
Hawes made any transfer of her , She took advice of counsel as to what
property with intent to defraud her she had better do under the circum-
creditors. The transfer of the shoe stances. She changed her home-
stock to Kexf ord was for the purpose stead, and made the transfers she
of reducing the incumbrance on the did, following the advice given her.
homestead, and so the court finds. It is true, she was utterly insolvent at
This seems to have been an honest the time, but the evidence fails to
and fair transfer. If she had had the show any fraudulent purpose on her
money value of that stock, she could part in preferring one creditor to an-
so have applied it on the mortgage, other, or in giving Eexford the se-
and no creditor could object to it. curity she did for his debt She was
But the plaintiff's counsel says that plainly endeavoring to save the store
Mrs. Hawes practically admitted that for her homestead. . . ."
she made these transfers of her i Rutherford v. Jamieson, 65 Miss,
property to defeat the claim of Dr. 319. The rule is that the wife must
Palmer. We do not think that this sign such deed to make it valid,
is a fair construction of her testi- Howell v. Bush, 54 Miss. 487.
mony. She was greatly embarrassed, 2 Fitzell v. Leaky, 73 Cal. 477.
and had not the means to pay the ' By the law of Virginia, members
512 FEAUD. '
\
§ 5. The " Policy " to « Secure " Homestead.
"While the policy of the law is to protect the owner's home-
stead from the claims of ordinary creditors who have trusted
him after due notice of the exemption, it js not to bestow
ownership upon him at the expense of others. The state
has no constitutional power to " rob Peter to pay Paul " or
to give to Paul. It has no authority to help any man to do
this for himself and his family, if it were rich enough, and
paternal enough, to bestow homesteads on the poor, the
many thousands in abject poverty who have nothing in hand
under liability to creditors ought not to be overlooked. If
homestead statutes are charity laws, paupers appeal most
loudly for recognition. But let the opposite view be pre-
sented in judicial language :
" The policy of the law is to secure to the, debtor and his-
family a homestead which shall be beyond the reach of his
creditors, however numerous. The statute seems to have been
made for those who get in debt, and not for those who always
pay their debts. Such need no exemption law, for they are
a law unto themselves to that extent. This policy of the
statute would, certainly be frustrated if none ate entitled to
the exemption except those who have been so fortunate as to
obtain a homestead prior to becoming judgment debtors.
There can be no such exemption without ownership. If it is
only true that there can be no exemption until there is a
dwelling-house upon the premises, actually occupied by the
debtoi" personally, then it would almost be impossible for a
homeless debtor, with judgments docketed against him, to get
the benefit of the law ; for the very instant he acquired title,
the judgment lien would attach. Under such a construction,
the only possible way of securing such benefit would be to se-
lect premises with a dwelling already thereon, and then actu-
ally occupy, with the family, prior to the acquisition. But
such strict literalism would do violence to the obvious intent
of the legislature, and the whole current of authority in this
of an insolvent firm are not entitled absence of a constitutional provision,
to homesteads out of the partnership the rule would hold unless there is
property, as such, against their ored- statutory authorization to the con-
itors. Short v. McGruder, 22 Fed. trary. In partnership lands, no one
46; Va. Const, art. 11, §' 1; Code, person has the exclusive title and
cli. 133, §§ 1, 11, 16, 17. And, in the right of possession.
FEAUDULENT CONVEYANCE — CREDITORS DISINTBRESTBD. 513
state upon this subject. It was among the purposes of the
statute to enable any one, without a home of his own, to ao-
quire one, even though judgments may be docketed against
him when he embarks in the enterprise."^
"Where does the statute show this purpose? In what sec-
tion is it either expressed or implied ? What is there, either
in the letter or spirit of the statute, to justify the statement
that it was among its purposes " to enable any one without a
home of his own to acquire one, even though judgments may
be docketed against him when he embarks in the enterprise?*'
What " enterprise? " The getting of a homestead at the ex-
pense of others. The statute requires that the homestead
shall be " owned and occupied " by the householder in order
to be exempt from execution. There is nothing to favor its
acquisition, nothing to enable the homeless to get homes.
The statute is not a charity statute. Certainly it is not one
to bestow charity in fraud of creditors. It is not an enabling
act. The reader will find it not materially different from
most of the statutes in other states on this point.^
It is reasonable to conclude, however, that an able court
understood the statute of its own state better than a student
of general homestead legislation would-be likely to do.
Neither this nor any other homestead law attempts to de-
cide whether the debtor or the creditor is the more in need of
charity. "It frequently happens that the creditor is more in
need of public sympathy than the debtor. When a poor man
is unjustly kept out of money due him, the distress arising
from the want of it is often greater than that caused to the
other party by its collection. If the suffering was but equal,
it is plain that one man should not suffer for the follies or mis-
fortunes of another. Every one should bear his own burden." '
§ 6. Fraudulent Conveyance — Creditors Disinterested,
Only those affected by fraud have the right' to complain of
it in a civil action. The rule is not peculiar to creditors with
1 Scofleld V. Hopkins, 61 Wis. 374 p. 1332, § 2380 ; p. 1796, § 3163 ; p. 2028,
2 Sanborn & Berryman's Annotated § 3833 ; p. 2047, § 3873.
Statutes of Wisconsin, p. 1717, §3983; sCase v. Dunmore, 23 Pa. St 93,
p. 1284, § 2303 ; p. 1298, §§ 2335-6 ; relative to chattel exemption,
p! 1318, § 3371; p. 2044, § 3862;
33
514 FEADD.
respect to fraudulent dispositions of exempt property, but is^
applicable to all persons with respect to fraudulent dispositions
of any property: if they have no interest, they cannot be de-
frauded and therefore cannot complain. They have no cause
of action to bring into court.
The purpose of the debtor may be fraudulent ; he may even
do acts which would amount to legal fraud but for the exemp-
tion law ; he may be guilty of moral fraud, jet his creditor may
riot be defrauded in the eye of the law.
However great may be the moral turpitude of putting prop-
erty beyond the reach of creditors by a conveyance made by a
debtor, it is not technically a legal fraud if the law has with-
held them from, their remedy by making the property exempt
in the hands of the grantor, fiis object may be to cheat them,
but the law looks upon him as conveying that in which the
creditors have no concern. The possibility of his dying childT
less and wifeless, so as to put his homestead into the market,
and to remove the shield of homestead protection from it, is
too remote to give the creditors any immediate interest. As
stated judicially: "Fraud cannot be predicated of a convey-
ance of the homestead, for the creditor could not have reached
that with his exemption if the debtor had retained it. The
law excludes the homestead from all remedies of ordinary
creditors in all courts. It resolves itself into this : that as to
exenipt property there are, within the meaning of the statute,
no creditors. And as there is no restraint upon the debtor
against selling and conveying such property, the motives with
which such transfers are made do not concern the creditor.
The debtor may sell, exchange or give it away, and his cred-
itor has no just cause of complaint ; for, being exempt, it is no
more beyond his reach after transfer than it was before. In
such alienations there may be bad motive but no illegal act." '
1 Smith, J., for the court, in Stanley O'Conner v. Ward, 60 Miss. 1037;
V. Snyder, 43 Ark. 429 ; Credle v. Jones v. Hart, 63 Miss. 13 ; Legro v.
Carrawan, 64 N. C. 433 ; Duval y. Lord, 10 Me. 165 ; Rice v. Perry; 61
Eollins, 71 N. C. 331 ; Winchester v. Me. 145 ; Shawano Bank v. Koeppen,
Gaddy, 72 N. C. 115; Smith v. Rum- 78 Wis. 533; Hibbern v. Soyer, 33
sey, 33 Mich. 191 ; Cox v. Shropshire, Wis. 819 ; Pike v. Miles, 23 Wis. 168 ;
25 Tex; 113; Martel v. Somers, 26 Tex. Bond v. Seymour, 1 Chand. (Wis.) 40 ;
551; Smith -v. Allen, 39 Miss. 469; Hixon v. George, 18 Kas. 258; Mon-
Pennington v. Sea], 49 Miss. 518; roe v. May, 9 Kas. 466; Sproul v.
REMOTE INTERESTS IN FRAUDULENT . CONVEYANCES. 515
Exemption laws and the statute of frauds must be construed
together as being in pari, materia, it has been held ; and the
former is said to control the latter as to the property exempt.'
The beneficiary holds his exempt home property in a pecul-
iar way: he can sell it and convey good and unincumbered
title to a purchaser, vrhenever he wills to do so ; but the cred-
itor, even at the precise juncture when the beneficiary is con-
cluding to abandon his benefit and is actually bargaining for
its transfer to another, cannot set up any claim that would
lay hold of the property ; cannot attack it on the ground that
it is about to be spirited away beyond the reach of ordinary
process ; cannot exercise any remedy whatever. lie is held
to have no business to meddle. Even should the homestead
holder donate his exempt home to a stranger, instead of let-
ting down the bars to let creditors come in, he would commit
no legal fraud, and creditors are told that they have no right
to complain.^ If they have no lien upon it, they are treated
as disinterested in such a conveyance.''
Whoever enters into a contract is supposed to know of the
existence of any exemption law then in force ; the extent of
the acreage and the value, held by the debtor free from lia-
bility to execution; and he is presumed to accept the obliga-
tions of the debtor accordingly.*
§ 7. Kemote Interests in Fraudulent Conveyances.
Though the homestead would cease to be exempt on the
death of the beneficiary, if unmarried ; or, at the death of the
Atchison N. Bank, 23 Eas. 336 ; New Swain, 15 Kas. 146 ; Mitchell v. Skin-
Orleans V. Morris, 105 U. S. 600; ner, 17 Kas. 565; Eandell v. Elder,
Burns v. Bangert, 92 Mo. 167 ; Davis 13 Kas. 257 ; Wood v. Chambers, 30
V. Land, 88 Mo. 436; Beckmann v. Tex. 247, 254; Sears v. Hanks, 14
Meyer, 75 Mo. 333 ; Hartzler v. Tootle, Qhio St. 298 ; Vogler v. Montgomery,
85 Mo. 23 ! Abernathy v. Whitehead, 54 Mo. 584 ; Crummens v. Bennett,
69 Mo. 30; State v. DiVeling, 66 Mo. 68 N. C. 494.
375: Sumner v. MeCray, 60 Mo. 493; SDelashmut v. Trau, 44 la, 613;
Vogler V. Montgomery, 54 Mo. 577 ; Officer v. Evans, 48 la. 557 ; Aultman
Baldwin v. Rogers, 38 Minn. 544. v. Heiney, 57 la. 654; Butler v. Nel-
1 Barnett v. Knight, 7 Colo. 365, son, 73 la, 732 ; Williams v. Eobbins,
374. 15 Gray, 590.
2Hixon V. George, 18 Kas. 353, < Kelly v. Garrett, 67 Ala.. 304;
S60; Morris v. Ward, 5 Kas. 239 ; Smith's Ex. v. Cockrell, 66 Ala. 64 ;
Monroe v. May, 9 Kas. 47b : Moore v. Nelson v. McCrary, 60 Ala. 301.
Reeves, 15 Kaa 150; Tarrant v.
516 FRAUD.
widow and the completion of the children's minority, if the
beneficiary is married, yet it has been frequently held that
he may dispose of his property so that it can never go to pay
his ordinary debts. Even if he dispose of it fraudulently, his
creditors cannot be heard to complain, if it is not a legal
fraud upon thera.^
In the first of the cases in the last note cited, it is said of
the voluntary conveyance of the homestead by an insolvent
debtor : " This question has been a great many times before
the courts of the country, and in a large majority of cases
the ruling was against the right of the creditor to subject the
homestead, tnerely because its owner and occupant had con-
veyed his right tt» another, even though the conveyance was
voluntary, or made under circumstances which would ordi-
narily stamp it as fraudulent. There can be no fraud unless
there are claims and rights which can be delayed and hindered,
and which, but for the conveyance, could be asserted. The
law takes no cognizance of fraudulent practices that injure no
one. Fraud without injury, or injury without fraud, will not
support an action. Unless they co-exist, the courts are pow-
erless to render any relief." ^
The favored homestead holder is thus held happily incapa-
ble of committing fraud against his creditors by any disposi-
tion he may make of his exempt realty. Unless his voluntary
1 Fellows V. Lewis, 65 Ala. 343 ; mer, 6 Allen (Mass.), 401 ; Foster v.
Crumnien v. Bennett, 68 N. C. 494; McGregor, 11 Vt. 595; Danforth v.
Dreutzer v. Bell, 11 Wis. 114; Pike Beattie, 43 Vt 138; McFarland v.
V. Miles, 33 Wia 164 ; Murphy v. Goodman, 6 Biss. Ill ; Cox v. Wilder,
Crouch, 24 Wis. 365 ; Anthony A. C. 2 Dill. 45 ; Smith v. Kerr, 3 Dill. 50 ;
Co. V. Wade, 1 Bush (Ky.), 110 ; Kne- Shawano Bank v. Koeppen, 47 N. W.
van V. Specker, 11 Bush (Ky.), 1
Marton v. Ragan, 5 Bush (Ky.), 334
Lishy V. Perry, 6 Bush (Ky.), 515
Edmonson v. Meacham, 50 Miss. 34
Vogler V. Montgomery, 54 Mo. 577
(Wis.) 728. See Phelps v. Springfield,
39 111. 86 ; White v. Clark, 36 El. 285.
Contra, Cassell v. Williams, 13 III.
328; Getzler v. Saroni, 18 111. 511;
Currier v. Sutherland, 54 N. H. 475;
Sears v. Hanks, 14 Ohio St. 398 ; Sue- Huey's Appeal, 29 Pa. St 219 ; Cham-
cession of Cottingham, 29 La, Ann. bers v. Sallie, 29 Ark. 407 ; Piper v.
669 ; Smith v. Eumsey, 33 Mich. 183
Vaughan v. Thompson, 17 111. 78
MuUer v. Inderreiden, 79 111. 382
Woods V. Chambers, 30 Tex. 247
Johnston, 13 Minn. 60 ; Herschfcldt
V. George, 6 Mich. 456 (since over-
ruled in 33 Mich. 183) ; Lauck's Ap-
peal, 13 Harris (Pa.), 436.
Legro V. Lord, 10 . Me. 161 ; Hugunin '■* Fellows v. Lewis, supra, Stone, J,
V. Dewey, 20 la. 368 ; Castle v. Pal-
peejudicb; 51-7
Gonveyance be made under such circutn stances as to be equiv-
alent to a surrender of his exemption right ; equivalent to the
abandonment of his homestead by non-occupancy, his credit-
ors cannot avail themselves of his act.
In this very case, however, it was held that the homestead
holder conveyed to the grantee free from liability to forced
sale during his life-time only, since he could transfer no
greater fights than he possessed ; that, upon the grantor's
death, without leaving either a widow or children, the home-
stead exemption ceased; that the conveyance vested in the
grantee all the rights in the homestead which the grantor
could assert against his creditors, and nothing more ; that the
conveyance was voluntary and constructively fraudulent
against existing creditors; and that, when the exemption
ceased, the homestead was liable for the grantor's debts.' And
the court quoted the following, with approval:
" The legal effect of the act is to create no new estate, but
to protect the occupant of the land in the use and occupancy
of the land so set apart as a homestead, during the time of
such occupancy ; but, if abandoned by removal or death, leav-
ing neither wife or children to succeed to his rights, the rights
of the judgment creditor would be fully restored."^
The creditor has the right to be heard on the question
whether or not he has been injured ; whether^or not the prop-
erty, voluntarily conveyed, was exempt.
§ 8. Conveyances to Creditors' Prejudice.
Under some circumstances, a fraudulent conveyance of a
homestead may affect the interest of creditors, so that they
will have the right of attacking it. Where the statute gives
.the legal owning householder protection for life or a term of
years, but leaves the reversion liable for his debts, the convey-
ance of the fee by hira will not so operate as to cut off the
rio-hts of lienholders, whose dormant liens will wake to life
at the expiration of the exemption period.
Under statutes which leave the homestead-holding legal
owner free to convey the fee (acting alone, or in conjunction
1 Fellows V. Lewis, 65 Ala. 357, ^ Chambers v. Sallie, 29 Aik. 407 ;
citing Bibb v. Freemau, 59 Ala. 612 ; Norris v. Kidd, 38 Ark. 485.
Sandlin v. Robinson. 63 Ala. 477.
513 FRAUD.
Tfith his wife when he is married, and where her joinder is
required), siioh conveyance, if made by an insolvent without
consideration, or under circumstances that would indicate
fraud in ordinary transactions, may be such as to give creditr
ors the right to interfere. The remote chance of making their
money upon his abandonment of his exemption right, or of
his waiver or forfeiture of it, will not warrant their present
interference ; but suppose he has done what is equivalent to
abandonment, or at least a questionable act of that sort, have /
creditors no interest to inquire into the situation? Have they
not standing in court for that purpose? There can be no
doubt of this. And in the acquisition of property claimed as
homestead, there may be such fraud as will vitiate the claim
as to any one having an interest to test it.
" It is well settled that a voluntary conveyance made to
hinder, delay or defraud creditors is void as to them, the
grantor being insolvent without the property so conveyed." '
This is the general rule ; but a complaining creditor must
show himself injured.
The conveyance of the fee of an excessive homestead by the
married beneficiaries, in fraud of a creditor, may be set aside
after the death of the husband who was the owner, and the
excess above the homestead estate may be devoted to the pay-
ment of the cre'ditor.^
1 Campbell v. Jones, 53 Ark. 493, sinople title which passed to bis
^97; Driggs v. Norwood, 50 Ark. 43 ; widow and minor heirs. Skouton v.
Adams v. Edgerton, 48 Ark. 419; Woods, 57 Mo. 380. This being the
Hershy v. Latham, 46 Ark. 543 ; case, it was properly ruled that such .
Reeves v. Sherwood, 45 Ark. 530 ; Ben- a thing ^as a fraudulent conveyance
nett V. Hutson, 33 Ark. 763 ; Oliphant of a homestead could not exist, for
V. Hartley, 38 Ark. 465; Massey v. (he reason that such homestead,
Enyart, 33 Ark. 851 ; Bertrand v. being exempt, etc., could not, in the
Elder, 83 Ark. 494; Leach v. Fowler, nature of things, be fraudulent as to
22 Ark. 145; Danley v. Rector, 10 creditors who had not nor could ac-
Ark. 285. quire any interest in "such exempt
2 Schaeffer v. Beldsmeier (Mo.), 17 property. Volger v. Montgomery, 54
S. W. 797. Sherwood, J., said for the Mo. 577. But a radical change oo-
court : " Under former statutory curred in the homestead act by rea-
provisions relating to homesteads, son of the amendment of 1875. Rev.
the land covered by a homestead was Stat (1889), § 5439. The fee no longer
wholly exempt from all liability for passes to the original occupant, nor,
debt, exempt from attach ment and on his decease, to his wife and his
execution. The husband took a fee- heirs, but an estate limited to the
OONVET ANDES TO CEEDITOES' PREJUDICE. 519
The rule of fraudulent donations, respecting property not
exempt, is thus clearly stated : " It is axiomatic that debts,
must be paid before gifts can be made ; and it is also an estab-
lished principle that a voluntary conveyance is prima facie
evidence of a fraudulent intent against creditors, and, if made
by a person who is indebted, is a well-recognized badge of
fraud ; for its natural and probable tendency is to delay, hin-
der and defraud creditors." '
It is fraudulent to sell all one's property without paying
debts or providing for their payment, when they exist.'' It is
so, not only in one state, but generally. And if such a fraud
has been committed, the administrator of the fraudulent debtor
may sue to recover realty thus sold, for the benefit of credit-
ors of the estate. He ought to sue in equity, however, when
the debtor had homestead right in indivisible realty, only the
excess of which could have been sold in fraud of creditors*'
They could not be tenants in common with the debtor-home-
stead-holder.* The sale of the homestead was good except as
to creditors — and only the excess, as to them, was not.'
, Exempt property is not subject to this rule. Creditors are
held not defrauded by the conveyance of the homestead with-
out consideration. Having no right to make their money by
execution against it, they have no cause to complain.*
" It is incumbent on the creditor, who complains of a fraud-
ulent conveyance, to show that his debtor has disposed of
death of the widow and the attain- ' Gove v. Campbell, 63 N. H. 401 ;
ment of the majority of the young- Bump on Fraud. Con. (2d ed.) 268.
est child. And so this point was 2 Prout v. Vaughn, 53 Vt. 451 :
ruled in Poland v. Vesper, 67 Mo. Church v. Chapin, 35 Vt. 233 ; Foster
737. , . . That case goes far v. Foster, 56 Vt 540 ; Kelsey v. Kelley
towards being decisive of the one at (Vt.), 33 A. 597.
bar. Here the land alleged to have 3 Pease v. Shirlock, 63 Vt 632 ; 23 A.
been fraudulently conveyed by the 660; Spaulding v. Warner, 59 Vt 646.
deceased and his wife in his life-time * Lindsey v. Brewer, 60 Vt 637.
was the entire fee, but only a home- ^ Bassett v. Hotel Co., 47 Vt 313.
stead estate was exempt from the 6 Smith v, Rumsey, 33 Mich. 183;
claims of creditors. . . ." So it Ehead v. Hounson, 46 Mich. 344;
was held that the sale of the fee was Putte v. Geller, 47 Mich. 560. See
fraudulent as to the creditor, and Hershfeldt v. George, 6 Mich. 468,
could be set aside, and the reversion- which was partially overruled in the
ary interest applied to the satisfac- first case above cited. /See, also, Wis-
tion of the judgment ner v. Farnham, 3 Mich. 473; -and
Matson v. Melchor, 43 Mich. 477.
§20 FEAUD.
\
property that might otherwise have been subjected to the
satisfaction of his debt. Until this is done no injury appears.
" Creditors cannot complain that a conveyance of a home-
stead is fraudulent as to debts for the payment of which it
cannot be taken in execution. They could not reach it, if not
conveyed, and hence the' motives for the conveyance do not
concern them." '
The rule that it is incumbent on a party attacking a sale on
the ground that it was made to hinder, delay and defraud
creditors, to show that if it had not been made the goods
would have been subject to seizure and sale upon execution,
was not applied, as to sales of personal property, in a subse-
quent decision.-
An unmarried man conveyed his land to his brother, by a
deed absolute though without consideration. The purpose
was understood, by the court that passed upon the transac-
tion, to be the defrauding of his creditors. There was an
understanding between the brothers that the grantee would
reconvey to the grantor when requested to do so by the latter.
He gave a power of attorney to the grantor at the time, au-
thorizing him to control and even to convey the land. The
deed and power of attorney were duly recorded.
Two mortgages were put upon the land by this ageni of its
recorded owner. Actions to foreclose were brought upon
them, against that owner, who was not served. Now comes
into court the agent in the capacity of owner, defendant and
homestead claimant, with his wife as co-claimant.
Having become married since his transfer of the land to his
brother, he could fill the condition of family headship ; repu-
diating the lona fides of his own conveyance, he averred com-
pliance with the condition of ownership ; living with his wife
upon the property, he met the requirement of occupancy —
what lacked he yet?
The court said he lacked the essential — ownership', because,
I Campbell v. Jones, 52 Ark. 493, 216 ; Hempstead v. Johnson, 18 Ark.
Jf97; Bogan v. Cleveland, 52 Ark. 101 ; 124 ; Meux v. Anthony, 11 Ark. 411 ;
Stanley v. Snyder, 43 Ark. 430; Erb Story's Eq. Jur. 367.
V. Cole, 31 Ark. 557 ; Clark v. An- 2 Blytbe v. Jett, 52 Ark. 547, 5Jfi,
thony, 31 Ark. 546 ; Sale v. McLean, expressly overruling Erb v. Cole, 31
29 Ark. 612 ; Clinton v. Estes, 20 Ark. Ark. 557.
LIABILrrY TO CEEDITOES. 521
if his conveyance to his brother was made to defraud cred-
itors, as the court believed, the law would not permit him to
benefit by his own wrong by compelling a reconveyance. At
the time of his marriage he had no interest in the land which
the law would enforce, and therefore none to become vested
in his wife.
If he and she had any interest at thetinie of their marriage,
they subsequently joined in conveying the land to his brother,
professedly to correct and perfect that given to him in the first
instance: so she and her husband concurred in the former con-
veyance, the court said. There was in .evidence an unrecorded
quitclaim deed, b}"^ which the land, or a part, was reconveyed,
.in terms, to the brother Originally owning, and now before
the court claiming to own; but the court gave it no weight.
Judgment was rendered against the land, foreclosing the mort-
gages, and the claimant and wife were adjudged to have no
property right and therefore no homestead interest.'
§ 9. Liability to Creditors.
The impossibility of defrauding creditors by the conveyance
of property which is exempt from attachment and levy has
been denied judicially. A homestead, occupied by a judgment
debtor, was seized in execution. The property was not of
value excessive of the monetary limitation of a homestead.
The debtor had sold it, and therefore he interposed no claim in
the case whence the writ of execution issued, to have home-
stead assigned him. The writ was executed, and the court
sustained the sale on the ground that the debtor's deed to his
grantee was fraudulent ; that the property had not ceased to
belong to the debtor, and that he had lost his exemption by
failing to claim it.^
A creditor has an interest in the homestead, such as will
warrant his interference with any fraudulent disposition of
the property by the owner, wherever the law recognizes judg-
ments on ordinary debts as liens against the debtor's home-
stead property — liens ultimately vindicable, though post-
poned during an exemption period. "When this was the law
in a state which has since changed its statute on the subject,
a homestead became subject to execution in satisfaction of
'Johnston v. McPherran, • 87 la. ^Currier v. Sutherland, 54 N. H.
330 : 47 N. W. 60 475.
522 FEAUD.
such a judgment if the debtor removed from it or sold it. A
homestead-holder having transferred his home, the court de-
clared the deed fraudulent and prejudicial to the creditor, and
within both the letter and spirit of the law which declares
such a conveyance void as against those who are hindered, de-
layed or defrauded. The right.to the ultimate enforcement
of the lien was pronounced a valuable right secured by law to
the creditor, and the attempt to deprive him of it was char-
acterized as fraudulent and prejudicial:' so the creditor had
such interest as would authorize his interference.' This is
good reasoning, and therefore good law now, in all states
which give the ordinary creditor the right to obtain a judg-
ment which will bear a lien upon the debtor's homestead,
however much postponed : provided there be no statute to the
contrary. If the debtor's disposition of his homestead is prej-
udicial to the i;ights of his creditors in any way, they have
the right to interfere.
Wherever the legal effect of the statute is not to create
" an estate of homestead " (or anything which that term would
imply), but merely to protect the home during occupancy as
such, judgment creditors have rights that become enforceable
in case of the cessation of occupancy, whether owing to vol-
untary abandonment or to the death of the beneficiary with
no successor. A fraudulent conveyance of the homestead by
such a beneficiary was successfully attacked by his creditors
after his death.^
Gaius Munger and Celia, his wife, conveyed their home-
stead to Isadore, their daughter. Subsequently the sale was
vacated in an equity suit brought by the assignee of Gaius in
bankruptcy, against Isadore, on the ground that the convey-
ance was fraudulent as to creditors. It was held, in a suit by
the purchaser of this property at the bankrupt sale, to eject
tt 3 possessors, that if Gaius and Celia, who had joined in the
deed, had been made parties to the suit of the assignee against
Isadore, they might have been concluded by decree therein ;
but that, as they were not, they could claim homestead after
their deed had been set aside for fraud as to creditors.'
Had no more than the limit of property protected as home-
stead been conveyed to Isadore, it might have been said that
1 Piper T. Johnston, 13 Minn. 60, 6S. 3 MoFarland v. Goodman, 6 Bisa.
2 Chambers v. Sallie, 29 Ark. 407. Ill, citing Cox v. "Wilder, 2 DiU. 45 f
SELWNG LIABLE PKOPEETT. 523
the creditors had no interest in the conveyance, according to
many decisions already adduced ; but as much larger prop-
ertj'', including the homestead, had heen fraudulently couTeyed,
the whole transaction was set aside at the suit of the assignee.
And, in the ejectment suit, the grantors were held not to have
lost any exemption rights by their abortive attempt to con-
vey — contrary to the established principle that a conveyance
binds the parties to it, though fraudulent as to creditors.^
" There is no principle of law more consonant with reason,
or better supported by authority, than that a conveyance
which is fraudulent as to creditors binds, nevertheless, the
parties to it. Through the ' cloud of authorities ' of which the
counsel speak, this principle shines perpetually, and it guides
us to tne conclusion that' the appellant is here without merits.
" Having caused his house and lot to be conveyed to his
wife for the purpose of hindering and delajnng his creditors,
denying his ownership as long as denial would serve to keep
them off, he chops round now, when they have raised $314
out of the property by a sheriff's sale of it, and claims $300
of the proceeds under our exemption statute.
" It would be a perversion of that humane law to apply it
to such a case. As to his creditors, the fraudulent deed was
void, and he remained the owner of the property ; but the
deed concluded him for all other purposes. The statute was
not made as an instrument of fraud to delay and hinder cred-
itors, but to secure to honest debtors, from the wreck of their
fortunes, a subsistence until they can do something for them-
selves and their families.
" But if the debtor may first convey away his property in
fraud of creditors, and then when it is seized or sold come in
and take the proceeds, the statute is worse than the fraudu-
lent deed, because more efficacious to cheat the creditor." ^
§ 10. Selting Liable Property.
A'debtor, selling all his liable property, claiming his exempt
property as free from his creditors, and paying no debts, is
held not to have committed fraud upon his creditors.^
Wood worth v. Paige, 5 O. St. KO; In 3 Wilcox v. Hawley, 31 N. Y. 648 ;
re Pratt, 1 Cent. L. J. 390. Callaway v. Carpenter, 10 Ala. 500;
' Huey's Appeal, 39 Pa. St. 319. Mosely v. Anderson, 40 Miss. 49.
Ub.
524 FRAUD.
It is plainly dishonest for a debtor to dispose of all his lia-
ble property and hold his homestead exempt. It has been
held fraudulent " in fact and in law," since it is " with the
direct intent of benefit or advantage to the seller, to the in-
jury of creditors." ' This was virtually overruled in a subse-
quent case,^ in which a debtor was upheld in appropriating
means that should have gone to the payment of his other
debts, for the purpose of removing a mortgage on his exempt
property — the court looking upon it as merely making a
preference among creditors which the law allowed.' The
preference given here was to himself : he paid what would re-
lieve his homestead and left unpaid all debts which he could
neglect with impunity. He could do so under the law, and
therefore was not guilty of legal fraud, whatever his act may
have been in the court of conscience.
An insolvent debtor, taking the means that ought to go to
his creditors, and buying a homestead therewith, has been up-
held by the courts in so doing; and the debts antedating the
purchase were not allowed to be enforced against such home-
stead.*
"We do not think that a debtor, being absolutely insolvent
and having his creditors pressing him for the payment of his
claims and fully cr.gnizant of his inability, to pay such debts,
can, to defraud his creditors, transfer possession of goods pur-
chased by him upon credit, and take in exchange therefor
land, either in his own name or in the name of his wife, and
then claim the same as exempt as a homestead against such
existing creditors. ' A party cannot turn that, which is granted
him for the comfort of himself and family, into an instrument
of fraud.' " *
1 Riddell v. Shirley, 5 Cal. 488. where a stock of goods were ex-
2 Randall v. Buffington, 10 Cal. 491. changed for a homestead, and part of
3 Citing Dana v. Stanfords, 10 Cal. them had been recently purchased on
369 ; Nicholson v. Leavitt. . 4 Sand, credit, and had not been paid for at
352 ; Covanhoven v. Hart, 21 Pa St. the time the whole was exchanged
495 ; Worland v. Kimberlin, 6 B. for the homestead, it was held to be
Men. 608 ; Kennaird v. Adams, 11 no fraud, even against the ci-editors
B. Mou. 102. ■ who had not been paid for the last
* Cipperly v. Rhodes, 53 111. 346. purchased goods. The court, how-
5 Long V. Murphy, 37 Kas. 375, 380, ever, said that it did not appear that
dting Pratt v. Burr, 5 Hiss. 26. But these last purchased goods, or the
SELLING LIABLK PEOPEETY. 525
A husband borrowed money, and he and bis wife joined in
conveying their homestead property (previously set apart to,
them) to secure the debt. At the same time they tooli of
the lender his bond to reconvey to them the property on their
payment of the debt. They remained in possession. The
lender obtained judgment, conveyed the land to the husband,
and then levied upon it. The husband had died. His widow
resisted the levy on the ground that the property was exempt
as a honiestead : and so the court held.' When the deed is
absolute as security, subsequent application for homestead will
not defeat it.^
Though a homestead, not subject to lien or liable to execu-
tion, be conveyed with a bad motive, the conveyance is held '
not fraudulent as to the creditors of the vending householder.'
But if a debtor exchange his homestead for real estate in
quantity beyond the. statutory limit, the excess will be liable
to creditors.* And he cannot a;Void_ this liability by canceling
and surrendering his deed.' A debtor having acquired six-
teen hundred acres of land by such exchange, and having
written across the deed his cancellation of it, and then sur-
rendered the deed to the grantor,- was held to have failed to
put the excess above one hundred and sixty acres beyond the
reach of his creditors. Though the land was subsequently
deeded by the same grantor to the debtor's children, they ac-
quired no title, since their father's title had not been divested,
and all the land but the homestead quantity was open to cred-
itors.*
The conveyance of property, including the homestead, is'
void as to the excess, if made without consideration and in
fraud of creditors."
proceeds thereof, were a part of the ^gogan v. Cleveland, 53 Ark. 101,
purchase-money of the homestead — relative to a conveyance made in
leaving us to infer that there vpould 1884, governed by Const of 1874, art
have been fraud had this been made 9, § 3 ; Bump on Fraud. Con., p. 245 ;
to appear. Tootle v. Stine, 31 Kas. Wait on Fraud. Con., § 71; Cani-
66, in vphich Long v. Murphy is dis- mack v. Lovett, 44 Ark. 180.
* Campbell v. Jones. 52 Ark. 493.
•Saulsbury v. McCallum, 65 Ga. ^Ib.; Byrd v. Jones, 37 Ark. 194;
102; Ga. Homestead Act of 1868; Talifero v. Rawlton, 34 Ark. 503;
Trammel v. Boberts, 55 Ga. 383. See Neal v. Seigel, 33 Ark. 63 ; Strann v.
Gun V. Wades, 65 Ga. 537, and Moore Norris, 21 Ark. 80.
V. Frost, 63 Ga, 296. ' Campbell v. Jones, supra.
3 Allen V. Frost, 62 Ga. 659. ' O'Connor v. Boylan, 49 Mich. 210.
5^6 FEAUD.
I
The remainder, after the homestead shall have been re-
served according to law, is liable on the foreclosure of any
mortgage covering it but not the homestead.'
A purchase of land subject to homestead right, but fraudu-
lently deeded in fee by the sheriff to the purchaser, cannot
successfully resist a mortgage given by the homestead-holder,
who could have the deed reformed or wholly set aside for
fraudi^ The sheriff should have given the title subject to the
exemption right.' The reversionary interest of the debtor
cannot be sold during the existence of the homestead.*
§11. Fraudulent Liens.
A husband and wife, about to separate, sold their homestead
through an agent. The purchaser reconveyed it to the hus-
band in a deed reciting part of the price as paid in cash and
part by promissory notes secured upon the property. The
matter coming to litigation, the question was whether the
sale by the husband and ^ife had been real or merely' an at-
tempt to create a lien on the homestead. The wife contended
against the purchaser that the latter was the purpose. The
evidence was conflicting, but the sale was sustained.'
Liens forbidden by the constitution cannot be fixed upon the
homestead, and any declarations of husband and wife, in the
instrument purporti'ng to create them, are of no avail.'
A husband and wife executed a trust deed upon their rural
hoiiiestead to secure a loan, in which it was recited that the
property was free from incumbrance. There was an existing
vendor's lien, however, of which the lenders had knowledge;
and they caused it to be discharged before advancing all the
loan. After this, the husband and wife sold the land. They,
had no right to subject it to the mortgage, and they could
not change its status by their recitals, nor incumber it with
liens, in any way, in contravention of the constitution. But it
1 Herschfeldt v. George, 6 Mich. Ga. 476, and City Bank v. Smisson,
468; Comstock V. Comstock, 27 Mich. 73 Ga. 423; Jolly v. Lofton, 61 Ga.
103; First National Bank of Con- 154.
stantine v. Jacobs, 50 Mich. .340. 5 Q'Shaughnessy v. Moore, 76 Tex.
2 New England Co. v. Robson, 79 606.
Ga. 757. ^Ib.; Kerapner v. Comer, 78 Tex.
3 Robson V. Rawlings, 79 Ga. 354. 208; Pellat v. Decker, 72 Tex. 581;
* Stephenson v. Eberhart, 79 Ga. Mortgage Co. v. Norton, 71 Tex. 683.
116. Compare Skinner v. Moye, 69
FEA0DULENT LIENS. 527
was held that the mortgagees might be subrogated to the
rights of the vendor whose valid lien they had caused to be
discharged by the loan.'
Where no lien can be saddled upon a homestead except for
purchase-money and for worJc and materials used in construct-
ing improvements on it, the owner may deceive a creditor by
giving him a trust deed on the premises to secure money bor-
rowed to erect a dwelling. When the creditor comes to court
with his trust deed, the beneficiary of the law may meet him
with the words of the statute, and stand upon the law. There
is no lien. The lender whistles for his money while the bor-
rower enjoys the home.^
A debtor, buying a homestead, paying for it from the pro-
ceeds of his business, and having the title conveyed to his
wife, may thus create a statutory resultant trust in favor of
his creditors ; but this is held no ground for an order grant-
ing creditors leave to share in the estate without filing re-
leases, unless they show that the debtor was insolvent when
he bought, and that there was fraudulent intent on his part.
The act itself was declared to be not a fraudulent disposal of
his property, so as to authorize the order, under the statute.' ^
It was recently held, by a federal court, that real estate
bought by an insolvent, in his wife's name, and occupied by
both as a homestead, is exempt from the claims of hiscredit-
ors, in spite of the fraud.*
A dehtor gave ^ mortgage to secure a simulated debt, to
put his land out of the reach of his creditors. At his request,
the mortgagee afterwards conveyed the land to a firm which
subsequently deeded it to the debtor's wife. She paid noth-
ing to her husband, or for him, as a consideration for the land.
Several years later he made a deed to her, apparently to, es-
cape an approaching judgment against him for a new debt, as
he had come to believe that his first fraudulent essay might
prove abortive so far as having the property in his wife's
1 Loan Co. v. Blalock, 76 Tex. 85 ; 3 Gen. Stat, of Minn, of 1878, ch. 43,
Hicks V. Morris, 57 Tex. 658. § 8 ; Inn Welch, 43 Minn. 7.
2 Ellerman v. Wurz (Tex.), 14 S. W. < Backer v. Meyer (Ark), 43 Fed.
333, and cases therein cited ; Const 702.
Tex., art 16, § 50 ; Rev. Stat Tex.,
art 3174,
528 FEAUD.
name, through it, was concerned. This conveyance was de-
clared fraudulent on its face. The wife was a mere volunteer.
She was bound to show valuable consideration, which she did
not. The land was liable for the husband's debt.'
The trite maxims : " He who seeks equity must do equity; "
and " A party must come into a court of equity with clean
hands," are applicable to homestead contentions, as well as
to anj'^ other in equity courts^ and have been applied to them.*
An exemptionist sold his homestead on credit ; and, the
proceeds not being exempt, were liable to garnishment by
/Creditors. He, however, took a conveyance of other real es-
tate, to his wife, in satisfaction of the debt. It was held that
"'a court of chancery should aid the judgment creditors to
reach the assets of their debtor and apply them to their judg
ment uninfluenced by the fact that the debt arose from a sale
of the homestead, since the statute did not exempt the pro-
ceeds of a homestead." '
But when a husband swapped his homestead outright for
another to be conveyed to his wife, he was deemed to have
^ kept within the law, so that the new residence was exempt.*
The owner of a quarter section of land borrowed money to
be secured by a mortgage of the land. The lender, living in
a distant city, sent a drawn mortgage and mortgage note by
mail, and a draft for the money, to a bank, to be delivered to
the borrower upon his signing and duly executing the note
and mortgage. Before signing, the borrower became married:
a fact unknown to the lender. When the foreclosure was at-
tempted, the wife claimed homestead in the land, and it was
awarded her.'
An exemption right acquired after the levy of execution
upon the property to which it attaches is effective to save
the homestead to the occupant and his family. Between exe-
cution and sale, such an occupant married ; and then, being
the head of a familj'^, claimed homestead inviolability, " and
had his claim allowed." ^
> Hodges V. Hiokey, 07 Miss. 715. « Jones v. Hart, 63 Miss. 13; Letch-
2 Winslow V. Noble, 101 111. 194, ford v. Carey, 53 Miss. 791 ; Irwin v.
198. Lewis, 50 Miss. 363; Lessley v.
3 Adams V. Dees, 63 Miss. 354. Phipps, 49 Miss. 796; Trotter v.
■> Airey v. Buchanan, 64 Miss. 181. Dftbbs, 38 Miss. 19a
6 Tolman v. Leathera, 3 Fed. 653.
FEADDULENT TEANSFEE TO WIFE. 529
§ 12. Fraudulent Transfer to Wife.
The donation or sale without adequate price of the home-
stead property, from the husband through a third person to
his wife, is held allowable and not in fraud of creditors though
the donor be insolvent. Such transaction, in which the wife
joins in conveying to a stranger that he may give back to
her, is countenanced in the face of the admitted purpose of
enabling her to hold the prbperty free from liability to the
husband's creditors.'
The court so holding, in the first case above cited, on the
subject of the transfer, said that whether it was an absolute
conveyance of the whole title to the wife, both legal and equi-
table, " with a fraudulent intent," or was a mere vesting of
the naked title in her while the husband held it in trust for
his son, "is wholly unimportant," because the homestead in-
terest was not subject to execution in either case. " In the
latter case, he still remained the equitable owner of the home-
stead.'' ... If the former was the case, and the absolute
title to the property was transferred to the wife through the
procurement ox her husband, he had a right to cause such
transfer, so far as it related to the homestead, to be made, as
against this judgment, even though it was made for a fraudu-
lent pitrpose; for ... . the judgment was no lien upon
the homestead for any purpose. . . ." ^
But such transaction has been declared a fraud, though the
creditors were not defrauded. A conveyance from husband
to wife " in consideration of love and affection " was stamped
with this badge, though creditors could not avail themselves
of any benefit by reason of the fraud on the part of the donor
and donee. It was said, however, that had both joined in
conveying to a third person, and that person had reconveyed
to the wife, the exemption right would have been lost.* Or.
had the husband conveyed directly to her without considera-
tion, while bath occupied other property, as their homestead,
their creditors could have disregarded the conveyance.*
' Morrison v. Abbott, 37 Minn. 116 ; 2 Citing Wilder v. Haughey 21
Dreutzer v. Bell, 11 Wis. 119. In Minn. 101.
Piper V. Johnson, 13 Minn. 60, there ^ Ferguson v. Kumler 87 Minn,
were liens which the transfer did not 156 ; Morrison v. Abbott, 37 Minn. 116.
divest. * Euohs v. Hooke, 3 Lea, 303.
34 «Gibbs v. Patten, 3 Lea, 180.
630 FEAUD.
A debtor, by putting the title of his land in the name of his
wife, is not thus estopped from demanding a homestead therein,
as against his judgment creditor.^
A husband, indebted to his wife, transferred to her the title
of the homestead. Afterwards he paid for other real estate
deeded to her. It was decided that, the first transaction was
not in payment of the debt. to her (though the value of the
title was amply sufficient to satisfy the indebtedness), and that
the subsequent payment for the additional property, by the
husband for the wife, might be considered a liquidation of his
debt to her, and that creditors were not defrauded.^
A man and his wife gave their note jointly, and she charged
her separate property for its payment. "When the payee sought
to subject the property to the payment of the note, she claimed
homestead in it, and it was awarded her. The judgment lien
attaching beforei the assignment of homestead was said to be
not such a lien as precludes such assignment or allowance, and
that real estate, about to be levied upon, may be set off for
the use of the debtor's family, when it has the status oi a
homestead.'
A man and wife occupied their homestead when a debt was
contracted by him, and when judgment upon it was rendered.
The judgment bore no lien on that property: therefore, he
could sell to her without fraud upon creditors.* But it has
been held that a homestead conveyed by a husband to his wife,
not really to pass title but to defraud creditors, will not be
protected from them as her property after the homestead im-
munity has ceased, but will be then liable to them for his
debts.^
A conveyance to a married woman, in consideration of the
iRoig V. Schultz, 43 O. St. 165; Scott, 55 N. T. 247; Todd v. Lee, 16
Sears v. Hanks, li O. St. 298; Tracy Wis. 480.
V. Cover, 28 O. St 61. See Bills v. < Beyer v. Thoeming, 81 la. 517 ; 46
Bills, 41 O. St 206. N. W. 1074 ; Delashmut v. Trau, 44
2 Monroe v. May, 9 Kas. 466. la. 613; Officer v. Evans, 48 la. 557;
3 Hill V. Myers, 46 O. St 183; Wild- Aultman v. Heiney, 59 la. 654; But-
ermuth v. Koenig, 41 O. St 180. It is ler v. Nelson, 72 la. 733.
said in the Hill case that the woman 5 Baines v. Baker, 60 Tex. 189 ; Mar-
gave no mortgage or specific lien ; tel v. Somers, 36 Tex. 554 ; Cox v.
that the case came under the prin- Shropshire, 25 Tex. 123 ; Wood v.
ciple of the cited cases : Maxon v. Chambers, 20 Tex. 354.
EFFECT OF SETTING ASIDE A FBAUDULENT TEANSFEE. 631
price paid by the husband, is, in eflfect, as if the deed were
given to him and then a voluntary conveyance made by hira
to her. Of such a -transaction, it was judicially said : " It was
done to avoid an existing debt, and must be held, to the ex-
tent of the creditor's rights, to be fraudulent and void. The
creditor had an equity, by proper proceedings, to subject the
land to the payment of his judgment, so far as he might be
able to do so without contravening the policy of the home-
stead laws, in force at that time, and applicable to that
debt." '
A husband conveyed land to his wife, the consideration
being partly a homestead in another state, where the joinder
of both was necessary to pass title. This was held to be not
fraudulent as to his creditors ; and the land so conveyed was
declared not liable to pay their claims against him.^
The owner and his wife, fraudulently conveying property
which included their homestead to a third person to be recon-
veyed to her, for the purpose of defeating creditors, may suc-
ceed in having the title of the homestead made hers while
failing to get the liable property out of the reach of execu-
tion. In other words, in such a transaction, the conveyance
has been held void as to creditors but good as to the home-
stead against which they had no rights.'
§ 13. Effect of Setting Aside a Fraudulent Transfer.
If a conveyance is set aside for fraud upon creditors, the
interest of the grantors will not be affected by such convey-
ance ; that is, if the homestead was included with other land,
and the fraud was in relation to the latter, the homestead will
be in the position it would have been had there been no at-
tempt to convey.''
It has been frequently decided that after a debtor has made
a fraudulent conveyance of land to cheat his creditors, and
1 Bennett v. Hutson, 33 Ark. 763. * Horton v. Kelly, 40 Minn. 193 ;
2Stmde V. Behrens, 81 Mo. 254; Wait on Fraud. Conv., g§ 33, 46;
overruling Stinde v. Behrens, 6 Mo. Hanson v. Edgar, 34 Wis. 653 (see
App. 809. White v. PoUeys, 20 Wis. 503) ;
3 Bell V. Devore, 96 111. 317. For Hatcher v. Crews, 83 Va. 871 ; Mar-
conveyance by husband to defraud shall v. Sears, 79 Va. 49 ; Boynton v.
his wife, see ante, chapter on Ke- McNeal, 31 Gratt 459 ; Ships v. Re-
straint of Alienation, see. 8. pass, 38 Gratt 734.
632 FEATO.
they have brought suit to set it aside for fraud, he may yet
claim homestead therein in the same proceedings, though the
fraud be proven or admitted.' But itis said to be too late to
claim, after neglecting to do so in such proceedings.^
An attempt to defraud creditors by conveying the legal title
was held not to prevent the grantor from having homestead
subsequently assigned in the property, though the conveyance
had been set aside for fraud.' But when a judgment debtor
had fraudulently deeded his home tract to his son, and other
land appraised at less than the homestead maximum was
assigned to him as a homestead, he, after accepting the
assignment, was estopped from claiming homestead in the
home tract after his deed to his son had been set aside for
fraud. That tract was now subject to sale by the sheriff to
satisfy the judgment.*
A conveyance of land with the purpose of defrauding cred-
itors does not work the forfeiture of the fraudulent conveyor's
homestead.^ The reason is found in the creditor's want of in-
terest in that which is not liable for debt.^
It has been held that though a man, entitled to one hun-
dred and sixty acres as homestead, conveyed one hundred and
twenty of them to his children in fraud of his creditors, he
could yet claim the whole as exempt after the conveyance had
been set aside as fraudulent.' He had retained forty acres as
his homestead and meant not to retain the rest. He had
abandoned one hundred and twenty acres in his fraudulent
attempt to deprive his creditors of recourse against any of his
property. Under the authorities, they were not legally de-
frauded by the attempted disposal of what the law had made
exempt; but he had included other lands, besides the one
hundred and sixty acres, to his children, without any consid-
eration duly proved, for the manifest purpose of preventing
his creditors from making their money out of it. If the re-
1 Turner v. Vaughan, 33 Ark. 454. sDortoh v., Ben ton, 98 N. C. 190;
2 lb.; Norris v. Kidd, 28 Ark. 486 ; Crummen v. Bennet, 68 N. 0. 494.
Prits V. Frits, 33 Ark. 327 ; Larson v. 6 ib,; Rankin v. Shaw, 94 N. C. 405 ;
Reynolds, 13 la. 57 ; Haynea v. Meek, Duval v. Rollins, 71 N. C. 3ia
14 la. 330 ; Lee v. Kingsbury, 13 Tex. 7 Carmack v. Lovett, 44 Ark. 180,
68 ; Tadlock v. Eccles, 30 Tex. 783. citing Turner v. Vaughan, 83 Ark.
3 Jaffers v. Aneals, 91 111. 488. 454.
* Whitehead v. Spivey, 103 N. C. 66.
EFFECT OF SETTING ASIDE A FEAITDULENT TEANSFBE. 533
tention of forty was an abandonment of his homestead right
to the one hundred and twenty, the latter should have been
considered open to creditors. But the courts do not deem
such a transfer as relinquishment of the homestead of which
the creditors may avail themselves.
The debtor, after a fraudulent conveyance has been set
aside at the suit of his creditor, may yet claim homestead in
the property which he has thus sought to convey.' This is
not universally true, for it has been held that a debtor who
sells his land to defraud his creditors before their judgment
has been rendered cannot have it reconveyed to him after-
wards and then defeat the judgment lien by claiming hofae-
stead in the land.^
Land was conveyed by a husband to his wife. His home-
stead right was not lost ; and, when the deed had been set
aside, he successfully claimed the right.'
A husband bought land in his wife's name, but the convey-
ance to her was set aside fot- fraud, and the property Was sold
as his to pay his debts. It was held that there would be no
error in allowing him part of the proceeds for the purchase
of a homestead if the debts were contracted subsequently to
the passage of the homestead statute.^
The only statutory basis for this rendering is as follows :
" Such homestead shall be subject to attachment and levy of
execution upon all causes of action existing at the time of the
acquiring of such homestead, except as herein otherwise pro-
vided; and for this purpose such time shall he the date of the
filing, in the proper office for the records of deeds, the deed
of such homestead, when the party holds title under a deed ;
but when he holds title by descent or devise, ^rom the time he
'becomes invested with the title thereto; and in case of existing
estates, such homestead shall not be subject to attachment or
levy of execution upon any liability hereafter created." *
It has been held that the doctrine of canieat erwptor is appli-
1 Marshall v. Sears, 79 Va. 49 ; Boyn- 2 Gaines v. Nat Exch. Bank, 64 Tex.
ton V. McNeal, 31 Gratt. 459; Shipe 18.
V. Repass, 28 Gratt. 739; Sears v. sWood v. Timmerman,39 8. C. 175.
Hanks, 14 O. St. 398 ; Crummen v. * Buck v. Ashbrook, 59 Mo. 300.
Bennet, 68 N. C. 494 ; Cox v. Wilder, » R. S. Mo. 1889, § 5441 ; R. S. 1879,
3 Dill. 45. § 3695 ; Laws 1887, p. 197.
534: FEAUD.
cable to a purchaser of a homestead at execution sale, so that
when the sale had been vacated he was not entitled to have
the judgments' assigned to him, which he had satisfied with his
money paid as the price of the land ; ' but he should have his
money refunded to him by the creditors, with interest.
It has been decided that the purchaser of a widow's home-
stead, at a sale by the administrator of her husband's estate,
is bound to pay the price, though he gets no title, on the prin-
ciple of caveat emptor. To quote the concluding sentence of
the decision: " If the sale was ineffective to convey the home-
stead right, he is liable for the full amount of his bid, because
the homestead right is in the nature of a paramount outstand-
ing title, of which he should have taken notice at his peril." -
The court erroneously treated the purchaser as if he had
bought at a creditor's s^le.
When a husband contracted to convey homestead land with-
out his wife's consent, and received part of the price, the pur-
chaser was denied his claim for recovery of the money paid
without consideration, though he obtained nothing for it, and
though there was no fraud and both the contracting parties
had knowledge of all the facts.' The doctrine of caveat
emptor was here carried to an unwarrantable extent. Doubt-
less there are other cases in the books which go as far, but it
must always be repugnant to justice for a man to be denied
the recovery of his money honestly put forth to the enrich-
ment of another, when the thing bought has failed through
no fault of his, and no neglect or mistake in which the other
party was not equally involved.*
§ 14. Effect of Forfeiture, as to Creditors.
A creditor, who has no present rights against a homestead,
may have an interest in the forfeiture of the exemption priv-
ilege on the part of his debtor, or in the surrender of it.
While the exemption exists, the creditor cannot employ the
usual means of collecting debts against such property, and
therefore is said to have no interest to interfere with any dis-
' Jones V. Blumenstein, 77 la. 361, ^ Cummings v. JohnsoD, 65 Miss,
citing, as to caveat emptor, Ham- 342, 347.
smith V. Espy. 19 la. 444, and Holt- « Tliimes v. Stumpff, 33 Kas. 53.
zinger v. Edwards, 61 la. 384. * See cases cited in Waples on At.
and Orar., pp. 535-544.
EFFECT OF FOEFEITUEE, AS TO OEEMTOES. 535
position his debtor may make of it. But when the latter
already has made such disposition as to remove the bar that
was in the way of the former, an interest springs into being
which may be asserted.
It is true that it has been decided that creditors who had
set aside a deed of their debtor on the ground that it was
fraudulent as to them could not subsequently interpose the
deed against his claim of exemption with reference to the
property which he had fraudulently tried to convey.' The effect
of setting the transfer aside is to leave the property, sought to
be conveyed, in the condition it would have been had nothing
been done ; and the fraudulent grantor is not held to have
surrendered or abandoned the exemption right, according to
many decisions.^ They are based on the intent of the grantor,
which was to surrender his exemption right (as consequent
upon the transfer of the property) in consideration of the
price, but not to make a general relinquishment of it inde-
pendent of the consideration.
There may be a surrender, however, in which all creditors ,
would be interested because it would remove the bar to their
remedy : as when, under some statutes, husband and wife filed
a relinquishment having all the requisites of a deed as to mat-
ter of form. And, without such statutory direction, it would
seem that they might surrender in this way, or in any equiva-
lent form. And in a fraudulent transfer, there may be such
general relinquishment as would amount to abandonment.
Certainly, creditors who have no present interest in the con-
veyance of their debtor's homestead would have interest
created by abandonment. Are they not so far interested
before, as to have the right to assert that certain acts amount
1 Sears v. Hanks, 14 O. St. 398. 43 Mich. 477; Marshall v. Sears, 79^
ZJ6.,- Smith v. Kehr, 3 DHL 50; Va. 49; Wood v. Chambers, 20 Tex.
Cox V. Wilder, 2 Dill. 45 ; McFarland 347 ; Vogler v. Montgomery, 54 Mo.
V. Goodman, 6 Biss. Ill ; Thompson 577, 684; Buck v. Ashbrook, 59 Mo.
V. Neely, 50 Miss. 310 ; Shaw v. Mill- 200 ; State v. Diveling, 66 Mo. 375 ;
saps, 50 Miss. 380 ; Edmonson v. Danf orth v. Beattie, 43 Vt 138 ; Mc-
Meacham, 50 Miss. 34 ; Currier v. Cord v. Moore, 5 Heisk. 734 ; Patten
Sutherland, 54 N. H. 475,486-7; Pike v. Smith, 4 Ct. 450-5; Crummen v,
T. Miles, 33 Wis. 164; Boiling v. Bennett, 68 N. C. 494. Comptire Sugg
Jones, 67 Ala. 508; Muller v. Inder- v. Tillman, 3 Swan, 308; Rose v.'
reider, 79 III. 383: Ferguson y. Kim- Sharpless, 33 Gratt. 153, and cases in
bei-, 37 Minn. 156 ; Matson v. Melchor, the next note.
536 FEAUD.
to abandonment? Under doubtful circumstances, ought they
not be heard on the question of abandonment?
It is not universally held that a debtor may make a fraudu-
lent transfer of his exempt property with impunity, so that,
when it is set aside for fraud, he will be protected from cred-
itors as before.'
A sale of land, including the family residence of the grantor,
with no reservation of homestead as required by the statute
of the state where the conveyance was made, was set aside on
the ground that it was in fraud of creditors. The court held
that the debtor had abandoned his exemption right, and that
it did not revive upon the setting aside of the sale as void and
fraudulent.* If, however, a sale be invalid, the exemption
right of the vendors is held to continue so long as they retain
possession.'
§ 15. Comment.
The mere right of occupancy with exemption cannot be
conveyed by deed. It ceases by being abandoned or by the
death of the beneficiary who leaves no legal successor to it.
The palpable solution of the problem : What is the effect of
a voluntary transfer of the homestead by a childless and wife-
less grantor, where the reversion or fee is liable to creditors?
is that the act is abandonment if attended with cessation of
occupancy. If the grantor has pocketed the price, his credit-
ors may not reach it ; but if it is still due him, why may it
not be levied upon, by judgment creditors, in the hands of the
purchaser? Why may he not be garnished, when the neces-
sary statutory grounds for attachment exist?
But, the sale being a nullity, the property itself is the thing
to which the creditors will look. The attempt to defraud
them must prove abortive, where the exemption right is in-
alienable and the realty itself liable upon the termination of
the right.
I Emerson v. Smith, 51 Pa. St. 90 ; The same doctrine held relative to
Smith V. Emerson, 48 Pa. St. 456; personal property exemption. Ste-
Strouse v. Becker, 38 Pa. St. 190; venson v. White, 5 Allen, 148 ; Nash v.
Gilleland v. Ehoads, 34 Pa. St. 187 ; Farrington, 4 Allen, 157. See Leh-
DiefEenderfer v. Fisher, 3 Grant's man v. Kelley, 68 Ala. 192.
Cases, 30 ; Cassell v. Williams, 12 111. » Richardson v. Woodstock Iron
387. Co., 90 Ala. 366.
2Nichol V. Davidson, 8 Lea, 389.
COMMENT. 537
If tlie sale is upon credit, it may be that the grantor, in-
tends to buy a new homestead with the proceeds, and the stat-
ute of his state may protect the price due him, for a year or
more ; but suppose, in the deed, or in any way, he has declared
a different intent, why may not his creditors attach the price
in the hands of the purchaser when ordinarily he would be
garnishable?
The profession will understand that, in the present state of
the judicial mind of the country, the sale, of the homestead
for the purpose of applying the price to other objects than the
purchase of a new home, attended with delivery to the pur-
chaser and discontinuance of occupancy by the seller, is not
held to be fraudulent; that the unpaid price in the hands
of the purchaser cannot be reached by creditors; that the
price may remain on interest so long as, the parties may wish;
and that the ex-homestead holder may openly and avowedly
apply the price to the expenses of an extended foreign tour,
leaving his creditors — not defrauded.
The conservation of the home, as the purpose or policy of
the legislator in cutting off creditors, is thwarted by such a
proceeding on the part of the beneficiary. "Were the question
(whether a sale, under the circumstances suggested, is home-
stead abandonment) a pristine one, it might reasonably be
answered in the affirmative; but the decisions must be fol-
lowed.
Cases will arise, however, with their ever neAv and curious
combination and correlation of facts, touching the rights of
creditors relative to fraudulent homestead conveyances, which
none of the numerous deliverances heretofore made will be
found to govern. New conflicts, between principles long es-
tablished and those that have sprung to being to meet the
exigencies of homestead legislation, will inevitably be precipi-
tated. Some of them will involve the surrender of homestead
by sale for other purposes than the furtherance of the legis-
lative, policy. The present decisions, holding that homestead
sales and delivery, when set aside for fraud, do not divest the
beneficiaries of their immunities under the legislative policy —
do not inure to the benefit of creditors, but leave the fraudu-
lent grantors with all their original titles and privileges in-
tact — may not prove broad enbugh to cover every fresh case
538 FRAUD.
hereafter arising and presenting original questions along this
line.
Without any change of the statutes as they now stand, the
courts will be brought to additional expositions to meet such
questions. As the statutes are now, and as the expositions
are now, creditors have the right to inquire into transfers of
homesteads to see whether their interests are affected or not.
Given, that the exemption exists, they have no interest in
such a homestead,^ and therefore cannot be defrauded, it is
held — it is settled ; but it is open to their inquiry whether
exemption does still exist, in any particular case in which they
would be interested upon the establishment of the negative.
"Fraud without injury will not support an action," it is said;
but whether there is injury is an open question. And the in-
vestigation may tend, under some combination of circum-
stances, to impair the theory of the felicitous impossibility of
fraud on the part of the exemptionist towards his creditors.'
When a question of fraud is involved, the rule of construc-
tion is liberal to meet the mischief and advance the remedy.*
If there are two mischiefs to be met — fraud and family dis-
integration — the first application of the rule sjiould be to de-
feat the fraud, since it is manifestly the greater evil.' If this
order of the application of the rule were invariably observed,
there ivould be fewer attempts on the part of homestead claim-
ants to succeed in doubtful cases, involving questions of fraud,
with the hope of having their lacking claims pieced out by
liberal construction.
1 See ch. XXVII, sec. 3. a Colorado case, needs this qualifioa-
2 Ante, p. 43. tion.
3 The statement on page 515, from
CHAPTEE XVII.
WAIVEE.
1. Inalienable Bights.
2. Pre-agreement to Waive.
8. Inchoate Rights.
4. Rights of Dower and Homestead.
5. No Waiver of Others' Rights.
6. Optional Exemption.
7. Special Waiver. *
g 8. Absolute Waiver by Mortgage.
9. Lien Not Waived by Taking
Security.
10. Usury Affecting Wai-^er.
11. Mode of Release.
13. Pleading Waiver.
§ 1. Inalienable Eights.
Eights of defense when life, liberty or property are assailed
cannot be denied by courts because they have been relin-
quished anterior to the time of attack. Eights, not only
natural but legal, which are given for defense, cannot be ab-
jured by the beneficiary so as to deprive courts of the power
to enforce them when subsequently pleaded. Eemedies con-
ferred by law cannot be waived, by mere agreement not to
claim them, so as to divest courts of the duty of according
them if they be afterwards claimed by one of the contracting
parties.
" Waiving all defense to this note should it be sued upon : "
would that prevent the maker from exercising his law-given
right of defense in case of suit? Certainly, his promise not
to answer would not authorize the court to disregard his an-
swer when subsequently filed, nor relieve it of the duty of
giving the defense all the consideration it would have been
entitled to, had no such promise been inserted in the note.
So of any executor}' agreement to refuse to avail one's self
of any right or remedy given by law, when the time to claim
it shall arive. The waiver of " any relief whatever from ap-
praisement or valuation laws " is void. An agreement never to
take the benefit of the bankrupt law would be void. So, not to
redeem forfeited land ; not to plead prescription, and the like.^
'Moxley v. Ragan, 10 Bush, 158 Home Ins. Co. v. Morse, 20 Wall
(said in argument by the court); 451; Hopt v. Utah, 110 U. S. 579;
540 WAIVEE.
On the other hand, there are rights which may be waived
before the occasion for exercising them has arisen. An in-
,dorser may waive notice of protest, in advance.
There are remedies enforceable by courts which may be
waived by parties in their conventions, for adequate consider-
ation, so that they cannot be afterwards enforced by courts
for the reason that the interested contracting parties are
estopped from pleading them. The waiving party has had his
equivalent for the surrender of his right No interest of the
state or of others being affected, the agreement will stand
and the relinquishment be respected.
No consideration or equivalent can be considered or re-
spected by the court when rights, such as those above in-
stanced (right of defense of life, liberty and property; of
defending a suit, pleading prescription, claiming appraisement,
redeeming forfeited lands, taking the benefit of a bankrupt
law), have been bartered away. Many like illustrations might
be adduced. Such waivers are not legalized by any consid-
eration promised to, or received by, the relinquisher. They
are against public policy and void.
A general waiver, in a contract of lease, of " all laws or
usages exempting any property from distress or execution for
rent," was sustained. The court said it was, " a waiver as to
the debt, not merely the property liable to distress. . . .
It would be diiHcult to frame a broader exemption." ' It was
a waiver of the law as broad as it could be.
§ 2. Pre-agreement to Waive.
The doctrine is largely held, if not fully established, based
on public pojicy, that the right to claim such personal prop-
erty as the law exempts cannot be waived in an executory
contract; that a clause in a promissory note, or other written
obligation, in terms waiving the benefit of exemption laws, is
entirely nugatory and ineft'ectual, so far at least as chattel ex-
emption is concerned. The policy of the law, in thus striking
such present surrenders of futute protection with nuUity, is in
consideration of the possible needs of the obligor's familj'', the
State V. Stewart, 89 N. C. 563 ; Swart (Mitchell v. Crates, 47 Pa. St 203,
V. Kimball, 43 Mich. 448 ; Cancemi distinguished.) See Hageman v. Sal-
V. People, 18 N. Y. 135. isberry, 74 Pa. St 280.
iBeatty V. Rankin, 139 Pa. St 358.
PEE-AGEEEMENT TO WAIVE. 541
improvidence of many persons when making contracts to be
consummated in the future, and the interests of the state in
obviating pauperism. Such reasons, and perhaps others, are
found in the opinions of judges who hold the law settled that
though a debtor may suffer his exempt chattels to be sold un-
der execution when the time of sale has arrived, he cannot
agree to do so when contracting the debt which may ulti-
mately be prosecuted to judgment.'
This doctrine is not universally held. It needs qualification,
as stated' above, even in states where the waiver of chattel
exemption is not allowed. It evidently should be confined to
general v/aiver ; and that is doubtless the view of the courts
rendering most of the above-cited decisions.. The usual ex-
emption statute, with reference to chattels, provides that
working utensils to a certain value, or beds and bedding, or a
horse or yoke of oxen, or fuel and provisions stored in the
dwelling for family use in reasonable quantity, or all of these,
or other things generally described, shall be exempt from sale
on execution. That the right to claim the benefit cannot be
relinquished before the time for claiming it comes, is the pur-
port of those decisions.
There is no prior setting apart of a particular horse or yoke
of oxen, or any specified thing to be branded or labeled as
exempt. The owner may sell any horse that he has, or pawn
or pledge him, or subject anything to a chattel mortgage and
thus cut himself off from claiming exemption as to that thing.
When the sheriff comes he may have a horse, a cow, a box of
tools, a bed — whatever the articles exempt — reserved to him.
-So, it is not wholly true that chattel exemption may not be
-(vaived ; and there are authorities not only holding this, but
favoring general waiver as to such property.^
1 Kneetle v. Newcomb, 33 N. Y. La. Ann. 333 ; Curtis v. O'Brien, 30
349 ; S. C, 78 Am. Dec. 186 ; Harper la. 376 ; Branch v. Tomlinson, 77 N. C.
V. Leal, 10 How. Pr. (N. Y.) 383; 388; Maxwell v. Reed, 7 Wis. 583;
Crawford v. Lockwood, 9 How. Pr. Beavan v. Speed, 74 N. C. 544 ; Denny
(N. Y.) 547 ; Carter v. Carter, 30 Fla. v. White, 3 Cold. 384 ; Moran v. Clark,
558 ; Blalook v. Elliott, 59 Ga. 837 ; 30 W. Va. 358. (See Reed v. Bank,
Moxley v. Ragan, 10 Bush, 156 ; Recht 39 Gratt. 719, on Code 1873, ch. 183,
V. Kelly, 83 111. 147 ; Phejps v. Phelps, § 3.)
73 111. 545 ; Van Wickle v. Landry, 2 Adams v. Bachert, 83 Pa. St, 534 ;
39 La. Ann. 830 ; Hardin v. Wolf, 29 O'Neil v. Craig, 56 Pa. St. 161 ; Beegle .
542 WAIVEE.
The same reasons, which forbid the waiver of the right to
claim the legal exemption of personal, will apply to real prop-
erty. The arguments drawn from public policy, the preven-
tion of pauperism, the protection of the wife and children of
the debtor, and the need of guarding the impecunious from
their own incaution when giving up rights before the occasion
for asserting them arises, will apply to the one class of prop-
erty as well as to the other.
The doctrine, therefore, is broader than the statement of it
made at the beginning of this section. Exempt realty cannot
be rendered non-exempt by a general agreement to waive the
privilege before the time for claiming it has arisen, and before
the right has attached to any particular land. As already
said, relative to personalty, there is yet nothing branded or
labeled as exempt, and therefore the owner is free to sell or
mortgage any particular tract, getting his quid pro quo and
giving up all right of claiming exemption to the injury of the
party Avith whom he has contracted. In states where no
homestead is recognized further than the right of the debtor
to claim real or personal property, or both, to a given amount,
when execution is pending against his property, there is little
or no distinction between the chattel and the real estate ex-
emption.
A husband cannot estop himself from claiming homestead
by so stipulating in a ^postnuptial agreement relative to the
land of the wife, entered into with her prior to the existence
of the right to claim.*
Neither husband nor wife can waive a part of the homestead
fixed by law, and taiie the rest, when by so doing the rights,
of others would be invaded or destroyed. In illustration, the
court, stating this principle in exposition of a statute, held
that a widow whose homestead was a life estate in thirty acres
could not waive it and take less, when by so doing, she would
V. Wentz, 55 Pa. St. 369 ; Lauck's Ap- 270 ; Dow v. Cheney, 103 Mass. 181.
peal, 44 Pa. St. 395; Shelley's Ap- See Bowman v. Smiley, 31 Pa. St
peal, 86 Pa. St 878; Smiley v. Bow- 235; S. C, 73 Am. Dec. 738. And
man, 3 Grant's Cas. 138; Case v. compare Firmstone v. Mack, 49 Pa.
Dunmore, 23 Pa, St 93 ; McKinney St 387 ; S. C, 88 Am. Dec. 507.
V. Reader, 6 Watts, 40 ; Butt v. Green, i Ci-um v. Sawyer, 132 HI. 44a
29 O. St 667; Frost v. Shaw, 3 O. St
INCHOATE EIGHTS. 643
add to the realty to be distributed, in which she had a third
interest in fee, and this would give herself ten acres absolutely
to the injury of the distributees.^
§ 3. Inchoate Rights.
Suppose an unmarried man owns real estate and has the
right of becoming the beneficiary of homestead exemption
under an existing law upon complying with the conditions of
family headship and oecupancy : may he now waive the in-
choate right of exemption?
Such an owner mortgaged a thousand acres of land, inserl-
ing in the deed : " I hereby waive all right to homestead in
the above described, land." About two years afterwards he
married. Ten years after the waiver, the land was levied
upon by the mortgagee and the mortgagor claimed that he
had homestead right in it. The claim was made in connec-
tion with alleged rights acquired in prior bankrupt proceed-
ings, but the case, so far as useful here for illustration, may
be taken free from that complication.
The court answered the above question in the alBrmative.
It had been urged in argument that the mortgagor, not being
the head of a family when the mortgage was executed, had
then no homestead right and therefore could waive none. The
court admitted that he then had no complete, unconditional
right, but insisted that he had an inchoate or contingent right,
and that, in waiving " all right," he gave up that, so as to dis-
able himself from perfecting it by subsequent marriage.^
In most of the states the mortgage, considered as a species
of alienation, made by an owner who had the right to make
it, and who had no wife to join with him in the act ; made at
a time when no homestead right had attached to any part of
the large tract, would not so much as require any express
waiver to pass the property subject to the right of redemp-
tion. Certainly, he could have sold the land unconditionally
without any waiver, and would thus have divested himself of
all right to or in it, present or future.
1 Mintzer v. St. Paul Trust Co., 45 2 Broach v. Powell, 79 Ga. 70, 8S.
Minn. 323. See Egbert v. Egbert (la,),
ra N. W. 478.
544: WAIVEE.
The partial analogy between homestead waiver and quit-
claim has been recognized.* If we extend the latter to con-
tingent interests, will the analogy still exist? The court, in
the case cited above the last, said : " If a quitclaim can operate
only where some estate is in esse at the time it is executed,
then there certainly can be no quitclaim to a homestead by
waiver at all; for before the homestead is allowed the home-
stead estate is not in being, and after it is allowed there can
be no waiver. The moment the homestead right becomes a
complete vested right, it is no longer waivable, for nothing
will vest it short of securing the homestead.^ Up to that stage
the right, no matter how perfect the conditions for its exercise
may be, is a mere grace or privilege, and it may be abjured
or renounced as well under incomplete conditions as under
complete ones." ' So the court held that homestead waiver
by an unmarried man will bar his right to homestead when
he afterwards becomes married, and the head of a family, so
as to render his inchoate right complete.
It is well settled in the state of this decision, that homestead
right may be waived as to specified property when it is sub-
jected to lien-, as the court pointed out.*
The renunciation of rights in future has no effect, as a gen-
eral rule. The right to homestead, dependent upon the con-
ditions of ownership, family headship, occupancy, and dedica-
tion, or upon any one of these, can hardly be properly called
an existing, inchoate right before compliance with the neces-
sary conditions or condition. A contract, however solemn in
form, by which a party should agree to debar himself from
claiming exemption in property afterwards to be acquired,
would not be worth the wear of his pen point in writing it.
§ 4. Rights of Dower and Homestead.
Though dower may be waived, it has been held that where
homestead right vests in the widow by statute on the death
of her husband, that right cannot be waived in an ante-nuptial
1 Tribble v. Anderson, 63 Ga. 54-5. Statford v. Elliott, 59 Ga. 838; Allen
2 Citing Harris v. Glenn, 56 Ga. 94 v. Frost, 59 Ga. 558 ; Flanders v.
3 Broach v. Powell, 79 Ga. 84 ; Bor- Wells, 61 Ga. 195 ; Smith v. Shepherd,
oughs V. White, 69 Ga. 843. 63 Ga. 454 ; Jackson v. Parrott, 67
■• Simmons v. Anderson, 56 Ga, 53 ; Ga. 210.
EIGHTS. 54:5
contract, because it is not existent at the time the coatraot is
made.' She is not* estopped from asserting a statutory right
which arises after such contract, on the ground that she would
thus violate an executory covenant.^ She cannot waive her
right, subsequently arising, to a future demand.'
A release by a wife of her " rights under the homestead ex-
emption act " is not a renunciation of her dower right. Though
she joins her husband in giving a mortgage, and there is no ex-
press reservation of the, dower right, it will not be presumed
that a renunciation of it was designed when there is an ex-
pressed purpose : the release of the homestead right. Were she
to convey her hompstead right of life estate in the premises to
the grantee, there would be an inconsistency in the retention
of the dower, which is also a life estate. But release on her
part of homestead right is not conveyance to the grantee.
" The effect of the deed in question " (as was said in an illus-
trative case) " was to convey to the mortgagee the estate de-
scribed in it, freed from the right of the grantors to claim it
as a homestead; but it did not affect the wife's inchoate right
of dower, and does not bar her from claiming dower after her
husband's death." *
A general conveyance by husband and wife, with dower
right released by her, is not a release of the homestead right
upon which the deed is silent.*
A widow was held to have waived her claim for homestead,
when she had applied for and received her dower, but made
no application for homestead till five years thereafter. *
§ 5. No Waiver of Others' Rights.
The owner cannot waive any vested rights of his wife and
children. When by law, through his dedication of his own
property as a homestead, they become entitled to certain
rights or interests in it, he alone cannot deprive them of it by
any agreement to forego claiming exemption. Where " estate
of homestead " is created with this effect in favor of the wife,
1 Ma,nn v. Mann's Estate, 53 Vt 48. dting Greenough v. Turner, 11 Gray,
' 2 lb.; Gibson v. Gibson, 15 Mass. 333 ; Learned v. Cutler, 18 Pick. 9.
106 ; Sullings v. Richmondi 5 Allen, See Smith v. Carmpdy, 187 Mass. 126.
187. ' Hayden v. Bobinson, 83 Ky. 615.
3 Hastings v. Dickinson, 7 Mass. 153. « Burch v. Atchison, 83 Ky. 585.
<Tirrel v. Kenney, 137 Mass. 30,
35
64r6 WAIVEE.
and where beneficiaries other than the owning head of the
family have such rights, interests or privileges conferred
though there be no such " estate " recognized, the owner alone
cannot waive exemption to their injury.
No such act on the part of a husband or father, or of a
wife' or widow, or of any person, as might estop him or her
personally from claiming a homestead right, can possibly debar
others, who have rights therein, from their interest. Such
rights of others render his own inviolable, since they are in-
separable from his. What might be an act in pais operating
as an estoppel, were he alone concerned, would not be such
when the rights of those to be protected through him are in-
volved. He would not be estopped from claiming homestead,
though he had solemnly promised not to claim, and had re-
ceived a consideration equivalent to the value of his right.'
A wife may release her homestead interest when joining
with her husband in giving a mortgage, deed of trust or ab-
solute conveyance.^ But without her consent, evidenced by
her signature to the deed duly executed, thei wife cannot be
deprived of her. homestead right.'
Where the exemption is for the protection and benefit of
the wife and children as well as himself, the husband cannot
waive the right of homestead.*
If the situation were such that he could relinquish his own
exemption privilege without impairing that of others, he
might be held to his agreement to waive it. There are cases
in which the beneficiary may, relinquish without affecting
others' rights. A widow may release all rights in and to her
deceased husband's estate, including that of homestead,' but
she cannot impair the minor children's rights.'
1 Showers v. Eobinson, 43 Mich, istered. Kennedy v. Stacy, 1 Bax. S20.
503, 513. Registry not required by latter act
2 Atwater v. Butler, 9 Bax. 399 ; Deatherage v. Walker, 11 Heisk. 45.
Lover v. Bessenger, 9 Bax. 393. * Beecher v. Baldy, 7 Mich. 488 ;
3 Williams v. Williams, 7 Bax. 116. Dye v. Mann, 10 Mich. 391 ; King v.
But, prior to the adoption ot the 'Ten- Moore, 10 Mich. 538 ; Snyder v. Peo-
nessee constitution of 1870, the hus- pie, 36 Mich. 106 ; Comstock v. Corn-
band alone could alienate the home- stock, 37 Mich. 97 ; Sherrid 7. South-
stead (Bilbrey v. Posten, 4 Bax. 333 ; wick, 43 Mich. 515.
Const, art 11, § 11 ; Code, § 3114a), ^Mack v. Heiss, 90 Mo. 578.
unless it had been set apart and reg- *Rhorer v. Brockhage, 86 Mo. 544;
OPTIONAL EXEMPTION. 547
The rights of ininoi' children are intrusted to the keeping
of their natural guardians. Ordinarily, their father can con-
trol them, even to the abandonment of them. So, when. join-
der by the parents is required in the sale or incumbering of
the homestead, they represent their children. Both together
may waive homestead right so as to cut off their children's
benefit, where waiver is permitted. It is not wholly true,
therefore, that the rights of all beneficiaries are unaffected by
waiver in which they have no voice.'
§ 6. Optional Exemption.
A constitutional provision, that " any husband or parent re-
siding in this state, or the infant children of deceased parents,
may hold a homestead of the value of one thousand dol-
lars . . . exempt from forced sale, subject to such regu-
lations as shall be prescribed by law," ^ was held not to con-
fer, exproprio vigore, a right- to a homestead. It simply gave
the legislature the power to enable the resident husband,
parent or' minor orphans to claim one.'
" Here is clearly no countenance given to the idea that it was
the design of the constitution to take away the dominion that
the owner himself had over his property, and to deny him the
right to sell or incumber the homestead. It gave him the
right to hold, as exempt from ' forced sale,' a homestead. . . .
It was a prvvilege secured to him, but not putting his property
beyond his control." *
Exemptions are personal privileges granted to debtors.
They may be forfeited by fraud, or waived by contract or
neglect to claim them. They may be surrendered by the
beneficiaries.'
Kochling V. Daniel, 83 Mo. 54; Bog- ^Speidel v. Schlosser, 13 W. Va.
era v. Mayes, 84 Mo. 520 ; Roberts v. 686 ; Holt v. Williams, 13 W. Va. 704.
Ware, 80 Mo. 363 ; Fraend v. McCall, * Moran v. Clark, 30 W. Va. 358,
73 Mo. 343; French v. Stratton, 79 378.
Mo. 560; Skouten v. W^ood, 57 Mo. SBowen v. Bowen, 55 Ga. 183;
380; Booth y. Goodwin, 39 Ark. 633; Pratt v. Burr, 5 Biss. 36; Hewes v.
Johnson v. Turner, 29 Ark. 380; Parkman, 30 Pick. 90; Brackett v.
Phipps V. Acton, 12 Bush, 375 ; Plate Watkins, 21 Wend. 68 ; Lauck's Ap-
V. Koehler, 8 Mo. App. 396. peal, 12 Harris (Pa.), 426 ; Case v.
1 Harpending's Ex'rs v. Wylie, 13 Dunmore, 11 Harris (Pa.), 93 ; Bow-
Bush, 158. yer's Appeal, 9 Harris (Pa.), 310 ;
2Const. W. Va., art 6, §4'a Hammer v. Freese, 7 Harris (Pa),
54-8 WAI.VEE.
§ 7. Special Waiver.
Where exemption embraces both realty and personalty, the
owner may specify certain articles of personalty or portions of
the realty as 'released from the exemption; he may waive his
right and allow a lien to be created on the excepted property.'
The waiver of the homestead right in favor of a mortgagee
is not a general waiver, opening the door to all' creditors.-
The usual release clause is understood to be made with refer-
ence only to the mortgagee of the instrument though not con-
fined to him in terms.
The release by the parents binds the children so that they
cannot, after foreclosure, claim the homestead right.' If the
mothei' has joined the father in the grant and waiver, the
homestead relinquishment is complete.*
^ A waiver of homestead immunity with reference to a par-
ticular debt cannot be treated as a general waiver.' But
when the homestead holder has purposely allowed his home
to be sold to pay a debt, thus waiving exemption as to that
debt, the purchaser cannot set up the grantor's rigtt of ex-
emption. Any third party, not in privity with the grantor
who thus waives, is incompetent to claim the benefit of that
exemption which has thus been renounced.^
255; Hutchinson v. Campbell, 1 son, supra. A waiver in general
terms embraces all that is not ex-
Eeader, 6 Watts (Pa.), 34 cepted by law. Wilson v. McMillan,
1 Broach v. Powell, 79 Ga. 79 ; 80 Ga. 733. In a mortgage, the state-
Green V. Watson, 75 Ga. 473; Bor- ment that right of homestead is
oughs V. White, 69 Ga. 843 ; Jackson waived is not a general waiver.
V. Parrott, B7 Ga. 310 ; Flemister v. description of property waived is
Phillips, 65 Ga. 676 ; Smith v. Shep- necessary. Smith v. Shepherd, 63 Ga,
herd, 63 Ga. 454; Flanders v. WeUs, 454
61 Ga. 195 ; Stafford v. Elliott, 59 Ga. 2 McTaggert v. Smith, 14 Bush, 414
838 ; Allen v. Frost, 59 Ga. 558 ; Sim- 3 Harpending's Ex'rs v. Wylie, 18
mons V. Anderson, 56 Ga 53 ; Bo wen Bush, 158.
V. Bowen, 55 Ga. 183. Under the < McGrath v. Berry, 13 Bush, 391.
present constitution of Georgia the The husband alone can convey the
beneficiary can waive exemption as fee in Kentucky by voluntary sale,
to all his property (except a small lb.
amount therein reserved), by a gen- 6 Jiall v. Fulgham, 86 Tenn. 451.
eral act of waiver. Flemister v. Phil- See Rayburn v. Norton, 85 Tenn. 351 ;
lips and Boroughs v. White, supra. Enochs v. Wilson, 11 Lea, 338 ; Hilde-
Under the constitution of 1868, he brand v. Taylor, 6 Lea, 659.
could not flo so by general waiver. * Cumnock v, Wilson (Neb.), 50
Stafford v. Elliott and Green v. Wat- N. W. 959.
ABSOLUTE WAIVER BY MORTGAGE. 549
A husband who legally waives his exemption right, before
or after his homestead has been set apart (where he constitu-
tionally can do so), renders his home liable. If he waive it
with reference to a particular debt, he cannot, nor his wife,
his widow, or his orphan minor children, set up homestead
right against that debt.'
Waiver may be general or partial. If the beneficiary means
to relinquish only part of his homestead, he should specify.
and describe the part which he relieves from exemption.^
Any verbal promise, by one entitled to homestead, that he
will not claim it, is void, whatever the consideration promised
or paidl Even a sale effected bj'^ an administrator, at the in-
stigation of the homestead beneficiary who received the price
from one induced to' buy on the assurance that the homestead
right would not be claimed, was held not to oust the bene-
ficiary (a widow) of her right to claim it subsequently.'
§ 8. Absolute Waiver by Mortgage. i
The doctrine forbidding the waiver of certain future rights
does not affect the power of parties to make a present and
complete waiver of exemption by means of a mortgage or
other form of creating a lien upon exempt property when
there is no legal inhibition. The creation of a present lien,
the waiver of a right in this way, when contracting (not a
promise to waive when the time for asserting the right may
arise), is free from the reasons given for denying waiver by
mere promise not to avail one's self of legal rights. Whether
chattel exemption or land exemption be waived in this way,
the rule is the same. The ov^ner's right to raise money by
chattel mortgage would be cut off, if he could subsequently
repudiate the lien on the plea that the hypothecated thing is
exempt from sale under foreclosure.
Can an exemptionist mortgage his propert}"-, which the law
frees from liability for his debts, to a particular creditor when
1 Linkenhoker v. Betrick, 81 Va. constitution as construed in the de-
44; Const. Va., art 11, g 1; Code Va. cisions above cited, especially the
1873, ch. 183 ; Efeed v. Union Bank, first
29 Gratt 719 ; White v. Owen, 30 2 Neely v. Henry, 63 Ala. 361.
Grratt 43. In Virginia, the jus dis- ' Showers v. Eobinson, 43 Mich.
ponendi oi the property ovner, ex- 503, 51B; Ring v. Burt, 17 Mich,: 466;
tends to his homestead, under the Clark v. Evarts, 46 la. 348.
550
WAIVER.
there is no statutory inhibition ? That is, can he now agree
that such property shall be non-exempt so far as concerns the
particular creditor with whom he contracts and the particular
debt which he agrees to secure? The answer is in the affirm-
ative, with reference to his homestead. ■ Many statutes forbid
such hypothecation, unless the wife join in the deed ; some
forbid it altogether ; but — statutory inhibitions aside — the
settled rule is that he can.'
The decisions seemingly exceptional to this rule are not
all really so, since they are based on peculiar statutes or
constitutional provisions.^ Exemption being waived, and the
property mortgaged, the mortgagor cannot afterwards resist
foreclosure and sale under bankruptcy proceedings. The mort-
gage becomes superior to the homestead right by the waiver.'
When exemption has been legally waived, and the prop-
erty sold at the same time or afterwards, the purchaser may
Brady v. Brady, 67 Ga. 368 ; Felker v.
Crane, 70 Ga, 484; Anderson v.
Brown, 73 Ga. 713. The bankrupt
law, in and of itself, afforded the
land no protection whatever against
the specific lien upon it created by
the mortgage, notwithstanding it was
duly set apart as the bankrupt's ex-
emption. Long V. BuUard, 113 TJ. S.
617. This court, however, construing
the bankrupt law and the state law
together, has, by a very liberal con-
struction, determined that as to ex-
emptions in bankruptcy measured by
the latter (and so are all exemptions
of land), the due setting apart in
bankruptcy has the same effect in
holding off prior liens (that is, liens
existing at the time of' the adjudica-
tion), as would a regular setting apart
by proceedings before the ordinary
in the method prescribed by the
homestead statute. Rushing v. Gause^
41 Ga. 180 ; Bush -v. Lester, 55 Ga.
583; -Benedict -v. Webb, 57 Ga, 348;
Ross V. Worsham, 65 Ga. 634 ; Brady
V. Brady, 71 Ga. 71 ; CoUier v. Simp-
son, 74 Ga. 697."
iMoran v. Clark, 30 W. Va. 358,
868; Bank v. Lyons, 53 Miss. 181;
Wing V. Cropper, 35 111. 356 ; Boyd v.
Cudderback, 81 111. 113; Smith v.
Marc, 26 111. 150 ; Jones v. Yoakam,
6 Neb. 365 ; Rector v Rotten, 3 Neb.
I 171; Gaine v. Casey, 10 Bush, 93;
Brame v. Craig, 13 Bush, 404 ; In re
Cross, 3 Dill. 320 ; Godfrey v. Thorn-
ton, 46 Wis. 677 ; Stewart v. Mackey,
16 Tex. 56 ; S. C, 67 Am. Dec. 609 ;
Smith V. Mallone, 10 S. C. 39 ; Jordan
V. Peak, 38 Tex. 439; Dunker v.
Chidic, 4 Nev. 833; Wise v. Will-
jams, 88 Cal. 30.'
2 Van Wickle v. Landry, 39 La.
Ann. 330 ; Lanahan v. Sears, 103 U. S.
318; Samson v. Williamson, 6 Tex.
101 ; Black v.'Rockmore, 50 Tex. 95;
Jordan v. Peak, 38 Tex. 439.
3 Broach V. Powell, 79 Ga, 79, 83.
The court said : " The exemption
in bankruptcy left the title of the
debtor to the exempted land precisely
as it was before. Bush v. Lester, 55
Ga. 581; Farmer v. 'feylor, 56 Ga.
559; Broach V. Barfield, 57 Ga. 604;
Burtz V. Robinson, 59 Qa. 763 ; Lara-
more V. McKinzie, 60 Ga. 534;
ABSOLUTE WAIVER BY MOETGAGE. 661
plead the waiver against a subsequent claim of exemption by
the seller or his privies.'
The waiver of exertiption, in a mortgage, is made with ref-
erence to the mortgagee only : so, on foreclosure, if there be a
surplus after the satisfaction of the mortgage, it is unaffected
by the waiver, and is exempt as the land . previously was. It
is not open to junior mortgagees or general creditors, since
they were not contemplated in the waiver.'
Homestead was abandoned. There were two mortgages on
the land : the senior, without w'aiver of homestead right; the
junior, with waiver. The senior had preference.'
After the foreclosure of a mortgage releasing homestead,
made by husband and wife, it is toO late for them to set up the
nullity of the conveyance on the ground that the' wife's ac-
knowledgment was not in accordance with the statute, after
they had been parties to the action of foreclosure and failed
to plead that ground.* Yet " it is well settled that a defend-
ant entitled to a homestead may, by proper proceedings, even
after a judicial sale in an action to which he was a party, have
it or the proceeds, not exceeding in amount " the monetary
limit, " set apart to him." °
A purchaser of land at an administrator's sale, who has ob-
ligated himself to the administrator for the full price, cannot
afterwards claim homestead in the land and have the price of
the whole purchase reduced by deducting the value of the
homestead'.'
An act designed to prevent the specific waiver or convey-
ance of the homestead, for one purpose, from being used for
another object, does not affect a judgment-creditor's right to
redeem his debtor's homestead from a mortgage sale of it,
though the homestead right had been waived by the mort-
1 Tappan v. Hunt, 74 Ga. 545. * Honaker v. Cecil, 84 Ky. 303. As
2 First N. Bank v. Briggs, 33 111. to nullity on that ground. Wing v;
App. 328; People V. Stitt, 7 111. App. Hay den, 10 Bush, 276; McGrath v.
394; Trogden v. Safiford, 31 111. App. Berry, 13 Bush, 391.
340 ; MoTaggart v. Smith, 14 Bush * Hayden v. Eobinson, 83 Ky. 619 ;
<Ky.), 414; Colby v. Crocker, 17 Kas. Crout v. Santer, 13 Bush, 443. Limit
537 ; Quirin's Appeal, 86 Pa. St. 447 ; is $1,000 in Kentucky. See ch.
Hill V. Johnston, 29 Pa. St. 363. XXVIII, § 3.
sAsher v. Mitchell, 9 Bradw. (IlL SLawson v. Pringle, 98 N. 0. 450.
App.) 335.
552 WAIVEE.
gagor. A junior judgment-creditor may redeem and become
subrogated to the rights of the purchaser, so that the home-
stead will pass to him by the sheriflf's deed on execution sale
in enforcement of his judgment.'
§ 9. Lien Not Waived by Taking Security.
Lien for purchase-money is not waived by the assignment
of grantee's notes, where it is carried by the assignment under
the law of the place of the transaction. The assignee does
not waive it by taking personal security, unless his consent to
relinquish his lien is made to appear. The civil-law rule is
inapplicable. Here, waiver is not inferred from the simple
fact of taking other security than the legally hypothecated'
property,'but is a matter of contract and intention to be es-
tablished by evidence.
The assignee stands in the shoes of the assigning hen-holder,
without any formal transfer of the lien ; for the mere passage
of the note from hand to hand carries along the lien incident-
ally. "With the note goes all the remedies and equitable rights
which the original lien-creditor had. The continual existence
of his assignor's personal responsibility is not essential. The
naked fact of accepting other security than that which came
to the assignee with the note is neither a.'wedyerjper se of the
lien on his part, nor is it any indication of intention to waive
it. Though the assignee take a new note for the one assigned
him, it stands for the debt created by the purchase of the
property at the instant of the purchase or prior. Ifo land
putchase can be made without the simultaneous or preceding
creation of the obligation to pay the price.^
" Without reference to liens or their priority, in pursuance
of the policy which forbids the assumption of another's sub-
stance in procuring a homestead without remunerating him,
the law in effect declares that no homestead shall be exempt
until the purchase-money therefor be paid.
1 Smith V. Mace (IlL), 26 N. E. 1092 j Henley v. Stemmons, 4 B. Mon. 133
111. Pub. Laws (1887), p. 178 ; 111. Rev. Honore v. Bakewell, 6 B. Mon. 67
Stat., ch. 77, §§ 20-24. Duncan v. Louisville, 13 Bush, 378
2 Bradley v. Curtis, 79 Ky. 327; Lusk v. Hopper, 3 Bush, 185; Ren-
Genl. Stats. Ky., ch. 88, art. 13, § 9 ; nick v. Hendricks, 4 Bibb, 303 ; Mack-
Ripperdon v. Cozine, 8 B. Mon. 466 ; reth v. Syminons, 15 Ves. 348.
USUBY AFFECTING WAIVER. 553
" And so long as it can be traced', no matter how often the
evidence of the liability therefor may be altered, the enforce-
ment of the lien for its payment cannot be defeated by the
homestead plea, unless the lien has been waived — which pre-
sents a question of intention to be determined by the facts of
the case." '
'No presumption, that the vendor's lien for purchase-money
is waived, is created by his taking notes for the price in which
the vendee waives the exemption of his personal property.
The taking, of the notes without security, on the contrary,
leaves the vendor's lien on the realty sold by him in full force,
unless expressly waived by him. In any state where there. is
a presumption of waiver on the vendor's part when he takes
a mortgage on other property to secure him, or takes third
persons as sureties, it is only removed by an agreement to re-
tain the lien.^
§ 10. Usury Affecting Waiver.
Execution was issued on a judgment founded on a promis-
sory notB containing a waiver of homestead exemption. The
defendant had pleaded that the note was usurious and had ad-
duced evidence tending, to show it ; but on appeal the question
was treated as closed by the judgment. There was nothing
in the note or the record to show usury.'
A woman bought land and gave a mortgage upon it to the
grantor to secure the purchase-money and waived homestead
exemption. After foreclosure, she sought to show that there
was usury in the contract between herself and the grantor.
The court denied her. She should have pleaded this before
foreclosure. She was precluded doing so subsequently, when
alleging no fraud, mistake, accident, or ignorance of the usury ;
and when the record disclosed no usury. The court applied
to her the general doctrine, applicable when homesteads are
involved as in other cases : " If a party is sued at law and has .
a legal defense, he must avail himself of it at law pending the
suit, and cannot afterwards ask for relief, unless he was pre-
^ Brady v. Curtis, supra. 3 Stewart v. Stisher, 83 Ga. 297,^00;
^Thompson v. Sheppard, 85 Ala. McLaws v. Moore, 83 Ga. 177 ; Owen
611, 615; Woodall v. Kelly, 85 Ala. v. Gibson, 74 Ga, 465 ; Hightower v.
§38 ; Chapman v. Peebles, 84 Ala. 383 ; Beall, 66 Ga. 103.
Tedder v. Steele, 70 Ala. 347.
554- WAIVES.
vented from so pleading his defense by fraud, accident, or
the act of the adverse party, unmixed with negligence on his
part." 1
Had the judgment shown upon its face that the rate of in-
terest was usurious, the homestead would have been good
against the judgment.' For, though usury does not so vitiate
a mortgage as to destroy the lien, it does have the effect of
rendering a waiver of homestead exemption nugatory when
made in the mortgage note.'
When the usury is pleaded in foreclosure proceedings, and
proven, there may be judgment for the lawful sum due with
the usury purged out. It was judicially said, when this was
done : " This recovery is not inconsistent with the invalidity
of the mortgage in so far as it waived homestead, but entirely
consistent therewith. Indeed, the invalidity follows as a di-
rect conclusion from the adjudication that the debt and the
mortgage security are affected. That a void waiver would
become valid by purging out the usury when the judgment
of foreclosure was rendered is a proposition than which none
could be more unsound. The mortgage is good as a lien, but
there has been no adjudication, and can be none, that its lien
will prevail over the homestead right. With respect to that
right, it stands just as it would had no waiver been inserted
in the mortgage deed. Until the right expires or has run out,
there can be no enforcement of the lien, but after that event
it can be enforced." * '
§ 11. Mode of Release.
The mode of incumbering a homestead, pointed out by stat-
ute, must be substantially followed, under pain of nullity.'
No mode of conventional mortgage of the homestead can be
made effective, though both husband and wife join in its exe-
cution, if the la\v forbids the incumbering of such property.*
1 McLaws V. Moore, 83 Ga. 177-9 ; < Lowry v. Pai-ker, 83 Ga. 341,
Wingfield v. Rhea, 73 Ga. 477 ; High- Bleckley, C. J.
tower V. Cravens, 70 Ga, 475; Wat- 5 Boyd v. Cudderback, 31 111. 113;
kins V. Lawton, 69 Ga. 671 ; Perry v. Wing v. Cropper, 35 111. 256 ; Rich-
McLendon, 62 Ga. 604 ; Thomason ards t. Chase, 2 Gray, 383.
V. Fannin, 54 Ga. 361; Ga. Code, evan Wickle v. Landry, 29 La.
§§ 3897. 3577. Ann. 330 ; Lanahan v. Sears, 102
2Cleghorn V. Greeson, 77Ga.343. U. S. 318; Sampson v. Williams, «
8/6.; Small v. Hicks, 81 Ga. 691. Tex. 101.
MODE OF RELEASE. 555
Contractual renunciation of homestead is only effected by
sale of the property or some equivalent alienation.' A debtor
who has made a void agreement to waive exemption maly feel
bound in conscience to sell his home, where the law allows its
alienation, and when the rights of others are not infringed ;
or to stand by and see it sold, and thus redeem his void
promise.
In a deed, duly signed, acknowledged and executed, releas-
ing certain rights, suoh as that of homestead, it is not sacra- :
mental that ,the names of the grantors signing should be in-
serted in the body of the instrument.^
No express waiver of the homestead right is necessary in a
deed of sale, unless required by statute or constitutional pro-
vision,' if the owner has not given away his ordinary right of
alienation in accepting the terms of his exemption privilege.
There is no need of expressly waiving the homestead right
in a deed to property on which the grantor does not reside.*
To avoid the presumption of waiver, or the consequence of
actual waiver, the selection Should be before sale, and the
claim within the law.'
Requesting a creditor to attach the homestead estops the
beneficiary of exemption from opposing the attachment sub-
sequently by setting up such exemption.*
1 Colvin V. Woodward, 40 La. Ann. deed. Even a wife, by signing and
637. The Louisiana constitution, ar- duly acknowledging a deed contain-
ticle 333. forbids the mortgaging or ing relinquishment, will be bound,
waiving of homestead rights, but al- Yocum v. Luvell, 111 111. 313; Miller
lows the sale of homestead property, v. Shaw, 103 111. 377 ; Johnson v.
This accords with Hardin v. Wolf, 29 Montgomery, 51 111. 185.
La. Ann. 333, rendered under the for- 3 Poole v. Gerrard, 65 Am. Dec. 483,
mer constitution, but overruled in note by Mr. Freeman.
Nugent V. Garruth, 33 La. Ann. 444 * Finlon v. Clark, 118 IlL 32 ; Sy-
See Van Wickle ^v, Landry, 29 La. monds v. Lappin, 83 III. 313.
Ann. 330. 5 Clark v. Spencer, 75 Ala. 49 ; Jar-
^ Elliot V. Sleeper, 3 N. H. 535
Woodward v. Seaver, 38 N. H. 29
Lithgow V. Kavenaugh, 9 Mass. 161
rail v. Payne, 75 Ala. 577 ; Barker v.
Williams, 74 Ala. 331; Wright v.
Gi'abfelder, 74 Ala. 460 ; Henderson
Dentzel v. Waldie, 30 Cal. 138 ; Arm- v. Tucker, 70 Ala. 381 ; Martin v.
3tiong V. Stovall, 36 Miss. 375; 8 Lile, 63 Ala. 406; Tucker v. Hender-
Wash. Real Prop.' 366. In Illinois the son, 63 Ala, 380 ; Bell v. Davis, 43
release of the homestead right is not Ala. 460 ; Simpson v. Simpson, 80 )
dependent upon the insertion of the Ala. 325.
grantors' names in the body of the ^ pareons v. Cooley, 60 la. 268. An
556 WAIVER.
There must be special acknowledgment, by the wife, of her
release of the homestead right.'
A deed of the homestead in escrow, to be delivered on the
grantee's compliance with certain conditions, was held to be
a release of homestead rights by the wife who had signed it.'
§ 12. Pleading Waiver.
The homestead claim, when not interposed till after judg-
ment and order to sell lands described in the complaint, which
include the homestead, has been presumed to be waived.'
Leaving the homestead temporarily, even for a year, after
it has been duly claimed and recorded, is not a waiver of it,
nor will it work forfeiture, when there is no design to aban-
don it.^ I
If waiver of the exemption right is relied upon by the cred-
itor, he must aver it ; and if he has sued out a writ of attach-
ment, the officer in charge of it must indorse the fact of 'the
waiver on it, after having satisfied himself of its truth, it was
held.'
A promissory note contained the following waiver: "I
hereby, for myself and family, expressly waive all homestead
rights and exemptions which, by the laws, state and federal,
are allowed to me and my family in any of said described
property, and all other property, real or personal, which I
now own, or may hereafter own or acquire, until this debt is
fully paid." This was held operative against all the personal
property of the maker. The note was executed in a different
. absent wife made suph request to a Duncan, 79 Ala. 112; Simpson v.
creditor of her husband, and was held Simpson, 30 Ala. 225.
estopped from subsequently claiming * But, in Alabama, it would be
exemption right, as her act was deemed an abandonment, were it not
. treated as an abandonment of the for section 2843 of the code. Beckert
homestead on her part. v. Whitlock, 83 Ala. 123 ; Soaife v.
1 Warner v. Crosby, 89 III. 320; Argall, 74 Ala. 473.
Smith V. Miller, 31 111. 157; Boyd v. 5 Held under Alabama Code of 1876,
Cudderback, 31 III. 113 ; Best v. Ghol- §§ 2849, 2850 : Fears v. Thompson, 82
son, 89/ 111. 465 ; Trustees v. Hovey, Ala. 296. See McCrummen v. Carap-
94 111. 394. bell, 82 Ala. 566. In Alabama, waiver
^ Knopf V. Hansen, 37 Minn. 215. must be by a separate instrument.
3 Stanley v. Ehrman, 83 Ala. 215 ; When expressed in a note, it was held
Sherry v. Brown, 66 Ala. 51 ; Ran- insufficient, though the note was wit-
dolph V. Little, 62 Ala. 396 ; Hines v. nessed. Baker v. Keith, 72 Ala. 121,
PLEADING WAIVER. 557
state from that in which the note was sued upon, but the court
said: "We are inclined to the view that the waiver Avould be
good against any claim of exemption to personalty in any
sta,te of the Union where the debtor might reside and be sued." '
Such waiver in a promissory note must be pleaded if the
plaintiff would avail himself of it. Upon appeal, it will not
be regarded if it is not noticed in the judgment of the court
below.^ " The purpose of the statute requiring a waiver of
exemptions to be averred in the complaint is that the defend-
ant may join issue thereon and controvert the fact. If his
plea is limited to the mere denial of such averment, and his
contestation is sustained, the only consequence is that the
judgment will not contain a recital of the fact of waiver ; but
the plaintiff may, kevertheless, have judgment for the debt
and costs." '
A bond which does not waive homestead exemption may be
insufficient to protect its holder, yet not be void so that the
giving of it was non-compliance with the law requiring bond
to be given. Since he could have moved to have it made suffi-
cient, the court, in a case where the validity of such a bond
was questioned, held it not void but a binding obligation.* ;
A mortgagor may claim his homestead right when he has
not released it, though he has not put it at issue in the fore-
closure proceedings. He may lie still till the purchaser at the
mortgage sale brings an action of ejectment, and not be too
late to claim the right, if he has remained in occupancy.^
When there has been a waiver of homestead as to some cred-
itors and not as to others, there is no difficulty in marshaling
the liens unless there are unwaived ones senior to those waived.^
1 Holland v. Bergen, 89 Ala. 633 ; » Asher v. Mitchell, 93 lU. 480. See
Alabama Code (1886), § 2570 ; Wag- Goltra v. Green, 98 lU. .817. Mortgage,
non V. Keenan, 77 Ala. 519 ; Terrell to secure borrowed school fund not^
V. Hurst, 76 Ala. 588. good against homestead without re-
2 Courie v. Goodwin, 89 Ala. 569. lease. Board of Trustees v. Beale, 98
3 Golden v. Conner, 89 Ala.. 598; 111.348.
Goetter v. Pickett, 61 Ala. 387. *8ee Scott v. Cheatham, 78 Va. 82;
< Acker v. Alex, etc R. Co., 84 Va. Strange v. Strange, 76 Va. 340.'
CHAPTEE XVIIL
ABANDONMENT.
1. Permanent RemovaL
3. Temporary RemovaL '
3. Removal to a New Home.
4 Leasing, the Premises.
5. Cessation of /Ownership.
6. Family Headship Relative to
Abandonment
7. Effect on the Wife's Rights,
a Effect on the Widow's Righta
§ 1. Permanent Removal.
The conditions Upon which the exemption right is acquired
are not all stringently necessary to its retention. Continued
occupancy, l^iowever, is generally required. The voluntary
leaving of the home with no intention of returning to it is an
abandonment of the right, though the legal possession of the
property be retained. Aliud est possidere, aliud esse in jaos-
sessione. While the owner may legally possess, and even be
in possession in a legal sense, he may not be in the, actual do-
cupancy of his property as the home of his family in the sense
of the homestead statute. To retain the exemption right, the
beneficiary must live upon the property as the home of him-
self and his family ; and the property must not share the home
character with any other place of residence. It is well set-
tled that permanent removal from the homestead is an aban-
donment of the exemption right and privilege.^
If the homestead consists merely of a farm, would it be
abandoned by moving the family from a dwelling situated on
1 Bradford v. Central Loan Co., 47 Phillips v. Springfield, 39 III. 83 ; Will-
Kas. 587 ; 38 P. 702 ; Osborne v. Scoon- iams v. Moody, 35 Minn. 380 ; Rob-
maker (Kas.), 88 P. 710; Duffy v. ertson v. Sullivan, 31 Minn. 197;
Willis, 99 Mo. 133; Smith v. Bunn, Campbell v. Adair, 45 Miss. 170;
75 Mb. 559 ; Kaes v. Gross, 93 Mo. "Austin v. Stanley, 46 N. H. 51 ; New-
648 ; Leake y. King, 85 Mo. 413 ; man' v. Franklin, 69 la. 244 ; Gardner
Jackson v. De Bose, 87 Ga. 761 ; 13 v. Baker, 35 la. 348 ; Kimball v. Wil-
S. E. 916; Bank v. Smiason, 73 Ga. son, 59 la. 638; Cotton v. Hamil, 58
422; Bell v. Schwarz, 37 Tex. 572; la. 594; Ross v. Hellyer, 26 Fed. R.
McMillan v. Warner, 38 Tex. 410 ; 413 ; Van Bogart v. Van Bogart, 46
Gouhenant v. Cockrell, 20 Tex. 97 ; la. 359 ; Leonard v. Ingraham, 58 la.
Shepherd v. Cassiday, 20 Tex. 29 ; 406 ; Baker v. Jamison, 73 la. 698.
PERMANENT KEMOVAL. 559
it to one near by ? In answer, it has been held that by mov-
ing from his own house to one on an adjoining lot not his, the
householder does not abandon his homestead in his own land
which he still occupies as a part of his home place.' In such
ease there is no design, on the part of the beneficiary, to ex-
pose his farm to creditors. He leaves his accustomed roof
for another, but still cultivates his ground as before ; still act-
ually occupies the principal part of his homestead.
Subsequent removal from the homestead by both husband
and wife, with their family, so as to amount to abandonment,
will not cure the effect of a deed of trust given by the husband
alone, conveying the property.^ It will not retroact so as to
give validity to -the prior transfer of the property by either of
them.' Though they make a declaration of abandonment for
the purpose of validating a mortgage made by him alone, it
will not have that effect.*
An abandoned home is open to creditors ; but, if they do
not proceed against it, the owner may return to it and re-
dedibate it as a homestead so that it will be free from his
future personal obligations as a debtor.^
When there is a question between the grantee of a former
homestead and creditors of the grantor, evidence of declara-
tions made in disparagement of the homestead interest by the
grantor when in possession, before the grant, is admissible.*
And the grantee may show that the grantor's wife had aban-
doned before sale.' It has been held that a wife may lose her
right by quitting the homestead premises permanently and
voluntarily.'
Abandonment must be voluntary.' It may be accomplished
either with or without the acquisition of a new home to which
the immunities, privileges and restraints of the discarded one
are transferred."" Where homestead is held to be a mere right
1 Nichols V. Nichols, 63 N. H. 631 ; « Anderson v. Kent, 14 Kas. 307.
Cole V. Bank, 59 N. H. 53, 331 ; Locke • lb.
V. Eowell, 47 N. H. 46 ; Buxton v. ^ Levison v. Abrahams, 9 Lea, 178
Dearborn, 46 N. H. 48. Roach v. Hacker, 3 Lea, 634 ; Jarman
2 Cummings v. Busby, 63 Wis. 195. v. Jarman, 4 Lea, 675 ; Act of- 1874
s Belden v. Younger, 76 la. 567, 570 ; Tenn. Code, § 3114a.
Alexander v. Vennum, 61 la. 160. ' Reece v. Renfro, 68 Tex. 193
^Gleason v. Spray, 81 Cal. 317. Moss v. Warner, 10 Cal. 396.
'Carter V. Goodman, 11 Bush, 338. w Smith v. Uzzell, 56 Tex. 315
560 \ ABANDONMENT.
of occupancy,' the surrender of that right exposes the home
property to creditors.
Under the provision that no release or waiver of homestead
exemption " shall be valid in law, unless by deed acknowl-
edged and recorded as in case of conveyance of real estate,"
it was held that the exemptipn right was not lost by the re-
moval of the family from the premises.^ Under several stat-
utes, abandonment may be by a recorded declaration.'
Removal from the state. — Where the hoijiestead beneficiary
changes his residence by removing permanently to another
state, he abandons his homestead protection. Whether he ac-
quires a new homestead in the state of his adoption or not,
the effect is the same.^
It has been held (in exposition of a constitutional provision
that the homestead-holder must be " a resident of the state ")
that he must be an actual — not a mere constructive — resi-
dent; so definite absence will deprive him of the benefit of
homestead exemption, though he have the intention of return-
ing to the state.' Leaving, without such intention, is more
plainly still, a forfeiture of his right.^ Upon removal to an-
other state only for a brief period, he may be considered to
have abandoned his right of exemption, when the fact is
found thait he has changed his residence so as to be no longer
ai d w^ in the, state.'' A judgment creditor may proceed
Woolfolk V. Ricketts, 48 Tex. 28 ; Jor- « pinley v. Saunders, 98 N. C. 463.
dan V. Godman, 19 Tex. 273. ' A debtor left Alabama for Geor-
1 Flatt V. Stadler, 16 Lea, 371 (Act gia, where he engaged in business,
of 1879) ; Howell v. Jones (Tenn.), 19 An execution had been levied. His
S. W. 757. return was held not to dislodge the
2 Connor V. McMurray, 2 Allen, 304, lien created by the judgment and
in exposition of Mass. Stat. 1857, ch. levy. McCrary v. Chase, 71 Ala. 540.
398; Doyle v. Coburn, 6 Allen, 71. But a widow was held entitled to
{Compare Lazell v. Lazell, 8 Allen, homestead when her husband died
575.) \ with only an e(Juitable title — a con-
i* For instances : Rev. Stat of Idaho, tract to purchase ; and when she
§ 3041 ; Rev. Stat of Arizona, § 2075 ; had ceased to be a resident of Ala-
Tipton V. Martin, 71 Cal. 325 ; Porter bama, the creditors could not levy
V. Chapman, 65 Cal. 365. upon the property. Munchus v. Har-
4 Lindsay V. Murphy, 76 Va. 438 ; ris, 69 Ala. 506. But it has been held
Fessler v. Haas, 19 Kas. 316. that a wife's removal to another
5 Lee V. Moseley, 101 N. C. 311 ; state forfeited her homestead right
Const of N. C, art 10, § 3 : Baker v. Perry v. Scott, 68 Tex. 308.
Legget 98 N. C, 304 ; Munds v. Cas-
sidey, 98 N. C. 558.
PERMANENT ErMOVAL. 561
against the homestead to make his money.' There are decis-
ions, however, which sound to the contrary of the judicial
opinion just stated. " Even a removal from the homesteadV
followed by long-continued residence and the acquireme'nt of
citizenship in another state, has been held not to operate' as:
an abandonment." ^
A widower left his only child, a minor, at his homestead iim
care of near relatives who came to live there while he wem*
away to better his fortune. He went without design of abaiit-
doning his home, though he exercised the rights of a citizeiB
and voted while away in another state. It was decided, ttpom
these facts, that there had been no abandonment, and that hw
right, as tenant hj curtesy, in the homestead which had be^
longed to his wife, was not subject to execution sale by his
creditors.'
It is settled as a rule of law that domicile continues till it fs.
left without design of returning to it. It continues until it is
succeeded by another.* And the homestead right has been
so far coupled with domicile that it has been held that one
may go to another state — may abscond for fear of arrest —
and his wife may follow him ; and they may not return till he
be brought back by an officer under arrest : yet the domicile
and the homestead right will remain unchanged.'
Removal to another state and purchase of a homestead
there with the proceeds of the homestead owned in the state
of the emigrant's former residence, and the subsequent sale of
his foreign homestead and the investment of its proceeds in
another residence on return to his first state, will hot prevent
execution for debts contracted before the establishment of the
last homestead.* Permanent removal from the state is aban-
donment, whether a new homestead be established in the
place to which the emigrant goes or not.'
iCity Bank V. Smisson, 73Ga. 423; Neb. 675; McHugh v. Smiley, 17
Skinner v. Moye, 69 Ga. 476. Neb. 630-6.
2 Lubbock V. McMann, 82 Cal. 336, < State v. Finn, 4 Mo. App. 347;
229 (refening to Porter V. Chapman, Greene v. Beck with, 38 Mo. 384;
65 Cal. 367 ; and Tipton v. Martin, 71 Adams v. Abernathy, 37 Mo. 198.
Cal. 325). See Graves v. Campbell, 74 5 Griffith v. Bailey, 79 Mo. 473.
Tex. 576. « Caldwell v. Seivers, 85 Ky. 38.
'Dennis v. Omaha- N. Bank, 19 'Jackson v. Du Bose, 87 Ga. 761.
36
ABANDONMENT.
§ 2i Temporary EemoTal.
The occupancy required is not slavish; it admits of ab-
sences from time to time by the head of the family and all
of its members ; it is in compliance with the law if there is
an intention to return on the part of the beneficiary, and if
there has been no establishment of a home elsewhere. There
are many instances of doubt as to the character of the re-
moval, involving the question of intention; but, w^hen it is
made clear that the absence is temporary, and the design of
the homestead owner is^ to resume the actual occupancy with
his family, there is no abandonment of the exemption right.'
Intent to return, when a husband and wife are away from
their homestead, does not mean that both mean to return
but that the husband does. The design of the head of the
family bears on the question whether there has been aban-
" Cooper V. Basham (Tex.), 19 aW.
T04 ; Feldes v. Duncan, 30 111. App.
469, 475 ; Potts v. Davenport, 79 111.
455; WilUins v. Marshall, 80 111. 74;
Kenley v. Hudelson, 99 111. 493;
Cobb V. Smith, 88 111. 199 ; Henson
V. Moore, 104 111. 403; Shepard v.
Brewer, 65 111. 383; Brennan v.
Wallace, 25 Cal. 108; Dulanty v.
Pynchon, 6 Allen, 510; Carrington
V. Herrin, 4 Bush, 634 ; Hansford v.
Holdam, 14 Bush, 210 ; Tumlinson v.
Swinney, 22 Ark. 400; XJpman v.
Bank, 15 Wis. 449 ; Burch v. Sheriff,
37 La. Ann. 735; Davis v. Kelley, 14
la. 523; Fyflfe v. Beers, 18 la. 4;
Morris v. Sargent, 18 la. 90 ; Graves
V. Campbell, 74 Tex. 576 ; McDannell
V. Eagsdale, 71 Tex. 23; Cline v.
Upton, 59 Tex. 28; McMillan v.
Warner, 38 Tex. 411 ; Kaufman v.
Fore, 73 Tex. 308 ; Parr v. Newby, 73
Tex. 468 ; Welborne v. Downing, 73
Tex. 527 ; Weaver v. Nugent, 73 Tex.
373 ; Sanders v. Sheran, 66 Tex. 655 ;
Shepherd v. Cassiday, 30 Tex. 30;
Austin V. Townes, 10 Tex. 34 ; Thomas
v. Williams, 50 Tex. 369 ; Pierson v.
Truax, 15 Colo. 333; 35 Pac. 183;
Colo. Gen. Stat. ch. 51. S 3 : Griffin
V. Sutherland, 14 Barb. 458 ; Wood-
ward V. Murray, 18 Johns. 400;
Orman v. Orman, 36 la. 361 ;• Boot
V. Brewster, 75 la. 631 ; Eobb v. Mc-
Bride, 38 la. 886 (the house rented
during the owner's absence); Shir-
land V. Union Bank, 65 la. 96 (farm
rented, except a room stored with
furniture); Bradshaw v. Hurst, 57
la, 745 (both husband and wife tem-
porarily absent); Griffin v. Sheley,
55 la. 513, and Savings Bank v.
Kennedy, 58 la. 454 (husband absent,
with intent to return) ; Lunt v. Neely,
67 la. 97 (husband absent with in-
tent to abandon while the wife re-
mained with intent to occupy);
Woolcut V. Lerdell, 78 la. 668 aeav-
ing home to avoid disagreeable re-
lations with another occupant);
Jones V. Blumenstein, 77 la. 361;
Gates V. Steele, 48 Ark. 539 ; Euper
V. Alkire, 37 Ark. 383; Brown v.
Watson, 41 Ark. 309 ; Curran v. Gulp
(Ky.), 15 S. W. 657; McFarlapd
V. Washington (Ky.), 14 S. W. 354;
Beckman v. Meyer, 75 Mo. 333;
Smith V. Bunn, 75 Mo. 559; Kaes v.
Gross, 93 Mo. 647 ; Eckman v. Scott
fNeb.). 53 N. W. 833.
TEMPOEAEY EEMOVAL. 563
donment or not. However influential may be the wife's will,
the law must look to that of him who is held responsible as
the head of the community, and must take his intent as the
proper index of the conjugal design. Eather, it should be
said, the law takes his intent as conclusive.'
The period of absence is to be considered in determining
the intention of the absentee, whether he meant to return or
to abandon his habitation.^ Though the absence may extend
through several months or years, with only partial occupancy,
the intention to return may have continued all the while to
the preservation of the exemption right.' It may be per-
fectly consistent with the legal occupancy required, and may
not work the forfeiture of the homestead. The intention may
be inferred from circumstances, such as the leaving of furni-
ture within the' dwelling, which would be corroborative of
the beneficiary's testimony, or of other testimony, as to the
intent. Though the beneficiary may have removed into an-
other dwelling rented for the period in which his own exempt
home is undergoing repairs, or though he may have vacated
his homestead temporarily for the purpose of traveling with
his family, or for any other purpose, the exemption remains
unaffected.*
The time of absence, with intent to return to the home, is
no criterion as to whether the exemption right has been for-
feited. It may tend to satisfy the court whether or not the
beneficiary has kept within the letter and spirit of his granted
privilege; but, when no inhibition of absence has been ex-
pressed by the legislator and no time fixed as the limit of
temporary non-occupancy while intention to return exists, the
courts can lay down no precise rule as to the time which shall
be applicable to all cases.*
1 Williams V. Moody, 35 Minn. 380 ; * Bunker v. Paquette, 37 Mich. 79 ;
Phillips T. City of Springfield, 39 IlL Earll v. Earll, 60 Mich. 30 ; Campbell
88 ; Johnston v. Turner, 29 111. 280 ; v. Adair, 45 Miss. 170 ; Wiggins v.
Brennan V. Wallace, 35 OaL 108. Chance, 54 111. 175 ; Howard v. Lo-
2Dunton v. Woodbury, 34 la. 74; gan, 81 111. 383^ Tomlinson v. Swin-
Curran v. Culp (Ky.), 15 S. W. 657. ney, 23 Ark. 400 ; Moss v. Warner,
3 Eepenn v. Davis, 72 la. 548 ; Jones 10 Cal. 296 ; Jackson v. Reid, 32
V. Blumenstein, 77 la. 861 ; Mills v. Ohio St 443.
Van Boskirk, 33 Tex. 361 ; Taylor v. » Bunker v. Paquette, 37 Mich. 79 ;
Boulware, 17 Tex. 74; Wiggins v. Griffin v. Sutherland, 14 Barb. (N, Y.)
Chance, 54 la 175. 456. '
564 ABANDONMENT,
The premises may be vacant, even at the time of the levy
upon them for execution, and the owners may be living at an-
other place at the time. Upon proof that the home was not
meant to be permanently abandoned, that the owner's tempo-
rary absence was caused by necessity, and that they left part
of their property in the house, their claim of homestead was
allowed.'
" "What state of facts shall be deemed to constitute a change
of domicile may be considered a mixed question of law and
fact, and is one proverbially diificult to determine, owing to
the doubtful interpretations of human conduct. It is univers-
ally admitted that such a change is neyer effected by inten-
tion alone. It can be accomplished only by a completed act,
done with the purpose of consummating a permanent removal
from the original domicile, animo manendi. The old domi-
cile continues until a new one is acquired /bieto et animo? A
change of domicile cannot be inferred from an absence which
is shown to be temporary, and attended with the requisite
animus revertendi} The intention to return is usually the
controlling element in the determination of the whole ques-
tion." * But if there has been no declaration of homestead
duly filed where the law requires it, even a temporary absence
may prove fatal.'
The burden of proof is on the beneficiary who, after pro-
tracted absence, or any temporary removal from home, with
his family, attended with circumstances ordinarily showing
abandonment, alleges that he had meant to retain his exemp-
tion right and to resume his residence. The presumption is
against him under such circumstances."
The declaration of a beneficiary that he, intends to return,
made at a time not suspicious, may be given in evidence.
Declarations to the contrary are admissible against him.' And
1 Karn v. Hanson, 59 Mich. 380. Bryan, 67 Ala 558, cited by him on
'' State V. Hallett, 8 Ala. 159 ; Glover the last point
v; Glover, 18 Ala. 367 ; Story's Con- 6 sides v. Sohaiff (Ala.), 9 So. 228.
fiict of Laws, § 47 ; Talmadge v. Tal- 6 Benson v. Aitken, 17 Cal. 164 ;
madge, 66 Ala. 199. Harper v. Forbes, 15 Cal. 202; Cook
SMcConnaughy v. Baxter, 55 Ala. v. McChristian, 4 Cal. 25; Taylor v.
379 ; Kelly v. Garrett, 67 Ala. 304. Hargous, 4 Cal. 272 ; Ives v. Mills, 37
< Somerville, J., deciding Murphy 111. 75 ; Kitchell v. Burgwin, 21 111.
V. Hunt, 75 Ala. 438. Lehman v. 40 ; Jarvais v. Moe, 38 Wis. 448.
' Anderson \ Kent; 14 Kan. 207;
TBMPOEAET EEMOVAL. ' 565
it has been held that his wife's rights would be concluded by
his declarations.'
Intention to return after removal, when supported only on
the evidence of the beneficiary himself, ought not to have
greater weight than that of circumstances showing a contrary
design. " I greatly prefer the evidence of facts to the testi-
mony of parties to the record as to their own intentions, when
such testimony is given to put money in their own pockets,"
Judge Love said, when a witness who had abandoned his
homestead, removed to another county and voted there, swore
in his own case that his intention was to preserve, and return
to, his homestead.^
A house and lot that had been left by the owner and his
wife, and had been sold under execution to pay his debts
with his assent, was claimed by him as his homestead three
years after the sale; and was sued for, as such, five years
after. Though he had left some furniture in the dwelling, he
had established another home elsewhere for himself and fam-
ily. It was a clear case of abandonment, though he swore, on
the trial, that it had not been his intention to abandon.'
"Where temporary absence is so regulated by statute as to
permit absence for half a year, without forfeiture, upon the
homestead holder's recording a notice of intention to return,
the property will be protected for that time, though he never
return.* The notice, however, would avail nothing if there
was abandonment from the day of departure, and that fact
established.^ And, to entitle one to the six months' absence
upon recorded notice, it is essential that he shall have acquired
the homestead right by actual occupancy." Leaving with in-
tention to return, accompanied with preparation to do so, will
be of no avail without the recorded notice.'
Batts V. Scott, 37 Tex. 65 ; Holliman » Donaldson v. Lamprey, 29 Minn.
V. Smith, 39 Tex. 357 ; McMillan v. 18.
Warner, 88 Tex. 411 ; Wright v. Dun- 6 Baillif v. Gerhard, 40 Minn. 172 ;
ning, 46 111. 271 ; Jarvais v. Moe, 88 Minn. Gen. Stat. (1878), ch. 68, § 9.
Wis. 448. ' In the case of Quehl v. Peterson
. 1 Brennan v. Wallace, 25 Cal. 115. (Minn.), 49 N. W. 391, the court said,
2 Ross V. Hellyer, 2B Fed. 413, U. S. with reference to the statute reqnir-
OircuitCt, la., Love, J. ing notice: "That this court has al-
' Wilson T. Daniels, 79 la. 183. ways construed the statute as mcan-
■■^Kussellv. Speedy, 38 Minn. 303. ing that the homestead exemption
666
ABANDONMENT.
It surely was never contemplated that all the family should
be always at home. All the family may be away at once,
yet there would not be necessarily a cessation of occupancy
by the family. Creditors are not at liberty to pounce upon
the home because its fires are out and its inmates gone. If a
member of the family remains in charge, creditors would be
yet less excusable for levying upon the premises. But the
presence of a subordinate member would not neutralize the
effect of the absence of the head of the family under circum-
stances indicating abandonment. A husband and wife both
leaving their homestead, it was open to creditor^ though his
mother had remained upon it, and though his wife declared
her intention to return when the question of abandonment
had been brought into litigation.' Had both really meant to
would be lost by removing from or
ceasing to actually occupylthe prem-
ises as a residence for more than six
months (unless notice was filed), even
although there was an intention to
return, is evident from Russell v.
Speedy, 38 Minn. 303, 37 N. W. Rep.
340, andBaillif v. Gerhard, 40 Minn.
172, 41 N. W. Rep. 1059. And ex-
actly in the same line we have held
that a man acquires no homestead
exemption by purchasing property
with the intention of occupying it as
a homestead until and unless fol-
lowed by actual occupancy and resi-
dence thereon. Kelly v. Dill, 23
Minn. 435 ; Liebetrau v. Goodsell, 36
Minn. 417, 4 N. W. Rep. 813. As
showing the construction which has
been uniformly placed upon the
terms used in the homestead exemp-
tion statutes, see, also, Folsom v.
Carli, 5 Minn. 333 (Gil. 264); Tillot-
son v. Millard, 7 Minn. 513 (Gil. 419);
Kelly v. Baker, 10 Minn. 154 (Gil.
124); Kresin v. Mau, 15 Minn. 116
(Gil. 87); Stewart v. Rhoades, 39
Minn. 193, 39 N. -W. Rep. 141 ; Neu-
maier v. Vincent, 41 Minn. 481, 48
N. W. Rep. 376. Of course, the stat-
ute is to receive a reasonable con-
struction, and we are not to-be un-
derstood as meaning that it requires
constant personal presence so as to
make a man's residence his prison,
or that an enforced temporary leav-
ing of the premises from accidental
causes such as fire or flood, or that a
temporary absence for purposes of
business or pleasure, not amounting
to a change of actual residence,
would constitute a removal, or ceas-
ing to occupy, within the meaning of
the statute. But we hold that upon
the facts of this case the defendant
had removed from and ceased to
occupy the premises as a homestead,
within the meaning of the statutf,
for more than six months prior to
March 15, 1890, and, not having filed
the taotice required by law, his right
of homestead exemption had been
lost, and that it was not regained by
his mere intention and preparation
to return. Of course, the title which
vested in the plaintiff under the as-
signment could not be divested by
the subsequent occupancy of the
premises by the defendant."
1 Roach V. HacTier, 2 Lea, 633; Act
1870, ch. 80, § 1 ; Code, § 2114a (T. &
S.). Even the minor's interest may be
EBMOVAL TO A NEW HOMK. 567
return from the time of their removal, the fact that the mother
had been left in charge would have rendered it certain that
no right had been forfeited ; for it is held : " The homestead
right is not lost by a temporary removal with an intention to
return and make the premises a home again, when accom-
panied with an actual keeping for that purpose." ^
If the husband had remained at home and all the rest of the
family had gone away for a long period but not permanently,
he would have retained the homestead right with its restraint,
and his wife would have had the same interest as though
living with him at home. A wife and children moved to a
town that the children might be educated, while the head of
the family still occupied their rural home. He alone mort-
gaged his homestead, but the act was held void.^ The home-
stead had not been abandoned, since the absence of the family
was temporary.' But when both husband and wife left their
homestead, and he then conveyed it by deed, these facts were
evidence of abandonment.*
Temporary absence, by a widow, is not a" relinquishment of
her right.^ She is not ^every where required to occupy her
homestead. Where occupancy is required, her permanent
removal would be abandonment, as in the case of other ben-
eficiaries.^
§ 3. Removal to a New Home.
No question of intent to return can be entertained when a
new homestead has been selected and occupied by the owner
and his family. Whatever" he may profess relative to his old
quarters with a view to the retention of the exemption privi-
lege, it must go for naught in the face of the fact that he has
acquired and occupied new quarters and made them exempt.
lost by his removing with his mother, ^ Reinstein v. Daniels, 75 Tex. 640.
a widow, from the homestead, under ^Ib.; Mills v. Von Boskirk, 33 Tex.
the act of 1870. Hicks v. Pepper, 1 361 ; Cross v. Everts, 28 Tex 524 ;
Bax. 43. See Dickinson v. Mayer, 11 Gouhenant v. Cockrell, 80 Tex. 96 ;
Heisk. 515. " Shepherd v. Cassiday, 20 Tex. 24^
1 Keyes v. Bump, 59 Vt. 396 ; Rice * Portwood v. Newberry, 79 Tex.
V. Rudd, 57 t^t. 11 ; Whiteman v. 337.
Field, 53 Vt 557 ; Vasey v. Trustees, ■' Deering v. Beard (Kan.), 28 P.
59 111. 188 ; Schaife v. Argall, 74 Ala. 981.
478 ; Lehman v. Bryan, 67 Ala. 558 ; « Craddock v. Edwards, 81 Tex. 609.
Brettun v. Fox, 100 Mass. 334.
§08 ABANDONMENT.
" Actions speak louder than words." The occupied dwelling
is the exempt one to the exclusion of a dwelling previously
occupied. The establishment of a new homestead is the
abandonment of the former one,' It overcomes all consider-
ations in favor of the exemptionist, based on his intention to
return to his old quarters ; for his ultimate design is nothing
when he has established a new home exempt under the law
in the stead of the old one. He may mean to sell the new
one, or turn it over to his creditors within a year or two, and
then move back to the old mansion; but such design will not
preserve the latter inviolate meanwhile. Suppose he should
carry out such design; should really sell the new residence:
what would be the effect as to the old? He would have no
special privilege as to that. At his death, the widow would
not be entitled to homestead rights in it.^ It would be pre-
cisely like other real estate out of which she could have her
widow's homestead laid off, under the law of several states.
If a citizen is elected to a public office requiring him to live
at the county seat, 'or at the state capital, he certainly may
remove his family thither, without incurring the loss of his
special privilege in .his homestead temporarily left ; but, if he
vote in the town and make a new domicile there,he will for-
feit the former privilege.' It has been held, however, that he
would not lose his exemption by voting where he holds office,
if his family should continue to live at the old home, and he
intend to return on the termination of his official service.*
One who mortgages his~> homestead after acquiring a new
one is deemed to have abandoned his exemption.' The mo-
tive of the beneficiary is often the turning point of inquiry,
and the fact that he has dedicated a new home is conclusive.
I Davis V. Kelly, 14 la, 523, 526 ; Harris, 8 Tex. 312. See Rix v. Capi-
Woodworth v. Comstock, 10 Allen, tol Bank, 2 Dill. 370.
435; Carr v. Rising, 62 III. 14; Cahill 2 Mayors v. Mayors, 58 Miss. 806;
V. Wilson, 62 111. 137 ; Wright v. Thompson v. Tillotson, 56 Miss. 36.
Dunning, 46 111. 371; Titman v. » Atchison Bank v. Wheeler's
Moore, 43 Hi. 170 ; Woolfolk v. Rick- Adm'r, 20 Kas. 625 ; Cabeen v. MuUi-
eti, 41 Tex. 338; Holliman v. Smith, gan, 37 111. 230; Titman v. Moore, 43
39 Tex. 363 ; Cross v. Everts, 28 Tex. 111. 170.
533; Allison v. Shilling, 27 Tex. 450; ^Moline Plow Co. v. Vanderhoof,
Brewer v. Wall, 23 Tex. 585 ; Gouhe- 36 111. App. 26 ; Mclnturf v. Woodruff,
nant v. Cockrill, 30 Tex. 96 ; Stewart 9 Lea, 671.
V. Mackey, 16 Tex. 56; Trawick v. & Carter v. Hawkins, 62 Tex. 393.
REMOVAL TO A NEW HOME. 569
But preparation to move into a new home, without actual
occupancy, is not sufficient ; ' for the statutory requirement of
occupancy has been held subject to strict construction.^
Taking measures to acquire a federal homestead is held not
an abandonment of the state homestead already occupied.
But, as in the case in which it was so held, the owner of the
latter made the necessary affidavit required by the act of con-
gress, at the time of entry; erected a house on the govern-
ment land selected ; moved his office furniture and a bed for
himself into the house ; slept there, and doubtless meant to
hold out to the government that he made his home there, it
cannot be said truthfully that he " occupied" his other home-
stead, at the same time^ in the sense in which the law requires
it to be "occupied," by a beneficiary of the homestead law.
His wife remained on the state homestead already acquired :
he on the federal one to be acquired. lie had two strings to
his bow. It is said that both he and his wife claimed the
former as their homestead, but his entry and subsequent atti-
tude was that of a man holding out to the government that
he was living on public land to acquire it as his home. His
domicile, not the residence of his wife, is that of her and the
family.
When ready to sell the old homestead and occupy the new,
they made the change. Was not the prior double-dealing
meant to hold the former exempt from creditors till they
could get the price of it in their own pockets ; and, at the
same time, to count the husband's occupancy of the new
quarters on the period of probation necessary to acquire the
congressional homestead?
The court, which sanctioned this course of the " settler ".
and state homestead-holder, said that " the fact (if it be one)
that the federal government m.ay have cause of complaint on
account of the use made of the United States homestead law "
does not affect the proposition that the first home was not
abandoned while the second was being acquired.' But the
" settler " in making his application under the law of congress
swore that he took the quarter section for the purpose of
1 Sharp vl Johnston (Tex.), 19 S.W. 'RobertBon v. Sullivan, 31 Minn,
259. . 197,200.
^Tromans v. Mahlman, 93 OaL 1.
570 ABANDOKMENT.
actual settlement and cultivation, and he entered upon the
occupancy, real or feigned, which he meant to have counted
in his favor as compliance with that law.- Are his affidavit
and conduct consistent with the claim that he yet continued
to be an actual occupant of his former home so as to hold it
exempt while his new home was so? His sworn declaration
was evidence of his election to take the new home in lieu of
the old.i He could not hold both homesteads exempt.* His
declaration by affidavit and his personal and permanent act of
removal, in accordance with that sworn declaration, ought to
have been treated as an abandonment of his state homestead.'
His wife's waiting upon the latter till a purchaser could be
found was not occupancy by the owner and his family, such
as the law requires ; her domicile was legally on the quarter
section where the husband's was. For the wife's home is that
of her husband.*
As the husband's domicile is the wife's domicile too, so his
homestead and hers are identical. If he changes his old home-
stead for a new one and moves upon the latter, his wife cannot
remain upon and occupy the former so as to allow the married
couple to have two exempt residences at the same time. If
his transition carries the homestead right, her lingering will
avail nothing. His home becomes hers at once.*
There may be instances when the purpose of leaving the
wife behind, while the husband goes to another state to settle,
is merely to keep off creditors — not to preserve a home for
the family. In such case, if the holding is only colorable, and
really a fraud upbn creditors, the property ought not to be
protected as a homestead.*
As the adoption of a new home is the abandonment of the
1 Lyman v. Fiske, 17 Pick. 231. » Wynne v. Hudson, 66 Tex. 1 ;
2 Opinion of Judges, 5 Met. 587. Slavin v. Wheeler, 61 Tex. 658 ; Shry-
1 3 Donaldson v. Lamprey, 29 Minn, ock v. Latimer, 57 Tex. 675 ; Smith
18 ; Jarvais v. Moe, 38 Wis. 440. v. Uzzell, 56 Tex. 318 ; Pepper v.
4 Brewer v. Linnaus, 36 Me. 428; Smith, 54 Tex. 115; Ranney v. Miller,
Greene V. Greene, 11 Pick. 410; Mc- 51 Tex. 269; Clements v. Lacy, 51
Afeev. Ky. University, 7 Bush, 135; Tex. 157; Woolfolk v. RipketSj 48
Hairston v. Hairston, 27 Miss. 704; Tex. 37; HoUiraan v. Smith, 39^ Tex.
Hair v. Hair, 10 Rich. (S. C.) Eq. 163 ; 361 ; Jordan v. Godman, 19 Tex. 273.
Babbitt v. Babbitt, 69 lU. 277 ; Angier ^See Baines v. Baker, 60 Tex. 140 ;
V. Angier, 7 Phila. 305. Jones v. Trammell, 27 Tex. 133.
LEASING THE PREMISES. 571
old, an heir of deceased parents who have united in making
such change cannot claim any homestead right in the first as
inherited from them.'
Joinder by husband and wife in mortgaging the homestead
(where that is allowed) results in abandonment of it on fore-
, closure. The purchaser at the sale takes the property free
from any homestead claim by the mortgagors — wife and hus-
band. The exemption right does not cease, ij>so facto, upon
the making of the mortgage, except in relation to the mort-
gagee. As to others, it remains good till the foreclosure.^
In a case of conflicting testimony as to which of two places
is the homestead of a party, involving the question of the
abandonment of the place first occupied, the verdict of a jury
ought not to be disturbed.'
In changing homes, selling one and fitting up another bought
with the proceeds of the first, the family head, is allowed rea-
sonable time for the transition. If his intention is to occupy
his new home as soon as he can have a dwelling erected upon
the land, and if he is building with ordinary celerity, and if he
does occupy it actually and permanently, with his family, as
soon as it is completed, he will be considered as never having
abandoned his homestead right from the time he acquired his
first homestead.'*
When the home buildings had been destroyed by fire, and
it was shown that the owner meant to rebuild, no abandon-
ment was incurred by his forced absence from it meanwhile.'
Actual occupancy cannot be rendered ineffectual to support
the exemption right by evidence tending to show that the oc-
cupants had designated other land as their homestead. Such
evidence is not even admissible against the fact of long occu-
pancy duly established.^
§ 4. Leasing the Premises.
Whether the homestead may be leased for a limited time
consistently with the rule of continued occupancy depends
1 Wheeler v. Smith, 62 Mich. 373. Neal v. Coe, 35 la. 410; Edwards v.
2 Chamberlain v. Lyell, 3 Mich. 448. Fry, 9 Kan. 417.
SKutch V. Holly, 77 Tex. 220; 14 5 Howard v. Logan, 81 111. 383.
a W. 33. « Pellat v. Decker, 72 Tex. 578 ; Rad-
*Boyd V. FuUerton, 125 III. 437; ford v. Lyon, 65 Tex. 471 ; Stringer v.
Crawford v. Eicheson, 101 111. 351 ; Swenson, 63 Tex, 7 ; Jacobs v. Haw-
Cowgell V. Wa;mngton, 66 la. 666 ; kins, 63 Tex. 1.
572 ABANDONMENT.
upon the circumstances attending the transaction and the
animus of the beneficiary respecting the retention or renun-
ciation of his family residence. Ordinarily, the leasing of his
place to become the home of another family is a renunciation
of it as that of his own. The governing statutory imposition
of the condition of occupancy, as means of preserving the ex-
emption privilege, may not be inconsistent with temporary
leasing. Temporary absence, with intent to return, is not
abandonment, though part of the homestead premises be leased '
to a tenant during the absence of the householder.^ Indeed,
the leasing of the whole premises for a limited time is not
conclusive against the beneficiary as to the fact of abandon-
ment ; ^ but the question would turn on the owner's design to
resume his home.'
It would seem that when a beneficiary leases his homestead
for the period of his natural life, he could not more effectually
abandon it ; yet it is held that if the right to return and re-
sume his home on the leased premises was reserved, and if the
absence was involuntary, the homestead exemption may con-
tinue in his favor.^
Under the provision requiring actual occupancy, it was held
that one who lefj; his home by advice of his doctor, and rented
it out for a year but averred his intent to return and re-occupy
at the expiration of his lease, forfeited his right of exemp-
tion.^ But this is different where homestead declaration has
been filed. Where there is no record notice to the public,
leaving the premises under a tenant is abandonment, notwith-
standing an intention to resume occupancy.^
It is said, in defense of temporary leasing : "The home-
stead may be, as is sometimes the case, the only means of
maintenance; and it may happen that, in order to rent it and
derive from it any means of support, the dwelling must be
1 Guy V. Downs, IS Neb. 533 ; West » Fisher v. Cornell, 70 111. 216 ; Phe-
Eiver Bank v. Gale, 42 Vt. 27 ; Pardo lan's Estate, 16 Wis. 76, 79 ; Davis v. ..
V. Bittorf, 48 Mich. 275. Andrews, 30 Vt. 078.
2 Dunn V. Tozer, 10 Cal. 171 ; Aus- ■* Gates v. Steele, 48 Ark. 539.
tin V. Stanley, 46 N. H. 51 ; Welz v. » Stow v. Lillie, 63 Ala. 257.
Beard, 12 O. St 431; Stewart v. ePolIak v. CaldweU, 91 Ala. 353;
Brand, 23 la. 477 ; Robb v. McBride, 10 So. 266 ; Ala. Code, §§ 2515, 2516,
28 la. 386: Herrick v. Graves, 16 2539; Stow v. Lillie, 63 Ala, 259;
Wis. 157, 168; Stat of Oklohama, Scaif e v. Argall, 74 Ala. 473 ; Murphy
§ 2861. V. Hunt, 75 Ala. 438. •
LEASING THE PEEMISES. 573
temporarily given up to the tenant. ' Thns the family might —
sometimes from necessity, sometimes for convenience — be
locally absent from the homestead for years without in any
degree affecting their rights. The law is not concerned about
the precise locality of the family at any time; but it is con-
cerned that, wherever they may be carried by convenience,
chance or misfortune, there shall be a place, a sanctuary, to
which they may return to find the shelter, comfort and secu-
rity of a home.' " i
In many states the law is." concerned about the precise lo-
cality of the family " so far as to require it to be on the place
claimed as exempt. The policy of the law' is not to feed fam-
ilies but to shelter them ; rather, to protect the shelter which
they have: To " be locally absent from the homestead for
years," •' for convenience," is hardly consistent with this pol-
icy, when the beneficiaries do not really hold the place as their
home but as something screened from creditors.
A widow, devoting her house to the uses of a liquor saloon
and dancing hall, lived in the upper story with her daughters.
Then, renting out the whole building and moving away with
her family and remaining away seven years, she sold the prop-
erty to secure borrowed money, and gave an absolute deed.
■ After all this, she successfully claimed homestead in the prop-
erty, averring that she had intended to return to it.^ But, by
the law of one of the most liberal of the homestead states, her
claim would have been denied ; for the rule is that, if a part
of the homestead is permanently devoted to a use inconsistent
with that of family residence, it loses its exempt character.'
In that state, where "business homesteads " are allowed, if
the beneficiary leases his store-house from year to year, he
thus abandons the benefit.* But it was permitted in another
state for a dweller in his homestead to have a building on his
' Garibaldi v. Jones, 48 Ark. 330, the same as a homestead, nor by a
citing Foreman v. Meroney, 63 Tex. sale thereof." Sanborn & B.'s An.
736; Walters v. People, 31 111.178; Stat of Wis., § 2983. Jarvais v. Moe,
Phipps V. Acton, 13 Bush, 375 ; t)av- 38 Wis. 440 ; Phillips v. Root, 68 Wis.
enport v. Devereaux, 45 Ark. 343. 128 ; Zimmer v. Pauley, 51 Wis. 383.
2McDermottv.Kernan,73Wis.268, ^Langston v. Maxey, 74 Tex. 155;
in exposition of statute : " Exemption Newton v. Calhoun, 68 Tex. 451.
shallnot be impaired by temporaryre- *Oppenheimer v. Fritter, 79 Tex.
moval with the intention to re-oocupy 99 ; ante, ch. VIII.
574 . ABANDONMBNT.
premises, in the rear of his residence, occupied by another,
who there pursued his trade of carpentry ; and no part of the
premises were treated as having its homestead character re-
linquished.' However, in another state, one who slept upon
his premises, but devoted most of them to business uses, was
denied homestead exemption in any part of them. He had
no family living on the property which he claimed as exempt,
and perhaps he would have been denied homestead protection,
under the circumstances, in almost every state.''
A widow, by leasing the home property to the heirs, then
canceling the lease and conveying the property to them, aban-
doned her homestead right in it.' A widowed occupant of a
homestead left it, after a year's residence, and leased it for
nine years. On the ground that she meant to return as soon
as the growth of the city should be such as to enable her to
carry on dress-making on the premises, the court held that
she had not lost her homestead right by abandonment.* So,
when a home was rented out for a year, with the intention of
returning at the expiration of the lease, but was sold, upon
change of mind — the purchaser to have possession at the end
of the year, when the lease would be out — it was held that
there had been no abandonment. A judgment rendered
against the owner was held to bear no lien upon the home-
stead thus left and sold.^ ,
An infant claimed homestead in premises that had been oc-
cupied by its father, who died when the child was a year and
a half old — his only heir. The guardian of the child leased
the premises for its benefit and took it to live with her.
The home of the deceased was sold under a mortgage from
which there was a surplus of proceeds which creditors claimed.
The guardian claimed that the property was homestead, and
that the surplus belonged to her ward. After contest, the
court recognized the property as homestead, and held that
the child's removal from it was not abandonment.'
1 Layon v. Grange (Kan.), 39 P. 583. 6 Shirack v. Shirack (Kas.), 24 Pac.
2 Garrett v. Jones (Ala.), 10 So. 703. 1107; Hixon v. George, 18 Kas. 353
3 Ditson V. Ditson (la.), 53 N. W. 303. BrinkerhoflE v. Everett, 38 111. 263
< Reilly v. Reilly (III,), 36 N. E. 604. Ehorer v. Brookhage, 80 Mo. 544
5 Moore v. Flynn, 135 111. 74; 25 Johnston v. Turner, 29 Ark. 380.
N. E. 844.
CESSATION OF OWNERSHIP. 575
A homestead was rented to a tenant by a surviving hus-
band while he ceased to occupy it. Holding legal possession,
and intending to return to the place in case he could not sell
it, and finally returning and re-occupying, he was held not to
have abandoned or forfeited the homestead right, though he
had offered the property for sale.'
The owner of a hotel rented to a landlord,' to be occupied
exclusively as a hotel, is not an occupant in the sense of the
homestead statute : so he may sell without his wife's joinder,
though both board in the hotel.^ But the landlord who owns
his hotel and keeps the home of himself and his family in it
may hold it exempt.' And it has been held that the owner of
a hotel may rent it to another and yet retain the homestead
exemption, if he continues to live in it with his family — he
and they being boarders.*
• Where the condition, of the benefit is actual occupancy by
the resident owner and his family, it is not observed by rent-
ing the premises to a tenant to be occupied by him.' The
lessor must resume possession before levy if he wishes to hold
his home as exempt.^ And when the question of his exemp-
tion right turns upon occupancy, the burden of proof is upon
him.'
§ 5. Cessation of Ownership.
It seems needless to say that when the condition of owner-
ship no longer is observed, there can be no continuance of the
exemption right. There are circumstances, however, occur-
ring from time to time with reference to homestead sales and
transfers, which require a passing notice. A surrender under
misapprehension may lack the voluntary purpose necessary to
constitute abandonment. If a debtor has given up his prem-
ises to a purchaser at an execution sale when such sale was
1 Gregory v. Dates (Ky.), 18 S. W. v. Campbell, 59 Ala. 635 ; Boyle v.
231. Shulman, 59 Ala. 566 ; Stow v.. Lilliei;
2 Green v. Pierce, 60 Wis. 373 ; Wis. 63 Ala. 257 ; Kaster v. Mc Williams,
Anno. Stat, g 2983. 41 Ala. 302.
'Harriman v. Queen Ins. Co., 49 6 Hines v. Duncan, 79 Ala. 113.
Wis. 71 ; Phelps v. Rooney, 9 Wis. 70. ^ Lyne v. Wann, 73 Ala. 43 ; Waugh
* Myers v. Ford, 23 Wis. 134. v. Montgomery, 67 Ala. 573; Blum
5 Martin v. Lile, 63 Ala. 406 ; Preiss v. Carter, 63 Ala. 235.
' 576 ABANDONMENT.
void, his act is not a relinquishment of his exemption right.'
"When a part of the homestead came into the possession of a
transferee under a void title, there was no legal abandonment
of it.^ But when the part sold included the family dwelling,
and was legally conveyed, the rest lost its exempt character
in the absence of any design to erect a dwelling upon it and
use it in preservation of the right.' Where the husband is
divested of no vested right, and none is vested in his wife by
the homestead law, he can exercise the jus disponendi by
changing his home before its sale.*
A nice question of abandonment was presented on the fol-
lowing facts : Taylor verbally agreed to sell his homestead
to De Arman, and gave him possession of his dwelling and
land, except three rooms which he still occupied with his fam-
ily. De Arman and his family occupied all the rest of the
house and the land. Two weeks later, Taylor gave De Arnlan
his conveyance of the property ; and, so long as he remained
afterward, he paid rent to the vendee for the three rooms;
but he soon vacated the premises altogether, taking his fam-
ily away with him. The conveyance purported to be by both
Taylor and his wife ; the receipt of the price was averred, and
the deed was acknowledged by both, but the certificate of
the wife's separate examination merely stated that she signed
" without fear, constraint or persuasion " of her husband.
More than four years after this title had been given; and full
possession thereunder, suit was brought by Pierce to recover
this property, as its purchaser at judicial sale, in a suit against
Taylor instituted about a year after he had made his private
sale to De Arman. Pierce sued to eject Smith, who was the
grantee of De Arman and now in possession.
Did Taylor own and occupy the property as a homestead
when he and his wife made the written conveyance? If so, he
continued to own, for the defect in the wife's acknowledgment
was fatal.' He could not convey without her legal signature
and acknowledgment, if the property was still a homestead.
The conveyance being void, the property became subject to
> Waggle V. Worthy, 74 Cal. 366. « Massey v. Womble (Miss.), 11 So.
2Stinsou V. Richardson, 44 la, 873. 188.
sGivans v. Dewey, 47 la. 414; 5 Motes v. Carter, 73 Ala. 553 ; Code
Windle v. Brandt, 55 la. 331. of 1876 (then in force), § 2823.
CESSATION OF OWNERSHIP. 57T
execution for Taylor's debts as soon as he and his wife left it.^
It was levied upon and sold under a creditor's judgment and
bought by Pierce, as above stated. After this judicial sale,
Mrs. Taylor made due acknowledgment of the deed to De
Arman, to cure the defect of the prior one, but it did not af-
fect the validity of the judicial sale since it could not act retro-
spectively.
The turning point is upon the status of the property after
De Arman had come into possession of all but three rooms.
Was the whole dwelling, with the land, still a homestead, — i
the deed needing the wife's signature and acknowledgment
to effect its valid conveyance? The court said it was. The
verbal agreement to sell was void though part or all of the
purchase-money had been paid. The ownership remained in
Taylor, and the court thought his occupancy of the rooms
under agreement with De Arman was the same as if he had
had no such agreement but had rented all the homestead to
De Arman except the three rooms. The letting of a part
would not have been an abandonment of the whole.* The
court said : " The renting of the! premises by Taylor from De
Arman did not operate either to create an abandonment or
to estop him from showing that in reality the relation of land-
lord and tenant did not exist between them." The verbal
promise of a homestead owner to pay rent to a grantee, when
the conveyance lacked the wife's signature, was held not to
defeat the policy of the homestead law.' If a homestead can
be rented to a lessee and possession given to a part of it, and
the husband alone can then sell it, " it would enable husbands
easily to do by indirection, without the knowledge or even
suspicion of the wife, what they are prohibited positively by law
from doing directly." * So it was held the Taylors never had
sold their homestead, but that when they moved wholly from
the premises, leaving De Arman in full possession under his
void deed, they had abandoned it so that subsequently it was
validly sold under judgment and execution ; and Pierce, the
iStriplin v. Cooper, 80 Ala. 356; aCrim v. Nelms, 78 Ala. 604.
Alford V. Lehman, 76 Ala. 526. * Alf ord v. Lehman, 76 Ala. 539 ;
2 Pryor v. Stone, 19 Tex. 371 ; S. C, Taylor v. Hargous, 4 Cal. 268 ; S. C,
70 Am. Dec. 350 ; Phelps v. Eooney, 60 Am. Dec. 606, and note.
9 Wis. 70 ; S. C, 76 Am. Dec. 344
37
578 ABANDONMENT.
purchaser, obtained good title, and possession was given to
him by the court.'
The case was close. It might plausibly be contended that
De Arman was the occupant of the premises (or nearly the
whole of them) from the time he entered with the consent of
the Taylors. Quoad them, he had ,not the exclusive right of
possession, since he had no l§gal title, though he had their
consent to occupy as owner ; but, quoad all the rest of the
world, he had such occupancy as would have enabled him to
claim homestead in the premises. Now, both he and Taylor
could ndt rightfully be each entitled to homestead protection
in the same property at the same time. Leaving the three
reserved rooms out of the question, who was the occupant of
the rest of the premises from the date of De Arman's entry
to the final evacuation of the reserved rooms by the Taylors,
wBfen their abandonment became complete? If De Arman
was, and the Taylors were not, then the sale of all but the
three rooms could have been made without ,Mrs. Taylor's sig-
nature or acknowledgment. If, on the other hand, the Tay-
lors remained in legal occupancy of the whole, the sale was a
nullity, and the property remained liable to creditors after it
had been clearly abandoned by the Taylors moving away
from it.
They had no intention of abandoning it to their creditors.
There are many decisions to the effect that abortive attempts
to sell the homestead to defraud creditors do not operate as
abandonment on the part of the vendors, when the convey-
ance has been set aside. This decision looks in an opposite
direction (though no question of fraud is involved), and may
lead to better deliverances on the element of intention, as
affecting action, when homesteads are really evacuated. The
Taylors had no intention of retaining their homestead. They^
meant that their occupancy of it should cease. They took the
price. But they moved away under the mistaken belief that
they had legally sold their homestead. The following propo-
sition may be deduced from the decision, though the court
may not have meant that it should be stated so broadly :
Moving from a homestea(^, without design of returning, is
1 Smith V. Pearce, 85 Ala. 264, from which the above quotations and cita- ^
tions are drawn.
CESSATION OF OWNBESHIP. 579
abandonment, though done under the erroneous impression
on the part of the owners that they have sold it and have no
right to remain.'
Where a quitclaim deed is a grant under the statute, such
deed of the homestead is abandonment.^ Though the home-
stead right be not expressly waived with due acknowledgment
by husband and wife, their surrender of the property, after
giving deed, may be considered an abandonment of the home-
stead estate, so that the purchaser and possessor may get good
title.^ Taking a lease from the purchaser is evidence of aban-
donment on the part of the vendors, under such circumstances.''
Abandonment, as a question of fact, is for the jury. It should
be established with reasonable certainty, and it has been held
not error for the court to charge the jury that it must be
clearly proven.* The fact that the householder requested a^
witness to point out for execution the land he had held as a
homestead may be proven as tending to show_ abandonment.'
Homestead cannot be set up to defeat an action brought for
the purchase price by the seller or by one from whom the de-
fendant obtained the property, if the title had its inception in
fraud.'
1 Decisions of the state, favoring Lehman v. Bryan, 67 Ala. 558 ; Boyle
the position of the court : Striplin v. v. Shulman, 59 Ala. 569;'Preiss v.
Cooper, 80 Ala. 356; Motes v. Carter, Campbell, 59 Ala, 637; GafEord v.
73 Ala. 553 ; Hood v. Powell, 78 Ala. Stearns, 51 Ala. 434.
171; Scott V. Simons, 70 Ala. 353: 2Faivrev. Daily (Cal.), 29 P. 256;
Allen V. Kellam, 69 Ala. 447 ; Scar- Cal. Civ. Code, § 1243.
borough V. Malone, 67 Ala. 570; 3 Winslow v. Noble, 101 111. 194^
March v. England, 65 Ala. 275 ; Halso Brown v. Coon, 36 111. 343.
V. Sea Wright, 65 Ala. 431 ; Dooley v. ^Winslow v. Noble,SMjp»-a;Eldridge
Villalonga, 61 Ala. 129 ; Balkum v. v. Pierce, 90 111. 474. (See Booker v.
Wood, 58 Ala. 644 ; Miller v. Marx, Anderson, 35 111. 66, rendered under
55 Ala. 332 ; MoGuire v. Van Pelt, 55 a statute since repealed.)
Ala. 344; McConnaughy v. Baxter, * Rollins v. O'Farrel, 77 Tex. 90;
55 Ala. 381 ; Hendon v. "White, 53 Ala, Langston v. Maxey, 74 Tex. 161 ;
597 ; Boynton v. Sawyer, 35 Ala. 500 ; Newton v. Calhoun, 68 Tex. 451 ; Cox
Eainey v. Capps, 33 Ala. 388 ; Shel- v. Shropshire, 35 Tex. 118 ; Gouhenant
tOD V. Carrol, 16 Ala. 148. Compare v. Cockrell, 20 Tex. 98. See cases
with the foregoing cases : Bailey v. cited, in the first of these, by counsel
Canapbell, 83 Ala. 348 ; Tyler v. Jew- to sustain the opposite,
ett, 83 Ala. 98; Gates v. Hester, 81 SHoUoway v. Mcllhenny, 77 Tex.
Ala. 859 ; Murphy v. Hunt, 75 Ala. 657.
440; Scaife v. Argall, 74 Ala. 473; 7 Muir v. Bozarth, 44 la. 499.
,580 ABANDONMENT.
It has been held that an attempted assignment of home-
stead, in favor of a particular creditor or other person, though
abortive, is an abandonment of the exemption right on the
part of the beneficiary, which opens the way to all creditors.'
§ 6. Family Headship^ Relative to Abandonment.
It is not in the power of the head of the family to destroy
the homestead rights of the other beneficiaries, by his per-
sonal desertion of the home, under the statutes of some states.
The public welfare, subserved by the conservation of homes,
is paramount to any interest, adverse to that of the family,
which he may claim, according to the spirit of those statutes.
Not only the good of his wife and children, but his own home-
stead privilege, is tenderly cared for by the legislator ; for, as-
suming that he is the owner, we see that their rights cannot
be preserved without the preservation of his also. The courts
have held that his rights and theirs remain intact ; that deser-
tion of the family by its head does not have the effect of forfeit-
ing either his exemption right or that of his wife and children.^
On the other hand, his loss of family has been held not to
terminate his exemption privilege.' He could not acquire
homestead without a family ; for the having of it is one of the
conditions ; but, once acquired, it does not necessarily go from
him on the loss of every member of his household, according
to the decisions cited. There is no universal rule on this sub-
ject ; there are authorities to the contrary of the doctrine of
the cases above adduced.*
Exemption is not affected by the action of a wife in quitting
the home against the will of her husband, and residing else-
1 Bowyer's Appeal, 31 Pa. St 214. Woodbury v. Luddy, 14 Allen,- 1 ;
So formerly held in Mississippi. Woodworth v. Comstock, 10 Allen,
Whitworth v. Lyons, 39 Miss. 467. 425 ; Doyle v. Coburn, 6 Allen, 71 ;
2 Dearing v. Thomas, 25 Ga. 323 ; Stanley v. Snyder, 43 Ark. 429 ; Beck-
Bonnel v. Dunn, 28 N. J. L. 155 ; 29 id. man v. Meyer, 75 Mo. 333 ; Kimbrell
435 ; Cadwalader v. Howell, 18 N. J. v. Willis, 97 111. 494. (See similar cases
L. 138 ; White v. Clark, 36 111. 285 ; in chapter on Family Headship.)
Moore v. Dunning, 29 111. 135 ; Drury * Santa Cruz v. Cooper, 56 CaL 339 ;
V. Bachelder, 11 Gray, 214 ; Gambette Cooper v. Cooper, 34 O. St 488 ; Gal-
V. Brock, 41 Cal. 78 ; Benson v. Ait- lighar v. Payne, 34 La. Ann. 1057,
ben, 17 Cal. 163 ; Benedict v. Bunnell, and others cited in chapter 3 of this
7 Cal. 345 ; Cary v. Tice, 6 Cal. 626. work, where the subject is discussed.
•Silloway v. Brown, 12 Allen, 34;
FAMILY HEADSHIP KELATIVE TO ABANDONMENT. 581
where. If he remain, keeping house to which she may re-
turn at will, the homestead right continues intact.'
If his children remain with him, the purpose of homestead
legislation is answered by maintaining him in his exemption
privilege. He preserves the home to which the wife and
mother may return. If^ on the other hand, his children have
been taken from him against his will, he is not in fault.
The law is that the temporary, or even permanent, aban-
donment of the home by the wife does not affect the husband's
exemption right. It might affect that right, if she should
live apart from him permanently, having all the children with
her, while he should keep bachelor's hall in the homestead, if
such family arrangement were hy his consent. But if, against
his will, she desert the home, even though she succeed in tak-
ing some or all of the children with her, his homestead right
will not be lost while he remains under the roof tree and
keeps a home to which his family may return.^ Though she
may have instituted divorce proceedings against him, if he
still keeps up the home, though temporarily absent, his ex-
emption right will remain unaffected. His family may have
been so far broken up that he has found it expedient to seU
his furniture and admit other occupants to his house, yet
those circumstances will not operate to destroy the exemption
while he retains possession and control as the head of his
scattered household.'
The wife's desertion of the husband because of his viola-
tion of marriage vows, or his ill-treatment of her in other
respects, does not necessarily operate as a forfeiture of her
rights in the homestead which he still occupies.*
It has been held, however, that a wife who has abandoned
her husband and habitually resided with another man in a
different state from that of her lawful husband's domicile, for-
feits her right to claim homestead in his estate after his
iPardov. Bittorff, 48 Mich. 275; Barney v. Leeds, 51 N. H. 353;
Gates V. Steele, 48 Ark. 539 ; White- Header v. Place, 43 N. H. 807 ; Atkin-
head v. Tapp, 69 Mo. 415 ; Brown v. son v. Atkinson, 40 N. H. 349 ; Barker
Brown's Adm'r, 68 Mo. 388. v. Dayton, 28 Wis. 367 ; Silloway v.
2Pardo v. Bittorf, 48 Mich. 275; Brown, 13 Allen, 30; Doyle v. Co-
Earll V. Earll, 60 Mich. 30. burn, 6 Allen, 71 ; Welch v. Rice, 31
' Griffin v. Nichols, 51 Mich. 575. Tex. 689.
*Wood V. Lord, 51 N. H. 448;
582 ABANDONMENT.
death.' And when she has been deserted by her husband, she
has no right to homestead in lands acquired by him in a state
where she has never resided.'
The position is maintained that a wife, not divorced, who
deserts her husband, abandons his home, and buys and occu-
pies a home of her own, is not entitled to any homestead
right in his estate at his death, as she is to dower right.' And
when she is divorced, she is no longer entitled to homestead
in her late husband's property.*
§ 7. Effect on the Wife's Eights.
Since the homestead estate is the creature of statute, and
since the family of the owner have rights in it, the legal owner
cannot divest them in any other way than that authorized by
statute. He may abandon the right which he shares with his
wife and children.^ So, if not restrained by statutory provis-
ions, he may defeat the wife's rights in the homestead by
abandoning it.^
But if the husband is restrained by statute, her interests
cannot be thus disposed of without her consent.' He may
change his domicile and cause her to follow, yet the law may
preserve her homestead rights.
The sale of the homestead by the husband alone, and his re-
moval therefrom necessitating his wife to follow him, do not
deprive her of her homestead right in the property sold. She
does not abandon her right by doing her conjugal duty in fol-
lowing her husband to another residence. " The wife cannot
be compelled to elect between her husband and homestead." '
'Prater v. Prater, 87 Tenn. 78; pare Dunn v. Tozer, 10 Cal. 171);
Lacey v. Clements, 36 Tex. 661. Foss v. Strachn, 42 N. H. 40 ; Brown
■^ Stanton v. Hitchcock (Mich.), 31 v. Coon, 86 111. 243 ; Titman v. Moore,
N. W. 395 ; Emmett v. Emmett, 14 43 111. 174 ; Vasey v. Trustees, 59 111.
Lea, 369. 191 ; Burson v. Fowler, 65 111. 146 ;
3 Dickman v. Birkhauser, 16 Neb. Hall v. Fullerton, 69 111. '448 ; Finley
686 ; Farwell Brick Co. v. McKenna, v. McConnell, 60 111. 263 ; Hewitt v.
86 Mich. 383. Templeton, 48 111. 367 ; McDonald v.
* Burns v. Lewis, 86 Ga. 591. Crandall, 43 111. 281 ; Pishback v.
5 Johnston v. Dunavan, 17 Brad. Lane, 36 111. 437 ; Jordan v. Godman,
(111. App.) 59 ; McMahill v. MoMahill, 19 Tex. 273 ; Hand v. Winn, 53 Miss.
103 111. 601; Trustees v. Hovey, 94 788.
lU. 394 ; McGee v, McGee, 91 111. 548 ; ' Allison v. Shilling, 37 Tex. 450.
Haskins V. Litchaeld, 31 111. 137. s Collins v. Boyett, 87 Tenn. 334;
* Guiod V. Guiod, 14 CaL 506 (com- Jarman v. Jannan^ 4 Lea, 675 ; Roach
BFFEar ON THE WlfE's BIGHTS. 583
If the husband alone sells the property on which he lives
when it is greater in quantity and value than the amount al-
lowed as homestead, and surrenders it to the purchaser, it is
held that his devisees cannot successfully contest the contract
of sale, after his death, on the ground that the homestead por-
tion was illegally alienated.^ The wife, however, who does
not join in such sale, would not have her rights defeated under
the operation of most of the statutes. A husband conveyed
his old homestead, after having acquired a new one. The wife
brought ejectment against the purchaser, but did not succeed,
as she had consented to the abandonment of the old homestead
by accepting the new one.^ She is bound by her own volun-
tary act, done under the provisions of law. If she relinquish
all claims on her husband's estate, by articles of agreement
duly executed, she cannot claim homestead in it afterwards.'
When the title is in the wife while the homestead interest
is enjoyed by both her and her husband, the abandonment of
that interest by both will not expose the property to liability
for the husband's debts.^
If the wife may convey the homestead separately owned by
her, without her husband's assent, it has been said that " there
would seem to be no legal principle which would prevent her
from voluntarily deserting her husband and abandoning her
homestead. She is in no sense the slave of her husband, and
is so far the master of her own will that she has liberty to re-
main with her husband, or go from him, as she pleases ; and
he has no legal remedy to compel her to return. A homestead
is an artificial estate in land, devised to protect the possession
of the owner against the claims of creditors while the land is
occupied as a home. It does not protect a person in posses-
sion against the claims of the legal owner of the land.
" If the defendant in the suit had such an occupancy under
his wife as to raise the relation of tenancy at will on her aban-
V. Hacker, 3 Lea, 634 ; Mash v. Bus- 659 ; Parr v. Fumbanks, 11 Lea, 398 ;
seU, 1 Lea, 544 ; Williams v. Will- Grwynne v. Estes, 14 Lea, 663.
iams, 7 Bax. 118 ; Const Tenn., art. ' Lamore v. Frisbie, 43 Mich. 186 ;
11, § 11 ; Code, § 3114a, T. & S. Con- Wallace v. Harris, 33 Mich. 380.
tra: Levison v. Abrahams, 14 Lea, 2 Wheeler v. Smith, 63 Mich. 373.
836. See Creath v. Creath, 86 Tenn. s Cilinger's Appeal, 35 Pa St. 537.
* Hixon V. George, 18 Kas. 35a
584 ABAIIDONMBNT.
donment of the premises, it has been duly terminated by notice
to quit." 1
The wife had deserted her husband and given him " notice
to quit" their homestead on her separate property. She' then
brought an action of ejectment to oust him — and this was
the case. The court ousted him.
This case seems to overlook the policy of home conservation,
and thus to make a law designed to foster families operate to
their disintegration. For, while it is true that the governing
statute does not require the husband's joinder to an act of
homestead sale when the wife is the owner ; and while it is
true that a purchaser from her is entitled to possession, it does
not follow that she can eject her husband. Once ejected, can
she enjoin his return? Most assuredly she cannot. With
deference to the court, the profession may not all agree in
thinking its position tenable.
A wife who has obtained a divorce and has left the home
is not debarred from claiming her estate of homestead in the
property "which is occupied by the husband, it has been held.'
Aliter, when the divorce is obtained by the husband ; ' but
this may not be true in every state.
Occupancy by the owner's wife and minor children is suffi-
cient to retain the homestead immunity. Her husband's re-
quest that she join him beyond the bounds of the state where
the home is situated, and her attempt to sell the premises for
that purpose, do not neutralize the effect of her actual occu-
pancy with the infant children.* And the homestead may be
valid when the wife has never lived upon it.*
§ 8. Effect on the Widow's Rights.
Where the continuance of the homestead right and privi-
lege depends upon the occupancy of the home byi some one of
1 Buckingham v. Buckingham, 81 permanently, while his wife remained
Mich. 89, 9$. Compare Trout v. Rum- to sell the property and then join him
ble, 82 Mich. 203. in New Mexico with the proceeds.
2 Dunham v. Dunham, 128 Mass. He had rented land there, and owned
34. an adobe house upon it, on which he
' Burns v. Lewis, 86 Ga. 881. resided. Under such circumstances
♦ McDannell v. Ragsdale, 71 Tex. the Texas home was held exempt
23. In this case the husband, and in- ' Mbores v. Wills, 69 Tex. 109 ;
eolyent debtor, left the state of Texas Henderson v. Ford. 46 Tex. 628. In
EFFECT ON WIDOw's EIGHTS. 585
his family after the householder's death,' his widow loses her
right of possession by removing permanently away. Whether
the wife leave during her husband's life-time, or his widow-
quits the premises after his demise, tiie voluntary abandon-
ment estops subsequent claiming.^ Her voluntary removal
and establishment of a permanent home elsewhere is abandon-
ment, though she may have been ignorant of her right to re-
tain the homestead for life.'
Under a law continuing the homestead to the widow and
children provided some one of them remain in occupancy, it
was held that her retention of a room for storing the furni-
ture sufficiently complied with the requirement while she had
acquired no other homestead.* Her taking others into the
family is not a relinquishment of its headship so as to be an
abandonment of the homestead right.'
The assignment of homestead to a widow is a judicial rec-
ognition of the fact that she has not abandoned her right.
She may then sell it, and the grantee will hold against the
heir, since alienation is not abandonment, it is said.* That it
is not an abandonment, in such case, of the exemption privi-
lege attached to the property, seems the meaning. There is
abandonment of occupancy by the widow.
A childless widow forfeits the homestead right derived from
her first husband, by marrying a second one, when widow-
hood is the condition on which the right is granted, and lim-
itation to the period of widowhood is expressed. Though
there may have been a minor child of the deceased husband
living with her when the homestead right came to her as the
survivor of the late owner of the property, yet that fact can-
Missouri the husband and father her husband, and kept out by a ten-
does not lose his homestead by the ant after her husband's death,
death of his wife and the completion 'Paul t. Paul, 136 Mass. 386.
of his children's minority, if he con- * Brettun v. Fox, 100 Mass. 234, on
tinues to occupy the premises. Beck- Stat. Mass. 1855, ch. 338.
man v. Meyer, 7 Mo. App. 576. ' A widow took her married daugh-
' Mass. Stat. 1851, ch. 340, § 3. ter and son-in-law to her home as
2 Foster v. Leland, 141 Mass. 187 ; residents, but did not therefore cease
Paul V. Paul, 136 Mass. 386 ; Brettun to be the head of the family. Jones
V. Fox, 100 Mass. 234 ; Abbott v. Ab- v. Blumenstein, 77 la. 361.
bott, 97 Mass. 136. The cases do hot epiummer v. White, 101 111. 474
eover the case of a wife who is invol- See White v. Plummer, 96 IlL 394.
untarily driven from her home by
586 ABANDONMENT.
not avail her after the death of the child and her own re-
marriage.'
A lost homestead right, though the loss he wholly attrib-
utable to the neglect of the husband to file a notice of tem-
porary removal when that is required by statute, cuts his
widow off from claiming the right as survivor after his death ;
cuts off either from claiming on surviving the other.*
Long absence by a widow without settled home anywhere,
with no definite time fixed for returning to the homestead
but professed intention to settle in it ultimately, was held to
be abandonment.' It was said, however^that the intention of
returning was not clearly shown by the circumstances.* The
courts hold a widow less strictly to actual occupancy than they
hold other homestead claimants ; but she is capable of aban-
doning.' She would not necessarily be deemed to have aban-
doned by renting the premises to a tenant and living elsewhere
with her children for months and even years, yet retaining the
home and meaning to re-occupy it personally. In some sense,
the tenant's occupancy is treated as hers.^
In the absence of statutory rule to that effect, her right is
not terminated by remarriage.' Nor by ceasing to have a
family.' ISTor by her late husband's deserting her and abscond-
ing.' But when the children's rights are not from their father
but through her, her permanent removal, with them, from
the homestead, is said to be abandonment of both her rights
and theirs. She has the rightful custody of her own children ;
it is argued she is their legal and natural representative ; she
may conclude them by her acts in this respect. Not so, as re-
gards her step-children. Her relation to them is so different
that their rights of homestead remain in their deceased father's
1 Dei V. Habel, 41 Mich. 88. 36 111. 343 ; MoCormack v. Kimmel, 4
2Baillif V. Gerhard, 40 Minp. 173. Bradw. 131.
Minn. Gen.' Stat. (1878), ch. 68, §§ 1, SKenley v. Hudelson, 99 111.493;
8, 9 ; oh. 46, § 3. Browning v. Harris, 99 III. 456 ; Buck
» Farnan v. Borders, 119 111. 238. v. Conlogue, 49 HI. 395 ; Brinkerhoff
■1 lb.; TJtmau v. Moore, 43 la 170 ; v. Everett, 38 111. 263 ; Walters v. Peo-
Howard v. Logan, 81 111. 383. pie, 31 IlL 178.
6 Wright V. Dunning, 46 111. 372; ' Yeates v. Briggs, 95 IlL 79.
Kingman v. Higgins, 100 111. 319; 8 Kimbrel v. Willis, 97 III. 494.
Shepard v. Brewer, 65 IlL 383 ; Clubb » People v. Stitt, 7 Bradw. 294. See
V. Wise, 64 111. 157 ; Brown v. Coon, p. 580 ; Dykes v. O'Connor, 18 S. W.
490.
EFFECT ON WIDOW'S EIGHTS. 587
properfy though she should permanently remove.' This abil-
ity of the mother to deprive the children of homestead rights
is not to be received as a rule. It is not so under all home-
stead systems.*
When homestead immunity is bestowed upon real estate
belonging to a husband and father, with the accompanying
provision that it " shall inure to the benefit of his widow and
children, and shall be exempt from sale in any way at the in-
stance of any creditor or creditors," there is a right and inter- .
est conferred upon the widow and children without power of "
disposition unless all join. Neither the widow alone, nor the
children alone, can abandon such homestead, though doubtless
either could abandon right in it without prejudice to the
other,' The minor children's rights are not lost because the
widow of the owner from whom^ the homestead was derived
has abandoned her own interest in it. They may still occupy
the home. If they have been removed from it by the mother,
they may return to it. If she unite with the administrator of
their father's estate in executing a mortgage on the home-
stead, the children's rights will remain unaffected. Certainlj'^,
when the'ir interests are meant to be sacrificed; when the
transaction is not for their welfare, any act or omission of
those who should rightly represent them will prove inoperative
to divest them of their homestead rights.*
It has been held, in exposition of statute, that a homestead
derived from a deceased husband cannot be forfeited by aban-
donment so as to divest the children of their right in it; but
that if derived from a deceased wife, the children's right may
be abandoned by the surviving husband — just as he might
have abandoned it in her life-time.* However, the widow's
right (being to remain for life on the homestead left her by
her husband) may be abandoned by her by alienation to an-
other person, which will hold good as against the heir, it has
been held ; * her heir would better express the meaning, perhaps.
1 Kingman v. Higgins, 100 111. 319, ^ Showers v. Eobinson, 43 Micti.
327. 502, BIS; Griffin v. Johnson, 37 Mich.
2 See McDonald v. Logan Co. (Ark.}, 87, 9Z; Allen v. Shields, 72 N. C. 501
18 S. W. 1047. 6 Little's Guardian v. Woodward,
'Shelton v. Hurst, 16 Lea, 470; 14 Bush, 585; Genl. Stat. Ky., ch. 38,
Tenn. Eev. Code, § 2114; Acts 1879, art 13,§ 15.
p. 214; Hicks v. Pepper, 1 Bax. 42. 6 Barber v. Williams, 74 Ala. 331 ;
588 ABANDONMENT.
A widow was not actually occupying the property she
claimed as a homestead, at the time of its sale under exe-
, oution against her. She had resided with her niece, a mile
distant, for four years ; but she visited the land occasionally,
as the guest of her married daughter who occupied it as her
home. She had not acted as housekeeper or head of family
there, during the period mentioned. She had divided thd
land among her children — all adults. The facts showed aban-
: donment.^
But absence from the homestead for several successive sea-
sons to raise crops elsewhere, with the intention of retaining
the home, is not abandonment.'
Miller v. Marx, 55 Ala. 341 ; Wallace ^ McFarland v. Washington (Ky.X
Y. Hall, 19 Ala. 367. 14 S. W. 854
1 Crabb v. Potter (Ky.), 14 S. W. 501.
CHAPTER XIX.
EIGHTS OF THE SURVIVING SPOUSK
% L Continued Eight of Occupancy.
3. Distributive Sliare.
3. Community Property.
4 Title Vested in Survivor.
5. Separate Property.
§ 6. Widower's Eights in General
7. Widow's Eights as to Convey-
ance.
8. Eelative to Insurance on Home-
steads.
§ 1. Continued Right of Occupancy.
The statutes of the different states are not uniform as to the
respective rights of widows and widowers. All aim to con-
serve the home but all do not give rights to marital survivors
without partiality as to sex. Ordinarily, the surviving hus-
band who has minor children with him continues to live on
the homestead as the head of the family, just as he did before
the loss of his wife. On the other hand, the surviving wife
has her portion laid off as homestead, much in the same way
that dower is assigned, in some of the states. There is a
variety of provision for her presented by all the statutes.
Equality between the widower's and the widow's right is recog-
nized in some states. The statutes of these states vary in
their provisions : the survivor " shall be entitled to the home-
stead ; " " the exemption shall continue to the survivor ; " " the
homestead shall be for the use of the widow . . . and in
like manner for the use of the surviving husband." '
The law providing: " Upon the death of either husband or
wife, the survivor may continue to possess and occupy the
whole homestead and until it is otherwise disposed of according
to law;"^ and declaring that the setting off of the distributive
share of the survivor shall be such disposal, and that he or she
may elect between the share and homestead, and that the home-
stead shall descend to heirs, when not devised, and be exempt
in their hands from their parents' debts,' it is held that on the
' Stats. Colo., § 1634 ; Wy., § 3783 ; 2 lowa Code, § 3007 ; MoClain's la.
Ky., § 577 J Ok., 1875 ; Arizona, § 3077 ; Code, g 3183.
Wash Code, § 343 ; Stats, of 111., Nev., ' jf,., § 3008.
la., Cal., Idaho, etc.
590 EIGHTS OF THE S0EVIVING SPOUSE. '
death of the owning spouse the homestead descends to heirs
subject to the occupancy of the surviving spouse,* free from
the personal debts of the ancestor,^ and from their own, con-
tracted prior to his death.' On the sale of indivisible realty-
including the homestead, the widow has a third of the pro-
ceeds — not merely the proceeds of the homestead portion.*
Under the above quoted statutory provision, it is immate-
rial which of the marital parties owns the fee,* or whether
there are children or not,* or whether the survivor remarry
or not.' Though the survivor should agree to take the home-
stead instead of the distributive share, such election would not
secure title in it beyond the right to use and occupy during
life.8.
A surviving occupant cannqt change the homestead to an-
other residence so as to retain the exempt character ; ' but,
while retaining possession of the homestead left on the death
of the husband or wife, he may control the rents and profits,"
and even sue for injuries which molest the enjoyment of the
property, notwithstanding the absence of title and the liabil-
ity of being divested of the right of possession." The surviv-
or's right of possession, occupancy and enjoyment of the
usufruct of the property confers no title susceptible of con-
veyance or subjection to judgment liens.'^ If the survivor be
a widow, her homestead right is free from the effect of a
judgment rendered after the husband's death."
Under the provisions above stated, the surviving wife has
no estate in the homestead which she is privileged to convey ;
her right is merely personal; she does not inherit it but ac-
cepts a privilege accorded by law — a privilege "which would
1 Johnson v. Gaylord, 41 la. 366. * Stevens v. Stevens, 50 la. 491.
2 Moninger v. Ramsey, 48 la. 368. 9 Size v. Size, 24 la. 580. See Pal-
SBakerv. Jamison, 73 la 699; Kite mer v. Blair, 25 la. 230.
v. Kite, 79 la. 491 ; Johnson v. Gay- i^pioyd v. Mosier, 1 la. 512.
lord, supra. '* Cain v. Chicago E. Co. 54 la.
* Kite V. Kite, supra. 255.
6 Bums V. Keas, 21 la. 257. 12 Meyer v. Meyer, 28 la. 359; But-
njb. terfield v. Wicks, 44 la. 310; Smith
7 Nicholas v. Purczell, 21 la 265 ; v. Eaton, 50 la. 488.
Stewart v. Brand, 23 la. 481; Stan- "Briggs v. Briggs, 45 la. 818; Nye
ley V. Snyder, 48 Ark. 429 ; Dodds v. v. Walliker, 46 la. 806.
Dodds, 26 la. 310.
CONTINUED EIGHT OF OOOUPANQT, 591
not be denied her, though she should have agreed, in an ante-
nuptial contract, to relinquish her right of dower and inherit-
ance.' The survivor may abandon this privilege so as to leave
the estate open to partition;^ but while it is maintained by
occupancy, there can be no partition among heirs, and no in-
terference of any kind by them.^ Their legal title, descending
to them as heirs immediately on the death of the owner, is
thus subject to the right of the surviving husband or wife to
retain it as a homestead and continue to occupy it as such.*
And while the survivor lives, and occupies it, the minor chil-
dren cannot enforce any right or interest in it, as above
stated.' As the legal owner, whether wife or husband, may
dispose of the homestead by will, subject to the right of the
survivor, above expressed," it will be understood that the dev-
isees of the testament would occupy the same position as
that above described respecting heirs.
Where the statute continues the homestead to the widow
during her occupancy of it, it has been inferred that a widower
has the same right ; that the right is derivative, independent
of contiftued family relation, resultant from survivorship.
Though the law may not expressly name the husband, his
right has been implied by construction of the following:
" Exemption in favor of an execution debtor, or one against
whom judgment has been rendered, shall continue after his
death for the benefit of his widow and children, but shall be
estimated in allotting dower. The homestead shall be for the
use of the widow so long as she occupies the same, and the
unmarried infant children of the husband shall be entitled to
a joint occupancy with her until the youngest unmarried child
arrives at full age. But the termination of the widow's occu-
pancy shall not affect the right of the children
The homestead of a woman shall in like manner be for the use
of her surviving husband and her children, situated as above ;
and when his and their interest ceases, it shall be disposed of
in like manner, and the proceeds applied on the same terms
1 Mahaffy v. Mahaffy, 63 la. 55. * Burns v. Keas, 31 la. 257 ; Cotton
2 Orman v. Orman, 26 la. 361 ; Size v. Wood, 25 la. 43.
■7. Size, 24 la. 580. See Jolinson v. ^ Collins v. Chantland, 48 la. 241.
Gaylord, 41 la. 366. « Stewart v. Brand, 23 la. 477.
» Dodds V. Dodds, 26 la. 311.
592 EIGHTS OF THE SURVIVING SPOUSE.
to her debts; if none, divided among the children."' The
court, after citing authorities settling the right of the surviving
widow,^ argued that by parity of reason, a like right must be
accorded to the husband ; that such was the legislative intent.'
The person originally claiming homestead must own the
property dedicated, and have the right to dispose of it. Those
who derive homestead right from him must be occupants,
while the legal title is in his heirs.* The homestead derived
from her deceased husband, by a widow, who occupies it, is
not allowed her because of her need ; she may be otherwise
rich in her own right.*
The rule is pretty general that the survivor has exemption
during occupancy,* and some statutes make the continuance
of the privilege dependent upon occupancy ; ' but the require-
ment that the widow must live upon her homestead is not
made in all the states.
§ 3. Distributive Share-
Where " the setting off of the distributive share of the hus-
band or wife in the real estate of the deceased shall be . . .
a disposal of the homestead," but " the survivor may elect to
retain it for life in lieu of such share," ^ it is held that no part
of the homestead can be retained in addition to the distribu-
tive share,' though the whole may be enjoyed up to the time
when such share is set oflF." And the share will not be treated
as legally set apart, so as to be a disposal of the homestead
right in the survivor of the married beneficiaries, by the begin-
ning of a suit by the heirs for a partition of the estate ; or
even by the willing of her share by a widow, and the subse-
quent death of the testator.'^
1 Gen. Stat. Ky., ch. 38, §g 13, 14, 15. v. Buckley, 52 Tex. 641, and Whitten-
2Gasaway v. Woods, 9 Bush, 73; berg v. Lloyd, 49 Tex 683.
Eustache v. Rodaquest, 11 Bush, 42 ; ' Tidd v. Quinn, 52 N. H. 341. See
Gay V. Hanks, 81 Ky. 552. Locke v. Eowell, 47 N. H. 46.
3 Ellis V. Davis (Ky.), 14 S. W. 74. » McC's la Code, § 8183.
♦AUensworth v. Kimbrough, 79 9 Meyer v. Meyer, 23 la. 359 ; But-
Ky. 332. terfield v. Wicks, 44 la. 310; White-
5 Sansberry v. Simms, 79 Ky. 527. head v. Conklin, 48 la. 478, See
"Eubank v. Landram, 59 Tex. 247; Nicholas v, Purczell, 21 la. 265.
Schneider v. Bray, 59 Tex. 668 ; Blum lo Burdick v. Kent, 52 la. ,583.
V. Gaines, 57 Tex. 119 ; Kessler v. n Mobley v. Mobley, 73 la. 654. The
Draub, 52 Tex. 575. Compare Wolfe occupancy of a homestead under a
DISTKIBUTIVE SHAKE. ^ 593
Where dower and homestead right are made incompatible
but the surviving husband or wife may elect either, reason-
able time for election is allowed ; and during tliat time the
survivor may still occupy the homestead and enjoy its fruits ; '
but' when the decision is much delayed, especially when the
life enjoyment of the property is more valuable than dower
in the estate would be, the survivor may be presumed to have
chosen the former.- The acceptance of the homestead for life
is not a relinquishment of the distributive share otherwise
coming to the survivor, when there are no children or other
descendants and that share is more than one-third of the es-
tate. "Whatever may be coming, beyond the one-third by
dower right, may be accepted with the homestead.'
When the widow heirs half her late husband's estate, sl^e
cannot be forced to include the homestead therein.* ^ut if
she choose to take her distributive share and have the home-
stead laid off to her, it will continue to remain inviolable as
to debts antecedent to its first dedication.'
Where the homestead descends to heirs exempt from their
"antecedent debts" or those of their parents, the quoted
words mean debts prior to the descent — not prior to the orig-
inal dedication of the homestead." And, in the hands of the
heirs, it is not essential that it be occupied by them as a home-
stead in order to retain its inviolability from such anterior in-
debtedness.' Abandonment of her rights to the homestead,
by the widow, leaves the property in the hands of the heirs
perfectly free from the debts of the ancestor not antedating
devise of a life estate of land includ- Stevens, 50 la. 491 ; Thomas v.
ing the homestead, held not an elec- Thomas, 73 la. 657 ; Holbrook v.
tion defeating the widow's dower Perry, 66 la. 286.
right. Blair v. Wilson, 57 la, 177. s Smith v. Zuckmeyer, 53 la- 14.
The widow does not lose her right * Nicholas v. Purczell, 21 la. 265.
of homestead in the husband's estate 5 Briggs v. Briggs, 45 la. 318 ; Knox
by accepting his will, unless so in- v. Hanlon, 48 la. 352.
tended by him. i2e Wells' Estate, 68 6 Moninger v. Ramsey, 48 la. 368;
Vt 116. McC's la. Code, § 3183 (2008). Not
1 Cunningham v. Gamble, 57 la. even liable for the funeral expenses
46. of the deceased homestead holder.
2 Conn V. Conn, 58 la. 747, where Knox v. Hanlon, 48 la. 253.
a widow delayed ten years; Butter- 'Johnson v. Gaylord, 41 la. 862;
field V. Wicks, 44 la. 810 ; Stevens v. Baker v. Jamison, 73 la. 698.
88
594 EIGHTS OF THE SURVIVING SPOUSE.
the dedication.* The method of abandonment b^ the survivor
of a married pair, when the deceased was owner of the fee in
the homestead, is by electing to accept the distributive share ; ^
but if such survivor die in possession of the homestead and
the share has not been set off, the heirs take free from his or
her debts.' If conveyed by both husband and wife, subject
to their occupancy and that of the survivor during life, it was
held that the grantee (who was their son) did not succeed them
to the homestead exemption right. It was liable to forced
sale for his debts.* The homestead of a decedent is liable for
his debts to the same degree as when he was living.'
§ 3. Community Property.
The community property created by marriage is not a part-
nership.* It resembles one ; but the husband, as head of the
community, manages the property at will, alienates it at
pleasure and incumbers it without the wife's joinder. He
cannot devise more than his residuum beyond the community
debts ; cannot devise his wife's half interest. He is personally
responsible for the debts which do not have to look alone to
community assets.
In the civil law state, homestead is exceptional. It is not
assigned to a surviving wife if she is worth the sum of two
thousand dollars in her own right — that sum being the ex-
emption limit. It is only to poor debtors and needy widows
and orphans that the benefit is given. And the rights of tie
widow and, minor children of a deceased householder are con-
sidered in view of their condition when he died — not when
his estate was settled.'
1 Johnson v. Gaylord, 41 la. 362; Ann. 819; Succession of Marx, 37
Bradshaw v. Hurst, 57 la. 745. La. Ann. 99 ; Succession of Norton,
^Darrah v. Cunningham, 73 la. 18La. Ann. 38; Gimble v. Goode, 13
133. La. Ann. 352 ; Succession of Edwards,
3 Burdick v. Kent, 53 la 583. 32 La Ann. 457. Article 3553 of the
< Reifenstahl v. Osborne, 66 la. 567. Civil Code of Louisiana (revised)
6 White's Adm'r v. White, 63 Vt makes only necessitous widows and
577. minors entitled to privilege as credit-
6 La, Civil Code, art. 2807. ors for their homestead allowance.
' Succession of Lessassier, 34 La, But articles 219 and 223 of the present
Ann. 1066, in exposition of Louisiana constitution govern. See State v.
Act of 1852 relative to homestead. Judges, 37 La. Ann. 109. In Louis-
Succession of Wellnieyer, 34 La. iana it was held that minors, >mder
COMMUNITY PKOPERTT. 595
A necessitous widow of a second marriage was held entitled
to the full amount of homestead exemption from the acquets
and gains constituting the community • property of her de-
ceased husband and his first wife. Her privilege was ranked
above a, mortgage' given by them — the deceased husband and
wife as pai'tners of that community — to their creditors.'
And a case somewhat similar is reported from another state
which has adopted some of the principles of the civil law, and
which has what her courts have characterized as a " mixed
system of jurisprudence." There the homestead law is not a
mere charitable provision for the impecunious but a means of
enabling the owner to dedicate property to the extent of five
thousand dollars in value, and to hold it exempt from liability
for his debts. There, a husband and wife had declared their
homestead upon their community property. He proved to be
the survivor. He married a second time and then died, leav-
ing a Mddow. She and the step-children caused the property,
that had been held in community under the first marriage, to
be partitioned : half to the heirs of the deceased wife ; the other
half to herself to be held as her homestead during her occu-
pancy of it as such. No offspring had resulted from the sec-
ond marriage : so the children of the first inherited all the
property, but subject to the widow's homestead right of occu-
pancy of one-half the property.^
A husband and wife owned land which was not homestead.
She died and left children. He remarried, and then died in-
solvent, leaving children by both marriages, and a widow.
The county court set off homestead to the widow and both
sets of children. On appeal, it was held that the first wife's
interest was inherited by . her children, and therefore could
the tutorship (guardianship) of their erty by the civil law, and has it in
father, are not beneficiaries of the Louisiana, but not as homestead.
homestead provisions. Greig v. Eas- She has it by right as equal partner
tin, 30 La. Ann. 1130. Necessitous in the community.
grandchildren who are minors took a ' Succession of Cason, 83 La. Ann.
deceased widow's unpaid homestead 790.
amount of exemption, instead of ^GjHiam v. Null, 58 Tex. 298;
major children, under the Louisiana Pressley's Heirs v. Robinson, 57 Tex.
Act of 1852. Succession of Durkin, 453 ; Texas Const, of 1876, art 16,
80 La. Ann. 669. The widow is en- § 53.
titled to half the community prop-
596 EIGHTS OF THE SUEVIVING SPOUSE.
not be set off to the widow and both sets of children ; and that
upon the husband's death the statute gave homestead to the
widow and children who were occupying the home.'
A homestead should not be partitioned among heirs while
minor children with their father, or he alone, may be actu-
ally occupying it, nor while the probate court recognizes its
occupancy by th^ minors' guardian as valid within the pro-
visions of the homestead law. This is held, though the de-
ceasedj mother of the minors and other heirs may have com-
munity interest in the property.^ " The homestead is preserved
in entirety for the use of the widow during her life, and the
children during their minority, and cannot be partitioned
until after her death; . . but as to common property
other than the homestead, it is subject to partition at the suit
of any one or more of the tenants in common." ^
The surviving father or mother cannot sell community
property so as to divest the heirs of the deceased of their half
of it — not even to support the family. A probate court
could order the sale of their interest for their support,' if ne-
cessity should demand it. All the community may be sold to
pay community debts.* It is held that a widow, clothed with
homestead protection to her separate property, may burden
it with a deed of trust which will pass title; but if community
property be thus burdened, or conveyed in terms, her interest
only — the half — is really affected.'
The law which suspends the operation of prescription against
a wife during coverture does not apply to actions involving
the homestead designated upon the husband's separate prop-
erty or upon community property. She can sue during cov-
erture, in her own name, in either case.'
If the husband has sold community property constituting
the homestead, without joinder by his wife, she may recover
iMcDougal V. Bradford, 80 Tex. 5 Grothaua w De Lopez, 57 Tex. 670.
558. 8 Hussey v. Moser, 70 Tex. 42 (dis-
2 Adair v. Hare, 73 Tex. 273 ; Hudg- tinguished from Simonton v. May-,^
ins V. Sansom, 72 Tex. 329. See Wat- blum, 59 Tex. 7, and Smith v. Uzzel,
son V. Rainey, 69 Tex. 319. 61 Tex. 321) ; Rev. Stat. Tex. 3201,
s Linch v. Broad, 70 Tex. 96. construed ; Kelly v. Whitmore, 41
<Bell V, Schwarz, 56 Tex. 858; Tex. 647. See Rogers v. Trevatlian, 67
Thompson v. Cragg, 24 Tex. 597. Tex. 406.
COMMUNITY PEOPEETY. 697
it of the purchaser after the husband's death, and it will go
to her and to his heirs — she taking half.^
The homestead,being on community property, the surviving
wife has such estate in it as will enable her to maintain suit
in her own name for damages done to it.^ The heirs may be
made parties, since they inherit their father's half interest, all
subject to community debts and the homestead rights of the
surviving parent.^ But when a community homestea,d was
sold to pay a community debt evidenced by deed of trust
made bj'' both husband and wife — the sale made after the
husband had died insolvent — the purchaser was held to have
no title as against the widow's homestead rights.*
The husband, surviving his wife, may sell community prop-
erty to pay community debts, though it be the homestead and
though a minor child of their marriage be living.' The pur-
chaser, with notice, cannot resist the claim for purchase-money
under such circumstances.*
A widower mortgaged the homestead, giving power to sell
it, partly to secure a community debt. After the sale, letters
of administration on the deceased wife's estate were issued,
and a guardian appointed to his and her minor child. The
probate court ordered the sale of the homestead (after having
set it apart to the minor as the homestead of his deceased
mother), to apply the proceeds as an allowance to the minor
in lieu of exempt property and of the year's supply due him.
The purchaser at the mortgage sale came into litigation with
the purchaser at the probate sale, quite inevitably. He was
successful, since the husband had the right to dispose of com-
munity property to pay community debts, while the probate
court had no right to give to the minor the homestead of his
parents while the father yet lived.'
1 Hair v. Wood, 58 Tex. 77 ; Sossa- 3 Fagan v. McWhirter, 71 Tex. 567 ;
man v. Powell, 31 Tex. 664 ; Williams Ashe v. Yungst, 65 Tex. 635.
V. Wethered, 37 Tex. 132. ^Ib.; Neyland v. Neyland, 70 Tex.
2 Railroad Co. v. Knapp, 51 Tex. 24; Carson v. Kelly, 57 Tex. 380;
592. Cooper v. Singleton, 19 Tex. 260;
3 Wright V. Doherty, 50 Tex. 34. Brock v. Southwick, 10 Tex. 65.
* Black V. Eockmore, 50 Tex 88 (on ' Watts v. Miller, 76 Tex. 13 ; Ashe
Paschal's Dig., arts. 4710, 5033, 5494, v. Yungst, 65 Tex. 631 ; Fagan v. Mc-
5497, Act of 1870); Thornton v. Mur- Whirter, 71 Tex. 567; Lacy v. Rol-
rav. 50 Tex. 161. lins, 74 Tex. 566 ; Smith v, Von Hut-
698 EIGHTS OF THE SUKVIVING SPOUSE.
As the husband has disposition of the community, as its
head, while his .equally interested wife is still living, so he as
survivor, on becoming the partner in community existing be-
tween him and the equally interested children, may have the
right of disposal continued by compliance with whatever may
be statutorily required when this power is conferred (such as
filing inventory, eto.).^ His right might be suspended, how-
ever, for homestead purposes or lost by remarriage.* The
general rule is, however, that the homestead benefit is not
lost by remarriage unless there is a statute so providing.'
§ 4. Title Vested in Survivor.
Tinder a statute vesting the homestead wholly and abso-
lutely in the surviving husband or wife, when it has been
carved out of the community property,^ it has been held
that though the dedicated property be above the monetary
limit of five thousand dollars, the surviving spouse may take
the whole absolutely if it was within the limit when selected.'
The rule is different, if the homestead was excessive in value
at the time of the selection.' In the case last cited, it was
said by a dissenting judge that the homestead held to descend
absolutely to the survivor was worth forty-five thousand dol-
lars. He construed the code to limit homestead to five thou-
sand dollars in all cases, and contended that the overplus —
forty thousand dollars — ought to go to the creditors or to
the legal heirs.
ton, 75 Tex. 625. Even in case of a may have been awarded to the wife,
divorce, while the district court de- Roberts v. Mondy, 30 Neb. 685.
ereeing it may dispose of the home- i Johnson v. Taylor, 43 Tex. 121 ;
stead to protect the wife and minor Clark v. Nolan, 38 Tox. 416 ; Cordler
children, it cannot deprive the hus- v. Cage, 44 Tex. 532; Dawson v.
band of his half of the community Holt, 44 Tex. 174; Jones v. Jones, 15
property. Kirkwood v. Domnau, 80 Tex. 147.
Tex. 645. If the divorce is against * Kirkland v. Little, 41 Tex. 460.
the wife, she cannot have homestead ' Miles v. Miles, 46 N, H. 261 ; Nich-
set off to her from the family home- ols v. Purczell, 21 la. 265. See Brig-
stead property belonging to the hus- ham v. Bush, 33 Barb. 596.
band; but, as guardian of minor chil- ■'California Code of Civil Proc,
dren, she may claim their rights. §§ 1265, 1465 ; Estate of Crogan, 92
Hall V. Fields, 81 Tex. 653. If the Cal. 370.
divorced husband still supports the * Estate of Burdick, 76 Cal. 639;
children, he is the head of the family, Cal. Code Civ. Proc, § 1474.
though the custody of the children « lb.. '§ 1476.
TITLE VESTF.D IN SpEVIVOE. , 599
Under a prior law, the widow's probate homestead, carved
out of community property, became hers in fee, only in case
there were no minor children,' but under the articles of the
code above cited she takes absolutely on her husband's death,
and he so takes upon her death.^ As the property is still ex-
empt in her hands, it cannot be sold by foreclosure of a mort-
gage given by both him and her, unless the claim be presented
against his estate within the time allowed for the presentation
of claims.' Either spouse, surviving, may have a homestead
declared on community property which will be exempt yet be
vested absolutely in the survivor.* A homestead, carved from
community property, conveyed to the wife in consideration of
her consenting that it be sold free from her right of homestead
therein, may be sold without rendering the proceeds liable for
the husband's debts.^
Community property was made the homestead. Upon the
death of the wife, the widower remarried ; and upon his death,
the heirs of the first wife had half the homestead accorded to
them, and the other half was decreed to the widow (the sec-
ond wife), for life. Upon her remarriage, and her permanent
removal from the homestead, it was decided that her life
estate in the half -homestead depended upon her occupancy of it.
It was a life-estate determinable by marriage and removal.*
Homestead community property, under a constitutional
provision giving it to the survivor, was held to be taken ab-
solutely, on the death of one spouse, by the other, so that a
widow, thus taking, was not a life-estat^ holder merely. The
property could not be applied to the deceased husband's debts
at her death.' Such property is not reckoned among the as-
1 McKinnie v. Shaffer, 74 CaL 614. of Headen, 52 Cal. 295 ; Mawson v.
The law existing in 1879. Mawson, 50 Cal. 539.
2 Building Ass'n v. King, 8^3 Cal. ^Blum v. Light, 81 Tex. 4l5; 16 S.
440 ; Estate of Ackerman, 80 Cal. 209 ; W. 1090.
Cal. Civ. Code, §1265; Code Civ. « Craddock v. Edwards (Tex.), 17 S.
Proc, §§ 1474-5. W. 228.
'Camp V. Grider. 62 Cal. 20; Boll- 7 Const Texas, art. 16, § 52; Cam-,
inger v. Manning, 79 Cal. 7 ; Building eron v. Morris (Tex.), 18 S. W. 422 ;
Ass'n V. King, 83 Cal. 440. Zwernemann v. Von Rosenberg, 76
* Estate of Ackerman, 80 Cal. 208 ; Tex. 522 ; Childers v. Henderson, 76
Herrold v. Keen, 58 Cal. 443 ; Gagli- Tex. 664. It was held in an early
ardo V. Dumont, 54 Cal. 496 ; Estate case that the survivor became tenant
600 EIGHTS OF THE SUEVIVING SPOUSE.
sets of the decedent's estate. It is not to be adjninistered
or distributed. The order, setting it apart from community
property, does not affect the title. It reserves the property
set apart during the time it is used for homestead purposes,
but the title vests at once.^
The decisions cited in this section seem to have been ren-
dered with reference to community property considered as
property held in joint-tenancy by husband and wife rather
than as community property under the civil law. In an early
case, it was denied that the surviving wife took the homestead
by right of survivorship arising from joint-tenancy, but held
that she took it as property set apart from her husband's es-
tate for the benefit of herself and the children.^
§ 5. Separate Property.
The policy of the homestead laws being to conserve the
family institution for the good of the commonwealth, it would
fall short of this end if protection were not vouchsafed to
a marital survivor with dependent children. Chief Justice
Hemphill, said of a constitutional provision (since superseded),
livhich authorized the protection of the homesteads of families
but was silent as to the rights of the surviving spouse, that
the object would be defeated if property, exempt during cov-
erture, should become liable on the death of husband or wife.'
In his state, the survivor of a marriage holds despite heirs,
creditors or lack of children, under the constitution ; and it is
immaterial whether the title was previously vested in the
survivor or the deceased spouse, or was community property.''
But the survivor cannot successfully claim homestead when
in common with the children of the a statute since superseded. The gov-
deceased. Cooper v. Singleton, 19 erning law, as to the rights of the
Tex. 369. ^ survivor, is that existing at the death
' Estate of Gilmore, 81 Cal. 240 ; of the decedent spouse. Gruwell v.
Estate of HardwicI, 59 Cal. 293; Seybolt, 82 CaL 7; Tyrrell v. Baldwin,
Hari'old v. Reen, 58 Cal. 443 ; Watson 78 CaL 470 ; Johnston v. Savings
V. His, Creditors, 58 Cal. 556 ; Estate Union, 75 Cal. 134.
of Burton, 63 Cal. 36, The homestead 3 Wood v. Wheeler, 7 Tex. 31.
set apart by the probate court may * Eubank v. Landram, 59 Tex. 347 ;
exceed $5,000 in value. Estate of Carter v. Randolph, 47 Tex. 380;
Walkerly, 81 Cal. 579. Bremer v. Wall, 33 Tex. 585.
2 Gee V. Moore, 14 Cal. 473, under
SEPAEATE PEOPEETY.
601
the title of her deceased husband is barred by statute, since
there is no estate to support it.^
By the provision: "The homestead property selected by
the husband and wife, or either of them, . . . shall, upon
the death of the husband or wife, vest absolutely in the sur-
vivor," after the demise of either, the power to mortgage is
in the widow or widower as the case may be. The title is not
changed by the probate court's setting out a homestead for
the benefit of the survivor and the children of the deceased.-
This provision, which declares that property selected by the
husband from his separate property, or by the wife from hers,
shall vest absolutely in the survivor,' does not prevent the
heirs or devisees from taking if, without his consent, property
of his estate be set apart as a family homestead by the court.*
It can be made a homestead only of a limited period.'
said homestead was the sepai'ate
property of the deceased ; and (2) the
declaration of homestead was made
by the deceased himself. Upon these
facts we are clear that the home-
stead vested absolutely in the widow
as survivor, and that the order ap-
pealed from was right. It is impos-
sible for a state of facts to be more
completely covered by a statutory
provision than are the facts in this
case covered by section 1474 of the
Code of Civil Procedure. That sec-
tion provides as follows : ' If the
homestead selected by the husband
and wife, or either of them, during
their coverture, and recorded while
both were living, was selected from
the community property, or from the
separate property of the person se-
lecting or joining in the selection of
the same, it vests, on the death of the
husband or wife, absolutely in the
survivor. If the homestead was se-
lected from the separate property of
either the husband or the wife, with-
out his or her consent, it vests, on the
death of the person from whose
property it was selected, in his or her
heirs, sub.iect to the power of the
1 Smith V. Uzzell, 61 Tex. 220.
2 Estate of Ci'ogan, 93 Cal. 370;
Herrold v. Reen, 58 Cal. 443 ; distin-
guishing between Estate of Headen,
53 Cal. 395, and Rich v. Tubbs, 41
Cal. 34; Estate of Delaney, 37 Cal.
176 ; Taylor v. Hargons, 4 Cal. 268.
»Cal. Civ. Code of Proc, § 1474.
* Id., g 1468.
5 Estate of Croghan, 92 Cal. 870;
28 P. 570. McFarland, J.: "This is
an appeal by certain brothers and
sisters and children of deceased
brothers and sisters of the deceased
from an order setting aside abso-
lutely to the surviving wife a certain
homestead. There is no attack made
on the general validity of the home-
stead in question. It was the family
residence, was not of greater value
than $5,000, a proper declaration had
been made and recorded, and it was
in all respects in law a valid home-
stead. But the contention of appel-
lants is that it should have been set
apart to the widow only for a lim-
ited period, after which it should go,
by operation of law. to the appellants
as heirs. The facts upon which this
contention arises are these: (1) The
602
EIGHTS OF THE SUEVIVING SPOUSE.
As the code vests the homestead absolutely in the survivor,
he or she takes by descent : so there is no necessity for having
the property set apart by the probate court.' Whether the
title vests absolutely or for life, the conditions may be changed
by the death of husband or wife. As it was said under a stat-
ute different from that above noticed : " During the life of the
owner of the fee, the exempt character of the property was
to depend upon the occupancy as a homestead. But, upon his
or her death, a new title is created which vests in the survivor
for life, unconditionally." ^
A statute provides that a homestead shall descend to the
children of a first marriage if there are none by a second,
when the surviving spouse owns a place equal to the home-
stead in value. The term " children " was- construed to ex-
clude grandchildren who had been dependents of the dece-
dent and members of the family. As against them, the sec-
ond wife in her widowhood could claim the homestead while
owning an equally valuable real property.'
Widows have been allowed life-estate homesteads when the
superior court to assign it, for a lim-
ited period, to tlie family of the de-
ceased.' The contentioB is that sec-
tion 1265 of the Civil Code and
section 1468 of the Code of Civil
Procedure are in conflict with said sec-
tion 1474 ; and a good deal of reason-
ing is indulged in by counsel to show
what the rule is when two different
sections of the codes are contradictory,
and irreconcilably conflicting. But
such is not the case here. The clear
and explicit language of section 1474
deals in detail with the very identi-
cal case of a homestead on separate
property, created by the owner of
such property. The legislative mind,
when enacting it, was directed spe-
cially to that particular kind of
homestead; and its intent, thus di-
rectly and clearly expressed, is not
to be taken as changed by other sec-
tions which use general language,
and in which there is no direqt ref-
erence made to a homestead carved
out of separate property by the will
of its owner. All the sections cited,
when read together, clearly mean
that when a homestead has been se-
lected by one spouse out of the sepa-
rate property of the other without
^he consent of the latter, then, upon
the death of the one from whose
property it was selected, it vests in
his or her heirs, subject to the power
of the court to assign it for a limited
period to the family of the decedent ;
but when the selection has been
'from the separate property of the
person selectmg or joining in the
selection of the same,' then it goes
absolutely to the survivor. The cases
cited by appellant do not establish
any other doctrine. Order affirmed."
I Baker v. Brickell, 87 Cal. 329;
Herrold v. Reen, 58 Cal. 445-7.
2Durland v. Seller, 27 Neb. 33;
Neb. Com. Stat., ch. 36, § 17.
3 Peeler v. Peeler (Miss.), 8 So. 892 ;
Miss. Code, 1880, § 1377.
SEPAEATE PEOPEETY. 603
estates of the deceased husbands were solvent,* while they
had absolute title in fee when the estates were insolvent.^
When the estates were solvent, there was distribution among
the heirs on the expiration of the exemption period ; when
not, there was nothing to be distributed among them. If the
homestead has been abandoned, distribution takes place at
once ; if not, half of the community property goes to the heirs
of the deceased, and half to the survivor of the communitj' as
in the civil law,' while all of the separate property of a solvent
decedent is distributable upon termination of the exemption
period of suspension and protection.* The homestead of a de-
cedent is so far removed from his general estate as to be
usually excepted from probate administration.'
Where the surviving wife takes an absolute, fee-simple title
of the homestead held by her late husband,'^ her heirs inherit
it from her, and her husband's heirs are excluded.' If the
homestead was carved from her separate property, and en-
joyed by the family during her life, it does not retain its ex-
empt character as the homestead of the husband and children
after her death.^ The fact of the title being in her does not
prevent the husband from having homestead in it while she is
living,^ and to estate by curtesy, for life, after her death.'"
Property received in exchange for a homestead belonging to
the wife is her separate estate and is not liable for her hus-
1 Singletary v. Hill, 43 Tex. 590. 'Skouten v. Wood, 57 Mo. 380, ren-
'•* HoflEman v. Neuhaus, 30 Tex. 688 ; dered before the amendment.
Green v. Crow, 17 Tex. 180. sKeyte v. Peery, 25 Mo. App. 394.
3 Bell V. Schwarz, 37 Tex. 574; Sos- 9 Kendall v. Powers, 96 Mo. 143.
saman V. Powell, 31 Tex. 665 ; Walker i«/6.; Moore v. Ivers, 88 Mo. 39;
V. Young, 37 Tex. 519 ; Hartman v. Stephens v. Hume, 25 Mo. 349 ; Kyte
Thomas, 37 Tex. 90 ; Magee v. Rice, v. Peery, 25 Mo. App. 894 ; Eeaume
37 Tex. 483 ; Pryor v. Stone, 19 Tex. v. Chambers, 23 Mo. 36 ; Alexander
374 Compare Wright v. Hays, 34 v. Warrance, 17 Mo. 228. Under
Tex. 260. Wagner's Stat (Mo.), 698, § 5, the
* Brewer v. Wall, 23 Tex. 585. homestead was absolutely exempt,
5 Estate of James, 23 Cal. 416 ; Es- not being liable for the debts of the
tate of Tompkins, 12 Cal. 114 ; Carter hustand and father, even after the
V. Randolph, 47 Tex. 379 ; Sossaman death of his widow and the ending
v. Powell, 21 Tex. 665. i of his children's minority. French v.
6 Revised Stat, of Missouri (1879), Stratton, 79 Mo. 560; Canole v. Hurt,
§ 2693. Amended in 1889, § 5439. 78 Mo. 649. See Davis v. Land, 88
Mo. 486.
604 EIGHTS OF THE STJBVIVING SPOUSE.
band's debts; nor is it liable for community debts.' Tbere
may be an exception, in case the wife purposely allowed cred
itors to be deceived and led to trust the husband in the be-
lief that the property was his. On this subject it is said:
'' Honesty and fair dealing require, where the wife permits
her husband to use her money or property as his, own and to
incur obligations upon the faith that the property belongs to
him, that, as against creditors, their rights are superior to
hers." In other words, under such circumstances, the hus-
band's obligations bind the wife.- ' But, even when the wife
knew the husband was making debts on credit gained by
means of her money, only the excess above her homestead
was held liable, though that homestead had been paid for
partly by money borrowed by the husband.^
That the homestead was bought with the wife's money and
was her separate property which her children inherit must
be clearly established by evidence before a second wife can be
denied homestead therein.*
"If the owner of a homestead dies leaving a widow, but no
children, and said widow has no separate homestead in her
own right, the same shall be exempt, and the rents and profits
thereof shall vest in her during her natural life. If the owner
leaves children, one or more, said child or children shall share
with said widow, . . each child's rights to cease at twenty-
one years of age, . . andin caseof thedeathof the widoAV,
all of said homestead shall be vested in the minor children of
the testator or intestate." ' In construing this constitutional
provision, it was said that no provision is made for the surviv-
ing husband as to the homestead of his deceased wife. Her
minor children succeed during their minority. The husband's
'• right to curtesy must yield to the superior right guarantied
to the minor children by the constitution." The court, in ex-
position of the section above cited and quoted, said of the
minor children : " We think that this section was never in-
tended to make their right to occupy the homestead depend
1 Blum V. Light, 81 Tex. 414 ^Swartz v. McClelland, supra.
2Swartz V. McClelland (Neb.), 48 ^4 King t. Gilleland, 60 Tex. 271.
N. W. 461 ; Early v. Wilson (Neb.), '» Const of Ark. (1874), art 9, §6.
48 N. W. 148; Roy v. McPherson, 11
Neb. 197.
widowee's eights in geneeal. 605
on the owner leaving a widow at the time of his death ; and
that the minor children of a deceased owner are solely entitled
to the homestead, during their minority, in all cases where
there is no widow surviving." '
§ 6. Widower's Eights in General.
"Which is superior — the right of tenancy by curtesy con-
veyed to a third person, or the right of homestead in minor
children?
The surviving husband's life estate by curtesy is qualified
by homestead exemption and must yield when there is con-
flict. The legislative purpose, in making the exemption, is to
protect the wife and children rather than the husband and
father; to secure a home for them of which he cannot deprive
them. In only two ways can they be deprived of it ; aban-
donment or release by both husband and wife. The home-
stead right, and that of dower, are equally sacred : so treated
from considerations of public policy. From these premises it
has been inferred that the provision continuing the homestead
right to the family after the death of its head, through the
minority of the children, is paramount to that of tenancy by
curtesy conveyed by the husband to a stranger, when asserted
by the latter against such right of homestead. In other words,
a husband's life estate in the separate property of a first wife,
sold to a third person, is to be postponed to the home right
of a second wife and minor children in the same property.^
Homestead was accorded to the head of a family consisting
of a husband, wife and children. There were two adult
daughters and two minor children. The application was
treated as having been for the benefit of them all — the adults
1 Thompson V. King (Ark.), 14 S. W. children. Wolf v. Wolf, 67 111. 55.
935. This course has been rendered illegal
2 Loeb V. McMahon, 89 111. 487 ; by a statute subsequently passed. Act
Hoskins v. Litchfield, 31 III. 143. See of Illinois, 1871-S, p. 478 : Acts 1877,
Fight V. Holt, 80 111. 84 ; Sontag v. ch. 53, g 1. See Eggleston v. Eggles-
Schmisseur, 76 111. 541 ; Wolf v. Wolf, ton, 73 111. 24 ; Turner v. Bennett, 70
67 111. 55. Formerly, in Illinois, a 111. 263; Fight v. Holt, 80 111. 84:
widower who succeeded his deceased Sontag v. Schmisseur, 76 111. 541;
wife in her estate by curtesy could Deltzer v. Scheuster, 87 111. 301. See
eject an heir occupant, though he the present law. Starr & Curtis' An.
had previously deserted his wife and Stat of 111., pp. 1097-1111.
606 EIGHTS OF THE SrETIVING SPOUSE.
being dependent. When the wife had died and children
grown and married an.d gone, the husband was allowed still
to hold the homestead in behalf of the adult daughter bene-
ficiaries. Upon remarriage he was denied a second homestead
on the ground that the first was still intact.' On the same
principle, an unmarried man who supports his mother and
sisters may have homestead — they constituting his family.^
The head of a family consisting of his wife and a dependent
grandchild under age was recognized as entitled to his home-
stead, after his wife's death, during the minority of the grand-
child.' In some states, if the wife outlive the husband she is
entitled to homestead ; but, if he survive, he is not so entitled
unless he have children.* "Where there are children, the sur-
viving husband holds for them ; or, the surviving wife holds
for them and herself.' Thus the rights of a widower are not
always the same as those of a widow ; they do not depend on
the same conditions.^ His rights, by statute, may be as
sacred as hers ; the following case is an illustration. A tes-
tatrix willed the homestead, her only property (which she
and her husband had long occupied), to be sold and the pro-
ceeds distributed to the legatees named in her will. The sur-
viving husband was entitled to it, nevertheless, as his home-
stead for the period limited by law. This was accorded him,
notwithstanding the fact that the executor had negotiated a
sale of the property prior to the survivor's application for
homestead.' None had been selected and recorded during her
life, but it was the duty of the court to set apart a home-
stead from her estate for the survivor out of her property
when there was no community property,^ or from any real
property suitable for it ; ' and to do this for the husband alone,
when there were no children.*" During the wife's life-time, the
1 Torrance v. Boyd, 63 Ga. 32. « Estate of Wixom, 35 CaL 830 ;
2 Marsh v. Lazenby, 41 Ga. 154. Higgins v. Higgins, 46 CaL 359 ; Rich
'Hall V. Matthews, 68 Ga. 490; v. Tubbs, 41 Cal. 34.
See Hodo v. Johnson, 40 Ga. 439; 6 Allen v. Russell, 39 O. St 336.
Roff V. Johnson, 40 Ga. 555 ; Van ' LahifiE's Estate, 86 CaL 151.
Dyke v. Kilgo, 54 Ga. 551. sCal. Code Civil Proc, § 1465.
4Revalk v. Kraemer, 8 CaL 71; 9 Jji re Sharp, 78 CaL 483.
Gee V. Moore, 14 CaL 476 ; Bowman 1» Code Civ. Proc, § 1468.
V. Norton, 16 CaL 317; Estate of
Busse, 35 CaL 310.
' "widow's eights as to conveyahces. 607
husband could not have had homestead carved from her sep-
arate property without her assent,^ but afterwards the court
could designate it.''
§ 7. Widow's Rights as to Conveyances, etc.
The reservation of life estate in a husband's land deeded by
both him and his wife to a purchaser was treated as a convey-
ance of such estate to the wife so that she, as survivor, was
entitled to it at her husband's death.' By operation of law
the husband's interest in the reservation did not descend to
his heirs but ceased at his demise. Her right to it then did
not preclude that of dower.* If there is no reservation, the
sale of the property by husband and wife (or by either, if
either has the sole right to sell) conveys the homestead.'
It has been held that a quitclaim deed of a widow is no
impediment to the granting of homestead to her out of the
very land she has conveyed.^ She is not estopped by her
deed from applying to have homestead assigned her in the
same realty she has conveyed, it is said. She may have the
price to keep forever, and the land to keep for life. . It would
seem that the character of the deed is not to blame for this;
the estoppel by it is as effective ordinarily as that by war-
ranty deed, as counsel showed in this case.' They supported
by authority the well known doctrine that the right of prop-
erty and of its exclusive possession passes by a quitclaim
deed.^ The court said that the right to a probate homestead
is not the subject of sale and is not an'estate either in law or
equity. This is doubtless true ; yet there must be estate upon
which to hitch the right. The title of the estate of a deced-
ent may be in his heirs, yet his widow's homestead may be
carved upon it. It is not necessary that she should have any
1 Civ. Code, § 1239. « Estate of Moore, 57 Cal. 437.
2 Code Civ. Proc, §§ 1465, 1468. ' Sullivan v. Davis, 4 Cal. 291 ; Car-
3 MoEoberts v. Copeland, 85 Tenn. pentier v. Williamson, 25 Cal. 154 ;
211. Downer v. Smith, 24 Cal. 114 ; Crane
i lb. V. Salmon, 41 Cal. 63, and others.
6 Nichol V. County of Davidson, 8 s Gazley v. Price, 16 Johns. 267 ;
Lea, 389 ; Kincaid v. Burem, 9 Lea, Ketchum v. Evertson, 13 Johns. 359 ;
553; Bilbrey v. Poston, 4 Bax. 232; Potter v. Tuttle, 23 Ct. 513; Kyle v.
Daly V. Willis, 5 Lea, 100 ; Gibbs v. Kavenagh, 103 Mass. 856.
Patten, 3 Lea, 183.
608 EIGHTS OF THE SUEVIVING SPOUSE.
estate in the land, in the sense of title, in order to the probate
assignment of ber life home upon it. But, after these con-
cessions, maj' it not be reasonably asked : Can one have home-
stead laid off to him upon land after he has conveyed it to a
stranger? Or can a widow have her life-home assigned her
by a court upon land which she has owned and conveyed? In
justice to the court rendering the decision, the following ex-
tract from the opinion is given : " The deed of Mrs. Moore is
silent upon the subject of homestead : whatever its effect as a
conveyance, it was no more than to convey the interest in the
property of the deceased, M'^hich she received upon his death,
by succession! A homestead right, or a right to have a home-
stead, is not a right which vests under the law by succession.
It is a right bestowed by the beneficence of the law of this
state for the benefit of the family." •
Husband and wife having conveyed land, and having subse-
quently lived upon it as tenants till his death, she cannot then
take a reconveyance from their grantee so as to set up home-
stead to the prejudice of creditors of the deceased who have
recovered judgment against them prior to the reconveyance.^
§ 8. Relative to Insurance on Homesteads.
Did the interest in a policy of insurance devolve on the sur-
vivor, the owner of the homestead estate, when the home
building was insured, and when loss followed the death of the
insured — the insurance being to him and his legal represent-
atives? "Would the widow and minor children be entitled to
the damages paid on the policy for the loss, and be entitled
to its interest — she for life and they during minority ? This
question has been affirmatively answered in an able decision.'
1 Estate of Moore, supra, p. 443. A Reynegan v. Eevalk, 8 Cal. 76 ; Cook
surviving wife, sued as executrix of v. Klink, 8 Cal. 347 ; Blakey v.
her husband's estate, to foreclose a Newby, 6 Munf. 64. But, though
mortgage given by him, is not af- sued as executrix, if she voluntarily
fected in her right of homestead in make herself a party personally, she
the property proceeded against, by could be bound. Dissenting opinion
the judgment of foreclosure, since in case first cited above. 1 Herman
she vi^as not personally a party to the oh Estoppel, § 94 ; Corcoran v. Canal
action. Building Ass'n v. Chalmers, Co., 94 U. S. 741.
75 Cal. 333 ; Stoops v. Woods, 45 Cal. 2 Berry v. Dobson, 68 Mjss. 483.
439 ; Revalk v. Kraemer, 8 Cal, 65^ 3 Culbertson v. Cox, 29 Minn. 309.
75; S. C, 68 Am. Dec. 308; Van
RELATIVE TO INSURANCE ON HOMESTEADS. 609
The doctrine is that the proceeds of the policy do not go to
the administrator of the deceased as assets of his estate, re-
sulting from a merely personal contract, but to the widow
and minor children who are beneficially interested in the
property. The personal representatives of the deceased who
insured can recover on the policy as their trustee.^ For the
contract of insuriince, though personal in some respects, has
such reference to property that the party to it who is to be
remunerated in case of loss must continue to be the owner of
the insured property in order to retain his right under the ,
contract. When, upon his death, his widow and minor chil-
dren succeed to his insured homestead, the property right is
so far lodged in them that they may claim the insurance
money (in case of loss by fire), instead of the administrator
who would have the only rightful claim were the insurance
contract a purely personal one.
Where no question of homestead right intervenes, and the
estate of the insured is insolvent, it well may be that the ad-
ministrator has the right to the insurance money rather than
the heir, because it must go to pay debts.^
Homestead aside, it has been thought that insurance money
on a fire policy belongs to the personal estate of the deceased
insurer, after loss ; that it has nothing of the nature of realty,
or of a substitute for the consumed property, and therefore
does not go directly to the heir or devisee.^ Much depends
upon the terms of the contract — whether the loss is to be
made up to the insured, " his executors, administrators or as-
signs ; " or to him, " his heirs or assigns."
That the contract of insurance is merely a personal one, not
running with the land, has been held repeatedly.* But home-
stead laws conflict with many ordinary rules of jurisprudence.
The protection ofiomes — the security of shelter for widows
^ lb.; Herkimer v. Rice, 27 N. Y. IVl &W. 10 ; Carpenter v. Providence
163 ; Wyman v. Wyman, 26 N. Y. Iris. Co., 16 Pet 495 ; Columbia Ins.
353. Co. V. Lawrence, 10 Pet. 507 ; Mcln-
2 Wyman v. Prosser, 36 Barb. 368. tire v. Plaisted, 68 Me. 363 ; Cum-
3 Mildmay v. Folgham, 3 Ves. Jr. mings v. Cheshire Ins. Co., 55 N. H.
471. " 457; Carroll v. Boston Ins. Co., 8
* Lynch v. Dalzell, 4 Brown (Par. Mass. 515 ; Etna Fire Ins. Co., v. Tyler,
Cas.), 481 ; Saddlers' Co. v. Badcock, 16 Wend. 386 ; Newman v. Home
3 Atkyns, 554; Powles v. Innes, 11 Ins. Co., 20 Minn. 423.
39
610 KIGHTS OF THE SUEVIVING SPOUSE.
and orphans — would be greatly imperiled if the monfey, stand-
ing in lieu of a family home destroyed by fire, eould not go to
the rebuilding of It for their benefit. The spirit of homestead
legislation favors the saving of such money for them rather
than the passing of it to the administrator to be paid over to
creditors who had no claim on the exempt property destroyed.
A householder had his homestead dwelling-house insured
against fire. The contract is assumed to have been to him,
his executors, administrators and assigns. After his death,
and while his widow and children occupied the insured dwell-
ing, it was burned. A contest arose between her and the ad-
ministrator for the money paid into court by the insurance
company. She won:' the court holding that " the proceeds of
the policy partook of the character of real estate," and that
she was entitled to the same amount of interest in them that
that she had had in the property destroyed ; that is, to the
usufruct for life.^
1 Culberteon v. Cox, supra.
CHAPTEE XX.
THE WIDOW'S HOMESTEAD.
g 1. Characteristics.
3. Ante-nuptial Contract
3. Dower and Homestead.
4. Dower or Homestead
5. The Widow's Occupancy.
§ 6. Relative to Heirs.
7. Relative to Alienation.
8. Money or Realty in Lieu of
Homestead.
9. In General.
§ 1. Characteristics.
The term hvmestead means something different from the
word as hereinbefore defined, when it is used to express the
widow's portion of her deceased husband's estate, distin-
guished from her dower. It is not necessarily a dwelling-
house, not always dependent upon occupancy, not invariably
subject to restraint of alienation. It is allotted by the pro-
bate court, or such court as has jurisdiction to allot it, under
the statute of any state so directing, and therefore does not
need to have been dedicated or set apart besfore. It is not
always consequent upon her husband's having had the ex-
emption right, nor need the court confine itself to property
previously set apart to him, 5r by him, when it is assigning
the widow's homestead, under the law of several states.
There is no reason why a widow, who is the head of a
family, may not dedicate a homestead upon her own real
estate occupied by her as a home, when she has derived none
from her husband. She would be entitled to do this under
any homestead law, but property thus selected and dedicated
by her would not constitute what is understood as "the
widow's homestead." It would be like any other, subject to
the same rules, bearing no analogy to dower, coming under
the common definition. The widow, in establishing such
homestead, would do so as the head of a family. The stat-
utes do not require male headship. It has been held that
the wife of an absconding husband is the head of the family.'
1 State V. Wilson, 31 Neb. 464, Neb. Code, § 521.
612 THE widow's homestead.
The widow's homestead, under the statutes of the different
states, varies much in character. It may be 'compatible with
dower or incompatible ; it may be absolute or conditional ; if
conditional, it may be made dependent on occupancy or
widowhood. It is, in any particular state, just what the stat-
ute there makes it : so no universally applicable definition or
description of it can be given. It presents a much greater
variety of form than the ordinary homestead exhibits : so,
though the latter is in each state what the statute there makes
it, it is more easily defined.
The homestead of a decedent, descending to his Avidow and
children, is not an asset of his estate to be administered ; but
there is often occasion for the action of the probate courts.
§ 2. Ante-nuptial Contract.
The effect of a contract between parties in view of matri-
mony, by which the wife waives her prospective homestead
right, when solely dependent upon statute, necessarily differs
as the statutes differ. On general principles, one cannot cut
himself off by contract from the right to assert legal rights
subsequently arising. Decisions based on statutory provis-
ions and their construction are severaMy pro or con; so an ex-
ample of those favoring the waiver, and one or two of those
denying it, may suffice.
Under a statute which gave homestead to the widow of a
beneficiary in common with his minor children during their
minority, and precluded partition while they were minors
unless she should remarry, and which gave half to her and
^half to them on partition,' it was held that the widow had no
claim to homestead because she had signed it away by her
ante-nuptial contract. Nothing expressly so holding was
found in the statute, but such was the inference drawn by the
court. Admitting that the statute was to preserve a home
for the family against the claims of creditors, the court said
that, when the widow remarries, the children reach their ma-
jority, or the homestead is abandoned, the premises may be
divided precisely as other property. Then (of the claimant
for petition in the case under consideration), the court said
that, in a contract fairly made and for a valuable considera-
1 Comp. Laws of 1879, Kas., ch. 33, 8 5. See Gen. Stat (1889), §§ 2593-7.
ANTE-NUPTIAL CONTEAOT. 613
tion, she had " disclaimed any share she might possibly have in
the future in the homestead, and agreed to take in lieu thereof
the property stipulated for in the contract. This contract
was made in prospect of marriage and as a condition of the
same. The interests and rights she now claims arose wholly
because of the marriage so contracted under those conditions,
and she obtained them subjedt to the express contract she
had voluntarily entered into. . . . We believe the rule
laid down for the division of other property should be applied
to a homestead also when it is to be divided." '
This decision was rendered in view of one in another state
holding the negative position ; and the statutory difference be-
tween the two states was pointed out : the statute above cited
terminating the widow's right upon her remarriage, while that
of the other state made it dependent upon occupancy only.
Turning to the case, we find that waiver by ante-nuptial con-
tract was denied as to homestead while it was upheld as to
dower ; and the principal reason was found in the want of
statutory provision for terminating homestead in that way.
The court enumerates the methods of extinguishment and de-
clares that ante-nuptial renunciation is not one. Public policy
is also assigned as a reason ; and it is doubtless the stronger.^
This reason has been given due prominence by the same court,
in a prior case cited in this, to support the doctrine (stiU
maintained) that homestead cannot be waived by an ante-
nuptial agreement, as that right rests on public policy, while
the dower right does not and may therefore be waived by
such contract.' Suppose, however, the homestead right of the
widow is as strictly personal to herself as her dower right;
that neither minor children's benefit nor the state's interest
in the preservation of homes is involved ; that she takes her
homestead portion as an estate as she does her dower portion:
what reason then exists for differentiating the two rights with
respect to the validity of their ante-nuptial disposition for
>Hafer v. Hafer, 36 Kas. 524. See sPheTps v. Phelps, 72 111. 545. So
same title, 33 Kas. 449. in McGee v. McGee, 91 III. 548, also
2 McMahill V. McMahill, 105111. 596, cited by the court in the McMahill
on the Homestead Act in force in Case. Boyd v. Cudderback, 31 111.
1873, Stat. 111., ch. 53, § 3. Three 119; Jordan v. Clark, 81 111,465.
judges dissented.
61i
consideration received or promised? If, sb^^'n of Gonnection
with minor children, and with the state as an interested party,
the widow pleads (at the time when all heirs are of age) that
she, having taken the consideration, may now repudiate her
marriage contract for her own selfish ends, it would seem that
she ought to be held to the rule governing her waiver of
dower.
The position that only the methods prescribed for the
termination of the homestead right must be followed is doubt-
less right in itself, and has been repeatedly asserted.'
When the law points out the method or methods by which
an acquired homestead may be abandoned, forfeited, relin-
quished or terminated, it does not have reference to contracts
preceding the acquisition: so the waiver in an ante-nuptial
contract, of the prospective right of homestead benefit on the
part of a party about to be married, ought not to be classed
with those methods. The nullity of it is not deducible from
any of the exemption statutes except from their policy and
spirit; and these accord with the 'general principle that legal
rights and remedies cannot be rendered unavailing by stipula-
tion to forego them before they arise. While dower and some
other future interests may be given up for a consideration, it
does not follow that the right of homestead can be bartered
away in advance. The state is an interested party, and its
policy ought not to be defeated by contract between other
parties.
§ 3. Dower and Homestead.
The compatibility of dower and homestead is recognized in
several states. By the statutes and statutory construction of
some, both may be granted on the same land ; of others, on
different lands : that is, the widow may have her homestead
laid off to her, and also have her dower assigned on other
premises of the estate. If dower has been first accorded, to
her, that is, no bar to the allomont of homestead ; or if
homestead has been assigned to her, she may yet claim dower,
1 Beavan v. Speed, 74 N. C. 548; pective wife agreed to accept certain
Abbott v. Cromartie, 72 N. C. 299; sums in full for "dower" and for
Kingman v. Higgins^ 100 111. 319; services "rendered," she was held
Black V. Lusk, 69 111. 70. By an ante- concluded as to homestead. Ditson
nuptial contract in which the pros- v. Ditson (la.), 52 N. W. 203.
DOWBB ASD HOMESTEAD. 615
under the last mentioned policy. Since dower is for the
widow only, while homestead is not always exclusively for
her, but usually for the minor children too, the one is not in-
consistent with the other.*
On the death of a husband, the allotment of homestead to
his widow involves no question of title. It is merely a sepa-
ration of the exempt land from that which is subject to ad-
ministration.^ It does not raise 1>he question of title any more
than does the laying off of the widow's third. But her right
to have such allotment made may be questioned, so that her
title to any homestead at all, or to any-in the particular land
in which she claims -it, may be disputed by either heirs or
creditors. The legality of the decedent's title is not involved
in the separation of his real estate into the part to be adminis-
tered by the executor or administrator, and the part exempt
as the widow's homestead.
"Where the right to dower and that' to homestead are dis-
tinct, a widow may claim and receive both without inconsist-
ency. The two differ in several respects. Dower is for life,
while homestead may endure only during her widowhood.
Dower may be sold to anybody, while the homestead right can
be alienated to no one but the owner of the fee. "Were both
homestead and dower to be laid off on the same land, and the
homestead quantity overlap the portion carved out as dower,
the excess would not be affected in character. It would still
remain dedicated to the support of the widow and children.'
"Where, in addition to her estate of homestead, the widow is
entitled to dower out of her husband's entire estate,* if the
whole is not sufficient to give her the full extent of the home-
stead allowed by law, she is entitled to all that remains after
having received her dower.' But by taliing one-third of the
1 McCuan v. Turrentine, 48 Ala. 70 ; Wallace v. Harris, 32 Mich. 380
Jordan v. Strickland, 42 Ala. 315 ; West Eiver Bank v. Gale, 42 Vt. 37
Chisholm v. Chisholm, 41 Ala. 327. Buxton v. Dearborn, 46 N. H. 43
See Hudson v. Stewart, 48 Ala. 206 : Perkins v. Quigley, 62 Mo. 498 ; Bresee
Thornton v. Thornton, 45 Ala. S74. v. Stiles, 22 Wis. 120 ; Merriman v.
2 Coffey V. Joseph, 74 Ala. 271. See Lacefleld; 4 Heiak. 322.
Cochran's Adm. v. Sorrell, 74 Ala. ^Cowdrey v. Cowdrey, 131 Mass.
310. 186.
3 Showers v. Robinson, 43 Mich. • ^ Meroier v. Chace, 11 Allen, 194 ;
503, 511; Dei v. Habel, 41 Mich. 88; Monk v. Capen, 5 Allen, 146.
616 THE widow's homestead.
income of the whole estate instead of having dower laid off,
and then selling her right to it, she was held to have waived
her homestead right.' However, the assignment of dower to a
widow consisting of specified rooms in the dwelling-house,
parcels of land and rights of way over other parts of the bouse
and other land, was held not to render her a tenant in common
with the legal heir of her deceased husband, so as to deprive
her of homestead.- If the law gives the widow a designated
sum from her husband's estate, it does not therefore deprive
her of dower.'
The wife's alienation and the widow's are held subject to
different rules. While the latter cannot sell her homestead as
above stated, the former can expressly release her right in a
mortgage given by the husband on their homestead.* While
the widow cannot alienate, she can abandon her individual
rights in her homestead by ceasing to occupy it, wherever oc-
cupancy is essential to its maintenance. While the widow
cannot sell her personal right of quarantine, it may be for-
feited or abandoned. A widow conveyed her dower interest
and removed from the homestead. It was held, in exposition
of the governing statute, that the grantee was entitled merely
to the gains and profits which she would have had if she had
left the homestead without conveying her dower interest.'
To this reason, another has been added : that the statute giv-
ing homestead does not provide that it shall be in the place of
1 Bates V. Bates, 97 Mass. 393. widow has been allowed dower with-
2 Weller v. Waller, 131 Mass. 446, out contributing to the payment of a
on Stat of 1855, ch. 238. mortgage on the estate, if the ad-
3 The Statute of Mass. (1880), ch. 311, ministrator redeems the property by
§ 1, allows the widow of an intestate applying assets of the estate to that
$5,000 worth of real estate in fee. pui-pose. Norris v. Morrison, 45 N. H.
This is not in lieu of dower. Klliot v. 498 ; Norris v. Moulton, 34 N. H. 392,
Elliot, 137 Mass. 116. The assignment 399; Woods v. Wallace, 30 N. H. 384 ;
of dower does not affect the estate of Hastings v. Stevens, 29 N. H. 564 ;
homestead, in Massachusetts. Weller Rossiter v. Cossit, 15 N. H. 38 ; Eob-
V. Weller, 131 Mass. 446 ; Paul v. inson v. Leavitt, 7 N. H. 103 ; Cass v.
Paul, 136 Mass; 286 ; Cowdrey v. Martin, 6 N. H. 25.
Cowdrey, 131 Mass. 186 ; Bates v. * Swan v. Stephens, 99 Mass. 9.
Bates, 97 Masa 892; Silloway v. 5 Ala. Code, g§ 1892, 1900, 2543;
Brown, 12 Allen, 30 ; Meroier v. Norton v. Norton (Ala.), 10 So. 436 ;
Chace, 11 Allen, 194 ; Monk v. Capen, Barber v. Williams, 74 Ala. 331.
5 Allen, 146. In New Hampshire the
DOWEE AND HOMESTEAD. 617
dower.' The widow's right to homestead, when accorded by
law, is much like that to dower, with respect to a devise by
heir husband. If the devise is in lieu of either, the intention
of the testator must be so expressed. Doubt will be con-
strued in favor of according her the dower or homestqad (or
both), in addition to the devise.^ The widow may have home-
stead, after dower out of the same lands has been accepted by
her ; ' yet if her homestead is greater in value than her dower,
the latter has been held to be waived by the acceptance of the
former. If less, she is entitled to the difiference, which may
be set off to her in another part of the landed estate.* The
homestead must be set off before the dower, so as to ascertain
what amount remains to be assigned as dower. One proceed-
ing may suffice for having both assignments ordered.* Be-
fore any estate of dower has been set apart to the widow, she
may have homestead in the realty which is afterwards so set
apart.'
Dower and homestead being recovered by a widow at her
own suit, she should contribute, in the proportion which the
value of her life interests therein bears to the fee, towards re-
imbursing the opposite party for removing incumbrances.'
But would this rule apply when her homestead and dower are
upon the same property? And when the dower is not iden-
tical with the homestead but is laid out upon other realty,
should she contribute if the acceptance of it is a forfeiture of
the homestead benefit ? *
A wife's right of dower and homestead may be transferred
from one piece of real estate to another. It is held that " a
wife who releases her right to homestead and dower in the
family home, in consideration of being paid an adequate share
of the purchase-money, is reinvested with such rights upon
1 Chaplin y. SaWyer, 35 Vt. 390 ; 3 Gragg v. Gragg, 65 Mo. 343. See
Do'ane v. Doane, 38 Vt 649 ; West Seek v. Haynes, 68 Mo. 13.
River Bank v. Gale, 43 Vt. 37. Mis- * Bi-yan v. Rhoades, 96 Mo. 4b5.
souri formerly followed Vermont. ^ lb.
sWten V. Wood, 57 Mo. 380; Gragg «Murdock v. Dalby, 13 Mo. App.
V, Gragg, 65 Mo. 343. 41.
2 In Vermont, both. In re' Hatch's ' Selb v. Mabee, 14 Brad. (III. App.)
Estate, 63 Vt 300 j many cases cited, 574. See Selb v. Montague, 102 111.
Tj-ler,.J. 446.
8 Walker v. Doane. 108 HI 83a
618 THE widow's HOMESTEAD.
the application of such share in part payment of a new one."*
Both rights are based on public policy and r -e equally sacred.'
But the widow's homestead right, coupled with that of her
minor children, is so hedged in that she cannot dispose of it
(nor can any other holder of such right), without compliance
with all the legal requisites for the alienation of homesteads.'
A widow, entitled to both homestead and dower in the de-
cedent's land, on which she had removed an incumbrance by
payment, was not subrogated to the entire right of the prior
holder of the incumbrance. Her interests in the estate should
bear their share of the obligation. If the whole landed estate
of the deceased was worth no more than a thousand dollars
(the homestead limitation), and the widow was entitled to
both homestead and dower, the latter is subject to the former.
"So much of the widow's dower as is represented in the
homestead is not assigned her, but is in abeyance until the
homestead estate is extinguished ; and, when that occurs, the
right of aption revives." *
§ 4. Dower or Homesterd.
Homestead and dower are incompatible in several states.
The widow may be required to elect which she will accept.'
She may enjoy the homestead benefit till her dower is as-
signed.^ Even where entitled to both on the same land, she has
1 Nance v. Nance, 28 111. App. 587. man v. Will County Bank (111.), 29 N.
SHoskins v. Litchfield, 31 111. 143; E. 1090.
Loeb V. McMahon, 89 IlL 487 ; Regan 5 in Florida, the widow elects,
■V. Zeeb, 28 Ohio St 483. whether to accept dower or home-
3 Abbott V. Cromartie, 73 N. C. 292 ; stead, when the estate is testata
McAfee v. Bettis, 72 N. C. 29 ; Little- Brokaw v. McDougall, 20 Fla. 212.
John Y. Egerton. 76 N. C. 468. See But is restricted to dower, when
Watts V. Leggett, 68 N. C. 197 ; War- children also survive the decedent,
ner V. Crosby, 89 111. 320 ; Beecher v. and the exemption inures to their
Baldy, 7 Mich. 488 ; Dye v. Mand, 10 benefit, if the estate be intestate.
Mich. 291. Wilson v. Fridenburg, 19 Fla. 461.
* Jones V. Gilbert (111.), 25 N. E. 566. In Mississippi it was held that when
Merritt v. Merritt, 97 111. 243, distin- the estate is intestate, and the de-
guished. The foreclosure of a mort- ceased husband was childless, the
gage by sale under a decree, and the widow could not have half the es-
satisfaction of the lien by application tate and her homestnad in addition ;
of the proceeds to that purpose, does but half, including the homestead,
not deprive the mortgagor's wife of Glover v. Hill, 57 Miss. 240.
her eventual dower in the land. Dill- « By the -Arkansas constitution of
DOWEE OE HOMESTEAD.
619
been denied homestead when her dower had been laid oflP in
other land of her husband's estate.*
By the provision of a constitution, the wife 's homestead
right is merely that of preventing her husband's sole disposal
of the home. By a statute thereunder, she is entitled to
dower, at his death, out of his lands, not excepting his home-
stead. His heirs inherit their portions with the exempt char-
acter attached. The widow has only dower if the estate is
intestate and there are children.^ "Where the insolvency of ;
the estate is necessary to the assignment of homestead to the
widow and minor children, solvent estates go directly to the
heirs and the widow has her dower only."
Though hopaestead was subject to dower, but not in addi-
tion to it, it was yet decided that the widow might apply for
homestead for the children, while she had her own dower as-
signed.* Under a statute allowing her a year's support from
the estate, and those giving dower and homestead, it was held
that these benefits could not be cumulated.' But, if she choose
1868, the widow had a right in the
rents and profits of her deceased hus-
band's homestead so long as she had
no homestead in her own right When
her dower was laid ofiE and assigned
her, the right in the homestead ceased.
Const. (1868), XII, 4 ; Mansf. Rev. St
§§ 2587-8 ; Padgett v. Norman, 44 Ark.
490 ; Trimble v. James, 40 Ark. 393 ;
Mock V. Pleasants, 84 Ark. 63. She
has possession of the principal resi-
dence, though not necessarily occu-
pying it till dower is assigned. Car-
nail V. Wilson, 21 Ark. 62.
1 In Illinois it has been held that
the acceptance of dower by a widow
in other lands than the homestead is
a relinquishment of homestead; in
exposition of the Dower Act, sec.
37, Rev. Stat (1874), ch. 11. Walker
V. Doane, 108 111. 236. Homestead
and dower rights maj' both exist in
the same real estate. Peyton v. Jef-
fries, 50 111. 148; Walsh v. Reis, 50
111. 477 ; Bursen v. Goodspeed, 60 111.
381. The widow is not entitled to
both homestead and dower, laid ofiE
sepai-ately in her late husband's es-
tate. Knapp V. Gass, 63 111. 492. But
the acceptance of a sum in lieu of
dower, and the subsequent sale of
the land, at the widow's instigation,
subject to its liability for this sum,
cut her off from homestead as against
the purchaser. Wright v. Dunning,
46 111. 273.
2 Wilson V. Fridenburg, 19 Fla. 461 ;
Const Fla., art 10, § 1 ; McClellan's
Dig. pp. 538-9. The widow's dower
extends to the right of way granted
by her late husband to a railroad
company, though no homestead has
been set off to her, it is held. Ven-
able V. Wabash R'y Co. (Mo.), 19 S.
W. 45.
3 Zoellner v. Zoellner, 53 Mich. 630 ;
Const Mich., art 16, § 2 ; Howell's
Stat, g 7721.
^Adams v. Adams, 46 Ga. 630 ; Rob-
son V. Lindrum, 47 Ga. 353.
5 lb.; Singleton v. Huff, 49 Ga. 584 ;
Roff V. Johnson, 40 Ga. 555 ; Blassin-
game v. Rose, 34 Ga. 418.
620 THE widow's homestead.
homestead under an unconstitutional statute, she may yet
claim dower when that has proved unavailing.'
Where the homestead goes to the surviving spouse for life,
who elects to take it instead of the distributive share of the
estate that would otherwise be his or her portion,^ jt has been
decided that a widow cannot have both dower and homestead,
but may elect.' She may have a third of her late husband's
real estate set off to her in fee as her distributive share, or
! she may take the homestead for life in lieu of it.* Her elec-
• tion to take the latter is not inferable from the fact that she
has retained the family residence for a brief period after her
husband's death.'
A widow, entitled to dower in land constituting the home-
stead of her husband at the time of his death, or set aside as
homestead after his death, cannot be disturbed in her posses-
sion of it when it has been legally assigned to her as dower.
She may hold it for life against the heirs.^ The rights of the
heirs remain in abeyance till her death.'
If the land is within the quantitative limit, and not within
a municipal corporation, the heirs may recover what has not
been assigned as dower — the land having been the actual
family homestead of their father at the time of his death.
The administrator has no right of possession as against them.
Their right is not dependent upon the filing of a description
of the homestead for record, bj'^ their father. His right to
the homestead acreage exempt was inherited by them. As to
any excess of this acreage and of the dower, an administrator
may be called to settlement by the heirs, and be required to
turn over the estate after settling claims against it.*
If the provision made for the widow, in her husband's will,
is inconsistent with the homestead estate to which she is en-
' Page V. Page, 50 Ga. 597. 478, qualifying McDonald v. McDon-
2 McClaiD'sIowaCode,'g§ 3163-3185. aid, 76 la. 137, and distinguishing
3 Buttevfield v. Wicks, 44 la. 310 ; Mobley v. Mobley, 73 la. 654.
Meyer V. Meyer, 23 la. 859. When "Wilson v. Fridenburg, 19Fla. 461;
the widow's only right of possession same title, 21 Fla. 386 ; Fla. Const of
was under the law of dower, she 1868.
could not claim possession by home- ' Baker v. State, 17 Fla. 406; Wil-
Btead right. Cavender v. Smith, 8 son v. Fridenburg, 19 Fla. 461.
la. 360. 8 Barco v. Fennell, 24 Fla. 378, sus-
* Iowa Code, g§ 2007-8, 2440. taining the foregoing decisions.
'Egbert v. Egbert (la.), 52 N. W.
THE WIDOW S OCCUPANOT. 621
titled by law, and she elects to take under the will, she cannot
have homestead under the statute.' A widow, by remarry-
ing, may lose her homestead, yet retain her dower right in it.^
§ 5. The Widow's Occupancy.
The widow may be entitled to the possession of the home-
stead, though not necessarily occupying it by living upon it.
or making her home thereon. It need not be her place of
residence, even constructively, under feome provisions of law,
while she is legally the possessor, and may enjoy the rev-
enues till dower has' been assigned her, or till she has obtained
a home in her own right, or till her widowhood has ceased,
or till her right has been terminated by death — according to
different provisions under different homestead systems. The
point is that she may have such right and possession without
occupancy.' Such right and possession, without ownership or
actual occupancy, carries with it the legal ability to sue and
recover for damage done to her interest in the homestead.*
The requirement of occupancy by the widow, as a condi-
tion to her enjoyment of the homestead, is made in some of
the states.* The position of the widow-occupant is set forth
at length in a decision* under a statute which gives her the
1 Stunz V. Stunz, 13* 111. 310 ; Cow- sion of Hunter, 13 La. An. 257 ; Hicks
drey v. Hitchcock, 103 III. 363 ; Van- v. Pepper, 1 Bax. 42 ; Johnson v.
zant V. Vanzant, 38 III 485. Gaylord, 41 la. 366 ; Orman v. Or-
2 Bresee v. Stiles, 33 Wis. 120. man, 26 la. 361. '
' Davenport v. Devenaux, 45 Ark. ^ Fore v. Fore's Estate (N. D.), 50
341 ; Carnall v. Wilson, 31 Ark. 62 ; N. W. 713. After discussing other
Benaugh v. Turrentine, 60 Ala. 557 ; points, the court, through Bartholo-
McClurg V. Turner, 74 Mo. 45 : Gor- mew, J., said : " The respondent con-
ham V. Daniels, 33 Vt. 600 ; Burk v. tends that upon the husband's death,
Osborn, 9 B. Mon. 579; Clark v. hia widow surviving him, and he
Burnside, 15 111. 63 ; McReynoIds being seized in fee of the land then
V. Counts, 9 Gratt. 343 ; Brown v. occupied by himself and his family
Brown, 83 Miss. 39 (Miss. Stat, of 1865). as a homestead, and dying intestate,
* Gilbert v. Kennedy, 32 Mich. 5 ; the fee to the homestead goes to his
Foster v. Elliott, 33 la. 316 ; Daven- heirs at law, under the statute of de-
port V. Devenaux, 45 Ark. 341 ; Ben- scent; but that the homestead right,
tonville R. Co. v. Baker, 45 Ark. 253 ; including the right to possession,
Cooley on Torts, 336. whether the husband died testate or
5 Carter v. Randolph, 47 Tex. 376 ; intestate, survives, and passes to his
Runnels v. Runnels, 37 Tex. 519 ; widow, to be enjoyed by her so long
O'Dooherty v. McGloin, 25 Tex. 72 ; as she continues to occupy the prem-
Oreen v. Crow, 17 Tex. 180 ; Succes- ises as a homestead. Appellant takes
622
THE WIDOW S HOMESTEAD.
right of occupancy of the entire homestead of her husband,
who was seized in fee of his homestead. She can enjoy the
exempt property only on condition that she continue to main-
tain her home thereon ; and this, whether she lives in widow-
issue upon tlie last proposilvon, and
claims that the homestead right of
the widow, including the possession
and usufruct, ceases and determines
at the final settlement and distribu-
tion of the estate. The decision of
the issue involves a construction of
that portion of the statute which
reads: 'Upon the death of either
husband or wife, the survivor may
continue to possess and occupy the
whole homestead until it is other-
wise disposed of according to law.'
This ... was taken from the
statutes of Iowa. . . . Code Iowa,
§ 3007. The context, however', was
changed to conform to our diflfferent
policy. In Iowa, the next following
section (2008) provides that the
'setting ofE of the distributive
share . . . shall be such a dis-
posal ... as is contemplated in
the preceding section. But the sur-
vivor may elect to retain the home-
stead for life in lieu of such share in
the real estate of the deceased.' The
distributive share thus spoken of is
one-third in value of all the legal ol:
equitable estate possessed by the de-
ceased at any time during marriage,
and which has not been sold on ju-
dicial sale, and to which the survivor
has relinquished no rights. See Id.,
g 3440. And this share is not affected
by will, unless the survivor consents
thereto. Id., § 3453. There is noth-
ing in our law coi-responding with
sections 3008, 3440 and 3452 of the
Iowa Code. Under those statutes
the right of the survivor to possess
and occupy the homestead for life
has been repeatedly declared. Floyd
V. Mosier, 1 Iowa, 513; Burns v.
Keas, 31 Iowa, 357 ; Size v. Size, 24
Iowa, 580 ; Meyer v. Meyer, 23 Iowa,
359 ; Butteraeld v. Wickg, 44 Iowa,
310; Mahaffy v. Mahaffy, 63 Iowa,
55, 18 N. W. Eep. 685. And it has
also been held that during such oc-
cupancy the heirs cannot interfere
therewith, nor claim partition. Nich-
olas V. Purczell, 31 Iowa, 265 ; Dodds
v. Dodds, 36 Iowa, 311. But it has
also been held that such occupancy
Qannot be claimed in addition to the
distributive share. Meyer ,v. Meyer,
supra; Butterfield v. WickS, supra;
Smith V. Zuckmeyer, 53 Iowa, 14, 3
N. W. Rep. 783. The survivor holds
this distributive share exempt from
the debts of the decedent Mock v.
Watson, 41 Iowa, 344: Kendall v.
Kendall, 43 Iowa, 464; Thomas v.
Thomas, 73 low/, 657, 35 N. W. Eep.
693. The supreme court of Iowa,
under these statutes, hold that, while
the survivor i§ entitled to occupy the
homestead for a reasonable time in
which to make a selection between a
life estate in the homestead and the
distributive share provided by law
(Cunningham v. (gamble, 57 Iowa,
46, 10 N. W. Rep. 278), yet continued
occupancy of the homestead will be
held an election to take the home-
stead for life. Conn v. Conn, 58
Iowa, 747, 13 N. W. Rep. 51 ; Butter-
field V. Wicks, supra; Holbrook v.
Perry, 66 Iowa, 386, 33 N. W.^ 671.
By section 3455, Code Iowa, it is pro-
vided that, if the intestate leave no
issue, one-half of his estate shall go to
his family and the other half to his
widow. In Burns v. Keas, supra, it was
held that in such case the widow takes
one-third as her distributive share
and one-sixth as heir ; and in Smith
V. Zuckmeyer, supra, it is held that
THE WIDOW 8 OCOUPANOT.
623
hood or remarries. This right of occupancy she is entitled to
enjoy as surviving spouse, against the heirs and devisees of
the deceased.
While a widow has her household furniture stored in her
home, she cannot be treated as a non-occupant.* But her re-
moval terminates her homestead right when she does not re-
tain such hold of her house, even though abandonment is not
intended by her.^ Though the homestead be in excess of the
statutory limitation, the widow may hold it all till partition
made between the exempt and the liable portions.'
A husband and wife lived three years on their homestead,
then sold it, — she expressly relinquishing her dower right.
Both voluntarily surrendered the premises. Upon his death,
she could not maintain a writ of entry to recover the property.*
A beneficiary in occupancy of her homestead with her see-
in such case, where the survivor
elects to hold the homestead for life,
h© thereby surrendered the one-third
or distributive share only, and that,
as to the f ractiqn vchieh he took as
heir, it was not affected by his con-
tinuous possession of the homestead."
After an extended exposition of the
North Dakota homestead statute, the
court concluded : " Keeping in mind
the entire statute and the undoubted
policy of our laws, it seems clear
that the purpose of this law is that,
upon the death of the husband and
father, the widow should continue
to possess and occupy the homestead
with the children, during her . entire
life, if she so. elect, and upon her
death the children may continue so
to possess and occupy the homestead
until the youngest child becomes of
age, so that at no time, until the
youngest child reaches the period
when the law declares him able to
care for himself, shall this family be
without a home, or — in case the
homestead be a farm — without the
means of obtaining a livelihood. But
this occupancy, either of the surviv-
ing widow or children, would be ter-
minated by any disposition of the
homestead according to law, as here-
inbefore indicated. In view of the
facts of this case we deem it proper
to add that the statutes will be
searched in vain for any intimation
that the widow's rights as survivor
are affected in any manner by the
absence of issue or bj' the fact of a
second marriage. This last point is
directly ruled in Nicholas v. Purczell,
supra. To the point made by appel-
lant that a homestead interest cannot
attach to property owned in common,
we reply that such is the case only
where the common ownership is
prior in point of time to the initiation
of the homestead right. In this case
the homestead right existed before
descent cast It existed in the life-
time of the decedent, and he was
powerless to destroy it The subse-
quent ownership in common of the
fee cannot affect the prior right"
1 Brettner v. Fox, 100 Mass. 334.
2 Paul v. Paul, 136 Mass. 286 ; Fos-
ter V. Leland, 141 Mass. 187.
3 Parks V. Eeilly, 5 Allen, 77.
* Foster v. Leland, 141 Mass. 187.
624 THE widow's homestead.
ond husband cannot be ejected under a judgment against her
first husbaJid from whom she derived the homestead, — who
had title claim.'
Upon their father's remarriage, his children lived with him
and their step-mother till his death, and then ceased to be
members of the family. A homestead was set apart by the
county court for the widow and her children by him. She
married again, and removed to another county, intending not
to return unless compelled to do so by unavoidable circum-
stances, but she acquired title to no other home. Under these
circumstances, the first set of children were denied partition
of the homestead which had been acquired by their father's
separate means.^ Not only occupancy but continued widow-
hood is required in several states for the retention of the
homestead ; ' but the remarriage of a widow does not affect
her right of homestead in the estate of her first husband, as
an invariable rule.*
The widow and heirs of the occupant of a homestead may
hold it as tenants in common till partition, though it be in ex-
cess of the statutory limitation. Should the administrator
sell the inheritance to pay debts of the deceased, the pur-
chaser, taking the place of the heirs in relation to the widow,
becomes a tenant in common with her in the homestead
estate.^ If the widow has a homestead estate in the equity
of redemption, the purchaser cannot defeat it by buying a
certificate of purchase given on a sale to execute a judgment
of mortg ige foreclosure • — the mortgage having been executed
by both the deceased husband and his wife with homestead
release by her — and by taking a master's deed for the land,
while he and the widow of the deceased are tenants in com-
mon in the homestead estate. The position of the two is this :
He holds his subsequently acquired title in trust for the estate
iMorrissey v. Stephenson, 86 III. §§ 1-4; Howell's Annot Stat of
344. Mich., § 7721 et seq.; Const Nor.
2p'oreman v. Meroney, 63 Tex. 723. Car., art X, § 3; S. & B.'s Stat of
a § 5437 of Ohio Rev. Stat was Wis., § 2271, p. 1818. There are like
amended June 33, 1889, so that home- provisions in some other statutes, but
stead continues " so long as the these will suffice for illustration,
widow, if she remains unmarried, * Miles v. Miles, 46 N. H. 261 ;
resides thereon." Ohio Gen. Laws, Yeates v. Briggs, 95 111. 79.
1889, p. 6 ; Const Michigan, art XVI, » Montague v. Selb, 106 III. 49.
RELATIVE TO HEIRS. 625
in common; she, by paying her part of what he gave for it,
may avail herself of an equal interest with him. For one co-
tenant cannot purchase an outstanding title, interest or incum-
brance to the prejudice of another one. The purchase will be
deemed to inure to the common benefit, though not so de-
signed by the purchaser. This rule applies whether title
accrues under an instrument or by operation of law, because
it rests on the mutual duty of co-tenants.' ^
The inchoate right of homestead becomes a vested one
when it is set out in specific property. The widow's right
thus assigned is an estate for life, and it does not depend upon
her occupancy of the premises. It is much like dower. She
may sell her estate in either.^ "When the homestead is a life
estate, the reversion may be levied upon.' But her right,
whatever its duration, holds good against her late husband's
heirs, grantees and creditors.*
§ 6. Relative to Heirs.
Heirs at law may have their rights assigned, in the estate
of the deceased owner of a homestead, subject to the rights
of the widow and those , specially appertaining to minor co-
heirs by reason of their minority, wherever the law grants
exemption provisions to' widows and minors in such sense as
not to render the homestead right an estate. "When not an
estate, it yet secures the privilege of possession and enjoy-
ment against creditors : not against lawful heirs. The pur-
pose of the homestead provision is to protect against execution
for debt : not against a partition of the decedent's estate. Leg-
islation would be necessary, beyond the mere exemption pro-
vision, if partition among heirs is to be inhibited.'
iJb. she own land in her own right
2 Lake v. Page, 63 N. H. 318 ; Gen. Nichols v. Nichols, 62 N. H. 621. On
Stat, ch. 138, § 1 ; ch. 203, § 2. For- the death of a wife leaving no minor
merly, occupancy was essential on children, or on completion of the
the part of the widow. Judge of children's minority, the husband sur-
Probate v. Simonds, 46 N. H. 363; viving is entitled to the homestead
Norris v. Moulton, 34 N. H. 392. they have enjoyed. N. H. Gen. L.,
' Cross V. Weare, 62 N. H. 135. ch. 138, §§ 1, 5, 6 ; Squire v. Mudgett,
* Gen. Stat of N. H., ch. 124, § 1 ; 61 N. H. 149.
Bachelder v. Fottler, 62 N. H. 445, » Patterson v. Patterson, 49 Mich.
overruling Spaulding's Appeal, 52 176; Robinson v. Baker, 47 Mich.
N. H. 336. She is so entitled though 619 ; Turner v. Bennett, 70 111. 263.
40
626
THE WIDOW S HOMESTEAD.
If the exemf tion is given only to affect creditors, heirs may
claim not only the partition of the decedent's estate, but also
have the homestead itself divided. But adult heirs cannot
disturb the widow who is in possession of the family resi-
dence during the pendency of the estate's administration.
They may take means to expedite the probate proceedings
and settlement of the estate when such course becomes neces-
sary to prevent unreasonable delay. But the right to claim
partition does not imply the right to disturb the possession
granted to the widow and minor children under the home-
stead-protection legislation and constitutional provisions.'
Probate courts have original jurisdiction, in may states, in
adjusting the rights of widows and children relative to home-
stead when the administration of the estate involves those
rights ; in making allotment of homestead when none was set
apart by the decedent, and the like.^
Compare Eggleston v. Eggleaton, 78
IlL 24 ; Sontag v. Schmisseur, 76 III.
541 ; Fight v. Holt, 80 III. 84. But
see, on this subject, Freeman on Co-
tenancy, § 60 ; Nicholas v. Purczell,
21 la. 265; Dodds v. Dodds, 26 la.
311; Hoffman v. Neuliaus, 30 Tex.
683. And see, in states where the
widow has the fee in a homestead,
Doane v. Doane, 83 Vt. 652 ; Day v.
Adams, 43 Vt. 517; Estate of De-
laney, 37 Cal. 180. The constitu-
tional provisions of Michigan, which
give the homestead right, are "ex-
emption provisions strictly, and give
the right only as against creditors.
In that respect, they differ frojn pro-
visions existing in some other states.
In Massachusetts, the widow's home-
stead right is not only entirely inde-
pendent of any question of indebted-
ness, but she is by statute expressly
empowered to sell and convey it.^ It
is not therefore a mere right to oc-
cupy, but an estate. Mercier v. Chace,
11 Allen, 194; Monk v. Capear, 5
Allen, 146. In New Hampshire the
statute expressly gives a homestead
to the widow as against heirs as well
as creditors. Spaulding's Appeal, 52
N. H. 336. In Vermont, the home-
stead passes by statute to the widow
and children ' in due course of de-
scent.' Keyps V. Hill, 80 Vt 760, 76a
In Iowa, by statute, ' upon the death
of either husband or wife the sur-
vivor may continue to possess and
occupy the whole homestead until it
is otherwise disposed of according to
law.' Nicholas v. Purczell, 21 la-
265; Dodds v. Dodds, 26 la. 312.
And see Eustache v. Eodaquest, 11
Eush, 43. No one can fail to see
that these provisions differ essen-
tially from those contained in the
constitution of this state; and, as
was said in Eobinson v. Baker,
supra, the statutes have not en-
larged the right in this particular."
Opinion by Judge Cooley in Patter-
son V. Patterson, 49 Mich. 176. All
the justices concurred.
1 Patterson v. Patterson, 49 Mich.
176. A widow was held to have
waived her right by failing to claim
the benefit of partition. Chilson v.
Beeves, 39 Tex. 276.
^Dolan v. Dolan, 91 Ala. 153;
RELATIVB TO HEIEB. 627
A widow bronght an action in ejectment and introduced
■probate court proceedings setting apart to her one hundred
and sixty acres of land, as her homestead, out of two hundred
and forty of which her husband died possessed, which he had
occupied as his homestead, and which she, in the probate!
court, had alleged to not exceed in value one thousand dol'
lars — the monetary limit in her state. On appeal, the su-
preme court said that the probate court had iio jurisdiction ;
that it is only where the real property left by the decedent
does not exceed in amount one hundred and sixty acres that
such court can order the widow's homestead. The reason is
that in such case there is no need of selection, and, prima
facie, no occasion for contest on the part of creditors, heirs,
devisees or others interested in the estate subject to adminis-
tration.' When the homestead exceeds the monetary limit,
the widow may select other land ; and the heirs cannot deny
her the right of homestead because the value is excessive and
also deny her the right to select other land to the allowable
amount.^ Though too much be awarded her, a probate order
setting apart a homestead for a widow and children cannot
be assailed collaterally, but stands unless regularly vacated.'
The probate jurisdiction cannot always cover every case in-
volving homestead right — such, for instance, as the foreclos-
ure of a mortgage.^
A probate court having assigned a homestead to a widow,
Thompson v. Thorapson, 51 Ala. 493 ; 11 Tex. 249 ; Byram v. Byram, 27
^ Turner v. Whitten, 40 Ala. 530 ; An- Vt. 295.
drews v. Melton, 51 Ala 400 ; Rotten- i James v. Clark, 89 Ala. 606 ; Ala-
berry V. Pipes, 53 Ala. 447 ; Hudspn bama Code (1686), g§ 2550-3, 2562-5 ;
V. Stewart, 48 Ala. 309; Booth v. Acts 1886-7, p. 113, amending §§2563-
Goodwin, 29 Ark. 633.; Smith's Es- 2564.
tate, 51 Cal. 564 : Mawson v. Maw- 2 Dolan v. Dolan, 91 Ala. 152 ; Ala-
son, 50 Cal. 539 ; McCauley's Estate, bama Code, § 2544.
50 Cal. 544 ; Camento v. Dupuy, 47 ' Fossett v. McMahan, 74 Tex. 546.
Cal. 79; Estate of Orr, 39 Cal. 102; * Coffey v. Joseph, 74 Ala. 271;
Holden v. Pinney, 6 Cal. 334 ; Dease Willis v. Farley, 34 Cal. 491 ; Fallon
V. Cooper, 40 Miss. 114; Cannon v. v. Butler, 31 Cal. 30; Heutsch v.
Bonner, 38 Tex. 491 ; Hamblin v. Porter, 10 Cal. 559 ; Belloe v. Rogers,
Warnecke, 31 Tex. 91 ; Little v. Bird- 9 Cal. 136 ; Falkner v. Folsom, 6 Cal.
well, 37 Tex. 690 ; Runnels v. Run- 412. {See EUisson v. Halleck, 6 Cal.
nela, 27 Tex. 515; Connelly. Chandler, 392, overruled in Belloe v. Rogers,
supra.)
628 THE widow's homestead.
out of the estate of her late husband, without notice to the
heirs, they brought an action to have the order set aside on
the ground that the realty thus assigned was of value beyond
the monetary limitation of five thousand dollars. They
proved the homestead assigned her to be worth twice that
sum ; but the court sustained the probate decree on the ground
that the judge making it had jurisdiction and that the value
was proved before him to be not in excess of the statutory
restriction."
When a probate court, disregarding the widow's claim, or-
dered the homestead of the decedent to be sold for the pay-
ment of his debts, it was held that the purchaser obtained no
title as against her rights; that he took nothing for his
money.^
A deceased husband having left no debts, the widow claimed
the homestead, which he had held, as against the heirs. This
was denied — the court holding that she could not claim as
against the heirs because homestead is a protection from credit-
ors only ; that, as there were no creditors, the homestead was
terminated at the death of her husband ■ — the estate passing
at once to the heirs by the statute of descents, subject only to
the widow's dower.' But heirs cannot divest a homestead
right, already vested in the widow, by paying off all the debts
of the estate.''
"Where constitution provisions for homestead, in favor of
the widow and minor heirs, are not supplemented by statute
giving them effect in case of indivisible estates exceeding the
homestead limit, the administrator of the decedent owner may
hold possession and pay the claim of the widow, if she is the
only creditor. Unless the estate is insolvent and indebted,
the homestead right does not attach, in such case ; and the
estate goes to the heirs, subject to the widow's dower.'
1 Kearney v. Kearney, 72 Cal. 591 ; < Tucker v. Tucker, 103 N. C. 170.
Cal. Civ. Code of Proc, § 1465. Com- By the act of February, 1876, In Ala-
pore Williams v. Whitaker (N. C), bama, the widow has absolute estate
14 S. E. 924. in the homestead of her deceased
2 Anthony v. Rice (Mo.), 19 S. W. husband, when his estate has been
423. declared insolvent McDonald v.
3 Barker v. Jenkins, 84 Va. 895 ; Berry, 90 Ala. 464.
Helm V. Helm, 30 Gratt. 404. »Zoellner v. Zoellner, 53 Mich. 631.
EELATIVE TO HEIRS. 629
Inheritance is governed by the law existing at the time of
the death of the owner.^ When the homestead descends to
the heirs at law, freed from the claims of the decedent's
creditors, it is to be estimated at its worth when he died.
Subsequent advance in value does not render any excess of the
monetary homestead limit liable to creditors at the time the
heirs come into actual possession, if there was no excess when
their right vested on the death of their ancestor.^ Homestead
exemption passes to the heirs of the homestead, being inci-
dent to the inheritance of the land ; it passes " to whomsoever
the title descends," though the heirs be adults, and they need
hot occupy.'
A decedent left a widow and eight children, all majors. The
husband of one of them bought the interests of the others,
and then sued the mother for rent for all but her share — she
occupying the whole premises. He failed on the ground that
she had her homestead right in the whole.* The widow is
not liable for the rents and profits of her homestead to any of
the heirs of the deceased, when she rightly holds it ; but if the
probate court ha§ erroneously set apart a homestead to her, •
and the order is subsequently vacated or corrected by direct
proceedings, she may be called to account to the minor heirs
for rents received while unduly holding the property as her
homestead.' A homestead assigned to the widow carries with
it the crops growing upon it when her husband died, and
which still remain upon it. She is entitled to them as against
both heirs and creditors.'
1 Burleson v. Burleson, 38 Tex. 418. and community debts, see Stringfel-.
2Parisot v. Tucker, 65 Miss. 439. low v. Sorrels (Tex.), 18 S. W. 689.
3 Miller's Ex'r v. Finnegan, 36 Fla. 6 Vaughn v. Vaughn, 88 Tenn. 743;
29. Edwards v. Thompson, 85 Tenn. 731 ;
*Keye8 v. Hill, 30 Vt 759. Carson v. Browder, 3 Lea, 701 ; Shof-
s Linch v. Broad, 70 Tex. 93, 96. ner v. Shofner, 5 Sneed, 95 : Pickens
When there are no community debts, v. Reed, 1 Swan, 80 ; Tenn. Code,
community property is inherited di- §§ 3250, 8943-4 (3119a, 2119&, Ad. M.
rectly by the children of the dece- & V.). In Tennessee, the widow was
dent — that is, the decedent's interest held to have no right to homestead
in it. Clark v. Nolan, 38 Tex. 416. in property of her deceased husband
As to the effect of increase in the when it consisted of a remainder on
value of the wife's separate property, the death of his mother who held as
in relation to community property his father's widow. As he had no
right of possession, he had no home-
630 THE widow's homestead.
Heirs having prayed for partition, arid alleged that the
widow was entitled to homestead in the estate which they
sought to have divided, the court took the allegation as an
admission of her right on their part, after default had been
decreed.' When partition is impracticable, and sale neces-
sary, to which the widow consents on being promised an
equivalent in money for her dower interest, she is not neces-
sarily entitled to a thousand dollars from the proceeds of the
sale; for her homestead interest might not have been worth
so much had her dower been first laid off. In a case present-
ing this situation, the homestead was a life-estate with the
remainder in the heirs. The widow was entitled to her life-
occupancy in one thousand dollars' worth of the estate. She was
entitled to the value of that interest from the proceeds of the
sale, or to a thousand dollars of it invested and the interest
paid to her during her life, and the princijjal paid to the heirs
at her death.^ When homestead has been assigned to a widow,
she has been held entitled to hold it though it appreciate
afterwards in value beyond the monetary limitation.'
§ 7. Relative to Alienation.
When the widow and heirs of a deceased householder sell
the homestead property, while it is yet exempt and not aban-
doned, the grantee takes it free from the ordinary debts of
the decedent ; free from debts not secured by valid liens on
the homestead property.* But abandonment of the home-
stead protection, by the widow and the heirs when all are of
age, would be its exposure to the creditors of the decedent.
No length of time will give the -homestead such immunity
from ordinary debt as to bar creditors after the exemption
stead : so his widow could derive the land assigned for homestead has
none from him. Howel v. Jones increased in value, a new assignment
(Tenn.), 19 S. W. 757. may be had to reduce the quantity,
1 Schaefer v. Kienzel, 123 111. 430 ; it would seem that, when it has de-
S. C, 15 N. E. Rep. 164 ; Knapp v. predated in value, for the same rea-
Gass, 63 111. 495. son a new assignment might be had
2 Merritt V. Merritt, 97 111. 243. See to increase the quantity." Kenleyv.
Allen V. Russell, 39 Ohio, 336. Bryan, 110 III. 652.
' In declining to make a re-assign- * Dayton v. Donart, 33 Kas. 356 ;
meut of homestead to a widow be- Morris v. Ward, 5 Kas. 339 ; Hixon
cause of the alleged change of its v. George, 18 Kas. 354, S60.
value, the court said : " If, because
EELATIVE TO ALIENATION. 631
right has expired. In the first case above cited, it is said :
" "When a man dies intestate, leaving a widow and children,
the ultimate title to his homestead descends to his widow and
children just the same as the title to all his other real estate
does, except that it descends to them subject to a homestead
interest vested in the widow and such of the children as oc-
cupy the homestead at the time of the intestate's death. The
construction of the statutes is in harmony with justice and
with all our statutes and with every portion thereof, except
perhaps with the word ' absolute ' contained in section 2 of
the act relating to descents and distribution.^ But the word
'absolute,' as used in said section 2, evidently does not mean
what it would in some other cases. It, together with the
words used in connection therewith, simply means that so
long as the widow and children continue to occupy the home-
stead, and the widow does not marry again, and one or more
of the children still remain minors, they may hold the prop-
erty as their homestead as though it were their absolute prop-
erty, free from all debts (except incumbrances given by hus-
band and wife, and taxes, and debts for purchase-n\oney and
improvements), and free from division or distribution. But
evidently from the statutes they hold the property as their
absolute property, free from debts and division only while
some of them occupy the same as their homestead. If they
all abandon the property as a homestead, it then becomes sub-
ject to debts and division the same as though it never was a
homestead. ... If the property or any interest therein
is sold and conveyed while the property is still occupied as a
homestead bj' the widow or any one or more of the minor
children, the title to such property or interest passes to the
purchaser free from all debts, except prior incumbrances given
by the intestate and wife, or grantor and wife or husband, and
taxes, and debts for purchase-money and improvements, al-
though the property may afterward be abandoned as a home-
stead by the widow and children." The idea seems to be that
the title is " absolute " but defeasible by abandonment of res-
idence on the premises, so that the occupying widow and
minor may sell it, despite the adult heir, and give fuU title.
Ordinarily where, on the death of the husband, insolvent and
1 Gen. Stat of Kansas, 392, cited by the court
632 THE widow's homestead.
childless, the homestead vests absolutely in the widow, she
can convey title to a purchaser.' It seems needless to say that
she can sell and convey only what she owns. When the title
of the decedent vests in his heirs immediately upon his death,
she cannot divest them by any act of hers. When it vests in
them and her, she cannot divest them of their property right
and interest though she may sell her own. She cannot have
homestead set apart to her from property which has vested in
the heirs.^ She cannot sell her homestead to the prejudice of
the rights of minor heirs, or those of creditors entitled to
make their money out of the remainder.' A purchaser of a
homestead sold by order of court, on the application of the
widow, is not deemed to have had notice that the decedent
was free from debt, when there was no record evidence of it.
He is not presumed to know that the judgment was void. In
such case it is only voidable.* Though a widow give a quit-
claim deed of her late husband's separate property, it is said
that she may yet have homestead set apart to her in the same
property by the probate court.^
A man and wife gave a deed of trust on their homestead.
Ejectment against her, when she had become a widow, was
brought by the grantee for the recovery of the property
deeded, which she held as her homestead. The court found
the fee to be in the plaintiff subject to her right of homestead
during the minority of her youngest child. At the termina-
tion of this period, he again brought ejectment, and the first
judgment was pleaded as a bar to her further claim. But the
iRainey v. Chambers, 56 Tex. 17. set apart from the shares of those
See Alabama act of February, 1876, heirs; and the sale of property of
giving widow absolute .title to the theirs set apart thus illegally, made
homestead when the estate of her by the widow, would convey no in-
deceased husband has been declared terest but her own. Madden v. Jones,
insolvent McDonald v. Berry, 9(5 75 Ga. 680.
Ala. 464 And see Norton v. Norton ^ "Whittle v. Samuels, 54 Ga. 548.
(Ala.), 10 So. 436, in which it is held ^Deyton v. Bell, 81 Ga. 370.
that the widow's rights of quarantine ^ Estate of Moore, 57 Cal. 487. Com-
and homestead are personal rights, pare Bates v. Bates, 97 Mass. 892.
forfeitable but not alienable. These See Morrison v. Wilson, 30 Cal. 344
rights are when the estate is solvent. McDonald v. Edmonds, 44 Cal. 328
-In Georgia, when the title of a M'Crakin v. Wright, 14 Johns. 193
decedent has vested in his heirs, a Etcheborne v. Auzerais, 45 Cal. 121,
homestead for the widow cannot be
i RELATIVE TO ALIENATION. 633
court now ignored the first finding, declaring it a nullity be-
cause not involved in the issue then joined. Her right of
occupancy was still maintained.'
Under laws giving the widow only the usufruct of her home-
stead with right of occupancy, obviously she cannot sell the
realty which she enjoys. An attempt to sell, or rather a form
of sale and transfer under the circumstances, would convey
no title to the purchaser ; and, under some statutes, would be
deemed abandonment so as to expose the property to forced
sale by creditors.^
A childless wife, surviving her husband, is entitled to have
her homestead free from forced sale while she lives upon it.
She mav exchange it for another, and have the second pro-
tected. If she sell the first for money to be invested in a new
home, the price before payment to her cannot be garnished in
the purchaser's hands for the payment of debts.'
If the homestead may be mortgaged by the joint act of the
owner's widow and his administrator, nothing more of the
decedent's estate can be affected ; and the mortgage must be
confined to the amount and value of land prescribed by law as
the exempt portion. If any wrong is done, only the heirs have
interest to complain.* Should the husband and wife join in
mortgaging land including their homestead, the lien would
attach to the whole; but a widow does not waive her right to
the proceeds by consenting that the administrator of her hus-
band's estate may sell land in which she has a homestead
right.^
A widow who occupied a homestead with her children gave
a trust deed of it to secure a creditor. The property was sold,
and the purchaser brought an action of trespass against her
1 Yeatea v. Briggs, 95 111. 79. The 5 Xn re Worcester's Estate, 60 Vt
deed of trust was given while the 430 ; Goodenough v. Fellows, 53 Vt,
homestead acts of 1851-7 were in 108 ; Probate Court v. Winch, 57 Vt
force in Illinois. 382 ; Lamb v. Mason, 50 Vt, 345 ;
2 Garabaldi v. Jones, 48 Ark. 330 ; Deverest v. Fairbanks, 50 Vt 700 ;
Gates V. Steele, 48 Ark. 539 (case of a Day v. Adams, 43 Vt 516. In Ver-
lease). In Illinois, sale of her home- mont, an administrator, with the con-
stead by the widow is not abandon- sent of the guardian, may have pos-
inent Plummer v. White, 101 111. session of the homestead in which a
474. ward has an interest Farr v. Put-
V 3 Watkins v. Davis, 61 Tex. 414. nam, 60 Vt 54
* Griffin v. Johnson, 37 Mich. 87.
634
to test the title. If she was sole owner, she conveyed by the
deed ; if partner in community with the children, the deed
conveyed her interest, and the purchaser obtained equal title
and possessory right with the children.'
§ 8. Money or Realty in Lieu of Homestead.
Under a statute providing that a widow may have life es-
tate in a homestead not exceeding a thousand dollars in value,
out of her husband's estate, if occupied by her, but which
makes no provision for, the sale of it for her benefit even
when it is a part of other property and the whole is indivis-
ible,^ it was held that she is entitled to this homestead though
she may own other real estate in her own right ; that prop-
erty deeded to her by her husband cannot be estimated in
fixing the value of her homestead out of the realty of which
he died possessed so as to lessen her allowance ; that at her
instance, sale of the homestead with other inseparable realty
was rightly made, without express statutory warrant, as there
was no objection by any interested party ; but that she was
not absolutely entitled to a thousand dollars of the proceeds —
only to the interest or usufruct of it during her life. The
fact that she had moved away from the homestead to her own
property, leaving the former with a tenant, was not treated
as abandonment, as she subsequently returned to it.
Regarding the sale the court said : " It is true the home-
stead is only for the use of the' widow so long as she occupies
it, and no express provision is made for the sale of it for her
benefit. And, on the other hand, if it is not divisible, how-
ever valuable, the law makes no provision for the sale of it,
except subject to her right of occupancy, even for the pay-
ment of debts against the estate of her deceased husband.
If, therefore, the strict letter of the law is adhered to, cases
of extreme hardship to creditors and heirs, as well as to the
widow, may arise, requiring relief by courts of equity. . . ■
[The heirs at law] having consented to a judgment for the sale
which the court had no authority to render without, [they]
cannot be heard in this court to object to the payment to [the
widow] the value of her homestead exemption out of the
1 Grothaus v. De Lopez, 57 Tex. 670. §§ 9-1 4. See Gen. Stat 1888, pp. 574-
2 Gen. Stat. Ky., ch. 38, art. 13, 578.
MONET OE EEALTT IN LIEU OF HOMESTEAD. 635
money arising from the sale," to which she would have the use
for life, as above stated, upon giving bond, with security, for
the principal.'
Bond and security are not necessary, however, when there
is no one ,,to whom the principal will descend at her death.
An act " to provide a homestead for the widow and children
of deceased persons," ^ which was a charitable provision for
necessitous widows and orphans (in this respect unlike the
statute above considered), gave the widow only the usufruct .
of a thousand dollars' worth of realty or its equivalent in '
money. ISTothing was said about her giving security, but the
'courts required it so as to make the act conform to stat-
utes in pari materia,^ which supported the general rule that
usufructuaries must give security. Eut, the object of the rule
being the protection of those entitled to the remainder on the
termination of the life tenure, it manifestly should not be in-
voked when there are no persons to be secured. A widow,
being placed on the tableau of the administrator of her hus-
band's estate as a creditor for a thousand dollars, under the
above entitled act, and being required to give security, filed
her opposition and claimed the amount free from the require-
ment. There were no minor children by a previous marriage
of her late husband to whom the money would have gone on
the cessation of the usufruct. Major heirs of the deceased
had no ultimate rights to the money, under the act. The pro-
vision is a charitable one, and the act does not contemplate
its return to the estate or succession, after the death of the
\vidow. The act gives it to the widow and minor children;
the usafruot to her and the ownership to them. If they are
non est, it is held that she alone takes. Deciding upon the
opposition above mentioned, the court said: " In the instant
case there is no one to whom the money descends, and as the
law, in its humane provisions, intended to provide for the
destitute out of the fund of the succession, it is not unreason-
able to interpret it to mean that when it provided for the
widow and the minor, that its intention was that in the ab-
sence of the minors it should go to the v/idow to enjoy the
1 Sansberry v. Simms, 79 Ky. 527 ; ^La. Rev. Stat, § 2885.
Phipps V. Acton, 13 Bush, 377 ; Hans- ^ guc. of Tassin, 13 La. Ann. 885.
ford V. Holdam, 14 Bush, 210.
636 THE widow's homestead.
whole amount. But as there is no one to whom the amount
descends, it would he an idle thing for the widow to give
security for its return to an imaginary claimant who can never
appear." '
, It is not usual to bestow the homestead privilege on wid-
ows only in case of their need ; but there is an exceptional
limitation of that kind, by which widows who have property,
in their own right, sufficient to support them, are denied
: homestead provision from their deceased husbands' estates.^
When an alloivance, instead of homestead, had been made
for a widow, and she had claimed a balance of it twenty-five
years after, her demand was rejected as that of a stale claim.'
An agreement by which she had consented to appropriate as-
sets in her hands in lieu of the allowance was pleaded in op-
position to her claim ; and the court held it a good defense.'
In a partition, if the widow's homestead cannot be set off
so that she can enjoy it or its usufruct for life ; and she is paid
in. money instead of land, she is not entitled to receive the
■ value of the homestead, but only the value of her right in it.
That is to say, if a thousand dollars' worth of realty is exempt,
the life' interest in it should be ascertained and paid to her,
or the whole sum should be invested, and the interest or in-
come of it should be paid to her during her life-time.*
§ 9. In General.
A widow's petition for allotment of homestead may be con-
tested by any one setting up an adverse interest. The object
of the petition is to have her homestead set apart from the
realty that is subject to administration. No title is involved.
A mortgagee cannot appear in the contest to have the rank
and validity of his mortgage adjudicated against the widow's
claim. He cannot do it either in the probate or in the circuit
court.' If a widow die without clamiing homestead in her
1 Welsh V. Welsh, 41 La. Ann. 717. 166 ; Succession of Robertson, 28 La;
See Corner v. Bourg, 36 La. Ann. 615. Ann. 832 ; Murphy v. Eulh, 24 La.
2 This rule in Louisiana. Succes- Ann. 74.
siou of Marc, 29 La. Ann. 41 ; Succes- ' Tiebout v. Millioan, 61 Tex. 514.
sion of Cottingham, 39 La. Ann. 669
Bryant v. Lyons, 29 La, Anu. 64
Succession of Drum, 36 La. Ann. 539
Succession of Cooley, 36 La. Ann,
* Stunz V. Stunz, 131 111. 210.
s Coffey V. Joseph, 74 Ala. 271 ; Ala.
Code, § 2841.
IN GENERAL. 637
husband's estate, her executor cannot claim it for her.' She
must claim personally and within reasonable time.^ In a state
where the quantitative limitation had been extended from
eighty to one hundred and twenty acres, it was held that the
widow must make selection of the allowed portion when the
home property that had been occupied by her husband was
in excess of the limit, if she would save her homestead from
a debt of her husband contracted before the change in the
law.'
In an application of the widow of a homestead holder to
have it allotted to her, the title by which her husband held is
not drawn in question, nor is the indebtedness of the estate
any obstacle.* If she ask for other lands in lieu of the home-
stead after they have been decreed to be sold for the deced-
ent's debts, it is held questionable whether she would be too
late.^ The law goyerntng when her husband died fixes the
widow's homestead rights.* As to debts, the law governing
when they were contracted must determine whether the
homestead is exempt from them when it has passed to the
widow. Exemption can be claimed only in realty in which
the deceased had any interest that might be applied by the
administrator to the payment of his debts, if not exempt.^
Liens, or property debts, or any liabilities of^the homestead
existing during the life-time of the husband-owner, are not
canceled or removed by the descent of the homestead to his
widow and children, who can take no greater estate than he
had when he died. The homestead continues subject to all
its former liabilities.* It must ever be borne in mind that
• Machemer's Estate, 140 Pa. St 1873, took the estate owned by her
544. • dec^sed husband in the homestead.
2 Burke v. Gleason, 46 Pa. St 297. Register v. Hensley, 70 Mo. 189 ; Da-
3 Clancy v. Stephens, 93 Ala. 577. vidson v. Davis, 86 Mo. 440 ; Daudt
It is added that if the widow be in- v. Musick, 9 Mo. App. 169; Skouteu
sane she cannot make the selection. v. Wood, 57 Mo. 380 ; Rottenberry
4 Cox V. Bridges, 84 Ala 553; Cof- v. Pipes, 53 Ala. 447; Taylor v. Tay-
(ey V. Joseph, 74 Ala. 371. lor, 53 Ala. 135 ; Taylor v. Pettus, 53
5 Seals V. Pheififer, 84 Ala. 359. Ala. 387 ; Sluder v. Rogers, 64 N. C.
{See same parties, 77 Ala. 878.) 389.
Toenes v. Moog, 78 Ala. 558 ; Kan- ' Boiling v. Jones, 67 Ala. 50^.
dolph V. Little, 63 Ala. 396. s McAllister v. White (Vt), 33 A.
« Burgess V. Bowles, 99 Mo. 543. 603. Ross, J. : " Upon the agreed
So a widow, whose husband died in case the debt due from the estate to
638
THE widow's homestead.
homestead exemption has bearing only on the personal debts
of the property-owner, and not upon his property debts; that
is, not upon those which may be enforced specifically against
the property itself. It is the personal debts, contracted after
M. B. Hall was contracted before the
intestate purchased the claimed
homestead. It is conceded that Mr.
Hall would have had the right to
take the claimed homestead to sat-
isfy his debt at any time during the
Hfe, of the intestate. But it is con-
tended that the right expired with
the death of the intestate, and that
his widow, the appellant, has the
right to the homestea4 against the
debt of Mr. Hall. This is the only
question for consideration. A home-
stead exemption was first given in
1850. Comp. St., p. 390. § 4 This
section read: 'If any such house-
keeper or head of a family shall de-
cease leaving a widow, his home-
stead, of the value aforesaid, shall
wlioUy pass to his widow and chil-
dren, if any there be, in due course
of descent, without being subject to
the payment of the debts of the
deceased, unless made specially
chargeable thereon,' etc. Another
section of the act made the home-
stead subject to attachment and ex-
ecution upon all contracts, matters
and causes of action which might ac-
crue previous to or at the time of ac-
quiring the homestead. Under this
act the question arose in regard to
the meaning of ' without being sub-
ject to the payment of the debts of
the deceased, unless made specially
chargeable thereon.' It was held in
Simonds v. Estate of Bowers, 28 Vt.
854, decided in 1856, Bennett, J., de-
livering the opinion, and in Perrinv.
Sargeant, 33 Vt 84, decided in 1860,
Poland, J., delivering the opinion,
that the homestead of a deceased
person was holden and liable for the
same debts which it was before his
decease. Various changes were made
in reference to the interest of the
children in such homestead, but with
reference to the debts for the pay-
ment of which it could be taken the
statute i-emained unchanged until
the General Statutes took effect in
1863. The phraseology of section 4
of the act of 1850, last quoted, was
then changed so that it read : ' With-
out being subject to the payment of
the debts of the deceased, unless le-
gally charged thereon in his life-
time; and such widow and children
respectively shall take the same es-
tate therein of which the deceased
died seised,' etc. This is the language
of the law now in force on this
branch of the subject. R L., g 1898.
The appellant contends that this
change in the language of the stat-
ute manifests an intention on the
part of the legislature to change the
law,upon this subject, and that ' le-
gally charged thereon in his life-
time ' means that the creditor who
has the right to take the homestead
in satisfaction of his debt during the
life of the husband must during that
time do some act legally to take it in
such satisfaction, and, if the creditor,
fails to perform such act brfore the
decease of the husband, the widow
takes the homestead freed from lia-
bility to pay his debt. The appellant
urges that force should be given to-
the clause ' in her life-time ; ' that at
the decease of the husband all right
to charge the debt upon the home-
stead ceases. It is apparent that at
his decease, under the act of 1850, all
right to make the debt specially
chargeable ceased. The language
there used, ' made specially charge-
IN GENEEAT^
639
notice to the creditor that the^ homestead is not to stand as
security, which are affected by the statutory exemption. And
the homestead, descending to the widow and heirs in the
same condition in which the former owner held it, remains
liable for liens (property debts), but free from the merely
personal debts of the decedent which were contracted after
notice to creditors.
A purchaser of title warranted, subsequently evicted by the
^holder of a paramount title, is the creditor of the vendor for
the price paid, and may recover it with damages from the
date of purchase ; and he is not to be hindered by the inter-
vention of the vendor's widow's homestead claim. A statute
favoring her, passed after the date of the deed, but before the
purchaser's eviction, will not avail her.'
The monetary limit of the homestead having been reduced
able,' apparently imported that the
creditor had done or should do some-
thing in the direction of making the
homestead holden for the payment
of his debt before the homestead
vested in the widow and children.
The language, ' legally charged ' and
'made specially chargeable,' are of
quite similar legal import or signifi-
cation. Both clauses are to be read
keeping in view both the language
which precedes and follows. Both
clauses are preceded by the state-
ment that the homestead shall vest
'without being subject to the pay-
ment of the debts of the deceased.'
This refers to a payment to be made
after the decease of the husband.
The clause commencing with 'un-
less' states what debts it may be
taken in payment of. ' Unless '
here is the equivalent of 'except.'
The decisions in 38 Vt. and 33 Vt.
hold that the language of the act of
1850 means no more than that the
homestead should remain liable for
the payment of the same debts after
it descended to the widow and chil-
dren that it was liable for when the
title stood in the husband. We think
the change in the phraseology of this
provision in the General Laws of
1863 did not intend to change the
settled law on this subject It is fol-
lowed by the declaration that the
widow and children shall take the
same estate of which the deceased
died seised. The deceased died seised
of the homestead premises, subject to
the right of Mr. Hall to take them in
payment of his debt. This language,
while it may also have reference to
the particular estate, either legal or
equitable,H held by the husband, has
reference to the extent to which it
shall be free from the payment of
his debts ; for that was the subject-
matter under consideration. The
change in the language used, in ref-
erence to this subject, in Gen. St
1863, does not, to our minds, mani-
fest any clear intention of the legis-
lature to change the law. The judg-
ment is reversed, and judgment ren-
dered, with costs, that the defendant
is not entitled to a homestead in the
premises against the debt due Mr.
Hall. Judgment ordered to be certi-
fied in the probate court"
1 Corr V. Shackelford, 68 Ala. 241.
640 'the widow's homestead.
by a new constitution to one thousand dollars of realty, a
widow applied for one of double that value, as was permissi-
ble under the old constitution. Under a saving clause of the
new instrument, and under the circumstances of the case
which brought her within it, she was allowed two thousand
dollars of realty.'
A widow was deemed both a beneficiary and a quasi-trustee
when she had applied for homestead for herself and minors,
to be set apart out of the estate of the deceased husband and
father : so the homestead estate was not extinguished by the
minors becoming of age, but continued during her widow-
hood.^
By some provisions, the husband's homestead passes intact
to his widow and minor children at his death, to be for their
benefit during the time of its further exemption,' and is not
allotted out of his estate in general, unless that is good reason
for assigning other realty to the widow in lieu of it.* Where
her homestead is derived only from the husband's, she cannot
have one created out of his general real estate when he has
died without having created one.^ As against his heirs, she is
entitled to none, unless she claimed one as his wife during his
life-time, though he died without children and without debts.'
But the contrary rule has authority to support it, and perhaps
equal reason : The failure of a husband to have a homestead
allotted is no detriment to his widow's right to have it done,
when she has none of her own.' However, it has been held,
under constitutional provision, that this is only when her hus-
band has left no children.' A widower with children can
1 Gerding v. Beall, 63 Ga. 561 ; and the estate is worth no more than
Georgia Constitutions of 1868 and |300, the whole vests absolutely in
1877. the widow. Const of Ark., ix, 6;
2 Groover v. Brown, 69 Ga. 60. Mansf. Dig., § 3; Sansom v. Harrell,
3 Hendrix v. Hendrix, 46 Tex. 8 ; 51 Ark. 429.
Rogers v. Ragland, 42 Tex. 444 ; Sos- 6 Helm v. Helm's Adm'r, 30 Gratt.
saman v. Powell, 21 Tex. 665. 404, distinguishing Hatorff v. Well-
* McAllister v. Farley, 39 Tex. 561. ford, 27 Gratt 356; Kemp v. Kemp,
Compare Ragland v. Rogers, 34 Tex. 42 Ga. 523. See Hager v. Nixon, 69
622 ; overruled in 42 Tex. 444 ; Bfobry N. C. 108.
v. Harrison, 44 Tex. 286. 'Smith v. McDonald, 95 N. C. 163;
6 Johnson v. Turner, 29 Ark. 280; Branch, i/a; paj-fe, 72 N. C. 106.
Hoback V. Hoback, 33 Ark. 399. In sgaylor v. Powell, 90 N. 0.202;
Arkansas, if there are no children, Wharton v. Leggett 80 N. C. 169 ;
IN GENERAL. 641
create and retain homestead only while they are minors ;1 but
this is not a general rule as to retention.
The homestead benefit accorded to a widow is not a char-
ity bestowed only upon the needy, in most of the states.
Whatever her wealth in her own right, the law gives her
homestead in her deceased husband's estate, to be hers so long
as she may occupy it personally, or (in some states) merely
possess it by an agent or a tenant ; and property given to
her by her husband before his death, or acquired by her from
any source, does not affect her right to homestead.^ She can-
not have homestead out of land derived from her husband, if
she already has one in her own right. But the fact that she
owns land in her own right does not interfere.'
Children, permanently residing in another state from that
in which their mother claims homestead as the head of a fam-
ily, are not deemed to compose her family in the sense of a
household entitled to the homestead protection.^ Children,
however, are not everywhere essential accompaniments to a
widow's application.^ They may be impediments." The adop-
tion of a child has been held to give her no additional right.''
She, when living without a family, does not continue to enjoy
the exemption privilege as the head of a household which no
longer exists. She is thus privileged in another capacity.
Const N. C, art 10, sec. 5 ; Acts of ried woman is entitled to home-
1877, ch. 353. Declared contrary to stead in her husband's estate but not
constitution. Wharton v. Taylor, 88 in her own. So, there (Gove v. Camp-
N. C. 230. bell, 62 N. H. 401), if a husband with-
' Santa Cruz Bank v. Cooper, 56 Cal. out valuable consideration pays part
339. of the price of real estate conveyed
^Sansberry v. Simms' Adm'x, 79 to his wife without fraud on her part,
Ky. 537. But in Louisiana the wid- his creditors can levy only on his in-
ow's need is the occasion of assign- terest subject to the wife's home-
ing her homegtead out of her hus- stead right in it lb. The widow's
band's estate. dower and homestead estate are in-
3 In South Carolina, after the widow eluded in half of the real estate of
is admitted to bo entitled to both her husband which she takes with
homestead and dower, she cannot he fee-simple title. Gen. Stat, ch. 183,
denied the latter because she owns g 8 ; Burt v. Randlett, 59 N. H. 130.
land in her own right Jeflferies v. ''Rook v. Haas, 110 111. 538.
Allen, 29 S.C. 501; Hosfoirdv.Wynn, 6 Estate of Walley, 11 Nev. 360;
32 S. C. 811 ; Bradley v. Eodelsperger, Moore v. Parker, 13 S. C. 486.
17 S. C. 11 ; Moore v. Parker, 13 S. C. « Saylor v. Powell, 90 N. C. 203.
489. In New Hampshire, a mar- ' Be Lambson, 2 Hughes, 333.
41
642 THE widow's homestead.
The homestead of her husband does not devolve upon her as
the head of the family, but as his widow eo nomine}
The widow and children of a debtor owing more than his
estate is worth take the festate subject to the liens and equi-
ties existing against it. Her declaration of homestead for
herself, and as the guardian of the children, does not relieve
any part of the estate from liability for debts contracted by
the husband and due from him.'
JGuthman v. G-uthman, 18 Neb. 76; Speidel v. Schlosser, 13W. Va.
88, 106; Neb. Com. Stat, ch. 36, § 17. 686; W. Va. Acts, 1872-3, ch. 193,
2 Reinhardtv. Bernhardt, 21 W.Va. §10.
OHAPTEE XXI.
THE CHILDREN'S HOMESTEAD.
§ 1. The Nature of the Benefit
2. Selection after the Father's
Death. -
3, Minors as Litigants.
4. Rents and Profits,
5. Relative to. Indebtedness.
6. Necessitous Children,
7. Partition.
§ 1. The Nature of the Benefit. ^
The minor children are beneficiaries of the homestead pro-
vision for them ; they are vitally interested in it ; but they
have no independent rights while their parents live. Their
parents may dispose of the homestead at pleasure, may sell
it, incumber it or abandon it. Their father, when he is the
sole owner, may make any disposition of it after the death
of their mother. Their widowed mother has the same right
when she is the sole owner. Were the law to give minor
children any adverse interest to be asserted against their par-
ents who own the property, it would tend rather to the dis-
ruption of families than to their conservation, and thus defeat
the very purpose of homestead legislation.
Effect of the father's death: When the children become
orphans, the effect of granting them direct homestead pro-
tection tends rather to the preservation of the family than
otherwise. As heirs of the home property, they share alike
with their adult co-heirs': but, as beneficiaries of the home-
stead provision, they have what resembles an estate for years,
which is inalienable by them or by creditors. The purpose,
and generally the effect, of conferring this benefit upon them,
is to preserve the family, keep its members together, and thus
promote the welfare of society and the state. Before the
death of the father, this purpose was better served by giving
the children no independent rights : now it is advanced by
the bestowal of such rights upon them.
The homestead privilege of the father does not necessarily
descend to his children. His title to the property is inherited
by his heirs, both minor and major, while the exemption priv-
644 THE ohildeen's homestead.
ilege and quasi-estate for years of the minor heirs is grafted
on the fee by statute,' with the assent of the owner by dedi-
cation. The orphans under age do not lose the benefit, which
they enjoyed with their father, by reason of his death,^ though
they may inherit from him no more property right than the
adult heirs receive. May they have the benefit of home pro-
tection during minority when they have no heirship in the
decedent's estate? Some statutes confer the benefit so broadly
as to include step-children when the legally-owning family
head is in loco parentis to them.' Adopted children may en-
able an owner, who is without other family members, to claim
homestead protection,* but it cannot be laid down as a rule
that minor members of a decedent's late family, who are not
his heirs, are entitled to homestead protection during their
minority, to the postponement of partition among the adult
legal heirs. It is certain that when the parental relation does
not exist either naturally or by adoption, minor children can-
not have homestead set apart to them, from the estate of de-
cedent, simply because they have lived with him.'
The mother's control: Upon the death of the father the
mother succeeds to the headship of the family; but since the
" estate " of the minor children has vested, she cannot dispose
of their interest derived from their father, or of their right
of occupancy bestowed by law with his assent. She cannot
dispose of their homestead property; she cannot sell or in-
cumber it ; * she can neither waive nor abandon it.' Should
she attempt to convey their home by deed to a purchaser,
they may maintain their occupancy against the grantee.' They
may eject a purchaser who has come into possession, though
he bought on the foreclosure of a mortgage given by the
widow.' They, having inherited their home property from
1 Shannon v. Gray, 59 Tex, 251 ; « Rhorer v. Brockhage, 86 Mo. 544
Johnson v. Taylor, 43 Tex 131. (same title, 15 Mo. App. 16, and 13 id.
2Hubbell v.Canaday, 58 111. 437; 397); Rogers v. Mayes, 84 Mo. 530;
Pardee v. Lindley, 31 111. 187 ; Re White v. Samuels, 54 Ga. 548.
Kennedy, 3 8. C. 337 ; Ex parte Stro- ' Showers v. Robinson, 43 Mich,
bel, 2 S. C. 809; Howze v. Howze, 2 503; Roberts v. Ware, 80 Mo. 363;
S. C. 239. Wagner's Stat, p. 698, § 5.
sCapek v. Kropik, 129 IH 509. ' »Id.
*Re Sambson, 2 Hughes, 233. «Kockling v. Daniel, 83 Mo. 54.
' Estate of Romeo, 75 CaL 879.
SELECTION AI'TEE THE FATHEe's DEATH. 645
their deceased father, and having had the home clothed by-
law with the exempt character, cannot be concluded by any
act of their mother.' They owe her filial duty and must follow
her when she removes from the homestead ; but though she
removes permanently, with the design of, abandonment, they
will not thus be bereft of their homestead protection.^ That
protection is vouchsafed to them till the end of their minor-
ity irrespective of the mother's right. She may have remar-
ried and lost her exemption right in consequence, according
to the larw of some states ; or she may have died and thus lost
it — yet the rights of the minor beneficiaries will not be af-
fected.' Conversely, the widow's right does not depend upon
the continuance of the lives of the children.*
The mother, however, is the legal representative of her
fatherless children, and as such she may conclude them in lit-
igation when her interests and theirs are not adverse and she
is the proper party to appear for all.' They may be concluded
as privies, by her action, as they are when their father pleads
his homestead in litigation ; " but, as before remarked, she
cannot conclude them by waiver, or by the relinquishment of
her own rights, unless she owns the property in her own right
and the dedication was by her, so that she has the position
that a widower has over his own homestead property. But if
the homestead was carved out of the father's property after
his death, she cannot alienate it to the prejudice of the chil-
dren.'
§ 2. Selection after the Father's Death.
If no selection has been made by the decedent, his widow
and children should have it carved out of the real estate un-
less the whole is not in excess of the exemption quantity.'
If their portion is laid out by appraisers, it should be shown
by a report duly filed of record and passed upon by the court.'
1 Miller v. Marckle, 37 111. 405. * Gay v. Hanks, 81 Ky. 553.
2 Walters v. The People, 31 IlL 178 ; « Burt v. Box, 36 Tex. 114.
Harmon v. Bynum, 40 Tex. 324; 6 Tadlock v. Eccles, 30 Tex. 793.
Johnson v. Turner, 29 Ark. 280 ; ' Eofl v. Johnson, 40 Ga. 555.
Rogers v. Mayes, 84 Mo. 530. ^ Jarrell v. Payne, 75 Ala. 577.
3 Loyd V. Loyd, 82 Ky. 531 ; Canole " Turnipseed v. Fitzpatrick, 75 Ala.
V. Hurt, 78 Mo. 649 ; Keyte v. Perry, 397.
25 Mo. App. 394; Missouri Home-
stead Acts of 1865 and 1874.
646 THE childken's homestead.
Assignment to a widow and children may involve no ques-
tion of execution and sale ; yet if the decedent was involved in
debt, and creditors aim to reach his real estate by execution,
the appearance of regular assignment to the widow-and chil-
dren by record will become important.
If the widow and children take possession of a homestead
and all the estate real and personal of the decedent, without
administration, and the property exceeds, in value and extent,
the exemption limit, they hold it as a trust for the payment
of debts, which a creditor may reach by bill in equit-y.^ When
the legal title is in the trustee, it has been held that the stat-
ute of limitations runs against the minor cestui que trust in
favor of a stranger.^
A widow filed her claim for homestead exemption within
the statutory time after her husband's death. An appraise-
ment was had, and the report duly filed though not marked
"filed." It was held that a second appraisement three years
afterwards was not too late, since the delajj^ had not worked
to the prejudice of any interested party.' Had the delay been
attributable to her, and been productive of injury to others,
the ruling would probably have been different.*
It is held in one state that, no homestead having been al-
lotted to the decedent, and dower having been assigned to his
widow, there can be no homestead set apart to the minor chil-
dren from the rest of the estate.' But when homestead had
been allotted to a widow by a justice of the peace, it v/as held_
by the supreme court that the rights of the decedent's chil-
dren were not affected by it because they were without notice
of the proceeding.'
1 So held in Alabama. Cameron v. Burk v. Gleason, 46 Pa. St 397 ; "Van-
Cameron, 83 Ala. 393, citing Dunlap devort's Appe; 1 43 Pa, St. 463.
V. Newman, 47 Ala. 439; Adams v. » Graves v. Hines, 108 N. C. 263; 13
Holcombe, 1 Harper Eq. 302; S. C, S. E. 15; Gregory v. Ellis, 86 N. C.
14 Am. Dec. 719 ; Shannon v. Dillon, 579 ; Watts v. Leggett, 66 N. 0, 197 ;
8 B. Mon. 389 ; S. C, 48 Am. Dec. 394 ; McAfee v. Bettis, 72 N. C. 28 ; Const.
3 Pom. Eq., g 1154, p. 119. of N. C, art. 10, g§ 3, 3.
2 Williams v. Otey, 8 Humph. 569 ; 6 Williams v. Whitaier (N. C), 14
Smiley v. Biffle, 2 Barr, 53. S. E. 934. In North Carolina, as to
3 Ire re Williams' Estate (Pa.), 31 the law assigning dower to the widow
Atlan. 673. and allotting homestead to minor
< Kern's Appeal, 120 Pa. St. 523; heirs, see Graves v. Hines, 108 N. C.
SELECTION AFTER THE FATHEE's DEATH. 64:7
SettiDg apart a homestead to tlie widow and minor children
may not be necessary when the residence that was occupied
by the husband and father is within the statutory limitations
as to both extent and value. Such estate vests in them im-
mediately upon his death.'
If action of commissioners is necessary, and application of
the debtor is prevented by his death, the widow may claim
the assignment of homestead, or the reservation of its value
to the amount of the monetary limit.^
An allowance in lieu of homestead has been accorded to
widows and minor children from the estates of husband-fathers
who left no homestead distinct from their other realty.'
Necessary jparties: The widow and children of a decedent
are necessary parties to a proceeding for setting out home-
stead to them from his estate.* Whosever interest is to be
affected is a necessary party.* But, whether minors should be
made parties, in an application for leave to sell the homestead,
may depend upon the question whether they are likely to suf-
fer in their interests, if not made parties. If the mother is
making application, and her interest is not adverse to theirs,
she may be presumed to care for their rights.* But children
whose homestead rights conflict with that of the widow should
be made parties in any litigation affecting their interests, if
they are to be concluded.'
Two debtors gave a deed of trust, on land which they owned
jointly, to secure their debt. Afterwards, one bought the
other's interest. Upon his death, his widow claimed home-
363. Affirms Watts v. Leggett, 66 6 The children must be made par-
N. C. 197 ; McAfee v. Bettis, 73 N. C. ties, in Georgia, when the guardian
38 ; Gregory v. EIUs, 86 N. C. 579. or trustee applies for leave to sell the
Aliens are not entitled to homestead homestead. They need not be when
in North Carolina. Burgwyn v. Hall, the widow is the apiDlicant. When
108 N. C. 489. the husband applies, the wife must
iRogers V. Marsh,73Mo. 6.4. join. Dayton v. Bell, 81 Ga. 370.
2 Manning v. Dove, 10 Rich. 403. When a claim for a homestead is
3 Terry V. Terry, 39 Tex. 310 ; Moore filed by the head of a family, the
V. Owsley, 37 Tex. 603 ; Ross v. Smith, beneficiaries are parties (King v.
44 *rex. 398. Skellie, 79 Ga 149), though not for-
^ Murphy v. De France, 105 Mo. 53 ; mally so, necessarily.
15 S. W. 949. ' Griffle v. Macey, 58 Tex. 310.
5 Miller v. Schnebly (Mo.), 15 8. W. i
433 ; Cloud V. Inhabitants, 83 Mo. 357.
648 THE 0HIT,DEEN'8 HOMESTEAD.
stead in the land. She was allowed only to have right to her
husband's interest at the date of the deed, and to improve-
ments so far as they were made with her money. In an
action to enforce the trust, the children of the deceased were
necessary parties. The equal division of the property between
the creditor and the widow, saving to her the benefit of her
money put into the improvements, was considered just. If
this was not practicable, she should be assigned the dwelling-
house for herself and her husband's children with the part of
the land on which it was situated, reserving their right to the
subsequent adjustment of any inequality, while the rest of the
land should be sold to satisfy the debt secured by the trust
deed.i
§ 3. Minors as Litigants.
The head of the family is the one to bring suit to recover a
homestead unless there are good reasons to show why another
has become the plaintiff for such purpose. Though others be
beneficiaries, they should not usurp the position of their head
without any reason assigned.^ A widow and children were
allowed to proceed by bill to have themselves subrogatedto
the rights of the deceased husband and father who had died
pending his application for homestead, and during litigation
between him and purchasers' at a judicial sale which had taken
place after his application. The bill was to have them subro-
gated, to enforce their rights to the homestead and to compel
the purchasers to account for rents and profits.'
1 Id. The delivery of a homestead after
* In Georgia the statute (1876) gov- sale has been enjoined till the rights
erns. Shattles v. Melton, 65 Ga. 464 ; of minors have been ascertained.
Zellers v. Beckman, 64 Ga. 747. The Colley v. Duncan, 47 Ga. 668. A
head of the family need not name the widow, in Georgia, sold her home-
members of it in his pleading. Hor- stead as the head of a family consist-
ton V. Summers, 62 Ga. 303. A step- ing of herself and her minor son. It
mother may be the head of the family had been regularly set apart to them
on the death of her husband while out of the lands of her late husband,
she cares for his children. HoUoway without objection on the part of the
V. HoUoway, 86 Ga. 576. And so major heirs. She sold pursuant to
may an unmarried woman who sup- judicial order, made under § 3035 of
ports an invalid sister residing with the Georgia Code. The purchaser was
her, in South Carolina Chamberlain held to have obtained a title good
V. Brown, 33 S. C. 597. against the heirs of age and their
' Hodges V. Hightower, 68 Ga. 381. privies, who had no resort but against
MINOES AS LITIGANTS. 649
A widow's possession of a hom-estead is sufficient title to
enable her to sue for damages to the property ; ' and she may
represent the children in their claim.
It is thought that a wife may sue to recover a homestead,
for herself and her minor children, when it has been set apart
as a homestead to her husband, and they have been' dispos-
sessed. The husband's being joined with them, as a party
plaintiff, is not considered absolutely essential.^
The transfer of landed property, including an unselected
homestead, by a husband without his wife's consent by signa-
ture, will not estop her from claiming the rights of herself and
children, though a suit in ejectment, brought by a purchaser
at execution sale, may have ousted the husband's grantee.
Not being a party to the ejectment suit, she is not concluded
by it, and may subsequently assert her right, and that of her
children, to have a homestead carved out of the land to the
value and quantity limited by law.^
'No sale, under foreclosure of a mortgage given by a hus-
band alone, can be had after his death without the prior as-
signment of homestead to the widow from the mortgaged
realty which includes the home place.* She has been held not
prejudiced by the act of her husband in leasing the home-
stead from a purchaser of it al! a tax sale. She may plead the
statute of limitations against the tax deed just as though the
leasing had not taken place."
the property in which the price had otherwise entitled to do so in the
been invested. The purchaser ac- proper court. MoMaster v. Arthur,
quired both the title of the estate and 33 S. C. 512.
that of the beneficiaries. Fleetwood ' Int etc E. Co. v. Timmermann,
V. Lord, 87 Ga. 593 ; 13 S. E. 374. The 61 Tex. 660 ; Tex. etc. R. Co. v. Levi,
widow retains life estate in use which 59 Tex. 674. Compare May v. Slade,
her husband had held. Lowe v. 34 Tex. 205, and Miller v. Brownson,
Webb, 85 Ga. 731. In South Carolina, 50 Tex. 592.
the court of common pleas will not ^ Eve v. Cross, 76 Ga. 693 ; Braswell
entertain an original proceeding by a v. MoDaniel, 74 Ga. 319 ; Glover v.
widow for homestead in her deceased Stamps, 73 Ga. 209.
husband's land. Scruggs v. Foot, 19 ' First Nat. Bank of C. v. Jacobs, 50
S. C. 374 ; Ex parte Lewie, 17 S. C. Mich, 340.
158. But the fact that sale has been * Hall v. Harris, 113 IlL 410.
ordered will not prevent a widow, 5 Beedle v. Cowley (la.), 62 N. W.
for herself and the minor children, 493.
from claiming homestead, when
650 THE childeen's homestead,
§ 4. Rents and Profits.
Minor children do not forfeit their exemption right by
moving from the homestead after such right has once vested
in them. If they are occupants when the right accrues, they
do not lose their benefit by going away from the homestead
or by being taken away from it. They may even remove or be
removed permanently without endangering their rights as
beneficiaries.' They cannot waive their rights. Purchasers
are deemed to have notice of such rights, and to buy at their
peril. They are accountable for rents and profits from the
homestead of a minor, purchased without right.^ They can-
not disturb the family's possession.'
A widow removed with her own children from the home-
stead. Her step-daughter's husband administered on the
estate and collected the rents. After some years, the children
who, with their mother, had left the premises as above stated,
sued the administrator for their share of the rents, and re-
covered.* The renting of minor orphans' homestead by their
guardian, who removes them to his own residence, does not
operate the forfeiture of their exemption right.*
Where minor heirs have the right conferred upon them, by
constitutional provision, to share with the widow of the dece-
dent the rents and profits of the homestead, she cannot debar
them from it on the plea that her dower has not been as-
signed." There the children share equally with the widow
while they are minors.'
Where homestead is expressly for the benefit of widows and
minor children of householders,^ a childless widow has life-
estate in that of her late husband, not conditioned upon her oc-
cupancy of it. If he left children by a former wife, they share
' Farrow v. Farrow, 13 Lea, 120. children have a vested interest in the
2 Altheimer v. Davis, 37 Ark. 316. rents and profits, during their minor-
3 Qatton V. Tolley, 22 Kas. 678; ity, after the death of their father
Dayton v. Donavt, 22 Kas. 256. The widovs^'s rights in the homestead
* Harmon v. Bj'num, 40 Tex. 324. cease by abandonment or by the ac-
5 Brinkerhoff v. Everett, 38 111. 365 ; quisition of a home of her own. She
Shirack v. Shirack, 44 Kas. 653. cannot alienate it. Garibaldi v. Jones,
6 Winters v. Davis, 51 Ark. 335; 48 Ark. 230.
Const. Kas., ix, g 6 ; Mansfield's Dig., s Const of Arkansas, art. IX, §§ 6,
8 2588. 10 ; Dig. of Stat., §§ 3590-1 ; Gainus v.
' Under these constitutional and Cannon, 42 Ark. 503.
statutory provisions, in Arkansas, the
EBLATIVE TO INDEBTEDNESS. 651
the reiits and profits with their step-mother during their minor-
ity but need not live upon the premises. In case of the widow's
death while they are under age, they continue to enjoy the fruits
of the property till they reach their majority .^ A reason for giv-
ing non-occupant parentless minors the usufruct of the home-
stead is found in their want of the capacity of claiming or
deciding upon their rights. Their guardian may apply the in-
come to their benefit, and they would not lose any right by his
not making a specific claim for them.^ This reasoning would
not apply to the widow.
§ 5. Kelative to Indebtedness.
A statute, providing that the homestead shall vest in the
widow and minor children of a deceased head of the family,
free from his debts except those validly put upon it during his
life ; and that they shall succeed to the same estate which he
had,' was construed to give the widow the homestead subject
to no other debts of the late husband than those for which it
was bound before his death. The question was whether a
creditor whose claim antedated the purchase of the homestead,
and who therefore could have made his money out of it during
the husband's life, could do so. after his death ; that is, whether
the right expired with his life. The question was settled in
favor of the continuance of the creditor's right. The widow
took subject to the debt.*
If- the court has no authority to lay off a homestead, the
right of a widow and children to one is not barred by its order
to sell the lands of the decedent to pay his debts. Though
they may have been parties to the proceeding in which the
order is issued, they are not concluded by it, so far as their
homestead rights are concerned, since it would be futile for
them to assert what the court has no jurisdiction to grant.
Under such order, homestead should be set off to the widow
and minor children before sale. An adjudication that the sale
I Klenk v. Knoble, 37 Ark. 298 ; 3 Rev. Laws of Vt., § 1898.
Lindsay v. Non-ill, 36 Ark. 545 ; Tur- * McAlister v. White, 13 Atlan. (Vt.)
ner v. Vaughan, 33 Ark. 454; Johns- 602; Simonds v. Powers, 28 Vt 854;
ton V. Turner, 29 *Ark. 380. Perrin v. Sargeant, 38 Vt 84.
!i Booth V. Goodwin, 29 Ark 638;
Gould's Dig., ch. 68, § 80.
652. THE childeek's homestead.
is subject to their right was held illegal, and the purchaser not
bound to pay, by statute construction.*
Homestead property, descending to a widow and minor
children, is not an asset of the decedent's estate to be sub-
jected to administration.^ Though the family residence of the
deceased be liable to be taken in execution under a judgment
against an heir who has inherited it as property, so that the
purchaser at the judicial sale would get title, yet the posses-
sion of the widow who holds homestead right of occupancy
cannot be disturbed.' The case would be different if an adult
heir has established his own homestead on the inherited prop-
erty so as to protect it from execution.''
Property that was homestead descends to adult heirs sub-
ject to creditors' claims against their ancestor, where the home-
stead provisions do not interfere.* So, after the rights of the
widow and minor heirs have terminated, the homestead prop-
erty, in the absence of any statutory inhibition, is liable for
the debts of the deceased husband and father. Where the re-
version may be sold to satisfy his debts before the termination
of their right, the purchaser cannot get possession before."
Minor children hold the homestead of their deceased father
as co-tenants. When all become of age, the late homestead
may be sold to pay their father's debts, where there is no ab-
solute exemption. Sale before would be void. But any heir,
being adult at the time of such previous sale, would have to
wait till the youngest heir should become of age, before
bringing action for possession against the purchaser under
void title, as his right of entry does not accrue before.'
An act which provided that property exempted therein
should descend to the widow of the decedent for hei'self and the
1 MoMaster v. Arthur, 33 S. C. 513 ; < Shay v. Wheeler, 69 Mich. 254.
12 S. E. 808; Gen. Stat. S. C. §§ 1994, 5 Jackson v. Bowles, 67 Mo. 609, in
1997 ; Munro v. Jeter, 24 S. C. exposition of Gen. Stat Mo., p. 450,
29; Ex parte Lewie, 17 S. C. 153; §5.
Myers v. Ham, 20 S. C. 522. See epoian v. Vesper, 67 Mo. 727;
Swandale v. Swandale, .25 S. C. 389 ; Kaes v. Gross. 92 Mo. 647 ; Ehorer v.
Bridgers v. Howell, 27 S. C. 425. Brookhage, 13 Mo. App. 397.
2 Hanks v. Crosby, 64 Tex. 483 ; ' Kessinger v. "Wilson, 53 Ark. 402
O'Dooherty v. McGloin, 25 Tex. 72 ; {Eng. Dig. Ark., ch. 99, § 6, inappli-
Sossaraan v. Powell, 21 Tex. 664. cable) ; Nichols v. Shearon, 49 Ark.
3 Harris v. Seinsheimer, 67 Tex. 75 ; Kirksey v. Cole, 47 Ark. 504.
856.
RELATIVE TO INDEBTEDNESS.
653
children was construed to make her and them co-tenants in the
homestead; and it was held that their interest, during her
widowhood, might be sold by order of the probate court, just
as any other property derived from their father might be
sold.' As the children owned the fee and the mother only
an estate terminable by either her widowhood or her life,
there was tenancy in common.
Absolute title: Where the title, taken by the widow and
the minor children, is absolute, it cannot be divested by the
probate court or affected by the claims of the deceased hus-
band's creditors.' The indebtedness of his general estate does
not everywhere make any difference as to whether such title
be absolute or qualified.' The widow and minor take the
homestead absolutely, in some states, when the decedent's es-
tate is insolvent ; * but she takes only a life tenure, and they
an estate for years, when it is otherwise, since in the latter
case the heirs inherit so that their title cannot be divested by
law.
1 Morton v. MoCanless, 68 Miss. 810 ;
10 So. 72. . Campbell., C. J.: "The
only question in this case different
from those decided in Morton v. Cai*-
roll, 68 Miss. 699, 9 South. Rep. 896, is
as to the validity of an order of the
probate court to sell what is alleged
and proved to have been the exempt
property of the father of the plaint-
iffs, held under the act entitled ' An
act to amend the exemption laws of
this state,' approved November 88,
1865 (Acts, p. 137). The children and
their mother were co-tenants of this
land, the mother having an interest
terminable by her marriage or death,
and the children having the fee.
Hardin v. Osborne, 43 Miss. 532. The
interestof the children was subject to
sale as any other land owned by them.
MoCaleb v. Burnett, 55 Miss. 83 ; Code
1857, art. 151, p. 468. The wliole ob-
ject of the exemption law of 1866 was
to preserve the property from credit-
ors, and not to affect the power of the
courts to deal with the property as
•that of the children and heirs of the
exemptionist Iri the probate court
proceedings resulting in the sale of the
lands sued for here, there was no men-
tion of the land being homestead or
exempt property. The contrary is
rather suggested by treating the land
as subject to the widow's dower, but
the blundering ignorance on this sub
ject did not affect the power of the
court to deal with it, and fortunately
the proceeding was so conducted as
to result in a valid order of sale,
whereby the wicked and shameful
scheme which the then guardian now
swears she had in vievi^ was effect-
ually defeated. We are constrained
to believe that her memory is at fault,
and that she does great injustice to
honorable counselors when she states
that this scheme was with the knowl-
edge and advice of her lawyers. The
result in this case was right."
2 Plate V. Koehler, 8 Mo. App. 396.
3 Freund v. McCall, ^'3 Mo. 343.
*Hager v. Nixon, 69 N. C. 112;
Allen V. Shields, 72 N. C. 506.
654 THE CHILDEEn's HOMESTEAD.
Exemption was held to have vested absohitely in the widow
and minor children of an insolvent, though he had had no
homestead set apart or dedicated or occupied. He lived in a
rented house up to the date of his death. His real estate con-
sisted of a store-house and lot, and it was assigned to his
widow and children.' But when the estate of a widower was
not reported insolvent till his son had finished his minority
and the homestead right had thus expired, it did not vest ab-
solutely-by reason of the subsequent ascertainment of the in-
solvency.^
If the widow and minor children are left in possession, and
continue to occupy the homestead of the husband and father
who died intestate, they cannot be disturbed by distribution
of the estate or sale to pay debts, where they hold the home-
stead by absolute title ; ' and if she remarry, one-half of that
property is hers and the other belongs to the children.* The
statute was construed to mean that if the widow remarry and
yet continue to reside on the homestead, the exemption would
still hold good notwithstanding partition between her and the
children.^
Under another statute the homestead that was owned in fee
by the deceased head of his family, his widow is entitled to
occupy ; and she does not forfeit the right by remarriage.'
When both parents are dead, the right of occupancy continues
in the minor children.'
§ 6. Necessitous Children.
Homestead laws are not for the benefit of orphans, as such,
since they do not provide for all orphans. The parentless
children among the abject poor have no part nor lot in the
statutory provisions. Only the children of property-holders
are interested. And they are beneficiaries whether they be
orphans or not. If their parents have deserted them in a way
that would not amount to an abandonment of the homestead,
iHartsfield v. Harvoley, 71 Ala. o Brady v. Banta, 46 Kas. 131; 26
331 ; Ala. Code of 1876, §§ 2837, 2840. Pac. 441.
2 Baker v. Keith, 73 Ala. 121. epore v. Fore's Est (N. D.), 50 N.
3 Gen. Stat, of Kansas (1889), §2593. W. 712; Com. Laws of North Da-
< id., § 2596. kota. S§ 2450-1, 5778, 5781.
' § 5778.
PAEtlTION. 655
the minor children remaining on it would be protected in its
enjoyment.
The rule, that the children's homestead is given without re-
gard to their necessities, is not without exception.'
Minority, not necessity, is generally the condition on which
the children's honiestead is conferred.'^ The whole homestead
of the father vests in one minor child for the years of its mi-
nority if all the other children are adults.'
The children's homestead right is not extended beyond their
minority because of their need. The imbecility of one of the chil-
dren, of a mother who had been accorded homestead as the
head of a family when her children were under age, was held
to he not a sufficient reason for prolonging the homestead
right beyond the minority of the imbecile child and the death
of the mother. The malady, though contracted in childhood
and after the granting of the homestead, did not have the ef-
fect of extending the duration of the homestead.*
§ 7. Partition.
Immediate partition of the homestead between the widow
and minor children of the householder, upon his death, is not
usually authorized. The contemplation of the legislator is
that they should live together preserving the home which the
policy of the law seeks to conserve and protect. It is subject
to exceptions, but such contemplation extensively prevails.
Partition is deferred till the children reach their majoritj'.
The remarriage of the widow terminates the commune and
gives occasion for partition under some statutes. While she
remains single and occupies the premises, she is entitled to
her complete homestead privilege, even though the minor
1 In Louisiana, minors must be 3 Tate v. Goff (Ga,), 1-5 S. E. 30.
" persons dependent " to become ben- ' Simpson v. Wallace, 83 N. C. 477 ;
eflciaries. Woods v. Perkins, 43 La. Wharton v. Leggett, 80 N. C. 169;
An. 847; Briant V.Lyons, 39 La, An. Hager v. Nixon, 69 N. C. 108. By
64; Succession of Eobertson, 28 La. art. 10, § 5, Const. N. C. (1868), the
An. 833 ; McCoy v. McCoy, 36 La. -widow was excluded from homestead
An. 686; Succession of Melangon, 23 if there -were minor children.
La. An. 535 ; Burnett v. Walker, 33 * Neal v. Brockhan, 87 Ga. 130 ; 13
La. An. 335 r Succession of Norton, S. E. 283 ; Vanberg v. Owens (Ga.),
18 La. An. 36 ; McCall v. McCall, 15 14 S. E. 563.
La. An. 527 ; Stewart v. Stewart, 13
La. An. 398 ; Const of La., art. 319.
656 THE CHILDEBN'S HOMESTEAD.
beneficiaries may have left their home.' But, when they
were living permanently out of the state, she was denied
homestead.^
When the homestead period has expired, the partition may
take place between the remarried widow and the heirs now
all adult, just as any other real estate of the decedent might
be divided. The difference between partition of the latter
and of homestead is that in one case it may be immediate
upon the death of the owner, while in the other it is post-
poned.
"When the minor children of a deceased homestead-holder
have had their portion of the homestead assigned to them,
and no objection to the partition and assignment was made
by the widow at the time, and they have enjoyed possession
for years, she cannot be heard to dispute their title. There is
a case in which this was held, where the partition had been
made on the application of the children's guardian without
any objection being interposed. After they had been in the
enjoyment of their portion for twelve years, the widow at-
tacked their title in vain.'
The homestead is not usually partitioned between the widow
and minor : * the policy of the law is to keep them together
in the family home. This policy is such that in a partition
suit, instituted by the adult heirs of a deceased mortgagor
of a homestead occupied by his widow and minor heirs, the
plaintiffs cannot compel foreclosure if the interest is promptly'
paid by the widow and the mortgagee does not desire that
the mortgage be foreclosed.''
Whether adult heirs have the right of partition while there
are minor heirs and a widow depends, of course, upon the
statute of each state. Unless restrained by statute, they
1 Hafer v. Hafer, 36 Kas. 534; Van- And the statute declares the home-
diver Y. Vandiver, 30 Kas. 501 ; in stead to be the absolute property of
exposition of Comp. Laws of 1879, the widow and children,
ch. 33, g 5 : " If the intestate left a 2 Rock v. Haas, 110 111. 538.
widow and children, and the widow ' Criramins v. Morrisey, 36 Kas.
again marry, ^ or when all of said 447.
children arrive at the age of major- * Trotter v. Trotter, 31 Ark. 145 ;
ity, said homestead shall be divided, Nicholas v. Purczell, 31 la. 365.
one-half in value to the widow and s Hannah v. Hannah (Mo.), 19 S.
the other one-half to the childi-en." W. 87.
PARTITION. 657
would have such right as a general rule.' They are not ac-
corded it, however, in all the states.^ Wherever it is ac-
corded, if the interest of the widow is adverse to that of the
minor heirs, they must be represented by a guardian or other
disinterested representative.' Adult heirs cannot have the
homestead of the widow of an intestate partitioned as apart of
the estate, when she is possessed in conformity to the law of
the state, whether she has children of her own living with her
or not.*
Insol/oent estates: Under a constitutional provision giving
to the surviving spouse the use of the homestead for life, and
to the guardian of minor children such use as long as may be
permitted by the court having jurisdiction,' there can be no
partition of the property while so used, in order to give adult
heirs their portion, though the law of descent is not otherwise
affected. By the article of the constitution, above cited,
which leaves even the homestead of an insolvent to descend
like other property, subject to the suspense above indicated
in favor of the surviving sp6use and minor children, it is held
not liable for the debts of the deceased family head. A stat-
utory provision in contravention of this constitutional rule of
descent is void so far, and only so far, as it contravenes the
rule.? But this holding, that the homestead is not liable in
the hands of adult heirs for the debts of the deceased house-
holder, did not have the concurrence of the whole court. It
was ably contended by the chief justice that the constitution
does not warrant this doctrine, and that the statute assailed
is not in contravention.'
iKemp V. Kemp, 43 Geu 523; quoted and approved in Adair v.
Hager V. Nixon, 69 N. C. 108; Fight Hare, 73 ,Tex. 273.
V. Holt, 80 111. 84; Spaulding's Ap- ''Yoe v. Hanvey, 25 S. C. 94; Moore
peal, 52 N. H. 336. (See Tidd v. v. Parker, 13 8. C. 486; Bradley v.
Quinn, 52 N. H. 344,. and Barney v. Eodelsperger, 3 S. C. 227, and 17 S. C.
Leeds, 51 N. H. 253.) 9. Compare Elliott v. Mackorell, 19
2 Nicholas v. PurczeU, 21 la. 265; S. C. 242; Ex parte Ray, 20 S. C.
Heard v. Downer, 47 Ga. 631 ; Booth 246 ; Chalmers v. Turnipseed, 21 S.
V. Goodwin, 29 Ark. 636; Day v. 0.136; Act of 1873, 15 Stat 371.
Adams, 42 Vt 517; Sheehy v. Miles 'Const Texas, art 16, § 53; Rev.
(Cal.), 28 Pac. 1046 ; Estate of James, Stat of Texas, art 1996, § 4
83 CaL 415. " Zwernemann v. Von Rosenberg,
'Osborne v. Osborne, 76 Tex. 494; 76 Tex. 533, and cases cited.
Hudgiiis v. Sansom, 73 Tex. 329, 7 Dissent by Stayton, C. J.; 7*.,
43 p. 528, and many cases cited.
658 THE CHILDREN'S HOMESTEAD.
Again the question ca,me up at the same term in which the
last cited case was decided, and the deliverance was in accord ;
and again 'the chief justice dissented.^
A statute provides that in-partition suits in case of sale,-the
court may or^er the sale of property in which one is entitled
to claim an-estate of homestead, if the person so entitled con-
sent to have, such; property; sold with the rest of the realty
involved in the suit. The necessity of the sale of the latter
must first have been found.
If a party to the partition suit is decreed to he entitled to
an estate of homestead in the land- to be divided, it must be
set off -by commissioners before the. sale of the rest, when he
has not consented' to have it all sold together. A partition
without such setting off would be illegal; and an order for it
would be reversible error. The setting apart is imperative if
it can be done without injury tothe parties in interest.^
The homestead of lan insolvent was set apartto his widow.
Their adult daughter inherited the homestead (which had
been community property of her parents), upon the death of
her mother, with absolute title, exempt from -the claims of
creditors and not subject to administration. It was held that
a statutory provision conferring the title of the homestead
absolutely upon the widow and minor children is unconsti-
tutional because divesting the rights of adult heirs.' The
iChilders v. Henderson, 76 Tex. with appellants' contention by the
664. decision of the supreme court in the
^Cribben Y. Cribben (III.), 27 N. E. case of Zwernemann v. Von Eosen-
70 ; 111. Eev. Stat., ch. 106, § 33. berg, 76 Tex. 532, 13 S. W. Eep. 48.5,
3 Lacy V. Lockett (Tex.), 17 S. W. and that, therefore, the judgment
916; Const, of Texas, art. 16, § 52; rendered in favor of the adminis-
Eev. Stat, arts. 1817, 1993, 3003, 3007 ; trator is incorrect, and ought to be
Zwernemann v. Von Eosenberg, 76 reversed. Eev. St, arts. 1817, 2003.
Tex. 532 ; Scott v. Cunningham, 60 Under article 1817, the administrator
Tex. 566; Eainey v. Chambers, 56 is not entitled to the possessien. of
Tex. 20. Formerly the widow took the exempted property. The estate
in fee, in case of insolvency. Horn v. of N. H. Cook being insolvent, and
Arnold, 53 Tex. 161, under probate the homestead having been "'set
law of 1848 ; Eeeves v. Petty, 44 Tex. apart " in accordance with the pro-
249 ; Green v. Crow, 17 Tex. 188. In visions of law in such case, by the
the case of Lacy v. Lockett, supra, county court to Mrs. Cook as the sur-
the court, after stating the facts at viving widow and constituent of the
length, delivered the following opin- family, she took the same unbur-
ion : We regard the question here pre- dened with any debts of the husband,
sented as determined in accordance and free from the claims of his
PAHTITIOir.
659
doctrine enounced is that the rights of adult heirs cannot , he
divested; but that creditors have, no right, torloot to the Jiome-
stead, and therefore they are not injured by the grant }of,an
absolute title to the vridow and minor children. If >there /be
debtors. Id., ait 2002; Childers v.
Henderson, 76 Tex. 664, 13 S. W.
Rep. 481. This exemptipn, .uriijer
svich circumstances, was a, pontinu-
ing and a permanent one, and " ad-
hered to the land," not merely to the
homestead right in the land. This
resjilts.frpm the terms, of the pi;esi^t
statutes on the subject, and was the
rule .under former laws. Articles
1817, 1993, 2002, 2005, 2007 ; Zwerne-
mann v. Von Rosenberp, supra;
Scott V. Cunningham, 60 Tex. 566;
Rainey v. Chambers, 56 Tex. 20 ;
Reeves v. Petty, 44 Tex. 249 ; Horn v.
Arnold, 53 Tex. 161 ; Green v. Crow,
17 Tex. 188. Article 2003 is uncon-
stitutional only in so far as it ^.t-
tempts to vest the fee in the home-
stead in the widow, another surviv-
ing constituent of the family, abso-
lutely, to the exclusion of the adult
sons or married daughters, contrary
to the mode of descent prescribed in
the constitution. Case first cited,
and article 16, §53, Const. The bal-
ance of this provision of law is oper-
ative. Id. The i-emaining part,
which does not conflict with the
constitution, plainly declares that the
homestead set apart to the widow
and children, "as provided by law,
and, when the estate proves to be in-
solvent," " shall not be taken for any
debts of the estate," except for the
purchase money thereof, taxes
thereon, and for improvements.
Article 2007. As construed in the
opinion of the majority of the court
in the fpregoing case, this provision
of law has the effect of removing the
property set apart to the surviving
wife from the assets of the estate of
the decedent, and of permaiiently
protecting the property -from the
claims of the creditors. Of coiirse,
if ibp^hbusband arid^wife die,(le!%xwg
BO cons|;iti.ient of tlie faipily, ^.^^Ije
homestead could. not lae " set afjai't,"
but would be assets in the hands of '
the administrator for the payment of
debts. fGivens v. Hudson, ?4 1 Tex.
,471. Upon the death of.JST. JI. .Q^c^k
his wife and daughter inherited pr
took the title to the land composing
the homestead in equal portions, and
upon the decease of Mrs. Cook the
title to the whole property (except
that part already sold) vested in i£he
appellant Mrs. Annie G. Lacy. As
the exemption from forced sale con-
tinued from the time it was set apart
to her mother, and as it was there-
after not liable for the debts of the
deceased father, as we have seen, it
follows that she inherited the prop-
erty absolutely, and free from the
claims of the creditors or the admin-
istrator. See, also, 76 Tex, 664, 13 S.
W. Eep. 481, and Hoffman v. Hoff-
man, 79 Tex. 189, 14 S. W. Rep. 915,
and 15 S. W. Rep. 471. These con-
clusions, we think, necessarily result
from the opinion of the court in
Zwernemann v. Von Rosenberg,
supra, and we content ourselves,
therefore, with resting the decision
now made upon the authority of that
case. See dissenting opinion of
Chief Justice Stayton. This also
determines the question in favor of
Mrs. Anderson. The Bouldins were
protected by the judgment below
upon the ground that the purchase
money paid by J. W. Bouldin was
expended by Mrs. Cook in improving
the land iii dispute. No one com- ,
plains of that on this appeal. We
660 THE OHILDBEX'S HOMESTEAD.
anything inheritable, in the estate of a decedent, it seems clear
that the heirs cannot constitutionally be cut off; but what is
there for them in an insolvent estate? If any wrong is done
by the enactment of the provision above mentioned, it was
rather done to the creditors than to the heirs — one might
say — if the principle were not well established that creditors
who are notified before giving trust cannot look to the debtor's
homestead as any part of the common pledge for the security
of the debt. Under some statutes, the creditor's remedy is
not denied, but merely postponed, so that when the minor
children of a debtor had had homestead in their father's es-
tate which was insufficient to pay his debts without it, the
homestead was applied to the payment on the expiration of
the children's right by reaching their majority.^
conclude that, as between appellee pay in due course of administration
and the Bouldins, the judgment in all costs of the district court and of
their favor ought to be aiHrmed, but this appeal.
that as between appellants Mrs. Diana Per Cueiam. AflBrmed and re-
Anderson and Mrs. Annie G. Lacy versed and remanded, as per report
and her husband and the appellee of the commission of appeals,
the judgment in her favor should be Stayton, C. J. (dissenting). I do
reversed, and here rendered in favor not concur in the opinion of this
of the appellants, so that appellee case, for the reasons given in dissent-
shall take nothing by the suit, but ing opinion in Zwernemann v. Von
that the appellants be dismissed with Rosenberg, 76 Tex. 528, 13 S. W. Rep.
their costs, and that appellee, as ad- 485.
ministrator, etc., shall be adjudged to i Taylor v. Thorn, 39 O. St 569.
CHAPTEK XXn.
ALLOTMENT TO THE DEBTOR
1. Statutory Provisions.
3. The Debtor's Application.
3. The Sheriff's Duty before Sale.
§ 4. The Creditor's Contesting Affi-
davit
5. Confirmation by the Court.
6. Costs Impairing Contract ^
§ 1. Statutory Pl-OTisions.
When judgment has been rendered against a debtor entitled
to homestead, and execution has been issued or is about to be
issued against property in which his homestead interest lies,
it becomes necessary to allot to him what the law allows him
to hold exempt from execution. This is necessary,
1. When the property occupied by the debtor as his home-
stead is charged by the creditor to be in excess of the stat-
utory limitation.
2. When no homestead has been declared, selected or dedi-
cated by the debtor, so that his exemption right must be
claimed by him and awarded by the court.
3. When the married debtor has mortgaged his homestead
with other property connected therewith, without his wife's
consent, so that, upon foreclosure of the mortgage, the liable
portion must be separated from that which is exempt.
Application for the allotment is made by the party in-
terested. The debtor is that party in states where his silence
would betaken as assent to the execution; where he is re-
quired to claim his right, if he does not mean to forfeit it.
Under such rule, it is usually allowable for his wife to claim
in his stead, if he neglects or refuses to act. Even minor
beneficiaries of exemption may claim through their guardian,
under circumstances rendering such action necessary for the
maintenance of their rights.
The tender solicitude of the legislator for the interests of
wives and minor children, and his policy of conserving homes
for the public welfare, cause the rule allowing their interven-
tion to be liberally extended to them. And the widow of a
662 ALLOTMENT TO THE DEBTOE.
debtor who has died at the juncture when apphoation was to
be made, if made at all, may act in his stead. It is her place,
not that of the executor or administrator, to apply for the
allotment, when the homestead constitutes no part of the es-
tate that is administrable by him. The debtor may make the
application through an agent or attorney.
The creditor is the party to make application for allotment
to the debtor'where presumption is in favor of the latter as to
the extent and value of the homestead occupied by him ; and
where the debtor would be guilty of no laches, and would for-
feit no right, by failure to claim. If the law strikes the sale
of a homestead with nullity when it is sold with liable prop-
erty, without segregation, it is manifestly to the interest of
the creditor to have the exempt portion set apart to the debtor,
so "that the liable portion may be validly subjected to execu-
tibn.
The application should state the facts, name the parties, de-
scribe the property, and pray for appraisement and for the
allotment of the homestead. If the debtor's wife be the ap-
plicant, she should aver her relation, and it is generally re-
quired that she declare that her husband has neglected or
refused to apply, as the case may be. If a guardian is the
applicant, he should aver his position and the circumstances
j.ustifying his appearance and application.
The most important allegations of the debtor (or of any one
representing his and his family's interest) are the facts of
ownership, occupancy, family headship and whatever the stat-
ute imposes as conditions to the right of homestead. And if
thie whole of the property occupied is claimed as exempt, the
quantity and value ought to be asserted as not exceeding the
statutory limit. '
The appraisement is made by appraisers, commissioners or
jufors, as they are differently called in different states. There
are usually three or more. It is a provision not unusual that
the plaintiff may nominate one; the defendant, another; and
the sheriff, the third. The court appoints'; in some states,
the officer charged with the execution appoints the apprais-
ers. When it is made his duty to set apart the statutory
homestead to the debtor before or at the time of making his
levy, he is aided in doing so by appraisers, usually those of
STATUTOKY PEOVISIONS. 663
his own appointment^, though two may be nominated by the
parties. Some statutes require that appraisers shall be free-
holders or householders.
The duty of the appraisers is not only to estimate the home-
stead but to ascertain whether it is susceptible of division if
found in excess of the limit as to quantity or value.
The report must be reduced to writing, duly returned and
filed in the record of the case. Either party may oppose it
by the ordinary legal methods of opposition to awards of
auditors and the like. If there is a statutory method pre-
scribed, that should be observed. In some states, there are
such. The following is a sample :
The creditor, as plaintiff in execution, may file an affidavit
in the case, before the return of the writ, declaring that he
verily believes the allotment made to the debtor by the per-
sons appointed for the purpose " is not correct, and that the ^
land so allotted, or some part of it, is liable to sale under his
execution." Then a summons must be issued for the defend-
antj returnable to the next term of court. On its return, issue^
is made under the direction of the court, and tried " as in the
case of the trial of the right of property levied on by execu-
tion or attachment and claimed by a third person; and if the
issue be found for plaintifip, a venditioni exponas shall be issued
for the sale of such of said land as may have been found lia-
ble to sale." '
On the other hand, a dissatisfied debtor-defendant may
make affidavit of the incorrectness of the award to him, cause
summons to be issued to the plaintiff, and have the matter
judicially settled.^
If the report of the appraisers favors division, and is such
as the court will adopt and act upon, the reservation of the
exempt portion will be ordered, and the execution will oper-
ate upon the rest. If the report shows that the property is
indivisible, yet excessive, the court will allow the whole to be
sold, and will have the value of the homestead reserved for
the debtor, out of the proceeds, in accordance with law. The
sum thus reserved is exempt in the hands of the debtor for
such period as the statijte of the state prescribes : six months,
1 Miss. Eev. Code, 1880, § 1353. See J lb., § 1354.
Miss, Code of 1892.
664 ALLOTMENT TO. THE DEBTOB.
one year, or two years, as the limit may be; one year is the
usual term.
If, at the offering at public auction, no bid exceeds the
homestead limit of value, there can be no adjudication.
It is a provision not unusual that the debtor may save his
indivisible and excessive homestead from execution by paying
the excess into court for the use of the creditor. If the cred-
itor gets out of the debtor all that he could make out of the
property, justice is satisfied. Can this be done in the absence
of such a provision? There is nothing to hinder the debtor
from paying, but the release of the excess from execution
would not attend the payment, without such provision, unless
he should pay enough to satisfy the whole debt. For it is his
duty to pay all, if he can ; and his payment of a part would
not relieve his property exceeding the homestead from lia-
bility to pay the balance of the debt.
Under such statutory provision is the excess, thus relieved
by payment, liable to a second execution ? Clearly. To a
second by the same creditor? Yes; for it has not been ren-
dered exempt as a part of the homestead. It has only been
relieved from the first execution b}' statutory provision. At-
tacked again, it may be relieved again, under the same pro-
vision, by payment of so much of the debt as its execution
would satisfy. Here is no hardship to the debtor. He has his
exempt portion and is entitled to no more; and h6 is not
made to pay for it twice, but to pay two different debts which
he ought to pay.
On the other hand, by a provision not so common, the cred-
itor may pay the value of the exempt portion of an indivisible
and excessive homestead, into court for the use of the debtor,
and then go on and have the whole property sold under his
execution.
By a provision still less common, the homestead of a debtor,
when it cannot be segregated from its excess without injury, is
rented for the benefit of the creditor, who is paid the rental
excessive of one hundred dollars per annum, in lieu of the
proceeds of sale, if the debtor will agree. But if he will not,
the homestead is sold at not less thfm its appraised value.'
' In Ohio, Giouque's Rev. Stat, sand dollars' worth of realty may be
§ 5439. While in this state, one thou- set ofif to the debtor (g 5438), only five
THE DEBTOE S APPLICATION. 665
§ 2. The Debtor's Application.
The debtor against whose realty execution is about to be
directed may then claim homestead therein, if he has not al-
ready selected one and had it set apart to him. He may
make his claim at any time before the order of sale has been
granted.'
The proper time for a debtor to claim exemption is when the
writ for execution goes into the oflBcer's hands. It is not al-
lowable for him to move upon premises afterwards and then
claim them on the plea of occupancy.^ If he is already in oc-
cupancy, and has his homestead rights established, he is not
invariablj'' required to make claim against an execution at that
juncture, under penalty of forfeiting his right. In several
states, he may make his application at any time before the
sale. And, where his homestead rights are vested, they can-
not be divested by the sale itself. He may, under certain cir-
cumstances, be presumed to have voluntarily relinquished his
right by failure to assert it. As in ordinary cases, it has been
held that the judgment lien attaches when the order of sale
is made.'
An exemptionist cannot stand silent and see his homestead
sold under a chancery decree in a case in which he is a party,
and afterwards claim the property. He must claim his ex-
emption right before sale, if he would do so effectually. If he
stands silent and lets a bidder buy the property, he cannot
plead the immunity of the property when that purchaser seeks
hundred dollars' worth may be saved pointed outbyistatute ; for the statute
to him when the homestead is sold to itself makes this reservation. Under
enforce liens (§ 5440). Persons enti- various ciicumstances, the claim has
tied to homestead may take five hun- its full effect though no formal dec-
dred dollars' worth of personal prop- laration may Iiave been recorded,
erty in place of it (§ 5440). How Jarrell v. Payfap, 75 Ala. 577;Zel-
homestead of an insolvent debtor is nicker v. Brigham, 74 Ala. 598 ; Keel
exempted, see §§ 6348, 6351. v. Larkin, 72 Ala. 493, SOS; FarJey v.
1 Toenes v. Moog. 78 Ala. 558. In Riordon, 72 Ala. 128 ; Shirley v. Teal,
Alabama, the statutory method of 67 Ala. 449 ; Fellows v. Lewis, 65 Ala.
claiming homestead by declaration 343 ; Randolph v. Little, 62 Ala 396 ;
and recordation is not exclusive. Fail- Wilson v. Brown, 58 Ala. 63 ; McGuh-e
ure to declare and file is not a waiver v. Van Pelt, 55 Ala. 344.
of the right, which may be set up 2 Freeman v. Stewart, 5 Biss. 19 ;
against a levy or other process though Stat, of Wis., g 2988.
not previously claimed in the way ' Dickerson v. Carroll, 76 Ala. 377.
dQ& ALLOTMENT TO THE DEBTOR.
to eject him. He cannot attack the judgment collateral^.
Even should he attack it directly, and get it reversed on appeal,
" the reversal would not -affect a title acquired under it while
it was in forces" '
The debtor is entitled to opportunity for selecting hishome-
stead when execution is levied against his property.^ The
issue of the order of sale, when he has not had such opportu-
nity, for any reason, ought not to fix the judgment lien irre-
movably upon all his real estate. The want of opportunity
should be received by the 'court as good ground for vacating
the order, on rule. The homestead right is not necessarily
lost, even by sale without allotment ; but failure to allot is
not everywhere fatai to the sale.' But if there are objections
to proceedings had in setting a homestead apart in view of
an execution sale, they should be made before the execution
of the judgment. They cannot be tolerated as a collateral
attack upon the judgment.*
Though the debtor's failure to select homestead before exe-
cution may not be considered everywhere as a waiver of his
privilege, he may be confined afterwards, in his selection, to
the legal subdivision of land which includes his dwelling.'
When the debtor claimed too much, it was not held fatal,
but the court could compel him to confine himself to the legal
quantity, and could order the sale of the balance. The ex-
empt portion should be adequately described. It is errone-
ous to describe the whole tract, less the homestead, without
specification.'
Under a statute according exemption to a certain amount
in case of execution pending, but providing for no dedication
or recordation of homestead to families irrespective of indebt-
edness, the debtor is required to furnish a list of his property
to the ofiicer in charge of the execution, if he means to avail
himself of the exemption. His wife may furnish it, and point
1 Miller v. Sherry, 2 Wall. 337, 348, 497 ; Vogler v. Montgomery, 54 Mo.
Swayne, J., case from Illinois. 577 ; Lallement v. Poupeny, 15 Mo.
2 Shaoklett v. Scott, 23 Mo. App. App. 577.
333 (execution quashed for the fail- 3 Crisp v. Crisp, 86 Mo. 630.
ure of the sheriff to comply with ^Lallemont v. Detert, 96 Mo. 183.
statute — Rev. Stat of Mo., g§ 3689, » Martin v. Aultman, 80 "Wis. 150.
2690) ; State v. Emmerson, 74 Mo. « Hardy y. Sulzbacher, 63 Ala. 44
607 ; Hombs v. Corbio, 20 Mo. App.
TSE DEBTbK's' APPLICATION. GOT
out the property to be exempted aS a homestead, if he be ab-
sent.' '
A petition for holnestead need not aver the acquisition and
occupancy of the premises (sought to be set apart) b'efore the
debt arose against which the exemption is claimed, where the
statutie does not require such allegation. Where it does,
either expressly or impliedly, the declarant should aver pres-
ent occupancy and the nature of his possession.^ An over-
estimate of the value of the property declared upon is not fatal, .
if the real value is within the monetary limit.'
Lost claim: After a general assignment by a debtor, he can-
not move upon part of the property which he had never oc-
cupied as a home, and then successfully claim it as his home-
stead, in an attack upon the assignment made several months
after its date. The creditor's rights relate to the time of the
assignment, when there was no reservation of homestead.*
Assigninent, or conveyance to preferred creditors without
reservation, will be treated as a general assignment, with its
consequence — the loss of the homestead — where preferences
are disallowed.'
Creditors, asserting that their debtor's land had been fraud-
ulently conveyed, subjected it to execution. The debtor
and the grantee afterwards sued to set the execution and
sheriff's sale aside, and homestead right in the land was now
set up — too late, the court said, since the property had been
surrendered.^
In a suit to recover land, the defendant should claim his
homestead in his pleadings if he wishes to retain his right to
it.' It is too late to claim exemption after the law creating it
has been repealed.'
1 State V. Melogue, 9 Ind. 196 ; Aus- 10 Bush, 631 ; Lisky v. Peny, 6 Bush,
tin V. Swank, 9 Ind. 109. 515 ; Cantrill v. Risk, 7 Bush, 159.
^Boreham v. Byrne, 83 Cal. 33. « Snapp y Snapp, 87 Ky. 554.
3 King V. Gotz, 70 Cal. 336. 'Wilson v. Taylor, 98 N. C. 375;
* llcCann v. Hill, 85 Ky. 574 ; Nich- Hinson v. Adrian, 93 N. C. 131. See
ols V. Senuitt, 78.Ky. 630. Hartman v. Spiers, 94 N. C. 150;
» As in Kentucky : Gideon v. Struve, Flora v. Eobbins, 93 N. C. 38.
78 Ky. 134; Wing v. Haydon, 10 « Clark v. Snodgrass, 66 Ala. 338;
Bush, 280 ; Bobbins v. Cookendorf er, Giddens v. Williamson, 65 Ala, 489 ;
Jenkins V. Lovelace, 63 Ala. 371.
668 ALLOTMENT TO THE DEBTOR.
§ 3. The Sheriflfs Duty before Sale.
The claim having been duly made, the sheriff cannot pro-
ceed with the execution until he shall have complied with the
law requiring him to ascertain the value and extent of the
property subjected to the levy.^ If he should proceed without
doing so, however, he would be liable to no damages in case
the claim prove to be untenable.^ For instance, if the deed
declaring homestead was filed for record after judgment had
; been rendered against the declarant which was a lien on the
property, a homestead claim by the defendant in execution
would be of no avail as to that judgment ; and no damages
would accrue by reason of the sheriff's failure to regard the
claim.' If the officer in charge of the execution should set off
a homestead to a debtor whose claim was groundless, his re-
turn show^ing such action may be quashed upon motion.*
"Whether the sheriff or other oificer, charged with the duty
of setting off the homestead, be liable to damages or not for
neglecting to do so, his neglect may affect the validity of the
subsequent proceedings when no discretion has been given him
by statute. For, the law requiring the homestead to be marked
out, platted and recorded, it is the duty of an officer in charge
of an execution against the owner's property to have the mark-
ing, platting and recording done, if the owner has not done so
already. His neglect to do so will invalid'ate the sale made
without such compliance with the law.' But it will not preju-
dice the beneficiaries in their right.' "Where by law the sher-
iff should cause the exempt part of property (which has been
levied upon for debt) to be set apart to the debtor,' the debtor
may compel him to do so;* and when segregation is impracti-
cable, the debtor is entitled to the proceeds of the sale to the
value of the legal homestead.'
■ 1 Vogler V. Montgomery, 54 Mo. Linscott v. Lamart, 46 la, 312 ; White
577 ; Shacklett v. Scott, 23 Mo. App. v. Eowley, 46 la. 680.
323. Compare Casebolt v. Donaldson, 6 Gray v. Baird, 4 Lea, 212.
67 Mo. 308. " ' Tucker v. Kenniston, 47 N. H. 267.
2 Shindler v. Givens, 63 Mo. 894. 8 Barney v. Leeds, 51 N. H. 253.
>Ib.; Lincoln y. Eowe, 64 Mo. 188: sNorris v. Moulton, 34 N. H. 393;
State V. Diveling, 66 Mo. 375. Fogg v. Fogg, 40 N. H. 289 ; Bowman
« Creath v. Dale, 69 Mo. 41. See v. Smiley, 31 Pa. St. 235 ; Miller's Ap-
Straat v. Rinkle, 16 Mo. App. 115. peal, 16 Pa. St. 300 ; Dodson's Appeal,
sAultman v. Howe, 10 Neb. 8; 25 Pa, St. 234; Line's Appeal, 2
THE sheriff's DUTY BEFORE SALE. 669
Pending an execution, the sheriff caused a homestead to
be set apart to the debtor, which was immediately found, by
a jury, to exceed by one-third the constitutional limit of a
thousand dollars. The realty, including the homestead, was
then sold, and a thousand dollars reserved to the debtor out
of the proceeds. But, on appeal, the sale was held erroneous.
There should have been a re-allotment.' If the property was
not susceptible of division so as to assign precisely property
enough to give homestead to the limit prescribed, how would
re-allotment be practicable?
It is the right of a debtor, when execution is to be levied
upon his land, to have existing incumbrances taken into ac-
count when appraisers are locating the exempt portion to
which he is entitled, for his homestead, and fixing its dimen-
sions.^
To avail himself of this right, he should proceed by motion
in the case giving rise to the execution. He cannot after-
wards attack the apportionment in a collateral proceeding.'
The setting apart by the appraisers can be done only when he
has neglected to select the homestead himself.* After selec-
tion by appraisers has been confirmed and the cause closed,
their action is final.'
If the valuation of the homestead (set apart for the debtor,
preliminary to execution of his other property) is erroneous
but not fraudulent, a creditor who participates in the pro-
ceeds of the sale of the other property cannot be heard after-
wards to deny the validity of the sale on that account." But
the valuation is not conclusive upon the debtor and therefore
he cannot quash the execution on the ground of erroneous
valuation.'' The report of the appraisers, pending execution,
Grant's Cas. (Pa.) 198. The Pennsyl- ' Meyer v. Nickerson, 101 Mo. 184.
vania cases hold that the debtor must * Same parties, 100 Mo. 599.
claim his rights, £is otherwise he will » Lallement v. Detert, 96 Mo. 182.
forfeit them ; but the claim is in time, « Fenwick v. Wheatley, 23 Mo. App.
even on the day of sale. Seibert's 641 ; Eev. Stat. Mo., § 2698 ; Austin v.
Appeal, 73 -Pa St 361. Loring, 63 Mo. 19 ; Slagel v. Murdook,
1 Oakley v. Van Noppen, 96 N. C. 65 Mo. 522 ; Barney v. Leeds, 54 N.
i847 ; Campbell v. White, 95 N. C. 491. H. 128.
«Eev. Stat of Missouri (1889), ' Straat v. Rinkle, 16 Mo. App. 115 ;,
^§ 6436-7; Eussell v. Place, 94 U. S. Mo. Eev. Stat, § 2698.
670 ALLOTMENT TO THE DEBTOR.
may be set aside in a direct proceeding.' It bas been held
that it cannot affect the rights of those entitled to exemption
by statute, nor can its absence defeat the right.^
An order setting aside an appraisement and directing
another does not exhaust the court's power to correct an er-
roneous assignment of homestead.' A new set of. appraisers
may be appointed ; and it has been held that those suggested
by one party may be selected by the court without notice to
the other.^ The report of ; appraisers may be set. aside by a di-
rect proceeding, as already stated ; but it cannot be done on
motion to quash when the statute points out a different way.*
The court cannot vacate, an appraisement unless the pleadings
and the proof bring the. case within the statute prescribing the
procedure to set it aside and appoint new appraisers.^
An erroneous return of the sheriff, relative to the setting
of a homestead apart, may be quashed onmotion, when the
exemption cannot be claimed legally against the judgpient
whence the execution was issued.' After the debtor has claimed,
the sheriff cannot proceed upon the execution before having the
property appraised to see whether there is anj'thing non-exempt
to be sold.^ But, failing to claim homestead in the land against
which the execution is levied, the debtor has been held not en-
titled to claim any part of the proceeds of sale, under a statute
which authorized homestead in realty but not in its proceeds.*
When there is no just ground for a homestea;d claim, the
sheriff's disregard of the debtor's application will not vitiate
the sale.'" And if there is just ground, and the claim be disre-
garded by him, the sale is not necessarily void, since the court,
in a suit on that ground to eject the purchaser, may cause
homestead to be assigned to the complainant."
Claiming homestead is the proper remedy for contesting a
levy and sale made under an insufficient affidavit of the attor-
1 Schseffer v. Beldsmeier, 9 Mo. ^Fenwick v. Wheatley, 33Mo. App.
App. 438. 641.
2 Hill V. Johnston, 39 Pa. St 363 ; ' Creath v. Dale, 69 Mo. 41.
Peddlev. HoUinshead, 9 Serg. & E. ^Voglerv. Mpntgomery,54Mo. 578;
377. Shacklett v. Scott, .33 Mo. App. 323.
3 Kercher v. Singletary, 15 S. 0. " Casebolt v. Donaldson, 67 Mo.
535. 308.
< Ex parte Ellis, 30 S. C. 844. i« Shindler v. Gibbons, 03 Mo, 3^
5 Straat v. Rinkle, 16 Mo. App. 115. " Crisp v. Crisp, 86 Mo. 630.
THE sheriff's DDTY BEFOKE SALE. 671
ney directing the execution.' ]!^eglect to point out the property
which the debtor claims as his homestead, or refusal on. his
part to select any, will preclude him from being entitled to
notice of his right by the sheriff, and deprive him of ground for
quashing the levy for lack of notice.^
If a homestead increase in value beyond the statutory limit,
it may be appraised, re-assigned, and the excess exposed to
creditors; if it decrease, the owner may petition for a re-
valuation and have an addition to reach the statutory limit.'
A petition for appraisement may be passed upon without issue
formally joined. thereon.''
Distinction has been drawn between the levy of an execu-
tion after judgment, and that of attachment (which is a pre-
liminary levy of execution, if the attachment be sustained on
trial), in regard to the officer's duty to set apart a homestead
for the debtor.' When the contingent lien, created by attach-
ing, has been matured to a perfect lien by judgment, so that
the profjerty liable maybe sold under & venditioni exponas,
the court maj' then separate the exempt portion from that
which has been subjected to the attachment lien."
The qhantity and value may be ascertained by appraisers,
1 Brantley V. Stephens, 77 Ga. 467. bility of the homestead property.
2 Meyer v. Niokerson, 100 Mo. 599. Stone v. McCann, 79 Cal. 460.
3 Beckner v. Rule, 91 Mo. 62 ; Stub- * State v. Mason, 15 Mo. App. 141,
blefield v. Graces, 50 111. 110 ; Walters in exposition of Mo. Rev. Stat, §§2689
V. People, 21 111. 178 ; Estate of De- to 2692, held that the sheriflE is not
laney, 37 Cal. 180 ; McDonald v. Bad- authorized to set homestead apart on
ger, 23 Cal. 393. Contra: Richards attaching. State v. Shacklett, 37 Mo.
V. Nelms, 38 Tex. 447; Walker v. 284 ; State v. Moore, 19 Mo. 371 ; State
Darst, 31 Tex. 686. v. Powell, 44 Mo. 438 ; Berry v. Buok-
< By the California Civil Code, there hart, 1 Mo. 418, margin; Kean v.
is no authorization for demurring to Newell, 1 Mo. 754, margin.
or answering a petition for the ap- ' Homestead may be claimed by the
praisement of a homestead. When debtor after judgment, in Arkansas
a copy has been served on the claim- (Irwin t. Taylor, 48 Ark. 224), when
ant of the homestead two days before the case was one of attachment be-
the hearing, proof of notice and of fore a justice of the peace who had
the facts alleged by the petitioner no jurisdiction to allow homestead,
may be made, and the appraisers ap- The property attached was actually
pointed. The claimant may oppose occupied by the debtor, and held not
but should not file pleadings. Final affected by the levy of attachment
hearing is upon the report of the ap- Patrick v. Baxter, 42 Ark. 175 ; , Rich-
praisers, as to the value and divisi- ardson v. Adler, 46 Ark.,43.
672 ALLOTMENT TO THE DEBTOE.
and the exempt property duly marked by commissioners,
when the bounds have not been previously defined, though
the right has been reserved in a contract.'
When homestead has been set apart by the court, on applica-
tion, it is still liable to a proceeding by creditors to have it
appraised to ascertain whether its value exceeds the legal re-
striction.^ If found excessive and indivisible, the court may
order its sale that the proceeds to the extent of the statutory
limit may be invested in a new homestead. Several scattered
lots, worth together no more than the law exempts, may be
sold under judicial order, and the proceeds invested in a com-
pact home.' This is when the homestead beneficiary is a
debtor. When his homestead is plainly within the monetary
limit, judicial designation is not essential to exemption.* This
is ascertained by appraisement. An under-valuation of land
(whether done fraudulently or ignorantly) by appraisers set-
ting it apart as homestead to a debtor may be corrected at
the instance of a subsequent creditor who was not a party to
the proceeding. He may have every excess, above the al-
lowed maximum, subjected to his claim.*
When it is the duty of appraisers to make allowance for in-
cumbrances in estimating and laying oflf homestead, and they
neglect this duty, the proper remedy of the debtor is by mo-
tion to have the allowance made. He cannot attack the ap-
praisers' return collaterally.' But it is not always the duty
of appraisers to make such allowance. The following case is
illustrative : A homestead was allotted by appraisers. There
was a judgment docketed against it, several subsequent mort-
gages recorded, and a bond for title covering the homestead
allotment. The excess above the legal maximum of exemp-
tion was levied upon. Exceptions to the allotment were filed
some three weeks after it had been made, which did not raise
the question whether the value exceeded the maximum. The
' Crockett v. Gray, 31 Kas. 346. « London v. Yeager (Ky.), 14 & W.
2 Davenport v. Alston, 14 Ga. 371. 966 ; Gen. Stat Ky., ch. 38, art 13,
3 Georgia Code, g 5135; Harris v. §§9,10. Themonetary limit is $1,000.
Colquit, 44 Ga. 663 ; Blivins v. John- ^ Meyer v. Nickerson (Mo.), 14 S. W.
son, 40 Ga. 297; Cohen v. Davis, 20 188; Rev. Stat Mo. (1889), §§ 5436-7 ;
CaL 187. Lallement v. Detert, 96 Mo. 182 ;
* Dearing v. Thomas, 25 Ga. 224 ; State v. Mason, 88 Mo. 22a
Pinkerton v. Tumlin, 22 Ga. 165.
673
exceptions were in time, but there was no issue for the court
to determine. As the duty of the appraisers was confined to
the estimation and allotment, the rights of lieinholders could
not be passed upon in an appeal from the award of the ap-
praisers.' There cannot be a second allotment, after the ap-
praisers' return has been registered and the time for excepting
has expired, even under a judgment docketed after the first
allotment was made.^
The affidavit of the judgment debtor, to contradict the
sheriff's return that the commissioners summoned to lay off
the homestead were freeholders, is not sufficient to overcome
the return. Presumption favors the sworn officer's act done in
the line of his duty. To remove it, there must be something
more than the affidavit of an interested party ; there must be
satisfactory proof of the falsity of the return.'
§ i. The Creditor's Contesting Affidavit.
The sheriff in charge of an execution is not bound to regard
a recorded claim for exemption, though there be no affidavit
contesting it, if the writ shows it to be invalid.* But if such
claim be prima facie valid, the creditor must make the con-
testing affidavit, for it will prevent execution while remaining-
unchallenged.* Should the sheriff not levy the execution after
the creditor has made his affidavit to contest the validity of
the debtor's claim of intervention, he will not impair the cred-
itor's judgment lien." Simply pleading denial of homestead,
with the affidavit, raises the issue between the creditor and
the debtor; the contest is between the execution and the
exemption; and, under such issue, without more formal or
minute pleading, evidence may be introduced to determine
the contest.' When the contest has been raised, the defend-
lAikenv. Gardner, 107 N. C. 336: » Block v. George, 83 Ala. 178;
Thornton v. Vanstory,' 107 N. C. 381 ; Same parties, 70 Ala 409 ; Clark t.
GuUey v. Cole, 103 N. C. 333. Spencer, 75 Ala. 49 ; Abbott v. Gil-
2 Thornton v. Vanstory, swpra; Ray lespy, 75 Ala. 180 ; Block v. Bragg, 6S
V. Thornton, 95 N. C. 571 ; Gulley v. Ala. 391.
Cole, mpra, and 96 N. C. 447. « Beckert v. Whitlock, 83 Ala. 123.
' Mooney v. Moriarty, 36 111. Ap. ' Lehman v. Warren, 53 Ala. 535 ;
175. Planters', etc. Bank v. Willis, 5 Ala.
* ^x parte Barnes, 84 Ala. 540 ; Mo- 770 ; Beckert v. Whitlock, 83 Ala. 133.
Laren v. Anderson, 81 Ala. 106;
ShefiEey v. Davis, 60 Ala. 548.
43
674 ALLOTMENT TO THE DEBTOE.
ant is entitled to notice.^ If, without waiving this right, he
appear to ask judgment on his claim of exemption, the plaint-
iff may demand a nonsuit.^ The contest must be decided be-
fore the sheriff can go on with the sale. If the party seeking
to subject the homestead to execution does not answer the
claim of intervention within the legal delay, he loses his right
and the levy must be discharged.'
Burden of proof: "Where the legal presumption favors ex-
emption, the creditor seeking to subject real property to
execution must show that his claim is an exceptional one to
those which exemption affects, and tjiat the. property levied
upon is necessary to the satisfaction of the debt because of the
debtor's lack of other liable property.* But, as a general rule,
the party claiming exemption assumes the burden of proof.
If he attack a sale on the ground that his exemption right is
involved, he must make such allegations as to the value
of the property as are necessary to show its exemption as a
homestead.' And what is necessary to be alleged by him
must be proven by him, as a matter of course. Not only the
value of the property, but all other facts essential to the sup-
port of his claim to homestead, niust be set forth and estab-
lished.
Even where his homestead right is set up by him when he
is in the capacity of defendant, he bears the onus of proving
his rights against presumptions to the contrary. For instance,
th? burden is on the defendant to show that no homestead
was allotted before sale under execution, after the plaintiff
has shown his title by the sheriff's deed as purchaser at such
sale, in his suit to recover possession, unless the fact of non-
allotment otherwise appears;* as by admission of parties.'
1 Mead v. Larkin, 66 Ala. 87. the debt is of a class excepted from ex-
2 McAbee v. Parker, 83 Ala. 169, in emption by the constitution. And he
exposition of §§ 2830, 2836, 2838, of must specify the class. It is too late
Alabama Code of 1876. In Alabama to make the oath after the levy,
the contest must be tried in the circuit Brantley v. Stephens, 77 Ga. 467;
court Farley v. Riordon, 72 Ala. Ga. Code, § 2028.
128. ' 6 Helfenstein v. Cane, 3 la. 287, and
'Block V. Bragg, 68 Ala. 291. 6 la. 374; Boot v. Brewster, 75 la.
* A plaintifif, before having a home- 631.
stead levied upon in Georgia, must "Mobley v. Griffin, 104 N. C. 112;
make aflSdavit that the debtor has no Wilson v. Taylor, 98 N. C. 375.
other property subject to levy, and ' McCracken v. Adler, 98 N. C. 400.
that it is liable to execution because
/
CONFIEMATION BY THE COTJET. 675
The fact may not appear of record, nor the contrary ; the rec-
ord may disclose nothing, pro or con; presumption would
favor the legality of. the sale : therefore, the defendant who
has pleaded the omission to allot homestead must support his
plea by testimony. The amis is on the homestead-holder to
prove such facts as certainly bring him within the protection
of the law, when he sets up his homestead exemption against
the foreclosure of a mortgage which he has given.^
Evidence aliunde is admissible to show that the debt was
contracted before homestead acquisition, when the judgment
itself does not show that fact.^ The proof of the antecedency
is essential to the fastening of the judgment lien upon the
homestead as against a purchaser without notice.' Any pur-
chaser takes free from judgment lien when the debt is neither
antecedent nor otherwise affected by exemption, since no lien
attaches to the homestead.'*
§ 5. Confirmation by the Court.
The debtor, being entitled to a certain exemption of realty
as the homestead of himself and family ; and having failed to
select it and have it set apart before judgment, and now
claiming it in court, is entitled to have judicial action upon
his claim when it is disputed. "While it is the sheriff's duty
to see to the matter as an executive officer charged with the
execution; and while it is the appraisers' or commissioners'
duty to lay off the lands in proper quantity and to the ulti-
mate of the value permissible, it remains for the court to de-
cide any controverted matter duly brought before it, and to
confirm the allotment made. The court may assign the home-
stead.' A homestead assigned by the court for the defend-
ant and his family, in a suit involving land which included the
residence occupied by him, must be to the full quantitative
limit if the land equals or exceeds that amount.' To that ex-
1 Symonds v. Lappin, 83 lU. 213 ; « Crisp v. Crisp, 86 Mo. 630.
Asher v. Mitchell, 92 III 480. « Talbot v. Barager, 87 Minn. 208;
2Delavan v. Pratt, 19 la. 429; Coles v. Yovks, 86 Minn. 388; Coles
Phelps V. Finn, 45 la. 447. v. Yorks, 31 Minn. 213; North Star
3 Higley v. Millard, 45 la. 586 ; Iron Co. v. Strong, 33 Minn. 1. The
Kimball v. Nilson, 59 la. 638. limit is eighty acres in Minnesota.
* Cummings v. Long, 16 la. 41 ;
Lamb v. Shays, 14 la. 567.
676 ALLOTMENT TO THE DEBTOE.
tent, a mortgage nominally covering the whole property is
inoperative.' Bat, though signed by the husband alone, .it is
good for the rest ; ' yet the setting apart of the exempt por-
tion is essential to the validity of the foreclosure.' The right
of the owner to select his exempt portion from a tract larger
than that, and including it, does not leave the whole open to
exemption.*
A homestead allotment, made in a bankrupt court, was held
to be efficacious ; it being in value and extent such as is pre-
scribed by state law where the allotment was made.' After
a discharge in bankruptcy, a new promise to pay may be sued
upon and prosecuted to judgment; but the judgment would
not bear a lien on the homestead.'
When the debtor is entitled to have a homestead of a thou-
sand dollars' worth of realty allotted to him before the sale of
his lands under execution ' (subject to be set aside, however,
for fraud or irregularity),' such allotm^t legally made and
confirmed becomes final. It cannot be re-allotted at the in-
stigation of another judgment creditor who was a creditor
when the homestead was thu^ set apart, unless for the causes
above mentioned. It is intimated that creditors may have
some equitable remedy, however, if the property should sub-
sequently appreciate in value above the monetary homestead
limit.'
By the statute above cited, exceptions to the allotment
must be filed in the clerk's office of the superior where the
allotment was, made,'" for it cannot be collaterally attacked."
Omission of the date of the allotment, in the report of the
appraisers, is not a fatal error.'^ Allotment should be specific
1 Coles V. Yorks, 28 Minn. 464. SFraley v. Kelly, 88 N. C. 227;
Sale void. Mohan v. Smith, 30 Minn. Henly v. Lanier, 75 N. C. 172 ; Horn-
259. thai V. McEae, 67 N. C. 21.
2 Wallace v. Harris, 32 Mich. 880 ; ' Const of North Carolina, art TV ;
Van Horn v. Bell, 11 la. 466. Code of North Carolina, §§ 501-524
SKipp V. BuUard, 80 Minn. 84; ^ lb., % 523.
Black V. Lusk, 69 111. 70; Bolton v. "Gulley v. Cole, 96 N. C. 447.
Landers, 27 CaL 104; Ferguson v. lo McAuley v. Morris, 101 N. C. 369 ;
Kumler, 27 Minn. 156. Code North Carolina, §§ 504-507.
4 Ferguson v. Kumler, 27 Minn, " Code, § 519 ; Welch v. Welch, 101
156. N. C. 565 ; Burton v. Spiers, 87 N. C.
6 Windley v. Tankard, 88 N. C. 223 ; 87 ; Spoon v. Eeid, 78 N. C. 244.
Lamb v. Chamness, 84 N. C. 379. 12 Beavans v. Goodi-ioh, 98 N. C. 217.
00ST|1 IMPAIEING OONTEAOT. 677
and in severalty.' Bounds need not be laid off by course and
distance.^
"When allotment has been legally made, and the time for
objection has expired, and the appraisers' return registered,
no second allotment made by another appraisal (at the instance
of a judgment creditor) can be allowed. His judgment may
have been rendered and docketed after the homestead was
laid off, but the circumstance will not alter the case. By
filing his objections to the appraisers' return, and tendering
evidence to prove that the land assigned by them to the debtor
exceeds a thousand dollars in value (the maximum in the
state), he cannot raise an issue for the jury.'
An appeal from appraisers (whose duties are confined to
valuation and allotment and fixing bounds) does not take up
the equities of the contending parties with it ; and the court
cannot pass upon them.* But an order setting aside a home-
stead is applicable ; and it is held that appeal is the only rem-
edy when the order is wrongful, in the absence of fraud.'
§ 6. Costs Impairing Contract.
A debt. was contracted prior to the enactment of a statute
requiring the allotment of homestead out of property exceedr
ing the debt in value, before execution sale of the debtor's
real estate could be had. It was held that, as the expense of
the allotment diminished the value of the creditor's right, the
statute impaired his remedy.' The right of a creditor by con-
tract to the remedy for the recovery of the debt due him, ex-
isting at the time of contract, is a vested right. . It cannot be
constitutionally taken from him without the substitution of
another remedy equally efficacious ; and the substituted one
would not be so, if tending to diminish the value of the debt
» Campbell v. White, 95 N. C. 491. Proc. (Cal.), § 963 (3); Kearney v.
2 Eay V. Thornton, 95 N. C. 571. Kearney, 73 Cal. 591.
3 Thornton v. Vanstory, 107 N. C. «LoDg v. Walker, 105 N. C. 99 (eit-
331; Gulleyv. Cole, 103 N. C. 333; ingt'Bronson v.Kinzie, 1 How. (U.S.)
Eay V. Thornton, 95 N. C. 571 ; Code 311 ; Carson v. Arkansas, 15 How.
of N. C, ch. 10. (V. S.) 513 ; Evans v. Montgomery, 4
< Aiken V. Gardner, 107 N. C. 336; Watts & S. (Pa.) 318; Oatman v.
Gulley V. Cole, 103 N. C. 333. Bond, 15 Wis. 38 : Mundy v. Munroe,
sGruwell v. Seybolt, 83 Cal. 7; Es- 1 Mich. 76), and differing from Mor-
tate of Burns, 54 Cal. 333 ; Code Civ. rison v. Watson, 101 N. C. 340.
678 ALLOTMENT TO THE DEBTOE.
due him. It vs^as inferred from these premises that the require-
ment that homestead should be allotted before execution,
with liability to have the sale of real estate worth more than
the homestead limit declared void in the absence of such prior
allotment (which requirement was made after the contract),
was an impairment of the creditor's remedy by reason of the
additional burden of costs that it imposed.^
" The touchstone, for testing the constitutionality of a stat-
ute requiring a pre-existing creditor to pay for the appraise-
ment and allotment of exemptions to his debtor before he can
cause a levy to be made upon the property of the latter, is
found in the question whether the enforcement of the law
throws the slightest impediment in the way of the collection,
or in the slightest degree diminishes the value of the claim
below what it would have been if no such trouble and ex-
pense were incident to the sale." ^ " One of the tests that a
contract has been impaired is that its value has by legislation
been diminished." ' " The rule seems to be that in modes of
proceeding and forms to enforce the contract, the legislature
has control and may enlarge, limit or alter them, provided it
does not deny a remedy or so embarrass it with. conditions
and restrictions as seriously to impair the value of the right." *
The creditor's right to the existing remedy at the time the
debtor takes the obligation is a vested right which the legis-
lature may modify but cannot take away or impair.' The
unconstitutionality of exempting homesteads from debts an-
terior to the passage of the exemption law being because of
its impairment of contracts, the courts came to hold that any-
thing which renders the debt less valuable is unconstitutional.'
1 Long V. Walker, 105 N. C. 90, re- 80 N. C. 183 ; Earle v. Hardie, 80 N. C.
viewing Morrison v. Watson, 101 N. C. 177 ; Barrett v. Bichardson, 76 N. C.
340 ; McCanless v. Flinchura, 98 N. C. 439.
358; Arnold v. Estes, 92 N. C. 162; 2 Long v.' Walker, supra.
Lowdermilk v. Corpening, 93 N. C. « Edward v. Kearsey, 96 U. S. 600..
338; Albright v. Albright, 88 N. C. ^ Tennessee v. Sneed, 96 U. S. 09.
238 ; Wycho v. Wyche, 85 N. 0. 96 ; 5 Memphis v. United States, 97 U.
Grant v. Edwards, 86 N. C. 513; S. 295; Const U. S., art. 1, § 10.
Wilson V. Patton, 87 N. C. 318; Me- 6 The section 2, article 10, of the
bane v. Lay ton, 89 N. C. 396; Miller North Carolina constitution of 1868
V. Miller, 89 N. C. 403 ; Corpening v. was declared void (and the statutory
Kincaid, 83 N. C. 202; Carlton v. method of carrying it out fell with
Watts, 82 N.C. 212; Gamble v.Ehyne, it), so far as exemption from debts
COSTS IMPAIEING CONTEAOT. 679
There is danger that the doctrine of impairing contracts
by rendering remedies more costly than they were when the
contracts were made, may be whittled to a point too fine.
The " touchstone " given us in the latest of the above cited
cases: "Whether the enforcement of the law throws the
slightest impediment in the way of the collection, or in the
slightest degree diminishes the value of the claim ? " may some-
times be found too sensitive for practical purposes of business.
Legislatures have the right to change remedies ; and a change,
which makes but a slight difference to the creditor whose
claim is for thousands of dollars, ought not to affect the stat-
utory modification of remedy with unconstitutionality. Stat-
utes should be understood with reference to business habits.
and the usual margin given for unforeseen expenses when con-
tracts are made. No investment can be made with prior cal-
culation of profit to a penny. The impairment of a contract
must be material to render it void, as the highest court has
repeatedly held.' When costs are trifling in amount so that
they do not affect the cre.ditor^s remedy materially, they are
not an unreasonable incident of the modification of it.^
In the case prescribing the test-rule, judgment was obtained
fqr a hundred and fifty dollars, with ten more for costs,
against a householder and his wife, on a debt antedating the
time of exemption, and therefore it could be executed against
their homestead. The defendants paid the judgment, less the
costs. Therefore, their land, found by the jury to^ be worth
$1,900, was sold to pay the costs ; and it was bought at $20.
This resulted from the refusal of the court to enforce the stat-
ute requiring allotment, on the ground that the expense of al-
lotting might impair the creditor's remedy. The dissenting
antecedent to the homestead act and Butler v. Stainback, 87 N. C. 216 ;
allotment of homestead before execu- Keener v. Goodson, 89 N. C. 373 ;
tion sale were authorized. This was McCracken v. Adler, 98 N. C. 400 ;
to conform to the decision of Edward N. C. Code, §§ 503, 534 ; Acts of 1879,
V. Kearsey, supra, on the impairing ch. 256 ; Const., art 4, § 8.
of remedies. Earle v. Hardie, 80 i Allen v. Louisiana, 103 U. S. 80 ;
N. C. 177 ; Gheen v. Summer, 80 N. C. Packet Co. v. Keokuk, 95 U. S. 80;
187 ; Cheatham v. Jones, 68 N. C. Austin v. Aldermen, 7 Wall. 694
158 ; Burton v. Spiers, 87 N. C. 87 ; ^ Louisiana v. New Orleans, 103 U.
Cobb V. Halyburton, 93 N. C. 653 ; S. 303.
680 ALLOTMENT TO THK DEBTOR.
opinion in the case is elaborate.' Without controverting the
decision, and without questioning that it makes law in the
state where it was rendered, the profession in other states
may reasonably inquire whether this test, to determine the
constitutionality of statutes affecting remedies, is not too nice
and exacting. "We may not find a flaw in the severe logic of
the court, yet we may remember that we ought not always
to reason as minutely in law as in an exact science.
1 Long V. Walker, 105 N. C. 90 ; Dissent of Merrimon, C. J., at p. 110.
CHAPTEK XXIII.
PLEADING AND PRACTICR
§ 1. Ordinary Remedies.
3. Parties — Husband and Wife.
3. The Wife as Sole Plaintiff.
4. The Wife as Sole Defendant
5. Minor Children as Parties.
6. The Widow as a Party.
7. Application for Homestead.
a Probate Orders Setting Off
Homestead.
9. Probate Orders to Sell Home-
stead.
10. Administrator's Suit as to Cred-
itors.
11. Eelative to Foreclosure.
12. Equity Rule as to Order of Sale.
§ 13. Statutory Rule as to Order of
Sale.
14. Claiming Before Execution
Sale.
15. The Preferable Practice as to
Claiming.
16. Execution as to Occupancy.
17. Pleadirig in Attachment Suits.
18. Effect of Not Pleading.
19. Rulings on Questions of Evi-
dence.
20. Injunction Against Sale.
31. Segregation and Other Proceed-
ings Before Sale.
23. Judgment and Costs an En-
tirety.
§ 1. Ordinary Remedies.
Pleading and practice in homestead cases differ little from
general forms and usages. There is no special system ; no ac-
tions and defenses peculiar to those cases ; no writs, and few-
forms, prescribed fespecially for the acquisition and mainte-
nance of the exemption right. "With the exception of statutory
directions for the declaration of homestead, and its recorda-
tion and notification ; for allotment to the debtor, the report
of commissioners and appraisers in laying off the exempt por-
tion, for partition, and a few other things, there is little de-
parture from the general practice.
Homestead legislation, however, has made innovations upon
previously established jurisprudence which affect litigation
and render a chapter necessary in addition to the frequent
touching upon pleading and practice in the foregoing chap-
ters. Among these innovations is the giying to the wife a present
interest in her husband's dedicated home, which enlarges her
rights as a litigant ; the restraints put upon, or assumed by,
the owner, which diminishes his lordship over such property ;
682 PLEADING AND PEACTICE.
the privilege bestowed upon widows and minors which post-
pones partition among heirs and the final settlement of es-
tates ; the restrictions which partially take homesteads out of
commerce and affect the rights of purchasers ; and other pecul-
iarities which have consequences upon homestead transactions
and judicial proceedings concerning them.
The principal innovations which affect the usual course of
pleading and practice are the statutory denial of jurisdiction
to the courts, in some states, as to the attachment and execution
of homesteads, and the judicial rulings, in others, that plead-
ing homestead is unnecessary when the exemption is made
absolute by statute. Such departure from the beaten track,
like all other attempts to reach the goal of justice by a royal
road, leads ultimately to more roundabout avenues of litiga-
tion. The householder who stands by while his house is at-
tacked as non-exempt property is likely to be obliged to vin-
dicate his right ultimately by resort to some form of action,
or to defend against ejectment. Where his neglect to plead
till after judgment and the maturity of process against his
home will be deemed acquiescence on his part and a waiver of
his exemption right, he will not have the trouble of asserting
his claim subsequently by an original action, or of defending
against ejectment, for his homestead will have been lost.
Whether the exemption be absolute or not; whether failure
to plead will prove fatal or not, the better and simpler prac-
tice is to set up the defense whenever the court has entertained
an action against the homestead. In other words, the right of
homestead ought to be pleaded, as any other right, when it is
assailed in a court of justice and the beneficiary is cited to
defend. It will not be better for him to stand silent, folding
his hands supinely, relying upon the absoluteness of his right.
The theory somewhat advocated, that he may remain passive
yet not be affected by the decree ; that the court is bound to
protect him whether he plead or not ; that he may lie dor-
mant till the plaintiff has obtained judgment and has executed
the homestead under it, will not work well in practice — cei--
tainly not in all cases. Take the case of ejectment. Passivity
on the part of the homestead-holding defendant would result
in his being put out of doors. Take the case of mortgage
foreclosure. Non-resistance to the alleged lien would result
PAETIES — HUSBAND AND WIFE. 683
in valid sale of the homestead and its delivery to the purchaser.
Take the case of levy \xr\&erfi.fa. to enforce an ordinary judg-
ment lien. Unless the defendant claims his right before sale (or
when the officer denies it), and resists th6 execution by injunc-
tion or some other remedy, and thus avails himself of the pro-
tection which the Islw offers to his family home, he may soon
find that home sold ; and he will be obliged to acquiesce, or
to defend against ejectment, or he will be driven to bring an
independent action to save his right. In the last case — sale
under ^.y». — the officer is presumed to know the records, or
the open occupancy of the property by the householder, or
whatever else the law deems notice ; and therefore he may be
amenable to the householder. But in the other cases, the at-
tack upon the homestead is made in court. Does the judge
know the records? Is he charged with notice of the home-
stead character? He is the only person presumed ignorant of
notice and of the records. In his judicial capacity he knows
nothing of them till they have been proved after issue joined.
The absoluteness of the homestead right relative to any par-
ticular propertj' does not appear to him till he has been duly
informed by evidence. The most direct way, therefore, for
the exemptionist to maintain his right is by pleading or claim-
ing it, even in states where neglect would not be waiver.
The plea in defense may be in a word, yet sufficiently ex-
plicit. A general denial may suffice. If the defendant has
nothing to allege affirmatively — merely appears to denj' and
join issue — such a brief plea may do ; and there is nothing for
him to prove thereunder.' If he has affirmatively pleaded
homestead in his answer, he is not obliged to meet the plaint-
iff's rejoinder by anticipation. For instance, ,if the plaintiff,
as to the defendant's plea of homestead, sets up abandonment,
or that the debt sued upon is for improvements upon the
homestead or for the purchase-price (against which debts there
is no homestead), the defendant may then deny such allega-
tions ; but he is not obliged to do so in advance.^
§ 2. Parties — Husband and Wife.
. All persons who are to be concluded by the decree, in cases
involving homestead, should be made parties, excepting the
1 Johnson v. Adleman, 35 IlL 265. 2 Stevenson v. Marony, 39 ni. 533.
68i PLEADING AND PEAOTICE.
mere privies of parties. If persons to be concluded are in-
competent to appear in court by reason of their minority, cov-
erture, insanity or any other cause, they should be repre-
sented by their guardians, curators, tutors or next friends,
as the statute of the state where the proceedings are had
may provide.
Parents represent their children in homestead legislation,
when there is no adverse interest preventing it ; and the hus-
band represents both his wife and children, in many states.
In some, the wife must be joined with him as defendant in
homestead litigation; and it is held that if a homestead be
occupied by two men and their wives, aU four must be made
parties to an action of ejectment to recover the property.*
Each husband might assume that he is the head of the family,
so as to render it necessary for the plaintiff in ejectment to
make both, with their wives, parties to the suit, though the
law does not contemplate two families upon one homestead.
The spirit of the law is against the crowding of tenements
with several families in each; and the letter of no statute
warrants either two homesteads (" business homesteads " aside)
to one family, or two families to one homestead.
The wife is properly associated with her husband as a party
plaintiff praying injunction against the collection of an illegal
tax upon land occupied by them as their homestead.^ She
may join him in a biU to redeem the homestead from a tax
sale.' If the husbanijl is the sole owner, and should sue alone
as plaintiff for either of these or any purpose, the rights of
the wife would be secured by his success. She does not seem,
therefore, to be a necessary party plaintiff in such suits, so far
as the reason of the matter is concerned. The husband in
whom the title is lodged cannot prejudice his wife's homestead
interest in that property by any action to vindicate that title,
or to protect it from burdens.
The case is quite different when a suit involving the home-
stead is brought against the husband. The plaintiff should
make the wife a party defendant with her husband. Such an
action against him alone cannot divest the wife of her quasi-
estate in the homestead wholly owned by her husband; for it
1 Stoinski v. Pulte, 77 Mich. 333. 8 Adams v. Beale, 19 la. 61.
2 Henry v. Gregory, 39 Mich. 68.
PARTIES — -HUSBAND AND WIFE. 685
is a present interest — not merely, a latent one — and so re-
sembles an estate as to rightly be called one with the qualifi-
cation above given ; and it can no more be divested by a judg-
ment against the husband alone than an incumbrance upon
the property, held by her, could thus be divested. It is as
important (considered as a matter of pleading) that the plaint-
iff should make her a defendant as it is when she holds the
title. There can be no doubt that the wife of the homestead-
holder should be made a party defendant to an action of
ejectment in which his conveyance of the homestead to her is
brought into question to test its validity.^ And she has been
held a necessary party to any action to eject her husband and
herself from premises occupied by them as their homestead.''
In such an action, were she not made a party, what would be
the effect of a judgment against the husband alone, even if he
is sole owner? Should he be ejected and removed from the
premises, would her right of asylum there be cut off? The
very object of giving her a present interest in the home would
be defeated by such a result. If she would have the right to
stay, it would be strange indeed if her husband could not re-
main with her; the very purpose of the homestead legisla-
tion — to conserve homes and protect families — to foster the
conjugal and parental relations — would be defeated. But
would not the judgment establish the fact that the property
is not the homestead? It would establish that fact as to
him — not as to her. The situation would be novel : so, to
avoid such, the wife should be made a party defendant with
her husband, in an ejectment suit, whether the title of the
homestead be in him or her, so that they would both stay in
their home, or both go out together. If they are joint ten-
ants, there is additional reason why they should join in actions
brought by them or be joined in actions brought against them.
There is the same reason as would be apparent in litigation
respecting title in joint tenancy when the holders are not man
and wife.' A complaint by one spouse has been held demur-
rable.* The wife of one who holds land in common with
1 Hodson V. Van Fossen, 26 Mich, 68. 3 Dunn v. Tozer, 10 Cal. 170 ; Cook
2 Cleaver v. Bigelow, 61 Mich. 47; v. Klink, 8 Cal. 353.
Davis etc. Co. v. Whitney, 61 Mich. ■< Guiod v. Guiod, 14 Cal. 506-7.
618; First N. Bank v. Jacobs, 50
Mich. 340.
686 PLEADING AND PEACTIOE.
others, who has a homestead interest thereon, must be made
a party to any suit for partition and recognition of liens on
the land.'
Where it is necessary that the wife be made a party to a
foreclosure upon the homestead, the court will not give judg-
ment for the plaintiff where the husband has appeared alone
and pleaded homestead in defense. It has been held that the
court, in such case, will order that she be made a party .^ She
may voluntarily intervene and join in the answer of her hus-
band, or plead separately.' So, if the wife, owning the home-
stead, is sued alone in a foreclosure proceeding against it, the
husband must become. a party; and the rule is the same as
that above stated relative to the wife.^ It does not matter
what is the form of suit which seeks to subject the homestead
property to forced sale. If the occupants of such property
be threaitened by ejectment, writ of entry, or any other form
of attack, the homestead may be defended in such way as the
governing statute points out, or by answer as in any ordinary
case requiring answer, or by equitable plea; and the family
head alone, or the husband and wife together, or the wife
alone when her interest requires her to act solely and where
her coverture is no disability, may plead homestead in de-
fense.'
In an attach?nent suit, when the homestead has come into
the legal possession of the officer charged with t^e writ, both
husband and wife should be made parties defendant if the
rights of both are to be concluded, and if the judgment. is to
perfect the lien and retroact to the date of the seizure so as
to render the lien, a perfect one from its incipiency. The rear
son is that her quasi-estate would not otherwise be affected
by the judgment — the proceeding being only a limited one
in rem — the res being only his property when her interests
are not reached.
Where, under the theory that absolute exemption relieves
1 Wheat V. Burgess, 31 Kas. 407. Hughes v. Watt, 26 Ark. 238 ; Par-
2 Marks v. Marsh, 9 CaL 96. dee v. Lindley, 31 111. 174 ; Patterson
3 Moss V. Warner, 10 CaL 296; v. Kreig, 29 111, 518; Swan v. Ste-
Lyon V. Welsh, 30 la. 578. phens, 99 Mass. 7 (and cases there
< Thorn v. Darlington, 6 Bush, 448. cited) ; Letchf ord v. Cary, 52 Miss.
5 Williams v. Young, 17 Cal. 403 ; 791.
McDonald v. Badger, 23 Cal. 393; i
THE WIFE AS SOLE PLAINTIFF. 687
from the need of defense and that the result of judgment is
a mock lien to be disregarded with impunily,, it is of no im-
portance whether the wife is made a party or not.*
Where disability of the wife exists, and no rule requires
homestead actions and defenses to be by both, the husband is
the proper party to litigate for the interests of the family and
the homestead.'' Whether a wife can sue or defend alone
depends upon the further question whether coverture imposes
disability ; and this, in homestead litigation as well as in any
other. Each state settles the question for itself.
§ 3. The Wife as Sole PlaintifiF.
Where the statute requires the action of a court in the es-
tablishment of an original homestead, a wife inay be the peti-
tioner for such judicial action.' Her petition must contain all
the averments necessary to the effectiveness of the husband's
petition when he makes application, and she must also aver
ownership, since that would not be presumed in her case.* And
she must show from whose property she prays to have the
homestead carved ' — whether her own or that of her husband ;
whether separately or jointly held. And she should state why
her husband does not apply or join her in the application.
A wife filed a declaration of homestead, upon property long
occupied by her husband and herself as their family residence,
five days after he had confessed judgment in favor of a cred-
itor. When the sheriff came to enforce the judgment lien, she
alone brought action against that officer to compel him to ex-
haust all her husband's other property, personal and real, be-
fore selling the homestead; and her action was sustained.'
She could have defended the homestead from any sale at all
under an ordinary judgment — she not having been a party.
And, under a judgment on a privileged debt, she may repre-
I In Nebraska under a former stat- ^Mallon v. Gates, 26 La. Ann. 610 ;
ute, the wife was held not a neoes- Thorns v. Thorns, 45 Miss. 373.
sary party defendant in an attach- ' Bowen v. Bowen, 55 Ga. 183 ;
ment suit ; but the rule has been Cheney v. Rogers, 54 Ga. 168 ; Smith
changed by a later law. Spitley v. v. Ezell, 51 Ga. 570 ; Larence v. Evans,
Frost (Neb.), 15 Fed. 399; Rector v. 50 Ga. 316.
Rotten, 3 Neb. 171; State Bank v. * Wilder v. Frederick, 67 Ga. 669.
Carson, 4 Neb. 501. » Langford v. Driver, 70 Ga. 588.
» Bartholomew v. Hook, 23 Cal. 377.
688 PLEADING AND PRACTICE.
1
sent her interest so far as to have other property exhausted
before the homestead, under the statutes of several states.
A wife alone may file a bill in equity to have homestead set
oflf, Her action is not premature because no execution is
pending; and her right to file such bill has been held not
affected by the fact that her husband is providing a home for
her.* If he has had a homestead set off, she would not have
the right to file such bill. She may have a bill in equity to
compel the specific performance of an executory agreement
made by her husband to purchase a homestead, when she has
performed the contract. " The wife of a husband, who re-
fuses or neglects to perform his contract, should be permitted
to do it for him to save her interest in the homestead, as she
may redeem a mortgage to save her right of dower in an
equity of redemption." '
The wife is a proper party to a bill filed by her husband
against a mortgage of the homestead which she has not
signed.' Or she may sue alone, by the same form of plead-
ing, under the same circumstances, when it is necessary for
her protection ; and it is held necessary when the foreclosure
of a mortgage, executed by the husband alone, is pending.*
And she may sue alone for the protection of the homestead
when her rights are in jeopardy by the neglect or refusal of
her husband to act ; and when he is absent, or has absconded.'
This rule (where it prevails) is not peculiar to homestead liti-
gation.^ But it has not always prevailed when the home was
endangered from such causes.' She may bring trespass against
an officer for a wrongful levy upon the homestead without
being joined by her husband, the debtor;^ but her husband,
as the head of the family and the debtor, is ordinarily the
proper plaintiff in such case.' The wife may act, in the
' Comstock V. Comstook, 27 Mich. ^Kelley v. Whitmore, 41 Tex. 647.
97. SFulIerton v. Doyle, 18 Tex. 14;
2 McKee v. Wilcox, 11 Mich. 358, O'Brien v. Hilburn, 9 Tex. 297.
S61. 'Murphy v. Coffey, 33 Tex. 508;
'Shoemaker v. Gardner, 19 Mich. Green v. Lyndes, 12 Wis. 450; Thorns
96 ; Shoemaker v, Collins, 49 Mich. v. Thorns, 45 Miss. 263.
595. 8 Mc Williams v. Anderson, 68 Ga.
^Comstook V. Comstock, supra; 772.
Allen V. Hawley, 66 111. 169; Silsbe « Zellers v. Beckman, 64 Ga. 747.
V. Lucas, 36 IlL 463; Wing v. Crop-
per, 35 111. 256.
THE WIFE AS SOLE PLAINTIFF. 689
absence of the hu3b^,nd, to save the homestead when execu-
tion is pending, under the authorization of some statutes.'
Even when homestead has not been pleaded in foreclosure
proceedings, a wife Avho was not a party to the mortgage may
protect the homestead by an original bill in equity, it has
been held.^ She may file a cross-bill against a bill filed by the
plaintiff in aid of execution brought against her husband, to
protect a homestead on the ground that she did not sign the
mot-tgage which her husband gave, and which the plaintiff is
proceeding to enforce.'
Aban,doned by her husband, she has been accorded standing
in court to recover possession of her homestead after having
been ousted.* Compelled by her husband to sign an act of
alienation, she has been accorded standing in court to recover
the homestead thus unwillingly conveyed by her.' But it has
been held that a bill in equity by a married woman to set
aside a homestead conveyance, on the ground of duress by
which her husband obtained her signature, could not be
maintained against a purchaser for value without notice of
the duress.* The implication is that, with notice, the pur-
chaser would have been liable to have such an action brought
against him by the wife as sole oratrix.
Under a deed to a wife, with the stipulation that the prop-
erty was to be held by the husband as a homestead, • contain-
ing the habendum, " to her and her heirs and assigns, to her
and their use and behoof forever," it was held that, upon ob-
1 For instance, it is provided in the town (§ 2861) without monetary re-
Comp. Stat, of Oklahoma (1890), striction, and the chattel exemptiona
§ 4738, that " in any case when the are liberal (§ 3860). The wife, in thus
execution defendant is absent from acting, represents her absent husband
this territory, or shall absent himself with respect to either kind of home-
f rom his home, and attachment or stead or to chattel exemption,
execution sh^U be directed against 2 ^Hen v. Ha wley, sMpr-a; Mooers v.
his property, his wife may make out Dixon, 35 111. 208 ; Hoskins v. Litch-
and verify the schedule of his prop- field, 31 111. 187.
erty, and claim and receive for him ^ Wisner v. Farnham, 2 Mich. 472.
the exemption provided in this act, * Love v. Moynehan, 16 111. 277 ;
and claim and exercise all rights Mix v. King, 55 111. 438.
which would belong to the husband ' Helm v. Helm, 11 Kas. 21 ; Mix v.
were he present" The homestead is King, 66 III. 145.
limited to one hundred and sixty "Vancleave v. Wilson, 73 Ala. 387.
acres in the country or ojie acre in
44
690 PLteADING AOT) PEAOTIOB.
taining a divorce from him, she was entitled to a writ of entry
and could recover possession from her husband thereunder.'
Though the husband be the sole owner of the homestead
title, his wife's right of asylum, or her estate of homestead,
is a real interest, notwithstanding her inability to transfer it
as property ; ^ and she will be allowed to protect it. It has
been held on the other hand, however, that her right to liti-
gate as sole party depends upon her ownership of the home-
stead in her own right.' This view does not now have wide
prevalence. "When the homestead was on community property,
it was objected (to a judgment recognizing it) that it could
not be awarded to the wife alone ; but the objection was over-
ruled— the court assigning as a reason that the wife, as
plaintiff, was joined by her husband, and that the judgment
recited that "j>lainUffs are entitled to recover." * But for this
reason the objection probably would have been sustained.
§ 4. The Wife as Sole Defendant.
The common-law rule, that a wife has the disability of
coverture, is less relaxed when suits are to be defended than
when they are to be prosecuted. The husband represents her
in defenses, so far as her good is concerned ; that is, she has
the benefit of results in his favor. It is when her interests
are adverse to his that she may defend alone, or when he fails
to act for both and she is authorized by court or by statute
to appear alone, or when she is a sole trader, or when she is
sued alone.
If the homestead, in which she has her g"Mffls*'-estate, is put
in jeopardy under circumstances which require her interfer-
ence to save it, she alone may defend it when her husband
will not, or when his and her interests are adverse.
Pending divorce proceedings, the homestead is sometimes
imperiled so as to warrant the wife's sole action. ,
A wife, suing for divorce and alimony, holding the family
homestead in her exclusive possession while her suit is pend-
ing, and having her prospective estate of dower and her pres-
1 Dunham V. Dunham, 128 Mass. 34. * Paris, etc. Ry. Co. v. Greiner
2 Jenness v. Cutler, 12 Kas. 516. (Tex), 19 S. W. 564.
3 Moss V, Warner, ^10 CaL 296;
Marks v. Marsh, 9 Cal'96.
THE WI-FE 'as SOLUr DEFENDANT.
691
ent right of homestead, may be authorized to act independ-
ently in a suit to vindicate a mechanic's lien upon the family
homestead. If such suit be first' instituted against the hus-
band, and prosecuted to judgment by default against him —
obtained by collusion with him — his wife may become a party
to have the default set aside and to defend against the lien.
The judgment may be opened to admit her as a new party who
is affected by it.^
1 Weston V. Weston (Wis.), 49 N.
W. 834, Lyon, J. : " While it may
be true that the statute does not
make the wife a joint tenant with
her husband of the homestead, or
vest in her an interest in the fee, yet
it does confer upon her valuable
rights thei-ein. It gives her the right
of occupancy and enjoyment thereof
with her husband as against his
creditors, and an absolute veto on his
power to alienate it In case the
husband dies intestate, the home-
stead descends to his widow abso-
lutely, if he leaves no children sur-
viving him, and during -her widow-
hood if he does. Taylor, St 1171,
§ 5. These are additional to her
dower right, which manifestly is not
merged in the homestead right
Should the husband lawfully de-
vise the homestead to another, or
should he die leaving children, and
his widow marry, she may assert her
dower right, notwithstanding the
premises were once the homestead of
her husband. In Madigan v. Walsh,
33 AVia. 501, this court found no diffi-
culty in holding that an inchoate
right of dower is such an interest in
lands as will enable a married woman
to maintain an action to set aside a
deed thereof to which her signature
has been fraudulently obtained. That
decision, we think, disposes of the
objection that Mrs. Weston has no
such interest in the premises affected
by the lien judgment as gives her a
standing in court to resist such judg-
ment In addition to her rights un-
der the homestead laws and her in-
choate right of dower, she aJleges
that she is entitled to the possession
of the premises pursuant to an inter-
locutory order of the court in the
divorce suit We infer that she is in
possession by virtue of the order,
and that such possession is exclusive
of her husband. Having these va-
rious interests and rights in the
premises, it would be a reproach to
the law were she denied a standing
in court to defend them when they
are fraudulently and rollusively as-
sailed by her husband and his kin-
dred. We hold, therefore, that Mrs.
Weston is a proper party to the lien
suit If not made a party, probably
she might maintain an action against
the plaintiffs in the nature of a suit
to redeem, in which she could con-
test the right of the plaintiffs to a
specific lien for any sum, or show
that the judgment is for too large
a sum. McCoy v. Quick, 30 Wis.
531. The learned counsel for the
plaintiffs claim that the. judgment
should not be opened to allow
Mrs. Weston to defend the action
if she is not bound by the judg-
ment; and they cite in support
of their position. Bean v. Fisher, 14
Wis. 57, and Gray v. Gates, 37 Wis.
614. Bean v. Fisher merely holds
that a j udgment should not be opened
to let in a new party whose interests
are not affeq^ed by it ; as, for ex-
ample, a prior incumbrancer in an
PLEADING AND PEAOTIOE.
The court, treating her as in possession of the homestead
under judicial order, while the husband was excluded, allowed
her to combat the lien which he had allowed to be prosecuted
to judgment by his default. It is intimated that she would
have had standing in court in a bill to redeem the property,
had she not appeared in defense of the suit. Even if her
homestead right was not concluded by the judgment against
her husband alone, she would be put to inconvenience by it;
she might be driven to defend a subsequent action of eject-
ment, or, if obliged to sue for her rights, would be required .
to give security. If the lien sued upon was a lawful prop-
erty debt, doubtless the homestead was bound for it; but the
very question was whether the lien was such ; and, on that
question, she had a right to be heard when her husband had
collusively permitted default.
Though the husband has done some act which would oper-
ate as estoppel to him — such as signing a mortgage note alone
to bind the homestead — an act that would estop him in some
states, though not in all, — his wife may yet defend against
the act, plead usury or any other proper defense against the
note, and thus save the homestead to the family.^ Though he
may have recognized ownership in another, she is not neces-
sarily concluded. In an ejectment suit against a wife, who
claims the property sued for as her homestead, she cannot be
denied her claim on the ground that her husband has acknowl-
edged himself to be the plaintiff's tenant, in a lease, if she has
shown all the facts necessary to establish her right.^
§ 5. Minor Children as Parties.
Minor children are represented by their father, or by both
father and mother when they are joint-parties, in litigation
action to foreclose a junior mortgage, promptly, and obtain an injunction
The same rule was stated hypothet- to protect her possession. This would
ically in Gray v. Gates, but the case or might require the giving of secu-
turned upon a special statute of limit- rity, which she cannot be required to
ations relative to opening judg- give if allowed to defend the lien
ments. We think the interests of suit. . . . See Read v. Sang, 21
Mrs. Weston may be affected by this Wis. 678."
judgment, if it is allowed to stand. i Thompson v. Pickel, 20 la. 490 ;
On a sale under it she is liable to be Campbell v. Babcock, 27 Wis. 513.
excluded from the possession of the 2 Dykes v. O'Connor (Tex.), 18 S. W.
premises, at least she may be so ex- 490.
eluded unless she bring an action
MINOB OHILDEEN AS PAKTIES. 693
affecting the homestead as in that relative to other property
in which they are concerned, and in which their interest is not
adverse to that of their parents. They are beneficiaries of the
homestead, but not independent of their pai'ents, and not in
the same sense in which their mother is a beneficiary. They .
have no interest resembling an estate, or an incumbrance upon
the househouldet-'^ title, such as she has. They have no veto
upon the alienation of the homestead as she has. They are
bound by the action of their father and mother.
The law, however, zealously guards their homestead inter-
est ; and, upon the death of their father, gives them standing
in court to assert it through proper representatives.
Minor children may make application, through their guard-
ian, to have homestead set off to them.^ He must aver his
official capacity and make all the allegations necessary to show
the character of the property, and also aver the rights of his
wards. If no guardian has been appointed, a trustee may be
designated to make the application.^ If one of the parents is
surviving, and the children are living with him or her as mem-
bers of the family, such survivor is the proper person to make
application for an original homestead, or to regain a lost one.
A bill filed by beneficiaries to recover homestead, without any
showing why the head of the family was not a party, was held
demurrable.^ If the wife alone is the applicant, she should
make an averment of the reason why her husband did not
apply; and there is greater reason why an application by
children, through a representative other than a parent, should
show why he takes the place of their natural guardian.
All persons interested should be made parties to a proceed-
ing for partition, since otherwise they would not be bound by
it.^ There may be partition of the homestead between the
deceased householder's widow and his minor children, when
1 Pountain v. Hendley, 82 Ga. 616 ; ^ Shattless v. Melton, 65 Ga. 464
Eofif V. Johnson, 40 Ga. 555; Ga. ^Ketchin v. Patrick, 32 S. C. 443.
Const, of 1868. In South Cardlina, both partition and
2 Roff V. Johnson, 40 Ga. 555. The homestead cannot be claimed in the
appointment of the trustee is by the same proceedings. "Williams v. Mal-
superior court ; the application by lory, 33 S. C. 601.
him is to the ordinary or probate
judge, in Georgia.
694 PLEADING AND PEACmOE.
she remarries and does not thus forfeit the right under the
statute;' and in such case the children are parties to be
properly represented.
A decree by consent is not void between the parties con-
senting because somebody else should have been made a party,
or because it does not conform to the distribution asked in the
petition, or because it joins causes which should have been
kept separate, or because some of the parties are minors rep-
resented by a guardian who also represents a party whose in-
terests are adverse to theirs. At least, it has been held so;
and also, that such a decree is not void for fraud as against
one not guilty of fraud who gets less by the decree than he
would have been entitled to in its absence.^
When a petition for the setting-off of a homestead is made
to the court by an attorney, it must be verified by the affidavit
of his client who is the applicant ; ' and if the applicant is a
minor, his guardian should make the affidavit.
In states where real estate descends to heirs, and is not ad-
ministrable, they — not the executor or administrator — are
the proper parties defendant, in a suit by a vendor of the de-
cedent to recover homestead purchase-money.* For, as against
such suit, there is no homestead, and the question is one of
property only. True, the character of the claim may be de-
nied in the defense; and if the debt is not shown to be pur-
chase-money, the homestead interest is at stake. Still, the
heirs, adult and minor, are the parties interested as defend-
ants.
The widow should make the heirs parties to a suit, brought
by her for damages done to communit}'^ property when half
the interest is in her and half in them.^
If the widow has illegally conveyed the children's home-
stead, ejectment will lie, in their behalf, to recover it after her
death;* and why not before?
1 Brady v. Banta, 46 Kas. 131 ; Miles 3 Roberts v. Cook, 68 Ga. 324.
V. Miles, 46 N. H. 261. The widow * Buckingham v. Nelson, 43 Miss,
and all the heirs are necessary parties 417.
to a proceeding for a homestead, un- 5 Wright v. Doherty, 50 Tex. 84
der the Missouri act of 1865. Murphy « Eogers v. Mayes, 84 Mo. 530. Fur-
V. De Fi-ance, 105 Mo. 53. ther as to minor children, as parties,
2 Schermerhorn v. MahafiSe, 34 Kas. ante, p. 648.
108.
THE. WIDOW AS A PASTY. 6^5
§ 6. The Widow as a Party.
The proper remedy, for either the assignment or the recov-
ery of a widow's homestead, is a bill in equity where none has
been provided by law. She is not to suffer from the failure
of the legislature to give her a legal remedy when the right of
homestead has been accorded her by statute. And when she
has come into the enjoyment of her homestead, she may pro-
tect it by bill in the absence of a legal remedy. Having the
right, and the property to which the right relates, she is en-
titled to relief when either is assailed. Homestead statutes
prescribe no particular form of bill for such emergencies : so
she may avail herself of any proper pleading usual in chancery
practice which will lead to equitable relief.' If she is denied
her homestead right in her late husband's property, by his
heirs, her remedy is by writ of entry ,2 or by such equivalent
writ as the law of any state has authorized for her relief.
Though the guardian of minor heirs may have held, for three
years, the possession adverse to her, she will not be debarred
thereby from claiming her life estate of one-third. But if she
permanently left her husband without cause, that fact may be
set up successfully by the heirs against any homestead claim
on her part." '
When a bill for partition and assignment of dower had been
pending for several years, and evidence had been adduced
showing that the widow was entitled to homestead as well as
dower, it was held discretionary with the court to allow the
bill to be dismissed.*
When the widow is in possession of community property,
she is the proper party to institute a suit for damages done to
it; but the heirs, owning half of such property, are proper
parties.'
As a widow has all the rights of litigation appertaining to
any/eme sole, it is unnecessary to dwell upon them here. Her
suits relative to homestead are usually with heirs or creditors
1 Miles V. Miles, 46 N.'H. 361 ; At- sCockrell v. Curtis (Tex.), 18 S. W.
kinson v. Atkinson, 40 N. H. 353. 436 ; Newland v. Holland, 45 Tex.
2Mercier v. Chace, 9 Allen, 343; 589; Sears v. Sears, 45 Tex 557.
Woodward v. Lincoln, 9 Allen, 339; ^Eeilly v. Eeilly (111.), 36 N. E. 604.
LazeU v. Lazell, 8 Allen, 575 ; Searle » Wright v. Doherty, 50 Tex. 34.
T. Chapman, 131 Mass. 19.
696 PLEADING AND PBAOTICE.
of the deceased husband's estate. Her rights and remedies
have been treated in previous chapters.' There is, however,
a case out of the ordinary which may be of interest. The-
owner of a hundred and twenty -two acres of land, occupied as
his residence, died in 1876, leaving an insane widow, who was
placed in a hospital within two or three months after his.
death. She, by her guardian, claimed the land as her home-
stead, and brought ejectment against the possessor who had
bought it at a sale to satisfy a debt which had been reduced
to judgment six years before the husband's death. The court
treated the date of the judgment as the time of the contraction
of the debt, in the absence of any evidence of the date of con-
tract.^ At that time, the constitution of the state fixed the
homestead maximum at. eighty acres: so the widow was held
entitled to no more, and that quantity should have been set
apart to her before the sale ; but it was not done. She was
incapable of marking selection, owing to her insanity.' So the
court, as to the homestead claimed, denied the ejectment, but
held that her insanity and her absence from the home before
and after her husband's death from this cause did not bar her
claim to possession of the tract till the assignment of dower,^
nor bar her right of dower; and it recognized the right of
ejectment on that ground.* But, pending the appeal from the
lower to the supreme court^ the insane widow died ; and there
could be no revival by the heirs at law, since her right of pos-
session (called quarantine) died with her. But her personal
1 Chs. 19, 20, 21. possession, she could either maintain
2 On the authority of Gordon v. or defend that possession^ by suit
Mollwain, 83 Ala. 247. against any and all persons not show-
' The court cites on this point : ing a better title, and could sue and
Clark V. Spencer, 75 Ala. 49 ; Turnip- recover the rents and profits against
seed V. Fitzpatrick, 75 Ala. 397; any one coming into possession of
Dossey v. Pitman, 81 Ala. 381 ; Block them without right Benagh v. Tur-
V. George, 83 Ala. 178 ; 3 Scrib. rentine, 60 Ala. 557 ; Inge v. Murphy,
Dower, 500. 14 Ala. 389; Shelton v. Carrol, 16
* Clancy v. Stephens, 9 So. (Ala.) Ala. 148; Cook v. Webb, 18 Ala. 810;
533. The court said that the widow's McLaughlin v. Godwin, 23 Ala. 846 :
insanity furnished additional reason Oakley v. Oakley, 30 Ala. 131 ; Boyn-
f or allowing her possession under the ton v. Sawyer, 85 Ala. 497 ; Slatter v.
statute [Code of 1886, § 1900], citing Meek, 35 Ala. 538 ; Perriiie v. Perrine,
Eslava v. Lepretre, 31 Ala. 504. 35 Ala. 644."
"Having the statutory right to the
APPLICATION POK HOMESTEAD. 69T
representatives could claim successfully tlie rents and profits,
because these are personalty, and the right to them survives.*
§ 7. Application for Homestead.
Householders ordinarily declare upon their own homes and
have them recorded as exempt, or simply occupy thetn as
family residences where the statute of their state requires
nothing more to constitute a homestead ; but where the stat-
ute provides for judicial action in order to constitute it, there
must be an application to the court. Such application should
contain all the averments which the court must know in order
to grant the petition.
Family headship is one of the necessary allegations. It
may be averred of the husband, when the application is by
the wife, with the additional averment that he has neglected
or refused to apply. It has been held that an omission to al-
lege family headship is incurable by parol evidence on the
trial of a case based on the application.^ An equitable action
to recover a homestead was held demurrable because the
plaintiffs, claiming to be beneficiaries of the exemption, had
failed to show why the head of the family did not join in
the bill.'
1 Clancy v. Stephens, supra, citing i]y. Rev. Stat, of Arizona (1887),
1 Brick. Dig., p. 12, §§ 181, 183 ; g§ 3073-3. The declarant must be
Hairston v. Dobbs, 80 Ala. 589 ; the head of a family or the wife who
Chandler v. Jost, 81 Ala. 411 ; Davis declares for the benefit of herself
V. Curry, 85 Ala. 133. Further as to and her husband. Deering's Code
the widow's claiming rents, see Mob- and Stat, of Cal., § 1337 et seq.; Rev.
ley V. Andrews, 55 Ark. 233. Further Stat, of Idaho, § 3085 et seq.; Gen.
as to the widow as a party, see ch. Stat, of Colorado (1883), §1631 efseg.;
XX. > Col. Acts of 1889, p. 463. The selec-
2 Clark V. Bell, 67 Ga. 738, under tion of the homestead may be by the
the Constitution of Georgia (1877). owner, husband or wife, etc. Code
See Hardin v. McCord, 73 Ga. 339; of la., § 3163 et seq. See Comp. Stat.
Walker v. Thomason, 77 Ga. 683. Montana (1887), g§ 334, 330 ; Comp.
The application of a wife for a home- Stat, of Neb. (1889), ch. 36, §§ 1-8;
stead donation under the laws of Gen. Stat. Nev., § 539 et seq.; Code of
Texas (Sayles' Civil St., art. 3934) Washington, § 342 ; Rev. Stat Wyo-
was held to be substantially the ap- ming (1887), § 8780 ; and the statutes
plication of her husband as head of of other states and territories. The
the family. McCarthy v. Gomez provision as to head of family is al-
(Tex.), 19 S. W. 999. The claim may most general.
be by the husband or wife, showing sShattless v. Melton, 65 Ga. 464.
that he or she is the head of the fam-
698 PLEADING AUb PBAOTICE.
T'-'e applicant to have homestead accorded should aver the
fact of his having a family, though he need not particularize
as to the number of the members or their respective ages.
The only necessary averment as to the ages of his children is
that, they are in their minority; and that is important when
the applicant has no wife and he and his children compose the
family.' The necessary fact, as to the family averment, is
that he has a family such as entitles him to the homestead
privilege. This is essential because the protection of families
is the object of the exemption. It was judicially said of a
homestead law : " The statute is founded upon considerations
of public policy, and has introduced a new rule in regard to
the extent of property which shall be liable for a man's debts.
The legislature were of opinion, looking to the advantages be-
longing to the family state in the preservation of morals, the
education of children, and possibly even in the encouragement
of hope in unfortunate debtors, that this degree of exemption
would promote the public welfare." ^ Certainly, family head-
ship is a condition of homestead exemption imposed by almost
every state. And the applicant, to have an original home-
stead set out from his property by the court, should make al-
legation of the fact that the condition has been observed.'
Ownership: Allegation of ownership is proper but not es-
sential when the husband is the applicant, since that has been
held presumable; but it is necessary when the wife is the appli-
cant.* If the husband has no creditors, his averment of owner-
ship is immaterial where it might be required of a debtor.*
The title must be so alleged (when necessary) as to show pos-
sessory right, though it may be of the highest or lowest grade,
in fee-simple or merely leasehold. The vital thing is to show
the property such as the family may enjoy without disturb-
ance.'
1 Wilder v. Frederick, 67 Ga. 669 ; after the sale of partnership property
Beohtoldt V. Fain, 71 Ala. 495. by one partner, with the consent of
2 Robinson v. Wiley, 15 N. Y. 494. his copartner, was held not to affect
'^«<e, pp. 60-65. the validity of the deed. Ferguson v.
< Wilder v. Frederick, 67 Ga. 669. Hanauer (Ark.), 19 S. W. 749. So, an
5 Beohtoldt V. Fain, 71 Ala. 495. application by her for homestead in
^Kitcbell V. Burgwin, 31 111. 45; that property would not hold upon
Hughes V. Watt, 26 Ark. 228. See oh. allegation by her of the state of facts,
4. A wife's homestead right acquired in Arkansas.
APPLICATION FOE HOMESTEAD. 69P
The allegation of residence in the state, where the home-
stead benefit is confined to residents, has been held ' neces-
sary ; and even that the applicant's residence in the county
should be averred.^ A court was asked to charge the jury
that the applicant, as the head of a family, was entitled to
homestead. This being refused, the appellate court sustained
the ruling, and said that it is not every head of a family,
but the head of a family residing in this state, who is entitled
to exemption.^
There is no presumption that the applicant is a foreigner,
when his petition is silent as to residence ; but the fact of
residence should be averred when the statute makes that a
condition to the granting of the homestead immunity, and
when the courts require it.'
Occupancy by the householder and his family, at the tiipe
of the claim and at the time an alleged disputed lien was
put upon the homestead, is a necessary averment (though
there need not be further particularization), when setting
up homestead, in litigation.'' So, in litigation, when record
notice is among the conditions, the claimant of homestead
must aver that he has had his declaration recorded, or has
caused the word Homestead to be inscribed on the margin of
his recorded title, or has done whatever the statute required'
to be done as notice.^
In some forms of application, there should be a description
of the land from which the exempt portion is to be carved,
or of the portion claimed. If a form is prescribed by statute,
it is better to foUow it whether it be mandatory or merely
directory.*
' Wilder v. Frederick, supra. Cal. 202. See Orman v. Orman, 26 la.
2 Post V. Bird (Fla.), 9 So. 888; 361. See ch. 6.
Const. Florida (1885), art. 10, § 1 ; " Ante, p. 169.
Wabash R Co. v. Dougan, 41 111. 6 in the Mississippi Code of 1893,
App. 543. the following form is given, though
3 So, when chattel exemption is' not made obligatory :
pleaded. Mansf. Dig. of Ark., § 3006 ; " The State of Mississippi, )
Felner v. Bumgarner (Ark.), 17 S. W. County of . )
709. " Homestead Declaration.
* Paris, etc. Ry. Co. v. Greiner "I, John Doe (or, Nancy Roe), a citi-
(Tex.), 19 S. W, 564 ; Symonds v. Lap- zen of said state and county, do de-
pin, 82 IlL 313 ; Harper v. Forbes, 15 clare that I am entitled to a home-
700 PLEADING AND PJBACTICE.
Description: In any application for original homestead,
there should be such description of the property as to enable
the court to grant the prayer.' If a town lot (the site of the
applicant's dwelling-house) is what he asks to have assigned
as his homestead, the petition should show that it is within
the statutory limitations as to quantity and value. If it is a
town lot exceeding the limitation, or a farm of excessive size
and value, the prayer should be that a homestead be carved
: out of it.
The 'petition of a widow, to have homestead set out to her
in the decedent husband's lands, is fatally defective when
there is no description of the lands.^
In litigation: In homestead litigation, particularity of
pleading, as to the conditions, is seldom exacted. The allegar
tion that the claimant's property in question is his homestead
constituted according to the statute, and that he has complied
with all the conditions, would be sufficient in most courts.
The onus is upon the claimant of homestead in litigation to
establish by evidence all allegations necessary to the claiming
of his right. He is not called upon to prove a negative, but
he should show that his homestead is within the statutory
limit, which, expressed in another form, is to show that it is
not in excess.' But it has been held that when the quantita-
tive limit has been alleged, and also that the property was
homestead, the court would presume that there was no excess
stead in said county, and that I have code in favor of the declaration. An
selected the same as follows : [Here additional thousand dollars' worth of
describe the land and premises. Ap- property is made exempt, if the
pend plat, if desired."] owner declares upon it. In other
" Witness my signature this words, the monetaiy limit is $3,000
day of , A. D. . without declaration, and $3,000 with
" ." it.
The statute prescribes : " The decla- For advanced sheets of the yet un-
ration shall be acknowledged or published new code of Mississippi,
proved as a deed is requii'ed to be, the writer acknowledges his indebted-
aod deposited in the office pi the neas to the kindness of B. E. Baldwin,
clerk of the chancery court for record Esq., of the Bar of Jackson, Miss,
in a book to be kept for that purpose, ' Ch. 7.
and styled ' Homestead Record.' " 2 Tanner v. Thomas, 71 Ala. 233.
While it is optional for the house- 3 Lozo v. Sutherland, 38 Mich. 168 ;
holder to make and record such a Shoemaker v. Gardner, 19 Mich. 96;
declaration or not, there is induce- Meyers v. Pfeiffer, 50 IlL 485.
ment held out to him by the new
APPLICATION FOE HOMESTEAD. 701
of the monetary limitation.' That the value is not in excess
of the monetary limit is a proper subject of proof, when
drawn in question; and it is error to deny the admission of
evidence tending to establish the fact.^ If the value is greater
than the limit, the owner may ask for segregation or parti-
tion, that the statutory homestead may be assigned to him
and marked ofif to the maximum value.'
Particular averments of facts, as to the value of a home-
stead and the impracticability of carving out the widow's
dower from an excessive one, should be made in a bill de-
signed to take the administration of a decedent's estate out
of the hands of the administrator and put it into a chancery
court.*
The successful claiming of homestead is of the nature of a
recovery by the claimant for the benefit of his family : so,
a/ter the enjoyment of the benefit for several years, neither
he nor his privies can be deprived of it because of failure to
allege his family headship, or his county residence, in the ap-
plication.** The presumption of ownership, after the applica-
tion for homestead has been granted and enjoyed, is strength-
ened by the fact that the applicant was a resident of the place
he applied to have set apart.
If a bill in chancery, asking relief against the occupant of
homestead premises, discloses the fact that the question of
homestead right is involved, the answer need not contain the
same averment of fact.* The petition of a, widow, to have a
conveyance of the homestead by herself and husband declared
a mortgage, and to recover the mortgaged property as her
homestead, need not contain the averment that she had ac-
quired no homestead since the date of the deed, and has none
now.'
A judgment sustaining homestead cannot successfully be
pleaded as res judicata when another suit affecting the status
• Evans v. Grand Rapids R Co., 68 « Lenpold v. Krause, 95 111. 440.
Mich. €03. ' Hays v. Hays, 66 Tex. 606. She
2 Hill V. Bacon, 43 111. 477. is held not estopped from denying
' Helfenstein v. Cave, 6 la. 374. the validity of a mortgage on the
* Jackson v. Rowell, 87 Ala. 685 ; homestead given by herself. Plant-
Code of Ala. (1886), §§ 3543-4. ers' Bank v. Dickinson, 83 Ga. 711.
» Torrence v. Boyd, 63 Ga, 33.
702 ' PLEADING AND PEAOTIOE.
of the property is instituted under changed conditions which
have been duly alleged.'
When homestead is ^.Hotted to debtors only, to save it from
execution, there is no restraint upoa the sale of real estate by
the owner when it is free from liens, though it may be his
family residence. It may be susceptible of being assigned
him as his homestead, were an execution pending; but that
fact is no bar to his alienation of it, by his sole act — the wife
having only the prospective dower."* It follows that (where
such is the law) an application for the allotment of homestead
should contain the allegation of the pending execution or of
the judgment, if the record itself does not show the state of
things. He must specifically aver the facts on which his
right to the apportionment of homestead depends.'
§ 8. Probate Orders Setting Off Homestead.
The probate judge may assign homestead to the widow out
of land which her husband sold without her joinder.'' He can-
not set out an estate of homestead when heirs or devisees dis-
pute the right of the claimant.' That right may be passed
upon in the proper court, notwithstanding its denial by the
probate court at the instance of such disputants." By an ex
pa/rte proceeding, a probate court allotted homestead to a
widow. On appeal it was said that the allotment did not rise
to the dignity of a judicial determination against the rights of
creditors, nor preclude them from urging their claims against
the portion thus set apart to her.' Creditors are persons in
adverse interest, when the probate court is setting apart
homestead to a widow or minor children. They have the
right to oppose. They may file written exceptions to the re-
port of commissioners charged with laying off the homestead,
and to the claim itself. The confirmation of the report of
commissioners, when creditors have had no opp6rtunity to
'Martin v. Walker, 43 La. Ann. "Lazell v. Lazell, 8 Allen, 575;
1019. Woodward V. Lincoln, 9 Allen, 239;
2 Scott V. Lane, 109 N. C. 154 ; Flem- McManany v. Sheridan (Wis.), 61 N.
ing V. Graham, 110 N. C. 874. W. 1011.
3 Dickens v. Long, 109 N. C. 165. « Meroier v. Chace, 9 Allen, 242.
< Atkinson v. Atkinson, 37 N. H. ' Corr v. Shackelford, 68 Ala. 241^
434 ; Gunnison v. Twitchel, 38 N. H.
67.
PEOBATE OEDEES SETTING OFF HOMESTEAD. 703
i
oppose, may be vacated on motion. "Where the duty of the
probate judge is to certify exceptions to the circuit court for
trial, his own adjudication of them is coram non judioe} The
circuit court is the proper one in which a claim of homestead
should be filed by a widow,Vhen her husband died before ex-
ecution was levied against his land. If filed in the probata
court, the claim should be returned, with the execution, to the
circuit court. It is not proper that the issue should be made
in the probate court and then certified to th-e circuit for trial.-
When execution has been levied and homestead claim filed
by the debtor, the creditor's affidavit of contest must be filed
within ten days after notice (when the statute so provides), to
save his right of opposition.' The purpose of the statutory con-
test is to divide the homestead from the other lands of the es-
tate. This does not involve any question of title : so a mortgagee
cannot propound his interest and have the validity of his claim
adjudged as against the widow's homestead claim either in
the probate or circuit court. Her right may be contested by
the representative of the deceased husband or by any person
in adverse interest.* If exceptions be not filed within the
time prescribed they cannot be allowed later.''
Presumption is in favor of the sworn return of an officer
relative to laying off a homestead under judicial order.' Pre-
mature action by the court in setting out the homestead be-
fore the filing of the oificer's return, when exhibited by bill
for the recovery of the land thus set apart, gives ground for
demurrer to the bill.' The court cannot act on an unsworn
return, or one without an affidavit attached.^
A creditor may prove that his credit is privileged against
the homestead, in an appeal from a probate decree to his prej-
1 Kelly V. Garrett, 67 Ala, 304 S. E. 771. See Laiey v. Baker, 85 Ga.
2 Keel V. Larkin, 73 Ala. 493. 687. In Georgia, where judicial ao-
' Ala. Code, § 3884 ; Block v. George, tion is necessary in setting out a
70 Ala. 409. • homestead, there must be leave of
* Ala. Code, § 3841 ; Coffey v. Joseph, court before a homestead can be sold,
74 Ala. 371. though both husband and wife join
5 Farley v. Eiordon, 72 Ala. 128. in a warranty deed ; and after a sale
8 Timothy v. Chambers, 85 Ga. 257 ; with warranty, it may be recovered
n S. E. 598. if sold without leave of court Tim-
' Falls V. Crawford, 76 Ga. 35. othy v. Chambers,-85 Ga. 267.
SMabry v. Johnson, 85 Ga. 340; 11
704 PLEADING AND PEAOTICE.
udice ; and he is held not confined to the evidence of the rec-
ord, as to the time when the debt accrued.^ If it is within
the knowledge of the probate judge that certain property of
the decedent is liable for a debt antecedent to the homestead
right, or otherwise liable to forced sale, he ought not to set it
apart to the widow and minors as their homestead. So, if
purchase-money for the property has been unpaid.^
If the probate court makes an order against the estate of a
deceased wife who had, outlived her husband, allowing debts
contracted by him while holding their property in community,
the order is erroneous. It is not absolutely- void, however.
The administrator of her estate would not be liable to her
heirs for paying such debts pursuant to the order, in an action
brought by her heirs after his discharge.' A probate order is
absolutely void, however, when the court is without jurisdic-
tion (as is any judicial mandate), though made by consent of
parties. An order setting oflE a homestead to the widow and
minor children of a decedent, made on the application of the
widow herself, was held inoperative to divest her of the title
to community property already vested in her as the surviving
spouse. The probate court (Harrison, J., said) " had no juris-
diction of the subject-matter with which it purported to deal,
and its order thereon was without any effect upon the title
thus held by the surviving widow. . . ." *
If there is a question before the probate court which can-
not be determined there, the cause in which the matter has
arisen must be removed to a competent court, when the ques-
tion so bears upon the cause as to render its solution essential.
" When a special equity exists, there can be no sufficient rea-
' Perrin v. Sargeant, 33 Vt. 84 See § 52. And, by statute, community
Delavan v. Pratt, 19 la. 433 ; Patter- property (real and personal) passes to
son V. Linder, 14 la. 414. Compare the surviving wife, when her husband
Eedfield v. Hart, 12 la. 355. dies childless and insolvent, free from
- McCreery v. Fortson, 35 Tex. 641. community debts. Upon her death,
But see Harrison v. Oberthier, 40 Tex. it goes to her heirs exempt from such
385. debts. Cameron v. Morris, supra;
^ Cameron v. Morris (Tex.), 18 S. W. Zwerneman v. Von Rosenberg, 76
432. In Texas, on the death of one Tex. 533 ; Childers v. Henderson, 76
spouse or both, the homestead vests Tex. 664.
in the heirs of the decedent, just as < Sheehy v. Miles, 93 Cal. 338 ; 38 P.
other property does. Const, art. 16, 1046 ; Cal. Code Civ. Proc, § 1468.
PEOBATE OKDEKS SETnNG OFF HOMESTEAD. T05
■on why the final settlement of a removed administrator
may not, on his application, be transferred to and made in the
chancery court. Though his office and functions as adminis-
trator are terminated by removal, he is required to make final
settlement of his administration, which should be made in a
court having jurisdiction and power to determine and adjust
all the equities arising thereon." '
Where the decree confirming the report of appraisers who
have set apart a homestead to the widow is appealable by
the heirs of the decedent, they lose their right to have it set
aside, if, after receiving notice of the application for home-
stead, they stand by and see the estate administered, and if
they are not prevented by fraud from proving that the dece-
dent held the property in his separate right. So held, when
the decree had given the homestead to the widow absolutelj'.^
And when there is an allowance to children in lieu of home-
stead, the court's award cannot be set aside on appeal when
there is no evidence showing the order to be erroneous.' An
appeal will not lie from an interlocutory judgment re-assigning
a homestead and appoin ting commissioners to measure it.*
A homestead right, though not an estate, may involve a ques-
tion of title to land ; and such a question cannot be tried by a
summary proceeding before a circuit court commissioner to re-
cover possession of real estate.' But the ■ title itself must not
be confounded with the right. Title is not changed by the
designation of land as a homestead." If it was in fee-simple
before, it remains so after the designation. If it was less than
a fee before, it is not raised in character because the ground
to which it relates has taken on the homestead character.
1 Norton v. Norton (Ala.), 10 So. 436. than her dower, she has the dififer-
See Wood v. Morgan, 56 Ala. 397. ence set off to her in dower from
* Gruwell v. Seybolt, 82 CaL 7. the property of the estate. Graves
3Eos8 V. Smith, 44 Tex. 398. v. Cochran, 68 Mo. 76. If land ex-
* Maoke v. Byrd (Mo.), 19 S. W. ceeds the homestead limitation, and
70. By Mo. Rev. Stat (1879), § 3694, has been divided among heirs who
the commissionei-s to set apart home- hold subject to the widow's right,
stead make the apportionment of they are entitled to notice of any pro-
dower when the widow's right to bate proceeding to set ofiE her home-
the latter exists. What she gets of stead. Miller v. Schnebly, 103 Mo.
homestead is in diminution of dower. 368.
Bryan v. Ehoades, 96 Mo. 485. If » Eiggs v. Sterling, 51 Mich. 157.
her interest in the homestead is less <> Ex parfe Bay, 20 S. C. 246.
45
T06 PLEADING AND PBACTIOE.
§ 9. Probate Orders to Sell Homestead.
Though the probate court has no authority to order the
sale of a homestead of a decedent during the minority of any
of his children,' yet if it be sold with other lands, in a body,
under probate order, and the sale be confirmed, the circuit
court cannot quash the confirmation on certiorari; for it has
no guide by such writ to separate the homestead from the
other land sold with it. An heir, wronged by such sale, must
seek redress by action at law to recover possession of the
homestead portion of the land sold.^
Partition is necessary when realty including the homestead
is sold with the homestead excepted. There must be segrega-
tion of the alienated portion from that which remains unsold.
There is no co-tenancy existing between the purchaser and the
homestead-holder, for either does not have an interest in all
the tract. The householder has the whole and exclusive in-
terest 'in the homestead ; the purchaser has the whole and ex-
clusive interest in the rest ; both interests to be set out. And,
in the absence of a legal remedy^ partition may be made by
order of a court of equity on the application of either party.'
A probate court may order it when the homestead is to be
segregated from adrainistrable property with which it is con-
joined.*
There may be co-tenancy resultant from sale when, instead
of a homestead, an exempt interest is intermingled with other
real, interests sold, so that the purchaser and the householder
owning such interest " hold by several and distinct titles but
by unity of possession ; because none knoweth his own sev-
eralty, and therefore they all occupy promiscuously" — to
quote from Blackstone.*
Such exempt interest may be ascertained before or after sale,
and partition may be made and the co-tenancy destroyed: but
it is not homestead. Though often called so, neither decision
nor statute can change its nature and make it so. By judicial
1 Stayton v. Halpern, 50 Ark. 339 ; ' See Ketchum v. Patrick, 33 S. C.
Nichols V. Slieai-on, 49 Ark. 75 ; Mc- 443 ; Barney v. Leeds, 51 N. H. 378,
Cloj' V. Arnett, 47 Ark. 445 ; Cannon and cases there cited.
V.' Bonner, 38 Tex. 487. < Coffey v. Joseph, 74 Ala. 371 ;
2 Burgett V. Apperson, 53 Ark. 313. Freeman on C. & P., § 538.
5 3 Black. Com. 191.
PROBATE OEDBES TO SELL HOMESTEAD. 70't
or legislative action, such intangible interest can no more' be
made a physical family residence than it can be transfoiwe'd
to a church or theatre.
When an administrator had sold land of the decedent to pay
debts, with the widower's homestead right reserved, it was
too late for a creditor to compel him to sell her reserved in-
terest to pay a balance on his debt, which accrued bef dte the
passage of the homestead statute — he having taken his divi-
dend as creditor of the insolvent estate without objection to
the allowance of the widow's homestead. He was held con-
cluded by his own action.*
The judgments and orders of probate' courts' have been
accorded the same presumptions in their favor as those of
the circuit courts.^ So, Avhere this usage prevails, whett slich
a court orders real estate to be sold for dtebts, the presump-
tion is that it is liable to sale. The burden is on the oppo-
nent to remove the presumption. The burden is on the claim-
ant, who avers that the property subject to the order is ex-
empt, to establish his position.' It was held to be on the party
denying the right of a widow and minor children' to home-
stead in property sold by an administrator of the' estate of the
deceased husband and father, unless the sale was made topaiy
debts from which the homestead was not exempt.*
In a suit and sale to effect partition, in which the widow' is
plaintiff and the minor heirs, duly represented, are partite^' de-
fendant, the title passes shorn of it's homestead character if
no exemption right is claimed during the proceedings.' But
the right, if claimed,' is reserved and satisfied out of the pro-
ceeds.*
Quitclaim title was held to pass homestead' when gi'ven
by a widow to the executor of her late husband's estate. She
released all her right, title and interest, " whether of doW^er
or otherwise, including every claim and demand," which she
might have " against the estate for allowance as widow or
1 Judge of Probate v. Simonds, 46 * Rogers v. Marsh, 73 Mo. 64.
N. H. 363. 5 Rolf V. Timmermeister, 15 Mo.
2 Murphy v. De France, 105 Mo, 53, App. 349.
15 S. W. 949 ; Price v. Ass'n, 101 Mb. « Graves v. Cochran, 68 Mo. 74.
107. ' Mack V. Heiss, 90 Mo. 578.
8 Id. Compare Daudt v. Harmon,
16 Mo. App. 203.
T08 PLEADING AJSD PEACTICE.
otherwise." There seems to have been no minor to delay
partition. There is no reason why partition should be de-
layed when no homestead right retards it.
A community homestead had an execution levied upon it
on a judgment rendered against the surviving wife. Upon
her death the judgment creditor instituted proceedings to
have the property appraised, and the excess above five thou-
sand dollars (if any) applied to the satisfaction of his judg-
ment.^ The court ruled that the judgment against the de-
cedent should be presented to the executor like any other
claim, since the levy had created no lien upon the homestead.'
The death of the husband had not affected the character of
the homestead.' The property vested in the surviving wife
at his death.*
The creditor's claim was therefore to be presented to the
executor or administrator of the estate of the widow as a
common claim. His judgment and levy simply made a foun-
dation for statutory proceedings to ascertain the value of the
property and for an order of court for partition or sale, that
the excess might be applied to the judgment.^
Indivisible property, appraised beyond the amount of home-
stead exemption, may be sold at execution sale when the
debtor has given notice to the oflBcer in charge that he will
pay the debt less the exemption sum.^
InsoT/oency; In insolvency proceedings, an order to sell the
homestead of the debtor was held void.' Had the court pos-
sessed jurisdiction over the property and subject-matter as
well as over the parties it would have been voidable but not
absolutely void. If home property be sold under execution
without setting off the homestead when the statute directs
it to be done, the irregularity will not prevent the purchaser
from recovering possession by action of ejectment. The sale
will not be void, unless the requirement that the homestead
> Cal. Civ. Code, § 1245. Gagliardo v. Dumont, 54 Cal 496 ;
2 Sanders v. Eussell, 86 Cal. 119 ; Herrold v. Keen, 58 Cal. 443.
Cal. Code Civ. Proc, §§ 1475, 1505. » Cal. Civ. Code, g 1345 el seq.; Bar-
« 7d.; Tyrrell V. Baldwin, 78 Cal. rett v. Sims, 59 Cal. 618 ; Lubbock v.
470. McMann, 82 Cal. 230.
♦Id; Mawson v. Mawson, 50 Cal. 6 Hall v. Johnson, 64 N. H. 481;
539; Estate of Headen, 52 Cal. 295; N. H. Gen. Laws, ch. 138, § 13.
' Barrett v. Simms, 62 Cal. 440.
PEOBATE 0BDEB8 TO SELL HOMESTEAD. 709
be set off is prohibitory of sale made without compliance. A
court of chancery may adjust the rights of the parties con-
cerned.'
A court of bankruptcy or insolvency has nothing to do with
exempt property beyond the segregation of it from what is
liable for debt ; and it can do that only by virtue of statute
when its jurisdiction is limited, as it ordinarily is. Such court
cannot even order the segregation . after an illegal and void
sale of the homestead, by the assignee, in block with liable
property, by virtue of any equitable power. By statute, there
may be partition when the sale is not void.
An insolvent, after assignment for the benefit of his credit-
ors, may protect his homestead, displace an intruder by writ
of ejectment, and employ any proper remedies, legal or equi-
table, which a solvent man may use — for his homestead was
not sui-rendered, and the assignee has no authority over it or
charge concerning it.^ The assignment transfers the excess.'
The reservation of exempt property from general assignment
does not vitiate the assignment.*
A purchaser, from a bankrupt, of property excepted from
sale by a bankrupt court, gets title free from the demands of
the creditors ; and the widow of the bankrupt has been held
not entitled to homestead in it.°
1 Leupold V. Krause, 95 111. 440. tion cannot do so afterwards against
2 Moore v. Morrow, 28 Cal. 551. the other party who was successful
3 Copeland v. Sturtevant (Mass.), 30 in the first suit. He and his privies
N. E. 475. The homestead was sub- are concluded. Nichols v. Dibrell,
ject to partition, under the probate 61 Tex. 539. It has been held that a
law of Texas of 1848, when the wife widow's failure to claim partition is
survived the husband and the estate a waiver. Chilson v. Eeeves, 29 Tex.
was solvent In a proceeding for 276.
partition, a judgment determining ' ^Bradley v. Bischel, 81 la. 80.
the interests of the parties to the suit syoungblood v. Lathen, 30 S. C.
relative to the title to land is admis- 370. Section 5057 of the United
Bible in evidence, though the wife States Revised Statutes limits a suit
was not a party, if she then had no by the assignee against the bankrupt
homestead rights involved in that ac- to recover land which the latter
tion, though she is now claiming fraudulently retains as his home-
them in community property affected stead. Leech v. Dawson, 38 Fed. 624 ;
by the judgment. Jergens v. Schiele, Phelps v. McDonald, 99 U. S. 306 ;
61 Tex. 355. 8ee Putnam v. Young, Clark v. CTark, 17 How. (U. S.) 315.
57 Tex. 464. But a party who might See Jenkins v. Bank. 106 U. S. 574.
have claimed homestead in a litiga-
no
PLEADING AND PEAOTIOB.
§ 10, Suit by Administrator Relative to Creditors.
4- statute authorized an administrator of an estate to prose-
cute, at law or in equity, in behalf of creditors, when there is
deficiency in his hands and a fraudulent conveyance of realty
has been made by the decedent : the action being to recover
the property.^ In a proceeding by virtue of this statute, it
was held that the decedent debtor's conveyance of all his prop-
erty with the homestead was fraudulent only as to creditors
not provided for. So far as necessary to pay their claims, the
conveyance was liable to be set aside. But the administrator,
under that statute, cannot recover, by action of ejectment, an
undivided interest in the fraudulently conveyed realty, regard-
less of the homestead ; for the exempt portion of the land sold
cannot have been conveyed in fraud of creditors.^ He must
proceed by bill in equity.'
IR. L. of Vermont, § 2163.
2 Id, §1894.
s Pease y. Shirlock, 63 Vt. 633;
23 A. 661. Tyler, J. : " The defend-
ants' counsel insisted, on the trial of
the court below, that the plaintiff,
when he rested, had not made a prima
facie case, and moved for a nonsuit,
which motion was denied. The first
question presented by the exceptions
is whether the conveyance by Will-
iam Shirlock and wife of their farm
to their son, the defendant Frank
Shirlock, was fraudulent and void as
to the grantor's creditors. The farm
conveyed was worth from $1,700 to
|2,200, of which from $700 to $800
was in the dwelling-house and shed
attached. The grantor's debts at the
time of the conveyance, as subse-
quently shown by the report of com-
missioners, amounted to about $1,200,
for the payment of which he re-
served property to the amount of
only $81. The grantor took a mort-
gage back, conditioned for tlie sup-
port of himself and wife during their
li^es, which support the defendant
furnished. The deed and mortgage
were executed February 39, 1888.
William Shirlock died April 17th fol-
lowing, and his wife, August 11, 1890.
On the 31st day of August, 1889,
Frank Shirlock executed and de-
livered a mortgage of the premises
to William Martin as security for a
debt due from him to Martin. This
action was brought May 15, 1890, by
the administrator of William Shir-
lock in behalf of his creditors, under
section 2163, R L., which is as fol-
lows : ' When there is a deficiency of
assets in the hands of the executor or
administratoi', and when the deceased
person made such fraudulent con-
veyance of real estate in his life-time,
the executor or administrator may
commence and prosecute to final
judgment any proper action or suit,
in law or equity, for the recoveiy of,
and may recover for the benefit of
such creditors, such real estate ; and
may also, foj- the benefit of the cred-
itors, sue and recover for goods, chat-
tels, rights, or credits fraudulently
conveyed by the deceased in his life-
time.' That the conveyance falls
within the provision of this section,
and of sections 1955 and 415-5, that
the deed and mortgage were f raudu-
administbatoe's suit as to ceeditoks.
ni
That the decedent and his wife (in the case cited) had ac-
quired their limited homestead right in the property, prior to
the creation of the debts; and that the homestead had never
been segregated from the rest of the farm, was conceded in
lent and void as to William Shirlock's
creditors, and that in a proper action
the administrator may recover a part
of the land sufficient to pay the debts,
admits of no serious doubt, for the
reason that the conveyance was op-
erative to place substantially all the
grantor's property beyond the reach
of his creditors. That this was done
with such intention on the part of
the grantor, and that that intent was
known to the grantee, must have
been found by the jury, under the
charge of the court ; for the excep-
tions state that the jury were fully
instructed, and in a manner to which
no exception was taken, concerning
the facts they must find, and the law
governing the plaintiflf's right of re-
covery. It was decided in Crane v.
Stickles, 15 Vt 352, that a convey-
ance of all the debtor's property,
without making provision for the
payment of debts, was fraudulent
and void as to creditor's. Prout v.
Vaughn, 53 Vt 451. It is well set-
tled that a debtor is bound to reserve
from a conveyance of this kind
ample property for the payment of
his debts. Church v. Chapin, 35 Vt.
333; Foster v. Foster, 56 Vt. 540.
Kelsey v. Kelley, 33 Atl. Eep. 597,
heard at the last general term, and
referred to by counsel, is in line with
these cases.
" The second question is whether,
in an action of ejectment, the plaint-
iff could recover an undivided in-
terest in the entire premises, irre-
spective of the homestead. The argu-
ments of counsel on both sides have
proceeded upon the ground that
there was a homestead interest in
this farm, exempt from Attachment
when the action was commenced,
and there was no exception to the
charge of the court pn this subject.
. . . William Shirlock's creditors
had no interest. Neither they nor
the plaintiff, as the representative of
their interests, could be tenants in
common with the defendant in the
homestead. Lindsey v. Brewer, 60
Vt. 637, 15 Atl. Rep. 829. On this
ground, the defendant's motion for a
nonsuit should have been granted.
By the terms of the statute under
which this action is brought, the con-
veyance was fraudulent and void
only as to the grantor's creditors,
and should be disturbed only so far
as is necessary to satisfy their claims.
In a case where the estate thus con-
veyed was worth, say, $5,000, and
the debts of the grantor were but a
few hundred dollars in amount, it
would be a severe construction of the
statute to hold the whole convey-
ance void. If William Shirlock had
owed no debts, the conveyance of his
farm to his son would have been
valid, and in the circumstances of
this case no i-eason can be assigned
why the conveyance should not be
held valid except as to creditors.
Bassett v. Hotel Co., 47 Vt. 313. Then,
was the interest which the plaintiff
was entitled to recover in the de-
manded premises such as could be
reached by means of an action at
law? The statute provides that the
administrator may have any proper
action or suit in law or equity for a
recovery of the real estate fraudu-
lently conveyed. A case can readily
be conceived of in which an action
at law would be the appropriate rem-
edy, as where the estate conveyed
712 PLEADING AHm PEACmCE.
the trial" court. Their right to have had the exempt portion
laid off so as to give them a real, tangible, habitable home-
stead, was beyond dispute. Their right to sell it, if thus laid
off, was unquestionable. But the contention by counsel that
the purchaser became a co-tenant with the vendors, who were
supposed to have held an ideal homestead after the nominal
conveyance of the whole f aTm, was manifestly untenable ; be-
cause no such ideal has a hearth-stone or anything habitable;
the decedent and wife could not have that exclusive possession
which is essential to homestead if the purchaser was a tenant-
in-common with them. Clearly then, a bill in equity, to as-
certain the creditors' rights in the unsold interest, and to ac-
cord justice to them by segregating the homestead from the
rest of the farm and giving them satisfaction out of the bal-
ance, was the proper remedy.
The whole sale was not a nullity because in fraud of the
creditors ; the unknown portion non-liable (because the home-
stead right was in it) was sold without fraud of creditors;
but that portion was not homestead when so intermixed with
liable realty as to be undistinguishable. It was an interest —
not land itself.
The language of the statute was, not that an administrator
should have an action at law merely in behalf of defrauded
creditors, but " any proper action ; " and since the statute pro-
vided no adequate legal remedy, resort should have been had
to an equitable one, as the court ably pointed out.
The homestead is not generally administered by the admin-
istrator as an asset of the decedent's estate, and is not usually
subject to the orders of the court of probate when settling the
estate.^ But when it is an undivided part of other realty
which is subject to that court and is to be administered, it may
be segregated by order of the court.^ If it is not thus con-
was unincumbered by a homestead sufficient to pay the debts, could be
and the whole was insufficient to sequestered and sold, and the title tc
pay the debt of the grantor; but the remainder rest undisturbed in
here, the homestead being unelimi- the hands of the defendant Spauld-
nated from the other real estate, we ing v. Warner, 59 Vt 646, 11 Atl.
are unable to see how ejectment or Rep. 186 ; Lindsey v. Brewer, supra."
any other action at law can meet the i Estate of Tompkins, 13 Cal. 114:
exigencies of the case. By a pro- Carter v. Randolph, 47 Tex. 379.
ceeding in equity a part of the land, ^Jd.; Pease v. Shirlock, supra.
ADMINISTBATOe's suit as to CEElilTOES. 713
nected with the realty so as to be merely an ideal homestead,
or non-habitable interest, but is a house-and-land family resi-
dence well rounded and needing no segregation, the adminis-
trator has nothing to do with it. If such a real homestead
has been sold by the sheriff on judgment for debt, and the
debtor-owner sues to recover, and dies pending the action,
his administrator cannot take his shoes to go on and prose-
cute:^ it is the business of those to whom the homestead
will come, if the suit be gained. No doubt the administrator
can take part in any suit in which the homestead is incidentally
involved, if it is necessary to protect the rights of creditors
and prevent fraud upon them. If the question is whether
homestead shall be apportioned from other land which is ad-
ministrable, he has a voice.
When a probate court orders land to be sold to pay debts
of the decedent, and the land, or a part of it, is claimed as ex-
empt because it is a homestead, the burden of proof to estab-
lish the plea is on the claimant.^
The husband's giving to his wife the proceeds of the sale of
their homestead is not fraudulent ^er se as to creditors.' It
is different from the conveyance of the homestead itself to
her, when both he and she continue to enjoy it ; for then it is
plainly a change of ownership which does not affect the policy
of the law to protect families. In a sale for money not held
for re-investment in a new home, the homestead is no longer
enjoyed and the policy of the law no longer carried out : so
the creditors would ordinarily have the right to execute their
judgments against ordinary property bought by the debtor
with the proceeds of the homestead. If the money is not in-
vested in liable property, but is donated by the debtor to his
wife, there would seem to be plausibility in the proposition
that it would be liable to creditors ; but this is not generally
held, and, as above shown, such disposition of the proceeds of
the homestead is not fraudulent in itself as to creditors. The
doctrine is settled that creditors have nothing to do with ex-
empt property, except that they may question the exemption ;
1 Bassett v. Messner, 30 Tex. 604. widow and all the heirs were made
^ Murphy v; De France, 105 Mo. 53 necessary parties to a proceeding for
(overruling Daudt v. Harmon, 16 Mo. a homestead. Id.
App. 308). By the act of 1865, the 3 Wetherly v. Straus, 93 Cal. 383.
714: PLEADING AND PEAOTICE.
I
that they are not defrauded by any disposition the owner may
make of it; but when it is converted into ordinary property,
the latter is liable to creditors.*
§ 11. Relative to Foreclosure.
Manifestly, if the homestead has been duly mortgaged by
man and wife, they can have nothing to say, against its fore-
closure, on the ground of any "remaining homestead rights. All
those rights went when they made the mortgage, and the
mortgagors are presumed to have had the quid pro quo? But
suppose tlie wife did not join in making it, and therefore the
mortgage was void as to the homestead : there would be oc-
casion for allotment if there was other realty mortgaged in
the same act, and that other realty was subject to the hus-
band's disposal. An attempt bj' the mortgagee to foreclose
against. the exempt property, as well as the non-exempt, would
render necessary a separation of the two. It would become
necessary, in some states, for the debtor to plead his exemp-
tion.
The adult heirs of a deceased homestead-holder who mort-
gaged the premises cannot compel foreclosufe, in a partition
suit instituted by them, if the widow and minor heirs are in
occupancy, and she promptly pays the interest on the mort-
gage, and the mortgagee does not desire to foreclose.'
Redemption: A homestead subject to a judgment lien may
be redeemed by the lien-holder after its foreclosure as part of
a larger property by a mortgagee, if he was not a party to the
foreclosure. To redeem, he must pay the sum bidden at the
public sale for the whole property, less the value of the home-
stead.* In a bill to redeem land from mortgage, if the plaint-
iff claims redeniption on the ground that he holds an estate of
' S&e generally fox- administrator's it is void. Comp. Stat Oklahoma,
sale of homestead, pages 490, 493. § 2861. And in Texas, the mortgage
2 Exception to this statement may or trust deed of the homestead is in-
be found in statutes where mortgage hibited, except when given to secure
is prohibited. In Oklahoma, eighty purchase-money, debt for improve-
of the one hundred and sixty acres, ments, etc. Sayles' Tex. Stat (1888) ;
allowed as a rural homestead, cannot Const of Tex., art. XVI, g§ 50-52.
be subjected to mortgage, either legal ' Hannah v. Hanriah (Mo.), 19 S. W.
or equitable. Though both husband 87.
and wife execute the act in due form, ■• Sutherland v. Tyner, 72 la. 333.
BELATIVE TO FOEECLOSUEE. 715
homestead in the property, and alleges that the mortgaged
premises are a part of his^ homestead though separated from
his dwelling place, his bill is not liable to demurrer on the
ground that it shows no estate of homestead in the property.'
Under such a bill, when the plaintiff has right of homestead,
the exempt portion may be set off by commissioners.^
The sheriff's sale of property on part of which the home-
stead right rests is not necessarily void because it was not
made expressly subject to the homestead estate.' :
A senior mortgagee, whose lien was privileged against his
debtor's homestead and other realty, took possession of tlie
property to foreclose for breach of condition. A junior mort-
gagee, whose lien was subject to the debtor's homestead right,
filed a bill to redeem ; and it was held that he could compel
his senior to account to him for rents and profits received, or
which might have been recovered by him, as possessor of the
whole property.*
If, at a sale on execution of an equity of redemption of
property on which rests a homestead right, that right be de-
manded by the beneficiary and disregarded by the oflElcer, the
purchaser cannot oust the homestead-holder, for he gets no
title.'
Exhausting other jpro]perty: The right to make the mort-,
gage creditor exhaust other property before the homestead
does not belong to a third person who has bought the home-
stead after the execution of the mortgage under which the
sale is had.' If such creditor has exhausted such other prop-
erty, he cannot have it proceeded against in the hands of a
third person before the selling of the homestead.' One who
holds a claim antecedent to homestead acquisition will not be
affected by his delay till other property has been exhausted
by other creditors.* A third person, purchasing the home-
stead under a mortgage sale, has no right to compel a creditor
1 Davis V. Wetherell, 13 Allen, 60. Tucker v. Kenniston, 47 N. H. 367 ;
2Pifctsfield Bank v. Howk, 4 Allen, Fogg v. Fogg, 40 N. H. 388.
(347 ; Silloway v. Brown, 12 Allen, 30. « Barker v. Rollins, 80 la. 413 ;
' Swan V. Stephens, 99 Mass. 7. Kemerer v. Bournes, 53 la. 173.
<Eichardson v. Wallis, 5 Allen, 78. 'Dilger v. Palmer, 60 la. 117.
s Laconia Bank v. Eollins, 63 N. H. .8 Denegre v. Hawn, 14 la. 340.
66 ; Kensell v. Cobleigh, 63 N. H. 398 ;
716 PLEADING AND PRACTICE.
of the mortgagor to exhaust other property before the home-
stead.' It cannot be done by a cross-action, when the right
to compel the exhaustion of other property exists : the method
is by special direction in the execution.^
Because the homestead interest is favored by the constitu-
tion of a state, a mortgagor was accorded the right of demand-
ing that his homestead be discharged from mortgage incum-
brance by the application of proceeds in excess of what was
'■ necessary to satisfy the debt on which the property had been
■ sold. Judgment creditors, whose inoperative liens antedated
.the mortgage, thought themselves entitled to the_ excess of
proceeds — i. e., those remaining from a sale made to satisfy
a debt for which the homestead was indisputably liable. But
the court applied the money to the extinguishment of the lien
immediately operative.'
After a mortgage given, a creditor obtained judgment
against the mortgagor ; and, pending execution, the defend-
ant had a part of what he had mortgaged set apart as his
homestead. It was held that the judgment creditor could
compel the mortgagee to exhaust the homestead portion first."
A senior mortgage covered land including the homestead.
A junior mortgage covered the same, except the homestead.
The holder of the latter foreclosed, and he bought the land
at the judgment sale. The senior mortgagee sat by, relying
upon his seniority of- lien. When he came to foreclose, the
late junior, who was now the owner, claimed that the senior
must make his money on what remained — the homestead.
But the senior insisted that he must first exhaust the other
property liable under his mortgage — that is, the land just
sold and bought in by the junior ■ — and so the court said.'
Where a mortgage is upon exempt property with other
; property not exempt, and it is held to be a general assign-
ment, creditors cannot share in the proceeds of the sale unless
there has been a waiver of exemption in their favor.'
1 Barker v. Rollins, 30 la. 413 ; back, 87 N. C. 216 ; Curlee v. ThomaB,
Kemerer v. Bournes, 53 la. 173. 74 N. C. 51.
2 J6. * State Savings Bank v. Harbin, 18
3 Leak v. Gay, 107 N. C. 468; Code S. C. 435.
N. C. gg 501, 3766; Wilson v. Pat- » Equitable Ins. Co. v. Gleason, 69
ton, 87 N. C. 318 ; Butler v. Stain- la. 377 ; Grant v. Parsons, 67 la. 31.
6 Collier v. Wood, 85 Ala. 91.
EELATITB TO FOEEOLOSXJEE. 717
If a tract be sold, except a homestead carved out of it under
an order df court ; and if tlie proceeds be suflBcient to satisfy
a senior judgment on a debt antedating the exemption law ;
and if the equities of parties are not reserved in the order of
sale, — may a junior judgment creditor provoke the sale of
the homestcEcd to pay the senior? No; for the sale of the
tract, less the homestead, would have already paid him.'
The finding of the trial court that the plaintiff furnished ^
the material with which the defendant built his dwelling-
house, and that the note (sued upon) was given for the mate-
rial, was held conclusive on appeal. So, the homestead was
liable to execution when the judgment on the note could not
be satisfied by the sale of personalty.^
Ejectrnent: The purchaser of a homestead at a sale under a
mortgage given by the debtor for purchase-money is entitled
to possession; and he may eject the .occupant. He is entitled
to a writ of assistance upon satisfying the court that the sale
was to foreclose a purchase-money mortgage executed by the
debtor.'
The plaintiff, in a suit to eject a widow from land assigned
her as a homestead, should aver the character of the title
under which it was assigned — whether in fee or for life ; for,
if the former, the assignment is conclusive unless reversed by
a higher court on appeal.*
In an ejectment suit, there was a motion to dishaiss the
plaintiff's appeal, on the ground that the judgment had been
satisfied. The defendant, in possession of property claimed
as homestead, under contract to purchase, had been adjudged
entitled to it, by the lower court, on her payment of the bal-
ance due on the contract. She had neither paid nor offered
to pay; nor had she so pleaded as to warrant that court to
make such ruling. The pleading merely put at issue the right
of possession. The judgment, so far as this ruling was con-
1 Shell V. Young, 33 S. C. 463, dis- » Skinner v. Beatty, 16 Cal. 156.
tinguishing State Bank V. Harbin, 18 Compare Montgomery v. Tutt, 11
8. C. 435. Cal. 190. See Dillon v. Byrne, 5 Cal.
2 Tyler v. Johnson, 47 Kas. 410. 455.
On exhausting the excess when the * Hutchinson v. McNally (Cal.), 23
homestead exceeds the legal limit, Pac. 133. See 85 Cal. 619; 34 Pac.
*ee p. 410. ' 1071.
718 PLEADING A.ND PEACTICE.
cerned, " was entirely outside of any issue joined in the cause
before the court. It was entirely foreign to anything set
forth in either complaint or answer. There was nothing in
the case on which to base it. It is suspended, as it were, in
mid-air, without support of any kind or description, and is en-
tirely irregular and erroneous." '
In an action of ejectment for two tracts, of eighty acres
each, the plaintiff relied upon a mortgage given by the hus-
band without his wife's assent. The defense was that the
two tracts were homestead and the mortgage thereon void.
The jury allowed the defendant to retain one tract as his
homestead, on which he resided. He had refused to elect be-
tween the two.^
"When land (including the homestead not selected) is sold
all together without the wife's joining the husband-vendor
in the deed ; and is subsequently subjected to an execution
levied before the transaction mentioned, the purchaser at the
private sale may be ejected by the purchaser at the public
sale under the execution. The suit to eject cannot be success-
fully resisted on the grounds that the wife did not sign the
deed given and that the land sold under execution included
the homestead of the vendor at public sale.'
Pleading homestead against foreclosure: .Homestead should
be pleaded in a foreclosure proceeding, if the defendant does
not mean to waive exemption.* A junior mortgagee may in-
tervene in an action to foreclose, brought by his senior, to
show that the homestead proceeded against is exempt from
the plaintiff's claim while liable for his.^
The burden of proof is on the defendant who pleads home-
stead against a mortgage in an action brought to foreclose.*
For it is not to be assumed that he has hypothecated property
for a consideration which he has enjoyed, if he had no right
1 Alexander v. Jackson (Oal.), 25 Haynes v. Meek, 14 la. 330 ; Collins
Pac. 415. V. Chan Hand, 48 la. 241 ; Brumbaugh
2De Graflfenrled v. Clark, 75 Ala. v. Zollinger, 59 la 384; Hemenway
425. In Mississippi, in an action of v. Wood, 53 la. 21.
ejectment, homestead cannot be al- ^ Alley v. Bay, 9 la. 509.
lotted. Lazar v. Caston, 7 So. 321, « Webb v. Davis, 37 Ark, 551, as to
'First Nat Bank of Constantine a mortgage executed when the Ar-
V. Jacobs, 50 Mich. 840. kansas constitution of 1868 was in
♦Larson v. Reynolds, 13 la. 579; force.
EELATIVE TO F0KECL08UKE. 719
to do SO. The invalidity of his act is not a matter of pre-
sumption.
It has been held that the householder, after having been a
party defendant to foreclosure proceedings against his home-
stead, cannot afterwards recover from the purchaser on the
ground that the homestead was exempt and therefore the
mortgage invalid. He should have pleaded such ground in
the foreclosure suit, to make it available.^ If he has any rem-
edy, it is in equity, to set aside the sale.^
There are many cases in which householders have denied
the validity of mortgages executed by themselves on 'the
ground that their wives did not sign. They are not estopped
from setting up this ground, if the statute renders such forms
of mortgage null. Frequently the wife joins the husband in
setting up this ground, or she appears alone to do so." Even
though she has signed, she may repudiate her act if there was
not the required acknowledgment.* If, however, she should
plead the want of acknowledgment, in some states her defense
would be of no avail, if she has freely joined in giving and
signing the mortgage, acting as though she were a feme sole?
In a foreclosure 3,gainst land, of which the defendant claims
an undivided interest, he may state facts, in his plea setting
up his interest, tending to show his inability to designate his
homestead boundaries before the partition, and thus make
valid defense to the suit to foreclose the mortgage.*
In a foreclosure suit, those should properly be made parties
defendant who have issued executions against the mortgaged
property. They may be charged with the conversion of such
property though it be in the custody of. the sheriff, as he holds
subject to their judgment and execution lien.'
Eeoeiver: Under some circumstances, a receiver may be ap-
pointed, in an action to foreclose a mortgage, though the
property is a homestead. It may be hotel property about to
be diminished in value by being closed, so that such appoint-
1 Haynes v. Meek, 14 la. 320. » Sandwich Co. v. Zellmer (Minn.),
2 Coon V. Jones, 10 la. 133. 51 N. W. 379.
3 Ante, ch. XII, §§ 3-20 ; Hancock « Jenkins v. Volz, 54 Tex. 636.
v. Herrick (Arizona), 29 P. 18. ' Silberberg v. Trilling (Tex.), 18 S.
< Phillips V. Bishop, 31 Neb. 863. W. 591.
720 PLEADING AND PEACTICE.
menl would be advisable. The court has equitable jurisdiction
to make the appointment when its exercise becomes necessary
to protect the rights of a mortgagee not resliing on the
common-law principle of a legal estate transferred to him by
the mortgage.' In an action for forcible detainer, in which
the defendant claimed homestead, a receiver was appointed.*
But it is questionable whether it is ever proper to take posses-
sion of a mortgagor's homestead while proceedings to fore-
close are pending. Certainly it is not proper practice, as a
general rule. An application for such an appointment should
always be refused when the amount of the mortgage debt is a
subject of contention in the case.'
When an executor is ordered by the court to turn over
property to a receiver, he cannot continue to hold it on the
ground that it is homestead.* In administering his deceased
wife's estate, he cannot set up an original claim of homestead
exemption against her creditors, in his return to a rule to
show cause why he should not turn over the property of the
estate to a receiver.*
Marshaling liens: It is necessary that the court determine
the rank of liens, in a foreclosure suit upon notes and advance-
ments secured by mortgage, when a third person, cited as a
defendant, claims a lien upon the land as prior to that of the
mortgagee. The court may decree the payment of such per-
son from the proceeds of the sale, when he has been made a
party defendant (though he has filed no cross-bill), when he
has set up his lien, as paramount, in his answer to the plaint-
ifif's bill.* Greater particularity of pleading would be required
1 Lowell V. Doe, 44 Minn. 144; 27 N. E. 1090. Scholfield, C. J.:
Finch T. Houghton, 19 Wis. 163; "The Will County National Bank
Schreiber v. Carey, 48 Wis. 308 ; Hy- had a mortgage on real estate be-
nian v. Kelly, 1 Nev. 148 ; Pasco v. longing to Andrew Dillman, and oc-
Gamble, 15 Fla. 562; HoUenbeck v. cupied by him as a homestead, to
Donnell, 94 N. Y. 342. secure the payment of promissory
2 Bromley v. MoCall (Ky.), 18 S. W. notes for $9,493.87, and an advance to
1916. the amount of $5,880.29. John W.
' Callanan v. Shaw, 19 la. 183. Nadelhoffer had a judgment lien
* Harmon v. Wagener, 33 S. C. 488. against the same real estate for
6 Harmon v. Wagener, 33 S. C. 488 ; $8,647.49. Bill in chancery was filed
12 S. E. 98 ; Code S. C, §§ 265, 360. by the bank in the circuit court of
6 Dillman v. Will Co. N. Bank (111.), Will county against Dillman and his
RELATIVE TO FOEECLOSCEE.
721
in some states. It will be noticed, in the case cited, that the
court confined its authorities to its own state, but th« prin-
ciple would be recognized in many others. Had the contest-
ing lien-holder come voluntarily into court, his pleading should
have been by cross-bill ; but as he was made a party defend-
ant by the mortgagee for the purpose of having the question
of priority settled, it was clearly proper that he should state
his case and make his prayer in his answer.*
wife and Nadelhofifer, praying for a
foreclosure of its mortgage, the set-
ting ofi of homestead, and a sale of
the mortgaged premises. Nadelhof-
fer answered, claiming that his liSn
was paramount to that of the bank.
On the hearing, decree was rendered
that the mortgage be foreclosed, ap-
pointing commissioners to set o£f
homestead, directing a sale of the
mortgaged property after homestead
should be set off, and that the pro-
ceeds of the sale be applied, after
payment of costs, (1) to the payment,
of the amount due upon the notes se-
cured in the mortgage ; (2) to the pay-
ment of the amount due Nadelboffer
upon his judgment; and (3) to the
payment of the amount due for the
advances secured by the mortgage.
The appellate court of the second dis-
trict affirmed this decree. It is now
contended here, a'.it was contended in
the appellate court, and the same
arguments that were filed there are
reflled here in support of the conten-
tion, (1) that it was error to grant
Nadelhoffer affirmative relief on his
answer alone, he having filed no
cross-bill in the case; (2) that the
commissioners to assign homestead
were not sworn before a proper of-
ficer ; (3) that the decree erroneously
cuts off the right of dower of Dill-
man's wife. We concur in the judg-
ment of the appellate court, and re-
fer to the reasoning in support
thereof, as found in the opinion filed
46
in the case, as a sufficient answer to
the arguments by appellants' counsel
(Dillraan v. Bank, 36 111. App. 273);'
and we deem it necessary to add
only : (1) The bank was entitled to
have its mortgage foreclosed and the
priority of the liens upon the prop-
erty determined under the bill which)
it filed. Ellis v. Southwell, 29 111'.
549; Soles v. Sheppard; 99 111. 61ft.
The relief to Nadelhoffer was only in-
cidental to and inseparable from th»
relief to appellee, and was therefore
necessarily allowable upon his an-
swer alone. See cases supra. (2)
These commissioners were appointed
by the court of equity, and not by an
officer having an execution, as pro-
vided by sec. 10, ch. 52, Rev; St
1874 ; and they were therefore not re-'
quired to take an oath before the
person therein designated. The court
of equity unquestionably had power
to direct that they take an oath for
the performance of their duties be-
fore any officers empowered by law
to administer oaths generally, and
notaries public are thus empowered.
Sec. 2, ch. 101, Id. (3) The decree
does not assume to divest the wife of
Dillman of her inchoate right of
dower, and it is impossible that it can
have that effect. The other objec-
tions in the arguments to the decree
below are, in our opinion, trivial, and
demand no answer. The judgment
is affirmed."
1 See generally, as to determining
tZ'd PLEADING AND PEACTICE.
Ordinarily, no form of action is peculiar to homestead liti-
gation ; " the test of exemption or non-exemption is not the
form of action pursued, but the consideration of the debt'
due ; " that is, whether the suit is for purchase-money or like
claim not affected by exemption, or is for something not col-
lectible from the homestead.^
Married' homestead beneficiaries sold and conveyed their
homestead, taking the grantee's note secured hy lien' on ' the ■
property. This divested the property of its homestead char-
acter. The grantors cannot plead that the land is their home-
stead against the right of indorsees to whom they have trans-
ferred the note to establish a lien against the land. They do
not occupy the position' of one having made an executory
agreement io sell homestead. Had they any right left after
giving the deed of sale, on the ground that the grantee had
not paid the price, they parted with that when they trans-
ferred tlie' note given for the price. The part of the answer,
setting up homestead right in bar of the foreclosure of the
lien, was met by demurrer which was sustained.^
. /Sureties: A husband and wife each owned eighty acres, and
the homestead was upon half of his tract.' All was mortgaged
together by them, and subsequently the mortgagee released
the wife's land. The wife was surety for the debt. It was
decided that the homestead could not be sold till all the other
land thafchad been mortgaged should be exhausted ; that prior
to such exhaustion,' the homestead could not be sold even to
protect the wife as surety ; that the rule above stated takes
precedence of the rule that the surety may have the, principal's
property, exhausted before his own.' In thus holding, it was
said bj'' the'court : " The plaintifif in this case, by voluntstrily
releasing a part of the land mortgaged, cannot defeat the
beneficent purpose of the statute to secure a home for the
family, and; cause the home to be sold which the statute' de-
clares shall be exempt. The rules prevail in all cases of sure-
ties for homestead owners. In the case of the wife who be-
comes the surety for her husband, there are persuasive equities
the rank'of liens and assets, Wood v. 2 j)e Hymel v. Mortgage Co., 80
Wheeler, 7 Tex. 13 ; Webster v. Bron- Tex. 493 ; 16 S. W. 311.
stow, 5 Bush, 523. 3 Bockholt v. Kraft, 78 la. 661 ; la.
» Ransom v. Duff, 60 Miss. 901. Code, § 3168.
EQUITT EULE AS TO ORDEE OF SALE. 723
which require her to stand by the contract which the law
made for her. She ought not to be a party to an attempt to
rob her husband and her family of their home. Her duty to
her family demands that she should preserve her home, rather
than her individual property." '
Sureties on a collector's bond, who had been compelled to
pay, asked to be subrogated to a hen resting on land which
the collector had acquired and exchanged for the land which
he held as his homestead. It was held that they should be
subrogated to the right to the land last acquired, but only so
far as it was in excess of the monetary homestead limit.''
The sureties on the bond of a deceased guardian, forced to
repair his default, are entitled to subrogation to the remedy
against the deceased's homestead which the wards have.' The
general rule, that payment must precede subrogation,* finds
an exception here (as the court mentions), since the only
means by which the sureties could reimburse themselves after
payment would be by the sale of the homestead. "It would
be unreasonable to require the sureties first to pay the plaint-
iffs the debt their father owed them, and then sue them to
have the money back again." '
§ 12. Equity Rule as to Order of Sale.
The equity rule which saves the property subject to a junior
lien till the seijior has first exhausted property not subject to
it, when the senior lien covers both, is apphcable to liens upon
homesteads.® So far as that rule is concerned, there is no
difference between a homestead and other property. Duly
mortgaged by husband and wife, or subjected to a valid lien
1 lb. A dissenting opinion, by Eob- right of the surety tc have it appra-
inson, J., takes the view that the sec- priated to repay the money he has
tion cited refers to the rights of the paid for his principal, the equities, it
debtor and creditor, not those of seems to me, are with the surety."
principal and surety ; and that "the 2 Crawford v. Eicheson, 101 III. 351.
right of parties to a contract of pay- sState v. Atkins, 53 Ark. 303.
ment, to fix the order in which the ^McConnell v. Beattie, 34 Ark. 118.
mortgaged property shall be sold to * State v. Atkins, siipra; Dugger v.
pay the debt, is unimpaired. . . As Wright, 51 Ark. 235.
between the riglit of the debton who « Myers' Appeal, 78 Pa. St. 453 ;
has voluntarily pledged his home- Pittman's Appeal, 48 Pa. St 315;
stead for the payment of the debt, to Shelly's Appeal, 36 Pa. St 373 ; Jones
hold it as against his surety; and the v. Dow, 18 Wis. 258.
724 PLEADING AND PEACTICE.
of any sort, it is as liable to forced sale as any other; and it
cannot be favored to the prejudice of a junior mortgagee or
other junior lien-holder, any more than other realty so situ-
ated, if the junior claims the benefit of the rule. In the
absence of any statutory inhibition of the exhaustion' of the
homestead before other property, when both are subject to a
valid licA or liens, there is no difference between the two,
except with reference to the wife's interest.
Manifestly, the owner's homestead right is no lien or incum-
brance on his own property to be marshaled with liens held
by others. To hold that he can be the owner and yet the
holder of an incumbrance on what Jie owns is absurd. Were
he to purchase an outstanding lien against his own propertj^,
it would be lost by confusion ; canceled, as though paid. His
right, therefore, to compel a mortgagee to exhaust other prop-
erty before touching the homestead is not that which a junior
mortgagee may exercise under the equity rule. It is statu-
tory— not equitable — -wherever it exists.
The opposite idea has had some judicial sanction. It has
been given as a reason for the exhaustion of. other property
before touching the liable homestead, that the " homestead
right is equal, if not superior, in dignity to any other legal or
vested right, and should not be disturbed short of a fair sale,
to the hjghest bidder, of all other property." ' Similar ex-
pressions are found in several cases scattered through the books.
One would like to know definitely whether the owner's incum-
brance on his own is to be ranked as equal to any held by
others, or is superior. There seems to be a confusing distinc-
tion between the owner's homestead right and his property
right in the same homestead, in the above extract.
The qwasi-estsite of the wife, in the homestead, when she
does not own the property, is in the nature of an incumbrance.
While she cannot claim her prospective estate of dower as a
present incumbrance to be brought into competition with con
ventional and other liens, she may urge her present quasi-
estate of homestead as possessing the character of an incum-
brance upon her husband's title, and perhaps she may invoke
' Twogood V. Stephens, 19 la. 413 ; Colby v. Crocker, 17 Kas. 527 ; Ray v.
Adams, 45 Ala 168.
EQUITY ETJLE AS TO- OEDER OF SALE. 725
the equity rule.' Her right to interfere, however, is usually
protected by statute so that she need not resort to that rule.
If the mortgage or other lien with which she would compete
is not one validly created without her agency (as it may be in
some states under certain circumstances), but is one which she
helped to put upon the homestead, it would be relieved from
her competition, so far as ciDncerns the equity rule. Neither
she nor her husband, after having waived all homestead right
by virtue of the mortgage given by them, has any sort of incum-
brance which can be set up in competition with the mortgage
lien.^ In the absence of express waiver, it has been allowed the
beneficiaries to have the homestead reserved from sale till
other property was exhausted.'
It is misleading to say unqualifiedly that homestead is an in-
cumbrance upon land, to be marshaled in competition with
the vendor's lien and other liens. An incumbrance upon
what? Upon itself? The vendor's lien is upon the home-
stea;d : can there be a homestead lien upon the homestead ?
Does the owner owe anything to himself, and does he have
the debt secured upon his own property? The contradictory
character of the affirmation is apparent.
It is never allowable to treat homestead as an incumbrance,
unless we have reference to the right of occupancy or usufruct
held by some one who does not hold the title — some such
right resting on the fee of the land. With reference to such
rights, it may be said that one who buys land at a judicial
sale, " subject to homestead," takes it subject thereto as an in-
cumbrance.*
It is frequently said that the right of the debtor to a home-
stead is superior to that of his creditor to have his debt paid
by sale of the land." These two rights cannot properly be
brought into competition. The debtor, owning his homestead,
has a right to it ; the creditor, having a lien, has a right in it.
1 See. McLaughlin v. Hart, 46 Cal. See Knight v. Leak, 2 Dev. & Bat
639 ; Hanson v. Edgar, 34 Wis. 653. 133 ; Sheppard v. Simpson, 1 Dev.
2 Searle v. Chapman, 131 Mass. 19. 344 ; Jackson v. Jackson, 13 Ired. 159 ;
SBrownv. Cozard, 68111. 178; Mc- Hodge v. Houston, 13 Ired. 108;
Arthur v. Martin, 33 Minn. 80. Clarke v. Trawick, 56 Ga. 359.
< Wyche v. Wyche, 85 N. C. 96 ; » Pope v. Hairip, 94 N. C. 62 ; But-
Barrett v. Richardson, 76 N. C. 439. ler v. Stainback, 87 N. C. 216.
726 PLEADING AND PEAOTICB.
There is confusion when we attempt to marshal a jus in re
with a jus ad rem. One who has the right to a thing may
have that thing incumbered by a right in it held by another.
Many rights in it may be held by many other persons, and
there may be differences of rank in these rights; but the
ovTnership of the property on which all these incumbrances
rest does not have his right to it marshaled with the rest.
We cannot consistently say that the right of exemption is
higher or lower than the vendor's lien. It is not a lien. It is
not a privilege in the ordinary sense. True, courts often
speak of it as a lien ' or privilege. It is a privilege, certainly,
to be allowed to hold property free from liability to execution,
but not such a privilege as may be marshaled with " liens and
privileges " within the meaning in law when these are thus
yoked together, as commonly found.
The incumbrance is relative. Among heirs,- adults may have
their interest incumbered (in a sense) by the minors' quasi-
estate in the homestead during minority ; but the latter, hav-
ing equal rights in the fee, cannot be said to have their own
interests incumbered by their own present right of occupancy.
So, a purchaser of the homestead fee may find tho right of oc-
cupancy to be an incumbrance, as to himself; but the occupant
is not like a mortgagee so as to be considered the holder of an
incumbrance.
It is not strictly correct, therefore, to say that one entitled
to exemption may lose his ranh and privilege by his own
laches? He may forfeit his exemption right bj' laches, but it
is not a matter of rank between liens and privileges. It is
quite common, however, to find homestead classed among in-
cumbrances, in decisions; and if it is convenient and helpful
to do so, the practice will be continued ; but the evident dif-
ference between this, and other incumbrances should be kept
in view.
§ 13. Statutory Rule as to Order of Sale.
The statutes, much alike in several states, on the subject of
rendering liable homestead property the last exhaustable, may
be illustrated by one. This statutory rule is expressed in the
1 Alexander v. Jackson, 93 Cal. 514. 2 Lawler v. Yeatman, 37 Tex. 669 ;
Eogers v. Green, 35 Tex. 735.
STAT0TOET ETJLE AS TO OEDEE OF SALE. 727
(
provision that the homestead shall not be sold " except to sup-
ply the deficiency remaining after exhausting the other prop-
erty of the debtor liable to execution." '
If, upon exposure of the other property to sale, there be no
bids, that is " exhausting " so as to justify offering the home-
stead with it.^ If, contrary to the inhibition, the homestead
be prematurely sold, the sale may be set aside till all the other
liable property shall have been exhausted; and then a resale
may be directed by the court, if still found necessary.' Sale
is void while there is valid homestead occupancy.* But there
is not valid homestead occupancy, if upon a lawful lien there
has been a lawful levy and sale. T£e' claimant must show that
his right existed when the decree against him was made.'
There is no presumption of the existence of any other prop^
erty. He who complains that it was not first exhausted must
first allege and prove that such property exists.* On such
showing before sale, there will be special direction given by
the court in the execution that the " other property " be first
' offered for sale.' But if the defendant does not ■ allege and
prove the existence of such property, or point it out to the
officer, but stands by and sees the homestead sold without
interfering or objecting, he has waived his rights.'
One who has prosecuted his privileged claim to judgment
may stand back and see all the other property but the home-
stead exhausted by other creditors, and be guilty of no laches
and lose no right against the homestead on -which his lien
rests.'
• In a suit of the nature of a creditor's bill to satisfy a judg-
ment on a homestead worth more than the maximum, a decree
i-McClain's Iowa , Code, § 3167 v, Croes, 10 111. 443 ; Mitchell v. Hay,
(1993) ; Code of 1873, § 1993 ; Lambert 37 Ga. 581 ; Tucker v. Kenniston, 47
V. Powers, 86 la. 18 ; Foley v. Cooper, N. H. 367.
43 la 376. ' ■• Green v. Marks, 25 111. 304.
2 Burmeister v. Dewey, 37 la. 468 ; » Eeinback v. Walter, 27 111. 393 ;
Eggers f. Redwood, 50 la. 289 ; Brum- Pratt v. Delevan, 17 la. 307.
bangh v. Shoemaker, 51 la 148. Sale ^ Stevens, v., , Myers, 11 la. 183 ;
below value. See Sigerson v. Siger- Owens v. Hart, 68 la 620.
son, 71 la. 476. ■ , Barker v. Rollins, 30 la. 412.
3 Lay V. Gibbons, 14 la. 377 ; Brad- 8 Foley v. Cooper, 43 la. 376. See
ford. V. Limpus, 13 la. 424; Bur- KlcCleary v. Ellis, 54 la. 811.
meister v. Dewey, 271a. 468; Stewart ^Denegre v. Haun, 14 la. 240.
728 PLEADING AND PEACTICE.
applying the excess was sustained.' Liens, which had attached
before the rendition of the judgment, were accorded the higher
rank, as a matter of course.
To prevent the sale of a homestead under execution when
it is ultimately liable, there must be a schedule, showing what
other property the defendant has which is liable to forced
sale, when the statute exacts it, as in some states it does.^
Without such disclosure, he cannot have a supersedeas to stay
the sale. Failure to disclose is not necessarily -a forfeiture of
the homestead right ; but, after sale and delivery, he would
recover only by bringing ^n action for possession. If he per-
mits his homestead to be sold, by failing to file the required
schedule, he imperils his homestead right and "takes the
chances of defeat " upon the issue made by him thereafter.'
If he claims after levy and before sale, and notice is given to
the executive officer, the sale must be subject to his claim.*
Where homestead property is liable for purchase-money
only after all other property of the debtor has been exhausted,
it is held that a judgment on a claim for such money should be
a personal one against the debtor without any special lien
against the homestead.* The general lien created by the judg-
ment would cover the homestead, however, with all the other
property of the debtor. The judgment, however, should not
be merely personal, if the claim for purchase-money was not
merely personal but was secured by the vendor's lien or by a
conventional lien.
It has been held that, after a homestead has been sold under
execution in a suit at law, and the owner has moved to set the
sale aside on the ground that the property was exempt, it can-
not be shown by the adverse party that the judgment was for
purchase-money; for the plaintiff should have proceeded in
equity.' This seems to be altogether too nice. The motion
having been made, it was certainly competent for the adverse
property to deny its ground, that the sold property was ex-
1 Tingley v. Gregory (Neb.), 46 < Blivens v. Johnson, 40 Ga. 297.
N. W. 419. SGreeno v. Barnard, 18 Kas. 518,
2 Ark. Act of March 18, 1887 ; Mansf. distinguishing Pratt v. Topeka Bank,
Dig., § 3006. " 12 Kas. 570.
8 Brown v. Peters, 53 Ark. 183 ; « Tunstall v. Jones, 25 Ark. 372.
Chambers v. Perry, 47 Ark. 400.
CLAIMING BEFORE EXECUTION SALE. T29
empt, and the defense — that the sale was under a judgment
for purchase-money — was equivalent to the answer that the
property was not exempt as to that debt. And it was a good
answer in a suit at law — it may be thought, bygone who has
studied the case less than the court did. The proper and usual
method of enforcing the lien for purchase-money is by a pro-
ceeding in equity,' though it is not invariably adopted.^ The
vendor may choose to sue at law and take his chances of mak-
ing his money out of any liable property of his debtor. But
his safer course is to enforce his lien directly upon the indebted
property,'' unless his state statute makes provision for a suit
at law with a saving of his lien right.* The homestead is liable,
under the vendor's lien for purchase-money, so long as any
portion of the debt remains unpaid.^
§ 14. Claiming Before Execution Sale.
Whether the judgment debtor must claim his homestead of
the officer in charge of an execution, before sale, to save his
right from being considered as waived or lost by his laches, is
a question that has been answered by the courts of some states
in. the affirmative, and of others in the negative. The affirma-
tive answer is based on the general rule that one must assert
his right, however absolute, when it is attacked ; that any
right of property may be waived, even passively'; that, at
least, the officer is not bound to set off homestead when it has
not been claimed.^ The negative answers are based on the
1 Williams V. Young, 17 Cal. 403; (Ga.), 13 S. E. 123) ; Taffts v. Man'ove,
Pinchain v. Collard, 13 Tex. 383. 14 Cal. 47 ; Kelly v. Dill, 33 Minn. 435 ;
SDurham V. Bostick, 72 N. C. 357; Sullivan v. Lafayette County, 61
McAlpin V. Burnett, 19 Tex. 497 ; Miss. 271 ; Perkins v. Bragg, 29 Ind.
Chambliss v. Phelps, 39 Ga. 386. 507 ; State v. Manly, 15 Ind. 8 ; Nash
SLawler v. Yeatraan, 87 Tex. 669; v. Farrington, 4 Allen, 157; Cplson v.
Rogers v. Green, 35 Tex. 735. Wilson, 58 Me. 416 ; Smith v. Chad-
*Redfield v. Hart, 12 la. 355. wick, 51 Me. 515; Behymer v. Cook,
SBushv. Scott. 76 111. 525; Harris 5 Colo. 895; Caldwell v. Truesdale
V. Glenn, 56 Ga. 94 ; Cook v. Crocker, (Ky.), 13 S. W. 101 ; Kirk v. Cassady
53 Ga. 66. (Ky.). 12 S. W. 1039 ; Choice v. Charles.
6 Brumbaugh v. Zollinger, 59 la. 7 S. C. 171 ; Ryan v. Pettigrew, 7 S. C.
384 ; Herschf eldt v. George, 6 Mich. 146 ; Norris v. Kidd, 28 Ark. 485 (under
468; Melton v. Andrews, 45 Ala. 454; Const, of 1868); Chambers v. Perry,
Bell V.Davis, 42 Ala. 460; Crow v. 47 Ark. 400 (under Const, of 1874);
Whitworth. 20 Ga. 38 (see Ragland Currier v. Sutherland, 54 N. H. 475 ;
V. Moore, 51 Ga. 476; Burns v. Lewis Lidd v. Quinn, 52 N. H. 344; Barney
730
PLEADING AND PEACTICE.
absolute character of the right.' There is a middle ground :
a sale of a homestead made in the absence of a claim, when
void as to the quantity and value exempt, may be good as to
any excess.^ A bid for the whole, however, could not be col-
lected of the bidder who gets only a part. The sale would be
voidable at his instance, but not on the motion of the home-
stead beneficiary as judgment debtor, or on that of the judg-
ment creditor. In other words, where failure of the benefici-
ary to claim before sale is not waiver, there is no impediment
thrown in the way of the sale of the excess by the homestead
law.
If an Indivisible homestead be sold, the proceeds may be ad-
justed between the creditor and the beneficiary.'
■V. Leeds, 51 N. H. 253 ; Barney v.
Keniston, 58 N. H. 168; Buzzell v.
Hardy, 58 N. H. 331; Butt v. Green,
39 O. St. 667 {compare Sears v.
Hanks, 14 O. St. 398) ; Frost v. Shaw,
3 O. St. 370 ; Kahoon v. Krumpus, 13
Neb. 321; Spitley v. Frost (Neb.), 15
Fed. 399; Willistoa v. Schmidt, 28
La. Ann. 416 ; Kuntz v. Baehr, 28 La.
Ann. 90; Miller v. Sherry, 3 Wall.
337; Black v. Curran, 14 Wall. 463
(criticised in Hartwell v. McDoiiald,
69 111. 293). In Illinois, where the
rule is that the homestead-holder
forfeits nothing by not claiming of
the officer before sale, it was yet held
-that a widow who does not claim
but allows the estate to be partitioned
and sold, thus loses her right Wright
V. Dunning, 46 111. 371. In Alabama,
the homestead character attaches
only during the life of the owner
who leaves neither widow nor chil-
dren. Code, § 2507. When his claim
of homestead has been riglitly made,
an execution creates no lien on the
homestead property — life-estate or
remainder — and the owner may sell
the fee. Caldwell v. PoUak, 91 Ala.
353.
1 Snider v. Martin, 55 Ark. 139 ; 17
, S. W. 713 ; Robinson v. Swearingin
(Ark.), 17 S. W. 365 ; Hughes v. Watt,
36 Ark. 238 (see Chambers v. Perry,
47 Ark. 400); Goldman v. Clark, 1
Nev. 516; Helfenstein v. Cave, 3 la.
287; Bay v. Yarnell, 118 Ind. 112;
Vogler y. Montgomery, 54 Mo. 584
(see Shindler v. Glvens, 63 Mo. 394);
Smith V. Rumsey^ 33 Mich. 184;
Beecher v. Baldy, 7 Mich. 488 ; Willis
V. Matthews, 46 Tex. 483 ; Seligson v.
Collins, 64 Tex. 314 ; Pierson v. Truax,
15 Colo. 223 ; 25 Pac. 183 ; Pardee v.
Llndley, 31 111. 187 ; Hoskins v. Litch-
field, 31 111. 137 ; Moore v. Titman, 83
111. 368 ; Conklin v. Foster, 57 111. 104;
Newman v. Willitts, 78 111. 397 ; Bar-
rett V. Wilson, 103 111. 302 ; Nichols v.
Spremont, 111 111. 631 ; Moriarty v.
Gait, 113 111. 373; Mitchell v. Sawyer,
115 111. 650; Burns V. Lewis (Ga.), 13
S. E. 133 ; Lessley v. Phipps, 49 Miss.
790 ; Trotter v. Dobbs, 38 Miss. 198
Lambert v. Kinneiy, 74 N. C. 350
Abbott V. Cromartie, 72 N. C. 393
Vannoy v. Hagmore,i71 N. C. 138
Taylor v. Ehyne, 65 N. C. 531 ; Lute
V. Reilly, 65 N. C. 20.
2Leupold V. Krause, 95 111. 440;
Stevens v. Hollingsworth, 74111. 203;
Loomis v. Gerson, 62 111. 11.
3 Wood v. Wheeler, 7 Tex. 13;
North V. Shearn, 15 Tex. 174. Com-
pare Paschal v. Cushman, 36 Tex. 75.
CLAIMING BEFOEE EXECUTION SALE. 731
There is universally applicable reason for treating the sale
of the homestead, in executioE of an ordinary judgment under
which it is not liable, as void when the officer has given the
judgment debtor no opportunity of claiming, and when the
latter could not assert his right for any cause. Ordinarily, he
is presumed to know of the levy, to read the advertisement,
to have notice ; but, when it is the duty of the officer either
to set off homestead before sale or to give special notice to the
judgment debtor that he may take the necessary steps if he
desires to withhold his homestead from his creditors, such pre-
sumption would not prejudice him. He may be really in ig-
norance of what is going on, because of his absence, sickness,
deception practiced upon him, or any one of a hundred con-
catenations of circumstances difficult to preconceive.
The officer knows that what he sells is homestead. He
knoR's the records — the registered declaration — the inscrip-
tion of Homestead in the margin of the defendant's recorded
title — whatever the law requires to be done and has been
done, he knows;' that is, he is presumed to know. If no
homestead has been dedicated, platted, recorded or in any-
wise specially designated by the beneficiary, still the officer is
presumed to know the law which gives the defendant the
right of homestead in some of his realty; and in the very
piece which he is about to sell if that is all the debtor has. It
may be larger than what the law exempts, or the debtor may
have more than one piece : yet the officer knows that there is
a legal right of homestead wrapped up in the debtor's real
property. There is nothing to relieve the presumption of
knowledge in his case. If the statute imposes upon him the
duty of giving the debtor special notice of the levy, and of the
proposed sale of the homestead ; or if it requires him to cause
homestead to be set off before sale, he cannot disregard it with
impunity and save the sale from nullity and himself from lia-
bility to damages.
On the other hand, there is such a thing as a debtor desirous
of paying his debts, and willing that his home should go for
the purpose. May he not waive his right to claim exemption?
May he not waive his absolute right? If the statute, provid-
ing for his notification, imposes upon him the task of looking
J Eay V. Yarnell, 118 Ind. 113.
732 PLEADING AND PRACTICE.
after his right, and does not strike with nullity a homestead
sale when unclaimed, shall we say that the purchaser of an
unclaimed homestead gets no title?
The judgment for ordinary debt contracted after notice
bears no lien upon the homestead ; it creates a general lien
upon all the defendant's property except the exempt portion;
its general lien becomes special upon a particular piece of
liable propertj?^ by levy upon it. The question is whether
such judgment and such levy may affect a homestead if the
owner consents. There seems no reason to the contrary, if
he is an unmarried owner, and if the policy of the law to con-
serve family homes is not disregarded. If he has a wife, or a
wife and children, in the enjoyment of the home, there may
be good reason for keeping a shelter over his and their heads
despite himself. While the law favors the payment of debts
as much as the saving of homes, there is a difference between
statutes of different states as to whether the judgment debtor
may successfully waive not only his own rights but those of
his family. A universally applicable rule, therefore, cannot
be laid down. It cannot be doubted, however, that the judg^
ment debtor and his wife, representing their children if they
have any, may notify the officer of their relinquishment of
the homestead right, however absolute it may be ; and that
the policy of the state would have it yield to such relinquish-
ment, since it allows the beneficiaries to abandon ; and that
thereafter the officer may go on and sell and give good title
to the purchaser.
When homestead has. not been -previously declared, dedi-
cated and recorded; and when the occupied home property
e2f:ceeds the statutory limitation and is yet indivisible ; and
when a certain sum is exempt to the debtor, — the rules are
somewhat different from those governing previously estab-
lished homesteads. The claim of a sum from the proceeds
may be made after sale.
If application has been made for the setting off of a home-
stead, and notice given to the officer before sale, the purchaser
takes subject to the homestead.' The sheriff must give no-
tice— written notice is required by some statutes — to the
1 Kilgore v. Beck, 40 Ga. 296. See, as to allotment by the court, In re
Schmidt's Estate (Ca!.), 39 Pac. 714
THE PEEFKEABLE PEACTICE AS TO CLAIMING. Y33
plaintiff or his attorney that'homestead has been claimed by
the defendant. If he fails to do so, and the plaintiff becomes
the purchaser, the sale may be set aside on motion.' Even
the private purchaser of homestead property which was after-
wards sold by the sheriff under execution against the vendor,
who attorned to the successful bidder at the sheriff's sale and
thus recognized that sale, was held to be not estopped from
bringing an action to set the sheriff's sale aside.^
§ 15. The Preferable Practice as to Claiming.
What is the proper practice as to claiming? Whether the
exemption is, absolute or not; whether the courts in any state
hold claiming before sale essential or not, the better rule may
be expressed in a monosyllable : Claim. To follow this rule is
to do no harm even when claiming is not necessary to avoid the
presmnption of waiver. Its positive good lies in the preven-
tion of future litigation. No true lawyer will seek unnecfes-
sarily to precipitate his client into the vortex of a law-suit.
How much better to obey the simple rule than await the pur-
chaser's suit of ejectment and be obliged to defend ! How
much better than to resort to an injunction to prevent the
sale, if mere claiming will suffice !
Where non-claiming (after the levy has been made which
brings home to the debtor knowledge that his exempt prop-
erty is imperiled) is deemed waiver, no argument is necessary
to show the importance of the rule: Claim. So, whatever
the effect of claiming upon the validity of the sale, it is al-
ways better to take the simpler course.
Where the exemptionist is not affected by the sale, but may
prosecute his right after his home has gone into the hands of
a purchaser, how long may he wait? May he lie still for
years, till the purchaser has improved it, enhanced its value,
paid the taxes, and expended, upon it much of his time and
money? May the exemptionist then come in and claim it all,
under the theory that the purchaser bought under notice —
not special — but that general notice which the statute and
the householder's occupancy gave him?
A statute, providing that the right of exemption shall not
1 Allen V. Towns, 90 Ala. 479; Ala. 2Beckmann v. Meyer, 75 Mo. 333.
Code, § 2531. For allotment to debtor, see ch. 23.
734
PLEADING AND PEACTICE.
be lost by omitting to select and claim homestead before the
sale of the debtor's property under execution, was so con-
strued, in a case involving it, as to leave the purchaser in a
quandary for an indefinite time, not knowing whether the de-
fendant would claim or waive; and, because of this very un-
certainty — ■ the possibility of this eventual waiver — the
purchaser was held to have bought something which was the
object of the price paid, so long as the debtor should stand
silent.' He was held to have obtained, by his purchase at the
1 Snider v. Martin, 55 Ark. 139 ; 17
S. W. 713. Hemingway, J. : "Under
the constitution of 1868, it was held
that the right of a debtor to hold a
homestead exempt from sale under
execution was a personal privilege
which the debtor might waive, and
that he would be held to have waived
it by failure to claim it in the man-
ner provided by law before sale
under execution. Norris v. Kidd, 28
Ark. 485. It has been held that the
same rule obtained under the consti-
tution of 1874. Chambers v. Periy,
47 Ark. 400 ; 1 S. W. Rep. 700. The
act of March 18, 1887, does not en-
large or in any manner change the
character of the right ; but, leaving
the right as it had previously existed,
this act provides that the right shall
not be lost or forfeited by the debtor's
omission to select and claim his
homestead before sale under execu-
tion, nor by his failure to file a de-
scription or schedule of the same in
the office of the recorder, and, by the
terms of a proviso, cases coming
within its provisions are left subject
to prior laws in all respects. ' The ex-
tent of the change thus made is that
a debtor shall not be considered to
have waived his right to exemptions,
in cases not within the proviso, by
his failure to select and claim them
before sale. It does not provide that
the right shall not be a privilege, or
that it may not be waived by the
debtor. To this extent the rule as
formerly announced is maintained.
If this case comes within the pro-
viso, the sale under execution car-
ried the defendant's title, he having
omitted to select and claim it before
sale, and the purchaser would be
bound upon his note for the pur-
chase-money. But it is insisted that
this case comes within the rule, and
not within the exception, and that
the debtor was not prejudiced by
omitting to select and claim his
homestead before sale; that, the
homestead being exempt from sale,
nothing passed to the purchaser;
and that the note for the purchase-
money was therefore without con-
sideration and void. If the premises
are true, the conclusion is correct,
and the question is, are they true?
Herm. Ex'ns, pp. 330, 321, 424, note
4; Freem. Ex'ns, § 318. Is it a fact
that, if the homestead right was
not forfeited by sale under execu-
tion, nothing passed by the sale?
We think not Before the act of
1887 the right was a privilege, and it
is still a privilege. It could then b6
waived and it may yet be waived.
As against all the world except the
debtor and his wife, the sale is valid,
and it is valid against them, unless
they or one of them elect to defeat
it. If they neglect or refrain from
asserting such right, the debtor's
title vests in the purchaser. It can-
not be said, therefore, that nothing
passes. It is more nearly correct to
THE PEEFEEABLE PEAOTICE AS TO CLAIMING-. 735
sheriff's sale, a defeasible estate which was a legal equivalent
for the price bidden — a sufficient consideration for the note
given for the purchase-money. He was held bound by his
bid, and 'Unable to resist the payment of his note on the ground
that he had not obtained what he had bought or meant to
buy. Yet, on the other hand, the judgment-debtor had it left
in his power to claim and take back the homestead at any
time, according to this decision, i In case the debtor, at any
future time, should take the property from the purchaser
(who paid for it and got qxdd pro quo in the shape of the de-
feasible title), the court queried, or rather expressly withheld
opinion, whether the purchaser would be entitled to any re-
lief.
Whence could relief come? The judicial sale was not pro-
voked by an owner, but by a creditor. The creditor is not
presumed to know the title of his debtor, but the owner does
know his own title ; he does know whether he has what he
sells, whether he sells privately or through a court.
In the case above mentioned, the judgment creditor did not
warrant the title to the homestead : so the purchaser can cer-
tainly get no relief from him. The maxim, caveat em,ptor, is
clearly applicable. The purchaser can get no relief from the
judgment debtor, ior he did not buy of him or pay him any
money. Though he paid his debt, it was not done at the
debtor's request. There seems to be no conceivable way in
which the purchaser can find legal relief, if the now-sleeping
exemptionist should ever awake and divest him. What bet-
ter illustration of the pernicious eflfect of the doctrine that
the debtor need not claim when his property is levied upon,
can be imagined ! Courts must follow statutes, and the gov-
say that the purchaser takes a de- pay his bid. Until the purchase has
feasible "estate, and it is sufiScient to been defeated by an assertion of
constitute a valuable consideration, homestead rights, it is too early to
Whether the debtor will claim his consider the relief to which the pur-
exemption in this case is uncertain, chaser may ' then be entitled, or
He may choose to have his estate whether he will be entitled to any.
applied to the payment of his debts For the reason above indicated, the
rather than enjoy the benefit of his finding was contrary to the evidence,
exemptions. If he should do so, the and the judgment must be reversed
purchaser would acquire all that he and the cause remanded."
expected, and should be required to
736 PLEADING AND PEACTICE.
erninglaw in this case may justify the deliverance; but there
ought to be some time fixed beyond which claim cannot be
made.
Though the purchaser may have no relief at law, in the
case above presented, since the rendition of the decision against
him, yet may he not find it in equity? The debtor had his
debt paid with the purchaser's money; and, though not paid
at his request so as to give ground for legal relief, it seems
unconscionable that he should be allowed to divest the pur-
chaser of the property without reimbursing him. Sheer jus-
tice requires that the debtor should not be profited at the ex-
pense of the purchaser, when, by his own passivity at the time
of the levy and sale, he caused the present state of things.
There is no disposition to submit argument after judgment,
or to criticise the opinion in the case last cited, so far as con-
cerns the state in which it was delivered ; but as like cases
may arise in other states under similar statutes where this de-
cision is not authoritative — only influential so far as its rea-
soning is sound — a word further may not be amiss.
What title did the purchaser get ? "Was he a mere tenant-
at-will? Was he even that? A tenant-at-will is "one who
holds lands as tenant at the will of the lessor." ' The tenancy
may be terminated at the option of either the lessor or lessee.^
The tenant-at-will has " nothing that he can assign." ' He
has nothing that can be called propertj'^ when his hold upon
it is not for a day ot for a moment, if some one else may ter-
minate his possession at pleasure. In the case of lessor and
lessee, the tenant-at-will has some protection against sudden
divestment to his prejudice; as, when he has planted a crop,
he may retain the land till he gathers it or recover for being
summarily ousted before. But in the case under considera-
tion the purchaser was declared to hold subject momentarily
to defeasance. There was no mutuality of will, but the ter-
mination of the tenancy was within the sole behest of the
judgment debtor. The purchaser had no life estate, no estate
for years, no estate for an hour : he was an occupant by suf-
1 Anderson's Law Diet, p. 1018, Bl. Com. 14.5-7; 4 Kent's Com.
verbo " Tenant at Will." 111-116.
2 Davis V. Murphy, 126 Mass. 145; '16.
Johnson v. Johnson, 13 E. I. 468; 2
THE PEBIfEEABLE PEACTICE AS TO CLAIMING. 737
ferance. The only estate he had was an estate-at-sufferance ;
a holding by toleration, allowance or " negative permission "
of another. His position was like that of "a tenant for
years whose term has expired ; " a mortgagor " in possession
after foreclosure ; " a grantor, bound to deliver at a stated
time, who "holds over without authority from the grantee;"
a tenant, "for the life of another, after the death of that
other." •
The purchaser held by the sufferance of the judgment
debtor, but under such color of title that he might acquire ,
ultimately by prescription, if the ' debtor should forbear to
claim long enough. Ought he not have been allowed to
defend at law against a suit on this note for the purchase-
money, by pleading want of consideration? If he had bought
at a judicial sale provoked by the owner ; at a sale, for in-
stance, under an order of court at the instance of partners to
effect a partition ; or at a sale made by a government, through
the -agency of a court, to dispose, at auction, of property
which it owned, there would seem to be no reason why he
might not plead want of consideration for a purchase-money
note, if he did not get what he had promised to pay for. Of
the selling owner, he may get back the paid price.^ There is
a marked difference where a creditor has his debtor's property
sold in execution of a judgment, since corneal emptor then
applies : so the purchaser could not recover of the creditor
the price already paid. But if it had not been paid, it would
seem that the purchaser may resist the suit of the sheriff for
the unpaid purchase-money, if he has given his note therefor
without consideration.
A purchaser, sued by persons claiming that the/ land pur-
chased was their homestead, prov6d that he had paid for the
land at a judicial sale, and prayed that if the plaintiffs should
be adjudged the owners of it, he be accorded judgment for re-
covery of the price he had paid. The court refused to charge
' Anderson's Law Diet, p. 988, & Gar., pp. 535-544, where distinction
verbo, " Estate at Sufferance," citing is drawn between judicial sales pro-
2 Bl. Com. 150 ; Cook v. Norton, 48 voked by owners and such sales pro-
Ill. 26 ; Anderson v. Brewster, 44 O. voked by creditors, as to the recovery
St. 580, and other cases. of the purchase price paid without
2 See authorities in Waples on Att consideration.
47
738 PLEADING AND PEACTIOE.
the jury to this effect. On appeal, the refusal was declared
to be error, and the judgment against the purchaser was re-
versed.'
A purchaser, who was also the plaintiff in the suit v/hence
the execution was issued, sought to set the sale aside by bill
in equity, because of the defendant's unsalable homestead
right. The bill was dismissed upon the defendant's disclaimer
of such right.^
§ 16. Execution as to Occupancy.
Execution cannot be effected to the destruction of the fam-i
ily home and the defeat of the policy of the law to conserve
it. Though there be no title left in the family head but a
right to possess during the' exemption period, he is protected
from eviction^ In some states the fee may be subjected to
forced sale with his home right resei'ved ; in others, it cannot
while that right endures. He, with his wife's consent and
joinder when that is required, or he alone when it is not re-
quired or when he is unmarried, may dispose of all his exempt
realty except his right of occupancy during the exempt pe^
riod, and yet be protected in what he retains. While th^law
would protect the fee, it will protect less — since it is not con.
cerned about the title so- long as possession is retained. So
it has been held that upon execution of the family residence,
before there has been application for homestead, the purchaser
gets the fee, but not the possession before the termination of
the homestead privilege of the occupants subsequently allowed.'
Judgment having been rendered against a homestead-holder,
he donated his homestead, retained possession, and success-
fully resisted the execution. The appellate court, passing upon
his right, held that he need not have any present interest or
estate in the land beyond what is implied by possession, " to sus-
tain the claim of exemption as against a debt or lien inferior to
the exemption right." This was thus expressed in the syllabus
of the decision, prepared by the court. The chief justice said,
for the court, that the homestead claimant, who had donated
his homestead, " retained the very thing which the law of ex-
emption is -solicitous to protect. It cares not how little in-
1 Cline V. Upton, 59 Tex. 27. ' » Grace v. Kezar, 86 Ga. 697.
2 Mead v. Finley, 47 111. 406.
EXEO0TION AS TO OCCBPANOY. Y39
terest tlie debtor may have, so long as he remains in its actual
enjoyment. The exempt land is * for the use and benefit of
the family of the debtor ; ' so says the code. The exemption
does not depend on the quality or duration of the efetate
which the debtor has in the land. A tenancy at will or at
sufferance will protect it from levy and sale as his property,
equally with an estate in fee-simple. The exemption attaches
to the land, not merely to his estate in it. Our exemption
laws do not cut up exempt property into divers estates, but
protect the physical thing as a whole from levy and sale, so
long as the exemption continues." '
The title of land is not involved in a question of the land's
exemption as a homestead from levy and sale.^ But it has
been held, under circumstances stated in the case, that a levy
may be upon the husband's separate interest.' Judgment
having been obtained jointly against a husband and wife, ex-
ecution was directed against eighty acres belonging to her.
She lived with her husband on his adjoining eighty. Both
tracts together did not exceed either the quantitative or mone-
tary limitation. Her tract was cultivated as a part of the
home farm. The court held that the execution could not be
consummated, because it did not matter to which spouse the
title belonged. Either might own half the homestead. " If
the title to both tracts of land had been in the husband or
wife singly, the exemption would have been recognized ; and
it cannot be that the fact that each owned part of the land
affects prejudicially their, claim to exemption," *
After a decree in an action of ejectment,. that the fee was
in the plaintiif subject to the right of homestead in the de-
fendant till her youngest child should reach majority, the de-
fendant was not precluded by it from claiming her homestead
in a second action brought to eject her after the child became
of age. The reason is that so much of the decree as went to
fix the duration of her homestead right was a nullity.' The
' 1 Pendleton v. Hooper, 87 Ga. 108 ; citing Partee v. Stewart, 50 Miss. 717 ;
13 S. E. 313 ; citing Vanhorn v. Mc- Lowell v. Shannon, 60 la, 713 ; Crane
Neill, 79 Ga. 133. v. Waggoner, 38 Ind. 83 ; Orr v.
2 Moore v. O'Barr, 87 Ga. 305 ; 13 S. Shraft, 32 Jlioh. 360 ; Stout v. Rapp,
E. 464. 17 Neb. 462.
3 Vining v. Officers, 86 Ga. 138. SYeates v. Briggs, 95 111. 79,
* Powers V. Sample (Miss.), 11 So. — ;
740 PLEADING AND PEAOTICE.
decree properly passed upon the fee, and properly held it sub-
ject to the homestead right ; but there was no issue as to the
time when that right should be terminated. The statute
fixed the duration. The children's right ended with their
minority, but the widow's right was not wholly dependent on
theirs — she had an independent right of homestead.
Land, including homestead, was sold under execution to
pay a debt not privileged against the homestead. Subse-
quently, the debtor and his wife conveyed it; and their pur-
chaser sought, by bill in equity, to remove the cloud cast
upon his title by the execution sale. He failed to have that
sale annulled — the court holding it good except as to the
debtor's homestead interest, limited to a thousand dollars by
statute. By paying that sum, the purchaser at the execu-
tion sale could hold the land.^
"When the sheriff's deed is a cloud upon the homestead title,
the remedy to remove it is a bill in equity.''
A purchaser at execution sale was denied relief by injunc-
tion to prevent a judgment debtor from claiming homestead
in the land he had purchased. The ground of the denial was
that he had no greater rights than the judgment creditor,
and might have opposed the homestead claim before the or-
dinary (probate judge), and could have appealed from his
decree.' He had bidden off the property before the court had
assigned the homestead ; and the decision was as to his rem-
edy. As he might have made himself a party before the pro-
bate court and .opposed the debtor's claim, yet did not avail
himself of the right, he was denied the equitable remedy of
injunction.
When the execution is after the debtor has preferred his
claim, and the statute allows the sale of the property to pay
the judgment creditor but reserves the right of occupancy to
the debtor, the writ and the sheriff's advertisement should^
show just what title is to be sold. The purchaser is thus in-
formed that the debtor claims : so he gets title subject to the
homestead occupancy of the debtor. His title will hold good,
but his right to possession will be postponed till the expira-
tion of the homestead right, if the debtor's petition to have
1 Loomis V. Gerson, 63 111. 11. 3 Zorn v. Walker, 43 Ga. 418.
2Defieeliz v. Pico, 46 CaL 389;
Kendall v. Clark, 10 OaL 17.
PLEADING m Afl?TACHMENT SUITS. 741 ■
that right accorded be allowed by the court.' If, however,
the debtor is not in actual occupancy but has let out his home
to a tenant, he cannot treat a levy upon it as void on the
ground that he intended to re-occupy at some time in the fut-
ure.^ Even when occupancy is not a condition in the case of
a widow who has derived a homestead from her deceased
husband, so far as exemption from his debts are concerned, it
has been held that her actual occupancy is essential to save it
from execution for her own debts.' Actual occupancy, as to
portions of the premises claimed as exempt, may be inferred
when they are nbt put to any foreign use and when they form
part of what is really in use as a homestead ; and thus they
may be free from liability to execution.* But if land is put
to other use, such as the continuous renting of it to a tenant,
it will not be saved to the owner, from execution, though he
may live upon it and thus protect his dwelling.'
In some states, after occupancy as a condition to the acqui-
sition of homestead has been observed, there is no abandon-
ment recognized except by the grant of the premises or a
declaration of abandonment duly executed and filed. Any
conveyance by quitclaim or other form of title is abandon-
ment.* In such case, when execution is pending, constructive
occupancy may be sufiicient to save the homestead — the ques-
tion being not whether there is actual occupancy but whether
there has been an abandonment of the homestead.'
§ 17. Pleading in Attachment Suits.
A homestead was attached. The owner should have set up
his exemption in defense of the attachment suit; "it would,
• Jackson v. Du Bose, 87 Ga. 761 ; Code of Civ. Proc, § 1243 ; Sansom
13 S. E. 916; Grace v. Kezar, 86 Ga. v. Harrell, 55 Ark. 573.
697. See Moore v. O'Barr, 87 Ga. 206. ' In Texas, if there is not actual oc-
2 Evans v. Caiman (Mich.), 52 N. W. cupancy where execution is levied,
787 ; Hill v. Hill's Estate (Tex,), 19 S. the property is considered as aban-
W. 1016. doned, though formerly a homestead.
3 Gowan v. Fountain (Minn.), 53 N. Wilson y. Swasey (Tex.), 20 S. W. 48.
W. 862. But if the property is then in occu-
< Leavell v. Lapowski (Tex.), 19 S. pancy by the debtor, it is held ex-
W. 1004, concerning a "business empt, though the title was acquired
homestead." after the judgment sued upon had
' McDonald v. Clark (Tex.), 19 S. W. been recorded. Frieberg v. Walzerin
1023. (Tex.), 20 S. W. 60. For abandon-
SFaivre v. Daley, 93 Cal. 664; Cal. ment in general, see oh. 18.
742
PLEADING AND PEACTICE.
without doubt, have been the better practice," the court said,
when passing upon an injunction against sale under the at-
tachment judgment. The ground for the injunction was that
the sale and transfer thereby would becloud the plaintiff's
title. There was record evidence of the exemption ; the dec-
laration had been duly made ; the word HomestSad had been
inscribed in the margin of the plaintiff's recorded title ; the
plaintiff had ownership of the property : all duly alleged in
the plaintiff's petition or affidavit. Taking the allegations as
true, the levy upon the homestead was held wrongful ; the
sale would be a further wrong, and injunction was sustained,
since the plaintiff's allegations were not controverted.'
When a homestead had been sold in an attachment suit, the
defendant and his wife moved to set the sale aside on the ground
that the property was exempt by statute. The motion was
overruled and the sale confirmed. Was the question of home-
stead finally adjudicated by the orders thus overruling and
confirming? Whether it was or not depended upon the fur-
ther question whether the wife should have been made a party
in the attachment proceeding. And this depended upon what
statute governed. It was finally decided that she was not a
necessary party : so the sale was sustained, because governed
by a statute which did not inhibit a sale of the homestead
without the wife's consent, though the present statute does.'
A purchaser, who bought land after it had been attached,
sued out an injunction agajnst the attachment on the ground
that the property was his vendor's homestead when the at-
tachment was laid. But, it appearing upon the trial that the
vendor had previously abandoned his homestead privilege,
and that his purchaser had waived all claims for damages on
account of any liens upon the land, the injunction was denied.'
This case seems to imply that if there had been no abandon-
ment by the vendor and no waiver by the purchaser, the at-
1 Pierson v. Truax, 15 Colo. 323 ; 25 heard. Rulings of inferior courts on
Pac. 183. such questions have been treated as
2 Spitley V. Frost, 15 Fed. (Neb.) final judgments reviewable on writ
299 ; Rector v. Eotton, 3 Neb. 171 ; of error or appeal. lb.; Bowker v. Col-
State Bank v. Carson, 4 Neb. 501. In lins, 4 Neb. 494 ; Eaton v. Ryan, 5
Nebraska, questions of this character Neb. 47.
are disposed of when motions to con- ' Warren v. Peterson (Neb.), 40
firm execution sales by sheriffs are N. W. 703.
PLEADING IN ATTACHMENT SUITS. T43
tachment sale would have been enjoined, notwithstanding the
neglect to plead homestead in defense of the attachment suit,
and the acquiescence of the owner in the ofiicer's seizing and
taking legal possession.
That an abandoned homestead may be attached, and that
sale after attachment does not afifect the lien, no one will ques-
tion ; ^ nor will any dispute the liability before abandonment,
when the suit is upon antecedent or other debts not cut off by
the exemption.^ How is the court to know that there has been
abandonment, or that there is any fact to take the attached
property out of the rule of immunity, unless there be proper
pleading, answer, and evidence?
Abandonment may be effected in different ways ; and often
it is questionable whether an act or omission ought to be ad-
judged to amount to abandonment. If the homestead, or a
part of it, has been long devoted to other than family use, it
may have lost its exempt character, though the owner did not
mean that it should. When a strip of land, crossing a home-
stead, has been used as a public road, and the conduct of the
owner has been such as to induce the public to use it and the
township officers to improve it as a highway, he is estopped
from setting up his homestead right as to the road, though he
has never formally relinquished it.'
"Whenever abandonment is questionable, and the creditor
attaches, there is something for the court to determine upon
issue joined; and it would seem erroneous to assume that
property held as homestead is to be known as such by a sort
of intuition, because the statute makes homestead absolutely
exempt. Whether it is such property as the law makes abso-
lutely exempt is a fact to be judicially determined.
After an attachment judgment, a homestead, which was
the subject of the attachment, and which had not been claimed
as exempt in the proceedings, was successfully Claimed by the
debtor, in a separate action.* It has been held that the house-
holder as defendant is not bound to set up his right of exemp-
iLabaree v. Wood, 54 Vt. 452; aOriswold v. Hufleaker (Kan.), 28
Godair V. Boaidman, 53 Vt 92. P. 696.
2Gilson V. Parkhurst, 53 Vt 384; <Seligson v. CoUina, 64 Tex. 814.
West River Bank v. Gale, 42 Vt. 27.
See Lamb V. Mason, 50 Vt. 345.
744 ' PLEADING AND PEACTICE.
tion, when the plaintiff has made no allegations relative to his
homestead which require an answer.' JSTo reference to par-
ticular property is made in the creditor's petition for the writ
of attachment ; it is the actual attachment of the homestead
under the writ which brings the notice to the householder
that lien-making upon it is being attempted. If his silence
then is acquiescence, it is waiver of the homestead right as to
the attachment. But, as it is not universally held to be
waiver, it seems that there must be other attending circum.
stances to create the presumption of waiver, in several states.
Where, by statute, attaching does not create a lien before
the recording of a judgment sustaining it, property attached
maj' be dedicated as homestead before the recordation of the
judgment, and be thus saved from lien and liability to execu-
tion.^ The doctrine is that the inchoate lien cannot be per-
fected by judgment and recordation, if the property which it
threatens becomes exempt before the recording — since ex-
empt property is not subject to attachment.' The doctrine
has been carried so far \ that even after the lien has been
matured in the regular course of attachment proceeding, upon
liable property, the defendant may dedicate the res as a home-
stead, between judgment and sale, and save it as exempt.'*
While it is true as above stated (and true everywhere), that
the attachment defendant is not bound to plead homestead in
his answer when there is nothing in the plaintiff's allegations
requiring it by way of response ; when, for instance, the suit
is on a promissory note with nothing more than the usual
averments, yet he ought to meet the attachment itself by a
rule to dissolve it. He has perfect ground for the rule when
the res is exempt by statute ; and if he does not mean to waive
his right, or subject it to question of waiver, or expose him-
self to future litigation, he ought to have the attachment dis-
solved so that the inchoate lien may never assume perfect
form. Certainly this would be judicious pleading in every
"Willis V. Matthews, 46 Tex. 483; SAckley v. Chamberlain, 16 Cal.
Tadlook v. Ecoles, 30 Tex. 790. 181 ; Bowman v. Norton. 16 Cal. 330.
2 Wilson V. Madison, 58 Cal. 1 ; Mo- '' Lessley t. Phipps, 49 Miss. 790;
Cracken v. Harris, 54 Cal. 81 ; SuUi- Trotter v. Dobbs, 38 Miss. 198.
van V. Hendrickson, 54 Cal. 358;
Hawthorne v. Smith, 3 Nev. 164.
PLEADING IN ATTACHMENT SUITS. Y45
state, whether suffering the lien to ripen be deemed waiver or
otherwise.
Attachment is not a general proceeding against property, to
conclude all the world ; but it is a limited one having refer-
ence onlj^ to the debtor's property right, to conclude only him
and his privies. So, as the attachment of property not.his
would amount to nothing, so the attachment of his exempt
property would create no lien if he vv^ould show the court its
non-liability. It would be as idle for the creditor to attach
exempt property as to attach that which his debtor does not
own, if he knows that it is exempt and that the debtor will
not waive exemption. Mostly when such property is attached,
the creditor thinks it liable. He believes it not homestead, or
that it has been abandoned as such.'
An answer, in an attachment suit, which sets up homestead
in land attached, must allege its acquisition before the crea-
tion of the debt sued upon, and also family headship and oc-
cupancy when the attachment was laid.^ Failure to set up
homestead in defense of an attachment suit has been held to
preclude the defendant from the right to maintain an action
to have homestead set apart to him, after the confirmation of
the attachment sale.'
A judgment for alimony may be made to bear lien on the
homestead.* But if the custody of the children is given to
the defendant (their father), who continues to occupy the home-
stead with them, attachment of the premises to enforce a
general judgment for alimony has been denied.^ It is better
1 In Arkansas, it has lately been de- had never before been declared in
cided that after a debtor's property the state, but referred to the follow-
has been attached, and the contin- ing cases in which it had been " ad-
gent lien ripened into judgment, the verted to: " Irwin v. Taylor, 48 Ark.
debtor may, at any time before the 226 ; Reynolds v. Tenant, 51 Ark. 87 ;
sale, claim his homestead in it. And Richardson v. Adler, 46 Ark. 43.
this ruling was made in a case in 2 Caldwell v. Truesdale (Ky.), 13
which a debtor claimed homestead^ S. W. 101. See Stewart v. Stisher, 83
in property upon which he had not Ga, 397.
lived for six years, having a home ^ Kirk v. Cassady (Ky.), 13 S. W.
elsewhere, though it was on the 1039.
theory that he meant to go back. * Wilson v. Wilson, 40 la. 330.
Robinson v. Swearmgtn, 55 Ark. 55, ^ Byers v. Byers, 31 la. 268 ; Whit-
17 S. W. 365. The court said such comb v. Whitcomb,53Ia, 715; Stan-
conclusion relative to attachment ley v. Sullivan, 71 Wis. 585.
746
PLEADING AND PRACTICE.
for the defendant to set up his homestead before the decree,
when the plaintiff has prayed for judgment bearing on spe-
cific property, for alimony.'
Damages, even nominal, should not be allowed for a wrong-
ful attachment of a homestead, if no injury has resulted.*
§ 18. Eflfect of Not Pleading.
Not pleading in an attachment suit has been likened to non-
claiming when an execution is levied in an ordinary suit.
Where the homestead, by the policy of the law conserving
homes for the good of the state, is made secure to the benefi-
ciary whether he defend against execution levied upon it or
not, it was held that there can be no such thing as fixing a
valid attachment lien upon it in a suit upon a debt not privi-
leged against it ; that should it be sold on judgment for such
a debt, in an attachment proceeding, no title would be con-
veyed.^
Is there not a difl^erence? The ordinary suit offers no op-
portunity to raise the question of homestead ; not till the levy
is it known what property will be taken in execution ; and
t^en the defendant can oppose only as an actor — as plaintiff
in injunction or some other proceeding. But the attachment
suit with affidavit, or (to make the matter plainer) the petition
containing all the averments necessary to both and duly sworn,
charges some ground for attachment which is inconsistent
with the defendant's homestead inviolability. For instance,
the plaintiff alleges the ground of non-residency : a non-resi-
dent can have no homestead. Or, he alleges that the debtor
has absconded: an absconded debtor has, or may have, aban-.
doned his homestead. Or, he alleges that the debtor has made
fraudulent disposition of his property : this may give rise to
the question whether he has relinquished his homestead right.
The defendant, by his answer, puts these allegations at issue.
He sees his property taken by the sheriff. If his household
goods are attached, they are under the charge of a keeper;
his corn is locked up in the officer's warehouse. If his town
1 Hemenway v. Wood, 53 la. 21. See 2 State v. Springer, 45 Mo. App. 253.
as to attachment at homestead for ' Burns v. Lewis, 86 Gra, 591 ; 13
alimony, Daniels v. Morris, 54 la. 369 ; S. K. 123.
Van Duzer v. Van Duzer, 65 la. 625.
EFFECT OF NOT PLEADING. 747
dwelling or his home farm has been attached, it is in the legal ,
possession of the sheriff, and in court, while he remains the
occupant by sufferance. He knows that his right is at stake ;
and, content to await the trial of the issues joined, he becomtes
plaintiff-in-rule to have the attachment dissolved. 'Now sup-
pose him to set upi every conceivable ground for dissolution
except his incontrovertible one of exemption; and suppose
he suffers defeat upon the rule, and defeat upon the trial of
the main cause, without pleading homestead at all : would not
he have waived it? Could a stronger presumption of waiver
be imagined?'
The defenses pleaded, and all defenses that might have been
pleaded, have passed beyond his recall. The rule is in all
suits in personam or in rem, including attachment suits and
suits involving homesteads as any other, that adjudication is
a bar to subsequent litigation as to all matters which might
have been tried under the issue as w^ell as to those actually
tried. Whatever is within the proper scope of the pleadings
is deemed to be passed upon by the judgment which becomes
res judicata as to all such matters; and the fact, that any par-
ticular thing was not urged when it might have been, creates
no exception to the general rule. It is considered as passed
in rem Judicatam, and therefore cannot be urged afterwards
between the same parties.^
A plaintiff in error moved to set aside a sale of his land,
claimed as homestead and sold by him with warranty before
the levy and judicial sale. The motion was overruled ; and
he was held bound by a decree in a suit to enjoin the sale,
brought by his grantee and prosecuted in the joint interest of
both. " Nothing that was involved in, and adjudicated in,
that suit, in relatiqn to this sale and assignment of homestead,
1 Ante, p. 556, on pleading waiver. 74-8 ; Hereth v. Yandes, 34 Ind. 102 ;
2 Aurora City v. West, 7 Wall. 83, Danaher v. Prentiss, 23 Wis. 299 ;
102; Beloit v. Morgan, 7 Wall. 619- Rector v. Rotten, 3 Neb. 178; Miller
623; Green V. Van Buskirk, 7 Wall. v. Sherry, 2 Wall. 237; Chilson v.
139; Foster v. Milliner, 50 Barb. 393; Reeves, 29 Tex. 376; Tadlock v. Ec-
Davis V. Tallot, 12 N. Y. 184 ; Can- cles, 20 Tex. 791 ; Lee v. Kingsbury,
field V. Monger, 13 Johns. 347; Le 13 Tex. 70; Baxter v. Dear, 24 Tex.
Guen v. Gouverneur, 1 John. Gas. 17; Larson v. Reynolds, 13 la. 583;
436; Comparet v. Hanna, 84 Ind. Wright v. Dunning, 46 111. 375.
748 PLEADING AUD PEACTICE.
can now be again litigated in this motion by any one that was
a party or privy to that suit." '
Are defenses of homestead, which are withheld when they
might be urged under the pleadings in attachment litigations,
to be considered as out of the general rule where the statute
makes homestead exemption absolute? Is the absoluteness a
logical reason for making such defenses exceptional? It is
not so as to other things. The solvent man who does not owe
a cent, and is under no pecuniary obligation of any sort, holds
all his property exempt ; absolutely exempt from forced sale.
Yet he must plead when his property is at issue, or take the
result of the rule. . The innocent man must plead for his life
when it is at stake in court, and meet false evidence with the
true, or he may be hanged though, upon proper showing, he
will be found absolutely exempt from the halter ; so exempt
from the beginning.
' There are statutes which positively declare that homesteads
shall not be subject to execution or attachment except for pur-
chase-money, taxes, antecedent debts, and sometimes one or
two other things. Where they exist, and are construed by
the courts to render writs of fi.fa. and attachment nugatory,
the profession is doubtless to heed- them in pleading and prac-
tice ; and it would be idle to oppose them by argument drawn
from the weight of authority in other states. It is the pre-
ponderance of authority in the state, where the pending issue
is to be tried, which alone controls. The reasoning of outside
decisions may have influence when those at home are not con-
clusive, but authority they have none. Does it follow that
where homestead attachment is inhibited, and the courts there-
fore hold it an absolute nullity, the defendant's counsel may
not move to dissolve one? Is he bound to disregard it and
resort only to later remedies? Suppose his client's goods
have bsen illegally taken by an officer under an illegal writ —
must he avoid a motion to dissolve for illegality, and recover
the goods by replevin? The latter would be the more oner-
ous, since he would have to give security. Or, if the home-
' Mooney v. Moriarty, 36 III. App. Wing v. Cropper, 35 III. 256 ; Mooers
175 ; ,C'ole v. Favorite, 09 111. 457 ; v. Dixon, 35 111. 208 ; Moore v. Tit-
Freeman on Judgments, §§ 162, 174-6. mun, 83 111. 358 ; Hoskins v. Litoii-
Compare: Mix v. King, 55 III. 434; field, 81 111. 137.
RULINGS ON QUESTIONS OF EVIDENCE. 749
stead has been attached in contravention of a statute inhibit-
ing the process — must he abstain from the simple motion to
dissolve the attachment, and wait till his client is about to be
ousted, and then sue out an injunction and give security ?
Doubtless the better practice is to employ the simpler and less
onerous remedy in order to avail his client of the statutory
inhibition.
Where the statute takes jurisdiction from the courts with
reference to the attachment and execution of homesteads, it
is manifestly idle for the creditor's lawyer to attempt the crea-
tion of a lien by levy either before or after judgment when
the fact of the existence of the homestead is conceded ; unless
he sees ground for assailing the statute itself as to its consti-
tutionality. There is an undefined limit beyond which the
legislator cannot go in cutting ofE the jurisdiction of courts —
else the judicial department might be wholly destroyed by
the legislative, to the contravention of the constitutional dis-
tribution of powers.
, These stringent statutes ought to be read with some qualifi-
cation understood. Governments are not to be debarred from
the exercise of any of their proper functions because of the
statutor}'^ inviolability of homesteads. Such property, as well
as any other, when forfeited for contravention of law, may
have judgment of condemnation pronounced in direct proceed-
ings against it, as suggested in the first chapter of this treatise.
§ 19. Rulings OK Questions of Evidence.
Papers filed in court, by an applicant, to obtain a home-
stead, are admissible in evidence against him in a contest with
one of adverse interest, to show admissions relative to the
property sought to be dedicated.' The declarations of a
husband and wife, tending to show the ownership of their
claimed homestead in another, thus denying their own right
to it, may be shown by an adverse party who has an in-
terest to do so.^ If they have pleaded that the homestead is
hers, they are estopped from proving it his.'
When it is necessary to prove filed declarations, a duly
certified transcript from the record is sufficient.*
1 Huntington v.Chisholm, 61 Ga 370. ' Bergsma v. Dewey, 46 Minn. 357.
2Hickey v. Behrens, 75 Tex. 488. ''Stevenson v. Moody, 85' Ala. 83
7S0
PLEADING AND PEACTICE.
Plaintiffs sued upon a deed of trust to land, executed to
their agent for their use by the defendant and his wife. The
land was sold, by the agent as trustee, to" the plaintiffs, and
deed given them conveying good title,- if the land was not the
homestead of the defendants when they gave the trust deed.
The plaintiffs brought an action of trespass to try title. The
trustee testified that the husband told him, before he took the
trust deed, that the land was not homestead. On the other
hand, it was in evidence that the plaintiffs knew of the de-
fendants' occupancy of the land, as their homestead, at the
time. The supreme court held that it was error for the lower
court to admit the testimony as to the husband's declaration.
The plaintiffs' title was held void because the land was home-
stead when the trust deed was given.'
' In a suit by a wife charging collusion between her husband
and his vendee of land on which she claims homestead, evi-
dence of the husband's declarations respecting his residence,
without accompanying evidence of the circumstances under
which he made the declarations and without showing that they
were made in her presence, was held inadmissible.^
And the declarations of the wife may be admissible against
her, under certain 'circumstances. If, free from restraint and
with full knowledge of her rights, she should "represent that
a certain tract of land was not her homestead, and then cause
a person to purchase it, she would be concluded by her acts;
but if the party purchasing should know all the facts, or by
reasonable diligenpe could know, and it should be apparent
that the married woman was not entirely free from restraint,
or was not cognizant of her rights, whatever admissions might
be made under these or similar circumstances could not, with
any propriety, be said to influence the purchaser or to estop
the married woman from asserting her rights." '
In homestead litigation, as in any other, the onus is usually
on the declarant to prove his allegations. If a defendant
pleads homestead, he must show himself to be within the stat-
ute both by his plea and his evidence. The bare assertion
(withdrawing same titled case, 83 S. W. 101; Jacobs v. Hawkins, 63
Ala. 418); Ala. Code, g 2788. Tex 3.
'Rose V. Blankenship (Tex.), 18 * Newman v. Farquhar, 60 Tex 640.
'Welch V. Rice, 31 Tex 688.
EULINGS ON QUESTIONS OF EVIDENCE. 751
that his lot or farm is his homestead is not usually enough,
though it has been held, as before stated, that the use of the
technical term implies the value accorded by law as exempt.^
The rule is that there be allegations sufficient to inform the
court, and the opposite party of the grounds of the claim or
defense, when homestead is put at issue.
A plea that the homestead belonged to the wife, filed by
both husband and wife, will not admit of proof that he is the
sole owner.^ There must be consistency. A defendant in
ejectment, after maintaining successfully that the property in
question was homestead, was estopped from denying it in fur-
ther proceedings in the same case.^
A wife, having a homestead right to premises derived from
her former husband, may prove that fact in an action of for-
cible entry and detainer against her, after the record of the
ejectment suit (in which she and her present husband were
ousted from the premises) has been admitted in evidence
against her objection.^
The husband is a competent witness when he is joined with
his wife in a suit concerning their homestead owned' by her.*
The statement of an attorney at law, made at a judicial sale,
that the property offered was a homestead and exempt, could
not be received as competent to prove notice to the purchaser
when his title was subsequently drawn in question.'
The onus of proving that a homestead, purchased at execu-
tion sale, was rightly sold under judgment upon a mechanic's
lien, has been held to be upon the purchaser. And proof that
the action was for work, and that the writ commanded the
officer to sell the property owned by the debtor when the
plaintiffs " filed their lien," was held insufficient. The court
said : " "Where it is admitted . . . that the sale under the
execution was made to satisfy a debt contracted since the
homestead provision of the constitution became operative,
iSymonds v, Lappin, 82 111. 313 ^Morrissey v. Stephenson, 86 III.
(and cases cited therein) ; Struble v. 344.
Nodwift, 11 Ind. 64; Amphlett v. 6Kas. Civ. Code, § 338; Chicago,
Hibbard, 29 Mich. 304 ; Daudt v. etc. R. Co. v. Anderson, 43 Kas. 297.
Harmon, 16 Mo. App. 203. 6 Morris v. Balkham, 75 Tex. Ill;
2 Bergsma v. Dewey, 46 Minn. 357. Mooring v. McBride, 62 Tex. 809.
'Shubert v. Winston (Ala.), 11 So.
300.
752 PLEADING AND PEACTIOE.
and without assigning a homestead to the defendant in execu-
tion, when he did not hold one under a previous allotment,
. . . the onus is on the plaintiff to show the liahility of
the land to be sold to satisfy the debt."'
When the court has found that the debt was created for
homestead improvements, and has given judgment upon the
finding, the homestead may be sold under such judgment in
the absence of leviable chattels or other personalty. In a case
brought on a promissory note, it was proved that the note
was given by the defendant for material used in building his
dwelling-house, and the court so found. Judgment following,
the house was not exempt as a homestead against such debt.*
§ 20. Injunction Against Sale.
The sale of a homestead under execution may be enjoined '
when the property is exempt. Though the sale would be inop-
erative — not passing the title — yet if it would cast a cloud
upon the title it may be prevented by injunction. The ques-
tion of exemption may be raised on a motion to dissolve the
injunction when it has been temporarily granted. There is a
case where a son, having his mother living with him, made
declaration of homestead as the head of a family. Upon her
death, execution was levied upon it on a judgment against him
for his debt. Whether exemption ceased at her death, when
his family headship ceased, was the question. The court found
that it did not, but rested the opinion on a peculiar provision
of statute.'
The next question in the case was whether the title was
liable to be beclouded by sale under the execution. If the
sheriff's deed were given to the purchaser at the sale, and if
it should be followed by action to eject the homestead-holder,
the muniments of title which the purchaser (as plaintiff in the
1 McMillan v. Parker, 109 N. C. 353 ; son erecting it is entitled to his lien
13S. Ei 764; Long V.Walker, 105 N.C. on the homestead, if the work was
90 ; Mobley v. Griffin, 104 N. C. 112 ; done under contract with the owner,
McCraoken v. Adler, 98 N. C. 400; and the claim sworn and recorded.
Const N. 0., art 10, § 4; Code, ch. 41. Phelps v. Shay (Neb.), 48 N. W. 896.
2 Tyler v. Johnson (Kas.), 28 P. 198. » Roth v. Insley, 86 Cal. 134; Cal
A wind-mill is a homestead appurte- Civ. Code, §§ 1261, 1265 ; Eevalk v.
nance, within the meaning of Neb. Kraemer, 8 Cal. 73, and Bank v.
Comp. Stat ch. 54, § 1 : so the per- Cooper, 56 CaL 340, distinguished.
INJUNCTION AGAINST SALE. 753
ejectment suit) would produce, would render it necessary that
the homestead-holder produce extrinsic evidence to defeat
the ejectment action : such as his declaration of homestead,
his occupancy and his family relation at the time of dedica-
tion. Whatever creates the necessity for such evidence would
casta cloud upon his title and give him the right to an injunc-
tion.'
Could not the execution have been recalled by the court
that issued it? Afad if the homestead-holder had failed to ask
this remedy, was he entitled to have an injunction? This
question was raised in the appellate court, which answered
that the court which issued the execution would not have
been bound to recall it upon such application ; and that that
court appears from the record to have been clothed with juris-
diction, and its judgment and execution was binding upon the
defendant's property except what was exempt.^ The issue of
the execution was right, but the levy upon the homestead was
wrong: hence, injunction of that levy was proper.
Petitioners, praying to enjoin the execution of a judgment
on a community debt of an insolvent decedent, may show that
their title was derived from a grantor who had it from the
widow of the decedent through a partition proceeding — not
from him as heir of the deceased.'
Injunction is the proper remedy to prevent the illegal exe-
cution of a homestead. Though the sale would be voidable,
and would be absolutely void where the statute positively
inhibits the forced sale of homesteads on judgments against
owners for ordinary debts sub-dating the exemption — when
such execution sale is in contravention of such law — yet it
would tend to obscure the title and to breed litigation. The
beneficiary of the homestead immunity therefore needs relief,
and may find it in equity by enjoining the sale to prevent the
casting of a cloud upon his title.* He may also have equi-
1 Id,; citing Pixley v. Higgins, 15 mains exempt in his hands to any
CaL 127 ; Culver v. Rogers, S8 Cal. greater extent than $1,000 after he
537; Cohen v. Sharp, 44 Cal. 29; has ceased to be the head of a
Porter v. Pico, 55 Cal. 176. family."
2Eoth V. Insley, supra. It was 3 Watson v. Rainy, 69 Tex. 319;
added by Beatty, C. J.: "I think it 6S. W. 840.
ought not to be intimated that the * Tucker v. Kenniston, 47 N. H. 367.
homestead of a head of a family re-
48
754 PLEADING AND PRACTICE.
table remedy for the removal of a cloud already overshadow-
ing his title. In ' motion is also the proper remedy to prevent
a purchaser from taking possession after such illegal sale.' A
wife may enjoin the sheriff to- prevent his selling the home-
stead under execution.^
Sale may be restrained by injunction if it would throw a
cloud upon the title of the petitioner, even though no valid
title can pass by the sale because of its invalidity.' A pur-
chaser may enjoin the levy of an execution upon the home-
stead of the judgment debtor which is exempt from the lien
of judgment rendered before his purchase, as it would other-
wise be a cloud upon his title."* j^fter purchase, a cloud upon
the title may be removed by a bill in equity."
The levy of an execution was held not dismissible on the
ground that the property subjected to it was homestead, when
the jury had found only the defendant's aliquot part of it
(which was not affected by the homestead) subject to the exe-
cution — not the whole property.^ It has been held that the
creditor's proceeding must be in equity, and not by execution,
when liable property is attached to a homestead and makes it
excessive.'
A homestead was duly mortgaged, and there was a valid
judgment recorded against it. The debtor sold the property,
the purchaser assuming the obligation of the judgment, the
amount of which was withheld by him in making payment.
The purchaser then sold the property to another, who had
notice of the agreement in the first sale relative to the judg-
ment ; so he was held to have purchased subject to the judg-
ment and therefore without equity to enjoin the sale of the
property by the judgment creditor of the original owner. He
could not claim the benefit of exemption.'
In an injunction suit to restrain the trustee sale of a home-
1 Harrington v. Utterback, 57 Mo. ' Harrington v. Utterback, 57 Mo-
519. 519.
2 Bartholomew v. Hook, 23 Cal. 378. « Vining v. Officers, 86 Ga. 127 ; 13
3 Vogler V. Montgomery, 54 Mo. S. E. 298 ; Same parties, 83 Ga. 233.
578 ; Harrington V. Utterback, 57 Mo. '^Vanstory v. Tliornton, 110 N. C.
519. 10; 14S. E. 637.
* Ketchin v. McCarley, 26 S. C. 1 ; 8 Cumnock v. Wilson (Neb.), 50
Wilson V. Hyatt, 4 S. C. 369, distin- N. W. 959.
guished; High on Injunctions, § 375.
SEGREGATION AKD OTHEE PKOOEEDINGS BEFOEE SALE. 755
Stead (when the property was liable under a deed of trust)
because other property of the householder had not been ex-
hausted as the statute required, it was held that he should
have alleged and proved that he had such other property sub-
ject to execution.' '
Sale under execution is void if the advertisement by the
sheriff was fraudulent. Collusion by him with the plaintiff
in making such advertisement strikes the sale with nullity;
and a purchaser at such sale is affected by the guilty knowl-
edge of his attorney.^
On application to enjoin a sheriff from selling a homestead,
a temporary injunction was granted, with refusal to pass upon
a dispute upon facts set forth in the afHdavits of the parties
as to whether the homestead property included the upper
story of the dwelling.'
One who was in the enjoyment of a homestead, in the coun-
try, sued out an injunction to prevent the execution of a judg-
ment against his town property which he claimed as his " busi-
ness homestead." He could not have both, so the injunction
was dissolved.*
A plaintiff attached land of the defendant situated out of
the county. Judgment by default was entered and sale or-
dered. The defendant claimed the land as his homestead, and
enjoined the sale in the county where the land was situated.
He was held not concluded by the judgment. The sale was
suspended by the injunction till the settlement of the home-
stead question, though the writ of injunction should have been
returned to the court whence the order of sale had issued.*
If the rights of minors have not been ascertained, the deliv-
ery of the homestead tq a purchaser may be enjoined.*
§ 21. Segregation and Other Proceedings Before Sale.
A rule by a creditor, as plaintiff, for the sheriff to show
cause why he should not proceed to levy execution upon judg-
iStevens V. Myers, 11 la. 185. Sale ^ Jennings v. Carter, 53 Ark. 243.
was restrained in Iowa because the ' Farley v. Hopkins, 79 Cal. 203.
land on which the homestead stood < Williams v. Wills (Tex.), 19 S. W.
had not been platted after its incor- 683.
poration into the town limits, though * Seligson v. Collins, 64 Tex. 314.
it was alleged to be in excess of the «Colley v. Duncan, 47 Ga. 668.
urban quantitative limitation. Frost
V. Rainbow (la.), 53 N. W. 198.
T56 PLEADING AND PRACTICE.
ment obtained, must be discharged when it appears that the
debtor has no property but his homestead which is within the
statutory limit and therefore not subject to the lien of the
Judgment.^ But the officer is liable for not selling liable prop-
erty. Upon refusal to proceed, after a claimant, who was not
the defendant in the suit, had given notice that the property
levied upon was his homestead, the sheriff, upon sale, was
compelled to pay the value of the land, or the amount of the
judgment.^ Thus the ofiBcer stands between two fires.
If the homestead be wrongfully levied upon for a debt for
which it is not liable, an action of trespass against the officer
and the judgment creditor will lie. There hiay be choice be-
tween that and a statutory remedy and an action in damages
after the illegal sale has been consummated.'
A part of the realty, segregated from the rest, may be liable
to seizure and sale by creditors, though the whole was the
debtor's homestead before the separation, and the major part
still remains such.* On the other hand, the less part may be
segregated from the greater, and the greater be no longer
protected as homestead, while the less continues exempt.^ If
there are disputes respecting land — whether it is a part of
the homestead — they may be settled by referees when there
is authorization to that effect.*
"When the property occupied by the debtor is greater in ex-
tent or value than that which is exempt by law as his home-
stead, the excess is liable to execution. It then becomes neces-
sary to segregate the exempt from the liable portion, if an
execution is pending. This is usually done on application
(either of the creditor or the debtor) for the court to appoint
appraisers or commissioners. If by the former, he must allege
iKing V. McCarley, 33 S. C. 364. bMcC's la. Code, § 3177 (3003);
In South Carolina, the right of home- White v. Eowley, 46 la. 680 ; Mc-
stead may be determined by rule Cracken v. Weitzell, 70 la, 733. In
against the sheriff. Charles v. Charles, Iowa, the referees are called jurors ;
13 S. C. 385. nine are summoned, but six are to be
2 Blackman v. Clements, 45 Ga 393. struck off by the parties, or by the
3 Bartlett v. Russell, 41 Ga. 196. sheriff when they do not The three
< Felner v. Bumgarner (Ark.), 17 S. remaining make their report to the
W. 709. court, which decides. McC'sIa. Code,
5 Blackburn v. Knight, 81 Tex. 391 ; §§ 3177-3180.
16 a W. 1075 ; Curtis v. Des Jardins,
55 Ark. 136. i
SEGEBQATION AND OTHEE PROCEEDINGS BEFOEE SALE. T57
that he has caused execution to be levied and that the value
of the property exceeds the homestead limit ; and he should
state who is the claimant of the exemption. Whether the de-
fendant be the claimant, or his wife, or any member of the
family entitled to hold for all, the name should be stated.
It is rather the debtor's business, than the creditor's, to
make the application for division when execution has been
levied against an excessive homestead. First he may apply to
the sheriff, or other officer in charge of the execution, to have
the homestead set oflf. On the officer's compliance, the cred-
itor may complain that too much has been accorded to the
debtor. If so, the officer may have the land surveyed to
ascertain the statutory quantity exempt.^
An excessive homestead, which is not susceptible of division,
may all be retained by the debtor so far as the pending execu-
tion is concerned, if he will pay the excess into court for the
use of the creditor. This is provided by statute in several
states ; and it is proper in the absence of any legislative au-
thorization ; for, if the creditor gets out of the debtor all that
he could make out of the property, justice is satisfied. On the
other hand, the creditor may pay the value of the exempt
portion into court for the use of the debtor, and then go on
and sell the whole of the indivisible property, under some pro-
visions.
In states where there is no homestead selection, declaration or
dedication of homestead by the head of a family irrespective
of his pecuniary condition ; and where there is no technical
Iwmestead except the exemption allowed a debtor when exe-
cution is pending (which, when consisting of realty, is some-
times called by the name), the officer, charged with an execu-
tion against the property of a husband, is required, by some
statutes, to set off a certain value of realty to the debtor when
application therefor has been made by him. The officer, in
doing this, has the aid of appraisers — one of them selected by
the applicant — whose report must be filed in the case whence
the execution issued. A notary, or any officer who is author-
ized to administer oaths, may swear in the appraisers, as he
1 In Mississippi, if a town home- oflBcer may sell a part of it. Rbyne
stead is worth more than the statute v. Guerara, 67 Miss. 139.
exempts, it has been held that the
758 PLEADING AND PEACTIOE.
may qualify commissioners appointed to lay off homestead
pursuant to a decree of foreclosure.'
The appraisers must ascertain the value ; ^nd, if it is in ex-
cess of the monetary limit, they must next decide whether the
property can be divided, without injury, so that the exempt
portion may be reserved to the debtor (or the claimant, if
other than the debtor), and the liable portion subjected to the
operation of the writ. They must report to the court ; but
the report is not conclusive.^ If the report favors division,
and is such as the court will adopt and act upon, the court
will order the reservation of the exempt part of the property
and permit the execution to be consummated as to the rest. If
the property is reported to be indivisible and excessive, the
court will allow the whole to be sold, and will have the value
of the homestead reserved for the claimant out of the pro-
ceeds. The amount reserved will be exempt for such time as
the statute provides, which varies in different states from six
months to two years.
A sheriff, who had sold land, including homestead, under
execution ; and, instead of paying over the value of the home-
stead to the householder out of the surplus proceeds, had ap-
plied them to the satisfaction of other executions against him,
was held not answerable to him when he had stood by and
seen the surplus thus distributed without interposing objec-
tion.'
If a homestead, reported as excessive and indivisible, be of-
fered at public sale under the writ, and no bid greater than
the monetary homestead limit be offered, there can be no ad-
judication.
§ 23. Judgment and Costs an Entirety.
As exemption is in relation to debt in most of the states,
and not to other pecuniary liabilities, it follows that Judg-
ments may be executed against any property when they are
not for debt. Damages recovered for other liabilities may be
collected from it, and it is held that the costs of a suit may
1 Dillman v. Will County Bank ' Brumbaugh v. Zollinger, 59 la.
(111.), 27 N.E. 1090; Same title, 36 111. 384; Elliott v. Mackorell, 19 S. C.
App. 372. 238.
^Schaefifer v. Beldsmeier, 9 Mo.
App. 438.
JUDGMENT AND COSTS AN ENTIRETY.
T59
also ; the plea of exemption would not avail against an execu-
tion for costs in a state which limits its application to debt
"founded upon contract, express or implied."' The liability
of a plaintiff or defendant for costs taxed against him is not a
debt so founded, and it cannot be said to have grown out of
a contract, when the judgment itself is not upon contract.
Costs are incidental ; and they take the character of the judg-
ment when it is for the plaintiff. If he is cast in his suit, and
the defendant recovers costs, what is the rule, when there is no
principal money judgment to give character to the costs? It
is held, in the case last cited (with cases therein cited), that
no exemption bars the defendant from collecting his adjudged
costs in an action ex delicto^ and the doctrine is extended to
include his costs in an action ex contractu. i
1 Donaldson v. Banta (Ind.), 39 N. E.
362. Crumpacker, J. : " The control-
ling question in this case is, does the
right of exemption ' exist against an
execution issued upon a judgment
for costs in favor of the defendant
against an unsuccessful plaintifiE in
an action founded upon or growing
out of contract? If such right ex-
ists, it is cbnferred by section 703,
Rev. St 1881, which provides that an
amount of property not exceeding
$600 in value shall be exempt from
sale upon execution or other final
process ' for any debt growing out of
or founded upon contract, express or
imphed.' No exemption is allowed
under this statute unless the debt
under which it is claimed was founded
upon or grew out of a contract, ex-
press or implied. The right does not
exist against judgments in actions
for tort Nowling v. Mcintosh, 89
Ind. 593 ; Thompson v. Boss, 87 Ind.
156; Gentry v. Purcell, 84 Ind. 88;
Smith V. Wood, 88 Ind. 522 ; Dorrell
V. Hannah, 80 Ind. 497. Where a
suitor obtains a judgment for dam-
ages in an action for tort, or a money
recovery in an action upon contract
and is awarded costs, the judgment
is an entirety, and must be collected
according to the laws for the collec-
tion of the judgment for damages or
the money recovery upon contract
In other words, the judgment for
costs is an incident to, and must be
controlled in its collection by, the
principal judgment This is so even
where the principal judgment is only
for a nominal amount. This was
decided in the case of Church v. Hay,
93 Ind. 328, wherein the court said :
'The costs recovered by the judg-
ment plaintiffs constituted a part of
the judgment on the cause of action.
The judgment was an entirety, and
belonged to the judgment plaintiffs
upon the theorj' that they had paid
them as they accrued or are liable for
their payment; and no contract, ex-
press or implied, existed between the
judgment plaintiffs and the judgment
defendants in relation to them. The
law requires them to be paid by the
judgment defendant not because
they aie paid for his use, but because
he had caused the plaintiffs to pay
them to protect their own rights.'
The doctrine that a judgment for
damages and costs is an entirety,
and the cost shall be collected in the
760
PLEADING AND PBACTICB.
In the state of the above cited case, where there is ex-
emption but no homestead law, a -debtor was allowed exemp-
tion in a case brought against him upon three causes of ac-
tion — two in tort and one on contract — the court giving
him the privilege as though the action had been solely on con-
tract.' Had the action been wholly in tort, no exemption
could have been allowed under the statute.'^ If the amount
recovered on contract can be segregated from that in tort)
same manner as the judgment to
which they are incidental, was de-
clared in the case of Martindale v.
Tibbetts, 16 Ind. 200. In deciding
the question the court said; 'The
judgment for the debt and costs is an
entirety; the costs following as an
incident to the judgment for the
debt, and to be (joUected in the same
manner.' Where costs are recovered
independent of any other judgment,
they do not constitute a debt founded
upon contract. There is no contract,
express or implied, that an unsuccess-
ful plaintiff will indemnify the de-
fendant for the costs occasioned by
the litigation, but the right to recover
costs is purely statutory, and, in the
absence of a statute authorizing it,
they could not be recovered as such
by the prevailing party. Alexander
V. Harrison, 3 Ind. App. — , 28 N. E.
Rep. 119. In an action ex delicto, if
the plaintiff is unsuccessful, and the
defendant recovers costs, no exemp-
tion is allowed against such judg-
ment ; not because the costs partake
of the nature of the subject-matter
of the action, but because the right
thereto is statutory, and not a matter
of contract. Russell v. Cleary, 105
Ind. 503, 5 N. E. Rep. 414. The same
principle was applied in the case of
State V. Mcintosh, 100 Ind. 439,
wherein the court said: 'Costs are
not matter of contract, but they
are given or withheld by statute.'
Whether the right of exemption ex-
ists against a judgment for costs
rendered against an unsuccessful
plaintiff in an action founded upon
contract has never been expressly de-
cided by the supreme court in this
state, but we can see no good reason
for the application of a different rule
in such cases from that applied to a
judgment under like conditions in an
action for tort. Because in the one
instance the suit is ex contractu, it
cannot impart to an independent
judgment for costs the qualities of a
contractual obligation. The right to
recover costs is conferred by the
very same statute in both cases, and
must, upon the clearest principles of
jurisprudence, be the sapie. It was
held in Lane v. Baker, 3 Grant, Casi
424, that costs do not partake of the
nature of the action. The court, by
Black, C. J., said : ' A party is not a
trespasser because he sues another
for trespass.' We can perceive
ample reasons for the rule requiring
costs to be collected by the same law
as the principal judgment wherei
they are awarded as part of and in-
cidental thereto, but these reasons do
not apply to independent judgments
for costs."
1 Ries V. McClatchey, 128 Ind. 125 :
37 N. E. 349.
3 De Hart v. Haun, 126 Ind. 378 ;
26 N. E. 61; Nowling v. Mcintosh,
89 Ind. 593; Genti-y v. Purcell, 84
Ind. 8a
JUDGMENT AND COSTS AN ENTIEETr. 761
when the cause of action is mixed, the defendant may claim
exemption as to the former.^ 'No exemption when the judg-
ment is for tort is a rule extensively followed."
Where the statute exempts not only from any debt con-
tracted but also from any liability contracted, the latter has
been held to cover torts, so that the defendant had his property
protected when execution followed a judgment against him for
assault and battery.' Not only in actions for tort, but in ac-
tions to recover debts antecedent to the homestead, the costs
partake of the nature of the judgment, and may be collected
of the homestead.*
On a judgment for the recovery of land and for damages
for its wrongful detention, the execution is not for the collec-
tion of a debt. The sheriff, when the writ itself evinces its
character, may levy upon chattels and disregard any claim of
exemption based upon a law that grants it only in case of
" execution or other process for the collection of 'debts." ^ In
the case cited, the court said : " Such exemptions may not be
claimed against process generally. A writ of possession for
land and for the collection of damages assessed for the wrong-
ful detention thereof, and the costs of the suit, is not, as to
the damages and costs, subject to the claim of exemption of
personal property allowed by our laws, as it is not process for
the collection of a debt contracted ; and . . . the sheriff
had a right to . . . sell the property levied on as if no
such claim " had been presented.
The executor of a wife's will, having negotiated the sale of
real estate pursuant to its provisions, petitioned for the con-
firmation of the sale. Pending the hearing, the surviving hus-
band made application to have the property set off to him as
homestead. To this application ike legatee, whose money be-
quests were to be paid out of the proceeds of the sale accord-
ing to the will, demurred. The demurrer was overruled. Is-
1 Keller V. McMahan, 77 Ind. 63. Robinson v. Wiley, 15 N. Y. 489.
2 Stuckey v. McGibbon, 92 Ala. 632 ; See Warner v. Cammack, 37 la.' 643.
8 So. 379 ; Davis v. Henson, 39 Ga. 345 ; » Smith v. Omans, 17 Wis. 406.
Kenyon v. Gould, 61 Pa. 393; La- ■* Knight v. Whitman, 6 Bush, 51.
throp V. Singer, 89 Barb. 396 ; Schou- ' Penton v. Diamond, 93 Ala. 610 ;
ton V. Kilmer, 8 How. (N. Y.) 537. 9 So. 175; Ala. Code, 3511; Const
Contra: Bellinger v. Tweed, 66 N. C. Ala., art 10, § 1.
S06 ; Conroy v. Sullivan, 44 III 451 ;
762 PLEADING AND PKACTIOE.
sue was then joined : the legatees setting up the will and its
probate in defense. The husband was decreed to be entitled
to the property for life, as the surviving spouse's homestead,
but to pay the expenses of the administration in the absence
of any assets for the purpose.' Had he applied immediately
upon her death, the expenses might have been avoided.
It has been held that " costs on a junior judgment which
could not be defeated by the homestead must be postponed
to a senior judgment on a debt against which a homestead
could be claimed." '
1 Lahiff's Estate, 86 OaL 151 ; CaL Cal. 385 ; Maloney v. Hefer, 75 Cal
Civ. Code, § 1265 ; Code Civ. Proc. 433, distinguished.
1474; Sulzberger v. Sulzberger, 50 2 Bank v. Goodman, 33 S. a 601.
OHAPTEE XXIV.
EXEMPTION OF PERSONALTY.
i 1. Differentiation of Homestead
and Chattel Exemption.
3. Interpretation of Statutes.
3. What Law Applicable.
4. The Right Absolute or Condi-
tional.
5. Who May Claim.
§ 6. How to Claim.
7. When to Claim.
8. The Officer's Duty.
9. Limitations.
10. Money in Lieu of Chattels.
11.. Chattels in Lieu of Homestead.
12. Chattel Exemption to Widows.
§ 1. Differentiation of Homestead and Chattel Exemp-
tion.
The exemption of personalty is often called chattel exemp-
tion, and it relates not only to ordinary movables but also to
money and credits. It is more general than homestead exemp-
tion ; every state accords it, and there is an approach towards
uniformity in the statutes. In some respects the two kinds
of exemption are alike ; in others, they are different. Home-
stead exemption need not have its features here again exhib-
ited ; but, as chattel exemption is portrayed, the resemblances
and diversities will appear. It is a privilege granted to the
debtor when execution is pending against his property. By
some statutes it is granted to him as a debtor simply ; by
others, as a debtor who is a resident — a householder — the
head of a family ; by yet other statutes, as a debtor who is
the follower of a specified vocation. The things exempt are
not rendered sacramental by any dedication or recordation so
as to save them specially from any forced sale, but are usually
selected with regard to the pending execution-. They mix
with the mass afterwards, and a second selection at the time
of a second execution may or may not include the same goods.
In other words, there is no dedication in chattel exemption.
If the debtor has possession of the articles which he claims as
exempt, the ownership is presumed : so, in the absence of evi-
dence to the contrary, he need show no title. Occupancy —
rath'T should we say use — is not essential to the exemption
764:
EXEMPTION OF PERSONALTY.
of personalty, except that it may be necessary with respect to
farmers' and mechanics' tools under some statutes. Family
headship is not nearly so general a requirement as in home-
stead exemption.
The policy of the law is alike in both classes of exemption,
so far as both agree; that is, when both are accorded to heads
of families only, the policy is plainly to conserve families.
When tools are specifically exempted in favor of artisans,
; whether married or single, the policy of the law is evidently
to encourage their calling. Such protection may keep them
from bang virtually maimed by having their artificial addi-
tions to hands and f6et cut off. When goods to a given
amount are secured to any debtor, the policy is more appar-
ently beneficent. In any case, it is for the welfare of the
state and the good of society and of the beneficiaries.
§ 2. Interpretation of Statutes.
The applicable rules of construction are the same as those
appertaining to homestead exemption, so far as the purpose
or policy of the legislation is alike in both. When a provis-
ion is ambiguous, it is generally construed liberally to effect
the legislator's intention to provide exemption in favor of the
debtor. Strict construction kpplies when there is any deroga-
tion of common right, and when it would be applicable, for
any reason, under the established rules of interpretation gov-
erning legislation on any subject. The decisions are numer-
ous which favor liberal construction of laws providing for
chattel exemption — only a few of which need be cited.^
If the privilege is granted on conditions to be observed by
the applicant, it ought not to be denied because he has failed
to comply in some immaterial particular ; ^ but non-com pli-
iRutter V. Shumway, 16Colo.'95; 449; 14 Am. R 71; St Louis Type
26 P. 331 ; Brown v. Balfour, 46 Minn. Foundry v. Publicatiou Co., 74 Tex.
68 ; 48 N. W. 604 ; State v. Boulden, 651 ; Allison v. Brookshire, 38 Tex.
57 Md. 818; Kestler-v. Kern, 2 Ind. 199; Byous v. Mount, 89 Tenn. 361;
App. 488 ; Piokrell v. Jerauld, 1 Ind. Wolfenbarger t. Standifer, 3 Sneed,
App. 10 ; 37 N. E. 483 ; Junker v. 659 ; Carty v. Drew, 46 Vt. 346 ; See-
Hustes, 113 Ind. 524; Butnerv. Bow- ley v. Gwillim, 40 Ct. 106 ; Kuntz v.
ser, 104 Ind. 255 ; Kelley v. McFad- Kinney, 83 Wis. 510.
den, 80 Ind. 536 ; Finleu v. Howard, 2 Haas v. Shaw, 91 Ind. 384 ; 46
126 111. 259 ; Good v. Fogg, 61 111. Am. E. 607.
INTEEPKETATION OF STATUTES. 765
ance with essential conditions precedent on the part of the
beneficiary should not be overlooked.^ When they are set
forth plainly, there is nothing for the courts to construe.
There must be a performance of the conditions.
There may be implications, either favoring the debtor or
otherwise, which the courts ought to regard. There may be
no express words of inhibition, yet the spirit of the statute
may deny exemption. It was said of an absconding debtor :
" Refusing to remain within our jurisdiction to answer its lia-
bilities, he ought not to be permitted to come within it to ap-
propriate its bounties." ^ Again it was said : " It cannot be
presumed that the legislature intended to extend the benefits
of the exemption laws to this class of persons " [*. e., abscond-
ing debtors].' The spirit of the legislation, however, while
not favoring an application from an absconded debtor, may
allow his wife or some other member of his family to make
the claim in behalf of the beneficiaries whom he has deserted.*
The doctrine of liberal construction has been applied to the
rules of benevolent societies where the statute of the state
exempted a benefaction of such a society to a specified
amount.*
When an exemption provision is minutely incorporated into
the organic law of a state it does not become more entitled to
liberal interpretation than it vrould be in a statute. It is thus
better secured, as to permanency, but no better entitled to
favorable construction. That an exemption law is imbedded in
a constitution is no reason for liberal interpretation, but it
gives the beneficiary a right which the legislature cannot im-
pair.^
Exemptions from taxes are less liberally construed than
iStallings v. Read, 94 Ind. 103; 'By General Statutes of Minne-
Smith V. Slade, 57 Barb. 641. sota, section 369, a beneficiary fund
"Yelverton v. Burton, 26 Pa, St. to the amount of $5,000 is exempt to
:3gi_ the family of the debtor free from
3 Orr V. Box, 22 Minn. 485. By his debts and theirs. Brown v. Bal-
Revised Statutes of Missouri (1879), four, 46 Minn. 68 ; Jewell v. Grand
aection 416, as construed in Burner Lodge, 41 Minn. 405 ; Supreme Coun-
V. Kingsbury, 83 Mo. App. 519, even oil v. Perry, 140 Mass. 580 ; Ballou v.
wages may be attached if the debtor Gile, 50 Wis. 614
has absconded. * -A-nte, 'p. 52.
*Post,%5.
766 EXEMPTION OF PEESONALTY.
others. It was said in a tax case (following others that con-
tained like deliverances) in a state which treats all exemptions,
as subject to strict construction as being in derogation of com-
mon right : " The well known and universally prevailing prin-
ciple of interpretation, that statutes comprising exemptions
should be strictly construed, is specially emphasized in the
jurisprudence of this state. ' Ip such case, doubt is fatal.' " *
" Plausible hesitation warrants an adverse finding." ^
In no class of exemptions should statutory interpretation,
either strict or liberal, be allowed to relieve the claimant from
the burden of making out his case. In other words, a case of
doubtful facts is not to be helped or hindered by it. It is not
for courts to extend the statute to cover -a claimant who has
not brought himself under it. If the facts show a state of
things which render it questionable whether the statute gives
exemption in such case, then there must be such interpretation
as will decide the question, not as to. the case at bar merely
but as to all like cases.
§ 3. What Law Applicable.
The law existing relative to exemptions, at the time of a
change in the constitution on that subject, is the one applicable
to questions arising thereunder.' The constitution cannot be
made to increase the amount, without doing injustice to the
creditor. A legislature cannot enlarge it, with reference to
the existing obligations of the debtor. If he acquired the
property he claims, after the new enactment, his position is
not better, since the date of the debt fixes the exemption
right, and points to the statute then existing. For illustra-
tion : a statute exempted one horse ; a later statute exempted
two; the debt was contracted under the first one: held, that
the first law governed, and the defendant could not claim two.*
1 Gast V. Board of Assessors, 43 La. Chalmers, J., for the court, put the
Ann. 1105. decision on the ground that to ex-
2 City of New Orleans v. Robira, 42 empt more than what the creditor
La. Ann. 1103. Like renderings and knew to be exempt, when he trusted
expressions in Carre v. City, 41 La. the debtor, would be to impair the
Ann. 998 and 42 id. 1121 ; Dennis v. contract, ciiing Lessley v Phipps, 49
Railroad Co., 34 La. Ann. 958. Miss. 790; Gunn v. Barry, 15 Wall.
3 Moore v. Boozier, 42 Ar|f:. 385. 610 ; Homestead Cases, 23 Gratt 866.
•• Johnson v. Fletcher, 54 Miss. 628. He argued that, to poor people, tha
WHAT LAW APPLICABLE. Y67
Under a statute which made certain absolute exemptions, and
certain ones subject to selection and claim, the same principle,
as to the governing statute, was clearly elucidated.'
A bankrupt, who gave a note subsequently to his discharge
for the discharged debt, when sued upon the note, was al-
lowed to claim his exemption of six hundred dollars under the
statute exempting that amount from execution for " any debt
growing out of, or founded upon, a contract expressed or im-
plied." ^ In so allowing, the court said that the debtor's dis-
charge-in bankruptcy did not pay his debt but left him morally
bound to pay it if able to do so at some future time ; that this
moral obligation constituted a suiHcient consideration for the
note ; that the new note revived the original debt.'' But the re-
pealed laws governing the original debt were not also revived ;
the rights anS remedies of the parties, respecting the new
note, must be governed by the laws in force when the remedy
is sought.* This is the general rule as to contracts, and it is
applicable to both classes of exemption^.'
A statute of limitation should not too suddenly cut off rem-
edy.*
The contract is governed by the statute in force when it was
made.' The repeal of the statute does not affect the contract.^
The remedy may be 'altered if the contract is not thereby im-
paired.' But there is impairment if the object of the contract
increase from one horse to two is as Billings v. Hall, 7 Cal. 1 ; Bumgard-
great a change as the increase of ner v. Circuit Court, 4 Mo. 50 ; But-
homestead exemption from an eighth ler v. Pennsylvania, 10 How. (U. S.)
to a quarter section would be to men 416 ; Bronson v. Newberry, 3 Doug,
of means. The case allowing the (Mich.) 38; Billmeyer v. Evans. 40
latter, Stephenson v. Osbore, 41 Miss. Pa. St 324 ; Coriell v. Ham, 4 Greene
119, was overruled in Lessley v. (la), 458.
Phipps, mpra, as the court showed. 6 Call v. Hagger, 8 Mass. 423.
'Carlton v. "Watts, 83 N. C. 312; ''Ante, p. 19; Cornell v. Hitchens,
Gamble v. Rhyne, 80 N. C. 183 ; Earle 11 Wis. 368 ; Coosa River Steamboat
V. Hardie, 80 N. C. 177. Co. v. Barclay, 30 Ala. 130.
2Ind. Rev. Stat (1881), § 703. » Commonwealth v. New Bedford
3 WiUis V. Cushman, 115 Ind. 100, Bridge, 3 Gray, 889 ; Conant v. Van
105; citing Carey v. Hess, 113 Ind. Schaick, 34 Barb. 87 ; Cook v. Moffat
898. 5 How. (U. S.) 316 ; Atwater v. Wood-
*ib.; citing Davig v. Rupe, 114 Ind. bridge, 6 Ct 223.
588. 9 Garrett v. Beaumont 24 Miss. 337 ;
SAuld V. Butcher, 3 Kas. 155; Cox v. Berry, 13 Ga.306; GriiHn v.
Berthold v. Holman, 12 Minn. 335 ; McKenzie, 7 Ga, 163 ; Cutts v. Hai-dee,
768 EXEMPTION OF PEESONALtY.
is defeated by the change in the statute.* The logic is the
same, as to impairment, whether personalty or realty be ex-
empted ; but the rigorous test, prescribed in some decisions,'
would work hardship in many cases involving small chattel
exemptions. The creditor is doubtless entitled to notice of
exemption before giving credit, as a general rule ; that is, he
should have the advisement which the passage of an exemp-
tion law gives him before he trusts his debtor on account of
the latter's chattel means of payment. Where the law gives
large exemptions to the debtor — a thousand dollars' worth
of personalty or more — there is no good reason why the rule
of notice should not be applied ; but the usual and almost
universally authorized exemptions of bed and beddiijg to fam-
ilies, tools to artisans, and the like, ought not to be subjected
to the test so strictly as to make them dependent upon their
antedating the debt, prior notice to creditors and other par-
ticulars. For creditors and the public may be presumed to
know that such exemptions are usual everywhere ; and it may
be said that contracts are made with knowledge of this fact.
Such exemptions are allowed throughout the civilized world,
and there were exemptions of necessary articles even among
the ancients. There was statutory exemption of agricultural
implements, wearing apparel and some other necessary arti-
cles, over five hundred years ago in England ; and there has
been similar provision in this country through all its history.
§ 4. The Right Absolute or Conditional.
Exemption is absolute or conditional. It relates to property
specific or selectable: the former being exempt while the latter
is exemptMe. The absolute exemption of specific things is
made complete by statutCj while the conditional exemption of
things selectible leaves somtething for the beneficiary to do.
The condition is that he must claim his privilege by compli-
38 Ga. 350 ; Coach v. McKee, 6 Ark. pike Co. v. How, 14 B. Mon. 342 ;
484; "Walker v. Bank, 7 Ark. 484; Dam man v. Com. School Lands, 4
Waltermire v. Westover, 14 N. Y. 16 ; Wis. [*414], 433 ; Grogan v. San Fran-
Morse V. Goold, 11 N. Y. 281. cisco, 18 Cal. 590 ; Montgomery^ v.
•Cm-ranv. Arkansas, 15 How. (U.S.) Casson, 16 Cal. 189; McCauley v.
304 See generally, as to statutes im- Brooks, 16 Cal. 11. See Charles River
pairing contract: King v. Dedham Bridge Case, 11 Pet 538.
Bank, 15 Mass. 447 ; Maysville Turn- 2 Ante, pp. 677-9.
THE EIGHT AB80HJTE OE CONDITIONAL. 769
ance with the statute. "When execution is pending^ he must
file his schedule, select and point out the chattels -which he is
allowed to save from the sale, and claim his privilege in the
mode and within the time prescribed by the statute.
Specific property, absolutely exempt, may be mortgaged,
assigned, sold, or subjected to any disposition by the debtor
without injury or loss to his creditor who has no right to look
to it for satisfaction ; but property is not thus at the debtor's
disposal when it is merely exemptible upon compliance with
conditions. When there is no absolute exemption, all the debt-
or's property is liable under a general judgment, and any of
it may be seized in execution. The ofiicer does not know
that the defendant will avail himself of the privilege of select-
ing and claiming anything under the statute which merely
accords the right. He is not bound, or even permitted, to set
off any unclaimed chattels to the notified debtor, under such
circumstances, but must levy upon that which the plaintiff
points out, or on what he finds, if nothing be pointed out;
and he must go on and sell, if no claim of exemption inter-
venes before the sale.
While the debtor may dispose of specific property abso-
lutely exempt, he cannot convey that which is merely suscep-
tible of being made exempt without forfeiting his right to
claim. He cannot transfer to another this right. A debtor's
interest in a fund was assigned by him to his children after
proceedings had been instituted to subject it to the satisfac-
tion of his debt. Then he claimed exemption in behalf of his
children. He was held incompetent to claim, in an able opin-
ion which makes the distinction between exempt and exempt-
ible property very lucid.'
1 Stotesbury v. Kirtland, 35 Mo. the vendee, in the sense that his
App. 148. vendee may, as against his creditora
Judge Thompson said for the court: set up his right of exemption; as is
"The distinction which our courts shown by Stone v. Spencer, 77 Ma
take between these two sections (Mo. 356, and as is recognized in Hombs v.
R S., §g 2343, 2346) is that the specific Corbin, 20 Mo. App. 507. But, as held
chattels exempt under the first sec- in this last named case, this is true
tion are exempt whether selected or only of property which is thus spe-
not ; and consequently, if the debtor cifically made exempt, and is not true
sells them, the right of exemption of property which the debtor may
will attach to them in the hands of select, under section 2346, in lieu of
49
770
EXEMPTION OF PEKSONALTT.
§ 5. Who lay Claim.
Possessor: The claiming of exemptible personalty, by house-
holders, to save it from execution, will now be considered.
The defendant is the proper claimant of property in which he
has the exemption right. It is levied upon as his property, or
about to be, and he seeks to defeat the levy, or to prevent its
being made, because he is interested as owner. But it is not
essential that he have title, of any sort, beyond possession, to
enable him to set up the exemption privilege. He is not
bound to show title as against the creditor and officer who
have just seized the goods as his property. It is even held
that exempt movables, owned by the debtor's wife but seized
the specified property exempt under
the section previously cited. The
reason given by the court for this
Conclusion was thus stated by Judge
Hall : ' As to the right of selection,
this is purely a personal privilege
conferred upon the debtor, which he
alone can exercise and which he can-
not transfer to another. Exempt
property the debtor can sell, and it
remains exempt after the sale, as it
was before, unaffected thereby. Or,
if the property be not exempt, the
debtor may select it in lieu of that
which is exempt, and, after the selec-
tion, sell it, as he may sell the ex-
empt property. Bub the right to
make the selection the debtor can-
not sell; he alone can exercise it.
As the debtor can alone make such
selection, he alone can avoid a levy
on account of a failure of the officer
to give him an opportunity to make
it. The right to make the selection
the debtor may waive, just as he
may waive his right to all exemp-
tions.' Hombs V. Corbin, supra.
"The question is thrown into
clearer light by the decision of this
court in Alt v. Lafayette Bank, 9 Mo.
App. 91. That case affords a distinct
authority for the decision of the case
before us against the claim of exemp-
tion set up by the defendants. It
had previously been held by this
court in Kulage v. Schueler, 7 Mo.
App. 250, that there can be no fraudu-
lent conveyance of property which
has already acquired the status of
being exempt from execution. In
the later case of Alt v. Lafayette
Bank, it was held that where prop-
erty has not acquired the status of
exempt property at the time when it
is conveyed in fraud of creditors, a
right of exemption in respect of it
cannot afterwards be claimed. . , .
In the present case, it was earnestly
argued that, until the time came to
file his answer, the debtor had been
afforded no opportunity of setting up
his claim. . . . "We appreliend that
this view is not tenabla . . . He
might have claimed as was done by
an insolvent debtor, in the case of
Weinrich v. Koelling, 31 Mo. App^
133-5. He should have set up his
right of exemption first, in his an-
swer to the petition, and then we
think he might have conveyed his
interest in the fund, to the extent of
his exemption, to his children, , . .
" The right of exemption, as we
have seen, cannot, except in the case
of specific chattels, be asserted by
any one save the debtor himself, as
was said by the supreme court in
Osborne v. Schutt, 67 Mo. 714."
WHO MAY CLAIM. 771
for hi^ debts and adjudged liable therefor, may yet be Rescued
by him from the grasp of his creditors. And this, too, after
he has denied ownership and declared it to be in his wife.'
But the bailee of the beneficiary of exemption cannot be heard
to claim the exemption in behalf of the beneficiary.^ And as
the claim should be by the debtor himself (though other bene-
ficiaries, such as a wife and it may be other members of his
family, may act in his absence or upon his neglect), he cannot
appoint an agent to claim for him when there is no reason or
necessity for doing so. He cannot transfer his claiming right
to a vendee so as to enable the latter to claim the exemption
of the article bought on grounds personal to the vendor.'
Family head: The claimant who relies upon a statute giving
exemption to the head of a family dependent upon him and
living with him as members of his household must prove that
he' occupies that position, when the fact is drawn in question.*
The husband's headship of the family, when his wife and
children compose the household, though always presumed
when the fact of family existence has been established, may
be disproved, and the wife sh6wn to occupy that position, it
has been decided ; and, when she takes charge of the duties
usually appertaining to him, that fact may be proved; and
the court will recognize her as entitled to claim exemption in
his stead, it is further held.' " Ordinarily, at least, where the
wife lives with the husband, he must be regarded as the hea4
of the family. If, in fact, he has not control of the family
and is not the head thereof, such fact must be shown by
proof." ' When, by reason of continued sickness, or disability
of any kind, he has habitually intrusted his business matters to
his wife, she may claim the statutory exemption.'
»Steen v. Hamblet, 66 Miss. 112; 153; Woodward v. Murray, 18 Johns^
King V. Sturges, 36 Miss. 606; Mc- 400; Griffin v. Sutherland, 14 Barb.
Grath v. Sinclair, 55 Miss. 89. See 456 ; Pollard v. Thomason, 5 Humph.
Chamberlain v. Darrow, 46 Hun, 48. 56 ; Gunn v. Gudehus, 15 B. Men.
Contra: Huey's Appeal, 29 Pa. St 447. In a homestead case, a widower
219; Miles v. The State (Md.), 21 A. was held to be a family, /n re Lamb's
51. Estate (Cal.), 30 P. 508; ante, p. 8.5.
^Mickles v. Tousley, 1 Gow. 114. » Temple v. Freed, 21 111. App. 288.
3Howland v. Fuller, 8 Minn. 30. ^Ib.; Clinton v. Kid well, 82 111. 429,
<Boykin v. Edwards, 21 Ala. 261; 'State v. Houck (Neb.), 49 N. W.
BonneUv.Dunn(4Dutch.),28N.J.L. 462.
773
EXEMPTION OF FEKSONALTT.
The. husband who lives apart from his family and does not
Contribute to their support ma}' be considered as having abdi-
cated his authority and headship, and to have lost his right to
claim chattel exemption as head of the family.^ So also a
divorced husband who is childless.^ But when the husband
had children, he was allowed such exemption, though not liv-
ing with his wife.' Even when he has been divorced at the
suit of Ms wife, he has been allowed to claim exemption, in
1 Linton v. Crosby, 56 la. 386; 41
Am. Rep. 107.
^Spangler v. Kaufman, 43 Mo.
App. 5, distinguishing Whitehead v.
Tapp, 69 Mo. 415, and Brown v.
Brown, 68 Mo. 388.
'Rogers v. Fox (Tex.), 16 S..W. 781.
Hurt, J.: "Appellee, Fox, sued ap-.
pellant upon an open account, and
caused a writ of attachment to be is-
sued, and levied upon a horse and
wagon. In the justice court Fox re-
covered a judgment for the sum of
$33.60, with a foreclosure of the at-
tachment lien upon the horse, the
justice holding that the wagon was
exempt Rogers appealed to the
county court, and in that court Fox
had a judgment for the sum of
$31.94, with foreclosure of the lien
on both horse and wagon, and from
that judgment Rogers appeals to this
court. Rogers claimed that the horse
and wagon levied on were exempt
property, for the reason that he was
a married man and head of a family.
The agreed statement of the facts
shows that Rogers is a njarried man,
having married in Tennessee about
twelve years ago, and that he has a
wife and five children living in Mon-
tague coutity, Texas.' He has not
been living with his wife since Janu-
ary, 1887, but is not divorced. He
has not contributed anything to her
support since January, 1887. Rogers
is a resident citizen of Cooke county.
The writ was levied in January, 1888.
The court charged the jury to find in
favor of Rogers on his claim that the
property was exempt if he 'was a
married man with a family depend-
ent upon him, and that he was a
consistent part of said family,' etc.
We are of the opinion that the court
erred in this charge, and that the
charge requested by appellant should
have been giit^jj^that he was entitled
to recover on his plea that he was a
married man and the head of a fam-
ily. We see nothing in the agreed
facts in this case to warrant any
further qualification of his right tp
have the law protect his exemption.
As will be seen, the j ; ment in the
justice court is for $32.60, and that
in the county court was for $31.94.
The court taxed the costs of the
county court against defendant This
was error. Art 1432, Rev. St The
statute gave defendant his costs in
the county court, as the judgment
there recovered against him was for
less than the judgment in the justice
court It is true that the court is au-
thorized, for good cause stated in the
record, to adjudge the costs other-
wise, but none appears here. There
is found in the record what appears
to be sworn statements of jurors who
tried the case that they intended to
give the plaintiff a larger verdict
This cannot serve a good cause or
any other purpose. Reversed and
remanded."
WHO MAY CLAIM. 773
the capacity of head of a family, because he still continued
to support his children.* He would then have as good a claim
as an unmarried man who supports his mother.* It was held
under a statute allowing six hundred dollars to every resident
householder, that a debtor who was unmarried when his prop-
erty was levied upon, but who took a wife and went to house-
keeping before the sale was consummated, was entitled to
claim exemption.'' The court said: "The debtor is entitled
to select the propeity he desires to exempt from execution
and sale, and he may file his schedule and make such selection
at any time before sale. . . . The contention of the ap-
pellants, that because the levy in this case satisfied the exe-
cution they are therefore entitled to sell the property, cannot
be maintained." Many authorities Avere collected, pro and con,
on the question of the debtor's defeat of the execution by his
marriage, but the court found the solution in construing the
statute of its own state. " An examination of these authori-
ties will reveal the fact that the question always depends upon
the construction to be given to the numerous statutes upon
the subject of exemption, all in some respects differing."
Doubtless this observation of the court could be profitably
applied to many questions on which reconciliation of decisions
is otherwise impossible.
A husband having absconded, and his personal property
having been attached, his wife claimed four hundred dollars'
worth of it as exempt. The property was appraised, and the
portion awarded to her, though it proved afterwards to be
worth a thousand dollars at auctioneer's sale ; and the auc-
tioneer was garnished for the money. The court said there
was no statutory warrant for placing the limit of four .hun-
dred dollars upon the property which a wife ordinarily may
claim ; that " no right of substitution seems to be given to the
wife, under a literal reading of the statute, except to the ex-
tent of three hundred dollars ; but judicial construction and
usage [?] seem to have placed it at four hundred dollars,
including one hundred dollars given in lien of the article men-
1 Roberts v. Moudy, 30 Neb. 683 ; 46 State v. Read, 94 Ind. 103 ; Eltsroth
.-N. W. 1013. T. Webster, 15 lad. 31 ; Pat« t.
2 State V. Kane, 42 Mo. App. 353. Swann, 7 Blackf. 500.
3Robinson V.Hughes, 117 Ind. 298; ,
774 EXEMPTION OF'PEESONALTT.
tioned in subdivision 6 of section 234:3.'" But the title to
the property claimed by the wife, under the circumstances,
did not vest in her. She acquired only the right of posses-
sion in behalf of the family. The exempt chattels having
been converted into money, the garnishment was sustained.*
There being no realty, and the husband having absconded,
personalty may be claimed by the wife, in lieu of homestead :
she acting as the head of the family.'
When a childless, deserted wife had sold four hundred dol-
lars' worth of her husband's property, which was afterwards
seized for his debts — and when she took it back after the
levy — she was awarded the exemption as though at the head
of a family.*
Resident: Where exemption was a privilege accorded only
to residents, a question arose whether a claimant who had
domicile where he claimed, but who was living in another
state, was entitled? The court, because the law conferring
the privilege was remedial and to be liberally construed, al-
lowed the claim. And it should be added that the absence
was considered temporary.' Domicile, without actual resi-
dency, has been held insufficient.* Where the absence was
probably permanent, the wife of the absentee was allowed to
claim household goods, she being deemed the head of , the
family under the circumstances. She had averred herself to
be such head, and a resident and not a homestead-holder, thus
bringing herself within the list of those entitled to cla,im. The
court recognized her right, and said that " to hold that by
the departure of the husband the family would be deprived
of the right to hold such property, would in effect destroy
the beneficent purpose of the exemption laws." ' But an in-
tention to leave the state, suspension of business, and the
taking of machinery (claimed as exempt) to a railroad station
1 Steele v. Leonori, 38 Mo. App. «Munds v. Cassidey, 98 N. C. 558.
676, 682; citing Mahan t. Scruggs, 29 See Post v. Bird (Fla.), 9 So. 888.
Mo. 283 ; State v. Kurtzeborn, 3 Mo. ' Hamilton v. Fleming, 36 Neb. 840,
App. 337. , citing Frazier v. Syas, 10 Neb. 115.
2 J6. See Schaller v. Kurtz, 25 Neb. 655;
estate V.Wilson, 31 Neb. 463; 48 State v. Wilson, 31 Neb. 463; 48
N. W. 147. N. W. 147 ; Fi-eehling v. Bresnahan,
* Berry v. Hanks, 28 111. App. 51. 61 Mich. 540.
5 Birdsong v. Tuttle, 52 Ark. 91.
WHO MAY CLAIM. 778
for shipment to a place beyond the state, do not make the
debtor a non-resident or affect his exemption privilege.'
"When exemption is confined to residents, an applicant must
allege himself to be such, and he must prove it unless relieved
by presumption.^ It has been held in some states that the
residency need not be permanent,' while in others the de-
cisions have been otherwise.* It must be actual — not cbn-
structive.'
Alienation or abandonment: When a husband has legally
sold or mortgaged his exempt personal property, such as a
stock of goods, to enable himself to carry on his business, his
wife cannot interfere, or subsequently claim that property.
If attached, or levied upon under execution, and the husband
releases his exemption right where he alone may legally do
so, the wife cannot set it up."
Can one claim after an abortive attempt to convey? A
debtor gave his wife a bill of sale, and notified the seizing
officer of the fact when submitting his schedule. As the bill
proved defective, the court required the oflicer to hold the
conveyed property. The>debtor could yet make his selection
from that property — the court holding that, though the title
had passed from him to his wife " as between themselves," it
had not, " as against the rights and interests of third per-
sons." Creditors, therefore, could look to the property if not
claimed as exempt by the debtor."
If property has been abandoned by the husband, it is
held that the wife cannot claim exemption.' This may be
modified by circumstances. If the household goods, necessary
to tlie family life, be wantonly abandoned by the husband,
the spirit of many statutes would allow her to interpose a
claim in behalf of herself and her children.
- Artisans and debtors without fa/milies: This section does not
include all classes who may claim exemption. Mechanics and
1 Wood V. Bresnahan, 63 Mich. 614, < Hawkins v. Pearce, 11 Humph.
distinguishing McHugh v. Curtis, 48 44 ; Finley v. Sly, 44 Ind. 266.
Mich. 262. * Bramble v. State, 41 Md. 435, 441.
2 McKenzie v. Murphj', 34 Ark. 155. « Charpentier v. Bresnahan, 63 Mich.
3 Abercrombie v. Alderson, 9 Ala. 360 ; Howell's Stat, § 7686, par. 8, 9.
981; Lowe v. Stringham, 14 Wis. 'Houk v. Newman, 2611L App. 23a
[*323], 241; Hill v. Loorais, 6 N. H. SMcNair v. Reisher, 8 Pa. Ca Ct
263 ; Haskill v. Andros, 4 Vt 609. 494.
776 EXEMPTION OF PERSONALTY.
others, and all debtors who may claim as such without regard
to family headship under some statutes, will be sufficiently
noticed in the four following chapters.
§ 6. How to Claim.
'When execution is pending, the debtor may select his ex-
emptions and claim them in any way that is intelligible to the
officer.' Whatever words convey the meaning as to what is
claimed will be sufficient. Designating the selected chattels
as "free property" to distinguish it from what had been
mortgaged and assigned was held sufficiently explicit when
the sheriff already had a list with some chattels marked as
" mortgaged," and some as " assigned " and others not quali-
fied.* The claim, however, must be made intelligible to the
officer.' When two claimants of exemption signed one peti-
tion, the claim was held good as to each.*
It must not be inferred, from the rule that any substantial
compliance with the law requiring th^ application will suffice,
' that a prescribed method of procedure is unimportant. The
claimant must fulfill all the conditions precedent to the award-
ing of his exemption, and he is not relieved therefrom by a
liberal construction of the statutory requirement.'
The making of a selection, filing a schedule of property,
making oath to the schedule, and doing what is essential to
enable the officer to have appraisement made, are indispen-
sable requisites to the setting apart of the exempt portion ; are
conditions precedent to the granting of the exemption ; and
the courts require strict compliance on the part of the debtor.*
There is an exception to this strict rule : if the debtor's whole
possessions are less than the exemption, and he claims, the
other conditions need not be observed.'
The claim, or demand upon the officer, must be in writing,
if the statute requires it ; and it must be signed by the appli-
» Norfchup V. Cross (N. D.), 51 N. W. « lb.; Amend v. Smith, 87 111. 198 ;
718; Comp. Laws, §§ 5128-5133. Biggs v. McKen^ie, 16 111. App. 286;
2/d Menzle v. Kelly, 8 111. App. 259.
s Zielke v. Morgan, 50 Wis. 560. '' Cole v. Green, 21 111. 103 ; Howard
.'Stanton v. French, 83 Cal. 194; v. England, 35 Minn. 388 ; McAbe v.
S3 P. 355. Thompson, 27 Minn. 134 ; Murphy v.
. i^StalUngs V. Read, 94 Ind. 103; Sherman, 25 Minn. 196; Lynd v.
Smith V. Slade, 57 Barb. 641. Picket, 7 Minn. 128.
WHEN TO CLAIM. 777
cant or his agent, and delivered to the officer — though leav-
ing it with the officer's wife has been held sufficient.^ The
exemption may be orally claimed, when there is no particular
method prescribed.^ But if the article thus claimed should be
afterwards sold, it will not be exempt, in the purchaser's
hands, from execution against the vendor; and the claimant
cannot recover damages if an officer who goes on to sell re-
gardless of his claim, unless there has been an affidavit of it
made,' or there is some means of proving that the claim was
demanded. Failure to claim, in some form, before execution
sale, is a forfeiture of the exemption privilege ; * but almost
any means of conveyance to the officer, of the fact that the
privilege is asserted, will suffice. It is not essential that the
applicant admit himself to be indebted. When the head of a
family applies, he need not aver ownership in himself.* So, a
wife applying, need not aver that the ownership is in her hus-
band, though such be the case ; the application for personal
property exemption will hold good without such averment in
her petition, if the fact appears in her affidavit and list of
creditors making parts of the record.'
Exempt property loses its character, as such, by being
transferred ; a note, by being assigned, for instance.'' If the
character depends upon its owner's pursuit of a mechanic art,
the abandonment of the pursuit destroys the right of exemp-
tion.^
§ 7. When to Claim.
The time of claiming is far more important than the man-
ner of it. It has been held that selection must be made and
exemption demanded before suit is brought, when the suit is
for rent and the property is distrained.' Ordinarily, however,
claiming is in time if made before the levy. It may be made
afterwards if the officer failed to give the debtor notice be-
1 Bryan v. Kelly, 85 Ala. 509. ' Cartwright v. Bessman, 73 Ga.
2 McCluskey v. McNeely, 8 111. 578 ; 189 ; Coffee v. Adams, 65 Ga. 347
People V. Palmer, 46 111. 403 ; Cook v. (a homestead case). S^e Jones v.
Scott, 6 111. 333. Crumley, 61 Ga. 105.
8 Simpson v. Simpson, 30 Ala. 235. ' Lane v. Richardson, 104 N. C. 642.
*Gresham v. Walker, 10 Ala. 370. s Willis v. Morris, 66 Tex. 628.
5 Bras well v. JiIcDaniel, 74 Ga. 319 ; » Lindley v. Miller, 67 111. 244
Gen. Code, §2040+.
778 EXEMPTION OF PBES0NA.LT5r.
Jore. The debtor must not delay for an unreasonable time
after knowing, or having notice, that execution is pending
against his property. What is reasonable time? That often
depends upon circumstances. Waiting a month, after notice,
has been held fatal to his privilege.' The claim need not
always be before the levy. Usually it may be at any time
before the sale. Either before or after the levy, the debtor
may file the schedule of his property and claim, of the officer,
the release of his exempt portion.' At any time before the
beginning of the sale, he is allowed to claim in some states.'
Even after the beginning, he has been permitted to claim.*
It is better for him, however, to remember the legal maxim :
" The law favors the vigilant," and the common adage: " De-
laysi are dangerous," if he wishes to avoid the question of
waiver on his part.'
The applicant may withdraw his claim.'
In exposition of a statute it is held that chattels which are
exempt not absolutely, but qualifiedly, must be claimed before
any suit for conversion will lie against the sheriff for selling
them under execution, or to recover from him the identical
articles. The claim, if not made to that officer directly, must
1 Griffin v. Maxwell, 33 111. App. 405. * State v. Emmerson, 74 Ma 607.
2 Daniels v. Hamilton, 52 Ala. 108; ^A right to claim may be lost by
Jordan v. Autrey, 10 Ala. 336. laches. Burk v. Gleason, 46 Pa. St
3 Miles V. State, 73 Md. 898; State 297; Alden v. Yeoman, 39 lU. App.
V. Boulden, 57 Md. 320; Common- 53, in which there was failure to claim
wealth V. Boyd, 56 Pa St. 403 ; Bair within ten days after notice of exeou-
V. Steinman, 53 Pa. St. 433 ; Diehl v. tion, Act of 1887 ; Griffin v. Maxwell,
Halben, 39 Pa. St. 213 ; Rogers v. 23 III. App. 405, in which the delay
Waterman, 25 Pa. St 184 ; Diffen- of a month proved fatal. The cred-
dorfer v. Fisher, 3 Grant, 30; Bow- itor must claim in time and com-
yer's Appeal, 31 Pa. St 310 ; Weaver's ply with all the conditions. .16. In
Appeal, 18 Pa. St 307 ; Miller's Ap- Wright v. Deyoe, 86 111. 490, it was
peal, 16 Pa. St 300; Hammer v. held too late to claim on the day
Freese, 19 Pa, St 355 ; Wright v. after levy, when the debtor was duly-
Deyoe, 86 III. 490 ; People v. Palmer, notified before. The officer may-sell
46 111. 398 ; Butt v. Green, 29 O. St unclaimed property with impunity,
667. See Morris v. Shafer, 93 Pa. when it is not specifically exempt
St 489. In Appeal of Williamson, lb.; Bingham v. Maxcy, 15 111. 390 ;
132 Pa. St 455, a claim made sixteen People v. Palmer, 46 111. 398 ; Cook
days after the writ had issued was v. Scott,'!- Gilm. 333.
held to be in time, as no day of sale ^ Appeal of Overseers, 95 Pa. St,
had been let, no advertisement made 191.
and no costs incurred.
THE officee's dtjtt. 779
be notified to him by the debtor, before bringlTTgieither ©f the
actions mentioned.^
§ 8. The Officer's Duty.
The question generally is, when there is a contest between
the debtor and the ofiicer relative to exemption, whether the
former was at fault for not claiming, or the latter at fault for
selling without setting absolutely exempt property apart, or
selling without giving opportunity for selection when the ex-
emption was conditioned upon its being claimed. The officer
in charge of an exemption must go on with it, leaving the ex-
emptionist to claim his privilege or let it alone ; he is not re-
quired to risk a suit against him by the creditor for not doing
his best to collect the money due under the judgment; and he
is not obliged to stand between two fires, liable to receive the
shot of one while dodging that of the other. The true rule
seems to be that he must take note of the absolute exemptions,
and that he can disregard them only at his peril ; that he must
afford what facilities the law requires him to give, when the
exemption is subject to the debtor's claim ; that beyond this,
he may not go without incurring the just charge of failing to
execute the writ in the interest of the judgment creditor.^ But
he is not bound to heed the statements of the creditor. When
there has been no waiver, and the sheriff knows that exemp-
tion is claimed, he cannot disregard the debtor's rights on the
assertion of the creditor that those rights have been forfeited.'
When the officer, by any means, disallows the debtor's
rig^ht and opportunity of claiming, the debtor may follow the
goods into the hands of the purchaser at the sale and recover
them, or he may recover their value of the officer — especially
when the goods consist of provisions for the six months ensu-
ing, which the law protects for the benefit of the family.* If
1 Wilcox V. Howe, 59 Hun, 268, Dains v. Prosser, 32 Barb. 291 ; Baker
271 ; N. Y. Code Civ. Proc, §§ 1390, v. Brintnall, 52 Barb. 188 ; Smith v.
1391 ; Russell v. Dean, 80 Hua, 242; Hill, 22 Barb. 656.
Turner v. Borthwick, 20 Hun, 119; 3 Williamson v. Krumbhaar, 132
Baker v. Brintnall, 53 Barb. 188 ; Pa. St. 455. See Larkin's Estate, 133
Anderson v. Ege, i4 Minn. 216 ; Long- Pa. St. 554. y
ley V. Daly (S. D.), 46 N. W. 247; < Stillson v. Gibbs, 53 Mich. 280,
Comp. Laws of Dak., § 5126. Cooley.C. J. ; Town v.Elraore,38 Mich.
2 See generally on this subject, 305 ; Wyckofif v. Wyllis, 8 Mich. 48.
780 EXEMPTION OF PEESONALTT.
the officer makes selection for the debtor, preventing the lat-^
ter from choosing for himself, he is responsible. Where, in
making the selection himself, he set apart to the debtor cer-
tain mortgaged property which was worth nothing beyond
the mortgage, he was held to have defrauded the debtor.^ The
officer is bound to give the debtor opportunity to make his
own selection, whethe'r the property be levied upon, attached
or subjected to garnishment.^ " He must apprise the defend-
ant of his rights. He must yield to the defendant's selection,
and release to him the property selected up to a prescribed
limit of value. He is invested with authority to ascertain the
value by appraisement, and to give full efficacy to the law's
bounty. He must pay over to the defendant his share out of
the proceeds of a sale. In short, the whole subject-matter of
the debtor's protection seems committed to the officer, and
none other is designated for any step in the process." ' If, in
the exercise of these powers, the officer go wrong, the parties
may correct him by resort to the court. For instance, the de-
fendant may take from an officer, by replevin, personal prop-
erty which is exempt, when no opportunity to claim has been
given him, and the execution is premature.* Or, under some
circumstances, a levying officer may be prosecuted criminally
for the contravention of a statute imposing duties upon him .
relative to absolute exemption — the act being made a mis-
demeanor.' It would be otherwise when exemption is not ab-
solute."
The officer is none the less bound to do his duty towards
the defendant, in respect to the exemption claimed, though he
1 Bayne v. Patterson, 40 Mich. 658, horse belonging to one Boyd, the
Campbell, C. J. head of a family, who was a farmer.
- State V. Barada, 57 Mo. 563 ; State He sold under a writ in his official
V. Eomer, 44 Mo. 99 ; Mahan v. capacity as constable. The act posi-
Scruggs, 39 Mo. 383 ; Garrett v. tively exempted " one farm horse,"
Farmer, 31 Mo. 160. See Gregory v. etc. The prisoner was found guilty
Evans, 19 Mo. 361 ; Gordon v. Mc- and fined.
Curdy, 36 Mo. 304 ; Wimer v. Pritch- 6 When one of sevei-al articles is
artt, 16 Mo. 353 ; State v. Kane, 43 exempt, and the defendant has not
Mo. App. 353. chosen till the levy, he has been al-
' State V. Barada, supra. lowed to take one levied upon by re-
* Clark V. Bond, 7 Bax. 388. placing it with another which he
» State V. Haggard, 30 Tenn. 390. does not choose to retaia Pyett v.
Haggard wae indicted for selling a Rhea, 6 Heiek. 137.
THE officee's dutt. 781
holds an indemnity bond from the plaintiff who urged him to,
go on and selU He must inform the debtor of his exemption
rights, unless the debtor claims all the property levied upon
as exempt.^
The owner himself is the only proper party to proceed
against an ofiBcer to recover for the conversion of his prop-
erty. It is a good defense to deny the plaintiflE's ownership
or legal right of possession. The ofBcer, in levying, upon
property under the writ, does not thus so affirm it to belong
to the defendant as to preclude himself from "denying the
ownership when sued for false levy. The officer is not es-
topped by his official act.'
Until the debtor has claimed exemption in seized pi;operty,
he cannot take it. from the officer by replevin; for the officer
had the right to seize, though no right to hold after claim
duly made, when the property belongs to a class from which
^election is to be made.* It is true that the officer is presumed
to khow the law and is bound to respect it, in relation to ex-
emption as well as to any other matter ; ^ and there is a pre-
sumption that the debtor will claim;" yet he cannot know
assuredly that he will when the exemption is not absolute.
Though the debtor may have claimed generally ^' the exemp-
tion allowed by law," the officer is not to blame for going on
with the sale when the debtor failed to appear at the time
appointed to make his selection.' The unavoidable absence
of the debtor may excuse his failure to claim such necessary
household goods as beds and bedding, especially when the
officer knew of their exempt character from their being claimed
in a former suit.'
In a suit against a sheriff for refusing to allow the debtor
to select personal property exempt by statute, the allegation
that the sheriff by his deputy did convert it to his own use is
1 Coville V. Bentley, 76 Mich. 248. * Tullis v. Orthwein, 5 Minn. 305.
2 Smythe v. Kane, 43 Mo. App. 253 ; & Maxwell v. Reed, 7 Wis. 493.
Brown V. Hoflfmeister, 71 Mo. 411. 6 state v. Harper, 120 Ind. 23.
sCassell y. Williams, 12 111. 387; 'Butt v. Green, 29 O. St 667;
Ice V. McLain, 14 111. 64 ; Cook v. Frost v. Shaw, 3 O. St. 270 ; Twinam
Scott, 1 Gil. 844. See Arenz v. Reihle, v. Swart, 4 Lansing, 263.
I Scam. 340. » Haswell v. Parsons, 15 Cal. 366.
7S2
EXEMPTION OF PERSONALTY.
sufficient averment that the deputy was acting under the de-
fendant as sheriff.'
An officer, who departs from his line of duty, is liable at
every step, but he is not to be denied his proper defenses.'
§ 9. Limitations.
The debtor is not entitled to two or more exemptions be-
cause two or more executions are pending against him. If
specified chattels, or a sura of money to be reserved him from
the proceeds of executed property, be saved to him by the
statute, he can get no more because several different creditors
have brought separate suits against him. If his horse is ex-
empt, he may claim the exemption of that one horse against
each attack, and have his horse after all the execution sales
are over, and only that one horse.' Two exemptions are
" quite contrary to the spirit of the statute " granting one ; *
rather, the exemption of two things, when the statute author-
izes that of one, would be contrary. It does not matter if, in-
1 Hutchinson v. Whitmore (Mich.),
51 N. W. 451, distinguishing, as to
right of selection, McCoy v. Brennan,
61 Mich. 363. How. Stat, ch. 266,
§ 27 (8).
2 An officer charged with making
an unlawful levy upon a horse was
denied the right to prove that the
debtor had other horses, which de-
nial was held, on appeal, to have been
error. Gass v. Van Wagner, 63 Mich.
610. An officer was declared a tort'
feasor for selling exempt property
that had been duly claimed by the
debtor. McCoy v. Bi-ennan, 61 Mich.
363. But if the debtor, claiming ex-
empt property from that which is non-
exempt, do not turn over the latter
to the officer, he cannot recover the
statutory penalty from him for disre-
garding the claim, in Illinois, Udell
V. Howard, 28 111. App. 134 ; McMas-
tors V. Alsop, 85 111. 157. An officer,
who has levied upon a debtor's prop-
erty from which the lattar selects as
exempt what he is privileged to
choose under the law, becomes a
trespasser if he cpntitiues to hold the
exempt portion after the selection
and demand of surrender. Hombs v.
Corbin, 34 Mo. App. 393, S99; Baily
V. Wade, 24 Mo. App. 190 ; State v.
Barada, 57 Mo. 563. If the selection
be delayed till the very eve of the
sale, the officer must heed it; State
V. Emraerfeon, 74 Mo. 607. If the prop-
erty claimed be indivisible and ex-
cessive, the officer must have an ap-
praisement made; and, were he tp
go on and sell without it, he would
lay himself liabla Glendon v. Har-
rington, 33 Mo. Appi 476; State v.
Kurtzeborn, 2 Mo. App. 335^ State v.
Finn, 8 Mo. App. 261 ; State v. Car-
roll, 9 Mo. App. 275. If all the prop-
erty levied upon is absolutely exempt,
the officer is not to await the claim-
ing, but surrender it. Harrington
V. Smith, 14 Colo. 376. It is only in
case of excess that the debtor must
claim. Behymer v. Cook, 5 Colo.
399.
s McCreary's Appeal, 74 Pa. St 194
<^Eberhart's Appeal, 39 Pa. St 512.
LIMITATIONS. 783
stead of two executions of the same sort, one is under an
attachment ; the rule that the one exemption cannot be allowed
in each (so that the debtor would retain six hundred dollars
instead of the statutory three hundred) is the same.^ "Were
the rule otherwise, the debtor Hiight grow rich upon his ex-
emptions, if daily executions were leveled against his prop-
erty. But the debtor is entitled to his one exemption every /
time he is sued. One horse might run through twenty law-
suits. The fact that wages have been held exempt in the suit
of Green against Blue does not prevent the same sum from
being held exempt in the several suits of White, Black and
Gray against Blue. It has been held that where thirty dollars
are exempt when due as the wages of a mechanic, and he has
already been allowed small sums, in small suits, amounting to
the maximum, he yet may successfully plead exemption in aur
other suit.^
Exemption has been allowed when claimed under an alias
execution, after allowance under the first writ.'
The right to claim to a certain amount, or to a certain num-
ber of things, includes the right to claim less.* A statute ex-
empted one horse not exceeding a hundred dollars in value,
but allowed other personalty to be selected to the amount of
an additional, equal sum. The debtor claimed a horse worth
more than the sum named, but less than that Of the whole
allowable chattel exemption. The provision was construed
favorably to the claim. The court said : " A thing named in
a statute is not within its provisions uflless it be within the
intention of the framers of the act. . . . TJnless this claim
is sanctioned, then we find a person with property not within
the letter . . . but within the spirit and reason . . .
who could have no benefit. ... To hold that he cannot
claim this property is to hold that he may be stripped of all
the property of this class that the lawmaker intended he
should hold.'"
If the debtor select indivisible property worth more than the
1 Vogelsong v. Beltzhoover, 59 Pa. » Chatten v. Snider, 136 Ind. 387 ;
St 57. Compare Chatten v. Snider 26 N. E. 166.
(Ind.), 26 N. E. 166. * Cornelia v. EIHs, 11 III. 584. ,
2 Waite V. Fransiola,-^?0 Tenn. 191 ; " lb.; Good v. Fogg, 61 111. 449.
16 8. W. 116.
784 J EXEMPTION OF, PEESONALTF.
amount exempted, he cannot retain it by paying the excess,
it has been held in exposition of a statute specifying certain
classes of articles of stated value as susceptible of selection and
claim by the debtor.*
§ 10. Money in Lien of Chattels.
It has been held that a debtor entitled to retain a certain
amount of goods estimated by money cannot claim the money
itself in lieu of the goods.^ Where three hundred dollars'
worth of property was allowed by law, in a case involving
this point the court said: "We are of the opinion that a
debtor cannot, under any circumstances, entitle himself to
the $300 of the money for which his personal property sells
at sheriff's sale. The act speaks of property, not money. It
requires him to elect the goods he wishes to retain and have
them appraised; and property thus chosen and appraised
shall be exempt from levy and sale. This excludes the idea
that he is to have his choice between retaining the property
and demanding money out of the proceeds. There are sound
reasons why he should take the goods or take nothing. The
law was made for the benefit of the families of debtors rather
than for the debtors themselves; and a family stripped of
every comfort might not be much better of $300 in the
pocket of a shiftless father. Property which appraisers would
value at $300 might not sell for the half of it ; and if debt-
ors had this choice it would deprive the creditors of twice as
much property as the law intended to take from them." This
argument may be easily turned around so as to act like a
boomerang; for the property might sell for twice as much
as the appraisement, and thus the creditors might be bene-
fited by allowing the cash claim. But finally, the true rea-
son appears : the law says so. " The act . . . gives the
right of designating [the articles] to the debtor himself, fixes
the quantity of them by their value and points out the mode
of ascertaining thai value."' The statute referred to ex-
empted threp hundred dollars' worth of properiy ^ not mov-
ables merely. If indivisibJe real estate is to be sold, must a
piece of that value be cut off for the debtor before sale?
1 Cook V. Scott, 6 111. 333 ; Waldo v. 2 Young v. Boulden, 57 Md. 314.
Gray, 14 111. 184. SHaumier v. Freese, 19 Pa. St 255.
CHATTELS IN LIED OF HOMESTEAD. T85
'No — he is allowed that sum from the proceeds of the sale
of the whole, provided he put in his claim in due time. This
is expressly required by the statute ' Even movables sold
by execution under such circumstances as to deprive the ex-
emptionist of his opportunity of claiming the allowed portion
of the things themselves may be substituted by their value in
money from the proceeds of the sale,^ and if the debtor's
property, seized under execution a,nd sold, be not suscep-
tible of division, he ought to be allowed the value of his
exemption from the proceeds of the sale. This has been
allowed under statute,' but may be understood when the
statute is silent on the point, yet not inhibitory ; for he is
entitled to his slice from the indivisible lump, and the only
practical way of giving it to him is to transform the article
to cash and give him his portion. This is in case of fbrced
sale. "When exempt chattels are voluntarily sold by their
owner the proceeds are not exempt unless the statute makes
them so.* If chattels specifically exempt have been sold under
execution and the proceeds are in the sheriff's hands, the
money cannot be reached by creditors.' But it has been held'
that money due for damage to exempt property is subject
to a different rule, and is not exempt.'
§ 11. Chattels in Lieu of Homestead.
When the statute gives chattel exemption only to those
not entitled to homestead, curious situations sometimes are
presented ; as, for instance, a claimant denied because he did
not prove himself an unmarried man. He had labored in the
production of a crop, and claimed i third part of it, under
statute. The court said that the express object of the pro-
1 Miller's Appeal, 16 Pa. St. 300. Jones v. Ehrlisch, 65 Ga. 546. See
2 Smith V. Slade, 57 Barb. 637. This Moultrie v. Elrod, 23 Ga. 393.
decision was under a statute not quite 3 Bramble v. State, 41 Md. 435
like that under which those of Penn- State v. Boulden, 57 Md. 318 ; Md,
sylvania were rendered. See Seaman Code, art. 83, g 10.
V. Luce, 33 Barb. 243 ; Lockwood * Harrier v. Fassett, 56 Iowa, 364
V. Younglove, 37 Barb. 506. The Friedlander v. Mahoney, 31 la. 811
$1,000 exemption, under the Georgia Carty v. Drew, 46 Vt 346 ; Knabb v,
constitution of 1877, could not be Drake, 33 Pa. St. 489.
claimed in money. Johnson v. Dobbs, ' Howard v Tandy, 79 Tex. 4S0
69 Ga. 605. So under Georgia con- Cone v. Lewis, 64 Tex. 332.
stitution of 1868 and Code, § 3016. « Johnson v. Edde, 58 Miss. 664.
786 EXEMPTION OF PEESONALTY.
vision invoked was " to secure exemption in the natv/re of a
homestead, of one-third of the yearly ' products or earnings,'
to every person ' not being the head of a family,' and not to ^
persons who are heads of families, as they have the right to
the homestead exemption, in a proper case, by laying claim
thereto as provided by law. In order to obtain the benefit
[of one-third the crop] ... it devolves upon the re-
spondent to show that he ' is not the head of a family.' " ^
The usual ground for granting chattel exemption in lieu of
homestead, under the few statutes providing for such substi-
tution, is not that the condition of family headship is wanting
but that another condition is lacking — ownership of realty.^
In such case, having a wife is no obstacle to the substitution ;
she may even be the claimant of the benefit when she, as well
as her husband, is landless.' A tenant by the year was al-
lowed chattel exemption, under such a statute, on the ground
that his leasehold was not such ownership as the legislator
contemplated when cutting off land-holders from the benefit
of the special provision made for those not entitled to home-
stead.* Ordinarily, leasehold title is suflBcient to support
homestead, as has been shown ; ' but the construction above
given was that of the statute providing for the granting of
chattel exemption as a substitute for homestead.* Thus while
leasehold title is ownership under homestead law, it is not under
the statute mentioned ; but both are in pari materia relative to
the exeraptionist, and therefore he cannot have both exemp-
tions on the paradoxical grounds that he is the owner of real
estate and is not the owner of real estate.
One may own or not, in difi'erent relations. And the same
property may be realty in one relation and personalty in an-
other. Fixtures, for illustration, may take on either charac-
ter. A wind-mill having been attached to a homestead, the
1 Prince v. Nance, 7 S. C. 351. Neb. 90 ; Mann v. Welton, 21 Neb.
2 In Nebraska, $500 of personal ex- 541 ; Nebraska Civ. Code Proc, § 521.
emption is allowed in lieu of home- ' Regan v. Zeeb, 28 O. St 483 ; State
stead to the landless. Cunningham v. Wilson (Neb.), 48 N. W. 147. See
V. Conway, 25 Neb. 615 ; Desmond v. Slanker v. Beardsley, 9 O. St. 589.
State, 15 Neb. 438 ; Swaney v. Hutch- < ColweU v. Carper, 15 O. St. 279.
ins, 13 Neb. 266 ; Williams v. Golden, » Ante, pp. 108, 118.
10 Neb. 432; Chesney y. Francisco, « Ch. 66, Ohio Laws, 48, 50.
12 Neb. 626; State v. Cunningham, 6
CHATTEL EXEMPTION TO "WIDOWS. 787
vendor sued for, the price on notes given therefor, obtained
judgment, issued execution and levied upon the homestead,
treating the mill as an improvement and the debt therefore
not affected by exemption. The defendant to this suit became
plaintiif in an injunction suit to restrain the execution. The
court said, in the injunction case (after stating the general rule
that the character of a fixture, as personalty, depends upon its
separability from the real estate to which it is attached, with-
out injury to the latter) : ^ "In the sale of personal property
that is to be affixed to realty, the contracting parties at the
time of the sale have the power, as between themselves at
least, to fix the status of such property, and to say whether,
when affixed to the realty of t)ae vendee, it shall remain per-
sonal property or become part of the realty." ^ And the court
found that by the agreement of the contracting parties the
wind-mill had remained personalty, and so the injunction was
sustained.'
§^ 12. Chattel Exemption to Widows.
The exemption right of a husband descends to his widow,
when she continues to live at the family home and provides
for the children. A widow sued for, and recovered, a team
of horses and a wagon which had been seized in execution in
a suit against her husband while he was living.* She is en-
titled absolutely to the exempt personalty of her late hus-
band, for herself and the children, by some states ; ^ while by
others, she has the use of the personal property though it is
lOiimgr Walker v. Sherman, 20 Eep. 995 ; Ford v. Cohb, 20 N. Y. 344 ;
Wend. 636. Holmes v, Tremper, 20 Johns. 29.
2 Marshall v.Baoheldor,47 Kan. 442; « Becker v. Becker, 47 Barb. 497;
28 P. 169 ; Fortman v. Geopper, 14 O. Brigham v. Bush, 33 Barb. 596 ; Van
St 558 ; Ben j. on Sales, § 425 ; Tied. Buren v. Loper, 29 Barb. 889 ; Wilcox
on Sales, §§ 88, 85. v. Hawley, 81 N. Y. 648 ; Kneettle v.
8 The opinion concludes as follows : Newcomb, 22 N. Y. 349 ; Woodward
" If said property did not constitute v. Murray, 18 Johns. 400 ; Thompson
an improvement upon the realty, the v. Ogle (Ark.), 17 S. W. 593 (Act of
hornestead would be exempt from 1887, p. 207).
the payment of the debt contracted 5 Gen. Stat. Kansas (1889), ch 88,
therefor, and the sale of the home- § 3 ; Donmeyer v. Donmeyer, 43
stead to satifefy such debt should be Kan. 444 ; Thompson v. Alexander,
enjoined." Eaves v Estes, 10 Kan. 11 Heisk. 313 ; Merriman v. Lacefleld,
814 ; Railroad Co. v. Morgan, 42 4 Heisk. 209, 220 ; Vincent v. Vincenii
Kan. 28, 31 Pac. Rep. 809, 23 Pac. 1 Heisk. 348; Bayless v. Bayless, 4
188
EXEMPTION OE PEESONALTT.
not absolutely at her disposal.^ Her right to the exemption
does not depend upon need, as a general rule.^
When there is a speciiic sum exempt by statute in favor of
the widow, she takes it absolutely from her husband's estaije ;
and should she die before receiving it, her administrator may
recover it.' In a state where she may claim money, instead
of specific chattels, from her husband's estate,* she must
claim before the property of the estate has been sold, by
the administrator to pay debts.' As the privilege of claim-
ing is personal, she must exercise it promptly ; * and her fail-
ure to claim, or to demand an appraisement, is waiver.' Her
right does not always depend upon the solvency or insolvency
of the estate,^ but the time of claiming the exemption may
depend upon it. If the estate is solvent, claim may be made
at any time before the administrator's final settlement.' The
widow's right to her exemption vests immediately upon the
death of her husband, as to his specifically exempt chattels,"*
so that her heirs would inherit them from her if she should
die before receiving them.'^ In one state, she takes her exemp-
tion amount absolutely, as to the creditors of the estate, but
not as to the children of the deceased. Whether she must
give security or not depends upon the existence of such chil-
Coldwell, 359; Myers v. Forsythe, 10 ^Pa. Stats, of 1851, 1859; Seller's
Bush, 394; York v. York, 38 111. 522 ; Estate, 82 Pa, St. 153; Peterman's
Jordan v. Strickland, 43 Ala. 315 ; Appeal, 26 P. F. Smith, 116 ; Baldy's
Fowler v. Gilmore, 30 Tex. 433 ; Pas- Appeal, 4 Wright, 338. Compare
chal's Dig., art. 3798. See Longley v. Hufman's Appeal, 81 Pa. St 329.
Daily (S. D.), 46 N. W. 247. > Lyman v. Byam, 38 Pa. St 475.
1 Meyer v. Meyer, 33 la. 359, 377; « Burk v. Gleason, 46 Pa. St 397.
Paup V. Sylvester, 23 la. 371 ; Geskell 'Davis' Appeal, 34 Pa. St 256;
V. Case, 18 la. 147; Wilmington v. NefE's Appeal, 9 Harris (Pa.), 247;
Sutton, 6 la, 44. See Van Doran v. Weaver's Appeal, 6 Harris (Pa.), 309.
Marden, 48 la. 186, as to the differ- 8 Compher v. Compher, 25 Pa. St
ence between homestead and chattels 31 ; Mason v. O'Brien, 43 Miss. 420,
in respect to the exemption claim of 427.
the widow. Wally v. Wally, 41 Miss. ' Thompson v. Thompson, 51 Ala
648 (Act of 1860) ; Whitley v. Steph- 493.
enson, 38 Miss. 115 ; Coleman v. lo York v. York, 38 111. 533.
Brooke, 37 Miss. 71. ii lb.; Hastings v. Myers, 21 Mo.
2 Chism V. Chism, 41 Ala. 327 ; 519. See Kellogg v. Graves, 5 Ind.
Johnston v. Davenport, 42 Ala. 317. 509 ; Downs v. Downs, 17 Ind. 95 ;
3 Hastings v. Myers, 21 Mo. 519, Sheldon v. Bliss, 4 Seld. (N. Y.) 34
under Mo. E. S. of 1845, p. 77.
"^ CHATTEL EXEMPTION TO WIDOWS. 789
dren.' If the decedent has, left children but no widow, they
take the exempt property.^ But it does not follow, from the
right of the children to claim exempt personal property from
the estate of their father, that they may also claim it from
the estate of their mother.'
It was held, where the widow has her election between
chattels and the money allowed by statute, and allotment to
her has been made, the probate court cannot set the award
aside ex mero motu.^
It is the duty of the executor or administrator of the estate
of her deceased husband to set it apart to her, upon her de-
mand, without unnecessary delay; but if she has helped her-
self to it, she cannot hold his administrator in damages for not
having set it apart to her.'
Where it is the duty of the probate court to set apart per-
sonal property, for the use of the widow and children of a de-
cedent, to an amount not exceeding fifteen hundred dollars in
addition to specific chattel exemptions, in obedience to statute, '
it is held that this additional property is not to be administered
as assets of the decedent's estate, nor distributed to his heirs.
It becomes the absolute property of the widow when there is
no minor child.*
The probate court's allowance for the support of the widow,
from the estate of the decedent, is not attachable for her
debts.' The purpose is to provide for her personal wants and
those of the bereft family.^ It has been held that she was
entitled to nothing as the widow, when she had deserted her
husband and was living apart from him when he died.' Aliter,
when he had deserted her."
1 Succession of Hunter, 13 La. Ann. relative to the exempt $300 to the
257; Succession of Tassin, 13 La. widow.
Ann. 885. ^ North Dakota Comp. L., §§ 5778-9,
2Whitcomb v. Reid, 31 Miss. 567; 5784; Fore v. Fore's Est. (N. D.), 50
Edwards v. McGee, 37 Miss. 92; N. W. 712; Rank v. Freeman, 1 N.
Lowry v. Herbert, 35 Miss. 101. D. . 46 N. W. 36. See Mann v.
8 Davenport v. Brooks, 93 Ala. 637 ; Welton, 21 Neb. 541.
9 So. 153. ' Barnum v. Boughton, 55 Ct 117.
iEx parte Reavis, 50 Ala. 310; SHettrick v. Hettrick, 55 Pa. St
Carter v. Hinkle, 13 Ala. 539; Ala. 393; Spier's Appeal, 36 Pa. St. 234.
Act of 1873. " Ordiorne's Appeal, 54 Pa. St. 175 ;
6 Lyman v. Byam, 38 Pa. St 475, Dillinger's Appeal, 35 Pa. St 357,
10
Terry's Appeal, 55 Pa. St 844
790 EXEMPTION OF PEESONALTT.
When chattel exemption is given to a widow and orphan
children, as such, it is not meant to inure to the benefit of her
second husband.*
If a widow is entitled to a specific sum from her husband's
estate, exempt from liability for his debts, she must claim the
right and claim it in due time. Three years' neglect has been
held fatal to her privilege. If, by direct waiver (or by such
laches as will be equivalent to it), the widow gives up her
exemption, her executor cannot claim it for her after her
death.2
A widow having claimed exemption from her deceased hus-
band's estate in due time should not have the neglect of the
proper officer imputed to her. She is guilty of no laches ; so,
a second appraisement of the estate may be made as late as
three years after the death of the decedent, when no interests
have intervened to be affected by it. Confirmation of the ap-
praisement, under such circumstances, may be made nuno^pro
lyenn. Code (M. & V.), § 3128; SMachemer's Estate, 140 Pa. St.
(T. &S.), § 2388; Sneed v. Jenkins, 90 644; Kerns' Appeal, 120 Pa. St. 523.
Tenn. 137. 3 Williams' Estate, 141 Pa. St. 436.
* For further as to chattel exemption to widows in Alabama, see gener-
ally. Chandler v. Chandler, 87 Ala. 800 ; Little v. McPherson, 76 Ala. 552 ;
Ex parte Pearson, 76 Ala. 521 ; Mitcham v. Moore, 73 Ala. 54; Henderson's
Adm'r v. Tucker, 70 Ala. 881 ; Hunter v. Law, 68 Ala. 365 ; Darden v. Eeese,
62 Ala. 34
OHAPTEE XXV.
THINGS EXEMPT.
1. Household Goods.
3. Furniture of Hotels, Boarding-
houses, etc.
3. Clothing, etc., Worn on the Per-
son.
4. Tools of Mechanics and Others.
5. Machinery.
6. Printing Presses, Types and Ma-
terial.
7. Wagons and Other Vehicles.
§ 8. Domestic Animals.
9. Things Needed in, Business;
Stock in Trade.
10. Merchants' Stock in Trade.
11. Crops and Provisions.
13. Books, Pictures, Musical Instru-
ments, etc., Outfits of Fisher-
men and Miners, etc.. Specially
Exempted.
§ 1. Household Goods.
Necessary articles: The furniture necessary to family com-
fort is exempted to some extent in every state. . Articles are
specified as exempt, or goods to a stated value made exempti-
ble, by different statutes with varying liberality. Such things
as beds and bedding, tables, chairs, stoves and kitchei^ utensils
are everywhere necessary: so, when a statute exempts " fur-
niture necessary for the" debtor and his family," such articles
■ are always understood. There may be a question as to the
number of such articles to be allowed as necessary ^ and also
whether carpets, curtains and other things not absolutely es-
sential to sustenance are included in the exemption of merely
necessary household goods ; but the legislator, when not speci-
fying the articles, doubtless means to protect from forced sale
the usual furniture of all housekeepers whether essential or
only conducing to comfort. Ordinarily, the provision is not
made in detail, but is meant to embrace any proper outfit of
a dwelling-house to meet the needs and conveniences of a
family.
In some states the exempted articles are specified minutely ; '
1 New York Code, § 1390 (5) : " utensils, one table, six chairs, six
beds, bedsteads and bedding neces- knives, six forks, six spoons, six
sary for the judgment debtor and plates, six tea-cups, six saucers, one
the family, all necessary cooking sugar dish, one milk pot, one tea pot.
7&2 THINGS EXEMPT.
•while in most of the others, there are a few specijBo exemp-
tions and then a general clause allowing the debtor to select
'up to a given sum. This sum varies greatly in the several
states.
Notwithstanding the general plainness of most of the pro-
visions, there is room for explanation in some of them.' Where
strictness is applied in construing the word necessary as it oc-
curs in statutes relative to household and kitchen furniture,
articles of mere convenience, however useful, have been sub-
jected to execution. Articles not coming under the designa-
tion of furniture, though commonly found in every dwelling
house, are not included in the exemption of household goods.
When the exemption is specific, the articles specified in the
statute (as three beds, twelve chairs, two bureaus, etc.) are
not dependent upon their value, whether they be costly or
cheap ; but when there is monetary limitation only (as house-
hold goods to the value of one hundred or one thousand dol-
lars), the householder may select many articles or few — even
one piece of iurniture worth the maximum — but must keep
within the restriction.
Articles of convenience: The statutes do not all require that
the protected furniture must be necessary to family use. It
has been held that when a debtor's household effects are worth
no more than the exemption maximum, and he is the head of
a family, they cannot be attached whether they be essential
to family use and' comfort or not; so, when the household
goods were used to furnish a hotel kept by the householder,
they were held exempt.^
Not only when execution is pending, but at all times the
householder is privileged to hold the exempted amount free
from liability ; and it has been held that where he had had a
thousand dollars' worth of personalty set off to him, under
one crane and its appendages, one Alsup v. Jordan, 69 Tex. 300 ; Davlin
pair of andirons, one coal scuttle, v. Stone, 4 Cush. 359 ; Copp v. Will-
one pair of tongs, one lamp and one iams, 135 Mass. 401 ; Hitchcock t.
candlestick." The household and Holmes, 43 Ct 528 ; Seely v. Gwillim,
kitchen exemptions of Kentucky, 40 Ct. 293 ; Van Sickler v. Jacobs, 14
'Tennessee, Virginia and some other Johns. 434.
states are also quite minute. 2 Rasure v. Hart, 18 Kan. 340 ;
1 Campbell v. White, 95 N. C. 344; , Mannan v. Merritt, 11 Allen (Mass.),
Vanderhorst v. Bacon, 38 Mich. 669 ; 583.
FPENITUKE OF HOTEIiS, BOAEDING-HOUSES, ETC. 793
the governing statute, he was yet privileged to claim again
when that allowance had been consumed or paid away for
debt under judicial process or otherwise, or exhausted in the
support of his family, or had been lost in any way without
his fault.i
Ornamental articles: The phrase " household and kitchen
furniture " is not narrowly understood. It is not everywhere
confined to articles of necessity, but instruments of music,
ornamental furniture,^ statues and pictures,' have been in-
cluded. This_latitude of rendering has not been universal,
however.* It cannot bo laid down as a rule, in the absence of
statutory enactment, that all articles of taste and vertu siiall
be saved from the official auctioneer's hammer. It would not
do to allow a debtor, in insolvent circumstances, to invest all
he has in a painting by one of the old masters. It would not
accord with justice to his creditors, to allow him to keep such
an article of great value, though he had acquired it when in
affluent circumstances. Whatever deference we pay to his
rank in life and the high social status of his family, we must
not carry it to the point of injustice to others. The creditor
may have rank and station to support as well as the debtor.
To a reasonable extent (whatever that may mean), pictures,
musical instrumeiits, books and various refined and elegant
things are necessary to the well-being of some families ; but,
whether such property can honestly be saved to them as
household furniture must depend upon the letter and spirit of
the governing statute.
§ 2. Furniture of Hotels, Boarding-houses, etc.
Usually it is the furniture of a dwelling-house occupied by
a family as its home and owned by the head of the family
iWeis V.Levy, 69 Ala. 209; Ala. ^xhe words household furniture
Conference v. Vaughan, 54 Ala. 443 ; were treated as including pictures,
Campbell v. White, 95 N. C. 344 ; Cit- statues and bronzes, when employed
izens' Bank v. Green, 78 N. C. 347. in a will. Richardson v. Hall,. 124
2 In Texas, household and, kitchen Mass. 237.
furniture is exempted regardless of < A piano was held to be not exempt
value, and it may include a piano in Wisconsin, because not used for a
and ornamental articles. Alsup v. livelihood. Tanner v. Billings, 18
Jordan, 69 Tex. 300 ; Tex. Rev. Stat, Wis. 175. So also in Vermont Dun-
art 2385. lap V. Edgerton, 30 Vt 3^4. But a
794
THINGS 15XEMPT.
which the law exempts; yet a boarding-house, being kept by
a widow with children, has had its furniture declared exempt,
including that of the boarders' rooms.' But, in fr^e same ju-
risdiction where this was held, the furniture of a restaurant
kept by the head of a family was liable to attachment.^ The
costly outfit of a large hotel not kept by the owner and not
occupied by his family would certainly be liable to attach-
ment and execution; and that of any hotel or restaurant
which is conducted for profit by the owner or his tenant, when
it is not the family home of the claimant, would be liable ; '
and if occupied by his family while the business of entertain-
ing for profit is the principal use, the furniture would be liable
in most states. But it has been held in other jurisdictions
that a'boarding-house keeper is entitled to the exemption of
household goods just as the head of a private family is allowed
it, even though the business of keeping boarders has been
abandoned,^ or the furniture of a family is stored for future
use.^ An outfit, consisting of the various articles necessary to
such business in excess of the needs of a private family, would
not be protected in most of the states where the exemption is
that of household furniture owned by the head of a family.
It would be required, in most of them, that the claimant show
some statutory authorization, other than this, to sustain his
claim to his business furnishings. When, however, the stat-
ute exempts household and kitchen furniture to a stated value,
it would seem a matter of indifference whether the goods be
used by a private family or by boarders. The limitation pre-
vents any abuse of the privilege.
Where the money limit is the only check upon the exemp-
tion, it makes no difference whether the household and
kitchen furniture be used in a private or a public house ; but
articles which do not answer the statutory description of
" household goods," " kitchen furniture," " cooking utensils,"
brass clock was exempt. Leavitt v. 2 Dodge v. Knight (Tex.), 16 S. W.
Metcalf, 2 Vt. 342. See Hart v. Hyde, 636.
5 Vt. 328, and Freeman v. Carpenter, 3 Heidenheimer v. Blumenkron, 56
10 Vt 484. Tex. 308.
1 Mueller v. Kichardson (Tex. Sup.), , * Vanderhorst v. Bacon, 38 Mich.
18 S. W. 693; Texas Rev. Stat., art 669.
2335 ; Race v. Oldridge, 90 111. 250. * Cantrell v. Connor, 6 Daly (N. Y.),
224.
CLOTHING, ETC., WOEN ON THE PEESON. 795
etc., are not protected from forced sale though within the
monetary limitation. A pool table, for instance, is not to be
classed with such articles ; and it has been held not a neces-
sary adjunct to a saloon.' A trunk, a jewel box, and the like,
are not articles of household furniture.^
§ 3. Clothing, etc.. Worn on the Person.
Nothing is more generally exempted from execution than
the clothes of the debtor and his family. What amount is
free from liability is not fixed and uniform throughout the
states. The common-law limitation, to the clothes actually
worn by the debtor and his family at the time of the levy,'
does not now prevail. The clothing requisite for different
kinds of weather, different seasons of the year, work days and
holidays ; for presentable appearance as well as for comfort
and decency, used by the debtor and the members of his fam-
ily, is now generally exempt.*
In the absence of restriction, men may have their heavy
and light overcoats, their business and dress suits ; women
may have extensive wardrobes, brides their elegant and varie-
gated trousseaux; any one may wear and keep for wearing
what the exigencies of the society in which he moves may re-
quire. Clothing which is laid away in bureaus, wardrobes or
trunks, if worn from time to time, is not liable under most of
the statutes.'
It would be proper to inquire whether clothing of unusual
quantity and of costly quality is worn as apparel, in good faith,
or was purchased to defeat creditors. Here the true equi-
table distinction is suggested. If a debtor should attempt to
keep a wardrobe equal to that of the late Empress of France,
she would doubtless find herself beyond the bounds of judi-
cial toleration; for, though there be no express statutory
1 Goozen v. Phillips, 49 Mich. 7. Deposit Bank v. Vickham, 44 How.
2 Towns V. Pratt, 33 N. H. 345. 431; Smith v. Rogers, 16 Ga. 479;
3 Sunbolf V. Alford, 3 M. & W. 348
Wolff V. Summers, 3 Camp. 631
Bumpus V. Maynard, 38 Barb. 636
Rothschild v. Boelter, 18 Minn. 361.
5 The case of Towns v. Pratt, 83
N. H. 345, holding a trunk of clothes
Bo wne V. Witt, 19 Wend. 475; Cooke liable, would not be respected as
V. Gibbs, 3 Mass. 193. precedent everywhere. In Alabama,
*Frazier v. Barnum, 19 N. J. Eq. the wearing apparel of a deceased
C16 : Beverly v. Sayles, 10 N. H. 356 ; householder is exeaipt by statute.
796 THINGS EXEMPT.
limitation, the spirit of the exemption provision would doubt-
less be invoked. If the object of the debtor, in providing such
an extensive and extravagant outfit, is to defeat creditors, ex-
emption may be denied on the ground of fraud.
Not only clothing, but watches, spectacles, canes, umbrellas,
pocket-knives, purses, pocket-books, and similar articles habit-
\ially used and carried about the person, may be exempt under
unrestricted and general designations. Watches, at common
law, could not be taken in execution from the wearers,' but
they, as well as rings and jewels worn upon the person, have
not invariably been held exempt.^ Manifestly, the indiscrim-
inate exemption of articles personally worn might lead to
great abuse. While a watch and chain and a pair of spec-
tacles may be both useful and ornamental, and properly ex-
empt, there certainly is a limit (by the spirit of the exemption
laws, at least) to unusual and extravagant adornment. A
watch, when it is the mere setting of costly jewels ; a linger-
ring supporting a diamond, worth a fortune; any ornament
employed as a mere holder of something more valuable than
itself, may serve as illustration. Whether jewels worn on the
person are exempt may depend upon circumstances. If they
have been worn habitually by their owner when he was not
indebted, they would be entitled to more favor at a time of
his misfortune than they would if he has bought them, after
becoming embarrassed, for the purpose of defeating creditors.
§ i. Tools of Mechanics and Others.
Perhaps, after household goods and apparel, there is noth-
ing more generally exempt throughout the Union than tools.
They are readily understood to be the implements by which
a workman works, whether he be a farmer or a mechanic.
They are instruments with which their owners pursue a call-
ing to make a livelihood. There would seem at first view to
be no latitude for construction as to the meaning of the
simple word. Yet, as employed in the numerous exemption
statutes in various connections, with reference to different
avocations, there have been many decisions upon questions
1 Frazier v. Baroum, sv.pra. See Commercial Bank v. McLeod,
2 Shaw V. Davis, 55 Barb. 389; 65 la. 665; 54 Am. Rep. 36.
Sawyer v. Heirs, etc., 28 Vt 249.
TOOLS OF MECHANICS AND OTHERS.
797
as to whether the articles claimed by debtors as tools were
really such within the letter and intendment of the law. The
decisions, not always harmonious as a whole, may be given
as expressing the law, each for its own state.^
The avocation of the owner, and the use to which a thing
may be put, sometimes determines the character of the article
and its right to exemption as a tool. The article may not be
(like a plow, a saw or a hammer) a fool under all circum-
stances, yet it may be held such under the provisions of the
statute. Ordinarilj"", a carriage, a sleigh, a horse, is not a tool,
but when "owned and used, by one whose calling requires it,
each of these has been given the benefit of the provision ex-
empting the tools by which the debtor gains his livelihood.^
On the other hand, when specified implements are exempt
without reference to their owner, they are protected in the
hands of persons who do not use them. Thus a " mower ''
was held exempt, though the owner was not a farmer.'
The implements of a farmer or an artisan do not lose their
exempt character because he is temporarily out of work, and
1 Richards v. Hubbard, 59 N. H.
158; 47 Am. Eep. 188; Gen. Laws
of N. H., ch. 334, § 3. In this case
there is the following summary of
things, all held exempt as tools,
though some are household furni-
ture and not tools: A milliner's
clock and stove. Woods v. Keyes,
14 Allen, 336. A sewing machine.
Eayner v. Whicher, 6 Allen, 393. . A
musician's cornet. Baker v. Willis,
133 Mass. 194. A fisherman's net
and bolt. Sammis v. Smith, 1 N. Y.
Sup. 444. A copper kettle. Van
Sickler v. Jacobs, 14 Johns. 434. A
watch. Bitting v. Vandenburgh, 17
How. Pr. 80. To this summary
many other things might be added.
A grindstone was properly exempted
as a tool. White v. Capron, 53 Vt.
634. The lamp of a watchmaker.
Bequillard v. Bartlett, 19 Kan. 383.
The piano of a musician. Amend v.
Murphy, 69 HI. 337.
■■i Though a debtor's carriage was
held exempt as a " tool " (Richard v.
Hubbard, supra), that of a non-pro-
fessional person, used for convey-
ance, was held liable by the same
court Parshley v. Green, 58 N. H.
371 ; Gen. Stat. N. H., ch. 305, g 3. A
horse and wagon held to be mechan-
ic's tools. Perkins v. Wisner, 9 la.
320. Contra, Wallace v. Collins, 5
Ark. 41. A sled for drawing wood
to market was held exempt as a tool.
lb. A hotel omnibus was exempted as
a " tool " of the hotel-keeper. White
V. Gemeny (Kan.), 28 P. 1011 ; Wilhite
V. Williams, 41 Kan. 288 ; Davidson
V. Seohrist, 28 Kan. 384. A whip not
exempt. Savage v. Davis, 134 Mass.
401. A mill-saw not a tool. Batch-
elder v. Shapleigh, 10 Me. 135. A
grain-drill was not exempt to a hotel-
keeper. Reed v. Cooper, 30 Kan.
574.
3 Humphrey v. Taylor, 45 Wis. 251 ;
Knapp V. Bartlett, 23 Wis. 68.
798 THINGS EXEMPT.
they consequently idle. A farmer's ploughs and harrows are
laid hy half the year ; a mechanic's tools may be rusting in
his chest while he is waiting for a job ; a farmer, artisan or
any other worker may choose not to work for a period, yet
his tools will remain exempt, since he has not abandoned his
calling.'
If a mechanic's tool or agricultural implement, or the like,
is owned and possessed by one who has no use for it in his
calling — a calling altogether different from that in which the
tool is meant to be employed — it is not exempt as a tool ;
and, in the hands of his widow, it would not be exempt.^
When, in one section of an act, certain kinds of property,
such as the tools of a mechanic, are exempted, while in an-
other section certain property belonging to a family man is
exempted, the two provisions were held cumulative, so that
- the tools could be held, and the other things too, by the me-
chanic married and having a family.' The words of a statute
are usually employed in their ordinary sense; so the tools of
a mechanic are those of a working artisan used by his own
hands in plying his calling.* Articles claimed as exempt may
be tools, yet not the " tools of a mechanic." A photographer's
instruments were held not exempt on the ground that he was
not a mechanic and that they were not mechanic's tools; ' but
dental instruments have been exempted as tools of the oper-
ator.* The dentist is a professional man as much as a pho-
1 Caswell V. Keith, 12 Gray, 351; p. 265. Exemption of tools of trade do
Dailey v. May, 5 Mass. 313 ; Pierce not allow a mechanio, who has two .
V. Gray, 7 Gray, 68 ; Hickman v. trades, to claim cumulatively. Smal-
Cruise, 72 la. 528 ; Wilkinson v. Al- ley v. Masten, 8 Mich. 529 ; Bevitt v.
ley, 45 N. H, 551 ; Harris v. .Haynes, Crandall, 19 Wis. 610; Morrill v. Sey-
30 Mich. 140 ; Kenyon v. Baker, 16 mour, 3 Mich. 64. Contra: Harrison
Mich. 373 ; Wood v. Bresnahan, v. Martin, 7 Mo. 286 ; Howard v. Will-
supra. Compare Willis v. Morris, 66 iams, 2 Pick. 80.
Tex. 628. * Parkerson v. Wightman, 4 Strob.
2 Reed v. Cooper, 30 Kan. 574 ; Jen- (S. C.) 363 ; Willis v. Morris, 66 Tex.
kins V. McNall, 27 Kan. 533 ; Gordon 269 ; Abercrombie v. Alderson, 9 Ala.
V. Shields, 7 Kan. 320; Robert v. 981.
Adams, 38 Cal. 382 ; Knapp v. Bart- 5 gtory v. Walker, 11 Lea, 515 ; 47
lett, 23 Wis. 68. Compare Humphrey Am. Rep. 305 ; Tenn. Rev. Code,
V. Taylor, 45 Wis. 251. § 553a (29).
3 Harrison v. Martin, 7 Mo. 287, un- « Maxon v. Perrott, 17 Mich. 836.
der the old act of R S. of 1835,
TOOLS OF MECHANICS AKD OTHEES. • T99
, tographer is an artist ; and, on the ground that he is not a
mechanic, exemption of his dental instruments has been de-
nied.^ Both callings are somewhat mechanical, and it should
be remembered, in the construction of statutes exempting the
" tools of a mechanic," that there is not always a distinct line
of separation between a profession and a manual art. No one
would rank a surgeon as a mechanic, yet his instruments and
their application may be readily classified with dental tools
and their use ; and whether either are exempt depends, of
course, upon the terms of the statute in any case. Formerly
some barbers used to add tooth-drawing, cupping and bleed-
ing to shaving and hair-cutting ; but as they had no profes-
sional knowledge, no one thought of calling them dental sur-
geons or doctors. Tet the professional dentist's plate-making
and tooth-nlling and extracting is not the less mechanical be-
cause more scientific ; for many purely mechanical operations
depend upon knowledge of science. So, though the profes-
sionally educated dentist should be ranked as a surgeon, there
are others little more entkled to that rank than the man who
works with both razor and forceps.
A contractor by profession, building houses or ships, is not
deemed a mechanic whose tools are exempt when acting in
his capacity of contractor, though he really may be a mechanic.^
If exemption is with reference to a particular avocation, the
claimant must be pursuing it at the time of the levy.'
Instruments may be habitually used in connection with an
avocation, yet not be necessary to its conduct.*
Office furniture is necessary, and it has been included in the
terms "tools and instruments" necessary to the carrying on
of a lawyer's profession, so that his landlord could not attach
it.^ This liberal inclusion would not be extended to the tak-
ing-in of the office or building in which a profession is prac-
ticed or a trade exercised (however necessary it might be to
1 Whitcoml;) v. Reid, 31 Miss. 567. Mich. 7. See Mason v. Perrott, 17
2iJe Wetmore, Deady, 585. Mich. 333.
sRayv. Hayes, 38 La. Ann. 641. » Abraham v. Davenport, 78 la.
«Pool tables, for instance, are not 111; la. Code, § 8073. Contra: Re
essential to the saloon or restaurant Church, 15 R. I. 345 ; Pub. Stat. R. 1,
business. Goozen v. Phillips, 49 ch. 309, § 4
800 • THINGS EXEMPT.
the prosecution of the business) though the shop, office or
building be personal property.^
Where the statute broadly exempts all instruments neces-
sary to the conduct of one's business, without confining the
benefit to any particular calling, not only the office furniture
but the business papers of an insurance agent were held to be
instruments.^
"While a law library is necessary to the lawyer's business,
and may be exempt on other grounds, the books cannot be
on the assumption that they are " tools," under a statute ex-
empting chattels by that designation merely.' So, a merchant's
usual articles of outfit are not toolsj * yet an article, proven
to be necessary to a particular calling which united both the
mercantile and mechanical character, was protected from ex-
ecution.^ Stamping blocks for printing oil-cloth were held to
be not " necessary tools of a tradesman." * Doubtless they
were tools which would have been exempt if owned and used
by one whose calling was that of an oil-cloth printer or stamper.
There is the case of a hardware dealer who, upon making an
assignment, jvas allowed to retain a set of tinner's tools and
material from his general stock in trade. They certainly were
not necessary to the hardware business, and were not exempt
as so ; but, the assignor having proved that he was using such
instruments and maintai'liing his family with them since his
embarrassment, and that they were his only source of support,
was allowed to hold them exempt.^
' Holden v. Stranahan, 48 la. 70 ; " tools," though they may be as be-
la. Code, § 3072. (A photographer longing to some other class of pro-
claimed his saloon building.) tected property. Lenoir v. Weeks,
2 In Kansas, an insurance agent 30 Ga. 596; Fowler v. Gilmore, 30
and abstracter of titles successfully Tex. 433 ; Brown v. Hoffmeister, 71
claimed not only his ofSce furniture Mo. 411.
and iron safe but also his abstracts as ^ A merchant's counter, desk, barrels
" instruments," under the statute ex- and boxes are not exempt as " tools."
empting "the necessary tools and in- Guptil v. MoFee, 9 Kan. 30.
struments of any mechanic, miner, ^A jeweler's safe, proved to be
or other person, used and kept for the necessary to his business, was held
purpose of carrying on his trade or to be exempt MoManus' Estate
business." Davidson v. Sechrist, 88 (Gal.), 35 P. 413 ; Cal. Civ. Code Proc,
Kan. 334; Kan. Comp. L. (1879), §690(4).
p. 438. 6 Richie v. McCauley, 4 Pa. St. 471.
3 Law books are not exempt as ' Miller v. Weeks, 46 Kan. 307.
MACHINERY. 801
The products of mechanical labor and skill, within reason-
able limits, have been protected from^ execution.^
The abandonment of a trade or profession is the renuncia-
tion of any exemption right incident to, or dependent upon,
such avocation.^
§ 6. Machinery.
A valuable threshing machine -with its outfit, owned by two
or more farmers, and used by them on their own farms and
also used in threshing for others, for hire, was held not exempt
under the statutory exemption of " farming utensils or imple-
ments of husbandry of the judgment debtor." ' The imple-
ments protected are those used by the farmer in cultivating
his own farm and caring for its products ; not those mainly
used to derive income by renting them out.*
"What value in machinery may be exempt, and to what uses
the machinery must be confined, and what class of persons
may be beneficiaries of the exemption, all depend upon the
statute governing the case ; and therefore cases on the subject
•differ in different states. Machinery, used in the sawing of
lumber into boards and the making of shingles, is held to be
included in the terms " tools," " implements," etc., used " to
enable a person to carry on the profession, trade, occupation
or business in which he is wholly or principally engaged, not
exceeding in value $250." ' A part of a complex machine may
be separated from the rest (when the whole exceeds the allow-
able exemption in value), if it be susceptible of being worked
alone so as to become exempt.^ A steam-engine may be ex-
empt within the meaning of a statute protecting tools and in-
struments, it has been held.'
The term tool is inapplicable to large establishments, mills,
portable housed machinery, steam-engines, threshing machines
and apparatus, or anything not understood as a tool in com-
mon parlance, though many tools may be embraced and used
1 Stewart v. Welton, 33 Mich. 56. Griffith, 34 Gal. 303; Ford ^. John-
2 Willis V. Morris, 66 Tex. 638; sod, 34 Barb. 364; Meyer v. Meyer,
McDonald v. Campbell, 57 Tex. 614 ; 38 la. 375.
Miller v. Menke, 56 Tex. 539. 5 Wood v. Bresnahan, 63 Mich. 614.
'Gal. Gode Civ. Proc. § 690, par. 3. 6 Ramsey v. Barnabee, 88 III. 135.
* In re Baldwin, 71 Cal. 74 ; Roberts 1 Wood v. Bresnahan, 63 Mich. 614.
V. Adams, 38 Cal. 383. See Brusie v.
51
802 THINGS EXEMPT.
in milling, machine-running and other works. Unless there is
language in the statute applicable to the case which shows
that the legislator meant something different from the ordi-
nary meaning, his use of the word would not convey the idea
that he meant to include portable mills, engines or machines,
such as are above mentioned.' Even though there be no ques-
tion as to the term, yet the tools of a corporation engaged in
a large business requiring many hands have been held not ex-
enlpt within the intendment of the legislator.^
Articles which are not specifically exempt, but which are
subject to selection by the debtor as implements used or
necessary for the conduct of his business, or as stock in trade,
have not the exempt character in the absence of selection.' It
is held that machinery is embraced in the exemption of im-
plements necessary to conduct the debtor's business, when it
is within the allowable value and is duly selected and claimed.*
§ 6. Printing Presses, Types and Material.
^ Under the statutory exemption of tools neeesswry for v(p-
holding life, a printing press, with cases and types, was
claimed by the debtor as friee from execution. The court
thought the press and the cases and types were tools, but
whether they were essential to the life of the debtor was de-
clared a question for a jury.' But under different statutes,
such printing articles have been held not tools.^
The editor and publisher of a newspaper was engaged with
a partner in job printing, and also in the insurance business.
He was not a printer but he used his press and types, work-
1 In re Baldwin, 71 Cal. 74 ; Batch- and was about to leave the state, but
elder T. Shapleigh, 10 Me. 135 ; Smith being still a resident the claim of ex-
T. Gibbs, 6 Gray, 398 ; Kilburn v. emption was allowed. See McHugh
Demming, 3 Vt. 404. v. Curtis, 48 Mich. 262 ; O'Donnell v.
2 Boston Belting Co. v. Ivens, 28 Segar, 25 Mich. 367.
La. Ann. 695. 5 Patten v. Smith, 4 Ck 450. See
3 Behymer v. Cook, 5 Colo. 395 same case in 5 Ct 197. Jenkins v.
(coffins and undertaker's imple- McNall, 27 Kan. 533; 41 Am. Rep.
ments). 422 ; Sallee v. Waters, 17 Ala. 482.
* Wood V. Bresnahan, 63 Mich. 614 « Buckingham v. Billings, 13 Mass.
(machinery for ' shingle making) ; 82 ; Danforth v. Woodward, 27 Mass.
Howell's Stat. Mich., § 7686. In this 423; Fi-antz v. Dobson, 64 Miss. 631;
case, the debtor claiming the ma- Spooner v. Fletcher, 3 Vt 133.
chinery had quit business in Michigan ,
WAGONS AND OTHER VEHIOLBS. 803
ing himself but mostly through others — yet he was allowed
to claim them as his exempt tools.^
It was held that the press, type and material, belonging to
a printing office, were exempt under a statute exempting " all
tools, apparatus and books' belonging to any trade or profes-
sion," though they were partnership property.^ It does not
seem clear how materials, such as . paper, ink and like things
to be worked up, can be classed under the head of "tools," or
" apparatus " or " books."
In an earlier case it was held, under the same statute, that
a printing press, types, etc., were exempt when owned by the
editor and publisher of a newspaper.' It will be noticed that,
in the later case, such articles were exempted though belong-
ing to a firm. In some states, printing presses and necessary
accompaniments are expressly exempted by statute.*
§ 7. Wagons and Other Vehicles.
Whether or not the exemption of a wagon includes that of
a buggy, family carriage, barouche or other vehicle used for
pleasure or convenience, depends upon the connection of the
word wagon with other words, and the general tenor of the
statutory provision. If, in the enumeration of agricultural
implements, the legislator should provide that ploughs, har-
rows, carts, wagons, shovels, boes, etc:, shall be exempt, no
casual reader would understand that a buggy was meant by
the word wago7i; he would think that a farm wagon was
meant. What the casual reader would understand is likely
to be the real meaning.'
1 Bliss V. Vedder, 34 Kan. 57; 55 exempt where the statute exempts
Am. Eep. 337 ; Raynor v. Whicher, wagons, because, in a, sense, it is a
88 Mass. 292 ; Howard v. Williams, 19 wagon. Allen v. Coates, 29 Minn. 46.
Mass. 80. (See many cases, cited by counsel, to
2Type Foundry Oo. v. Live Stock, the contrary.) Kimball v. Jones, 41
etc. Co., 74 Tex. 651. Minn. 318. Compare Dingman v.
3 Green v. Raymond, 58 Tex. 80 ; 44 Raymond, 27 Minn. 507. A debtor
Am. Rep. 601. had two wagons for hauling pur-
lin Michigan a printing press and poses, and a buggy, and he was al-
types are exempt to the value of lowed to select any of the three
$2,000 ; and printer's stock-in-trade to wagons. Parker v. Haley, 60 la. 325.
$400 more. In Mississippi, printing See, as to physician's buggy as a
material is exempt to $250. wagon, Corp v. Gris*old, 27 la. 379 ;
5 It has been held that a buggy is Farner v. Turner, 1 la. 03 ; Nichols v.
804 THINGS EXEMPT.
A statute exempted " one cart or truck-wagon." A ped-
dler had a vehicle on four wheels, with a dasher in front, rail-
ing round the top, doors on each side and drawers behind.
To assist the court in the construction of the words " cart or
truck-wagon," the plaintifE's counsel derived truck-wagon or
rather truck, from the French, and the defendant's counsel
got it from the Greek,' while both appealed to Webster. The
court, however, looked at the associated articles exempt by
the statute : oxen, horses, mules, ox sled or horse sled, a ca/rt
or truck-wagon; and said that the vehicles were " ^tended to
correspond with the animals used, and all designed as aids to
labor rather than traffic." And so the peddler's shop on
wheels was not favored.^
Another statute exempted " one wagon, cart or dray, one
sleigh, one plow, one drag, and other farming utensils, including
tackle for teams, not exceeding two hundred dollars in value." ^
Under this, a debtor claimed a hearse. By the reasoning of
the foregoing case, he should have been denied ; for the asso-
ciation of mentioned articles with each other, and the exemp-
tion of other farming utensils, exclude the idea that the legis-
lator meant to include the hearse in the word " wagon " or
any other that was employed. But by liberal construction,
as the court said, the exemption was allowed.' Webster had
defined hearse as "a carriage for conveying the dead to the
grave," and that was another reason assigned. And author-
ity favored ; for the same statute had been construed to ex-
empt a physician's horse and sleigh;* aad also a mowing
machine claimed by a debtor who was not a farmer and who
did not use it.*
Without the mention of any wagon of any kind ; without
Claiborne, 39 Tex. 363. A grocer's coach solely for passengers was non-
delivery wagon was exempt. Baker exempt Quigley v. Gorham, 5 Cal.
V. Hayzlett, 53 la. 18. A farmer's 418.
four-wheeled wagon was exempt as i Smith v. Chase, 71 Ma 164
an ox-cart. Favers v. Glass, 33 Ala. ^ Wisconsin Laws of 1883, sec. 2988
634. An insurance agent's horse and (6).
buggy wei-e exempt. Wilhite v. "Will- ^ Spikes v. Burgess, 65 Wis. 438.
iams, 41 Kan. 388. A hack some- * Knapp v. Bartlett, 39 Wig. 68.
times carrying passengers and some- ' Humphrey v. Taylor, 45 Wis. 251.
times wood was exempt. Eodgers See Van Buren v. Loper, 29 Barb.
V. Ferguson, 33 Tex. 538. A hackney 389.
WAGONS AND 0T3-EE VEHICLES. 806
naming truck, horse or wheel-barrow, a statute exempted a
wagon by exempting a team, the court held." A team is
usually attached to a wagon of some sort ; but that the word
" team," in a statute, implies the thing drawn by it, seems
novel ; and there is a case contrary to those last cited.^
The principal business of the debtor, who has more than one
occupation, is understood, when he claims " things to enable
him to carry on the profession, trade, occupation or business
in which he is wholly or principally engaged ; " and the things
need not be absolutely necessary to the prosecution of his
calling.'
Livery-stable-keeping being the claimant's principal busi-
ness, he could not claim exemption as a teamster, or as a la-
borer.* The principal business of the claimant being that of
a peddler, its prosecution required a wagon and team ; and
they were held exempt though somewhat employed for other
purposes than the main one. But a bread-box, which was also
used in the peddler's calling, was held liable to execution be-
cause it had been omitted from the list of chattels made ex-
empt by the statute.'
A teamster need not drive his own team to became the ben-
eficiary of an act exempting a wagon and two horses to a
teamster ; he is entitled to exemption if he owns teatos a.nd
employs them in hauling to support himself and family ; he
need neither hold nor drive; he need onlj' to give his personal
attention to teaming in order to be a teamster — so it is held.'
It is not every one who drives a team that is a teamster ; and
every teamster is hot a driver necessarily.' The teamster may
have many teams and wagons, driven by employees :^he is enti-
tled to select one team and wagon, according to the decisions
cited.
The fact that the claimant of the team is himself the driver
may be a circumstance, however, on which the question of ex-
emptian will hinge. An oil-dealer, who was rather a merchant
I'Dains v. Prosser, 33 Batb. 390; < Edgcomb v. His Creditors, 19 Nev.
Browil V. DaVrs, 9 Hun, 43; Van 149.
Buren v. Loper, 39 Barb. 388 ; fest- sgtanton v. French, 91 Gai. 374 ; 27
inan V. GasiWell, 8 How. Pr. 75. P. '657.
'2 Mor^e V. Keyes, 6 Haw. Pr. 18. ^ Elder v. WilMaitiB, 16 NeV. 4M.
s Kenyon v. Baker, 16 Mich. 373. . ' BruSie v. Griffith, 34 Cal. 306.
806 THINGS EXEMPT.
than a teamster so far as his principal business character was
concerned, was shown to have an oil-tank upon wheels which
was drawn by a team sometimes driven by himself, and used
in delivering oil to his customers. His team and tank, or
wagon, were held exempt as property with which he habitu-
ally earned his livelihood.^
Where there is special exemption of certain kinds of chattels,
such as a team to a teamster, it does not matter how much
the debtor is worth beyond such article in other species of
property. He may be worth many thousands of dollars yet
be entitled to have one team exempt.** Such special exemp-
tions are found in many statutes, as to agricultural imple-
ments, mechanics' tools, and those of other employments,
manual and professional.
- A statute exempting one " wagon, cart or dray, two plows,
one drag, and other farming utensils, including harness and
tackle for teams, not exceeding in value three hundred dollars,"
was construed to exempt the articles specified am,d " three
hundred dollars' worth of property in addition." The last
clause was held to refer only to the " other farming uten-
sils," so that there were exempted the articles first named,
and also three hundred dollars' worth of " other farming uten-
sils, including harness and tackle for teams." '
§ 8. Domestic Animals.
The absolute exemption of specified things relieves from
the necessity of choice when the debtor has only that which
is thu.s exempted. If he has more, he makes the selection —
not the officeh^ If he neglects to do so, it seems that the
officer should look to the debtor's interest,' though there is
1 Consolidation Tank Co. v. Hunt one horse exempted. Rutledge v.
(la.), 48 N. W. 1057. ' Rutledge, 8 Bax. 33.
2 Smith V. Slade, 57 Barb. 637, citing ' The debtor owning two animals
Wilcox V. Hawley, 31 N. Y. 658, and and entitled to save one from execu-
other cases. tion may select the one free from
' Donmyer v. Donmyer, 43 Kan, mortgage if the other is mortgaged
444 and out of his possession. Without
■•One of two animals being ex- selection, it seems that the former
empt, the debtor may elect which he would be deemed the exempt one.
will retain. Savage v, Davis, 134 Tayon v. Mansir, 2 Allen (Masa),
Mass, 401 ; Everett v. Herrin, 46 Me. 219 ; Cooper v, Neumans, 45 N. H.
857. He may have a half-interest in 339.
DOMESTIC ANIMALS.
807
no invariable rule.' The officer does not always know whether
one of the two animals is mortgaged, or is a borrowed one ;
and he is not responsible for levying upon either when the
debtor has failed to inform him.^ The debtor, selecting a
horse, is not bound to bring other horses from another county
for the sheriff to levy upon.'
When the exemption of domestic animals is made to depend
upon the avocation of the owner, he is not denied the benefit
because, though needing them in one calling, he also follows
another in -which they are not necessary.* He may employ
the same animal in different capacities, though in only one is
it exempt by the statute.' If the employment must be that
by which the owner makes his living, he cannot hold a team
exempt which is wholly used in a secondary calling."
A team may be kept for hire, and thus serve in the making
1 The debtor being entitled to re-
tain a horse or yoke of oxen, and the
latter being mortgaged, the oflBcer
was not liable for levying upon the
horse when the fact of the mortgage
of the oxen had not been communi-
cated to him. McCoy v. Dai!, 6 Bax.
137.
2 So, though the debtor own one
cow and have a hired one, and the
officer took the one owned, the levy
was held not trespass. lb.; Lindsey
V. Fuller, 10 Watts, 144
'Anderson v. Ege, 44 Minn. 216;
46 N. W. 363.
* A pair of horses were claimed as
exempt by the debtor in his capacity
of peddler and huckster. He was
shown to be also a publisher of
county directories and hand-books,
but this did not disprove his other
calling : so he held his horses. Paul-
son v. Nunan, 73 Cal. 343.
5 Two horses were exempt by law
to each farmer. A farmer, in his
capacity as such, worked his horse
on his farm, but he, in another ca-
pacity, employed the same horse;
he claimed exemption and had his
claim allowed. McCue v. Tunstead,
65 Cal. 506. See Robert v. Adams, ^8
Cal. 888.
6 Two horses and a wagon were
claimed by debtors in their capacity
as teamsters, though they were also
coal-dealers. The court said : " In
order to entitle a party to claim as
exempt from execution, two horses,
etc., under the sixth subdivision of
g 690 [of the Code of Civil Proced-
ure], he must show that he is a cart-
man, drayman, truckman, huckster,
peddler, teamster or other laborer,
and that he habitually earns his liv-
ing by the use of such horses, etc.
C. C. P., § 690; Brusie v. Griffith, 34
Cal. 303. The findings in this case
do not show that state of facts." So
exemption was denied. Dove v.
Nunan, 63 Cal. 899; Calhoun v.
Knight, 10 Cal. 393. So, a physician,
who claims two horses, must show
that he uses both in the prosecution
of his profession to earn his living.
Corp V. Griswold, 37 la. 379. But a
teamster need not di-ive his own
team. Elder v. Williams, 16 Nev.
416.
808 THINGS EXEMPT.
of a livelihood, and therefore be exempt.' It may not be
hired out at the time a levy is about to be made, for there
are always intervals of non-employment in Such business ; yet
the team would not be liable. Even if the owner's right of
exemption depends upon his own personal use of his team, he
Vrould not forfeit the right because temporarily resting from
his calling, with his horses turned out to grass.'^ Horses may
be work-horses, carriage-horses or plough-horses, within the
meaning of a statute, though not actually employed as such
at the time of levy.' Such horses always require harness
when they are,used : does the description of these as " work-
horses," etc. in the statute, imply the exemption of the nec-
essary trappings? *
Having claimed, the debtor must stand to his choice. He
cannot, as a matter of right, change his selection ; and if he
has chosen an idle " work-horse," it must be one fit for use in
his calling, and designed for such use.' If he has declined to
choose, he cannot complain of the levy upon either of tv/o,
each of which had been subject to his own selection.'
The making of a livelihood is not the only use to which do-
mestic animals may be put, that they may be rendered invio-
lable when the sheriff comes. They may be employed for
1 A team let for hire was used to farming or teaming is held not to
earn rnoney for the family, and so include harness. Somers v. Emer-
the owner held them exempt. Wash- son, 58 N. H. 48. Contra, Cobbs v.
burn V. Goodheart, 88 111. 329. A Coleman, 14 Tex. 594.
widow had a horse, cow and calf ex- 5 One having claimed a horse can-
empted, though they were hired out not afterwards take oxen instead,
DoUier t. Latimer, 8 Bax. 420. under a statute exempting either,
2 Two horses and a hack, belong- though he may not have owned the
ing to a hackman who earned his horse. Barney v. Keniston, 58 N. H.
living with them, were levied upon 168. Either, when selected, must be
when the horses were at pasture and required for present or early use, to
the hack at shop to be painted : held save it itoxa. liability to attachment,
exempt C. C. P. 290 ; Forsyth v. Jaquith v. Scott, 63 N. R 5 ; S. C,
Bower, 54 Cial. 639. 56 Am. Eep. 476 ; Cutting v. Tappan,
3 Work-horse describeij. Noland v. 59 N. H. 562.
Wickh'am, 9 Ala. 169; Allman v. * If the, debtor refuse to elect be-
Gahn, 29 Ala. 240. A horse pre- tween a yoke of oxen and a horse,
sum'ed to be a pZoMffA-Tiorse, because he cannot afterwards be heard to
fit f or the plpugh. Matthews v. Red- complain , that either is attached,
wine, 2^ Miss. 99. , Davis v. Webster, 59 N. H. 471.
* The exemption of a horse for
DOMESTIC ANIMALS. 809
convenience, for social, educational and religious purposes,
when the statute enumerates one object or more, and thfen
adds " other uses." '
Domestic animals are often exempted without any qualifi-
cation as to their uses ; ^ and, as above remarked, even where
there is such qualification, the use need not be immediate if
there is fitness for use and design to use.'
Thie debtor cannot, at the juncture when his property is
aboilt to be levied upon, swap ofiF liable property for an ani-
mal specified by statute as exempt, with the view of foiling
the creditor. A liable thing is not changed in character by
exchange for an exempt one : so, after the transaction, it may
be attached or levied upon in the hands of the debtor.*
The general rule is (though not in 6Very state) that the ex-
emptionist must have the exclusive right of possession of the
chattel he claims as free from execution. The owner of a
half interest in two things cannot claim the whole of one of
those things.^ He has not the exclusive ownership and posses-
sion of either. A married couple, however, inay be tenants
in common, or joint tenants, and still have exemption in the
thing held without doing violence to any principle. She may
interpose the exemption claim when he is away ^ or has failed
to do so.
1 The family use of the horse se- tion of domestic animals, is not al-
lected may be that of taking chil- ways to be understood as present
dren to school and church. George use ; it may be a keeping for use in
V. Fellows, 59 N. H. 206. The Ian- the near future. Steele t. Lyford,
guage of the statute, as to use, is 59 Vt. 230 ; George v. Bassett, 54 Vt
"farming or teaming purposes or 317; Rowell v, Powell, 53 Vt 302;
other actual use.'' Gen. Laws, New Freeman v. Carpenter, 10 Vt. 433;
Hampshire, ch. 224, sec. 3. A horse Dow v. Smith, 7 Vt 465. Whether a
used in collecting accounts was ex- race-horse is exempt — queref And-
empt. Knapp v. O'Neill, 46 Hun, 817. erson v. Ege, 44 Minn. 316.
2 Two cows, not used for the fam- * A non-exempt animal does not
ily, nor necessary for them, were becbme exempt by being exchanged
held exempt in Kansas, under Comp. for one that is so. Connell v. Fisk,
L. (1879), ch. 58, § 8; Niiztnan v. 54 Vt 381.
Sdhooley, 36 Kan. 177. A Jroke of » If a Certain number of speciiied
oxen being exempt, one ox is. Wolf- things is exempt, the debtor who
enbarger v. Standifer, 85 Tfeiin. 659. owns an undivided half of each can-
And so is one horse when a pair is not therefore claim twice the num-
exempt by law. Dearborn v. Phil- ber, or half of twice the number,
lips, 31 Tex. 449. White v. Caproh, 52 Vt 634.
3 The use required, for the exemp- ^ The wife of an absconding farmer
810
THINGS, EXEMPT.
There is no straining or extension of a statute wten less is
asked and given under it than it authorizes ; thus an ox may
be claimed when a yoke of oxen is exempt ; a horse, when a
pair or a team is so ; ' but the animal claimed should be of the
same kind as the two or more that might have been claimed;
and the article chosen should be included in the description of
articles exempted by the statute. While a mule may be re-
spected properly as a statutory horse, and while young calves,
though not cows and oxen, eventually may grow to such es-
tate, it would seem that the judicial transformation of several
legislative creations has been effected with almost too free a
hand.^
who was privileged to claim two
horses as exempt in his avocation
was held entitled to hold them
against his creditors, as she was carry-
ing on the farm. Frazier V. Syas, 10
Neb. 115.
1 An exempt team may consist of
but one horse. Wilcox v. Hawley,
31 N. Y. 648; Harthouse v. Eikers, 1
Duer, 606 ; Lockwood v. Younglove,
27 Barb. 505 ; Wheeler v. Cropsey, 5
How. Pr. 388 ; Pinnin v. Malloy, 33
N. Y. Superior, 383. A mare and her
colt four months old were held ex-
empt under the statutory descrip-
tion, "a span of horses." Ames v.
Martin, 6 Wis. 359, 361. Instead of
pork and hogs one may take pigs,
etc. Byous v. Mount, 89 Tenn. 361 ;
Tenn. Code, §§ 2931-3.
2 " In Mundell v. Hammond, 40 Vt
641, two calves nine months old were
saved to the debtor under a statute
exempting ' a yoke of oxen or steers.'
In Mallory v. Berry, 16 Kan. 393, a
wild, unbroken steer, twenty months
old, wEis held exempt under a statute
exempting ' a yoke of oxen.' In Fa-
vors V. Glass, 22 Ala. 624 [58 Am.
Dec. 272], a cart was held to include
a four-wheeled wagon. In Texas,
under a statute exeinpting 'two
horses,' a horse and mule are ex-
empt Allison V. Brookshire, 38 Tex.
200. In Teiinessee, a jackass is ex-
empt under a statute exempting 'a
horse, mule or yoke of oxen.' Rich-
ardson V. Duncan, 2 Heisk. 320 ; and
see Webb v. Brandon, 4 Heisk. 288 ;
Freeman v. Carpenter, 10 Vt 433.
[S. C, 33 Am. Dec. 310] ; Wilcox v.
Hawley, 31 N. Y. 655." Dissenting
opinion of Judge Leonard in Edg-
eomb V. His Creditors, 19 Nev: 156.
A yearling heifer was not included
in " two cows and a calf." Mitchell
V. Joyce, 69 la. 121 ; la Code, § 3072.
A pair of cattle, two years old, not
broken to the yoke, were held to an-
swer the statute description, " a yoke
of oxen." And the court, in so holding,
said: "The general tendency of the
courts is to hold that where a statute
exempts 'horses,' 'oxen' or 'cows,'
young animals of the species and de-
scription that by time and subse-
quent growth would become such,
in the popular sense, are within the
meaning and import of these terms
as used in the statute. Dow v.
Smith, 7 Vt. 4C5 ; Freeman v. Car-
penter, 10 Vt 433 ; Carruth v. Grassie,
11 Gray, 211 ; " and other cases were
cited. Berg v. Baldwin, 31 Minn.
541. Some of the constructions are
more cautious — not to say more rea-
sonable. A horse, used by a tanner,
is held not exempt as a tool or imple-
THINGS NEEDED IN BUSINESS; STOCK IN TEADE. 811
If the claimant's privilege depends upon his avocation, he can-
not claim property belonging jointly to himself and his wife.
The interest of his wife may be sold under execution, leaving
him powerless to recover it. Were the property hers sepa-
rately, he could not claim exemption. So the rulings have been,
under statutory direction.^ A peddler claimed a pair of
horses and a wagon, alleged to be used in his business, and was
denied the right of holding then! exempt, because his wife was
half owner — the above cited case. The debtor should shovvj
that the live-stock, or other property claimed, belongs to his
wife, if that is the case.^
If the debtor claims a horse when he owns none, he cannot
hold one subsequently purchased, by virtue of that claim.'
A livery-stable keeper claimed the exemption of his span of
horses and carriage, contending that his calling was included
in the enumeration of peddlers, cjirtmen, hucksters, teamsters
and laborers recited in the statute ; but his claim was denied.*
The claim of the debtor should be within the law.
§ 9. Things Needed in Business ; Stock in Trade.
The provision 'that "the tools, implements, working animals,
and stock in trade not exceeding three hundred dollars in
value, of any mechanic, miner or other person not being the
mentoi the tanner's trade (Wallace v. 2 Coffee v. Adams, 65 Ga. 349.
Cpllins, 5 Ark. 41), though we have ' Smith v. Eckels, 65 Ga. 326.
B(^en that a doctor's buggy-horse has * Edgcomb v. His Creditors, 19 Nev.
been exempted as a tool. Ordinarily 149 ; Brusie v. Griffith, 34 Cal. 306 ;
it is as a domestic animal that the Dove v. Nunan, 63 Cal. 400. Judge
physician holds his horses. If en- Leonard, dissenting from the decision
titled to an exempt horse or pair, in Edgcomb t. His Creditors, said:
used by himself to make his living, "I have no doubt that the legislature
he may use two horses together or intended to exempt two animals,
separately. Corp. v. Griswold, 27 la. with their harness and other equip-
,379. Habitual use: Bevan v. Hay- ments, and any suitable vehicle, by
den, 18 la. 123 ; Whicher v. Long, 11 the use of which any person habitu-
la. 48 ; Parkins v. Wisner, 9 la. 820 ; ally earns his living, and to the ex-
Farner v. Turner, 1 la. 54. Other ercise of whose business such animals,
cases relative to physician's horse etc., are necessary." The act quali-
and buggy : Van Buren v. Loper, 29 fied the exempt articles by the words.
Barb. 888; Eastman v. Caswell, 8 " by the use of which a cartman . . .
How. Pr. 75 ; Wheeler v. Cropsey, 5 or other laborer habitually earns his
How. Pr. 288. living."
' Stanton v. French, 83 Cal. 194 ;
Cal. Code Civ. Proc, § 690, par. 6.
812 THINGS EXEMPT.
head of a family, used and kept for the purpose of carrying
on his trade and business, shall be exempt " while such person
is a resident of the state,' was held to exempt a bachelor's
buckboard and horse used in his business of assaying ores and
sampling them. The claimant was neither mechanic nor
miner, but he was an " other person : " was he using and keep-
ing his horse and buggy for the purpose of prosecuting his
business as a sampler and assay er? Does the statute mean
necessarily using for such purpose? The court said that the
" clear intention " of the fraraers of the statute seems to have
been to exempt " those articles of personal property commonly
and necessa/rily used . . . in carrying on the various avo-
cations." The buckboard, horse and harness were thought
necessary by the court (since this assayer was itinerant), and
so the statute covered hira and his business.^
It has been held too narrow to construe the phrase used to
Garry on business as meaning necessarily used; ' and that the
use need not be in the principal business of the beneficiary.*
However, the principal business, or that by which livelihood
is made, is usually meant by the exemption statutes which
favor certain avocations.^ In a claimant's capacity as a car-
penter, building material to be worked up by him was ex-
empted to the amount of one hundred dollars.* And unfin-
ished burial cases were exempted to the maker.'
A farmer who has his agricultural implements free from
execution, in his capacity as farmer, cannot claim other prop-
erty under the term "other person," occurring in the statute
in the phrase the " tools and implements, or stbck in trade, of
any mechanic, miner or other person, used and kept for the pur-
pose of carrying on his trade or business, not exceeding two
hundred dollars in value." ^ A clailnant in the capacity of a
■ farmer claimed agricultural implements to the value fixed ;,
1 Colo. Gen. Stat., p. 603. sgrnalley v. Hasten, 8 Mich. 538;
^Watson F. Lederer, 11 Colo. 577. Morrill v. Seymour, 3 Mich. 64.
See Bevitt v. Crandall, 19 Wis. 610. 6 Hutchinson v. Roe, 44 Mich. 389.
3 Stewart v. Weltou, 33 Mich. 56. ' McAbe v. Thompson, 37 Minn.
* lb.; Kenyon v. Baker, 16 Mich. 134.
376. Compare O'Donnell v. Segar, 35 SThis was in § 31, ch. 134 Of Rev.
Mich. 867. Stat, of Wis., which is like the Coio-
rado iprovision above cited.
merchants' stock in trade. 813
and then in the capacity of an " other person," he claimed a
grain drill in addition. This was refused.'
§ 10. Merchants' Stock in Trade.
Whether a merchant may claim his goods, to the amount
limited in the statutes above cited, has been carefully dis-
cussed. The phrase, " other person not being the head of a
family," has been held applicable to a merchant without fam- '
ily. In a case in which the question was well considered
and decided, it was said : " There is nothing in the general
scope of the section which sustains the appellants' proposition
that the proviso relating to those who are not heads of families
is to be limited to any particular class of debtors. Unless,
therefore, the language of the proviso has the effect of exclud-
ing the merchant, he must be held to be included within its
provisions. That its language cannot have this effect is clear.
The articles enumerated are practically the same as those
mentioned in other subdivisions, except the furniture, the ani-
mals, food, supplies, etc., ordinarily kept by the head of a fam-
ily. These articles are ' tools, implements, working animals,
books and stock in trade.' This description of exempt prop-
erty is quite broad enough to show that it was the intention of
the legislature to extend to this class of debtors the same pro-
tection that is offered by the statute to heads of families. And
this intention is manifested as well by the description con-
tained in the proviso of the persons who are declared to be en-
titled to its benefits — ' mechanics, miners or other persons.'
That these general words may include the merchant cannot
be doubted; dnd, inasmuch as the entire statute reveals' an in-
tention on the part of the legislature to protect all citizens
alike, effect should be give;i to such intention by extending its
provisions to the shopkeeper as well as the mechanic." ^
1 ^eiiritt v. Qraijdall, IQ Wis. 610. of Watspn (^bove cited) the particu-
One may be a tailor, tavern-keeper, or lar question relative to merchants was
the follower of any oj;her avocation, expressly excepted. The "Wisconsin
and yet be " actually engaged in the statute is held to include merchants,
science of agriculture." Springer v. ^jcker v. Comstpck, p2 Wis. 815.
Lpiwis, 32 Pa. St. ,191. Ccyin^pcire In this, thp court ^aid : "^e find no
Simons v. Lovell, 7 Heisk. 510. adequate provision in favor of mer-
2 Martin v. Bond, 14 Colo. 466, 471. chants or shopkeepers as a class, un-
The courtpointed out that in the case less it is contained in the statute
814 ' THINGS EXEMPT.
A similar statutory provision ' was held not applicable to
merchants. The term stoohdn-irade was understood not to
cover merchandise bought and sold for profit. While articles
manufactured for sale, such as watches and jewelry, were in-
cluded in the articles exempted, goods bought to be sold were
excluded.^ Similar statutory provision is found, and the con-
struction is against the merchant.'
Though goods kept for sale by merchants (even millinery
and fancy articles and the stock-in-trade of small dealers) are
not exempt in every state, there is an exemption of such arti-
cles as the owner himself has made, by some statutes ; and,
where such statutes exist, the exemption is not lost by the
placing of such articles on sale with the rest of the stock.*
This is not such mingling of stock as would render the whole
non-exempt,^ if the home manufactured articles can be segre-
gated from the non-exempt goods.
The exchange of a stock of goods, which has been set apart
as exempt, for other goods of like character and value; or its
sale in due course of trade, followed by other stock purchased
with the proceeds, would not forfeit the exemption.* If the
stock exceeds the value allowed by statute as exempt, the
merchant should make a selection.'
under consideration. Their little This reference to liberality of con-
stocks in trade may be as indispensa- struction is not so convincing, per-
ble to the support of their families as haps, as the argument in the Colo-
are the tools of a mechanic or miner, rado case of Martin v. Bond, supra,
the press and types of the printer, or preceding the quoted remark,
the library of the lawyer. Why ^ ' Grimes v. Bryne, 2 Minn. 72.
should they not have the same pro- ^Hillyer v. Remore, 42 Minn. 254;
tection as the others? And, when we Gen. Stat. Minn. (1878), ch. 66, § 310,
find language in a statute which may cl. 8; Laws of 1881, ch. 25, § 1 ; iJe^
fairly be construed as giving them Jones, 3 Dill. 343. See Grimes v.
the same protection extended to other Bryne, 2 Minn. 72 ; Prosser v. Hart-
classes of debtors, why should not ley, 35 Minn. 840 ; Bequillard v. Bart-
that construction be adopted? " lett, 19 Kan. 382 ; Guptil v. McFee, 9 ,
1 Gen. Stat, of Kansas, pp. 473-4 Kan. 80.
2 Bequillard V. Bartlett, 19 Kan. 882. sZielke v. Morgan, 50 Wis. 560;
This case was criticised in the last Smith v. Turnley, 44 Ga. 243.
one cited, in a paragraph ending: ^Dodd v. Thonipson, 63 Ga. 393?
" So nice a distinction is hardly con- Johnson v. Franklin, 63 Ga. 378 ;
sonant with the elementary principle Rosenthal v. Scott, 41 Mich. 632;
of construction that exemption stat- O'DonneU v. Segar, 25 Mich. 867.
utes should be construed liberally." ' Wicker v. Comstook, 52 Wia 815 ;.
CEOPS AND PKOVISIONS. 815
When a statute exempts stock in trade or business to a given
amount, it should not be construed to favor unlawful busingss.'
It does not exempt burglars' tools, kit and outfit; lottery
wheels and stock of tickets on hand, or any paraphernalia of
a prohibited companj^ ; illicit distillery stock and machinery,
and the like.
When the debtor has promised to turn his stock of goods
oveir to his creditor, has he thereby waived his exemption priv-
ilege ? This question has been answered in the negative.^ But
there is waiver when a merchant fails to select his allowed
portion from a larger stock. Thus, when two hundred dollars'
worth of goods were selectable as exempt, and the debtor
neither selected nor claimed, he lost his privilege.'
§ 11. Crops and Provisions.
Courts have been so liberal to debtors in the exemption of
crops that they have intimated and even held that the crops
used for the family bj' the head of it, and for seeding and
making the next crop, are exempt even though they some-
what exceed in value the original exemption.*
The statutes, in some instances, exempt whatever is neces-
Fick V. Mulholland, 48Wis. 413;Fow- inal exemption; and if more, the
ler V. Hunt, 48 Wis. 345 ; Russell v. spirit and indeed the very words of
Lennon, 39 Wis. 570 ; Walsch v. Call, the case [Wade v. Weslow], 63 Ga.
82 Wis. 159 ; Behymer v. Cook, 5 563, would cover the case. A little
Colo. 395. exemption, like this, should it en-
1 Walsch V. Call, supra. large into an improved means of
^Washburn v. Goodheart, 88 111. livelihood, may all, as the fruit of
339. what was set apart, be well held not
3 Zielke v. Morgan, 50 Wis. 560. liable to seizure to pay old debts."
* The language of a court so hold- Kupferman v. Buckholts, 73 Ga. 778.
ing (speaking of a prior case, John- Growing crops are not subject to
son V. Franklin, 63 Ga. 378) is : " It levy in Georgia. Scolley v. Pollock,
was held that when farm products 65 Ga. 839. In Alabama, the land-
were set apart as an exemption and lord's lien, for rent and advances on
used in the support of the family and the crop, is not liable to levy or at-
in making the next year's crop, the tachment Starnes v. Allen, 58 Ala.
crop so made would be exempt, 316. But the landlord may subject
especially if not greater than the the growing crop of his tenant, for
original exemption. . . . Here, rent due, by attachment, when 'the
what was left to make the next crop^ conditions are such that such remedy
after paying for the rent of the land may be invoked, under Missouri stat-
and the support of the family, was ute. Crawford v. Coil, 69 Mo. 588;
scarcely, if at all, more than the orig- Hubbard v. Moss, 65 Mo. 647.
816 THINGS EXEMPT.
sary as provisions for the support of the family and the seed-
ing of the next crop, fixing no sum as the ultimatum: so, in
cases of dispute, the jury decides how much is requisite. The
growing crop may be levied upon, so far as it is not exempt,
but its maturity must be awaited before sale.' The value at
the date of sale, when the crop is ripe, is that which is reck-
oned in a claim for damages for wrongful seizure or conver-
sion.^
It does not follow that, because a farm is exempt as home-
stead, its products are so ; for instance, grain produced upon
such a farm, and harvested, was held to derive no exemption
character from its homestead origin.'
Crops are not everywhere exempted to heads of families
exclusively.''
It was said respecting the attachment of a crop: " It is well
settled that the lien of a landlord for rent and advances is su-
perior to all other liens, and will prevail against a claim of
exemption, as regards the crops grown on the rented prem-
ises. The declaration of exemption not only makes a general
claim, but also recites the attachment and its levy, and claims
the property levied upon as exempt particularly from attach-
ment. If the relation of landlord and tenant in fact existed
between the plaintiifs and defendant in the attachment, and
the indebtedness is for rent and advances, and the attachment
was issued for the enforcement of the landlord's lien, and the
crops levied on were grown on the rented premises, they are
subject to the attachment, and the claim of exemption is friv-
olous and unavailing." *
"Wliere exemption prevails even against the landlord's claim,
it may be waived expressly, in such broad terms as these :
" The benefit of all laws or usages exempting any property
1 Howard v. Eugland, 35 Minn. 388
McAbe V. Thonipson, 27 Minn. 134
Muipliy V. Slierman, 25 Minn. 196
N. W. 451, distinguishing McCoy v.
Brennan, 61 Mich. 363.
'Horgan v. Amick, 63 Cal. 401.
Lynd v. Picliet, 7 Minn. 138. * A third of his crop was exempted
2 Sherman v. Clark, 24 Minn. 37; to a laborer ■vyho was not the head of
Hossfeldtv. Dill, 28 Minn. 469; How- a family. Prince v. Nance, 7 S. C.
ard V. E., supra. Farm products to 351.
the value of $250 are exempt by 'Bryan v. Kelly, 85 Ala. 569, 576 ;
Howell's Stat Mich., ch. 266, § 27 (8). Ex parte Barnes, 84 Ala. 540.
Hutchinson v. Whitmore (Mich.), 51
CE0P8 AND PROVISIONS.
817
from distress or execution for rent is hereby waived." ^ On
the other hand, the landlord's lien on household goods may be
dislodged by sale by the tenant, if notice be given him and he
assents to the sale ; or if the circumstances be such that his
assent may be presumed.^
"Whether a tenant or other claimant is entitled to the ben-
efit of an exemption law has been held not a proper question
to be submitted to the jury, because the statute did not
authorize such reference.'
There have been many decisions relative to crops and pro-
visions.
1 Beatty v. Rankin, 139 Pa. St. 358 ;
distinguishing Mitchell v. Coates, 47
Pa. St. 302.
2Rohrer v. Cunningham, 188 Pa
St 163.
3 Swope V. Ross, 29 Ark. 870.
* Provender for live-stock has been
held to depend for its exemption
upon its owner's having such stock.
King V. Moore, 10 Mich. 538 ; Cowan
V. Main, 24 Wis. 569. Contra, Kim-
baU V. Woodruff, 55 Vt. 329. See
Farrell v. Higley, Hill & D. 87, and
Atkinson v. Gatcher, 23 Ark. 103. A
farmer's produce, consisting of pota-
toes, apples, cabbage, etc., which he
was hauling to market to be ex-
changed for goods of family neces-
sity, was held exempt. Shaw v., Davis,
55 Barb. 389. See Hall v. Penney, 11
Wend. 44. A statute, exempting all
necessary meat, flsh, flour and veg-
etables actually provided for family
use, was held not to include wheat.
Salsbury v. Parsons, 36 Hun, 12. But
meal is included under the statutory
exemption of flour. Lashaway v.
Tucker, 61 Hun, 6. When there is a
question as to the necessity of pro-
visions, seed-wheat, etc., it should be
given to the jury. Howard v. Rug-
land, 85 Mina 388. See Murphy v.
Sherman, 25 Minn. 196. If the stat-
ute points out the thing exempt,
there is no need of the debtor to se ■
53
lect Zielke v. Morgan, 50 Wis. 560.
As to seed-wheat, see Stilson v. Gibbs,
46 Midi. 215. As to garden vegeta-
bles: Carpenter v. Herrington, 35
Wend. 870. As to fruit upon trees.
Roe V. Gemmill, 1 Houston (Del.), 9.
Waiver of exemption is forbidden in
some states with respect to certain
classes of articles — such as clothes,
provisions and household goods.
Butler v. Shiver, 79 Ga. 172. See
Sasser v. Roberts, 68 Ga. 352. Also,
corn unhusked. Cochran v. Harvey
(Ga.), 14 S. E. 580. "Provisions:"
something edible, food, or raw mate-
rial needing only cooking. A cow is
not included. Wilson v. McMillan,
80 Ga 783. See Clement v. Lee, 47
Ga 636. Food prepared, not for the
debtor's private family merely, but
for his boarders, was held not ex-
empt. Coffey V. Wilson, 65 la. 370;
Iowa Code, § 3072. Groceries in stock
for sale are not exempt as for family
use. Nussberger v. Conner, 78 Mo.
573; Nash v. Farrington, 4 Allen,
157. Judgment had been recovered
for necessaries of life furnished to
the defendant; and then an action
was brought on the judgment, which
included the costs of the first suit
with the amount adjudicated. Held,
that the latter was not a suit for
"necessaries furnished " the defend-
ant's family, in the sense of the stat-
818
THINGS EXEMPT.
Provisions furnished for a boarding-house are not contem-
plated under the phrase " actual necessities of life " for a
family. So, a debt contracted for them was held to be not
governed by the statute relative to such " necessities." The
statute (the court construing, said) " has reference to debts
contracted for the necessities for the debtor and his family,
and not for debts incurred in carrying on a hotel or boarding-
house business."*
§ 12. Book^j Pictures, Musical Instruments, etp., Out-
fits of Fishermen and Miners, etc.. Specially
Exempted.
SooTcs: Special designation of the family bible is made in
several states; and, in one or two, a prayer-book andahymn-
booli are also exempted. School books and books in family
use are also specified in several.^ The libraries of professional
men are exempt, as such, in some statutes, vv^hile in others
they are protected as implements with which the debtor earns
ute. Brown v. West, 73 Me. 33 ; Bick-
nell V. Trickey, 34 Me. 373 ; Uran v.
Houdlette, 36 Me. 15 ; Bangs v. Wat-
son, 9 Gray, 211. Statutes exempting
necessary provisions, etc. , are con-
strued so as to include things not ab-
solutely essential to life. Montague
V. Richardson, 24 Ct. 338 ; Croker v.
Spencer, 2 D. Chip. 68. Perishable
articles. Dean v. King, 13 Ired. 20,
34 Stock-hogs, pork and bacon.
Byons v. Mount, 89 Tenn. 361; 17
S. W. 1037. Cloth left with a tailor
has been exempted as clothing, per-
haps ill-advisedly ; it rnight more
plausibly be classed with family sup-
plies. See Richardson v. Buswell, 10
Met (Mass.) 506.
1 LenhofE v. Fisher (Neb.), 48 N. W.
821 : Neb. Civ. Code Proc, § 531.
2 In Wisconsin the family bible,
school books and " the library of the
debtor and every part thereof." Rev.
Stat, gg 2983-4. In Oregon "books,
pictures and musical instruments
owned by any person, to the value
of $75." Code, p. 613. In New York
books and pictures to the value of
$50. Code, § 1390 (2). Massachusetts
has the same limit as to books. In
Missouri the bible and other books
used in the family. In Michigan
" the libi-ary and school books of
every individual and family, not ex-
ceeding $150 in value." Maine ex-
empts a family library worth $150,
besides school books and bibles.
Kansas exempts the same, without
that limitation. Iowa, "all private
libraries." Illinois, bibles and school
books of any person, in addition to
other property to be selected within
a limitation. In Delaware the fam-
ily bible, family library and school
books are exempt In Ohio " family
books." In Colorado school books
and library, In Arizona school books
and family library, to $150. And in
almost every state there are provis-
ions for exempting such booka
BOOKS, PICTURES, ETC., SPECIALT-Y EXEMPTED. 819
his livelihood.! There is a limit of value placed upon suoh
libraries in some states.^
One state specially exempts books presented by congress,
or the legislature of any state.' In that state, circulating
libraries are excepted ; but, in another, books belonging to
public libraries are expressly exempted.* Books and papers
pertaining to public offices are protected in one state by ex-
press provision,* while in others they doubtless ' are covered
by general provisions. Manuscripts have been held exempt.'
Pictures: Family portraits, pictures and drawings are ex-
tensively protected. They are exempted unqualifiedly by
some statutes; limited in value, by others; confined to a par-
ticular description, in a few. " Hanging pictures, oil paint-
ings and drawings drawn or painted by any member of the
family; family portraits and their frames;"' "family pict-
ures ; " * " portraits, pictures . . and paintings not kept
for sale ; " ' pictures which, with books and musical instru-
ments, are limited to $75.'" These will serve to show the usual
provisions.
It has already been mentioned that pictures are sometimes
classified with household goods or furniture ; and doubtless
they may be selected and claimed as such by the debtor in
making up his list within his monetary limitation of such
goods. Where he has the specific exemption of his pictures he
would be relieved from selection unless there is limitation as
to them in his state and he has more in value than the law
^allows him to keep. It has been observed that oil paintings
and drawings are designated in a statute, while nothing is
said of water colors and other kinds of painting. To save the
latter, it might be convenient to select them as part of the
1 Roberts v. Moudy (Neb.), 46 N. W. 3 Eev. Stat. Wis., § 3983.
1013. * Texas.
2 Illustrations : In California, $300 ; » Nevada.
District of Columbia, $300 ; Idaho, « Dart v. Woodhouse, 40 Mich. 899.
no limit ; Vermont, $200 (including ' Cal. Code of Prac, g 600 ; Idaho
instruments) ; Mississippi, $250. In Rev. Stat., 1887.
Missouri professional persons may * Colorado, Delaware, Kansas, Min-
select books necessary to their call- nesota, NevF Mexico, New York, Ohio,
ing, in lieu of other things. Several Texas, Wisconsin, etc.
other states exempt professional li- 'lowa.
braries, some with and some without >" Oregon Code, p. 613.
restrictions.
820 THINGS EXEMPT.
furniture when that course is allowable. Whether " family
pictures " is a phrase broad enough to include a painting by
any great artist whose works are very valuable, queT§.
Musical mstruments: A musical instrument may be also
an article of furniture ; a piano, for instance ; and it may be
selected as furniture when it is not expressly exempt as such
instrument. Musical instruments which do not serve to fur-
nish a parlor or the room, such as violins, harps, etc., have
not the double means of escaping execution.
Sewing-maehines, etc.: Looms, sewing-machines, knitting-
machines and spinning-wheels are frequently found among
specific exemptions, while they are also tools or instruments
susceptible of being selected and claimed under general ex-
emptions of chattels to a given amount.
Pews, etc.: Pews in churches, used by debtors and their
families, are specifically exempted in many states. It has
been held that the communion service belonging to a church
was not liable to execution under a judgment obtained against
the trustees for the pastor's salary.^ Lettered gravestones are
specially exempt in one state.^ Tombs are so in several.
Fire-arms: Arms are enumerated among the specific ex-
emptions in some statutes ; as " one musket or rifle, or a shot
gun ; " ' " all arras and accoutrements ; " * " all arms and military
equipments required by law to be kept ; " * "a sword, horse,
medal, emblem or device of any kind, presented as a testimo-
nial for service rendered in the military or naval service of
the United States ; and the uniforms,^ arms and equipments
which were used by a person in that service." ° "When arms are
not specifically exempt, they are liable, unless selected as part
of the personalty under a statute allowing the debtor to chose
from any kind of it, to a given value. If one kind of arm is
expressly exempted another kind is excluded by omission.'
Boats: Fishermen and others' requiring the use of boats,
and their accompanying trappings, are favored by the statutes
of several states. A few examples may suffice, as follows :
" There is exempted to a person engaged in lightering for his
'Lord V. Hardie, 82 N. 0. 341; * Michigan.
Stith V. LookabUl, 76 N. C. 465. » Missouri.
8 Missouri. « N. Y. Code, § 1393.
•Iowa, Oregon. 'CSioate v. Redding, 18 Tex. 579.
BOOKS, PICTUEES, ETC., SPECIALLY EXEMPTED. 821
support, one or more lighters, barges or scows, and a small
boat with oars, sails or rigging, not exceeding in the aggre-
gate $250 coin, value; and to all persons, a canoe, skiff or
small boat, with its oars, sails and rigging, not exceeding $50
in coin ; " ^ " the boat, fishing tackle and nets of fishermen
actually used by them in the prosecution of their business, to
the value of $100 ; " '^ " one boat not exceeding two tons bur-
den;'" "one boat used in fishing, not exceeding $200 in
value." *
Miners' outfit: In some of the mining states not only the
cabin of the miner to the value of $500 is protected but also
his necessary apparatus to a like sum, together with the horses
needed, and provender for them for a given time. Among
the implements enumerated as necessary are a windlass, der-
rick, car, pump or hoisting gear and hose.'
Publio personalty: The chattels of municipal and other
public corporations, such as books, furniture, etc., are rendered
exempt by some of the state statutes. In the absence of ex-
press statutory exemption, they may be protected from forced
sale because necessary for governmental purposes.
There is exemption of other personalty, such as wages, in-
surance money, ohoses in action and interests, which are rele-
gated to the next chapter.
1 Code of Washington, § 342 et limits the tbols to $300 ; Gen. Stat' of
seq. Nev. ; Deering's Code & Stat. Cal., in
2 Massachusetts. which, besides $500 for the cabin,
' E. S. Me., ch. 81. and $500 for the tools, there is an ad-
* Connecticut ditional $1,000 exempted as the maxi-
'See Comp. State of Montana, mum value of the miner's derrick
1887; E. a of Idaho, 1887, which worked by himself.
OHAPTEE XXVI.
INCORPOREAL THINGS AND MONEY.
i 1. Exemptible Interests.
2. Wages of Laborers and Others.
3. Wages, Salaries and Earnings.
4. Choses in Action.
5. Set-off Against Exempt Glioses
in Action.
6. Money Deposited.
7. Fire Insurance Money.
§ 8. Life Insurance Money.
9. Pension Money and Its Invest-
ment ^
10. Pension Money in Transit
11, The United States Pension Act :
Whether it Exempts Accu-
mulations from the Money.
§ 1. Exemptible Interests.
While there can be no incorporeal homestead, there may be
exemption of interests in realty.^ Whatever may be sub-
jected to execution is susceptible of exemption. There are
many intangible things which may be subjected to execution :
credits, stock in banks and other corporations, shares in part-
nership property, rights in an estate, and generally all legal
claims. There are some such things which cannot be sub-
jected to execution : rights of way, servitudes of various sorts,
all proprietary rights which are inalienable. In the civil
law, res incorporales are those which are apprehended men-
tally— not by the touch or by ocular inspection; and the
examples above given will illustrate the class. But the Roman
jurists carried their idea of such things to a degree of refine-
ment not necessary to the present purpose.
Because execution and exemption are correlative, it must
not be inferred that the legislator has exempted all impalpable
property which is liable to execution, or has rendered it ex-
emptible to a degree. We must look to the statutes to find
what he has done in this respect — not to theories or to what
he may do consistently with legal philosophy. With the ex-
ception of wages, there is scarcely any incorporeal thing which
is actually made specifically exempt in the statutes generally ;
and this exemption is always under limitation of time or
Mwfe, pp. 6, 131, 131-140.
WAGES OF LABOEEES AND OTHEES. 823
amount. Other such things are exemptible, upon selection,
under the privilege of retaining personalty to a certain value.
They are so not merely when mentioned in the statute — a
rare occurrence — but when covered by a provision of general
tenor which fairly may be construed to include them. There
is no reason why a debtor may not claim his interest in a
business venture, his shares in a corporation, his claims and
credits due him by others, as well as he may claim any res
corporalis, under such general provision. There is no reason
why his interest in a partnership may not be selected as the
personal property which he wishes to save when execution is
pending and that interest is liable to forced sale. Hereafter
it will be shown that partnership property is neither exempt
nor exemptible, upon the claim of a member of the firm or of
the firm itself ; but the interest which a member has in the
partnership is his own personal property, and may be claimed
by him as exempt, under the general provision above men-
tioned, whenever that interest is about to be subjected to
forced sale. If it is aU he has ; or if it is a part of what he
may select from, there seems to be no obstacle to his having
it exempted, upon claim and selection, to the degree of value
fixed by the statute of his state.
§ 2. Wages of Laborers and Others.
It is common, in the several states, to exempt the sum due
for wages of laborers for the last month or more prior to at-
tachment or the levy of execution. Some of the states have
statutes broader than others with respect to this species of
exemption ; some include the personal earnings of the debtor
though they may not come under the denomination of wages,
but the common laborer's daily, weekly or monthly moil is
generally protected in aU.'
The word laborers designates large classes of persons, en-
1 "Wages are usually exempt either Kan. 583 ; Enzor v. Hurt, 76 Ala.
up to a certain sum, or back to a cer- 595. The last month's wages being
tain date or for a certain time ; as, exempt, they were kept within the
one month, or three months before time and amount by the garnishee's
the levy, attachment or garnishment, paying to the employe after garnish-
or before the date of collection, as the ment, which the court did not disap-
statute may provide. Haynesv. Hus- prove. Davis v. Meredith, 48 Mo. 363 ;
sey. 73 Me. 448 ; Seymour v. OdOper, Bliss v. Smith, 78 111. 359 ; Hoffman
^6 Kan. 539 ; Harding v. Hendrix, 26 v. Fitzwilliam, 81 111. 531.
824 INOOBPOEEAL THINGS AND MONBT.
gaged in a great variety of employments ; such as farm hands,
wood choppers, coal heavers, hod carriers, team drivers, cooks,
chamber maids, sailors, roustabouts, and the like.^ There are
many other classes composed of men who work with their
hands for a living, but whose right to the privileges of a la-
borer — when the sheriff comes — is sometimes questioned.*
Ordinarily, the manual worker is a laborer ; and the sense in
which the word laborer is employed in conversational English
is that which it has in the more stilted verbiage of statutes.
This use would cut off many industrious and deserving claim-
ants of exemption for personal earnings, where the statute
favors only the wages of laborers.^
There has been a disposition to favor railroad and steam-
boat engineers, traveling merchants, clerks, and many others
in responsible and genteel employments, by drawing a line
between them and persons in kindred employments who work
under contract. Clerks, book-keepers, secretaries, amanuenses,
typewriters and other like employes whose pay is periodical,
and whose service is not rendered under contract of such a
character as to take them out of the class of wage-earners,
have been accorded the benefit of laws saving wages from the
process of garnishment.*
• Seamen, on an Atlantic coasting ' In this sense, livery-stable keep-
voyage, cannot claim the exemption ers, itinerant agents, commercial
of their wages from garnishment or travelers, engineers, clerks in stores,
trustee process, in Massachusetts and etc., are not " laboring " men. Epps
Maine. White v. Dunn, 134 Mass. 271; v. Epps, 17 111. App. 196; Jones v.
Eddy V. O'Hara, 133 Mass. 56 ; Ayer Avery, 50 Mich. 326 ; Powell v. El-
V. Brown, 77 Me. 195 ; Staples v. dred, 39 Mich. 552 ; Dove v. Nunan,
Staples, 4 Me. 532. Compare McCarty 62 Cal. 899 ; Brusie v. Griffith, 34 Cal.
V. Steamer New Bedford, 4 Fed. 818. 202; S. G, 91 Am. Dea 695; Coffin
This rule does not prevail in New v. Reynolds, 37 N. Y. 640 ; Aikin v.
York. See Eoss v. Bourne, 14 Fed. Wasson, 24 N. Y. 482; Short v. Med-
858. berry, 29 Hun, 39 ; Dean v. De Wolf,
2 Whether one is a " laboring man " 16 Hun, 186 ; Krauser v. Ruckel, 17
within the meaning of the phrase is Hun, 463 ; Eviesson v. Brown, 38
a question of law after the character Barb. 890. Contra: Williams v. Link,,
of the service done has been estab- 64 Miss. 641. In Minnesota, the title
lished by evidence. Wildner v. Fer- of an act to exempt the wages of la-
guson, 42 Minn. 112. A " laboring borers was held to include those of a
man " is one engaged in manual telegraph operator. Boyle v. Van-
work. Wakefield v. Fargo, 90 N. Y. derhoof, 45 Minn. 31.
213 ; WiUiams v. Link, 64 Miss. 641. ♦ Abrahaius v. Anderson, 80 Ga.
WAGES, SALARIES AND EAKNINGS. 826
§ 3. Wages, Salarieis and Earnings.
The existence of a contract, or not, is no criterion by which
to determine whether one is a laborer working for wages. A
common scavenger may operate under a contract to have a
daily stipend ; a " railroad king " may work hard manually
without a contract. Why not construe the words laborer and
wages as they are always understood in common parlance?
So understanding, the clerk, book-keeper, commercial traveler,
typewriter, telegraph operator, and the like, are not laborers,
and their pay not wages, whether working under contract or
not. Therefore, to save them something of their earnings
from execution, other expressions should be found in the stat-
ute than those above noticed. Why not say clerk's wages?
Or, better, employ a term that will include all the wage-
earners who are not manual workers? Or cover it all under
laborers and other wage-earners. A term of that kind would
not include one working for a share of profits under a con-
tract-to that effect, since he could not be called properly the
clerk of the other contracting party,' nor a wage-earner. It
would include one traveling for a firm for monthly pay, by
570, citing Lemar v. Chisholm, 77 earnings have been held exempt when
Ga, 306; Sanner v. Shivers, 76 Ga. not wages. Banks v. Rodenbach, 541a.
335 ; Smith v. Johnston, 71 Ga. 748 ; 695. One's wages may be attached in
Hightower v. Slaton, 54 Ga. 108 : a suit against him for his own board.
Claghorn v. Saussy, 51 Ga. 576 ; Butr Smith v. McGinty, 101 Pa. St 403.
ler V. Clark, 46 Ga. 466 ; Cai-aker v. See Easchert v. Eunz, 9 Mo. App.
Matthews, 25 Ga. 571. Compare Kyle 283. As to according exemption to
V. Montgomery, 73 Ga. 337, in which the debtor in Illinois from any money,
the court declared that it would hesi- salary or wages due him or her from
tate to hold that clerks in stores, any person or persons or corpora-
overseers, etc., are to be classed with tions, see Illinois act of May 34, 1877,
wage-earners whose wages are pro- ' § 1 ; Finlen v. Howard, 126 111. 259 ;
tected from garnishment, were the distinguishing Fanning v. Nat. Bank,
question new j and that it would not 76 IlL 53.
further extend the rulings already i A salesman, paid a share of the
made on this subject in previous cases, net profits and bearing half the losses,-
A boarding-house keeper, by his per- by contract with the firm for which
sonal service in his business, does he sold, was not a clerk entitled to
not become a wage-earner so as to be the benefits of a statute exempting
entitled to have dues for board ex- clerk's wages from execution, and
empt. Shelley v. Smith, 59 la. 453. the wages of " other persons of that
See Smith v. Brooke, 49 Pa. St. 147. kind." Brierre v. Creditors, 43 La.
Jn Iowa, however, dues for personal Ann. 423.
826 INCORPOKKAL THINGS AND MONEY.
agreement, on a contract to pay a debt to his employers in
this way.'
Wages and salary are terms never confounded with each
other when the pay for earnings of manual laborers is meant
on the one hand, and that of clergymen and officials on the
other. But there is a middle line of money-earners, such as
clerks, book-keepers, and salesmen, whose pay is sometimes
called wages and sometimes salary. "We would not understand
the former term, used in a statute, as including the salaries of
preachers, professors, corporation officers and public officials,
nor would we ever apply the latter to the compensation of a
farm hand or mechanic's employ^. The salary of a teacher
has been held exempt, under different views (some scarcely
tenable),^ but it ought not to be so held under the phrase
" laborer's wages " unqualified.
When the legislator means salary he should say so ; when
he means wages he should say so, as the words are understood
well enough ; but he should qualify when he has reference to
the compensation of that class above mentioned which often
has either term used to express it. With such legislation, there
would be no need of the unsatisfactory rule dependent upon
the terms of employment.
Either wages or salary may be exempt under certain cir-
cumstances and liable under others.^ Sometimes they turn
upon a question of residence;* sometimes upon family head-
' A debtor, the head of a famUy, port Spengler v. Kaufman, 43 Mo.
owing seven hundred dollars to a App. 5 ; distinguishing Whitehead v.
firm, agreed to travel for them in Tapp, 69 Mo. 415, and Brown v.
consideration of a hundred dollars Brown, 68 Mo. 388. Even the wages
per month and his expenses — half of of a laborer, though exempt gener-
the salary to count on the debt. He ally, may be attached for his board-
served two months, then sued his bill, under some statutes. Weisman
creditors and recovered $100. Deer- v. Weisman, 133 Pa. St 89 ; Pa. Act
ing V. Euffner (Neb.), 49 N. W. 771. April 4, 1889, P. L. 23.
2 Teacher's salary likened to that of ^ In Illinois the wages due a non-
a public officer, and held exempt, resident head of family were held
Allen V. Eussell, 78 Ky. 105. See exempt Mineral Point R Co. v.
Schwacke v. Langton, 13 Phila. 402. Barron, 88 111. 365 ; 111. Glass Co. v.
' The salary of a husband without Holman, 19 111. App. 30 ; Buckingham
children, who was separated from v. Fisher, 70 111. 131. And in Ala-
his wife, was not exempt as against bama it was held that the removal of
her judgment against him for sup- a resident to another state did not
WAGES, SALARIES AND EARNINGS. 827
ship, though the head of the body be abroad ; ^ sometimes
upon recording, Avhen the laborer is a commorant.'^ Persons
making their livelihood and supporting their families by per-
sonal exertions are accorded exemption under various forms
of expression giving rise to no discussion as to the terms above
discussed. , For instance, the earnings of a photographer, by
his own hands, during sixty days preceding suit against him,
were saved to him from execution on his showing them to
be necessary to his family's support.' Earnings of other debt- .
ors have been protected under statutes saving them for family
maintenance.*
It has been held, under statute construction, that in a suit
by a laborer to recover wages, the defendant (who was his
employer) could not have a judgment against the plaintiff,
which had been assigned to him before the laborer's suit was
instituted, allowed as a set-off.'
While wages are thus highly favored by the law when cred-
itors seek to subject them to the payment of the laborer's
debts, they are no less so when the suit is by him to recover
the price of his labor. The statutes of some states inhibit ex-
emption to defeat a claim for wages. And such a statute has
been held constitutional. Personal property of a certain de-
scription maj'^ be generally exempt, yet liable to execution un-
der a judgment in a suit for wages. This does not violate the
requirement of uniformity, and is not class legislation.*
work the loss of his right to chattel 83 Me. 413 ; Me. R. S., ch. Ill, § 6. See
exemption, if his claim was pleaded Wright v. Smith, 74 Me. 495 ; Ames
before he left McCraiy v. Chase, 71 v. Winson, 19 Pick. 348.
Ala. 540. ' McSkimin v. Knowlton, 14 N. Y.
1 The laborer may be supporting S. 383.
his family in Canadsi, yet be the head * Exempting the earnings of a
of it in the sense necessary to entitle debtor was held to include the earn-
him to the exemption of his wages in ' ings of his team, wages, dray, etc.
Michigan. Pettit v. Booming Co., 74 Kuntz v. Kinney, 33 Wis. 510. Net
Mich. 314. proceeds of business held to be " earn-
2 A laborer, temporarily residing at ings." Brown v. Hebard, 30 Wis.
Jiis working place, is a commorant 344 The statute extends to the earn-
in the sense of the statute which re- ings of professional men. McCoy v.
quires commorants to have their Cornell, 40 la. 457.
claim to wages recorded at such place ^ Post, § 5.
to make their assignment of it good SMcBride v. Reitz, 19 Kan. 123.
against attachment. PuUen v. Monk,
828 INCOKPOEEAL THINGS AND MONEY.
§ 4. Choses in Action.
A chose in action may be exempted by law. "An exemp-
tion can be set apart to a debtor in choses in action as well
as any other species of property, . . . and, when so set
apart, is free from judicial interference."* Under the ex-
emption of personal property, is a chose in action included ?
That is, does the ievra. personal' projperty embrace choses in
action? Generally speaking, it does, unquestionably; but the
: question was raised whether a constitutional provision, that
. " the personal property ... to the value of $1,000 . . .
shall be exempted from sale on execution . . ." embraced
a chose in action not subject to levy and execution. There
was no answer by the court, because money — not a chose in
action — was the thing sought to be subjected to the satis-
faction of the judgment in the case at bar.^ But the question
does not seem difficult ; for, though choses in action, consid-
ered as property, are certainly personal, only those kinds of
personalty which would otherwise be liable to execution can
be meant when their exemption is provided for in a constitu-
tion or statute.' When a chose in action has been set apart
1 Leggett V. Van Horn, 76 Ga. 795 ; notes belonging to a decedent,
Jolly V. Lofton, 61 Ga. 154 ; Frost v. which the widow was allowed to
Naylor, 68 N. C. 325; Ballard v. select under a statute exempting
Waller, 7 Jones (N. C), 84. personal property not exceeding in
^Leggett V. Van Horn, supra, value one thousand dollars; the
Money and credits were held ex- court observing that there was 'no
empt as personal property under indication of a purpose to confine
Ohio Stat (S. & C.) 1146, in the case her to any kind or species of per-
of Cbiloote v. Conley, 36 O. Stat 545. sonal property.' And in Borden v.
'The supreme court of Alabama, Bradshaw, 68 Ala. 363, it was held
in discussing the question whether to include a chose in action for dam-
the phrase personal property, as ages resulting from negligence in
used in the constitution and stat- the conduct of a ferry. We have
ute of that state, can be construed often decided that our exemption
to embrace choses in action, said laws . . . were to be liberally
that the question " has been many construed ; and such a rule of con-
times decided in the affirmative by struction necessarily induces us to
the court In Williamson v. Harris, attach to the phrase ' personal prop-
57 Ala. 40, it was said that the erty,' as used in those laws, a com-
phrase was used ' in its broadest and prehensive signification. It was, in
largest sense,' and included money our judgment intended to' embrace
in the hands of a garnishea In everything which is the subject of
Darden v. Reese, 68 Ala. 311, it was ownership, not being realty or an
construed to embrace promissory interest in realty. The words are
SET-OFF AGAINST EXEMPT OHOSES IN AOTION. 829
as exempt (as a sum bequeathed to the debtor by his father),
it is free from administration and judicial disposition. Of
such a bequest it was judicially said : "The court had no
jurisdiction under the allegations of the bill to interpose by
injunction or receiver. The exemption was allowed for the
benefit of the debtor and to the detriment of the creditors ;
and when properly set apart the courts have no jurisdiction
to interfere therewith at the instance of creditors. . . ." ^
§ 6. Set-off Against Exempt Choses in Action.
In a suit upon a promissory note, the defendant pleaded, as
set-oflF, a debt due to him by the plaintiff. The plaintiff re-
plied by claiijiing that the note was exempt. There was judg-
ment for the plaintiff ; the note was held exempt, and the set-
off was not allowed.^ This decision was rendered under the
general statutory provision : " Property, not exceeding in
value six hundred dollars, owned by any resident householder,
shall not be liable to sale on execution or any other final pro-
cess." ' A later decision under this provision, accordant with
that above cited, contains the following statement of the ques-
tion at issue, by the court : " The principal matter in dispute
between the parties is whether or not the appellee, under the
pleadings and proof, was legally entitled to claim the benefit
of the statutory exenlption of $600 as against the judgment
pleaded by the administrator, as a set-off, in the third para-
graph of the answer. The question presented is this : Where
an action is brought on an open account, for work and labor,
or for goods sold and delivered, or for money loaned, and the
defendant in his own name pleads a set-off to the account, in
the form of a judgment previously obtained by the said de-
fendant against said plaintiff, can the plaintiff, . . . who
would be entitled to the benefit of the exemption on execu-
tion, legally plead the same in his 'reply, and have the claim
declared by the Code to include of $500 was allowed to claim it out
'money, goods, chattels, things in of his share of an intestate's per-
action and evidence of debt, deeds sonal estate.
and conveyances.' Code, 1876, §§ 1, ' Leggett v. Van Horn, 76 Ga. 795.
2." Enzor v. Hurt, 76 Ala. 595. In 2 Smith v. Sills, 126 Ind. 205 ; 25 N.
Swandale v. Swandale, 25 S. C. 389, R 881. See Junker v. Hustes, 113
the head of a family who was en- Ind. 524.
titled to exemption to the amount ' Rev. Stat of Indiana (1881), § 70a
830
INOOEPOEEAL THINGS AND MONET.
which he holds, and on which he seeks to recover, set off to
him as exempt from sale or seizure?"
It will be observed that this question puts the statute to a
greater strain than did that of the preceding case; for here
the action was on an open account — partly for goods sold to
the defendant — not on a promissory note ; and the set-off
was that of a judgment, not an unadjudicated claim of in-
debtedness. Had this question been wholly pristine, a clear
distinction might have been drawn between it and the other.
It was treated by the court, however, as settled by prior de-
liverances, the set-off was disallowed, and the judgment cred-
itor was condemned to pay, with his adjudicated claim left
unpaid. 1 The court thus disposed of the argument that the
competitive debts had canceled each other and had become
extinct by confusion: "The propositibn of appellant that.
1 Coppage V. Gregg (Ind.), 37 N. E.
570. Reinhard, J., fbr the court : "It
has been decided repeatedly that
where an insolvent debtor holds a
judgment for less than the amount
exempt by statute, and that judg-
ment is all the property he owns, the
judgment defendant will not be al-
lowed to satisfy it by a set-off of
another judgment which the latter
holds against him. Puett v. Beard,
86 Ind. 172; Butiier v. Bowser, su-
pra; Junker v. Hustes, snpra. We
can see no distinction in principle
between the question determined by
these cases and the one now under
consideration. We know of no rule
which prescribes to the debtor what
kind of property he shall or shall not
claim as exempt. If he can claim as
exempt a judgment of which he is
the owner, no good reason can be
shown why he cannot with equal
propriety claim an account or a note
or any other chose in action. One
is as much ' property ' as the other,
and the same rule of law is appli-
cable to both. See PickreU v. Jerauld,
ante, 433 (decided at the present term
of this court). The appellant argues
that ' if exemption as against a set-
off may be claimed, then a plaintiff,
although worth a million dollars,
may claim exemption of his claim as
against a set-off, and thus defeat the
defendant, and anjerce him in costs,
although equity and good conscience
requires the plaintiff to pay them.'
There would be much force in this
argument if the law permitted a
millionaire to claim the exemption
in such cases; but it only permits
this to be done by a pai-ty whose en-
tire property, including the judgment
or other thing claimed as exempt,
does not exceed in value $600. Car-
penter V. Cool, 115 Ind. 134; 17 N. E.
Rep. 266. We hold, therefore, that
the appellee had the right under the
statute to demand as exempt the-
claim which he held against the es-
tate of the appellant's decedent We
think the proceeding against him by
set-off was such 'final process' as
was contemplated by the framers of
the act We believe the decisions of
our own state, as well as the weight
of other American authorities, fully
sustain this conclusion."
SET-OFF AGAINST EXEMPT CHOSES IN ACTION. 831
where there are mutual outstanding claims of two parties,
they extinguish each other pro tanto, though correct as to an
abstract statement of law, can have no application here, where
property is claimed as exempt from sale or seizure. - The equi-
table or civil-law doctrine of compensation cannot be invoked
to strike down a plain constitutional and statutory right guar-
antied to the impoverished householder. The cases already
cited fully recognize, if they do not in terms establish, this
principle." '
It will be observed that the cases thus far cited, on the sub-
ject of set-off, are all from one state ; but there have been
somewhat similar deliverances in others. That a debtor may
have a judgment due him exempted in his favor ^ is a proposi-
tion less radical that the one above propounded and judicially
sustained. That a laborer may pursue his claim for a sum due
for wages to the point of execution, notwithstanding the plea
of a judgment as offset by a defendant who had bought it for
the purpose, is more nearly parallel.' A laborer , sued for
wages in a sum within the exemption limit. The defendant
pleaded, as set-off, a judgment which had been duly rendered
against the laborer, and which had been transferred by the
judgment creditor to him. He took the assignment of this
judgment after he had become indebted to the laborer but be-
fore the latter had brought suit. The statute expressly pro-
vided * that ," the defendant may plead, by way of set-off or
cross-action, mutual demands held by the defendant against
the plaintiff at the time of action brought, and mutual when
offered in set-off." The court said : " This provision must be
construed with reference to the act of 1871, whereby $30 of
the wages of every mechanic and laborer is exempt from ' ex-
ecution, attachment or garnishment.' Exemption statutes
are entitled to a liberal construction. The manifest purpose
of the legislature was to exempt this amount of wages from
' To the cases alluded to may be Ind. 175. Compare Convery v. Lang-
added, as bearing on this subject don, 66 Ind. 311.
rather pointedly : Dumbould v. Row- 2 Mace v. Heath (Neb.), 51 N. W.
ley, 113 Ind. 353 ; Barnard v. Brown, 317.
112 Ind. 53; Taylor v. Duesterberg, 3 Collier v. Murphy, 90 Tenn. 300.
109 Ind. 165; Burdge v. Bolin, 106 < Tennessee Code, § 3628 (M. & V.).
Vide Id., § 2931, Act of 1871.
832 ' INCOEPOEEAL THINGS AND MONEY.
any kind of coercive process of the law. If such a demand
cannot be reached by attachment or execution or garnishment,
is it a claim subject to be set oflF by a claim or demand in no
way springing out of the contract under which the wages
were earned ? We think the exemption laws cannot be de-
feated by such a construction of the statute concerning set-
offs. . . . "While the language used in the act of 1871,
strictly construed, would protect such wages only from ' exe-
cution, attachment, or garnishment,' yet the whole spirit of
the act is such that we think this claim would not subject to
any manner of ^egal seizure. ' Seizure ' is a word often useti
in our exemption laws, and this word has been used by the
editors of the last revision of our Code as fairly construing the
force and meaning of this exemption of wages. While we
must look to the original act when any doubt arises as to the
correctness of the revisal, yet the word, as used by the revis-
ors, expresses very fully what we take to be included within
the meaning of the act of 1871. To subject this claim for
wages to a set-off of the kind here offered was to subject ex-
empted wages to a species of legal seizure not admissible. Let
judgment be rendered for the amount of the judgment below,
and the amount of the judgment improperly allowed to be set
off, and costs of appeal." '
In the volume containing the report of this case there is
another in which the charges for medical treatment in an in-
firmary were unsuccessfully set off against a claim for laborer's
wages. It was a case of garnishment; the garnishee was a
railroad company which had established the infirmary for the
treatment of its employes ; the laborer had consented to be-
come an inmate of the establishment ; the garnishee was the
pleader of the set-off. It is seen that there are some features
different from those of the foregoing case.^
Among the older cases there is one in which the offset of
one judgment against another was denied on 'the ground that
the first was exempt ; that the constitution forbade final pro-
cess against exempt property; that the judgment was such
property (since the first judgment creditor had not the allowed
' Lurtou, J., for the court See ^ Railway Co. v. Kennedy, 90 Tenn.
Waite V. Franciola, 90 Tenn. 191; 185.
Duff V. Wells, 7 Heisk. 17.
SET-OFF AGAINST EXEMPT OHOSES IN ACTION. 833
amount of chattels without it) ; and that the crediting of the
second judgment against the first would virtually be " final
process." '
^It will be observed that all of the decisions denying that
counter-claims and even judgments upon them may be credited
against the exemptionist's judgment look to the rule of liberal
construction for support. In the promissory note case, the
provision that exempt property " shall not be liable to sale on
execution or any other final process " was made to protect the
exemptionist in his character of plaintiff, when the defendant
was not assailing, but virtually defending on the ground that
his indebtedness to the plaintiff had been canceled. In the
open-account case the same provision was held to serve the
exemptionist-plaintiff as though the pleading of a judgment
by the defendant had been a demand for final process.
The case of the denial of a judgment as offset against a
laborer's claim for wages was under different statutory pro-
visions. Mutual demands were expressly authorized to be
pleaded against each other, but execution or attachment ol
exempt wages, to a limited amount, was inhibited. These
enactments, construed together, were held to give the plaintiff
the same protection against his adjudicated indebtedness to
the defendant as he would have had if he had been the de-
fendant and his wages had been attached by garnishment. In
another laborer's case, under the same statute, garnishment
of his employer for the wages was disallowed — the laborer
having voluntarily accepted services equivalent to payment.
Suppose he had sued his employer : could the latter have set
up those services as set-off, under the construction given to
the statutes in the other case?
To the exemptionist's suit the defendant always has the
right to plead payment. He not only has the right to plead
payment in money, but also the giving of goods or services in
paymenrif the plaintiff has taken them as satisfaction for the
demand. If there is nothing due to the exemptionist ; if the
defendant owes him nothing, there can be no judgment in
favor of the former. If, instead of a plea of payment, an off-
set is pleaded, it ought to have equal consideration if the
1 Curlee v. Thomas, 74 N. C. 54 ; Compare Mallory v. Norton, 21 Barb.
"Wilson V. McRlroy, 33 Pa. St 83. 434; Temple v. Scott, 3 Minn. 419.
53
834: INCOEPOEEAL THINGS AND MONET.
plaintiff has voluntarily received compensation. If a laborer's
wages are payable in money, and he owes a debt to his em-
ployer payable in service, the debt ought not to be allowed as
offset against the demand for wages.
§ 6. Money Deposited.
It is not meant to classify money with incorporeal things,
but it is treated in this chapter instead of the last because of
some of its peculiar characteristics. It is an index of value
rather than the thing which it represents. This is clear where
promises on paper are accounted money. Coin is certainly a
palpable object. The Eoman law writers give money of this
kind as a sample of res corporales. It differs, however, from most
tangible things as to execution. It is judicially appropriated
to the satisfaction of a judgment — not executed.
It has already been shown that a debtor cannot claim money
instead of goods ; that is, he cannot let his goods be sold and
then claim their value from the proceeds to the limit of the
exemption.^ The statutes make no specific exemption of
money to the debtor ; but, since it is personalty, may it not be
selected by him under general provisions when it is in bank
or in the keeping of a friend, and is therefore liable to be
reached by the creditor?
Though a specified sum of cash in hand be not exempted by
statute, there is no reason why money should not be saved to
the debtor under provisions which allow him personalty to a
given amount of value when execution is pending against his
property, when it is all that he has or Avhen that is necessary
to make up the amount, owing to the inadequacy of the other
chattels which he possesses, or when he selects it in preference
to other things.
What cash he has in his pocket is not exposed to execution ;
but what he has on deposit in bank, or in the keeping of
friends, is liable to be reached by the creditor when it cannot
be claimed as exempt; so, money thus situated comes under
the provisions above mentioned. The debtor, when privileged
to select the personalty he prefers, to the statutory limit of
exemption, may choose his money.
It has been decided repeatedly that money deposited in
lAnie, p. 784
FIEE INSUEANCE MONET. 835
bank and money due but not collected are subject to selection
as exempt.'
§ 7. Fire Insurance Money.
Is the exemption of personal property to be understood as
applicable to money paid for insurance after the property has
been lost by fire ? Take this statute : " If the debtor is a resi-
dent of this state, and is the head of a family, he may hold
exempt from execution . . . books, instruments. . . ." '^
A physician's library and instruments were exempt under this
act, and they were consumed by fire ; he was a resident, and
married: was the insurance money exempt? The court be-
fore which this question came, answered affirmatively. It
admitted that " there is no provision as to the exemption or
liability of the proceeds or avails of such property when dis-
posed of by sale or otherwise." There is none, when such
property is burnt. The court mentioned no ambiguity in the
statute, to be interpreted either liberally or strictly, but said
that the statute must be interpreted liberally; because its pur-
pose is to secure to the debtor the books, instruments, etc.,
necessary to the making of his livelihood ; to secure food, rai-
ment and shelter to dependent families : hence the court con-
cludes that if exempt articles be insured, and then lost, " the
indemnity secured by insurance stands in the place of the
books." The court argued : " It is plain that a trespasser, by
appropriating the property and converting it to his own use,
cannot make it subject to the payment of the owner's debts
by holding the value of the property the measure of the
debtor's damages for the trespass, subject to garnishment by
creditors. If he could do this, it would be a convenient
method to defeat the exemption of the statute. . . . The
debtor . . . has the authority to change the articles of
exempt property by sale and purchase, exchange, or other-
wise. He cannot be presumed to have abandoned his right to
this authority until he has had an opportunity to exercise it.
The creditor cannot complaim of its exercise. He is defeated
' Fanning v. First N. Bank, 76 111. ton v. Lee, 50 Cal. 101 ; Frost v. Nay-
53; Jones v. Tracy, 75 Pa. St 417; lor, 68 N. 0. 325; Probst v. Scott, 31
Strouse v. Becker, 44 Pa. St. 306 ; Ark. 653.
Carter v. Carter, 20 Fla. 658 ; Hough- 2 ja, Ctode, § 8073.
836 INCOEPOEEAL THINGS AND MONET.
of no right thereby. The property is held free of his debt»
and he is not prejudiced by the change to the other lilie prop-
erty." '
The reasoning of the court will probably find favor beyond
the state where the decision is law. It is certainly good for
the legislature ; and if the indemnity money for exempt chat,
tels lost by fire were declared legislatively to be exempt
everywhere, creditors would not be injured, since exempt
things would thus become exempt cash of equal or less value.
It is likely that the legislators who made the act above inter-
preted would have exempted such mone}'^ had this additional
legislation been proposed. Courts have read between lines
frequently when construing homestead statutes — perhaps al-'
most necessarily. But this view is not taken always. Money
for exempt property destroye'd has been held not exempt.'
§ 8. life Insurance Money.
By a statute exempting five hundred dollars annually paid
by a husband as premium on his policy of insurance on his
own life for the benefit of his wife, it was decided that when
the annual premium exceeds that sum, his creditors may sue
to recover the surplus while both husband and wife are liv-
ing.' But it had been previously held (and the case was now
not disapproved, but distinguished) that the creditor's claim
must antedate the payment of the premium when he seeks
to reach the excess.* But the creditor must be such within
the meaning of the statute ; so, a receiver, appointed to repre-
sent the husband, cannot sue and recover the excess of pre-
mium.*
1 Reynolds v. Haines (la.), 49 N. W. for plaintiffs cite Wooster v. Page, 54
851. The court, through Chief Jus- N. H. 125. It is not in harmony with
tice Beck, said : " These doctrines our conclusions."
and conclusions find support in the 2 Monniea v. German Ins. Ca, 12
following decisions of this court: 111. App. 340.
Kaiser v. Seaton, 63 la. 463 ; . . . ' Stokes v. Amerman, 55 Hun, 178.
Mudge V. Lanning, 68 la. 641. ... < Baron v. Brummer, 100 N. Y. 373.
See, also, cases cited in Kaiser v. Sea- 5 Hasten v. Amei-man, 51 Hun,
ton, supra, and the following: Evans 344; McEwen v. Brewster, 17 Hun,
V. Harvester Works, 63 la; 304; .. . 323: Farnsworth v. Wood, 91 N. Y.
Brainard v. Simmons, 67 la. 646 ; . . . 308 ; Underwood v. Sutcliffe, 77 N. Y.
Leavitt v. Metcalf, 3 Vt. 343; MuUi- 58; Dubois v. Cassidy, 75 N. Y. 398;
ken V. Winter, 3 Duv. 256 ; Tillotson Williams v. Thorn, 70 N. Y. 270 ;
V. Walcott, 48 N. Y. 188. Counsel Browning v. Bettis, 8 Paige, 56a
PENSION MONEY AND ITS INVESTMENT. 837
When the law limits the amount of annual premium which
one may pay in insuring his life for the benefit of his widow
or children, creditors may levy upon the insurance money
when due, in the proportion which the excess of the rate al-
lowed bears to the whole rate paid. The balance goes exempt
into the hands of the widow or children. It matters not
whether the policy be home or foreign.'
When the limitation is as to the policy (restricting it to ten
thousand dollars, for instance), which one may take out in be-
half of another free from liability for his own obligations,^
the object is exemption in favor of the beneficiary from the
debts of the insured. But, suppose the beneficiary pays the
premiums — he is not protected from his own creditors in the
enjoyment of the insurance money when due.'
§ 9. Pension Money and Its Investment.
Pension money and its proceeds have been exempted by
" An act to exempt from judicial sale the pension money paid
to any person by the United States government, and certain
proceeds and accumulation thereof."* By section 1, "All
money received by any person, resident of the state, as a pen-
1 Cross V. Armstrong, 44 Ohio St paid in premiums more than the
613. See Cent. L, J., Nov. 11, 1893. debt sued on. Harvey v. Harrison,
2 Miss. Code, 1880, § 1261. 89 Tenn. 470. In Alabama, though a
'Yale V. McLaurin, 66 Miss. 461. husband had waived his exemption
•' Appellee took out a policy of in- as to personal property in a promis-
suranoe upon the life of her husband scry note, the proceeds of his insur-
for the sum of two thousand dol- ance policy in favor of his wife were
lars, upon which she paid the pre- held to be hers absolutely at hjs
miums. . . . The manifest purpose death. Craft v. Stoutz (Ala.), 10 So.
and end of the statute is to secure to 647 ; Ala. Code, § 2356, limiting an-
the beneficiary of a life policy the nual premiums to $500. In New
proceeds thereof, freed from lia- York a widow, who has the proceeds
biUty for the debts of another by of her deceased husband's life insur-
whom the premiums have been ance in her possession as her own,
paid." They were not exempt as cannot hold them as exempt against
against her own debts. lb. Life in- her own creditors. Millington v.'Fox,
surance money is exempt in Mjnne- 13 N. Y. S. 334 ; Crosby v. Stephan,
sota, as stated in the case of Brown 33 Hun, 478. Contra, Leonard v.
V. Balfour, 46 Minn. 68. In Tennessee, Clinton, 26 Hun, 388 ; Austin v. Mc-
$58,000 of life insurance on the hus- Laurin, 1 N. Y. S. 209. See Hise v.
band, payable to the wife, was held Ins. Co. (Ky.), 13 S. W. 369.
exempt though he was insolvent <Acts of 20th Gen. Ass. of Iowa,
when he insured his life and he had ch. 23.
838 INOOEPOEEAL THINGS AND MOISTET.
sion from the United States governmtent, whether in the act-
ual possession of such pensioner or deposited, loaned or in-
vested by him, shall be exempt from execution or attachment
or seizure by or under any legal process whatever, whether
such pensioner shall be the head of a family or not." The sec-
ond section exempts the homestead of such pensioner if pur-
chased with such money or its accumulations. This statute
has been construed with a liberality seemingly carried to ex-
tremity.'
To render exempt the property pur chased hj 'pension money,
it must " inure wholly- to the benefit of the pensioner." ^ And
it is held that property so purchased may be exchanged for
other property, and that the latter will be exempt because in-
directly bought with the pension money. The properties thus
successively protected by reason of the kind of money invested
in the first of a series need not be homesteads or specific chat-
tels favored by exemption laws but any species of property,
real, personal or mixed. The original purchase may be ex-
changed for more valuable property, and successive exchanges
by good bargains may greatly enhance the means of the pen-
sioner, but the statute cited, as construed, renders the latest
acquisition exempt.
A pensioner bought a horse with pension money, and then
swapped him for a better one, giving nothing to boot : the
new steed, with its excess of value, was held exempt.'
1 Diamond v. Palmer, 79 la. 578. is desirable to have the opinion of the
Compare the dissenting opinion of supreme court, viz. : The defendant
Chief Justice Eothrock, at p. 581. James A. Hill is a pensioner of the
See Smythe v. Fiske, 2.3 Wall 374. United States, and a resident of the
2 Crow V. Brown, 81 la, 344 ; 46 state of Iowa, and has been for more
N. W. 993 ; Dean v. Clark, 81 la. 753 ; than ten years last past That in the
46 N. W. 995, overruling Foster v. iiibnth of January, 1888, he pur-
Byrne, 76 la. 295 ; 35 N. W. 513, and chased a horse for |65, the entire
41 N. W. 22, and Triplett v. Graham, purchase price of which he paid out
58 la. 135 ; 13 N. W. 148. of moneys received as such pen-
' Smith V. Hill, (la.), 49 N. W. 1043. sioner. Thereafter he made an even
Eothrock, C. J. : " The amount in exchange of said horse for another,
controversy does not exceed $100, which it is agreed is now, and was at
and the appeal comes to us by a cer- the time of the levy of the attach-
tifioate of the trial judge, , which is ment in this action, worth $125. Is
in these words : ' It is hereby cer- the defendant entitled to the horse
tified that the following question of last mentioned, as exempt property,
law is involved in the decision, of the under section 4305, McClain's Code,
above entitled cause, upon which it being sec. 1, ch. 23, Laws 20th Gen.
PENSION MONEY AND ITS INVESTMENT.
839
The state statute, as construed, not only saves original pur-
chases and property or money received in exchange for them,
but also all accretions — the increase of stock from domestic
animals bought with pension money — accumulations of any
character from the original investment. As the law of a
state, settled by the courts there, it may be unprofitable to
discuss it ; but as an interpretation or application of the stat-
ute of the United States on the subject, it will not be im-
proper to consider its bearing in connection with that law,
with a view to its influence on other states.
Assem., or has the creditor a right, in
an action at law, to have the prop-
erty sold, and the excess over the
amount originally invested by the
pensioner subjected to the payment
of his debt? ' The section of the Code
referred to in the certificate is as fol-
lows : ' All money received by any
person resident of the state, as a pen-
sion from the United States govern-
ment, whether the same shall be in
the actual possession of such pen-
' sioner, or deposited, loaned, or in-
vested by him, shall be exempt from
execution or attachment or seizure by
or under any legal process whatever,
whether such pensioner shall be the
head of a family or not.' If the de-
fendant had not traded horses, but
had kept the one first purchased for
$65, and paid for with pension money,
the horse would have been exempt.
No additional money from any source
is invested in the horse in controversy.
The whole investment in this horse
was pension money. It is true it was
not a direct investment. But con-
struing exemption laws liberally, as
we always do, we think there should
be no partition of this horse between
the pensioner and his creditors. The
result of such a construction of the
statute would be to compel the pen-
sioner to retain the identical horses,
cows and other property purchased
with his pension money, or to prevent
him from investing it in any property.
The horse in question is exempt to
the extent of the pension money in-
vested in him ; and because the pen-
sioner may have made a good trade,
and procured a horse worth more
than that amount, appears to us to be
no reason for ordering the horse to
be sold, and the pensioner paid his
pension money back, and the balance
paid to his credit. It is conceded by
the certificate that the money in-
vested in the horse is exempt, but
that because he is of more value than
the pension money the excess of such
value is not exempt. It seems to us
this rule would require pensioners to
be careful that they did not invest
the exempt money in property worth
more than the money paid for it.
There is nothing in this opinion in-
consistent with the case of Diamond
V. Palmer, 79 Iowa, 578, 44 N. W.
Eep. 819. In that case it was held by
a majority of the court that, where
a pensioner paid for the sei-vices of a
stallion with pension money, it gave
him an exempt interest in the colts,
the dams of the colts being exempt
because purchased with pension
money. In the case at bar the horse
in question represents pension money,
and nothing else. There was not one
cent of any other money invested in
him. Reversed,"
840 INCOEPOEEAL THINGS AND MONEY.
§ 10. Pension Money in Transit.
The federal statute itself merely provides that the pension
money " due or to become due to any pensioner" shall be ex-
empt in the hands of any officer or agent and " shall inure
wholly to the benefit" of the pensioner.^ This has generally
been construed and understood to mean that the pension
money shall be exempt till it reaches the pensioner's hands —
not afterwards — nor when it has been converted into land or
other property. The property purchased with pension money
has not been generally held exempt by virtue of the federal
statute.^
The reasons may be drawn from the face of the statute.
The money due or becoming due is the subject. It shall not
be liable to attachment levy or seizure in the hands of any
officer or agent, i. e., the unpaid sum coming to the pensioner
shall not be liable — not the paid money afterwards or prop-
erty bought with it afterwards. /;; shall inure to the benefit
of the pensioner only — not to assignees, pension agents, credit-
ors or anybody else — to him only, and shall be paid to him
only. It shall not be seized, attached or made to inure to an-
other person's benefit while in course of transmission to the
pensioner ; but, when transmitted to him it is no longer in-
violable so far as the statute provides, for on that subject it is
silent.
This facial meaning accords with the same statute which in-
hibits the pensioner from selling or pledging any part or in-
terest of his pension before he gets it. And it accords with
other federal statutes, containing like provisions to protect
» U. S. Rev. Stat., § 4747 : " No sum v. Linneus, 77 Me. 61 ; Payne v. Gib-
of money due or to become due to son, 5 Lea, 173 ; Cranz v. White, 27
any pensioner shall be liable to at- Kan. 319 ; Stockwell v. Bank, 36
tachment, levy or seizure, by or un- Hun, 583 ; Spelman v. Aldrich, 126
der any legal or equitable process Mass. 117 ; Robion v. Walker, 83 Ky.
whatever, whether the same remains 61 ; Faurot v. Carr, 108 Ind. 126 ; Mo-
with the pension office or any officer Farland v. Fish, 84 W. Va. 548 ; 12 S. E.
or agent thereof, but shall inure 548 ; distinguisJiing Hissem v. John-
jsrhoUy to the benefit of such pen- son, 27 W. Va. 653, and the able dis-
jBioner." senting opinion of Judge Robinson,
s Eozelle v. Rhodes, 116 Pa. St 134 ; in the case of Crow v. Brown, supra,
Jardain v. Association, 44 N. J. L. which has helped the writer to most
876 ; Kellogg v. Waite, 13 Allen, 539 ; of the foregoing cases.
Friend v. Garcelon, 77 Me. 26 ; Crane
PENSION MONET IN TRANSIT.
841
the beneficiary from losing or jeopardizing the benefit in-
tended for him by the granting of the pension, as suggested
virtually in the dissenting opinion above cited.
The investment of the money by the recipient of the pension
is not the subject, or a subject, of the statute. The inviola-
bility of the cash itself, after the pension office has paid it to
him, is not a subject of the statute. He certainly may buy
what he please with the money. He may buy a stock of
goods — a house and lot — a farm. Suppose the money in-
vested in a home, is the statutory provision : it " shall inure
wholly to the benefit of such pensioner," applicable to the
home? May the home, purchased by pension money, not be-
come a basis of credit like other realty of his? How can we
find in the statute that the home purchased shall not inure to
the benefit of a creditor?
Congress does not seem to have designed to pass an exemp-
tion law, but merely to have meatit to protect the pension
money till it should reach the hands of the beneficiary — or,
rather, to pass an exemption law relative to the pension in
transit.^
1 Eobinson, J., in his dissent in the
Crow case, supra, points out some
oases wlioUy or partially favoring
the majority opinion : " The doctrine
of the majority opinion was approved
in Falschow v. Werner, 51 Wis. 87 ;
7 N. W. 911, and so far as I am aware
ii has been approved by no other
court of last resort, although some-
thing in the nature of a dictum was
sarid in approval inHay ward v. Clai-k,
50 Vt. 617. It is interesting to note,
m this connection, that the only case
cited by the supreme court of Wis-
consin to support its views is Eckert
V. McKee, 9 Bush, 855. That case, so
far as it supports the doctrine of the
Wisconsin court, was overruled by
the court which decided it in Robion
V. Walker, supra. It has been held
that, before the pension check is
cashed, it so far represents money in
the course of transmission that it
may be disposed of by the pensioner
and the pension money thus placed
beyond the reach of creditors of the
pensioner. Farmer v. Turner, 64 la.
690 ; 21 N. W. 140 ; Hissera v. John-
son, supra; Haywai-d v. Clark, su-
pra." The question whether congress
has power to exempt pension money
after its passage to the pensioner's
hands is then noticed by the dissent-
ing judge, as follows : "The appellee
contends that congress has no power
to exempt from execution pension
money after its payment to the pen-
sioner. That power was questioned
in Webb v. Holt, 57' la. 716; . . .
in Hissem v. Johnson, supra, and in
Cranz v. White, supra. It was re-
ferred to but not determined in
United States v. Hall, 98 U. S. 343 ; —
that caee going no further than to
hold that congress may enact laws
to protect pension money until it
shall have passed into the hands of the
pensioner. The power to enact laws,
842
INCOEPOEEAL THINGS AND MONET.
§ 11. The United States Pension Act : Whether it Ex-
empts Accumulations from the Money.
The argument for the construction of the statute so as to
render the pension money, with its purchases, invulnerable
after the date of its lodgment in the pocket of the pensioner,
i'S that the clauses forbidding seizure before such lodgment,
and declaring that the pension money shall inure wholly for
his benefit, are incompatible with " the idea that it can be
seized after it comes into his possession." The inhibition, of
seizure before, was already the law, and its reiteration in this
statute would have been supererogatory, it is argued. And
it is further contended that the act of congress is an exemp-
tion statute, with sole purpose to keep off creditors from
pension money. And finally, that, being an exemption act,
it should protect property purchased with it so as to secure
to the " pensioner " the whole " benefit," which would not be
the case if the property becomes liable for his debts. Then
which shall have the eflfect necessa-
rily given to the section under con-
sideration by the opinion of the ma-
jority, is not expressed in the consti-
tution ; and, if possessed by congress,
it is an implied or incidental power.
In the view I take of the statute it is
not necessary to determine whether
■ that power exists ; but the fact that,
if exercised, it would create in many,
if not all, the states a iiew class of
exemptions, and would be contrary
to the general policy of congress not
to interfere unnecessarily with the
domestic affairs of the several states,
is an additional reason in favor of
the conclusion that congress did not
intend to exempt property in the
hands of the pensioner, purchased
with the pension money, from liabil-
ity for his debts, but did intend to
leave the matter of creating such
exemption to the discretion of the
state legislature. Happily the gen-^
eral assemblj'' of Iowa . . . has
extended the protection provided by
congress to investments made by the
pensioner, and the question involved
in this case will be of interest in com-
paratively few cases. [True in Iowa
but not out of it] Believing as I do,
however, that the construction of the
federal statute adopted by the major-
ity is not sanctioned by the rules of
construction, and that it does not
effectuate the intent of congress, I
can but dissent from their opinion.
Certainly the prior decisions of this
court should not be overruled, and
the great weight of authority disre-
garded, unless for reasons so con-
vincing as to leave little room to
doubt the correctness of such a
course. . . ." See Judge Robin-
son's dissent in full — especially his
review of the decisions of several
states. The question, in other states,
will be aided by this case, considered
not as authority, but as containing
reasons. So a dissenting opinion may
be as important to them as that of
the majority.
THE UNITED STATES PENSION ACT. 843
it is said that such exemption act' should be liberally con-
strued in favor of the debtor.^
The writer will present some thought upon those argu-
ments, though with diffidence and with high respect for the
jurists w^ho have advanced them. It is true that pension
money is not attachable or otherwise seizable by creditors
while it is hold by the government through any of its officers,
and there was no necessity for a repetition of what was law
before this statute was passed ; but to infer that therefore a
repetition means that the money shall not be attachable or
seizable when it no longer " remains with the pension officer,
or any officer or agent thereof," seems unwarrantable.
Where is the incongruity in the money being attachable,
and its inuring wholly to the pensioner's benefit ? The pen-
sioner wholly has the benefit of the pension if he gets a debt
paid with it. He has it as clearly as though he had bought a
farm with it. An honest pensioner will prefer to pay a debt
and have no farm, rather than have a, farm and not pay the
debt. He is benefited by becoming rid of debt, whether he
pays out the pension money voluntarily or has it paid out for
him under a judgment.
The act of congress is not primarily an exemption act, and
hardly has an exemption feature, since its protection of the
pension from seizure while yet in government hands is said to
be supererogatory, and it has nothing to say about it after its
reaching the pensioner's hands — the money not presumably
being kept apart from other funds but such disposition made
of it as he thinks fit. Supererogatory legislation does riot jus-
tify the judicial substitution of something not mentioned in
the statute. It may awaken inquiry, and courts may look to
see what shadow it casts — whether there is anything implied ;
but statutes are not to be extended because meaningless so far
as they go.
Evidently this is no more an exemption statute than a law
forbidding the attachment of a debt before it is due, or pro-
hibiting the seizure of goods in transit, or the levy upon
I Crow V. Brown, supra, in which Holt, supra, are referred to for the
the dissenting opinion of Beck, J., reasons of the decision overruling
in Foster t. Hannum, supra, and those cases,
that of Rothrock, J., in Webb v.
844 INCOEPOKEAL THINGS AND MONET.
assets while in course of probate administration, would be.
And, not being sucb, the ever-repeated plea for the liberal con-
struction of exemption statutes is not applicable to this statute.
It ought to be liberally construed, because it is a pension act
designed to benefit soldiers ; not because of its being an ex-
emption act (except that it is true that non-liability to
"attachment, levy, or seizure, by or under any legal or equi-
table pi'ocess whatever, whether the same remains Avith the
pension office, or any officer or agent thereof," is such), for
that feature had been anticipated by prior act and decision,
and is supererogatory, as it is said.^
If this federal statute means that pension money paid to the
pensioner, and its proceeds and accumulations and property
purchased with it, are exempt, is not the above mentioned
state statute so providing a work of supererogation? Such
money, held or invested by him, is protected by the act of
congress from execution or attachment or seizure by or under
any legal process whatever (as the state law has it), if the fed-
eral law is such an exemption act as claimed. This is no
argument against the court's view, since it is quite competent
for a state legislature to repeat congress on such a subject, but
it seems improbable that it would mean to do a useless thing.
The state statute above discussed has been further construed
as forbidding the application of the pension money of an in.
sane pensioner to reimburse the county for her support in the
county-house after that statute took effect. Whether it could
be applied for her support there before that time was a ques-
tion upon which the judges were not all in accord, but it was
answered in the negative to comport with a former ruling.^
' U. S. Rev. Stat., § 4765 ; Buchanan and has been at all times since May^
V. Alexander, 4 How. 20. 1861, insane. For many years she
■ Fayette County v. Hancock (la.), had pending an application for a
49 N. W. 1040. Robinson, J. : " In pension on account of her husband.
May, 1861, Jane NicoU was duly ad- who had been a soldier of the United
judged to be insane by the proper States during the war of the Rebel-
authorities of Fayette county, and lion. The application not having
was committed to the Iowa hospital been allowed after the lapse of sev-
for the insane, where she was con- eral years, the plaintiff, with the in-
fined until the 21st day of April, tent to be reimbursed for its expenses
1873. At that time she was removed in supporting Mrs. NicoU, employed
to the poor-farm of plaintifif, where an attorney to prosecute the claim,
she has since remained. She is now, and paid |10 for that purpose. In
THE UNITED STATES PENSION ACT.
845
In the case so construing, the pension money had already-
reached the hands of the pensioner, being in those of the
guardian of the insane woman, which was the only payment
to her which was legally possible. The federal statute, there-
fore, did not touch the case. The state statute, which extends
the federal provision (that the money " shall inure wholly to
the benefit of the pensioner " while in the treasury or in tran-
sit) so as to render it exempt after it reaches the pensioner's
hands, was now farther extended by construction to protect
the pensioner from payment for her own board and nurse-
November, 1883, on the application
of plaintiff, H. P. Hancock was ap-
pointed guardian of the estate of
Mrs. Nicoll, and, having qualified as
Buch, entered upon the discharge of
his duties. In December, 1888, the
claim of Mrs. Nicoll was allowed, and
a sum of money, stated in argument
to be about $3,400, was paid to de-
fendant for her. The money so paid
comprises all the property of Mrs.
Nicoll which defendant has received.
In March, 1889, plaintiflf filed against
defendant for allowance a claim for
$3,003:14, for expenses incurred in
adjudging Mrs. Nicoll insane, in pay-
ing her expenses at the hospital for
the insane, in supporting her at its
poor-farm, and for money paid in
prosecuting her claim for a pension.
Defendant filed objections to the
claim on several grounds, one of
which was that the money in his
hands was not liable for the payment
of the claim, because it was money
received from the United States as a
pension. In April, 1890, the board
of supervisors of plaintiff remitted
all of its claim in excess of $1,800.
In June, 1889, the court, by consent
of parties, ordered the defendant to
pay to plaintiff for the support of
Mrs. Nicoll the sum of $3 per week,
and of that order no complaint is
made. On the final hearing the court
allowed plaintiff the sum of $1,730.83,
and from that order the defendant
appeals. The order did not, in terms,
require the payment of the amount
specified from pension money, but
the pleadings and stipulations in the
case show clearly that defendant had
no other funds, and that the contro-
versy was over the appropriation of
the pension money for the payment
of the claim of plaintiff. It is evi-
dent that the order was designed to
be an appropriation of the pension
money to the amount specified, and
must be treated by us as having that
effect. The money in question is in
the possession of the guardian of the
estate of the pensioner, and therefore
is constructively in her possession,
and not in the course of transmission
to her. The estate of an insane per-
son, subject to execution, is liable for
the expenses incurred by the county
in his support. Code, § 1433. The
right to be reimbursed for such ex-
penses, if not waived by the board of
supervisors, is similar to the right to
recover from the estate money for
any other legal purpose, and is gov-
erned by the same rules. We are
required to determine in this case
whether the pension money of an
insane person, received from the
United States after chapter 33, Acts
30th Gen. Assem. Iowa, exempting
pension money, took eflect, is liable
for expenses incurred and paid by the
84:6 INCOEPOEEAL THINGS AND MONET.
care in an almshouse. "Would the pension money not inure
to the insane woman's benefit by paying for such necessary
support ? True, her obligation was a debt ; and if the statute
means what it is now construed to mean, the county had
notice, upon the promulgation of the act, that the pension
was exempt from such a debt. May the pension money,
in possession of the guardian of the insane woman, be applied
now to defray her passing expenses from month to month?
If not, in what way can it be ijsed so as to " inure " to her
"benefit?"*
county in which such person has his after the act named took effect, for
legal residence for his support We expenses incurred and paid by it in
are agreed that the pension money support of the insane pensioner be-
is not liable for such expenses in- fore that time, we are not agreed,
curred after the act named took ef- As to that, the rule announced by the
feet, and before an order appropri- majority of this court in Crow v.
ating money for future support is Brown (Iowa), 46 N. W. Eep. 993,
made. "Whether it can be appropri- governs. The writer adheres to the
ated by an oi-der providing for ex- views expressed in the minority opin-
penses to be thereafter incurred is a ion in that case, but the other mem-
question not involved in this case, bers of the court are satisfied with
and not determined. In regard to the views expressed in the majority
the right of the county to have ap- opinion, and the order of the district
propriated pension money received court is therefore reversed."
* Additional sections to this chapter, on the money and necessaries usually
allowed for the temporary support of widows and orphans of decedents
while estates are being settled, would not be strictly congruous with the
general subject in hand. Although such allowances are free from the
claims of creditors, they are not embraced in the exemption statutes, and
they properly belong to another branch of the law. The topic is compre-
hensively trejited in Schouler's work on Executors and Administrators
§§ 447-457, and the authorities cited are brought up to a comparatively re-
cent date.
CHAPTEK XXVII.
EXEMPTION ENFORCED.
1. Debtor's Schedule.
3. Schedule and Appraisement.
3. Appraisement of the Widow's
Allowance.
4. Remedies for Wrongful Levy.
5. Damages Dependent on Legality
of Claim for Exemption.
§ 6. Replevin.
7. Burden of Proof.
8. Laches and Passive Waiver.
9. Waiver in Promissory Notes.
10. Notice — Rank of Creditors.
11. Mortgage, Relative to Waiver.
§ 1. Bebtor's Schedule.
N'o prescribed form: The selection of exempt articles and
the notification of the officer are usually attended with no
formal procedure. "When the exemption is absolute, the
officer is bound to recognize the debtor's right ; when it is
such that the officer should have notice of the claim, an oral
demand is usually sufficient, since the statutes have no form
for it, as a general thing. Form ought to be followed when
any is prescribed. A schedule must be filed when that is re-
quired. The claim may be made by letter addressed to the
sheriff. All that is necessary is that the officer in charge of
the execution be brought to a knowledge of the debtor's claim
for exemption to the amount accorded by statute^^ Thus, a
debtor was held to have made a sufficient selection and notifi-
cation when, of three horses attached, he claimed to own but
one and refused to select from the three, though it afterwards
appeared that he owned all. His action was honest and dis-
ingenuous, and his notice to the sheriff on the day of sale was
held to be in time and sufficiently formal.^
To claim what the law allows, when the claimant does not
possess it, is futile. One who claimed a horse in his schedule,
1 Keller v. Bricker, 64 Pa. St. 379;
Diehl V. Holben, 39 Pa. St. 318 ; Bow-
man V. Smiley, 31 Pa. St. 235 ; Finnin
V. Malloy, 33 N. Y. Sup'r, 383, 390 ;
People V. Palmer, 46 111. 403; Mc-
Cluskey v. McNeely, 8 111. 578 ; Clark
V. Bond, 7 Bax. 288; Simpson v.
Simpson, 30 Ala. 335; Mark v. The
State, 15 Ind. 98; Bryan v. Kelly, 85
Ala. 569.
2 Plimpton V. Sprague, 47 Vt. 467 ;
Haskins v. Bennett, 41 Vt. 698,
848 EXEMPTION ENFOEOED.
and bough-t one afterwards to be covered by the claim, did
not come within the law.' And a claim or exemption beyond
articles enumerated in a statute, or the constitution of the
state (as the case may be), is void.^ For, though construction
is not strict,^ yet the rule, that what is not enumerated is
excluded, is always observed.
When neoesscM'y: Whether a debtor must file an inventory
of his property, when claiming chattel exemption, has been
held, under statute, to depend upon the time of claiming —
whether before or after the levy. If before, no inventory is
required, unless there is demand in writing for it, by the
creditor,* made before the term in which the process is re-
turnable. If the debtor claim after levy, there must be an in-
ventory accompanying the claim. When attached movables,
credits or choses in action are claimed as exempt, and they are
held by a garnishee, the claim must have an inventory of the
claimant's property filed with it. The lack of inventory, when
one is legally required, will warrant the creditor in asking
judgment. If the list is filed but is not complete, the plaint-
iff may require completion or may accept the list as it is, at
his option.'
ISTo inventory was thought necessary when money had been
attached by garnishment and was claimed by the defendant
as exempt ; ° but when property seized under a distress war-
rant was claimed as exempt, an inventory or schedule was re-
quired.' The difference was not between money and goods,
but between the statutes under which the seizures were made,
as construed.^
A schedule is held necessary when required by statute,
though all a debtor's property be exempt, and he offer to sur-
render it, on a petition for his personal release from custody."
A debtor, havinar furnished his schedule to an officer in
charge of an execution against his property, and claimed all
1 Smith V. Eckels, 65 Ga. 326. 9 So. 454. Compare Tonsmere v.
2 Duncan v. Barnett, 11 S. C. 333. Buckland, 88 Ala. 313, and'^a; parte
3 Washburn v. Goodheart, 88 111. Redd, 73 Ala. 548.
229. 7 Ehle v. Deitz, 33 111. App. 547.
4 Menzie v. Kelly, 8 111. App. 259. « Ala. Code, § 2533.
5 Tonsmere v. Buckland, 88 Ala ' Strieker v. Kubusky, 35 IlL App.
312 ; Ala. Code (1886), g§ 2531, 3535. 159 ; Act concerning Insolvent Debt-
6 Decatur Co. v. Deford, 93 Ala. 347 ; ors (1872), §§ 8, 9.
debtor's SOHED0LE. 849
the chattels mentioned in it as exempt, further claimed that
his realty (which the officer had levied upon) should contrib-
ute to his exemption so much as to make up what the person-
alty lacked of six hundred dollars — the statutory maximum.
■ The sheriff sold the land and refused to give any of its pro-
ceeds to make up the exempted sum : whereupon, the debtor
sued him, and made allegations equivalent to the above state-
ment, which the court deemed sufficient as to the debtor's
duty relative to claim and schedule.'
In litigation, when the debtor alleges that he filed his sched-
ule with the sheriff, he ought further to make such averment
as will show that it was made and filed as required by statute.'
Omissions: If the officer in charge of an execution mislead
the debtor as to matters of fact, and cause him to fail to file
his schedule, he does not cut the debtor off from all subse-
quent right to claim. Though the law may have fixed a time
within which the schedule should be filed, it seems that he is
not held to the time when misled by the officer.' Of course,
the debtor cannot plead ignorance of the law and thus excuse
his laches; but he is not presumed to know facts; and he nat-
urally would look to the officer in charge as to a disinterested
person whose words are reliable. Indeed, does prescribed
time begin to run before official information is received, vvhere
the statute makes it the duty of the officer to give it? The
statutes do not, ever3^where ; not in the state of the abpve
cited case, it seems ; yet the debtor's excuse was respected,
when sued upon his bond given to replevin goods, in the hands
of an officer, which he claimed as exempt. The court held
that it was the duty of the officer to give the debtor informar-
1 Chatten v. Snider, 126 Ind. 387. in such case, it was held liable for a
See Robinson v. Hughes, 117 Ind. privileged debt Fleming v. Hender-
293 ; Ind. Const, art 1, § 23 ; R S. son, 138 Ind. 334. If the realty and
(1881), §§ 67, 703. Compare Vogel- personalty of the judgment debtor is
song V. Beltzhoover, 59 Pa. St 57. worth no more than the amount ex-
Realty and personalty both go to empted, the sherifiE is not bound to
make up the exempt sum, in Indiana, make levy. State v. Harper, 120 Ind.
where there are no Homestead Laws, 23.
technically speaking. Realty, worth , 2 Over v. Shannon, 75 Ind. 352.
less than the exemption authorized sMorrissey v. Feeley, 36 IlL App.
by law, may be set ofiE to the widow, 556.
much as under a homestead law. But,
64
850 EXEMPTION ENFORCED.
tion of the writ of execution when serving it. If done, the
debtor could have claimed in due time.
In making his schedule, the debtor ought to sign it regu-
larly ; but his signature in the body of the affidavit has been
allowed' — even its entire omission was not fatal after the
officer had received it without objection, taken the debtor's
affidavit upon it, and carried it off without calling the debt-
or's attention to the lack of signature.'^
The delay or neglect of the officer to cause appraisement to
be made at the proper time is no fault of the debtor ; so, if
sale take place without it, the debtor may claim his exemp-
tion from the proceeds of the sale instead of suing the officer
for damages, in some jurisdictions.' In others, he may take
the latter: course, or he may recover the exempt property
even from an innocent purchaser.*
Where the probate judge orders the payment and invest-
ment of money due to debtor, the latter may make his sched-
ule after such order, and then the judge may grant the
exemption.^
Objection waived: The schedule must contain all that the
statute requires ; for instance, a list of all the debtor's prop-
erty, the claim of exemption in whole or in part, the residu-
ary of the claimant within the state, and his familj' headship
(though many statutes do not require all this) ; and a failure
io make the schedule conform to the statute has been found
fatal.' But if the creditor, without objecting to the omission
of property from the schedule, cohtests the right of exemp-
tion, it has been held that he thus waives objection.' It has
been questioned whether a debtor may amend.'
The omission of some articles will not vitiate the schedule ; '
1 Schumann y. Pilcher, 36 111. App. Jordan, 69 Tex. 300. See State v.
43. Kurtzeborn, 2 Mo. App. 335.
2 Cooper V. Payne, 36 111. App. 155 ; * This in Georgia, where the ordi-
Langston V. Murphy, 31 111. App. 188. nary makes such orders. Douglass
3 Coleman's Appeal^ 103 Pa. St. 366. ' y' Boylston, 69 Ga. 186.
*Huseman y. Sims, 104 Ind. 317; 6 (Juise v. State, 41 Ark. 349.
Oonvvell y. Conwell, 100 Ind. 437; ' Trager y. Feebleman ( Ala.), 10 So.
Graham y. Crocket, 18 Ind. 119 ; Has- 313.
well y. Parsons, 15 Cal. 266 ; Below » Blair y. Parker, 4 111. App. 409. >
y. Robbins, 76 Wis. 600 ; State y. Har- 9 Paddock y. Balgord (S. D.), 48
rington, 33 Mo. App. 476 ; Alsup y. N. W. 840.
DEBTOE S SCHEDULE.
851
especially if done-innocently, and if the omittfid articles bear
small proportion to the whole. When the debtor leaves out
money or anything, it is held that the plaintiff waives ob-
jection to the omission by proceeding to contest the right of
exemption without pointing out this defect of the debtor's
claim. Upon the plaintiff's showing that the defendant had
money to a large amount just before he was sued and before
attachment had issued, the defendant may account for it by
showing that he has applied it to his debts. If he has paid
it out before receiving a demand for an inventory, it cannot
be included in the estimate of his effects made to ascertain
the amount of his exemption.'
1 Trager v. Feebleman (Ala.), 10 So.
213. Clopton, J. -. " An attachment
Bued out by the appellants against
the appellee January 1, 1890, was
levied the next day on certain per-
sonal property. On the same day
appellee filed with the oflBcer levying
the process a verified claim to the
property as exempt under section
2531 of the Code. Notice thereof hav-
having filed an inventory in answer
to the demand, an issue was formed
under the direction of the court.
The real issue in such contest is
whether the claimant had other pei--
sonal property or choses in action or
money not embraced in the inven-
tory. But it is unnecessary to con-
sider the propriety of the ruling of
the court refusing to require defend-
ing been given to the plaintiffs, they ant to joia in the special issues ten-
instituted a contest of the claim in
the mode prescribed by the statute.
It may be conceded that the claim of
exemption filed with the oflBcer, not
having been accompanied by a state-
ment of personal property, choses in
action, and money, as required by
section 2521, was insufficient. In-
stead of objecting thereto on this
ground, plaintiffs made a written de-
mand upon defendant, August 16,
1890, to file in the circuit court a full
and complete inventory of all his per-
sonal property, except such as is
specially exempt from levy and sale,
all moneys, debts and choses in ac-
tion belonging to him, or in which
he is beneficially interested. By the
written demand under section 2525
the plaintiffs waived the objection to
the suflSciency of the claim of exemp-
tion. Tonsmere v. Buckland, 88 Ala.
312, 6 South. Eep. 901 Defendant
dered by plaintiffs. Under the gen-
eral issue as formed they were
allowed and had the full benefit
which they could have derived from
the special issues. The refusal, if
erroneous, is error without injury.
Plaintiffs having introduced evidence *
showing that defendant, shortly be-
fore the issue of the attachment, re-
ceived money for goods sold, and
had a considerable sum in his posses-
sion, it was competent for him to
show that he had appropriated the
money to the payment of debts justly
due by him. The evidence was rele-
vant to the issue, whether the money
belonged to him or was in his pos-
session when the written demand for
an inventory was made. It is shown
that on January ], 1890, the same
day on which the attachment was
issued, defendant handed to his clerk,
who is his brother, a sum of money, —
853
EXEMPTION ENFORCED.
When no schedule has been filed by the- debtor, it is safer
for the officer to have an inventory made (of the property
susceptible of being claimed) before exposing to sale.' The
earlier exemption statutes were not so nearly uniform as the
tercept the payment of the money to
the mother and brother ; but, faiHng
to do so, they acquired no lien on the
money, and its application to the uses
originally intended — the payment of
their debts — offended no rights of
plaintiffs. No rights of theirs inter-
vened so as to prevent a ratification
from having the same force and ef-
fect as previous authority to collect
the money. Of course, this rule has
no application if the defendant there-
by attempted a fraudulent disposition
of the money as against his existing
creditors. It may be that, had the
defendant filed an inventory when
he iiled his claim of exemption with
the officer, such inventory should
have embraced the money in the
hands of the clerk, which had not
then been paid to the creditors, stat-
ing the facts. It had, however, been
paid over when the written demand
was made for an inventory. In such
case the issue is not whether the
money belonged to defendant at the
time he filed his claim of exemption,
but whether it belonged to him when
the written demand to file an inven-
tory in the circuit court was made
under section 2525. The money hav-
ing been paid to the mother and
brother, and received by them in pay-
ment of their debts, before the writ-
ten demand, cannot be estimated, if
their debts be just, in ascertaining
the amount of the exemption to
which defendant is entitled, nor de-
ducted from his claim of exemp-
tion. . . ."
1 Elliott V. Whitmore, 5 Mich. 533,
636.
■ which he directed him to pay
to his mother and brother on account
of debts which he owed them re-
spectively, and get their receipts. . .
The well-settled rule is that when
one person delivers money to another,
accompanied by a mere request, with-
out any present valuable considera-
tion, to pay it to a third person, such
request does not, of itself, change the
ownership of the money. Coleman
V. Hatchel-, 77 Ala. 217. But if the
money is subsequently paid to such
third person, and he receives it in
payment of his debt, this is a ratifi-
cation of the unauthorized act, which
operates, by relation, to change the
ownership of the money as of the
time of its delivery to the receiver.
Brooks V. Hildreth, 22 Ala. 469. Un-
til such payment or ratification, or
until the depositary has entered into
some arrangement with the creditor,
by which he is brought under obliga-
tion to hold the money for him, and
by which he would be prejudiced by
a revocation of the original direction,
the money is subject to garnishment
in his hands. The mere selection
and claim of certain property as ex-
empt, though levied on by attach-
ment or execution, does not deprive
the defendant of the right to prefer
creditors, and apply any property he
may own, not levied on, to the pay-
ment of their just debts. Weis v.
Levy, 69 Ala. 209. If he has other
property or money which may be
subjected to his debts, it is incumbent
on the attaching or executing cred-
itor to reach and subject it by legal
process. Plaintiffs had the right to
garnishee the clerk, and thereby in-
APPEAISEMENT. 853
present ones are, in requiring the debtor to file a schedule of
his property when exemption of chattels to a limited amount
was allowed. Sometimes the appraisers made out the list or
inventory.! Now the claiming debtor is usually required to
make the inventory (when the chattels are not absolutely ex-
empt) ; but a substantial compliance is held satisfactory." If
it is not complete, but is verified, the debtor is entitled to have
an appraisement.' It has been held that the purchaser gets no
title when the sale has taken place before the debtor has
made his schedule ; * but he must have been guilty of no laches.
If the officer has extended the time, there can be no levy or
sale meanwhile.' The debtor's wife may make and submit the
schedule of her husband's property, if she show satisfactorily
why her husband does not do so; without so showing, her act
is void.^ If a non-resident may lawfully claim, he must pre-
sent his schedule.'
What is not scheduled, and what is scheduled but not
claimed, may be sold.* When a deserted wife sold property
of her husband in which there was four hundred dollars' worth
that might have been claimed, and took it back after levy upon
it by a creditor, the transaction was held not fraudulent. She
then claimed and filed a defective schedule, but the court hpld
that the omission of some of the property was not fatal to her
claim.' The sale and revocation were not a fraud upon cred-
itors, because the property was susceptible of being claimed as
exempt."
§ 2. Schedule and Appraisement.
After the debtor who claims exemption has submitted his
schedule, it becomes the duty of the officer in charge of the
execution to summon appraisers and have all the articles of
1 Mark v. The State, 15 Ind. 98. Blair v. Parker, 4 ID. App. 409 ; Aua-
2 Gregory v. Latchem, 53 Ind. 449. tin v. Swank, 9 Ind. 109; Douch v.
'Douch V. Ealiner, 61 Ind. 64. Rahner, 61 Ind. 64; State v. Eead, 94
* Chapea v. Hoel, 11 111. App. 309. Ind. 103 ; Heath v. Keyes, 35 Wis.
sPelkey v. People, 11 111. App. 83. 668; Megehe v. Draper, 21 Mo. 510;
6 Mapp V. Long, 62 Ga. 568 ; Ga. Elder v. Williams, 16 Nev. 416.
Code, § 2041. 9 Berry v. Hanks, 28 111. App. 51.
■Menzie y Kelly, 8 111. App. 259; loib.; Green v. Marks, 25 111. 204;
Biggs V. McKenzie, 16 111. App. 286 ; Ives v. Mills, 37 111. 75 ; Bliss v. Clark,
Cook V. Bohl, 8 111. App. 293. 39 111. 590.
8 Berry v. Hanks, 28 III App. 51 ;
854 EXEMPTIOK ENFORCED.
property appraised. The sheriff's employees are not com-
petent to act as appraisers.' In performing their duty, the
appraisers must take actual and ocular notice of all the chat-
tels. If even one article be appraised as a matter of guess,
without actual inspection, the whole appraisement will be
vitiated. Property sold by the oflBcer after such an appraise-
ment may be treated as not appraised and therefore illegally
sold ; so the debtor may regain it by replevin.^ If the debtor
himself has not misled the officer; has not caused the vitia-
tion of the appraisement by secreting chattels or the like, he
has a right to complain of the injury done him by an invalid
appraisement and sale.'
When duly notified, the debtor cannot neglect the making
of his schedule without forfeiting his right to the exemption
dependent upon selection. Selling the property, susceptible
of becoming exempt upon scheduling and selecting, will not
obviate such result of neglect. The purchaser cannot hold
the property as exempt, if he bought after the lien of judg-
ment had fastened upon it, unless the debtor (his vendor) filed
his schedule and claimed his privilege. The duty of the judg-
ment debtor is to make, and swear to, his list of property, in-
cluding debts due him ; this list he must deliver to the officer
in charge of the writ (unless the statute requires its delivery
to the clerk and its being filed in the case). After the inspec-
tion of the tangible articles and their estimation by the ap-
praisers, the debtor chooses so many and so much as will be
equivalent to the monetary maximum of exemption, or less.
He cannot avoid this by prior selling after judgment.*
The schedule is of the debtor's property possessed by him
on the day of taking his oath,^ The officer takes the schedule
as correct. It has been said that he cannot question it when
it is duly verified.® It is not his business to question it. The
1 Posey V. Lontey, 13 Phila. 410. 5 Taylor v. Beach, 14 111. App. 359.
2 Smith V. Dauel, 39 111. App. 890. « Douch v. Eahner, 61 Ind. 64, 68.
3 Menzie v. Kelly, 8 111. App. 361. The court said : " It was the sheriff's
' Chapin v. Hoel, 11 111. App. 310 ; duty in this case, after the appellee
Blair v. Parker, 4 111. App. 409 ; Cas- had made and delivered to him said
per V. People, 6 111. App. 38 ; Cook inventory, schedule and affidavit, and
V. Bohl, 8 111. App. 893; Camp v. had designated and claimed the prop-
Ganley, 6 111. App. 499; Stanton v. erty levied on as exempt from, sale
McMuUen, 7 IlL App. 331. on said execution, to ascertain, in
APPRAISEMENT. '855
plaintiff's counsel are presumed to look after their client's in-
terests; they have means at command to counteract a wrong-
ful appraisement and correct a false schedule ; but the sheriff
has none and needs none. Though in charge of the writ, and
bound to make the money for the plaintiff out of the defend-
ant's liable property, he has nothing to do with property
which has been selected as exempt according to legal direc-
tion, and within the statutory limit of value.
The creditor's objections to the debtor's allotment of ex-
empt property, real or personal or both, must be made so that
the debtor can meet them. They ma,j be filed in the clerk's
oflBce of the court controlling the allotment, and must, when
the statute directs it.^ The returns of the execution should
show the statutory allotment of personal property to the
debtor, which becomes final upon the return, so far as others
are concerned ; but the debtor may have omissions of the ap-
praisers corrected, when some of his property has been over-
looked.^
Creditors may treat the report of the appraisers as a nul-
lity when it appears that those officers were not sworn and
that they have not made such a list, describing the property,
as the statute requires in order to enable creditors to know
what personal property is legally exempt. The same apprais-
ers may lay off homestead and allot chattel exemption, but
they must proceed according to law.'
the mode prescribed by the statute, the value of the property claimed by
the value of the property claimed as him as exempt did not exceed three
exempt; and having ascertained that hundred dollars, he was entitled,
such property was of no greater under' the law, to 'designate the
value than three hundred dollars, it property so claimed,' and it was the
was the further duty of the sheriff to duty of the sheriff to set it apart to
set apart such property to the appel- him, without regard to the truth-or
lee, as exempt fronl sale- on execu- falsity of the schedule."
tion. The sheriff was not authorized ' MoAuley v. Morris, 101 N; C. 369 ;
by law to question the correctness of N. C. Code, § 519.
the inventory, schedule and affidavit ^ p^te v. Harper, 94 N. C. 23. i See
of the appellee, or to determine Burton v. Spiers, 87 N. C. 87; Duvall
whether or not the appellee's sched- v. Rollins, 68 N. C. 230 ; Crummen v.
ule was a true schedule of all his Bennet, 68 N. C. 494. As to revision
property. When the appellee had of allotments, see Jones v. Com'rs, 85
complied with the requirements of N. C. 278.
the statute, and it appeared that he ' Smith v. Hunt, 68 N. C. 482.
was a resident householder, and that
856 EXEMPTION ENFOECED.
The defendant should exhibit his scheduled effects to the
appraisers.' If the chattels are out of the county, that fact
does not exonerate the officer from the duty, of appointing
appraisers.^ If property is levied upon in two counties, under
one judgment, and the debtor files his schedule in the first
county and niakes his selection ; and, upon the sheriff's retain-
ing the selected property, files his schedule in the second and
makes his selection, he is not responsible for not surrendering
the property selected in the first county on demand of the
sheriff of the second, being unable to comply by reason of the
first sheriff's detention of it. And the sheriff of the second
county is bound to respect the selection there, under the cir-
cumstances.'
When property has been scheduled, appraised and set off to
the debtor in one suit, must the same process be undergone in
a subsequent suit, soon following the first, instituted by an-
other creditor? As a general rule, the repetition would be
Vinavoidable, * though only one exemption can be allowed,
however many the suits.^
§ 3. Appraisement of the Widow's Allowance.
Appraisement is not necessary when a fixed sum is exempt
for the widow and she agrees to take the cash from proceeds
of sale.* It is useless to appraise money.' When she selects
goods, the appraisement should be made promptly ; and when
the law has provided that the estimate shall be made by ap-
praisers, their decision cannot be reviewed or set aside by
other officers not empowered to do so by statute.^ The power
to confirm or set aside is only in the court, to be exercised
upon issue duly made. When an orphan's court had con-
firmed the appraisement of goods to the extent of three hun-
dred dollars for the widow of a decedent pursuant to statute,
Judge Black said for the court on appeal of the case : " We
think that the confirmation of the appraisement was an adju-
i Lansden v. Hampton, 38 III. App. 6 Sellers' Esfcite, 83, Pa. St 153.
115. ' Peterman's Appeal, 76 Pa St. 116 ;
« lb. Baldy's Appeal, 40 Pa. St. 338; Lar-
*Keefer v. Guffin, 38 111. App. 633. ri§on's Appeal, 36 Pa. St 180.
*WeHer v. Moore, 50 Ark. 853. 8 Vandevort's Appeal, 43 Pa. St
But see Austin v. Swank, 9 Ind. 109. 46S.
» Weis V. Levy, 69 Ala. 809.
REMEDIES FOE -WEONGFtrL LETT. 857
dibation of the property mentioned in the inventory to the
widow. It was conclusive against the creditor, for it was a
judgment m rem which determined forever the status of a
thing and was binding upon the world. Afterwards it was
the widow's property absolutely." ^ The reader perceives
that the confirmation is held to be res adjudicata quoad
omnes, not merely as to creditors cited ; a general proceeding
in rem, not a limited one. Whether the world was concluded
depends upon the notice ; upon everybody's having had op-
portunity to oppose the creating of such status. The con-
firmation was binding on the creditor, doubtless.
When the widow's title to her exemption vests in her at the
death of her husband, she cannot acquire any additional right
by the appraisement of the property. Appraisement may be
necessary to sever her portion from a mass, or to relieve the
administrator of responsibility, and to enable him to know
what property is under his administration.^
§ 4. Remedies for Wrongful Levy.
Concurrent remedies: The oflBcer who disregards an ex-
emption claim may be sued by the beneficiary for failure of
duty, or he may be compelled by mandamus to have the
property appraised and the exemption ascertained, or he may
be enjoined from selling the non-liable chattels.' On the
other hand, he may defend himself when sued by averring
and proving that the property is exempt or not exempt, as
the case may be ; for he may have been sued by the creditor
for not levying upon certain property, or by the debtor for
levying upon it, or by some other ofiicer for the disturbance
of his possession. An officer can maintain an action as plaint-
iff to relieve himself of the obligations which he is under to
'Runyan's Appeal, 37 Pa. St. 131. have the proceeds of the sale paid to
2 York V. York, 38 111. 533 (see note her in an amount equivalent to her
of Hon. Levi North) ; Hastings v. interest in the property. Sheldon v.
Meyers, 31 Mo. 519 ; Kellogg v. Bliss, 8 N. Y. 31.
Graves, 5 Ind. 509 ; Sheldon v. Bliss, • ' Cunningham v. Conway, 35 Neb.
4 Seld. (N. Y.) 34 In New York, if 615; Johnson v. Hahn, 4 Neb. 149;
the appraisers fail to set off the ex- Mohawk R. Co. v. Artcher, 6 Paige,
emption to which the widow is en- 88 ; Belknap v. Belknap, 3 Johns.
titled from her husband's estate, and Chan. 463.
the executor sells, the surrogate may
858 EXEMPTION ENFORCED.
the parties interested in any attachment or levy made by
hira.i It is safer for the officer to make the levy when there
is no specific exemption and no claim made.^
The writ of fieri facias protects the officer in seizing prop-
erty liable to execution belonging to the judgment debtor,
provided the writ itself is valid and issued by a court
clothed with jurisdiction ; but the writ will not protect him
if he seize property which is exempt ^fter notice, and if he
proceed to sell with knowledge of the defendant's rightful
claim.' He must not fail, however, to give the notice if the
debtor is in the county.''
Receiver: When a suit has be^n brought to recover for
the conversion of chattels exempt and a receiver of the
plaintiff's property has been appointed in proceedings to sup-
plement the execution, does the plaintiff's right in the pend-
ing action pass over to the receiver? Under such a state of
things, the judge answered the question as follows: "I think
it clear that this right of action did not pass to the receiver.
It was founded upon injurj' to property which the creditor
had no claim to have applied to the payment of his debt.
The property was taken from the respondent without his
consent, and he had the right of election, either to prosecute
the action to judgment and collect damages or discontinue
the same and sue to recover the possession of the specific
property. With the exercise of this right neither the credit-
ors of the respondent nor the receiver could at all interfere.
The right of action not resting in the receiver, there is no
ground for claiming that the judgment thereafter recovered
vested in him; consequently, the judgment debtor had no
right to pay the same to the receiver, and such payment did
not satisf}^ the judgment."^
Does the appointment of a receiver of the defendant's
property in a pending action authorize that officer to take
1 Connaugbton v. Sands, 32 Wis. ' Hoy t v. Van Alstyne, 15 Barb.
387 ; Main v. Bell, 27 Wis. 519. See 568. See Duncan v. Spear, 11 Wend.
Earl V. Camp, 16 Wend. 562, 571; 54.
Smith V. Hill, 23 Barb. 656, 659. « Foote v. People, 12 111. App. 94
■Compare Cornell v. Dakin, 38 N. Y. 6 Andrews v. Rowan, 28 How. Pr.
253. 126 ; Hudson v. Plets, 11 Paige, 180.
2 Abbott V. Gillespy, 75 Ala. 180.
EKMEDIE8 FOE WRONGFUL LEVY. 859
charge of the defendant's exempt property? The court,
while answering " No," said the question was important for
review and decision, afPecting a multitude of cases arising
daily. Statutory provisions relative to proceedings supple-
mentary to execution were examined, prior decisions reviewed
and a negative answer reached.'
Damages: Though the statute may give double or treble,
damages against a trespasser who wrongfully takes and sells
a judgment-debtor's exempt goods, yet the injured party may
proceed by the ordinary action of trespass, and recover single
damages. Certainly, the wrong-doing officer cannot complain,
as defendant in such action, that he vras not sued for more.^
While double damages may be recovered against the officer,
only single can be awarded against his surety ; and only single
when both are sued together.'
If an article is specifically exempt by statute, and the debtor
does not point out other property as liable, the sheriff will
seize and sell such article at his peril; for the debtor is not
obliged to turn out something else.* The officer's process will
not justify his action ; his adjudication at the sale will not
convey the property."
It is trespass for an officer to seize and sell exempt property,
and the action of trespass will lie unless the statute has pro-
vided some other form of remedy." The statutory action may
be that of trespass, even when double or treble the value of
the goods taken are recoverable.^ The jurj^'s estimation of
damages should be regarded as the single value of the exempt
goods wrongfully attached, or otherwise seized, it has been
repeatedly declared,^ unless they have been instructed to find
1 Finnin V. Malloy, 33 N. Y. Supe- 5 Williams v. Miller, 16 Ct. 143;
rior, 382; N. Y. Code, §g 297-8. In Johns v. Chitty, 1 Burr. 32.
Georgia a receiver is appointed by 6 Dow v. Smith, 7 Vt. 465; Leavitt
the court on its own motion when v. Holbrook, 5 Vt 405 ; Hart v. Hyde,
the personal property of the debtor 5 Vt. 328 ; Haskill v. Andros, 4 Vt.
exceeds the amount wliich is exempt 609 ; Fry v. Canfield, 4 Vt. 9 ; Spooner
by law, as shown by the schedule, v. Fletcher, 3 yt. 133; Kilburn v.
McWilliams v. Bones, 84 Ga. 199. Demming, 2 Vt. 404; Leavitt v. Met-
2 Amend v. Murphy, 69 111. 337; calf, 3 Vt. 343.
Cornelia v. Ellis, 11 111. 584 ; Pace v. ' Wymond v. Amsbury, 3 Colo. 213 ;
Vaughan, 1 Gil. 30. Colo. Rev. Stat. 380.
3 Camp V. Ganley, 6 111. App. 499. ^ Newcomb v. Butterfield, 8 Johns.
4/6. 343; Warren v. Doolittle, 5 Cow.
860 EXEMPTION ENFORCED.
double or treble damages.^ If single damages are returned,,
and the jury meant no more, the court may treble the verdict
under such statutory provision as that above mentioned. If
there are no means of knowing whether the jury haVe assessed
single or double or treble damages, the court ought not to in-
crease them; for it would be monstrous to inflict upon the
trespasser nine times the loss he has caused — which would
be done were the jury to assess treble damages and the court
to presume single damage and then treble it in the judgment.
The officer is guilty of no trespass in attaching or levying
upon property which is not absolutely exempt, and which has
not been selected after appraisement. He must have time
to make his inventory and take the steps necessary Jo ascer-
tain the status of the property — whether liable or not.^
Where a statute inhibits the seizure of chattels to the amount
of a stated sum, the obvious meaning is that they shall not be
seized wlien ascertained to be of that value or less.'
So when household furniture is exempt, and there is a ques-
tion whether the furniture seized is used or meant to be
used by the debtor in his household, the officer, while holding
them preliminary to the settling of such question, ought not
to be condemned as a trespasser. Especially, when the debtor
is not, and was not at the time' of the levy, the qustodian or
lawful possessor of the goods. He may be the general owner,
yet if another is in lawful possession, and has special prop-
erty in the goods, the general owner can sustain neither tres-
pass nor trover, it has been held.*
When personal exemption is for the benefit of the wife and
children of the debtor, an action for the^ conversion of it may
684 ; Beekman v. Chalmers, 1 Cow. plevin, take it from the possession of
584 ; Cooper v. Maupin, 6 Mo. 634. any person who unlawfully held it,
1 Brewster v. Link, 28 Mo. 148. unless it was in the custody of the
2 Bonnel v. Dunn, 29 N. J. L. 435. law. If wrongfully taken by virtue
Same title, 28 lb. 153 (Nix. Dig. 249, of legal process, the remedy of the
251). Citing The Six Carpenters' owner was by action of trespass or
CaSe, 8 Coke, 390 ; Waddel v. Cook, 2 trover against the officer ; for the
Hill, 47. common law would not grant pro-
3 lb. cess to take, from an officer, goods
* Bourne v. Merritt, 22 Vt. 429. In which he had taken by legal process
Funk V. Israel, 5 la. 450, it is said : already issued. Cromwell v. Owings,
"At common law, the owner of a 7 Harr. & Johnson, 55; Ilsley v.
chattel mighty by the action of re- Stubb, 5 Mass. 280."
DAMAGES — CLAIM FOB EXEMPTION. 861
be brought by them, or by the debtor himself, under statu-
tory authorization as interpreted.'
It has been held that a tenant in common may recover dam- 1
ages for the execution sale of chattels claimed as exempt. The
thing sold may be indivisible, yet the tenant in common may
have damages — double damages under a statute awarding
them to owners without designating this particular class of
proprietors. The court, so holding, pointed out distinction
between partnership and co-tenancy, as to the nature of the
title.2
A mortgagee in possession of exempt property, or having
the right of possession, has his action for its conversion.'
§ 5. Damages Dependent on Legality of Claim for Ex-
emption.
Though an officer in charge of an attachment disregard a
claim of exemption, he will not be liable, if the claim was
unfounded and the property attachable, and the proceeds of
sale were duly applied to the debt. The plaintiff, in his action
against the officer for damages, cannot show that he has been
injured, under such circumstances.* But an officer has no
right to disregard a claim for exemption because the creditor
has told him that the claim is not well founded" in law, that
the debtor has denied ownership in himself and alleged it to
be in his wife, or anything of the kind. If the debtor was
found in possession, and no waiver of his legal right has been
duly made and properly brought to the knowledge of the
sheriif, that officer is culpable for heeding the mere state-
ments of the creditor so far as to go on and sell the exempt
goods. On the contrary, it is his duty to have these goods
set apart to the debtor, after appraisement; and he cannot
demand an indemnifying bond of the debtor before taking
such action.'
1 Braswell v. MoDaniel, 74 Ga. 319 ; Tannahill v. Tuttle, 3 Mich. 104 See
Ga. Code, g 2040. Burk v. Webb, 33 Mich. 173.
2 Trowbridge v. Cross, 117 111. 109; * Bryan v. Kelly, 85 Ala. 569; Ab-
Servanfi v. Lusk, 43 Cal. 338 : Rad- bott v. Gillespy, 75 Ala. 180 ; Wilson
cliffe V. Wood, 35 Barb. 53. v. Strobach, 59 Ala. 488.
^Ganong v. Green, 71 Mich. 1; ^ 'Williamson v. Erumbhaar, 133
Harvey v. McAdams, 33 Mich. 473 ; Pa. St 455.
Worthington v. Hanna, 33 Mioh. 580 ;
862
EXEMPTION ENFOECBD.
The debtor, suing an ofBoer for taking his exempt property,
must shovT that he has complied with the statute, exhibited
his affidavit that he is the head of a family (and whatever
else is required), to the officer, in due time.' The statutory
affidavit must precede such suit,^ unless the action be insti-
tuted by a purchaser from the debtor.'
In a suit involving the possession of property, he who al-
leges that he had claimed it as exempt, in form and substance
according to statute, before its wrongful sale by the sheriff,
must also set up title to make his pleading sufficient on de-
murrer.* He is held to a substantial compliance with the
statute, and must plead that fact but need not set out all the
particulars. So far as the officer is concerned, he is bound to
take the sworn statement of the debtor when there is no
ground for refusing beyond his own doubt of its truth.^
In a suit against a sheriff for refusing to allow the debtor
to select the personal property exempt by statute, the plaint-
iff's allegation that the sheriff, by his deputy, did convert the
1 Gamble v. Reynolds, 43 Al,a. 236.
2 Simpson v. Simpson, 30 Ala. 235.
3 Cook V. Baine, 37 Ala. 350.
* Over V. Shannon, 75 Ind. 352.
5 In Indiana, the claimant of ex-
emption is held to a substantial com-
pliance with the statute; in plead-
ing that he has thus complied he
need not set forth his schedule or
make it an exhibit. Stallings v.
Eeed, 94 Ind. 103; Hall v. Hough, 34
Ind. 273, The claim may be set up
before or after the levy. lb.; Pate
V. Swann, 7 Blackf. 500. This quo-
tation is from the case first cited
above: "A constable is bound, at
his peril, to accept a proper schedule
when duly tendered by the debtor,
and if he levies after the tender of a
proper schedule he is a trespasser.
Stephens v. Lawson, 7 Blackf. 275.
The officer cannot dispute the truth
of the schedule, but must act upon
it and set apart the property claimed
by the debtor, even though the latter
owQs property not exhibited in the
schedule. Douch v. Eahner, 61 Ind.
64. A mandate will lie to compel
the sheriff to set apart the property
designated by the debtor. Young v.
Baxter, 55 Ind. 188 ; Pudney v. Burk-
hart, 63 Ind. 179 ; Mark v. State, 15
Ind. 98. See Michael v. Eckman
(Fla.), 7 So. 365. The right of the
debtor to claim the property need
not be exercised until after appraise-
ment, and he may then designate the
property he selects to claim. Kelley
V. McFadden, 80 Ind. 586. It ap-
pears from the decisions to which
we have referred that the debtor is
favored in the matter of exemption,
and that the officer is placed in a sit-
uation of difficulty and embarrass-
ment; for, if he rejects a schedule
which is in substantial compliance
with the statute, he is liable to the
debtor.'' . . . Judge Elliott. The
debtor should make affidavit that the
schedule contains a list of all his
personal property. Taylor v. Beach,
14 111. App. 259.
EEPLEVIN. 863
property to his own use, was a sufficient averment that the
deputy was acting under the defendant as sheriff.^
When only costs recoverable: In a suit for conversion, only
damages for costs and other actual losses can be recovered
when the debtor has bought the property itself at the public
sale.'' If the owner has the property, even though he bought
it from a purchaser at the sale, he cannot have it and yet re-
cover the price of it from the officer, if he has lost nothing ex-
cept costs and expenses incident to the sheriff's wrong-doing.'
This is not to be understood as meaning that he may be made
the loser of his exempt property, so that he has to buy it back,
and yet have no redress.
Judgment against the creditor and the seizing officer, for
trespass in taking and selling exempt property, is not conclu-
sive that the trespass was intentional and wilful* Judgment
declaring certain property subject to levy has been held res
judicata.^
§ 6. Eeplevin.
Officers cannot be made to give up property which they have
levied upon, by the claimant's replevin, when he claims per-
sonal property exemption in lieu of realty exemption or home-
stead, unless he has made and filed his schedule or inventory
of property, and has selected his portion after appraisement,
where the statute requires his compliance with these condi-
tions. The requirement is not merely directory.* If, after
his compliance respecting the inventory, the officer refuses to
have the appraisement made, he maybe compelled hj man-
damus."' He cannot release attached property after having
1 Hutchinson v. Whitmore (Mich. ), 5 Dipert v. Jones (Ind.), 30 N. E
51 N. W. 451, citing Howell's Stat., 419.
eh. 366, § 27 (8), and distinguishing, « Mann v. Welton, 21 ffeb. 541 ;
as to the right of selection, McCoy v. Neb. Civ. Code, §§ 531-2 ; Settles v.
Brennan, 61 Mich. 363. Bond, 49 Ark. 114; Chambers v.
2 Northrup v. Cross (N. D.), 51 N. Parr}', 47 Ark. 400.
W. 719; Ford v. Williams, 24 N. Y. '' Ih.; Metz v. Cunningham, 6 Neb.
359 ; Baker v. Freeman, 9 Wend. 36 ; 93 ; People v. McCIay, 2 Neb. 8. See
Mclnroy v. Dyer, 47 Pa. St 118. Axtell v. Warden, 7 Neb. 183 ; Will-
^ Leonard v. Maginnis, 34 Minn, iams v. Golden, 10 Neb. 483; Neb.
506 ; Sprague v. Brown, 40 Wis. 612. Gen. Stat 618.
< Stanton v. McMuUen, 7 III. App.
336.
864 EXEMPTION ENFOECED.
made his return showing what he has seized, till ordered by
the court which issued the writ, though a higher court has di-
rected the lower one, by mandamus, to issue a supersedeas}
As the debtor is not confined to a single remedy against
the officer, he may proceed by replevin, or he may choose a
statute remedy when one is accorded to him.^ He may sue
for the value of exempt property wrongfully sold.'
Are damages exempt? It is held that, though an exemp-
tionist may reclaim property by replevin and recover what-
ever profits the wrong-doer may have gained by the detention
of it, the damages for such profits are not exempt — they do
not take the character of the property in this respect.*
A sheriff, against whom judgment had been rendered for
the conversion of exempt property, paid the amount of it, not
to the owner who had been bereft of the property and who
had recovered the judgment for the conversion, but to another
sheriff who held an alias fi. fa. against the owner. In' other
words, after the property had been wrongfully converted to
pay the original creditor, the wrong-doing sheriff sought to
put the money recovered of him therefor into the hands of
another sheriff to be wrongfully converted. What was ad-
judged to be due by the first sheriff for selling exempt prop-
erty was no more liable than the property itself had been.'
The judgment for wrongful conversion stood for the exempt
property converted.*
§ 7. Burden of Proof.
The law shows what is exempt, but the facts which bring
claimed property within the law must be proved by the
claimant. If the value of the claimed property is proved,
1 Farris v. State. 33 Ark. 70. sorted to in actions against the sher-
2 In Mississippi it has been held that iff. Hopkins v. Drake, 44 Miss. 619 ;
exempt property of the judgment- Ford v. Dyer, 26 Miss. 343; Yarbor-
debtor may be replevied by him, ough v. Harper, 25 Miss. 112.
after having been levied upon by the 5 stilson v. Gibbs, 53 Mich. 280.
sheriff in execution, though that is ^ Johnson v. Edde, 58 Miss. 664.
not his only remedy. Code of 1871, 5 Below v. Eobbins, 76 Wis. 600.
§ 2134 ; Ross v. Hawthorne, 55 Miss. « Tillotson v. Wolcott, 48 N. Y. 188,
551 ; Mosely v. Anderson, 40 Miss. IdO; Commissionere v. Riley, 75 N. C.
50. The debtor had also a remedy 144. Compare Mallory v. Norton, 21
under the code. Ih. The remedy Barb. 424, and Temple v. Scott, 3
by replevin had been frequently re- Minn. 306.
BUSDKN OF PROOF. 865
and the character of it shown, still he must prove that he is a
householder and has a family, when that fact is requisite. If
all this be established, it must yet be made to appear that he
has not " retained a sufficient amount to satisfy any claim he
could make for exempt property." ' The law does not pre-
sume that the chattels levied upon are all the property he
possesses. The rule, when the exemption is not specific, is
that the onus is on him to show that he is within the statute
in respect to his means.*
All personal property is liable to execution on a judgment
against its owner, as a general rule : so, if he plead anything
to take it out of the rule, the burden is on him to sustain his
plea. He who sets up exemption must prove it. But there
is the principle, that when exemption exists, and he sells the
exempt property, and creditors charge that the sale is in
fraud of theii' rights, it is incumbent upon them to establish
the fraud. As to property resMly exempt, there are no creditors ;
there are none to claim injury by any disposition which the
debtor may have made of property which they never could
have reached.' But are creditors bound to show that prop-
erty, which they claim to have been fraudulently sold by the
debtor to defeat their judgment, was not exempt? Must they
prove a negative? It was held under a statute requiring the
debtor to schedule his property and specify that claimed as
exempt, that the burden of such a matter is on him and not
on his creditors, and that even when they had charged fraud
as above suggested, they were not bound to show that the
property would not have been exempt, had the debtor made
no disposition of it.*
1 Tuttle V. Buck, 41 Barb. 417 ; Grif- v. Sly, 44 Ind. 337. (Euper v. Alkire,
fin V. Sutherland, 14 Barb. 456 ; Cam- 37 Ark. 283, distinguished as not ap-
rick V. Myers, 14 Barb. 9 ; Willson v. plying to personalty.)
Ellis, 1 Denio, 463 ; Brown v. Davis,
9 Hun, 48 ; Seaman v. Luce, 33 Barb.
240; Brooks v. Hathaway, 8 Hun,
390 ; Van Sickler v. Jacobs, 14 Johns.
434; McCoy v. Dail, 6 Bax. 137
Blythe t. Jett, 53 Ark. 547.
2McMasters v. AIsop, 85 111. 157
Bonnell v. Bowman, 53 111. 460
3 Clark V. Anthony, 31 Ark. 546;
Erb V. Cole, 81 Ark. 557 : Stanley v.
Snyder, 43 Ark. 484 ; Bogan v. Cleve-
land, 52 Ark. 101.
4 Blythe v. Jett, 52 Ark. 547 (Mansf.
Dig., § 8006), overruling on this point,
Erb V. Cole, supra, and citing Davis
V. Prosser, 82 Barb. 390, and several
Smothers v. Holly, 47 111. 831 ; Finley other oases. In California creditors
55
866 EXEMPTION ENFORCED.
The transcript of a declaration makes proof of it ; ' bat if it
shows itself invalid as to the pending execution in the case in
which it is offered, and is not supported by an affidavit, it may
be disregarded.^
§ 8. Laches and Passive Waiver.
Exemption may be forfeited by not claiming it.'
If the officer neglects the duty of giving the debtor his
opportunity of designating the chattels to be held exempt,
the debtor does not forfeit his right by not claiming immedi-
ately upon learning of the levy. He may be silent yet not
estopped when no expense is caused thereby, it is said in ex-
position of statute.* A failure to demand exemption at the
time of the levy does not everywhere work forfeiture ; ^ and it
has been held that disclaimer of ownership by the debtor
does not estop him, if the officer is not shown to have been
influenced by it.'
A request by an absent debtor, made to a judgment creditor
by letter, that the latter would postpone execution, is not to
be considered as implying a waiver of exemption.' Standing
by, and not objecting, is waiver, when the statute points out
the time and manner of claiming.^ A wife was presumed to
have waived her exemption in community property when her
opposing the granting of exemption Richards v. Haines, 30 la, 574 ; Ham-
to their debtor need file no paper if mersmith v. Avery, 18 Nev. 225 ;
he has ah-eady petitioned for exemp- Boesker v. Pickett, 81 Ind. 554 ; State
tion. In re Baldwin, 71 Cal. 74. v. Melogne, 9 Ind. 196 ; Butt v. Green,
1 Stevenson v. Moody, 85 Ala. 33. 29 O. St. 667 ; Russell v. Dean, 30
'^ Ex parte Barnes, 84 Ala. 540. Hun, 243.
3 Bell V. Davis, 42 Ala. 460 ; Ross v. ^ Ellsworth v. Savre, 67 la. 449
Hannah, 18 Ala. 125 ; Gresham v. (la. Code, § 3072, as amended in 1882),
Walker, 10 Ala. 370 ; Zielke v. Mor- disiinguishing Angell v. Johnson, 51
gan, 50 Wis. 560 ; Russell v. Lennon,
39 Wis. 570 ; Iliflf v. Arnott, 31 Kan.
672 ; Pond v. Kimball, 101 Mass. 105
Buzzell V. Hardy, 58 N. H. 331
Harlan v. Haines, 125 Pa. St. 48
Bair v. Steinman, 53 Pa. St 423
Tasker v. Sheldon, 115 Pa. St. 107
la. 635, and MoflBtt v. Adams, 60 la.
44 {compare Rice v. Nolan, 38 Kan.
28): Wicker v. Comstock, 52 Wis.
319; Coleman's Appeal, 103 Pa. St
366.
5 Shepherd v. Murrill, 90 N, C. 208.
6 McAbe V. Thompson, 37 Minn. 134.
Bittenger's Appeal, 76 Pa. St. 105. ' Harrington v, Smith, 14 Colo. 376.
Compare Howard, etc. v. Railroad 8 Graves v. Hinkle, 120 Ind. 157;
Co., 103 Pa. St 220 ; Barton v. Brown, Ind. R. S. (1881), § 2670, relative to
68 Cal. 11 ; Green v. Blunt, 59 la. 79 ; claim when property is assigned, etc.
LACHES AND PASSIVE WAIVEE.
86T
husband had consehted to its attachment, and she had made
no objection.*
When property was assigned, and the assignor had the
promise of the assignee to set off certain personal property as
exempt, which the latter neglected to do ; and when the as-
signor was absent at, the appraisement on account of sickness,
he was not held to have waived.^
1 Dodge V. Knight (Tex.), 16 S. W.
636.
'■! liolierty v. Ramsey, 1 Ind. App.
530; 27 N. E. 879. The court, said:
"The law requires an assignee to
make a full and complete inventory
of all the property ovpned by the as-
signor within thirt}' days after he
enters upon the execution of the
tnist, and within twenty days after
the preparation and filing of such in-
ventory he shall cause all of the
property mentioned therein to be ap-
praised by two competent appraisers.
Section 3670, Revised Statutes 1881,
provides that, if the assignor be a
resident householder of this State, the
a,ppraisers shall set off to him such
articles of property mentioned in the
inventory as he may select, not ex-
ceeding in value $300. The amount
of exemption provided by this stat-
ute was enlarged by implication to
|600 by the act of March 39, 1879.
O'Neil V. Beck, 69 Ind. 389. In the
case of Graves v. Hinkle, 130 Ind.
157, 31 N. E. Rep. 388, it was held
that an assignor could avail himself
of the right of exemption only by a
substantial compliance with the re-
quirements of section 3670, supra,
and that he must select the articles
of property claimed by him as ex-
empt from sale at the time and in
the manner provided in that section ;
and, if he failed to do so, the right of
exemption would be deemed to have
been waived, and the property would
all constitute a trust fund for the ex-
clusive benefit of the creditors until
they were all satisfied. The court
said: 'As against his deed, which
transfers the title to the property,
the assignor can only claim the right
of exemption by pursuing the method
prescribed by the statute. He has a
right to claim the amount out of real
estate or personal property, or both ;
but, unless prevented from doing so
without his own fault or neglect, he
must assert his right in the manner
and at the time pi-escribed by the
statute.' In the case before us the
petition states that the assignor was
a householder of this state, and that
a few days before the appraisement
he demanded of the assignee that
property of the value of $600 be set
off to him as exempt from sale, and
that he then and there designated
and selected the particular property
so claimed by him, and the assignee
promised to have the property so set
apart at the time of the appraise-
ment. The assignor was confined to
his house by sickness when the prop-
erty was appraised, and could not be
present to again assert his right to
exemption, and again select the ar-
ticles of property claimed by him,
but relied upon the agreement of the
assignee to protect his rights in the
matter. The law contemplates that
the appraisement shall be made un-
der the supervision of the assignea
B'oUowing the decisions of the su-
preme court requiring a liberal con-
struction of the exemption laws in
favor of the debtor, we are of the
opinion that the petition shows a sub-
868
EXEMPTION ENFOECED.
If the debtor has made claim and it has been disregarded
by the officer in charge of the execution, he has his remedy
to enforce his right. And it has been held that if, after hav-
ing claimed, he stand by and neglect to resort to mandamus,
he will be deemed to have waived his right. Or, if his claim
has been denied by a court, and he has not appealed, he is
considered as having acquiesced in the judgment and lost his
exemption right, whether in homestead or chattels.'
If a judgment entry is that of a money judgment without
mention of any stipulation waiving exemption, it will amount
to " an abandonment of the waiver and a consent to accept a
common judgment for money," it has been held.^
Btantial compliance with the statute.
At least, enough is stated to rebut
the presumption of a waiver result-
ing from the assignor's failure to be
present and assert his right at the
time of the appraisement. Where the
assignor substantially pursues the
method prescribed by the statute in
asserting his right to exemption, and
the assignee refuses to set olf prop-
erty to him, but converts it into the
trust fund, the assignor is equitably
entitled to the proceeds of the prop-
erty which should have been set
apart to him ; and it is the duty of
the court, on proper application, to
order the assignee to turn such pro-
ceeds over to the assignor. The pe-
tition in this case was sufficient, and
the relief prayed for ought to have
been granted, unless the answer con-
tained facts sufficient to defeat the
right of exemption. It is insisted
that, because the assignor transferred
a large amount of property to one
Street, for his own use, and to with-
draw it from the operation of the
assignment, he should not be allowed
the right to the exemption expressly
conferred upon him by the statute.
It appears by the answer that the as-
signor had given the assignee an or-
der on Street for the money so trans-
ferred to him, but Street refused to
pay it over, and the assignee had a
suit then pending for its recovery.
By the recording of the deed of as-
signment, the legal title to all of the
property owned by the assignor at
that time became vested in the as-
signee for the benefit of the cred-
itors, including any and all property
that may have been sold, conveyed
or assigned by the assignor with the
intent to defraud his creditors. Sei-
bert V. Milligan, 110 Ind. Ill, 10 N. K
Rep. 939. Not only did the law bring
the money fraudulently transferred
by the assignor into the trust estate,
but he executed a written order vol-
untarily surrendering to the assignee
all of such property, so that it can-
not be claimed that the assignor
should receive his exemption from
that fund. This beneficent provision
of the statute can only be invoked
by one in the character of a house-
holder, and was designed largely for
the benefit of those dependent in a
measure upon the debtor for sup-
port . . ."
1 Chambers v. Perry, 47 Ark. 400 ;
Cason V. Bone, 43 Ark. 17 ; Healy v.
Connor, 40 Ark. 353; Butt v. Green,
39 O. St. 667.
2Agnew V. Walden (Ala.), 10 So.
334; Courie v. Goodwin, 89 Ala. 569 ;
Brown v. Leitch, 60 Ala. 313 ; Hosea
V. Talbert, 65 Ala. 173.
WAIVEE IS PEOMISSOBT NOTES. 869
Wheris waiver of exemption, in a lease, is valid, the person-
alty of the debtor may be executed, though the judgment do
not recite or note the waiver.*
The debtor does not waive by returning the property under
a bond given to the sheriff for its redelivery.^
The acceptance of the officer's selection waives all irregu-
larities.'
§ 9. Waiver in Promissory Notes.
The states are not agreed as to whether exemption may be
waived in a promissory note. Those holding the affirmative
say that exemption is a personal privilege which may not only
be waived when execution is pending (as all agree), but that
it may be relinquished beforehand in favor of a particular
creditor, the payee, of the note. They say that this is part of
■the consideration; that the creditor trusts on the faith of the
waiver, and therefore the court should respect it ; and that
the debtor is benefited by having his credit bettered by de-
barring himself and family of the exemption privilege.*
The states holding the negative appeal to public policy.
Exemption is something which concerns not only the debtor,
but his family and the community,; so the debtor cannot
defeat the purpose of the legislator by stipulating that he will
not avail himself of the benefit for himself, his family and the
public. He cannot cut himself off from his defenses by pre-
stipulations ; and cannot, from his exemptions, it is said. These,
or like reasons, have been given.'
1 Hoisington V. Huff, 24 Kan. 379 ; 250; Eecht v. Kelly, 83 lU. 147;
Comp. L. (1879), ch. 55, § 30 ; Greeno v. Phelps v. Phelps, 73 111. 545 ; Green
Barnard, 18 Kan. 518; Frost v. Shaw, v. Watson, 75 Ga. 471 ; S. C, 58 Am.
3 O. St. 270. Eep. 479; Stafford v. Elliott, 59 Ga.
2 Desmond v. State, 15 Neb. 488; 837; Curtis v. O'Brien, 30 la. 376;
Neb. Code, § 1073. Moxley v. Eagan, 10 Bush, 158 ; Lev-
3 State V. Conner, 73 Mo. 573. icks v. Walker, 15 La. An. 245 ; Branch
* Case V. Dunmore, 23 Pa. St. 94. v. Tomlinson, 77 N. C. 8 ; Carter v.
Compare Shelley's Appeal, 36 Pa. St. Carter, 30 Fla. 558; S. C, 51 Am. E.
873, SSd; Neely v. Henry, 63 Ala. 261 ; 618. A note, . waiving exemption,
Hoisington v. Huff, 24 Kan. 379 made in Georgia, payable, in Ala-
(waiver in a lease) ; Gamble v. Cen- bama, not usurious in Georgia, is not
tralE.Co., 80 Ga. 595 (note payable open to inquiry respecting its usu-
in Alabama). ' riousness in Alabama, by the debtor,
•Kneetle v. Newcomb, 22 N. Y. after- judgment upon the note. Gam-
870
EXEMPTIOK ENFOEOED.
§ 10. Notice — Bank of Creditors, etc.
A debtor, not notified and whose whole personal chattels
do not exceed the exemption limit, is not necessarily to be
understood as having waived his exemption right by failing
ble V. Central R. Co., 80 Ga. 595. In
the case of Cleghorn v. Greeson, 77
Ga. 343, the judgment showed usury
on its face by Georgia law. The
coui-t explained, in Gamble's case,
that it did not mean to rule by im-
plication " that the law of Alabama
would vitiate a waiver of exemption
made here [in Georgia] in favor of a
debt pure by our law though payable
in that state, but only that the ques-
tion cannot be made after judg-
ment— no usury appearing on the
face of the record, and none being
alleged save that which is obnoxious
to the foreign law only," In Ala-
' bama, the waiver of all exemptions,
in a promissory note, will hold good
as to chattels but not as to realty.
Agnew V. Walden (Ala.), 10 So. 334
The court said : " The claim sued on,
as described in the complaint, and as
the testimony tends to show, con-
tains a waiver of all exemptions or
relief laws under the statutes and
constitution of Alabama. This is a
good waiver of exemptions of per-
sonal property, but not of real estate.
Neely v. Henry, 63 Ala. 261. The
substance of the claim, as filed and
recorded in the probate court, states
the date of the note, amount when
due, names of the payees, and date
of filing. It contains no mention of
the waiver of exemptions. In Smith
V. Fellows, 58 Ala. 467, we stated
some of the reasons which go to
make up the policy of our legisla-
tion requiring claims against de-
cedents' estates to be presented or
filed within eighteen months. There
may be other reasons. , Personal rep-
resentatives, among then- first duties,
are required to set apart exemptions
of personal property if there be a
surviving widow, or minor child or
children ; and it may be that to con-
stitute a statement of the claim that
will cut off exemptions the waiver
should be set forth, if there be one.
But we need not decide this question.
The judgment entry is a simple
judgment for money, and is silent as
to the stipulation waiving exemp-
tions. This amounts to an abandon-
ment of the waiver, and a consent to
accept a common judgment for
money. Courie v. Goodwin, 89 Ala.
569, 8 South. Rep. 9 ; Brown v. Leitch,
60 Ala. 313: Hosea v. Talbert, 65
Ala. 173. Some of the questions
sought to be raised are scarcely pre-
sented in such form as that we can
consider them. Eliminating them,
we find no error in the reeord." And
a waiver of homestead exemption in
a promissory note does not include
that of chattel ' exemption. Reed
Lumber Co. v. Lewis (Ala.), 10 So.
333. In this case, the court said:
"It is not claimed in the complaint
that either of the defendants waived
their exemptions of personal prop-
erty as against the notes sued on.
The averment is 'that in each of said
notes defendants waived all home-
stead exemptions as against this
debt' Manifestly, upon such a waiver,
there could be no judgment decla-
ration of a waiver of exemption of
personalty ; and, even were this oth-
erwise, the declaration in this judg-
ment should have been confined to
W. T. Farrar, who, it is alleged,
signed the partnership name to the
notes, Terrell v. Hurst, 76 Ala. 588.
The judgment is reversed, and tlie
cause remanded."
NOTICE BANK OF CKEDITOES. 871
to put in Ms claim till long after his property has been at-
tached.i He may reasonably be supposed to await notice
from the seizing officer, where the giving of it is made a duty.
In the case cited the debtor's property was specifically ex-
empt in part, and wholly exempt upon claim. The officer
should have given him notice (so that selection could be made
between three horses of which two only were specifically ex-
empt), if only specific exemption had been involved. The
debtor was entitled to three hundred dollars' worth of per-
sonal property, and, as all that he owned did not exceed this
allowance, he was not held to have lost his right by his laohes.'^
The assignment of all his property by a debtor for the bene-
fit of his creditors does not affect his right to exempt prop-
erty retained, though literally included in the assignment.'
The creditor, entitled to notice of the filing of the schedule
and claim of exemption, waives it by his appearance to con-
test the claim.'' When the lower court has refused to restrain
the sale jf property claimed as exempt on the ground that no
notice has been given to the creditor, and the debtor applies
to the higher court, if the cre(|itor meet him there to contest
the application he will thus waive his right to notice of the
schedule.'
Notice of opposition to the exemption allotment to the
debtor must be given by him and served in such way as to ap-
pear of record — • not orally, nor by mail." This may not be
required everywhere, but would be a good rule for general
practice.
Notice by the debtor to the judgment creditor that he
claims exemption in certain chattels will enable him to prose-
cute his claim though the property may have been subse.
quently bought by the creditor at execution sale.' And he
may go on with his suit, though he has changed his residence
after its institution.^
Will the debtor's waiver, in favor of a creditor whose claim
1 HoUiday v. Mansker, 44 Mo. App. « Allen v. Strickland, 100 N. C. 235.
465. ' Gardner v. King, 37 Kan. 671.
216.; State v. Emmerson, 74 Mo. SMcCrary v. Chase, 71 Ala. 540.
<507. See further, as to contests of exemp-
» Close V. Sinclair, 38 O. St. 530. tions, Clark v. Spencer, 75 Ala. 49;
* GaiTctt V. Wade, 46 Ark. 493. Levy v. Moog, 69 Ala. 63.
* Brown v. Doneghey, 46- Ark. 497.
872 EXEMPTION ENFORCED.
(secured by lien) is less than the maximum of exemption, inure
to the advantage of those holding liens of less rank and debar
the debtor from having the balance of his exemption? That
is to say : the exemption maximum being three hundred dol-
lars, and the senior's claim Wo hundred, would the debtor be
estopped from claiming one hundred, as against the junior
creditors, by reason of his special waiver?
Answer has been made as follows: —
" First — A waiver as to any lien will inure to the benefit
of all prior liens, on the principle that the debtor cannot alter
the precedence settled by law.
" Secondly — A waiver as to any lien will inure to the ben-
efit of subsequent liens so far as to compel the waiver-creditor
to resort first to the exempted fund, on the principle of the
equity of creditors having one and two funds, respectively,
under their control.
" Thirdly — A waiver will not inure to the benefit of sub-
sequent liens beyond its own amount : so that if the waiver
judgment is less than three hundred dollars, the balance wiUgo
to the debtor claiming his exemption ; and this on the broad
ground that men may do what they will with their own, pro-
vided they do not contravene the settled rules of law, or im-
pair the rights of others." ' This answer is the result of a
learned discussion of the question.
An express general waiver of exemption from forced sale
for rent, made by a lessee in his lease, was held applicable to
any of his property, whether seized for rent or not.^
A waiver as to any lien is a waiver as to all anterior ones,
since otherwise the junior would be given a better place than
the senior liens. The principle is that, the law having fixed
the rank of the respective liens, the debtor cannot reverse' or
alter it.'
§ 11. Mortgage, Relative to Waiver.
We usually think of exemption with reference to execution ;
and it has been contended that when the debtor's property is
1 Hallman v. Hallman, 124 Pa. St Mitchell v. Coates, 47 Pa St 303, dis-
347, and cases cited ; Thomas' Appeal, tinguished.
69 Pa. St 131. 3 Miller v. Getz, 135 Pa St 558;
2 Beatty v. Rankin, 139 Pa St 858. Hallman v. Hallman, 134 Pa St 347.
MORTGAGE, RELATIVE TO WAIVER. 873
sold otherwise than by such forced sale, as by mortgage fore-
closure, there is no exemption. But the opposite rule pre-
vails. If there be excess after the satisfaction of a mortgage,
it is not open to creditors to the exclusion of the exemption
right.' The reason for protecting the debtor and his family
is as great when the sale is''by mortgage foreclosure as when
by writ of fieri facias. The principle should be universally
recognized ; at least, it should be wherever the statute is vir-
tually the same as that upon which the above cited decisions
were founded.^ The literal language of the statute may be
that the property shall be exempt from execution, but the
spirit would seem to be that it shall be saved to the debtor
free from his creditor's claims. The relief to the debtor and
his family is as much needed under one form of sale as under
another. If creditors could redeem the mortgage, and make
as much money out of the mortgaged property as the mortga-
gee could have made, and go on and apply any excess of pro-
ceeds to their debts, they could do more than the mortgagee
could have done. Would any fair construction of an exemp-
tion statute simply forbidding execution sale of exempt prop-
erty allow this indirect way of taking it from the debtor?
When a debtor has mortgaged all his personal property to
his creditor, he cannot claim any portion of it as exempt from
foreclosure sale, as he could in case of execution had no mort-
gage been given.'
A creditor cannot complain that his debtor has mortgaged
exempt chattels, since he could not have made his money out
of them had they remained unincumbered.* The principle is
1 Darby v. Rouse (Md.), 32 A. 1110 ; 3 O. St. 270 ; Jones v. Scott, 10 Kan.
Muhr V. Pinover, 67 Md. 488. Compare 33 ; McAuley's A ppeal, 35 Pa. St. 309 ;
Boulden's Case, 57 Md. 314 Gangwere's Appeal, 36 Pa. St. 466 ;
2 Maryland, Act 1861, ch. 7. Prop- Bowman v. Smiley, 7 Casey, 235;
erty to the value of $100 shall be " ex- Love v. Blair, 72 Ind. 281 ; Barnard
empt from execution." v. Brown, 113 Ind, 53; 13 N. E. 401.
» Conway v. Wilson, 44 N. J. Bq. * Washburn v. Goodheart, 88 111.
457; Flanders v. Wells, 61 Ga. 195; 329; Vaughan v. Thompaon,17 111.78;
Cronan v. Honor, 10 Heisk. 533 ; Mox- Hunter v. Bosworth, 43 Wis. 583 (see
ley V. Ragan, 10 Bush, 156 ; Patterson Anderson v. Patterson, 64 Wis. 557) ;
V. Taylor, 15 Fla. 336 ; Lavillebauve V. Patten v. Smith, 4 Ct. 450; CoUett
Frederic, 20 La. Ann. 374 ; Roundy v. Jones, 2 B. Mon. 19 ; Prout v.
Y. Converse, 71 Wis. 534 ; Fejavary Vaughan, 52 Vt 451.
V. Broesch, 52 la. 88 ; Frost v. Shaw,
874 EXEMPTION BNFOEOED.
the same whatever the species of property.' But if the value
of the mortgaged property greatly exceeds the debt secured,
the good faith of the mortgagor may be questioned, and the
question submitted to a jury.^
The right to mortgage that in which the creditor has no
concern is as clear as the right to sell it ; and the exemptionist
has the right to sell.' But the proceeds would not therefore
be exempt ; * nor would property taken by way of exchange.'
If a debtor has voluntarily mortgaged his exempt personal
property, does he thereby relinquish his exemption claim so
that the goods are exposed to the general creditor? Undoubt-
edly there is relinquishment as to the mortgagee ; but is there
as to other creditors ? The authorities say there is not. Even
the right of redemption is held inviolable.' Though such
mortgage be declared a general assignment, yet it is held that
only creditors having waiver can take in distribution.'
It was held that a wife could claim exemption in the chattels
mortgaged to the amount of the statutory limit — three hun-
dred dollars — when the mortgagor had no homestead. This
was held under statutory construction.' The husband was es-
topped ' but the wife could alaim, as she had been no party
to the mortgage.
The debtor may claim exemption in his unmortgaged chat-
tels when they are levied upon with others that he has mort-
iWeis V.Levy, 69 Ala. 309; Courier 7 S. E. 312; Paddock v. Lance, 94
V. Sutherland, 54 N. H. 475; Bayne Mo. 383; 6 S. W. 341. ,
V. Patterson, 40 Mich. 658 ; Muhr v. « Harrier v. Fassett, 56 la. 264.
Pinover, 66 Md. 480. Compare Chyn- » Bennett v. Hutson, 33 Ark. 763.
oweth V. Tenney, 10 Wis. 397 ; Single « Jones v. Scott, 10 Kan. 38 ; Buok-
V. Phelps, 20 Wis. 398 ; Case v. Fish, ley v. Wheeler, 53 Mich. 1 ; Mandlove
58 Wis. 56. V. Burton, 1 Ind. 39 ; McGivney v.
^Ganong v. Green, 71 Mich. 1
Olmstead v. Mattison, 45 Mich. 617
Allen V. Kinyon, 41 Mich. 281
Childs, 41 Hun, 607. See Wilson v.
Joseph, 107 Ind. 490; Zelnicker v.
Brigham, 74 Ala. 598 ; Collet v. Jones,
Loomis V. Smith, 37 Mich. 595. See 2 B. Mon. 19, and 7 B. Mon. 586 ;
Stewart v. Brown, 48 Mich. 383. Slaughter v. Detiney, 15 Ind. 49 ;
3 Buckley v. Wheeler, 52 Mich. 1 ; State v. Carroll, 34 Mo. App. 358.
Washburn v. Goodheart, 88 111. 339 ; ' Collier v. Wood Brothers, 85 Ala.
Oronan v. Honor, 10 Heisk. 358 ; Ku- 91.
lage v. Schueler, 7 Mo. App. 350; s Colwell v. Carper, 15 O. St 379.
Taylor v. Rice (N. D.), 44 N. W. 1017; »Ib.; Frost v. Shaw, 3 O. St 270,
Gardner v. King, 37 Kan. 671 ; 15 P. See Blanker v. Beardsley, 9 O. St 589.
920 ; Eobsnn v. Rawlins, 79 Ga. 354 ;
MORTGAGE, EELATIVE TO WAIVEB. 875
gaged, and he may select an exempt article before seizure and
leave the olficer only a mortgaged one to proceed against,
where the officer has been notified by record or otherwise.'
"When the debtor has mortgaged chattels, part of which are
specifically exempt, he may have the non-exempt portion first
exhausted at the foreclosure sale, if he claim this privilege.
The mortgagee is not bound to sell in this order, in the ab-
sence of the claim. And the interposition of the debtor must
be timely. He cannot stand by until his wheat has been;
threshed by the sheriff, and then demand that, as it is exempt,
other property must be first exhausted.^ The general rule as
to the exhaustion of the one of two funds which will leave
the other to junior mortgagees is well established;'' and it
has been applied when exempt and non-exempt property were
both liable.''
Mortgaged chattels, remaining in the possession of the
mortgagor, may be claimed by him under the exemption pro-
vided by statute, if they are exempt ; but the mortgagee can-
not claim them and save them from execution, where he is
held to have no interest.'
In some states a chattel mortgage does not imply a waiver
of exemption — only express waiver will hold good.^ "Whether
the waiver is with reference to a part or the whole of the prop-
erty exempted by law should be specified in the instrument,
though the chattels need not be designated when the waiver
covers the whole.' Such waiver, unlike that respecting home-
stead, does not need the wife's signature to make it valid.*
1 Greenleaf v. Sanborn, 44 N. H. ing judgment creditors,'' from the
16; McCoy v. Dail, 6 Bax. 137; proceeds of his property sold for debt
Tryon v. Mansir, 3 Allen, 319 ; Bald- Darby v. Rouse (Md.), 33 A. 1110 ; Md.
win V. Talbot, 43 Mich. 11. Act. of 1861, ch. 7. Compare Muhr v.
2 Miller v. McCarty, 47 Minn. 321 ; Pinover, 67 Md. 488, and Boulden's
60 N. W. 335. Case, 57 Md. 314.
3 Searle v. Chapman, 131 Mass. 19 ; « Knox v. Wilson, 77 Ala. 809 ; Ala.
Hallman v. Hallman, 134 Pa. St. 347. Code, 1876, § 3848.
* McLaughlin v. Hart, 46 Cal. 638 ; ' Neely v. Henry, 63 Ala. 361.
Armitage v. Toll, 64 Mich. 413; Wit sjb. In this case, waiver of ex-
son V. Patton, 87 N. C. 318. See Hor- emption, made in a promissory note,
ton V. Kelly, 40 Minn. 193. was recognized ; so also in Brown v.
sSherrible v. Chaffee (R I.), 31 A. Leitch, 60 Ala. 313; Bibb v. Janney,
103, In Maryland, $100 may be 45 Ala. 339.
claimed by a debtor " as against exist-
CHAPTEE XXVIII.
EXEMPTING ATTACHED CHATTELS.
§ 1. Claiming before Judgment
2. Attachment and Execution Dif-
ferent as to Claiming.
3. Effect of Judgment upon At-
tachment
4. Conventional Waiver.
5. Sale Pendente Lite.
6. Garnishment in Foreign Juris-
diction.
5 7. Garnishment and State Comity.
8. Garnishee's Disclosure in For-
eign Jurisdiction.
9. Railroad Company Garnishee —
Disclosure.
10. Non-residents, as to Chattel Ex-
emption.
§ 1. Claiming before Judgment.
The service of the attachment process is usually prompt
and often hurried, especially when there are competing credit-
ors each trying to get the first lien, and when the chattels of
the debtor are likely to be concealed or spirited away by him
if he be not prevented by the timely action of the officer in
charge of the writ. Under such circumstances, it is some-
times impracticable to give the debtor the opportunity of se-
lecting his exempt portion before the seizure of his goods.
He should have nptice, however, as soon as possible, so that
he may select and claim the articles which he is entitled to
keep, and so that the officer may take additional property
to supply the deficiency created by the release of things spe-
cifically exempt; for, by virtue of the writ, he could seize
no more than what was needed to satisfy the debt and costs,
in the first instance. If he has secured ten horses, and the
debtor is entitled to select one and exercises his right, the
officer may then release that one and attach another, or some
other property in its place. The exemption being specific, the
release may be made without order of court, at this first stage
of the proceeding, before the return is made.
Claiming, whether of the officer or of the court, is usually
by the debtor himself, but under some circumstances other
beneficiaries may claim. For, though only he can defend
CLAIMING BEFOEE JUDGMENT. 877
against the main suit, others may have such interest in the
exemptions that they may apply for the release of such arti-
cles as the law secures to families. When the debtor has ab-
sconded, he may have forfeited his privilege as to exemption,'
yet if it is for family benefit, his wife may claim it,^ though she
cannot defend the suit to recover the debt. If non-residency
is the ground of the attachment, or rather if the debtor be a
non-resident and therefore not entitled to exemption, it is heLl
that the attaching officer cannot release any property to the
wife without rendering himself liable on his bond.^
Where the absentee has not forfeited his right to claim, not
only his wife but a son or daughter of proper age may inter-
pose to save the exemption, without any power of attorney
or other authorization, oral or written. It has been said ju-
dicially: "The domestic attachment act provides for the
exemption, although the debtor has absconded with purpose
to defraud his creditors, evidently requiring no authority
from the husband. The act, allowing the widow of a decedent
to retain, directs that the property remain for the use of the
widow and children. Considering the act in question by these,
^n pari materia, we are of opinion that the authority of the
daughter to make the demand was clearly implied by law."
This (a part of a charge to a jury by the trial court) was ap-
proved on appeal.*
Although the debtor may always exercise the right of de-
fense to a suit brought against himself or his property, he
has been denied his claim of exemption in attachment cases
when he had permanently removed from the state,^ or was
about to do so.* But the laws of a state may allow a foreign
defendant to claim his attached wages, or other personalty,
to the amount of the exemption." And, though exercising his
undoubted right to defend the main suit, and also his equal
right to oppose the attachment on any legal grounds, the
^Ante, p. 765. ' claimed was a minor. Even when
2Malvin v. ChristOph, 54 la. 563; the father was not absent, an adult
OrifBth V. Bailey, 79 Mo. 472. daughter, who lived with him, was
' State V. Chaney, 36 Mo. App. 513. allowed to claim. Halbe's Estate, 9
Compare Fish v. Street, 27 Kan. 370. Pa. Co. Ct. 513. See ante, pp. 655, 773.
See Barker v. Ellis, 68 Miss. 173. 5 McHugh v. Curtis, 48 Mich. 263.
* Wilson V. McElroy, 33 Pa. St 82. « Stein v. Burnett, 43 Mo. App. 477.
It appears that the daughter who ' Menzie v. Kelly, 8 111. App. 259.
878 EXEMPTING ATTACHED CHATTELS. ,
debtor cannot claim exemption awarded to heads of families
when he has no family.'
The debtor himself has no right to claim the exemption of
things which he did not own or lawfully possess at the date
of the attachment when the lien was created hypothetically :
just as in an ordinary case he must' have his right of exemp-
tion, when the judgment lien attaches generally, to enable
him to hold his exempt chattels as not affected by it.^ If his
possessory right existed at the date of the attachment, he
may claim it ; as to the extent of the exemption, the law ex-
isting when the debt was created must govern.' If he has
mortgaged his chattels he is yet the proper claimant of ex-
emption, rather than the mortgagee, in a suit against him-
self.*
The notified debtor may claim of the ofiicer,' before the re-
turn, or of the court when the ofHcer does not release the
claimed property on demand. There is no sacramental form.*
He is required to file an inventory or schedule, in some states,
that it may be seen what exemption should be awarded him.'
In others he files a declaration of exemption ; and it is held
that when he has done that, and the plaintiff has made affi-
davit and given bond for a contest, but has not notified the
defendant in writing, the latter is not bound to join in the con-
test.^ When contest is joined, the jury should find the facts
' Murdock v. Dalby, 13 Mo. App. 41. claimant need not be a housekeeper
But he may be a proper claimant of but must be the head of a family,
exemption dependent upon his fam- Astley v. Capron, 89 Ind. 167.
ily headship, when his wife and chil- ' Berj-y v. Nichols, 96 Ind. 287.
dren are absent from the state. State ' Todd v. MoCravey, 77 Ala. 468 j
V. Finn, 8 Mo. App.'' 261. And when Bell v. Hall, 76 Ala. 546 ; Keel v. Lar-
he is a housekeeper, with a sister liv- kin, 73 Ala. 493 ; Moore v. Boozier, 43
ing with him, though he be an un- Ark. 385. See Ellis v. Barnett, 65 Ga.
married man. Kelly v. MdFadden, 350; Nowland v. Lanagan, 45 Ark.
no Ind. 536 ; Bell v. Keach, 80 Ky. 43 ; 108 ; ante, p. 766.
Duncan v. Frank, 8 Mo. App. 386. A < Sherrible v. Chaffee (R. I.), 31 A.
woman may claim under similar cir- 108.
cumstances. Arnold v. "Waltz, 63 5 Wilcox v. Howe, 59 Hun, 368.
la. 706. And when a widower and « Bassett v. Inman, 7 Colo. 370.
his daughter had another family ' In Nebraska the inventory may
to keep house for them, he was con- be filed either in court or with the
sidered entitled to claim. Bunnell v. ofiBcer. State v. Carson, 27 Neb. 501.
Hay, 73 Ind. 452 ; Lowry v. McAUis- « Bledsoe v. Gary (Ala.), 10 So. 502 ;
ter, 86 Ind. 543. It was held that a Hutoheson v. Powell, 93 Ala. 619;
CLAIMING BEFORE JUDGMENT. 879
bringing the claimed property under the exemption law, or
otherwise; they should not merely decide that it is exempt
under the law when they are impaneled to pass upon the
facts.'
Though chattels are not attachable if exempt, yet evidence
may be received on the question, duly raised, whether they
are exempts Though wages, within the monetary or time
limits fixed by statute, are, not attachable, the excess is ; and,
on proof of excess and its amount, in an attachment case, the
writ will hold good as to that.'
A schedule of personal property'' must have the articles speci-
fied — not generally stated as " household furniture," for in-
stance * — since otherwise it would not appear upon its face
how the household is composed ; and appraisers could not so
easily estimate the several values. If excess be claimed by
the debtor when pleading exemption against attachment, the
other party could more easily expose the wrong by having a
detailed schedule before him.
The onus is on the claimant of exemption to prove that the
property is exempt — not merely that it is of the kind which
the law exempts.* If the exemption claim, made to the offl-
Fears v. Thompson, 82 Ala. 394 ; Ala. the law of the state of the contract
Code, § 3530. When personal prop- Roch v. R I. Ins. Co., 3 111. App. 360.
erty of the debtor is attached in third Money received by the beneficiary of
hands by garnishment, and he claims a benevolent society was held not
it as exempt, he must file his claim exempt by New York statute. Acts
and schedule ; but if the property of 1879, ch. 189 ; Bolt v. Keyhoe, 30
thus attached is money it need not Hun, 619. Further as to distinction
be included in the schedule. If not between tangible property and money
money, there would yet seem to be or choses in action, in case^ of gar-
no need of including it. Decatur nishment, iee Todd v. MoCravey, 77
Mercantile Co. v. Deford, 93 Ala. 347 ; Ala. 468.
Ala. Code, § 3533. It was held inllli- i Paulson v. Nunan (Cal.), 30 P. 845
nois that there was no exemption of (following ,8ame case, 54 Cal. 133) ;
money in bank, when reached by at- Code Civ. Proc, § 690 (6).
tachment or garnishment, by the 2 George v. Fellows, 60 N. H. 398.
statute governing the case at bar. See Adams v. Bushey, 60 N. H. 290.
Nichols V. Goodheart, 5 111. App. 574. ' First N. Bank v. Weckler, 52 Md.
But when governed by another stat- 30, 4^.
ute, money in the hands of a gar- ' Friedman v. Sullivan, 48 Ark. 813.
nisbee in Illinois was held to be 6 Rollins v. Allison, 59 Vt 188;
lightly attached, though exempt by Bourne v. Merritt, 33 Vt. 439.
880 EXEMPTING- ATTACHED CHATTELS.
cer, is unfounded, he may disregard it and go on to attach,
with impunity.' ^
§ 2. Attachment and Execntion Different as to Claim-
ing.
Whatever is exempt from levy in an ordinary suit is also
exempt from attachment. The right of claiming the statu-
tory benefit does not depend at all upon the character of the
writ — whether that of attachment on fieri fadas. The time
of claiming is not the same under both processes, as will pres-
ently be shown ; but the right, properly claimed, belongs to
the debtor under either.^
Many states allow claim ing at any time before sale in or-
dinary cases. The judgment lien may be considered as sub-
ject to the exemption. Chattels are not dedicated like home-
steads : so the court cannot know what particular chattels the
debtor will select, and therefore cannot expressly except them
from the operation of the judgment lien. And the sheriff,
making the levy before selection, cannot then know what to
let alone.
In an ordinary personal suit the claim may be filed in the
record before levy, or lodged with the officer afterwards,
but prior to sale.' The lien created by the levy is not im-
paired by the claim ; ^ it holds good as to the liable property.
If all the property which the debtor possesses is within the
. exemption limit, there is no need for selection ; and the officer
must know that it is all exempt in the absence of any claim.*
The question of exemption is sometimes raised on the trial of
a cause, as when the privilege is claimed by answer in chan-
cery." A claim and aflidavit made after judgment, in an or-
dinary suit, ought to show when the debt (adjudicated upon)
' Bryan v. Kelly, 85 Ala, 569. 45 Cal. 161 ; Savery v. Browning, 18
2 Anderson v. Odell, 51 Mich. 493 ; la. 246 ; Fanning v. First N. Bank, 76
Church V. Holcomb, 45 Mich. 41 ; 111. 53. Compare Illinois Glass Co. v.
Williamson v. Harris, 57 Ala. 40 ; Holman, 19 111. App. 30.
Stauiels v. Eaymond, 4 Cush. 314 ; 3 Wright v. Grabf elder, 74 Ala. 460 ;
Davenport v. Swan, 9 Humph. 186 ; Totten v. Sale, 73 Ala. 488 ; Shepherd
Wilson V. Paulson, 57 Ga. 596; Sap- v. Murrill, 90 N. C. 208; ante, p. 177.
pington V. Oeschli, 49 Mo. 244 ; Has- * Sims v. Eslava, 74 Ala. 594.
tie V. Kelly, 57 Vt. 393 ; Clark v. 5 Alley v. Daniel, 75 Ala. 40a
Averill, 31 Vt. 512; WinterHeld v. ezelnicker v. Brigham, 74 Al*
Railroad, 29 Wis. 589 ; Plant v. Smy the, 598.
ATTACHMENT, ETC., DIFFERENT AS TO OLAIMING. 881
was contracted, so that it may appear whether the existing
statute or a former one is to control the question of exemp-
tion.* However, the burden of showing this will rest on the
plaintiff under some circumstances.
Il no claim be interposed at any stage, the plaintiff, the of-
ficer and the court cannot know, in the absence of specific ex-
emption, whether the debtor wants to exercise his privilege or
not ; whether he prefers to withhold a part of his property or
to let it all go to pay his debts. He certainl}'- may forego his
privilege ; and he may witlidraw his claim after having made
it.* So it cannot be said that a writ of execution is inopera-
tive because there is a law authorizing the allowance of ex-
emption to the debtor if he claim it.' In the absence of a,
claim and selection after the debtor has been duly notified,
the officer may go on and sell.*
The lien of a judgment rendered with privilege upon the
thing attached is quite different from that just considered.
A definite piece of property is attached before judgment un-
der a writ duly issued upon sworn preliminary showing, and
it is taken from the possession of the alleged debtor, and he
knows then that he has the right of claiming it as exempt.
He ought to do so then; certainly he ought to do so before
the inchoate lien (brought to precarious life by the attach-
ment) has matured into a complete, specific lien, equal to a
mortgage, by virtue of the judgment. At least, before the
rendition of the judgment he should manifest his mind and
legally prefer his claim, if he does not do so at once, upon
first knowledge of the attachment. If he relies upon exemp-
tion, he may plead it in his answer; he should make his appli-
cation in some form before the attachment lien has become
specific and become irretrievably fastened upon the thing at-
tached. The officer cannot release after his return.
" Randolph v. Little, 62 Ala. 397. Williford, 36 Ark. 155), tlioqgh. the
2 White Deer Overseer's Appeal, 95 bond be to the state. lb. If the debtor
Pa. St. 191 (claim withdrawn by a has obtained possession from the of-
pauper). ficer by giving a delivery bond, he is
s In Arkansas, exemption does not not thereby precluded from claiming
apply when there is judgment in exemption. Jacks v. Bigham, 36 Ark.
replevin. Smith v. Ragsdale, 36 Ark. 481 ; Desmond v. State, 15 Neb. 438,
297. But it is applicable against exe- * Wright v. Deyoe, 86 111. 490$
cution on a bail-bond (State v. Zielke v. Morgan, 50 Wis. 560.
56
882 EXEMPTING ATTACHED CHATTELS.
§ 3. Effect of Judgment upon Attachment.
It is held that it is too late to claim exemption in attached
property after judgment has perfected the contingent lien
created by the act of attaching; for then the debt sued on
has become a debt of the property itself. While the case is
pending, the writ may be quashed so far as it bears on ex-
empt property, but after judgment the right to claim is
waived.'
If the attachment defendant can remain passive, make no
attempt to dissolve the attachment in limine litis, make no
defense to the suit, allow the inchoate lien (created by the act
of attaching) to mature, and then defeat the whole proceed-
ing by claiming exemption, he can put the attaching creditor
in a worse position than an ordinary one would occupy. For,
having attached sufficient property to satisfy his demand, the
creditor can take no more while that is held, and the debtor
is free to dispose of whatever else he has. All the unat-
tached may be spirited away out of the reach of process
while the case is pending. When it becomes impossible to
find other property to attach, the creditor learns that he has
gathered apples of Sodom. On the other hand, the ordinary
creditor obtains a general judgment, and he is not hurt by
the debtor's selection of one article, for he may immediately
pounce upon another. Such result of the extraordinary
remedy, granted when the ordinary is inadequate by the pre-
liminary showing of the attaching creditor, would be itself
extraordinary — not to say absurd.
1 Richardson v. Adler, 46 Ark. 43; St, 489; Blair v. Steinraan, 53 Pa. St
Turner v. Vaughan, 33 Ark. 454; 423; Strouse v. Becker, 44 Pa. St.
Grubbs v. Ellison, 23 Ark. 287 ; Per- 206 ; Gay v. Southworth, 113 Mass.
kins V. Bragg, 29 Ind. 507 ; Kelly v. 38 [compare Copp v. Williams, 135
Dill, 23 Minn. 435 ; Barton v. Brown, Mass. 401, and Savage v. Davis, 134
68 Gal. 11 ; Keybers v. McComber, 67 Mass. 401); Drake on Att, § 244a;
Cal. 395; Wilcox v. Howe, 59 Hun, Waples on Att and Gar., pp. 164-7;
268; Russell v. Dean, 30 Hun, 243; ante, ch. X, § 7. "Whether the
Twaddle v. Rogers, 14 Phila. 163 ; property attached is subject to exe-
Colson V. Wilson, 58 Me. 416 ; Smith cution is res adjudicata after judg-
V. Chadvvick, 51 Me. 515 ; Barney v. ment in attachment. The judgment
Kenistbn, 58 N. H. 168; Buzzell v. against the property is a judgment
Hardy, 58 N. H. 331 ; Howard v. in rem, and is as conclusive as a
Farr, 18 N. H. 457; Bourne v. Mer- judgment against the person." Haas
ritt, 33 Vt 429 ; Glapp v. Thomas, 5 v. Shaw, 91 Ind. 384; State v. Manly,
Allen, 158 ; Morris v. Shafer, 93 Pa. 15 Ind. 8.
EFFECT OF JUDGMENT UPON ATTACHMENT. 883
It has been held that exempt community property, seized
under a writ of attachment, was subjected to a valid lien
upon being prosecuted to judgment; that the consent of the
husband and the silence of the wife waived the exemption
right. There was discussion, in the case so holding, whether
the chattels attached were really exempt under the statute ;
but the court said that if it had appeared that they were ex-
empt, the facts show that the defendant consented to the
seizure and " waived the benefit of the exemption, and he
cannot, under such facts, he heard to complain." >
The debtor must claim when and as the law requires, if he
would avail himself of his exemption privilege.^ The privi-
lege is personal and depends upon its being claimed.' If the
debtor fails to select specific chattels, he cannot have any of
the proceeds of the attachment sale.*
The garnishee's statement that the defendant claims is not
sufiicient.' Nor will it avail the defendant to say, or have the
garnishee say for him, that the property or credit could have
been claimed as exempt." He must actually claim before the
property or credit is condemned in the hands of the gar-
nishee.' The defendant does not lose his right of exemption
by garnishment proceedings when he has had no notice.'
And it has been said that, if not notified before, he may claim
when he has notice of the sale;^ but if there has been judg-
ment rendered without service upon him, or notice to him,
the whole proceeding is a nullity.
The complainant, in a suit upon a promissory note, alleged
that the note waived exemption. There was judgment with-
out recognition of the waiver. Garnishment proceeding, in
aid of execution, followed the judgment. The garnishee set up
the exemption of defendant's wages while admitting his own
> Dodge ' V. Knight (Tex.), 16 S. W. 6 Conley v. Chllcote, 25 Ohio St 330.
626. Compare Jewett v. Guyer, 38 Vt
2Baesker v. Picket, 81 Ind. 564. 209, 218.
Co??ipaj-e Campbell V. Gould, 17 Ind. J Todd v. McCravey, 77 Ala. 468;
133, See Winter v. Simpson, 42 Ark. 410.
SLongley v. Daly (S. D.), 46 N. W. 8 Mace v. Heath (Neb.), 51 N. W.
247 ; Comp. Laws, § 5126. 317.
*Surratt v. Young, 55 Ark. 447; 18 » Howard Ass'n v. Reading R Co.,
S. W. 539. 102 Pa. St 280.
'Courie V. Goodwin, 89 Ala. 569.
884 EXEMPTING ATTACHED CHATTELS.
indebtedness to the defendant. The court said the claim
could be made only by the defendant himself.^
When made by the defendant himself, to save what he has
in the hands of garnishees who have answered and admitted,
the plaintiff may contest the claim and inventory. In one
case the plaintiff showed that the defendant had had a large
bank account tuoo years and a half he/ore the attachment.
The court thus reasoned when allowing the evidence : " There
was no presumption of law that a large sum of money, on de-
posit in a bank, had been spent without acquiring a quid pro
quo for it in return, by reason of this lapse of time, nor that
whatever may have been thus acquired had been consumed
in its using. These facts, if true, should have been proved by
affirmative testimony." ^ How far back may one go, when
showing what a dependant once had, to throvr upon him the
burden of explaining what he has done with his money?
The personal property of a debtor having been attached,
and having been held till judgment and then advertised for
sale, the debtor sued out a writ of mandamus against the
sheriff commanding him to have the property appraised and
to set off five hundred dollars' worth of it (the maximum ex-
emption) to the relator, in lieu of homestead, since he had
no realty.
The relator was the head of a family, and the exemption
was accorded to him, now after the contingent lien created
by attaching had been made certain and perfect by judgment.
It appears that the debtor filed an inventory which the officer
would not notice, doubtless thinking it had come too late
after judgment in an attachment suit. The sheriff pleaded, as
respondent to the mandamus proceeding, that the debtor was
estopped by laohes and by his consent to the judgment.
The court held that the debtor was in time ; that he could
claim at any date before the sale,' contrary to cases above.
1 Courie v. Goodwin, 89 Ala. 569 ; Welton, 21 Neb. 541 ; Hamilton v.
Ala. Code, § 3513, exempting $25 per Fleming, 36 Neb. 340, substantially
month wages. How waiver is to be overruling State v. Sanford, 13 Neb.
pleaded by plaintiff. Golden v. Con- 433, and State v. Krumpus, 13 Neb.
ner, 89 Ala. 598. 331 (jiee Kahoon v. Krumpus, 13
2 Davis V. Hays, 89 Ala. 563. Neb. 366); State v. Wilson (Neb.), 48
3 Stevens v. Carson, 37 Neb. 501 N. W. 147. A debtor was allowed to
(Neb. Civ. Code, § 533) ; Mann v. claim his stock in trade on the mom-
CONVENTIONAL WAIVER. 885
§ 4. ConventioHal Waiver.
A general renunciation of the benefit of all exemption laws
is against public policy. If made in a promissory note, it will
not be regarded.! If there is an executory agreement not to
claim the statutory exemption of personal property, it is held
invalid and not enforceable ; ^ but, for a consideration, speci-
fied chattels may be removed from the operation of exemp-
tion laws; particular creditors may be favored, and it has
been held that all exemption of personalty may be waived in
a promissory note.' A waiver, good for the creditor favored,
is not therefore available by others.* If made by a member
of a firm, it is good against himself, but not his partners,
though he signed the firm name.'
The waiver of all exemption, in a promissory note, is good
as to personal property,* but it should be stated in the judg-
ment,' since otherwise it is nugatory.^ If the waiver is of
homestead exemption, chattels may be claimed, as it is not ex-
tended by construction beyond the literal expression.' If a
note is given with a lien upon a particular chattel, exemption
is waived as to that wtile it remains unaffected as to other
chattels.'" This was held in one jurisdiction, while in another
it was decided that a mortgage of personal property, whether
written or verbal, is not a waiver of exemption unless the in-
tention to forego it be clearly expressed." With respect to the
lien of a landlord for rent there may be waiver of exemption
in the lease ;'^ but where there is no protection of chattels
from rent judgments such stipulation in a lease would be un-
necessary.
The attaching creditor, by demanding an inventory of the
ing before attachment sale. Rice v. 224 ; Alabama Code of 1886, § 2083 ;
Nolan, 33 Kan. 38. Neely v. Henry, 63 Ala 361.
iRecht V. Kelly, 83 111. 147; ante, '16.
p. 869. ^ Courie v. Goodwin, 89 Ala. 569 ;
2 Branch v. Tomlinson, 77 N. O. Hosea v. Talbert, 65 Ala. 173 ; Brown
388. Compare Fogg v. Littlefleld, 68 v. Leitch, 60 Ala. 313.
Me. 53, and Brown v. Leitch, 60 Ala. *• Reed Lumber Co. v. Lewis (Ala.).
313. 10 So. 333. See Smith v. Fellows, 58
' Cases cited in the next paragraph. Ala. 467, as to the time of presenting
* Bowman v. Tagg, 13 Phila. 345. the claim.
6 Terrell v. Hurst, 76 Ala. 588. " Mynatt v. McGill, 3 Lea, 73.
eAgnewv. Walden (Ala.), 10 So. " Knox v. Wilson, 77 Ala. 309,
12 Hoisington v. Huff, 24 Kan. 379.
886 EXEMPTING ATTACHED CHATTELS.
defendant's property, waives objection to the sufiBciency of
the exemption claim.' On the other hand, if the defendant
points out specific property to the sheriff, for execution, he
waives his right to claim it afterwards.^ His hesitancy when
notified by the officer to claim — saying that he " would go
and see about it " — was held to be no waiver.^
After the defendant's property has been seized, he may be-
come bailee under the sheriff and have charge, of it in that
capacity, and yet not yield his right to claim his exemption.*
§ 5. Sale Pendente lite.
When there is an order of court to sell attached articles
before final, judgment, the debtor before sale should claim
them as exempt, if he is to claim at all.'' The property may
be perishable, or there may be some other good reason ren-
dering it proper for the judge as custodian of the seized goods
to convert them into money ; or there may be the consent of
both parties for the preliminary sale. If the order of sale
has been duly issued, the authorization of the constitution of
the state for the selectioii of specific property, and the direc-
tion of the statute as to the method of selection by the debtor
who is the head of a family, and the provision that sale of
selected articles may be prevented by supersedeas, do not
give the defendant any right to claim after he has let the
proper time slip. He then comes up too late to take the
proceeds of the sold goods as exempt. In the case above
cited the debtor had agreed that the sale might be made, yet
he sought to claim the proceeds after sale. _ His assent to the
sale does not seem to have had weight in determining the
legality of it, as will appear from the second form of the
question formulated by the counsel on both sides of the case
and submitted to the court: "Caii the debtor set up and
maintain his claim for exemptions after property has been
seized by attachment and sold by the sheriff upon an order
made by the judge in vacation with the consent of the debtor?
' Trager v. Feebleman (Ala.), 10 So. » Green v. Blunt, 59 la. 79.
213 ; Alabama Code, §§ 35*, 2525. < Pailiam v. McMurray, 32 Ark.
^ People V. Johnson, 4 111. App. 346 ; 261.
Flander v. Wells, 61 Ga. 195 ; Georgia 5 Surratt v. Young, 55 Ark. 447 ; 18
Code, § 2040. S. W. 539.
SALE PENDENTE LITE. 887
In other words, can the debtor maintain his claim to exemp-
tions out of the proceeds of the sale of his property by the
sheriff upon request of the creditors under an order of at-
tachment pending the litigation?" The constitution of the
state provides: "The personal propert}'^ of any resident in
this state who is married or the head of a family, in specific
articles, to be selected by such resident, not exceeding in
value the sum of $500, in addition to his or her wearing ap-
parel, shall be exempt." ^ The governing statute provides:
" Whenever any resident of this state shall, upon the issue
against him for the collection of any debt by contract of
any execution or other process, or of any attachment except
specific attachment against his property, desire to claim any
of the exemptions provided for in article 9 of the constitu-
tion of this state, he shall prepare a schedule, verified by
affidavit, of all his property, including moneys, rights, choses
in action, held by himself or others for him, and specifying
the particular property which he claims as exempt, under the
provisions of said article." ^
The submitted question was answered in the negative, in
view of the provisions of the constitution and statute.' If,
' Const. Ark., art. 9; § 3. 'the creditor may not be prejudiced
2Mansf. (Ark.)Pig., § 3006. in his rights. Prima facie all the
3 The court said of them : •' These property of the debtor is subject to
provisions seem to require that the sale on execution for the payment of
debtor shall claim his exemptions in his debts. But the constitution con-
specific articles, to be selected by him. fers upon him the privilege of claim-
Most of the authorities bearing upon ing specific articles of his property
the question, when must the selection as exempt from execution, and the
be made? hold that it must be made statute points out particularly the
in a reasonable time ; and they all manner in which this must be done,
seem to agree — as far as we have and provides that when it is thus
examined — that, as a rule, the selec- done a supersedeas shall be issued to
tion must be made before the sale of prevent the sale of the property thus
the property, which is said in most selected as exempt If the debtor
of the cases in reference to a sale of were permitted to stand by and see
the property attached on final pro- his property sold, without claiming
cess. It would seem that the claim his exemptions in specific articles,
of exemption should be made in ac- and then be allowed to claim the
cordance strictly with the require- amount in value of his exemptions
ments of the statute, and in apt time, out of the proceeds of the sale of his
that the debtor may have the benefit property, it is not difiicult to see how
of the humane provisions of the law he might work this to the prejudice
in reference to exemptions, and that of his creditors, and how an improvi-
888 EXEMPTING ATTACHED CHATTELS.
after sale before trial, the creditor fail to get judgment, the
proceeds of the sale would go to the defendant as a matter of
coarse; — not because they are exempt but because they be-
long to him. The time of claiming generally is any day be-
fore the trial of the attachment case.^ But when there is an
order for sale while the attachment is fending, the time for
claiming cannot be any day before trial but must be before
the preliminary sale, according to the authority above cited
on this particular point.
§ 6. Garnishment in Foreign Jurisdiction.
" A creditor, who attempts to evade the exemption laws of
his state by resort to attachment proceedings in the court of
another state against the property of a debtor who is a resi-
dent of the state of the creditor's domicile, may be enjoined
by the courts of the latter state from prosecuting his suit in
the foreign jurisdiction." ^ The creditor may be enjoined —
not the court in which he would proceed.' But it is also held,
in the case first above cited, that when the parties live in dif-
ferent states, the creditor may attach, in his own, the property
of the debtor found there, though such property may be ex-
dent and thriftless man, by permit- of exempt chattels attached when
tin? the sale of his property exempt made pendente lite. Sui-rattv. Young,
by law from execution, and necessary supra, citing, among other authori-
for the use of his family, might thwart ities. King v. Ruble, 54 Ark. 418;
^he purpose of the law in securing Brown v. Peters, 53 Ark. 182 ; Cham-
the right to a debtor to claim his ex- bers v. Perry, 47 Ark. 400 ; Healey
emption. We do not think that the v. Connor, 40 Ark. 353 ; Norris v.
statute confers upon a debtor the Kidd, 28 Ark. 499.
right to claim his exemptions out of i Bancord v. Parker, 65 Pa. 336 ;
the proceeds of property after it is Borland v. O'Neile, 22 Cal. 505 ; Col-
sold under the process of the court, lins v. Nichols, 5 Ind. 447 ; Cooper v.
or under an order of the court, as in Reeves, 13 Ind. 53. Statutes, provid-
this case, when he has an opportu- ihg how chattels shall be claimed as
nity to and might claim his exemp- exempt, strictly construed. Collins
tions in specific articles, as provided v. Boyd, 56 Pa. St. 402.
by the statute." The consent of the' 2 c. J. Cockrill, for the court, in
debtor to the sale by indoi-sing it Griffith v. Langsdale, 53 Ark. 73,
upon the petition did not aflfect the citing Cole v. Cunningham, 133 U. S.
question; and the fact that he had 107; Keyser v. Rice, 47 Md, 203;
made an assignment before the at- Snook v. Snetzer, 25 O. St 516; Wil-
tachment "cuts no figure" in the son v. Joseph, 107 Ind. 490 ; Hagar v.
opinion : so the decision has a gen- Adams, 70 la. 746.
eral application in its state to all sales ^ Pickett v. Ferguson, 45 Ark. 177.
GAENISHMENT IN FOREIGN JUEISDICTION. 889
empt in the debtor's state. Should the creditor be found in
the state of the debtor's domicile, courts there cannot enjoin
him from prosecuting the proceedings instituted at his home.
The purchase of claims against railroad employees, to be
taken to another state for the purpose of garnishing the rail-
road company for the wages of such employees which are ex-
empt at their domicile, has been vigorously condemned as " an
attempt to defraud the laws of the state." . . . The peti-
tion, in a case to enjoin a person so purchasing and garnish-
ing, charged that the claims " were bought with the sole pur.
xpose of having them collected in foreign jurisdictions out of
the employees' wages for the last thirty days of service, and
thus evade our own statute. . . ," The court, assuming
this allegation to have been proved in the lower court, said :
" The jurisdiction of a court of equity in this state to prevent
a fraud of that character is unquestioned. It is not an at-
tempt on the part of the court to interfere with courts in
other jurisdictions, but to restrain a defendant, who is within
its own jurisdiction, from committing a wrong." ^
Can the garnishee invoke a court of equity and enjoin the
plaintiff from garnishing in another jurisdiction? If the gar-
nishee is a railroad company, may it protect its own employ-
ees in this way? The court, in the case first above cited, an-
swered in the affirmative, provided the garnishee join with
the injured party.
The creditor who, in contravention of the law of his own
state, sends his claim out of it, assigns it to a person in an-
other state for the purpose of having it collected there by
garnishment while his debtor lives in his own state, may be
sued civilly for damages, though he be also liable criminally.^
1 Wabash R Co. v. Seif ert, 41 Mo. men by garnishing the Wabash
App. 35 ; Todd v. Raih-oad, 33 Mo. Western Ry. Co.), and were taken to
App. 110 ; Fielder v. Jessup, 24 Mo. Illinois for the purpose of the gar-
App. 91 ; Missouri R. Co. v. Maltby, nishment
34 Kan. 125 ; Cunningham v. Butler, 2 Kestler v. Kern (Ind.), 28 N. E.
143 Mass. 47 ; Engel v. Scheuerman, 726 {distinguishing Uppinghouse v.
40 Ga. 306 ; Teager v. Landsley, 27 Mundel, 103 Ind. 238) ; Stack v. Bare,
N. W. 739. In the Wabash cases, 39 Kan. 100. "It is made a crime
claims against railroad men were punishable by fine,'' says Judge
bought in Missouri (where they could Crumpacker, in the case above cited,
not be made out of the wages of the " for any person to send, or cause to
890
EXEMPTING ATTACHED CHATTELS.
Statutory inhibition of the assignment of claims to be sued
upon in a state foreign to that of the assignment, for the pur-
pose of depriving a debtor of his exemption right, has been
held to be not contrary to the provision of the federal consti-
tution that "citizens of each state shall be entitled to all the
privileges and immunities of citizens of the several states." '
And, without such statutory inhibition, it is held that an ex-
emptionist may restrain his creditor from prosecuting suit in
another state, to the defeat of his exemption privilege, by
writ of injunction.^
A statute forbade the creditor to send his claim out of the
state to be sued upon with the view of depriving the debtor of
the benefit of the exemption laws.' If he does not send the
claim, but takes it to a foreign jurisdiction, does he violate the
law? He would violate its spirit, if his purpose be to cut off
his debtor from the privilege of pleading exemption. In a case
under this law, a creditor went to a neighboring state for the
purpose of garnishing a railroad company there which op-
be sent, any claim against a citizen
of this state, into another state, or to
assign or transfer such claim, for the
purpose of being collected in the
courts of another state, with the pur-
pose and intention of depriving such
debtor citizen of his rights under the
exemption laws of this state, where
the parties and subject-matter are
within the jurisdiction and could be
reached by the process of the courts
in this state. Sections 2162, 2163,
Rev. Stat. 1881 ; State v. Dittmar, 120
Ind. 54" . . . "If an officer re-
fuses to surrender property exempt
from sale, but proceeds to dispose of
it, the debtor may i-ecover the prop-
erty in the hands of an innocent pur-
chaser, or he may sue the oflScer and
the judgment plaintiff, or either of
them, for trespass, and recover the
value of the property, twtivithstand-
ing he may have had credit for it
upon his debt. Huseman v. Sims,
104 Ind. 317; . . . Con well v. Con-
well, 100 Ind. 437 ; . . . Douchv.
Rahner, 61 Ind. 64; Graham v.
Crocket, 18 Ind. 119 ; Haswell v. Par-
sons, 15 Cal. 266; Belou v. Robbing,
76 Wis. 600; . . . State v. Har-
rington, 33 Mo. App. 476 ; Alsup v.
Jordan, 69 Tex. 300. . . ." The
profession will hardly assent to the
last clause above quoted from Judge
Crumpacker, if meant to apply to
cases in which the debt has been
paid.
1 Sweeny v. Hunter, 145 Pa. St 363 ;
22 A. 653 ; U. S. Const, art 4, § S ;
Pa P. L. 164.
'^ lb.; Cole v. Cunningham, 133
U. S. 107 ; Story's Eq. Jur., §§ 899,
890 ; Zimmerman v. Franke, 34 Kan,
650; Wilson v. Joseph, 107 Ind. 490
Mumper v. Wilson, 72 Iowa, 163
Teager v. Landsley, 69 Iowa, 725
Engel V. Scheuerman, 40 Ga. 206
Delion V. Foster, 7 Allen, 57 ; Keyser
V. Rice, 47 Md. 203 ; Snook v. Snet-
zer, 25 Oliio St 516.
3Ind.E.S. (1881), §3163.
GAENISHMENT IN FOEEIGN JOEISDIOTION. 891
erated in both states and was amenable to suits in either.
The purpose being proved, the court held that his taking the
claim there was equivalent to his sending it there, and so the
statute had been violated.' Had he moved from his state
where the claim originated to the neighboring state, for the
general purpose of changing bis home, and not the particular
object of collecting his debt by garnishment where the ex-
emption could not be successfully pleaded, the decision ought
to have been, and doubtless Would have been, the other way.
The creditor has a perfect legal right to remove from his
state to another, and to collect his debt in the latter, by gar-
nishment, from a debtor living in the former. In such case,
when this has been done, the debtor may have been incon-
venienced; but since there has been no breach of duty on the
part of the creditor, he has inflicted no injury upon the
debtor. Had he done an unlawful act resulting in injury to
the public, a person sharing the injury with the rest of the
community is not legally damaged so as to be entitled to com-
plain personally : this illustrates injuria sine damno.
A railroad employee named Bare, the head of a family, was
indebted to one Stark, who assigned his claim. The assignee
sued Bare in a state where the railroad was operated but not
where the employee resided, and garnished the railroad com-
pany for wages due the defendant. Bare could not have his
wages exempted there, though they were exempt in his own
state ; so they were applied to his debt. Then he sued Stark
for damages because of the transfer (which was without con-
sideration) which had resulted in his deprivation of his right
of exemption and the injury of his credit with the company.
Bare alleged that Stark owed him a greater sum, at the time
of the assignment, than that which was assigned, sued upon
and put in judgment against him. No recovery on the indebt-
edness of Stark to Bare was claimed in the action. The court
said: "We have . . . held that where a citizen of this
state attempts by a proceeding of attachment or garnishment
in another state to subject to the payment of his debt personal
earnings of the debtor which under our laws are exempt, and
thus prevent such debtor from availing himself of the benefit
of the exemption laws of the state, an action by injunction
1 State V. Dittmar, 130 Ind. 54, 388.
892 EXEMPTING ATTACHED CHATTELS.
restraining the wrongful action may be maintained by the
debtor against such wrong-doer. . . . We think it is a
wrong which may. not only be restrained by injunction, but
that the citizen who proceeds and inflicts the wrong is liable
to the debtor to the extent of the injury sustained." ^
In another state, under a similar exemption law, a creditor
reached his debtor's exempt earnings by garnishment, and the
latter sued and recovered therefor in his own state — the court
saying: "It is well settled that if exempt property is seized
and applied to the payment of a judgment, the owner may
have his action against the wrong-doer, unless such exemption
is waived by some act or omission of the debtor." ^ Under
different states of facts, the principle enounced in these cases
has been repeatedly recognized.'
§ 7. Grarnishmeut and State Comity.
Where the parties and the subject-matter are within one
state, a court of that state is the proper tribunal to settle the,
contest. If one party seeks the tribunal of a different state,
and has his suit settled under laws different from those which
would have governed at the home of the parties (especially
if that tribunal be an inferior one ai^ there is good reason to
believe that its decree would have been reversed on appeal),
it has been thought that comity does not require courts in the
state of the parties to regard the foreign judgment.* " It
would be carrying the rule of comity to an absurd length for
our courts to give to foreign creditors a better position in this
respect than they do domestic creditors." '
The doctrine has been advanced, and stoutly advocated and
judicially acted upon, that when the creditor and his debtor
1 stark V. Bare, 39 Kan. 100. had gone from New York, where
^Albreoht v. Treitschke, 17 Neb. both parties lived, to Vermont, and
205. obtained judgment there when he
3 Vail V. Knapp, 49 Barb. 399 ; Has- could have obtained none under the
well V. Parsons. 15 Cal. 366 ; Snook laws of New York — and it was this
y. Snetzer, 35 Ohio St. 516 ; Phelps v. which was thought not binding,
Goddard, 1 Tyler (Vt.), 60 ; Phillips when tested in New York, and when
V. Hunter, 3 H. Black. 403 ; Williams to the prejudice of a New York citi-
V. IngersoU, 89 N. Y. 508 ; Osgood v. zen.
Maguire, 61 N. Y. 539. 5 Martin v. Cent Vt Ry. Co., supra,
* Leonard, J., in Martin v. Central by the court; citing Osgood v. Ma-
Vt Ry. Co., 50 Hun, 354. One party guire, supra.
GAENISHMENT AND STATE COMITY. 893
reside in the same state, and the debt was created there and
intended to be payable there, and the debt is for v/ages which
are exempt there, " the exemption of wages is suck an incident
of the debt from^ the employer that it will follow the debt, if the
debt follows the garnishee [into another state], . . . and
attach itself to every process of collection . . . [there'], un-
less jurisdiction is obtained over the person of the principal
debtor." ^
If the doctrine is sound, the exception seems unnecessary,
for the foreign court's acquisition of jurisdiction " over the
person of the principal debtor" would render his position
neither better nor worse. Jurisdiction over the thing at-
tached, and notice to the principal debtor so that he may ap-
pear and defend if he choose, is all that the court needs to
authorize it to condemn the thing: so the question of comity
is not dependent upon jurisdiction over the principal defend-
ant's person.
With this qualification of the doctrine eliminated, the prin-
ciple stated is that a credit exempt in one state is so in all.
No doubt it is competent for the court of one state to respect
the exemption laws of another, and the comity is commend-
able. "When, by the pleadings, by the disclosure of the gar-
nishee, or in any proper way, the benefit of the law is claimed
and the law brought to the knowledge of the court, it would
be well if every court in every state of the Union would ob'
serve such comity. But the doctrine is not universally estab-
lished. In the present state of things, a court, having juris-
diction of the plaintiff, and of the- defendant or his property
or credit as the case may be, and of the garnishee, and of the
subject-matter, may observe such comity or not. In the case
I Drake v. Lake Shore, etc. R Co., Railroad Co., 19 Neb. 241 ; De Witt
69 Mich. 168, 179. All the parties, v. Machine Co., 17 Neb. 533 ; Railroad
including the garnishee, lived in Co. t. Dooley, 78 Ala. 524 ; Pierce v.
Indiana. The creditor assigned his Railway Co., 86 Wis. 283 ; Baylies v.
claim — the assignee sued in Michi- Houghton, 15 Vt. 636; Tingley v.
gan, and garnished the Lake Shore Bateman, 10 Mass. 343 ; Sawyer v.
Railroad Co., which did business in Thompson, 4 Frost (N. H.), 510 ; Rail-
both states. The court cited the f ol- way Co. v. Maltby, 34 Kan. 133 ; Love-
, lowing cases as supporting the doc- joy v. Albee, 83 Me. 414 ; Hamilton v.
trine above stated : Wright v. Rail- Rogers, 67 Mich. 135.
road Co., 19 Neb. 175; Turner v.
894 EXEMPTING ATTACHED CHATTELS.
last cited, the court took ground for the comity and settled
the law of the state in favor of it, so that the profession may
regard it as settled there that exemption, attached to a credit,
follows it across state lines into that state, and will be re-
garded there because of its creation in another state.
But what shall be said of a court, with complete juris-
diction over the parties, the subject-matter and the res (or
rather, over the plaintiff, the garnishee, the subject-matter,
and also over either the res or the defendant, or both), which
holds itself bound by the laws of its own state only, and not
bound to give effect to the exemption laws of other states?
If such court charges the garnishee, and gives judgment against
the principal debtor, and subjects the attached credit to the
payment of the debt — all according to the laws of its juris-
diction — who shall gainsay the judgment? The final decree
of a court clothed with jurisdiction must be everywhere re-
spected, so far as the contest before it is adjudicated, when
there is no matter of juridical morals at stake. There is none
when the contest merely involves exemption. "When, by the
laws of one state, preference is given to one creditor over an-
other of equal rank in an insolvent's assignment, a court of
another state, where such preference is held juridically im-
moral and fraudulent, may disregard the foreign statute in
an action to enforce it in the latter state. So, in slavery
times, courts of a free state were not bound to enforce the
law of a slave state determining the status of a man to be
that of a slave, but might repudiate it on juridically moral
grounds. But when no such grounds exist, comity requires
that the statutes duly enacted in one state must be re-
spected in another. And exemption questions constitute no
exception.
The position taken in a case above noticed,' that the foreign
judgment of an inferior court may be disregarded when there
is good reason to believe that it would have been reversed had
the case been appealed, seems wholly untenable. Judgments
of inferior courts, when they are final — when the jurisdiction
has been exhausted — are as much to be respected as any
other. The final decree of a justice of the peace is as sacred
1 Martin v. Central Vt. R Co., supra, in the separate opinion of Leonard, J.
GAENISHMENT AND STATE COMITY. 895
in the state where it was rendered, and as much to be re-
spected in other states, as though rendered by a supreme
court. "What would become of our whole judicial system if
a judgment in one state could be disregarded in another on
the ground that it might have been reversed had it been ap-
pealed?
No one would seriously contend for such loose observance
of the constitutional requirement that " full faith and credit
shall be given in each state to the . . . judicial proceed-
ings of every other state," ' in its application to judgments
generally; and there is no reason why judgments affecting ex-
emption should form an exception.
The principles enounced by the courts of one state are often
far. from deserving full faith and credit in every other state,
and there is no constitutional mandate that such credit should
be given them ; but any judicial proceeding of a court, how-
ever inferior (whether it might have been reversed on ap-
peal had appeal been taken, or not), is entitled to full faith
and credit in all the states.
If, therefore, the wages of a railroad employee are exempt
in the state where the wage-earner and the employing cor-
poration are domiciled, and the latter is garnished in another
state and legally made to pay those wages to the laborer's ~
creditor, in accordance with the laws of the latter state, full
faith and credit must be given in the former state to that ju-
dicial proceeding.
Is the wage-earner then without any remedy at home ? No.
He has his remedy and may have two. He may sue his cred-
itor who injured him by depriving him of his exemption right,
whether by garnishing the company in a state where that
right could not be successfully set up, or by assigning his
claim that the assignee might do so — for the wrong to the
exemptionist is the same, whichever course his creditor may
have pursued. The cases above cited, in which the exemption-
ist resorted to such remedy and succeeded, were decided on
broad grounds, good everywhere — not on any peculiar pro-
visions of any state statute. If the exemptionist can show
that he has been wrongfully deprived of a right, and thereby
injured, he ought, to have his right of action for reparation
1 Const U. S., art. IV, sec. 1.
896 EXEMPTING ATTACHED CHATTELS.
against the wrong-doer, in whatever state the wrong may
have been perpetrated.
And he may elect to sue the garnishee who has been made
to pay once, if there was no disclosure that the claim was for
wages and that the wages were exempt, provided the charg-
ing of the garnishee was owing to the want of such disclosure
by him. If, on the other hand, no fault attaches to the gar-
nishee, the wronged exemptionist is shut up to his remedy
against his creditor who wronged him.
§ 8. Garnishee's Disclosure in Foreign Jurisdiction.
The garnishee would not make himself liable for not dis-
closing that the defendant's credit attached in his hands is
exempt in the state of his and the defendant's domicile, if the
law of the state (where the garnishment proceeding is had)
forbids the pleading of the exemption laws of a different state,
or holds them no defense for the garnishee or the principal
defendant.
The law of some states, as expounded by their courts, does
disfavor such pleading and defense. In a case where both
plaintiff and defendant resided in a state where wages were
exempt, and a railroad company was garnished in another
state for the wages of the debtor, the garnishee was charged,
and the court held that the law exempting wages in the
debtor's state could not be invoked to save his wages.' Soon
after, in the same state, it was judicially declared to be a set-
tled rule there that the exemption laws of another state can-
not be pleaded or relied upon as a defense by either the gar-
nishee or judgment debtor.^
While the decisions touching this subject, and which have
been relied upon sometimes to sustain the doctrine that one
state is not bound to enforce the exemption laws of another,
1 Mooney v. Railroad Co., 60 la. road Co. v. May, 25 O. St 347 ; Pierce
346. V. Railway Co., 36 Wis. 283 ; Banks
2Broadstreet v. Clark, 65 la. 670. v. Railway Co., 45 Wis. 172; Lock v.
See, as bearing more or less on tliis Johnson, 36 Me. 464 ; Railroad Co. v
"rule." Leibner v. Railroad Co., 49 Ragland, 85 111. 375 ; and see there-
la. 688 ; Newell v. Hayden, 8 la. 140 ; view of those cases by Morse, J., for
Morgan v. Neville, 74 Pa. St. 52. See, the Michigan court, in Drake v.
also, as cases less pertinent. Con- Lake Shore, etc., supra,
ley V. Chilcote, 25 O. St. 330 ; Rail-
gaeisishee's disolosuee in foeeign jueisdiotion. 897
may I not fully support that dootrrae, there can be little doubt
that the position is sound. Upon principle, it seems well'
grounded ; and the settled rule enounced in a case above no-
ticed 1 is one which any court may consistently follow. As
Ave have seen that there is no rule of comity generally recog-
nized so as to establish a different rule, we cannot condemn
any state for following this, while we may prefer to have a
state voluntarily respect the exemption laws of all the rest
as a matter of comity.
There can be no universal rule now laid down which will
give the wronged wage-earning exemptionist any other rem-
edy than the two above suggested — which two ought to
avail him everywhere.
It has been frequently held (or rather, the doctrine has been
favored) that, though exemption laws do not create vested
rights and put them into contracts, and though they have no
extraterritorial authority, yet if the laws of two states both
exempt property with like provisions, mutual comity will be
observed. The court of one state, in a suit between citizens
of the other, will give effect to the exemption laws of the
other state, since they are virtually the same as those of its
own.^
It has been held that a garnishee cannot be charged to pay
at a time and place in which his obligation is not payable to
the defendant ; that is, the plaintiff cannot step into the de-
fendant's shoes and exact of the garnishee what the defendant
himself could not have exacted ; but if the garnishee is a resi-
dent of the state in which jurisdiction has been acquired over
the defendant, he cannot resist being charged on the ground
that his debt to the defendant is payable elsewhere. This
seemingly contradictory holding, as briefly stated from the
syllabus of a case, will be clearer after the statement of the
facts. An attachipent suit was brought against a non-resident
firm. One of the partners appeared, and judgment was ren-
dered against the firm. A railroad company, being garnished,
answered that it was indebted to one of the defendants resid-
1 Bi-oadstreet v. Clark, supra. Neb. 175 ; Drake v. Railway Co., 69
2Kestler v. Kern (Ind.), 38 N. E. Mich. 168; Railroad Co. v. Maltby,
736, 7S9; Railroad Co. v. Baker, 133 34 Kan. 135 ; Pierce v. Railroad Co.,
Ind. 433 ; Wright v. Railway Co., 19 86 Wis. 28&
57
S98 EXEMPTING ATTACHED CHATTELS,
ing in another state, and that the indebtedness was payable
there and not elsewhere, according to agreement with him
when he was contracted with as an employee of the company ;
that the sum due him was for wages exempt in his state.
The garnishee, though discharged in the trial court, was
charged by the supreme court. The latter said: "The au-
thorities are that although the debtor reside in another state,
if the debt was made payable within the state where it is
made the subject of garnishment, such non-residence would not
avail ; but if the debt is payable generally, or at a particular
place within another state, and the debtor reside there, then
the chose in action, like personal property in his hands belong-
ing to the defendant, attaches to his person and becomes local
with him in that state, and he cannot be made to answer for
such debt in another state, as trustee or garnishee ; and these
are the only qualifications of the principle. It is only neces-
sary to recur to the situation and facts of this case to show
that it is entirely outside of this principle.
" The trustee debtor or garnishee ki this case is a corpora-
tion and resident of this state ; and the defendant in the at-
tachment, whose credit or chose in action is sought to be
reached by the garnishment, has submitted to the jurisdiction
of the court. . . ." *
§ 9. Railroad Company Garnishee — Disclosure.
A railroad company, being garnished for the wages of its
employee, acknowledged the indebtedness to the defendant but
did not state that the last month's wages were exempt. The
defendant, a brakeman, after judgment against him and the
garnishee, in favor of the plaintiff, brought suit against the
company for his wages. It was held that the judgment in the
garnishment proceedings, and payment by the garnishee ac-
cordingly, did not relieve from liability to pay again at the
suit of the employee. The court reasoned that as the defend-
ant in the first suit was not a party to the auxiliary garnish-
ment proceedings • — was not notified of the writ of garnish-
ment — the statute was not meant to confine the garnishee
literally to its requirement that he answer as to his indebted-
■ness or property possession, but should further disclose that
1 ComL Nat Bank v. Chicago, etc. E. Co., 45 Wis. 173.
EAILEOAD COMPANY GAENISHEE DISCLOSUEE. 899
the property or debt is exempt, if it be so.' The brakeraan,
defendant in the first suit, could have appeared and set up his
exemption. This would have saved his case and relieved the
garnishee company from paying twice. He was in default —
he failed to answer, though cited — he allowed the company
(after its answer as garnishee to all that the statute required
on its face) to pay his debt, and then sued them and made
them pay again. It is true that the wage-earner's debtor,
when garnished, "cannot deprive him of it by his neglect to
disclose the whole matter when summoned as his trustee;"^
but when the statute requires the garnishee to answer as to in-
debtedness merely, it is yet in the defendant's power to set
up the exemption of his wages ; and he ought not to be bene-
fited by his own laches so far as to have his wages paid twice,
Avhen he neglects to answer. If the statute requires the gar-
nishee to explain the nature of the indebtedness and to disclose
the fact that the credit due by him to the defendant is ex-
empt, he would have nobody to blame if made to pay twice
on account of his failure so to answer. It is always true that
" the garnishee cannot deprive him [the defendant] of it [the
exemption] by his neglect to disclose the whole matter when
summoned as his trustee ; " for the defendant can prevent such
a deprivation by answering and setting up his rights. The
finding against the garnishee is nothing against the defendant
till the judgment against himself: so the garnishee cannot pos-
sibly deprive him of his exemption, unless the defendant fails
to defend. The fact of the defendant's not being notified of
auxiliary garnishment proceedings does not seem to bear upon
the matter. He cannot be hurt by somebody's acknowledg-
ment of indebtedness to him.'
If a debtor has been forced to pay into court, by garnish-
1 Mo. Pac. R. Co. V. Whipsker, 77 Texas statute, that it implictly re-
Tex. 17. quires disclosure by the garnishee of
2 Look V. Johnson, 36 Me. 464; Eail- the nature of the indebtedness to
way V. Ragland, 84 111. 375 ; Winter- show whether it is exempt or not, it
field V. Railway, 29 Wis. 589 ; Daniels is said, in Burke v. Hance, 76 Tex. 82 :
V. Man, 75 Me. 397 ; Jones v. Tracy, " If the evidence showed that the
75 Pa. St 417, cases cited to sustain judgment was rendered for the seiz-
the above quotation by the court ure of exempt property, and if that
3 Under the exposition given in the fact was known to the garnishee, it
Missouri Pacific case, supra, of the would be his duty to plead it"
900 EXEMPTING ATTACHED CHATTELS.
ment proceeding against him, what he owed the defendant, he
is acquitted of his indebtedness and cannot be compelled to
pay again in another state in an action brought by the former
defendant against him directly. The fact, that the indebted-
ness was wages due by the garnishee to the original defend-
ant, was not allowed to affect the question, though they were
exempt in the state where the latter action was brought. Plea
of payment of those wages, in a different state, under order
of a court clothed with jurisdiction, was sustained.' It is cer-
tainly to the interest of the garnishee to disclose the exempt
character of what is sought to be attached in his hands, and
courts have said it is a duty.^
"Wages which accrue after the debtor's employer has been
garnished for his wages due are not covered by the garnish-
ment unless there be statutory provision that the date of the
trial and of the garnishee's answer then, in open court, shall
be the time of fixing what credits the defendant has in the
garnishee's hands. Where the statute makes the datfe of the
service upon the garnishee the time of determining the credits,
none subsequently earned would be covered. "Where the stat-
ute, in terras, "exempts all wages not actually due at the
time " of the attachment or garnishment, there is no room for
construction.'
§ 10. Non-residents, as to Chattel Exemption.
It has been asserted as a rule, that " if the statutes do not
restrict the exemption of property, for the payment of debt,
to residents, or to some other particular class of persons, the
courts have no authority to make such restriction, and the
statute will apply to all classes, non-residents as well as resi-
dents." * ^
' Chicago R Co. v. Moore (Neb.), quires the defendant's credit to be
48 N. W. 475. due him "absolutely and without
2 Chicago, etc. v. Mason, 11 IlL App. any contingency." Fellows v. Smith,
525 ; Chicago, etc. V. Eagland, 84 111. 131 Mass. 363; Mass. Gen. Stat,
875. If a railroad company be gar- ch. 142, §§ 24, 25, 26.
nished for the wages of an employee 3 House v. Bait. & O. E. Co., 48
who has funds enough of the corpo- Md. 130 ; Moore v. Heaney, 14 Md.
ration in hand to meet the wages due 563. Compare First N. Banli v. Jag-
him, the company, on disclosure of gers, 81 Md. 51.
the fact, ought not to be charged as * Mo. Pac. R Co. v. Maltby, 84 Kaa
garnishee, under a statute that re- 130 ; Zimmerman v. Franke, 34 Kas,
NON-EESIDENTS, AS TO CHATTEL EXEMPTION. 901
The privilege of exemption is not confined to residents
under all the statutes. Non-residents have been allowed the
same rights as family-men living in the state. They must file
their schedule and comply with the law in all respects, as a
resident.' A husband, habitually living away from his family,
was presumed to keep his domicile with them and did not for-
feit his exemption privilege.^
It would seem that the reason why chattel exemption is
often made the privilege of residents is the good of the state,
the prevention of pauperism and the quiet of families. That
reason would seem inapplicable when a resident has quit his
business and is on the eve of taking his exempt chattels, ma-
chinery, etc., out of the state. The creditor permanently
located ought not to lose his claim whefl the debtor is
about to cease to be a resident — going out of the state with
a few hundred dollars' worth of property. But, under the
statute governing, it was decided that a debtor might take
his lumber-and-shingle-making machinery from the state, de-
spite the creditor.'
When exemption is accorded only to residents, the fact of
residence must be proved, and the onus is on the claimant.* A
debtor having sold his stock of goods and being paid partly
by the cancellation of a debt due the purchaser and the bal-
ance in promissory notes — which notes, together with his
other remaining property, did not exceed in value the amount
allowed in his state as exempt — was justified by the court in
the transaction, provided he was a resident of the state —
residents only being allowed the exemption by statute. The
goods thus sold were attached by other creditors of the
vendor, and the purchaser sued the sheriff for wrongful at-
650. So, following the rM?e, it was held, Mineral Point E. Co. v. Barron, 83
later, that the wages of a Nebraska 111. 365.
head of family are not subject to ^pi-eehling v. Bresnahan, 61 Mich,
garnishment in Kansas — both states 540.
exempting wages. Kan. City, etc. E. ' Wood v. Bresnahan, 63 Mich. 614,
Co. V. Gough, 35 Kas. 1, distinguish- distinguishing McHugh v. Curtis, 48
ing Burlington, etc. R. Co. v. Thomp- Mich. 262, and citing O'Donnell v.
son, 31 Kas. 180. See Eice v. Nolan, Segar, 25 Mich. 367, as intimating the
33 Kas. 28. same view.
1 Menzie v. Kelly, 8 111. App. 259 ; < Brinson v. Edwards (Alii.), 10 So.
219 ; Carter v. Chambers, 79 Ala. 233.
902
EXEMPTING ATTACHED CHATTELS.
tachment. It was under this state of facts that the court
held, as above stated, that residence is a fact not presumed,
and which therefore must be proved.'
*»Brinson v. Edwards, supra. The
court said of the vendor : " Avenger
was not entitled to exemptions unless
he was a resident of this state. Code
1886, g§ 2507, 3511. The position as-
sumed by the plaintiff was that the
transaction by which he acquired the
stock of goods could not be vitiated
by the fact that notes wore given for
the balance of the purchase-price,
and that they were made payable in
the future, because such notes be-
came part of the exemptions allowed
by the law to the debtor. To the
maintenance of this position proof of
the debtor's residence in this state
was essential. In the bill of sale
Avenger is described as of the county
of Lowndes and state of Alabama,
but the record discloses no direct ev-
idence upon the question of his resi-
dence ; and it is not shown that the
fact of his residence in Alabama was
conceded. In the absence of an ad-
mission as to a material fact, unless
it appears that such fact was clearly
shown, and that it was not contested,
the evidence in regard thereto,
though clear and without conflict,
must be submitted to the jury ; and
the trial court, in charging the jury,
has no right to assume the existence
of such fact as established. 1 Brick.
Dig., p. 336. 55 8 ; 3 Brick. Dig., p. 114,
§ 118 e< seq. While it does not appear
from the bill of exceptions that there
was any dispute in regard to this ma-
tei-ial fact, yet it is not shown that
the existence thereof was conceded,
or that the defendant in any way
waived the right to take advantage
of what was perhaps an inadvertence
on the part of the plaintiff in failing
to introduce proof on the subject In
the absence of any such showing, the
court could not assume that such fact
was admitted. Carter v. Chambers,
79 Ala. 223. The part of the general
charge to which exception was re-
served was faulty in failing to sub-
mit to the jury the question of the
debtor's residence. The transaction
there hypothesized could not as a
matter of law be pronounced valid
unless the fact existed which would
entitle the debtor to claim exemp-
tions. If that fact did not exists and
the balance of the purchase-price for
the property sold was paid to the
debtor in cash, such circumstances
could have been looked to by the jury
in determining the bona fides of the
transaction (Levy v. WilHaras, 79
Ala. 171); and if, as in the present
case, such balance was secured to be
paid to the debtor in the future, there
was involved such a hindei'ing and
obstruction of the other creditore as
to render the transaction voidable by
them (McDowell v. Steele, 87 Ala.
493). In the instruction under con-
sideration, the fact of Avenger's res-
idence in this state should have been
hypothesized. The failure to do so
renders the charge erroneous. For
this error the judgment must be re-
versed."
CHAPTER XXIX.
EXEMPTION DENIED IN CERTAIN SUITS, ETC,
1. Suits Against Partnerships.
2. Partner's Share Held Liable.
3. Partner's Share Held Exempti-
ble.
4 Suits for Antecedent Debts, etc.
§ 5. Suits for Purchase-money.
6. Actions Ex Delicto.
7. Fraudulent Concealment
8. Fraudulent Sale.
9. Fraudulent Assignment
§ 1. Suits Ag-ainst Partnerships.
As a general rule, exemption is of individual — not partner-
ship-property. The statutes usually speak of the exemptionist
in the singular, as the debtor, the householder, the head of
a family, and tlie lilce. When members of certain favored
avocations are meant, they are usually designated as individ-
uals ; as, the farmer, the mechanic, the laborer. If the prop-
erty of a partnership is to be exempt, the statute says so or
ought to say so. There are cases recognizing the exemption
of partnership property, but ordinarily the statutes favor the
individual representing a family, or the follower of an avoca-
tion ; and the general rule is that partnership property is not
exempt when not expressly made so.'
A yoke of oxen was the subject of the contest in the case
above cited. Owned by insolvent partners in business, they
were claimed as exempt under a statute in which it is pro-
vided respecting the debtor : " If he has more than one pair
of working cattle, he may select," etc.^ The firm had a yoke
of oxen used in their business, which were held not exempt.'
But under like circumstances, though under a different statute,
it was said : " If each of the plaintiffs had owned a pair of
•Thurlow V. Warren, 83 Me. 164. sail v. Cornley, 44 Pa. St 442; Guptil
Judge Virgin said fertile court: "Al- v. MoFee, 9 Kas. 30; 2k. re Handlin,
though in some jurisdictions the con- 3 Dill. 390: Russell v. Lennon, 39
trary view is taken, still the great Wis. 578 ; overruling Gilman v. Will-.
weight of deliberate and well-consid- iams, 7 Wis. 336."
ered cases hold that individual and 2 Me. R. S., ch. 81, § 63, clause 7.
not partnership property is exempt ^ Thurlow v. Warren, 83 Me. 164.
Pond V. Kimball, 101 Mass. 105 ; Bon-
904 EXEMPTION DENIED IN CERTAIN SUITS, ETC.
horses, both teams would have been exempted." And further :
" It would be an obvious perversion of the statute to hold
that the plaintiff forfeited its protection by owning but a
single team between them, used for the common support of
both."i
Under a statute treating the beneficiary of the exemption
in the singular as most statutes do, several partners claimed
separate allowances from partnership property; and, in deny-
ing the claims, the court said: "It appears to us that the
statute is intended to apply only to the case of a single and
individual debtor. The exemption which it gives is strictly
personal. The statute speaks in the singular number through-
out, unless possibly the clause as to fishermen be an exemp-
tion. Its apparent object is to secure to the debtor the means
of supporting himself and his family by following his trade
or handicraft with tools belonging to himself. It also provides
that his family are to be secured in the enjoyment of certain
indispensable comforts and necessaries out of his property.
But property belonging to the firm cannot be said to belong
to either partner as his separate property. . . . The ex-
emption, in our opinion, is several, and not joint." ^ This
reasoning was adopted in a later case under a similar statute.'
And where exemption to a certain sum is granted to debtors,
the statute does not thus offer exemption to partnerships.''
The question has been much discussed, but it seems clear that
a partner cannot claim as exempt to him, property which he
does not own. The firm is an artificial person of which he is
a part ; but its property is not his. Therefore, there must bo
statutory authorization before he can rightfully claim any
portion of the partnership property, other than such author-
ization as that which exempts certain property to individual
debtor-owners.' " No one of the members of a copartnership
1 Stewart v. Brown, 37 N. Y. 350. tion is desired by the reader, he is re-
'Pond V. Kimball, supra. f erred to the following cases : Gill t,
' Cowan V. Creditors, 77 Cal. 403. Latterman, 9 Lea, S81 ; Spiro v. Pax-
*Wise V. Frey, 7 Neb. 134; White ton, 3 Lea, 75 (S. C, 81 Am. Rep.
V. Heffner, 30 La, Ann. II, 1380; 630): Gaylord v. Imhoff, 26 O. St
Spiro V. Paxton, 3 Lea, 75; Baker v. 317 (S. C, 30 Am. Rep. 768); Stat^
Sheehan, 39 Minn. 235 ; State v. Bow- v. Spencer, 64 Mo. 850 (S. C, 27 Am.
den, 18 Fla. 17. Rep. 344); Bonsall v. Comly, 44 Pa.
*If further pursuit on this ques- St 443; Holmes v, Winchester, 133
paetnee's shaee held liable.
905
has a separate property in the partnership effects. The own-
ership is a joint one, and resides in the firm. The 'partnership
effects are primarily Uable for the partnership debts." ^
§ 2, Partner's Share Held Liable.
There is not uniformity in the several states as to the al-
lowance of exemption to individual members of a firm, in
partnership property. In many, the privilege is decidedly de-
nied.^ The partner's interest is his portion of the assets after
the firm debts are paid. In the language of Judge Story :
" Joint property is deemed a trust fund, primarily to be ap-
plied to the discharge of the partnership debts, against all
persons not having a higher equity. A long series of author-
ities has established this equity of the joint creditors, to be
worked out through the medium of the partners ; that is' to
say, the partners have the right to have the partnership prop-
erty first applied to the discharge of the partnership debts,
and no partner has any right, except to his own share of the
residue. . . ." ^
Mass. 542 ; Giovanni v. First N. Bank,
55 Ala. 305 (S. C, 28 Am. Rep. 723);
Elias V. Verdigo, 27 Cal. 418; Short
V. McGruder, 22 Fed. 46. Compare,
Stewart V. Brown, 37 N. Y. 850;
93 Am. Dec. 578 ; Blanchard v. Pas-
chall, 68 Ga. 32; 45 Am. Rep. 474;
Skinner v. Shannan, 44 Mich. 86 ; 38
Am. Rep. 333 ; McCoy v. Brennan, 61
Mich. 362 ; Evans v. Bryan, 95 N. C.
174; 59 Am. Rep. 233.
iClegg V. Houston, 1 Phila. 353;
Hoyt V. Hoyt, 69 la. 174.
^ Schlapback v. Long, 90Ala. 525 (in
which it is held that, if husband and
wife be partners in business, neither
can claim exemption from the part-
nership property) ; Weller v. Weller,
131 Mass. 446; Deeter v. Sellers, 303
Ind. 458 ; Henry v. Anderson, 77 Ind.
361 (see State v. Read, 94 Ind. 103);
Ricliardson v. Adler, 46 Ark. 43;
Ward V. Hahn, 16 Minn. 167; West
V. Ward, 36 Wis. 580: Wright v.
Pratt, 31 Wis. 99 ; Letchford v. Gary,
53 Miss. 791 ; McManus v. Campbell,
37 Tex. 267 ; Terry v. Berry, 13 Nev.
515 ; Rhodes v. Williams, 12 Nev. 30 ;
Kingsley v. Kingsley, 39 Cal. 666;
Amphlett v. Hibbard, 29 Mich. 398.
3 Story's Eq. Jur., i? 1253. As was
said by the court, through Chief Jus-
tice Randall, in State v. Bowden,
supra: " In the nature of partner-
ship, the property of the firm is not
the individual property of either of
its members. Neither of them can
of right use the property for the pay-
ment of his individual debts. The
property of the firm is, in the first in-
stance, assets for the satisfaction of
the debts of the concern ; and, sec-
ondly, for the reimbursement of such
members of it as are in advance of
their proper share of the capital and
debts. Until the share of each mem-
ber is ascertained and severed, the
assets are not the separate property
of either, but the joint property of
all, subject to the above conditions.
" If either partner dies, the part-
nership property survives to and
906
EXEMPTION DENIED IN CERTAIN SUITS, ETC.
Whether a partner can claim exemption relative to the
merchandise of the firm to which he belongs is a question
which has been likened to partnership in realty, and decided
in the negativ^e by parity of reasoning.^
- Though one partner can bind his firm by mortgaging part-
nership property to secure debts of the firm, the benefit of
statutory exemption to a person engaged in business was held
not applicable to a partner who mortgaged some of his firm's
stock in trade without the knowledge of his copartner.^
An execution issued against partnership property before
the dissolution of the firm owning it was levied on the share
of one partner after the dissolution; and it was held that he
could not claim exemption.' When the execution came into
the sheriff's hands, the claimant's interest was in common
with the other partner's, and could not be appropriated, even
in part, for his family's benefit.*
The interest of a possessor in common of personal prop-
vests in the survivor, not as his indi-
vidual property absolutely, but to be
applied to the liquidation of the lia-
bilities of the copartnership to its
creditors, and to reimburse advances
by its members before distribution
among them all, in proportion to
their several equities. . . .
"... The constitutional and
the statutory provisions on the sub-
ject of exemptions contemplate that
the debtor may claim an exemption
out of his own property. Partner-
ship assets are not the property of
either of the partners. Their posses-
sion and ownership for partnership
purposes, not for private purposes,
go to the survivor if one of them
dies, and must be applied to the pay-
ment of copartnership debts and for
distribution, as before stated.
"Property exempted from levy
and sale must be selected so as to be
identified and set apart Partnership
effects of a mercantile firm are con-
stantly changing in respect to iden-
tity, and as one partner cannot take
possession of the goods and convert
them to his own use against the con-
sent of his copartners, but the goods
remain partnership property until
sold, a ' selection ' of such goods by
one partner as his exempt property
would be a fruitless and idle cere-
mony— the same goods, still remain-
ing the property of the firm for part-
nership purposes."
1 Fingurhuth v. Lachman, 37 Mo.
App. 489, decided upon tlie authority
of a homestead case ; Trowbridge v.
Cross, 117 III 109 ; R S.. cli. 52, § 13.
2 Harvey v. Ford, 83 Mich. 506 ; 47
N. W. '343 ; Howell's Stat, § 768'6.
estate V. Day (Ind. App.), 39 N, E.
486 ; Love v. Blair, 73 lud. 281.
i Pond V.' Kimball, 101 Mass. 105 ;
Henry v. Anderson, 77 Ind. 861 ; Dee-
ter V. Sellers, 102 Ind. 458 ; Smith v.
Harris, 76 Ind. 104. Compare Robin-
son V. Hughes, 117 Ind. 298, and
Goudy V. Werbe, 117 Ind. 154. In
State V. Day, supra, it was held that a
firm way waive their equitable liens
in favor of a mortgage lien on a debt
of one partner. See Purple v. Far-
rington, 119 Ind. 164
paetnee's shaee held exemptible. 907
erty has been held exempt, " where the possession as well as title
is severaV Distinction was drawn between such interest
and partnership interest, in relation to exemption — the court
remarking that if the articles levied upon were partnership
property for a partnership debt, there would be a striking
analogy between the case under consideration and one pre-
viously decided in which exemption was denied.'
§ 3. Partner's Share Held Exemptible.
The question : "Whether, if a portion of the personal prop-
erty (included in the schedule of the applicant for exemption)
belonged to the firm of which he was a member at the time
it was levied upon, and no severance had been made by the
partners at the time — whether he is entitled to an exemption
in such portion? was judicially answered in the affirmative, in
a state where it came up as new. The court remarked that,
" in fact and in law, the individual members of the firm are
the real owners of the partnership property. And although
the law directs how debts shall be paid, it never loses sight
of the fact that a partnership is made up of individuals who own
the assets. It is nevertheless true that in the absence of any
legal provision giving a different direction to the disposition
of the assets of a firm, they would have to be paid out as
1 Heckle v. Grewe, 125 111. 58; 26 117 111. 109; Simpson v. Leech, 86
IlL App. 339 {distinguishing Trow- Bl. 286 ; Bopp v. Fox, 63 III. 540. Its
bridge v. Cross, 117 111. 109); Conway like operation upon personal prop-
V. Wilson, 44 N. J. Eq. 457. In Illinois erty, to bar such claim as is here
a partner cannot have his exemption made, is clearly recoghized in Heckle
from the property of his firm, before v. Grewe, 26 111. App. 339, and same
or after the dissolution of the part- case in 125 111. 58 : and the precise
nership, as against the creditors of question here presented is decided in
the firm. In a case involving this the case of Croft Brothers, 8 Biss.
rule, the court said : '' Firm assets 188, and in Ex parte Hopkins^ 104
are a trust fund for the payment of Ind. 157. We are unable to see how
creditors. The partners individually a dissolution of the partnership, or
can have no absolute property in It the consent of a partner, before the
or in any specific part of it until the firm creditors are satisfied, can
creditors are fully satisfied. / This operate to give a partner any greater
elementary doctrine of the law of right to the firm assets or any part
partnership has been held to bar thereof, as against the creditors,
anaolgbua claims of dower and than he would otherwise have."
homestead exemption in real estate Wills v. Downs, 88 111. App. 269,
of the firm Trowbridge v. Cross, Pleasants, J.
90S EXEMPTION DENIED IN CEKTAIN SUITS, ETO.
claimed. But here is interposed between this disposition of
the property which an individual may have in a partnership,
another overriding and superior right thereto which no court
or ministerial officer can disregard, and no officer has the juris-
diction or authority to seize and sell, except for certain speci-
fied debts in which partnership debts are not included." ^
Another view h9,s been taken of the question. It has been
said, even judicially decided, that if the partners consent that
one of their members may claim exemption in the partnership
assets, he may legally have it accorded to him, though there
be outstanding debts. The creditors are declared to be with-
out right to complain, since their attitude is like that which
creditors hold towards an individual debtor. To quote from
an opinion so declaring : " The separate partners have a right,
in order to their own exoneration, to have the joint prop-
erty applied to the joint debts, and in its exercise the joint
creditors reap the benefits ; but no such equity resides in the
creditors, as such, to have their demands first satisfied. When
the partner refuses to avail himself of this equitable right, and
consents to an appropriation of the common property to the
personal and separate use of one of them, the result is the
same as if there were no joint liabilities, and each had a perfect
right to his own share.
" Putting the partnership creditors out of the way, there
can be no legal obstacle to what is in effect an actual partition
between them of so much as each receives as his exemption.
Why should it not be so? The joint creditors have no more
rights to shift the burden from the joint, and put it upon the
separate, property, to the injury of the individual creditor,
than he has to do the reverse and put the burden upon the
joint property, to the injury of the former. Upon principle,
then, we uphold and abide by the ruling heretofore made, as
resting upon sound reason." ^
Distinction is drawn between judgment against an individ-
ual partner and judgment against the firm. While in the
latter case exemption is not allowable in a given state, it may
1 Blancliard v. Paschal, 68 Ga, 32, som, 90 N. C. !)0 ; O'Gorraan v. Fink,
Si. 57 Wis. 649 ; 46 Am. Rep. 53 ; First
2 Scott V. Kenan, 94 N. C. 296, N. Bank v. Hackett, 61 Wis. 335, 348;
Smith, C. J., approving Allen v. Gris- Severson v. Porter, 73 Wis. 70, 77.
SUITS FOR ANTECEDENT DEBTS, ETC, 909
be in the former. That is t6 say, an individual member of a
partnership who is a judgment debtor may claim exemption
out of his share of the partnership effects in states where he
could not if the judgment were against the partnership.' In
some states, after the dissolution of a partnership with the
lien of a levy resting upon the firm property, one of the late
members may claim exemption in his own behalf.^ And it is
said that a debtor may put himself in position to claim ex-
emption after the lien has attached, though he had no right
to exemption when it attached.^ The lien upon the partner-
ship property must be a general one, subject to exemption ;
that is, a lien on the non-exempt portion, if any has im-
munity ; for a member of a late firm could not dislodge a
lien upon its partnership property without satisfying it.
A woman, as one of a firm, sued a sheriff for selHng part-
nership goods under execution after she had notified him of
her claim. The fact that she had drawn a thousand dollars
from the assets of the firm just before the levy was not
deemed by the court an impediment to her claim, since it was
a matter between the partners. The amount drawn was four
times the statutory exemption claimable by each partner from
the stock in trade. By the statute each member could claim
$250.* This claim may be asserted by each .partner individ-
ually; it is' not necessary that all should join. And he can
enforce it, though no other member of the firm is in court or
has claimed in any way.'
§ 4. Suits for Antecedent Debts^ etc.
This kind of suit has been treated heretofore ; ^ and as chat-
tels do not differ from homesteads, as to the principles in-
volved, there need be no repetition here. Those principles
iWise V. Frey, ^ Neb. 134; Ser- These two last stated points were
vanti V. Lusk, 43 Cal. 238 ; Newton v. made by Judge Crumpacker in his
Howe, 9 Am. Rep. 616j dissenting opinion in State v. Day
'•i Russell V. Lennon, 39 Wis. 570; (Ind. App.), 29 N. E. 436.
Skinner v. Shannon, 44 Mich. 86; « McCoy v. Brennan, 61 Mich. 382 ;
Blanchard v. Paschal, 68 Ga. 32; Waite v. Mathews, 50 Mich. 393;
Stewart v. Brown, 37 N. Y. 350. Skinner v. Shannon, 44 Mich. 86.
s Watson v. Simpson, 5 Ala. 233; ^Ib.; Russell v. Lennon, 39 Wis.
Letohford v. Gary, 52 Miss. 791 ; Mc- 570 ; Newton v. Howe, 29 Wis. 531.
Manus v. Campbell, 87 Tex. 267. s Ante, it. 27Q et seq.
910 EXEMPTION DENIED IN CEETAIN SUITS, ETC.
have been pointedly applied to chattel exemption. It has been
held unconstitutional to exempt personal property from the
liability already upon it. However great or little the amount
exempted, it is held that it would impair the contract by
which the antecedent debt was created.'
Personalty is generally liable, without exemption, for taxes ; *
and less generally so for rents. Though property selected by
the debtor and set apart by the court be free from liability
for rent, yet a distress warrant against it will be effectual in
the absence of any proof of the exempt character.' Eents of
property dedicated to public use 'take the character of the
property itself, as to exemption.*
§ 5. Suits for Purchase-money.
Personal propertj" being by statute made liable for pur-
chase-money except when in the hands of an innocent third
person who acquired without notice,' is not subjected to a lien
by such statute. Priorities among contending creditors are
not regulated by it. The court, in construing the statute, said
that the evident intent of the legislature " was to take out of
the exemptions of the original act such of his personal prop-
erty as otherwise might have been exempt from attachment
or execution, when the execution is on a judgment for the pur-
chase-money of 'such personal property. It was not the inten-
tion of the legislature to impress upon the personal property
a lien in favor of the vendor of such property, but to provide
that if, upon execution issued upon a judgment for the pur-
chase-money, such property was found still the property of
the execution debtor, he should not be permitted to claim and
hold it as exempt from sale as against the vendor's execution
for the purchase-money." '
1 Johnson v. Fletcher, 54 Miss. 628 ; * Kline v. Ascension Parish, 33 La.
Carlton v. "Watts, 82 N. C. 212 ; John- Ann. 562.
son V. Dobbs, 69 Ga. 605; ante, 6 Mo. R. S. (1879), § 2353.
pp. 677-680. 6 Straus v. Eothan, 102 Mo. 261,
'^ Oliver v. White, 18 S. C. 235 ; Ran- citing Norris v. Brunswick, 73 Mo.
som V. Duff, 60 Miss. 901. 257 ; Haworth .v. Franklin, 74 Mo.
3 Shiver v. Williams, 85 Ga. 583; 106; Parker v. Rhodes, 79 Mo. 88;
Ga Code, § 2040. In Georgia, exemp- and overruling Comfort v. Mason, 96
tion is by the ordinary. Sasser v. Mo. 127 ; Bolckow Co. v. Turner, 33
Roberts, 68 Ga. 252. Mo. App. 103, and Boyd v. Furniture
Co., 38 Mo. App. 210.
SUITS FOE PUTCOHASE'MONET. 911
A chattel is liable for its purchase price, whether sequrity
for the debt has been taken or not ; ' and whether or not
judgment on a note given for the price has been rendered in
favor of an assignee of the note.^
Must the fact that the note was given for purchase-money
appear on its face? or of record? May it be established by
parol? It has been held, where such a note did not show its
consideration, that parol evidence was sufflcient to show that
it represented the purchase-money.' And where there was
nothing of record to show the consideration of the note, the
court indorsed upon the judgment that the purchase^money
for specified property was represented by the note. This was
done under statutory authorization,* and would not be other-
wise done, it is apprehended.
Things bought with borrowed money, borrowed for the
avowed purpose of buying them, are not exempt as against
the lender. A horse and harness were bought with such
money, and were claimed as exempt when the lenders sought
to execute their judgment against the borrower by levying
upon them. The suit was for purchase-money and therefore
the things purchased with it were not exempt.' There may
be found exceptional states in which this rule, as to borrowed
money, is not applied, but the rule is general that chattels
are not exempt against a judgment for their price while they
remain in the hands of the first purchaser." When the price
and indebtedness are evidenced by a note, the holder may re-
cover, unbarred by exemption, though he be not the original
lender and obligee.'
1 Roberts r. McGur, 83 Mich. 331 ; ^Houlehan v. Rassler, 73 Wis. 557 ;
46 N. W. 370. Wis. E. S., § 3988, cl. 30.
estate V. Orahood, 37 Mo. App. estate v. Orahood, 37 Mo. App.
496, in which the point is made to 496.
rest on homestead decisions relative ''lb. The court said, through Judge
ito assignment of purchase-money Thompson : " It cannot, we appre-
notes. hend, be contended tliat the right to
sib, subject the chattel to the payment
4 Green v. Spann, 35 S. C. 373; So. of the indebtedness for' its purchase
Car. Gen. Stat., § 3001. Difference is price is waived by the vendor by' the
made, as to exemption, between a mere fact of taking a promissory
debt for necessaiy supplies to a fam- note from the purchaser. So far as
ily, and one for groceries sold to the we know, none of the decisions relat-
keeper of a boarding-house. Lenhoff ing to the subject go so far. If we
V. Fisher (Neb.), 48 N. W. 831. are right in this conclusion, the ex-
912 EXEMPTION DENIED IN CERTAIN SUITS, ETC.
Though the note be received as payment and satisfaction of
the price of the chattel sold, a suit upon it is for purchase-
money, and it therefore is not obstructed by exemption.^
An act expressly providing that no property shall be ex-
empt from sale for a debt incurred for its purchase or im-
provement was held to have no reference to personal property.
The court said that the non-exemption " does not apply nat-
urally to personal property, but is more properly applicable
to real property. . . . JSTotwithstanding the general
words of the section are comprehensive enough to embrace
personal property, we are of opinion that such property is not
within the intendment of the section, and that it is to be con-
sidered as applying to the homestead exemption alone." ^
In a jurisdiction which holds chattels bound for the purchase
price just as land is,' it was yet held that a sewing machine,
bought but not wholly paid for, was exempt as against the
seller in a suit on the note given for the purchase-money.*
The purchaser of a horse gave his note to a creditor of the
seller, who credited it to a land debt, due him by the seller of
the horse. The maker being sued on the note, it was held
that the consideration of the note was, not the horse, but the
extinguishment of the land debt. The horse, having been set
ception contained in section 2353, Re- obtained judgment, and levied upon
vised Statutes, creates a privilege or the piano. Replevin was sued out
incident which adheres to the note, against the ofScer by the person who
which is the evidence of the debt, bought the instrument of the daugh-
. . . In California and Georgia it ter, and from whom the ofBcer had
is held that the assignment of a note taken it. Chief Justice Sherwood
given for purchase-money of a home- said, in deciding : " The piano of
stead carries with it the preference plaintiff was not subject to the levy,
of the vendor over the right of home- . . . The act of March 31. 1874,
stead of the vendee. Dillon v. Byrne, does not apply to a case of this kind.
15 Cal. 455 ; Berrell v. Schie, 9 Cal. It does not go beyond, nor was it in-
104 ; Sponger v. Compton, 54 Ga. tended to go beyond, the purchaser.
355; Wofford v. Gaynes, 53 Ga. Norris v. Brunswick, 78 Mo. 356."
485." The court further cited Ed- Haworth v. Franklin, 74 Mo. 106.
wards v. Edwards, 34 O. St. 303 ; i Rogers v. Brackett, 34 Minn. 279 ;
Sloan V. Campbell, 71 Mo. 387 ; Gen. St. 1878 (of Minn.), ch. 66, § 311.
Ada-ms v. Cowherd, 30 Mo. 458. A 2 Wells v. Lily, 86 111. 317; Howard
lady gave her note for a piano, gave v. Lakin, 88 111. 36 ; 111. Rev. Stat of
the piano to her daughter, and the 1874, p. 497.
daughter sold it to a third person. ' Roberts v. McGur, 83 Mich. 221.
The holder of the note transferred it, * Singer Manufacturing Co. v. Cul-
and the transferee sued the maker, loton (Mich.), 51 N. W, 687.
ACTIONS EX DELICTO. 913
apart as exempt to its purchaser, was not liable for the land
debt ; ' but the note for the horse was the one sued upon, and,
as the maker had not paid for the animal, should he have been
protected? The payee took the note as a payment on the
land ; but if he could get nothing for it, he is a loser and the
maker has gained a horse.
Claiming purchase^money agcdnst mortgage recorded lefore
levy: A mortgage recorded before attachment is laid ranks
higher than the attachment lien, even though the latter is to
secure the purchase price : provided the mortgage was taken ,
without notice that the mortgagor had not paid for the chat-
tels mortgaged. This is the rule where the statute excepts
personal property from exemption against a claim for its
purchase price but does not create a hen in favor of such
claim. The exemption has no eifect on such claim ; so, when
the property has been sold before payment, and has passed
into third hands without notice, the original vendor, without
recorded lien, cannot follow it to obtain the purchase-money.
It is queried by the court whether a mortgagee, apprised of
the fact that the mortgagor has not paid the purchase-money
at the time of the creation of the debt to be secured, may be •
regarded as a lienor taking rank in the order of time, or
whether he is to be treated as a purchaser with notice.*
§ 6. Actions Ex Delicto.
The general rule is that ihere is no exemption when the
judgment and execution are for tort. And it is maintained,
in the later decisions cited in the next note, that a writ of
execution on a judgment to recover" land is not subject to
a claim for personal property exemption, because it is not " an
execution for the collection of debt." This suggests a broader
distinction than that between tort and contract.'
1 Washington v. Cartwright, 65 Ga. ris v. Brunswick, 73 Mo. 258. See
177 j Ga. Code, g§ 2040 ei seg. Haworth v. Franklin, 74 Mo. 106;
8 Corning v. Rinehart Medicine Co., Greely v. Beading, 74 Mo. 809 ; Wool-
46 Mo. App. 16, following Straus v. folk v. Kemper, 31 Mo. App. 421 ;
Sole Leather Co. (Mo.), 14 S. W. 940, Range Co. v. Alexe, 28 Mo. App. 184;
and distinguishing Boyd v. Furni- Petring v. Drygoods Co., 90 Mo. 649.
ture Co., 38 Mo. App. 210 ; Bolckow See the construed statute. Mo. Rev.
Milling Co. V. Turner, 23 Mo. App. Stat. (1889), ~§ 4914.
108; State v. Mason, 96 Mo. 137; « Vincent v. The State, 74 Ala. 374 ;
Parker v. Rhodes, 79 Mo. 88; Nor- Williams v. Bowden, 69 Ala. 433;
58
914 EXEMPTION DENIED IN CERTAIN SUITS, ETC.
A claim for tort is not a claim for debt. There is no ascer-
tained indebtedness ; npthing that the law will recognize as an
existing debt^ Statutory authorizations of attachment for
debt do not include attachment for tort unless so expressed.'
There is no debt till judgment.^ And if the judgment show on
its face that it is for tort, it is held that no exemption can be
pleaded against it successfully. The sheriff may go on and sell
regardless of the defendant's notice and claim of exensption,
when the judgment shows this.' But if it does not show that
it is for tort, but is merely a money judgment so far as its
face discloses (though the record may show it for tort), the
officer cannot disregard the claim of exemption with impu-
nity. He cannot go behind the decree itself and see that it
was rendered for tort, and then decide himself upon the ex-
emption claim.* But it is held that if the judgment is for a
tax, yet does not show that fact, the sheriff may sell and the
debtor cannot claim exemption.'
Judgments on penalties cannot be met by the plea of ex-
emption given by law against judgments for debt.* In an
action on both tort and contract, the defendant may treat the
suit as on the latter and may claim exemption.' If the two
causes of action can be separated as to the proceeds, the de-
fendant's claim should apply to those from contract but not
to those from tort ; ' for the rule is recognized generally, all
over the country, that from judgments for torts there is no
escape for defendants by claims of exemption.'
Stuokey v. McGibbon (Ala.), 8 So. 5 Oliver v. White, 18 S. C. 335.
379 (limiting Clingman v. Kemp, 57 6 Williams v. Bowden, 69 Ala. 433 ;
Ala. 195) ; Ex parte Barnes, 84 Ala. Meredith v. Holmes, 68 Ala. 190 ;
540 ; Meredith V. Holmes, 68 Ala. 190 ; Cason v. Bone, 43 Ark. 17. See
Penton v. Diamond (Ala.), 9 So. 175. St. Louis v. Hart, 38 Ark. 113, on
1 Holoomb V. Winchester, 53 Ct waiving action of tort and taking
447 ; S. C, 53 Am. Eep. 608 ; Get- another. In this case it was held
chell V. Chase, 37 N. H. 106 ; Foster that a judgment for " use and occu-
V. Dudley, 30 N. H. 463 ; Cook v. pation " is on a contract — not ex
Wathall, 30 Ala. 334 ; Victor v. Hart- delicto; so exemption was allowed,
ford Ins. Co., 33 la. 310. 'Ries v. McClatohey, 138 Ind. 135;
2 lb. ; Thayer v. Southwiok, 8 Gray, 37 N. E, 349 ; Hickox v. Fay, 36 Barb.
339; Kellogg v. Schuyler, 3 Denio, 9' Holmesv.Farris, 63 Me. 818.
73 ; Cranch v. Gridley, 6 Hill, 350. 8 Keller v.- McMahan, 77 Ind. 63.
3 McLaren v. Anderson, 81 Ala. 106. 'De Hart v. Haun, 136 Ind. 878;
*Ib.; Block v. Bragg, 68 Ala. 391 ; 36 N. F-. 61.
Block V. George, 70 Ala. 409.
ACTIONS EX DELICTO.
915
There is no exemption when the debt is for property ob-
tained by false pretenses.'
Tort, ly wife: Exemption not holding against a judgment
for the debtor's tort, would it hold against such judgment
when the tort was committed by his wife? At common law
it seems that a husband is answerable for the torts of his wife,
and therefore it has been thought that statutory relief is nec-
essary to save him from the loss of his exemption right by
reason of her tortious acts, when execution is pending against
him on a judgment therefor.^
Costs: Costs follow the condition of the suit, so that exemp-
tion may be interposed against their forced collection when
contract was the ground of the action, in some states. When
the judgment is for tort, the costs may be collected with the
main demand, unhindered. There is no reason why court of-
ficers should not be paid, whatever the character of the cause,
but the distinction above mentioned prevails extensively, and
maj' well be illustrated by the subjoined note relative to the
statutes and decisions of one state.'
1 Hall V. Harris (S. D.), 46 N. "W.
931 ; Comp. Laws Dak., § 5139.
2McCabe v. Berge, 89 Ind. 1335;
Howk, J., for the court : " The com-
mon-law liability of the husband for
the torts of his wife was merely an
incident of the marriage relation or
status. Ball v. Bennett, 21 Ind. 437 ;
Choen v. Porter, 66 Ind. 194 ; Stock-
well V. Thomas, 76 Ind. 506 ; Cooley
on Torts, 115. It cannot be said, there-
fore, that the appellant could law-
fully claim any of his property as
exempt from sale on execution issued
on the judgment recovered against
Tiim for the tort of his wife. . . . We
direct attention to section 5130, R. S.
1881, in force September 19, 1881,
wherein it is provided as follows:
' Married women, without reference to
their ages, shall be liable for torts com-
mitted by them ; and an action may
be prosecuted against them for torts
committed, as if unmarried. Hus-
bands shall not be liable for the con-
tracts or the torts of their wives.' "
Above this, the court had said : " For
aught that appears to the contrary,
the judgment in the slander suit
against the appellant, as well as
against his wife, was for damages re-
sulting directly . . . from the tor-
tious conduct or language of his
wife. The judgment . . . is a com-
plete bar to his subsequent claim for
exemption. Slaughter v. Detiney, 15
Ind. 49 ; Sullivan v. Winslow, 23 Ind.
153 ; Love v. Blair, 72 Ind. 381."
' Indiana has no homestead law
but has exemption of both realty and
personalty : six hundred dollars' worth
of property are exempt to a resident
householder, and it may be taken in
land or chattels ar both. The act of
May 31, 1879 provides : " An amount
of property not exceeding in valiie
six hundred dollars, owned by any
resident householder, shall not be
liable to sale on execution or any
other final process from a court,'
916
EXEMFTIOIf DENTED IN CERTAIN SUITS, ETC.
The costs take the character of the judgment, as to chattel
exemption.* Even the surety of a tort-doer cannot success-
fully claim exemption against the judgment and costs for the
acts of his principal.' A guardian's liability, to pay costs ad-
judged, was held to be on contract when no fraud or negli-
gence had been charged against him as causes for his removal
from oflBce.'
§ 7. Fraudulent Concealment.
An applicant for real and personal exemption, in a state
where mixed benefits of the kind were and are allowable, was
denied homestead because of the fraudulent withholding of some
of his personalty in the exhibit of it. He had withheld a few
hundred dollars, to bear the expense of the litigation. The
lower court condemned the reservation and charged the jury
that an applicant cannot ask a homestead unless he come into
court with clean hands ; and the higher court approved the
for any debt growing out of or
founded upon a contract, express
or implied, after the taking effect of
this act" R S. (1881), § 703. The
same law existed before, except as to
the amount exempted. 2 E. S. (1876),
p. 353. " In the early case of State v.
Melogue, 9 Ind. 196, after quoting the
statute, the court said: 'Under the
above provisions, we think property
is exempt from execution only in auc-
tions upon contract.' And so the stat-
ute has always been construed by
this court. Keller v. McMahan, 77
Ind. 63 ; Thompson v. Ross, 87 Ind.
156; Nowling v. Mcintosh, 89 Ind.
698 ; Beriy v. Nichols, 96 Ind. 287. In
the last case cited, in speaking of the
complaint, the court said : ' It should
have been averred that the judg-
ment had been rendered on a debt
growing out of a contract, express
or implied ; for, if it grew out of a
tort, the exemption was not allow-
abla' In Church v. Hag, 93 Ind. 333,
it was substantially held that the
costs recovered by tlie plaintiff, in a
suit for tort, being an incident of the
judgment for damages, are collect-
ible on execution in the same way ;
the judgment is an entirety, and no
property is exempt from an execu-
tion thereon, either for the damages
or the costs. . . . Costs are not
matter of contract, but they are given
or withheld by statute. Dearinger v.
Ridgeway, 34 Ind. 54; Schlicht v.
State, 56 Ind. 173 ; Henderson v. State,
96 Ind. 437, on p. 444." Extract from
opinion of Judge Howk, for the
court, in the case of Wingler v. Mc-
intosh, 100 Ind. 439, in which it was
held that no exemption can be al-
lowed, though the suit is for costs
growing out of a suit upon contract,
when it is not disclosed by record
that the costs are incidental to in-
debtedness from express or implied
contract
iMassie v. Enyart, 33 Ark. 688;
Clingman v. Kemp, 57 Ala. 195.
2 Irwin V. State, 6 Lea, 588. See
State V. Cobb, 4 Lea, 481.
'Estate of Taylor, 9 Pa. Co. Ct 293.
FRAUDULENT OONOBAIMBNT. 917
charge.* This seems entirely just ; but it has been hfeld, on the
contrary, that concealing property equal in value to that which
is claimed as exempt does not affect the claim.'' But when a
debtor had two wagons, and hid one and claimed the other,
the fraud was a bar to his subsequent claim for treble dam-
ages of the officer for wrongful levy.'
" Before a dishonest debtor can be legally entitled to ex-
emptions, all of his property must be available to creditors,
and the debtor must not retain any of the fruits of his fraud,
or remain in the enjoyment of any of his property except his
exemptions. If any of his property remains in his hands un-
appropriated to creditors, or be by him put out of their reach
by any fraudulent device or arrangement, then such property,
to the extent of its value, will be regarded by the law as a
satisfaction of his claims for exemption." *
In a state where an insolvent's preference of creditors is n^ot
held fraudulent, it seems that an exemptionist may make such
preference after attachment or the levy of exemption, by ap-
plying to the payment of other than the seizing creditors, such
property as is free from the writ.^ But he cannot give away
money or effects, when insolvent, and after attachment, with-
out committing fraud upon his creditors.*
A debtor's duplicity, concealment of property, attempts to
avoid creditors by putting his chattels in his wife's name,
fraud in any form — does not work a forfeiture of the ex-
emption right everywhere. True, it has been held that fraudu-
lent practices, of the kind mentioned, do work such forfeiture ; '
and, if the family of the debtor be left out of the question, or
if he be the claimant of an exemption exclusively personal to
himself, there is good reason for holding him to that estoppel
which his denial of ownership by word or act entails upon
him. Having averred the property to be his wife's, what
right has he afterwards to say that it is his? It is said the
1 McNally v. Mulherin, 79 Ga. 617. » Trager v. Feebleman (Ala.), 10 Sa
See, as to false pretenses, Hall v. 213 ; Weis v. Levy, 69 Ala. 309.
Harris (S. B.), 46 N. W. 93. « lb.
2 Elder v. Williams, 16 Nev. 416. fstrouse v. Becker, 88 Pa. St 190;
a.Yates v. Gransbury, 9 Colo. 823. Kreider's Estate, 185 Pa. St 57a
< Naumburg v. Hyatt, 34 Fed. 898,
90S; Bruff v. Stern, 81 N. C. 183.
918 EXEMPTION DBNIBD IN OEETAIN SUITS, ETC.
exemption laws are not oonined by the legislator to honest
men, and therefore one does not forfeit their benefits by being
a rogue.' True — those laws are for rascals as well as for
good men ; and judges are not to discriminate between them,
and attempt to look into their hearts. The applicant, who is
within the statute, is entitled to the benefit, be he good or
bad. But this is not to the point ; this is no reason why one
who has denied ownership should not be held estopped when
afterwards claiming it, if he is the only beneficiary.
The family argument Is better. The law makes the wife
and children of the debtor beneficiaries ; and their representa-
tive, the head of the family, ought not to be allowed to injure
them by his frauds.^ He cannot defeat them by absconding,
for then the wife may assume to be the head of the family
and claim the exemption in his stead.'
§ 8. Fraudulent Sale.
It has been frequently decided that the debtor's sale of ex-
empt property is no fraud upon the creditor, and does not
debar him from claiming it as exempt if it has been taken
back and the sale rescinded.*
It seems that the debtor forfeits no exemption right by
committing perjury in the affidavit. To state the matter as
the court put it : " What we now decide is, that when a claim
for exemption is substantially in accordance with the statute,
and the schedule is sworn to as the statute requires, the sheriff
1 Moseley v. Anderson, 4 Miss. 49. Bush. 110 ; Commissioners v. Riley,
2 Stevens v. Carson, 37 Neb. 501; 75 N. C. 144; Gaster v. Hardie, 75
Freeman on Ex., § 214a. N. C. 460 ; Ketchum v. Allen, 46 Ct
3 Hamilton v. Fleming, 26 Neb. 240, 416 ; Patten v. Smith, 4 Ct. 450 ; Wil-
S^S; Schaller v. Kurtz, 25 Neb. 655 : cox v. Hawley, 31 N. Y. 648 : Seers
Frazier v. Syas, 10 Neb. 115. v. Hawks, 14 O. St 398 ; Hanes t.
4 Redden v. Potter, 16 111. App. 265 ; Tiffany, 35 O. St. 549 ; Tracy v. Cover,
Berry v. Hanks, 38 111. App. 51; 28 O. St. 61; Morris v. Tennent, 56
Vaughn v. Thompson, 17 111. 78; Bell Ga. 577; Bates v. Callender, 3 Dak.
V. Devore, 96 111. 217; Bliss v. Clark, 256; Elder v. Williams, 16 Nev. 416;
89 111. 590; Ives v. Mills, 37 111. 75; Kulage v. Sohueler, 7 Mo. App. 250;
Green v. Marks, 25 111. 223 ; Mosby v. Callaway v. Carpenter, 10 Ala 500 ;
Anderson, 40 Miss. 49 ; Duvall v. Rol- Naumburg v. Hyatt, 24 Fed. 898 ;
lins, 71 N. C. 221 ; Crummen v. Ben- Prout v. Vaughn, 53 Vt 451 ; Het-
nett, 68 N. C. 494 ; McCord v. Moore, riok v. Campbell, 14 Pa St. 263.
6 Heisk. 734; Anthony v. Wade, 1
FBAUDULENT SALE. 919
cannot refuse to appraise and set apart the property on the
ground of perjury in the affidavit." '
It has been held that the vendee of chattels fraudulently
sold to him cannot set up the vendor's privilege of exemption
against the latter's creditors who proceed against the goods
to execute their judgment, or to attach by trustee process.
Fraud against creditors is held possible by an exemptionist in
ihe disposition of his exempt property, in this connection.^
A debtor sold his stock of goods, paid a part of the pro-
ceeds to preferred creditors, and retained the balance as ex-
empt — it not exceeding the sum of $1,000 allowed to debt-
ors. Of this transaction, it was judicially said " that it could
make no possible diEference to his creditors whether the prop-
erty retained by him as exempt consisted of a part of a stock
of goods or of the equivalent in value thereof in notes or in
cash. There is nothing for creditors to complain of in a trans-
action which cannot have effect to work any detriment to
their rights in reference to the property of the debtor. The
charges requested by the defendants are framed upon the
theory that, though the excess in value of the stock of goods
above the sum of the debts paid therewith, together with
[the debtor's] other property, did not amount to more than he
could claim as exempt, yet, if notes payable in the future
were taken by the debtor for such excess, the law would pro-
nounce the transaction fraudulent as against other creditors.
Our conclusion is that such a mere change in form of a part
of the debtor's exempt property could not vitiate the transac-
tion, as the change involves no prejudice to the right of cred-
itors, and that the charges were properly refused." ' . . .
1 Over V. Shannon, 91 Ind. 99, citing Rhoads, 34 Pa, St. 187 ; Freeman v.
Douoh V. Rahner, 61 Ind. 64. See Smith, 30 Pa. St. 264 ; Carl v. Smith,
BoeskeAv. Pickett, 81 Ind. 554 ; Kel- 8 Phila. 569 ; Larkin v. McAnnally,
ley V. McFadden, 80 Ind. 536. 5 Phila. 17. So held formerly in In-
3 Tilton V. Sanborn, 59 N. H. 290 ; di^na and Illinois. Mandlove v. Bur-
Somers v. Emerson, 56 N. H. 48; ton, 1 Ind. 39; Cook v. Scott, 6 IlL
Gutterson v. Morse, 58 N. H. 529; 344: Cassell v. Williams, 13 111. 387.
Currier v. Sutherland, 54 N. H. 475 ; See Brackett v. Watkins, 21 Wend.
Wooster v. Page, 54 N. H. 125 ; Kent 68 ; Brinson v. Edwards (Ala.), 10 So.
V. Hutchins, 50 N. H. 93; Manchester 219; Byrd. v. Curlin, 1 Humph. 466.
V. Burns, 45 N. H. 482 ; Emerson v. 3 Brinson v. Edwards (Ala.), 10 So.
Smith, 51 Pa. St 90 ; Smith v. Emer- 219.
son, 43 Pa. St 456; GKlleland v.
920
EXEMPTION DENIED IN CERTAIN SUITS, ETC.
" As only part of the consideration was the payment of an-
tecedent debts, the validity of the sale against other creditors
is to be determined by the rules governing sales by debtors
for a new consideration."' The sale was invalid as to other
creditors, if there was design to defraud or delay them, and
if the purchaser had notice of such design.^ But giving pref-
erence, when the law permits it, does not invalidate the trans-
action.'
The seller of chattels, whose purpose is to cheat his credit-
ors, cannot afterwards claim exemption as to such articles
when they are levied upon at the suit of the creditors. There
is an exception to this, however. Articles specifically exempt
may be claimed under such circumstances, and even other
articles may be when they compose all the debtor's effects and
are worti no more than the exemption limit.* This is the
law where the courts so hold ; but, on principle, the exception
may not hold everywhere. The analogy between chattels and
i-Zb.; Owens V. Hobbie, 83 Ala. and taking notes or cash for the dif-
466.
2 Lehman v. Kelly, 68 i.la. 193.
'Carter v. Coleman, 84 Ala 256.
In Brinson v. Edwards, supra, It is
said of the debtor: "It is plain
that he had the right to pay the
preferred debts with their equiv-
alent in value from the stock of
goods, and, if what was left, together
with his other personal property, did
not amount to more than $1,000 in
vali:(.e> and he was a resident of the
state, he could have disposed of such
remainder of the stock just as he
pleased ; for, if the debtor's property
does not exceed in value the amount
exempted, the exemption privilege
is attached to it by operation of the
statute, without any act of selection
by him, and creditors cannot be
prejudiced by any disposition of
property which is not liable to their
demands. Nance v. Nance, 84 Ala.
375; 4 South. Eep. 699; Alley v.
Daniel, 75 Ala. 403 ; Myers v. Con-
way, 90 Ala. 109 ; 7 South. Rep. 639.
By selling the whole stock in bulk.
ference between its estimated value
and the debts paid, no greater bene-
fit was reserved to the debtor, nor
was the position of his creditors
changed for the worse. "Whether
the property that could be claimed
as exempt was disposed of in the one
way or the other, the result would
not be to secure to the debtor any-
thing more than he was entitled to
retain, or to put out of the way of
other creditors any property which
they had the right to have applied
to the satisfaction of their claims.
No more in the qne case than in the
other does the debtor acquire any
benefit beyond what the law would
have secured to him. McDowell v.
Steele, 87 Ala. 493 ; 6 South. Eep. 388."
4 State V. Koch, 40 Mo. App. 635 ;
Alt V. Bank, 9 Mo. App. 91 ; Kulage
V. Schueler, 7 Mo. App. 250; Wein-
rich V. Koelling, 31 Mo. App. 138;
Stotesbury v. Kirtland, 85 Mo. App.
157 ; Hombs v. Corbin, 34 Mo. App.
FEADDULENT ASSIGNMENT. 921
homesteads, in this respect, has been frequently pointed out
by the courts, but it is not quite perfect. A chattel specific-
ally exempt, such as a horse and wagofl, may be readily trans-
ported from one place to another ; title passes by delivery ;
there is no record of the sale ordinarily : so there are difficul-
ties in treating chattel sales as nullities which do not attend
abortive transfers of realty. When the identity of chattels
sold by the debtor has been lost, creditors are necessarily
without means of exercising any direct remedy against them.*
§ 9. Fraudulent Assignment.
A debtor may mortgage all his personal property, if it is
all exempt, without defrauding his creditors, since they are
treated as disinterested.^ But he cannot reserve from an as-
signment of his property for the benefit of his creditors, money
equal to his chattel exemption, to be given him from the pro-
ceeds of the property.'
A debtor surrendered his property by deed of assignment,
with express reservation of " the exemptions allowed by law."
He specified no property, selected none, but meant to have
the value of the exemptions returned to him from the pro-
ceeds of the property surrendered. An attachment suit was
brought, in which the assignment, offered in evidence, was
excluded for "fraud upon its face," by the trial court. The
question of the exclusion, whether rightful, was the only one
presented to the supreme court. "Was the assignment prima
facie fraudulent because of the reservation of the value of
exemptions that might have been claimed in the property
assigned? The reasoning of the court will furnish the matter
of the following remarks in reply.
The deed expressly transfers all the assignor's personal
property. There is a habendwm directing the assignee to dis-
pose of it as the law requires respecting trust property, and
pay the assignor (in addition to the wearing apparel of himself
and his family and such other property as he might select at
1 Post V. Bird (Fla.), 9 So. 888. - value, defrauds the debtor. No se-
2 Sims V. Phillips, 54 Ark. 193; lection can be made of a specific
Blythe v. Jett, 53 Ark. 547 ; Erb v. portion so as to bind the mortgagee.
Cole, 31 Ai-k. 554. Mortgaged prop- Bayne v. Patterson, 40 Mich. 658.
erty of the debtor, selected, by the ' King v. Ruble, 54 Ark. 418.
officer at more th^n the appraised
922 EXEMPTION DENIED IN OEETAIN SUITS, ETC.
its appraised value), suA sum as will amount to five hundred
dollars — adding " which I hereby claim and reserve as the
amount allowed me by law as exempt from sale."
Under this assignment, the property passed to the assignor.
!N"ot the property less the exemptions, but all. The case is
therefore different from those in the books in which the title
to exempt chattels never so passed. The court said the ques-
tion, in this case, had seldom, if ever, been before the courts.
The general rule is that an insolvent cannot assign his prop-
erty to another in trust for himself. "WhUe he may hold
property to the value of the exemption, and assign the rest,
creditors may claim all he has above the exempt things re-
tained. They are injured by the burdening of the residue —
the assigned portion of the debtor's property — with any
further claim by him. They are not injured by his selection
and reservation of property before assigning the balance of
it — for they never had any right to look to the exempt por-
tion. Is the difference that between six and half a dozen?
Something more : the law of assignment made it the duty of
the assignee to sell all the assigned property at public auction,
and to reduce assigned choses in action to possession. What-
ever expense the sale, and suits upon promissory notes, and
the like, would cause, the assignor would escape by this
arrangement, so that he would get his five hundred dollars
clear, in cash, instead of taking property at that valuation by
selection before assignment. Perhaps the court may have
made too much of this argument, since the presumption is
that ap,jraisers would have given the debtor property worth
five hundred dollars in cash ; and, had he selected regularly
and assigned the non-exempt property, he would have been at
no expense of sales, suits, fees of attorneys, charges of as-
signee, etc. True, the assignment of more than the creditors
could have did increase the commissions of the assignee, and
did put a burden on the creditors which was illegal if the
debtor's claim on the proceeds was just. Had the assigned
property consisted wholly of perishable goods, so that its
value was reduced by half before the assignee's sale, must the
debtor still have his five hundred dollars? If the assignment
was valid — yes. But this is absurd. The assignment of all
the propert}'' to creditors, with reservation that the whole
■rEAtTDULEHT ASSIGNMENT. 923
amount of the claimable exemption be paid back to the as-
signor after administration, cannot be maintained ; it is prima
facie unfair to creditors.
Wherever the debtor's right of exemption depends upon his
c\&\mmg property, as in this case, he must claim in the method
which the exemption statute prescribes or lose his opportunity ;
and it is submitted that the reasoning of the court, in the case
above considered, is good law in all states which have statutes
like the one under which the assignment in question was made.' .
Clavming fraudulently: Judgment havijig been obtained
by a wife against her husband, for maintenance, his employ-
ers were garnished in aid of execution. They answered that
they had paid him in advance. The jury found that the pay-
ment was in fraud of her rights, and the court sustained the
verdict. Though his wages were exempt as to earnings dur-
ing thirty days immediately prich- to the garnishment, under
ordinary circumstances - (as he was the head of a family con-
sisting of himself, his mother and his sisters),' yet under the
circumstances of the case at bar, the court considered the
payments in advance to have been made by fraud and collu-
sion between the defendant and garnishees, and ordered the
latter to pay again; and it was held that his claim of exemp-
tion for his wages could not be allowed without a perversion
of the object of the statute.* " In a case like the one which
we have here," the court said, "very slight circumstances
would be sufficient to authorize the jury to find that the con-
tract was .entered into to embarrass creditors." '
The debtor cannot claim what he has legally assigned.' But
the assignee, when the wife of the assignor, may hold exempt
a note assigned to her by him, it was held, though there had
been judgment against him, followed by the issue of an execu-
tion, ^o claim of exemption was made till the wife had sued
upon the note, and the judgment had been pleaded as set-off.''
1 Bee Bun-ill on Assignments, § 202. 33 Mo. App. 24 ; Fay v. Smith, 25 Vt
2 Mo. Rev. Stat. (1889), sec. 5220. 610.
3 Wade V. Jones, 80 Mo. 75 ; Dun- « Stotesbury v. Kirtland, 35 Mo.
can V. Frank, 8 Mo. App. 286 ; Nash App. 148.
V. Norment, 5 Mo. App. 545. ' Piokrell v. Jerauld (Ind.), 27 N. E.
< Spengler v. Kaufman, 46 Mo. 433. The decision cites, to sustain its
App. 644. liberality. Junker v. Husted, 113 Ind.
5J6.; citing Reinhart v. Soap Co., 524; Barnard v. Brown, 112 Ind. 53.
CHAPTER XXX.
FEDERAL HOMESTEADS.
1. Distinctive Features.
2. Beneficiaries.
3. Entry — Wliat Land Open.
4. Application and Settlement.
5. Soldiers' and Sailors' Home-
steads.
6. Executive Acts.
g 7. Judicial Action,
a Settler's Rights Relative to Rail-
roads.
9. Alienation Inhibited.
10. Incumbrances.
11. Title.
§ 1. DistinctiTC Features.
Differentiation: The federal homestead differs in important
particulars from that of a state. It is not necessarily a family
residence, it is not conditioned upon perpetual occupancy, it
is not subjected to restraint as to alienation and testamentary
disposition after acquisition, as state homesteads usually are.
The two most important differences relate to ownership and
exemption. "While the state homestead is carved upon prop-
erty already possessed by the beneficiary, the federal is do-
nated to him by the government on certain conditions. "While
the state homestead is exempt from the ordinary debts of the
owner contracted after notice and not from antecedent debts,
the federal is exempt from debts antecedent to the acquisition
of title and not from those subsequent.
The definition of the federal homestead, therefore, is not the
same as that of the state. It is : Land donated by the United
States to a settler upon the conditions, and the limitations,
prescribed by statute. The principal conditions are occupancy
and cultivation for five years. The principal limitation is as
to the quantity of land bestowed on the settler.
Policy: TJie policy of federal homestead legislation is rather
to induce the making of family homes than to conserve them ;
and it is also to parcel out the public domain to industrious
citizens who will improve and cultivate the portion given
them: the ultimate end being the promotion of the public
welfare by encouraging a wortliy yeomanry.
DISTINOTIVE FEATITEES. 925
Principles: The principles governing the benefits conferred
under the homestead laws of the United States are other than
those controlling state exemptions. From the date of entry
to that of the patent, the homestead is not liable for any debts
of the occupant, for the reason that Tie does not own it. The
title is in the United States. When he becomes the owner,
on what principle is the creditor denied execution against the
property on judgment rendered for debt previously contracted
by the settler? A private citizen cannot confer land in fee-
simple upon a donee which shall not be liable for the latter's
debts ; cannot make non-liability a condition, for he has no
control over the subject. But the United States can and does
donate its public land to settlers for homesteads and makes
the property free from liability for existing debts. - The cred-
itor is_ not injured. Nothing is withdrawn from his grasp
which he could reach before the donation. He is not put to
the worse by his debtor being made the better.
Meemption: It is upon the principle of the sovereign right
to protect the donation after it has been bestowed that the
government exempts the homestead from antecedent debts
after ceasing to own it. No one can complain of this super-
vision unless it be a state after the homestead has come within
its authority. The state cannot, for the federal exercise of
right of protection is no violation of state sovereignty.^ Con-
sidered as a provision without which the donations might not
have been made ; and considered as an advantage to the states,
since they are benefited by gifts to their citizens, the exemp-
tion from debts prior to the patent seems unobjectionable.
The provision of the statute is that no lands acquired under it
" shaU, in any event, become liable to the satisfaction of any
debt contracted prior to the issuing of the patent therefor." ^
" The right to make rules, by which the lands of the gov-
ernment may be sold or given away, is acknowledged," ^ The
power of congress to make contracts with settlers under the
homestead law, to grant benefits on conditions, to regulate
transfers by settlers^ and the like, has been judicially recog-
nized.*
1 Lewton v. Hower, 18 Fla. 873. 3 Lamb v. Davenport, 18 Wall. 307.
2 R. S., § 3396 ; Seymour v. Sanders, < Gibson v. Choteau, 13 Wall. 93 ;
3 Dill. 437. United States v. Gratiot, 14 Pet. 536.
926 FEDERAL HOMESTEADS.
A judgment obtained on a debt contracted before the issue
of the patent bears no lien upon the land ; the land cannot
be sold under execution of such judgment, whether it re-
mains owned and possessed by the original settler, or belongs to
a purchaser to whom he has transferred his title after having
perfected it.^ Exemption dates from the original entry, which
is the purchase ; the issuance of the patent retroacts to that'
time, in effect.^ " No attempt is made by congress to con-
trol these lands [the public lands donated for homestead], or
put any condition on the state in reference to them, for any
act done or debt contracted after title has passed from the
United States." The settler is assured that the land he en-
ters shall be exempt from liability for debts contracted while
the title remains in the government. He is guarantied this,
whether the patent shall be issued to him, or to his widow>
or to his heirs or devisees.'
Exemption -inures to the benefit of the deceased settler's
successors — that is, his widow and minor children — just as
to him, had he lived to receive the patent on completing his
title. The pointed statutory provision to this effect * has al-
ways been carried out by the courts.'
§ 2. Beneficiaries.
Qualifications: A person making a homestead entry must
be of age or the head of a family, and must be a citizen of the
United States or an applicant for naturalization; or he must
be qualified under the law allowing soldiers and sailors to
claim. He must also be capable of contracting so that he can
understandingly assume the obligations which he takes to
perform the conditions upon which the homestead is bestowed.
An incompetent person cannot make a homestead entry, nor
can it be made for him. The guardian of an adult who was
afflicted with the softening of the brain was not permitted to
make entry for his ward. He could not swear to the intention
of his ward, nor could the latter swear to it for himself : since
I
1 Sorrels v. Self, 43 Ark. 451 ; MiUer * R. S., § 2396.
V. Little, 47 Cal. 348; Russel v. '•lb.; Seymour v. Sanders, 3 Dill.
Lowth, 31 Mbn. 167. 437 ; Gile v. Hallock, S3 Wis. 523 \
2 Green v. Farrar, 53 la. 436. Nycum v. McAllister, 33 la. 374.
3 Sorrels v. Self, supra.
BENEFICIAEIES. 927
he was mentally incapable. The statute requires oath to the
intention : so as no compliance could be had, no entry could be
made.i
Married appliccmts: Though two homesteads cannot be
taken by a married couple, each spouse while single may have
taken the preliminary steps to one ; and the marriage will not
invalidate the right acquired. So, after the wedding, each
may go on to complete his or her claim by the necessary period
of residence and cultivation. One homestead may be thus com-
pleted and the other commuted ; or, both may be commuted.
The married beneficiaries may occupy a house built on the
dividing line between the two homesteads and hold both tracts.^
A deserted wife is treated as the head of her family when she
is in possession of land entered by her husband. She may go on
and complete the performance of the conditions; she may
make the final proof in his name, or she may prove the deser-
tion and make entry in her own name.' Her rights cannot be
defeated by her husband's fraudulent relinquishment of the
homestead.* In a contest before the interior department, be-
tween her and him, on the question of his fraudulent relin-
quishment to the prejudice of her rights, the pleading and
evidence may be such as to render the case not reviewable by
the courts ; ^ at least, not so while the question is pending be-
fore the department." While such a contest is pending, she
will be protected in her possession.' Her possession of the
homestead, after her husband has left her, is such that she may
recover damages against a trespasser for dispossessing her, or
for removing or injuring improvements ; — even punitive dam-
ages when such acts were malicious.'
Widow and heirs: A deceased settler's widow and children
may complete the title which he left inchoate. After a caveat
had been filed in application for a homestead, and the applica-
tion had been granted pursuant to the caveat, the land was sold
at judicial sale, and the purchaser was charged with notice.
1 Ledf ord, Matter of, 1 Copp's Land » Corbett v. Wood, 33 Minn. 509.
Laws, 361. 6Empey v. Plugert, 64 Wis. 603.
«Hay, Matter of, 1 Copp, 363^ 'Atherton v. Fowler, 9fe U. S. 513.
»9LandDec.Dep'tInt'r, 186; ^ lb. SMiohaelis v. Michaelis, 43 Minn.
8L 133.
< 14 Copp, Land Owner, 358.
928 > FEDERAL HOMESTEADS.
The applicant dying, his widow and children filed a bill to
have themselves subrogated to his rights and to compel the
purchaser to account for the rents and profits of the land sub-
sequent to the grant of homestead. It was held that the bill
would lie.'
An heir, who perfects a homestead claim and gets a patent,
is not barred by a judgment in ejectment against the admin-
istrator of the deceased settler.^ Minor heirs succeed to the
right of their deceased parents. The homestead may be sold
for their benefit, though the patent has not been issued, and
the purchaser may complete the title and obtain the patent.' '
All heirs under twenty-one years of age are " infants " within
the meaning of the statute ; so that, in a state where daugh-
ters reach their majority at the age of eighteen while sons do
not till they become twenty-one years of age, it was held that
the meaning of the federal homestead law should govern, and
that a daughter over eighteen but under twenty-one .was a
beneficiary as well as her minor brothers.* Minor children
who survive their parents take the whole estate of an incom-
plete homestead entry. Adult children are excluded.'
Foreign-horn applicants: The qualification of citizenship, or
of application therefor, has been frequently passed upon.
When a foreigner has made homestead entry, it must be can-
celed for illegality if he did not declare his intention of be-
coming naturalized prior to the entry. A subsequent declara-
tion will not cure the invalidity." Proof of citizenship must
be made by the enterer, if foreign born ; but it may be done
when making the final proof to obtain his certificate.' And,
at tha,t time, a foreigner was allowed to have his final certifi-
cate, though his intention had been declared after entry, on
the ground that he had erroneously believed himself to be a
citizen when he made the entry.^ This case must be taken as
exceptional. Ignorance of the law was allowed to excuse a
foreign miL >r who had made entry, settled upon the land and
made valuable improvements. On reaching his majority, he
1 Hodges V. Hightower, 68 Ga. 281. * Bernier v. Bernier, 73 Mich. 43.
2 Chant V. Reynolds, 49 Oal. 313. 6 Marrion, Matter of, 1 Copp, 36a
5R. S., § 3393. 'Hill, Matter of, 1 Copp, 363.
* Anderson v. Peterson, 36 Minn. 8 Hay, Matter of, 1 Copp, 363.
547, 549.
ENTKY WHAT LAND OPEN. 929
prayed to have his entry canceled and a new one allowed
him. In view of his good faith, the original entry was allowed
to remain intact, subject to final proof after five years from
the time he had reached his majority — the case then to be
laid before the board of adjudication.' This course was ir-
regular, and ought not to be drawn into precedent. It was
probably less satisfactory to the settler than compliance with
his reasonable prayer would have been, as it left him long in
a state of uncertainty as to the final action of the bpard. By
what legal authority this course was pursued, ^e are not im-
formed. Had the settler been a native minor, not the head of
a family, who had rendered no military or naval service to
his country, his homestead entry would have been canceled
on ascertainment of the want of the conditions required by
law.^
§ 3. Entry — What Land Open.
What quantity: The qualified applicant may enter a quar-
ter section or less after having filed a pre-emption claim to
such quantity of unappropriated land. If such land is sub-
ject to pre-emption at a dollar and a quarter per acre when
the application is made, it may be entered without prior pre-
emption. Eighty acres or less, in a body, subject to pre-emp-
tion at two dollars and a half per acre, may be entered as
homestead after it has been surveyed. Every owner, occupy-
ing his land as a home, may enter contiguous land, but not
in such quantity as to make both together exceed a quarter
section.' No one can acquire more as homestead.*
Mineral lands: Only land subject to pre-emption is open
to homestead entry. As mineral land cannot be pre-empted,"
it cannot be made a homestead." If entry be made, and even
if the patent be issued, the title will be void. The section
last cited reserves from pre-emption and homestead entry,
" lands on which are situated any known salines or mines."
In a case involving it, the supreme court said through Mr.
Justice Davis : "The salines in this case were not hidden as
mines often are, but were so incrusted with salt that they re-
1/6., 361.
<I6., §3389.
216., 360; 386.
6/6., 2258.
3 U. S. Rev. Stat,
§ 2389.
6 §3303.
59
030 FEDEKAL HOMESTEADS.
sembled ' snow-covered lakes,' and were consequently not sub-
ject to pre-emption. . . . What effect the statute might
have on salines hidden in the earth, not known to the sur-
veyor or the locator, but discovered after entry, may become
a question in another case." ' It is " known " mineral lands
which are reserved from entry. If knowingly entered, the
certificate and patent subsequently issued will not avail. " It
has been repeatedly decided that patents for lands which have
been previously granted, reserved from sale, or appropriated,
are void."^ The settler on such land acquires no vested right
to it. The United States, by a bill in equity, can cancel a
patent which has been issued to hina.'
When lands, though containing minerals, do not have them
in such quantity as to render mining thereon more profitable
than agriculture, they may be pre-empted or subjected to
homestead entry.* This is the rule of the land department.
There may be gold and silver on the land, but if the cultiva-
tion of the soil is more profitable than the work of getting
these metals, the land is not ranked as mineral land by that
department.
Occupied lands: A grant to a state of " unappropriated
non-mineral land " was held not to embrace land which had '
been improved and occupied for years by settlers.' The land,
had not only been largely improved but had been sold and re-
sold during the several years of its occupancy. The court,
passing upon its status, said : " Under this state of facts it
cannot be contended, under the repeated decisions of both
national and state courts, that this land was ' unappropriated
public land ' at the time of its selection by the state." ^
Such lands are not open to appropriation by new claimants,
however wanting in legality the title of the original settlers
may have been. The latter may have acquired no right as
1 Morton v. Nebraska, 21 Wall. 660, 30 Fed. 309 ; Williams v. United
674 States, 138 U. S. 514, in which the
2 Z6., citing Polk v. Wan dell, 9 Cr. circuit court decision was affirmed.
99 ; Minter v. Crommelin, 18 How. « lb., citing Atherton v. Fowler, 96
88 ; Reiohart v. Felps, 6 Wall. 160. U. S. 513 ; Hosmer v. Wallace, 97
a McLaughlin v. United States, 107 U. S. 575 ; Trenouth v. San Fran-
U. S. 536. Cisco, 100 U. S. 251 ; Nickals v. Winn,
4 United States v. Eeed, 28 Fed. 482. 17 Nev. 189 ; McBrown v. Morris, 59
'United States v. Williams (Nev.), Cal. 64.
ENTEY WHAT LAND OPEN. 931
\
against the United States ; but it has been judicially said that
they have " initiated rights " which should be protected as
against third parties.'
An additional reason against allowing the occupied lands
to be selected by the state, under the grant, was the fraud
that had been practiced upon the officers of the land depart-
ment in obtaining the certificate. The court said : " Frauds
of this and like character have always been held sufficient
ground for vacating patents procured thereby," on the author-
ity of the cases cited below.^
Land conditionally granted in presenti to a railroad com-
pany is not unappropriated land subject to homestead only.'
A patent is void, if the land has not been offered at public
sale, and the entry was private.* A patent on a homestead
entry of land in an incorporated town is void.*
Adjoining-farm entry: Upon proof by the owner of an un-
divided half-interest in a farm, that a homestead entry on ad-
joining land is made for the use of the farm, and that all
requisites have been observed, the entry may be passed for
patenting. An adjoining-farm entry of eighty acres of sur-
veyed land, at the double price required, may be secured by
one who already owns eighty on which he resides., Alto-
gether, a settler cannot have homestead in more than a hun-
dred and sixty. He is not obliged to eke out his smaller farm
by taking enough additional to reach the raaxiriium, but may
take less. Knowingly taking less is considered a waiver of
any further right ; but taking less under a misapprehension
will not cut him off from further selection.'
1 United States v. Williams, supra; entry has been perfected by patent,
United States v. Stone, 3 Wall. 525 ; it may be canceled for fraud. Even
Hughes V. United States, 4 Wall. 233; though final proof has been made,
Frisbie v. Whitney, 9 Wall 187. this may be done. Judd v. Randall,
2 Johnson v. Towsley,, 13 Wall. 73 ; 36 Minn. 12.
Moore v. Robbins, 96 U. S. 530 ; 3 Blair Town Co. v. Kitteringham,
United States v. Minor, 114 U. S. 43 la. 463.
334; United States v. Curtner, 36 < United States v. Pratt, 18 Fed.
Fed. 396 ; United States v. Mullen, 7 708.
Saw. 466; MuUer v. United States, ^Burfenning v. Railroad Co., 46
118 U. S. 371 ; Moffat v. United Minn. 30.
States, 113 U. S. 24. Before a settler's ^Copp's Land Laws, pp. 393-5.
932 FEDEEAL HOMESTEADS.
§ i. Application and Settlement.
Affidavit: The applicant must make affidavit before the
register or receiver, at the land office of his district, that he
is of age, or that he is the head of a family, or that he has
served in the army or navy of the United States for the re-
quired time. He must also make oath that the application is
for his own benefit exclusively, and that the entry is for act-
ual settlement and the cultivation of the land. He must also
pay a fee : five dollars for the entry of eighty acres or less ;
ten for an entry of more.*
Settlement actual: A claimant must actually and personally
make a settlement upon the land, to avail himself of the law.
If he has employed another to make improvements for him,
who wrongfully avails himself of the situation and claims
homestead in the land, he has no action of damages against
such agent, because the principal had acquired no rights in
the land, and the action of the agent did not amount to a
legal fraud.^ On the other hand, the pre-emptor cannot ac-
quire homestead right for another. He has no right which
he can convey, acquired by pre-emption only. He cannot sell
his improvements to a purchaser who becomes the occupant
of the land so as to convey any homestead right or to cause
the homestead character to attach to the land.' So, jf public
lands have been certified to the state.*
A settler's possessory claim was sold by the sheriff under
execution. The settler subsequently entered the land as home-
stead under act of congress, and was then adjudged to have
acquired from the "paramount proprietor" a right and inter-
est not existing in him at the date of the sheriff's sale, which
vested in him the right of possession so that he could not be
ejected by the purchaser at the sheriff's sale.' Meanwhile the
purchaser was allowed the rents and profits. The court con-
ceded that the sheriff's deed had transferred all the interest
the settler had at the time. It could convey no more.'
1 R. S., § 3290. road Co. v. Fremont County, 9 Wall.
2 Walker v. Stone, 48 la. 93. 89 ; Railroad Co. v. Smith, 9 Wall. 95.
3 De Land v. Day, 45 la. 37. ' Emerson v. Sansome, 41 Cal. 553.
< Bellows V. Todd, 84 la. 18 j Rail- ^ Freeman v. Caldwell. 10 Watts, 9 ;
England v. Clark, 4 Scam. 486.
APPLICATION AND SETTLEMENT, 933
Valid possession: A valid entry gives the right of posses-
sion as against a prior wrongful possessor, though the latter
may not be disturbed. One who has made entry and obtained
actual possession cannot be ejected by a former occupant
whose possession was illegal.^ Mere occupancy of the land by
one who has purchased the improvements made upon it by a,
pre-emptor cannot convert it into a homestead.^ Mere filing
upon a piece of land creates no ownership.'
The possessory right must be exclusive ; therefore no home-
stead entry can be made by tenants in common.*
The right of pre-emption can be acquired and exercised by
individual persons only — not by partnerships. It is for the
benefit of the applicant and not for others.' The right of
homestead is limited to individuals to the exclusion of firms
and tenants in common, for the same reasons. There is an
exception in favor of the heirs of a deceased settler. The
heirs of deceased parents take as tenants in common, and, as
such, may perfect a homestead entry by making final proof.
They may thus obtain the patent to which their parents, or
either of them, would have become entitled had not death
prevented.*
Commutation: A homestead settler may pay the minimum
price for the land he has entered; during the five years required
for his occupancy under the homestead provision, and obtain
a patent as a pre-emptor upon compliance with the other requi-
sites.' By doing so, he virtually makes an original entry : so
a judgment in ejectment rendered before the commutation
does not prevent him from proving his title under the com-
mutation.' The claimant dying before the expiration of the
five years period, his widow may commute the entry.'
1 Goodwin v. McCabe, 75 Cal. 584 Hosmer v. Duggan, 56 CaL 361 ; Davis
2 De Land v. Day, 45 la. 37. v. Scott, 56 Cal. 165. Compare Emer-
sSchoolfield v. Houle, 13 Colo. 394 son v. Sansome, 41 Cal. 553.
iReinhart v. Bradshaw, 19 Nev. SU. S. Eev. Stat, §§ 2363, 3390;
355 ; Nickals v. Winn, 17 Nev. 18^
Atherton v. Fowler, 96 U. S. 513
Hosmer v. Wallace, 97 U. S. 575
Trenouth v. San Francisco, 100 U. S.
351 ; Smelting Co. v. Kemp, 104 U. S,
647 : Frisbie v. Whitney, 9 Wall. 193
Johnson v. Towsley, 13 Wall. 73
Co well V. Lammers, 10 Saw. 346
Copp's Land Laws, 56 ; Miller v. Lit-
tle, 47 Cal. 350 ; Oaks v. Henton, 44
la. 116.
6 Crumb v. Hambleton, 86 Mo. 501.
'RS., § 3301.
8 Thrift V. Delaney (Cal.), 10 Pac.
475.
9 Perry v. Ashby, 5 Neb. 291.
934: FEDEEAL HOMESTEADS.
Abandonment: Abandonment of the land for a period of six
months or more, after filing the affidavit and making entry,
causes it to " revert to the government," in the language of
the statute, though it rather remains the property of the gov-
ernment, since the title has never passed. The settler forfeits
all his present and prospective rights.*
Proof of the abandonment to the satisfaction of the register,
made after notice to the settler giving him opportunity to
contest the charge of non-occupancj'^ for the time stated, is
necessary to enable that officer to act in the premises.^
The time for the commencement of residence may be twelve
months from the date of the application, when allowed hy the
proper officer for " climatic reasons." '
The statutes allow the rule concerning six months' absence
to be relapsed when crops have been greatly injured or de-
stroyed by grass-hoppers.*
The homestead is not necessarily abandoned by the husband's
desertion of it and his wife and family who I'eside thereon.
She becomes the head of the family under such a circumstance, ,
and the entry will not be canceled to her injury.'
§ 5. Soldiers' and Sailors' Homesteads.
How secured: A person in the military or naval service,
whose family, or some member of it, resides on land which he
wishes to enter, on which settlement and improvement have
been made in good faith, may make the necessary affidavit
before his commanding officer. This affidavit, when>filed with
the register by the wife or other representative of the appli-
cant, shall be as effective as though sworn before that officer,
if the fees and commissions are paid." So, an applicant may
make his affidavit before the clerk of his county, and have it
transmitted to the register or receiver, if because of distance,
bodily infirmity or other good cause he cannot attend at the
land office of the district where the land is situated. He must
have made the necessary settlement and improvement, how-
ever ; and must send the legal fees and commissions to the regis-
ter and receiver.' WilfuUj'^ false swearing to the excusatory
1 R. S., § 3297. » 1 Copp's Land Laws, p. 364.
nb. 6R.S., §2293.
3 Act March 3, 1881. 'R. S., § 2294. i
« Gould & T.'s Notes on R. S., p. 531.
SOLDIKES' AND SAILOES' HOMESTEADS. , 936
facts of an affidavit, by an applicant, is perjul-y.* And this is
so, though he swear before, the clerk of a county other than
that in which the land claimed is situated, according to the
last cited section of the homestead act.^
What service: Fourteen days' service in the army or navy of
the United States during war, legally ren(iered, followed by an
honorable discharge, will relieve from the condition that the
applicant for homestead benefit must be twenty-one years of
age.'
Ninety days of such service to the United States, with such
discharge, entitle the soldier or sailor who has remained loyal
to the government, to a patent to one hundred and sixty acres
of the public land. He has six months, after locating his
homestead and filing his declaration, within which to make
his entry and to begin to improve.*
The rules requiring occupancy and limiting the quantity of,
land, under the general law, are not applicable to the honor-
ably discharged soldier or sailor ; he is subject only to the spe-;
cial provisions relative to him, in these respects.^
The time he has spent in the service is counted as part of
that required for residence ; the term of enlistment is also
credited upon the time, if he has been discharged in conse-
quence of wounds or disability incurred in the line of duty ;
but there must be actual occupancy of a year at least.'
Soldier's Ghildren: The right of a deceased soldier's chil-
dren, to locate and enter eighty acres on the public domain as
an additional homestead, may be sold and assigned as personal
property. The guardian of such children may sell this right,
in their behalf, to a third person.
Justice Brewer, in a case in which he declared this, said :
" This right to enter and locate eighty acres was a thing of
value — something which enlarged the estate of the minors —
was property. It was personal property, going with them
where they went ; could be exercised and enjoyed anywhere ;
did not descend to the heir ; was not attached to any particu-
lar tract of land ; was therefore neither permanent, fixed nor
1 United States v. Hearing, 36 Fed. 'Rose v. Lumber Co., 73 Cal. 385;
744. R S., § 3306.
i lb. « R. a, § 3305. I
i'R.S.,§3300. 4E.S.,§2304
936 FEDEKAL HOMESTEADS.
immovable. It was a right of selection and' taking. Like all
property, it was the subject of sale. The right to sell property
need not in terms be granted ; it exists if it is not in terms
withheld. To preserve the Indians' title", an express restric-
tion is inserted in the patent. The same, or something equiv-
alent, is always necessary to stay the power of disposal which
attends the ownership of property. When this right has been
exercised, the location and entry made, who would doubt the
right to sell the land? Yet, why should the right to sell exist
after the entry and not before? Congress has placed no re-
striction — who may ? It must be borne in mind that this is
not a case in which there is to be future consideration or future
duty. It is personal in that only they of a certain class can
avail themselves of the gift. It is not personal in the sense
that future services or future considerations are imposed.
Services already rendered during the war are the consideration.
The homestead duty of occupation or improvement has already
been performed. It amounts simply to this: In view of what
has been done, congress makes this gift. It places no restric-
tions on the donee but leaves him to use the gift as he sees fit.
Why may he not sell it? I see no satisfactory reason to the
contrary." '
§ 6. Executive Acts.
By land officers: Entry is allowed by action of the register
and receiver of the land office. Their action may be super-
vised by the commissioner, and his decision may be affirmed
or reversed by appeal to the secretary of the interior. De-
cisions of the land officers on the facts when no question of
fraud is involved are not reviewable by the courts ; but the
rule is otherwise as to questions of law.^ A decision by the
secretary on a survey is not reviewable by the courts unless
there is something out of the ordinary requiring their inter-
position.' While he may pass finally on certain matters of
fact, he can exercise no judicial power; while he may make
I Mullen V. Wine, 26 Fed. 306. Co., 128 IT. S. 673 ; Lee v. Johnson.
2Hosmer v. Wallace, 47 Cal. 461; 116 0. S. 48. See Hill v. MUler, 36
Johnson v. Towsley, 13 Wall. 72 ; Mo. 183.
United States v. Iron Silver Mining a New Orleans v. Paine, 49 Fed. 12,
EXECUTITB ACTS. 937
rules of an executory character, lie cannot legislate.' He has
no right — and congress can confer on him no right — to im-
pose oaths and render their false taking a criminal offense.^
It is held that only when the law has been misconstrued by
the executive officers in applying it to the established facts,
and have consequently denied parties their just rights, or
when misrepresentations and fraud have misled those officers
and caused the rendition of wrong decisions, that courts can
interfere and set aside their action upon proper proceeding.'
It has even been said that the decision of the secretary of
the interior upon "a mixed question of law and fact" is final.*
If luw be the predominant ingredient in the compound, would
not the question be reviewable by the courts upon proper
issue joined? The court which took this view in the last
cited case referred approvingly to those of the preceding
note, but gave no authorities on the finality of the secretary's
decision of a mixed question of law and fact. The rule was
stated as, a settled one; the statement was: "The decisions of
the secretary upon the facts of a case and upon mixed ques-
tions of law and fact are always final, and the decisions of the
courts have generally sustained the secretary in the absence
of positive fraud or a mistake wherein the-unsuccessful party
has been denied some right which materially affected his in-
terests, or where misconstruction of the law has worked a
hardship and injury upon an interested party." The latter
part of this excerpt seems a little Viague, since the courts can-
not know of the denial of rights when the officer's decision is
final — ■ not reviewable.
Certificate: The patent cannot be given till five years after
the entry. . When that time has expired or within two years
thereafter, the homestead holder may make his final proof that
he has occupied and cultivated the land for five years from
the filing of the affidavit ; that none of it has been alienated
except as permitted by section 2288 of the Eevised Statutes,
1 The department regulations must United States v. Minor, 114 U. S. 333 ;
be reasonable, or they will be held Marquez v. Frisbie, 101 U. S. 478;
void. Anchor v. Howe, 50 Fed. 366. United States v. Throolimorton, 98
2 United States v. Bedgood, 49 Fed. U. S. 61 ; Moore v. Eobbius, 96 U. S.
54. 530 ; Johnson v. Towsley, 13 Wall. 72.
'Quinby v. Conlan, 104 U. S. 430; < Porter v. Bishop, 25 Fla. 749, 759.
038 FEDERAL HOMESTEADS.
and that he will bear true allegiance to the government of the
United States. Upon making this proof, he is entitled to a
patent.
In the event of his dying between the time of making
affidavit and entry, and the time for making proof, his widow
may act in his stead. In case of her death during this time,
his heirs or devisees may act. When a widow has made for
herself the original affidavit and entry and has died before
making final proof but within the time allowed therefor, her
heirs or devisees must prove by two witnesses that she or they
have resided upon the land and cultivated it for five years from
the filing of her affidavit, and must make the asseverations of
non-alienation and allegiance as above.^ The settler may
shorten the time two years by planting trees as prescribed.^
The proofs and oath may be made before the judge of any
court of record of a county or territorial district where the
land is situated ; or before the clerk in the absence of the judge.
The effect is as though they were made before the register or
receiver of the land district. False swearing to material
matter of proof, in the testimony of a witness, or in the oath
of the applicant, is perjury.'
Public lands become private when a certificate, due and
duly issued, has been obtained by a citizen. Not merely cash
entries, but pre-emption and homestead entries, are subject to
this rule. Soon as the final certificate recognizes the title of
the homestead in the citizen, the government loses its title ; the
land ceases to be public ; the grant of it to a railroad corpora-
tion or any other party, by congress, would be a nullity.*
Segregation: While a homestead entry is of record and is
held valid by the land officers whose decision has not been
overruled, the land is segregated from the public domain and is
not subject to further grant by congress. It has already been
appropriated and cannot be again appropriated while a subsist-
ing entry remains in force. It has been severed from the rest of
the government lands, and therefore will not be embraced in
any general terms of appropriation, though there be no special
exception expressed in its favor. This has been so often
1 R. S., § 2291. 4 Witherspoon v. Duncan, 4 Wall.
2 g 3317. 210 ; Carroll v. SaflEord, 3 How. 441.
3 §2291.
EXECUTIVE ACTS. ' 939
averred "that it may now be regarded ' as one of the funda-
mental principles underlying the land system of this country." '
The transition of title from public to private ; from govern-
ment ownership to that of the homestead settler, is not such as
to preclude reversion for fraud or any ground that would affect
any title. There may be such defect as to defeat the con-
firmation in the land office; there may be omission of requi-
sits resulting in forfeiture; there may have been fraud: so
the title may be declared void in a judicial proceeding.
When the entry has been canceled or forfeited, the land re-
verts to the United States and is treated as a part of the public
domain, never segregated therefrom ; so it is now again sub-
ject to original entry.^
Cancellation of entry: "Under the homestead law, three
things are needed to be done in order to constitute an entry
on public lands : First, the applicant must make an affidavit
setting forth the facts which entitle him to make an entry ;
second, he must make a formal application ; and, third, he must
make payment of the money required. When these three
requisites are complied with, and the certificate of entry is ex-
ecuted and delivered to him, the entry is made • — the land is
entered. If one of these integral parts of an entry is defect-
ive; that is, if the affidavit be insufficient in its showing, or if
the application itself is informal, or if the paj'raent is not made
in actual cash, the register and receiver are justified in reject-
ing the aipplication. But if, notwithstanding these defects, the
application is allowed by the land officers, and a certificate of
1 Hastings v. Whitney, 132 U. S.- cancellation for abandonment, it had
357, 360 ; Wilcox v. Jackson, 13 Pet. passed back into the mass of public
498. lands and was not brought within
2 Kansas Pac. Ey. v. Dunmeyer, the grant; and, upon that claim,
118 TJ. S. 629. " A homestead claim ousted the defendant in error, who
had been made and filed by one afterwards brought his action against
Miller, and recognized by a certificate the railroad company for a breach of
of entry, before the line of the com- covenant, obtaining a judgment in
pany's road was located. Subse- the court below, which was after-
quently to the location he abandoned wards affirmed in this court." Mr.
his entry and took a title under the Justice Lamar's statement in 133 U.S.
railroad company, and his homestead 361-3. The homestead was held to
entry was canceled. Dunmeyer [the • have reverted to the government
defendant in the above cited case] upon its abandonment by the first
then entered the land under the claimant — not to tho railroad com-
hpmestead law, claiming that, by the pany by virtue of their grant.
94:0 FEDERAL HOMESTEADS.
entry is made of record, such entry may be afterwards can-
celed, on account of these defects, by the commissioner, or,
on appeal, by the' secretary of the interior, or, as is often the
practice, the entry may be suspended, a hearing ordered, and
the party notified to show, by supplemental proof, a full com-
pliance with the requirements of the department; and, on
failure to do so, the entry may then be canceled. But these
defects, whether they be of form or substance, by no means
render the entry an absolute nullity." '
The holder of the certificate has been held to have only a
determinable fee, subject to termination by cancellation of
the certificate /b?^ cause, before the issue of the patent, by ac-
tion of the commissioner.^ And, before patenting, it is held
that the general land office has power to confirm or cancel an
entry at any time ; ' but this general holding has been some-
what modified and explained.*
The rule is that there can be no cancellation of the certificate
except for cause — such as shows its issue to have been erro-
neous. When duly issued, to a homestead occupant who is
entitled to it, it is evidence of his equitable title and his right
to the patent evidencing his legal title: so the government
itself is powerless to take it away merely at will.^
§ 7. Judicial Action.
Judicial remedies: While the executive officers are discharg-
ing their duties, imposed by law, in disposing of the public
1 Hastings v. Whitney, 132 U. S. 354; Jones v. Tainter, 15 Minn. 512;
863-4; Newhall v. Sanger, 93 U. S. JMcCue v. Smith, 9 Minn. 337 ; Randell
761. See eases cited by the court in v. Edert, 7 Minn. 359.
Hastings v. Whitney ; Graham v. * Cady v. Eighmey, 54 la. 6:f5 ;
Hastings, 1 Land Deo. 380 ; St Paul, Sillyman v. King, 36 la. 207 ; Arnold
etc. V. Forseth, 8 Land Deo. 457 ; v. Grimes, 3 la. 1 ; Moyer v. McCul-
South Minnesota, etc. v. Gallipean, 3 lough, 1 Ind. 339 ; Boyce v. Danz, 29
Laod Dec. 160, and others. See, as to Mich. 146 ; Brill v. Styles, 35 111. 805 ;
the right of the secretary of the in- Streoter v. Rolf, 13 Neb. 388 ; Cor-
terior to set aside a survey, Knight nelius v. Kessel, 58 Wis. 237 ; Aldrich
V. U. S. Land Ass'n, 143 U. S. 161. v. Aldrich, 37 III. 32; O'Brien v.
2McLane ». Bovee, 35 Wis. 28; Perry, 28 Mo. 500; Perry v. O'Han-
Trulook V. Taylor, 26 Ark. 54. Ion, 11 Mo. 585; Morton v. Blanken-
3 Gray v. Stockton, 8 Minn. 473 ; ship, 5 Mo. 346 ; American Mortgage
Camp V. Smith, 2 Minn. 131 ; State Co. v. Hopper. 48 Fed. 47 ; Smith v.
T. Batolielder, 5 Minn. 178. Ewing, 11 Sawy. 56; Wilson v. Fine,
< Sharon v. Wooldrick, 18 Minn. 14 Sawy. 324.
JUDICIAL ACTION*
941
lands under the homestead and pre-emption acts, courts will
not attempt to control them by injunction or mandamus}-
But when a patent is ready for delivery,, mandamus will be
issued to compel the proper officer to deliver it to the person
entitled to it.^
It is held that courts cannot investigate the legality of the
title to land on the complaint that the settler has been de-
prived of it by the fraud and perjury of a contestant, until
the title has been vested in a party subject to their jurisdic-
tion.' Appeal lies to higher executive oificers when subordi-
nate ones are charged by interested parties to have erred in
the exercise of their discretionary and other powers.
Courts will not interfere when a question is pending before
the land department involving the right to enter and purchase
land.^
Courts on question of fraud: There can be no doubt of the
power of the courts to pass upon questions of title to home-
stead lands, to inquire into questions of fraud alleged to have
been perpetrated by or upon the land officers, and to settle
questions between litigants arising upon those officers' rulings.
Courts will not interfere when a decision of such executive
and 2'Mas^■-judicial officers appears to have been rendered reg-
ularly ; that is, errors of judgment upon the facts of a con-
tested case are generally not reviewable by the courts. Newly-
discovered evidence may render it the duty of courts to give
relief. Ordinarily, land-office decisions, on matters of fact, in
contested cases, are final.'
^;
1 Marquez v. Frisbie, 101 U. S. 473 ; 648 ; Johnson v. Towsley, 13 Wall. 72 ;
The Secretary v. McGarrahan, 9 Minnesotd v. Bachelder, 1 Wall. 109 ;
Wall. 298 ; Litchfield v. The EegLs- Lindsey v. Hawes, 2 Black, 554 ; Shep-
ter, 9 Wall. 575 ; Gaines v. Thomp- ley v. Cowan, 91 U. S. 380 ; French v.
eon, 7 Wall. 347 ; United States v. Fyatf, 93 U. S. 169 ; Moore v. Robbins,
The Commissioner, 5 Wall. 563 ; 96 U. S. 530 ; Marquez v. Frisbie, 101
Koehler v. Barin, 35 Fed. 161. U. S. 473 ; Vance v. Burbank, 101 U.-
2 United States v. Schurz, 103 U. S. S. 514; Quinby v. Conlan, 104 U. S.
378. See Houghton v. Hardenberg, 430 ; Smelting Co. v. Kemp, 104 U. S.
53 Cal. 181; Cruz v. Martinez, 53 636; Steel v. Smelting Co., 106 U.
Cal. 239 ; Sands v. Davis, 40 Mich. 14. S. 447 ; Baldwin v. Stark, 107
8 Empey v. Plugert, 25 N. W. 560 U. 8. 463 ; Rector v. Gibbon, 111 U. S.
(Wis.). 276 ; Butterworth v. Hoe, 112 U. S. 50 ;
* Casey v. Vasser, 50 Fed. 258. United States v. Minor, 114 U. S. 233 ;
6 Warren v. Van Brunt, 19 Wall. Van Sant v. Butler, 19 Neb. 351 ; Kin-
942 FEBBKAL, HOMESTEADS.
If there has been fraud or mistake in the issue of the patent,
or in procuring its issue, the title to the homestead is not com-
plete beyond recall. The patent may be vacated by judicial
action.' It may be impeached, by action at law, on the ground
that, at the time of final proof, mineral deposits were known
to exist in or upon the land.^ The fact of the existence of
mineral deposits may be shown at the time final proof is
offered, and the issue of the patent may thus be defeated.'
§ 8. Settlers' Rights Relative to Railroads.
Claims in conflict: Homestead entries of record, prima
facie valid, are held to be among the exceptions to a grant in
aid of railroad construction, as those to which it " shall appear
. . . that the right of pre-emption or homestead settle-
ment has attached." *
What has been granted, already to a settler, on condition
that he comply with the statutory requisitions, cannot be
granted to another while the settler is in occupancy and is
performing the conditions required of him.
A homestead entry, under the act of congress authorizing it,'
having been canceled by the proper authorities, the homestead
was afterwards patented to the person making the entry, by
virtue of a subsequent act of congress.' Meanwhile, a rail-
road company had come into possession of the land, claiming
title ; and the wife of the settler having made with it a con-
tract to purchase the land, joined with her husband in assign-
ing the contract to secure his obligations ; and the assignee
foreclosed and sold her interest. After the husband had se-
cured the patent for the land on his original entry, he was
held to hold title paramount to that held by the purchaser at
the sale.' He signed the assignment with her at a time when
ney v. Degman, 13 Neb. 337 ; Rush v. » lb.; R S., § 3358.
Valentine, 13 Neb. 513 ; Aiken v. * Hastings, etc. R Co. v. Whitney,
Ferry, 6 Saw. 79 ; Hess v. Bolinger, 48 34 Minn. 538, in exposition of Act of
Cal. 349 ; Rutledge v. Murphy, 51 Cal. Congress, July 4, 1806, granting lands
388 ; Powers v. Leith, 53 Cal. 711 ; to the state of Minnesota ; 14 U. S.
Dilla V. Bohall, 53 Cal. 709; Mace v. St at Large, 87; U. S. Rev. Stat,
Merrill, 56 Cal. 554. §§ 3389, 2390, 2393 ; Bardon v. North-
1 United States v. Missouri, etc. R ern Pac. R Co., 13 Sup. Ct Rep. 856.
Co., 141 U. S. 358. 5 Act of May 20, 1863.
2 Kansas City Mining, etc. Co. v. 6 Act of April 21, 1876.
Clay (Arizona), 39 Pac. 9. 'Kraft v. Baxter, 88 Kas. 351.
settlek's eights relative to kaileoAds. " 943
I
his rights under the entry had been denied by the proper fed-
eral authorities, without any design to deceive, so far as the
facts show. His debt, for which the wife's contract to pur-
chase was assigned, and upon which it was foreclosed, ante-
dated the patent. The statute forbids forced sale to satisfy
any debt contracted prior to the issue of the patent. His title
to the land was inchoate when the assignment was made, but
the patent retroacted so as to protect his homestead right
from the date of entry. The validity of the entry depended
upon his having made it for his own benefit,' which he was
bound to show by his oath. He could have obtained no title
at all without coming within the statute which offered him a
homestead — not an interest which he could vest in another by
contract while the title was being perfected.
As both husband and wife signed the assignment by which
they caused his debt to be" paid with the money of the pur-
chaser at the foreclosure, they were in duty bound to reim-
burse him ; and doubtless he had a good cause of action to
recover the money, with no interposition of the doctrine of
caveat emptor, since he could not foresee that the canceled
entry would be reinstated, however much he may have tried
to heed the maxim ; yet he had no lien upon the homestead.
Vested right: When a homestead claim has attached, sub-
seq^uent grants cannot dislodge it.
The government "limited its gifts to lands to which a
homestead right had not attached. ' Whenever it accepted a
homestead entry, its acceptance removed the land from the
terms of the grant [to the railroad company]. What should be-
come of the matter thereafter, as between the person making
the entry and the government, was a question that did not af-
fect the railway company. It had no right to inquire. The
government might have waived all the informalities and de-
fects in the person, or in the occupation, and issued the pat-
ent. Whether it did or not was a matter of which the rail-
road company could not complain. It was enough for it that
upon the face of the records there was an apparently valid
home entry, one which the government had recognized, and
one which it might finally permit to ripen into a perfect title.
The homestead claim, whether good or bad, in the language
of the act, attached; and that is all the railroad company could
944 FEDBEAL HOMESTEADS.
inquire into. That being settled, the land did not pass under
this grant " from the government to the railroad company.^
If a homestead be entered and then abandoned, it will not
be excepted from a grant of land to a railroad company of
which it forms a part.^
Grant to a state: The federal government having condition-
all}^ granted to a state — for the purpose of aiding railroad
construction — alternate sections of land (on each side of the
road line a strip ten miles wide), retaining'the even-numbered
sections, it was held that, " within the indemnity limits," the
legal right to the even sections continued to be in the govern-,
ment-grantor, till selected. And those sections were open to
homestead pre-emption. Eights vested in pre-emptors, under
the homestead laws, were held not subject to defeat by sub-
sequent selection by the railroad company, even though it
should obtain a patent therefor.' Such patent may be can-
celed hj means of a bill in equity.'
Title to a homestead being in the United States till the is-
suance of a patent to the settler, or his becoming entitled to
it, no adverse title could be obtained by another through the
operation of prescription or limitation laws of any state."*
Right of way: A settler on the public domain, under the
homestead or pre-emption laws, may grant right of way to a
railroad company, and transfer land for such purpose by war-
ranty against his own acts, as authorized by congress.' He
may do this before the issue of his patent.*
A federal homestead, like any other realty, may be con-
demned for road purposes, at any stage of the settler's proba-
1 Mclntyre v. Roeschlaub, 37 Fed. ' United States v. Mo. eta R Co.,
556, Brewer, J., construing "at- 141 U. S. 358 ; 12 Sup. Ct Eep. 13.
tached" In 13 U. S. Stat, at L., <Kedfield v. Parks, 183 U. S. 239,
p. 493 — the Union Pao. Land Grant 244 ; Lindsey v. Miller, 6 Pet 666 ;
Act; Railway v. Dunmeyer, 113 U. Bagnell v. Broderick, 13 Pet 436;
S. 629, Miller, J.; Sioux City, etc. Gibson v. Chouteau, 13 Wall. 93,
Land Co. v. Giffey, 143 U. S. 40. 101-4 ; United States v. Thompson,
2 Young V. Goss, 43 Kas. 503, In 98 U. S. .486 ; Rector v. Ashley, 6
which Kansas Pac. R. Co. v. Dun- Wall. 143.
meyer, 113 U. S. 639, is distinguished ; 5 Rev. Stat, §2288.
Emslie v. Young, 24 Kas. 733, cited ; « United States v. Reed, 38 Fed.
Act of Congress, March 3, 1863, donat- 483 ; Rube v. Sullivan, 33 Neb. 779 ;
ing lands to the state of Kansas to aid Union Pacific E. Co. v. Watts, 2 Dill,
railroads, etc, 810.
settler's eights EELATITE to EAII.EOADS. 945
tionary period. "When it is condemned, he is entitled to comi-
pensation, whatever his interest may be.' Though not the
owner till he has made final proof, he is entitled to whatever
damages he may suffer by the condemnation. He is treated
as an owner, though the measure of damage is different in his
case from that of an owner.^
It will be observed that the settler's right to grant the way
is purely statutory. He cannot alien or incumber his home-
stead prior to the patent, for other purposes. The general
homestead conditions are equivalent to a covenant. And a
covenant against incumbrances precludes the granting of the
right of way to a railroad company. Such grant of land
would be a breach of the covenant, since it is an incumbrance,'
The general subject may be illustrated by reference to the
homestead laws of the states. Eight of way is an easement
of perpetual use, and is therefore almost equivalent to fee-
simple title ; it prevents the owner from the exercise of do^
minion. Could such an easement be granted without molest-
ing the enjoyment of the homestead, there would seem to b&
no good reason why a married owner could not give it with-
out the assent of the other marital partner,* since, in suck
case, the incumbrance would not be such as to defeat the pur-
pose of the law in protecting families in their homes. It.ean
hardly be conceived, however, that a railroad can cross- a
farm, or the grounds of a"town residence, without disturbing
the dominion and enjoyment of the property. It is held,
therefore, that the granting of right of way by a married man,
through his homestead, requires the consent of his wife.'
Where there is no constitutional or statutory requirement
1 Burlington R Co. v. Johnson, 38 Herrick v. Moore, 19 Me. 313; Haynes
Kas. 142. V. Young-, 36 Me. 557 ; Lamb v. Dan-
2 Ellsworth, etc. R Co. v. Gates, 41 forth, 59 Me. 332 ; Pilcher v. Atkin-
Kas. 574. son, etc. R Co., 38 Kas. 516; Kellogg
3 Mitchell V. Warner, 5 Ct 497
Hubbard v. Norton, 10 Ct. 428
Prichard v. Atkinson, 3 N. H. 335
Clark V. Estate of Conroe, 38 Vt.
469; Kellogg V. Ingersoll, 3 Mass. 97
Prescott V. Trueman, 4 Mass. 637
Harlow v. Thomas, 15 Pick. 68 ; Pres- 38 Kas. 516.
cott V. Williams, 5 Met (Mass.) 433 ;
60
V. Malin, 50 Mo. 496 ; Barlow v. Mc-
Kinley, 34 la. 69 ; Beach v. Miller, 51
111. 206.
* Chicago & N. W. R Co. v. Swin-
ney, 38 la. 182.
'5 Pilcher v. Atchison, eta R Ca,
946 FEDEEAL HOMESTEADS.
that her consent must be established by written evidence,
other testimony will suflQce.'
Where the law allows the husband to lease the homestead
without the consent of his wife, the reason for his inability to
grant the right of way across it by his individual act may not
apply ; ^ but there is difference between leasing for a time and
granting right of way without limit as to duration.
Government grant of right of way: Though congress has
granted the right of way to a railroad company through pub-
lic lands, it has given no authority, and could give none, for
the company to run a road through a settler's homestead
without first proceeding to have the land condemned in the
usual way. Though no patent has been issued, the homestead
holder who has performed the conditions of the government's
donation, or is performing them, has rights whi^ch the railroad
company must respect. A disregard of those rights, evinced
by running a road through the homestead, will give right of
action for trespass which the settler may exercise against the
company.'' And if a road be operated through such land while
the route has not been " definitely fixed " and a map or pro-
file of it filed in the ofiice of the department of the interior,
the trespass will be deemed continuous.*
§ 9. Alienation Inhibited.
Sale in futuro illegal: The supreme court has decided that
a contract by a homestead' holder to convey his homestead, or
a part of it, in future, when he shall have acquired title from
the government, is void as against public policy; that such a
contract cannot be enforced notwithstanding a valuable con-
sideration received from the purchaser by the seller. Mr. Jus-
tice Brewer, for the court, said : " Section 2290 of the Revised
Statutes provides that a purchaser applying for the entry of
a homestead claim shall make affidavit that, among other
things, 'such application is made for his exclusive use and
benefit, and that his entry is made for the purpose of actual •
1 Ih. nitoly fixed," Wood v. Railroad, 104
2 Held so. Randall v. Texas Can- U. S. 329; Grinnell v. Railroad Co.,
tral R Co., 63 Tex. 586. 103 U. S. 739 ; Leavenworth, etc. R.
3 Savannah, etc. R,Co. v. Davis, 25 Co. v. United States, 93 U. S. 733;
Fla. 917. Schulenberg v. Harriman, 31 Wall
*Jt). See, as to a route being "defi- 44 ; Hutchings v. Low, 15 Wall. 77.
ALIENATION INHIBITED. 947
settlement and cultivation, and not either directly or indi-
rectly for the use or benefit of any other person ; ' and sec-
tion 2291 . . . requires that the applicant make ' affidavit
that no part of such land has been alienated.' . . . It is
true that the sections contain no express prohibition of aliena-
tion, . . . yet the homestead right cannot be perfected in
case of alienation, or contract for alienation, without perjury-
. . . Such a contract is against public policy and vrill not
be enforced in a court of equity." ' The facts vrere that the
homestead enterer and his wife gave a deed in 1876, by which,
for valuable consideration then paid, they agreed to deed a
portion of their homestead in 1881 (when they would have
the patent) to the party of the second part.
An agreement by a homestead settler, to convey land when
right to it shall have been acquired in the future, being void,
is enforceable neither in equity nor at law. No alienation
can be made, or validly agreed upon, before the completion
of the right to the title. A prior contract to convey is void
because it is against public policy.^
There can be no completion of the homestead settler's right
before he has complied with all the conditions accompanying
the governmental donation. He cannot have title, and can-
not be the owner of his home, until he has complied.^ He
must prove occupancy for the requisite time, and also that he
has not sold his claim.* Mere settlement upon the land con-
fers no property upon him, as against the government. While
his period of occupancy and his conformity to requirements
will be respected by the government from its incipiency, and
while nothing will be done to thwart his efforts to make him-
self a home on the public domain, he can have no legal title,
and no legal right to one, till he shall have wholly done his part.
There is a parallel to this in the pre-emptor's case. Before
I Andersop v. Carkins, 135 U. S. 2 Cox v. Donnelly, 34 Ark. 762 ;
483 ; Mellison v. Allen, 30 Kas. 383 ; Seymour v. Sanders, 3 Dill. 437 ;
Brake v. Ballon, 19 Kas. 397 ; Daw- Weeks v. White, 41 Kas. 569 ; Clark
son V. Merrille, 3 Neb. 119 ; Oaks v. v. Bailey, 5 Or. 348 ; St Peter Co.
Heaton, 44 la. 116 ; Aldrich V. Ander- v. Bunker, 5 Minn. 153; Warren v.
son, 2 Land Dec. 71 ; Nichols v. Coun- Van Brunt, 19 Wall. 646.
cil, 51 Ark. 26 ; Sherman v. Eakin, 47 " Thrift v. Delaney, 69 Cal. 188 ;
Ark. 351 ; Marshall v. Cowles, 48 Ark. Shinn v. Young, 67 Cal. 535. , .
362 ; Red River, etc. R. Go. v. Sture, * Lindsey v. Veasy, 62 Ala. 421.
33 Minn. 95.
948 FEDEEAL HOMESTEADS.
title by pre-emption can be acquired, the purchase-money
must be paid, and the required proof must be made.'
But it has been held that when he has become entitled to
enter and purchase, he may sell his right ; that if the pur-
chaser knows that there is another claimant who may contest
the title, and buys with his knowledge, he is liable for the
price though the title fail; that, under such circumstances, he
acts on his own judgment and takes the risk of the title as
to its relation to the other claimant's pretension.^ His posi-
tion seems to be like that of one who takes a quitclaim deed ;
he cannot recover the price when the title fails.' He, buying
the pre-emptor's right to enter and purchase, buys no land
and gets no warranty of title to land. But if he should buy
the pre-emptor's interest when the right to purchase is sup-
posed to exist, yet the seller had no right and took the money
for nothing, cannot that money be recovered? Assuredly —
or there would be no such thing as justice. If the purchaser
should buy without notice of a contesting claim, he certainly
could recover the price for which he would have no equiva-
lent. And it does not appear that, even with notice, he ought
to lose his money paid to a seller who gave nothing.
The non-alienation provision of the pre-emption law of
congress has been construed as follows : " That clause of the
pre-emption laws of the United States * which declares ' all
assignments and transfers of the rights hereby secured prior
to the issuing of the patent shall be null and void,' does not
make void a contract for the sale and transfer of the rights
which a settler expected thereafter to acquire, but refers only
to a sale and transfer of the rights already secured." *
The reason why the homestead entererer cannot alienate
until he is fully entitled to the land is his inability to com-
plete the acquisition by making the required oath if he has
sold before or contracted to sell, as pointed out by the su-
preme court in the extract above given. If his purpose in set-
1 Frisby v. Whitney, 9 Wall 195 ; Governeur v. Elmendorf, 5 Joho. Ch.
Low V. Hutchings, 41 Cal. 634; Hut- 79.
ton V. Frisbie, 37 CbL 475. » Earle v. De Witt, 6 Allen, 520;
2 Beemia v. Bridgman, 43 Minn. Barle v. Bickford, 6 Allen, 549.
496 ; Bedford v. Small, 31 Minn. 1 ; * E. S., § 2363.
Perkins v. Trinka, 30 Minn. 341 ; « Taylor v. Baker, 1 Fla. 245.
ALIENATION INHIBITED. 949
tling was mere speculation, he cannot avail himself of the be-
neficent homestead provision made by congress.'
Sale, in the absence of inhibition, allowed: In the absence
of any statutory inhibition, express or implied, when no affi-
davit inconsistent with prior alienation is required, there is no
reason why the owner of an incomplete title may not sell and
convey whatever right he has. The sale of a title infuturo was
drawn in question before the supreme court, rendering it nec-
essary to pass upon the effect of a. proviso,^ which forbade
future sale, upon a sale made before the passage of the act.
Justice Miller, the organ of the court, expressed its opinion
that contracts made by actual settlers on ,the public lands con-
cerning their future title to be acquired of the government
and their present possessory right, are valid when not forbid-
den by positive law. This was held true, though there was no
statute of congress authorizing the acquisition of title when
the contracts were made. The property involved was part of
the city of Portland. After the contracts by which the pos-
sessors agreed to sell their yet unacquired titles, the act above
cited was passed, with the proviso inhibiting sale as aforesaid.
The court found in this an argument in favor of the validity
of the contracts and said that, so far from invalidating them,
Ihe inhibition of the future sale of the settlers' interests before
the issue of a patent created a strong implication in support
of the sales. To quote : " The right of the United States to
dispose of her own property is undisputed, and the right to
make rules by which the lands of the government may be sold
or given away is acknowledged ; but, subject to these well
known principles, parties in possession of the soil might make
valid contracts, even concerning the title, predicated upon the
hypothesis that they might thereafter legally acquire the title,
except in cases where congress has imposed restrictions on
such contracts." '
1 Grower v. Fletcher, 116 U. S. 380 ; 2 Oregon Donation Act, 1850.
Quinby v. Conlan, 104 U. S. 420; ' Lamb v. Davenport, 18 Wall. 307 ;
Worth V. Branson, 98 U. S. 118 ; Has- Myers v. Croft, 18 Wall. 291 ; Spar-
mer v. Wallace, 97 U. S. 575 ; Ather- row v. Strong, 3 Wall. 97 ; Thredgill
ton V. Fowler, 96 U. S. 513 ; Whit- v. Pintard, 12 How. 24 ; Southerland
taker v. Pendola (Cal.), 20 P. 680; v. Whittington, 46 Ark. 385; Gaines
Union Pac. E. Ca v. Kennedy (CoL), v. Molen, 41 Ark. 233.
20 P. 696.
930, FEDERAL HOMESTEADS.
In the absence of any inhibition, the pre-emptor may sell his
title infuturo}
An executory agreement to sell in future, upon completion
of the title, has been held to be strictly an alienation.*
§ 10. Incumbrances.
Inhibition of lien before completion of title: No lien can be
created on government land while the title remains in the
United States.' The patent is the settler's title'deed ; but as
he may have acquired the equitable title by compliance with
all requisites, including the required oath, so as to haVe an in-
disputable right to such deed, it is held that the actual issue
of the patent to him is not essential to his right to mortgage
the land.* ,
Statute construed: The statute : " No lands acquired under
the provisions " of the act ^ " shall, in any event, become liable
to the satisfaction of any debt contracted prior to the issuing
of the patent therefor," has been construed to be " manifestly
intended for the protection of the entryraan, to prevent the
appropriation of the land in invitwrn to the satisfaction of
debts incurred anterior to the issuance of the patent ; " and
the inference is drawn that " a mortgage given upon a gov-
ernment homestead after a final certificate has been issued,
but before the reception of the patent, is efficacious." * After
performing conditions, one who has entered government land
under the homestead laws, which exempt it from debts con-
tracted prior to the issue of the patent, may yet render it lia-
ble by voluntarily putting a mortgage upon it.' This would
be in the face of the settled doctrine of the supreme court of
1 Ih.; Camp v. Smith, 2 Minn. 131 ; < Webster v. Bowman, 35 Fed. 889 ;
Olson V. Orton, 28 Minn. 36 ; Robbins Axtell v. Warden, 7 Neb. 183 ;
V. Buun, 54 111. 48; Hayward v. Cheney v. White, 5 Neb. 261; Bel-
Ormsbee, 11 Wis. 3 ; Dillingham v. linger v. White, 5 Neb. 401.
Fisher, 5 Wis. 475. » U. S. Rev. Stat., § 2296.
2 Kingsley v. Gilman, 15 Minn. 59 ; 6 Lewis v. Wetherell, 86 Minn. 886 ;
Boydv. Cuddej-back, 31 111. 113; Con- Lang v. Morey, 40 Minn. 396. Bee
over V. Mut. Ins. Co., 1 N. Y. 290 ; Orr v. Stewart, 67 Cal. 275 ; Spiess v.
Masters v. Madison Ins. Co., 11 Barb. Neuberg, 71 Wis. 279.
624 ; Lane v. Maine Ins. Co., 13 Me. ' Lang v. Morey, 40 Minn. 396 ;
44 ; Burbank V. Rockingham Ins. Co., Nycum v. McAllister, 33 la. 374 j
24 N. H. 550. Jones v. Yoakam, 5 Neb. 365 ; Cheney
'Shoreman v. Eakin, 47 Ark. 351. v. White, 5 Neb. 261.
INCUMBEANCES. 951
the United States, if the mortgage be given before the taking
of the required oath to get the certificate ; for as, in such case,
the oath could not be truthfully taken, the right to the land
could not be completed, and the mortgage must fall to the
ground. Thei retroaction of the patent to the date of entry
would not legalize mortgages put upon government land by a
settler when he did not own it. The land is not liable for
any debt of the owner contracted before the issue of the pat-
ent ; 1 or, rather, his right to have it issued to him. It has
been held to be within the spirit of the legislation of congt'ess,
however, to allow an enterer to take in a partner and give
him an interest for advances, after entry and before patent-
ing;'' and there can be no doubt of this, if the interest be
given after the reception of the final certificate ; but how can
the settler swear that no part of his land has been alienated,'
if previously he has given an interest in the land to a partner?
If the advances received in consideration were for the making
of improvements, and only interest in them was conveyed,
there would seem to be no objection. The transaction was
for the good of the settler, it may be said, and therefore within
the spirit of the statute ; but the oath is in the letter, and the
requirement is not ambiguous.
Policy cmd law: If no public policy were concerned, justice
between mortgagor and mortgagee would seem to require the
performance of contracts made between them before the mar
turity of the former's title. It would not lie in his mouth to
deny the validity of a contract on which he had received in
money the equivalent of what he had promised to give in
land. Could his grantee, holding a quitclaim title from the
mortgagor bearing date later than that of the patent, question
the legality of a mortgage bearing a prior date?* But, under
the statute, as shown in a case above cited,^ the settler cannot
sell before making final proof and afiidavit ; and he is not the
only person at fault when an attempt is made to sell in con-
travention of law. The vendee knows the statute, winks at
1 Sorrels v. Self, 43 Ark. 451 ; Cox < See Forgy v. Merryman, 14 Neb.
V. Donnelly, 34 Ark. 763. 513 ; Blanohard v. Jamison, 14 Nelx ,
2 Hot Springs R Co. v. Tyler, 86 344; Skinner v. Eeynick, 10 Neb. 323 ;
Ark. 305. Jones v. Yoakum, 5 Neb. 265.
3 U. S. Rev. Stat., § 3391. ^ Anderson v. Carkins, supra.
952 FEDEEAL HOMESTEADS.
the violation of it by his vendor, and becomes partioeps crim-
inis. The same is true as to a mortgagor and a mortgagee.
Whatever burden may be put upon a federal homestead,
rightfully or wrongfully, the land cannot be subjected to
forced sale for ordinary debt contracted before the issuance
of the patent '' or the acquisition of title.
A mortgage, made by the occupant of land subsequently
taken up under the town-site laws, was held to be not void.^
But an occupant of land subject to pre-emption sold his im-
provements, after having mortgaged the property, to a pur-
chaser who afterwards acquired the land from the government,
and it was held that the mortgage could not be enforced against
the land, for the mortgagor did not own it; and the purchaser
derived his title from the United States — not from him.' If
a purchaser assumes a mortgage debt on the land purchased,
he is estopped from denying the validity of the mortgage
under the exemption laws.^
Improvements made by the settler become a part of the real
estate, so that a mechanic's lien for work and material does
not create a lien upon the property or the building; for the
settler has yet no title, and the government does not become
the debtor of the mechanic.^ But courts recognize " improve-
ments upon public lands as property ; and they uphold con-
tracts between owners of them, when fair and reasonable,
not only with regard to the improvements but also executory
contracts with regard to the title of the lands themselves, to
be afterwards acquired, so far as may^be- necessary to secure
the enjoyment of improvements crossing lines." *
§ 11. Title.
The certificate of entry gives possessory right to the s^ettler,
so that he may eject an intruder (as already said),^ and may
maintain possession even against the government itself,* as
•Smith V. Steele, 13 Neb. 1. 'Ante, p. 933; Brummett v. Pearle,
2Reasoner v. Markley, 35 Kas. 635. 36 Ark. 471 ; Broussard v. Broussard.
8 Bull V. Shaw, 48 Cal. 455. 43 La. Ann. 931. ,
« Green V. Houston, 23 Kas. 35. 8 Myers v. Croft, 13 Wall. 291;
" Kansas Lumber Co. v. Jones, 33 Close v. Stuyvesant, 133 111. 607 ; Eob-
Kas. 195. bins v. Bunn, 54 111. 48 ; Coleman v.
SMantooth v^ Burke, 35 Ark. 540, Allen, 75 Mo. 333.
544; Hamilton v. Eowlkes, 16 Ark.
S4a
TITLE. 953
generally held with some exception ; ^ for the United States
must keep faith with him while he is performing the condi-
tions of the donation. Under this certificate he may even
devise his inchoate title so as to enable the devisee to com-
plete the performance of the conditions.^
The final certificate, showing that all the conditions have
been performed, is evidence of equitable title to the homestead.
The government still holds the legal title, but only as trustee
for the real proprietor.^
He is entitled to a patent, and therefore he may contract
Avith reference to the land before it has been issued to him.^
If he then convey it by warranty deed, the grantee's title will
become a complete legal one upon the issuance of the patent.*
If he agree to convey upon reception of the patent, it is held
that the agreement will be binding when he receives it.* The '
patent is the title deed, given by the United States to the citi-
zen who has performed all the conditions upon which the gov-
ernmental donation of homestead land is bestowed. It relates
back to the date of entr}?^,' but not so as to validate an incuni-
brance or conveyance prior to the final certificate. It is his
evidence of title, conclusive in all courts.
1 Mantopth v. Burke, 35 Ark. 540, 3 McLean, 107 ; Pac. Min. Co. v.
544; Earle v. Hale, 31 Ark. 470; Spargo, 16 Fed. 348; Union M. Co.
Hamilton v. Foulkes, .16 Ark. 340 ; v. Danberg, 2 Saw. 454 ; Gwynne v.
Cain V. Leslie, 15 Ark. 313 ; Pelham Niswanger, 15 Ohio, 367 ; Smith v.
V. Wilson, 4 Ark. 289. A patent on a Hollis, 46 Ark. 33; Coleman v. Hill,
town lot is void. Burfenning v. Chi- 44 Ark. 452; Brown v. Warren, 10
cago, Sc Paul, etc. R. Co., 46 Minn. 30. Nev. 228; Tread way v. Wilder, 13
2 Coleman v. McCormick, 37 Minn. Nev. 114; Axtell v. Warden, 7 Neb.
179. 183 ; Stewart v. Sutherland (Cal.), 28
3 Wis. Central R Co. v. Price, P. 947 ; Rose v. Lumber Co., 73 Cal.
138 TJ. S. 496 ; Defferback v. Hawke, 385 ; Grant v. Oliver, 91 Cal. 158 ;
115 U. S. 393 ; Simmons v. Ogle, 105 People v. Shearer, 30 Cal. 648.
U. S. 371 ; Simmons v. Wagner, 101 * Newkirk v. Marshall, 35 Kas. 77.
U. S. 360 ; Railway Co. v. MoShane, * Knight v. Leary, 54 Wis. 459,
23 Wall. 444, 461; Railway Co. v. See Week v. Bosworth, 61 Wis. 78, 85
Prescott, 16 Wall. 603 ; Stark v. « Lewis v. Wetherell, 36 Minn. 31
Starrs, 6 Wall. 402; Hughes v. United Townsend v. Fenton, 30 Minn. 528;
States, 4 Wall. 332 ; Carroll v. Saf- Moore v. Mcintosh, 6 Kas. 39.
ford, 3 How. 441 ; Carroll v. Perry, ' Union Mill Co. v. Dangberg, 8
4 McLean, 25 ; Astrom v. Hammond, Saw. 450.
I
APPENDIX.
NOTES FROM THE HOMESTEAD LAWS OUTLINING THE PRINCI-
PAL PROVISIONS.
Alabama. Every homestead not exceeding eighty acres, with improve-
ments thereon, to be selected by the ov^ner, or any lot with improvements
in a town, not exceeding $2,000 in value, owned and occupied by a resident,
shall be exempt, except against any mortgage or pledge thereon, or labor-
ers' or mechanics' liens. It cannot be mortgaged or alienated without the
joint consent of the husband and wife; and all instruments waiving the
right of homestead must be attested by a witness. The homestead remains
exempt from liability for the owner's debts, after his death, while any of his
children is a minor ; and it also inures to the benefit of the widow. Const,
art X, § 2. The Code carries out these mandates, and it is sufficiently
cited in this treatise under difEerent topics.
Arizona. Rev. Stat. 1887, § 2071 : Every person who is the head of a fam-
ily may hold as a homestead, exempt from execution and forced sale, real
property selected by him or hei" not exceeding |4,000 in value.
§ 2072 : Any pei-son, wishing to avail himself or herself of the provisions
of the foregoing section, shall make out, under oath, a claim in writing,
showing that he or she is the head of a family, describing the land, stating
the value, and filing it with the county i-ecorder.
§ 2073 : The claim may be by the husband or wife or by an unmarried
person who is the head of a family, or by one having charge of the prem-
ises in behalf of the owner who is entitled to claim.
§ 2074 : If married, the homestead may be selected from community
property, or from the separate property of the husband ; or, if the wife
join in claiming, it m^y be from her separate property.
§ 2075 : Abandonment is effected by declaration of abandonment, or by
a grant of the property. It must be by both husband and wife, if the
owner is married ; and it holds good only when filed in the county office.
§ 3076 : A married man cannot sell, lease or incumber his homestead
without joinder by his wife.
§ 3077 : When homestead is taken by married persons, husband and
wife shall hold as joint tenants, and on the death of one it vests in the
survivor : and on the death of the survivor, " the minor child or children,
if any, shall receive the benefit of this act."
g 3078 : " If the plaintiff in execution be dissatisfied with the valuation
of the land claimed by the defendant as homestead, he may serve upon!
956 APPENDIX.
Arizona — continued,
him, his agent or attorney, and upon the officer holding the execution, a
notice thereof in writing, and the appointment of an appraiser." Within
three days thereafter, the defendant shall appoint an appraiser, and the ap-
pointees shall appraise within three daj's thereafter. If the homestead be
found not worth over $4,000, the plaintiff shall pay the costs. If found
worth more, the property shall be divided and the excess sold. If indivisr
ible, all shall be sold, and |4,000 reserved to the debtor from, the proceeds.
No bid for the whole, under $4,000, shall be received.
§ 2079 : The decision of the appraisers is final, if not impeached for
fraud.
§ 2080 : If they cannot agree, they must seleot a third appraiser.
Arkansas. The homestead of a resident, married or the head of a family,
shall not be subject to the lien of any judgment, decree of court, sale un-
der execution, or any propess except for pxxrchase-money, specific laborers'
or mechanics' liens for improvements on it, taxes, or judgments rendered
agains^ persons in fiduciary capacity for money thus collected by them.
It may consist of one hundred and sixty acres outside of any city, town
or village, with improvements thereon, worth not more than $3,500, not
reducible to less than eighty acres regardless of value ; or one acre with
its improvements within any city, town or village, worth not more than
$3,500, not reducible to less than one-quarter of an acre regardless of
value.
If the owner die leaving a widow but no children, she shall have the
rents and^ profits of the homestead for life, if she has none of her own,
and it shall be exempt as before ; but if the owner left children (one or
more), they shall be entitled to have the rents and profits till of age (the
right of each to expire then, respectively, and go to those not of age till
all have reached majority), and when all are of age, the whole to go to
the widow. Residence of the widow and children on the homestead is
not required. On the death of the widow all of the homestead shall be
vested in the minor children.
Const Ark., art. IX, §§ 3-6.
The statute repeats the constitutional provision relative to widows and
minoi-s, and adds that, to avail themselves of it, "she or they shall file
with the clerk of the'probate court of the county in which the homestead
is situated, an accurate description " of the homestead claimed, and apply
to have it reserved from sale. The clerk shall record that it has been so
reserved, upon the filing of the description and application.
Dig. of Stat, of Ark., §§ 3590-3.
California. TJiere shall be a homestead exempt as provided by law. CJonst.
of Cal., art. XVII, § 1.
■ The house and land, constituting the residence of the claimant, may be
selected as the homestead. It may consist of the husband's separate prop-
erty, the wife's separate property if she consent, or community property.
It may be selected from any real property occupied and owned by an un-
married head of a family which includes a minor child of his or her de-
ceased wife or husband. And it may be selected from such property of
any person who has living with him or her as a liiember of the family, a
minor brother, sister, nephew or niece; a parent or grandparent; a de-
APPENDIX. 957
California— continued,
ceased wife's or husband's parent or grandparent; or an unmarried sister
or any relative above named vpho is incapable of self-support, .whether
above or below the age of majority. The wife's consent to have the
homestead selected from her separate property must appear from her
own declaration of homestead or her joining in the declaration by the
husband.
The homestead is exempt from execution, except on judgment ob-
tained before the filing of the declaration, so that it created a lien on the
property ; or judgment to enforce mechanics', laborerfe' or vendors' liens
on the property ; or mortgages created by tlie husband imd wife or an
unmarried claimant, or any mortgage anterior to the filing of the home-
stead declaration.
Husband and wife must join in an act incumbering the homestead, or
in any declaration of abandonment or conveyance of it, which must be
duly recorded to give it effect.
When the homestead is liable to execution, in part, the judgment cred-
itor may apply for the appointment of appraisers by the superior court
of the county showing that execution has been levied upon it, and that
its value exceeds the sum legally exempted, and he must aver the name
of the claimant.
If, by the report of the appraisers, it appear that the land is susceptible
of division, the court may order the residence reserved as the homestead
with as much land as the exempt limit will allow, and have the execu-
tion restricted to the residence. If reported indivisible yet excessive of
the exemption limit in value, all must be sold, and the claimant's interest
must be paid to him from the proceeds — and the sum paid remains in-
violable by execution for six months.
The limit is $5,000 to the head of a family ; $1,000 to any other person.
A declai-ant for the $1,000 exemption must observe the same require-
ments as in case of making a conveyance of real estate, so far as con-
cerns description, recordation, etc. And he must state its cash value and
that he resides on the premises, though he does not state that he is the
head of a family.
The declai-ation of homestead must be executed and acknowledged and
recorded like the grant of real property. It must show that the declarant
is the head of a family, or the wife of such who makes the declaration
for the joint benefit of herself and her husband — and that the latter has
not made a declaration; that the declarant resides on the premises
claimed as a homestead ; and there must be a description of the property
claimed and a statement of its value in cash.
A homestead carved from community property vests in the survivor of
the partners in community on the death of the other spouse, still free
from any liability that did not exist before the death. When carved
from separate property, the heirs or devisees of the former owner take
subject to power of the court to assign the use of the property to the fam-
ily of the deceased for a limited period. It does not become liable to exe-
cution for the debts of the homestead beneficiary except for liens, etc.,
above mentioned.
Deering's Annotated Code and Statutes of California, §§ 1337-1263.
958 APPENDIX.
Colorado. The legislature shall pass a liberal homestead law. Const,
art XVIII, § 1.
Gen. Stat 1883, § 1631 : Evei'y householder who is the head of a
family may have two thousand dollars' worth of homestead property
exempt from debt incurred after February 1, 1808.
g 1633 : The word homestead must be inscribed in the margin of the
recorded title.
§ 1633 requires family occupancy.
§ 1634 : The survivor of married beneficiaries and Ms or her minor
children "shall be entitled to the homestead;" but if there is no widow or
widower or minor the property is liable for the debts of the deceased
owner.
§ 1635 : There is no quantitative limit
g 1636 : The wife must join in a mortgage of the homestead to render
it effectual.
§ 1637 : Any excess of value, beyond the limit, may be subjected to
execution. See Mills' Anno. Stat, § 2133 et seq.
Florida. A homestead to the extent of one hundred and sixty acres in the
country or half an acre in a town or city, and improvements thereon,
owned by the head bf a family residing in the state, is exempt Const of
Fla., art IX, sec. 1.
Stat, § 1. One hundred and sixty acres in the country, or half an acre
in town, with improvements, and one thousand dollars' worth of per-
sonal property, owned by a head of a family resident in the state, are ex-
empt from execution, except for taxes, purchase-money, or labor per-
formed on the homestead.
g 3. In addition to the exemption in the first section, such property as
the head of the family may select to the amount of |1,000. The exemp-
tion in this section shall prevent only the sale of property when the
debt was contracted, liability incurred or judgment obtained before May
10, 1865, except for taxes, purchase-money and labor.
g 3. The exemptions of sections 1 and 2 shall accrue to the heirs of the
party having taken the benefit of such exemption. The exemption of
section 1 shall "apply to all debts except as specified in said section, no
matter when or where the debt was contracted or liability incurred."
McClellan's Dig. of Laws of Fla., pp. 538-9.
Georgia. The head of a family, or the guardian of minor children or aged
and infirm persons, or any one having the care of a dependent female of
any age, is entitled to exemption of realty and personalty. No court
shall have jurisdiction to enforce any judgment or execution against such
exempt property, except for taxes, purchase-money, labor done on it,
material furnished for it, or incumbrances removed from it The debtor
may waive exemption, in writing, as to the realty. In case of the sale of
the homestead under order of court, the proceeds to the amount of ex-
emption ($1,000) must be invested in a new homestead. Besides this sum,
there is personal exemption. Const, art 9, S-g 1-5, 9. The courts recog-
nize both a constitutional and a statutory homestead, though no person
can avail himself of both. The legislation is extensive, and is sufficiently
copied and cited in this treatise.
APPENDIX. 959
Idaho. Eev. Stat. 1887, § 3036 : Homestead may be cai'ved from commu-
nity property or from the wife's separate property with her consent.
§ 3037 : If it is from her separate property, she must make the home-
stead declaration.
§ 8039 : The homestead is liable on a judgment prior to the declaration,
or an attachment laid before ; and for laborers', mechanics' or vendoi-s'
liens, and for mortgages given by both husband and wife.
§ 3041 : Abandonment is by declaration or grant made by both husband
and wife.
§ 3068 : The monetary limit is $5,000 to the head of a family, $1,000 to
" any other person." /
The provisions of the statute are much the same as in California.
Illinois. The legislature shall pass a liberal homestead law. Const., art.
IV, § 32.
Every householder having a family is entitled to homestead exemption
to the amount of |l,OflO in the house and land occupied by him as a res-
idence and owned or leased. Such hojnestead, sii^ right and estate .
therein, shall be exempt fi-om attachment, judgment, levy or execution
sale for the payment of bis debts, or other purposes ; and from the lavs
of conveyance, descent and devise, except liability for taxes and pur-
chase-money, and for improvements.
The exemption shall continue to the survivor, and the death of husband or
wife, continuing to occupy the homestead, for the benefit of such survivor
and the children till of age. In case of desertion by either husband or
wife, the one remaining on the homestead shall enjoy the exemption. In
case of divorce the court may dispose of the homestead.
The extinguishment of the homestead must be by written instrument
signed by both husband and wife, acknowledged as in conveyances of
real estate or abandonment thereof or possession given to another. If
the exemption is continued to a child or children, an order of court is
requisite to its release.
Upon sale and conveyance, the proceeds stand in lieu of the homestead
to the amount of the exemption limit, ($1,000), for a year. The same ex-
emption applies to money received on insurance as applied to the building
before being burned. The land sold is conveyed free from all the liabilities
from which it was previously exempt.
In enforcing a lien upon premises which include the homestead, the
court may have the portion, entitled to exemption, set apart, and cause
the rest to be sold. If the premises are not susceptible of division, the
whole may be sold and the value of the exemption right paid to the bene-
ficiary out of the proceeds. Should the premises be exposed for sale,
without first setting apart the homestead, they cannot be adjudicated on
a bid not exceeding $1,000.
Commissioners may be appointed to estimate the premises, and the
owner of the homestead may pay his debt less $1,000 and thus prevent
sale, etc.
Starr & Curtiss, An. Stat. 111., pp. 1097-1111.
Iljldiana. No homestead law. There is exemption of realty or personalty,
or both, to the amount of $600, when the demand is on a contruct. The
debtor selects the property. What is sold under exemption must bring
960 APPENDIX.
Indiana — continued. v
two-thirds of the appraisement, unless the debtor has waived this benefit
He cannot contract in advance to waive his right of exemption when it
shall ai'ise.
The statutes are freely cited in the treatise.
Iowa. The homestead of every family, whether owned by husband or wife,
is exempt from forced judicial sale, in the absence of any statutory pro-
vision to the contrary.
The surviving spouse, though childless, continuing to reside in the house
used as a homestead prior to the death of the other marital partner, shall
be deemed the head Of the family and entitled to the exemption.
Husband and wife must act jointly in the conveyance of the homestead.
The homestead is liable for taxes, and liable upon mechanics' liens for
work, labor or material in the improvement of the premises, and for debts
contracted by the owner prior to the purchase when he has not efifects
sufficient without it to meet such obligations. It is also liable for debts
created by written contract made by a competent owner who stipulated
that it should be thus liable, provided he have not sufficient other property
pledged for the payment of the debt in the same written contract
The homestead must embrace the owner's residence; and if he has
more than one, he must elect between them. It may embrace one or
more lots or tracts of land, with improvements and appurtenances, not
exceeding half an acre within a town plat or forty acres without such
plat unless the value be less than $500. In such case, the quantity may
be enlarged to reach that value. It cannot include lots or tracts which
are not contiguous, unless they are habitually used together, in good faith,
as one homest^d. But it must not embrace more than one dwelling-
house and its appurtenances, though a shop or other building used by
the owner of the homestead in the prosecution of his ordinary business,
worth not more than $300, may be included as part of the exempt home.
The selection of the lioniestead may be by the owner, husband or wife,
by marking the bounds and giving description such as is usual in instru-
ments conveying land, which description with the plat shall be recorded
in the " Homestead Book." If the owner, husband or wife f^il to mark,
plat and record as directed, he does not thus forfeit the right of exemp-
tion ; but the officer executing a writ against the property of such person
as defendant may cause the homestead to be marked off, platted and re-
corded at the defendant's expense.
The owner may change the mt^tes and bounds, having the plat and rec-
ord altered to correspond ; and, with the assent of his or her spouse, may
change the entire homestead. But no such entire change, without such
assent, shall affect the rights of the non-agreeing spouse, nor those of his
or her children ; nor can any change of the homestead, partial or total,
affect liens or conveyances previously made. The newly selected home-
stead stands in place of the old, in all respects, when not subject to any of
the above-named exceptions.
Disputes as to the legality of the establishment of the homestead, aris-
ing between the claimant and another, are submitted to refei-ees, atthe
request of either partyu whose report is acted upon by the court
APPENDIX. 961
Iowa — continued.
Upon the death of husband or wife, the survivor may continue to
occupy the homestead until it shall be otherwise disposed of according to
law, such as the assignment to the survivor of his or her distributive
share in the real estate of the deceased. The survivor, however, may elect
to retain the homestead for life in lieu Of such share.
Upon the death of both husband and wife (or of the owner of the home-
stead whomever), the property descends according to rules of descent, or
as directed by will, remaining free from the debts' of the decedent parent
or those of the heirs Inheriting it. But if there be no issue, and no sur-
viving marital partner in the homestead, it becomes liable for the debts
for which it might at any time have been liahle if never held as a home-
stead.
A homestead may be devised, as any other property, subject to the
rights of the sui-viving husband or wife.
McClain's Annotated Code of Iowa, §§ 3163-3185.
Kansas. "A homestead to the extent of one hundred and sixty acres
of farming land, or of one acre within the limits of an incorporated town
or city, occupied as a residence by the family of the owner, together
with all the improvements on the same, shall be exempted 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 ; but no
property shall be exempt from sale for taxes or for the payment of obliga-
tions contracted for the purchase of said premises, or for the erection of
improvements thereon. Provided, the provisions of this section shall not
apply to any process of law obtained by virtue of a lien given by the con-
sent of both husband and wife.'' Const, art. 15, sec. 9.
The homestead occupied by the intestate and his family till his death,
and by his widow and children thereafter, shall continue exempt as
before, and shall be the absolute property of the widow and children —
subject, however, to the constitutional exceptions.
If a deceased husband owned more than the limit of land allowed as
exempt, adjoining his residence, his widow may select the amount author-
ized by law, and she becomes entitled thereto, if there he no children.
So, if the intestate left children, but no widow, they become entitled to
the homestead, as limited by law.
When there are both widow and children, homestead mtist be equally
divided between her and them — half to her — upon her becoming mar-
ried or they all becoming of age.
The division may be by mutual consent, or the proceeds may be divided
when the property is not susceptible of division and a sale of it becomes
necessary for the purpose.
Taylor's Genl. Stat (1889), §§ 2598-7.
Kentucky. So much land, including the dwelling-house and its appur-
tenances, owned by the debtor, as shall not exceed $1,000 in value, ia
exempt from execution, attachment or judgment of court (except to fore-
close a mortgage given by the owner, or for purchase-money due on the
homestead), for all debts or liabilities incurred after June 1, 1866.
Before sale of the defendant real estate, appraisers set off a homestead
61
902 APPENDIX.
Kentucky — continued.
of $1,000 value, and their report is recorded with the other proceedings by
the officer charged with the sale. Indivisible property being sold for
more than the exemption limit, is transferred to the bidder, but the home-
stead beneficiary therein must be paid |1,U00 from the proceeds in lieu of
his homestead.
A mortgage, release or waiver, to afiEect the homestead or exemption
right, must be in writing, signed by both husband and wife, and recorded
like a conveyance.
Exemption continues to widow and children, "but shall be estimated
in allotting a dower."
The homestead shall be for the use of the widow as long as she occu-
pies it, and the unmarried infant children of the husband shall be en-
titled to a joint occupancy with her till the-youngest unmarried child
arrives at full age. The termination of the widow's occupancy shall not
affect the right of the children ; but the land may be sold subject to the
right of the widow and children, if the sale is necessary to pay the debts
of the husband.
The homestead of a woman shall, in like manner, be for the use of her
surviving husband and the minor unmarried children ; and when his and
their interest ceases it shall be disposed of in like manner, and the pro-
ceeds a,pplied on the same terms to her debts ; if none, divided among her
children.
The exemption provided in this chapter shall apply to all persons, of
any race or color, who are actual, bona fide houseieepers (with a family)
of this commonwealth ; but it shall not apply to sales under execution,
attachment or judgment at the suit of creditors, if the debt or liability
existed prior to the purchase of the land or the erection of the improve-
ments thereon.
Genl. Stat Ky. (1888), pp. 574-8.
Louisiana. Every head of a family, and every person having a father or
mother or other person dependent upon him for support, is entitled to
have his homestead, owned and occupied by him, consisting of land,
buildings and appurtenances, rural or urban, exempt to the amount of
$3,000.
If the homestead exceed this limit, and be sold for debt, the debt-owner
is entitled to that amount from the proceeda No husband is entitled to
homestead exemption whose wife is in the actual enjoyment of prop-
erty to the value of $3,000.
The exemption does not hold good against claims for the purchase-
money of the homestead, or for improvements thereon, or for sej-vicfes
thereon by a mechanic or laborer, or debt incurred by a pubhc officer,
fiduciary or attorney at law [in official capacity].
No waiver of homestead rights is valid ; and no mortgage, trust-deed,
or other lien on the homestead is valid, except for its purchase-money or
improvements, whether created by the husband alone, or jointly with his
wife. All sales of the homestead, with any defeasance, are void.
The legislature shall require homesteads to be recorded.
The homestead continues during the minority of any of the children,
APPF.NDIX. 963
Louisiana — continued,
after the owner's death, with exemption from his debts. It inures also
to the benefit of the widow. '
Const. La. 219, 820. Statutes, cited in the treatise, are here omitted.
Maine. A dwelhng-house, with the lot on which it stands, together not ex-
ceeding $)00 in value, is exempt. The claimant may file in the registry
of deeds, in the county where the land lies, a certificate signed by him
declaring his wish to have exemption and describing the land and build-
ings ; and the register shall record it in a book kept for that purpose.
Rev. Stat, ch. 81, g 61.
Maryland. No constitutional provision, except that the legislature shall
exempt property not exceeding |500 in value. No homestead, but ex-
emption of realty and personalty, or either.
One hundred dollars' worth of property of any defendant is exempt in
" any civil proceeding whatever," except on judgment for breach of prom-
ise to many or for seduction.
Each defendant may select property,, real or personal, to the value of
,$100, to be ascert lined by appraisers at the time of levy; and the ap-
praisement must be returned with the writ.
Indivisible property, real or personal, must be sold if a bid exceed the
amount exempted ; and that amount must be paid to the defendant out
of the proceeds. , ^
Liens of vendors for purchase-money, all mortgages and liens of me-
chanics or others for debt contracted in the erection of building, and
taxes, excepted from the effect of the, exemption.
Rev. Code of Md., p. 633.
Massachusetts. There is exempted to the value of $800, the lot and build-
ings occupied as a residence and owned by the debtor ; or buildings owned
by the debtor, and so occupied, on land not his own but of which he shall
be in rightful possession by lease or otherwise — he being a householder
and having a family. Declaration and recording are required. The ex-
emption continues after the owner's death, for the benefit of his widow
till her death, and of the children, till the majority of the youngest child.
The widow's homestead and dower are not incompatible.
No conveyance or mortgage of the homestead, by the husband, is valid
unless his wife join in the deed. No release or waiver is valid unless
by deed acknowledged and recorded as in case of conveyance of real
estate.
The homestead is liable for antecedent debts, purchase-money, liens,
taxes, etc. ; but a judgment, for ordinary debt, contracted after notice by
recording and occupancy, bears no lien upon the property.
Mass. Gen. Stats.
Michigan. A homestead owned and occupied by a I'esident of this state,
not exceeding forty acres, with improvements, not in a town plat, city or
village; or a homestead so owned and occupied, consisting of a village,
town or city lot, or parts of lots equal to one, with improvements, shall
be exempt to the amount of $1,500, from forced sale on execution or any
final process from a court, for any debt contracted after the adoption of
this constitution. It is not exempt from the foreclosure of a mortgage.
dQi APPENDIX.
Michigan — continued.
The wife must have joined to render valid a mortgage or conveyance
given by a married man.
The exemption continues during the minority of the children of the de-
ceased owner : also during the widowhood of his widow, unless she own
a homestead in her own right
Const,, art. XVI, §§ 1-4.
To the exemption declared in the constitution, the statute adds that the
homestead shall not be subject to execution for any " debts growing out of,
or founded upon, contract either express or implied, made after the third
day of July, 1848 ; " and provides that the exemption shall continue while
the homestead shall be occupied by the widow or minor child of any one
entitled to'it while living. Exemption does not hold against a mortgage
given, to secure purchase-moiiey for the homestead, nor against a mort-
■ gage given prior to the date of the statute, nor against taxes.
When forced sale is pending against property including the homestead,
the owner may notify the officer in charge and have it set off when it is
exempt, and reserved from sale. If the creditor, or party adversely in-
terested to the claimant of the homestead, complain that too much has
been set off, the officer in charge of the writ shall have the land surveyed,
so that the statutory portion, including the dwelling, may be assigned to
the beneficiary of the homestead exemption.
Indivisible property including the homestead, all worth more than the
exemption limit, so found by jurors selected for the purpose, may be
sold and the sum of $1,500 paid the beneficiary out of the proceeds, un-
less he, upon receiving the required prior notice, has paid the debt, less
that sum, within sixty days from notice. The sum received by the debtor
upon sale is exempt for a year. If no bid exceed $1,500 there can be no
adjudication.
One " owning and occupying any house on land not his own," claiming
it as a homestead, shall be entitled to the exemption.
HoweU's An. Stat, of Mich., §§ 7731-9.
Minnesota. A dwelling-house and appurtenances, with eighty acres of
land, selected by the owner, outside the platted poi-tion of any incorpo-
rated town, is exempted. Or, the owner may select a lot within such
town, or half an acre therein if there are less than five thousand inhabit-
ants, together with the dwelling-house and appurtenances. Ownership and
occupancy and state residency are required. Such property is free from
attachment or sale upon execution. It continues exempt while occupied
by the widow or minor children of the deceased owner who had enjoyed
the exemption. A deserted wife or minor chifdren may occupy the home-
stead and enjoy its protection from forced sale, when the husband or
father, who owns the property, has absconded and left them.
Mortgages and conveyances require the wife's signature, unless the mort-
gage is to secure the purchase-money. The exemption does not atLc^t
liens for improvements, or taxes, or those arising by operation of law ;
but ordinary judgments create no liens on the homestead. The house-
holder may claim his homestead when a levy is pending ; and if there is
any contest respecting it between the plaintiff and defendant, the statute
prescribes certain proceedings, a survey, etc.
1 ,APPEiire)ix. 965
Mississippi'. The constitution requires the legislature to pass a homestead
law. Every citizen householder who is the head of a family may hold
his country residence which he occupies with his family, to the amount
of one hundred and sixty acres, exempt from execution or attachment.
The value including improvements must not exceed $3,000, unless the
homestead be recorded as such, when there may be $3,000 of value. '
Such citizen, in town, has like limitations of homestead value. Decla-
ration must be made, showing the selection of property and describing it,
and causing it to be recorded in a book called "The Homestead Record,"
if, whether in town or country, the beneficiary wishes to avail himself of
the larger exemption.
When not selected by the beneficiary, homestead is designated by law,
consisting of land in the form of a square or parallelogram if practicable or
contiguous parcels, with the family dwelling and its appurtenances thereon
limited to one hundred and sixty acres and to $3,000 of value. If excess-
ive, the excess is cut oif by appraisers making the homestead estimate,
and is liable to execution. If indivisible, all is sold and $3,000 saved to
the debtor from the proceeds of an ordinary homestead, or $3,000 from a
recorded one. Provision is made for contestation of the allotment. Lia-
bility for purchase-money, taxes, assessments, labor or material for home-
stead, and " upon a forfeited I'ecognizance," continues unaffected by the
exemption.
Permanent removal from the homestead is abandonment. The property
may be disposed of by the owner without subjecting it to liability for his
debts beyond those mentioned. The wife must join in conveying and in-
cumbering any homestead property of her husband which they occupy
together. She has the same rights and liabilities, when she is the owner,
as a husband is above shown to have ; and she cannot sell or incumber
her homestead without his joining : both living together upon it The bene-
fits of the exemption laws are accorded to women citizens as well as to
men.
Code of Miss., 1893. ,
Missouri. Every householder or head of a family may claim exemption in
• the realty he uses as his home within the following limitations : one hun-
dred and sixty acres, in the country, worth not more than $1,500; or
eighteen square rods, in a town of forty thousand inhabitants, worth no
more than $3,000 ; or thirty square rods, in a town of ten thousand inhabit-
ants and less than forty thousand, worth no more than $1,500 ; or five
acres, in a town of less than ten thousand inhabitants, worth no more
than $1,500. A married woman may claim homestead in a tract or lot
occupied by her and her husband, or by her alone if he has abandoned the
property as homestead. The claim ttiust be duly acknowledged by her in
such case. He cannot sell or incumber such dedicated property. He and
she may jointly convey or mortgage their homestead. Rev. Stat., § 5435.
If the homestead is excessive in value, the head of the family may des-
ignate the portion he claims ; or, on his failure to do so, the sheriff in
charge of an execution against the property shall appoint appraisers to
lay off the exempt portion. If excessive and mortgaged, the segregation,
is made in like manner. lb., §§ 5436-7.
966 APPENDIX. '
Missouri — continued.
Products of the homestead are exempt when claimed. lb., % 5438.
On the death of the householder, his homestead vests in his widow and
children (free from his debts unless legally charged thereon in his life-
time), till the majority of the youngest child and the death of the widow.
^ The interest of the deceased householder, " except the estate of homestead
thus continued," becomes liable for his debts, lb., § 5439.
Commissioners to set out homestead and dower must lay oflE the former
fli-st ; and if it equals a third of the realty of the estate; there can be uo
dower to the widow. In any case, the dower is diminished by the amount
she receives as homestead. lb., § 5440. -
The homestead is liable for antecedent debts ; and for all debts after a
new hon^estead has been acquired. lb., §§ 5441-3.
Commissioners set out the homestead from the real estate of the debtor,
under order of court. If the property is indivisible, and all is sold together,
the court controls the proceeds. lb., §§ 5443-5.
Montana. Compiled Stats. 1887, § 331 : There is no exemption from pay-
ment of the purchase price.
§ 338 : The limit is one hundred and sixty acres for agricultural pur-
poses, or one-fourth of an acre in a town, neither to exceed $3,500 in valua
§ 333 :. Laborers' and mechanics' liens, and mortgages made by husband
and wife, and debts pi'ior to the homestead law, are not affected.
§ 334 : A defendant against whose property an execution is pending
may notify the ofiScer of his homestead when it has not been previously
selected. ,
§ 335 : If the plaintiff is dissatisfied with the allotment of homestead, he
may cause a survey to be made.
§ 338 : The owner may remove from his homestead yet not thus make
it liable. General judgments create no lien on the homestead.
§ 329 : The widow of the owner of the homestead takes the whole for
life.
)5 330 : Only " married men ^^ ^^^ head of a family " are beneficiaries.
Nebraska. The homestead is limited to |3,000 in value and one hundred
and sixty aci-es in extent not in a village or city, or to two contiguous lots
within it of like value, either including improvements, selected by the
owner from his separate property, or from that of his wife with her con-
sent. An unmarried head of a family may select from any of his or her
property.
The homestead is exempt from execution except on mechanics', labor-
ers' and vendors' liens, or mortgages given by both husband and wife or
by an unmarried claimant. Husband and wife must join in the incum-
brance or conveyance of their homestead.
When execution is levied against lands including the homestead not
liable thereto, the head of family owning it must notify the ofiBcer of his
right and give a description of the premises claimed to be exempt : where-
upon, only the remainder shall be liable to the levy ; but the judgment
creditor may cause the land claimed to be appraised. If, from the report
of appraisers, it appear that the land seized is divisible, the court shall
order the homestead to be set off : otherwise, all must be sold, and the
APFENDIX. 967
Ifobraska — continued,
homestead claimant recompensed out of the proceeds. If sale to an
amount not exceeding the homestead value cannot be eflEected, there can
be no adjudication to any bidder. The sura in lieu of homestead sta'nds
exempt for six months, in case the land be sold. The same rule applies to
any surplus remaining after sale of homestead on allowable liens.
" Head of family " is defined as in statutes of California.
The sale of one homestead does not preclude the establishment of an-
other.
Compiled Stat (1889); ch. 36, §§ 1-16.
Nevada. There shall be a homestead exempt, as provided by law. Const
Nev., art IV, g 30.
Homestead is limited to $5,000 in value, selected by the head of a family
as in Nebraska, and liable only to such debts as are collectible against it
in that state and debts existing prior to November 18, 1861.
A declaration must be filed by the claimant, or by the claimants if they
be man and wife. Separate property of either being dedicated as a home-
stead, returns to the owner or to his or her heirs on the death of the other
spouse. Tenants in common may declare upon their rights of estate, sub-
ject to the rights of co-tenants.
Written declaration is essential to abandonment, signed by the head of
the family, and by his wife when the declarant is married, and duly re-
corded. The wife's declaration is taken separately, and apai-t from her
husband. Prior to dedication, the land may be conveyed or incumbered
without her joinder if she be a non-resident of the state.
Creditors may swear that they believe a homestead proceeded against
by levy is worth more than the limited amount, and then appraisers make
estimate and report to the court, and thereupon proceedings are had as in
Nebraska. Five thousand dollars are reserved out of the proceeds of sale
for the homestead owner whose home has been sold as not susceptible of
separation from the other land levied upon, which has the exTempt char-
acter as did the homestead.
On the death of either husband or wife, the homestead reverts to the
survivor. The children share in the benefit If neither a spouse nor child
survive, the estate is to be administered as in ordinary cases, and debts of
the decedent paid.
Genl. Stat, §§ 539-543.
New Hampshire. The wife, widow and children of any person owning a
homestead, or any interest therein, occupied by him or her or his or her
family, shall be entitled thereto to the amount of |500 against creditors,
grantees and heirs of such person during the life of such wife or widow
and the minority of such children. Should the husband survive the wife
and the time when all the children are of age, he shall enjoy the ex-
emption.
No mortgage made by him alone, except to secure the purchase-money
of the homestead, shall be valid so as to afifect the interest of his wife,
widow or children.
The deed of the husband and wife, or the deed of the survivor, or of >
either, should one be insane, if approved by the probate judge, shall bar
the right of homestead above stated.
968 APPENDIX.
New Hampshire — continued.
After the death of one owning a homestead, or after any conveyance
thereof, the judge of probate, on petition, may cause a homestead to be
set off in the same manner as dower may be assigned by him. If the legal
, title was in the wife, and the husband survives her, he shall have his life
estate therein exempt to the amount, of $500, after the children shall have
arrived at twenty-one years of aga
Like exemption is extended to the unmarried occupant or owner of his
homestead.
An ofiftcer, charged with an execution aga,ingt the property of the hus-
band, shall cause a homestead to be set off, on written application of the
husband, wife, or children by their guardian or next friend, such as the
applicant select. It shall be set off by appraisers r (one selected by the ap-
plicant), whose certificate showing the metes and bounds shall be recorded
with the proceedings of the execution. The court may order a re-appraise-
ment upon good cause shown, and a re-assignment of the homestead.
Such proceedings had and recorded make good title to the wife, widow
and children, and to the debtor himself for the term before expressed,
against his creditors, heirs and grantees.
Indivisible property may be appraised and sold under execution, if the
applicant for the setting off of the homestead, upon notice, do not pay
the debt except the sum exempt within sixty days from appraisement,
provided the creditor advance $500 to the officer to secure the exemption
right.
If the surplus be not paid by the debtor and the advance not made by
the creditor, there can be no sale unless a bid exceed $500, and only the,
excess can be, applied to the debt and, costs. The sum, $500, stands in
lieu of the homestead, exempt for one year.
Genl. Laws, ch. 138, pp. 330-3.
New Jersey. A homestead is exempt to the value of $1,000, if occupied
as a residence and dedicated and recorded. If the officer, in charge of an
execution, thinks the homestead of the debtor worth more, he may cause
it to be appraised, and the excess ma,y be sold. If the property is indivis-
ible, all may be sold, and $1,000 of the proceeds reserved for the debtor.
Both husband and wife must join in a private sale or an incumbrance of
the homestead, unless the owner sell it at a fair value and invest $1,000 of
the price in a new homestead. Revision of N. J. Laws, p. 1055.
New Mexico. There is exempt to the head of a family a homestead not
exceeding $1,000 in value. The exemption is from attachment or seizure
by any other civil process. The usual conditions, restraints and liabilities
need not be repeated. N. M. Comp. Laws.
New York. A lot with one or more buildings not worth more than $1,000,
" owned and occupied as a residence by a householder having a f arnily,"
designated as an exempt homestead, is exempt from execution for debt
contracted after April 30, 1850, unless before the designation or for the
purchase-money.
A conveyance of the property stating that it is designed to be held as a
homestead exempt from sale on execution must be recorded ; or, a no-
tice with a description of it, so stating, written, acknowledged and sub-
APPENDIX. 969
New York — continued.
Bcribed by the owner, as a deed, must be recorded in the Homestead
Exemption Book in the clerk's office of the county. Like property owned
by a married woman and occupied by her as a residence may be desig-
nated in like manner, with like effect.
The exemption continues after the death of a woman homestead owner
until the majority of the youngest surviving child ; and, after the death
of a man homestead owner, till the death of his widow and the majority
of such child ; but, in either case, occupancy as a residence by the ben-
eficiary is essential, unless the dwelling be injured or destroyed, when
occupancy may be suspended for one year.
The property cannot be sold on execution issued upon a judgment, aa
against which it is exempt, though it may be worth more than $1,000.
After the return of the execution, the owner of the judgment may main-
tain a judgment creditor's action to procure a judgment directing a sale
of the property and enforcing his lien upon the surplus.
The defendant is entitled to $1,000 of the proceeds, to be exempt for a
year as the land was, and with the same exceptions, unless he should
designate another homestead within that time. Should the defendant die
before receiving such proceeds of sale, the court may direct the money
to be invested for the benefit of those entitled to the exemption, "or to be
otherwise disposed of as justice requires."
The homestead owner may cancel all exemptions by subscribing and
acknowledging and recording a notice to that effect, describing the prop-
erty thus released. All other methods of release or waiver are inhibited.
Such cancellation must precede the making of a valid mortgage upon
the land, unless for its purchase-money.
Throop's Ann. Code, §§ 1397-1404.
North Carolina. Every homestead and buildings thereon, to be selected
by the owner, or, in lieu thereof, a town lot and buildings thereon, owned
and occupied by a resident of the state, not exceeding in value $1,000,
shall be exempt, except from obligation or debt contracted for the pur-
chase of the premises, or for taxes, or for a claim for services thereon by
a mechanic or laborer.
The homestead cannot be mortgaged or alienated without the joint
consent of husband and wife.
The homestead estate continues exempt from the owner's debts after his
death, during the minority of any of his children, and during the widow-
hood of his widow unless she be the owner of a homestead in her own
right
Const, art X, sees. 2, 3, 4, 8. '
The statute is in accord. The homestead of a resident is not subject to
the lien of any judgment except for purchase-money, for mechanical or
other work done for the claimant of the homestead, and for taxes. Code
of N. C, 1883.
North Dakota. A homestead owned by either husband or wife, not ex-
ceeding in value $5,000, consisting of a dwelling-house in which the
homestead claimant resides and all its appurtenances and the land on
970 APPENDIX.
If orth Dakota — continued,
which the same is situated, shall be exempt from judgment lien and from
execution or forced sale, except as follows :
The homestead is subject to execution or forced sale in satisfaction <rf
judgment obtained : First. On debt secured by mechanics' or laborers'
liens for work or labor done, or material furnished, exclusively for the
improvement of the same. Second. On debts secured by mortgage on the
premises^ executed and acknowledged by both husband and wife, or by
an unmarried claimant. Third. On debts created for the purchase
thereof, and for all taxes accruing and levied thereon.
If the land claimed as homestead can be divided without material in-
jury the court shall order the appraisers to set off such portion, including
the residence, as will^amount in value to the homestead exemption.
Ohio. " Husband and wife living together, a widow, or a widower living
with an unmarried daughter or unmarried minor son, may hold exempt
from sale on judgment or order a family homestead not exceeding $1,000
in value ; and the husband, or, in case of his failure or refusal, the wife,
shall have the right to make the demand therefor ; but neither can make
such demand if the other has a homestead." Eev. Stat., § 5435.
A dwelling situated on land leased from another, belonging to and oc-
cupied by any of the persona above mentioned, may become a homestead
exempt like other homesteads. lb., g 5436.
A homestead shall be set apart for the widow and unmarried children
of a decedent, or for both, on petition of an executor or administrator for
the sale of the lands to pay debts, lb., § 5437.
An ofiScer charged with the execution of a judgment may cause ap-
praisers to set off ,a homestead on application of the debtor, his wife, agent
or attorney, if the debtor has a family, if the lands against which the
writ is directed, or those seized under the writ, include the homestead.
The part set ofE must be worth no more than $1,000. If no application
be made by the debtor it may be made by his widow before sale. lb.,
§ 5438.
When the homestead of a debtor will not bear division without injury,
the plaintifE in execution against it shall be paid rental excessive of $100
per annum, payable quarterly, in lieu of the proceeds of sale, if the owner
will pay him such rental ; but, if he will not, the homestead shall be sold
at not less than its appraised value. lb., § 5439.
When a homestead is charged with liens which preclude the allowance
' of the exemption, and with other liens which do not preclude it, the for-
mer being paid out of the proceeds of the sale of the premises, the balance
may be paid to the husband debtor or his wife to the amount of $500, in
lieu of homestead, on his or her application. lb., § 5440.
Others, entitled to homestead, may take $500 in place of it, in pex-sonal
property. lb., § 5441.
Mortgage must be executed by both husband and wife to make it hold
the homestead. A sale under one which she has not executed cannot
estop her right to have a homestead laid off. lb., § 5443.
How homestead is set off to widow and minors in an action to sell de-
cedent's real estate. lb., § 6155.
APPENDIX.
971
Ohio — continued.
Of insolvent debtor, how exempted. lb., §§ 6348, 6351.
Liable for taxes, lb., §§ 3^59, 5434 ; and on mechanic's lien, lb., §g 3185,
3206a, 5434.
Oklahoma. The head of a resident family may hold exempt from at-
tachment, execution or forced sale for the payment of debts (except as
hereafter stated), a homestead not exceeding one hundred and sixty acres
in one tract, or an acre in town, with the improvements, if used as the
home of his family. He may rent the homestead temporarily The
mortgage of the dwelling-house and eighty acres of the land is inhibited.
Homestead is denied to corporations, non-residents, debtors in the act of .
removing their families from the territory, or who have absconded and "
taken their families with them. §§3860-1, oh. 34, p. 570. '
The exceptions above indicated as to debts are : First. When a debt is
due for purchase-monej*. Second. For taxes on the homestead. Third.
For work and material in making improvements thereon, when the con-
tract therefor is in writing, with the wife's assent if the amount is above
$100. § 3863.
The surviving spouse may hold the homestead tilMt shall have been
disposed of, according to law. The children hold till the majority of the
youngest, when both parents are dead. § 1375, ch. 19, p. 317.
If no homestead has been selected, platted and recorded, the probate
judge orders it to be done. § 1377.
The homestead is not liable for a debt against the husband or wife, ex-
isting before the debtor's death, unless it come under one of the above
exceptions. § 1378.
Stat of Ok. 1890.
Pennsylvania. There is no homestead, strictly speaking.
Property to the extent of $300, owned or possessed by any debtor, shall
be exempt from levy and sale on execution or by distress for rent The
privilege is personal and may be waived.
Appi-aiiers shall be appointed at the request of the defendant and the
property selected and appraised is free from execution, except for taxes,
though liens for purchase-money of the real estate are not impaired.
If the property levied upon exceed $300 in value, and is indivisible, the
defendant is entitled to that sum from the proceeds. The widow and
children are entitled to the same amount from the estate of the deceased
husband and father.
The exemption affects only debts contracted on or after the passage of
the law.
Brightly's Purdon's Dig., vol. 1, pp. 636-8.
South Carolina. The constitution requires the legislature to exempt from
attachment and sale under any process, the homestead of the resident
head of a family, in land held in fee or less estate, not exceeding $1,000 in
value. A married woman who has a separate estate, while her husband
has less than the homestead limit of value, may claim the exemption ; but ,
both together cannot have exemption of realty beyond that limit No
property is exempt from taxes, purchase-money and cost of improve-
ments. The homestead right cannot be waived. Const, art. II, § 33.
The statute embodies these pi'ovisions and provides for their enforcement
972 APPENDIX.
South Dakota. The homestead within an incorporated town is one
acre, wliich, with the dwelling and appurtenances, must not exceed $5,000
in value. The homestead, beyond corporation limits, must not exceed
one hundred and sixty acres in extent, and $5,000 in value. There are the
usual restrictions and exceptions. The statutes relative to homestead are
in sections 24 to 57 of the Compiled Laws. See ch. 86, p. 300, of Session
Acts of 1890 ; Session Acts of 1891.
As many of the homesteads in the new states of North and South Da-
kota were acquired under the territorial statutes which still govern as to
the acquisition and debts then existing, the following notes on those stat-
utes are presented :
The homestead of every family, owned by either husband or wife, shall
be exempt from execution, except for taxes and on mechanic's lien for
work or material in improving the exempt property. Should a husband
or wife survive the other spouse and continue to occupy the homestead,
whether with children or without, the exemption shall continue in favor
of such occupant. Husband and wife must join in any instrument of
conveyance or incumbrance.
When one owns more than one dwelling, he must select the one he
would hold as exempt
The homestead may embrace contiguous lots or tracts with buildings
and appurtenances, and may embrace lots or tracts not contiguous, if
habitually used in good faith as one homestead ; but it must be limited to
one acre within a town plat, and to one hundred and sixtj' acres other-
wise. If the homestead is claimed upon any land claimed under the laws
of the United States relating to mineral lands, it shall be limited to one
acre whether within a town plat or.not
It must not embrace two dwellings, but may include a business shop
used by the owner.
[The Dakota provisions are in these 4nd other respects not repeated, like
those of Iowa, which see.]
Compiled Laws of Dak., 1887, §§ 3449-2468, 5778-5781.
Tennessee. A homestead and improvements to the value of $1,000, in
possession of a head of a family, is exempt, except against a claim for
purchase-money therefor or improvements thereon, or for taxes.
Alienation of the homestead of a married person can be only with the
joint consent of the husband and the wife.
The exemption inures to the benefit of the widow, and continues, as to
the owner's debts, after his death, during the minority of any of his chil-
dren.
Const., art. XI, sec. 11.
The homestead of a decedent head of a family to the value of $1,000, " or
real estate " of that value, is laid oil to the widow and children. The hus-
band and wife jointly may sell the homestead. A debtor may claim land
as exempt which is not occupied as a home. A leasehold homestead is
not exempt from rents. Code, §g 2935-2939.
Texas. The homestead of a family to the amount of two hundred acres of
land with improvements, or a lot or lots in a town to the value of $5,000,
exclusive of improvements, with the improvements thereon, used as a
home or as a place of business by the head of the family, is exempt, ex-
APPENDIX. 973
Texas — continued,
cept upon a claim for the purchase-money thereof, or for improvements
thereon, or for taxes.
It cannot be aldenated without the joint consent of the husband and
wife, when the owner is married.
No mortgage, lien or trust deed on the homestead is valid (except as
above stated), whether created by husband and wife or by one alone, and
all pretended sales of the homestead involving any condition of defeas-
ance are void. No temporary renting shall change the character of the
homestead when another homestead has not been acquired.
"On the death of the husband, wife, or both, the homestead descends
and vests like other real property of the deceased and shall be governed
by the same laws of descent and distribution, but shall not be partitioned
among the heirs of the deceased during the life-time of the husband or
widow, or so long as he or she shall occupy or use the same as a home-
stead, or the guardian of minor children shall be permitted so to do by
order of court"
Const, art XVI, §§50, 51, 52; Sayles' Texas Stat, 1888.
Utah. Comp. Laws 1888, § 3429 (11) : Homestead of the value of $1,000 is
exempt to the resident married householder ; |500 to his wife in addition ;
and $350 to each of his children, in further addition. If excessive it may
be partitioned or sold at the option of the debtor. If sold, he takes the
proceeds to the exempt amount which remains exempt Appraisers are
selected before sale, one by the debtor and one by ihe creditor ; and a
third is chosen in case of disagreement. The homestead is liable for pur-
chase-money, liens and taxes. Compiled Laws, vol. II, p. 308.
The homestead must be included by the executor or administrator in
the inventory of the estate of the deceased exemptionist lb., p. 484.
When a homestead is set apart by a judgment of court, the decree must
be recorded in the recorder's office of the county where the land lies.
lb., p. 589.
The widow and children of a deceased exemptionist are entitled to oc-
cupy the homestead, until letters of administration have been granted
and the inventory retui-ned. The court must make reasonable allowance
for their support, and may set apart all the exempt property for that pur-
pose, lb., p. 489.
Vermont. A homestead is exempt to the value of $500. It consists of
a dwelling-house and appurtenances and the land on which they are
situated, while " used or kept " as a home by a housekeeper or head of a
family. Permanent removal forfeits exemption. The homestead deed
must be recorded prior to the contracting of the debt to secure immunity
from it Leaving it for record, at the proper office, is compliance with
this requirement on the part of the beneficiary. Homesteads are liable
for purchase-money, antecedent debts, lien, taxes, etc. The widow may
claim both dower and homestead in her debeased husband's real estate —
the former for life and the latter in fee. The husband alone may mort-
gage the homestead after divorce from his wife ; but whfie both are oc-
cupants and -in marriage, both must join to sell or incumber it Rev.
Laws.
974 APPENDIX.
Virginia. Every householder or head of a family is entitled to exemption
of realty and personalty, or either, to the amount or$2,000. Const., art 11,
§ 1. See ante, p. 53.
There is exemption of realty and personalty to the amount of $3,000.
This may be wholly in realty, or wholly in personalty, or in both together;
it may include money or debts due the beneliciary. He selects from all
his property to the maximum allowance, or less. The exeinptionist must
be a householder or the head of a family, and a resident of the state.
His selection of realty must be recorded. There are special chattel ex-
emptions in addition to the foregoing.
Homestead protection from forced sale can be secured on'y by record-
ing the deed of the property in the proper office of the county in which
it is situated, with a declaration of intention to claim it as a homestead
and a description of it After the death of the head of the family, his
widow may continue to enjoy the property till her death or remarriage.
The minor children may enjoy it till the youngest reaches majority.
When the homestead right has ceased, the property passes to the heirs ac-
cording to the laws of descent
The homestead is not exempt from liabilities for purchase-money, im-
provements, services of laborers and mechanics, taxes, rents, court fees,
debts incurred by persons in a fiduciary capacity, and debts incurred with
exemption waived.
Code (1887), §§ 3630-3657 ; Const, art XI, g§ 1-8.
Washington. A homestead to the value of $1,000 is secured to the head
of a family when occupied by him and his family. TKere is no quan-
titative limit Code, § 343.
The survivor of married beneficiaries becomes "entitled" to the home-
stead if there are no minor children. If there is no marital survivor and
no minor child, the homestead becomes liable to creditors. Ib.,% 343.
The owner and his wife jointly may mortgage the homestead. lb., § 344
It is liable for purchase-money, etc.
West Virginia. A homestead, with improvements, to the value of $1,000,
possessed by the head of a family, is exempt, except as against a claim
for purchase-money, or for improvements on the premises, or for taxes.
The exemption continues after the owner's death, with respect to his debts,
during the minority of any of his children. Const, art VI, g 48.
The homestead must be recorded in the land records- of the county
where it is situated before the debt against which exemption is claimed,
shall have been contracted. Acts of 1881, ch. 19.
Wisconsin. The homestead is limited to forty acres in the country, used
for agricultural purposes, or to one-fourth of an acre in town. It umst
be owned and occupied by a resident of the state. The exemption is from
seizure and execution upon any judgment lien except laborers' and me-
chanics' liens, and from all debts except those for purchase-money, mort-
gages, taxes, etc. It applies to the proceeds of the sale of one homestead,
held, for two years or less, for the purchase of another. It is not lost by
temporary removal.
The husband and wife may hold the homestead jointly, or in common.
It is provided that a tenant in common may have the benefit of the home-
APPENDIX.
975
Wisconsin — continued.
Btead exemption if his co-tenants consent The title of the homestead
may be freehold or leasehold. A married man cannot alienate it without
the signature of his wife. If she is insane, her interest cannot be alienated
except by her guardian duly appointed.
If the husband, who owns the homestead, dies intestate, it descends to
his widow free from claims and judgments against him, except as afore-
said, if he leaves no issue. If there be lawful issue the homestead de-
scends to her during widowhood. If he leaves no widow, child or grand-
child, it becomes liable to creditors for all his debts. He cannot direct the
payment of his debts (except as aforesaid), by his last will, to the depriva-
tion of the widow, minor children and grandchildren, out of his home-
stead property. He may devise his homestead, and the devisee takes it
free from claims against the testatbr, except the privileged ones above
mentioned.
When the homestead and other realty have been mortgaged together
the latter shall be first exhausted on demand of the debtor, if susceptible
of being separately sold. If both together are indivisible, the value of the
homestead to the exemption limit shall be reserved from the proceeds for
the debtor. When levy is made the officer must lay off a homestead to
the debtor who now claims it after having previously neglected to desig-
nate one.
Sanborn & B.'s Ann. Stat of Wis., §§ 2203-6, 2271, 2280, 2983-4» 3163,
3823, 3863, 3873.
Wyoming. Rev. State., § 3780. Every householder in the state of Wy-
oming, being the head of a family, shall be entitled to a homestead, not
exceeding in value the sum of $1,500, exempt from execution and at-
tachment arising from any debt contract or civil obligation entered into
or incurred.
§ 2781 : Such homestead shall only be exempt as provided in the last
section, while occupied as such by the owner thereof, or the person en-
titled thereto, or his or her family.
§ 3783 : When any person dies seized of a homestead, leaving a widow
or husband, or minor children, such widow or husband or minor children
shall be entitled to the homestead, but in case there is no widow, husband
or minor children, the homestead shall be liable for the debts of the de-
ceased.
§ 3783 : The rural quantitative limit is one hundred and sixty acres ;
there is no urban restriction as to quantity.
§ 2784 : To sell or mortgage the homestead, the wife must join the hus-
band in the deed.
INDEX.
Eeferenoes are to pages.
ABANDONMENT OF HOMESTEAD —
by permanent removal, 558, 561.
when homestead unrecorded, 560.
voluntary, 559.
by losing residence in the state, 560, 561.
not by temporary removal, 563.
not, if intending to retm-n, 562-3.
time of absence considered, 563.
burden of proof, as to absence, 564
by establishing another home, 565, 567.
temporary absence, when allowed by statute, 565.
absence of part of the fanxily, 566.
house kept for return of family, 567.
by mortgaging old homestead and living in a new one, 568,
by foreclosure of mortgage on homestead, 571.
by acquiring federal homestead, 569.
by wife, with husband, 570, 583.
reasonable time for transition, 571.
not on losing home-buildings by fire, 571.
by leasing the premises, 571, 574r-5.
not by temporary leasing, when, 573.
by ceasing to own, 575.
not by attempt to sell, 578.
not by void sale, 290.
by quitclaim deed, 579, 741.
is a question of fact, 579.
by assignment, 580.
not by husband's desertion, 580.
wife's desertion, 580-1, 583-4
permanent absence, 581.
eflfect on wife's right, 582-584.
by widow, 585-8, 593.
and children, 587.
relative to insurance policy, 608.
by other than home use, 743.
a question on issue joined, 743.
ABSCONDING DEBTOR —
as to wife's right, 773.
63
978 INDEX.
ACCOUNT (see Liabilities of Homesteads) —
as to antecedent debts, 280-1.
marshaled, 350.
open, general rule as to application of payments, 351.
running, settled by giving note, 351.
when no election made as to application of payments, 351, 353.
ACKNOWLEDGMENT —
of deed, by wife, 428-439.
strictly according to law, 423.
not essential, when, 424.
certiiicate of, defective, 427.
will not be reformed, when, 427.
sufficiently formal, when, 427.
taken by a clerk, of probate, 428.
when too late, 489.
after husband's death, 429.
after interests of others are vested, 429.
to release dower only, 431.
ACTIONS (see Pleading and Peactice).
ACTIONS EX DELICTO, 913-916.
exemption generally not allowed in, 9, 918.
not for debt, 914.
on penalties, 914.
on tort by wife, 915.
costs, 915. ,
ADJOINING LOTS (see Dedication; OccfUPAUcr). '
ADMINISTRATOR —
fee of homestead not an asset of the estate, 494.
not to administer the homestead, 652, 712.
when to hold possession of homestead, 628.
occupancy of homestead, as to administrator's sale, 493.
sale by, in general, 490.
suit by, relative to creditors, 710-716.
by bill in equity, 710.
may protect rights of creditors, when, 713L
AFFIDAVIT —
of contest by creditor, 673-5, 703.
filed when, 673-5, 703.
of attorney, when insufficient, 670-1.
of applicant for United States' homestead, 932, 939.
must contain, what, 932, 939, 946-8.
may be made by a soldier, how, 934.
effect of false swearing, 934, 938.
cannot be imposed by secretary of the interior without authorization
of law, 987.
AGENT (see Pleading and Practice).
AGEICULTURAL IMPLEMENTS (see Chattel Exemption).
INDEX.
979
ALIENATION (see Restraikt op Alienation. See, also, Acknowiedg-
MENT; Fraudulent Sale; Liabilities of Homestead; Sale op
Homestead; Sale with Homestead Use Reserved).
ALIEN-BORN APPLICANT (see Federal Homestead).
ALIMONY (see Family Headship; Divorce).
ALLOTMENT TO DEBTOR —
statutory provisions, 661-4.
on creditor's application, 663.
widow's application, 663.
what to be alleged, 663.
appraisement, 662, 671.
debtor paying excess, 664.
on debtor's application, 665-7.
when he should apply, 665.
before sale, 665.
debtor entitled to opportunity, 668.
effect of over-claiming, 666.
loss of claim, 667.
sherifiE's duty before sale, 668-67a
valuation not conclusive, when, 669.
order, relative to assignment, 670.
affidavit of attorney, 670-1.
in attachment cases, 671.
contesting affidavit, 673-5.
burden of proof, in contest, 676.
confirmation, 675-7.
by bankrupt court, 676.
when second allotment disallowed, 677.
when homestead is mortgaged with other realty, 714
ANTECEDENT DEBTS —
prior to the law, 276.
former rulings, 276.
impairment of contracts, 377-9.
judgnients disregarded, 280.
novation, 281, 383.
prior to marriage, 381.
purchase, 283, 393.
occupancy, 283.
establishment of homestead, 284
filing deed, 387.
designation, 293.
recording, 293.
dedication, 298.
attachment for, 317.
chattels governed by the homestead rule, as to, 909.
ANTE-NUPTIAL CONTRACT —
waiver of homestead, in, 613.
favored, 612.
disfavored, 613.
980
INDEX.
APPLICATION FOR HOMESTEAD (see PLEABma and Peactice) -
by either spouse, 123.
after loss of family, 88-98*
after sale, 761.
APPRAISEMENT —
when homestead allotted to debtor, 662.
duty of appraisers, 663.
in segregation, 758.
report of, 758.
creditor's aflSdavit, 758.
when too late, 641.
after schedule submitted, 853,
not by sheriflE's officers, 854
when null, 855.
by appointees duly sworn, 853.
after inspection of the property, 856,
of widow's allowance, 856.
object of, 857.
of money, supei-fluous, 856.
of value of land in fee, 166.
confirmation by decree, 705, 856.
officer must cause, 780.
may be compelled to cause, 857.
by mandanms, 863.
must set exempt goods apart, after, 861.
APPURTENANCES (see Use) —
shops, offices, etc., 232.
subsidiary to homestead, 233.
business houses, not, 235, 239.
when held exempt, 238, 240.
ARMS (see Chattel Exemption).
ASSIGNMENT (see Fraudulent AssiaNMENT) —
of purchase-money note, 347.
carries lien of vendor, 347.
when otherwise, 350.
of note, forfeiting exemption, 777.
relative to restraint of alienation, 417, 418.
of homestead, 452.
to widow, in fee, when conclusive, 717.
general, not affecting exempt property retained, 871.
as to promise of assignee to set off chattels, 867.
discussed, 867, n.
to bankrupt, void when, 280.
ATTACHMENT OF CHATTELS —
claiming at time of seizure, 876, 878.
by debtor, 876-8.
by other beneficiaries, 877.
not by debtor permanently absent from the state, 877.
INDEX. 981
ATTACHMENT OF CHATTELS — continued.
claimant debtor must own when the attachment is laid, 878.
dififerent from execution, 671.
different from execution as to time to claim, 880.
must claim before judgment, 881.
waiver by not claiming, 883-4.
-decisions favoring claim after judgment, 884
garnishee not to claim for defendant, 883-4,
relative to sale pendente lite, 886-8.
ATTACHMENT OF HOMESTEAD —
lieji a vested right, 303-3.
not displaced by claim, 303, 304
iield subject to claim in some decisions, 305-310.
should be recorded, when, 306.
of homestead after its establishment, 307-318.
pleading exemption, 309, 313, 745-749.
notice of homestead right, 311.
effect of waiver, 314
rights of wife, 316.
children, 316.
for antecedent debts, 817. ,
creditor may redeem from mortgage, 347.
when wife a necessary party, 686, 742.
when homestead has been abandoned, 744
claiming exemption, in separate action, after attachment, 743.
when recording attachment lien is necessary, 744
rule to dissolve, 744
not a general proceeding in rem, 745.
BACHELOR (see Family Headship).
BANKRUPT —
as to fiduciary debt, 337.
may claim homestead, when, 767.
'BID —
effect of no bid, as to exhausting property, ^2^.
BILL IN EQUITY—
may be filed by wife, when, 688-9.
by widow, for assignment of homestead, 69Sk
to protect her homestead, 695.
by creditor, as to excess of homestead, 737.
by owner, to remove cloud on title, 389, 740.
by administrator, when, 710, 711.
to redeem from mortgage, 714
cross-action, 716, 731.
answer to, 701.
BOND —
of curatpr, good against homestead, 389.
of collector, 733.
982 INDEX.
BOND — continued,
of guardian, 733.
when widow must give^ 634-5.
of indemnity to oflSoer does not relieve him from duty, 780.
when given, 781, 861.
BOOKS —
bibles, prayer and hymn books exempt, 818.
school-books, 818.
libraries of professional men, 818.
limited as to value, 819.
presented by congress or legislature, 819.
circulating libraries, 819.
of public offices, 819.
manuscripts, 819.
BOeIrOWED money (see Pukchase-monet) —
to pay for homestead, treated as purchase-money, 837.
lender .has lien on homestead, 387.
by trustee to purchase homestead, 338.
to extinguish incumbrance on homestead, 338.
resulting trust created, how, 339.
traced, by an alien, to homestead investment, 389.
collectible of homestead, without express subrogation, when, 889.
as to, when homestead has been abandoned, 839.
evidence of promissory note, 339, 343.
gives right of subrogation, 340.
secured by mortgage, 340.
to purchase plantation supplies, 341.
distinguished from purchase-money, 341, 345.
illustrated, 341-3.
does not bear on homestead, held, 343.
does bear on homestead when property-debt is created, 843.
debt for, not supported by vendor's lien, 343.
judgment for, a lien on homestead, 344.
not on mortgage for, assignable, with subrogation, 347.
BURDEN OF PROOF (see EvidenceX
"BUSINESS HOMESTEADS" —
a misnomer, 350.
what they are, 343-355.
distinguished from resiflence, 342-349.
not contiguous, 244.
partners denied, when, 248.
uses as indicia, 251-4.
as to, when one has several callings, 354
CAVEAT EMPTOR —
applies to creditor's judicial sale, 735.
as to purchaser at administrator's sale, 534
price returned on failure of title, 857-9.
INDEX. 983
CERTIFICATE —
of entry, see Federal Homestead.
final, see Federal HoMESTEAi.
CHANGE OF HOMESTEADS (see Exchange of Homesteads), ,
CHARITABLE PROVISIONS (see Policy of the Law) —
poverty not the " mischief " for which homestead is the remedy, 4
for necessitous widow and children, 460.
for necessitous children, 654^5.
CHATTEL EXEMPTION —
differentiated from homestead, 763.
policy of the law, 764
interpretation of statutes. 764
liberal, 764
strict, 764-5.
governing law, 766 (see Governing Latt^
absolute, 768.
conditional, 768.
when debtor may sell or mortgage, 769.
claim by possessor of chattel, 770.
family head, 771,
wife, 773-4
resident, 774
artisan, 775.
alienated, 775.
abandoned, 775.
exempt to widow, when, 787.
absolutely, 788.
household goods, 791-3,
necessary, 791.
convenient, 793.
ornamental, 793.
furniture of hotels, 793-4
boarding-houses, 793-4
restaurants, 793-4.
clothing, 795.
watches, jewelry, etc., 796.
tools of mechanics, etc., 796-SOt
farmers, 797-8.
photographers, 798-9.
dentists, 798-9.
doctors, 797, 811.
contractors, 799, i '
lawyers, 799.
tradesmen, 800,
machinery, 801.
printing press, 803.
types, 803.
material, 803,
984 INDEX.
CHATTEL EXEMPTION — continued.
^ wagons and other vehicles, 803-6.
carts, drays, etc., 804.
dependent on avocation, 805, 807.
teamster's vyagon and team, 805, 807.
domestic animals, 806-8.
needed in business, 811-813,
stock in trade, 811-813.
of merchant, 813-815.
crops, 815-818. i
whether exempt with homestead, 841.
provisions, 818.
books, 818.
pictures, 819.
musical instruments, 820.
sewing machines, etc., 830.
fire-arms, 830.
boats, 820.
interests, 833.
wages, 833.
salaries, 83-5.
choses in action, 838.
money deposited, 834.
fire insurance money, 835.
life insurance money, 836.
pension money, 837.
in transit, 840,
accumulations of, 843.
CHILDREN'S HOMESTEAD —
nature of, 643.
relative to the parental relation, 61,
«ifect of father's death, 643.
the mother's control, 644.
selection after father's death, 645-8.
assignment to children, 646.
appraisement, 646.
setting apart, 647.
necessary parties to the proceeding, 647.
minors as litigants, 648.
relative to indebtedness, 651-4.
order to pay debts, 651.
inheritance of adult heirs, 653.
co-tenancy of widow and children, 653.
absolute title, 653.
necessitous children, 654.
insolvent estates, as to children, 657.
divorce of parents, as to children's rights, 73.
grandchildren, when not entitled, 603.
when entitled. 606.
of widower, 75.
INDEX. 983
CHOSES IN ACTION (see Wages; Promissoky Note)—
may be exempted, 828.
against set-o£F, 839.
CITIZENSHIP (see Residence).
CLAIM OF CHATTEL EXEMPTION —
by whom, 770-6.
how, 776-7.
when, 777-9.
in writing, when, 776.
of one exemption only, 782.
some things repeatedly claimed, 783.
claiming less than the maximum, 783.
money instead of other chattels, 784.
chattels instead of homestead, 785.
before execution sale, 665, 739-738, 880.
CLOUD UPON TITLE —
may be created by execution sale of homestead, 753.
removed by bill in equity, 740.
prevented by injunction, 753, 754.
COMITY —
how limited, 893. 894.
when not obligatory, 895. -
when obligatory, 897.
COMMUNITY PROPERTY —
deeded by husband to wife, after divorce, 70.
how in Texas, 71, n.
not partnership effects, 594.
husband cannot convey, when, 123.
survivor cannot sell, when, 596.
civil-law rule, as to, 603.
when segregation of homestead from, impracticable, 664,
vests in surviving wife, when, 708.
effect of divorce upon, 70.
CONCEALMENT (see Fraudulent Concealment).
CONDITIONS OF HOMESTEAD —
benefit granted on, 49, 98, 103, 104
assent of the owner to, 99.
must co-exist when declaration is made, 178.
embrace family headship, 57.
ownership, 102.
dedication usually, 146.
occupancy, 175.
CONSTITUTION (see Construction) —
violated by exemption from antecedent debts, 10.
as to homestead, how construed, 765.
effect of change in, 640.
when directory, 53.
986
INDEX.
CONSTITLTTION — continued,
as to exemption of realty, 53.
personalty, 53. . ,
intestate estates, 54.
denial of process, 55, 56. '
securing married woman's homestead right, 134
change of, does not afifect homestead, 85.
provision relative to descent of homestead, 88, n.
as to conferring homestead, 103, n.
securing married woman's property rights, 134
enlarging homestead limits, 148, 33a
with homestead limit by statute, 163.
requiring dedication, 163.
ordaining exemption, 323.
does not confer exemption absolutely, where, 230.
forbids alienation of homestead without joint.consent of husband
and wife, where, 433. /
CONSTRUCTION —
of homestead laws, subject to all the general rules, 34
not of plain statutes, 34, 338.
of words, 35.
uniform, 37.
liberal, 38-33.
when there is something to be construed, 31.
mischief and remedy, 39.
spirit of the law, 33.
general tenor of the statute, 83.
policy, 83.
not by courts, 35, 38, 34-6.
laws in pari materia, 34, 47.
charity theory, 36, 206, 483.
not at the expense of justice, 37.
strict, as to statutes, against common right, 38, 40.
restraining alienation, 43, 419-423.
to prevent fraud, 43.
rule in Florida, 43.
as to enlargement of wife's property rights, 44
exceptional decision in Michigan, 45-6.
not extended by, 47.
conflicting, 51.
of exemption in Louisiana, 89.
how in Vermont, 40.
Texas, 40.
South Carolina, 40.
New York, 41.
to prevent fraud, 43.
not to be extended by, 47-50.
on questionable grounds, 93-6.
INDEX. 987
CONSTRUCTION — continued,
not to supply omissions, 47.
pointedly so held in Idaho, 47, 48, n.
exceptional view in Texas, 48.
in Michigan, 49.
in one state, how far to be regarded in another, 5L
long acquiesced in, 52.
of constitutions, 53.
of constitutional provisioQS relative to realty, 53,
personalty, 53.
intestate estates, 54.
ordinance, as to interpretation, 55.
denying process, 55-6.
of chattel exemption statutes, 764.
rule as to liberal and strict construction, 764r-6i
implications, 765.
rules of societies, 765.
state constitutions, 765.
exemption from taxes, 765.
CONTRACT —
written, debts by, 394.
lien by, 295.
include the homestead statute, 395.
impaired by exemption, when, 276-381, 767-8.
costs, when, 677-680.
early decisions, 276-7, 380.
law later than the obligation, 376-7, 380.
in derogation of the common law, 376-7, 380.
unconstitutional, 378.
includes the remedy as part of the obligation, 378.
inhibition of impairment is upon states, 379.
as to congress, 279.
as to divesting rights, 380.
CONVERSION, ACTION FOR (see Officer) —
must be preceded by claim, when, 778.
by the owner of property converted, 781.
by the debtor's wife and children, 860.
by a mortgagee in possession, 861.
when the wrongful act is by deputy officer, 863.
actual loss and costs only recoverable, when, 863,
judgment stands for the property converted, 864
receiver appointed, when, 858.
on court's own motion, in Georgia, when, 859, n.
CONVEYANCE (see Rbstkaint of Alienation ; Sale with Homestead
Use Reserved).
COSTS —
impair contract, when, 677-680.
follow judgment, when, 758-761.
088 INDEX.
COSTS — continued.
in actions ex delicto, 739.
ex contractu, wlien, 759.
in mixed actions, when, 760.
on junior judgment, 763.
recoverable, when, 863.
CO-TENANCY —
' in general, as to homestead, 131-138.
of husband and wife, 131, 126, 140-14a
of mother and children. 143, 653.
not in homestead but in other exempt property, 184, 136, 137-140.
in exempt real interests, 706.
tenants in common, widow and cliildren as, 624.
COUNTRY HOMESTEAD (see Eueal Homestead).
CREDITOR — '
ordinary, 8.
notice to, 10, 870.
holding lien, 14.
as to the governing law, 19, 766.
how affected by exemption, 123.
not affected by sale from husband to wife, 12^, 484
with claim prior to homestead act, 276.
purchase of homestead, 383.
the filing of tlie homestead deed, 287.
designation of homestead, 393.
on written contract. 294.
holding dormant lien, 296.
attaching homestead, 302-318, 741-6.
as vendor of the homestead, 331-357.
when without lien, 333.
as lender of purchase-money, 337, 503.
as third holder of purchase-money note, 346.
as to the order of his accounts, 350.
as mortgagee after selling property for homestead, 353.
I'elative to foreclosure, 714, 873.
as to the price when title has failed, 354.
as to his right to execute excess of homestead, 410.
as to sales with homestead use reserved, 469-496.
by solvent owner, 478.
by insolvent debtor, 481.
by administrator, 490, 710.
pendente lite, 880.
in execution , 486, 738.
fraudulent, 504, 526, 529, 531, 918.
ci-editor disinterested, when, 513.
remotely interested, 515.
assignment-ef chattels, 931.
INDEX. 989
CREDITOR — continued.
as to sales to the creditor's prejudice, 517. •
right to recover, 531.
of liable property, 533.
as to forfeiture of homestead, 534
as to waiver of homestead right, 589-556.
may recover after abandonment of homestead by debtor, 558-584
relative to the children's homestead, 651.
contesting the allotment to the debtor, 673.
not to have his contract impaired by costs of court, 677.
concluded by his own act, when, 707.
as to wages, 833.
choses in action, 838.
set-off, 829.
rank with other creditors, 870.
as to attachment of chattels, 876-900.
garnishment, 888-898.
of a partnership, 908.
may recover from partner share, when, 905.
not recover, when, 907.
as to debts prior to chattel exemption, 909.
for price of chattels, 910.
CROPS —
on leased farm, 113.
of cotton, damages for conversion, 113, n.
as means of family support, 241-3.
growing, 341, 816.
gathered, 241, 816.
of cotton, under deed of trust, 241, 816.
not exempt because the gi-ound is, 243, 816.
exempted liberally, 815.
for family support, 816.
seed corn and other seed, 815-6.
to one not head of family, in South Carolina, 816.
as to lien of landlord, 816.
provisions in several states, 817-8.
DAMAGES —
against officer for wrongful levy, 668.
double, when, 859.
treble, when, 859.
single, against surety, 859, 860.
awarded to tenant in common, double, when, 861.
for wrongful levy, 859.
dependent on legality of exemption claim, 861.
whether recovered damages are exempt, 864
DEBT (see Liabilities of Homesteads) —
antecedent, see Antecedent Debts.
exempted from, is ordinary, 8-10.
, after notice to creditors, 10-12,
990 INDEX.
DEBT — continued.
to state, how affected by exemption, 13-14
secured by lien, not protected, 14-18i
foreign, 338, 383.
domestic, 383.
ordinary, 8, 16, 384
of the property itself, 349, 350.
for homestead purchase, 331-357.
for improvements, 361-369.
accounts marshaled, 350-8,
DECLARATION —
on one dwelling only, 147,
how made, 160.
by wife, 64, 163.
form of, 163.
effect of, 163.
of occupancy, 164-5, 176.
on wife's separate property, 164
joint, 164-5.
how proved, 165.
of value, 165, 311.
preventive of forced sale, 173.
as to existing liens, 174.
as a condition of hotnestead, 176. '
when directory, 178.
evidence of, 559, 564.
of husband and wife, as to ownerehip of homestead, 749.
transcript of, in evidence, 749.
by husband, when inadmissible, 750.
by wife, admissible against herself, 750.
by widow, 193.
by the son of a widow, 753,
DECREE (see Judgment).
DEED OF HOMESTEAD —
when null, 475.
separate deeds by husband and wife, 485.
from husband to wife not fraudulent, when, 389,
fraudulent, when, 348.
In escrow, 556.
by quitclaim, 579, 607.
DEED OF TRUST —
in general, 375-7.
to secure' purchase-money note, 34&
by husband to wife, 536.
alone, 559.
by debtor, 537.
suit upon, 750.
JUDEX. 991
DEED OF TRUST — continued,
by widow, 633.
effect on widow's homestead right, 633.
by husband and wife jointly, 647.
DEDICATION —
by husband, bestows rights on his wife and children, 60.
requires exclusive possessory right, 131.
not of property held in co-tenancy, 181-4
limited to one properly, when, 146.
effect of building a second house, 147-8,
as to single tract of land, 149.
contiguity of tracts, 149, 150.
quantitative limit, 149, n.
as to two or more tracts, 153-4
no formal declaration required in Texas, 154
in South Carolina, 157.
of urban homestead by platting and according, 154-8.
required in Iowa, 154-8.
in Georgia, 157.
directory, 156.
may be after levy, 156.
by ofi5cer, 156.
as to rural homestead brought within town lines, 155-7.
as to form generally following government surveys, 158-160.
in the older states, 159.
should not be fantastic, 159.
method of, 160-3.
by declaring and recording, 160, 169-74
in Homestead Book, 161.
like a grant, 161.
marking the bounds, 161, 163.
filing certificate, 163.
recording intention, 163.
occupancy, 163.
acknowledgment, 163.
held onerous and optional, in Louisiana, 168.
DEFENSES (see Pleading and Practice ; Gaenishment in Foreign Ju-
risdiction).
DEFINITION—
of homestead, 1, 375.
tvidow's homestead, 611.
homestead estate, 361.
householder, 75, 80, 135, 237.
citizen, 63.
family, 58, 81.
calling, 346.
business, 346.
owner, 83.
993 INDEX.
DEFINITION — continued,
of owned, 109.
occupied, 109, 179, 302-4.
tax sale, 388.
improvements, 361.
laborer, 824.
lot, 156, 214
purchase, 106.
" dependent for support," 59.
" householder and head of a family," 75, 80,
"head of household," 80.
" used or kept," 191.
" used to carry on business," 813.
tool, 796.
hearse, 804.
DESERTION (see Family Headsbip) —
by wife, 66.
by husband, 773.
DEVISE (see Restraint of Testamentary DisposmoiOi
DIVORCE (see Family Headship) —
in general, as to homestead, 67.
efEect on homestead right, 68-71.
forfeiting the right, 72.
how affecting community property, 70.
mortgage, 73.
children's rights, 73.
claim of homestead by a divorced person, 101.
DOMESTIC ANIMALS -
when absolutely exempt, 806.
when selection necessary, 806.
selection of, as to officer's duty before execution, 807.
when exemption conditional, 807.
employed in different callings, 807.
kept for hire, 807.
harness for horses, 808.
selection of, binding on debtpr, 808.
used for pleasure or convenience, 808.
exempt irrespective of their uses, 809.
exchanged, to defeat execution, 809.
bought, to sustain claim of exemption, 811.
owned exclusively, 809, 811.
exempt in pairs may be singly claimed, 810.
DOMICILE —
insufficient without actual residence, 774.
of wife and children, 61.
follows that of her husband, 70.
of the family head when acquiring homestead, 63.
continues till new one made, 561, 564,
INDEX. '' 993
DONATION —
of homestead, with right of occupancy reserved, 7381
DORMANT LIENS —
of general judgments, in Virginia, 15,
of judgments, 398.
eflfect of docketing, 297.
suspension of process, 296.
relative to administrator's sale, 297.
reversion, 300l
waste, 300..
LOWER RELATIVE TO HOMESTEAD —
may be waived, 544
may not affect homestead, 545.
compatible with homestead, when, 614-618.
incompatible with homestead, when, 618-625.
conveyance of, eififect on homestead, 616.
DUAL HOMESTEADS (see "Business Homesteads ">
EARNINGS —
of debtor, when not wages, 823.
of clerks, book-keepers, etc., 835.
as to whether contract is test of, 835.
salaries, 826.
of a photographer, 837.
for family maintenance, 837.
EJECTMENT —
when purchase-money unpaid, 107, 359.
by the purchaser at a sale in suit for purchase-money, 717.
of private purchaser by purchaser at judicial sale, 718i.
by widow, 627.
by mortgagee, 718.
suit, in which the wife is a party defendant, 685.
ELECTION —
by widow, between homestead and dower, when, 618.
distributive share, 630.
by debtor, as to remedies for wrongful levy, 857.
by wage-earner of reniedy for wrongful garnishment^ 895.
EQUITABLE ESTATE (see Ownership).
EQUITY (see Bill in Equiit) —
of redemption, 119.
widow's homestead right in, 634. j
maxims, 528.
when proceeding must be ii' equity,. and. not by executioii, 147.
ESTATE OF HOMESTEAD —
likened to dower, 261-3.
not strictly an estate, 265-7.
a privilege, 268.
negative, 369.
63
.994
INDEX.
ESTATE OF HOMESTEAD — continued,
trust, 270.
of widow, 371.
not alienable, S73.
abandonable, 373.
relative to exemption, 373.
ESTOPPEL —
by sole deed, 393-5.
from claiming, 533.
of wife, 649.
of husband but not of wife, 693.
not when mortgage is void, 719.
by plea of homestead, 749, 751.
not by debtor's silence, when, 866.
disclaimer, when, 866.
EVIDENCE —
by written contract, 394.
aliunde, 675.
of declaration of homestead, 559.
by transcript, 749.
of facts to show exemption, 864.
burden of proof on claimant, 865.
resident claiming as such, 901.
declarant, 750.
contesting creditor, 674 '''49.
claimant, 700, 901.
purchaser, 389, 751.
when homestead sold by probate order, 713.
when defendant claims on foreclosure, 718.
that property is exempt, 879.
that other property than homestead exists, 737.
that homestead exceeds the limit, 879.
no presumption that homestead is excessive, 700.
there is other property, 737.
presumption favors ofiBcer's return, 703.
of husband and wife, as to ownership, 749.
when husband's declarations inadmissible, 750.
when wife may prove her right from former husband, 751.
husband is a competent witness, 751.
of attorney as to notice to purchaser, 751.
effect of, as to consideration of promissory note, 753.
circumstantial, as to intent to occupy homestead, 201.
EXCESS OF HOMESTEADS —
beyond limits of value and quantity, 405-410.
first exhausted when all liable, 410-415.
EXCHANGE OF HOMESTEADS —
new homestead, as to old debts, 385.
not liable, unless excessive, 385.
filing of deed of, 390.
bought with proceeds of exempt property, 290-1, 438-443,
INDEX.
EXECUTION —
denial of process, 55-6, 747.
platting to precede, -when, 156-7.
selection before, 163.
of fee with homestead use reserved, 486.
delayed during occupancy, 296, 493.
after exhaustion of other property, 410-5, 754
of the excess of homestead, 525.
how differing from attachment sale, 671, 880.
preliminary duties of sheriff, 668-673.
after wrongful levy, 668, 859.
as to allotment to debtor, see Allotment.
schedule, see Schedule op Debtor's Property:
appraisement, see Appraisement.
segregation, see Segregation.
insolvency proceedings, 708-9.
ground for action of trespass, when, 756.
on debtor's failure to claim exemption, 726, 729, 866.
effect of lack of bid, 727.
void, when, 731.
cannot defeat homestead duly claimed, 788,
as to occupancy, 738-741.
exemption from, does not affect title, 739.
of husband's separate interest, 739.
when title is in either husband or wife, 739.
after advertisement showing what title to be offered, 740t
to pay imprivileged debts, 740.
restrained by injunction, 753-5.
may cast cloud upon title, 753.
of abandoned homestead, 743.
set aside on motion, 747.
confirmed by court, 761.
alias, 783.
proceeds of, as to liability of sheriff, 758L
paid to debtor, when, 780.
writ of, 858.
in actions for tort, 295, 913-4.
by wife, 915.
for penalties, 914
on fiduciary debt, 326.
for purchase-money, 334-5, 728L
for improvements, 363.
taxes, 395, 338.
against partnerships, 903-9.
when cause for action of damages, 859-863.
EXEM^ION (see Chattel Exemption) —
what realty is exempt, 5.
home property, ordinarily liable, is protected, S.
habitable propeity, 6.
996
906 liSTDEX.
EXEMPTION — continued
as to quantitT-, see Quantitative Limit,
value, see Monbtaby Limit. ,
of partnership assets, when, 144. See Partnership Personalty.
optional, 168.
inoperative against a duly executed recorded mortgage, 171-3.
of realty and personalty together, 239-31.
EXTENSION OF CORPOEATE BOUNDS (see Quantitative Limit).
FAMILY (see Family Headship. See, also, Children's Homestead;
Divorce ; Heirs ; Husband and Wife ; Occupancy ; PLEADma
and Practice; Surviving Spouse; Widow; Wife) —
how constituted, 7, 57.
its parental and conjugal relations, 58.
domiciliated with the head of family, 61.
parental relation cherished by the state, 61,
adopted children, 63.
home of parents and children protected, 64
of those not bound by natural ties, 64
after desertion by the wife, 67.
FAMILY HEADSHIP (see Family) —
a condition of homestead, 57, 83.
not universal, 57, 83.
representing members of family, 57, 83.
householder's obligation to support dependents, 58, 831
not domestics, 58.
as to relation by contract, 59.
as to orphans charitably cared for, 59,
moral duty to support dependents, 59.
legal duty to support dependents, 60.
of the husband, 60.
of the owner and occupant, 60.
effect of dedication by the family head, 60.
duty of wife and children, 61.
when living temporarily alone, 61.
members of family, as to acts of their head, 61.
difEerence between married and single heads of families, as to aliena- ■
tion, 63.
" head of family" and "married man" distinguished, 63L
of husband and wife, together, 63.
either may claim homestead, 64.
each cannot, 65.
of wife, when, 64, 65.
of husband and father, 85.
when homestead owned by a subordinate member of the family, 66.
when the wife has deserted, 66, 67. '
after divorce, 67, 84, 87.
as to the homestead property, 68. >
as to selecting a new homestead, 69.
IHDEX. 997
FAMILY HEADSHIP — continued
after divorce, as to division of property, 69, 70.
as to community property, 70, 71.
as to tenants by entireties, 71.
as to forfeiture of homestead right, 73.
as to moi-tgage, 73.
as to custody of the children, 73, 74.
as to dower, 73, n.
as to alimony, 74.
of widower, 75.
•with children, 75.
without children, 75, 82, 84
after loss of children, 86.
of widow, acquiring original homestead, 75, 76.
dependent upon having children, when, 77.
as to adopted children, 77.
as to leasehold, 77.
of Stepmother, 77-8.
of childless widower or widow supporting natural dependents; 78.
of husband of a second wife, 78.
of debtor, acquired pending execution, 78.
of unmarried persons, 79.
recognized, when, 79, 80.
denied, when, 79, 81.
not restrained in alienation, 81.
as to descent of homestead, 81.
of householder, 80, 85.
without family, 97.
of more than one family residing together, 83,
as to acquiring and retaining, different, 84>
as to loss of family, 83-4.
upon change of state constitution, 85.
as to claiming, after loss of family, 88.
as survivor, 91-3.
right not divested, when, 94
relative to rights of creditors, 95-6,
weight of authority against it, 98.
reason against it, 99-101.
FEDERAL HOSlESTBADS —
compared with state homesteads, 934
definition, 934
policy, 934.
principles, 935.
exemption, 935.
beneficiaries, 936-929.
qualifications, 936.
married persons, 937.
widows and heirs, 927.
foreign-born applicants, 928.
. not a husband, living on his wife's homestead, 148.
998 INDEX.
FEDERAL HOMESTEADS — continued,
entry — what land open, 939-931.
what quantity, 929.
exception of mineral lands, 929.
of occupied lauds, 930.
of adjoining farm, 981.
application and settlement, 932-934
affidavit, 932.
settlement actual, 932.
valid possession, 933.
commutation, 983.
abandonment, 934
soldier's and sailor's homestead, 934-93&
how secured, 934
what service, 935.
soldier's children, 935.
children's rights held vendible, 935, 930.
executive acts, 936-939.
of register and receiver, 936.
of secretary of the interior, 936, 937.
of commissioner, 937.
certificate, 937.
segi'egation, 938.
cancellation of entry, 939.
judicial action, 940-942.
remedies, 940.
on questions of fraud, 941.
settler's rights relative to railroad grants, 943-946.
claims in conflict, 942.
vested rights, 943.
grant to state for railroad construction, 944
right of way, 944.
government grant of right of way, 946.
alienation inhibited, 946-950.
sale in future^ 946.
against public policy, 947.
in absence of inhibition, 949.
incumbrances, 950-952.
inhibited, 950.
statute construed as to, 950.
policy as to, 951.
upon improvements, 952.
title, 953.
possessory, 953.
equitable, 953.
legal, by patent, 953.
FIDUCIARY DEBT —
not affected by exemption, 326.
of defaulting tax collector, 326.
attorney at law, 336.
INDEX 99d
FIDUCIARY DEBT — continued,
of ofBcer of court, 336.
any public officer, 336.
of surety, 336.
agent, 337.
guardian, 337.
debtor in bankruptcy, 337.
FILING DEED OF HOMESTEAD —
unavailing after judgment, 388.
execution issued, 388.
of homestead taken in exchange for another one, 390.
FOEECLOSUEE (see Mortqage^
FOEFEITUEE (see Laches)— '
by failure to claim, 736, 739, 866.
effect upon creditors, 534
FOEM OF HOMESTEAD —
as to irregular sliape, 158-60.
should be in accord with government surveys, 158,
how, in the older states, 159.
FEAUD —
when acquiring homestead, 139, 499.
with another's money, 503.
by circuity, 503.
by exchanging goods not paid for, 504, 524
by wrongful selection from liable property, 508.
at another's expense, 513.
when conveying, 513.
creditors disinterested, when, 518, 535, 710, 711.
with interest remote, 515.
prejudiced, 517.
liability to creditors, 531.
selling liable property, 533.
liens, 536.
marriage to defeat creditors, 528.
transfer to wife, 529, 533.
not fraudulent, when, 389.
fraudulent, when, 848.
set aside, effect of, 581-4
as to proceeds when sale has been set aside, 389.
proceeds of homestead given by husband to wife, 713.
in purchasing. 137, 138.
withholding property in disclosure, 130.
non-exempt goods, 253.
FRAUDULENT ACQUISITION —
by exchanging goods not paid for, 127-8.
1000 INDEXj
JPBAUDULENT ASSIGNMENT —
without reservation, 921.
by debtor in trust for himself, 933.
as to subae(}uent claiming of exemption, 923L
FBACJDULENT CONCEALMENT —
by withholding from schedule, 916.
preference of creditors, 917.
when not forfeiting exemption, 917.
not affecting family rights, 918w
FRAUDULENT SALE —
not, though proceeds used for general purposes, 537.
not affecting creditors, 918, 919.
aa to perjury, 918.
effect upon vendee, 919.
debtor's claim, 920.
when creditors not provided for, T'lO.
OAENISHEE —
disclosure of, 896-900.
GARNISHMENT IN FOREIGN JURISDICTION—
restrained, 888.
^urctase of claim for, 889.
damages recoverable for, 889. '
criminal prosecution foi-, 889.
inhibition constitutional, 890.
taking equivalent to sending claim for, 890.
ty creditor who changes residence, allowed, 891.
debtoi's remedy, 895.
garnishee's disclosure, 896.
as to debtor's defense, 896.
when garnishee must pay, 897.
railroad company as garnishee, 898,
distaosore by, 898-900.
GOVERNING LAW —
as to exemption right, 1&
jemedy, 21.
repeal and amendment, 31.
limits of homestead, 237-9.
debt, 337.
sureties, 237-8.
inheritance, 629.
in chattel exemption, 766-8.
as to contract, is that existing when contract made, 767.
as to remedy, is that existing when remedy enforced, 767.
as to impairment of contract, 767-8;
HEIRS —
as to parliition, 136.
granting right of way, 135,
INDEX.
HEIRS — continued.
of wife, 124.
adult, yet dependent, when benefioiaries, 605-6.
cannot compel foi-eclosure of mortgage, when, 714»
HOTEL (see Use).
HOUSEHOLDER (see Family Headship),
HOUSEHOLD GOODS—
necessary house and kitchen furniture exempt, 79L
minutely specified in some states, 791, 793.
when not absolutely necessary, 793.
when merely convenient, 793.
ornamental, 793.
of a boarding-house, held exempt when, 793.
of a restaurant, 794.
of a hotel, 794.
of a saloon, 795.
when the only limitation is monetary, 794
HUSBAND AND "WIFE (see Family Headship)—
interests mutual, 135.
neither can have homestead right adverse to the other, 130.
equitable interest may be in husband while legal in wife, 131.
or vice versa, 131.
husband's declaration creating joint title, 131,
application for homestead by either, 133,
cannot convey wife's title, 133,
co-tenancy of, 140-3.
sale by, 378-5.
trust deed by, 375-7.
mortgage by, 377-383.
sale by husband alone, inhibited, 383-7.
sales subsequently validated, 387-389.
wife's rights relative to sale, 389-393.
estoppel by sole deed, 393-395.
conveyance by husband to wife, 395-8.
as to creditors, 123.
as to community property, 123.
incumbrance inhibited, 398-401.
interests of ndn-owning beneficiaries, 40-3.
conveyance to pay privileged debts, 403-4
IMPLICATION OF STATUTES (see ConstbuctionX
IMPROVEMENTS, 361-369.
defined, 361.
lien for, 361.
if requisites observed, 362-364.
not lost by officer's neglect, 365.
no lien in equity, 362.
debt enforceable under judgment, 363,
1001
1002 INDEX.
IMPROVEMENTS — continued.
fixtures, 363.
rank of liens, 364.
for material, 361, 365.
labor, 361, 365.
judgment for, 368.
municipal, 369.
INCUMBRANCE (see Mortgaoe) —
relative to carving homestead upon land, 102.
whether homestead right is an, .318.
when homestead is not an, 103, 724.
owner none on his own property, 319.
wife may have, on husband's property, as to creditors, 320.
children none, as to their father's property, 831.
on homestead, inhibited, 398-401.
equal to the property incumbered, 137,
guasi-estate is, when, 724.
INDIVISIBLE PROPERTY (see Excess of Homestead) —
exceeding homestead limits, 333-4.
exempt proceeds of, reserved, 237.
INHERITED HOMESTEAD —
nature of, 204-5.
compared with purchased one, 205, 386.
what law governs inheritance, 639.
INJUNCTION —
' preceeded by platting, when, 154, 158.
to restrain claiming homestead, not allowed, 740.
attachment, denied, 743.
creditor from garnishing in foreign jurisdiction, 888-892,
to prevent cloud on title, 752, 754.
against sale, when property is exempt, 753, 755.
on community debt, 753.
by illegal execution, 753.
of excess above homestead, 754
by trustee, 754
of exempt chattels, 857.
by purchaser, denied when, 754
temporary, 755.
INSOLVENT —
cannot exchange goods for homestead, 521.
buying in his wife's name, 537.
estates, descent of, 657.
partition of, 658-660.
sale of homestead in, when void, 708-9.
■• when purchaser gets title, 709.
INSURANCE —
of homestead, 359.
indemnity to widow after loss by fire, 608.
INDEX. . 1003
INSURANCE — continued.
when proceeds of policy administrable, 609.
not administrable, 609. '
general rule, as to, 609.
when exceptionable, 610.
indemnity, whether money exempt, 835.
money, from life policy, 836.
INTENTION TO OCCUPY (see Occupancy) —
without act, is nugatory, 189, 196.
but not always so held, 197.
when realized subsequently, 193.'
rule, as to, 194
with slight acts, 194.
accompanied by preparation, 190, 194, 197-9, 200, 203.
circumstantial evidence of, 201.
will not prevent a lien from attaching, 192.
when land purchased for homestead purposes, 194, 200.
and building begun, 195.
with homestead recorded and building begun, 195.
lot inclosed, 197.
not retroacted upon by subsequent occupancy, as to lien, 198L
with present action, 198-9.
to re-occupy, 204
INTEREST —
must be assignable, when, 124
of husband and wife, 125.
of minor, while his father lives, 271.
of non-owning beneficiaries, 401-3.
undivided, 134-13a
INTERPRETATION (see ConsteuctioiOi
INTESTACY —
as to homestead, 447^
INVENTORY (see Schedule).
JOINT TENANCY (see Co-tenancy).
JUDG-MENT (see Pleading and Practice) —
confessed, 295.
relative to the order of payments, 350-3.
when not res judicata, 701.
when barring subsequent litigation, 747,
not a lien on homestead, when, 732.
confirming the report of appraisers, 705.
for alimony, a lien on homestead, when, 745.
not a lien when defendant has custody of the children, 745.
for damages, 758, 761.
as to liability of property, held res Judicata, 863.
in one state, to be credited in others, 894-5.
JUDICIAL SALE (see Dormant Liens; Pleading and Practice; Lia-
bilities OF Homesteads).
] 004 . INDEX.
JURISDICTION —
of probate court, as to homestead, 636-8.
taken from courts by statute, 747.
JURY —
try homestead questions of fact on issue joined, 743,
find facts on creditor's contest of chattel claim, 878-9,
LABORER (see Wages) —
is a manual worker, 834
LACHES —
by which exemption is forfeited, 736, 729, 866.
not attributable to judgment creditor with hen, when, 727.
LAW OF RELATION (see Retroaction).
LEASE —
governed by same rules as other titles, how far, 113.
as to crops, 113, n.
may require joinder of husband and wife to transfer, 114, 433w
of homestead, right of widow, 115.
may be of part of the homestead, 115.
of homestead, is alienation, when, 433.
for a long term, 433, 434. ,
without disturbing occupancy, 435.
continuously, forfeits exemption, 741.
LEGAL POSSESSION —
differentiated from homestead occupancy, 305.
confounded with homestead occupancy, 806.
LIABILITIES OF HOMESTEADS —
for debts prior to the law, 376.
purchase, 283.
occupancy, 383.
filing deed, 287.
designation, 393.
by written contract, 294.
for dormant liens, 296.
for attachment liens, 303.
for tort, 323.
for fiduciary debts, 336.
for taxes, 327.
for purchase-money, see PURCHASE-MONEy.
for improvements, see Improvements.
LIEN (see Dormant Liens) —
on homestead, liability for, 14.
conventional, 16.
by judgment for tort, 295.
for tax, 395.
for assessment, 295,
for purchase-money, 333w
a vested right, 101.
does not affect ownership, 136.
INDEX. 1005
LIEN — continued
on homestead prescribed, 385-6.
equitable, 395, 333.
dormant, 396-303.
for improvements, 361-5.
of mechanics, 875. .
dependent on wife's signature, when, 375.
how affected by taking other security, 553.
marshaled with other liens, 557, 720-3.
in foreclosure, 720.
not by judgment for ordinary debt, 733.
not created on land by homestead dedication, 734.
covered by general lien, when, 738.
on land not dislodged by homestead dedication, 455.
LIFE ESTATE (see Surviving Spouse ; Widow's Homestead);
LIMITATION (see Monetary Limit ; Quantitative Limit) —
of value and quantity, 308-310.
to one home, 135, 146, 353.
family in one house, 148.
husband and wife not each entitled to separate home, 148,
effect of increased value on quantity, 309.
as to rural homesteads iu Texas, 331.
LOT— /
defined, 156, .314
according to city plan, 313.
when composed of two half-lots, 315.
MACHINERY —
threshing-machine not exempt, when, 801.
illustration from California, 801.
used by the owner on his own farm, exempt^ 801.
treated as exempt tools, 801.
in Michigan, 801.
in part, exempt when, 801.
in Illinois, 801.
Bteam-engine exempt, when, 801.
mills and large machinery, 801.
of corporations, 803.
exempt within money limit, when, 803.
MANDAMUS —
to compel appraisement, 863, 884
relative to waiver, 868.
MARRIAGE (see Family; Family Headship; Husband and Wipe).
MECHANIC'S LIEN (see Liens).
MERCHANT'S STOCK IN TRADE (see Stock in Trade).
1006 JNDEX.
MIXED PROPERT? —
realty and personalty exempted together, 130.
in Indiana, 329.
selected by the owner, 229.
surplus after sale, 230.
in Georgia, 230.
in Maryland, 231,
in Pennsylvania, 231..
MONETARY LIMIT, 210-239.
to what amounts, in diflEerent states, 310-316.
tabulated by states, 231.
estimated in declaration, 211.
relative to subsequent increase in value of homestead, 216-318,
relative to the flexibility of values, 319.
on change of copstitution, 238, 249.
on repeal of statute, 229.
MONEY —
deposited, may be exempted, 834
as fire insurance indemnity, 835.
from life insurance, 836.
or realty, in lieu of homestead, 634-6,
MORTGAGE —
not affected by exemption, 101.
redemption, 119.
by husband alone, when homestead not recorded, 17L
to secure antecedent debt, 284.
purchase-money, 853.
exceptional case as to mortgage to secure purchase-money, 353L
assigned, 347.
unrecorded, 354
by husband and wife, 377-383.
may be foreclosed, 714
necessity of wife's joinder, 377.
husband and wife sign together, 380.
parties to foreclosure, 380.
' inhibition of mortgage of homestead, 381.
not validated by death of wife, 388.
by widow, 633.
by administrator, 633.
when allotment necessary, 714
foreclosed by senior mortgagee, 715.
sale, after exhausting property other than homestead, 715-717.
when no bid for the other property, 737.
proof that other property exists, 727.
intervention by junior mortgagee, 718.
lien, marshaled with other liens, on foreclosure, 720.
as to the equity rule, 723-6.
homestead claimed after issue joined in mortgage foreclosure, 557.
relative to prior assignment of homestead to widow, 649.
INDEX. 1007
NON-EESIDENT (see Residence).
NOTICE —
to creditors, 10, 311.
essential la all the states, 11.
relative to exclusive possessory right, 132L
by occupancy, 133, 169.
recording, 161.
filing declaration, 161.
certificate, 163.
description, 163.
in contemplation of absence, 163-4
of intention, 164.
importance of, 167.
to show acceptance of conditions, 168.
by passage of hothestead law, 169.
how affecting second purchaser, 373.
precedes waiver, 870.
of opposition to exemption allotment, 871;
by debtor to judgment creditor, of his claim, 871.
OCCUPANCY (see Intention to Occupy; Use) —
by family, 6. ~
a condition of homestead, 175.
contemplated, 176, 189-199.
for what time, 177.
actual, 177, 179-183, 186. 189, 275.
essential, 178.
without declaration, 179.
relative to declaration, 199, SOI.
re-occupancy, 303-4.
legal possession as, S05-S.
of two homes alternately, 350.
right of, called "estate," 263.
by widow, 631.
when inferred, 741.
OFFICER —
to plht urban homestead before sale, 156-7.
must ascertain value of homestead, when, 668L
damages against, for wrongful levy, 668.
trespass lies against, for wrongful levy, 859.
not against, when, 860.
may be directed by mandamus, 863-4
has knowledge of homestead, 731.
charged with knowledge, when, 781.
not liable for proceeds, when, 758.
must pay proceeds to debtor, when, 780.
must allow debtor opportunity to claim, 779.
liable criminally, when, 780.
1008 INDEX.
OFFICER — continued.
not relieved from duty by indemnity bond, 780.
liable to have goods taken from him by replevin, vhen, 781.
entitled to defend his acts, 783, 857.
ORDINARY DEBT (see Debt).
ORPHANS (see Chiijjren's Homestead),
OWNERSHIP—
a condition of homestead, 103-8,
by what title, 103,
ruling in Alabama, 105.
character of, 108.
of the site of the dwelling-house in Illinois, 108k
by leasehold, 113, 148.
of estate for years, 109.
in parcels, 115.
by several titles, 115, 147-8.
by life tenure, 116.
appraised as if in fee, 117.
by equitable title, 117, 131.
in equity of redemption, 119, 120. ''
by husband and'wife, 121-3.
by husband or wife, 123-3.
not affected by hens, when, 136.
not dependent on price paid, when, 137.
payment essential to, 354-7.
as to creditors, 110.
without title except right of occupancy, 111.
possessory right, 113.
not affected by easement, 118.
servitude, 113.
as to growing crops, 118. See Crops.
conveyed by husband to wife, 133.
of married women, secured by constitution of South Carolina, 134
assignable interest, 124.
must be vaUd, 136, 137.
free from fraudi 126-130.
incumbered, 137.
not by co-tenancy, 131-t
PARTITION (see Pleading and Practice; Heirs; CmLDiffiN's Home-
stead; Widow's Homestead) —
not while minors occupy, 596, 655.
not between widow and minors, 656.
on remarriage of widow, 655.
PARTNERSHIP (see Co-tenancy; Partnership Personalty)}—
not in homestead, 143-5.
after dissolution, 144, 145.
as to exemption of a partnership interest, 352,
distinguished from co-tenancy, 861.
INDEX.
PARTNERSHIP PERSONALTY —
generally not exemptible, 903-7.
partner does not own firm property, 904
share held liable, 905.
exemptible, 907.
consent of copartners, 908.
when judgment against a partner, 909.
PARTY (see Pleading and Practice).
PATENT (see Federal Homesteads).
PENSION FROM GOVERNMENT —
exempt by stat« law, where, 837.
with its accumulations, 837.
must inure to benefit of pensioner, 838.
property purchased with, exchanged for other property, 838.
invested in live stock, its increase, 839.
protected in transit to pensioner by act of congress, 840.
after payment to pensioner, not generally exempt, 840.
accumul'itions not generally exempt, 840.
investment of, not protected by act of congress, 841.
whether protected, questioned, 841, n. ; 842, 843.
as to its being attachable after reception, 843.
not conferred by an exemption act, 843.
relative to the state law of Iowa, 843.
held by guardian of an insane woman, 845.
as to the pensioner's benefit, 845, 846.
PERSONAL PROPERTY (see Chattel Exemption),
PICTURES —
portraits and drawings exempt, 819.
oil paintings, etc., 819.
sometimes treated as household goods, 819.
" family pictures," quere, 830.
PLATTING OF HOMESTEAD —
in general, 154-8.
how affecting rural homestead on extension of town, 155.
not always essential to ui-ban homesteads, 156.
must precede injunction, when, 154, 158.
by officer, before sale, 156-7.
when the law is merely directory, 315.
when rural homesteads are brought within town lines, 225. ^
PLEADING AND PRACTICE (see Evidence; Ejectments I^jrorcTiaN
Segregation) —
ordinary remedies, 681.
pleading necessary tb save homestead, 683-3.
parties, 683-694.
husband and wife, 683-7.
64
1010 INDEX.
PLEADING AND PR ACTICE — continued.
parties, wife, in ejectment, 685-6.
in foreclosure, 685-6.
in attachment, 685-6.
as sole plaintiflf, 687.
by bill in equity, 688.
by trespass against oflBcer, 688,
to recover homestead, 689.
as sole defendant, 690-3.
to set aside default, 691.
against mechanic's lien, 692.
minor children, 648, 692-4
to have homestead set off, 693.
in partition proceedings, 647, 693. ,
to defend against suit for purchase-money, 694
' to defend against damage suit by widow, 694
widow, 695-6.
to recover or defend her homestead, 693.
when insane, by guardian, 696.
application for homestead, 697-703.
allegations in, 697-700.
of family headship, 697.
of ownership, 698.
of residence in the state, 699.
of occupancy, 699.
of value, 701.
describing property, 700.
in litigation, 700.
oniis on claimant, 700, 713.
probate order to set off homestead, 702.
removal of cause to higher court, 703.
probate order to sell homestead, 706-711.
partition, when necessary, 706.
co-tenancy in real interests, 706.
presumption in favor of probate orders, 707.
sale to pay debts, 707, 713, 713.
by consent, 707, 712, 713.
of quitclaim title by widow, 707, 713, 713.
void, in insolvency proceedings, when, 708-9.
by which purchaser gets good title, 709.
suit by administrator, relative to creditors, 710-71B.
by bill in equity, 710.
mortgage foreclosure, relative to, 714^723.
when husband and wife are mortgagors, 714
when adult heiracannot compel, 714.
mortgage redemption, 714
first exhaustion of non-exempt property, 715-717.
ejectment, 717-8.
after sale for purchase-money, 717.
INBEX.
PLEADING AND PRACTICE — continued,
ejectnaent of widow, holding in fee, 717.
of defendant holding under contract to purchase, 717.
of mortgagor, 718.
of private purchaser by a ptirohaser at public sale, 718.
pleading homestead against foreclosure, 718, 719.
when not estopped, 719.
facts to excuse omissions, 719.
receiver in foreclosure, 719.
when executor must turn over to, 720.
marshaling liens, 720-2.
surety, 722-3.
wife as, 722.
on collector's bond, 723.
guardian's bond, 723.
equity rule as to order of sale, 723-6.
statutory rule as to order of sale, 726-9.
incumbrances, 724-6.
motion by debtor, as to, 669.
schedule to prevent execution of homestead, 738,
proof of the existence of other property, 727.
lack of bid dpemed exhaustion, 727.
claiming exemption before execution sale, 729-783.
as to laches, 729,
indivisible homestead, 730.
sale void, when, 731.
oflScer's knowledge, 731.
judgment when no lien on homestead, 733,
when proceeds of sale exempt, 733.
tenant at will, 736.
by sufferance, 737.
execution, as to occupancy, 738-741.
when title not involved, 739.
of husband's separate interest, 739.
writ of, and advertisement, show what title offered, 740.
alias, 783.
"pleading in attachment suits, 741-9.
abandonment by giving quitclaim title, 741.
abandoned homestead may be attached, 743.
claiming by separate suit after attachment judgment, 743.
when recording is necessary to the attachment lien; 744.
attachment is a limited proceeding iw rem, 745.
when allegations necessary, in answer, 745.
judgment bars further litigation, when, 747.
effect of not pleading, 746-9.
rulings on evidence, 749-753.
trespass against officer and judgment creditor, 756.
claim necessary before suit for conversion, 778.
allegation that sheriff converted property- to his own use, 781.
1011
1012 INDEX.
PLEADING AND PRACTICE — continued.
pleading waiver. 556.
proceeding in feqliity and not by execution, when, 147.
in rem, 18, 339, 893.
POLICY OP THE LAW (see Construction) —
in homestead legislation generally, 3-5.
to conserve family homes, 3-5.
incidentally charitable, 3-5.
courts no right to any judicial policy, 25, 36-8.
to become almoners of bounties, 38.
how far to be considered, 33.
when the sense of the statute accords with, 34
relative to family, as to torts of the husband, 61.
as to charity, 86, 87, 206, 483.
to protect families — debtor's benefit incidental, 95.
in chattel exemption, 764.
in federal homestead legislation, 931
in construction, 33, 105.
POSSESSION BY HOMESTEAD HOLDER —
exclusive, 136, 131, 134
necessary to dedication, 131, 185.
notice, 132. ,
PRESUMPTION (see Evidence).
PRINCIPAL USE, 182-191.
as a test of homestead right, 183, 335b
as to renting, 183, 186, 187.
of a hotel, 188.
with intent, etc., 190.
as evidence of homestead right, 191.
keeping for future homestead use, 191.
uses as indicia, 251,
PRINCIPLES —
leading, 1-21.
summary of, 21.
PRINTING PRESS (see Tools).
PRIVILEGED DEBTS (see Debt ; Liabilities op Homestbad)i
PROBATE COURT (see Pleading and Practice) —
when jurisdiction original as to homestead, 626-8.
orders, favored by presumption, 707.
PROCEEDINGS (see Pleading and Practice^
PROCEEDS —
of homestead to be invested in new home, 215, 316, 291, 438-443.
• held not exempt, if to be taken out of the state, 291.
used for ordinary purposes, 317.
, held for general purposes, 443-4
not attachable, 817.
unless excessive, 317.
JNDEX. X013
PROMISSORY NOTE —
for purchase-monpy, 334
in third hands, 339, 446-450.
assigned, 347.
how hen waived, 347.
novated, 348.
selected by widow as personalty, 838, n.
set-off against, 829, 833.
waiving exemption, 869.
waiver in, to be pleaded, 557.
PURCHASE (see Pdkchase-money) —
defined, 106.
on credit, 106.
by verbal contract, 118,
PURCHASE-MONEY —
nature of, 331.
equitable lien for, 332-3.
when without lien, 333.
obligation for, 334-6.
notes for, in third hands, 334
vendor's lien, 335.
borrowed money, as, 337.
distinguished from borrowed money, 341-347.
secured by mortgage, 352-354
unrecorded, 354.
relative to subrogation, 337.
co-purchasers, 356.
claim for, no defense against, 357.
returned to vendee on failure of title, 357.
sale for, cannot be shown, when, 728.
PURCHASE-MONEY FOR CHATTELS —
chattels not subject to lien for, when, 910.
not exempt, 910-913.
promissory note for, 911.
borrowed, 911.
rela,tive to general exemption statutes, 913L
when claimed agaihst mortgage, 913.
QUANTITATIVE LIMIT —
not in all the states, 208.
with monetary restriction, 308, 209.
to a lot or lots in town or certain acreage in the country, 309.
impracticable, when, 209.
effect of increase of value on quantity, 209, 216, 817.
as to execution, 217, 218.
having no quantitative limit, 311, 313.
to a lot, without further designation, 315
without monetary restriction, 331-3.
in town but not in the country, 231-3.
1014 INDEX.
QUANTITATIVE LIMIT — continued,
when exceeded, 333-4
the excess Hable, 334.
how afifected by the extension of town lines, 334-7.
of i-ural homestead brought within town lines, 234-5.
as to forced sale, 337.
governed by the law in force when debt contracted, 337.
when surety signed, 338.
QUARANTINE —
right of widow, 616.
QUASI-ESTATE OF HOMESTEAD —
resemblance to an estate, 5.
compared with estates, 356-7. '
defeasible but indeterminate, 358.
not disposable by will, 258.
susceptible of enjoyment, 359.
as to dower, 260.
bestowed by the owner of real estate, 16,
an incumbi'ance, when, 734
RAILROAD LAND-GRANTS —
right of settlers relative to, 942^5.
RECEIVER —
in mortgage foreclosure, when, 719.
may be appointed, when, 730.
executor must turn over to, when, 720.
in an action for forcible detainei^ 720.
appointment of, should be refused, when, 720.
executor should turn over to, when, 720.
appointment of, necessary when, 858.
cannot interfere, when, 858.
judgment does not vest in, when, 858.
appointed on court's own motion, in Georgia, when, 859, n.
of public lands, 933.
RECORDING —
of conveyance, 161.
in Homestead Book, 161.
on margin of title, 161, 170.
to show acceptance of conditions, 168-9.
requisites, 169-174
on exchange of homesteads, 171.
when directory, 172, 178.
effect as to existing liens, 174
REDEMPTION —
from tax sale, 380.
from mortgage, when, 714, 715.
equity of, sold, 715.
INDEX.
1015
REMEDIES (see Attachment; Bill in Equity; Damages; Ejectment;
Execution; Garnishment in Foreign Jurisdiction; Injunction;
Judgment; Pleading and Practice. ,
BEMEDIES FOR WRONGFUL LEVY —
trespass against officer and judgment creditor, 756.
replevin, debtor may, when, 781.
not, when, 863.
concurrent, 857. *
action for damages, 859.
for conversion, 860.
not for seizing and selling things exemptible merely, 860. -
judgment for damages, 863.
RENTS —
of homestead of decedent, 243.
not liable for his debts, when, 243.
to surviving spouse, 590.
to minors, 650.
not subject to exemption, when, 910.
of property dedicated to public use, 910.
REPLEVIN (see Remedies for Wrongful Levy).
RESIDENCE —
of family, qualified by statute, is technical homestead, 1-8.
in the homestead, essential, 175.
stated in the declaration, 176.
in the state necessar3% 560.
exceptional cases, 561.
effect of removal to another state, 561.
citizenship necessary to homestead, in some states, 63, 97.
wife of non-resident cannot claim homestead, when, 64.
homestead accorded to every resident, where, 65, 81.
non-resident acquiring homestead, when, 388.
heirs take homestead, when, 447.
has chattel exemption, when, 774, 900.
reason against it, 901.
resident wife of a non-resident may claim, when, 774
bachelor may claim, where, 81-3.
in the state to be alleged, in application for homestead, when, 699.
in the county, 699.
presumption of, 699.
when applicant for exemptipn must prove his residence in the state, 775.
as to garnishment in another state, 888-893.
RESTRAINT OF ALIENATION —
spirit of, 358.
accepted by homestead owner, 870.
not universally required, 371, 373.
disclaimer of exemption right, 373.
no restraint when exemption right has not been acquired, 3721
not confined to foi-oed sale, 372.
10^16 INDEX.
RESTRAINT OF ALIENATION — continued,
not implied, when, 373.
by mortgage but not by saSe, in Louisiana, 373,
by either mortgage or sale, generally, 373.
as to coercive process, in Kentucky, 373, n.
creditors of decedent may sell homestead, subject to widow and chil-
dren's occupancy, in Kentucky, 373, n.
husband and wife may sell jointly, 373.
husband alone cannot sell unplatted tract, in Iowa, 374,
renunciation of homestead not in deed, when, 374.
as to purchaser, 374.
as to third possessor, 374.
as to liens and other liabilities, in purchaser's hands, 374,
any reservation should be expressed, 374.
consent of wife need not be in writing, when, 374.
to right of way, 374.
proved by parol, 375.
does not make her surety for husband, 375.
approval of court to sale, in Georgia, 375.
trust deed by husband and wife, 375.
enforced after husband's death, 376.
as to purchaser, 376.
of wife's life estate, 376.
enforceable against homestead, 376.
renewed by husband alone, 376.
mortgage of homestead by husband and wife, 377.
not to be enlarged or renewed by him, 377.
as to antecedent debt, 377.
to secure purchase-money, 378.
after abandonment, 378.
relative to leasing homestead, 379.
not for creditors' benefit, 379.
relative to rights of widow and minor heirs, 379.
as to lien of judgment, 379.
assent of husband and wife contemporaneous, 380.
by both signing the deed, 380.
invalid trust deed of husband not validated by wife's later deed, 380.
by mortgage to secure joint note, 380.
wife alone not liable, when, 380.
parties defendant, 380.
claim against administrator, as to prior demand, 380, n.
by mortgage to wife, 381.
mortgage, trust deed, etc., of homestead, inhibited in Texas, 38L
not to single persons, 381.
of homestead, being husband's separate property, 383.
wife's separate property, 383.
as to note for borrowed money, 383.
as to wife's right, when mortgage not witnessed, 382L
as to waiver, after husband's death, 383. '-
INDEX*^
1017.
RESTRAINT OF ALIENATION — continued.
as to mortgage by husband when wife lives apart, 383,
as to husband acting alone, 383.
relative to fixtures, 383.
husband's sole sale or mortgage genei'ally null, 384
of property taken in exchange for homestead, 384.
court sale of widow's homestead, in Georgia, 384, n.
of tract from which homestead is not carved (in Iowa), 385.
not applicable as to old, when new homestead has been acquired, 385.
to unmairied persons, 385.
as to void mortgage, with husband's connivance, 885.
as to notes held for new homestead, 385.
as to lease without wife's consent, 385. s
except as to part, 386.
of ground, with building mortgaged, 386.
as to expropriation, 386.
right of way, 386.
assignment of school certificate under which homestead was held,
387.
sales subsequently validated, 887.
bond to convey, 387, 888.
wife's death does not cure want of her signature to deed, 388.
imperfect sale cannot be ratified, when, 388.
unoccupied realty, as to mortgage, 388.
wife's right, 389-391.
estoppel, 392-5.
sale by husband to wife, 395-8.
incumbrances, 398^01.
Interests of non-owning beneficiaries, 401-3.
privileged debts, 40.3-4.
excess of homestead, 405-410.
first exhausted, 410-415.
sale of interests, 414-416.
assignment, 417, 418.
construction of statute, 419-423.
wife's acknowledgment, 433-439.
wife's joinder, 429-433.
as to leasing, 433-5.
exchange of homesteads, 435-8.
proceeds for re-investment in new homestead, 488-443.
held for general purposes, 443-4
not a corollary of homestead exemption, 497.
RESTRAINT OF TESTAMENTARY DISPOSITION— _
by implication, 446.
by vsxpress inhibition, in statutes, 451, 456.
in constitutions, 461.
devise is not alienation, 447-450, 461-3.
strictly construed, 447, 450.
homestead excepted from devises, 457,
1018 INBEX.
RESTRAINT OF TESTAMENTARY DISPOSITION — continued.
as to waiver by will, 451-3.
with respect to alienating by deed, 453.
after divorce, 458. ^
contravening the statute, 460.
as to bequest and dower, 465.
correlative with exemption, when, 476.
upon others than debtors, 483.
not applicable, when, 493.
devise of homestead a nullity, 589.
spirit of exemption laws, as to wills, 465.
right of surviving spouse adverse to wills, 446-7, 460.
divorced wife may sue fo set will aside, for children's bei^efit, 458.
not her own, 459.
RETROACTION (see Intention to Occupy) —
not created or recognized by homestead statutes, 199.
favored by some decisions, 199, 200-1.
contrary to the law of notice, 300.
of occupancy, to the filing of the deed, 301.
denied in Iowa, 303.
to date of purchase of land, 303-3.
protecting building material, 203.
must have statutory support, 884
REVERSION (see Sale with Homestead Use Reserved) —
sale of, 488.
as to creditors, 536.
RIGHT OF WAY —
consent of wife necessary, when, ^374
proved by parol, 375. f
when husband alone may grant, 386.
granted by homestead settler, when, 944.
by expropriation of federal homestead, 944, 945.
settler, after entry, entitled to compensation, 945.
has statutory right to convey right of way, 945.
is an easement of perpetual use, 945.
wife's consent, when necessary, how proved, 946.
not included in the right to lease, 946.
granted by the United States, 946.
RURAL HOMESTEAD —
limited in quantity and value, 308-210.
quantity only, 331.^
value only, 210-316.
extension of plantation acreage, 223.
when town lines are extended so as to include, 155-6, 323-7.
when quantity below the maximum, 331.
cannot exceed the maximum, 331.
INDEX;
1019
SALE OF HOMESTEAD (see Sale with Homestead Use Resbbved;
Restraint of Alienation) —
by husband and wife, 373.
with exemption right expressly renounced, 374
subsequently abandoned, 387-9.
relative to wife's rights, 389-392.
by authorization, 450.
on credit, 537.
by probate order, to pay debts, 707.
by consent, 707.
under right of eminent domain, 386.
by sheriff, not void when, 715.
set aside by rule, 747.
confirmed by court, 761.
SALE WITH HOMESTEAD USE RESERVED —
by owner generally, 469.
by sole deed, 473.
of fee, with life-estate reserved, 474.
by express stipulation, 475.
by solvent owner before selection of homestead, 478.
not by insolvent debtor, 481.
by husband and wife, 484.
by execution, 486.
relative to the reversion, 488.
by administrator, 490.
not during homestead occupancy, 493.
summary of rules relative to, 497.
of the excess of homestead, 525.
SCHEDULE OF DEBTOR'S PROPERTY —
to prevent execution of homestead, when, 728.
no prescribed form, 847.
when necessary, 848.
omissions in, 849.
' objections to, 850, 855.
not making, forfeits exemption, when, 854.
of what the debtor has at the time of taking his oath, 854
thing included in must be exhibited to appraisers, 856.
furnished to ofiBcer, 860.
accepted by him, 861.
SEGREGATION (see Partition) —
when two homesteads to be separated, 273.
impracticable, when, 664
when part of property is not exempt, 712, 756.
by officer, when, 757.
by appraisers, 756.
what appraisers must do, 758.
on application by either debtor or creditor, 757.
1020 IITOEX.
SELECTION—
relative to two tracts of land, 149-154
contiguous pieces, 149.
by marking bounds, 161.
by platting, 163.
by husband or wife, 161.
before sale when execution is pending, 163.
when more than the homestead is levied upon, 173^
of excessive quantity, 213.
as to form of land, 158-160.
SHERIFF (see Officer).
SIGNATURE OF THE WIFE TO HOMESTEAD DEED —
must be her free act, 423.
not necessary to the conveyance, when, 433.
when obtained by fraud, 428, 425.
to pay antecedent debt, 433.
followed by deliveiy of deed, 434
without reading the instrumenl^ 426. \
when too late, 436.
when the husband alone has previously sold, 437.
without threat, must be certified, 438.
after examination apart from husband, 438.
when her name is not in the instrument, 438.
for releasement of her dower interest, 431.
requisite only when she has homestead right, 433.
SOLDIER'S AND SAILOR'S* HOMESTEADS (see Federal Homesteads).
STATES —
as creditors, 13.
as governments, 13. .
affected by homestead and exemption laws, 14
STATUS —
of members of family, 7.
STOCK IN TRADE —
exempt toa stated limit, 811-815.
to a resident, in Colorado, 813,
in Wisconsin, 813.
other states, 812.
of merchant, 813-5.
whether exempt, 813.
exempt in Colorado and Wisconsin, 813.
not exempt in Kansas and Minnesota, 814
made by the owner and for sale, exempt, 814
mingled, not exempt, 814.
exchanged, or sold and resupphed, 814
of lawful business, 815.
must be selected and claimed, 815.
INDEX.
SUBROGATION —
. of the lender of purchase-money, 337-340.
when without lien, 338.
none, when chattel mortgage is given, 340.
SUPPORT OF FAMILY —
property, used f ot, has been held exempt, 240.
crops, whether exempt for the, 241.
SURETY —
right of, against his principal, 286.
bound from date of signing, 288.
on curator's bond, 289.
collector's bond, 723.
guardian's bond, 723.
wife as, 722.
SURVIVING SPOUSE —
relative to wills, 446-7, 460-1.
takes by descent, 461.
right to hold until legal disposition, 589.
cannot change homestead meanwhile, 590.
entitled to rents, 590.
in place of deceased owner, 262.
widow as, 323.
widow, no estate conv^yable, when, 590.
widower's right, when implied, 591.
distributive share of decedent's estate, 593.
election, 593-4, 630.
widow inhei'iting, 593.
children inheriting, 593, 595.
cannot sell, when, 596.
wife may sue as to homestead, when, 596,
has estate in homestead, when, 597.
as to payment of community debts, 597.
widower may sell under statute, 598.
title vested in, when, 598, 600.
rights of, in separate property, 600.
as to mortgage, 601.
takes by descent, 603.
transmits to his or her heirs, 603.
when dependent on solvency of decedent's estate, 603, 619, 631
taking by curtesy, 603, 605.
relative to a second wife, 604
when holding for the children, 606.
rights by reservation in deed of sale, 607.
TAX (see Liabilities of Homestead) —
not subject to exemption, 910.
as debts, 327.
bearing lien, 328-9.
sale, 328.
reason for non-exeinption, 338.
1021
1022 INDEX.
TAX — continued
collector defaulting, 330,
redemption, 330.
TENANT —
in common, 131-134.
widow and children as, 684
at will, 147.
cannot assign, 736.
by sufferance, 737.
THINGS EXEMPT (see Chattel Exemption).
TITLE OF HOMESTEAD —
not conferred by law, 103.
qualified, 103, 370.
character of, 108.
of husband and wife, 130-130.-
assignable, 134.
fraudulent, 136.
void, 136.
clouded, 389.
relative to the grantor, 355.
quitclaim, 707.
of purchaser when homestead occupancy is reserved, 740.
TOOLS —
implements generally, 796.
illustrated by examples from several states, 797, n.
used in the owner's avocation, 797.
when a carriage, a horse, etc., may be a tool, 797.
specified implements, 797.
of a farmer or artisan, 797, 798, 806.
cumulative provisions, 798.
of dentist, 799.
of photographer, 799.
office furniture, as, 799.
necessary to business, 800.
by Kansas statute, 800.
not absolutely necessary, in Michigan, 805L
abstracts of titles held to be tools, 800.
various articles, 800, n.
not law books, 800.
merchant's outfit, 800.
stamping blocks, 800.
of a corporation, 803.
machines as tools, 801-3.
printing presses, etc., as tools, 803-3.
dependent on ownership, 803.
material, in Texas, 803.
process exempt by statute to certain limit, 808,
in Michigan, 803.
in Mississippi, 803.
INDEX.
TORT (see Actions ex Delicto; Liabilities of Homestead)—
creates no liability of homestead, when, 333-3.
by slander, 321
no debt for, until judgment, 335.
TOWN RESIDENCE (see Ukban Homestead),
TRESPASS (see Officer; Conversion) —
for seizing exempt property, 859.
will lie against oflScer, when, 860.
not necessarily intentional, 863.
TROVER (see Officer) —
when it willjie, 860.
TRUST —
resulting, 338-9.
TRUST DEED (see Deed of Trust).
TRUSTEE —
buying homestead with borrowed money, 338.
TRUST ESTATE —
of family in dedicated homestead, in Georgia, 370.
members of family as cestui que trusts, 370.
as to dower, 270.
UNMARRIED BENEFICIARY —
single woman, as head of a family, 79. ,
man, a^ head of a family, 80.
son, supporting his mother, 80.
guardian of minors, 80.
with illegal family, 80, 81.
not restrained as to alienation, 81.
resident of the state, 82.
supporter of dependents. 83, 97.
childless widower or widow, of homestead already acquired, 82-87.
divorced person, when, 84, 87. See Divorcer
rule in Texas, 87-9, n.
eflfeot of marriage aft«r levy, 101.
before judgment, 381.
URBAN HOMESTEADS —
limited in quantity and value, 308-310.
quantity decreases, when, 309.
value only, 310-316.
to one lot, 214-316.
acre, 331.
as to ground site only, when, 833.
when less than allowed quantity, 321.
' no, money test, 231.
improvements not estimated, when, 233.
of lowest practicable area, yet excessive in value, 233,
not exempt, in Alabama, when, 323.
not extended by building a business bouse, 148.
1023
1024 INDEX.
USB (see OcaopANCY; Sale of Homestead with Use Eeseeved)-
prinoipal, 183-4.
is the test of homestead, 183.
subordinate, 185-188.
as shop of householder, 185.
storing furniture, 185.
as indicia of homestead right, 351-4
as a hotel, 188-4
in California, 183.
in Michigan, 184.
in contravention of law, 184, 188.
for business purposes, 184, 188.
of appurtenances, 186.
by renting to others, 186, 188.
by cultivation, 187.
by delaying to move, after exchange of homesteads, 187.
must be with intent, 190.
of building lot, indicative of intent, 191.
kept for use, 191, 193.
VALUE (see Appeaisembnt ; Monetary LimitX
VEHICLES —
exemption of buggies, 803.
carts, 804
truck wagons excepted, 804
hearse, 804,
in Wisconsin, 804
wagon, under the term team, in New York, 805.
wagons of teamsters in several states, 805.
peddler's wagon, 805.
bachelor's buckboard in Colorado, 813.
VENDOR'S PRIVILEGE (see Purchase-money).
WAGES —
usually exempted for last month or more, 833.
of many avocations, 834
of persons working under contract, 824
of seamen not exempt in some states, 834, n.
as to the^character of the service, 824, n.
not same as earnings, 885!
salary, 836.
collectible as against things generally exempt, 837.
of commorants, 837, n.
for team, dray, etc., 827, n.
of railroad employees, 889.
garnishment of in foreign state, 890.
sending to another state for garnishment there, criminal, 889, n.
taking to another state for garnishment, 891,
action for garnishment abroad, 893.
exemption of, an incident of the debt, 893.
wage-earner's remedies, 895-900.
INDEX.
WAIVER —
in note, of lien for purchase-money, 347.
prior to assignment, 453.
inalienable rights, 539.
remedies, 540.
when against public policy, 540.
by pre-agreement, 540.
general, 541.
of chattel exemption, 541.
of lien for purchase-money, 553.
by post-nuptial agreement, 542^
of part of homestead, 542.
of inchoate rights, 543.
analogous to quitclaim, when, 544.
a^ to specific property, 544.
of rights in futuro, 544.
of dower, 544.
not of others' rights, 545.
not by widow, of children's rights, 546.
by mortgage or trust deed, 546, 551.
in promissory note, 556.
must be pleaded, 557.
optional, 547.
special, 548.
partial, 549.
absolute, 549.
as to children's rights, 548.
as to a particular debt, 548.
as to usury, 553.
release of, 554.
how pleaded, 556.
in promissory note or bond, must be pleaded, 657.
in ante-nuptial contract, 613.
by not resorting to mandamus, 868.
in promissory note, 869, 885.
not, when no notice, 870.
in favor of senior lien-holder, 871,
effect on junior, 873.
relative to mortgage, 872-874.
in attachment, by not claiming before judgment, 883.
conventional, 885.
WARRANTY—
by husband and wife binds both, 483.
WEARING APPAREL (see Chattel Exemption).
WIDOW (see Stovivinq Spouse; Widow's Homestead) —
acquiring homestead, 75.
from what estate, 77.
may waive her right without impairing that of her children, 548.
65
/
1025
1026 IJTDEX.
WIDOW — continued.
how affected by her remarriage, 585-6, 699.
long absence, 588.
has right to acquits and gains, when, 595.
nature of her homestead, 611.
may waive in ante-nuptial contract, 61S.
relative to her dower and homestead, 614r-618.
occupancy, 631-5.
alienation, 638.
_ relative to heirs of deceased husband, 635-630.
mortgage by her and administrator of estate, 633,
necessitous, 636, 641.
right not dependent on her hiving children, 641.
petitioning for allotment of homestead, 636-9,
may sue for damages, when, 649.
support of, 788, 790, 856.
exemption for, by probate court, 789.
not guilty of laches, when, 790.
WIDOW'S HOMESTEAD (see Rights op SuEViviNa Spouse)-
of exceptional definition, 3, 611.
relative to dower, 613.
ante-nuptial contract, 613.
public policy, 613.
when compatible with her dower, 614
allotted on husband's death, 615.
how differing from dower, 615.
not alienable by her, 616.
ti-ansferable from one property to another, 617.
as to subrogation, 618.
when incompatible with dower, 618.
when dependent on insolvency of decedent's estate^ 619.
election, 618, 620.
lost by remarriage, when, 631.
as to her occupancy, 631.
as a condition, 633.
as to recovery by writ of entry, 633.
held by widow and heirs, in common, 634
relative to assignment of right of heirs, 625.
partition, 626.
jurisdiction of probate court, 637.
administrator of indivisible estate, 638.
inheritance, 629.
alienation, 680,
intestate estate, 631.
ejectment, 632.
usufruct, 633.
mortgage, 633.
other realty or money, in lieu Of, 634
bond: and security, 635.
INDEX. 1027
WIDOWS HOMESTEAD— contlnwed.
relative to necesaity, 636.
contest of petition for, 639,
as to title, 637,
as to debts, 638.
purchaser by warranted title, 639,
-widow as trustee for minors, 640l
children, 641.
liens and equities, 643.
WIFE (see Husband and Wife) —
cannot oust her husband from homestead owned by her, 46.
has no vested right, when, 261.
may waive dower, 544.
how affected by husband's abandonment of homestead, 583,
sale of homestead, 583.
change of domicile, 583.
may have her declaration used against her, when, 750,
entitled to writ of entry, when, 690.
WIFE'S JOINDER —
in general, 439-433.
WILL (seef Restkaint op Testaikntaey Disposition)—
not a conveyance, 449, 463.
relative to a deed, 453,
must accord with statute, 460.
consistent with homestead right, when, 461.
subject to election, when, 463, 465.
renounced, 464.
relative to the spirit of the laws, 46Sk
by a married woman, 467.
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