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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
the right to contract that it must be
strictly construed and can be applied
only to cases clearly within its let-
ter and spirit).

V.

Colo.-Edson-Keith v. Bedwell, 52
Colo. 310, 122 P 392; Leppel v. Kus,
38 Colo. 292, 88 P 448; Wright v.
Whittick, 18 Colo. 54, 31 P 490; Mc-
Phee v. O'Rourke, 10 Colo. 301, 15
P 420, 3 AmSR 579: Barnett
Knight. 7 Colo. 365, 3 P 747: Brooks
v. Black 22 Colo. A. 49, 123 P 131.
Fla.-Clark v. Cox, 80 Fla. 63. 85
S 173; Hill v. Marianna First Nat.
Bank, 79 Fla. 391. 84 S 190; West
Florida Grocery Co. v. Teutonia F.
Ins. Co., 74 Fla. 220, 77 S. 209, LRA
1918B 968; Pasco v. Harley. 73 Fla.
819, 75 S 30; Milton v. Milton, 63
Fla. 533, 58 S 718; Drucker v. Rosen-
stein, 19 Fla. 191. See Read v. Leit-
ner, 86 S 425.

Ga.-Roff v. Johnson, 40 Ga. 555.
Ill-Deere v. Chapman, 25 Ill. 610,
79 AmD 350; Kitchell v. Burgwin, 21
Ill. 40: Perkins v. Perkins, 122 Ill.
A. 370.

Iowa. Floyd County V. Wolfe,
138 Iowa 749, 117 NW 32: Schutt-
loffel v. Collins. 98 Iowa 576, 67 NW
397. 60 AmSR 216: Morgan V.
Rountree, 88 Iowa 249, 55 NW 65,
45 AmSR 234; Huskins v. Hanlon,
72 Iowa 37, 33 NW 352; Kaiser v.
Seaton, 62 Iowa 463, 17 NW
664;
Woods v. Davis. 34 Iowa 264; Bevan
v. Hayden, 13 Iowa 122; Charless v.
Lamberson, 1 Iowa 435, 63 AmD
457.

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. H.-Barney v. Leeds, 51 N. H.
Gunnison v. Twitchel, 38 N. H. 62;
Peverly v. Sayles, 10 N. H. 356.

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-
erate limits; 83 but this rule does not require a
strained construction to favor the debtor, but a
natural construction of the act, effecting the pur-
poses of its enactment without departing from the
obvious meaning of its terms;85 nor can the court,
in the application of this rule of construction, go
beyond the intent of the legislature.86
The pro-
visions are not to be so construed as to protect those
not meant to be protected, or to dispense with the
necessity of parties bringing themselves within the
purpose of the laws unaided by judicial construc-
tion, or to make them an instrument of fraud and
imposition upon creditors and a cloak for wrong-
doing.9

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.
[b] It is the policy of the law to
discourage all attempts to secure
title to the homestead unless the
vendee brings himself clearly within
the letter of the law. Thompson v.
Foken, 81 Nebr. 261, 115 NW 770.
To same effect Brandenburgh v.
Rose. 110 SW 376, 33 KyL 585.
83.

399.

84.

Barber v. Rorabeck, 36 Mich.

See cases infra note 85.
85. Ala-Barton v. Laundry, 202
Ala. 10, 79 S 308; Fearn v. Ward, 65
Ala. 33; McGuire v. Van Pelt, 55 Ala.

344.

Ill-Deere v. Chapman, 25 Ill. 610,
79 AmD 350.

Iowa.-Morgan V. Rountree, 88
Iowa 249, 55 NW 65, 45 AmSR 234;
Charless v. Lamberson, 1 Iowa 435,
63 AmD 457.

Ky.-Louisville Banking Co. v.
Anderson, 44 SW 636, 19 KyL 1839;
Little v. Woodward. 14 Bush 585.

Miss.-Thoms v. Thoms, 45 Miss. 263.
Mo.-Regan v. Ensley, 283 Mo. 297,
67 Mo. 308.
222 SW 773; Casebolt v. Donaldson,

N. H.-Ladd v. Dudley, 45 N. H. 61.
S. C.-Garaty v. Du Bose, 5 S. C.
493.

86. Dennis v. Gorman, (Mo.) 233
D. 509, 515, 174 NW 214.
SW 50; Sexton v. Sutherland, 42 N.

"The
liberal
principles of
con-
struction cannot be so far extended
as to deny effect to the plain lan-
guage employed by the legislature in
limiting the assertion of the home-
stead right in cases where the prop-
erty is not, in fact, occupied as the
Sexton
homestead."
v. Sutherland,

supra.

V.

87. Floyd County v. Wolfe, 138
32:
Iowa 749, 117 NW
Nelson
Theus, 5 Tenn. Civ. A. 87.
[a] Purchaser of homestead
right.-Nelson v. Theus, 5 Tenn. Civ.
A. 87.

[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.

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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.
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,
should have his right, although the
land was held in joint tenancy, ten-
ancy in common, etc., was abrogated
by the adoption of the Codes of Jan.
1, 1873. In re Carraghar, 181 Cal.
15, 183 P 161.

8. Conflict of laws generally see
Conflict of Laws §§ 40, 79 et seq.
What law governs:
Proceedings for protection of home-
stead rights see infra § 418.
Rights of surviving wife, husband,
children, or heirs see infra § 500.
Transfer or encumbrance of home-
stead see infra § 258.

9. U. S.-Spitley v. Frost, 15 Fed.
299, 5 McCrary 43 [rev on other
grounds 121 U. S. 552, 7 SCt 1129, 30
L. ed. 1010]; In re Hook, 12 F. Cas.

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.
Sewell, 40 Ga. 73].

Iowa. Bridgman
Greene 563.

V. Wilcut, 4

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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,
47 S. C. 446. 25 SE 296: Stewart v.
Blalock, 45 S. C. 61, 22 SE 774; Trim-
mier v. Winsmith, 41 S. C. 103, 19 SE
283; Cochran v. Darcy, 5 S. C. 125.

Tenn.-Deatherage v. Walker, 11
Heisk. 45.

Tex.-Wood v. Wheeler, 7 Tex. 13.
Wis.-Borrman v. Schober, 18 Wis.
437; Seamans v. Carter, 15 Wis. 548,
82 AmD 696.

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.

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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
required as a condition precedent to his right to an
allowance of homestead to prove that his wife does
not own property exceeding that amount."
[§ 23] 7. Existence of More Than One Home-
stead. No claimant of homestead rights is en-
23 Thus
titled to two homesteads at the same time.2
he cannot claim both a rural homestead and en
urban homestead; 24 He can claim but one business
homestead,25 and cannot claim both a business home-
26 If he already re-
stead and a general homestead. 20

sides on a homestead acquired under the federal
laws, he cannot claim another under the state laws."
Further, where a husband has claimed a homestead,
the wife cannot claim another in a separate prop-
erty during his life; 28 nor can a husband who has a
homestead in his wife's land claim another home-
The claimant cannot re-
stead in his own land.29

20. Abramson v. Larabee, 140 La. 825, 74 S 162.

homestead does not exist against a | Abramson v. Larabee, 140 La. 825,
mortgage given to secure a debt ex- 74 S 162; Garnier v. Joffrion, 39 La.
isting prior to the enactment of the Ann. 884, 2 S 797; White v. Givens,
homestead law, although the mort- 29 La. Ann. 571.
executed subsequent to
gage
that date. Strachn v. Foss, 42 N. H.
43. (2) A mortgagee in possession
of a
the passage
at the date of
dis-
homestead law subsequently
charged his mortgage, and as a part
of the same transaction took a new
mortgage for the same amount and
delivered possession of the premises.

It was held that no estate of home-
stead was acquired as against the
mortgage.
renewal
subsequent
Burns v. Thayer, 101 Mass. 426.
15. Ala-Keel v. Larkin, 72 Ala.

493.

Ky.-Kirkland v. Burton, 2 KyL

319.

N. C.-Arnold v. Estis, 92 N. C.
162; Fraley v. Kelly, 88 N. C. 227, 43
Meredith, 71
AmR 743; Martin v.
N. C. 214.
S. C.-Compton v. Patterson, 28
S. C. 115. 5 SE 270.
Tenn.-Christian v. Clark, 10 Lea

630.

Tex.-Grayson v. Taylor, 14 Tex.

a

as

Thus ac

672.
[a] Thus, although a debt may
have originated prior to the passage
of the homestead act, a debtor is
homestead
entitled to claim
against a person who pays off such
debt after the taking effect of the
Kirkland v. Burton,. 2 KyL 319.
law.
16. See cases infra this note.
[a] Renewal note.-(1)
cording to the weight of authority,
a note given after the taking effect
of a homestead law in renewal of
a note given before the passage of
the law is enforceable against the
homestead. Kibbey v. Jones, 7 Bush
(Ky.) 243; Pryor v. Smith, 4 Bush
(Ky.) 379; Tucker v. Drake, 11 Allen
(Mass.) 145; Wood v. Lord, 51 N. H.
448; Ladd v. Dudley, 45 N. H. 61.
(2) On the other hand other deci-
sions hold that a note given after the
enactment of a homestead law and

renewal of a note given prior thereto
is a new contract and subject to the
Smith v. Merritt,
homestead right.

61 Ga. 203; Arnold v. Estis, 92 N. C. 162; Wilson v. Patton, 87 N. C. 318; Compton v. Patterson, 28 S. C. 115,

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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.
184, 42 S 767, 118 AmSR 361; Garnier
v. Washam, 205
V. Joffrion, 39 La. Ann. 884. 2 S 897.
87 Ala. 729, 6 S 383.
Ala. 92, 87 S 337; Beard v. Johnson,
Cal-Waggle v. Worthy, 74 Cal.
266, 15 P 831, 5 AmSR 440.
Ga. Johnson v. Roberts, 68 Ga.
v. Boyd, 63 Ga.
22;
167; Torrance
Darlington v. Belt, 12 Ga. A. 522,
77 SE 653.

Ill-Miller v. Miller, 234 Ill. 16.
84 NE 681; Herdman v. Cooper, 138
Ill. 583, 28 NE 1094 [aff 39 Ill. A.
3301; Wright v. Dunning, 46 Ill. 271,
92 AmD 257; Tourville v. Pierson, 39
Ill. 446.

[a] Rule applied.-After a fam-
the husband left
ily had moved from the husband's
which he owned,
farm to a house on two town lots
his wife and child and returned to
the farm, where he lived until his
The wife and child continued
death.
It was held that
to live on the lots.
was in the
their homestead right

lots, and, as they could not have two
interest in the farm.
had no such
Miller v. Miller, 234 Ill. 16, 84 NE
homesteads at the same time, they
681.

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.

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Okl.-Bouse v. Stone, 162 P 479;
Watson v. Manning, 56 Okl. 295, 156
P 184; Northwest Thresher Co.
P
McCarroll, 30 Okl. 25, 118
AnnCas1913B 1145.

(Civ.

v.

352,

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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.

[ocr errors]

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."

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45. Berry v. Heiser, 271 Ill. 264,
111 NE 99; Brown v. Keller, 32 Ill.
151, 83 AmD 258: Wertz v. Merritt,
74 Iowa 683, 39 NW 103.

[a] Thus where the testator had
only a life estate in land which he
and his wife occupied as a home-
stead,
the homestead exemption
ceased at his death. Berry v. Heiser,
271 111. 264, 111 NE 99.

46. Hebert v. Mayer, 48 La. Ann.
938, 20 S 170 (if at the time when
the debt was contracted the debtor
was the head of a dependent family,
and there were other dependent
members at the date of the seizure
of the property, the exemption is
not lost, although there were short
periods of time in the intervening
years during which the dependence
of a member of the family was not
shown to be direct). See also infra
§ 344.

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;

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