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limit fixed by the Homestead Act.46 The report of appraisers is not conclusive on the question of value as against a direct proceeding for a revaluation;* even in jurisdictions where such proceeding must be based upon fraud, corruption, or a material and prejudicial irregularity on the part of the appraisers," rather than upon their mistaken judgment of value which in itself is not sufficient ground to disturb an allotment.* But it has been held that the debtor cannot, after acceptance of the homestead, have a reallotment upon the ground that the premises have depreciated since the final appraisement."

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Evidence. Under some statutes1 questions arising on exceptions must be tried by the court on evidence adduced and testimony taken in open court.52 One who excepts to the report of commissioners setting off to her as homestead only part of a tract claimed on the ground that the value of the entire tract did not exceed the statutory exemption may give evidence as to the value.55 The court in passing upon a report need not hear evidence showing an unwise division of the land, where the facts sought to be proved would not warrant a recommittal of the report.'

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crease of value).

46. Cal. In re Walkerly, 81_Cal. 579, 22 P 888; In re Fowler, 20 P 81. Il-Kenley v. Bryan, 110 Ill. 652 (doubting the doctrine previously announced); Haworth v. Travis, 67 Ill. 301. Contra Mooney v. Moriarty, 36 Ill. A. 175.

Ky-Gowdy v. Johnson, 104 Ky. 648. 47 SW 624, 20 KyL 997, 44 LRA 400; Turner v. Turner, 89 Ky. 583, 13 SW 6, 11 KyL 767.

Mich.-Mills v. Hobbs, 76 Mich. 122, 2 NW 1084.

(recognizing rule).

peal or otherwise is allowed from the approval or disapproval of a report of appraisers, the rules governing review in courts of last resort are controlling.62 All presumptions are indulged in favor of the regularity of the appraisers' appointment and qualifications.63 Where proof of value of the premises is conflicting, the judgment of the lower court refusing to interfere with the appraisers' valuation will not be disturbed. Nor will the appellate court consider an exception to the report in the absence of facts in the record supporting the objection.65

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,69

[§ 435] f. Operation and Effect66-(1) In General. Until the conveyance of the homestead is complete it is not too late for another judgment creditor to object and require a reassignment.67 Setting apart the homestead does not of itself discharge the property from liability for debts where a return and record of the allotment proceedings are required;68 nor does the allotment, when completed, determine title or create the exemption;" it is only a method of designating the homestead and ascertaining the excess.70 A purchaser at a sheriff's sale is bound by a prior assignment where he buys subject thereto.71 Where a mortgaged homestead was levied on and appraised, necessarily subject to prior recorded encumbrances, it would be inferred that the mortgages were considered both on the appraisal and at the sale.72

Estoppel by failure to object. The debtor, failing to except to, or appeal from, the assignment, is estopped from questioning it;73 nor can a creditor levy an execution thereafter against the land or demand a reassignment of homestead, unless the allotment proceedings were under a void statute,75 or the conditions existing when they were had have since materially changed."

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[§ 436] (2) Collateral Attack. As a general rule, neither the debtor nor the creditor can attack the appraisal and allotment by collateral proceedings, but should address objections directly and in

56. Childers v. Pickenpaugh, 219 Mo. 455, 118 SW 478; Culler v. Crim, 52 S. C. 574, 30 SE 635.

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

58. See infra text and note 60. 59. Childers v. Pickenpaugh, 219 Mo. 455, 118 SW 478.

60.

61.

62. ror 3 63.

N. C.-Thornton v. Vanstory, 1071 SE N. C. 331, 12 SE 203; Gully v. Cole, 96 N. C. 447, 1 SE 520.

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

47. Schaeffer v. Beldsmeier, 9 Mo. A. 438. 48. Pomroy v. Bunting. 42 Ala. 250; Bugk v. Mitchell, 69 Ill. A. 219; Louden v. Yager, 91 Ky. 57, 14 SW 966, 12 KyL 678; Simonds v. Haithcock, 24 S. C. 207.

49. Buck v. Mitchell, 69 Ill. A. 219; Gowdy v. Johnson, 104 Ky. 648, 47 SW 624, 20 KyL 997, 44 LRA 400; Simonds v. Haithcock, 24 S. C. 207. Shoaf v. Frost, 123 N. C. 343,

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Ex p. Ellis, 20 S. C. 344.
See statutory provisions.
See generally Appeal and Er-
C. J. p 256 et seq.

69. Gheen v. Summey, 80 N. C. 187; Lambert v. Kinnery, 74 N. 348. See Block v. Bragg. 68 Ala. 291; 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; Littlejohn v. Egerton, 77 N. C. 379; Ketchin v. McCarley, 26 S. C. 1, 11 SE 1099, 4 AmSR 674 (all inferentially recognizing rule).

70. See cases supra note 69. 71. McKeown v. Carroll, 5 S. C. 72. Lieblien v. Hansen, 178 Mich. 11, 144 NW 496.

Nance v. Hill, 26 S. C. 227, 75.
897.

64. Ruggles v. Robinson, 57 SW
619, 22 KyL 437.
65.
Bleckley v. Shirley, 58 S. C.
52, 36 SE 503.
66.

Encumbered or unencumbered property see supra § 430.

Spivey, 103 N. C. 66, 9 SE 319; Welch
v. Welch, 101 N. C. 565, 8 SE 156;
Burton v. Spiers, 87 N. C. 87; Spoon
v. Reid, 78 N. C. 244.
Waiver see supra § 432.
74.
Ga. 452.

73. Childers v. Pickenpaugh, 219 Operation and effect of allot-Mo. 455, 118 SW 478; Whitehead v. ment before levy in Georgia see supra § 79. 67. Ex p. Lummus Cotton Gin Co., (S. C.) 106 SE 861. held [a] Assignment not complete.-Under Civ. Code (1912) 3713, relative to setting off an execution debtor's homestead when property is worth more than one thousand dollars and cannot be divided without injury,

where the excess
over one thousand dollars was not
paid within sixty days as required
by that section, but with the per-
mission of the execution creditor
was paid from time to time until
paid in full, the assignment of the
homestead was not complete.
Ex P.
Lummus Cotton Gin Co., (S. C.) 106
SE 861.

68. Choice v. Charles, 7 S. C. 171;
Ryan v. Pettigrew, 7 S. C. 146.

Ga.-Patterson v. Wallace, 47

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Ky.-Caldwell V. 678, 17 KyL 781. N. C.-Gully v. Cole, 102 N. C. 333, 9 SE 196; Gully v. Cole, 96 N. C. 447, 1 SE 520.

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the same proceeding to the court receiving the re-
port.77
Nevertheless, where the court or body
assigning homestead is without jurisdiction of the
subject matter, the attempted adjudication is void.
and subject to collateral attack;78 and it has been
held that a proceeding by a judgment creditor
against his debtor and his grantee, to whom the
sheriff had allotted a homestead, to have the allot-
ment declared void, and to direct the sheriff to pro-
ceed with a sale of such lots under the execution in
his hands, will not be dismissed on the ground that
plaintiff should have proceeded by a motion in the

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[§ 437] g. Claiming Successive Exemptions. The debtor is not entitled to successive exemptions,80 but he may sometimes make successive claims to different parcels of land in order to secure the full quantum allowed by statute.81

[438] 4. Disposition of Property and Rights of Purchasers-a. In General. Not in all,82 but in many states it has been held that, where the

Change in value see supra § 4332. 77. Cal-Wickersham v. Comerford, 104 Cal. 494, 38 P 101; Hutchinson v. McNally, 23 P 132.

Ky.-Hogan v. Hogan, 44 SW 953, 19 KyL 1960.

Mo.-Childers v. Pickenpaugh, 219 Mo. 455, 118 SW 478; Meyer v. Nickerson, 100 Mo. 599, 13 SW 904; Lallement v. Detert, 96 Mo. 182, 9 SW 568. N. H.-Barney v. Leeds,' 54 N. H. 128.

N. C.-Hughes v. Pritchard, 153 N. C. 23, 68 SE 906; Marshburn v. Lashlie, 122 N. C. 237, 29 SE 371; Formeyduvay v. Rockwell, 117 N. C. 320, 23 SE 488; Whitehead v. Spivey, 103 N. C. 66, 9 SE 319; Welch v. Welch, 101 N. C. 565, 8 SE 156; Burton v. Spiers, 87 N. C. 87.

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value of the premises exceeds the statutory exemp tion limit, the court may order a sale of the entire premises and direct a proper division of the proceeds for the purpose, of segregating the value of the excess from that of the exemption, although it is also recognized that instead of ordering a sale of the premises the debtor may be allowed to retain the premises on proper conditions, but cannot be compelled against his wishes to sell his own interests or to buy that of the creditor.86 The order of sale should specify the portion of lands exempt,87 and if the entire property is sold, the terms of sale should be cash, at least to the amount of the homestead exemption.88 If a debtor succeeds in securing an allotment of homestead to which he is not entitled, it may be levied on and sold.89

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[§ 439] b. Sale of Property Subject to Homestead Right.90 Under some statutes no sale of the residence property can be made subject to the homestead right; but under other homestead laws such

80. Whitesides v. Cushenberry, 8 homestead as is of the value of one KyL 590; Richie v. Duke, 70 Miss. 66, 12 S 208; Marshburn v. Lashlie, 122 N. C. 237, 29 SE 371; Oppenheimer v. Howell, 76 Va. 218.

[a] Rule applied. (1) Having received in lieu of a homestead money realized from a forced sale of his residence, he cannot become the purchaser of the latter and afterward claim it as exempt. Whitesides v. Cushenberry, 8 KyL 590. (2) Nor can he, after having certain lands set off to him, sell them and remove to others, and claim the latter as exempt. Richie v. Duke, 70 Miss. 66, 12 S 208. (3) Where a homestead is allotted to a judgment debtor in one tract of land and he files no exceptions thereto, he cannot claim a homestead in other land after a conveyance thereof by him has been set aside as fraudu[a] Reason for rule.-"The very lent. Marshburn v. Lashlie, 122 N. object of appointing the appraisers C. 237, 29 SE 371. (4) If he has to set out the homestead is, that the squandered, or does not account for, exemption may be fixed and located the property set apart for his origbefore a sale. If the execution debt-inal homestead, he cannot found a or objected to the assignment, he claim to a new one by attacking valshould have made his motion to set idity of the deed of his own making, aside the report in the court whence which created the original. Oppenthe execution issued, and that, too, heimer v. Howell, 78 Va. 218. before a deed was executed. cannot be heard to question the report in this collateral proceeding." Lallement v. Detert, 96 Mo. 182, 184, 9 SW 568.

S. C.-Culler v. Crim, 52 S. C. 574, 30 SE 635; Globe Phosphate Co. v. Pinson, 52 S. C. 185, 29 SE 549.

He

[b] Rule applied.—(1) The report of the appraisers in laying off a homestead cannot be collaterally attacked in an independent action to ascertain the boundaries, upon the ground that they did not sign the report in the presence of the sheriff. This is an irregularity which at most can only render the report voidable, and the remedy is by motion in the original proceedings to set it aside, after it has been filed in the superior court clerk's office. Hughes v. Pritchard, 153 N. C. 23, 24. 68 SE 906. (2) An original petition to vacate a judgment allotting homestead does not lie. An appeal should be taken directly in the original suit. Hogan v. Hogan. 44 SW 953, 19 KyL 1960. 78. Nixon Grocery Co. v. Spann, 108 S. C. 329, 94 SE 531.

79. Chadbourn Sash, etc.. Co. v. Parker, 153 N. C. 130, 69 SE 1.

[a] Reason assigned is that the proceeding is not to call into question the allotment for erroneous valuation or irregularities but to have it declared null and void because the lot was not "owned and occupied" by defendant in the execution and because defendant grantee was not entitled to have the debtor's homestead allotted to him. Chadbourn Sash, etc., Co. v. Parker, 153 N. C. 130, 69 SE 1.

81. Springer v. Colwell, 116 N. C.
520, 21 SE 301; Parrish v. Frey, 18
Tex. Civ. A. 271, 44 SW 322.
82.

491.

Campbell v. White, 95 N. C.

83.
Ala. Hardy v. Sulzbacher, 62
Ala. 44.
Ga.-Dearing v. Thomas, 25 Ga.

223.

Ill. Mayne v. Drury. 295 Ill. 533, 129 NE 77; Krupp v. Brand, 200 Ill. 403, 65 NE 780; Leupold v. Krause, 95 Ill. 440; Hotchkiss v. Brooks, 93 Ill. 386.

Ky. McAdams v. Mitchell, 10 SW 812, 10 KyL 856 (recognizing rule). N. H.-Barney v. Leeds, 54 N. H. 128.

S. C.-Carolina Sav. Bank v. Evans, 28 S. C. 521, 6 SE 321.

Tex.-Hargadene v. Whitfield, 71 Tex. 482, 9 SW 475; North v. Schern, 15 Tex. 174; Harrison v. Lewisville First Nat. Bank, (Civ. A.) 224 SW 269.

Vt.-Palmer v. Palmer, 50 Vt. 310. [a] Forced sale for purpose of partition.-Such a procedure it is said results in a forced sale of the exempted interest only for the purpose of partition. Harrison v. Lewisville First Nat. Bank, (Tex. Civ. A.) 224 SW 274.

[b] Sale on setting aside fraudulent conveyance.-(1) On setting aside a fraudulent conveyance of property including the homestead by the debtor to his wife the property should be sold and one thousand dollars of the proceeds set apart to the wife. or, if she desires it, so much of the

thousand dollars should be allotted to her, and the remainder sold to pay plaintiff's debt. McAdams V. Mitchell, 10 SW 812, 10 KyL 856. (2) On decreeing a conveyance fraudulent, it is not necessary that the decree should dispose of the homestead rights of the grantor, since the sheriff on enforcement of the execution will deal with the homestead in accordance with the statute. Mitchell v. Sawyer, 115 IIL 650, 5 NE 109. (3) A decree which sets aside a conveyance of the debtor to his wife of a tract of land including their homestead as fraudulent, and directs the sheriff to sell the land under an execution in his hands issued on a judgment previously entered against the debtor is not open to the objection of ordering a sale of the homestead. Ammondson v. Ryan, 111_Ill. 506.

84. Carolina Sav. Bank v. Evans, 28 S. C. 521, 6 SE 321; Simonds v. Haithcock, 26 S. C. 595, 2 SE 616; Palmer v. Palmer, 50 Vt. 310.

[a] Compensation for excess. The owner of such an excessive homestead may, according to the provisions of the statute, prevent the sale thereof by paying to the sheriff the amount by which his homestead exceeds the statutory value, and this provision is constitutional. Carolina Sav. Bank v. Evans, 28 S. C. 521, 6 SE 321; Simonds v. Haithcock, 26 S. C. 595, 2 SE 616.

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Barney v. Leeds, 54 N. H.
Barney v. Leeds, 54 N. H. 128.
Hardy v. Sulzbacher, 62 Ala.

88.
89.

418.

90.

Wood v. Wheeler, 11 Tex. 122.
Bemis v. Driscoll, 101 Mass.

Cross references:
Rights of purchaser see infra § 443.
Sale subject to rights of survivor
see infra §§ 554-555.

91. Ky.-Louisville Fertilizer Co. v. Lorton, 110 SW 870, 33 KyL 676; Schmidt v. Oliges, 6 KyL 297. 12 Ky. Op. 753, 756; Buckner v. Fleming, 5 KyL 607. But see Wing v Hayden, 10 Bush 276; Crush v. Stewart, 7 KyL 825 (both assuming without discussion that such a sale could be made).

Mo.-Ehlers v. Potter, 219 SW 915; Armor v. Lewis, 252 Mo. 568, 161 SW 251; Moore V. Wilkerson, 169 Mo. 334, 68 SW 1035; Macke v. Byrd, 131 Mo. 682, 33 SW 448, 52 AmSR 649 [expressly overr Schaffer V. Beldsmeier, 107 Mo. 314, 17 SW 797]: Versailles Bank V. Guthrey. 127 Mo. 189, 29 SW 1004, 48 AmSR 621; Crisp v. Crisp, 86 Mo. 630. See Simpson v. Scroggins, 182 Mo. 560. 81 SW 1129 (on execution under a judgment against a widow entitled

a sale is allowed, 92 apparently on the theory that the homestead is not an estate in land.93

[§ 440] c. Retaining Property beyond Exemption on Payment of Excess. A debtor is sometimes permitted by statute to pay the excess in value over the statutory limit for exemption and retain the premises, provided that such payment is made within a time fixed by law;95 or, if he continues to occupy the whole of indivisible premises which exceed the homestead exemption, where he pays rent for the excess, ,96 which begins to run from the time an order of sale of the premises was issued.97

In

[§ 441] d. Rights of Purchasers 9-(1) General. A purchaser at a forced or involuntary sale of homestead property may in general raise the same objections to the claim of homestead by the debtor as could the creditor under whose judgment he has acquired title to the premises." He

to homestead in a part of a tract of land, which homestead has not yet been set out, the sheriff cannot sell a specific portion of the tract). Contra Bunn v. Lindsay, 95 Mo. 250, 7 SW 473, 6 AmSR 48; McMichaels v. Reece, 194 Mo. A. 363, 190 SW 51. Compare infra § 554 (where it is shown that the Missouri decisions are also conflicting on the question whether a decedent's estate may be sold for debts subject to the homestead rights of the survivors).

N. C.-Markham v. Hicks, 90 N. C. 204; Mebane v. Layton, 89 N. C. 396; Jones v. Wagoner, 70 N. C. 322; Poe v. Hardie, 65 N. C. 447. But see Wyche v. Wyche, 85 N. C. 96; Barrett V. Richardson, 76 N. Ć. 429 (both of which assume without discussion that such a sale is valid). Wash.-Asher V. Sekofsky, 10 Wash. 379, 38 P 1133.

[a] Reason for this view. "To hold that the fee in the homestead may be subjected to the payment of the debts of its owner, subject to the homestead right, is to deprive him of the right which is expressly conferred by statute, to sell, mortgage or exchange it for another homestead, a contention to which we are unwilling to give Our assent. The homestead includes the fee; they are not two separable and divisible interests." Versailles Bank v. Guthrey, 127 Mo. 189, 196, 29 SW 1004, 48 AmSR 621.

[b] In Georgia (1) during the continuance of the homestead estate no remainder or reversionary interest in the head of the family is subject to levy and sale. Skinner V. Moye, 69 Ga. 476; Jolly v. Lofton, 61 Ga. 154; Haslam v. Campbell, 60 Ga. 650. (2) But, where the sheriff levies on property and defendant in fieri facias files his application for homestead or exemption, which is not granted by the ordinary before the day of sale, it is the duty of the sheriff to sell the property subject to the homestead or exemption if and when granted. Whelchel V. Duckett, 91 Ga. 132, 16 SE 643. (3) Where land was levied on and advertised for sale before an application for a homestead therein, and was sold pending the application and subject thereto, with notice given at the time and place and before the sale. the purchaser became the owner of the fee, and after the expiration of the homestead estate he was entitled to the possession, and the land could not be again sold under another execution against the same defendant. Jackson v. Dubose, 87 Ga. 761, 13 SE 916; Grace v. Kezar, 86 Ga. 697, 12 SE 1067.

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cannot be forced to accept, in full satisfaction of any supposed liability of the debtor, the latter's deed releasing homestead rights in the land purchased;1 nor is he rendered a tenant in common with a debtor to whom upper stories of the family residence are allotted as exempt, where the purchaser buys the lower stories at the execution sale. On a sale under execution of the debtor's interest in lands held by him as a tenant in common, the purchaser takes the remainder of the debtor's share in the land left after allotting to him a homestead in the premises.3

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Ark.-Hughes v. Watt, 26 Ark. 228. Cal-Deffeliz v. Pico, 46 Cal. 289; Villa v. Pico, 41 Cal. 469; Williams V. Young, 17 Cal. 403; Kendall v. Clark, 10 Cal. 17, 70 AmD 691.

Hartman v. Schultz, 101 Ill. 437; Ala.-Allen v. Towns, 90 Ala. 479, Hartwell v. McDonald, 69 Ill. 293. 8 S 101; Andrews v. Melton, 51 Ala. But see Black v. Curran, 14 Wall. 400. (U. S.) 463, 20 L. ed. 849 (apparently reaches the opposite conclusion). 92. Swan v. Stephens, 99 Mass. 7; White v. Rice, 5 Allen 73; Cross v. Weare, 62 N. H. 125; O'Bryan v. Brown, (Tenn. Ch. A.) 48 SW 315; Flatt v. Stadler, 16 Lea (Tenn.) 371; Gilbert v. Cowan, 3 Lea (Tenn.) 203; Lunsford v. Jarrett, 2 Lea (Tenn.) 579; Moore v. Hervey, 2 Tenn. Cas. 154.

[a] Effect of failure to sell subject to homestead right.-In Massachusetts, as a sale of property including the homestead is necessarily subject to the homestead right, whether so declared or not, the omission to make the sale expressly subject to the homestead right does not operate to invalidate the sale. Upon a writ of entry the demandant is the general owner entitled to possession except so far as the tenant's special title may exclude him; until the homestead has been out to the debtor, he and the owner of the residue are in relation to each other tenants in common, and if the tenant seeks to establish an exclusive right to any part of the premises as a homestead it is for him to show that the limited right is sufficient to cover the entire parcel so claimed. Swan v. Stephens, 99 Mass. 7.

set

93. Black v. Curran, 14 Wall. (U. S.) 463, 20 L. ed. 849. See also supra §§ 5, 6.

[a] Where homestead right not an estate in land.-Where under the homestead laws the homestead right is not in an absolute sense an estate in the land, the disposition of the property by judicial sale is left unaffected except so far as necessary to secure a homestead. The fee can be sold under execution subject to the homestead right and the purchaser has the absolute title when the homestead right ceases. Black v. Curran, 14 Wall. (U. S.) 463, 20 L. ed. 849.

94. Carolina Sav. Bank v. Evans, 28 S. C. 521, 6 SE 321; Simonds v. Haithcock, 26 S. C. 595, 2 SE 616. 95. Carolina Sav. Bank v. Evans, 28 S. C. 521, 6 SE 321.

96. Powell v. Hambleton, 6 Oh. Dec. (Reprint) 735. 7 AmLRec 605. 97. Powell v. Hambleton, 6 Oh. (Reprint) 735, 7 AmLRec 605. 98. Under voluntary sale see supra §§_321-331.

Dec.

99. Zorn v. Walker, 43 Ga. 418. 1. Meade v. Finley, 47 Ill. 406. McCormick v. Bishop, 28 Iowa

2.

233.

3. Mellichamp v. Mellichamp, 28 [c] In Illinois there can be no S. C. 125, 5 SE 333; Riley v. Gaines, sale of the homestead premises sub- 14 S. C. 454. See Ketchin v. Pat: ject to the homestead right where rick, 32 S. C. 443. 11 SE 301 (such the property is not worth more purchaser takes the remainder subthan the exemption allowed by statute. Fritts v. Fritts, 298 II. 314, 131 NE 584; Mueller v. Conrad, 178 Ill. 276, 52 NE 1031; Oettinger v. Specht, 162 Ill. 179, 44 NE 399;

ject to liens then existing against it).

4. U. S.-Kerr V. South Park Comrs., 14 F. Cas. No. 7,733, 8 Biss. 276.

Ill. Misener v. Glasbrenner, 221 Ill. 384, 77 NE 467; Palmer v. Riddle, 197 Ill. 45, 64 NE 263; Bach v. May, 163 Ill. 547, 45 NE 248; Bullen v. Dawson, 139 Ill. 633, 29 NE 1038; Nichols v. Spremont, 111 III. 631; Barrett v. Wilson, 102 Ill. 302; Asher v. Mitchell, 92 Ill. 480; Stevens v. Hollingsworth, 74 Ill. 202; Hartwell v. McDonald, 69 Ill. 293; Hubbell v. Canaday, 58 Ill. 425; Hammalle v. Lebensberger, 187 Ill. A. 539.

Iowa.-White v. Rowley, 46 Iowa

680.

Ky.-Wing v. Hayden, 10 Bush 276; Queen v. Phillips, 3 KyL 470; Cole v. Rhor, 1 KyL 62; Queen v. Phillips, 3 KyL 470, 11 Ky. Op. 363; Cole v. Rhor, 10 Ky. Op. 631.

Mo.-Creech v. Childers, 156 Mo. 338, 56 SW 1106; Broyles v. Cox. 153 Mo. 242, 54 SW 488, 77 AmSR 714; Ratliff v. Graves, 132 Mo. 76, 33 SW 450.

Nebr.-Van Doren v. Weideman, 94 NW 124; Baumann V. Franse, 37 Nebr. 807, 56 NW 395; Schribar v. Platt, 19 Nebr. 625, 28 NW 289; McHugh v. Smiley, 17 Nebr. 620, 626, 20 NW 296, 24 NW 277.

N. H.-Laconia Sav. Bank v. Rollins, 63 N. H. 66; Fogg v. Fogg, 40 N. H. 288, 77 AmD 715.

N. C.-Mobley v. Griffin, 104 N. C. 112, 10 SE 142.

N. D.-Dieter v. Fraine, 20 N. D. 484, 128 NW 684.

S. C.-Charleston Bank v. Dowling, 52 S. C. 345, 29 SE 788; Wagner v. Parrott, 51 S. C. 489, 29 SE 240, 64 AmSR 695; Bradford v. Buchanan, 39 S. C. 237. 17 SE 501; Ketchin v. McCarley, 26 S. C. 1, 11 SE 1099, 4 AmSR 674; Cantrell v. Fowler, 24 S. C. 424.

Tex.-Beard v. Blum. 64 Tex. 59; Campbell v. Elliott, 52 Tex. 151; Willis v. Matthews, 46 Tex. 478; Girardeau v. Perkins, (Civ. A.) 126 SW 633; Speer v. Sykes, 119 SW 86; Sykes v. Speer, (Civ. A.) 112 SW 422; Griffin v. Harris, 39 Tex. Civ. A. 586, 88 SW 493; Tobar v. Losano, 6 Tex. Civ. A. 698, 25 SW 973. Vt.-Fairbanks v. Devereaux, 48

Vt. 550. Wash.-Byam V. Albright, 94 Wash. 108, 162 P 10; Scott v. Guiberson, 72 Wash. 36, 129 P 886, 887 [cit Cyc]; Waldron V. Kineth, 41 Wash. 459, 84 P 16, 111 AmSR 1022; Lewis v. Mauerman, 35 Wash. 156, 76 P 737. Wis.

Wis.-Phillips V. Root, 68 128, 31 NW 712.

B. C.-Fletcher v. Pendray, 22 B. C. 566.

See also supra § 415.

[a] Homestead of lunatic.Griffin v. Harris, 39 Tex. Civ. A. 586, 88 SW 493.

[b] In Massachusetts it has been

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6

any right of possession; and in consequence he has no rights against the debtor's grantee, even though the debtor abandons the premises subsequent to the sale. A common application of the rule is that, where land is in fact a homestead of the extent and value allowed by law, and not in excess thereof, an attempted sale thereof is void and conveys no title to the purchaser; and the rule frequently has been applied also in cases of sales made without an appraisement or allotment of the homestead.9 Where the creditors of a vendor who has conveyed his homestead extinguish an encumbrance thereon, and sell the property under execution against the vendor, the purchaser at the sheriff's sale cannot have the original encumbrance enforced against the property in an action brought to set aside the sheriff's deed.1 However, the purchaser's title may be rendered good by acts of the owner which work an estoppel,11 such as holding out a third person as owner, 12 and a limitation of the rule has been recognized in a case where no claim of homestead rights was made.13 Further, it has been held that a purchaser's title cannot be defeated on the ground that the land sold was exempt from sale, where he purchased at a forced sale invalid because the execution was not a lien on the property, but there was, in the sheriff's office at the time the execution was improperly levied, another writ of the same nature which was a lien on the homestead, although not levied and not known

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held that the purchaser secures the reversionary interest of the debtor. Castle v. Palmer, 6 Allen 401.

5. Hughes v. Watt, 26 Ark. 228; Scott v. Guiberson. 72 Wash. 36, 129 P 886. 887 Teit Cycl.

6. Hamalle v. Lebensberger, 267 Ill. 602, 108 NE 669 [aff 187 Ill. A. 539].

7. Hartwell v. McDonald, 69 Ill. 293; Asher v. Sekofsky, 10 Wash. 379, 38 P 1133.

to such purchaser to exist;14 where property was sold under two foreclosures in the same suit if one of the two liens was valid and enforceable against the homestead;15 where a foreclosure sale of the homestead was made in connnection with other lands without inquiring, as the statute directed, whether it could be sold separately, 16 unless such irregularity injured the party questioning the sale;17 or where a sheriff's sale made under order of sale on foreclosure and under a void execution was confirmed and, after expiration of the redemption period, a deed was executed. 18

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Grantee of purchaser. For obvious reasons a grantee of the purchaser acquires no better title than the purchaser himself."

Recovery back of purchase money. When the homestead has been unlawfully sold and the exemptioner recovers it back from the purchaser, the latter is entitled to recover from the exemptioner the purchase money which was applied in satisfaction of the judgment against the exemptioner.20

[§ 442] (2) Failure to Allot Homestead or Defective Allotment. Where an appraisal and allotment of homestead is required either with or without a claim or demand therefor, 21 the rule laid down by the weight of authority, without reference to the extent or value of the property sold, is that a sale of the premises without an appraisal and allotment of the homestead conveys no title; 22 but in some jurisdictions this rule is operative only with certain

the title, or of the facts which constituted the land as a homestead; that afforded them no protection").

20. Misener v. Glasbrenner. 221 Ill. 384, 77 NE 467; Cline v. Upton. 59 Tex. 27; Stone v. Darnell, 25 Tex. Suppl. 430, 78 AmD 582.

homestead shall not be forfeited by
the debtor's failure to select and
claim his homestead before sale un-
der execution nor by failure to file
a description or schedule of the
same, it has been held that a sale
on execution of homestead premises
to which no claim has been made [a] No satisfaction of judgment.
confers on the purchaser a defeas--Where plaintiff in execution be-
able estate and a title valid as
against the whole world but debtor
and his wife, and valid as against
them unless they elect to defeat it.
Snider v. Martin, 55 Ark. 139, 17
SW 712.

14. Agnew v. Adams, 17 S. C. 364. 15. Klink v. Cohen, 15 Cal. 200; Silsbee v. Lucas, 36 Ill. 462.

upon

8. Cal.-Waggle V. Worthy, 74 Cal. 266, 15 P 831, 5 AmSR 440; De Deffeliz v. Pico, 46 Cal. 280; Kendall v. Clark, 10 Cal. 17, 70 AmD 691. Ill.-Hamalle v. Lebensberger, 267 Ill. 602, 108 NE 669 [aff 187 Ill. A. 539]; Barrett v. Wilson, 102 Ill. 302; [a] Rule applied.—Where, Hartman v. Schultz, 101 Ill. 437: the foreclosure of a mortgage exeConklin v. Foster, 57 Ill. 104; Wig-cuted before the passage of the homegins v. Chance, 54 Ill. 175. stead law, a junior mortgage upon Iowa.-Jones V. Blumenstein, 77 the same property, executed after Iowa 361, 42 NW 321. the adoption of that act, is also foreclosed in the same suit; and a sale is made in satisfaction of both mortgages, and the mortgagee fails to redeem from the older mortgage, the sale will pass to the purchaser, or his assignée of the certificate of purchase, a title free from all claim to the homestead exemption. "If the junior mortgage had not been foreclosed, and a sale made under a foreclosure of the elder mortgage, no person would doubt that the sale would have been free from all claims of a homestead exemption. Then,

Ky-Caldwell v. Taylor, 32 SW 678, 17 KyL 781; Buckner v. Fleming, 5 KyL 607; Hope v. Hollis. 5 KyL 319; Queen v. Phillips, 3 KyL 470, 11 Ky. Op. 363.

Mo.-Ratliff V. Graves, 132 Mo. 76, 33 SW 450.

Nebr.-Baumann V. Franse, 37 Nebr. 807, 56 NW 395.

S. C.-Wagener v. Parrott, 51 S. C. 489, 29 SE 240, 64 AmSR 695; Bradford v. Buchanan, 39 S. C. 237, 17 SE 501; Ketchin v. McCarley, 26 S. C. 1, 11 SE 1099, 4 AmSR 674; Cantrell v. Fowler, 24 S. C. 424.

Tex.-Mayers v. Paxton, 78 Tex. 196, 14 SW 568: Thompson v. Jones, 77 Tex. 626. 14 SW 222: Tobar v. Losano, 6 Tex. Civ. A. 698, 25 SW 973.

Wash.-Asher V. Sekofsky, 10 Wash. 379, 38 P 1133; Philbrick v. Andrews, 8 Wash. 7, 35 P 358. 9. See infra § 442.

10. Beckmann v. Meyer, 7 Mo. A. 577 [aff 75 Mo. 333]. See also supra §§ 321-331. 11. Dwyer v. Foley, (Tex. Civ. A.) 35 SW 820. See also supra §§ 343412.

12. Dwyer v. Foley, supra. 13. Snider v. Martin, 55 Ark. 139, 17 SW 712. [a]

In Arkansas, under a statute

as it was sold under the prior mort-
gage, and free from such a claim,
we are unable to perceive how the
foreclosure of a mortgage. which
was subject to the homestead ex-
emption, could in any manner affect
the rights of the holder of the prior
mortgage or those purchasing under
it." Silsbee v. Lucas, 36 Ill. 462,
470.

16. Lloyd v. Frank, 30 Wis. 306.
To same effect Ackerman V. Hen-
dricks. 117 Iowa 106. 90 NW 522;
Burmeister v. Dewey, 27 Iowa 468.
17. Lloyd v. Frank. 30 Wis. 306.
18. Catlin v. Deering, 102 Kan.
256. 170 P 396.

19. Sykes v. Speer. (Tex. Civ. A.) 112 SW 422, 427 ("It matters not how ignorant the purchasers from

came the purchaser at an execution sale, and the property was afterward recovered back from him because it was the debtor's homestead, there was no satisfaction, and plaintiff in the execution might sue defendant on the judgment. Townsend v. Smith, 20 Tex. 465, 70 AmD 400. 21. See supra §§ 420, 427.

22. U. S.-Kerr V. South Park Comrs., 14 F. Cas. No. 7,733, 8 Biss 276. Ala. Andrews v. Melton, 51 Ala.

400.

Iowa.-Visek v. Doolittle, 69 Iowa 602, 29 NW 762; Goodrich v. Brown, 63 Iowa 247, 18 NW 893; White v. Rowley, 46 Iowa 680; Linscott V. Lamart, 46 Iowa 312.

Mich.-Riggs v. Sterling, 60 Mich. 643. 27 NW 705, 1 AmSR 554.

Minn. Kipp v. Bullard, 30 Minn. 84. 14 NW 364.

Mo.-Macke v. Byrd, 131 Mo. 682, 33 SW 448, 52 AmSR 649.

N. H.-Kensell v. Cobleigh, 62 N. H. 298 (recognizing rule).

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.

Vt.-Fairbanks V. Devereaux, 48

Vt. 550.

Wash.-Waldron V. Kineth, 41 Wash. 459, 84 P 16, 111 AmSR 1022. Wis.-Phillips v. Root, 68 Wis. 128, 31 NW 712.

[a] The extent of an execution upon land in which homestead is claimed, and exists, cannot be made upon the whole of the land, in disregard of a demand by the party entitled to the homestead to have it set off, and such an extent is void. Kensell v. Cobleigh, 62 N. H. 298; Barney v. Leeds, 51 N. H. 253; Tucker v. Kenniston, 47 N. H. 267, 93 AmD 425; Fogg v. Fogg, 40 N. H

which provides that the right to her were concerning the state of 1282, 77 AmD 715.

qualifications.23 Nor is the rule applicable in jurisdictions where the sale may be made subject to homestead rights.24

28

[§ 443] (3) On Sale Subject to Homestead. If a homestead can properly be sold subject to the debtor's statutory rights25 the purchaser obtains title, although no allotment was previously made; 26 in some jurisdictions he becomes a tenant in common with the homesteader and entitled to share equally in crops growing at the confirmation of the sale; but in others, he secures full rights of ownership on the termination of the homestead right,2 and in the meantime he takes in subservience to the exemption, although the debt upon which the judicial sale is based was one enforceable against the premises.29 He is not entitled to compensation for improvements erected by him on the land before his complete rights as owner mature, 30 and if he buys the undivided interest of the debtor subject to the homestead, the latter may be set off from the portion allotted to such purchaser upon partition. 31 Where there is in fact and in law no homestead, a sale of premises in which the homestead is claimed subject to the right of homestead passes the fee to the purchaser under the sheriff's deed. 3: The purchaser of property subject to a mortgaged home

23. [a] In Georgia (1) where, pending application of the head of a family to have a homestead set apart for the family in accordance with the statutory provisions, the land was sold at sheriff's sale, a purchaser with notice that the application was pending takes title to the property subject to the encumbrance of the homestead when properly laid off. Crine v. Johns, 96 Ga. 220, 22 SE 913; Jackson v. Du Bose, 87 Ga. 761, 13 SE 916; Grace v. Kezer, 86 Ga. 697, 12 SE 1067; Blivins v. Johnson, 40 Ga. 297; Kilgore v. Beck, 40 Ga. 293. (2) But pending the existence of a homestead which has been regularly set apart a purchaser at a sale under an execution against homesteader acquires no title. Rodgers v. Baker, 96 Ga. 800, 22 SE 585; Crine v. Johns, supra.

[b] In Illinois (1) a sale under execution of the judgment debtor's homestead without observing the requirements of the statute conveys no title capable of being asserted in a court of law whether or

not

the premises sold exceed in value or extent the exemption allowed by the statutes. Klosowski v. Klosowski, 266 Ill. 360, 107 NE 634; Brokaw v. Ogle, 170 Ill. 115, 48 NE 394: Bach v. May, 163 Ill. 547. 45 NE 248; Bullen v. Dawson, 139 Ill. 633. 29 NE 1038; Nichols v. Spremont. 111 Ill. 631; Hartwell v. McDonald, 69 Ill. 293. (2) But title to so much of the property sold as is in excess of the exemption will be recognized and enforced in equity, either by setting off a homestead or, if the premises are not susceptible of division, by requiring the purchaser to the pay value of the exemption to the judgment debtor. Mayne v. Drury, 295 Ill. 533, 129 NE 77; Krupp v. Brand, 200 Ill. 403, 65 NE 780; Cutler V. Cutler, 188 Ill. 285, 58 NE 932; Bullen v. Dawson, supra; Parrott v. Kumpf, 102 Ill. 423; Leupold V. Krause, 95 Ill. 440; Hotchkiss V. Brooks, 93 Ill. 386; Stevens v. Hollingsworth, 74 Ill. 202; Loomis V. Gerson, 62 Ill. 11; Mix v. King, 55 Ill. 434; Blue v. Blue, 38 III. 9, 87 AmD 267. [c] In South Carolina (1) a purchaser of land, in which a homestead is claimed, at a sale under execution acquires no title to so much of the land as may be claimed as homestead, whether laid off or not, and whether still retained by the debtor or conveyed to a third person. Martin v. Bowie, 37 S. C. 102, 15 SE 736. (2) In such case, where the land exceeds

32

stead right can redeem the property only in the manner prescribed by statute.33

34

[444] C. Proceedings for Enforcement and Protection of Homestead Rights31—1. Jurisdiction. Courts of equity have inherent jurisdiction to afford relief in respect of the protection or recovery of homestead property where the rights of the owner therein have been lost or are in jeopardy through no fault of his own.35 The cases in which this jurisdiction is exercised occur most frequently in suits to enjoin sales of the homestead which are for any reason illegal, 36 and in suits to set aside sales of this character as constituting a cloud on title; 37 and under some statutes courts of equity alone have jurisdiction of suits for the recovery of property which has been sold after having been set apart as a homestead. 38 However, in the absence of any special statutory provision on the subject, relief may be had in a court of law, as for instance where the homestead right is set up either as a cause of action or a defense in a suit of ejectment,39 or where motion is made to set aside a sale of the homestead premises on execution.40

In Louisiana, it has been held that district courts have jurisdiction to determine whether any particular debt is or is not one for which a homestead

one thousand dollars in value, he does not acquire the entire tract subject to the claim of homestead, nor as tenant in common with the debtor or the debtor's grantee; but he acquires absolutely and only so much as lies outside of the homestead limits when admeasured. Martin V. Bowie, supra. (3) Where land is levied on, in which a homestead has not been located and which cannot be located because of mortgage liens which take precedence over the homestead right, and the land is worth more than the amount allowed as a homestead exemption, the purchaser must yield to the debtor the homestead afterward assigned to him out of the land acquired at such sale, but if the remaining land is not worth as much as the mortgage debt, the purchaser may enforce payment of the mortgages out of the homestead tract. Bradford v. Buchanan, 39 S. C. 237, 17 SE 501. 24. See infra § 443. 25. See supra § 439. 26. Ala.-Nelson Ala. 301.

v. McCrary, 60

Ga. Jackson 761. 13 SE 916. Ky.-Wing V. Hayden, 10 Bush

v. Du Bose, 87 Ga.

276.

N. C.-Wyche v. Wyche, 85 N. C. 96.

Tenn.-O'Bryan v. Brown, (Ch.), 48

SW 315.

See also cases infra this section. 27. Jackson v. Du Bose. 87 Ga. 761, 13 SE 916: Grace v. Kezar, 86 Ga. 697. 12 SE 1067; O'Bryan V. Brown. (Tenn. Ch. A.) 48 SW 315. 58. See cases infra note 29. 29. Wing V. Hayden, 10 Bush (Ky.) 276; Crush v. Stewart. 7 KyL 825; Wyche v. Wyche, 85 N. C. 96: Barrett v. Richardson, 76 N. C. 429, But see supra § 439 for Kentucky and North Carolina decisions which hold that such a sale is void and that in consequence the purchaser would not take in subservience the exemption or in any other way. 30. Andrews v. Melton, 51 Ala.

400.

31.

to

King v. Dillan, 66 Ga, 131. 32. Bullard v. Cox, 112 S. C. 392, 101 SE 111.

33. Butler v. Brown. 205 Ill. 606, 69 NE 44 (holding also that such redemption merely annuls the sale as provided by statute, and gives the purchaser no right against the homesteader to contribution to the mortgage indebtedness, or to subrogation to the benefits of the foreclosure).

34. Jurisdiction of proceedings: For allotment and appraisal see supra § 428.

To enforce claims against homestead see supra § 243.

35. U. S.-Fink v. O'Neil, 106 U. S. 272, 1 SCt 325, 27 L. ed. 196; Webb v. Hayner, 49 Fed. 601.

Ala. Andrews v. Melton, 51 Ala. 400.

Cal. Roth v. Insley. 86 Cal. 134, 24 P 853; Riley v. Pehl, 23 Cal. 70; Dunn v. Tozer, 10 Cal. 167. Fla.-Clements V. Henderson, 70 Fla. 260, 70 S 439; Lewton v. Hower, 18 Fla. 872.

Ga.-Mobley v. Belcher, 144 Ga. 442, 87 SE 470; Pritchett v. Davis, 101 Ga. 236, 28 SE 666, 65 AmSR 298; Brown v. Thornton, 47 Ga. 474.

Ill. Stocker v. Curtis, 264 Ill. 582, 106 NE 441; Imhoff v. Lipe, 162 Ill. 282, 44 NE 493; Hubbell v. Canady, 58 III. 425; Mix v. King, 55 Ill. 434.

Kan.-Zimmerman v. Clarke, (A.)

58 P 277.

Mich.-Riggs v. Sterling, 51 Mich. 157, 16 NW 320; McKee v. Wilcox, 11 Mich. 358, 83 AmD 743.

Minn.-Barton v. Drake, 21 Minn.

299.

Miss. Koen v. Brill, 75 Miss. 870, 23 S 481, 65 AmSR 633.

Mo.-Vogler v. Montgomery, 54 Mo.

577.

N. H.-Tucker v. Kenniston, 47 N. H. 267, 93 AmD 425; Miles v. Miles, 46 N. H. 261, 88 AmD 208.

N. M.-Corn V. Hyde, 26 N. M. 36, 188 P 1102.

N. Y.-Cook v. Newman, 8 How Pr 523.

N. C.-Littlejohn v. Egerton, 77 N. C. 379.

S. C.-Ketchin v. McCarley, 26 S. C. 1, 11 SE 1099, 4 AmSR 674.

Tenn.-Webb v. Cowley, 5 Lea 722; Williams v. Williams, 7 Baxt, 116.

Tex.-Nichols v. Snow, 46 Tex. 72; Canales v. Canales, (Civ. A.) 190 SW 842.

Vt.-Hyer v. Mansfield, 72 Vt. 71, 47 A 105.

Wis. Smith v. Zimmerman, 85 Wis. 542, 55 NW 956; Scofield v. Hopkins, 61 Wis. 370. 21 NW 259.

Equity jurisdiction generally see Equity. §§ 7-149.

36.

37.

See infra § 447. See infra § 448.

38. Woodward v. Bivins, 71 Ga. 589: Pittman V. Matthews, 66 Ga. 600; Zellers v. Beckman, 64 Ga. 747; McLellan v. Weston, 59 Ga. 833.

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