the debtor, a subsequent occupancy will not enable him to set up the homestead exemption as against the attaching creditors.78 If the writ has been wrongfully levied upon the property constituting a homestead, damages are recoverable for the seizure. 79 Additions to, or increase in, value of homestead. The privilege 80 extends to an increase in the value of premises over the statutory amount, by the erection of buildings,81 in which case the creditor may seek relief in equity.s 84 82 Chattels that have become a part of the homesteads are not subject to seizure under an attachment or execution,' except, it seems, where it is sought to foreclose the specific lien in favor of the seller whose lien is enforceable as against the homestead.85 [415] 3. Execution and Judicial Sales-a. In General. In analogy to, and in accord with, the rule already stated, 86 it seems that a valid sale of a homestead cannot be had under an execution to which it is not subject87 nor under a foreclosure 88 or judicial decree seeking to enforce a liability, lien, or encumbrance from which the homestead is wholly exempt by law.s Even where homestead property may be sold, 20 or where property more than sufficient to satisfy homestead exemptions is sought to be sold, 91 a sale of the premises to which homestead rights have attached either under execu 89 90 tion issuing out of a court of law or by virtue of a decree or order of court of equity in disregard of the homestead exemption or without setting apart the homestead is void; 92 and such a sale cannot be validated by a subsequent abandonment of the homestead by the debtor, although some courts have characterized such a sale as irregular, or merely voidable.95 96 93 94 All of indebtedness not exempt. The general rule has been applied where the homestead is sought to be sold under a judgment97 or to satisfy an indebtedness, 98 part of which is, and part of which is not, protected by the homestead exemption. In Massachusetts it has been held that a statute exempting a homestead from levy on execution does not prevent a sale by the guardian of the owner on his becoming a spendthrift, on license of the court of probate, of the homestead property for payment of his debts and for his support and maintenance.99 [§ 416] b. Foreclosure Proceedings.1 The rules above stated' would seem applicable to foreclosure sales of homestead premises depending largely on the validity of the mortgage and on the power of the homesteader to encumber it.3 H. 267, 93 AmD 425; Fogg v. Fogg, Extent and limits of rule. In some jurisdictions the validity of foreclosure sales under a valid mortgage seems to be assumed. It has been held that 425; Wiggins v. Chance, 54 Ill. 175; Eldred v. Moehring, 83 Ill. A. 264. (2) But courts of equity may adjust the rights of the parties by setting off a homestead or awarding the amount of the homestead exemption to the judgment debtor where the premises sold exceed in value the statutory exemption for homestead purposes. Mayne v. Drury, 295 Ill. 533, 129 NE 77; Krupp v. Brand, 200 Ill. 403, 65 NE 780; Mix v. King, 55 Ill. 434. by taking possession and claiming N. H.-Kensell v. Cobleigh, 62 N. See cases infra note 92. 91. N. C.-Ferguson v. Wright, 113 N. C. 537, 18 SE 691; Bailey v. Barron, 112 N. C. 54, 16 SE 910; McCracken v. Adler, 98 N. C. 400, 4 SE 138, 2 AmSR 340; Mebane v. Layton, 89 N. C. 396; Littlejohn_v. Egerton, 77 N. C. 379; Arnold v. Estis, 72 N. C. 162; Andrews v. Pritchett, 72 N. C. 135. And see Morrison v. Watson, 101 N. C. 332, 7 SE 795, 1 LRA 833 (holding a sale void if made without allotment, even though the claim was a privileged debt); Arnold v. Estis, 92 N. C. 162. But compare Miller v. Miller, 89 N. C. 402 (if the land is evidently insufficient to pay the privileged debt in question no allotment is necessary). N. D.-Dieter v. Fraine, 20 N. D. 484, 128 NW 684. Oh. Sears v. Hanks, 14 Oh. St. 298. 84 AmD 378. Tex.-Thompson v. Jones, 77 Tex. Utah-Kimball V. Salisbury, 19 Wash.-Byam v. Albright, 94 Wash. Amount and extent see supra §§ Wash. 690, 109 P 209, 137 AmSR 94-96. Excess see supra § 320. 92. U. S.-Kerr V. South Park Comrs., 14 F. Cas. No. 7,733, 8 Biss. 276. Ala.-Knight v. Davis, 135 Ala. 139, 33 S 36; Straughn v. Richards, 121 Ala. 611, 25 S 700; Milligan v. Cox, 108 Ala. 497, 18 S 734; Allen v. Towns, 90 Ala. 479. 8 S 101. Iowa.-White v. Rowley, 46 Iowa 680. 1087; Whitworth v. McKee, 32 Wash. it See also infra §§ 427, 441, 442. 93. Wiggins v. Chance, 54 Ill. 175; Asher v. Sekofsky, 10 Wash. 379, 38 P 1133. 94. Fairbanks V. Devereaux, 48 Vt. 550. 95. Newman v. Franklin, 69 Iowa 244, 28 NW 579; Martin v. Knapp, 57 Iowa 336, 10 NW 721; Delk v. Yelton, (Tenn.) 53 SW 729; Huff v. Miller, (Tenn. Ch. A.) 58 SW 876. 96. See supra text and note 92. 97. Byam v. Albright, 94 Wash. 108, 162 P 10. [a] Although a small part of the judgment is for a claim enforceable against a homestead, the sale thereof under execution is absolutely void. Byam v. Albright, 94 Wash. 108, 162 P 10. 98. Girardeau V. Perkins, (Tex. Civ. A.) 126 SW 633. [a] Where part only of the indebtedness is a valid lien, a sale of the homestead under a deed of trust creating such lien is void. Girardeau v. Perkins, (Tex. Civ. A.) 126 SW 633. 99. Wilbur v. Hickey, 8 Gray (Mass.) 432. 1. Cross references: Enforcement of rights of mortgagee of homestead see supra § 328. Estoppel to claim homestead by mortgage see supra § 391. See supra § 415. 2. 3. See cases infra this section. Transfer and encumbrance gupra §§ 253-340. see 4. Collier v. Adkins, 47 Ga. 503; Young v. Graff, 28 111. 20; Newsom v. Newsom, 155 Ky. 547, 159 SW 1175; Casebolt v. Donaldson, 67 Mo. 308) Pearman v. McKee, 79 Mo. A. 210; Woerther v. Miller, 13 Mo. A. 567. See Leblanc v. St. Germain, 25 La. Ann. 289 recognizing rule). [b] In Illinois (1) the rule applies with full force and effect so far as the purchaser seeks to enforce any supposed rights acquired by virtue of the sale in a court of law. Misener v. Glasbrenner, 221 Ill. 384, 77 NE 467; Palmer v. Riddle, 197 Ill. 45, 64 NE 263; Nichols v. Spremont, 111 111. 631; Barrett v. Wilson, 102 [a] Relinquishment of homestead 111. 302; Stevens v. Hollingsworth, in mortgage.-(1) Where, by the 74 Ill. 202; Hartwell v. McDonald, 69 specific terms of a mortgage, the Ill. 293; Hubbell v. Canaday, 58 Ill.mortgagor relinquished his home if there has been a release of the homestead right by a mortgage which covered the residence and other property, the latter need not be first sold on foreclosure if the residence tract was not such when the instrument was executed or if the mortgage was given to secure the price." Protection against "attachment, levy, or sale.' Sales under a decree of foreclosure have been held valid under homestead laws protecting the homestead from "attachment, levy, or sale, upon execution or other process issuing out of any court, or exempting homestead property from "attachment, levy or sale, on any mesne or final process issued from any Court."" 116 Sale under trust deed, or power of sale in mortgage. Both in jurisdictions where a sale under decree of foreclosure is considered a forced sale and in jurisdictions where it is not, it has been held that a sale by a trustee under a deed of trust or a sale under a mortgage containing a power of sale without the intervention of a court is valid, the view being taken that this is not a forced sale.11 [417] c. c. Partition. One tenant in common cannot defeat a suit for partition by the other and prevent a sale of the premises under decree in such proceedings, when the premises are indivisible, by Fla. Hart v. 12 setting up a claim to homestead in the entire premises,1 as the homestead laws apply only when the homestead is sought to be taken to pay debts.13 Nevertheless, as already shown, if the premises are sold upon partition, the debtor may assert his exemption in the proceeds of sale as against a creditor attempting to enforce his lien thereon.14 And, if a homestead can be set off to claimant without manifest injury to other parties in interest, it may be done.15 [§ 418] B. Establishment of Right-1. In General-a. What Law Governs.16 It has been variously held in different jurisdictions that the law in force when the exemption is claimed determines the rights of an exemptioner,17 that the mode of selection is that provided by the law in force when the homestead was acquired,' 18 and that the facts existing when the execution or other process attaches must be considered in ascertaining the extent of the debtor's rights.19 A statute permitting the wife of an execution debtor to tender the debt to the creditor and thus obtain his right and title under the levy is not retrospective in operation.20 [§ 419] b. Duty of Officer Making Levy. While, as hereafter shown, the homestead laws of many jurisdictions contemplate the making of a claim of exemption as a prerequisite of an allowance of a homestead,21 under some statutes 22 where the debtor may be entitled to a homestead, 23 it is apparently the rule, that where the homestead is a part of a larger tract than can be claimed as exempt, it is the duty of the officer making a sale thereof to set apart a homestead before making the sale, irrespective of any application therefor by claimant; 24 or the court Sanderson, 18 Fla. stead rights, such right is extin-1 33 Cal. 266. guished by sale on foreclosure. Newsom v. Newsom, 155 Ky. 547, 159 SW 1175. (2) But in jurisdictions where there can be no waiver of homestead exemption by mortgage except where the instrument itself contains an express waiver, a sale on foreclosure of a mortgage given on homestead premises which contains no waiver of the homestead exemption has been held void. Leblanc v. St. Germain, 25 La. Ann. 289. 5. Gaither v. Wilson, 164 Ill. 544, 46 NE 58 [aff 65 Ill. A. 362]. 6. Rector v. Rotton, 3 Nebr. 171, 177 (the statute does not "apply to a sale under a decree of foreclosure, when no process is issued to seize the mortgaged premises in order to acquire jurisdiction over them. The decree of the court operates directly upon the mortgaged property; no writ or other process of the court is resorted to, to bring it within its jurisdiction"). 7. Rosenberg v. Lewi, 7 S. C. 344; Homestead Bldg., etc., Assoc. v. Enslow, 7 S. C. 1, 20. "Process issued to enforce a judgment or decree for the payment of money, which may be enforced against the whole estate of the judgment debtor, is here intended." Homestead Bldg., etc., Assoc. v. Enslow, supra. 8. See constitutional and statutory provisions. V. Williamson, 6 82. Sampson Tex. 102, 55 AmD 762. [a] Reason for this view.-The owners of the homestead cannot waive or renounce the guarantee or immunity with which the constitution shields the property. They cannot impose upon the courts the obligation or confer the power of decreeing the sale of property which is expressly exempted from the operation of a forced sale or sale by judicial process. Sampson v. Williamson, 6 Tex. 102, 55 AmD 762. 9. W. Va.-Moran v. Clark, 30 W. Va. 358, 4 SE 303, 8 AmSR 66. stead see supra § 258. 17. Parnell v. Allen, McG. (La.) 322; Keller v. Myers, 5 S. C. 11. 18. Whitworth v. McKee, 32 Wash. 83, 72 P 1046. [a] Effect of subsequent incapacity of homesteader.-If a selection has been duly made under a former statute and the method of choice has been afterward changed, there is no to follow the new requirements if the homesteader is then mentally incapable of so doing. Anderson v. Stadlmann, 17 Wash. 433, 49 P 1070. [a] Reason for this view. "Where the owner of the homestead | loss of homestead rights by failing consents to a sale under execution or other legal process, it is not a forced sale. It makes no difference in respect to its being forced or voluntary, whether he consents directly to the sale or does the same indirectly by consenting to or doing those acts or things that necessarily or usually eventuate in a sale." Peterson v. Hornblower, 33 Cal. 266, 277. 10. See cases supra note 9. 11. Cal-Peterson v. Hornblower, 33 Cal. 266. Ill-Dawson v. Hayden, 67 Ill. 52; S. D.-Karcher v. Gans, 13 S. D. 12. Rinehart v. Rinehart, 6 Oh. 13. Rinehart v. Rinehart, 6 Oh. [b] Right of election as to mode of selection.-If a statute provides a method of selection of a homestead at the time a debt is contracted, and afterward a broader and more liberal system is prescribed by law. the debtor may adopt either method he desires, but not both. Connally v. Hardwick, 61 Ga. 501. 19. McCrary v. Chase, 71 Ala. 540; Garnier v. Joffrion, 39 La. Ann. 884, 2 S 797; Mills v. Hobbs, 76 Mich. 122. 42 NW 1084; Barney v. Leeds, 51 N. H. 253. 20. Whedon v. Gorham, 38 Conn. 408 (being applicable to only such debtors as thereafter conform to the description of homesteaders contained in the earlier act). Retroactive effect of statutes in other connections see supra §§ 10, 19, 20, 193-195, and infra § 501. 21. 22. 23. See infra § 420 et seq. [a] If the debtor is not entitled to a homestead in the land levied on, the sheriff is not obliged to notify him of his homestead rights. Smith v. Thompson, 169 Mo. 553, 69 SW 15. Cribben v. Cribben, 136 Ill. 609, 1040. 16. What law governs: Rights of surviving wife, husband, children, or heirs see infra § 500. Cal.-Peterson V. Hornblower, Transfer or encumbrance of home 24. Ill-Misener v. Glasbrenner, 221 Ill. 384, 77 NE 467; Bach v. May, 163 Ill. 547, 45 NE 248; Nichols v. Spremont, 11 Ill. 631; Newman v. Willitts, 78 Ill. 397; Hartwell v. MeDonald, 6 II. 293. Iowa.-Visek v. Doolittle, 69 Iowa statutes requiring that the debtor shall be given an opportunity to select his homestead when property subject thereto is sought to be taken under judicial process, 26 the officer should set off the homestead selected by the debtor,27 unless some other portion of the property is better adapted to homestead purposes and uses; 28 and if the debtor waives his right to make the selection, 29 it has been held that it becomes the duty of the court 30 or the officer having charge of the writ1 to set off the homestead to the debtor. Expenses of an official setting off a homestead are payable by the debtor,32 and should usually be tendered or paid before the officer can be compelled to act.33 If the creditor is dissatisfied with the debtor's selection, the officer should have a survey made, and set off the exempt portion in a compact form, including the dwelling house and its appurte 41 the debtor of his rights and give him an opportunity to claim and select his homestead,10 no such claim or selection is necessary on the debtor's part, or at least a failure to make such claim is not fatal; and, accordingly, it has been held that a debtor's failure to notify a purchaser at the execution sale that the premises are exempt will not prevent their recovery by him,* ,42 especially where the intention to make the premises a homestead is manifest;43 that he may in a proper action still assert his homestead right in property levied on and have the levy and all proceedings thereunder adjudged void; and that a debtor, having the right to select a homestead when apprised by the officer of his right to do so, may waive his right to select without losing his right to this exemption,45 in which case the officer or the court should set off the homestead to him.46 44 Estoppel or waiver.47 Where the failure to make a claim or assertion of homestead is not fatal,18 it has been said that no estoppel can be invoked against the debtor as the purchaser knows what he is purchasing and the officer what he is selling;49 but it has been held that, if a beneficiary of the homestead accepts or receives his share of the proceeds from a judicial sale, his homestead rights are 602, 29 NW 762; Goodrich v. Brown, | 267, 11 SE 598, 21 AmSR 163; Daven63 Iowa 247, 18 NW 893; White v. port v. Alston, 14 Ga. 271. Rowley, 46 Iowa 680; Linscott V. La.-Kuntz v. Baehr, 28 La. Ann. Lamart, 46 Iowa 312; Alley v. Bay, 9 Iowa 509. Ky. Sublett v. Gardner, 144 Ky. 190, 137 SW 864; Cole v. Rhor, 10 Ky. Op. 631; Louisville First Nat. Bank v. Carter, 7 Ky. Op. 486. Mo.-Macke v. Byrd, 131 Mo. 682, 33 SW 448, 52 AmSR 649; Meyer v. Nickerson, 100 Mo. 599, 13 SW 904. Contra Chance v. Norris, 143 Mo. 235, 44 SW 1116; Finley v. Barker, 110 Mo. 408, 20 SW 177. Nebr.-Aultman v. Howe, 10 Nebr. 8, 4 NW 357. 90. N. M.-Meyers Co. v. Mirabal, 202 P 693; Pecos Valley Lumber Co. v. Freidenbloom, 23 N. M. 383, 168 P 497. Or.-Johnson v. Tucker, 85 Or. 646, 167 P 787; Hansen v. Jones, 57 Or. 416, 109 P 868; Mansfield v. Hill, 56 Or. 400, 107 P 471. 108 P 1007. Wash-State v. King County Super. Ct., 84 Wash. 663, 147 P 408. [a] The claim and selection of homestead constitute the initiative step in proceedings designed to avoid S. C.-King v. McCarley, 32 S. C. evils consequent upon a sale under 264. 10 SE 1075. process imposed by or subject to Tenn.-Delk v. Yelton, 103 Tenn.laim of homestead. Clancy v. Step476, 53 SW 729; Gray v. Baird, 4 Lea hens, 92 Ala. 577, 9 S 522, 524; Block 212. v. Bragg. 68 Ala. 291. Vt.-Fairbanks V. Devereaux, 48 Vt. 550. 25. Townsend V. Blanchard, 117 filed against an original execution Iowa 36, 90 NW 519. 26. See infra § 420. 27. Bennett v. Baird, 81 Ky. 554; Myers v. Ford, 22 Wis. 139. 28. Bennett v. Baird, 81 Ky. 554. [a] Thus it is permissible for him to select any part of the premises best adapted for the support of himself and family. He is not restricted to that part of the land on which the dwelling house is situated. Bennett v. Baird, 81 Ky. 554. 29. See infra § 420. 30. Fischer v. Schultz, 98 Wis. 462, 74 NW 222. [a] Reason assigned is that it is to prevent further litigation. Fischer V. Schultz. 98 Wis. 462, 74 NW 222. 31. Hook v. Northwest Thresher Co., 91 Minn. 482, 98 NW 463. 32. McCanless v. Flinchum, 98 N. C. 358, 4 SE 359; Taylor v. Rhyne, 65 N. C. 530; Lute v. Reilly, 65 N. C. 20. 33. Vannoy v. Haymore, 71 N. C. 128; King v. McCarley, 32 S. C. 264, 10 SE 1075. 34. Myers v. Ford, 22 Wis. 139; Herrick v. Graves, 16 Wis. 157. 35. Failure to object to sale of established homestead see supra 388. 36. See statutory provisions. 37. Ala. Lackland v. Rogers, 113 Ala. 529, 21 S 341; Toenes v. Moog, 78 Ala. 558; Wright v. Grabfelder, 74 Ala. 460; Block v. Bragg, 68 Ala. 28: Sherry V. Brown, 66 Ala. 51; Bell v. Davis, 42 Ala. 460; Simpson v. Simpson, 30 Ala. 225. Fla. Barclay v. Robertson, 67 Fla. 416, 65 S 546. Ga.-Timothy v. Chambers, 85 Ga. [b] New claim against alias execution. If there has been a claim and the circumstances remain unaltered, no reassertion is necessary as against an alias writ issued on the same judgment. Euper v. Alkire. 37 Ark. 283. See Arkansas cases infra note 41. 38. See statutory provisions. 39. See statutory provisions. 40 McKeithen v. Blue, 142 N. C. 360. 55 SE 285; McGowan v. McGowan, 122 N. C 164. 29 SE 372. [a] Statute mandatory, not directory. Stinson v. Call, 163 Mo. 323. 63 SW 729; Creech v. Childres. 156 Mo. 338, 56 SW 1106: Macke v. Byrd, 131 Mo. 682, 33 SW 448, 52 AmSR 649; Meyer v. Nickerson, 100 Mo. 599. 13 SW 904: Vogler v. Montgomery, 54 Mo. 577; Shacklett v. Scott, 23 Mo. A. 322. Contra Chance V. Norris, 143 Mo. 235, 44 SW 1116: Finley V. Barker, 110 Mo. 408, 20 SW 177; Paddock v. Lance, 94 Mo. 283, 6 SW 241. 41. Ark-Spurlock v. Gaikens, 146 Ark. 50, 225 SW 17 [apparently overr in effect Barnhart v. Gorman, 131 Ark. 116, 198 SW 880: Jones v. Dillard, 70 Ark. 69, 66 SW 602: Chambers v. Perry. 47 Ark. 400, 1 SW 700; Healy v. Conner, 40 Ark. 352]. Ill-Misener V. Glasbrenner, Ill. 384, 77 NE 467. 221 Iowa.-Visek v. Doolittle, 69 Iowa 602, 29 NW 762; Townsend v. Blanchard, 117 Iowa 36, 90 NW 519. Ky-Sublett v. Gardner, 144 Ky. 190, 137 SW 864; Miller v. Bennett. 12 SW 194. 11 KyL 391; Page v. Coakley, 7 KyL 368, 13 Ky. Op. 735. Mass.-Castle v. Palmer, 6 Allen 401. Mich.-Griffin v. Nichols, 51 Mich. 575, 17 NW 63. Minn.-Beigler v. Chamberlin, 145 Minn. 104, 176 NW 49; Ferguson v. Kumler, 25 Minn. 183. Nebr.-Aultman v. Howe, 10 Nebr. 8, 4 NW 357. N. H.-Barney v. Leeds, 51 N. H. 253; Fletcher v. State Capital Bank, 37 N. H. 369 (dictum); Fogg v. Fogg, 40 N. H. 282, 77 AmD 715. N. D.-Dieter v. Fraine, 20 N. D. 484, 128 NW 684. S. C.-King v. McCarley, 32 S. C. 264, 10 SE 1075. Tenn.-Delk v. Yelton, 103 Tenn. 476, 53 SW 729. Vt.-Fairbanks V. Devereaux, 48 Wis.-Hoppe v. Goldberg, 82 Wis. 660, 53 NW 17; Scofield v. Hopkins, 61 Wis. 370, 21 NW 259. Vt. 550. The [a] Otherwise expressed, the debtor is not required to manifest any intention to avail himself of the benefits of the homestead laws and a deed by a sheriff to a 'purchaser at the execution sale has no effect on the title to the homestead beyond that of casting a cloud over it. debtor need not claim his homestead as exempt. No affirmative action is necessary by him. He may occupy the homestead until he is sought to be evicted before he is required to act. Spurlock v. Gaikens, 146 Ark. 50, 225 SW 17. 42. Miller v. Bennett, 12 SW 194, 11 KyL 391; Louisville First Nat. Bank v. Carter, 7 Ky. Op. 486; Griffin v. Nichols, 51 Mich. 575, 17 NW 63. 43. Scofield v. Hopkins, 61 Wis. 370, 21 NW 259. 44. Beigler V. Chamberlin, 145 Minn. 104, 176 NW 49; Norris V. Moulton, 34 N. H. 392; Fletcher v. State Capital Bank, 37 N. H. 369. 45. Louisville First Nat. Bank v. Carter, 7 Ky. Op. 486; Hook v. Northwest Thresher Co., 91 Minn. 482, 98 NW 463; Fischer v. Schultz, 98 Wis. 462, 74 NW 222. 46. See supra § 419. 47. See also generally supra §§ 343-409. 48. See supra text and note 41. 49. Louisville First Nat. Bank v. Carter, 7 Ky. Op. 486; Scofield v. Hopkins, 61 Wis. 370, 21 NW 259. [a] Judgment creditors who are purchasers at an execution sale are presumed to know what the debtor has done and is doing on the land, indicating an intent to make it his homestead. Scofield v. Hopkins,. 61 Wis. 370, 21 NW 259. lost, 50 also that, where a homestead right has not been asserted in defense to a bill in aid of an execution and defendant has died and his children have attained full age, there is no obstacle to a sale and levy;51 and that, where a whole section of land has been levied on under execution, on failure either of the head of the family or his wife to claim the homestead exemption, no presumption of law arises. that the debtor claims as his homestead the particular governmental quarter section upon which his dwelling house stands.52 57 53 [ý 421] b. Persons Who May Make Claim.5 It has been declared that only those may claim the homestead exemption who are mentioned in the homestead laws, 54 and ordinarily the head of the family is the one to assert the right,55 which may be done in his own name. 56 However, under the homestead laws of some jurisdictions the wife of the head of a family has such an interest in the homestead as enables her to intervene and claim the property as exempt or to institute an independent action therefor. 58 So under the several homestead laws it has variously been held that the wife may 50. Rolf v. Timmermeister, 15 Mo. A. 249. 51. Matson v. Melchor, 42 Mich. 477, 4 NW 200. See also supra § 400. 52. Foogman v. Patterson, 9 N. D. 254, 83 NW 15. See also supra § 388. 53. Parties see infra § 451. 54. Davis v. Low, 66 Or. 599, 135 P 314. Persons entitled to homestead see supra §§ 26-44. 55. Mobley v. Belcher, 144 Ga. 442, 87 SE 470; Wegman Piano Co. v. Irvine, 107 Ga. 65, 32 SE 898, 73 AmSR 109; Central of Georgia R. Co. v. Garrison, 12 Ga. A. 369. 77 SE 193. Head of family see supra §§ 36-38. 56. Crowley v. Freeman, 9 Ga. A. 1, 70 SE 349. 57. Wife as head of family see supra § 36. 58. Kan.-King v. Wilson, 95 Kan. 390, 393, 148 P 752 [quot Cyc]. Mich.-Burkhart V. Walker. 132 Mich. 93, 92 NW 778, 102 AmSR 386; Armitage v. Toll, 64 Mich. 412, 414, 31 NW 408; Sherrid v. Southwick, 43 Mich. 515, 5 NW 1027; Dye v. Mann, 10 Mich. 291. Tenn.-Williams V. Williams, Baxt. 116. 7 Wash.-Ross v. Howard, 25 Wash. 1, 64 P 794. "It is as much the right of the wife, either at law or in equity, to protect the homestead rights of herself and family as it is that of the husband." Armitage v. Toll, supra. [a] If the homestead is situated on lands, the statutory separate estate of the wife, she may assert a claim to it in defense of an action for the subjection of the lands to payment for articles of comfort and support of the household. Weiner v. Sterling, 61 Ala. 98; Bender V. Meyer, 55 Ala. 576. 59. Mix v. King, 55 T11. 434; Warren v. Block, 1 KyL 121; Dittey v. Elfifritz, 8 Oh. Cir. Ct. 278, 4 Oh. Cir. Dec. 465. See also supra §§ 36, 40. 60. Russell v. Suddoth, 123 Ark. 200, 184 SW 842; Purdy v. Melton, 164 Ky. 749, 176 SW 346; Frazier v. Brashears, 66 SW 1038, 23 KyL 2232; Daisy v. Houlihan, 43 SW 487, 19 KyL 1337; Hemphill v. Haas, 88 Ky. 492, 11 SW 510, 11 KyL 62. See also supra §§ 36, 40. 61. McWhorter v. Cheney, 121 Ga. 541, 49 SE 603; Pritchett v. Davis, 101 Ga. 236. 28 SE 666, 65 AmSR 298; Brady v. Brady, 67 Ga. 368; Connally v. Hardwick, 61 Ga. 501. also supra §§ 36, 40. See 62. Hollis v. State, 59 Ark. 211, 27 SW 73, 43 AmSR 28; Lowell v. Shannon, 60 Iowa 713, 15 NW 566; Quigley v. McEnvoy, 41 Nebr. 73, 59 NW 767; U. S. v. Lesnet, 9 N. M. 271, be permitted to assert the homestead exemption where the husband has abandoned her and his family,59 fails to assert his right of homestead,60 refuses to assert and protect the homestead exempor is absent at the time the homestead is tion, 61 levied upon," 62 or where the title to the land is in the wife and her husband has made no claim of homestead rights for the protection of his property.63 So a purchaser of land constituting part of a homestead may, as against one holding a prior deed of trust, assert that the land constituted a homestead, and that the deed of trust was invalid, the right to make such assertion not being personal to the owner of the homestead." 64 [§ 422] c. Time for Making Claim. By reason of the difference in the statutory provisions in the several jurisdictions,65 under the rule recognizing a debtor's right to claim or select his homestead, it has been variously held that the claim must be made before levy;67 when execution is levied;68 before a sale under execution or order of court is made69 or ordered;70 that a claim may be asserted after rendition of judgment or decree," 50 P 321. See also supra §§ 36, 40. [a] Cusband a fugitive from justice.-Where the husband is a fugitive from justice, the wife may file a claim for homestead exemption in property against which an execution against the husband has been levied. Hollis v. State, 59 Ark. 211, 27 SW 73, 43 AmSR 28. 63. Richards v. Stewart, 185 Mo. 533, 84 SE 1181; Sharp v. Stewart, 185 Mo. 518, 84 SW 963. See also supra §§ 36, 40. 64. McGregor First. Nat. Bank v. Rice-Stix Dry Goods Co., (Tex. Civ. A.) 213 SW 344. 65. See statutory provisions. See supra § 420. 66. 67. 67 P Jones v. Olson, 17 Colo. A. 144, 349. 68. Barclay v. Robertson, 67 Fla. 416, 65 S 546; Sears v. Hanks, 14 Oh. St. 298. 84 AmD 378. 69. U. S. Miller v. Sherry, 2 Wall. 237, 17 L. ed. 827; Nevada Bank v. Treadway, 17 Fed. 887, 8 Sawy. 456; Freema. v. Stewart, 9 F. Cas. No. 5,088, 5 Biss. 19. Ala.-Waugh v. Montgomery, 67 Ala. 573; Martin v. Lyle, 63 Ala. 406; Sheffey v. Davis, 60 Ala. 548; Steele v. Moody, 53 Ala. 418; Bell v. Davis, 42 Ala. 460. Ga. Allen v. Frost, 62 Ga. 659. Kan.-Ard v. Platt, 61 Kan. 775, 60 P 1048 [rev 10 Kan. A. 335, 58 P 2831; Willis v. Whitead, 59 Kan. 221, 52 P 445. Mass.-Livermore v. Boutelle, 11 Gray 217, 71 AmD 708. Mich. Herschfeldt v. George, 6 Mich. 456. Nebr. Jackson V. Creighton, 29 Nebr. 310. 45 NW 638. Nev. Hawthorne v. Smith, 3 Nev. 182. 93 AmD 397. N. C.-Hinson v. Adrian, 92 N. C. 121; Scott v. Walton, 67 N. C. 109. Wash.-Security Nat. Bank V. Mason, 200 P 1097; State v. King County Super. Ct., 84 Wash. 663, 147 P 408; In re Feas, 30 Wash. 51, 70 P 270; Ross v. Howard, 25 Wash. 1, 64 P 794; Anderson v. Stadlmann, 17 Wash. 433, 49 P 1070; Wiss v. Stewart, 16 Wash. 376, 47 P 736. But compare North Pac. L. & T. Co. v. Bennett, 49 Wash. 34, 94 P 664 (it is sufficient that the judgment debtor assert his homestead claim while yet in possession of the premises, although after a sale under foreclosure). [a] In Louisiana (1) the claim to homestead exemption must be made before a sale under execution thereof. Cunningham v. Steidman, 133 La. 44, 46, 62 S 346; Gilmer v. O'Neal, 32 La. Ann. 979; Williston v. Schmidt, 28 La. Ann. 416; Kuntz v. Baehr, 28 La. Ann. 90. (2) It was said that "if the question of homestead vel non or the question of the property sold not having been liable to seizure from any other cause were allowed to hang indefinitely over every piec of property sold at sheriff's sale, where would be the safety or confidence in titles?" Cunningham V. Steidman, supra. (3) A different rule, however, applies in respect of judicial sales of the homestead, it being held that the debtor may claim the exemption as long as the proceeds of the sale remain in the hands of the officer making the sale or purchase. Coleman v. Continental Bank, etc., Co., 139 La. 1078, 72 S 742; Abramson v. Larrabee, 134 La. 833, 64 S 766; Abbott v. Heald, 128 La. 718, 55 S 28; Johnson v. Agurs, 116 La. 634, 40 S 923, 114 AmSR 562. (4) Thus where a homestead is sold at a judicial sale for a debt against which it is not exempt and a surplus remains, the debtor's claim is that of owner, and his action is timely when brought before the sheriff or the purchaser at judicial sale has paid out the surplus of the proceeds. Johnson v. Agurs, 116 La 634, 40 S 923, 114 AmSR 562. (5) And it has been held that a party desiring to assert a homestead right on foreclosure sale of the premises may intervene by a third opposition instead of ordinary intervention and citation. People's Bank V. Levert, 133 La. 494, 63 S 601. (6) However, where an execution from a court of a justice of the peace is levied on lands in default of personal property, a claim of homestead exemption to be effectual must be interposed before an order of sale of the land is made by the circuit court; and if not so interposed, the right to claim a homestead exemption is effectually waived and lost as against such execution. Lack nd v. Rogers, 113 Ala. 529. 21 S 341. [b] Filing declaration of homestead.-To preserve the homestead right exempt from execution as against a purchaser under execution it is necessary that the declaration of homestead be filed prior to_the date of the sale. State v. King County Super. Ct., 84 Wash. 663, 147 P 408. See also supra §§ 68-72. 70. Rogers v. Lackland, 117 Ala. 599, 23 S 489; Toenes v. Moog, 78 Ala. 558; Sherry v. Brown, 66 Ala. 51. 71. Kennedy v. Tuscaloosa First Nat. Bank, 107 Ala. 170, 18 S 396. 36 LRA 308; Bunch v. Keith, 64 Ark. 654, 44 SW 452; Robinson v. Swearingen, 55 Ark. 55, 17 SW 365; Johnson v. Tucker, 85 Or. 646, 167 P 787: Hansen v. Jones, 57 Or. 416. 109 P 75 or at any time before sale,72 provided of course the right to exemption exists at that time;78 that the claim may be made after levy? or even after a sale; that the right may be asserted before, or at the time of, the levy or within a reasonable time thereafter;76 that the right may be asserted in suit brought for possession of the lands constituting homestead," or by notifying the levying officer and one who had garnished the proceeds of the sale of the homestead and of the claim of exemption.78 After attachment of proceeds of sale. Failure to claim a homestead exemption until after the proceeds of the sale of the homestead were attached is not a waiver of the homestead right where this was the first opportunity claimant had after learning that defendant was taking steps to subject the proceeds to the payment of his claim.79 Separate claims of spouses at different times. Where immediately after attachment the husband serves notice of a claim of exemption as homestead on the levying officer, the notice is in time and is not rendered insufficient or lessened in force because the wife serves a similar notice after the court had ordered a sale of the attached property.80 Assertion of claim by remainderman. As the right of a remainderman to homestead is in abeyance during the continuance of the life tenancy,81 his right to a homestead in the property or in the proceeds thereof is not prejudiced by his failure to assert in any manner this right during the existence of the life tenancy. 82 Furthermore, he is entitled to a reasonable time after the extinguishment of the life tenancy to assert his right to a homestead.83 868 [crit dictum to the contrary Da- [b] Thus after a decree setting aside a conveyance and ordering a sale, a petition to the court for homestead exemption or for an equivalent amount of the proceeds of the sale is in time. Kennedy v. Tuscaloosa First Nat. Bank, 107 Ala. 170, 18 S 396, 36 LRA 308, 113 Ala. 279, 21 S 387, 36 LRA 308. [c] Execution from justice of the peace. When a levy is made under an execution from a justice's court the claim must be asserted before the order of sale in the circuit court. Lackland v. Rogers, 117 Ala. 529, 21 S 341; Sherry v. Brown, 66 Ala. 51. 72. Ala.-Cross V. Ensley Bank, 205 Ala. 274, 87 S 843; Kennedy v. Tuscaloosa First Nat. Bank, 107 Ala. 170, 18 S 396, 36 LRA 308; Hines v. Duncan, 79 Ala. 112, 58 AmR 580. Ariz.-Union Oil Co. v. Norton Morgan Commercial Co., 202 P 1077. Miss.-Woods v. Bowles, 92 Miss. 843, 46 S 414, 131 AmSR 559; Trotter v. Dobbs, 38 Miss. 198. N. M.-U. S. v. Lesnet, 9 N. M. 271, 50 P 321. Or-Wilson v. Peterson, 68 Or. 525, 136 P 1187. Pa.-Seibert's App., 73 Pa. 359. Utah. - Volker-Scowcroft Lumber Co. v. Vance, 36 Utah 348, 103 P 970, 24 LRANS 321, AnnCas1912 A 124; Folson v. Asper, 25 Utah 299, 71 P 315; Kimball v. Salisbury, 17 Utah 381, 53 P 1037. 73. Wood v. Bowles, 92 Miss. 843, 46 S 414, 131 AmSR 559. Application for allotment by creditor. Under statutes providing for an allotment of homestead on application of the judgment creditor within a certain time after levy of execution, the judgment creditor's lien ceases if this is not done.85 Protection of homestead in judgment or decree. The fact that the homestead was not designated before the levy furnishes no ground for setting the levy aside, where the judgment protects the homestead claimant and gives claimant the right to designate it in the manner that the law permits such designation to be made.86 91 [423] d. Form, Requisites, and Sufficiency of Claim. Whatever form the claim may take, statutory requirements as to what it shall contain should be substantially complied with.87 The claim should. state the nature and grounds of the claim, 88 as that the premises are occupied as a homestead; 89 that claimant has a family;90 and such other matters as are necessary to qualify claimant as a homesteader. The claim should identify the land with reasonable certainty, 92 although it need not fully describe it,93 it should also state the date of contracting the debt sought to be enforced so that the law governing the exemption can be ascertained;9* but the debtor need not allege facts showing that the debt in question is not privileged by law from exemption.95 An affidavit made after levy averring ownership and occupancy of the land at the date of the affidavit is insufficient. 96 74. Yost v. Devault, 9 Iowa 60. 75. Ark.-Spurlock Gaikens, 146 Ark. 50, 225 SW 17. Ill-Zander v. Scott, 165 Ill. 51, 46 NE 2; Imhoff v. Lipe, 162 Ill. 282, 44 NE 493. Iowa.-White v. Rowley, 46 Iowa 680. 63 SW 729. Mo.-Stinson v. Call, 163 Mo. 323, Oh.-Kerruish v. Meyers, 21 Oh. Cir. Ct. 434, 11 Oh. Cir. Dec. 666 (recognizing rule). S. C.-Myers v. Ham, 20 S. C. 522. Tenn.-Rosenbaum v. James, 106 Tenn. 51, 60 SW 497; Commercial Bank, etc., Co. v. Tacker, (Ch. A.) 52 SW 714; Gray v. Baird, 4 Lea 212. Wis. Fischer v. Schultz, 98 Wis. 462, 74 NW 222; Hoppe v. Goldberg, 82 Wis. 660, 53 NW 17; Scofield v. Hopkins, 61 Wis. 370, 21 NW 259. 121 P 605. 79. Holley v. Horton, 164 Mich. 31, 129 NW 6. 80. Watson v. Hurlburt, 87 Or. 297, 170 P 541. 81. 82. See supra § 156. Staun v. Proctor, 152 Ky. 142, 153 SW 196; Merrifield v. Merrifield, 82 Ky. 526; Roach v. Dance, 80 SW 1097, 26 KyL 157. 83. Staun v. Proctor, 152 Ky. 142, 153 SW 196; Spratt v. Állen, 106 Ky. 274, 50 SW 270, 20 KyL 1822. 84. See Cal. Civ. Code § 1245 et seq_as amended by St. (1911) p 888. Magneson v. Pacific Mfg. Co., 26 Cal. A. 52, 146 P 69. 85. 86. Parker v. Coop, 60 Tex. 111. 87. Blum v. Carter, 63 Ala. 235; and see cases infra this section. [a] In writing and verified. [a] A claim of homestead made If the statute requires a claim for in an action to set aside a fraudulent homestead filed with the officer makconveyance after an appellate courting the levy to be in writing and verihas remanded the original suit to fied by affidavit, this requirement the lower court for further proceed- must be complied with. Schuer V. ings is timely. Rosenbaum v. Davis, King, 100 Ala. 238, 13 S 912. 106 Tenn. 51, 60 SW 497. [b] Failure of officer to notify debtor of his rights.-If it is incumbent on the officer levying the execution to inform the debtor of his right to select a homestead from the land levied on, and the officer, failing to do so, proceeds to sell the land without allotment of homestead, the debtor may assert his claim as soon as he learns of the levy. Stinson v. Call, 163 Mo. 323, 63 SW 729. [c] Failure of the debtor to assert his rights (1) does not deprive him of his interest in the proceeds of sale remaining in the hands of the sheriff. Ragland v. Moore, 51 Ga. 476. Contra Casebolt v. Donaldson, 67 Mo. 308. (2) But he must make timely claim to funds to which he is entitled in lieu of a homestead before they are paid over to third parties under order of court. Kerruish v. Meyers, 21 Oh. Cir. Ct. 434, 11 Oh. Cir. Dec. 66. 76. Beecher v. Baldy, 7 Mich. 488. 77. Dean v. Cole, 141 Ark. 177, 216 SW 308. 78. Hansen v. Mauss, 40 Utah 361, 88. Marshall v. Tully, 193 Ky. 246, 235 SW 726. 89. Blum v. Carter, 63 Ala. 235; Wilson v. Brown, 58 Ala. 62, 29 AmR 727. 90. Wilson v. Brown, 58 Ala. 62, 29 AmR 727. [a] The names of the persons composing the family need not be stated. Horton v. Summers, 62 Ga. 302; Cowart v. Page, 59 Ga. 235. 91. Marshall v. Tully, 193 Ky. 246, 235 SW 726. See also supra §§ 26191. 92. Blum v. Carter, 63 Ala. 235; Beecher v. Baldy, 7 Mich. 488; Herrick v. Graves, 16 Wis. 157. 93. Blum v. Carter, 63 Ala. 235; Andrews v. Melton, 51 Ala. 400. 94. Block v. Bragg, 68 Ala. 291. [a] A failure to allege this fact is an amendable defect. McLaren v. Anderson, 81 Ala. 106, 8 S 188. 95. Staines v. Webb, 11 SW 508, 11 KyL 36. 96. Reynolds v. Tenant, 51 Ark. 84, 9 SW 857; Zander v. Scott, 165 III. 51, 46 NE 2. 97. See statutory provisions. |