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to a homestead must be given to," 98 or filed with,99 the officer levying the execution.

Notice to judgment creditor. The creditor against whose debt the exemption is asserted has a similar right to be notified of the application for an allotment. Even general creditors are sometimes given the same right by statute.2 If the notice is not given as required by statute, the appraisal and assignment of homestead is subject to attack by creditors not notified.3

8

9

[§ 425] f. Contest and Determination of Claim1 -(1) In General. Where the homestead laws permit or require a debtor to claim a homestead in property which is about to be sold under execution or on judicial sale," the laws also usually make provision for a contest of such claim and for the reaching of property improperly included therein." Statutory requirements as to the time and manner of contesting a homestead claim must be complied with. An affidavit of contest in the language of the statute will in general be sufficient, and it is not governed by the formal rules of pleading. The sufficiency of the affidavit of contest must be referred to the tribunal from which the process issued, 10 and cannot be passed on by the levying officer. The court trying the contest has large discretionary powers in directing the framing of an issue, and may admit any evidence properly relating to the validity of the exemption claim at the time the lien in question attached." The claim of exemption is to be taken as prima facie correct,13 and the burden of proof is on the levying creditor to show that it is incorrect.1

14

98. Ard v. Platt, 61 Kan. 775, 60 P 1048; Kuntz v. Baehr, 28 La. Ann. 90; Mansfield v. Hill, 56 Or. 400, 107 P 471, 108 P 1007.

Service of a copy of the interrogatories upon an attorney who had represented judgment debtor by filing a demurrer to an affidavit of contest of homestead exemption, and who has since continued to represent such party in such proceeding, is effective. 15

The lien is not destroyed during the proceedings, but no sale of the property is permitted until their termination.16

If no such provision is made by the homestead laws for the contest of the claim, the parties should be left to their action or other proceeding in which all parties interested can be made parties.1

17

[§ 426] (2) Notice. A homestead claimant is entitled to notice of a contest of his claim." 18

19

[427] 3. Allotment and Appraisal19 -a. Necessity. The general rule is that a sale on execution or a judicial sale of property, out of which a homestead may be claimed, without setting apart a homestead for the party entitled thereto is void,20 even though part of the proceeds are paid into court as the value of the homestead.2 However, if a homestead has been set apart under one execution, no allotment is necessary on alias executions issued upon the same judgment.22 And it has been held that an allotment is not necessary where the tract sold is not a homestead, 23 as where it is not the residence of the debtor; 24 where the debtor plainly is not entitled to a homestead in the premises,2 where no homestead was asserted or in existence at the time of the levy 26 and no declaration of intention to claim a homestead had then been filed as required by statute; 27 where the tract sold is within

as

13. Planters' Chemical, etc., Co. v. Graham, 202 Ala. 482, 80 S 866; Robinson v. Ferdon, 200 Ala. 549, 76 S 907; Smith v. Smith, 200 Ala. 197, 75 S 955; Bailey v. D. R. Dunlap Mercantile Co., 138 Ala. 415. 35 S 451; Kolsky v. Loveman, 97 Ala. 543, 12 S 720; McCrary v. Chase, 71 Ala. 540.

within ten days, as required by law 138 Ala. 316, 35 S 322; Beckert v. the_levy will be discharged. Block Whitlock, 83 Ala. 123, 3 S 545. v. Bragg, 68 Ala. 291. [a] Evidence held relevant.-Em[b] Time of trying contest.-rich v. Gilbert Mfg. Co., 138 Ala. 316, [a] What notice sufficient.-(1) Where, after the levy of an execu- 35 S 322. In Louisiana personal notice to the tion upon land, defendant files his [b] Evidence held irrelevant.sheriff and plaintiff in the seizure claim of homestead exemption there- Bailey v. Dunlap Mercantile Co., 138 and sale did not amount to a legal to, and plaintiff in execution inter- Ala. 415, 35 S 451. assertion of his right so as to secure poses, within the time allowed by the or preserve the right of a homestead statute, a contest of such claim, and on the property under seizure. Kuntz the contest is tried at the first term v. Baehr, 28 La. Ann. 90. (2) In of the court after the return of the Kansas the bringing of an injunction execution, there is not shown a want proceeding by the debtor against the of diligence on the part of the contestlevying officer is a sufficient notice ant in the prosecution of the contest of claim. Ard v. Platt, 61 Kan. 775, of the claim of exemptions, so as to 60 P 1048 [rev 10 Kan. A. 335, 58 Pauthorize the quashing of the levy 283]. of the execution. Emrich v. Gilbert 14. Bailey v. D. R. Dunlap MerMfg. Co., 138 Ala. 316, 35 S 322. cantile Co.. 138 Ala. 415, 35 S 451 [c] Motion of officer.-The right 15. Kimball v. Cunningham Hardto the exemption cannot be deter-ware Co.. 201 Ala. 409, 78 S 787. mined on motion made by the sher- 16. Block v. Bragg, 68 Ala. 291. iff to the court to instruct him 17. Corry v. Tate, 48 S. C. 548, 26 whether he ought to sell under ex- SE 794. ecution land which the debtor claimed [a] A rule on the sheriff requir to be exempt from levy and sale un-ing him to show cause why he should der any legal process. Sneider v. not be required to sell the land levied Heidelberger, 45 Ala. 126. on is not a proper method of contesting a claim to homestead in property which has been levied on. Corry v. Tate, 48 S. C. 548, 26 SE 794. 18. Mead v. Larkin, 66 Ala. 87. 19. Allotment before levy see supra §§ 74-81.

99. Schuer v. King, 100 Ala. 238, 13 S 912.

[a] Insufficient filing.-When under such statutory provisions a claim is made with a levy of execution, it is not sufficiently filed with the officer when it is merely handed to him after the levy and then withdrawn from him before sale and filed for registration under the statute providing for the latter step to prevent a levy. It must be filed with the officer and left with him. Schuer v. King, 100 Ala. 238, 13 S 912.

1. Allen v. Towns, 90 Ala. 479, 8 S 101; Smith v. Cockrell, 66 Ala. 64; Weekes v. Edwards, 101 Ga. 314, 28 SE 853; Cosnahan v. Rowland, 99 Ga. 285, 25 SE 647; Collier v. Adkins, 47 Ga. 503; Ex p. Lummus Cotton Gin Co., (S. C.) 106 SE 861.

v.

2. Stewart v. Stisher, 83 Ga. 297, 9 SE 1041; Nixon Grocery Co. Spann, 108 S. C. 329, 94 SE 531.

3. Ex p. Lummus Cotton Gin Co., (S. C.) 106 SE 861; Nixon Grocery Co. v. Spann, 108 S. C. 329, 94 SE 531. 4. Claim of widow, children, or heirs see infra § 534.

5. See supra § 420. 6. See statutory provisions; and cases infra this section.

7. Farley v. Riordon, 72 Ala. 128; Block v. George, 70 Ala. 409; Block v. Bragg, 68 Ala. 291.

[a] If the contest is not made

8. Pinckard v. Freeman, 172 Ala. 333, 55 S 503.

9. Pinckard v. Freeman, 172 Ala. 333, 55 S 503; Beckert v. Whitlock, 83 Ala. 123, 3 S 545.

20.

21.

See supra § 415.

Oakley v. Van Noppen, 96 N. C. 247, 2 SE 663.

22. Weiner v. Sterling, 61 Ala. 98: Jones v. De Graffenreid, 60 Ala. 145; Bender v. Meyer, 55 Ala. 576; Euper V. Alkire, 37 Ark. 283; Caldwell v. Taylor, 32 SW 678, 17 KyL 781.

[a] All that is necessary (1) is that the affidavit should be broad enough to admit any legal evidence as to the validity or invalidity of the claim in whole or in part, on the grounds specified in the affidavit of contest. Pinckard v. Freeman, 172 Ala. 333, 55 S 503; Beckert v. Whitlock, 83 Ala. 123, 3 S 545. (2) When the affidavit for a contest of a claim of homestead exemptions is conceded by claimant to contain one unassailable ground, a motion to strike such contest from the file, or a demurrer to such contest which challenges the affidavit of contest in its entirety, is properly overruled. Emrich v. Gilbert Mfg. Co., 138 Ala. 316, 35 S 322. 10. Block v. Bragg, 68 Ala. 291. 26. Scott v. Guiberson, 72 Wash. Block v. Bragg. 68 Ala. 291. 36, 129 P 886. Emrich V. Gilbert Mfg. Co., 27. Scott v. Guiberson, supra.

11.
12.

23. Gardner V. Eberhart, 82 Ill. 316; Davidson v. Dishman, 59 SW 326, 22 KyL 940.

24. Gardner

316; Linton v. Quimby, 57 Ill. 271. 25. Davidson v. Dishman, 59 SW 326, 22 KyL 940: Scott v. Guiberson, 72 Wash. 36, 129 P 886.

v. Eberhart, 82 Ill.

the limits fixed by statute; 28 where the sale is made to preserve a valid encumbrance on the premises, 29 especially where the rights of the debtor are being adequately protected; 30 and it has been held not to be objectionable to set off a homestead to a tenant in common in such portion of the tract as is sold on execution where he continues to occupy the residue of the tract and the latter exceeds in value the statutory exemption.31

34

Appraisal. So an appraisal is usually a prerequisite to a sale of land in which a homestead exemption is claimed, 32 unless the debtor's demand for homestead .33 is manifestly unfounded; 3 and under some statutes the creditor must apply for an appraisement when the debtor has duly claimed his homestead;35 but under some statutes the right to ask for an appraisement does not apply in the case of a levy merely under a writ of attachment,36 or in an action or suit in the nature of a creditors' bill.37 Where a creditor files a petition for the appointment of appraisers, it is not error to allow the homestead claimant to file an answer and contest the question whether the value of the homestead exceeds the amount of the exemption before appraisers are appointed, and if the value does not exceed the exemption a refusal to appoint them is proper. 3 Where under the statute the debtor is entiled to select the homestead,39 it has been held that an appraisal and allotment made in his absence not due to any fault of his own is void.40

38

Where docketing judgment in the county where the land lies is not a prerequisite to the enforcement by execution,* 41 the fact that the judgment was not

28.

200.

29. 30.

Rogers V. Hawkins, 20 Ga.

Hinson v. Adrian, 92 N. C. 121. Hinson v. Adrian, 92 N. C. 121. 31. Miller v. McAllister, 197 Ill. 72, 64 NE 254.

32. Cal-Barrett v. Sims, 59 Cal. 615; Gary v. Eastabrook, 6 Cal. 457.

Ill-Dillman v. Will County Nat. Bank, 138 111. 282, 27 NE 1090.

Iowa.-Rhodes V. McCormack, Iowa 368, 68 AmD 663.

4

Miss. Richie v. Duke, 70 Miss. 66, 12 S 208; Rhyne v. Guevara, 67 Miss. 139, 6 S 736.

Mo.-Macke v. Byrd, 131 Mo. 682, 33 SW 448, 52 AmSR 649; Vogler v. Montgomery, 54 Mo. 577.

Nebr.-Chamberlain Banking House v. Zutavern, 59 Nebr. 623, 81 NW 858; Swift v. Dewey, 20 Nebr. 109, 29 NW 254.

N. M.-U. S. v. Lesnet, 9 N. M. 271, 50 P 321.

N. C.-Littlejohn v. Egerton, 77 N. C. 379; Waters v. Stubbs, 75 N. C. 28. S. C.-Carolina Sav. Bank v. Evans, 28 S. C. 521; Nance v. Hill, 26 S. C. 227, 1 SE 897; Myers v. Ham, 20 S. C. 522; Manning v. Dove, 44 S. C. L. 395. 33. Shindler v. Givens, 63 Mo. 394. 34. See statutory provisions. 35. Union Stock Yards Nat. Bank v. Smout, 62 Nebr. 227, 87 NW 14; Chamberlain Banking House Co. v. Zutavern, 59 Nebr. 623, 81 NW 858; Quigley v. McEvony, 41 Nebr. 73, 59 NW 767.

36. State v. Mason, 15 Mo. A. 141. 37. Crosby v. Anderson, 49 Utah 167. 162 P 75.

[blocks in formation]

47

46

Chancery courts. In some jurisdictions the statutes vest chancery courts with jurisdiction in respect of setting apart and alloting of homestead. 40 As incidental relief. It has been held where a court has acquired jurisdiction of a cause, it may allot homestead where such allotment is a necessary incident to the proper exercise of jurisdiction already acquired on other grounds.* But it is also held that, where the court has jurisdiction to set apart the homestead as such necessary incident, it cannot exercise the power to allot homestead unless it has acquired jurisdiction on other grounds.48 [§ 429] c. Selection, Appointment, and Competency of Appraisers.1 The officer selecting appraisers represents all parties in interest and need not consult the debtor respecting the appointment50 although he may designate persons agreed upon by both parties to the suit.51 Sometimes the appraisal and allotment is made by a commissioner52 or commissioners 53 appointed by the court.

49

Competency and qualification. The commissioners or appraisers must stand neutral between the parties in interest,5* and this is so although the statute

41. See Executions § 134. 42. Cox v. Boyden, 153 N. C. 522, 69 SE 504. 43. Jurisdiction of proceedings Enforcement and protection of homestead rights generally see infra § 444.

for:

Setting apart and protection of rights
of surviving spouse see infra § 529.
44. See statutory provisions.
45. See cases infra this note.
[a] In South Carolina (1) the
statute prescribes the mode and pro-
vides the necessary machinery to that
end, suited to all cases where the
right has attached, whether it is in
a debtor himself, with mesne or final
process impending or otherwise, or
whether it is in his widow and chil-
dren. Where a right is provided by
statute, to be enforced in a prescribed
mode, no other can be resorted to.
The mode prescribed is exclusive.
Myers V. Ham, 20 S. C. 522; Ex
p. Lewie, 17 S. C. 153; Howze v.
Howze, 2 S. C. 229. (2) The au-
thority is vested in the clerk of
the court and not in the court.
Gray V. Putnam, 51 S. C. 97,
28 SE 149; Ex p. Worley, 49 S. C. 41,
26 SE 949; People's Bank v. Brice,
47 S. C. 134. 24 SE 1038; Ex p. Brown,
37 S. C. 181, 15 SE 926; Bridges v.
Howell, 27 S. C. 425, 3 SE 790; Myers
v. Ham, 20 S. C. 522; Scruggs v. Foot,
19 S. C. 274; Ex p. Lewie, 17 S. C.
153. (3) But the court may deter-
mine if the applicant has a right
to an exemption, after the clerk has
exercised his statutory authority in
granting a petition for an appraisal
of the premises. Ex p. Brown, su-

[a] Thus in an action in the nature of a creditor's bill to reach the equity in a homestead above thepra. statutory exemption, it was not necessary to ascertain the value of the homestead by appraisers since the statute relating to appraisers of homestead provides for appraisers only in case an execution is levied on a homestead. Crosby v. Anderson, 49 Utah 167, 162 P 75.

38. France v. Hohnbaum, 73 Nebr. 70, 102 NW 75, 104 NW 865. 39. See supra §§ 419, 420. 40. McKeithen v. Blue, 142 N. C. 360, 55 SE 285.

[b] In Texas it was held that a county court could not try title to land, and that a homestead right was a title to land within the meaning of this inhibition. C. B. Carter Lumber Co. v. De Grazier, 3 Tex. A. Civ. Cas. § 176; Cross v. Peterson, 1 Tex. A. Civ. Cas. § 1061.

46. Jaffrey v. McGough, 88 Ala. 648, 7 S 333; McMichael v. Grady, 34 Fla. 219, 15 S 765; Hotchkiss V. Brooks, 93 Ill. 386; Comstock v. Comstock, 27 Mich. 97.

47. Galyon v. Gilmore, 93 Tenn. 671, 28 SW 301; Burnett v. Austin, 10 Lea (Tenn.) 564; Arnold v. Jones, 9 Lea (Tenn.) 545.

48. Galyon v. Gilmore, 93 Tenn. 671, 28 SW 301; Rhea v. Meredith, 6 Lea (Tenn.) 605.

"The court in which a case affecting the homestead is pending may exercise such power only as the parties before it might, in the absence of judicial proceedings, exercise over the subject-matter." Spitley v. Frost, 15 Fed. 299, 5 McCrary 43 [rev on other grounds 121 U. S. 552, 7 SCt 1129, 30 L. ed. 1010].

281.

49. Appraisal before levy in Georgia see supra 78. 50. Cummings v. Burleson, 78 Ill. 51. Dillman v. Will County Nat. Bank, 139 Ill. 269, 28 NE 946 [aff 36 Ill. A. 272]. 52. Quinn v. Peo., 146 Ill. 275, 34 NE 148.

53. Riley v. Smith, 5 SW 869, 9 KyL 615; Pittsfield Bank v. Howk, 4 Allen (Mass.) 347.

54. Ill-Bedford v. Harrison, 160 Ill. A. 207; Buck v. Mitchell, 69 Ill. A. 219.

N. H.-Kelley v. Barker, 63 N. H. 70. N. C.-Chambers v. Penland, 74 N. C. 340. S. C.-Nance v. Hill, 26 S. C. 227, 1 SE 897.

Tenn.-Wilson v. Lowe, 7 Coldw.

153.

[a] A depositor in a bank which sues upon a debt sold by it pending the suit is a competent appraiser of the debtor's land where judgment is rendered for the debt. Kelley v. Barker, 63 N. H. 70.

[b] Return evidence of qualification.-(1) The return of the sheriff [c] A trustee under an assignment is prima facie sufficient evidence of for the benefit of creditors cannot the due qualification of the comappoint appraisers. Jordan v. New-missioners. Nance v. Hill, 26 S. C. some, 126 N. C. 553, 36 SE 154, 78 227, 1 SE 897. (2) But it is not AmSR 644. conclusive as against the affidavit of

57

does not specifically so provide.55 Close kinship to either of the parties disqualifies an appraiser, 56 but remote kinship does not have this effect." They should generally be freeholders, 58 or householders,59 and familiar with the property, and, if it is farming land, with agriculture." They must be duly sworn by any officer competent to administer oaths, although not necessarily by the one who summons them.62

Remedy for incompetency. In case the appointee is incompetent or disqualified, either party may move the court to vacate the appointment.63

In case of vacancy caused by the absence of one of the appraisers, the court may appoint another without further notice.64

66

[430] d. Powers, Duties, and Determination of Appraisers. The extent of the authority of the commissioners or appraisers is to set off the homestead.65 It is not within their province to attempt to determine the rights of the respective parties who may be interested in the property, or the proceeds thereof, these matters being for the determination of the court.7 The fact that the appraisers failed to proceed according to the statutes does not deprive claimant of his right to homestead as this right is safeguarded by the constitution and statutes enacted thereunder;68 after a futile attempt to set off homestead, this right is as inviolate as it was before. 69

Extent of homestead." Only so much land should be set apart as exempt as is permitted by law71 whether there is opposition or not.72 If the owner surveys and selects a larger quantity than he should, and refuses to designate what portion is to be treated as excess, the court, by its proper officers, may cut off such excess from whatever part they see fit.73

Value of homestead. The value of the premises

76

in which the homestead is claimed, when material," should be determined with exactness,75 although it has been said that the appraisers should not hold to a fractional nicety in estimating the value of the property." The value of buildings erected on the land should be considered." According to some decisions encumbrances existing against the land when the debt in question is reduced to judgment should be taken into account by the appraisers in setting apart the homestead,78 and if this is not done the remedy of an execution debtor is to proceed by motion in the same cause to have it done; but the view has been taken that this is solely a function of the court,80 and that if the appraisers considered mortgages on the property in their appraisal, the proceeding is void.81 The value of the homestead is to be estimated at the time of making the claim which must be at the time of or after a levy and before sale.

82

79

If the homestead claimant is a life tenant of the whole tract, an amount may be set off to which the fee-simple title is equal to the statutory exemption. 83

Only out of lands levied on. In setting out the homestead it should be carved only from the tract levied upon, 84 and if it is taken from different parcels of farming land, the several tracts should be thrown together if practicable.85

Encumbered or unencumbered land. The assignment may be of unencumbered rather than encumbered land, although the latter contains the debtor's dwelling house."

86

Subjecting to easement. The homestead may be subjected to a perpetual easement for passage to and from the residue of the tract, if this can be done without injury to the homestead right.88

Survey and plat. In some states a survey and plat are necessary steps in the allotment under

the debtor to the contrary. Mooney | tion brought for that purpose. Mc-emption is subsequently disputed), v. Moriarty, 36 Ill. A. 175. Crackin v. Weitzell, 70 Iowa 723, 29 79. Meyer v. Nickerson, 101 Mo. 55. Bedford v. Harrison, 160 Ill. NW 624. 184, 14 SW 188. A. 207. 56. Wilson V. Lowe, 7 Coldw. (Tenn.) 153.

57. Chambers v. Penland, 74 N. C. 340. 58. Wiseman v. Parker, 73 Miss. 378, 19 S 102; Wilson v. Lowe, 7 Coldw. (Tenn.) 153.

68. Nixon Grocery Co. v. Spann, 80. Nixon Grocery Co. v. Spann, 108 S. C. 329, 94 SE 531. See Mar- 108 S. C. 329, 94 SE 531. shall v. Vanmeter. 3 KyL 619, 11 Ky. Op. 491 (recognizing rule). 69. Nixon Grocery Co. v. Spann, 108 S. C. 329, 94 SE 531.

70. See supra § 10, 94-96.

71.

72. 73.

81. Nixon Grocery Co. v. Spann, 108 S. C. 329, 94 SE 531 (when the appraisers undertake to set off the homestead in the excess of the value of the land above the mortgage debts. In re Ligget, 117 Cal. 352, 49 they exceed their authority as ministerial officers and assume the exercise of a judicial function, since they Robb v. Robb, (Tex. Civ. A.) cannot determine the validity of the mortgages nor the amount due on them without summoning witnesses and taking testimony, a judicial investigation which they have no jurisdiction to make).

In re Ligget, supra.

[a] Persons competent as jurors. P 211, 59 AmSR 190. -In North Carolina the appraisal may be made by persons competent to serve as jurors, although they are not freeholders. Hale v. Whitehead, 115 N. C. 28, 20 SE 166.

59. Newman V. Willitts, 78 Ill. 397; Mooney v. Moriarty, 36 Ill. A. 175.

60. Wiseman v. Parker, 73 378. 19 S 102.

Miss.

61. Coble v. Thom, 72 N. C. 121; Smith v. Hunt, 68 N. C. 482. 62. Dillman v. Will County Nat. Bank, 139 Ill. 269, 28 NE 946 [aff 36 111. A. 272], 138 Ill. 282, 27 NE 1090 [aff 38 I11. A. 566].

63. Harrier v. Bassford, 145 Cal. 529, 78 P 1038.

64. Harrier v. Bassford, supra. 65. See cases infra this section. 66. McCrackin v. Weitzell, 70 Iowa 723, 29 NW 624; Aiken v. Gardner, 107 N. C. 236, 12 SE 250; Ray v. Thornton, 95 N. C. 571.

67. McCrackin V. Weitzell, 70 Iowa 723, 29 NW 624.

62 SW 125.

74. 75.

See supra §§ 10, 97-102.
Gary v. Eastabrook, 6 Cal. 457;
and cases infra notes 76-82.

76. Pomroy v. Bunting, 42 Ala.
250. See Riley v. Smith, 5 SW 869,
9 KyL 615 (recognizing rule).
[a] Average value of land.-The
commissioners may set apart the
number of acres which coincide with
the average value of the land as
fixed by witnesses. Riley v. Smith,
5 SW 869, 9 KyL 615.

82. Herschfeldt v. George, 6 Mich. 456.

[a] Reason for rule.-"To hold that such exemption can be claimed at any other time, or in any other manner, than such as is contemplated by the statute, would open the door to the most monstrous frauds. If the claim can be made months and years before a levy, and

77. Ray v. Thornton, 95 N. C. 571. [a] Value of buildings.-In appraising the value of the property if the value at the time of the claim for the purpose of exempting the homestead, the appraisers must take into consideration the value of the buildings erected upon the land, as the homesteader is not entitled to the thousand dollar exemption in the land only, but the amount must be carved out of the land and the buildings thereon. Ray v. Thornton, 95 N. C. 571.

is to determine its value at the time of the levy, thousands of dollars may thereby, through rise in value, and the squandering of money in improvements and ornaments, be sealed up beyond the reach of creditors. The law never intended such a result." Herschfeldt v. George, 6 Mich. 456.

468.

83. Kerns v. Linden, 23 Oh. Cir. Ct. 162. 84. Shacklett v. Scott, 23 Mo. A. 322. 85. Burns v. Ho man, 3 KyL 696. Flora v. Ro! bins, 93 N. C. 38. Flora v. Robins, 93 N. C. 38. Schaeffer v. Beldsmeier, 9 Mo.

[a] Thus a statute providing for the determination of the boundaries of a homestead is inapplicable to 78. Houf v. Brown, 171 Mo. 207, levies on land where the sheriff 71 SW 125; Meyer v. Nickerson, 101 claims that no part of the land is Mo. 184, 14 SW 188; Murphy v. Wilsubject to the exemption. The quesson, 84 Mo. A. 178 (holding, however, tion whether a debtor has any home- that the failure so to do does not stead rights at all is one to be de- deprive the debtor of his right to 88. termined by a court in a proper ac-have them considered when his ex- A. 438.

86. 87.

some circumstances.89

92

94

90

Description of homestead; metes and bounds. It has been held that any description of the land set apart is sufficient which will enable it to be located," even though the boundaries are not given as accurately as possible.91 However, at least this much is necessary.' An assignment of homestead by the sheriff is void for uncertainty that does not describe the homestead by metes and bounds or give any description by which it can be defined.93 Under some homestead provisions it has been held to be the duty of the appraisers, when possible and feasible,95 to set off the homestead by metes and bounds,96 but when not feasible or possible to appraise the lands and make report of their appraisal thereof together with their finding that the homestead could not be set off without injury to the remainder in order that the provision that where the premises cannot be divided so as to set off the homestead without injury to the remainder, the debtor may pay the excess above the statutory amount and keep the property.97 However, a statute which requires the homestead to be fixed by metes and bounds applies only to lands held in severalty which are capable of such a description,98 and if the land cannot be described by metes and bounds, any description which is sufficient to identify it will suffice.99

[§ 431] e. Report and Proceedings Thereon(1) In General. The appraisers, or a majority of them,1 may be required to report their action to the court, or other statutory authority, who thereupon confirms it or sets it aside.2 In some states the report should set apart the personal propery of the debtor which is exempt."

3

To what court. Under the statutory provisions

89. Lutz v. Ristine, 136 Iowa 684, 112 NW 818; White v. Rowley, 46 Iowa 680.

[a] Where a judgment debtor has failed to select and plat his homestead, it is the duty of the officer holding an execution to cause the same to be done before selling any portion of the premises of which the homestead is a part, and hence a failure to do so will render the sale invalid even though the government subdivision of forty acres on which the house is situated is not sold. White v. Rowley, 46 Iowa 680.

[b] The officer is relieved from the duty of platting and recording the plat before sale if the husband and wife serve a written notice on him after levy, describing therein the homestead premises. Ackerman V. Hendricks, 117 Iowa 106, 90 NW 522; Smith v. De Kock, 81 Iowa 535, 46 NW 1056. See Piedmont Nat. Bldg., etc.. Assoc. v. Bryant, 115 Ga. 417, 41 SE 661 (apparently recognizing rule).

[c] A survey and plat are not necessary where the land claimed as exempt is not urban and contains less than the quantity allowed by law. Piedmont Nat. Bldg., etc.. Assoc. v. Bryant, 115 Ga. 417, 41 SE 661; Connally v. Hardwick, 61 Ga. 501.

90. Ray v. Thornton, 95 N. C. 571. [a] Thus in an allotment of homestead, a description of land as "first tract, valued at thirty-six dollars, known as the Fisher land," is sufficient. Crouch v. Crouch, 160 N. C. SE 482.

447, 76

91.

92.

379.

93.

94.

Ray v. Thornton, 95 N. C. 571.
Littlejohn v. Egerton, 77 N. C.

Littlejohn v. Egerton, supra. See statutory provisions. 95. See note 96. cases infra 96. Gheen v. Summey, 80 N. C. 187; Nixon Grocery Co. v. Spann, 108 S. C. 329, 94 SE 531. See Barney V. Leeds, 51 N. H. 253 (where creditor causes the estate of his debtor, of greater value than the

a

the report should be made to the court that appointed them or the court from which the process issued. Where a judgment obtained in one county was docketed in another county, a report to the court in which the judgment was docketed was sufficient.5

Recording report. Statutory provisions for recording the report are directory only, when the statute also provides for filing the report with the judgment roll in the action brought against the debtor, in which action the homestead is claimed and secured."

Second report and allotment. When a homestead has been alloted, the report has been registered, and the time for filing exceptions has past, a second report and allotment must be treated as void, although the second report may be under a judgment docketed since the first report.8

7

[§ 432] (2) Formal Defects and Irregularities." It is not a fatal irregularity that the attorney of the creditor wrote the summons to appraisers and their report. 10 Even if an appraisement is defective it will not invalidate a prior levy.11 The omission of appraisers to assert in their report the date of allotment is not fatal.12

Irregularities may be waived by long acquiescence in the appraisement and allotment,13 or by failure to question the competency of appraisers before they enter upon their duties; 14 but no such result follows from a creditor's acceptance of proceeds from the sale of all his debtor's property, excluding the homestead;15 nor from a purchaser at the execution sale receiving a sheriff's, deed in which the officer describes the land as the debtor's home

S. C.-Carolina Sav. Bank V. Evans, 28 S. C. 521, 6 SE 321. Tenn.-Shires v. Corlett, 104 Tenn. 44, 56 SW 1022 (recognizing rule). 3. Bleckley v. Shirley, 58 S. C. 52, 36 SE 503.

homestead right of the later therein, | 447, 76 SE 482. to be set off on execution subject to the homestead right, and the debtor fails to have his homestead set off to him, upon petition by the creditor for partition, the committee appointed to make the partition should assign to the debtor by metes and 4. See cases supra this section; bounds so much of the estate as they and statutory provisions. find to have been the statutory value 5. Crouch v. Crouch, 160 N. C. 447, of the homestead exemption on the 76 SE 482. date of the completion of the levy, 6. Crouch v. Crouch, 160 N. C. and not at the time when the parti-447, 76 SE 482; Bevan v. Ellis, 121 tion is made). N. C. 224, 28 SE 471.

[a] The object of setting out the homestead by metes and bounds is not to vest the right but merely to find the quantum so as to enable the sheriff to ascertain the excess, if any, and to levy on it and sell it. Gheen v. Summey, 80 N. C. 187; Littlejohn v. Egerton, 77 N. C. 379; Lambert v. Kinnery, 74 N. C. 348.

97. Nixon Grocery Co. v. Spann, 108 S. C. 329, 94 SE 531; and cases supra note 96.

98. Kelly v. McLeod, 165 N. C. 382, 81 SE 455; Ray v. Thornton, 95 N. C. 571.

99. Kelly v. McLeod, 165 N. C. 382, 81 SE 455; Ray v. Thornton, 95 N. C. 571.

1. Bleckley v. Shirley, 58 S. C. 52, 36 SE 503; Carolina Sav. Bank v. Evans, 28 S. C. 521, 6 SE 321. 2. Ala. Turnipseed v. Fitzpatrick, 75 Ala. 297.

Cal.-Harrier v. Bassford, 145 Cal. 529. 78 P 1038.

Ill-Dillman v. Will County Nat.
Bank, 139 III. 169, 28 NE 946.
Ky-Hogan v. Hogan, 44 SW 953,
19 KyL 1960.
Mass.-Warren v. Greenwood, 121
Mass. 112.

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Mich.-Mills v. Hobbs, 76 Mich. 122. 42 NW 1084. Miss. Ferguson v. Ferguson, 5 S 514.

Mo.-Childers v. Pickenpaugh, 219 Mo. 455, 118 SW 478.

N. H.-Doughty v. Little, 61 N. H. 365.

N. C.-Crouch v. Crouch, 160 N. C.

7. Thornton v. Vanstory, 107 N. C. 331, 12 SE 203.

8. Thornton v. Vanstory, 107 N. C. 331, 12 SE 203.

9. Material defects see infra § 433.

10. Dillman v. Will County Nat. Bank, 139 Ill. 269, 28 NE 946 [aff 36 Ill. A. 272]. 11. Straat 115.

v. Rinkle, 16 Mo. A. 12. Beavans v. Goodrich, 98 N. C. 217, 3 SE 516.

13. Oates v. Munday, 127 N. C. 439, 37 SE 457; Cobb v. Halyburton, 92 N. C. 652; Trimmier v. Winsmith, 41 S. C. 109, 19 SE 283. See Shires v. Corlett, 104 Tenn. 44, 56 SW 1022 (where, on foreclosure of a trust deed, all parties acquiesce in an assignment of homestead to the grantor, the assignment will not be disturbed, although irregular and excessive).

[a] Thus, where both the debtor and the creditor have acquiesced for some thirty years in the allotment of a homestead to the debtor in proceedings to enforce a judgment, it is too late for the debtor or his personal representatives or his heir to dispute the fact of the allotment on the ground that the judgment was not docketed in the county. Cox v. Boyden, 153 N. C. 522, 69 SE 504. infra

Estoppel by failure to object see 435.

14. Burton v. Spiers, 87 N. C. 87. 15. Charles v. Charles, 13 S. C.

stead. 18 [§ 433] (3) Approval, Setting Aside, and Reappraisal-(a) In General. Either party may in a proper case17 apply by motion 18 or otherwise as provided by law19 to have the report set aside and a new appraisement and allotment made.20 A report and allotment may be set aside and a reappraisement ordered by the court for good cause; 21 and it has been said that this may be done any number of times in analogy to the granting of new trials.22 It has been held that good cause is shown where it appears that the appraisal was made by persons not having the qualifications to act fairly, 23 that the appraisers set off two tracts of the statutory size instead of one, or that the allotment is void for uncertainty.25 The application must be made in strict conformity with the requirements of the statute.20

24

Seasonable application. The application must be filed within the time prescribed by statute,27 or within a reasonable time, if no time is fixed by statute.28 If the debtor objects to the value stated in the report he should except at the time29 and cannot afterward show on a claim for further exemption that the property assigned was not of the value stated in the return.30

Sufficiency of allegations; exceptions. The application must allege facts sufficient to bring the applicant within the scope of the statute permitting it.31 Exceptions to the report of appraisers may be filed in an action wherein a judgment has been rendered against the debtor by a creditor who has a suit then pending.32 Exceptions must set out the

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See statutory provisions. [a] In North Carolina by recordari or certiorari see Hartman v. Spiers, 94 N. C. 150.

[b] In Tennessee proceedings of commissioners appointed to set apart a homestead on execution may be reviewed by the circuit court on certiorari, and in case they have exceeded their jurisdiction, or any of them are incompetent, the action may be quashed on motion in the circuit court. Wilson V. Lowe, Coldw. 153.

facts on which they are based.38

Ordinarily ex

Filing and notice of exceptions. ceptions must be filed,34 personal service on the adverse party being insufficient.35 If a dissatisfied party has filed exceptions and the same have been placed upon the court calendar a reasonable time before the commencement of the next term, no notice of such filing need be given to the adversary. 36 Notice of trial. It has been held that the filing of exceptions to the report will constitute sufficient notice of trial.3 37

[§ 4332] (b) Hearing on Objections. As the duty of appraisers is confined to determining value and alloting homestead bounds, 38 these are the only questions presented to the court,39 and the equities of parties will not be adjudicated by it.10 The court will not ordinarily disturb the sworn report of commissioners in the absence of some element of fraud, or mistake on their part, 12 or some substantial defect in the proceedings.43 The fact that the homestead might have been allotted so that it would be more convenient for the claimant constitutes no ground for setting aside the report.**

41

42

Increase or decrease in value. While in some jurisdictions an increase or decrease in value of the property assigned as a homestead may constitute ground for setting aside the appraisement and directing a reallotment," 45 the weight of authority is to the effect that no reallotment of homestead is allowable where no fraud or want of jurisdiction appears and there is no specific statutory provision sanctioning it, even though the premises have, since the original allotment, increased in value above the

25. Coble v. Thom, 72 N. C. 121 (an allotment in the following language: "And the remainder of the homestead gives him an interest of one hundred dollars in his half of the mill").

26. Hartman v. Spiers, 94 N. C. 150; Heptinstall v. Perry, 76 N. C. 190.

27. See statutory provisions. [a] In North Carolina, it was held that an application for reassessment and allotment of homestead should be made before the sale of the excess by the sheriff. Welch v. Welch, 101 N. C. 565, 8 SE 156; Hartman v. Spiers, 94 N. C. 150; Heptinstall v. Perry, 76 N. C. 190.

36. Bleckley v. Shirley, 58 S. C. 52, 36 SE 503 (filing fourteen days before beginning of term).

37. Bleckley v. Shirley, 58 S. C. 52, 36 SE 503; Ex p. Ransey, 54 S. C. 517, 32 SE 522; Ex. p. Ellis, 20 S. C. 344.

38. See supra § 430. See also Thornton v. Vanstory, 107 N. C. 331, 12 SE 203; Gulley v. Cole, 102 N. C. 333, 9 SE 196.

39. Aiken v. Gardner, 107 N. C. 236, 12 SE 250; Ray v. Thornton, 95 N. C. 571..

40. See cases supra note 39. 41. Cal. In re Walkerly, 81 Cal. 579, 22 P 888.

Il-Kenley v. Bryan, 110 Ill. 652. Ky. Tully v. Trimble, 175 Ky. 30, 193 SW 659; Kidd v. Stephens, 174 Ky. 381, 192 SW 44. Mich.-Mills v. Hobbs, 76 Mich.

[b] In South Carolina the statute enables a dissatisfied debtor to secure a trial de novo of the mat7ter of appraisement by filing exceptions to the commissioner's report | 122. 42 NW 1084. within thirty days after its return. N. H.-Doughty v. Little, 61 N. H. Bleckley v. Shirley, 58 S. C. 52, 36365. SE 503. N. C.-Gulley v. Cole, 102 N. C. 28. Wood v. Corley, 43 SW 235,333, 9 SE 196; Gully v. Cole, 96 N. 19 KyL 1307 (creditors standing by C. 447, 1 SE 520; Chambers v. Pen-after allotment of homestead for land, 74 N. C. 341. over three years without raising any S. C.-Simonds v. Haithcock, 24 S. objections thereto). C. 207.

Certiorari generally see Certiorari 11 C. J. p 80 et seq. 20. Estoppel by failure to ject see infra § 435. 21.

obCal.-Harrier v. Bassford, 145 Cal. 529, 75 P 1038.

Il-Bedford v. Harrison, 160 III. A. 207.

Ky.-Wood v. Corley, 43 SW 235, 19 KyL 1307.

Miss. Ferguson v. Ferguson, 5 S 514.

Mo.-Childers v. Pickenpaugh, 219 Mo. 455, 118 SW 478.

N. C.-Shoaf v. Frost, 121 N. C. 256, 28 SE 412; Oakley v. Van Noppen, 96 N. C. 247. 2 SE 663; Chambers v. Penland. 74 N. C. 340.

S. C.-Carolina Sav. Bank V. Evans, 28 S. C. 521, 6 SE 321; Kerchner v. Singletary, 15 S. C. 535; Bull v. Rowe, 13 S. C. 355.

22. Kerchner v. Singletary, 15 S. C. 535. 23. Harrier v. Bassford, 145 Cal. 529, 75 P 1038; Bedford v. Harrison, 160 I. A. 207; Ferguson v. Ferguson, (Miss.) 5 S 514; Coble v. Thom, 72 N. C. 121; Bleckley v. Shirley, 58 S. C. 52, 36 SE 503.

24. Ferguson v. Ferguson, (Miss.) 5 S 514.

29. Globe Phosphate Co. v. Pinson. 52 S. C. 185, 29 SE 549.

30. Globe Phosphate Co. v. Pinson, 52 S. C. 185, 29 SE 549. 31. Fenwick v. Wheatley, 23 Mo. A. 641.

32. In re Wylie, 63 S. C. 214, 41 SE 320.

33. Bleckley v. Shirley, 58 S. C. 52, 36 SE 503.

34. See statutory provisions; and cases infra note 35.

[a] "The object in requiring the filing of the exceptions is not merely to give the judgment debtor or the judgment creditors notice, but to afford the clerk the means to ascertain his duty in reference to recording such return, and in reference to placing_the cause on calendar for trial." Exp. Ransey, 54 S. C. 517, 519, 32 SE 522.

35. Ex p. Ransey, 54 S. C. 517, 32 SE 522; Ex p. Ellis, 20 S. C. 344.

Tenn.-Hardy v. Lane, 6 Lea 379. Tex.--McLane v. Paschal, 74 Tex. 20, 11 SW 837.

[a] Limitation as to time.Where the statute fixes a limit of time within which relief against fraud shall be sought in the allotment of the homestead, such relief will not be available after the expiration of that period. Gowdy v. Johnson, 47 SW 624, 20 KyL 997, 44 LRA 400.

42. Tully v. Trimble, 175 Ky. 30. 193 SW 659.

43. Smith v. Hunt, 68 N. C. 482. 48244. Ray V. Thornton, 95 N.

571.

45. Childers v. Pickenpaugh, 219 Mo. 455, 118 SW 478; Beckner v. Rule. 91 Mo. 62, 3 SW 490. SeeKirchner v. Singletary, 15 S. C. 535 (under a statute permitting a reassignment "upon good cause shown."there may be a reallotment for in

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