89 88 on prior liens;87 and the fact that no judgment was recovered on such debt until after recording of the homestead claim will not avail claimant.8 On the other hand, in other jurisdictions where such a declaration of a homestead is required, the exemption may be claimed, provided the declaration is registered prior to the attachment of a lien;90 but if the attachment of the lien antedated the filing of the declaration of exemption the premises may be sold to discharge the lien.91 Under a statute which is silent as to the time when the making and filing of the declaration of homestead shall be done, it has been held that the homestead becomes exempt from sales for all debts or liabilities whatsoever, 92 although contracted before the declaration was made and filed93 and whether secured by lien or not, 94 except such debts as are expressly excepted from the operation of the exemption by the home created prior to the devise, no attempt having been made to comply with the act until a writ was in the hands of the officer. Mutual L. Ins. Co. v. Newton, (N. J. Ch.) 15 A 542. [b] Laches of homestead claimant. If a debtor so delays to pay a judgment that no execution can be issued on it, and suit is brought on the judgment, the execution that afterward issues may be levied on the premises notwithstanding it includes interest and costs that have accrued after the recording of the certificate of exemption. Mills V. Spaulding. 50 Me. 57. 87. Cabell v. Given, 30 W. Va. 760, 5 SE 442. 88. Kinder v. Lyons, 38 La. Ann. 713. [a] Reason for rule is that the statute refers to the date of the original contract and not to the date of the judgment. Kinder v. Lyons, 38 La. Ann. 713. 89. See supra § 68. 90. Edwards v. Grand, 121 Cal. 254, 53 P 796; Lee v. Murphy, 119 Cal. 364, 51 P 549; Beaton v. Reid, 111 Cal. 484, 44 P 167; San Luis Obispo First Nat. Bank v. Bruce, 94 Cal. 77, 29 P 488; Ontario State Bank v. Gerry, 91 Cal. 94, 27 P 531; Wilson v. Madison, 58 Cal. 1: Sullivan V. Hendrickson, 54 Cal. 258; McCracken v. Harris, 54 Cal. 81; Hershey v. Dennis, 53 Cal. 77; Culver v. Rogers, 28 Cal. 520. [a] If a statute gives to homesteaders the right to file a declaration within a certain date, this may be done and thereby defeat judgments rendered before the filing, if the declaration is filed by the given date, where the premises were occupied as a home prior to the rendition of the judgment. Riley v. Pehl, 23 Cal. 70. 91. Hall v. Glass, 123 Cal. 500, 56 P 336, 69 AmSR 77; Glas v. Glas, 114 Cal. 566. 46 P 667, 55 AmSR 90; Law v. Spence, 5 Ida. 244, 48 P 282; Smith v. Richards, 2 Ida. 464, 21 P 419; Olson v. Goodsell, 56 Wash. 251, 105 P 463; Hookway v. Thompson, 56 Wash. 57, 105 P 153. stead provisions themselves.95 [§ 206] 5. Before Registration of Deed Conveying Homestead. Under the statutes which provide that a homestead shall be subject to execution on all causes of action existing at the time of acquiring the homestead and that such time shall date from the filing of the deed of the homestead for record, it is necessary, in all cases to preserve the homestead right against debts, that the deed should have been filed before the creation of such debts, even though the owner had lived on the land as his home until he filed his deed for record. 98 96 97 [§ 207] 6. Before Selection or Setting Apart. When premises have become encumbered by a lien before they are set off or selected by the debtor as his homestead, their subsequent assignment to him under the homestead statutes will not defeat the lien.99 subd 3, which provides that a homestead cannot be claimed against a mortgage on the premises executed by both husband and wife, if the prior mortgage is thus executed it will have precedence, although it has not been filed for record. Duncan V. Curry, 124 Cal. 106, 56 P 898. (3) In Washington it has been held that a mortgage executed by a husband upon the separate property constitutes a valid and enforceable lien against a subsequent declaration of homestead made by his wife. Hookway v. Thompson, 56 Wash. 243, 105 P 463. [b] Judgment liens.-(1) In California the exemption may not be claimed as against judgments which were rendered and became liens on the premises, before the declaration of homestead was filed. Beaton v. Reid, 111 Cal. 484, 44 P 167; King v. Gotz, 70 Cal. 236, 11 P 656; Wilson v. Madison, 58 Cal. 1; Sullivan v. Hendrickson, 54 Cal. 258; McCracken v. Harris, 54 Cal. 81. (2) A judgment obtained before a justice of the peace is not a lien under this provision until filed in the office of the recorder of the county in which the lands are situated, under the general laws regulating judgment liens, even though execution has been levied on the premises. Beaton v. Reid, 111 Cal. 484, 44 P 167; Wilson v. Madison, 58 Cal. 1. (3) A judgment obtained in attachment proceedings, subsequent to the filing of the homestead declaration, is not excepted by this provision, although the attachment was levied prior to the time when it was filed. Wilson v. Madison, 58 Cal. 1; Sullivan v. Hendrickson, 54 Cal. 258; McCracken v. Harris, 54 Cal. 81. (4) Whatever is the character of the title or interest in the land held at the time of the filing of the declaration, the claim will attach to that title or interest, and whatever may inure to, or grow out of, that title will be impressed with the lien equally with the original title. Alexander v. Jackson, 92 Cal. 514, 28 P 593, 27 AmSR 158. [c] A mechanic's lien filed prior takes precedence over the homestead exemption. Olson v. Goodsell, 56 Wash. 251, 105 P 463. [d] Reformation of conveyance. Where certain premises were by mistake excluded from conveyance of land of the wife, and the grantor, with knowledge of her mistake, filed a declaration of homestead upon the land so excluded, the preexisting right of the grantee to have the conveyance reformed so as to carry title to such premises was not affected. Hayford v. Kocher, 65 Cal. 389, 4 P 350. [a] Mortgage liens.-(1) In California and Idaho an exception, to the declaration of homestead somewhat narrow in its scope, is made by the Homestead Law itself as to mortgage liens existing at the time when the homestead right was perfected. The premises are subject to forced sale on debts secured by mortgage on the premises where such mortgage is both executed and recorded before the declaration of homestead is filed for record. Duncan v. Curry, 124 Cal. 106, 56 P 898; Edwards v. Grand, 121 Cal. 254, 53 P 796; Lee v. Murphy, 119 Cal. 364, 51 P 549, 9552 Glas v. Glas, 114 Cal. 566, 46 P 667, 55 AmSR 90; San Luis Obispo First Nat. Bank v. Bruce, 94 Cal. 77, 29 P 488; Ontario State Bank v. Gerry, 91 Cal. 94, 27 P 531; Law v. Spence, 5 Ida. 244, 48 P 282. (2) Construing Civ. Code § 1241 92. In re Walley, 11 Nev. 260; Nevada Bank v. Treadway, 17 Fed. 887, 8 Sawy. 456 (construing Nevada law). 93. In re Walley, 11 Nev. 260. 94. 95. 96. In re Walley, 11 Nev. 260. 97. Clark v. Thias, 173 Mo. 628, 73 SW 616; Acreback v. Myer, 165 Mo. 685, 65 SW 1015; Stinson v. Call, 163 Mo. 323, 63 SW 729; Anthony v. Rice, 110 Mo. 223, 19 SW 423; Murphy v. De France, 105 Mo. 53, 15 SW 949, 16 SW 861; Peake v. Cameron, 102 Mo. 568, 15 SW 70; Tennent v. Pruitt, 94 Mo. 145, 7 SW 23; Berry v. Ewing, 91 Mo. 395, 3 SW 877; Finnegan v. Prindeville. 83 Mo. 517; O'Shea v. Payne, 81 Mo. 516; Kelsay v. Frazier, 78 Mo. 112; Rogers v. Marsh, 73 Mo. 64; State v. Diveling, 66 Mo. 375; Shindler v. Givens, 63 Mo. 394; Farra v. Quiely, 57 Mo. 284; Griswold v. Johnson, 22 Mo. A. 466; Titus v. Warren, 67 Vt. 242, 31 A 297; Spaulding v. Crane, 46 Vt. 292; Lamb v. Mason, 45 Vt. 500; West River Bank v. Gale, 42 Vt. 27; Perrin v. Sargeant, 33 Vt. 84; Simonds v. Powers, 28 Vt. 354. [a] Nothing short of a deed filed for record (1) will estop the indebtedness from being superior to the homestead right. Griswold v. Johnson, 22 Mo. A. 466. (2) Thus the filing of a contract for the purchase of land, a title bond, or the like is not a compliance with this provision. Griswold v. Johnson, 22 Mo. A. 466. [b] Time of accrual of action for breach of promise.-Under Rev. St. (1909) §§ 6704, 6711, subjecting a homestead to execution upon a "cause of action" existing at the time of the filing of the homestead deed, where defendant promised to marry plaintiff, and later filed his homestead deed, and thereafter married another, plaintiff's judgment in her action for breach of promise, brought thereafter, was not leviable against the homestead, since the cause of action did not accrue when the promise was made. Sperry v. Cook, (Mo.) 152 SW 318. 98. Tennent v. Pruitt, 94 Mo. 145, 7 SW 23; Shindler v. Givens, 63 Mo. 394; Farra v. Quigly, 57 Mo. 284. 99. Clements v. Lee, 47 Ga. 625; Roig v. Schults, 42 Oh. St. 165; McComb v. Thompson, 42 Oh. St. 139: Rosenberg v. Lewi, 41 S. C. L. 344: Homestead Bldg., etc., Assoc. v. Enslow. 41 S. C. L. 1. [a] If the land has been inadvertently omitted from a conveyance and, prior to proceedings for a reformation of the deed, the grantor's wife, with the full knowledge of the facts, selects them as a homestead, no exemption attaches. Hayford v. Kocher, 65 Cal. 389, 4 P 350. But see Adams v. Baker, 24 Nev. 162, 51 P 252, 77 AmSR 799 (where the wife had no notice of the defect when she filed her declaration of homestead, and was held entitled to claim the land as exempt). [b] Where the premises are set apart as a homestead, subject to a 3 [§ 208] 7. Mortgage or Conveyance as Security. In accordance with and subject to the limitations of the general rule,2 a debtor, by executing a mortgage upon real estate in which he has previously established no homestead rights, thereby prevents the assertion of such rights as against the mortgagee, whether there is in the mortgage an express waiver of homestead privileges or not. Even though the mortgage is executed after the premises become a homestead, if it does not create a new, but only changes the form of a prior lien, no exemption exists; but an extension of a preëxisting mortgage, without the consent of both husband and wife, will not have this effect.7 A conveyance in trust to secure a debt is governed by the same rules as is a mortgage.s [209] F. Debts Contracted Prior to Erection of Improvements. Under a statute providing that the homestead exemption shall not attach as against debts contracted prior to the erection of improvements, creditors may reach the property if their claims antedated its improvement by the debtor;10 and this is so, although the note or document evidencing the debt was executed subsequent to the making of improvements. It has been held, how particular debt, no exemption exists either as against the principal or interest of the debt. Palmer v. Simpson, 69 Ga. 792. [c] In North Carolina the allotment must be made before the debt is contracted or there can be no exemption. Earle v. Hardie, 80 N. C. 177. Selection and allotment of homestead see supra §§ 64-73. 1. Encumbering homestead after acquisition see infra §§ 253-340. See supra § 202. 2. 3. U. S.-Abbott v. Powell, 1 F. Cas. No. 13, 6 Sawy. 91. Ala.-Lyons v. Connor, 57 Ala. 181. Cal.-In re Huelsman, 127 Cal. 275, 59 P 776; Woodland Bank v. Oberhaus, 125 Cal. 320, 57 P 1070; Graham V. Oviatt, 58 Cal. 428; Rix v. McHenry, 7 Cal. 89. Ga. Rathel v. Fort, 134 Ga. 268, 67 SE 417; Rutledge v. McFarland, 75 Ga. 774. Ill.-McCormick v. Wilcox, 25 Ill. 274. Iowa. Keosauqua State Bank V. Hartman, 169 NW 339; Browneller v. Wells, 109 Iowa 230, 80 NW 351. La. Caire v. Hickox, 136 La. 803. 67 S 887, 888; Coltharp v. West, 127 La. 430, 53 S 675; Ellis v. Freyhan, 124 La. 53, 54, 49 S 975 ("the decision to the contrary in Fuqua v. Chaffe, 26 La. Ann. 148. has been overwhelmingly overruled"); Taylor v. Saloy, 38 La. Ann. 62. N. H.-Richardson v. Baker. 68 N. H. 297. 44 A 520 (recognizing rule). N. D.-Adam v. McClintock, 21 N. D. 483, 131 NW 394. Oh.-Wilson v. Scott, 29 Oh. St. 636; Gibson v. Mundell, 29 Oh. St. 523. S. C.-Rosenberg v. Lewi, 7 S. C. 344; Homestead Bldg., etc., Co. v. Enslow, 7 S. C. 1. Tex.-Mabry v. Harrison, 44 Tex. 286; Clements v. Neal, 1 Tex. Unrep. Cas. 41; McCandless V. Freeman, Vt. 700. ever, that only the buildings or other improvements erected subsequent to the time when the debt was incurred and not the homestead as it existed prior thereto can be subjected to its payment.12 And the statute applies only to new and extensive improvements placed on the land whereby its value is increased in an amount exceeding the homestead exemption and not such as are caused by repairing or adding to those already made for the increased comfort of the family.13 And a building erected on homestead property under an agreement between the homesteader and the person building it that the latter could remove it at any time does not belong to the homesteader nor add to the value of the property in such a manner that the homestead to the extent of the value of the building could be subjected to the payment of a debt of the homesteader contracted before its erection. 14 [§ 210] G. Debts and Liens Prior to Change of Homestead. Where a debtor may and does exchange his homestead for another,15 the new homestead stands in the place of the old homestead,16 and is liable or exempt, as the case may be, to the same extent as was the homestead for which it has been substituted,17 in accordance with, and sub8. Bier v. Leisle, 172 Cal. 432, 156 | tracting of a debt by the homesteader P 870; Thaxton v. Roberts, 66 Ga. 704; is not such an improvement as will West v. Bennett, 59 Ga. 507; Isaacs render the homestead subject to the v. Tinley, 58 Ga. 457; Markwell v. payment of the debt to the value of Markwell, 157 Mo. 326. 57 SW 1078. the improvement. Weber v. Gardner, [a] Rule applied.-The attempted 80 SW 480, 481, 26 KyL 44. selection by a wife of community premises as a homestead, after their conveyance by her husband with her consent to a third person as trustee to pay the husband's debts, created no interest in the land, nor could it avail against the prior conveyance. Bier v. Leisle, 172 Cal. 432, 156 P 870. 9. [a] Tearing down an old building 11. Keeny v. Burke. 12 KyL 464; Thacker v. Booth, 6 SW 460, 9 KyL 745. 12. Darnell v. Smith, 98 Ky. 238, 32 SW 745 [dist Moseley v. Bevins, 91 Ky. 260, 15 SW 527]; Hemphill v. Haas, 88 Ky. 492, 11 SW 510, 11 KyL 62. 13. Cowan v. Evan, 101 SW 964. 31 KyL 222; Weber v. Gardner, 80 SW 481, 26 KyL 44; O'Gorman v. Madden. 5 SW 756, 9 KyL 567. [a] Thus (1) where a debtor V. Fairbanks, 50 bought a homestead, moved into a cabin on the land, and afterward [a] Failure to redeem within time built a house, into which he moved allowed. If a mortgagor is not en- before it was completed, further imtitled to a homestead unless he re- provements made to make the premdeems from the mortgage, he is ises more comfortable and convenbarred by failure to do so within the ient, such as a barn, well, etc., after year of redemption. Richardson V. incurring a debt, did not render the Baker, 68 N. H. 297, 44 A 520. homestead subject to execution, under 4. St. (1903) § 1702. providing that the homestead exemption shall not apply to debts existing prior to the purchase of land or the erection of improvements thereon. Cowan v. Evan, 101 SW 964, 31 KyL 226. (2) The painting of a dwelling house occupied as a homestead after the con Webster v. Dundee Mortg., etc., Co., 93 Ga. 278. 20 SE 310. 5. 271. 6. Ill. McCormick v. Wilcox, 25 Swift v. Kraemer, 13 Cal. 526, 73 AmD 603. 190 7. Corey v. Matot, (Cal. A.) P 378. 14. Weber v. Gardner, 80 SW 481, 26 KyL 44, 81 SW 678, 26 KyL 416. 15. See supra §§ 129, 134-142. See supra §§ 129. 134-142. 17. U. S.-Green v. Root, 62 Fed. 16. 191. Ill-Boyd v. Fullerton, 125 Ill. 437. 17 NE 819. Iowa. Johnson County Sav. Bank v. Carroll, 78 NW 247; Bule v. Heilprin, 105 Iowa 608, 75 NW 642; Lamb v. McConkey, 76 Iowa 47, 40 NW 77; Ruthven v. Mast, 55 Iowa 715, 8 NW 659; Thompson v. Rogers, 51 Iowa 333, 1 NW 681; Bills v. Mason, 42 Iowa 329; Robb v. McBride, 28 Iowa 386; Pearson v. Minturn, 18 Iowa 36. Ky.-Thompson V. Heffner, 11 Bush 353; Brandenburgh v. Rhodes, 110 SW 376, 33 KyL 585; McDonald v. Lowry, 50 SW 553, 20 KyL 1939; Musgrave v. Parish, 11 SW 464, 10 KyL 998. Tex.-Frieberg v. Walzem, 85 Tex. 264, 20 SW 60, 34 AmSR 808; Lewis v. Goldthwait Nat. Bank, 36 Tex. Civ. A. 437, 81 SW 797; Rutherford v. Cox, 25 Tex. Civ. A. 499, 61 SW 527 (exchange); Evans v. Daniel, 25 Tex. Civ. A. 362, 60 SW 1012. [a] If the prior debt has not been reduced to judgment until after the exchange, the new homestead is ex-. empt. Pearson v. Minturn, 18 Iowa 36. [b] If the new homestead is of greater value than the former, the excess is subject to a judgment for debts contracted before occupation of the new as a home. Blue v. Heilprin, 105 Iowa 608, 75 NW 642. [c] Judgment not docketed.Where a party exchanged an estate occupied by him as a homestead for another estate and the deed of exchange and a declaration of homestead in the newly acquired estate were recorded simultaneously, the homestead right was paramount to the lien of a judgment in force at the time but not docketed. Eby v. Foster, 61 Cal. 282. [d] Burden of proof.-(1) Where a party relies upon the fact that his homestead was procured with the proceeds of a previous homestead, in order to establish its exemption from a claim which antedates the acquisition of the last homestead, he has the burden of proving that fact. Afton First Nat. Bank v. Thompson, 72 Iowa 417, 34 NW 184; Paine v. Means, 65 Iowa 547, 22 NW 669; ject to, the limitations of the general rules elsewhere discussed.18 The rule, however, has no application in respect of a homestead purchased with the proceeds of a prior homestead where such proceeds have been subjected to an intervening use,1 nor to a homestead purchased in another state.2 Likewise, the homestead will be liable for purchase money unpaid upon the former homestead. 21 19 20 And it has been held that, if the debtor owns two parcels of land, one of which he claims as a homestead, but subsequently removes to the other, which he thereafter occupies as his home, the latter is not exempt from debts chargeable against it before it became a homestead;22 and also that, where the owner of a lot occupied as a homestead exchanged it for another lot of about the same value, which he claimed as his homestead, and at the same time purchased with funds not derived from the home Davenport First Nat. Bank v. Baker, 57 Iowa 197, 10 NW 633. (2) Where a wife claims property as a homestead on the ground that it was paid for with the proceeds of the sale of a former homestead, she has the burden of clearly showing such fact. Johnson County Sav. Bank v. Carroll, (Iowa) 78 NW 247. [e] In Kentucky, where a homestead was acquired by descent and not by purchase, was sold, and the proceeds were invested in purchasing another homestead, the new homestead was held exempt even as against debts contracted before the acquisition of the former homestead. McDonald v. Lowry, 50 SW 553, 20 KyL 1939. 18. See supra §§ 202-209; and infra §§ 211-237. 19. Peninsular Stove Co. v. Roark, 94 Iowa 560, 63 NW 326. 20. Stinde v. Behrens, 6 Mo. A. 309. 21. Bills v. Mason, 42 Iowa 329; Hensley v. Webb, 101 SW 375, 31 KyL 87; Creath v. Dale, 69 Mo. 41; Monroe v. Buchanan, 27 Tex. 241. 22. Thompson v. Rogers, 51 Iowa 333, 1 NW 681; Elston v. Robinson, 21 Iowa 531; Crawford-Jenkins & Booth, Ltd. v. Rogers, 129 La. 832, 56 S 904; Stanley v. Baker, 75 Mo. 60; Batts v. Scott, 37 Tex. 59. But compare Robinson v. Blackerby, 5 SW 312, 9 KyL 375 (where the owner of a homestead sold part, and continued to reside upon the portion sold; he then removed to the unsold portion, which was held to be exempt). [a] Thus a debtor, having a residence in town, mortgaging his farm, cannot shift his homestead at the expense of his mortgage creditor. Crawford-Jenkins & Booth, Ltd. v. Rogers, 129 La. 832, 56 S 904. 23. Atkinson v. Hancock, 67 Iowa 452, 25 NW 701. 24. See statutory provisions; and infra §§ 212-222. [a] In South Dakota the statute expressly provides that a homestead shall be exempt from all process, levy, or sale for all debts of any description, even though contracted for the purchase money. Northwestern Loan, etc., Co. v. Jonasen, 11 S. D. 566, 79 NW 840. 25. Ala.-White v. Simpson, 107 Ala. 386, 18 S 151; Tyler v. Jewett, 82 Ala. 93, 2 S 905. Ark. Daius v. Turner, 42 Ark. 303; Tunstall v. Jones, 25 Ark. 272. Cal.-Longmaid v. Coulter, 123 Cal. 208, 55 P 791; Williams v. Young, 17 Cal. 403. stead another lot adjoining the new homestead, the lot purchased did not become part of the homestead, as against a judgment recovered before its purchase, the additional lot making the homestead of greater value than the original homestead. 23 [ 211] H. Debts or Obligations for Purchase Money-1. In General. Whether or not property claimed as a homestead is exempt as against claims for purchase money depends on the particular homestead provisions. 24 [§ 212] 2. Obligations Secured by Vendor's Lien or Mortgage-a. In General. Under the homestead laws of practically all jurisdictions, obligations for purchase money secured by liens contemporary with and a part of the transaction, such as a vendor's lien, 25 or a mortgage to secure payment of the purchase money, 26 take precedence over any claims of homestead and are enforceable against money. Hawks v. Hawks, 68 Ga. 832; Rushin v. Gause, 41 Ga. 180. Ill.-Bush v. Scott, 76 Ill. 524; Weider v. Clark, 27 Ill. 251. Iowa.-Clifton Land Co. v. Davenport, 130 Iowa 94, 106 NW 365. Kan.-Sheldon v. Motter, (A.) 53 P 89. Ky.-Purcell v. Dittman, 81 Ky. 148; Bradley v. Curtis, 79 Ky. 327, 2 KyL 329; Reynolds v. Williams, 4 SW 178, 9 KyL 112; Glidewell v. Johnson, 7 KyL 525, 13 Ky. Op. 858; Carpenter v. Kearns, 4 KyL 825, 12 Ky. Op. 9; Smith v. Gowdy, 3 KyL 538; Lemcole v. Shaw, 2 KyL 226, 11 Ky. Op. 38; Moore v. Miller, 1 KyL 322. La.-Rynella Mill, etc., Co. v. Segura, 128 La. 643, 55 S 2; Soulier v. Benker, 37 La. Ann. 162; Ventress v. Collins, 28 La. Ann. 783; Baker V. Richardson, Man. Unrep. Cas. 265. Miss.-Bass v. Nelms, 56 Miss. 502 (recognizing rule). Nebr.-City Sav. Bank v. Thompson, 91 Nebr. 628, 136 NW 992, 41 LRANS 89; Jackson v. Phillips, 57 Nebr. 189, 77 NW 683; Prout v. Burke, 51 Nebr. 24, 70 NW 512. N. C.-Billings v. Joines, 151 N. C. 363, 66 SE 307; Whitaker v. Elliott, 73 N. C. 186. Okl.-Hamra v. Fitzpatrick, 55 Okl. 780, 154 P 665. Tenn.-Bentley v. Jordan, 3 Lea 353; McWherter v. North, (Ch. A.) 46 SW 478. Tex.-Berry v. Boggess, 62 Tex. 239; Claybrooks v. Kelly, 61 Tex. 634; Burford v. Rosenfield, 37 Tex. 42; Jenkins v. Guaranty State Bank, (Civ. A.) 189 SW 314; Stratton v. Westchester F. Ins. Co., (Civ. A.) 182 SW 4; Wood v. Smith, (Civ. A.) 165 SW 471; Duller v. McNeill, (Civ. A.) 163 SW 636; Trammell v. Rosen, (Civ. A.) 163 SW 145; Quinn v. Dickinson, (Civ. A.) 146 SW 993; Smith v. Owen, 49 Tex. Civ. A. 51, 107 SW 929; Johnson v. Arrendale, 30 Tex. Civ. A. 504, 71 SW 45; Walsh v. Ford, 27 Tex. Civ. A. 573, 66 SW 854; Jones v. Male, 26 Tex. Civ. A. 181, 62 SW 827; Lennox v. Sanders, (Civ. A.) 54 SW 1076; McCarty v. Brackenridge, 1 Tex. Civ. A. 170, 20 SW 997. Wis.-Bartle v. Bartle, 132 Wis. 392, 112 NW 471 (recognizing rule). [a] Partial payment of the purchase price, improvement of the land, and depreciation in value below the amount of unpaid balance will not affect the vendor's rights. Cook v. Crocker, 53 Ga. 66. [b] Money loaned by a vendor to a vendee to improve the land purchased is not purchase money_within the rule. City Sav. Bank v. Thompson, 91 Nebr. 628, 136 NW 992, 41 LRANS 89; Bartle v. Bartle, 132 Wis. 392, 112 NW 471. | therein, although her husband did not execute and acknowledge the contract of purchase. City Sav. Bank v. Thompson, 91 Nebr. 628, 136 NW 992, 41 LRANS 89. [d] Judgment against husband alone for purchase money. Where a vendor conveys to husband and wife as tenants in common and obtains judgment against the husband alone for unpaid purchase money, neither the husband nor the wife can claim homestead exemption to prevent satisfaction of the judgment from the land. Hamra v. Fitzpatrick, 55 Okl. 780, 154 P 665. [e] Reconveyance on satisfaction of encumbrance.-Where a homestead is subject to a vendor's lien, the husband may, in good faith, reconvey the homestead in satisfaction of the encumbrance, and such reconveyance will be binding on his wife, although her separate property paid part of the purchase price. Burford v. Rosenfield, 37 Tex. 42; Evans v. Marlow, (Tex. Civ. A.) 149 SW 347. [f] The grantee of the vendes cannot acquire homestead rights as against a vendor's lien reserved in a note given by the purchaser. Wood v. Smith. (Tex. Civ. A.) 165 SW 471. [g] Discharge in bankruptcy.-A discharge of the debtor in bankruptcy will not prevent the enforcement against the homestead of an obligation for the purchase price which is secured by a lien thereon. Edmonson v. Green, 3 KyL 538; Bass v. Nelms, 56 Miss. 502. [h] Ejectment by vendor's grantee. Where a contract for the purchase of land provides that if the vendee shall fail to make the pay. ments specified therein, the contract shall be forfeited at the vendor's option, the purchaser's right of homestead exemption ceases when he fails to make such payments and an action of ejectment is brought by the vendor's grantee. Stafford v. Woods, 144 111. 203, 33 NE 539. 26. Ala.-Moses V. Home Bldg. etc., Assoc., 100 Ala. 465, 14 S 412. Cal.-McHendry v. Reilly, 13 Cal. 75; Montgomery v. Tutt, 11 Cal. 190; Lassen v. Vance, 8 Cal. 271, 68 AmD 322; Dillon v. Byrne, 5 Cal. 455. Ill.-Tourville v. Pierson, 39 IL 446; Chicago Sav. Bank, etc., Co. V. Dunn, 204 Ill. A. 181. Kan. Nichols V. Overacker, 16 Kan. 54; Andrews v. Alcorn, 13 Kan. 351. Ky.-Cohen v. Ripy, 33 SW 625, 17 KyL 1078; Riley v. Filmore, 4 KyL 347, 11 Ky. Op. 745. La.-Soulier v. Benker, 37 La. Ann. 162; Williston v. Schmidt, 28 La. Ann. 416. Mich.-Fournier V. Chisholm, 45 Mich. 417, 8 NW 100. Colo.-White v. Hartman, 26 Colo. A. 475, 145 P 716, 719 [cit Cyc]. Ga.-Chalker v. Usry, 138 Ga. 673, 75 SE 1055; Perdue v. Fraley, 92 Ga. 780, 19 SE 40; Blackwell v. Aiken, 73 Ga. 55; Hamrick v. People's Bank, 54 [c] Contract of purchase not exGa. 502; Sparger v. Cumpton, 54 Ga. ecuted by husband. The unpaid price 355. Prior to the act of 1874, the which a married woman agrees to Nebr.-Peterson v. Fisher, 85 Nebr. statutory homestead was not sub-pay for land is a lien on a subse- 745, 124 NW 145, 133 AmSR 688; Irject to a judgment for the purchase quently acquired homestead interest win v. Gay, 3 Nebr. (Unoff.) 153, 91 Minn. Jones v. Tainter, 15 Minn. 512. the premises, although a homestead may be obtained in such lands subject to such obligations.27 [213] b. Attorney's Fees Included in Vendor's Lien Notes. Where a vendor's lien note given as a consideration for the purchase price includes attorney's fees as a part of the consideration, the plea of homestead is not available against the collection of such fees.28 But, where provision is not made for attorney's fees in the original note given for the purchase money, and a renewal note is given after the property has become the homestead of the purchaser, containing a stipulation for attorney's fees, no lien is thereby created for the fees superior to the homestead rights. 29 [214] c. c. Lands Descending to Widow and Children of Purchaser. Under the homestead laws of Wisconsin it is held that homestead lands descending from the purchaser to his widow and children are exempt from the vendor's lien.30 [§ 216] 3. Unsecured Obligations.34 In many jurisdictions the constitutional and statutory provisions relating to homestead exemption contain exceptions by virtue of which property in which a homestead is claimed is liable for a "debt" or "obligation" contracted for the purchase of such property;35 and it has been said that homestead provisions containing exceptions of this character should be strictly construed. 36 Under these provisions, even in the absence of any lien, no homestead can be acquired in the premises as against a [§ 215] d. Effect of Waiver or Loss of Lien. Where the homestead laws except "debts" or "obligations" for purchase money generally, a vend- I purchase-money debt.37 N. C.-Roper v. National F. Ins. Tex.-Kangerga v. Willard, (Civ. A.) 191 SW 195; Wood v. Smith, (Civ. A.) 165 SW 471; Boles v. Walton, 32 Tex. Civ. A. 595, 74 SW 81; McNeil v. Moore, 7 Tex. Civ. A. 536, 27 SW 163. Vt.-Lapoint v. Sage, 90 Vt. 560, 99 A 233. Wis.-Cornish V. Frees, 74 Wis. 490, 43 NW 507. Wyo.-Powers v. Pense, 20 Wyo. 327, 123 P 925, 40 LRANS 785. The spirit of these provisions it is said is "that no man shall enjoy property as a homestead, or an improvement thereon, as against the just claims of the person who procured it for him." Nichols v. Överacker, 16 Kan. 54, 58. [a] Mortgage not executed by wife.-A mortgage for purchase money is a valid security, even against a homestead, although not signed by the wife of the mortgagee, and she is not a necessary party defendant to a bill to foreclose such mortgage. Amphlett v. Hibbard, 29 Mich. 298. [b] Where mortgage was executed pursuant to original parol agreement of purchase and improvement of land, mortgagee's equity was prior and paramount to homestead rights of mortgagor or his vendee, as mortgage related back to original parol agreement so far as parties to contract were concerned. 200 Ala. 133, 75 S 953. Cook v. Kelly, [c] Change in form of obligation. -Where the consideration for a mortgage on a homestead was in part the balance of the original purchase money, the validity of such mortgage to the extent that it represented such balance was not affected by change in the form of the obligation. Kangerga v. Willard, (Tex. Civ. A.) 191 SW 195. [d] What is a purchase-money mortgage.-A mortgage executed to secure money borrowed to satisfy a bid for real estate sold at sheriff's sale, and delivered simultaneously with the officer's deed, is a purchasemoney mortgage, valid as against a claim of homestead made by the purchaser's spouse. Peterson v. Fisher, 85 Nebr, 745, 124 NW 145, 133 AmSR 650. [e] The lien of a purchaser at a foreclosure sale under a mortgage given to secure the purchase price of land is superior to the homestead right. Powers v. Pense, 20 Wyo. 327, 123 P 925, 40 LRANS 785. [29 C. J.-55] 31 27. McHendry v. Reilly, 13 Cal. 75. | 100 Ill. 362; Asher v. Mitchell, 92 Ill. 28. Duller v. McNeill, (Tex. Civ. 480; Bush v. Scott, 76 Ill. 524; HubA.) 163 SW 636; Blackmon v. Texas bell v. Canady, 58 Ill. 425; Tourville Securities Co., (Tex. Civ. A.) 196 SW v. Pierson. 39 Ill. 446. 590. Iowa.-Bills v. Mason, 42 Iowa 329; Hyatt v. Spearman, 20 Iowa 510; Burnap v. Cook, 16 Iowa 149, 85 AmD 507; Cole v. Gill, 14 Iowa 527; Christy v. Dyer, 14 Iowa 438, 81 AmD 493; Barnes v. Gay, 7 Iowa 26. Kan.-Dreese V. Myers, 52 Kan. 126, 34 P 349, 39 AmSR 336; Shelden v. Motter, (A.) 53 P 89; Greeno v. Barnard, 18 Kan. 518; Nichols V. Overacker, 16 Kan. 54; Ayres V. Probasco, 14 Kan. 175; Andrews v. Alcorn, 13 Kan. 351; Pratt v. Topeka Bank, 12 Kan. 570. Ill.-Williams v. Jones, 100 Ill. 362. Iowa. Bills v. Mason, 42 Iowa 329. Ky.-Greer v. Oldham, 11 SW 73, 10 KyL 889; Reynolds v. Williams, 4 Ky.-Greer v. Oldham, 11 SW 73, SW 178, 9 KyL 112; Carpenter v. 10 KyL 889; Harrod v. Johnson, 5 Kearns, 4 KyL 825. Compare Ralls KyL 247, 12 Ky. Op. 268; Reynolds v. v. Prather, 51 SW 318, 21 KyL 322 (if Williams, 4 SW 178, 9 KyL 112; Carthe vendor waives his right by allow-penter v. Kearns, 4 KyL 825, 12 Ky. ing proceeds from a sale of the land, Op. 9; Moore v. Miller, 1 KyL 322; over and above the homestead claim, Moss v. Hall, 1 KyL 314. to be paid on inferior liens, he loses his rights against the homestead). Okl-Hamra v. Fitzpatrick, 55 Okl. 780. 154 P 665. 33. Lee v. Murphy, 119 Cal. 364, 51 P 549, 955. 34. Necessity of consent of husband or wife to creation of purchasemoney mortgage see infra § 259 et seq. 35. See constitutional and statutory provisions. 36. Wilhelm v. Locklar, (Fla.) 35 S 6; Lawton v. Hower, 18 Fla. 872; Olsen v. Nelson, 3 Minn. 53. La.-Ventress V. Collins, 28 La. Ann. 783; Simon v. Walker, 28 La. Ann. 608. Miss.-Bass v. Nelms, 56 Miss. 502; Patrick V. Rembert, 55 Miss. 87; Buckingham v. Nelson, 42 Miss. 417. N. C.-Lawson v. Pringle, 98 N. C. 450, 4 SE 188; Dortch v. Benton, 98 N. C. 190, 3 SE 638, 2 AmSR 331; Toms v. Logan, 93 N. C. 276; Toms v. Fite, 93 N. C. 274; Fox v. Brooks, 88 N. C. 234; Smith v. High, 85 N. C. 93: Whitaker v. Elliott, 73 N. C. 186. Oh.-Starkey v. Wainright, 9 OhS &CP 436, 6 OhNP 32. Okl.-Zehr V. May, 169 P 1077; Gray v. Deal, 50 Okl. 89, 151 P 205. Pa.-Wiley's App., 90 Pa. 173; Hershey v. Metzgar, 90 Pa. 217; Ulrich's App., 48 Pa. 489; Nottes's App., 45 Pa. 361. [a] The words "any part thereof" found in the exception which the homestead law establishes in favor S. C.-Willingham v. Willingham, of "the purchase price of property or 55 S. C. 441, 33 SE 500: Odom_v. any part thereof," has reference to Burch, 52 S. C. 305, 29 SE 726; Edany part of the purchase price and wards v. Edwards, 14 S. C. 11; Calnot to any part of the property.houn v. Calhoun, 2 S. C. 283. Iberia Cypress Co. v. Christen, 116 La. 53, 40 S 529. 37. Ala.-Newbold V. Smart, 67 Fla.-Porter v. Teate, 17 Fla. 813. Ill.-Stafford v. Woods, 144 Ill. 203, 33 NE 539; Kitterlin v. Milwaukee Mechanic's Mut. Ins. Co., 134 Ill. 647, 25 NE 772. 10 LRA 220; Watson v. Saxer, 102 Ill. 585; Williams v. Jones, Tenn. McWherter v. North, (Ch. A.) 46 SW 478; Fauver v. Fleenor, 13 Lea 622; Christian v. Clark, 10 Lea 630; Bentley v. Jordan, 3 Lea 353. Tex.-Lee v. Welborne, 71 Tex. 500, 9 SW 471; Evans v. Marlow, (Civ. A.) 149 SW 347; Hightower v. W. F. Taylor Co., 59 Tex. Civ. A. 647, 126 SW 621; Naquin v. Texas Sav., etc., Inv. Assoc., (Civ. A.) 67 SW 908; Kay v. Hathaway, 21 Tex. Civ. A. 466, 51 SW 663. Utah.-Harris v. Larsen, 24 Utah 139, 66 P 782. [a] Reason for rule.-"The ultimate purpose of the homestead exemption is to protect the head of a family and the family from want and penury, and from being homeless by reason of misfortune. But it was never intended by these laws that a Debt or obligation within rule. The following debts or obligations have been considered a purchase-money "debt" or "obligation" contracted for the purchase of property in which a homestead was claimed: A debt incurred in the purchase of an outstanding title to premises occupied as a homestead which is paramount to that already possessed by the purchaser;38 a note against a third person transferred by the vendor's indorsement in part payment of the purchase money." Where the vendee exchanges his homestead, against which there is a debt due for the purchase money, for other land which he claims as exempt, such debt is an obligation contracted for the purchase, and may be enforced against the land received by the vendee in exchange. 40 39 43 41 Debt or obligation not within rule. The following debts or obligations have been considered not a purchase-money "debt" or "obligation" contracted for the purchase of property in which a homestead was claimed: A debt contracted for material used in the improvement of a homestead;11 a debt resulting from a former sale of the property to one who is evicted by foreclosure of a prior mortgage and who afterward acquired a new title to the property.12 Where arbitrators assign land to an heir and report that the heir owes the estate a stated amount, this debt, if partly contracted prior to the ancestor's death, is not deemed to be for the purchase price of the land so assigned.* Where a wife is the owner of a stock of goods and merchandise, the husband carrying on the business in his own name, if the proceeds of sales are invested in real estate, the title to which is taken in the name of the wife, and which is immediately occupied by the purchaser and his family should possess and enjoy property not paid for within the spirit of the contract of purchase, while the seller and his family were not compensated for it. There is no equity in allowing a purchaser and his family to obtain the homestead of another man and his family, and keep it, by any subterfuge or overreaching by which the seller's family is turned out of doors, and get nothing for their home. homestead obtained by fraud, or the semblance of fraud, is not contemplated by the law.' Porter v. Teate, 17 Fla. 813. 815. A [b] In Massachusetts (1) it was held that a note given for the purchase price of land cannot be regarded as "a debt contracted previous to the purchase thereof," and that the note did not take precedence over the homestead claim. Thurston v. Maddocks, 6 Allen 427. (2) A later statute remedies this defect and gives precedence to claims for debts contracted for the purchase price of land. Thurston v. Maddocks, supra. [c] Where land which has not been paid for is sold and the proceeds invested in other land, a homestead right in the second tract purchased is subject to the right of the vendor of the first tract to enforce his claim for purchase money. Hensley v. Webb, 101 SW 375, 31 KyL 87. [d] Lien for excess of purchase money paid by tenant in common.The right of homestead does not prevail against valid liens and cannot be asserted by one or two tenants in common against the others in a lien for extensive purchase money paid by him over and above his share. Newbold v. Smart, 67 Ala. 326; Edwards v. Edwards, 14 S. C. 11. [e] Loan of money under guise of purchase-money transaction.-Under a provision that no mortgage or other lien on the homestead shall ever be family as a homestead, no purchase-money obligation accrues to business creditors of the husband, at least where it does not appear that the proceeds of the goods sold by the husband and wife constituted any part of the purchase price.** [§ 217] 4. Agreement to Pay Debt of Vendor to Third Person. Under most homestead provisions if a part of the consideration for the conveyance of land is the purchaser's agreement to pay a debt of the vendor to a third person, the latter may enforce his rights in preference to the homestead claim. 45 The rule is otherwise, however, in jurisdictions where the provisions contain no exception as to purchase money. 46 47 [218] 5. Purchase Price of Other Property. If the homestead consists of a number of parcels of land, and the purchase price of one is not paid. that part alone is subject to the debt. But, if the debtor has paid a part of the purchase money for the entire tract and a part of the purchase price remains unpaid, no homestead in any parcel of the premises can be claimed as against the vendor until full payment is made for the whole.48 [§ 219] 6. Money Borrowed to Pay Purchase Price. There is some diversity of holding as to whether a homestead is subject to a debt incurred by procuring money for its purchase. In some jurisdictions the courts construe the term "purchase money" strictly, applying it only to the original obligation owing to the vendor and created by the purchase. 49 In others it is held that, under the doctrine of subrogation the lender acquires the rights of the vendor when he advances money to the debtor specifically for the purchase of the premises; 50 but the money must have been borrowed for them debts owing for purchase | Iowa 589, 31 NW 946. money, if the real object of an appar- Tex.-Trammell v. Rosen, (Civ. A.) ent purchase-money transaction is 163 SW 145. the obtaining of a loan it will be invalid as against the exemption between parties having due notice, although not as against an assignee of the debt without notice. Western Mortg., etc., Co. v. Ganzer, 63 Fed. 647, 11 CCA 371; O'Shaughnessy v. Moore, 73 Tex. 108, 11 SW 153; Heidenheimer v. Stewart, 65 Tex. 321; Hurt v. Cooper, 63 Tex. 362. 38. Cassell v. Ross, 33 Ill. 245, 85 AmD 270. 39. New England Jewelry Co. v. Merriam, 2 Allen (Mass.) 390; Whitaker v. Elliott, 73 N. C. 186. 40. Porter v. Teate, 17 Fla. 813; 41. South Texas Lumber Co. v. 43. Brady v. Brady, 67 Ga. 368. 45. Ark.-Brown v. Ennis. 69 Ark. Ga.-Lane v. Collier. 46 Ga. 580; Ky-Greer v. Oldham, 11 SW 73, N. C.-Fox v. Brooks, 88 N. C. 234; Whittaker v. Elliott, 73 N. C. 186. Tex.--Brown v. Cawlfield, (Civ. A.) 30 SW 454. 46. Kugath v. Meyers, 62 Minn. 47. Cook v. Cook. 67 Ga. 381. 622. valid, with certain exceptions, among Iowa.-Campbell V. Maginnis, 70 Vt.-Lamb v. Mason, 50 Vt. 345. 49. Cal.-Campan V. Molle, 184 Cal. 415, 57 P 208; Perry v. Ross 104 Cal. 15. 37 P 757, 43 AmSR 66. Fla.-Wilhelm v. Locklar, 35 S 6. Ill.-Parrott v. Kumpf, 102 Ill. 425, Winslow v. Noble, 101 Ill. 194; Eyster v. Hatheway, 50 Ill. 521, 99 AmD 5 [dist Austin v. Underwood, 37 II 438, 87 AmD 254 (where money was paid directly by the third party w the vendor)]. Iowa. Johnson County Sav. Bark v. Carroll, 109 Iowa 564, 80 NW 638, 78 NW 247. La.-Lear v. Heffner, 28 La. Ant. 829. Nebr.-City Sav. Bank v. Thomp son, 91 Nebr. 628, 136 NW 992, 4! LRANS 89. N. C.-Brodie V. Batchelor, 75 N. C. 51. S. C. McNair v. Moore, 64 S. C 82, 41 SE 829; Amick v. Amick. 5 S. C. 70, 37 SE 39. Tenn.-Loftis v. Loftis, 94 Tenn 232, 28 SW 1091 [overr Guinn y Spurgin, 1 Lea 228]; Gray v. Baird 4 Lea 212. [a] Effect of giving mortgageA limitation recognized by some de cisions is that where one who bor rows money to pay the purchase price simultaneously gives the lender a mortgage on the land, the homestead is subject to the mortgage. Carr v. Caldwell, 10 Cal. 380, 70 AmD 740; Lassen v. Vance, 8 Cal 271, 68 AmD 322. V. 50. Ark. Hughes Sebastian County Bank, 129 Ark. 218. 195 SW 364; Acruman v. Barnes, 66 Ark. 442. 51 SW 319. 74 AmSR 104. Ga.-McConnell v. Gregory, 146 Ga. 475, 91 SE 550; McWilliams v. Bones. 84 Ga. 203, 10 SE 724; Bugg v. Rus sell. 75 Ga. 837; White v. Wheelan 71 Ga. 533; Middlebrooks v. Warren. 59 Ga. 230; Sale v. Wingfield, 55 Ga |