88

Claims-1. In General. A creditor whose debt is collectable from the homestead must proceed to its enforcement according to the Homestead Law87 and the general statutes supplementary thereto.8 A homestead is not subject to attachment on the ground that the owner is a nonresident,89 and a debt which cannot be enforced against the decedent's homestead by real process cannot be enforced through administration proceedings." An execution sale upon a judgment rendered for a nonexempt debt passes no title.91

90

[240] 2. Waiver, Forfeiture, and Estoppel. That the premises have been impressed with the homestead character, whether by decree of court, occupancy, or whatever may be necessary as the case may be, will not generally preclude a creditor from proceeding against them on a preexisting or other excepted indebtedness; 92 but it has been held that, if such creditor puts his right in issue and contests the allotment of the homestead in a legal proceeding, he is bound by the decree rendered, 93 but, where the homestead allotment was made under a law invalid in toto, a contesting creditor will not be bound.94 And, where by consent of all parties, homestead is allotted to a widow out of her husband's estate, the creditors are estopped from claiming a return of the property to the estate,95 although the court transcended its jurisdiction, and although the exemption allowed was illegal.96 No waiver results from failure to reach or participate in the proceeds of other property belonging to the debtor.97 The mere lapse of time short of the statutory period of limitation will not cause a forfeiture of the creditor's rights against the homestead. 98 But a creditor whose claim is a lien against the home was antedated, and was, as a matter | nothing there done of fact, executed subsequent to the time when the homestead right ac- 397, 399. crued. Ingraham v. Dyer, 125 Mo. 491, 28 SW 840.

[i] Bond to satisfy judgment.A forthcoming bond entered into in satisfaction of the judgment rendered upon a contract executed prior to the passage of a Homestead Law is not a new contract, but is mere process to enforce the original judgment, and no exemption will be allowed as against it. Smith Brown, 28 Miss. 810.

V.

87. Nichols v. Spremont, 111 Ill. 631. Ellerman v. Wurz, (Tex.) 14

88.

SW 333.

89.

Burns v. Lewis, 86 Ga. 591, 13 SE 123.

90. Watkins Land Mortg. Co. V. Mullen, 8 Kan. A. 705, 54 P 921; Codington County v. Lindner, 39 S. D. 96, 163 NW 573; Towner v. Rodegeb, 33 Wash. 159, 74 P 50, 99 AmSR 936. See also Public Lands [32 Cyc 1083].

91. Burton v. Look, 162 Mo. 502, 63 SW 112.

property waives his rights against it by agreeing to a reservation of the exemption by his debtor and participating in the proceeds from this or other of the debtor's property; 99 and a waiver may likewise occur where the creditor long neglects to pursue his remedy against the land and permits it to be set apart to the family of the debtor after the latter's death. So a creditor by accepting benefits under a contract made between the homesteader and other creditors is estopped to set up any rights against the consideration received by the homesteader for waiver.2 Under a statute giving to a landlord having a claim for rent a lien on the premises superior to the tenant's right of homestead therein, an office judgment by confession for rent due is a waiver of the lien, and renders the judgment inferior to the right of homestead.3 A mortgagee forfeits his rights under a sale of the homestead so long as he does not account for the surplus proceeds after discharging his mortgage debt.*

[§ 241] 3. Joinder of Claims and Causes. An excepted indebtedness cannot be enforced against the homestead if intermingled with other claims not entitled to priority, unless the various amounts can be distinguished and separately adjudicated."

[242] 4. Exhausting Other Property before Resorting to Homestead. In some jurisdictions, in the absence of special statutes so providing, a person who has a lien on land superior to a debtor's right of homestead need not resort to other property of the debtor before the homestead may be sold." On the other hand in most jurisdictions, usually by reason of statute so providing,' all nonexempt property of the debtor, both real and personal, must be will be in their C. 126. way." Newton v. Summey, 59 Ga.

[a] In Texas (1) it was held in
an early case that the decree of a pro-
bate court, empowered by statute to
set apart the decedent's homestead
for the use of his widow or family,
is a valid and binding adjudication
as against creditors having liens
within an excepted class. Harrison v.
Oberthier, 40 Tex. 385. (2) But
the effect of this decision was nulli-

fied by Rev. St. art 2000 (Rev. St.
[1895] art 2053), which declares
that "No property upon which liens
have been given by the husband and
wife, acknowledged in a manner le-
gally binding upon the wife, to se-
cure credits, or upon which a ven-
dor's lien exists, shall be set aside
to the widow or children as exempt
property, or appropriated to make
up the allowances made in lieu of
exempted property, until the debts
secured by such liens are first dis-
charged." Fossett v. McMahan, 86
Tex. 652, 653, 26 SW 979.

93. Newton V. Summey, 59 Ga. 397; Broach v. Barfield, 57 Ga. 601; 92. Peevey V. Cabaniss, 70 Ala. Van Dyke v. Kilgo, 54 Ga. 551; Wof253; Smith v. Cockrell, 66 Ala. 64; ford v. Gaines, 53 Ga. 485; Harris v. Rix v. McHenry, 7 Cal. 89; Smith Colquit, 44 Ga. 663; Bates v. Scobee, V. Smith, 101 Ga. 296, 28 SE 665; 3 KyL 758, 11 Ky. Op. 608; Barney Thaxton V. Roberts, 66 Ga. 704; V. Leeds, 51 N. H. 253; Probate Newton V. Summey, 59 Ga. 397; Judge V. Simonds, 46 N. H. 363: Broach V. Barfield, 57 Ga. 601; Trimmier v. Winsmith, 41 S. C. 109, Clarke v. Trawick, 56 Ga. 359; Van 19 SE 283; Chalmers v. Turnipseed, Dyke v. Kilgo, 54 Ga. 551; Wofford 21 S. C. 126; McKeown v. Carroll, 5 V. Gaines, 53 Ga. 485; Grant v. Cosby, S. C. 75. 51 Ga. 460; Chambliss v. Jordan, 50

94. Gheen v. Summey, 80 N. C. 187. Ga. 81; Patterson V. Wallace, 47 [a] Thus as to a debt antedating Ga. 452; Baker v. Bower, 44 Ga. 14; the homestead law a contest by such Harris v. Colquit, 44 Ga. 663; Cham- creditor of a homestead allotment bliss v. Phelps, 39 Ga. 386; Bull v. Rowe, 13 S. C. 355: Ryan v. Pettigrew, 7 S. C. 146; Choice v. Charles, 7 S. C. 171.

made by the appraisers authorized by the act was not binding upon him, the law being void as to that class of debts, and the appraisers, there"In the assignment of a homestead fore, having no jurisdiction as to there is no magic by which superior them. Gheen v. Summey, 81 N. C. liens are thrown off, or deficient ti- 187. tles are made perfect. Those whose Chalmers v. Turnipseed, 21 S. claims outrank the homestead, may stay out of the ordinary's court, and Chalmers v. Turnipseed, 21 S.

95. C. 126. 96.

97. Montgomery v. Robinson, 76 Cal. 229, 18 P 261; Denegre v. Haun, 14 Iowa 240, 81 AmD 480. Exhausting other property see infra § 242.

98.

99.

Bull v. Rowe, 13 S. C. 355.
SW 8, 12 KyL 240; Bates v. Scobee,
Hasty v. Berry, 8 KyL 55, 1
3 KyL 758.

1. Lawler v. Yeatman, 37 Tex. 669.
2. Bates v. Scobee, 3 KyL 758, 11
Ky. Op. 608.
În re Lumpkin, 15 F. Cas. No.
8,606, 2 Hughes 175.
4. Hunter

3.

433.

5. 872.

v. Wooldert, 55 Tex. Fla.-Lewton v. Hower, 18 Fla.

Ill. Silsbe v. Lucas, 36 Ill. 462.
Ky-Flowers v. Miller, 16 SW 705,
13 KyL 250.

N. C.-Arnold v. Estis, 92 N. C. 162.
S. C.-Burnside v. Watkins, 30 S.
C. 459, 9 SE 518.
Tenn.-Bachman V. Crawford, ४
Humphr. 213, 39 AmD 163.
6. Bramlett v. Kyle, 168 Ala. 325,
52 S 926; Stevens v. Leonard, 122
Mich. 125, 80 NW 1002.

[a] Reason assigned is that the rule in equity for the marshaling of assets has no application as between debtor and creditor. Plain v. Roth,

107 Ill. 588.

[b] Right of election.-Where a firm mortgaged firm property, and also the homestead of one of the individual partners, to secure a firm debt, both parties being jointly and severally liable for the debt, the partner owning the homestead as to that property did not occupy the position of a surety for the firm, and hence he could not compel the creditor to proceed against the firm property in exoneration of the homestead, he being entitled at his election to foreclose against the homestead without reference to the firm property. Bramlett v. Kyle, 168 Ala. 325, 52 S 926.

7. See statutory provisions.

exhausted before the homestead can be sold; and it has been held that a debtor may insist that recourse shall last be had to the homestead property, and that the lienholder whose security affects the homestead with other land shall resort, first, to the other lands, even though by so doing the security of other creditors on the same land may be impaired or destroyed.10

9

Extent and limits of rule. Where property mortgaged is ample to pay the mortgage debt and still leave the homestead intact, the mortgagor in foreclosure proceedings cannot require the mortgagee to exhaust his remedies on a collateral note in order to save the homestead,11 even though the mortgagor may have some defense in a suit brought by the

8. Cal.-Blood v. Munn, 155 Cal. 228, 100 P 694; McLaughlin v. Hart, 46 Cal. 638; Bartholomew v. Hook, 23 Cal. 277; Good v. Brown, 40 Cal. A. 753, 181 P 802. Ga.Davis v. Jones, 95 Ga. 788, 23 SE 79; Brantley v. Stephens, 77 Ga. 467.

payee which would not be available against a bona fide holder.12 So, if several tracts are mortgaged, and none of them was then the homestead, but one is afterward selected as such, the mortgagee need not exhaust those which are nonhomestead lands before resorting to the home tract.13 A purchaser of a homestead which is subject to an encumbrance, such as a mortgage, is not entitled to have the property of his grantor exhausted before the mortgage can be enforced against the property so purchased."

Necessity of ownership of nonexempt property. If a debtor seeks to restrain the sale of his homestead because the creditor has not previously exhausted all of the nonexempt property of the debtor, under the rule requiring this to be done,15 he must

[a] Reason assigned is the su-
perior solicitude of a court of equity
for the preservation of a homestead
over other property not charged with
that character. Good v. Brown, 40
Cal. A. 753, 181 P 802.
[b]

part an indebtedness created before
the acquisition of the homestead, up-
on a part payment of the whole of
the consideration without direction
as to the application of the payment
it was held that the payment should
be applied so as to cancel the debt
created before the acquisition of the
homestead, and which was a lien
Stewart First Nt.
the homestead.
Bank v. Holinsworth, 78 Iowa 375,
43 NW 536, 6 LRA 92.

Rule applied.-Where a debt against the homestead was secured Ill-Gaither v. Wilson, 164 Ill. 544, by a lien thereon, and also by an 46 NE 58. Aliter, before the statute, assignment by the debtor of a judgPlain v. Roth, 107 Ill. 588. ment in his favor against a third Bur-person, the encumbrancer not only had the right to apply the judgment [f] What constitutes exhausting of other property.—(1) Where, up to the payment of his debt, but was the foreclosure of a mortgage cover. required by law to do so at the debtor's request before he could have ing the homestead and other land, sale of the homestead by virtue of the sheriff offers the land not inthe vendor's lien and his right to the cluded in the homestead without rejudgment was superior to a right of ceiving bidders, this is a sufficient set-off in favor of the judgment deb-exhaustion of other property before tors accruing subsequent to the as- resorting to the homestead as resignment. Brumbaugh t V. Randle, statute. (Tex. quired by Shoemaker, 51 Iowa 148. 50 NW 493; Civ. A.) 191 SW 566. v. Redwood, 50 Iowa 289; Eggers Burmeister v. Dewey, 27 Iowa 468. (2) Where a mortgage on property including a debtor's homestead was held fraudulent as to other creditors as to the nonhomestead property and the mortgagee by reason of such holding obtained no benefit there from, his remedy against such prop erty was "exhausted." Huttig Mfg. Co. v. Burhans, 148 Iowa 657, 127 NW 991.

Iowa.-Huttig Mfg. Co. V. hans, 148 Iowa 657, 127 NW 991: Kilmer v. Gallaher, 107 Iowa 676, 78 NW 685; Blake v. McCosh, 91 Iowa 544, 60 NW 127; Des Moines Nat. Bank v. Harding, 86 Iowa 153, 53 NW 99; Equitable L. Ins. Co. v. Gleason, 62 Iowa 217, 17 NW 524; Eggers v. Redwood, 50 Iowa 289; Foley v. Cooper, 43 Iowa 376; Lambert V. Powers, 36 Iowa 18; Barker v. Rollins, 30 Iowa 412; Twogood v. Stephens, 19 Iowa 405; Hale v. Heaslip, 16 Iowa 451; Lay v. Gibbons, 14 Iowa 377, 81 AmD 487; Denegre v. Haun, 14 Iowa 240, 81 AmD 480. Kan.-Frick Co. v. Ketels, 42 Kan. 527, 22 P 580, 16 AmSR 507.

Ky.-Flowers v. Miller, 16 SW 705, 13 KyL 250; Buckner v Samuels, 6 KyL 660, 663, 13 Ky. Op. 363; McGrath v. Berry, 10 Ky. Op. 550.

La.-Napoleonville Bank v. Delaune, 141 La. 911, 75 S 840.

Minn. Horton v. Kelly, 40 Minn. 193, 41 NW 1031; McArthur v. Martin,

23 Minn. 74.

Miss-Koen v. Brill, 75 Miss. 87,

23 S 481, 63 AmSR 633.
Nebr. Mitchellson V. Smith, 28
Nebr. 683, 44 NW 871, 26 AmSR 357;
McCreery v. Schaffer, 26 Nebr. 173,
41 NW 996.

N. C.-Harris v. Allen, 104 N. C. 86, 10 SE 127; Morrison v. Watson, 101 N. C. 332, 7 SE 795, 1 LRA 833 [app dism 154 U. S. 111, 14 SCt 995, 38. L. ed. 927]; Albright v. Albright, 88 N. C. 238; Wilson v. Patton, 87 N. C.

318.

Tenn.-White v. Fulghum, 87 Tenn. 281, 10 SW 501; Parr v. Fumbanks, 11 Lea 391.

79 Tex.

Pease

[c] Mortgages.-The rule has found most frequent application__in the case of mortgages. (1) The homestead claimant may have his homestead protected and preserved as far as possible when it is covered by a mortgage which also includes other property by requiring the other property to be sold and applied upon the debt before the sale of the homestead. Blood v. Munn, 155 Cal. 228, 100 P 694; Good v. Brown, 40 Cal. A. 753, 181 P 802; Huttig Mfg. Co. V. Burhans, 148 Iowa 657, 127 NW 991; Bankers' L. Assoc. v. Engelson, 148 Iowa 594, 126 NW 951: Des Moines Nat. Bank v. Harding, 86 Iowa 153, 53 NW 99; Equitable L. Ins. Co. v. Gleason, 62 Iowa 277, 17 NW 524; McCreery v. Schaffer, 26 Nebr. 173, 41 NW 996; Elsner v. Dorn, 136 Wis. 73.

[g] Effect of failure to declare homestead. In California it was held that a wife could enjoin an execution and compel the exhaustion of other property of the estate before touch. ing the homestead, even though the homestead had not been declared and recorded as such. Bartholomew r Hook, 23 Cal. 277. But see Kemerer v. Bournes, 53 Iowa 172. 4 NW 921 (a wife has no right which she could assert as against the mortgagee to compel the exhaustion of other prop erty, where the occupancy of the property claimed as a homestead did not begin until after the commence. ment of the action to foreclose the mortgage).

[h] Order of sale of both exempt and nonexempt property.-Where a debt is secured by a pledge of per sonalty and a mortgage of the home stead, upon foreclosure of the lat the court may, in the same suit, order the sale first of the property pledged and then a sale of the homestead Blake v. McCosh, 91 Iowa 544, 60 NW 127.

116 NW 768. (2) Especially is this so where there is an express agreement by written instrument that this shall be done. Sproul v. Atchison Nat. Bank. 22 Kan. 336. (3) "It can make no difference in the application of the principle that the security is included in two mortgages instead of one, or that one covers personal property instead of real estate." Good v. Tex.-Pridgen V. Warn, Brown. 40 Cal. A. 753, 757, 181 P 802. 588, 15 SW 559; Mackey v. Wallace, (4) Nor is the question affected in 26 Tex. 526; Chandler v. Young. (Civ. the least by the fact that the chattel A.) 216 SW 484: Pease v. Randle, mortgage covered community prop(Civ. A.) 191 SW 566; Pugh v. Whit-erty, as did the homestead. If the sitt, (Civ. A.) 161 SW 953 [cit personal property had been the sepCycl: Carney v. McCelvey, (Civ. A.) arate estate of the husband, the wife. 136 SW 1172; King v. C. M. Hapgood regardless of the consideration of the Shoe Co., 21 Tex. Civ. A. 217, 51 SW homestead, could, probably, compel a 532; Interstate Bldg., etc.. Assoc. v. resort to such personal property beTabor, 21 Tex. Civ. A. 112, 51 SW 300; fore a foreclosure of the mortgage on Good the community property. Henkel v. Bohnke, 7 Tex. Civ. A. 16, 10. Nolan v. Nolan, 155 Cal. 475 26 SW 645. Brown, supra. (5) But a mortgaWis. Elsner v. Dorn, 136 Wis. 73, gee of the homestead and other realty 101 P 520, 132 AmSR 99, 17 Annas 1056. To same effect Napoleonvil 116 NW 768; Rozek v. Redzinski, 87 may release the latter and retain his Bank v. Delaune, 141 La. 911, 75 8 Wis. 525, 58 NW 262; Dunn v. Buck-lien upon the former. Chapman v. 840. ley, 56 Wis. 190, 14 NW 67. The Lester, 12 Kan. 592. Code of 1870 providing that, where a part of the mortgaged property embraced the homestead which could be sold without injury to the owner, the homestead should not be sold until 36 Iowa 18.

V.

9. Nolan v. Nolan, 155 Cal. 47 101 P 520, 132 AmSR 99, 17 AnnCas 1056.

[d] Partnership property, being 478. 130 NW 527. 11. Bryden v. Cainer oss, 145 Wis liable to be taken in execution, must 12. be exhausted before resorting to Bryden v. Cairner oss, 145 Wis. other property. Lambert v. Powers, 478, 130 NW 527. 13. Gaither v. Wilson 164 III. 544, other lands covered by the mortgage [e] Application of payments 46 NE 58 [aff 65 Ill. A. 362]. had been exhausted, changed the as to preserve homestead.-Where 14. Kemerer v. Bournes, 53 Iowa former rule adopted in this state. one after having acquired a home- 172, 4 NW 921; Barker Hanson v. Edgar, 34 Wis. 653; Lloyd stead executed a note for a gross Iowa 412. v. Frank, 30 Wis. 306. of sum money, which included in 15. See supra

7. Rollins, 30 ction. this se

show actual ownership of nonexempt property.16 Other exempt property of the debtor, within the meaning of the rule, comprises such property as still belongs to the debtor at the time of enforcing the claim, not that which he has conveyed away and he cannot require that the property sold should be exhausted before resorting to the homestead.18

19

Purchase-money mortgages. An exception to the general rule is recognized in case of purchase-money mortgages in which case an exhaustion of other property before resorting to the homestead is not necessary.1 When land which one has received in exchange for another tract is taken from him to satisfy a lien for purchase money which existed when he received the land, he may recover the land which he gave in exchange free from any claim of the party in possession of the homestead. 20 Failure of a referee to claim that a homestead was subject to a purchase-money mortgage along with other land when the other land is first sold furnishes no ground of complaint to the mortgagor where the referee made no order of sale.21

18. Dilger v. Palmer, 60 Iowa 117, 10 NW 763, 14 NW 134; Hall v. Morgan, 79 Mo. 47.

[a] Conveyance of one of several parcels of mortgaged land.-Where husband and wife, owning two parcels of land encumbered by mortgage, convey and warrant one, which is thereafter taken on foreclosure, the purchaser may compel contribution from the second, although it is a homestead. Hall v. Morgan, 79 Mo. 47. McDaniel v. Westberry, 74 Ga. 380: Gaither v. Wilson, 164 Ill. 544, 46 NE 58.

19.

other property before resorting to the homestead.22 Waiver of right. The debtor's right to have the other property exhausted before resorting to the mortgage may be waived.23

Sale in disregard of rights. If homestead property is sold in disregard of the demands of the homestead claimant that property other than the homestead be first sold, the sale is voidable only at the election of claimant.24

26

[243] 5. Jurisdiction.25 In the absence of a provision in the homestead law to the contrary, claims against a homesteader may be enforced in that court of law,2 27 or of equity,28 as the case may be, which would have jurisdiction of such claims, irrespective of homestead considerations. 29 Where the homestead is subject to sale on final process, equity will not entertain an action to set aside a homestead allotment and to enforce a judgment against it, since the legal remedy is adequate,31 nor will equity interfere to set aside a decree of foreclosure against a homestead, where no objection to the enforcement of the mortgage is made in the foreclosure suit and no homestead rights appear therein.32

30

Presentation of claims against decedent's estate is made a condition precedent, under some statutes, in order to fulfill the requirement of exhausting 16. Hale v. Heaslip, 16 Iowa 451; | Bollinger v. Manning, 79 Cal. 7, 21 P Stevens v. Myers, 11 Iowa 183; Hall 375; Camp v. Grider, 62 Cal. 20. (4) v. Morgan, 79 Mo. 47. Nor is the necessity of such presen17. Dilger v. Palmer, 60 Iowa 117, tation dispensed with under the gen10 NW 763, 14 NW 134. eral rule that where a lien is on a specific piece of land, presentation to the administrator is not necessary when no claim is made on the general assets. Hinkel v. Crowson, 206 P 58 [dist Fitzell v. Leaky, 72 Cal. 477, 14 P 198; Porter v. Brooks. 35 Cal. 199]. (5) Under Civ. Code § 3046, declaring that "one who sells real estate has a vendor's lien thereon" and § 1241, providing that the homestead is subject to forced sale for vendor's liens, the right of the vendor to look to the land for the payment of the purchase price is a "lien," and, in order to subject a homestead to the payment of the lien, the vendor must first present his claim to the administrator of the deceased purchaser, pursuant to Code Civ. Proc. § 1475. Hinkel v. Crowson, supra [dist Fallon v. Butler, 21 Cal. 24, 81 AmD 140]. (6) In view of Civ. Code § 1241, providing that a homestead is subject to vendor's lien existing at the time the declaration of homestead is filed, a proceeding under Code Civ. Proc. § 1723, setting apart the homestead to the surviving husband of a deceased purchaser, did not have the effect of separating the homestead from the other property of the deceased wife, so as to relieve the vendor from the necessity of presenting his claim for the unpaid purchase price to the administrator of the wife, as required by Code Civ. Proc. § 1475, before being able to subject the homestead to the payment of the lien. Hinkel v. Crowson, supra.

[a] In Texas the owner of a part of a nonexempt debt for purchase money, whose claim is subordinate to those of other part owners, may enforce it against the homestead without first exhausting the portion of purchased land which is not a homestead. Christoff v. Chesley, 11 Tex. Civ. A. 122. 32 SW 355.

20. Williams v. Samuels, 90 Ky. 59, 13 SW 438, 11 KyL 863 (the rule comparing the holder of liens on property to resort first to the property not occupied as a homestead cannot be applied).

21.

Stein v. Chambless. 24 Iowa 595 ("it will be time enough to consider and determine which of the several tracts should be first sold, when the question properly arises"). 22. See statutory provisions. [a]

The purpose of such statute has been said to be to "preserve the homestead if possible.' Camp V. Grider, 62 Cal. 20.

23. Weber v. McCleverty, 149 Cal. 316, 86 P 706; Foley v. Cooper, 43 Iowa 376.

Weber v.

violation of such demand.
McCleverty, 149 Cal. 316, 86 P 706.
[b] Notice of homestead claim.--
Where a deed of trust was executed
on property on which a homestead
was subsequently declared and on
other property, the possession of de-
fendant as executrix and as widow
of the trustor was consistent with
the right of the trustees to sell the
property, for nonpayment of the debt,
and was not of itself notice to a
purchaser at the foreclosure sale of
any homestead claim. Weber V.
McCleverty, 149 Cal. 316, 86 P 706.
24. Weber v. McCleverty, 149 Cal.
316, 86 P 706.

25. Jurisdiction:

In general see Courts 15 C. J. 693;
Federal Courts 25 C. J. p 679.
In proceedings to protect and enforce
homestead claims see infra §§ 444,
529.

26. See statutory provisions. See also infra §§ 428, 444.

[a] In Louisiana district courts have jurisdiction to determine whether any particular debt is, or is not, one for which a homestead may be seized and sold. Jefferson V. Gamm, 90 S 682.

[b] In Chio the court having jurisdiction over "further proceedings" against a homestead after allotment is the tribunal to decide whether such homestead has since become subject thereto. Wetz v. Beard, 12 Oh. St. 431.

27. See Courts §§ 407-428. 28. See Equity 88 7-140. Creditor's suit see Creditors' Suits § 7; Equity § 116; Fraudulent Conveyances § 562 et seq.

29. Telschow v. House, 10 Tex. Civ. A. 671, 32 SW 153.

[a] A creditor holding a nonexempt claim may sue on it in a court of ordinary jurisdiction. Telschow v. House, 10 Tex. Civ. A. 671, 32 SW 153.

[b] In California (1) Code Civ. Proc. § 1475 provides that if there are subsisting liens or encumbrances on the homestead, claims secured there- [a] Thus (1) if having notice by must be presented and allowed of the sale of a homestead he does as other claims against the estate. not object thereto, he cannot after- [b] The probate court has no jurHinkel v. Crowson, 206 P 58. (2) ward claim that other property isdiction over the homestead. TelSuch claims will be valid only for a should have been exhausted before schow v. House, 10 Tex. Civ. A. 671, deficiency. Hinkel V. Crowson, su- payment of the homestead. Foley v. 32 SW 153. pra. (3) The necessity of making Cooper, 43 Iowa 376. (2) So, where 30. Greenway v. Goss, 55 Ga. 588; this presentation is not obviated by a deed of trust of a homestead and Rawson V. Thornton, 43 Ga. 537; the fact that no administrator has other property authorized the trustees Compton v. Patterson, 28 S. C. 115, been appointed. Hinkel v. Crowson, to sell the property as a whole or in 5 SE 270. But see Douglass v. Gregg, supra [dist Bull v. Coe, 77 Cal. 54, 18 parcels, and the property was all sold 7 Baxt. (Tenn.) 384 (a creditor whose P 808. 11 AmSR 235] (construing in bulk to a purchaser who was not judgment was rendered after the Code Civ. Proc. §§ 1294, 1365, 1377); shown to have had notice of a de- homestead law, of 1868 went into Woodland Bank v. Stephens, 144 Cal. mand by the widow of the trustor operation may, in a chancery proceed659, 79 P 379; Wise v. Williams, 88 that the property other than the ing in aid of execution, show that the Cal 30, 25 P 1064; Perkins v. Onyett, homestead should be first sold, and liability existed prior to that time, 86 Cal. 348, 24 P 1024; Sanders v. Rus- in an action by the purchaser to re- and thus defeat a homestead claim). sell, 86 Cal. 119. 24 P 852, 21 AmSR cover possession, the widow filed no 31. See cases supra note 30. 26; Rosenberg v. Ford, 85 Cal. 610, cross complaint and did not ask that Adequate remedy at law see Equity 24 P 779; Hearn v. Kennedy, 85 Cal. the sale be vacated, she was not §§ 14-47. 55, 24 P 606; Mechanics' Bldg., etc.. entitled to such relief, although the Assoc. v. King, 83 Cal. 442, 23 P 376; sale was voidable at her election for

32. Oleson v. Bullard, 40 Iowa 9; Haynes v. Meek, 14 Iowa 320.

Helfenstein v. Cave, 3 Iowa

Porter v. Teate, 17 Fla. 813. [a] Reason assigned for this is that there is no right of homestead against such a lien. Porter v. Teate, 17 Fla. 813.

In general see Pleading [31 Cyc 1]. In proceedings to:

Avoid homestead infra 336. Enforce rights under homestead see infra § 331. Protect and enforce homestead claims see infra §§ 452-457, 533. 42. Story Mercantile Co. V. McClellan, 145 Ala. 629, 40 S 123; Wilson v. Rogers, 68 Ga. 549; Willingham v. Maynard, 59 Ga. 330; Murphey v. Smith, 16 Ga. A. 472, 85 SE 791; Nichols v. Sennitt, 78 Ky. 630; McNeil v. Moore, 7 Tex. Civ. A. 586, 27 SW 163.

[a] Waiver.—(1) If the creditor relies on a waiver of the homestead exemption it will be sufficient to allege generally that a waiver has been made and the extent of the waiver. It is not necessary to allege that the party making it is married or unmarried. Story Mercantile Co. V. McClellan, 145 Ala. 629, 40 S 123. (2) A complaint which alleges that defendant executed an instrument waiving all right to any homestead exemptions is not defective for failing to particularize the land. Story Mercantile Co. v. McClellan, supra.

43. Nichols v. Sennitt, 78 Ky. 630; Morehead v. Morehead, 25 SW 750, 16 KyL 34; Krafft v. Schmidt, 1 KyL 419; Pinchain v. Collard, 13 Tex. 333.

44. Cooper v. Arnett, 95 Ky. 603, 26 SW 811, 16 KyL 145; McNeil v. Moore, 7 Tex. Civ. A. 536, 27 SW 163. 45. Ford v. Price, 42 SW 341, 19 KyL 830. 46. Crawford v. Richeson, 101 Ill.

[247] 9. Directing Verdict. In proceedings to enforce claims against the homestead a verdict may be directed by the court in cases which fall within the rule permitting this to be done.56

60

59

61

[§ 248] 10. Judgment and Enforcement Thereof.5 57 A homestead liable to sale for claims against which no exemption exists may in some jurisdictions be sold unconditionally on general execution;58 and it has been held that such a sale is not void, although there is no evidence of record that the execution was based on a judgment for an exempted debt, the sheriff taking the responsibility of acting on his own conviction that such was the case and his conclusion being right." In other states the judgment or the execution should indicate that the debt is one against which no exemption exists, although in some jurisdictions 62 this purpose may be accomplished by a certificate of the court issuing the process or by an affidavit placed in the sheriff's hands before levy. If the judgment includes both exempt and nonexempt claims, it is error to allow the whole judgment to stand as found against the homestead. 65 If land including the homestead is sought to be sold on execution the writ must direct that other property also subject to sale shall be first

63

64

53. Hurd v. Hixon, 27 Kan. 722. 54. Gilson v. Parkhurst, 53 Vt. 384. Parol evidence generally see Evidence §§ 1380-1729.

55. See evidence §§ 1730-1806. [a] To show indebtedness antedating homestead right.-Kolb V. Mall, 187 Iowa 193, 174 NW 226.

[b] To show indebtedness within the exemption statute.-Carr v. Harrington, 107 Ark, 535, 155 SW 1166.

land occupied as a homestead, and
conveyed by a husband to his wife,
to a judgment secured against the
husband, the fact that the judgment
did not recite that it was for the pur-
chase price of improvements on prop-573.
erty was immaterial, where the de-
cree in present case contained such a
finding. Betts v. Richardson, 112 S.
C. 279, 99 SE 815.

67.

68.

69. 70.

See supra § 189.

Gamble v. Watterson, 83 N. C.

Ga.

Gamble v. Watterson, supra. Johnson v. Poullain, 61 McGhee v. Way, 46 Ga. 282. 72. Smith v. De Kock, 81 Iowa 535,

204.
71.

61. Burnside v. Watkins, 32 S. C.
247, 10 SE 960; Burnside v. Watkins, 46 NW 1056.

30 S. C. 459, 9 SE 518.

62. See statutory provisions.
63. Holladay v. Hodge, 84 S. C. 109,
65 SE 1019.

[c] To show money borrowed to buy homestead.-Farmers' State Bank v. Pickering, (Kan.) 205 P 1110. 56. See Trial [38 Cyc 1563]. [a] Thus, where plaintiff relied on title alleged to have been acquired [a] In South Carolina (1) ununder the homestead laws, and there der a statute providing that the yearwas no proof that the land in contro- ly products of the homestead shall versy was all the land owned by the be subject to attachment for claims deceased husband, or that it had contracted in the production thereof been duly set apart to the widow, the but that the court issuing process court properly directed a verdict for shall certify that it was issued for defendant. Wylie v. Flowers, 191 that purpose, an order appointing a Ala. 36, 67 S 980. receiver of defendant's crops at the 57. Judgment generally see Judg-suit of a claimant should contain a ments [23 Cyc 623]. Execution generally see Executions 23 C. J. p 281.

In proceedings to enforce or protect homestead rights see infra § 467. 58. Bills v. Mason, 42 Iowa 329; Greeno v. Barnard, 18 Kan. 518; Durham v. Bostick, 72 N. C. 353; Hamra V. Fitzpatrick, 55 Okl. 780, 154 P 665. [a] Lien for purchase money.A homestead may be sold under execution for the purchase money. Greeno v. Barnard, 18 Kan. 518; Durham v. Bostick, 72 N. C. 353. 59. Durham v. Bostick, 72 N. C. 353.

73. Dinsmoor v. Rowse, 200 I11. 555, 65 NE 1079. See also infra § 510. 74. Farrar v. Harper, 133 N. C. 71, N. C. 248. 45 SE 510; McDonald v. Dickson, 85 See also supra § 227. 75. 103, 97 P 70, 18 LRANS 490. Cal.-White v. Horton, 154 Cal. Kan. Mitchell v. Milhoan, 11 Kan.

617.

554.

La. In re Penn, 130 La. 740, 58 S Nebr. Thompson v. Todd, 184 NW Wash.-Pioneer Nat. Bank v. Gaskill, 87 Wash. 245, 151 P 492.

96.

76. Mitchell v. Milhoan, 11 Kan. 617; In re Penn, 130 La. 740, 58 S 554; Thompson v. Todd, (Nebr.) 184 NW 96; Hooper v. Castetter, 45 Nebr. 67, 63 NW 135; Pioneer Nat. Bank v Gaskill, 87 Wash. 245, 151 P 492.

[a] Effect of stay order.-Where two of six lots sold on mortgage foreclosure were occupied by defendants as a family homestead, and the property was sold separately under foreclosure proceedings, in which a judgment creditor was found to have a second lien, and defendants took a nine months' stay of the order of sale under the statute, this did not estop defendants from claiming, after confirmation, the surplus proceeds arising from sale of the homestead property. Thompson v. Todd, (Nebr.) 184 NW 96.