hand, if the constitution excepts a particular debt, the legislature cannot exempt as against that debt.72 [12] (5) Alienation of Homestead. Where the constitution declared that the legislature should protect from forced sale a certain portion of the homestead of all heads of families, it seems to have been considered that the legislature could not, in addition to giving a right of homestead exemption, restrain the voluntary alienation thereof.73 But statutes requiring the wife's joinder in a conveyance or encumbrance of the homestead have been upheld. If the constitution should expressly prohibit alienation of the homestead, or if such an intention on the part of the people should clearly appear from the scheme of the homestead exemption as established by the constitution, the legislature would have no power to allow alienation." 74 75 [§ 13] (6) Allowing Waiver of Exemption. A statute authorizing a waiver of the homestead exemption is not in conflict with a constitutional provision giving to debtors the right to a homestead exemption, without expressly prohibiting a waiver thereof.76 78 [14] b. Construction of Homestead Laws". (1) In General. The primary rule of statutory construction is that the intention of the legislature governs. The courts, so long as the statute is within the constitutional powers of the legislature, must give effect to it according to its terms.79 They cannot question its propriety or expediency, nor add to or subtract from its terms.80 [§ 15] (2) Liberal or Strict Construction(a) In General. Homestead provisions not being deemed to be in derogation of the common law,81 the rule is that homestead laws must be liberally construed in favor of the debtor, 82 especially where Miss. Nye v. Winborn. 120 Miss. 1, 81 S 644; Jackson v. Coleman, 115 Miss. 535, 76 S 545; Zukoski v. McIntyre, 93 Miss. 806. 47 S 435; Gilmore v. Brown, 93 Miss. 63, 46 S 840; Moody v. Moody, 86 Miss. 323, 38 S 322; Campbell v. Adair, 45 Miss. 170. Contra Smith v. Ratliff, 66 Miss. 683, 6 S 460, 14 AmSR 606. amount of property shall be exempt Fath, 132 Cal. 609, 64 P 995; Quack- | Drill Co., 106 Minn. 442. 119 NW 60; from seizure and sale for the pay-enbush v. Reed, 102 Cal. 493, 37 P Kiewert v. Anderson, 65 Minn. 491, ment of "any debt or liability." 755; Keyes v. Cyrus, 100 Cal. 322, 34 67 NW 1031, 60 AmSR 487. Contra Cumming v. Bloodworth, 87 N. C. 83; P 722, 38 AmSR 296; Gaylord v. Ward v. Huhn, 16 Minn. 159; Olson Volker-Scowcroft Lumber Co. v. Place, 98 Cal. 472, 33 P 484; Heath-v. Nelson, 3 Minn. 53. Vance, 32 Utah 74, 88 P 896, 125 Am man v. Holmes, 94 Cal. 291, 29 P SR 828. 404; Tromans v. Mahlman, 92 Cal. 72. Dunker v. Chedic, 4 Nev. 378 1, 27 P 1094, 28 P 579; Southwick v. (a statute which provides that no Davis, 78 Cal. 504, 21 P 121; Schuyler lien created by the husband and wife v. Broughton, 76 Cal. 524. 18 P 436; upon the homestead "shall be valid Moss v. Warner, 10 Cal. 296; anone for any purpose whatsoever" is in- v. Sprague, 16 Cal. A. 333, 116 P 989; valid where the constitution express- Hohn v. Pauly, 11 Cal. A. 724, 106 P ly excepts such liens from the bene- 266; Harlan v. Schulze, 7 Cal. A. fit of the exemption). 287, 94 P 379. But compare HamCal. 472. melmann v. Schmidt, 23 Cal. 117, (a Nev. 378 statute providing that no mortgage or alienation of any kind made for 74. Gee V. Moore, 14 Cal. 472; the purpose of securing a loan or inBarton v. Drake, 21 Minn. 299; Mas-debtedness upon the homestead propsey v. Womble, 69 Miss. 347, 11 Serty shall be valid for any purpose 188; Kennedy V. Stacey, 1 Baxt. (Tenn.) 220; Barker v. Dayton, 28 Wis. 367. See also infra § 259 et seq. Roberts v. Trammell, 55 Ga. 73. Gee v. Moore. 14 See Dunker v. Chedic, 4 (recognizing rule). 75. 383. 76. Reed v. Union Bank, 29 Gratt. (70 Va.) 719. 77. Retroactive effect of statutes: In general see Constitutional Law 781; infra §§ 19. 20, 193-195. Creating, diminishing, or increasing exemption see supra § 10. Relating to rights of survivors see infra 501. 78. See Statutes [36 Cyc 1106]. 79. Fearn v. Ward, 65 Ala. 33. Ex p. Brien, 2 Tenn. Ch. 33. See also Statutes [36 Cyc 1104]. 80. See Constitutional Law §§ 45, 224; Statutes [36 Cyc 1137]. 81. See supra §§ 2. 3. 82. U. S. In re Hewit, 244 Fed. 245; In re Crum, 221 Fed. 729; In re Irving, 220 Fed. 969; In re Malloy, 188 Fed. 788, 110 CCA 494 Trev 179 Fed. 942]; In re Baker, 182 Fed. 392, 104 CCA 602; In re Rippa, 180 Fed. 603; Green v. Root, 62 Fed. 191; Sellon v. Reed, 21 F. Cas. No. 12, 647, 5 Biss. 125. Ala.-Barton v. Laundry, 202 Ala. 10, 79 S 308; Sims v. Gunter, 201 Ala. 286, 78 S 62; Lewis v. Lewis, 201 Ala. 112, 77 S 406; Talladega First Nat. Bank v. Browne, 128 Ala. 557, 29 S 552; Cofer v. Scroggins, 98 Ala. 342, 13 S 115. 39 AmSR 54; Thompson v. Thompson, 91 Ala. 591, 8 S 419, 11 LRA 443; Hines v. Duncan, 79 Ala. 112, 58 AmR 580; Enzor v. Hurt, 76 Ala. 595; Fearn v. Ward, 65 Ala. 33; McGuire v. Van Pelt, 55 Ala. 344; Webb v. Edwards, 46 Ala. 17. Ariz.-Wilson v. 335, 52 P 777. Lowry, 5 Ariz. Ark. Stuckey v. Horn, 132 Ark. 357, 200 SW 1025; Kulbert v. Drew County Timber Co., 125 Ark. 291. 188 SW 810; Colum v. Thornton, 122 Ark. 287, 183 SW 205; Clements v. Crawford County Bank, 64 Ark. 7. 40 SW 132, 62 AmSR 149; Wassell V. Tunnah, 25 Ark. 101. whatsoever is SO restrictive upon V. Colo.-Edson-Keith v. Bedwell, 52 Ga.-Roff v. Johnson, 40 Ga. 555. Iowa. Floyd County V. Wolfe, Kan.-Dean V. Evans, 106 Kan. 389, 188 P 436; Howell v. McCrie, 36 Kan. 636. 14 P 257, 59 AmR 584. Ky-Marcum v. Edwards, 181 Kv. 683, 205 SW 798; Bennett v. Baird, 81 Ky. 554, 5 KyL 636: Louisville Banking Co. v. Anderson. 44 SW 636, 19 KyL 1839; Hope v. Hollis, 5 KyL 319. Mich-Armitage v. Davenport. 64 Mich. 412, 31 NW 408; Riggs v. Sterling, 60 Mich. 643, 27 NW 705, 1 Am SR 554; Bouchard v. Bourassa, 57 Mich. 8, 23 NW 452; Skinner v. Shannon, 44 Mich. 86, 6 NW 108, 38 AmR Cal.-McKay v. Gesford, 163 Cal. 232; Lozo v. Sutherland, 38 Mich. 243, 124 P 1016, 41 LRANS 303, Ann 168; Barber v. Rorabeck, 36 Mich. Cas1913E 1253; Donnelly v. Tregas- 399. kis, 154 Cal. 261, 97 P 421; In re Minn.-Jaenicke v. Fountain City Mo.-Dennis v. Gorman, 233 SW 50; Haggard v. Haggard, 233 SW 18; Keeline V. Sealy, 257 Mo. 498. 165 SW 1088: Pocoke v. Peterson, 256 Mo. 50, 165 SW 1017; Sperry v. Cook, 247 Mo. 132, 152 SW 318; Balance v. Gordon, 247 Mo. 119, 152 SW 358; Brewington v. Brewington, 211 Mo. 48, 109 SW 723; Macke v. Byrd, 131 Mo. 682, 33 SW 448, 52 AmSR 649; Blandy v. Asher, 72 Mo. 27; Casebolt v. Donaldson, 67 Mo. 308; Vogler v. Montgomery, 54 Mo. 577. Mont.-Ferguson V. Speith, 13 Mont. 487, 34 P 1020, 40 AmSR 459; Lindley v. Davis, 7 Mont. 206, 14 P 717 [overr 6 Mont. 453, 13 P 1181. Nebr. Weatherington v. Smith, 77 Nebr. 369, 112 NW 566; Mitchelson v. Smith, 28 Nebr. 583, 44 NW 871, 26 AmSR 357. 253; Buxton v. Dearborn, 46 N. H. 43; N. Y.-Robinson v. Wiley, 15 N. Y. 489. N. C.-Kelly v. McLeod, 165 N. C. 382, 81 SE 455; Shepherd v. Murrill, 90 N. C. 208. N. D.-Sexton v. Sutherland, 42 N. D. 509, 174 NW 214; Healy v. Bismarck Bank, 30 N. D. 628, 153 NW 392; Mandam Mercantile Co. v. Sexton, 29 N. D. 602, 151 NW 780, Ann Cas1917A 67; Dieter v. Fraine, 20 N. D. 484, 128 NW 684. Oh. Hill v. Myers, 46 Oh. St. 183, 19 NE 593; Wildermuth v. Koenig, 41 Oh. St. 180; McConville v. Lee, 31 Oh. St. 447; Sears v. Hanks, 14 Oh. St. 298, 84 AmD 378; Warns v. Reeck, 8 Oh. Cir. Ct. N. S. 401, 28 Oh. Cir. Ct. 785; Bretz v. Moore, 4 Oh. Cir. Ct. N. S. 556, 26 Oh. Cir. Ct. 66. Okl.-Field V. Goat, 173 P 364; Illinois L. Ins. Co. v. Rogers, 61 Okl. 43, 160 P 56; Atlas Supply Co. v. Blake, 51 Okl. 778, 152 P 601, 602 [cit Cyc]; Laurie v. Crouch, 41 Okl. 589. 139 P 304. Or. Watson v. Hurlburt, 87 Or. 297, 302, 170 P 541 [cit Cyc]; Wilson v. Peterson, 68 Or. 525, 136 P 1187. S. C.-Norton v. Bradham, 21 S. C. 375. And see Rollings v. Evans, 23 S. C. 316, which apparently disapproves a statement to the contrary in Garaty v. Du Bose, 5 S. C. 493. S. D.-Noyes v. Belding, 5 S. D. 603, 59 NW 1069. Tenn.-Walt v. Walt, 113 Tenn. 189, 81 SW 228; Jackson v. Shelton, 89 Tenn. 82, 16 SW 142. 12 LRA 514; White v. Fulghum, 87 Tenn. 281. 10 SW 501; Ren v. Driskell, 11 Lea 642; 84 the homestead exemption is restricted within mod- 88 90 87 89 Minority rule. In some jurisdictions the homestead laws are deemed to be in derogation of the common right and are subject to strict construction. 91 [16] (b) (b) Construction of Provisos and Exceptions. The rule of liberal construction 92 has been held to apply to the statutes only in so far as they allow the exemption. 93 It does not apply to exceptions and provisos in a statute by which a general Arnold v. Jones, 9 Lea 545; Nelson) v. Theus, 5 Tenn. Civ. A. 87. Tex.-Schneider v. Bray, 59 Tex. 668; Cobbs v. Coleman, 14 Tex. 594; Trawick v. Harris, 8 Tex. 312; Rock Island Plow Co. v. Alten, (Civ. A.) 111 SW 973. Utah.-Folsom v. Asper, 25 Utah 299, 71 P 315. Vt.-Jewett v. Guyer, 38 Vt. 200; Mills v. Grant, 36 Vt. 269; McElroy v. Bixby, 36 Vt. 254, 84 AmD 684; True v. Morrill, 28 Vt. 672; Howe v. Adams, 28 Vt. 541. Va. Neblett v. Shackleton, 111 Va. 707, 69 SE 946, 32 LRANS 577, Ann Cas1912A 117. Wash.-Security Nat. Bank V. Mason, 200 P 1097; Schoenheider v. Tuengel, 96 Wash. 103, 164 P 748; North Pac. L. & T. Co. v. Bennett, 49 Wash. 34, 94 P 664; Puget Sound Dressed Beef, etc., Co. v. Jeffs, 11 Wash. 466, 39 P 962, 48 AmSR 885, 27 LRA 808. W. Va.-Moran v. Clark, 30 W. Va. 358, 4 SE 303, 8 AmSR 66. Wis. Bartle v. Bartle, 132 Wis. 392, 112 NW 471; Binzel v. Grogan, 67 Wis. 147, 29 NW 895; Scofield v. Hopkins, 61 Wis. 370, 21 NW 259; Zimmer v. Pauley, 51 Wis. 282. 8 NW 219; Krueger v. Pierce, 37 Wis. 269; Weisbrod v. Daenicke. 36 Wis. Kuntz v. Kinney, 33 Wis. 510; Connaughton v. Sands, 32 Wis. 387. See also Statutes [36 Cyc 1178]. 73; allowance of property as exempt is qualified or restricted;" 04 nor does it apply to a proviso which declares that the statute shall not apply as against certain debts or liabilities.95 [17] (3) Construction of Statutes Together. When there are several statutes in the same state, enacted at different times, they are all to be construed together as if they were one act, in accordance with the rule that a remedial statute shall be extended to later provisions by subsequent statutes and the rule that all acts of the legislature in pari materia are to be taken together as if they were one act. 96 [18] c. Self-Executing Provisions. A constitution providing for or impliedly anticipating action by the legislature in securing an exemption of homestead is not self-executing, but is only a mandate to the legislature to establish the homestead exemption;" 98 and in such a case no exemption can be claimed until the legislature has provided therefor.99 On the other hand, if the constitution fixes the extent and value of the homestead and contains an express prohibition against a forced sale thereof on execution, no legislation is needed to N. D.-Engholm v. Ekrem, 18 N. D. 185, 119 NW 35. Utah.-Volker-Scowcroft 643, 649, 27 NW 705, 1 AmSR 554. Miss. 133, 69 S 817. 399. 84. Barber v. Rorabeck, 36 Mich. See cases infra note 85. 344. Ill-Deere v. Chapman, 25 Ill. 610, Iowa.-Morgan V. Rountree, 88 Ky.-Louisville Banking Co. v. Miss.-Thoms v. Thoms, 45 Miss. 263. N. H.-Ladd v. Dudley, 45 N. H. 61. 86. Dennis v. Gorman, (Mo.) 233 "The supra. V. 87. Floyd County v. Wolfe, 138 [a] Reasons for rule.-(1) "From highest reasons of public policy and social justice homestead laws are favored by courts and are always to be construed with liberality to further their benign purpose in creating self-reliant home Owners, rooted to the soil. They exist for the benefit of homestead debtors, not of creditors." Pocoke v. Peterson, 256 Mo. 501, 518, 165 SW 1017. (2) "It is not strange that courts whose duty it is to listen to the grievances of both debtor and creditor alike, and do justice to each, should not have failed to improve the first opportunity to look upon and construe with favor liberally, in accordance with the equity and spirit of the law, the statutes and constitutional provisions by which the homes and homestead exemption are again restored to the citizen, after so many years of deprivation and destitution have been endured by the unfortunate in every community. Such has Fla-Rawlins v. Dade Lumber Co., always been the construction given 80 Fla. 398. 86 S 334; Clark v. Cox, to these provisions of our constitu- 80 Fla. 63, 85 S 173; Pasco v. Harley, tion and laws upon the subject, and 73 Fla. 819, 75 S 30; Milton v. MilI trust a less liberal and humane ton, 63 Fla. 533, 58 S 718; Drucker v. view will never be taken by this Rosenstein. 19 Fla. 191. Court." Riggs v. Sterling, 60 Mich. Miss.-Mounger V. Gandy, 110 Lumber Co. v. Vance, 36 Utah 348, 103 P 970, 24 LRANS 321, AnnCas1912A 124. Wash.-Schoenheider V. Tuengel, 96 Wash. 103, 107, 164 P 748. "It is equally the duty of the courts not to permit these humane laws to be prostituted and perverted to the purpose of enabling an unscrupulous debtor to avoid the payment of his honest obligations by resorting to their provisons as a mere subterfuge with no honest intention or purpose of occupying the land as a home." Schoenheider v. Tuengel, supra. [a] Rights previously acquired.Whatever liberality should be given the construction of homestead exemption laws, they should not be so construed as to give the debtor the power by his own acts to deprive others of rights previously obtained in his property. Volker-Scowcroft Lumber Co. v. Vance. 36 Utah 348. 103 P 970, 24 LRANS 321, Ann Cas 1912A 124. 91. Kinder v. Lyons, 38 La. Ann. 713; Bossier v. Raines, 37 La. Ann. 263; Galligar v. Payne, 34 La. Ann. 1057; Tilton v. Vignes, 33 La. Ann. 240; Todd v. Gordy, 28 La. Ann. 666; Fuselier v. Buckner. 28 La. Ann. 594; Crilly v. Sheriff. 25 La. Ann. 219; Guillory v. Deville, 21 La. Ann. 686; Duchamp v. Butterly, 11 La. Ann. 67; London, etc., Loan, etc., Co. v. Connell, 11 Man. 115; Harris v. Rankin, 4 Man. 115; In re Hetherington, 3 Sask. L. 232. But see Hebert V. Mayer, 48 La. Ann. 938, 20 S 170, (where it is said that the statutes should not be too strictly construed). 92. See supra § 15. 93. 94. 95. Epps v. Epps, 17 Ill. A. 196. [b] Wife who deserted her husband and had been living in another See also Statutes [36 Cyc 1161]. state with another man, although still the legal wife of the husband she had deserted, is not entitled to homestead. Prater V. Prater. 87 Tern. 78, 9 SW 361, 10 AmSR 623. 88. Regan v. Ensley, 283 Mo. 297, 222 SW 773. 89. U. S.-In re Rippa, 180 Fed. 603. Epps v. Epps. 17 Ill. A 196. 96. Quade v. Whaley, 31 Cal. 526. See Union Oil Co. v. Norton Morgen Commercial Co., (Ariz.) 202 P 1077 (recognizing rule). See also Statutes [36 Cyc 1144]. 97. Pfeiffer v. Riehn, 13 Cal. 643; Cary v. Tice, 6 Cal. 625; Kelly v. Dill, 23 Minn. 435; Somers v. Somers. 33 S. D. 551, 146 NW 716; Security Nat. Bank v. Mason, (Wash.) 200 P 1097; Speidel v. Schlosser, 13 W. Va. 686. See also Constitutional Law § 117. 98. Somers v. Somers, 33 S. D. 551, 146 NW 716. 99. Kelly v. Dill, 23 Minn. 435. render it operative; and it has been held that a constitutional provision that exempted property "shall be liable to seizure and sale for any debts incurred to any person for work done or materials furnished in the construction, repair, or improvement of the same, ," is self-executing.2 [§ 19] d. d. Change or Repeal of Homestead Exemption. Although there is some authority to the contrary, according to the weight of authority the statutes in force when a debt is contracted constitute terms of the obligation and a repeal of such statutes cannot affect the previous right of exemption. Repealing laws frequently preserve homestead rights previously existing, whether accruing or accrued; and in such cases the repeal does not affect the debtor's privileges arising under prior statutes. Whether a prior homestead law is repealed in whole or in part by a subsequent statute or constitutional provision is determined by ascertaining if there is a necessary inconsistency between 6 1. Miller v. Marx, 55 Ala. 322; Beecher v. Baldy, 7 Mich. 488; Wilson v. Cochran, 31 Tex. 677, 98 AmD 553. [a] In Louisiana Const. art. 245, declaring that no judgment may be enforced against property exempted as a homestead, except for certain debts, means that no officers shall have jurisdiction to seize a homestead that has been judicially declared exempt from seizure for the debt attempted to be collected. Jefferson v. Gamm, 90 S 682. 2. Nickerson V. Crawford, 74 Minn. 366, 77 NW 292, 73 AmSR 354. 3. Carlisle v. Godwin, 68 Ala. 137: Clark v. Snodgrass, 66 Ala. 233; Lovelace v. Webb, 62 Ala. 271; Horn v. Wiatt, 60 Ala. 297. them." [20] 4. What Law Governs Right. The value and extent of the exemption as against creditors is determined by the law in force when the debt was created or contract entered into, for the reason that otherwise their obligation would be impaired, in violation of the state and federal constitutions, 10 The homestead right of a widow and minor children, on the death of the husband and father, must be determined by the law in force at the time of his death.11 As exemption laws affect only the remedy, those of the place of enforcement control.12 [21] 5. Right as Affected by Change in Form of Debt or New Promise.13 While there seems to be no dispute as to the rule that an alteration in the mere form of the debt will not as a rule enable the debtor to claim a homestead privilege, if such right did not exist when the original obligation was created, 14 and, on the other hand, as to the rule that entitled, if in exclusive occupation, 8. Conflict of laws generally see 9. U. S.-Spitley v. Frost, 15 Fed. No. 6,671, 2 Dill. 92. Ala.-Cochran v. Miller, 74 Ala. 50; Keel v. Larkin, 72 Ala. 493; Peevey v. Cabaniss, 70 Ala. 253; Smith v. Cockrell, 66 Ala. 64; Blum v. Carter, 63 Ala. 235; Hardy v. Sulzbacher, 62 Ala. 44; Nelson v. McCrary, 60 Ala. 301. [a] In North Carolina the act of 1885, amendatory of the homestead law and repealing the clause exempting homesteads from the lien of judgments, does not impair the obligations of a contract or interfere with vested rights, by being allowed to operate retrospectively, so as to Ga.-Drinkwater v. Moreman, 61 include judgment upon debts tracted before it became a law and while Code § 1 (4) was in operation. Leak v. Gay, 107 N. C. 468, 12 SE 312. con 4. Ga.-Chattanooga First Nat. Bank v. Massengill, 80 Ga. 333, 5 SE 100. Iowa. Bridgman V. Wilcut, 4 Greene 563. La.-Gerson v. Gayle, 34 La. Ann. 337. Mo.-Gladney v. Sydnor, 172 Mo. 318, 72 SW 554, 95 AmSR 517, 60 LRA 880. N. H.-Murray V. Trumbull, 67 N. H. 281, 29 A 461. See also infra §§ 193-197. Repealing acts generally see Statutes [36 Ce 1224]. Retroactive effect see tional Law § 781. 5. Constitu See See Statutory provisions. also infra §§ 193-197. 6. Cal.-Cohen v. Davis, 20 Cal. 187. Iowa.-Helfenstein v. Cave, 3 Iowa 287. La.-Thomas v. Guilbeau, 35 La. Ann. 927. Mass.-Dulanty V. Pynchon, 6 Allen 510; Clark v. Potter, 13 Gray 21. S. C.-Orangeburg Bank v. Kohn, 52 S. C. 120, 29 SE 625. S. D.-Nichols, etc., Co. v. Cunningham, 16 S. D. 475, 94 NW 389. Wash.-Whitworth v. McKee, 32 Wash. 83, 72 P 1046. See also infra §§ 193-197. is not entitled to an exemption. Dunagan v. Webster, 93 Ga. 540, 21 SE 65; Willis v. Thornton, 73 Ga. 128; Hunt v. Juhan, 63 Ga. 162; Withers v. Jenkins, 21 S. C. 365; De La Howe v. Harper, 5 S. C. 470; Bryant v. Woods, 11 Lea (Tenn.) 327. [b] Note for collection.-No exemption is allowed an attorney who receipted for a note placed in his hands for collection prior to the homestead enactment, but who collected and refused to pay over the proceeds after the law went into effect. Douglass v. Boylston, 69 Ga. 186. [c] If no exemption is claimed as against a nonenforceable senior judgment, a junior judgment, existing before the homestead law was enacted, is postponed to the senior. Newberry Nat. Bank v. Goodman, 33 S. C. 601, 11 SE 785. [d] As and between guardian ward the law governs which was in force at the date when an account ing became due from the guardian. Ga. 395; Van Dyke v. Kilgo, 54 Ga. ing. When it is sought to subject a 551 [both cases overr Pulliam V. Iowa. Bridgman V. Wilcut, 4 810. Miss.-Smith v. Brown, 28 Miss. Nebr.-Jackson V. Creighton, 29 Nebr. 310. 45 NW 638; Galligher v. Smiley, 28 Nebr. 189, 44 NW 187, 26 AmSR 319; McHugh v. Smiley, 17 Nebr. 620, 20 NW 296, 17 Nebr. 626, 24 NW 277; De Witt v. Wheeler, etc., Sewing-Mach. Co., 17 Nebr. 533, 23 NW 506; Dorrington v. Myers, 11 Nebr. 388, 9 NW 555. See Schields v. Horbach, 49 Nebr. 262, 68 NW 524. N. H.-Ladd v. Dudley, 45 N. H. 61. N. C.-Lowdermilk v. Corpening, 92 N. C. 333 [overr Ladd v. Adams, 66 N. C. 164; Hill v. Kessler, 63 N. C. 4371. Oh.-Curtis v. Selby, 1 Oh. Cir. Ct. 40, 1 Oh. Cir. Dec. 25. S. C.-McClenaghan v. McEachern, Tenn.-Deatherage v. Walker, 11 Tex.-Wood v. Wheeler, 7 Tex. 13. 7. In re Carraghar. 181 Cal. 15, 183 P 161; Beecher v. Baldy, 7 Mich. N. W. Terr.-Massey v. McClelland, 488; Fox . McClay, 48 Nebr. 820. 2 Terr. L. 179. 67 NW 888. See also Statutes [36 See also infra § 209 et seq. Cyc 1068 et seq]. [a] Breach of trust.-A guardian [a] Statute abrogated.-St. (1867- or other fiduciary, appointed before 1868) 116, p to enactment, and of home- the relating guilty steads, and providing that a party breach of trust subsequent thereto, a Platt v. Sheriff, 41 La. Ann. 856, 6 S 642. [e] Date of contract not appearhomestead to satisfaction of a judgment, and the date of the contract on which the judgment was rendered does not appear, the law as it existed at the time when the judgment Hugh V. Smiley, 17 Nebr. 620, 20 NW was recovered will be applied. 296. Mc [f] A limitation of the rule was one decision holding recognized in that if the greater part of the debt is created after the homestead law be goes into effect, exemption can Hope v. Hollis, 5 KyL 319. clamed. See supra note 9. 10. 11. Long v. Brown, (Ala.) 89 S 614; McDuffie v. Morrisette, 184 Ala. 360, 63 S 542. See also infra § 500. Right of surviving spouse see infra §§ 36, 470-498. 12. Roche V. Rhode Island Ins. Assoc., 2 Ill. A. 360; Helfenstein v. Cave, 3 Iowa 287. 13. See also infra §§ 201, 221. 14. Ark.-Cohn V. Hoffman, Ark. 376. 790 [29 C. J.] HOMESTEADS if the former debt is extinguished and the new obligation can properly be considered an original undertaking and not a renewal, the homestead exemption can be claimed as against the latter,15 the courts have not been always in harmony as to the application of these rules.18 [22] 6. Right as Affected by Ownership of Other Property.17 The possession of other real or personal property by a debtor does not necessarily prevent his claiming a homestead; 18 an exemption of personalty may be supplemented by a homestead of realty.19 The alleged fact that a debtor owned other property than his homestead or has fraudulently disposed of other property is immaterial and irrelevant to the question of his homestead exemption. 20 Property owned by wife. By statute, a husband may not be entitled to a homestead where the wife was 22 owns property of a certain value;" but he is not sides on a homestead acquired under the federal 20. Abramson v. Larabee, 140 La. 825, 74 S 162. homestead does not exist against a | Abramson v. Larabee, 140 La. 825, It was held that no estate of home- 493. Ky.-Kirkland v. Burton, 2 KyL 319. N. C.-Arnold v. Estis, 92 N. C. 630. Tex.-Grayson v. Taylor, 14 Tex. a as Thus ac 672. renewal of a note given prior thereto 61 Ga. 203; Arnold v. Estis, 92 N. C. 162; Wilson v. Patton, 87 N. C. 318; Compton v. Patterson, 28 S. C. 115, widow's right to 17. Effect homestead see infra § 479. Personal property exemption in see Exemptions lieu of homestead § 12. 18. See cases infra note 19. [a] Acquisiton of other property after selection of homestead. If the after designating homesteader, homestead of the statutory value, acquires adjoining property, he may select such a portion of the whole as does not exceed the limit fixed by to excess is subject law, and the Fitzhugh v. Concreditors' claims. nor, 32 Tex. Civ. A. 27, 74 SW 83. V. Haralson, 61 19. Dickinson Ga. 526; Eckols v. Reeves, 61 Ga. 214 21. Crichton Co. v. Merritt, 134 La. 4, 63 S 604; Garner v. Freeman, 118 La. 184, 42 S 767, 118 AmSR 361. 23. Ala.-Beaty 22. Garner v. Freeman, 118 La. Ill-Miller v. Miller, 234 Ill. 16. [a] Rule applied.-After a fam- lots, and, as they could not have two allows a the [b] "Long" or "pony" homestead. -Under a statute which debtor to take either the constitutional or "long" homestead or a statutory or shorter homestead but expressly prohibits the taking of both, a debtor having taken a homestead under one of the provisions is not entitled to a second homestead under the last application the other provision, although at the time of of. Darlington v. property previously set apart had been disposed Belt, 12 Ga. A. 522, 77 SE 653. 24. Williams v. Willis, 84 Tex Kan.-Swenson v. Kiehl, 21 Kan. SW 559; 533; Atchison Sav. Bank v. Wheeler, 398, 19 SW 683; Johnston v. Martin, 588, 15 Tex. 20 Kan. 625; Sarahas v. Fenlon, 5 81 Tex. 18, 16 SW 550; Pridgen v. Warn, 79 Kan. 592. Tex. 723; La.-Crawford-Jenkins v. Rogers, Swearingen v. Bassett, 65 Tex. 267; 129 La. 832, 56 S 904; Clausen v. San- Foreman v. Meroney, 62 Keith v. Hyndman, 57 Tex. 425; Iken Tex. 195; Allen v. 213 v. Olenick, 42 V. Neihradt, Mich.-Davis ders, 109 La. 996, 34 S 53. (Tex. Civ. A.) 233 208, NW v. Castleberry, 180 Mich. 212 Mich. 95, 181 NW 177; Ritter v. See- Whitaker, (Tex.) 18 SW 160; Acrey 204 SW 412; Stotts v. Stotts, 198 Mich. 605, SW 535; Sweetwater First Nat. Bank SW 662; Laucheimer v. 165 NW 761; La Plant v. Lester, 150 v. Porter, (Tex. Civ. A.) NWA.) 153 Mich. 336, 113 NW 1115; McMonegal 463; Dillard v. Cochran, (Tex. Civ. SW 543; Aransas Pass First Nat V. Wilson, 103 Mich. 264, 61 495; Wheeler v. Smith, 62 Mich. 373, Saunders, 19 Tex. Civ. A. 392, 47 Miss.-Nye v. Winborn, 120 Miss. Bank v. Walsh, (Tex. Civ. A.) 26 SW 1113; Foust v. Sanger, 13 (Tex. Civ. 29 NW 907. A.) 410, 35 SW 404. Mo.-Scheerer 1, 81 S 644. SW 192. Okl.-Bouse v. Stone, 162 P 479; (Civ. v. 352, S. D.-Ford v. Ford, 24 S. D. 644, 28. Neal v. Sawyer, 62 Ga. 352. 124 NW 1108; Hesnard v. Plunkett, 6 S. D. 73, 60 NW 159. Tex. 29. Herdman v. Cooper, 29 Ill. A Tex.-Achilles v. Willis, 81 Bell V. Franklin, 589, 39 I11. A. 330 [aff 138 IL 583, But see Spratt v. 28 NE 1094]. SW 181. Pierce v. 169, 16 SW 746; A.) 193 SW 745; Allen, 106 Ky. 274, 50 SW 270; Sum(Civ. A.) 230 Langston, Calvin v. Neel, (Civ.A.) 191 SW 791; mers v. Sprigg, 35 SW 1033, 18 Kyl Harrington v. Mayo, 61 Tex. Civ. A. 206 (both holding that, where the 610, 130 SW 650; Wingfield v. Hack-homestead right given to a surviving ney, 30 Tex. Civ. A. 39, 69 SW 446; husband in the homestead of his Parrish v. Frey, 18 Tex. Civ. A. 271, wife does not attach during the lifetime of the wife, the fact that the 44 SW 322. V. Frees, 74 Wis. wife has such property does not preSchoffen v. Lan- vent the husband claiming a homestead from lands owned by himself). 490, 43 NW 507. dauer, 60 Wis. 334, 19 NW 95. Wis.-Cornish later cases, developments and changes tain the option of choosing between two homes, right. when either is seized by creditors.30 Second homestead claimable. Where the first homestead has ceased to be exempt31 because of the invalidity of the statute securing it,32 or has been sold,33 or has become liable for the owner's debts Ly dissolution of the family and the owner has remarried, a second homestead may be claimed by him. And if a widow to whom a homestead has been set apart out of her deceased husband's estate afterward marries, she may claim a second homestead out of her second husband's property.3 34 35 Other exemption not inconsistent. An exemption secured by bankruptcy proceedings will not interfere with the bankrupt claiming a homestead, as the former is for his own benefit, and the latter for the benefit of his family.36 Similarly it has been held that the exemption from execution of a miner's dwelling and mining claim not exceeding a certain value granted by statute does not conflict with a homestead claimed in the same property, although the property protected as a homestead exceeds in amount that exempted under such statute.37 39 38 [24] 8. Separate Homesteads in Same Tract." Two separate homesteads cannot exist in the same land at one and the same time.3 Thus an heir entitled to the reversion cannot acquire a homestead interest in the land during the existence of the widow's homestead therein.40 Where a widow was entitled to a homestead in the land of her husband, her son who did not live upon the land had no such 30. Wapello County v. Brady, 118 Iowa 482. 92 NW 717. Compare Mfrs.' etc., Bank v. Tayless, 16 F. Cas. No. 9,050, Brunn. Col. Cas. 8 (where a portion of defendant's lands, on which is situated a dwelling house far exceeding the value of the homestead entitled to exemption, is subject to a mortgage nearly equal to the value of that portion of his lands, and defendant has another parcel, on which is a dwelling occupied by part of his family, of a value within the limits of the statute exemption, he is entitled, upon his request, to have the latter set off and exempted from sale on execution). 31. Methods of termination or loss see infra §§ 25, 344, 369 et seq. 32. Whittington v. Colbert, 50 Ga. 584. 33. Gibbs v. Adams, 76 Ark. 575, 89 SW 1008. 34. Shore v. Gastley, 75 Ga. 813. 35. Higgins v. Higgins, 46 Cal. 259; Smith v. Rittenhouse, 260 Ill. 599, 103 NE 569, LRA1916A 997. 36. Holland v. Withers, 76 Ga. 667. 37. Gaylord v. Place, 98 Cal. 472, 33 P 484. In both husband and wife see 38. infra 181. In both lessor and lessee see infra § 160. 39. Ark.-Greer V. Griffis-Newbern Co., 125 Ark. 456, 188 SW 1185. Ill. Brokaw v. Ogle, 170 Ill. 115, 48 NE 394. Ky-People's Nat. Bank v. Kulmer, 155 Ky. 359, 159 SW 809; Meguiar v. Burr, 81 Ky. 32. N. C.-Murchison v. Plyler, 87 N. C. 79. Wis. Cornish v. Frees, 74 Wis. 490, 43 NW 507. 40. Brokaw v. Ogle, 170 I11. 115, 48 NE 394; Merrifield v. Merrifield, 82 Ky. 526. V. Kul 41. People's Nat. Bank mer, 155 Ky. 359, 159 SW 809. Cross references: 42. Duration and termination of survivor's rights see infra §§ 518-525. Termination by: Abandonment see infra § 350 et seq. Estoppel see infra § 391 et seq. Separation of family see infra 344. 41 44 42 [25] 9. Duration and Termination.* The homestead exemption is temporary and exists on y so long as the conditions prevail under which it is allowed by the homestead laws.13 The right to exemption may be terminated when claimant ceases to be a bona fide resident of the state.* If the exemption attaches to any estate less than a fee, it will not last beyond the termination of such estate.* 45 But a mere temporary loss of status as head of a family may not affect the homestead right. Where one has acquired a homestead right as a householder, such right continues so long as the householder continues to occupy it, whether he loses one or all of the members of his family.18 49 47 [26] B. Persons Entitled to Homestead-1. In General. The benefit of the homestead provisions is available only to such persons as are within the contemplation of the constitutional or statutory provisions, and under the circumstances and conditions prescribed by law.50 The principal object of the homestead provisions being the protection of the family, it is generally held that a homestead can be reserved only for the benefit of a family;52 but usually the right to claim the exemption is given to the head of a family,53 or to a householder or housekeeper with or having a family, although by express terms of the statutes the exemption may be given to other persons." 45. Berry v. Heiser, 271 Ill. 264, [a] Thus where the testator had 46. Hebert v. Mayer, 48 La. Ann. McNichols Miller v. Finegan, 26 Fla. 29, 7 S 140, 6 LRA 813. Ga. Johnson v. Little. 90 Ga. 781, 17 SE 294; Calhoun v. McLendon, 42 Ga. 405; Lynch v. Pace, 40 Ga. 173. Ill.-Holnback v. Wilson, 159 Ill. 148, 42 NE 169; Rock v. Haas, 110 Ill. 528; Ryhiner v. Frank, 105 Ill. 326; Kimbrel v. Willis, 97 Ill. 494; Stodgell v. Jackson, 111 Ill. A. 256. Kan.–Farlin v. Sook, 26 Kan. 397. Ky.-Eastern Kentucky Asylum for Insane v. Cottle, 143 Ky. 719, 137 SW 235; Bosquett v. Hall, 90 Ky. 566, 13 SW 244, 12 KyL 433, 29 AmSR 404, 9 LRA 351; Ellis v. Davis, 90 Ky. 183, 14 SW 74, 11 KyL 893; Dowd v. Hurley, 78 Ky. 260. La.-Roy v. Godfrey, 142 La. 262, 76 S 707. Mass.-Woodworth v. Comstock, 10 Allen 425. Miss.-Powers v. Sample, 72 Miss. 187, 16 S 293; Hill v. Franklin, 54 Miss. 632; Hand v. Winn, 52 Miss. 784. Mo.-Ridenour-Baker Grocery Co. v. Monroe, 142 Mo. 165, 43 SW 633; Graham v. Lee, 69 Mo. 334; State v. Kane, 42 Mo. A. 253; Murdock v. Dalby, 13 Mo. A. 41. 47. McNichols v. McNichols, 299 Ill. 362, 132 NE 448; Olp v. Meyer, 277 Ill. 202, 115 NE 221. 48. 530. v. McNichols, 299 Ill. 362, 132 NE 448; Olp v. Meyer, 277 111. 202, 115 NE 221; Evansville Coffin Co. v. Sumner, (Ky.) 226 SW 363. 49. Union Oil Co. v. Norton Morgan Commercial Co., (Ariz.) 202 P 1077; Hargrove v. Flournoy, 26 La. Ann. 645; Graham v. Lee, 69 Mo. 334. [a] A lawyer cannot claim homestead given to a farmer. Hargrove v. Flournoy, 26 La. Ann. 645. 50. See statutory provisions; and infra §§ 45-89. 51. See supra § 2. a 52. Ark.-Thompson v. King, 54 Ark. 9, 14 SW 925; Gates v. Steele, 48 Ark. 539, 4 SW 53; Harbison v. Vaughan, 42 Ark. 539. See Greenwood v. Maddox, 27 Ark. 648 (under a previous constitutional provision the right was given to any resident of the state and was not restricted to married men or heads of families). Fla. Hill v. Marianna First Nat. Bank, 73 Fla. 1092, 75 S 614; Johns v. Bowden, 68 Fla. 32, 66 S 155; |