Imágenes de páginas
PDF
EPUB
[blocks in formation]

a. In General [§ 82] p 818

b. After Occupancy, Intent to Occupy, or Declaration [83] p 818
c. After Acquisition of Title and Record Thereof [§ 84] p 818

7. Change of Homestead [§§ 85-86] p 819

a. In General [§ 85] p 819

b. Right to Additional Homestead [§ 86] p 819

8. Evidence of Acquisition and Establishment [§§ 87-89] p 819
a. Admissibility of Evidence [§ 87] p 819

b. Presumptions and Burden of Proof [§ 88] p 819

c. Weight and Sufficiency [§ 89] p 820

D. Property Constituting Homestead [§§ 90-191] p 821

1. Nature and Character [§§ 90-C3] p 821

a. In General [§ 90] p 821

b. Rural or Urban Homestead [§ 91] p 821

c. Necessity of Use for Residential Purposes [92] p 823

d. Manner of Acquisition as Affecting Right to Homestead [§ 93] p 824 2. Amount and Extent [§§ 94-96] p 824

a. In General [§ 94] p 824

b. In City, Town, or Village [§ 95] p 825

c. Effect of Extension of Municipal Limits [§ 96] p 825

3. Value [§§ 97-102] p 826

a. In General [§ 97] p 826

b. Effect of Excess in Value [§ 98] p 826

c. Effect of Increase or Depreciation in Value [$$ 99-101] p 827
(1) In General [§ 99] p 827

(2) Making Additions to Homestead [100] p 827

(3) Placing Improvements on Homestead [101] p 827

d. Determination of Value [§ 102] p 827

4. Form and Physical Characteristics [§§ 103-117] p 828

a. In General [§ 103] p 828

b. Government Subdivisions [§ 104] p 829

c. Adjoining Lots or Tracts [ 105-109] p 829
(1) In General [§ 105] p 829

(2) Parcels Cornering on Each Other [§ 106] p 829

(3) Use in Connection with Homestead [§ 107] p 830

(4) Adjoining Land Leased to Others [§ 108] p 830

(5) Residence on Leased Land as Affecting Right [§ 109] p 830

d. Separate and Detached Parcels of Land [§§ 110-113] p 830

(1) In General [§ 110] p 830

(2) Use in Connection with Homestead [§ 111] p 831

(3) Lots or Tracts Leased to Others [§ 112] p 831

(4) Noncontiguous Parcels Lying within and without Limits of Municipality [113] p 831

e. Division of Lot or Tract by Highway, Street, or Alley, Railway, Stream of Water, Fence, or Garden [§ 114] p 832

f. Part of Lot, Tract, or Building [§ 115] p 832

g. Appurtenances [§ 116] p 832

h. Improvements, Additions, and Materials Therefor [§ 117] p 834

5. Rents and Profits of Homestead [§ 118] p 834

6. Products [§ 119] p 835

7. Proceeds of Voluntary Sale or Mortgage [§§ 120-128] p 835

a. In General [§ 120] p 835

b. Statutes Giving No Right of Exemption [§ 121] p 835

c. Statutes Giving Absolute Right of Exemption [§ 122] p 835

d. Statutes Giving Unconditional Protection for Designated Period [§ 123] p 835

e. Statutes Protecting Proceeds Intended to Be Reinvested in New Homestead [$ 124-126] p 836

(1) In General [§ 124] p 836

(2) Time of Forming Intention [ 125] p 836

(3) Time for Making Reinvestment [§ 126] p 836

f. Proceeds of Sale Given to Wife [§ 127] p 836

g. Voluntary Surrender to Assignee for Creditors [§ 128] p 837

8. Exchange of Homestead [§ 129] p 837

9. Proceeds of Involuntary Conversion [§§ 130-133] p 838

a. In General [§ 130] p 838

b. Proceeds of Insurance [§ 131] p 838

c. Judicial and Execution Sales of Homestead [§ 132] p 838

d. Judgment for Unlawful Sale, Trespass, or Injury [§ 133] p 839 10. Property Purchased with Proceeds of Sale [§§ 134-142] p 840

a. In General [§ 134] p 840

b. Homestead Sold in Foreign State [§ 135] p 841

c. Time for Making Reinvestment [§ 136] p 841

d. Intention in Selling Old Homestead [137] p 841

e. Declaration Recording Deed, Etc. [§ 138] p 841

f. Occupancy of New Homestead [§ 139] p 841

g. Vacant Property [§ 140] p 841

h. Limitation of Value for New Homestead [§ 141] p 842

i. Application of Surplus Proceeds [§ 142] p 842

11. Ownership, Estate, or Interest in Property [§§ 143-191] p 842

a. In General [§ 143] p 842

b. Estate Subject to Sale on Execution [§ 144] p 843

c. Possessory Interest [§§ 145-146] p 843

(1) Necessity [§ 145] p 843

(2) Sufficiency [§ 146] p 843

d. Equitable Estates and Interests [§§ 147-155] p 843

(1) In General [§ 147] p 844

(2) Equity of Redemption in Mortgaged Premises [§ 148] p 844
(3) Land Held Under Contract of Purchase [§§ 149-154] p 844
(a) In General [§ 149] p 844

(b) Oral Contracts [§ 150] p 845

(c) Right to Possession [§ 151] p 845

(d) Purchase of Public Lands [§ 152] p 845

(e) Forfeiture or Abandonment of Contract [§ 153] p 845

(f) Payment of Price by Creditor [§ 154] p 845

(4) Title Taken in Another's Name [§ 155] p 845

e. Future or Contingent Estates [§ 156] p 846

f. Property Held by Different Titles [ 157] p 846

g. Life Estates [§ 158] p 846

h. Leasehold Estates [§§ 159-161] p 847

(1) In General [§ 159] p 847

(2) Occupancy by Both Lessor and Lessee [§ 160] p 847

(3) Stipulation against Use as Residence [161] p 847

i. Tenants at Will or by Sufferance [§ 162] p 847

j. Croppers [§ 163] p 848

[ocr errors]

k. Property Held in Joint Tenancy or by Tenants in Common [§§ 1632-170] p 848 (1) In General [§ 1632] p 848

(2) View That Homestead May Be Acquired [§§ 164-169] p 848

(a) In General [§ 164] p 848

(b) Exclusive Possession [§ 165] p 849

(c) Claim by Both Tenants [§ 166] p 849

(d) Interference with Rights of Cotenants [§ 167] p 849

(e) Partition between Cotenants [§ 168] p 849

(f) Extent of Right [§ 169] p 849

(3) View That Homestead Cannot Be Acquired [§ 170] p 849

1. Partnership Property [§§ 171-180] p 850

(1) In General [§ 171] p 850

(2) Claim after Payment of Partnership Debts [§ 172] p 851
(3) Solvent Firms [§ 173] p 851

(4) Claim as against Debt to Copartner [§ 174] p 851

(5) Title as Tenants in Common Only [§ 175] p 851

(6) Dissolution of Partnership [§ 176] p 851

(7) Conveyanaces between Partners [§ 177] p 851

(8) Business Homestead [§ 178] p 851

(9) Individual Property [§ 179] p 852

(10) Extent of Partner's Right of Exemption [§ 180] p 852

m. Property in Which Wife Has Title or Wife's Separate Estate [§ 181-185] p 852 (1) Husband's Right to Homestead [§ 181] p 852

(2) Wife's Right to Home tead [§§ 182-185] p 853

(a) In General [§ 182] p 853

(b) Wife Supporting Family [§ 183] p 853

(c) Deserted Wife [§ 184] p 853

For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number.

(d) Separation by Agreement [§ 185] p 853

n. Separate Tracts Owned by Husband and Wife [ 186] p 853
o. Community Property [187] p 854

p. Property Held in Trust [§ 188] p 854

q. Property Acquired by Gift, Descent, or Devise [§ 189] p 854

r. Property Acquired by Adverse Possession [ 190] p. 855

s. Lands in Hands of Receiver or Agent Appointed by Court [§ 191] p 855

III. LIABILITIES ENFORCEABLE AGAINST HOMESTEAD [§§ 192-252] p 855
A. In General [§ 192] p 855

B. Liabilities Antedating Homestead Law [§§ 193-198] p 855

1. Contractual Liabilities [§§ 193-197] p 855

a. State Laws Creating or Increasing Exemption [§§ 193-195] p 855 b. Acts of Congress Creating or Increasing Exemption [§ 196] p 857 c. Laws Decreasing Exemption [§ 197] p 857

2. Liabilities Arising Out of Torts [§ 198] p 857

C. Liabilities Existing before Acquisition of Property [§§ 199-200] p 858
1. In General [§ 199] p 858

2. Property Acquired by Marriage, Gift, Descent, or Devise [200] p 859 D. Liabilities Changed in Form after Land Acquired [ 201] p 859

E. Liabilities Existing before Establishment of Homestead [§§ 202-208] p 859
1. In General [§ 202] p 859

2. Before Occupancy [203] p 860

3. Before Debtor Has Acquired Personal Homestead Status [§ 204] p 861 4. Before Filing of Declaration [ 205] p 861

5. Before Registration of Deed Conveying Homesteaad [§ 206] p 862

6. Before Selection or Setting Apart [§ 207] p 862

7. Mortgage or Conveyance as Security [§ 208] p 863

F. Debts Contracted Prior to Erection of Improvements [§ 209] p 863

G. Debts and Liens Prior to Change of Homestead [ 210] p 863

H. Debts or Obligations for Purchase Money [§§ 211-222] p 864

1. In General [§ 211] p 864

2. Obligations Secured by Vendor's Lien or Mortgage [§§ 212-215] p 864 a. In General [§ 212] p 864

b. Attorney's Fees Included in Vendor's Lien Notes [§ 213] p 865

c. Lands Descending to Widow and Children of Purchaser [§ 214] p 865 d. Effect of Waiver or Loss of Lien [§ 215] p 865

3. Unsecured Obligations [§ 216] p 865

4. Agreement to Pay Debt of Vendor to Third Person [§ 217] p 866

5. Purchase Price of Other Property [§ 218] p 866

6. Money Borrowed to Pay Purchase Price [§ 219] p 866

7. Payment Made by Third Person [§ 220] p 867

8. Change in Form of Debt or Taking of Security [§ 221] p 867

9. Transfer of Obligation [◊ 222] p 868

I. Liabilities for Improvement and Protection of Property [§§ 223-225] p 868
1. In General [§ 223] p 868

2. Wages and Materials [§ 224] p 869

3. Loans and Advances Used in Removing Encumbrances [§ 225] p 870

J. Debts Due to Government [§ 226] p 871

K. Judgments [§§ 227-229] p 871

1. In General [§ 227] p 871

2. Judgments for Alimony [228] p 873

3. Judgments for Torts [§ 229] p 874

L. Miscellaneous Claims Enforceable against Homestead [§§ 230-237] p 874

1. Costs and Attorney's Fees [§§ 230-231] p 874

a. In General [§ 230] p 874

b. In Suits for Preservation of Homestead Rights [§ 231] p 875

2. Debts Due for Necessaries [§ 232] p 875

3. Expenses of Last Illness and Funeral [§ 233] p 875

4. Debts Owed in Fiduciary Capacity [§ 234] p 875

5. Debts Contracted through False Representations [§ 235] p 876

6. Obligations Incurred in Raising Crops [§ 236] p 876

7. Allowance for Support of Abandoned Wife [§ 2362] p 876

8. Liabilities Enforceable against Business Homestead [§ 237] p 876

M. Time of Contracting Liability [§ 238] p 876

N. Proceedings for Enforcement of Claims [§§ 239-251] p 876

1. In General [§ 239] p 877

2. Waiver, Forfeiture, and Estoppel [§ 240] p 877

3. Joinder of Claims and Causes [§ 241] p 877

4. Exhausting Other Property Before Resorting to Homestead [§ 242] p 877

5. Jurisdiction [§ 243] p 879
6. Parties [ 244] p 880
7. Pleading [§ 245] p 880

8. Evidence [§ 246] p 880

9. Directing Verdict [§ 247] p 881

10. Judgment and Enforcement Thereof [§ 248] p 881
11. Application of Proceeds [§§ 249-251] p 881

a. In General [§ 249] p 881

b. Allowance to Debtor [250] p 882

c. Investment of Proceeds [§ 251] p 882

O. Perfecting and Keeping Alive Liens [ 252] p 882

IV. TRANSFER OR ENCUMBRANCE [§§ 253-340] p 833
A. Power to Transfer or Encumber [§§ 253-255] p 883
1. In General [§ 253] p 883

2. Conveyance Subject to Homestead Right [§ 254] p 884
3. Creation of Lien [§ 255] p 884

B. Constitutional and Statutory Restrictions [$ 256-300] p 884
1. In General [§ 256] p 884

2. Construction and Operation of Restrictions [§ 257] p 885
3. What Law Governs [§ 258] p 885

4. Consent and Joinder of Husband and Wife [§§ 259-297] p 885
a. Necessity [§§ 259-288] p 885

(1) General Rule [§ 259] p 885

(2) Effect, Purpose, and Validity of Provisions [§ 260] p 887
(3) Application and Extent of Rule [§§ 261-277] p 888

(a) In General [§ 261] p 888

(b) Homestead Held under Contract of Purchase [§ 262] p 889
(c) Homestead of Leased Premises [§ 263] p 889

(d) Dedication to Public Use or Grant of Easement [§ 264] p 889
(e) Contract to Convey, Mortgage, or Exchange [§ 265] p 889
(f) Lease [§ 266] p 890

(g) License [267] p 891

(h) Conditional Conveyances [268] p 891

(i) Conveyance of Timber Growing on Homestead [§ 269] p 891

(j) Chattel Mortgage on Improvements [§ 270] p 891

(k) Subsequent Agreements Affecting Liability under Transfer or Encumbrance [§§ 271-272] p 891

aa. In General [§ 271] p 891

bb. Reviving or Restoring Liability [§ 272] p 892

(1) Conveyances after Separation or Abandonment [§ 273] p 892
(m) Conveyances Where Wife or Husband Is Insane [§ 274] p 893

(n) Conveyance by Wife of Homestead Previously Conveyed to Her by
Husband [275] p 893

(0) Relinquishment of Equity of Redemption and Conveyance of Reversionary Interest [§ 276] p 893

[blocks in formation]

(a) In General [§ 278] p 894

(b) Transfer or Encumbrance to Secure Debts Enforceable against Homestead [§ 279] p 894

(c) Transfers and Encumbrances Prior to Acquisition and Establishment
[ 280] p 895

(d) Conveyances and Mortgages between Husband and Wife [§ 281] p 896
(e) Conveyance by Wife of Homestead Owned by Her [§ 282] p 897
(f) Conveyance by Unmarried Debtor [§ 283] p 897

(g) Conveyance after Termination of Homestead [§ 284] p 898

(h) Conveyance or Encumbrance of Excess over Homestead [§ 285] p 898 (i) Conveyance in Consideration of Support of Homesteader and Wife [§ 286] p 898

(j) Proceeds of Condemnation of Homestead under Right of Eminent Domain [§ 287] p 899

(k) Miscellaneous [§ 288] p 899

b. Consideration for Consent of Spouse [ 289] p 899

c. Nature and Sufficiency of Consent or Joinder [§§ 290-297] p 900

(1) In General [§ 290] p 900

(2) Execution under Power of Attorney or by Husband as Agent [§ 291] p 901 (3) Conveyance by Trustee or Guardian [§ 292] p 901

(4) Joinder by Separate Instruments or Separate Execution of Same Instruments [293] p 901

For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number.

(5) Effect of Joinder for Release of Dower [§ 294] p 902
(6) Reality of Consent [§§ 295-297] p 903

(a) In General [§ 295] p 903

(b) Effect of Fraud and Duress [§ 296] p 903

(c) Effect of Insanity or Minority [§ 297] p 904

5. Consent of Court and Reinvestment in New Homestead [§ 298] p 904

6. Restricting Encumbrances Except for Certain Debts [§ 299] p 904

7. Restricting Alienation Where Infant Children Living [§ 300] p 906

C. Form and Requisites of Instrument, Acknowledgment, and Record [§§ 301-309] p 906 1. Form and Requisites of Instrument [§§ 301-309] p 906

a. In General [§ 301] p 906

b. Description of Premises [§ 302] p 907

c. Necessity and Sufficiency of Release of Homestead [§ 303] p 907

d. Acknowledgment [§§ 304-308] p 907

(1) In General [§ 304] p 907

(2) Time of Acknowledgment [§ 305] p 908

(3) Mode of Taking Acknowledgment [§ 306] p 908

(4) Form, Requisites, and Effect of Certificate [§ 307] p 909

(5) Correcting and Supplying Acknowledgment [§ 308] p 909

e. Record [ 309] p 910

D. Operation and Effect [§§ 310-331] p 910

1. In General [§§ 310-319] p 910

a. Conveyances in Compliance with Statutory Requirements [§ 310] p 910

b. Conveyances Not in Compliance with Statutory Requirements [§§ 311-318] p 910 (1) On Termination of Homestead [§ 311] p 910

(2) On Divorce [§ 312] p 912

(3) Estoppel to Assert Invalidity [§§ 313-316] p 912

(a) In General [§ 313] p 912

(b) Joinder or Nonjoinder of Husband or Wife in Conveyance [§ 314] p 913

(c) Representations or Recitals That Property Is Not Homestead [§ 315]

p 914

(d) Estoppel of Wife by Acts of Husband [§ 316] p 915

(4) Ratification [§ 317] p 915

(5) Curative Acts [§ 318] p 916

c. Conveyances Prohibited by Constitution or Statute [§ 319] p 916 2. Lands Conveyed or Leased in Excess of Homestead [§ 320] p 916

3. Rights of Purchasers and Mortgagees [§§ 321-331] p 917

a. As against Persons Having Homestead Interests [§§ 321-324] p 917
(1) In General [§ 321] p 917

(2) As Affected by Good Faith and Notice [§§ 322-324] p 917
(a) Original Purchasers or Mortgagees [§ 322] p 917

(b) Subsequent Purchasers [§ 323] p 918

(c) Facts Constituting Notice [§ 324] p 918

b. As against Third Persons [§§ 325-326] p 919

(1) Rights as against Outstanding Judgments and Claims against Homestead [§ 325] p 919

(2) Rights as against Prior Defective Conveyances [§ 326] p 921

c. Effect of Adverse Possession as against Homesteaders and Third Persons [§ 327]
p 921

d. Remedies and Proceedings for Enforcement of Rights [§§ 328-331] p 921
(1) In General [§ 328] p 921

(2) Of Purchasers [ 32821 p 922

(3) Of Mortgagees [§ 328] p 922

(4) Specific Performance of Contract to Convey [§ 329] p 922
(5) Damages for Breach of Contract to Convey [§ 330] p 923

(6) Parties, Pleading, and Evidence [§ 331] p 924

E. Avoidance [§§ 332-340] p 925

1. Persons Entitled to Assert Invalidity [§§ 332-333] p 925
a. Owners of Homestead [§ 332] p 925

b. Other Persons [§ 333] p 925

2. Nature and Form of Action [§ 334] p 926

3. Limitations on Time to Sue [§ 335] p 926

4. Parties [§ 3351⁄2] p 926

5. Pleading [§ 336] p 926

6. Evidence [§ 337] p 927

7. Nature and Conditions of Relief [§§ 338-340] p 927

a. In General [§ 338] p 927

b. Mesne Profits [ 339] p 928

c. Improvements [ 3392] p 928

« AnteriorContinuar »