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Full text of "A treatise or [sic] homestead and exemption"

dJortifU ICam i^rljnnl iltbtarg 



* Si,™i« JS..,^°[!?e^^^^^ exempt 





The original of this book is in 
the Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



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. 

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. 



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 s