OJnrnpU Cam irljnol iHibraty 
 
Cornell University Library 
 KF 5670.S66 
 
 The law of homestead and exemptions / 
 
 3 1924 019 999 543 
 
wS^^^Si 
 
 
 Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019999543 
 
HOMESTEAD 
 
 AND 
 
 BXEMPTIOKS. 
 
THE LAW 
 
 OF 
 
 HOMESTEAD 
 
 AND 
 
 Exemptioiis. 
 
 BY 
 
 JOHN H. SMYTH. 
 
 SAN rEANCISCO ; 
 
 8UMNEE WHITNEY & CO. 
 1875. . I 
 
OPYKIGHT 1875, 
 
 JOHN H. SMYTH. 
 
PREFACE. 
 
 The varied and important questions arising under the 
 Homestead and Exemption laws of the several States have 
 become so numerous that no apology is needed for the at- 
 tempt to collect the cases and state the law as determined 
 thereby. Homestead statutes, first passed by the Republic 
 of Texas less than thirty-six years ago, were quickly followed 
 by the southern, western, and other States, until all except 
 three have incorporated in their statute law some provision 
 for the preservation and protection of the home of a debtor. 
 
 The Author has attempted to collect all the cases, giving a 
 general rule of law, where it was possible to do so, and stat- 
 ing the rule in each State where variation of statutes or con- 
 flict of decisions made it necessary. 
 
 It was deemed wise to set forth the facts of some particular 
 cases, as well as the peculiarities of the statutes under which 
 they arose, that the reader might determine how far the rules 
 laid down therein would apply to other cases or localities, the 
 aim being to make a work which should prove useful to the 
 practitioner. 
 
 Cases arising under the bankrupt law or concerning per- 
 sonal property have all been collected in the chapters upon 
 those subjects, even though determining the same principles 
 as those announced in the earlier chapters of the book. 
 
 That some imperfections should be found in the first work 
 
PREFACE. 
 
 upon a new and novel theme is to be expected ; the Author 
 can only say that he will be glad to improve upon the 
 present in a second edition, if it should be called for. 
 San Francisco, Oct. 1st, 1875. 
 
CONTENTS. 
 
 CHAPTER I. 
 
 OBJECT AND POLICY. 
 
 Object and policy discussed, § 1. 
 
 The sanctity of home, § 2. 
 
 Freehold and tenantry contrasted, § 3. 
 
 The idea npon which the law is founded, § 4. 
 
 Rural policy, § 5. 
 
 Sanctity of the home, $ 6. 
 
 The interest and protection of the wife a leading idea, § 7. 
 
 Beneficent features of modern legislation, the extent, 5 8. 
 
 The independence of the citizen, § 9. 
 
 New rule in regard to property liable for debt, § 10. 
 
 Humane character of such laws, § 11. 
 
 Benton's policy ; duty of State to freeholder, § 12. 
 
 The welfare of the State, § 13. 
 
 Emigration and permanent citizenship, § 14. 
 
 CHAPTER II. 
 
 CONSTITUTIONALITY OP EXEMPTION LAWS. 
 
 The power of the people of a State, § 15. 
 
 Validity of constitutions adopted and statutes enacted, 5 16. 
 
 Constitution of a State is a law, 5 17. 
 
 Federal Courts to determine questions under U. S. Constitution, § 18. 
 
 Constitutions establish general principles only, § 19. 
 
 No distinction between constitutional and statutory exemptions, § 20. 
 
 Laws and constitutions wherein question arises, § 21. 
 
 Obligation of a contract defined, J 22 . 
 
 Distinction between right and remedy, § 23. 
 
8 CONTENTS. 
 
 Change of remedy not unconstitutional, § 24. 
 
 State can change the remedy, but not the contract, $ 25. 
 
 Constitutionality of exemption law of New York, }§ 26-28. 
 
 Constitution of TJ, S. applies only to stipulations of contract, } 29. 
 
 Suits pending may be affected by change of remedy, $ 30. 
 
 Execution laws in force at time of contract form part, $ 31, 
 
 State cannot abolish or injuriously change remedy, § 32. 
 
 Distinction between liens and simple indebtedness, $ 33, 
 
 General indebtedness does not affect homestead, J 34. 
 
 Specific indebtedness merged in a lien affects homestead, § 35. 
 
 State may pass laws controlliag provisions of contract, J 36. 
 
 But contract cannot be interfered with, § 37. 
 
 Rights of property depend on legal construction, § 38. 
 
 Contract when complete, no new conditions incorporated, § 39. 
 
 Change of constitution does not affect prior contract, § 40. 
 
 Contracts designed to be protected by Constitution of U. S., § 41. 
 
 Past transactions, parties' vested right to some remedy, J 42. 
 
 Eights under decree of sale, 5 43. 
 
 Statutes of limitation aSect the remedy, not the contract, J 44. 
 
 Retrospective laws, } 45. 
 
 Statutes not retrospective unless clearly intended, § 46. 
 
 Retrospective laws of Georgia, § 47. 
 
 Lien of a judgment, vested right cannot be disturbed, § 48. 
 
 Validity and remedy both parts of the contract, § 49. 
 
 New rule, in Georgia no homestead as against prior debt, J 50. 
 
 CHAPTEE m. 
 
 CONSTRUCTION OF STATUTES AND CONSTITUTIONAL PRO- 
 VISIONS. 
 
 Rules and maxims governing interpretation of statutes, JJ 51, 52. 
 Sense in which the word "homestead " is used, $ 53. 
 Construction of statutes of exemption, § 54. 
 Homestead exemptions the creature of statute, § 55. 
 Requirement of the statute must be followed, § 56. 
 Construction of amendments to original statute, § 57. 
 Liberal and strict construction of statutes, J 58. 
 Construed liberally in Illinois, § 59. ,. 
 
 Construction of statute in Arkansas, § 60. 
 Liberal interpretation in California, § 61. 
 Broad views in iaterpreting in Texas, § 62. 
 Construction of statutes adopted from other States, § 63. 
 Interpretation of constitutional provisions of Nevada, 5 64. 
 
CONTENTS. 
 
 Constitution, of Minnesota and oonstniotion of statutes, § 65. 
 Constitution of Arkansas and construction of statutes, 5 66. 
 Constitution of Michigan and construction of statutes, § 67. 
 
 CHAPTER IV. 
 
 NATURE AND EXTENT OP THE RIGHT. 
 
 Definition of the word homestead, J 68. 
 
 Nature of the estate of homestead, § 69. 
 
 Eight acquired not affected by repeal of statutes, § 70. 
 
 The nature, tenure, or title of the estate in the land, § 71. 
 
 Husband and wife, rights and privileges, § 72. See Addenda, J 456. 
 
 Nature of the estate or tenure of the right in California, §5 73, 74. 
 
 Latitude allowed in use of homestead for other purposes than dwelling, §§ 75- 
 
 Increase of homestead to prescribed value or quantity, § 89. 
 
 Only that which is occupied as homestead exempt, 5 90. 
 
 Occupancy of greater value than statutory allowance, § 91. 
 
 Limit in quantity or value, J 92. 
 
 Change of character rural to urban, §§ 93, 94, 95 
 
 Cannot have two homesteads, § 96. 
 
 Exception to foregoing rule, J 97. 
 
 Growing crops on exempt lands, } 98. 
 
 Exchange of homestead for merchandise, § 99. 
 
 Exchange of one homestead for another, §§ 100, 101. 
 
 Insurance money of homestead, $ 102. 
 
 CHAPTER V. 
 
 OUT OE "WHAT IT MAT BE SELECTED OR CARVED. 
 
 Nature and character of the estate or right, § 103. 
 
 Not limited in choice to survey or imaginary lines, § 104. 
 
 Separate property of husband or wife in California, §§ 105, 106. 
 
 Separate property of wife in Illinois, § 107. 
 
 Separate property of wife in Ohio, § 108. 
 
 Separate property of wife in Indiana, § 109. 
 
 Separate property of wife in Michigan, 5 110. 
 
 Separate property of husband or wife in Wisconsin, ■$ 111. 
 
 Some right or title to the land necessary to the right, § 112. See Addenda. 
 
 Wrongful possession of homestead creates no title, § 113. 
 
10 CONTENTS. 
 
 Homestead in lands held by less than fee-simple estate, § 114. See Addenda, 
 
 5 112." 
 Ownership and occupancy necessary in Alabama, § 115. 
 Eight of homestead expires with termination of estate, 5 116. 
 Eule — any interest which may be sold on execution, § 117. 
 Leasehold adjoining homestead, § 118. See Addenda, 5 112. 
 Homestead right in equitable interest, § 119. See Addenda, 
 In lands held in joint tenancy and in common, 55 120-128. See Addenda, § 125. 
 Separate parcels of land composing homestead, 55 129-140. See ADDENDA, 5 137. 
 Homestead in United States lands, 5 141: 
 Homestead in trust property, 5 142. 
 Homestead in assets of partnership, 5 143. 
 Homestead in specific bequests under •wUl, 5 144. 
 Homestead in lauds aoquiredbefore passage of law, 5 145. 
 
 CHAPTER VI. 
 
 WHO MAY CLAIM THE BIGHT OF HOMESTEAD. 
 
 Primarily husband or father the right of selection, 5 146. 
 
 Who are heads of families — California, 5 147. ■ 
 
 Husband whose wife living out of State, 55 l^^i 1^9' 
 
 Temporary residence of husband and wife sufficient, 5 150. 
 
 Death of wife, departure of adult children, 5 151. 
 
 Widowers without children, 5 152. 
 
 Unmarried women as heads of families, 55 153, 154. 
 
 Wife having no children of her own, 55 155, 156. 
 
 Residence of the wife alone in California, 5 157. 
 
 Abandonment by the husband of the wife, she the head, 5 158 . 
 
 Surviving widow head of family, 5 159. 
 
 Bachelors as heads of families, 55 160-162. 
 
 Members of copartnership in Pennsylvania, 5 163. 
 
 Eight to claim by wife in Connecticut, 5 164. 
 
 CHAPTER Vn. 
 
 HOW IT MAT BE ACQUIRED. 
 
 Actual residence by family necessary, 5 165 . 
 
 Steps to be taken in order to acquire, 5 166. 
 
 States in which formal act of selection necessary, 5 167. 
 
CONTENTS. 11 
 
 States in -which no formal act of selection necessary, § 168. 
 Modes of acquiring in the varions States and Territories, § 169. 
 Eesidence necessary -when formal act of selection, §§ 170-172. 
 Length of time of occupancy required, §§ 173-175. 
 When the selection may be made, § 176. 
 
 CHAPTER Vin. 
 
 KKOM WHAT THE HOMESTEAD IS EXEMPT. 
 
 Protection of the homestead right, § 177. 
 
 Exemption from liens of judgments, §5 178, 179. 
 
 Effect of judgment when the right ceases, 5§ 180-184. 
 
 Effect of judgment, right of the State, § 185. 
 
 Claims and liens which may affect homestead, {5 186, 187. See Addenda, § 189. 
 
 Debt, limitations, lien of judgment, § 188. 
 
 Lien of judgment allowed to slumber, $ 189. See Addenda. 
 
 InterTening act of legislature, justice court judgment, §§ 190, 191. 
 
 Effect of filing notice after lien of judgment, § 192. 
 
 Debts created prior to acquisition of homestead in Iowa, J 193. 
 
 Change of homestead, displacement of liens, § 194. 
 
 Judgments before occupancy, or before passage of act, § 195. 
 
 Lien of judgment, deed of trust subject to in Texas, § 196. 
 
 Homestead not subject to attachment, § 197. 
 
 Selection of homestead after attachment, § 198. See Addenda. 
 
 Homestead not affected by extrinsic debts, § 199. 
 
 Judgments in actions of tort, §$ 200, 201. 
 
 Specific liens, veifdors', mechanics', taxes, §§ 202-206. 
 
 Prior debts, statutory protection, Massachusetts, § 207. 
 
 What will be considered an existing debt, §§ 208, 209. 
 
 Prior debts in New Hampshire, 5 210. 
 
 Prior debts in Iowa, 5 211. 
 
 Delivery bond not a contract within the statute, § 212. 
 
 Existing debts, merger, marshalling assets, § 213. 
 
 Existing debts in California and in Texas, 5 214. 
 
 Vendors' lien, no homestead as against, § 215. 
 
 Tenure of vendee in the nature of a trust, § 216. 
 
 Note for puroha;se-money barred by limitation, § 217. 
 
 Money borrowed to pay pre-existing debt for purchase, § 218. 
 
 What may be united with lien for purchase-money, § 219. 
 
 Change in the form of the instrument for purchase-money, § 220. 
 
 Third persons paying money to vendor, § 221. 
 
 Conduct on the part of vendor which will bar assertion, J 222. 
 
 Where money is simply borrowed, § 223. 
 
 Purchase-money of outstanding title, § 224. 
 
12 CONTENTS. 
 
 What -will be held to be purchase-money, § 225. See Addenda. 
 
 Purohase-money, action at law on note, special execution, § 226. 
 
 What is not purchase-money, definition, of vendors, § 227. 
 
 Vendors' lien where there ia waiver of exemption in Pennsylvania, J 228. 
 
 Purchase-money under the Revised Code of Mississippi, § 229. 
 
 Cases wherein homestead paramount to vendors' lien, § 230. 
 
 Assignment and transfer of vendors' lien, § 231. 
 
 Fraud in the acquisition and disposition of homestead, $ 232. 
 
 What is not fraud on creditors, $ 233. 
 
 Conveyance by debtor of homestead not fraud as to creditors, 5 234. 
 
 Fraudulent acts of owner of which law will not permit denial, § 235, 
 
 English rule in regard to conveyances in fraud of creditors, 5 236. 
 
 Exemption not an incumbrance, claim, or lien, fraudulent representation, } 237. 
 
 Deed, intent to delay and defraud creditors, J 238. 
 
 CHAPTER IX. 
 
 HOW DIVESTED. 
 
 Former rule relating to alienation by husband alone, § 239. 
 
 The more recent view, 5 240. 
 
 Natural right of alienation not inhibited, § 241. 
 
 Alienation of the homestead by conveyance, § 242. 
 
 Acknowledgment of wife in alienations, § 243. 
 
 Special release of the homestead requisite in some States, $ 244. 
 
 Not essential to state that it is the homestead conveyed, § 245. 
 
 Husband's right to arrange prior equities, 5 246. 
 
 Surplus over statutory value or quantity, § 247. See Addenda. 
 
 Deed of husband alone to lands held in common, § 248. 
 
 Conveyance by husband and wife of undivided interest, ^ 249. 
 
 Alienation by husband alone of house on leased land, J 250. 
 
 Conveyance of property by husband before selection, § 251. See Addenda. 
 
 Fraudulent procurement of wife's signature to deed, § 252. See Addenda . 
 
 Wife cannot sell her interest to her husband, § 253. 
 
 Husband can convey to trustee for benefit of wife, § 254. 
 
 In Mississippi, husband alone can convey homestead, § 255. 
 
 Contract to convey homestead by husband alone, § 256. 
 
 Bond to convey by husband alone, death of wife, 5 257. 
 
 Bond to compel wife to convey, § 258. 
 
 Specific performance not enforced, damages obtained, $ 259. 
 
 Contract to convey before adoption as homestead, § 260. 
 
 Note given to cancel bond, void no consideration, 5 261. 
 
 Bv MoRTGA&E, requirements of valid instruments, 5 262. 
 
 Death of wife does not validate void mortgage, 5 263. 
 
 Acknowledgment of wife in executing mortgages, § 264. 
 
CONTENTS. 13 
 
 Special release of the right of homestead, § 265. 
 
 Not necessary to say it is the homestead in mortgage, J 266. 
 
 Mortgage by husband alone where over statutory value, § 267. 
 
 Mortgage by husband alone of lands held in common, J 268. 
 
 Mortgage by husband alone before occupancy, § 269. See ADDKNnA. 
 
 Husband may renew where former mortgage valid lien, 5 270. See Addenda. 
 
 Husband cannot prolong lien of mortgage without consent of wife, $ 271. See 
 
 Addbnda, § 270. 
 Valid mortgage by husband and wife, she may plead usury, § 272. 
 Mortgage of wife's land for husband's debt, strict foreclosure not allowed, § 273. 
 Mortgage of homestead to secure partnership debt of husband, 5 274. 
 Third party cannot set up want of release with notice of lien, 5 275. 
 Mortgage of several parcelsof land including homestead, 5 276. See Adbdnda. 
 Mortgage, character of exemption laws in Pennsylvania, § 277. 
 Ekview of Abandonment, § 278. 
 Occupation of the premises selected, § 279 . 
 
 Removal from premises after conveyance, not abandonment, § 280. 
 Acquisition of new residence, though not homestead, § 281. 
 Temporary residence elsewhere no abandonm,ent, 5 282, 
 What will be construed as an abandonment, J 283. 
 Eiforts to sell, no proof of abandonment, § 284. 
 Going in search of another home no abandonment, § 285. 
 Desertion or adultery by husband no forfeiture, § 286. 
 Desertion or adultery on part of wife no forfeiture, § 287. 
 Involuntary absence on part of wife no abandonment, § 288. 
 Voluntary absence on part of wife cannot claim, § 289. 
 Minor children cannot abandon homestead, § 290. 
 
 ■WAIVBB OP THK KIGIIT OF EXEMPTION. 
 
 Waiver of the right must be in" writing, properly executed, § 291. 
 
 Waiver of the privilege when debt created, § 292. 
 
 Where no waiver of exemption in judgment, 293. 
 
 In Pennsylvania, no waiver, favor junior lien, 5 294. 
 
 Right must be claimed, silence construed as waiver, § 295, 
 
 Stipulations in bond waiving all laws, § 296. 
 
 Waiver under one law not waiver tmder subsequent law, § 297. 
 
 Waiver of inquisition does not bar-right to claim, § 298. 
 
 Exemption under deed of assignment where no reservation, § 299. 
 
 Agreement with debtor that he retain part of land, § 300. 
 
 Waiver by the husband where wife does not sign, § 301. See Addenda. 
 
 Failure to file declaration of homestead, § 302. 
 
 Easement over the homestead without wife's consent, § 303. See Addenda. 
 
14 CONTENTS. 
 
 CHAPTER X. 
 
 DIVORCE. 
 
 Divorce may divest premisea of homestead character, §5 30i, 305. 
 
 Decree and partition liable for antecedent judgments, § 306. 
 
 Adultery, various acts of the parties, ^ 307. 
 
 Sale on execution under decree of divorce, J 308. 
 
 Custody of children to mother not thereby head of family, J 309. 
 
 Contrary and more humane rule in Illinois and Texas, 5 310. 
 
 Departure of wife on account of cruelty of husband, J 311. 
 
 Death of wife after divorce, homestead remains, § 312. 
 
 Divorce on application of husband, § 313. 
 
 Homestead goes to spouse having care of children, J 314. 
 
 Homestead conveyed to third party in fraud of wife's right, 5 315. 
 
 Death after judgment of divorce in Pennsylvania, § 316. 
 
 CHAPTER XI. 
 
 DESCENT AND PKOBATE. 
 
 Title to homestead on death of t)ne of the spouses, $ 317. 
 
 Title becomes absolute in survivor, in some States, § 318. 
 
 Title and right in California, 5 319. 
 
 Title on death of wife leaving children, 5 320. 
 
 Title on death of husband, § 321. 
 
 Where no homestead selected, widow entitled, § 322. 
 
 Property susceptible of dedication after death, J 323. 
 
 Widow after second marriage, right to two homesteads, J 324. 
 
 By second marriage widow does not lose her right, J 325. 
 
 When no homestead widow must petition for, § 326. 
 
 Action of Probate Court does not affect title, J 327. 
 
 Widow acquiesces in order for length of time, conclusive, J 328. 
 
 Omitting to file declaration, rights of creditors, § 329. See Addknda. 
 
 Descent to heirs of homestead estate, 5 330. 
 
 Descent and probate in Texas, 5 331. 
 
 Where no constituent member of- family remains, J 332. 
 
 Vesta in heirs with or without administration, § 333. 
 
 Death of wife without issue, husband retains it, § 334. 
 
 Homestead right does not survive if separate property, § 335. 
 
 Minor heir's rights where subject to deed of trust, § 336. 
 
CONTENTS. 15 
 
 Adult children living apart not subject to deed of trust, § 337. 
 
 Disposition by husband of his oommunity interests, } 338. 
 
 Eights of children in community property, J 339. 
 
 Widow's rights in Texas, } 340. 
 
 Only the lawful wife can make the claim, J 341. 
 
 Homestead which the widow is entitled to select, } 342. 
 
 Allowance to widow, superior lien, § 343. See Addenda. 
 
 When the claim for allowance must be made, § 344. 
 
 Husband must have had domicile in State to entitle widow, } 345. 
 
 Descent to widow, subsequent removal, J 346. 
 
 Widow's exemption not affected by debts anterior to act, $ 347. 
 
 Widow's exemption where husband died before constitution adopted, § 348. 
 
 Widows without children entitled to right in North Carolina, § 349. 
 
 Widow, no homestead where no debts in North Carolina, $ 350. 
 
 Widows and minor children entitled aa against creditors in Georgia, } 351. 
 
 Widows without children not entitled to homestead in Georgia, § 352. 
 
 Minor children are entitled as against creditors in Georgia, § 353. 
 
 But not as against adult heirs in Georgia, J 354. 
 
 Widow and children's rights in Louisiana, ^ 355. See Addenda. 
 
 Widow takes full property when no children, } 356. 
 
 Widow and children must be residents of State, 5 357. 
 
 Domicile of husband controls that of wife, § 358. 
 
 Widow and children superior lien in Louisiana, § 359. See Addenda. 
 
 Widow entitled to homestead during widowhood in Minnesota, § 360. 
 
 Widow, right in Pennsylvania as against creditors, $ 361. 
 
 Widow, right in Iowa, § 362. 
 
 Widow, right in Massachusetts, } 363. 
 
 Widow, estate of homestead created by statute not affected by last will, J 364. 
 
 Widow, when no proceedings necessary in Massachusetts, J 365. 
 
 Widow's right in New Hampshire, § 366. 
 
 Widow, voluntary separation of husband and wife, § 367. 
 
 Widow, separation of husband and wife in Pennsylvania, § 368. 
 
 Widow, not barred of right by removal from in New Hampshire, § 369. 
 
 Widow, in what property may be assigned in New Hampshire, § 370. ^ 
 
 Widow, right as against creditors' claims in New Hampshire, § 371. 
 
 Widow, right, exchange of homestead, death of husband before building, § 372. 
 
 Widow, bar of homestead by anti-nuptial agreement, § 373. 
 
 Widow not bound by verbal agreement of husband, ^ 374. 
 
 Widow's claim in land, she acting as broker for the sale, § 375. 
 
 Widow's right to possession of land under dower, not homestead, § 376. 
 
 Widows right as against an heir of real estate, J 377. 
 
 Widow's right in Pennsylvania, } 378. 
 
 Widow's right to sell in Pennsylvania, ^ 379. 
 
 Widow's right, waiver of privilege in Pennsylvania, § 380. 
 
 Widow's right, no further allowance, where appropriates $300, ^ 381. 
 
 Widows must make the claim within reasonable time, ^ 382. 
 
 Widow's right as against lien creditors, J 383. See Addenda. 
 
 Charge upon realty when personalty not sufficient, J 384. 
 
 Actual levy before death bars widow's claim, § 385. 
 
 Who the lawful widow, $ 386. 
 
16 CONTENTS. 
 
 Dower and homestead in same land in Iowa, § 387. 
 
 Kule in Kentucky, § 388. 
 
 Bule in Alabama, $ 389. 
 
 In Alabama, widow with separate estate, § 390. 
 
 In Illinois, entitled to dower and homestead, 5 391. 
 
 Value of homestead paid to husband no bar to dower, § 392. 
 
 Wisconsin, remarriage of widow no bar to dower in homestead, $ 393. 
 
 In Georgia, widow with minor child entitled to dower, § 394. 
 
 In Massachusetts, widow entitled to dower and homestead, J 395. 
 
 In Mississippi, widow entitled to dower and homestead, § 396. 
 
 Descent after demise of widow in Minnesota, 5 397. See Addenda. 
 
 Descent of homestead in Massachusetts, $ 398. 
 
 Descent of homestead in Texas, § 399. 
 
 Abandonment by widow in Illinois, 5 400. See Addenda. 
 
 What deemed abandonment by widow, § 401. 
 
 Abandonment by widow does not debar children, § 402. 
 
 Alienation after descent, by widow, children not aileoted, § 403. 
 
 Liens on property set aside as homestead in probate, § 404. See Addenda. 
 
 Death of defendant dissolres lien of attachment, J 405. 
 
 Sale of homestead by guardian of insane hiisband, § 406. 
 
 Sale of hoxaestead by order of Court, minor heirs, § 407. 
 
 Widow as creditor of estate for allowance, J 408. 
 
 Widow, tenant in common, partition, § 409. See Addenda. 
 
 Creditors may make objection to regularity of proceedings, § 410. 
 
 When the claim for widow's allowance should be made, 5 411. 
 
 Jurisdiction of Probate Courts as to homestead, J 412. See Addenda. 
 
 Who entitled to money awarded in lieu of homestead, J 413. 
 
 CHAPTER Xn. 
 ACTION And pbactice. 
 
 Parties are bound by the determination of Court, § 414. 
 
 Proceedings to be conclusive must embrace husband and wife, J 415. 
 
 Wife may set up usury in foreclosure, § 416. 
 
 Death of wife after suit brought, § 417. 
 
 Plea that instrument does not release right, § 418. See Addenda. 
 
 Judicial notice of the Court, 5 419. 
 
 Judgment on foreclosure where no release, § 420. See Addenda. 
 
 Accounting between mortgagees, where one in possession, § 421. See Addenda, 
 
 Appointment of receiver in foreclosures, 5 422. 
 
 Probate Courts not proper tribunals in litigated questions, J 423. See Addenda. 
 
 Sale of statutory overplus, § 424. 
 
 Wife's separate funds forming part deducted, § 425. 
 
 Power of sale in trust deed, duty of trustee, § 426. 
 
CONTENTS. 17 
 
 Practice, selling statutory surplus in California, J 427. 
 
 When money is paid in lien of homestead — Illinois, § 428. See AmiISNDA. 
 
 Exceeding statutory value in New Hampshire, J 429. 
 
 Exceeding statutory value in Iowa, § 430. 
 
 Exceeding statutory value in Minnesota, § 431. See Addenda. 
 
 How and when the right may be asserted, § 432. 
 
 Declaration of homestead by wife in California, § 433. 
 
 Notice to sheriflE of claim in California, § 434. 
 
 Mode and time of asserting right in Ohio, § 435. 
 
 What bill in equity to protect homestead must show, ^ 436. 
 
 What allegations are sufficient, § 437. 
 
 Sale of equity of redemption, when right must be claimed, § 438. 
 
 What accuracy necessary in proceedings to set out claim, 5 439. 
 
 Partition by tenant in common in Arkansas, § 440. 
 
 Estoppel by covenants in deed of homestead, § 441. 
 
 Cloud on title to homestead, bill in equity, § 442. 
 
 Ejectment, subsequent acquired title, J 443. 
 
 All other property must be exhausted before homestead, J 444. 
 
 Illegal sale of homestead, § 445. 
 
 Sale void, if occupied, J 446. 
 
 Property pointed out, only reasonable accuracy required, § 447. 
 
 !Palse claim to land, assignment of part to creditor, § 448. 
 
 Several judgments, effect of, when abandonment, § 449. 
 
 Pleadings to enforce contract to convey, § 450. 
 
 Specific "performance of contract of husband, § 451. 
 
 Defenses to actions on vendors' lien, § 452. 
 
 Production of contract in enforcing vendors' lieu, § 453. 
 
 No exemption as against vendor for realty sold, § 454. 
 
 Liability of sheriff, in action for damages, selling homestead, § 455. 
 
 Wife's right to sue to protect homestead, J 456. See Addenda. 
 
 CHAPTEE XIII. 
 
 EXEMPTIONS UNDER THE BANKRUPT LAW. 
 
 The several statutes passed, § 457. 
 
 Effect of the act of March, 1873, § 458. 
 
 Practice and proceedings in United States Courts, § 459. 
 
 Constitutionality of clauses adopting exemptions of States, § 460. 
 
 Construction of statutes under bankrupt law, § 461. 
 
 The policy of the bankrupt act, § 462. 
 
 Liberal construction of exemption clause, §463. 
 
 Jurisdiction of United States Courts, § 464. 
 
 Specific liens by proceedings in State Courts, § 465. 
 
 Specific liens under State law, preference to creditors, § 466. 
 
 Homestead — 2. 
 
18 CONTENTS. 
 
 Fraudulent aoquiaition of homestead as against creditors, $ 467. 
 
 Fraudulent assignment to wife, § 468. 
 
 Fraudulent conveyance to son, § 469. 
 
 Fraudulent deed, wife joining in, efBect of, § 470. 
 
 Rule as to illegal preferences in conveying homestead, J 471. 
 
 Apparent exception to rule, J 472. 
 
 Surrendering trust deed, preferred creditor, § 473. 
 
 Disposing of homestead, occupying store, exemption claim, 5 474. 
 
 Change of premises, under circumstances allowed, § 475, 
 
 Nou-liability of " homestead for purchase-money in Georgia, J 476. 
 
 Objection by creditors to exemption of homestead, § 477. 
 
 Latitude allowed in use of homestead, $ 478. 
 
 Bankrupt entitled to homestead in leasehold estate, § 479. 
 
 Alienation by mortgage does not deprive bankrupt of homestead, 5 480. 
 
 Member of bankrupt firm, homestead, where he owns lot, firm building, $ 481. 
 
 What constitutes a family to entitle bankrupt to exemption in Greorgia, $ 482. 
 
 When property has pa,S9ed to assignee, too late, in Georgia, for homestead, § 483. 
 
 Bankrupt not entitled to homestead as against prior debts, § 484. 
 
 Liabilities relate back to date of engagements to perform, § 485. 
 
 No one but bankrupt can claim the exemption, § 486. 
 
 Absconding debtor not deprived of homestead right, J 487. 
 
 Homestead subject to deed of trust for future advances, § 488. 
 
 Exempt property may be sold and conveyed by bankrupt, § 489. 
 
 Assignment of exemption will not prevail over vendors' lien, $ 490. 
 
 Written waiver of exemption under State law, 5 491. 
 
 Bules and orders governing assignee in bankruptcy, 5 492. 
 
 Objections by creditors to exemptions allowed must be filed in time, § 493. 
 
 Property set apart by assignee final, if no objections filed, § 494. 
 
 Duty of assignee to correct errors in schedule, § 495. 
 
 Bankrupt entitled to homestead ordered sold by State Court, $ 496. 
 
 Bankrupt Court will not enjoin sale of homestead under judgment, 5 497. 
 
 State exemption laws apply to process issued out of IT. S. Courts, § 498. 
 
 Bankrupt may may maintain suit to recover homestead, § 499. 
 
 PBRSONAMrr UNDER BANKRnPT LAW. 
 
 Courts of bankruptcy will protect property of insolvent, § 500. 
 
 Courts no authority to order allowance to bankrupt, § 501. 
 
 Rule in relation $500 exemption under bankrupt law, 5 502. 
 
 All articles, irrespective of value, exempt under State law, J 503. 
 
 Articles to be set apart for use of bankrupt, 5 504. 
 
 Money may be allowed, where no articles, § 505. 
 
 What articles are and what are not exempt, § 506. 
 
 Cemetery vault, where exempt by State law, J 507. 
 
 Assignee not entitled to recover proceeds of personal right, § 508. 
 
 Protection of bankrupt's property beyond the State, § 509. 
 
 Workman entitled to proceeds of goods improperly sold by assignee, § 510. 
 
 Merchants not entitled to rights of mechanics, miners, § 511. 
 
 Business of contractor not a trade, not entitled to tools, § 512. 
 
CONTENTS. 19 
 
 Property acquired by bankrupt after proceedings, § 513. 
 Vested expectant interest of bankrupt can be set apart, § 514. 
 Exeraption of individual partners, partnership assets, § 515. 
 Eight of disposition of exempt property by bankrupt, J 516. 
 Where sold to defraud creditors, it is otherwise, § 517. 
 
 CHAI^TEE, XIV. 
 
 PERSONAL PKOPERTT EXEMPTIONS. 
 
 Rules of construction of statutes exempting personalty, J 518. 
 
 Liberal interpretation of exemption laws, § 519. 
 
 What is meant by " heads of families," § 520. 
 
 Husband w^ill not be permitted to defeat the exemption, § 521. See Addenda. 
 
 Term " necessary " means all required to live conveniently, § 522. 
 
 Work-oart does not include pleasure carriage, § 523. 
 
 Continuance of exemption of property after death of head, J 524. 
 
 Interpretation to be according to what is written, § 525. 
 
 Exemptions derive their force from statute law of State, § 526. 
 
 Riule at common law early adopted, § 527. 
 
 Common-law rule adopted in United States, § 528. 
 
 Territorial limits of exemption law, § 529. 
 
 Protection of law only applies where family in State, 5 530. 
 
 All heads of families within itsjroteotion, § 531. 
 
 What constitutes a family, 5 532. 
 
 Exemption, point of time the family relation commences, J 533. 
 
 Any resident entitled to exemption in Nebraska, J 534. 
 
 Right of exemption, purely personal privilege, § 535. 
 
 Claim and notice of the exemption , § 536. 
 
 Claim not necessary where within statutory allowance, § 537. 
 
 Claim of exemption under attachment, § 538. 
 
 Deinand must be made on each execution, § 539. 
 
 Time allowed in which to make the claim, § 540. 
 
 Who may give notice and make the claim, § 541. 
 
 Waiver of the right of exemption, § 542. 
 
 Clear and precise language must be used, $ 543. 
 
 Confined to the express stipulations, § 544. 
 
 Waiver in a majority of the States utterly void, J 545. 
 
 Giving a delivery bond no waiver, J 546. 
 
 Levy on exempt property same as levy on strangers, § 547. 
 
 Sheriff must decide on his own responsibility, § 548. 
 
 Care of officer in laying aside property exempt, § 549. 
 
 Officer wh<S abuses his authority same as if no authority, § 550. 
 
 Eraud on part of debtor no justification of officer, § 551, 
 
 Bond given to officer as inducement to sell, void, § 552. 
 
20 CONTENTS. 
 
 Disclaiming ownership cannot sue officer for taking goods, J 553. 
 
 No property exempt for purchase-money, J 554. 
 
 Debtor's right to dispose of exempt property, § 555. 
 
 Exchange of exempt property for other goods or money, J 556. 
 
 IVaudulent sale or concealment of property, § 557. 
 
 Exemption of property held in joint ownership, § 558. 
 
 Earnings and wages, § 559. 
 
 Exemption of wages, § 560. 
 
 Garnishment, when and how wages affected, § 561. 
 
 Liability of garnishee who pays oyer money, § 562. 
 
 Two or more classes of exemption to one person, § 563. 
 
 Tools of a mechanic-tradesman, § 564. 
 
 Temporary suspension of occupation of trade, 5 565. 
 
 Printing or stamping blocks of painter, § 566. 
 
 Saw of a mill not a tool, 5 567. 
 
 Threshing machine of farmer, § 568. 
 
 Printers' and editors' printing-press, type, § 569. 
 
 Commercial books and counting-house furniture, § 570. 
 
 Instruments of a dentist, § 571. 
 
 Watches and clocks, § 572. 
 
 Musical instruments, J 573. 
 
 Necessary articles question of fact, J 574. 
 
 New articles never used, § 575. 
 
 Animals, § 576. 
 
 Professional man entitled to two horses, § 577. 
 
 Teamster, what must be shown, § 578. 
 
 Team, wagon, teamster, § 579. 
 
 Animals, fraud in selling, J 580. 
 
 Heifer is included in the term cow, J 581. 
 
 Pood for exempt animals, § 582. 
 
 Wearing apparel, § 583. 
 
 Household furniture, J 584. 
 
 Where property claimed as exempt, burden of proof, § 585. 
 
 ADDENDA. 
 
 Title, in which homestead may be claimed, in Kansas, § 112. 
 Equitable title sufficient to base claim in Illinois, § 119. 
 Homestead in lands held in common in Louisiana, denied, § 125. 
 Land composing city homestead, in Kansas, must be in one body, § 137. 
 Release of part of mortgaged property, lien on homestead, § 189. 
 Attachment lien valid prior to occupation, § 198. 
 Purchase-money of homestead, who treated as vendor, ^ 225. 
 Alienation by husband before ocoupanny, in Texas, § 251. 
 False representations, procuring wife's signature, 5 252. 
 Conveyance signed by the wife under duress, ^ 252. 
 
CONTENTS. 21 
 
 Property mortgaged before occupation, right of homestead, ^ 269. 
 Renewal mortgage by husband alone, part purchase-money, § 270 . 
 Extension of time for payment of mortgage, husband alone, $ 270. 
 Easement granted over homestead by husband alone, J 303. 
 Widow's allowance by way of homestead in Louisiana, § 355. 
 Lien of vendor of movables inferior to minor's allowance, J 359 . 
 Liens of creditors of deceased householder, in Illinois, ^ 397. 
 Widow's right to homestead as against heirs, in Illinois, 5 409. 
 Recitals in decree, insufficiency of, in administrator's sale, § 412. 
 Husband's consent to decree, no bar as to wife, § 418. 
 Wife may assert right to homestead by original bill, § 420. 
 Wife's right to accounting for rents and profits of homestead, § 420. 
 Lapse of time in asserting right by wife, § 420. 
 Interest of the wife in tte estate of homestead, in Kansas, J 456. 
 Wife's right to sue to recover the homestead, in Kansas, $ 456. 
 Wife no right to sue for claim of homestead, in Louisiana, § 456. 
 Wife's right of exemption, waiver by husband, 5 542. 
 Value of homestead by appraisers, when conclusive. 
 Continuance of right of homestead till majority of children . 
 Limitation as to time, sale of real estate by administrator. 
 Who entitled to right of rural homestead in Louisiana. 
 Surplus proceeds of sale of homestead under valid lien. 
 
TABLE OF OASES. 
 
 A. 
 
 Abbott V. Abbott, 97 Mass. 136, 5§ 363, 
 
 398. 
 Aberoombie v. Alderson, 9 Ala. 981, §§ 
 
 148, 531, 564. 
 Ackley v. Chamberlain, 16 Gal. 181, % 68, 
 
 78, 182. 
 Adama v. Adams, 46 Ga. 630, §§ 351, 394. 
 V. Beale, 19 Iowa 61, 5§ 72, 456. 
 V. Eield, 12 Ad. and El. 649, § 
 
 527. 
 V. rrothingham, 3 Mass. 352, § 
 
 120. 
 V. Jenkins, 16 Gray 146, §§ 136, 
 
 208, 244, 262, 437. 
 V. Palmer, 51 Maine 480, § 38. 
 Alien V. Cook, 26 Barb. 376, §§ 58, 69, 
 183, 239. 
 V. Crofoot, 5 Wend. 506, 5 550. 
 V. Hawley, 66 111. 168, Add. % 
 
 119, 225, 418, 420, 456. 
 V. Manasse, 4 Ala. 564, % 148, 
 530. 
 Alley V. Bay, 9 Iowa 509, §§ 179, 181, 
 
 183, 242, 262, 263, 291, 301. 
 Allison V. Shilling, 27 Tex. 450, §§• 258, 
 
 259. 
 Allman 1). Gann, 29 Ala. 242, §§ 165, 
 
 169, 576. ' 
 Alvord V. Leent, 23 Mich. 369, % 55, 
 
 519. 
 American Ex. Bank v. Morris & Canal 
 
 Bank Co., 6 Hill 362, Add. § 198. 
 Ames V. Norman, 4 Sneed (Tenn.) 695, 
 
 §304. 
 Amphlett V. Hibbard, S. 0. Mich., April 
 Term, 1874, § 415. 
 
 Anderson v. Cobum, 27 Wis, 558, J§ 
 375, 324. 
 V. McKay, 30 Tex. 186, § 175. 
 Appleton V. Basoom, 3 Met. 169,' % 209, 
 
 485. 
 Atkinsons. Atkinson, 37 N. H, 434, §$ 
 239, 242, 247, 262, 267, 291, 369, 370, 
 409. 
 Atkiijson v. Duffy, 16 Minn. 45, § 43, 
 
 V. Gotcher, 23 Ark, 101, §§ 546, 
 551. 
 Atwater v. Woodbridge, 6 Conn. 223, § 
 
 41. " 
 Atwood V. De Forest, 19 Conn. 518, §§ 
 
 264, 563. 
 Auld V. Butcher, 2 Kan. 155, § 28. 
 Austin V. Swank, 9 Ind. 112, §§ 165, 169, 
 551. 
 V. Underwood, 37 111. 438, M215, 
 218, 219, 452. 
 Aycook V. Martin, 37 Ga. 124, § 37. 
 
 Bachelder v. Shapleigh, 10 Me. 135, J 
 
 567. ■^ 
 
 Baboock t). Hoey, H Iowa 375, §§ 245, 
 266. 
 V. Middleton, 20 Oal. 644, § 37. 
 Bachmau v. Packard, 2 Sawyer C. C. 
 
 264, 5 464. 
 Bair v. Steinman, 52 Penn. 423, § 536. 
 Baker v. Bower, 44 Ga. 14, § 455. 
 
 V. Eamer, 27 Tex. 52, §{ 215, 217. 
 Baldy's Appeal, 40 Penn. St. 329, J 383. 
 Baltimore A. C. u. Schell,17 Wis. 308, 
 5 35. 
 
 33 
 
24 
 
 TABLE OF CASES. 
 
 Bait, and S. R. R. v. Ne8bit, 10 How. 
 
 401, J 45. 
 Bancord v. Parker, 65 Penn. St. 336, § 
 
 538. 
 Bank of U. S. v. Deveaux, 5 Cranoh 61, 
 92, § 19. 
 I'. Norton, 3 Maret. 423, 
 §18. 
 Barber v. Babel, 36 Cal. 16, ^ 74, 182, 
 
 240, 269, 270, 271. 
 Barker i;. Dayton, 28 Wis. 367, 5 315. 
 Barlo-w v. Gregory, 31 Conn. 264, 5 29. 
 Barnes v. Gay, 7 Iowa 26, JJ 202, 215, 
 
 219, 226. 
 Barney v. Leeds, 51 N. H. 253, 5§ 151, 
 
 152. 
 Barney v. Leeds, 4 Am. L. Reo. 29, Add. 
 Bartholomew v. Hook, 23 Cal. 278, §5 56, 
 187, 189, 302, 416, 444, 
 456. 
 V. West, 2 Dill. 291, ^ 117, 
 234, 459, 468, 487. 
 Bartlett v. Russell, 41 Ga. 196, 5 432. 
 Barton t). Drake, Sup. Ct. Minn. '75, Cent. 
 
 L. J., Vol. 2, 308, 55 414, 442, 444, 446, 
 
 451,456. 
 Baskin's Appeal, 38 Penn. St. 65, J 380. 
 Baasett v. Messner, 30 Tex. 604, ^ 93, 
 
 317. 
 Bates V. Bates, 97 Mass. 392, 5§ 363, 401-. 
 Batts V. Scott, 37 Tex. 65, § 283, 336. 
 Baxter v. Dear, 24 Tex. 17, J 414. 
 Baylor v. San Antonio Nat. Bank, 38 Tex. 
 
 448, M 67, 89. 
 Bazemore V. Davis, 48 Ga. 339, § 205. 
 Seals V. Clark, 13 Gray 19, 5} 207, 489. 
 Beohtell's Appeal, 2 Grant's Cases 375, § 
 
 539. 
 Becker v. Becker, 47 Barb. 497, §§ 519, 
 
 524. 
 Beeoher v. Baldy, 7 Mioli. 502, §§ 55, 56, 
 
 67, 103, 147, 166, 171. 
 Beegle v. Wentz, 55 Penn. St. 369, § 300. 
 Beers v. Haughton, 9 Pet. 328, {§ 25, 27, 
 
 28. 
 Belknap v. Martin, 4 Busb 47, §5 165, 
 
 166, 169, 171. 
 Bell V. Schwartz, 37 Tex. 572, ^ 330, 
 339, 357. 
 V. Davis, 42 Ala. 460, § 176. 
 Bemis V. Drisool, 101 Mass. 418, •§ 448. 
 
 Benedict v. Bunnell, 7 Cal. 245, $§ 165, 
 
 169, 170, 172. 
 Bennett v. Cutler, 44 N. H. 69, 5 242. 
 Benson v. Aitken, 17 Cal. 163, 55 269, 320. 
 Berlin v. Burns, 17 Tex. 532, §§ 257, 
 
 261. 
 Berthold v. Holman, 12 Minn. 335, § 30. 
 Best V. Allen, 30 HI. 30, §§ 262, 265. 
 Bevan v. Hayden, 13 Iowa 122, §§ 55, 
 
 519. 
 Bevitti). Crandall, 19 Wis. 581, § 579. 
 Billings V. Hp,ll, 7 Cal. 1, § 44. 
 Billniyer v. Evans, 40 Penn. 324, § 31. 
 Bishop V. Hubbard, 23 Cal. 517, § 126. 
 Bishop's Fund v. Rider, 13 Conn. 87, 
 
 §5 32, 38. 
 Bitting V. Vandenburgh, 17 How. Pr. 80, 
 
 i 572. 
 Black V. Epperson, 40 Tex. 163, 187, 
 
 § 101. 
 Blackburn's Appeal, 39 Penn. St. 160, 
 
 §299. 
 Blackman v. Clement, 45 Ga. 292, 5 455. 
 Blackwood v. Van Vleet, 11 Mich. 252, 
 
 §43. 
 Blanohard v. Russell, 13 Mass. 1, 16, 
 
 §37. 
 Bliss V. Clark, 39111. 590, §§ 179, 180, 247, 
 449. 
 V. Johnson, 40 Ga. 297, § 176. 
 Blivins v. Johnson, 40 Ga. 297, §§ 432, 
 
 455. 
 Blue V. Blue, 38 111. 10, §§ 119, 178, 179, 
 
 263, 279, 286, 290, 307, 402, 403, 449. 
 Bombaok v. Sykes, 24 Tex. 217, § 426. 
 Bond V. Ward, 7 Mass. 128, § 527. 
 Bonnell v. Bowman, 53 111. 460, § 551. 
 V. Dunn, 5 Dutch 435, § 524. 
 V. Smith, 53 111. 375, §§ 173, 177, 
 178, 179, 240, 262, 312, 449, 
 487. 
 Booker v. Anderson, 35 111. 66, §,§ 117, 
 
 247, 265, 267, 432, 487. 
 Borland v. O'Neal, 22 Cal. 505, §§ 535, 
 
 536, 538. 
 Bouvet, Succession of, 25 La. An. 431, 
 
 Add. § 359. 
 Bowman v. Schober, 18 Wis. 437, § 190. 
 ■U.Norton, 16 Cal. 219, §§69, 147, 
 178, 179, 239, 242, 267, 319, 
 330, 338. 
 
TABLE OF CASES. 
 
 25 
 
 Bowman v. Smiley, 31 Penn. 225, §5 169, 
 
 292, 535, 542. 
 Bowyer's Appeal, 21 Penn. St. 210, §§ 
 
 294, 538, 539,542. 
 Bowers' Appeal, 68 Penn. St. 126, § 277. 
 Boyce's Ex. v. Grundy, 3 Pet. 209, § 44. 
 Boyoe v. Ellia, 11 Iowa 97, §§ 276, 444. 
 V. Cud-derback, 81 111. 113, 5§ 177, 
 242, 247, 265, 267. 
 Boykin v. Edwards, 21 Ala. 261, § 148. 
 Braokett v. Watkins, 21 Wend. 68, § 557. 
 Bradford v. Limpus, 13 Iowa 424, J 444. 
 Bradley v. Kodelsperger, 3 S. C. 226, J 
 
 349. 
 Bralnard v. Van Kuran, 22 Iowa 264, § 
 
 211. 
 Brandon v. Brandon, Sup. Ct. Kan., 
 Am. L. Eeg., July, 1875, (N. S.,Vol 14, 
 No. 7) §5 308, 309, 314. 
 Brant's Appeal, 20 Penn. St. 141, § 538. 
 Braynard v. Marshall, 8 Pick. 196, 5 18. 
 Brennan u. Wallace, 25 Gal. 110, §5 278, 
 
 282, 319, 330, 338. 
 Bresee v. Stiles, 22 Wis. 120, § 393. 
 Brettunu.Fox, 100 Mass. 234, JJ 279, 364. 
 Brewer v. Wall, 23 Tex. 589, 5§ 56, 258, 
 
 259, 330, 339. 
 Brewer's Adm. V, Granger, 45 Ala. 580, 
 
 §556. 
 Briggs V. Hubbard, 19 Vt. ( 4 Wash.) 86, 
 §46. 
 V. MoCuUough, 36 Gal. 542, § 585. 
 V. Strange, 17 Mass. 405, § 575. 
 Brigham v. Bush, 33 Barb. 596, § 532. 
 Brmkerhoflf I). Everett, 38 111. 263, § 279. 
 Broad v. Broad, 40 Gal. 493, §§ 330, 338. 
 v., Murray, 44 Gal. 228, §§ 330, 
 %38. 
 Bronson v. Kinzie, 1 How. 316, §§ 11, 
 23, 24, 27, 28, 35, 43. 
 v. Newberry, 2 Douglas (Mich.) 
 38, §§ 24, 28. 
 Brooks V. Hyde, 37 Gal. 373, §§ 113, 114, 
 
 127, 262. 
 Brown v. Brown, 33 Miss. 39, § 346. 
 
 V. Goon, 36 HI. 248, §§ 179, 239, 
 
 247, 252. 
 V. Hebard, 20 Wis. 326, § 559. 
 V. Keller, 32 111. 154, §§ 103, 112. 
 Browne v. Witt, 19 Wend. 475, § 583. 
 Bruce V. Schuyler, 4 Gill (111.) 241, § 32. | 127. 
 
 Brusiet;. Griffith, 34 Gal. 302, §§576, 
 
 578. 
 Buck V. Conlogue, 49 111. 394, §§ 282, 
 
 290, 402. 
 Buckingham v. Billings, 13 Mass. 82, § 
 564. 
 V. Nelson, 42 Miss. 417, §§ 
 215, 229. ' 
 Bull u. Conroe, 13 Wis. 233, § 94. 
 Bnllene v. Hiatt, 12 Kan. 100, Add. § 
 
 198. 
 Bumpus V. Maynard, 38 Barb. (N. Y.) 
 
 626, §§ 528, 583. 
 Bumgardner v. Gircuit Gourt, 4 Mo. 50, 
 
 §§ 25, 28. 
 Bunker u. Locke, 15 Wis. 635, § 138. 
 Burford v. Rosenfield, 37 Tex. 42, § 215. 
 Burke v. Gleason, 46 Penn. St. 297, § 382. 
 Burleson v. Burleson, 28 Tex. 418, §§ 
 
 ?30, 339. 
 Burmeister v. Dewy, 27 Iowa 468, § 444. 
 Burnap v. Cook, 16 Iowa 149, §§ 215, 
 
 226. 
 Bums V. Jones, 37 Tex. 50, §§ 262, 305, 
 332. 
 V. Keas, 21 Iowa 257, §§ 317, 362. 
 V. Thayer, 101 Mass. 426, §§ 208, 
 270. , 
 Burnside v. Terry, 45 Ga. 621, §§ 242, 
 
 243, 262. 
 Burt V. Box, 36 Tex. 114, § 413. 
 Butler V. Palmer, 1 Hill 324, § 28. 
 Butler et al. v. Pennsylvania, 10 How. 
 
 416, § 41. 
 Buxton V. Dearborn, 46 N. H. 44, §§ 58, 
 
 133, 519. 
 Byers ■u.-Byers, 21 Iowa 268, §§ 307, 308, 
 
 309. 
 Byrd v. Curlin, 1 Humph. (Tenn.) 466. 
 
 §553. 
 Byrne v. Stewart, 3 Dessau (S. C.) 135, § 
 
 67. 
 
 Gabeen v. Mulligan, 37 Dl. 230, §§ 279, 
 
 283, 290, 402. 
 Galder v. Bull, 3 Dall. 386, §§ 29, 45, 48. 
 Calderwood v. Tevis, 23 Gal. 336, §§ 113, 
 
26 
 
 TABLE OF CASES. 
 
 Calhoun v. Calhoun, 2 S, 0.,'§$ 284, 215. 
 V. Knight, 10 Cal. 393, $5 576, 
 
 578. 
 V. MoLendou, 42 Ga. 405, JJ 
 161,352. 
 
 V. Snyder, 6 Binn (Penn.) 135, 
 §178. 
 Call V. Hagger, 8 Mass. 423, §§ 27, 44. 
 Callanan v. Shaw, 19 Iowa 185, § 422. 
 Cameto v. Dupuy, 47 Cal. 79, 5§ 126, 326. 
 Campbell v. Adair, 45 Miss. 170, 5§ 278, 
 281, 282, 283. 
 V. Ayers, Iff Iowa 255, § 444. 
 i;. Babcook, 27 Wis. 512, §$ 271, 
 
 272. 
 V. Gould, 17 Ind. 133, § 537. 
 V. MoManus, 32 Tex. 442, §$ 
 119, 130, 178, 215, 233. 
 Canal Co. ». Railroad Co., 4 Gill. & J. 
 
 (Md.) 152, 5 51. 
 Cannon v. Bonner, 38 Tex. 487, J 412. 
 Cargill V. Power, 1 Mich. 369, § 43. 
 Camrlck v. Meyers, 14 Barb. 11, J 585. 
 Carpenter v. Herrington, 25 Wend. 370, 
 
 §§ 55, 519. 
 Carr v. Caldwell, 10 Cal. 384, U 218, 
 
 222, 270. 
 Gary v. Tice, 6 Cal. 625, J5 172, 269. 
 Case V. Dunmore, 23 Penn. St. 93, §5 297, 
 
 542. 
 Cass V. Dillon, 2 Ohio St. 607, $ 40. 
 Cassell V. Boss, 33 111. 244, 55 215, 224, 
 246, 270. 
 V. Williams, 12 HI 387, 5 553. 
 Caaselman v. Packard, 16 Wis. 115, 5§ 77, 
 
 87, 90. 
 Castle V. Palmer, 6 Allen 404, $§ 67, 70, 
 
 254, 438. 
 Caswell V. Keith, 12 Gray 351, § 565. 
 Catlin V. Munger, 1 Tex. 598, 5§ 25, 38. 
 Cavender v. Smith, 8 Iowa 360, $ 376. 
 Chamberlain v. Lyell, 3 Mich. 448, §§ 
 
 183, 239, 262. 
 Chambers v. Halstead, Hill & D. Supp. 
 
 385, § 585. 
 Chambliss v. Jordon, 50 Ga. 81, J 50. , 
 
 V. Phelps, 39 Ga. 386, §§ 47, 
 215, 231. 
 Chapman v. Lester, 12 Kan. 593, Add. $ 
 189. 
 
 Charles Kiver Bridge Case, 11 Pet. 538, 
 
 5 45. 
 Charless v. Lamberson, 1 Iowa 439, §§ 9, 
 46, 54, 55, 84, 165, 1^9, 170, 175, 195, 
 269, 279. 
 Chase V. Abbott, 20 Iowa 154, ^ 72, 415, 
 
 456. 
 Cheatham v. Jones, 68 N. 0. 153, $ 117. 
 Chicago & S. W. B,. R. v. Swinney, 38 
 
 Iowa 182, § 303. 
 Chilson V. Reeves, 29 Tex. 276, § 4i4. 
 Christy z). Dyer,"14 Iowa 438, 5§ 16S, 170, 
 
 J.71, 195, 215, 226, 246, 270, 279. 
 Cilinger's Appeal, 35 Penn. 537, J 368. 
 Cipperly v. Rhodes, 53 III. 346, 5§ 233, 
 
 282. 
 Clark V. Bayley, Sup. Ct. Oregon, Dec. 
 Term, 1874, Cent. L. Jour., May 
 1, '75, § 141. 
 V. Martin, 49 Penn. St. 299, § 28. 
 V. Nolan, 38 Tex. 416, § 339. 
 V. Potter, 13 Gray 21, 55 67, 70, 
 
 166, 207. 
 V. Shannon, 1 Nev. 568, 55 88, 104, 
 240, 243, 247, 262,267, 415. 
 Clarkin v. Lewis, 20 Cal. 634, ^5 257, 
 
 258, 259. 
 Clegg V. Houston, 1 Phil. R. 352, 55 143, 
 
 163. 
 Clements v. Lee, 47 Ga. 626, 5 98. 
 
 V. Stanton, 47 Cal. 60, 55 61, 
 433. 
 Cobbs V. Coleman, 14 Tex. 594, 55 62, 
 
 534. 
 Coburn v. EUenwood, 4 N. H. 99, 5 120. 
 Cochran v. Van Surly, 20 Wend. 379, 55 
 
 18, 45. 
 Coe V. Smith, 47 HI. 225, 55 177, 179.'''^' 
 Ooffman v. Bank of Ky., 40 Mis's. 29, 5 
 
 42. 
 Cogel V. Miokow, 11 Minn. 477, 55 34, 
 
 65, 139, 169, 183, 204. 
 Cohen v. Davis, 20 Cal. 187, 55 67, 70, 
 
 269, 329. 
 Cohens v. Virginia, 6 Wheat. 264, 5 18. 
 Cole V. Gill, 14 Iowa 527, 55 165, 170, 
 
 171, 195, 215, 226, 279. 
 Cole V. Green, 21 111. 104, 5 537. 
 
 V. Stems, 6 How. Pr. 424 ; also,' 9 
 Barb. 676, 5 554. 
 
TABLE OP CASES. 
 
 27 
 
 Cole's Widow v. Ex., 9 Martin 401, ^ 
 
 358. 
 CoUey V. Duncan, 46 Ga. 668, §. 407. 
 Collins V. Boyd, 56 Penn. 402, § 536. 
 V. Niciols, 5 Ind. 447, § 538. 
 Colton V. "Wood, 25 Iowa 43, § 317. 
 Colwell V. Carper, 15 O. St. 279, § 117. 
 Commonwealth v. Cook, 8 Bush. 225, § 
 
 185. 
 Commonwealth v. New Bedford Bridge, 
 
 2 Gray 339, § 38. 
 Compher v. Compher, 25 Penn. St. 31, § 
 
 361. 
 Conant v. Van Schaik, 24 Barb. (N. T.) 
 
 87, § 37. 
 Conkey v. Hart, 14 N. T. 22, § 28. 
 Ccnklin v. Foster, 57 m. 104, §§ 117, 
 
 179, 180, 240, 442. 
 Connor v. McMurray, 2 Allen 204, §$ 67, 
 70, 242, 262, 265. 
 u. Nichols, 31 ni. 148, 5$ 265, 
 418. 
 Conroy v. Sullivan, 44 HI. 451, §§ 72, 
 
 201. 
 Cook V. Baiae, 37 Ala. 350, §§ 539, 555, 
 556, 557, 576. 
 V. Klink, 8 Cal. 347, ^ 262, 263. 
 V. MoChristian, 4 Cal. 26, §§ 4, 55, 
 
 56, 68, 145, 165, 282, 456. 
 V. Moffat, 5 How. 316, § 27. 
 u. Newman, 8 How. N. T. Pr. 523, 
 
 § 200. 
 V. Scott, 6 111. 333, § 551. 
 V. Waters, 9 Bank Reg. 155, § 464. 
 Cooley, Succession of, 26 La. An. 166, 
 
 Add. § 359. 
 Coolidge V. Wells, 20 Mich. 79, §§ 165, 
 
 170, 171. . 
 
 Coon V. Jones, 10 Iowa 132, § 414. 
 Cooper V. Newman, 45 N. H. 339, J 581. 
 V. Reeves, 13 Ind. 53, § 538. 
 V. Singleton, 19 Tex. 267, § 331, 
 339. 
 Coosa River Steamboat Co. v. Barclay, 
 
 30 Ala. 120, § 25. 
 Corbett v. Norcross, 35 N. H. 99, § 120. 
 Coriell v. Ham, 4 Greene (Iowa) 455, §§ 
 
 28, 31. ^ 
 Cornelia v. Ellis, 11 111. 585, § 551. 
 Cornell v. Hiohens, 11 Wis. 353, § 32. 
 
 Comer v. Bourg, 26 La. An. 615, Add. § 
 
 355. 
 Corp V. Griswold, 27 Iowa 379, § 577. 
 Cotton V. Wood, 25 Iowa 43, J J 317, 362. 
 Couch V. MeKee, 6 Ark. 484, J 44. 
 Cowan V. Main, 24 Wis. 569, 5 582. 
 Cox V. Berry, 13 Ga.- 306, § 44. 
 
 V. Shopshire, 25 Tex. 113, § 278. 
 V. Stafford, 14 How. Pr. 519, §§ 532, 
 
 554. 
 ij. Wilder, 2 Dill. 0. C. 46, §§ 68, 
 234, 387, 463, 468, 469, 471, 473, 
 487, 515. 
 Cracker v. Mathews, 25 Ga. 571, U 560, 
 
 561. 
 Craft V. Curtis, 25 How. Pr. 163, J 554. 
 Crawford u. Lockwood, 9 How. Pr. R, 
 
 547, 55 542,545, 547. 
 Cross V. Evarts, 28 Tex. 524, ^ 259, 285, 
 
 450, 451. 
 Crow V. Whitworth, 20 Ga. 38, §§ 56, 166. 
 Culver V. Rogers, 28 Cal. 525, U 176, 214, 
 
 233, 467. 
 Crummen v. Bennett, 6 N. C. 494, 5 234, 
 Cummings v. Long, 16 Iowa 41, § 193. 
 Curran v. Arkansas, 15 How. 304, 5 42. 
 Curtis V. O'Brien, 20 Iowa 376, §§ 542, 
 
 545. 
 Cusic V. Douglas, 3 Kan. 123, §5 11, 18, 
 
 24, 35. 
 Cutts V. Hardee, 38 Ga. 350, J 25. 
 
 Dains v. Prosser, 32 Barb. 290, §§ 574, 579, 
 
 585. 
 Damman v. Com. School Lands, 4 Wis. 
 
 414, 5 37. 
 Danforth v. Woodward, 10 Pick. 423, §5 
 
 564, 569. 
 Daniels v. Hayward, 5 Allen 43, § 564. 
 Danks v. Quackenbush, 3 Denio 594, §§ 
 24, 28. 
 V. Quackenbush, 1 N. Y. 129, §J 
 24, 26, 28. 
 Davenport v. Alston, 14 Ga. 271, §§ 56, 
 
 112, 147, 166, 169. 
 Davis' Appeal, 34 Penn. St. 256, § 380. 
 
28 
 
 TABLE OF CASES. 
 
 Davis V. Allen, 11 Ala. 164, 5 529. 
 
 V. Andrews, 30 Vt. 678, ^ 71, 118, 
 
 242, 247, 291, 318, 369. 
 V. Dodds, 20 Ohio St. 473, § 108. 
 V. Henson, 29 Ga. 345, § 200. 
 V. Humphrey, 22 Iowa 137, 5 561. 
 V. Kelly, 14 Iowa 523, 5§ 171, 283. 
 V. Meyers, 41 Ga. 95, § 554. 
 V. Peabody.-lO Barb. 91, § 554. 
 V. Wetherell, 13 Allen 60, 5 437. 
 V. Wood, 7 Mo. 162, § 565. 
 Davlin v. Stone, 4 Gush. 359, § 564. 
 Dawley v. Ayers, 23 Cal. 108, §§ 72, 150. 
 Day V. Adama, 42 Vt. 510, J 318. 
 V. Graham, 6 111. 435, J 444. 
 Dearing v. Thomas, 25 Ga. 224, J§ 169, 
 
 280. 
 De Cordova t). Galveston, 4 Tex. 470, § 42. 
 Derre v. Chapman, 25 HI. 610, 5§ 54, 59, 
 
 112, 117, 127, 147, 519. 
 Deffeliz v. Pico, 46 Cal. 289, §§ 69, 179, 
 
 182, 199, 240, 442, 446. 
 Delevan v. Pratt, 19 Iowa 429, §§ 193, 
 
 454. 
 Dellinger v. Tweed, 66 N. C. 206, $ 201^ 
 Deltzer v. Sheuster, 37 lU. 301, § 408. 
 Denegre u. Haun, 14 Iowa 240, §§ 189, 
 
 444. 
 Denny v. White, 2 Cold. (Tenn.) 283, 5 
 
 542. 
 Detweiler's Appeal, 44 Penn. St. 243, § 
 
 384. 
 Dickeraon v. Van Tine, 1 Sandford 724, 5 
 
 522. 
 Dickson v. Chorn, 6 Iowa 21, $ 274. 
 D,ieffenderfer V. Fisher, 3 Grant's Cases 
 
 30, M 238, 532. 
 Di'ehl V. Holben, 39 Penn. St. 213, § 537. 
 Dillon V. Byrne, 5 Cal. 455, §5 202, 215, 
 "■ 219. 
 
 Dixon V. Dixon, 4 La. 191, 5 358. 
 Doane v. Doane, 33 Vt. 652, §5 318, 387. 
 Dodds V. Dodds, 26 Iowa 311, § 362. 
 J)odge i;. Woolsey, 18 How. 331, § 40. 
 Dodson's Appeal, 25 Penn. 234, §§ 67, 169, 
 
 291, 295, 535, 538, 542. 
 DoUman v. Harris, 5 Kan. 597, §5 179, 
 
 240, 262, 418. 
 Dopp V. Albee, 17 Wis. 590, ^ 35, 195. 
 Dornanu. McAuley, 3 Phila. 324, J 420. 
 
 Dorsey v. MoFarland, 7 Cal. 342, §§ 179, 
 
 240, 242, 262, 280, 284, 319, 342, 345. 
 Doyden v. Frost, 3 Myl. & C. 670, J 2l5. 
 Doyle V. Cohum, 6 Allen 71, $5 147, 151, 
 
 153, 242, 244, 307, 308. 
 Dow V. G. and 0. G. & S. M. Co., 31 Cal. 
 
 653, 55 106, 324. 
 Dowling V. Clark, 1 Allen 283 ; also, 3 
 
 Allen 571, § 564. 
 Draper v. Baker, 12 Cush. 288, § 377. 
 Dresor v. King, 34 Penn. St. 201, J 550. 
 Dreutzeru. BeU, 11 Wis. 114, §§ 111, 
 
 489. 
 Drum, Succession of Tobias, 26 La. An. 
 
 539, Add. § 355. 
 Drury v. Baohelder, 11 Gray 214, §§ 242, 
 
 244, 278. 
 Dryden v. Froat, 3 Myl. & C. 670, 5 231. 
 Duffenderfer v. Fisher, 3 Grant's Cases 
 
 30, 5 538. 
 Danker v. Chedio, 4 Nev. 378, § 64. 
 Dulanty v. Pynchon, 6 Allen 510, §§ 67, 
 
 70. 
 Dunlap V. Bdgerton, 30 Vt. 224, § 573. 
 V. Wright, 11 Tex. 597, § 217. 
 Dunn V. Tozer, 10 Cal. 167, 5§ 280, 284, 
 
 319, 442, 446. 
 Dunton V. Woodbury, 24Iowa 74, 55279, 
 
 283, 289, 290, 401, 402. 
 Duperron v. Communy, 6 La. An. 789, 5 
 
 571. 
 Duvall V. BoUins, 68 N. C. 220, 5 555. 
 Dye V. Mann, 10 Mich. 291, 55 69, 169, 
 
 240, 247, 267, 301, 444. 
 Dyson v. Sheley, 11 Mich. 527, 55 90, 165, 
 
 166, 176. 
 
 E. 
 
 Eager w. Taylor, 9 Allen 156, 5 563. 
 Earl V. Camp, 16 Wend. 562, 5 535. 
 Earle v. Barle, 9 Tex. 630, 55 165, 175, 
 
 242, 289, 401. 
 East Hartford u. Hartford B. Co., 10 
 
 How. 539, 5 45. 
 Eastman v. Caswell, 8 How. Pr. 75, 5§ 
 
 55, 519, 579, 585. 
 Eberhart's Appeal, 39 Penn. 509, 5 535. 
 Eckhardt v. Sohleoht, 29 Tex. 129, 5 
 
 285. 
 
TABLE OF CASES. 
 
 29 
 
 Edmonston v. Hyde, 7 Bank Eeg. i, 2 
 
 Sawyer 205, §§ 461, 486. 
 Edwards v. Mahon, 5 Phila. 531, § 238. 
 Eidenmulfer v. EidenmuUer, 37 Cal. 364, 
 
 §304. 
 Eli V. Gridley, 27 Iowa 376, § 252. 
 Elias V. Verdugo, 27 Cal. 418, 55 125, 126, 
 
 248, 268. 
 Elliott V. Elannigan, 37 Penn. 425, § 
 540. 
 V. Whitrabre, 5 Mich. 532, § 549. 
 Ellis V. White, 47 Cal. 75, § 154. 
 Elmore v. Elmore, 10 Cal. 226, $ 165. 
 Elston V. Kobinson, 21 Iowa 531, § 194. 
 V. Robinson, 23 Iowa 208, §J 165, 
 169, 170, 194, 195, 282. 
 Eltzroth V. Webster, 15 Ind. 21, §§ 542, 
 
 546. 
 Emerson u. Sansomfe, 41 Cal. 552, J 443. 
 V. Smith, 51 Penn. St. 90, §§ 
 238, 557. 
 Engelbrecht v. Shade, 47 Cal. 627, §§ 
 
 179, 182, 240. 
 Eslinger v. Eslinger, 47 Cal. 62, J 304. 
 Estate of Boland, 43 Cal. 642, §§ 324, 
 326. 
 Buchanan, 8 Cal. 507, §5 320, 
 
 321. 
 Busse, 35 Cal. 315, 5 322. 
 Delany, 37 Cal. 179, §§ 53, 131, 
 
 279, 321. 
 Isaacs, 30 Cal. 113, § 323. 
 Orr, 29 Cal. 101, § 423. 
 Reed, 23 Cal. 410, §§ 67, 70, 
 
 302, 329. 
 Perdue, North. Dist. Ga., 2 
 
 West. Jurist 279, 5 490. 
 Phelan, 16 "Wis. 76, U 282, 
 
 283. 
 Tompkins, 12 Oal. 114, 55 73 
 280. 
 Eubank v. Poston, 5 Monroe 287, 55 215, 
 
 231. 
 Evans v. Eaton, Peters C. C. 322, 5 48. 
 Evens v. Montgomery, 4 W. and S. 218, 
 
 55 25, 28, 30. 
 Ex parte Beokerford, 1 Dill. 45, 5 460. 
 Bennett, 6 Phila. 472, § 514. 
 Cobb, IBank. Beg. 106, 5 502. 
 Ely, N. Y. Leg. Obs. 131, 5 
 507. 
 
 Ex parte Eeely, 15 Pitts L. J. 291, § 
 504. 
 Grant, 2 Story C. C. 312, 5 501. 
 Jones, 6 West. Jurist 71, 5 
 
 510. 
 Noakes, 1 Bank. Beg. 164, 5 
 
 504. 
 Price, 6 Bank. Beg. 400, 5 515. 
 Bupp, 4 Bank. Beg. 25, 5 515. 
 Strobel, 2 Bioh. N. S. 309; 5 
 
 348. 
 Young, 3 Bank. Beg. Ill, 5 
 515. 
 Eyster v. Hathaway, 50 111. 521, 55 215, 
 223. 
 
 Eaircloth v. St. Johns, 44 Ga. 603, "55 230, 
 
 404, 455. 
 Ealooner v. Campbell, 2 McLean 195, 5 
 
 43. 
 Farmer v. Simpson, 6 Tex. 303, 55 103, 
 
 202, 215, 453. 
 Farmers' Bank v. Franklin, 1 La. An. 
 
 393, § 570. 
 Farra v. Quigley, 57 Mo. 284, 5 101. 
 Farrell v. Higley, Hill and D. Supp, 87, 
 
 5 582. 
 FaversD. Glass, 22 Ala. 621, 55 54, 523. 
 Fergus u. Woodworth, 44 111. 377, 55 
 
 269, 281, 283, 446. 
 Fields V. Moul, 15 Abb. Pr. B. 6, 5 575. 
 Finley v. Dietriok, 12 Iowa 517, 55 67, 
 
 70, 93, 329. 
 Firmstone v. Mack, 49 Penn. St. 387, § 
 
 542. 
 Fishback v. Lane, 36 111. 438, § 179. 
 Fisher v. Meister, 24 Mich. 447, 55 242, 
 
 243, 262, 263, 301. 
 Flege V. Garvey, 47 Cal. 371, 5§ 242, 406. 
 Fletcher v. Peck, 6 Cranoh 133-7, 5 41. 
 V. State Cap. Bank, 37 N. H. 
 369, 5 445. 
 Floyd V. Mosier, 1 Iowa 512, 55 55, 159, 
 
 362. 
 Fogg V. Fogg, 40 N. H. 284, 55 67, 174, 
 
 197. 
 Foley V. McKeegan, 4 Iowa 1, 5 259. 
 
30 
 
 TABLE OF CASES. 
 
 Folger V. Mitchell, 3 Pick. 396, § 120. 
 Folsom V. Carli, 5 Minn. 333, ^ 35, 69, 
 
 71, 147, 184, 239, 278, 279, 330, 339, 
 
 360, 397. 
 Forbes v. Harper, 15 Gal. 202, § 278. 
 Ford V. Jolmson, 34 Barb. 364, §5 519, 
 
 568. 
 Foss V. Straohn, 42 N. H. 40, §5 269, 
 
 441. 
 Franklin v. Coffee, 18 Texas 415, M 2, 
 
 59, 68, 81, 165, 171, 172, 175, 285, 444, 
 
 519. 
 Frazier v. Bamum, 19 N. J. Eq. 816, JJ 
 
 528, 572. 
 Freeman v. Smith, 30 Penn. St. 264, ^ 
 
 238, 547. 
 Frenohyi). Teschemaker, 24 Oal. 518, § 
 
 247. 
 Friedlander v. Mahony, 31 Iowa 311, §5 
 
 99, 556. 
 Frierson v. Wesberry, 11 Rich. S. C. 
 ' (Law) 355, § 56. 
 Frost V. Mott, 34 N. Y. 253, § 551. 
 V. Naylor, 68 N. C. 325, 5 555. 
 V. Shaw, 3 O. St. 270, §§ 56, 166, 
 537, 540, 545. 
 Fuqua v. Chaffe, 26 La. An. 148, Add. \ 
 
 269. 
 Fuller V. Sparks, 39 Tex. 136, § 537. 
 Fullerton v. Doyle, 18 Tex. 10, { 285. 
 Furmau v. Dewell, 35 Iowa 170, 55 100, 
 
 194. 
 Fyffe V. Beers, 18 Iowa 4, §§ 119, 279, 
 
 282, 289, 401. 
 
 Galloway v. Carpenter, 10 Ala. 500, 5 
 
 557. 
 Galpin V. Critohlow, Sup. Ct. Mass., 
 
 13 Am. L. Keg. 137, § 45. 
 Gambette v. Brook, 41 Cal. 83, §5 157, 
 
 269, 279. 
 Gamble v. Reynolds, 42 Ala. 236, J 547. 
 Gangwere's Appeal, 36 Penn. St. 466, §{ 
 
 277, 383. 
 Gantley's Lessee v. Ewing, 3 How. 707, 
 
 543. 
 
 Garbor v. Faulkner, 4 T. E. 565, § 527. 
 Gardner v. Baker, 25 Iowa 343, § 280. 
 Garland v. HUbom, 23 Me. 442, § 582. 
 Garrett v. Beaumont, 24 Miss. 377, § 44. 
 Garrett v. Chesire, 69 N. C 399, §§ 18, 
 32, 33, 46. 
 & Martin's Appeal, 32 Penn. St. 
 160, 5 542. 
 Garruth v, Grossie, 11 Gray 211, § 581. 
 Gary v. Eastabrook, 6 Cal. 457, §§ 79, 
 
 247, 267. 
 Gassaway v. Woods, 9 Bush. (Ky.) 72, § 
 
 388. 
 Gavitt V. Doub, 23 Cal. 79, § 536. 
 Gee u. Moore, 14 Cal. 472, ^ 73, 147, 239, 
 
 242, 267, 319, 330, 338, 417. 
 Getzler v. Saroni, 18 111. 511, § 280. 
 Gibbs V. Bryant, 1 Pick. 121, §5 209, 485. 
 Giblin v. Jordan, 6 Cal. 417, §5 123, 125, 
 
 126, 127, 248. 
 Gibson v. Jenney, 15 Mass. 205, J 54. 
 Giddings v. Crosby, 24 Tex. 295, 5 343. 
 Gill V. Mizell, 43 Ga. 589, 5 186. 
 Gilleland v. Khoades, 34 Penn. St. 187, §§ 
 
 537, 553. 
 Gilman v. Williams, 7 Wis. 329, §§ 519, 
 
 558. 
 Gilpin V. Critohlow, Sup. Ot. Mass., Am. 
 
 L. E., March, 1874. See Galpin. 
 Gimble u. Goode, 13 La. An. 352, 5 355. 
 Gimmy v. Doane, 22 Cal. 635, § 305. 
 Gleason v. Edmonds, 3 HI. 448, § 104. 
 Goddard v. Chaffee, 2 Allen 395, § 573. 
 Godey v. Godey, 39 Cal. 157, 5 304. 
 Godman u. Smith, 17 Ind. 152, § 555. 
 Goenen v. Sohroeder, 8 Minn. 387, J 42. 
 Goldman v. Clark, 1 Nev. 607, §J 67, 72, 
 
 88, 242, 243, 456. 
 Gpod V. Coombs, 28 Tex. 50, ^ 331, 339. 
 
 V. Zercher, 12 Ohio 364, § 46. 
 Goughenantu. Cockrell, 20 Tex. 96, § 278. 
 Graham v. Crockett, 18 Ind. 119, § 161. 
 v. M'CampbeU, Meigs K. 52, §J 
 215, 231. 
 Green v. Crow, 17 Tex. 180, §§ 331, 345. 
 V. Lyndes, 12 Wis. 404, § 456. 
 V. Marks, 25 111. 221, §§ 178, 179, 
 181, 183, 184, 240, 247, 262, 446, 
 449. 
 V. Palmer, 15 Cal. 411, } 528. 
 
TABLE OF CASES. 
 
 81 
 
 Grreenough v. Greenough, 11 Penn. St. 
 489, § 46. 
 V. Turner, 11 Gray 332, 5$ 
 242, 244. 
 Greenup v. Stoker, 12 111. 24, § 444. 
 Greenwood v. Maddox, 27 Ark. 648, §§ 
 
 66, 123, 126, 127, 162, 169, 440. 
 Gregg V. Bostwiek, 33 Oal. 228, §$ 4, 53, 
 68, 79, 91, 92, 131, 169, 170, 172, 279. 
 .Getzler v. Saroni, 18 111. 518, §5 56, 176, 
 
 536, 545. 
 Griffin v. Blanohar, 17 Gal. 71, §§ 218, 
 222. 
 u. MoKenzie, 7 Ga. 163, § 44. 
 V. Sutherland, 14 Barb. 458, ^ 
 
 147, 519, 532, 574, 585. 
 V. Treutlin, 48.Ga. 148, § 270. 
 Griffitlis V. Cunningham, S. C. Gal., July 
 T. '74, Pacif. L. Bep., March 10, '74, 
 §442. 
 Grimes v. Byrne, 2 Minn. 89, 55 24, 43, 
 
 571. 
 Grogan v. San Francisco, 18 Cal. 590, J 
 
 37. 
 Grosholz V. Newman, 21 "Wallace 486, 
 
 Add. § 251. 
 Grosvenor v. Chesley, 48 Me. 369, §§ 28, 
 
 30. 
 Grubbs v. EUyson, 23 Ark. 287, § 197. 
 Guild V. Rogers, 8 Barb. 502, § 28. 
 GuiUory v. DeTille, 21 La. An. 686, § 61. 
 Guiod V. Guiod, 14 Cal. 506, §§ 239, 242, 
 
 280, 282, 284, 319. 
 Gunn V. Barry, 15 "Wall. 623, §5 17, 25, 
 33, 47, 48, 458. 
 V. Barry, 44 Ga. 351, § 47. 
 V. MiUer, 43 Ga. 377, § 186. 
 V. Thornton, 49 Ga. 380, § 50. 
 Gminison v. Twitchel, 38 N. H. 69, §§ 
 58, 69, 71, 242, 247, 262, 291. 
 
 H. 
 
 Hager v. Nixon, 69 N. 0. 108, § 350. 
 Hait V. Houle,^ 19 "Wis. 472, §§ 239, 242, 
 
 243, 247, 262, 264. 
 Hakina v. Arnold, 46 Ga. 656, § 402. 
 Hale V. Heaslip, 16 Iowa 451, $5 186, 
 
 195, Add. § 198. 
 
 Hall V. Penny, U "Wend. 45, § 519. 
 Harablin v. "Warneke, 31 Tex. 91, §§ 
 
 242, 317. 
 Hammer v. Freese, 19 Perm. St. 255, JJ 
 
 537, 538. 
 Hancock v. Morgan, 17 Tex. 585, § 130. 
 Hardeman v. Downer, 39 Ga, 425, §§ 24, 
 ,47. 
 
 Hardy v. Waltham, 7 Pick. 110, § 41. 
 Hargrave i;. Flournoy, 26 La. An. 645, 
 
 Add. 
 Harkins v. Arnold, 46 Ga. 656, JJ 290, 
 
 402. 
 Harlan v. Sigler, 1 Morris (Iowa) 39, § 
 
 32. 
 Harleman v. Buck, 30 Penn. St. 267, § 
 
 547. 
 Harper v. Forbes, 15 Cal. 202, §§ 278, 
 280, 282, 319, 436. 
 V. Leal, 10 How. Pr. B. 282, §§ 
 542, 545. 
 Harrell v. Fagan, 43 Ga. 339, § 554. 
 Harrington v. Utterback, 57 Mo. 519, 
 
 § 442. 
 Harris v. Colquit, 44 Ga. 663, § 414. 
 Harrison v. Martin, 7 Mo. 286, § 563. 
 Hartman v. Thomas, 37 Tex. 90, $5 330, 
 
 338. 
 Harthouse v. Bikers, 1 Duer. 606, $§ 578, 
 
 579. 
 Haswell v. Parsons, 15 Cal. 266, ^ 522, 
 
 539, 540, 542, 545, 584. 
 Hathaway v. Hathaway, 46 Vt. 13 Am. 
 
 L. Beg. N. S. 778, § 373. 
 Haven v. Melogue, 9 Ind. 196, § 536. 
 Hawkins v. Campbell, 1 Eng. (6 Ark.) 
 
 513, 5 44. 
 Hawks V. Hawks, 46 Ga. 204, §5 215, 
 
 225, 246, 270. 
 Hawthorne v. Smith, 3 Nev. 182, §§ 54, 
 
 60, 176, 198, 519, Add. 
 Haynes v. Meek, 14 Iowa 320, § 414. 
 Hazard v. Israel, 1 Binn. 240, 5 550. 
 Head v. "Ward, 1 J. J. Marsh. 281, § 46. 
 Healy v. Bateman, 2 E. I. 454, 5 564. 
 Heard v. Downer, 46 Ga. 629, § 351. 
 Helfenstein v. Cave, 3 Iowa 290, 55 55, 
 56, 166. 
 V. Cave, 6 Iowa 374, 5 430. 
 Helm V. Helm, 11 Kan. 21, Add. 55 252, 
 
 456. 
 
32 
 
 TABLE OF CASES. 
 
 Henderson v. Hoy, 26 La. An. 156, Add. 
 
 5 125. 
 Hensley v. Morgan, 47 Cal. 622, § 405. 
 Herriok v. Graves, 16 "Wis. 157, §§ 104 
 
 138, 282, 283, 447. 
 Herschfeldt v. George, 6 Mich. 468, §§56 
 
 110, 166, 176, 183, 239. 
 Hess V. Bates, Sup. Ct. Penn. 32, Legal 
 
 Int. 336, Add. § 542. 
 Hetrioh v. Campbell, 14 Penn. 263, § 
 
 580. 
 Hettriok v. Hettriok, 55 Penn. St. 290, §§ 
 
 316, 368. 
 "Hewes v. Parkman, 20 Pick. 90, § 542. 
 Hewitt V. Terapleton, 48 111. 367, § 242. 
 Heyward v. Judd, 4 Minn. 483, §§ 28, 31, 
 
 43. 
 Hibben v. Soyer, 33 "Wis. 319, § 234. 
 Hiokox V. Pay, 36 Barb. 9, § 554. 
 Hicks V. Hotchkiss, 7 Johns. Ch. 297, § 
 
 18. 
 Hiokson v. Bryan, 41 Ga. 620, § 394. 
 Higgins V. Higgins, 46 Cal. 259, §§ 97, 
 
 106, 324. 
 Hildebrand's Appeal, 39 Penn. St. 133, § 
 
 383. 
 Hill V. Baebn, 43 111. 477, §§ 419, 444, 
 
 446. 
 Hill V. Boyland, 40 Miss. 618, § 42. 
 V. Hill, 42 Penn. 198, J 383. 
 V. Johnston, 29 Penn. St. 363, §§ 54, 
 
 294, 535, 542. 
 V. Kessler, 63 N. C. 439, §§ 32, 33, 
 
 46. 
 V. Loomis, 6 N. H. 263, J 581. 
 Himmelmanh v. Schmidt, 23 Cal. 117, §5 
 
 55, 269, 330, 338. 
 Hinton V. Hinton, Phill. (N. C.) L. 410, 
 
 § 25. 
 Hodo V. Johnson, 40 Ga. 439, § 351. 
 HoflEmanu. MoDermond, 1 Pitts. 197, M 
 296, 542. 
 V. Neuhaus, 30 Tex. 636, §§ 
 285, 305, 331, 332. 
 Hoitt V. "Webb, 36 N. H. 158, U 90, 
 
 118, 165, 169, 278, 280, 283, 449. 
 Holden v. Pinney, 6 Cal. 234, U 56, 170, 
 172, 175, 178, 278, 280, 282, 328. 
 
 HoUoway v. Sherman, 12 Iowa 282, §5 
 
 25, 28, 31. 
 Holman v. Martin, 12 Ind. 553, §$ 109, 
 
 553. 
 Holmes v. Holmes, 4 Barb. 295, §§ 46, 
 
 557. 
 Homestead Oases, 22 Gratt. 266, §§ 49, 
 
 458, 472. 
 
 Hopper V. Parkinson, 5 Nev. 233, § 215. 
 
 Horn V. Tufts, 39 N. H. 483, §§ 123, 126, 
 
 165, 169, 242, 247, 249, 278, 280, 288, 
 
 291, 370. 
 
 Hoakins v. Litchfield, 31 III. 137, 5 418, 
 
 Add. § 420. 
 Houghton V. Lee, Case No. 4086, July 
 13, 1875, Sup. Ct. Cal., §§ 102, 415, 
 418, 456. 
 Houston V. Smith, 1 Phila. R. 221, 5 548, 
 Howard v. Bugbee, 24 How. 461, § 41. 
 V. Farr, 18 N. H. 457, § 581. 
 V. Wilbur, 5 Allen 219, § 195. 
 V. "Williams, 2 Pick. 81, § 564. 
 Howe V. Adams, 28 "V"t. 544, §§ 69, 242. 
 243, 247, 262, 291. 
 V. McGiyern, 25 "Wis. 525, J 407. 
 Hoyt V. Howe, 3 "Wis. 660, [752] §§ 35, 
 183, 239, 306. 
 V. Yan Alstyne, 15 Barb. 568, §§ 
 554, 558, 579. 
 Huey V. Huey, 26 Iowa 527, § 362. 
 Huey's Appeal, 29 Penn. St. 219, U 238, 
 _ 557. 
 
 Aiugunin v. Dewey, 20 Iowa 368, J 280. 
 Hume V. Gossett, 43 HI. 297, §§ 178, 179, 
 
 185, 262. 
 Hunt V. Hunt, 37 Me. (2 Heath.) 333, § 
 
 38. 
 Huntzinger v. Brook, 3 Grant's Penn. 
 
 Cases 243, § 28. 
 Hurt V. Wilson, 38 Cal. 263, § 231. 
 Hutching v. Chambers, 1 Burr. 579, § 
 
 527. 
 Hutcbings V. Chamberlain, 11 N. T. Leg. 
 
 Obs. 248, 5 579. 
 Hutchinson v. Campbell, 25 Penn. St. 
 
 273, 5 297. 
 Hussay v. Castle, 41 Cal. 239, § 106. 
 Hyatt u. Spearman, 20 Iowa 510, § 211. 
 
TABLB OF CASES. 
 
 33 
 
 Iglehart u. Armiger, 1 Bland. Oh. 519, 
 5 231. 
 V. Wolfin.^OInd. 32, § 31. 
 Ingersoll •<,. Trubody, 40 Cal. 603, § 324. 
 In re Appold, 7 Am. L. Eeg. 624, § 460. 
 Beokerford, 1 Dill. 45, §§ 477, 479. 
 Brown, 3 Bank. Eeg. 60, § 480. 
 Comatock, 1 N. Y. Leg. Obs. 326, § 
 
 506. 
 Davis, 2 Sawyer 256, § 503. 
 Deokert, 13 Am. L. Eeg. 624, % 
 
 458, 460. 
 Detret, 14 Am. L. Reg. 166, % 234, 
 
 469, 473. 
 Dillard, 9 Bank. Eeg. 8, §§458, 460, 
 
 461, 472. 
 Dillard, 13 Am. L. Eeg. 624, § 464. 
 Edwards, 2 Bank. Eeg. 109, § 493. 
 Fetherson, 3 Pitts. E. 480, § 494. 
 Gainey, 2 Bank.' Eeg. 163, § 493. 
 Graham, 2 Bisa. C. G. 449, §§ 506, 
 
 517. 
 Haake, 7 Bank. Eeg. 71, 2 Saw. 
 
 231, § 488. 
 Hay, 7 Bank. Eeg. 344, § 505. 
 Henkel, 2 Sawyer C. G. 305, §§ 
 
 214, 233, 467. 
 Hezekiah, 11 Bank Eeg. 573, § 502, 
 Hook, 2 Dill. 93, § 485. 
 Hunt, 5 Bank. Eeg. 493, § 465! 
 Hunt, 4 Chicago L. N. 5, § 497. 
 Jackson, 2 Bank. Eeg. 158, 5 493. 
 Jare d, Everett, 9 Nat. Bank. Eeg. 
 
 90, } 458. 
 Jordan, 8 Bank. Eeg. 180, § 458. 
 Kean, 8 Bank. Eeg. 467, § 458. 
 Laidlaw, 1 Abb. N. Dig. 259, § 505. 
 Ludlow, 1 N. Y. L. Obs. 322, § 506. 
 Merch. Ins. Co., 3 Biss. C. C. 162, § 
 
 464. 
 Murrin, 2 Dill. 125, § 513. 
 Parks, 9 Bank. Eeg. 271, § 481. 
 Pratt, Pacific L. Eep., Jan. 23, '74, 
 
 §234. 
 Pratt, Cent. L. J., June 11, '74, §§ 
 
 469, 487. 
 Preston, 6 Bank. Eeg. 545, § 505. 
 
 Homestead — 3. 
 
 InreQuinike, 2 Biss. C. 0. 354, § 464. 
 Eeed, 23 Cal. 410, § 56. 
 Richardson & Co., Ch. L.N. 62, Nov. 
 
 14, '74 ; also 11 Bank. Eeg. 114, § 
 
 515. 
 Euth, 6 Phila. E. 438, § 504. 
 Euth, 7 Am. L. Eeg. 157, § 502. 
 Schwartz, 4 Bank. Eeg. 189, § 511. 
 Shaak's Estate, 3 Pitts. 275, § 386. 
 Smith, 8 Bank. Eeg. 401, 427, §458. 
 Solomon, Am. L. T. E. 351, Aug., 
 
 '74, §§ 491, 542, 545. 
 Stevens, 2 Biss. C. C. 373, §§ 500, 
 
 509. 
 Summers, 3 Bank. E«g. 21, § 482. 
 Taylor, 3 Bank. Eeg. 38, § 482. 
 Tertelling, 2 Dill." 341, §§,77,' 81, 
 
 82, 83, 459, 461, 478. 
 Thornton, 2 Bank. Eeg. 68 ; also 8 
 
 Am. L. Eeg. 42, § 505. 
 Tretherson, 5 0. L. News 193, § 494. 
 Watson, 2 Bank. Eeg. 174, § 477. 
 Welch, 5 Bank. Eeg. 348, § 505. 
 Whetmore, Deady 585, §§ 495, 512. - 
 Williams, 5 L. Eeporter 155, §§ 
 
 463, 504. I 
 
 Wright, 3 Biss. 359, § 474. 
 Ives V. Mills, 37 111. 73, § 285. 
 
 James v. Thompson, 14 Tex. 466, § 331. 
 
 V. StuU, 9 Barb. 485, § 36. 
 Jarboe v. Colvin, 4 Bush 71, § 269. 
 Jarvis v. Jarvis, 3 Edw. Ch. 490, 465, § 
 
 46. 
 Jeflferson Br. Bank v. Skelly, 1 Black 436, 
 
 § 17. 
 Jenness v. Cutler, 12 Kan. 515, Add. §§ 
 
 270, 456. 
 Jenny v. Grey, 5 Ohio St. 45, § 242. 
 Jewett V. Guyer, 38 Vt. 217, §§ 98, 291, 
 
 262. 
 Johnson v. Babcock, 8 Allen 583, § 581. 
 u. Bishop, 1 Woolworth 324, §§ 
 
 464, 496. 
 V. Bond, 1 Hemp. 533, § 42. 
 V. Bush, 49 Cal., §§ 317, 330, 
 338. 
 
34 
 
 TABLE OP CASES. 
 
 Jolmson V. McDonnell, 37 Tex. 595, § 
 451. 
 Richardson, 33 Miss. 462, ^ 117, 
 
 127. 
 Smith, 21 Tex. 726, § 242. 
 Johnston v. Davenport, 42 Ala. 317, §J 
 , 390, 409. 
 Johnston and Sutton's Appeal, 25 Penn. 
 
 St. 117, §§ 294, 539, 542. 
 Jones V. Brandon, 48 Ga. 593, § 50. 
 u.Do-w, 18 Wis. -241, §276. 
 V. Jones, 15 Tex. 463, % 330, 339. 
 V. Tracy, West. Jurist 107, J 486. 
 Joplin V. Fleming, 38 Tex. 526, 5 217. 
 Jordan u. Autrey, 10 Ala. 276, $§545, 546. 
 V. Godman, 19 Tex. 273, § 345. 
 V. Peak, 38 Tex; 429, § 196. 
 V. Strickland, 42 Ala. 315, § 389. 
 Judge of 'Probate u. Simouds, 46 N. H. 
 363, 5 371. 
 
 K. 
 
 Kanouse u. Martin, 14 How. 23, §5'18, 
 45. 
 V. Martin, 15 How. 198, §5 18, 
 45. 
 Kasteru. MoWilliams, 41 Ala. 302, §§ 
 
 165, 169. 
 Kee V. Hobensick, 2 Pliila. 82, § 540. 
 Keiffer v. Barney, 31 Ala. 192, % 156, 
 
 53% 
 Keller v. Brioker, 64 Penn. St. 379, § 
 
 537. 
 Kellesberger v. Kopp, 6 Cal. 565, §§ 126, 
 
 249, 260, 269. 
 Kelley v. Baker, 10 Minn. 134, §§ 67, 70, 
 
 87, 117, 139, 329. 
 Kelly V. Payne, 18 Ala. 371, § 231. 
 Kemp V. Kemp, 42 Ga. 523, § 354. 
 Kendell v. Clark, 10 Cal. 17, §§ 69, 182, 
 
 199, 442, 446, 455. 
 Kenedy v Kenedy, 2 Ala. 572, § 51. 
 Kennedy v. Philbriok, 38 Me. 135, § 
 
 582. 
 Kenny v. Collins, 4 Litt. 289, % 215, 231. 
 Kent V. Agard, 22 Wis. 150, § 104. 
 Kenyon v. Baker, 16 Mich. 373, §§ 563, 
 
 564. 
 
 Kenyon v. Stewart, 44 Penn. St. 179, § 
 
 28. 
 Kerley v. Kerley, 13 Allen 286, $ 69. 
 Kerr v. Sharp, 14 S. and R. 399, $ 550. 
 Keyes v. Hill, 30 Vt. 759, §5 318, 360. 
 Kibby v. Jones, 7 Bush (Ky.) 243, §§ 210, 
 
 213. 
 Kidd V. Lester, 46 Ga. 231, § 352. 
 Kilbum V. Demming, 2 Vt. 404, §§ 567, 
 
 568. 
 Kilgore v. Beck, 40 Ga. 293, §§ 57, 432, 
 
 455. 
 King V. Dedham Bank,, 15 Mass. 447, J 
 37. 
 V. King, 100 Mass. 224, § 377. 
 V. Moore, 10 Mich. 538, $5 519, 521, 
 ' 582. 
 Kiugsley v. Kingsley, 39 Cal. 665, §J 126, 
 
 143, 323. 
 Kirtla^id v. Davis, 43 Ga. 318, § 85. 
 Kitohell V. Burgwin, 21 111. 44, §5 54, 55, 
 
 59, 147, 279, 285, 291. 
 Kittle V. Pfeiffer, 22 Cal. 484, § 303. 
 Kneettle v. Newcomb, 22 N. T. 249, §§ 
 
 542, 545. 
 Knight V. Whitman, 6 Bush 51, § 213. 
 Knox V. Chadbourne, 28 Me. 160, {§ 
 
 564, 567. 
 Kreain v. Mau, 15 Minn. 116, §§ 139, 165, 
 
 169. 
 Kunzler v. Kohaus, 5 Hill 317, § 18. 
 Kurz V. Brusoh, 13 Iowa 371, § 84. 
 Kyles and Dunlap's Appeal, 45 Penn, St. 
 
 353, §§ 215, 228. 
 
 Lacy u. Clements, 36 Tex. 661, $ 242. 
 Ladd V. Dudley, 45 N. H. 61, 5 210. 
 Laing v. Cunningham, 17 Iowa 510, §§ 
 
 193, 211. 
 Lamb v. Shays, 14 Iowa 567, §§ 179, 181, 
 
 182, 183, 193, 240, 262. 
 Lambert v. Powers, 36 Iowa 18, §§ 274, 
 
 444. 
 Lambeth v. Milton, 2 Robinson (La.) 81, 
 
 5 571. 
 Lamont v. Che.shire, 6 Lans. (N. Y.) 234, 
 
 Add. § 198. 
 
TABLE OF CASES. 
 
 35 
 
 Lane v. Baker, 2 Grant's Cases 424, § 200. 
 V. Collier, 46 Ga. 580, §§ 215, 225. 
 Larenoe v. Evans, 50 Ga. 216, § 50. 
 Larson v. Eeynolds, 13 Iowa 579, §§ 240, 
 
 244, 263, 301. 
 Lasey v. Phipps, 1 Am. L. 'Reg., N. S., 
 
 Ap., 1874, 236, § 49. 
 Lassen v. Eeynolds, 13Io-«ra 579, § 262. 
 Lassen v. Vance, 8 Cal. 271, 55 215, 221, 
 226, 246, 270. 
 ■ Lathrop v. Singer, 39 Barb. 396, § 200. 
 V. Soldier's L. A., 45 Ga. 483, § 
 155. 
 Lanck's Appeal, 44 Penn. St. 396 ; also 24 
 
 Penn. St. 426, §§ 294, 296, 383, 542. 
 Lawrence v. Miller, 1 Sandf. 516, § 46. 
 Lawton v. Bruce, 39 Me. 486, §5 56, 165, 
 
 166, 169, 170, 183, 239. 
 Lawver v. Slingerland, 11 Minn. 447, §§ 
 
 242, 243, 262, 264. 
 Lay V. Gibbons, 14 Iowa 377, §§ 276, 444. 
 Lazell V. Lazell, 8 Allen 575, U 67, 70, 
 
 80. 
 Leavitt v. Metoalf, 2 Vt. 342, § 572. 
 Lee V. Kingsbury, 13 Tex. 71, §§ 240, 
 242, 414. 
 i;. Miller, 11 Allen 37, §5 165, 169, 
 170. 
 Lent V. Morrill, 25 Cal. 499, §§ 240, 271. 
 
 V. Shear, 26 Cal. 370, §§ 269, 271." 
 Levioks v. Walker, 9 Am. L. Eeg. (La.) 
 
 112, 5 542. 
 Lies tj. Diablar, 12 Cal. 327, §5 4, 158, 
 240, 242, 243, 247, 262, 263, 267, 287, 
 .319, 401, 404. 
 Lindsey v. I'uller, 10 Watts (Penn.) 144, 
 
 §581. 
 Line's Appeal, 2 Grant's Cases 197, §5 56, 
 
 67,' 166, 291, 535, 539, 542. 
 Linton v. ftuinby, 57 111. 273^ §§ 444, 
 446. 
 Little V. Birdwell, 27 Tex. 690, §§ 344, 
 
 411. 
 Locke V. Eowell, 47' N. H. 46, ^ 278, 
 
 280, 283, 487. 
 Lootett V. Usry, 28 Ga. 345, § 42. 
 Lookhart u. White, 18 Tex. 102, § 331. 
 Lockwood V. Younglove, 27 Barb. 505, 
 
 U 540, 579. 
 Lord V. Chadboume, 42 Me. 429, § 31. 
 >.. Hough, 43 Cal. 581, U 106, 304. 
 
 Lord V. Morris, 18 Cal. 482, §§240, 269, 
 
 271. 
 Love V. Moyneham, 16 111. 277, § 456. 
 Low V. Allen, 26 Cal. 141, §§ 269, 271. 
 Lowe V. Stringham, 14 Wis. 222, § 531. 
 Lowry v. Fisher, 2 Bush 70, § 213. 
 Lloyd v: Durham, 1 Winston 288, § 556. — 
 V. Frank, 30 Wis. 306, §§ 240, 
 276, 44;4. 
 Lumpkin v. Eason, 10 Bank. Eeg. 549, 
 
 § 483. 
 Luther v. Drake, 21 Iowa 92, ^ 242, 247. 
 Lyman's Adm. v. Byam, 38 Penn. St. 
 
 475, § 381. 
 Lynch v. Pace, 40 Ga. 173, § 409. 
 Lyon V. Walsh, 20 Iowa 578, §§ 416, 456. 
 
 M. 
 
 MoAfoose's Appeal, 32 Penn. 277, U 535, 
 
 539. 
 McCabe v. MazzuchelU, 13 Wis. 478, § 
 
 456. 
 MoCartee v. Orphan Asylum, 9 Cow. 437, 
 
 §67. 
 McCarthey'e Appeal, 68 Penn. St. 217, 
 
 §■§ 238, 541, 557. 
 MoCauley v. Brooks, 16 Gal. 11, §§ 37, 
 
 38. 
 McClary v. Bixby, 36 Vt. 257, §§ 11, 123, 
 
 124, 126, 318. 
 McClurken v. MoClurken, 46 111. 327, §§ 
 
 113, 117. 
 
 MoCormick v. Pickering, 4 N. Yt 276, § 
 
 18. 
 
 V. Eusch, 15 Iowa 127, § 31. 
 
 V. Wilcox, 25 m. 274, § 269. 
 
 McCraoken v. Hayward, 2 How. 612, 5^ 
 
 15, 27, 28, 43. 
 MoCreery v. Fortson, 35 Tex. 641, §§ 
 
 217, 414, 444, 454. 
 McDonald v. Badger, 23 Cal. 394, §§ 68, 
 91, 131. 
 V. Crandall, 43 111. 232, §§ 69, 
 .,179, 239, 242. 
 McDowell V. Shotwell, 2 Wharton 26, § 
 
 566. 
 MoFarlaud v. Goodman, 13 Am. L. Eeg. 
 697, §§ 234, 469, 470, 473, 489. 
 
36 
 
 TABLE OF CASES. 
 
 McGee v. Anderson, 1 B. Monroe 187, § 
 
 538. 
 MoGtee v. Way, 46 Ga. 282, § 454. 
 McHendry v. Eeilly, 13 Cal. 75, J^ 202, 
 
 215, 219. 
 MoKee v. Wilcox, 11 Mieh. 358, ^ 71, 
 
 119, 456. 
 MoKeithan v. Terry, 64 N. C. 25, § 46. 
 MoKenney v. Eeader, 6 Watts 34, § 542. 
 MoKenzie v. Murphy, 24 Ark. 155, § 147. 
 MoKerthan v. Terry, 64 N. C. 25, 5 33. 
 McLaren v. Pennington, 1 Paige 102, § 
 
 : 25. 
 
 McLaughlin v. Hart, 46 Cal. 688, 5 444. 
 McManus v. Campbell, 37 Tex. 267, U 
 
 119, 178, 215, 217, 233, 240. 
 McMillan v. Warner, 38 Tex. 414, 5 283. 
 McMurry v. Connor, 2 Allen 205, § 264. 
 Mcauade v. Whally, ft Cal. 612, §5 57, 
 
 239, 319, 330. 
 Mack V. Parks, 8 Gray 517, § 528. 
 Maokey v. Wallace, 26 Tex. 526, §§ 178, 
 
 424. 
 Magee v. Magee, 51 111. 500, U 215, 221. 
 V. Bice, 37 Tex. 592, §§ 330, 339. 
 Mallon and Wife v. Gates, 26 La. An. 
 
 610, Add. J 456. 
 Malone v. Kaufman, 38 Tex. 483, § 218. 
 Malony v. Fortune, 14 Iowa 417, § 46. 
 Maltby v. Cooper, 1 Morris (Iowa) 59, § 
 
 32. 
 Mandlove v. Burton, 1 Ind. 41, § 557. 
 Manufae. Bank u. Bayless, 1 West. L. 
 
 Mo. 356, 55 475, 498. 
 Mann v. Kogers, 35 Cal. 317, U 113, 131, 
 
 279. 
 Mannan v. Merritt, 11 Allen 582, § 584. 
 Manning v. Dove, 10 Rich. (S. C.) L. 
 395, §5 166, 169, 403. 
 V. Merritt, 1 Clark Ch. (N. Y.) 
 98, 5 67. 
 Marks v. Marsh, 9 Cal. 96, §§ 72, 262, 
 415, 456. 
 V. State, 15 Ind. 98, § 529. 
 Marriner v. Smith, 27 Cal. 649, § 182. 
 Marsh v. Alford, 5 Bush (Ky.) 392, ^ 
 210, 213. 
 V. Lazenby, 41 Ga. 153, ^ 160, 
 161. 
 Marshall v. Bare, 35 111. 106, § 262. 
 
 Marshall & Co. u. Cook, 46 Ga. 302, § 
 
 98. 
 Martel v. Somers, 26 Tex. 551, §, 236. 
 Martin v. Berry, 37 Cal. 208, § 464. 
 
 V. Hughes, 67 N. C. 293, 5 132. 
 V. Hunter's Lessee, 1 Wheat. 304, 
 § 18, 334. 
 Martindale v. Whitehead, 1 Jones L. 
 
 (N. C.) 64, § 527. 
 Mason v. Haile, 12 Wheat. 373, §§ 25, 
 
 27. 
 Mas'sey v. Allen, 7 Bank. Beg. 401, $ 
 
 461. 
 Mather v. Bush, 16 Johns. 233, § 18. 
 Mathews v. Bedwine, 25 Miss. 99, § 576. 
 Mathewson v. Weller, 3 Denio 52, J 554. 
 Matter of Wendall, 19 Johns. 153, § 18. 
 Mayho v. Cotton, 69 N. C. 289, 9 132. 
 Maynes v. Moore, 16 Ind. 116, § 28. 
 Maysville Turnpike Co. v. How, 14 B. 
 
 Mon. (Ky.) 342, $ 37. 
 Maxey v. Loyal, 38 Ga. 531, 5 24. 
 Maxoar. Perrott, 17 Mich. 332, § 571. 
 Maxwell v, Eeed, 7 Wis. 582, §§ 542, 
 
 545. 
 Header v. Place, 43 N. H. 307, §§ 317, 
 
 366, 367. 
 Mechanics' Bank's Appeal, 31 Conn. 63, 
 
 §28. 
 Mechanics' and Traders' Bank v. Debolt, 
 
 18 How. 380, i 40, 
 Mechanics' and Traders' Bank v. Thomas, 
 
 18 How. 384, 5 40. 
 Megehe v. Draper, 21 Mo. 510, § 519. 
 Melton V. Andrews, 45 Ala. 454, §5 135, 
 
 173, 176. 
 Mercier u. Chace, 11 Allen (Mass.) 194, §5 
 
 80, 87, 363. 
 Merchant v. Perez, 11 Tex. 20, § 202. 
 Methery v. Walker, 17 Tex. 593, § 130. 
 Meyers v. Claus, 15 Tex. 516, §§ 148, 
 172, 242, 282. 
 V. Meyers, 23 Iowa 359, §§ 317, 
 
 387, 568. 
 u. Pfeiffer, 50 111. 485, § 436. 
 Miokes v. Tousley, 1 Cow. 114, § 535. 
 Miles V. Miles, 46 N. H. 261, 5$ 324, 325, 
 
 409. 
 Miller's Appeal, 16 Penn. St. 300, §$ 169, 
 
 538. 
 
TABLE OF CASES. 
 
 37 
 
 MiUer V. Little, 47 Cal. 349, § 141. 
 
 V. Marokle, 27 111. 405, U 244, 403., 
 c. Moore, 1 E. D. Smith 739, § 25. 
 V. Sherry, 2 Wall. 238, 5 496. 
 Mills V. Estate of Grant, 36 Vt. 269, § 
 134. 
 V. Van Boskirk, 32 Tex. 360, § 278. 
 Mima v. Boss, 42 Ga. 121, § 144. 
 
 I'. Sargent, 18 Iowa 90, §§ 239, 242, 
 
 252, 280, 282. 
 u. "Ward, 5 Kan. 239, §§ 179, 240' 
 262, 415. 
 Mitchell u. Coates, 47 Penn. St. 202, § 
 544, 
 «. Hay, 37 Ga. 581, § 445. 
 u. Milhoan, 11 Kan. 624, Add. 
 Mix V. King, 55 111. 434, §§ 420, 456 ; 
 
 Add. U 420, 456. 
 Monk V. Capen, 5 Allen 146, §§ 289, 363^ 
 
 395, 401. 
 Montague v. Eiohardson, 24 Conn. 338, 
 
 §§ 54, 519, 522, 584. 
 Montgomery ».. Kasson, 16 Cal. 189, 5 
 37, 38. 
 V. Tutt, 11 Cal. 190, 55 202, 
 215. 
 Moody V. Doe, 25 Miss. 484, § 178. 
 Mooera v. Dixon, 35 111. 208, §§ 117, 432,' 
 
 Add. S 420. 
 Moore v. Dunning, 29 111. 130, §5 286, 
 402. 
 V. GUI, 43 Ga. 388, § 351. 
 V. Morrow, 28 Cal. 551, M 443, 
 
 465, 499. 
 V. Titman, 33111; 358, 55 117, 418. 
 V. Titman, 43 lU. 169, 55 289, 290, 
 401. 
 Moose V. Whitis, 30 Tex. 440, 5 81. 
 Morgan v. Noud, 5 Penn. IJ. J. R. 93, 5 
 277. 
 V. Stearns, 41 Vt. 398, 55 165, 
 169. , 
 Morrill v. Hopkins, 36 Tex. 686, 5 399. 
 V. Seymour, 3 Mich. 64, 5 563. 
 Morris v. Moulton, 39 N. H. 392, 5 172. 
 Morrison v. MoDaniel, 30 Miss. 217, 55 
 
 147, 165, 169, 347. 
 Morse v. Goold, 11 N. Y. 281, 55-24, 25, 
 26, 27, 44. 
 
 Morse v. Keys, 6 How. Pr. 18, 5 579. . 
 Mosley v. Anderson, 40 Miss. 49, 5J 546, 
 
 557. 
 Moss V. Warner, 10 Cal. 296, 55 145, 165, 
 • 263, 269, 278, 282, 284, 415,. 456. 
 MundeU v. Hammond, 40 Vt. 641, 5 576. 
 Mundy ■!;. Monroe, 1 Mich. 68, W 32, 39, 
 
 41, 43. 
 Murphy v. Coffiey, 33 Tex. 508, 5 456. 
 V. Crouch, 24 Wis. 365, 5 254. 
 Myers v. Ford, 22 Wis. 130, 55 151, 152, 
 153. 
 V. Mott, 29 Cal. 367, 5 405. 
 
 N. 
 
 Neal V. Coe, 35 Iowa 407, 5 174. 
 
 Neff 's Appeal, 21 Penn. St. 247, 5 380. 
 
 New England M. Co. v. Merriam, -2 
 
 Allen 390, § 215. 
 New Jersey v. Wilson, 7 Cranch 164, 5 41. 
 Newton v. Howe, 29 Wis. 531, 5 558. 
 
 V. Tibhatts, 2 Eng. Ark. 150, 5 
 24. 
 Nichols V. Claiborne, 39 Tex. 363, 5 579. 
 Nicholas v. Purczell, 21 Iowa 265, 5 362. 
 NiooU u. Ogdeu, 29 111. 386, 5 391. 
 Nims V. Bigelow, 45 N. H. 347, 55 278, 
 
 280, 288. 
 Noble V. Hook, 24 Cal. 638, 55 67, 70, 
 
 329. 
 Noland v. Keed, 38 Tex 425, 5 93. 
 Noland V. Wickham, 9 Ala. 169, 5$ 11, 
 
 54, 576. 
 Norman v. Bellman, 16 Ind. 156, 5 529. 
 Norris V. Duncan, 21 Tex. 594, 5 333. 
 V. Hoitt, 18 N. H. 197, 5 564. 
 V. Kidd, to appear ^n 28 Ark. 
 V. Morrison, 45 N. H. 490, § 370. 
 V. Moulton, 34 N. H. »392, 55 117, 
 165, 169, 282, 366, 369. 
 North V. Shearn, 15 Tex. 176, « 214. 
 North Kiver Steamboat Co. v. Living- 
 ston, 3 Cow. (Ct. Errors) 713, 518. 
 Notte's Appeal, 45 Penn. St. 361, 55 227, 
 404. 
 
38 
 
 TABLE OF OASES. 
 
 Oatman v. Bond, 15 Wis. 20, § 42. 
 O'Brien v. Young, 15 Iowa 5, §5 245, 
 
 266. 
 Odiorne's Appeal," 54 Penn. St. 175, 5 368. 
 O'Doohertyu.Moaioin, 25 Tex. 67, 5 340. 
 Ogden V. Saunders, 12 Wheat. 270, §5 25, 
 
 28. 
 Oloott V. Supervisors, 16 Wall. 678, 55 15, 
 
 47, 458. 
 Olson V. Nelson, 3 Minn. 58, §5 34, 58, 
 
 65, 240, 242, 243, 269, 291. 
 O'NaU V. Craig, 56 Penn. St. 161, U 298, 
 
 543. 
 Opitz V. Winn, 3 Or. 9, § 536. 
 Ordway v. Wilbur, 16 Me. 263, 5 583. 
 Oriental Bank v. Freeze, 18 Me. 109, §5 
 
 30, 32, 38. 
 Ornxan v. Orman, 26 Iowa 361, ^ 279, 
 
 282, 289, 401. 
 Orr V. Shraft, 22 Mich. 260, ^ 71, 86. 
 Osborne v. Humphrey, 7 Conn. 335, § 41. 
 Owen V. Peaoook, 38 111. 33, § 391. 
 
 Page V. Ewbank, 18 Iowa 580, J 195. 
 Palmer v. Blair, 25 Iowa 230, § 372. 
 Pardee v. Lindley, 31 HI. 187, M 169, 244. 
 Pariah i;. Eager, 15 Wis. 532, § 42. 
 Parker v. Dean, 45 Miss. 409, §§ 181, 239, 
 240, 248, 249. 
 V. Kelly, 10 S. & M. 184, §§ 215, 
 
 231. 
 V. King, 16 Wis. 223, § 94. 
 Parkerson v, Wightman, 4 Strob. 363, J 
 
 564. 
 Parks V. Beilly, 5 Allen 77, §5 365, 438. 
 Parsons v. Livingston, 11 Iowa 106, 55 
 • 9, 146, 152. 
 
 Paschal v. Cushman, 26' Tex. 74, 5 425. 
 V. Perez, 7 Tex. 348, 55 25, 28. 
 Patten v. Smith, 4 Conn. 455, 55 563, 
 
 564, 569. 
 Patterson v. Kreig, 29 111. 514, 55 242, 
 244, 262, 418. 
 V. Wallace, 47 Oa. 452, 5 414. 
 
 Paxton V. Freeman, 6 J. J. Marsh. 234, 
 
 5 555. 
 Pearson ■u.-Mintum, 18 Iowa 36, 55 101> 
 
 178. 
 Peck V. Brumagim, 31 Gal. 440, 55 106, 
 324. 
 V. Jenness, 7 How. 612, 5 460. 
 Iceland v. De Bevard, 13 Iowa 53, 5 117. 
 Penn v. Clemans, 19 Iowa 372, 5 203. 
 Penny, v. Taylor, 10 Bank. B.eg. 203, 55 
 
 234, 469. 
 Penrose v. Erie Canal Co., 56 Penn. St. 
 
 46, 55 25, 28. 
 People V. Auditor-G-eneral, 9 Mich. 327, 
 5 38. 
 V. Burbank, 12 Cal. 378, 5 247. 
 V. MoClay, 2 Neb. 7, '55 149, 534. 
 V. Palmer, 46 111. 398, § 551. 
 V. Piatt, 17 Johns. 195, 5 18. 
 V. Plumsted, 2 Mich. 465, 55 56, 
 165, 166, 169, 171, 176. 
 Perkins v. Wisner, 9 Iowa 320, 5 585. 
 Perrin v. Sargeant, 33 Vt. 84, 5 360. 
 Petty V. Barrett, 37 Tex. 84, 5 337. 
 Peverly v. Sayles, 10 N. H. 357, 5 583. 
 Pfeiffer v. Riehn, 13 Cal. 643, 55 245, 
 
 266. 
 Phelps V. Conover, 25 ni. 309, 55 202, 
 444. 
 V. Porter, 40 Ga. 485, 5 554. 
 V. Rooney, 9 Wis. 70, 5 76. 
 Philleo V. Smalley, 23 Tex. 502, 55 68, 81, 
 
 165, 175, 282. 
 
 Phillips V. City of Springfield, 39 HI. 83, 
 
 55 278, 280. 
 Pidgeon v. Trustees of Schools, 44 HI. 
 
 501, 55 267, 275. 
 Pierce v. Chi. & N. W. E. B., Sup. Ct. 
 
 Wis., June Term, '74, Cent. L. J., 
 
 June 11, 5 562. 
 Pike V. Miles, 23 Wis. 164, 5 489. 
 Pinohain v. QoUard, 13 Tex. 333, 55 215, 
 
 231. 
 Pinkerton v. Tumlin, 22 Ga. 165, 55 56, 
 
 166, 169. 
 
 Piper V. Johnston, 12 Minn. 60, 5 238. 
 Pittman's Appeal, 48 Penn. St. 315, 55 
 
 293, 542. 
 Pizzala v. Campbell, 46 Ala. 35, 55 103, 
 
 115. 
 
TABLE OF CASES. 
 
 39 
 
 Planter's Bank v. Sharpe, 6 How. 301, § 
 
 24. 
 Platto V. Oady, 12 "Wis. 461, § 250. 
 Plumb V. Sawyer, 21 Conn. 351, § 46. 
 Poe V. Hardie, 65 N. C. '447, § 117. 
 Pollard V. Thomason, 5 Humph. (Tenn.) 
 
 56, iS 532. 
 Pomeroy v. Trimper, 8 Allen 403, § 581. 
 Pomroy v. Bunting, 42 Ala. 250, § 439. 
 Pond.u. Kimball, 101 Mass. 105, 5 558. 
 Pool D.Reid, 15 Ala. 826, 55 54, 555.. 
 
 V. Gerrard, 6 Cal. 71, §5 240, 242y 
 319, 456. 
 Porter v. Mariner, 50 Mo. 364, §§ 25, 28. 
 Potshuisky v. Krempkan, 26 Tex. 307, 5 
 
 202. 
 Potter V. Hall, 3 Pick. 368, § 575. 
 Prather v. Bobo, 15 La. An. 524, § 569. 
 Pratt V. Delavan, 17 Iowa 307, 55 215, 
 
 226, 452. 
 Pratt V. Topeka Bank, 12 Kan. 570, Add. 
 
 5 570. 
 Prescott V. Presoott, 45 Cal. 58, 55 165, 
 
 170, 172. 
 Presseru. Hildebrand, 23 Iowa 483, § 260. 
 Proprietors of Keuebeok Purchase v. Labo- 
 
 ree, 2 Greenl. (Me.) 294, 5 44. 
 Pryoru. Smith, 4 Bush. 379, 5 213. 
 
 V. Stone, 19 Tex. 373, 55 81, 130, 
 165, 175. 
 PuUiam v. Sewell, 40 Oa.. 73, 5 47. 
 Purrington v. Loring, 7 Mass. 387, § 550. 
 
 Q. 
 
 Quaokenbush v, Danks, 1 Denio 128, 55 
 
 24, 25, 28. 
 Quartier v. Hill, 21 La, An. 429, 5 359. 
 Quigley v. Gorham, 5 Oal. 418, 5 579. 
 
 R. 
 
 Eadcliff V. Wood, 25 Barb. 52, 5 558. 
 Bagland v. Rogers, 34 Tex. 617, 55 130, 
 
 342. 
 Railroad Co. v. McClure, 10 Wall. 515, 5 
 
 17. 
 
 Ralston v. Lothian, 18 Ind. 303, 5 31. 
 Ramsdell v. Fuller, 28 Cal. 37, 5 324. ' ■ 
 Randall v. BufBngton, 10 'Cal. 491, 55 
 178, 214, 233, 467. , 
 
 Randal v. Elder, 12 Kan. 261, Add. 55 
 
 112, 137, 303. 
 Rawley v. Hooker, 21 Ind. 144, 5 43. 
 Ray V. Young, 13 Tex. 552, 55 259, 451. 
 RayneriJ. Whioher, 6 Allen 293, 5 564. 
 Read v. Burley, Crok. Elizabeth 596, § 
 527. 
 V. Frankfort Bank, 23 Me. 318, 55 
 30, 32, 318. 
 Redfern^. Redfern, 38 111. 509, 55 307, 
 
 311, 313. 
 Redfield v. Hart, 12 Iowa 335, 5 226. 
 Reed v. Defebaugh, 24 Penu. 499, 5 206. 
 Reinbaok v. Walter, 27 111. 393, 55 83, 
 
 446. 
 Renfro v. Heard, 14 Ala. 23, 5 552. 
 Rensselaer v. Snyder, 9 Barb. 302, 5 28. 
 
 V. Snyder, 13 N. T.-299, 5 28. 
 Republic v. Young, Dallam 464, 55 242, 
 
 278. 
 Revalk V. Kraemer, 8 Cal. 66, 5§ 72, 103, 
 105, 106, 147, 151, 179, 240, 262, 263, 
 319, 320, 321, 415, 456. 
 Reynolds v. Hull, 36 Iowa 394, 5 140. 
 Reynolds v. Pixley, 6 Cal. ' 165, 55 56, 
 
 120, 126. 
 Rhine v. Ellen, 36 Cal. 362, 5 324. 
 Rhodes v. MoOormiok, 4 Iowa 368, 55 79, 
 
 84,430. 
 Rice V. Chase, 9 N. H. 178, 5 545. 
 
 V. Southgate, 16 Gray 143, 55 207, 
 209, 485. 
 Rich V. Flanders, 39 N. H. 304, 5 24. 
 
 V. Tubbs, 41 Cal. 34, 55 318, 327, 
 ■ 330, 357. 
 Richards v. Chaoe, 2 Gray 383, 55 185, 
 242, 291. 
 V. Haines, 30 Iowa 574, 5 ^545. 
 V. Nelms, 38 Tex. 445, 5 89. 
 Richardson v. Buswell, 10 Met. 506, 5 
 54, 583. 
 V. Wallis, 5 Allen 78, 5 421. 
 Richmond v. Richmond, etc., R. R. Co., 
 
 21 Gratt. 611, 5 24. 
 Riehl V. Bingenheimer, 28 Wis. 84, 5J 
 242, 254. 
 
40 
 
 TABLE OF CASES. 
 
 Riley v. Pehl, 23 Cal. 74, $ 106. 
 Ring V. Burt, 17 Mich. 465, % 242, 374. 
 Riahell v. Rishell, 48 Penu. St. 243, 5 404. 
 Ritchie v. MoCauley, 4 Penn. St. 472, § 
 
 566. 
 Rix V. Capitol Bank, 2 Dill. C. C. 369, §$ 
 234, 282, 283, 466. 
 V. McPenry, 7 Cal. 91, §§ 165, 269. 
 Robertson v. Paul, 16 Tex. 472, § 343. 
 Robinson's Case, 3 Abb. Pr. 467, §§ 55, 
 
 519,571. 
 Robinson v. Crump, 35 Tex. 426, § 341. 
 V. Magee, 9 Cal. 81, §§ 39, 42. 
 V. McDonald, 11 Tex. 385, J§ 
 
 120, 122, 123. 
 u. Myers, 3 Dana 441, J 576. 
 V. WUey, 19 Barb. 157, § 236. 
 u. "Wiley, 15 N. Y. 494, ^ 7, 
 10, 54. 
 Robson V. Lindrum, 47 Ga. 250, §5 165, 
 
 169. 
 Rockwell V. Hubbells, Adm., 2 Doug. 
 
 197, % 24, 28. 
 Roff & Co. V. Johnson, 40 Ga. 555, % 11, 
 
 351, 353, 410. 
 Rogers v. Renphaw, 37 Tex. 625, % 240, 
 242, 247, 262, 267. 
 V. Waterman, 25 Penn. 182, % 
 537, 538. 
 Roosevelt v. Cebra, 17 Johns. 108, 5 18. 
 Rosier v. Hale, 10 Iowa 484, % 18, 31. 
 Ross V. Hannah, 18 Ala. 125, 5 585. 
 V. Lister, 14 Tex. 469, § 542. 
 ■u. Mead, 10 111. 171, 5 444. 
 Rotiachild v. Boelter, 18 Minn. 361, $ 
 
 '572. 
 Rothwell V. Dewess, 2 Black 613, § 120. 
 Roupe ■«. _ Carradine, 20 La. An. 244, 5 
 
 270. 
 Rue V. Alter, 5 Denio 119, §§ 58, 525. 
 Rushia v. Gause, 41 Ga. 180, % 230, 
 
 476. 
 Rushworth v. Swope, 1 Leg. Gaz. (Penn.) 
 
 223, 5 588. 
 Russell V. Arnold, 25 Ga. 625, 5 560. 
 
 :•. Randolph, 11 Tex. 460, 5 242. 
 
 S. 
 
 Saokrider v. McDonald, 10 John. R. 253, 
 
 § 550. 
 Salee v. Waters, 17 Ala. 482, 5§ 520, 532, 
 
 569. 
 Sampson v. WilUams, 6 Tex. 109, {§ 239, 
 
 241-, 242, 285. 
 Sanders v. Hillsborough Ins. Co., 44 N. 
 
 H. 238, 5 28. 
 Sarahas v. Feulon, 5 Kan. 592, §§ 95, 96. 
 Sargent v. Wilson, 5 Cal. 504, §J 72, 73, 
 
 242, 243, 247, 267, 291, 415, 456. 
 Sate V. Barad, 57 Mo. 562, J 562. 
 Satterlee v. Mathewaon, 2 Pet. 386, 5 45. 
 Savings Fund v. Creighton, 3 Phila. R. 
 
 58, 5 277. 
 Scarborough v. Dugan, 10 Cal. 305, § 42. 
 Sohadt V. Heppe, 45 Cal. 433, §5 330, 327, 
 
 338, 357. 
 Schiltz V. Sohatz, 2 Biss. 0. C. 248, §5 
 
 466, 489, 516. 
 Scobey v. Gibson, 17 Ind. 572, J 31. 
 Seamansu. Carter, 15 Wis. 548, §§ 35, 
 
 191, 195. 
 Seaman v. Luce, 23 Barb. 240, § 540. 
 Sears v. City of Boston, 1 Met. 250, J 
 278. 
 V. Dixon, 33 Cal. 326, J 240. 
 V. Hanks, 14 Ohio St. 300, 301, §J 
 11, 147, 234, 435. 
 Seaton v. Son, 32 Cal. 481, § 126. 
 Seely v. Gwillim, 40 Conn. 106, $ 564. 
 Sennickson u. Fulton, 1 Phila. 220, § 536. 
 Servant! v. Lusk, 43 Cal. 238, § 558. 
 Sharp V. Baily, 14 Iowa 387, % 242, 244. 
 Shaw's Appeal, 49 Penn. St. 177, § 298. 
 Shaw V. Davis, 55 Barb. 389, ^ 574, 583, 
 
 585. 
 Shaw V. Hearaey, 5 Mass. 523, §§ 363, 398. 
 Shelley's Appeal, 36 Penn. St. 373, ^ 294, 
 
 542. 
 Shepherd v. Caasidy, 20 Tex. 24, 5 278. 
 u. White, 11 Tex. 346, % 103, 
 142, 202. 
 Shoemaker v. Chalfant, 47 Cal. 435, §J 
 
 304, 306. 
 
TABLE OF CASES. 
 
 41 
 
 Shoemaker v. Gardner, 19 Mich. 96, §5 
 
 415, 436. 
 Shoenberger v. Watts, 1 Am. L. Reg. 
 
 (N. S.) 553, § 542. 
 Shouton V. Kilmer, 8 How. N. Y. Pr. 527, 
 
 §200. 
 Siokler v. Jacobs, 14 Jobns. 434, § 574. 
 Sillo-way v. Brown, 12 Allen 30, 55 69, 
 147, 151, 239, 242, 244, 249, 267, 438. 
 SUsbe V. Lucas, 36 111. 462, §§ 117, 263, 
 
 Add. § 420. 
 Simtolf -u. Alford, 1 M. &W. 253, § 527. 
 Simonds v. Powers, 28 Vt. 354, § 318. 
 Simmons u Johnson, 14Wis.'523, 55191, 
 
 239, 306. 
 Simpson v. Haslop, 4 T. R. 568, 5 527. 
 V. Hartop, Willes 513, 5 527. 
 V. Robert, 35 Ga. 180, 55 242, 
 
 262. 
 V. Simpson, 30 Ala. 225, 55 56, 
 176, 536. 547. 
 Sipes V. Mann, 39 Penn. St. 414, 5 379. 
 Size V. Size, 24 Iowa 580, 55 317, 362. 
 Skinner v. Beatty, 16 Cal. 156, 55 215, 
 
 415. 
 Skouton V. Wood, 57 Mo. 380, 55 63, 318. 
 Slaiiker v. Beardsly, 9 O. St. 589, § 166. 
 Slaughter v. Detiney, 10 Ind. 103, § 269. 
 
 V. Detiney, 15 Ind. 49, 5 269. 
 Sloan V. Nance, 45 Ga. 310, 5 403. 
 Slonkers v. Beardsley, 9 O. St. 591, 5 56. 
 Sluder v. Rogers, 64 N. C. 289, 5 46. 
 Smalley v. Masten, 8 Mich. 529, § 563. 
 Smiley v. Bowman, 3 Grant's Oases 132, 
 
 55 296, 542. 
 Smith's Appeal, 23 Penn. St. 310, 5 542. 
 Smith V. Brackett, 36 Barb. 571, 5 69. 
 
 V. Bradley, 6 S. & M. (Miss.) 490, 
 
 55 215. 231. 
 V. Brooke, 49 Penn. St. 147, 5 560. 
 V. Brown, 28 Miss. 810, 5 213. 
 V. Bryan, 34 111. 377, 5 31. 
 V. Desohaumes, 37 Tex. 429, 55 121, 
 
 128. 
 V. Emerson, 43 Penn. St. 465, 55 
 
 238, 557. 
 V. Gates, 21 Pick. 55, 5 550. 
 V. Gibbs, 6 Gray 298, 5 567. 
 V. Hickman, 2 Cooke Ch. (Tenn.) 
 
 330, 5 67. 
 V. HUl, 22 Barb. 656, 5 535. 
 
 Smith u. Kehr, 2 Dill. 63, 55, 234, 456, 
 469, 471, 517. 
 V. Miller, 31 111. 160, 55 265, 267, 
 
 418. 
 V. Morrison, 22 Pick. 430, 5 27. 
 V. Morse, 2 Cal. 524, 5 42. 
 V. Omans, 17 Wis. 395, 5 201. 
 V. Packard, 12 Wis. 371, 55 25, 28, 
 
 31. 
 V. Provin, 4Allen516, 55 239, 247, 
 
 267. 
 V. Rogers, 16 Ga. 479, 5 572. 
 V. Smith, 12 Cal. 216, 55 103, 112. 
 V. Van Gilder, 26 Ark. 527, 5 25. 
 V. WeUs, 46 Miss. 64, 55 346, 396, 
 V. Whittle, 50 Ga. 626, 5 50. 
 Smothers v. Halley, 47 111. 331, 5 551. 
 Sneider v. Heidelberger, 45 Ala. 126, 5 24. 
 Society v. Wheeler, 2 Gall. (U. S.) 141. 
 
 5 44. 
 Sontag V. Schmisseur, Sup. Ct. HI., West. 
 
 Jurist 316, Add. 5 409. 
 Sossaman v. Powell, 21 Tex. 664, 55 305, 
 
 330, 332, 333, 339. 
 Sout^r V. Madison, 15 Wis. 30, 5 42. 
 Southard u. Central R. R. Co.,>2 Dutch. 
 
 13, 55 38, 46. 
 Spangler's Case, 11 Mich. 298, 5 18. 
 Spencer v. Fredendall, 15 Wis. 666, 5 
 
 271. 
 Spencer v. Geissman, 37 Cal. 99, 55 114, 
 
 127. 
 Spier's Appeal, 26 Penn. 233, 5 368. 
 Spooner v. Fletcher, 3 Vt. 133, 5 569. 
 Sprecker v. Wakely, 11 Wis. 432, 55 24, 
 
 25, 28. 
 Springer v. Lewis, 22 Penn. St. 191, 5 
 
 563. 
 Stanley v. Greenwood, 24 Tex. 224, 5 81. 
 State V. Barader, 57 Mo. 562, 5 548. 
 
 V. Crittenden County Court, 19 Ark. 
 
 360, 5 39. 
 V. Floyd, 11 Iridell 496, 5 536. 
 u. Hawthorne, 9 Mo. 389, 5 38. 
 V. Johnson, 12 Ala. 840, 5 547. 
 V. Manly, 15 Ind. 8, 5 538. 
 V. Melogue, 9 Ind. 196, 5§ 542, 545. 
 V. Phalan, 3 Harrington 441, 5 38. 
 V. Romer, 44 Mo. 101, 5 519. 
 V. Skidmore, 5 Tex. 469, 55 242, 
 278. 
 
42 
 
 TABLE OF CASES. 
 
 Stemmons v. Burford, 39 Tex. 352, § 
 
 464. 
 Stephenson v. Osborne, 41 Miss. 119, § 
 
 24. 
 Stevens v. Andrews, 31 Mo. 205, § 31. 
 
 V. Becker, 44 Penn. St. 206, § 
 
 537. 
 t). Brown, Walk. Ch. (Mich.) 41, J 
 
 43. 
 V. Myers, 11 Iowa 185, J 444. 
 V. Stevens, 10 Allen 146, § 208. 
 Stevenson v. Marony, 29 111. 532, §5 436, 
 
 446. 
 ' Stewart u. Brand, 23 Iowa 477, M 152, 
 279, 280, 282, 284, 289, 362, 
 401. 
 V. Brown, 37 N. T. 350, §$ 519, 
 
 558. 
 V. Croes, 10 TLl. 442, § 444. 
 V. Maokey, 16 Tex. 56, $§ 71, 
 240, 242, 247, 262, 263, 267. 
 Stiles V. Murphy, 4 Ohio 92, § 178. 
 Still V. Saunders, 8 Gal. 286, §$ 177, 233. 
 Stocking V. Hunt, 3 Denio 274, § 25. 
 Stone V. Bassett, 4 Minn. 298, M 31, 43. 
 V. Darnell, 20 Tex. 11, 55 176, 
 202. 
 i Story V. Kurman, 25 N. T. 214, § 28. 
 V. Robinson, 6 T. R. 139, 5 527. 
 Straohnu. Foss, 42 N. H. 40, §5 113, 188, 
 
 441. 
 Strouse's Ex. v. Becker, 38 Penn. St. 190, 
 §§ 238, 553, 557. S. 0., 44 Penn. St. 
 206, § 536. 
 Stubblefield v. Graves, 50 HI. 110, § 91. 
 Stnrgea v. Crowninahield, 4 Wheat. 197, 
 
 55 22, 25, 27, 44, 122. 
 Succession of Christie, 20 La. An. 383, 
 55 358, 368. 
 Cooley, 26 La. An. 166, 
 
 Add. 5 359. 
 Faulkes, 12 La. An. 537, 5 
 202. 
 \ Norton, 18 La. An. 36, 55 
 
 357, 368. 
 Tobias Drum, 26 La. An. 
 
 539, Add. 5 355. 
 Yarborough, 13 La. An. 
 378, 5 356. 
 Sullivan v. Brewster, 1 E. D. Smith 681, 
 5 25. 
 
 Sumbolf V. Alvord, 3 Mees. & Wells. 248, 
 
 5583. 
 Sumner v. Sawtelle, 8 Minn. 309, 5 142. 
 Sutherland v. De Leon, 1 Tex. 250, 5 25. 
 V. De Leon, 1 Tex. 250, 5 38. 
 Swan V. Stevens, 99 Mass. 9, 55 247, 438, 
 
 448. 
 Swift V. Fletcher, 6 Mian. 550, 5 38. 
 V. Kraeraer, 13 Gal. 526, 5 270. 
 
 T. 
 
 Tadlook v. Booles, 20 Tex. 782, 55 56, 
 
 72, 330, 339, 414. 
 Tallant v. Woods, 7 Cal. 579, 5 38. 
 Talliafero v. Pry, 41 Ga. 622, 5 554, 
 Tamer v. Kicks, 4 S. & M. 300, 5 215. 
 Tanner v. Billings, 18 Wis. 163, 5 573. 
 Tanner v. Hicks, 4 Smeed. and M. 300, 5 
 
 231. 
 Tarble's Case, 13 Wall. 397, § 18. 
 Tarpley v. Hamer, 9 S. & M. 310, 55 25, 
 
 28. 
 Taul V. Epperson, 38 Tex. 492, 5 196. 
 Taylor v. Boulware, 17 Tex. 78, 55 93, 
 334. 
 V. Hargous, 4 Cal. 268, 55 4, 68, 
 73, 242, 278, 280, 319, 456, 487. 
 V. Mexter, 11 Pick. 347, 5 136. 
 Terry's Appeal, 55 Penn. St. 345, 5 368. 
 Thomas v. Dodge, 8 Mich. 51, 5 171. 
 Thompson v. Pickel, 20 Iowa 490, 5 269. 
 Thompson's Appeal, 36 Penn. St. 418, 
 
 5 385. 
 Thorns V. Thoms, 45 Miss. 243, 263, §5 
 
 55, 242, 255, 278, 281, 456. 
 Thorn V. Darlingten, 6 Bush 448, 55 240, 
 
 242, 247, 262, 415. 
 Thorn v. Thorn, 14 Iowa 53, 55 84, 89, 
 
 122, 123. 
 Thomdike v. City of Boston, 1 Met. 242, 
 
 5 278. 
 Thome v. San Erancisoo, 4 Cal. 127, 55 
 
 32, 39, 46. 
 Thornton v. Boyden, 31 111. 200, 55 90, 
 137, 265, 418. 
 V. Hooper, 14 Cal. 9, 55 25, 42. 
 Thurston v. Maddox, 6 Allen 428, 5 117, 
 
 119, 125, 126, 248, 268. 
 
TABLE OF CASES. 
 
 43 
 
 Tieman v. Tieman^ 34 Tex. 52^, % 311, 
 
 314. 
 Tillinghast v. Bradford, 5R. I. 205, § 564. 
 , TUlotsoh V. Millard, 7 Minn. 513, % 11, 
 
 35, 147, 165, 169, 183, 184, 283. 
 Titcomb V. Moore, 43 Dl. 170, § 286. 
 Titman v. Moore, 43111. 170, §5 187,278, 
 
 279, 281, 282, 289, 290, 401, 487. 
 Tomlin i;. Hillyard, 43 111. 300, § 120. 
 Tomlinson v. Swinney, 22 Ark. 400, § 
 
 176. 
 Tourville v. Pieraon, 39 111. 446, % 96, 
 
 107, 157, 165, 169, 170, 171, 172, 269. 
 Towns V. Pratt, 33 N. H. 345, § 572. 
 Tozder v. Tozier, 2 Am. L. Reg. 510, $ 
 
 638. 
 Trawick v. Harris, 8 Tex. 314, 5^ 7, 289. 
 
 345, 401. 
 Trickey v. ScUader, 52 111. 78, § 303. 
 Trotter v. Dobbs, 38 Miss. 198, § 178. 
 Troutman v. Gowing, 16 Iowa 415, § 
 
 542. 
 True V. Morrill, 28 Vt. 674, §5 7, 54, 55, 
 
 134, 165, 169, 172, 282. 
 Trustees v. ScheU, 17 "Wis. 308, §§ 183, 
 
 195, 239. 
 Tryon v. Mansir, 2 Allen 219, 5 581. 
 Tucker v. Bums, 2 Swan (Tenn.) 35, § 
 42. 
 V. Kenniston, 47 N. H. 267, 5§ 
 429, 445. 
 Tumlinson v. Swinney, 22 Ark. 400, §5 
 
 68, 282. 
 Tnnstell v. Jones, 25 Ark. 272, §§ 215, 
 
 216, 246, 270. 
 Tuolumne Co. v. Sedgwick, 15 Cal. 515, 
 
 §§ 37, 38. 
 Tuttleu. Buck, 41 Barb. 417, § 585. 
 
 V. Howe, 14 Minn. 151, % 35, 
 
 189, Add. § 198. 
 V. Strout, 7 Minn. 465, § 65. 
 
 V. 
 
 TJlrich's Appeal, 48 Penn. St. 489, J 454. 
 Upman v. Bank, 15 Wis. 449, § 187. 
 U. S. V. Conway, 1 Hemp. 313, § 24. 
 U. S. V. Samperyao, 1 Hemp. 118, § 24. 
 
 U. S. Bank V. Longworth, 1 McLean (IT. 
 S.) 35, 5 30. 
 
 Vanbaumback v. Bade, 9 "Wis. 578, § 28. 
 Van Buren v. Loper, 29 Barb. 388, 5 577. 
 Van Dresor v. King, 34 Penn. St. 201, 
 
 § 550. 
 Van Hook u. "Whitlook, 2 Edw. Ch. 304, 
 
 J 67. 
 
 Van Nostrand v. Carr, 30 Md. 128, § 464. 
 
 Van Rensselaer v. Ball, 19 N. Y. 100, § 
 
 31. 
 
 V. Hays, 19 N. T. 68, 5 
 
 31. 
 
 Van Reynegau v. Revalk, 8 Cal. 75, % 
 
 179, 183, 242, 262, 263. 
 Van Sickler v. Jacobs, 14 John. 434, §5 
 
 574, 585. 
 Vanzant v. Vanzant, 23 HI. 540, §5 118, 
 
 244, 265, 291, 301, 311, 403. 
 Vedder v. Alkenbrack, 6 Barb. 327, § 28. 
 Villa V. Pico, 41 Cal. 469, ^ii4,. 
 Volger V. Montgomery, 54 Mo. 578, J§ 
 
 58, 68, 111, 234, 279, 469, 487. 
 Von Hoffman v. City of Quinoy, 4 "Wall. 
 
 550, % 15, 23, 24, 25, 48, 49. 
 Von Schmidt v. Huntington, 1 Cal. 55, 
 
 J 46. 
 Voorhies v. Bonestel, 7 Blatoh. 500, § 54. 
 Voorhees v. Prisbie, 12 Am. L. Reg. 108, 
 
 Feb., '73, § 464. 
 
 W. 
 
 "Wabash Co. v. Beers, 2 Black. (U. S.) 
 
 448, § 39. 
 "Wade V. Jones, 20 Mo. 75, % 54, 519, 
 
 520, 532. 
 Walker v. Bank of Miss., 7 Ark. 503, § 
 44. 
 V. Darst, 31 Tex. 682, % 5, 92. 
 V. Harris, 20 Wend. 562, § 54. 
 V. Howard, 34 Tex. 478, $§ 331, 
 
 339. 
 V. Whitehead; 43 Ga. 538, § 49. 
 
44 
 
 TABLE OF CASES. 
 
 Walker u. Whitehead, 16 Wall. 314, §§ 
 15, 23, 25, 47, 458. 
 u. Young, 37 Tex. 519, 5§ 330, 
 339. 
 Wallace v. Collins, 5 Ark. 41, % 542, 
 
 579. 
 Walsh V. Horiir.e, 36 HI. 238, J 428. 
 
 u. Eeia, 50 111. 477, 5 392. 
 Waltermire v. Westover, 14 N. T. 16, § 
 
 44. 
 Walters V. People, 18 111. 194, §§ 55, 68, 
 104, 118, 137, 138, 282. 
 V. People, 21 111. 178, §5 91, 104, 
 118, 137, 278, 279, 280, 285, 
 456. 
 Ward V. Huhn, 16 Minn. 159, ^ 67, 126. 
 Warner v. McMillan, 38 Tex. 414, 5 278. 
 Warnibold v. Schlicting, 16 Iowa 243, 5 
 
 542. 
 Wassell V. Tunnah, 25 Ark. 101, §§ 52, 
 
 54, 60, 519. 
 Watson V. Mercer, 8 Pet. 110, $ 45. 
 
 V. Simpson, 5 Ala. 233, §5 533, 
 536. 
 Watts V. Leggett, 66 N. C. 197, § 387. 
 Waugh V. Burkett, 3 Grant's Cases 319, 
 
 J 541. 
 Weaver's Appeal, 18 Penn. St. 309, §5 
 380, 538. 
 Estate, 25 Penn. 434, § 206. 
 Webb V. Edwards, 46 Ala. 17, 5 148. 
 
 V. Moore, 25 Ind. 4, § 30. 
 Webster v. Bronston, 5 Bush (Ky.) 521, 
 
 §§ 210, 213. 
 Weed ». Terry, 2 Doug. (Mich.) 344, M 
 
 258, 259. 
 Weideru. Clark, 27 HI. 251, M 215, 225. 
 Weisner v. Pamham, 2 Mich. 472, § 269. 
 Welch V. Bice, 31 Tex. 688, % 235, 253. 
 Wellborn v. Duncan, 9 Ua. 86, § 231. 
 Wentworth v. Young, 17 Me. 70, § 583. 
 West River Bank v. Gale, 42 Vt. 27, § 
 
 134. 
 West V. Ward, 26 Wis. 579, % 125, 127, 
 
 239, 248, 268, 558. ' 
 Wetherby v. Eoster, 5 Vt. 136, § 567. 
 Wetz V. Beard, 12 Ohio St. 431, % 280, 
 
 435, 282. 
 Weymouth JJ. Sanborn, 43 N. H. 171, ^ 
 206. 
 
 Whalen v. Oadman, 11 Iowa 226, % 146, 
 
 151, 152, 161. 
 Wheeler v. Oropsey, 5 How. Pr. 288, 5 577. 
 Whicher u. Long, 11 Iowa 48, J 578. 
 Whitoomb v. Held, 31 Miss. 567, § 571. 
 White u. Clark, 36 III. 285, §$ 117, 242, 
 280, 286, 288, 487. 
 V. Hatt, 13 Wall. 646, § 48. 
 V. PoUeys, 20 Wis. 530, § 276. 
 V. Kioe, 5 Allen 73, § 209. 
 V. Shepherd, 16 Tex. 163, % 246, 
 
 270. 
 V. Thompson, 3 Or. 115, J 536. 
 V. White, 5 Barb. 474, 5 46. 
 V. Williams, 1 Paige 502, § 231. 
 Whitmarsh v. Angle, 3 Code B. (N. Y.) 
 
 53, § 574. 
 Whitworth v. Lyons, 39 Miss. 467, 5§ 
 
 184, 239. 
 Wiggins V. Chance, 54 111. 175, §§ 282, 
 
 444, 446. 
 Wilbur I). Hickey, 8 Gray 432, §§ 242, 406. 
 Wilcox V. Hawley, 31 N. Y. 648, § 579. 
 Wildes V. Vanvoorhis, 15 Gray 143, §§ 
 
 56, 185. 
 Wilkinson v. Alley, 45 N. H. 551, % 564, 
 
 581. 
 Willard u. Longstreet, 2 Doug. (Mich.) 
 
 172, J 43. 
 Williams v. Hall, 33 Tex. 212, § 130. 
 
 V. Jenkins, 25 Tex. 279, J 130. 
 u. Miller, 16 Conn. 144, § 547. 
 V. Starr, 5 Wis. 534, 5 242, 262, 
 
 263, 291. 
 u. Swetlaud, 10 Iowa 51, % 170, 
 171, 172, 175, 195, 242, 269, 
 279, 282, 301. 
 V. Wethered, 37 Tex. 132, §§ 
 
 121, 127. 
 V. Williams, 1 Cent. L. Jour. 
 479, 5§ 185, 240, 242, 243, 
 262, 456. 
 V. Young, 17 Cal. 403, % 69, 
 182, 199, 215, 442, 446. 
 Wilson u. Cochran, 31 Tex. 679, §§ 68, 81, 
 130, 161. 
 V. Ellis, 28 Penn. St. 239, § 550. 
 V. Ellis, 1 Denio 462, §§ 572, 574. 
 V. McElroy, 32 Penn. St. 82, §§ 
 535, 537, 541. 
 
TABLE OF CASES 
 I, M:304, 
 
 45 
 
 Wilson V. Wilson, 45 Cal. 31 
 
 309. 
 Wing V. Cropper, 35 111. 256, § 432, Add. 
 
 H20 
 Winter v. Jones, 10 Ga. 190, §5 32, 39. 
 Winterfield v. Mil. & St. Paul E. K. Co., 
 
 29 Wis. 589, 5 562. 
 Wisner v. Farnham, 2 Mich. 472, §§ 103, 
 
 165, 169, 171, 172, 175, 176, 251, 282. 
 
 Wixom's Estate, 35 Cal. 320, §§ 318, 320. 
 
 Wolf V. Fleisohacker, 5 Cal. 244, 55 123, 
 
 ' 125, 126, 127, 248, 268. 
 
 Wolf V. Ogden, 66 111. 226, Add. §§ 397, 
 
 412. 
 Wood V. Chambers, 20 Tex. S47, § 236. 
 V. Fleet, 36 N. Y. 501, J 110. 
 V. Keyes, 14 Allen 236, 5 564. 
 V. Lord, 51 N. H. 448, §§ 188, 278, 
 
 288, 404. 
 V. Wheeler, 7 Tex. 22, §§ 2, 331, 
 333. 
 Woodbury v. Luddy, 14 Allen 1, 5 278. 
 Woodman v. Lane, 7 N. H. 245, § 118. 
 Woodruff V. Cook, 25 Barb. 505, § 579. 
 
 V. State, 3 Ark. 285, §§ 32, 38. 
 
 Woods V. Buie, 5 Howard (Miss.) 285, § 
 
 30. 
 
 V. Davis, 34 Iowa 265, §§ 307, 309. 
 
 V. Mains, 1 Iowa (Green) 275, $ 
 
 178. 
 V. Sanford, 9 Gray 16, §§ 207, 
 209, 485. 
 
 Woods V. Whitney, 42 Cal. 361, U 106, 
 
 '324. 
 Woodward i;. Murray, 18 Johns. 400, 5 
 
 541. 
 Woodworlh v. Gomstook, 10 Allen 425, 5 
 
 153. 
 Wright V. Dunning, 46 111. 271, U 96, 
 282, 290, 400, 402, 414. 
 V. Hayes, 10 Tex. 130, §5 158, 
 
 285. 
 V. Hays, 34 Tex. 253, §§ 258, 
 
 259. 
 U.Pratt, 31 Wis. 99, 5 558., 
 WyokoflP V. Wyllis, 8 Mich. 48, § 549. 
 
 Teager v. NichoUs, 7 Phila. R. 91, § 535. 
 Yost V. Devault, 3 Iowa 345, § 260. 
 
 ,;. Devault, 9 Iowa 60, §§ 179, 181, 
 183, 242, 257, 259, 260, 291, 301. 
 Young V. Graff, 28 111. 20, §§ 267, 273. 
 V. Van Benthuyseu, 30 Tex. 763, 
 §§ 242, 243. 
 
 Zimmerman v. Briner, 50 Penn. 535 § 
 538. 
 
HOMESTEAD. 
 
CHAPTER I. 
 
 OBJECT AND POLICY. 
 
 § 1. The object and policy of the homestead la^w^ 
 
 has been ably discussed in this country, both by the jurist and 
 the legislator. By the one, in interpreting and giving force 
 to the laws for the better protection of the home of the wife 
 and children. By the other, in its political aspect and its in- 
 fluence upon the spirit of freedom and independence with 
 which every American citizen should be imbued. By the 
 one, in putting in motion the arm of the law, which shields 
 ^the family, to some extent, from the effects of the profligacy 
 of the husband, or the rapacity of his creditors. By the 
 other, in view of the security to the general commonwealth 
 attained by guaranteeing the individual citizen a home to 
 protect. By the one, in giving a liberal and humane inter- 
 pretation to the law, extending its folds not only around mar- 
 ried persons, but around the supporters of the dependent also. 
 By the other' in the consideration of the advantage to the 
 community in inducing the wandering and homeless to be- 
 come permanent and useful citizens. 
 
 § 2. The sanctity of home. — Mr. Chief Justice Hemp- 
 hill,' in speaking of the object and policy of homestead laws, 
 said : "The object of such exemption is to confer on the benefi- 
 ciary a home as an asylum — a refuge which cannot be invaded, 
 nor its tranquillity or serenity disturbed, and in which may be 
 nurtured and cherished those feelings of individual independ- 
 ence, which lie at the foundation and are essential to the per- 
 manency of our institutions. As a measure of sound policy 
 it cannot be too highly commended." 
 
 In a subsequent case, the same eminent jurist said : ' " That 
 
 1 Wood V. Wheeler, 7 Texas 22. 2 Franklin v. Coffee, 18 Texas 415. 
 
 Homestead — 4. 49 
 
§§ 3-4 OBJECT AND POLICY. 50 
 
 the homestead exemption was founded upon principles of 
 the soundest policy, cannot be questioned. Its design was, not 
 only to protect citizens and their families from the miseries 
 and dangers of destitution, but also to cherish and support in 
 the boSom of individuals those feelings of sublime independ- 
 ence which are essential to the maintenance of free institu- 
 tions." 
 
 i 3. Freehold and tenantry contrasted. — Col. Thomas 
 H. Benton, as early as the year 1828, in the United States 
 Senate, in the discussion of the proper disposition of the pub- 
 lic lands, advocated a general homestead' policy, and said : * 
 "Tenantry is unfavorable to freedom. It lays the foundation 
 of separate orders in society, annihilates the love of country, 
 and weakens the spirit of independence. The farming ten- 
 ant has, in fact, no country, no hearth, no domestic altar, no 
 household god. The freeholder, on the contrary, is the nat- 
 ural supporter of a free government ; and it should be the 
 policy of republics to multiply their freeholders, as it is the 
 policy of monarchies to multiply tenants. We are a republic, 
 and we wish to continue so : then multiply the class of free- 
 holders. * * It brings a price above rubies, a virtuous 
 and independent race, the true supporters of their country. ' ' 
 
 i 4. "The act is founded on the idea," said Mr. Justice 
 Sanderson, "that it is good for the general welfare that every 
 family should have a home, a place to abide in, a castle, 
 where it can find a shelter from finandal disaster, and protec- 
 tion against the pursuit of creditors, who have given credit 
 with the full knowledge that they cannot cross its threshold. ' ' ^ 
 In Cook V. McChristian,' the object of this "beneficent pro- 
 vision" was declared to be "for the protection and mainte- 
 nance of the wife and children against the neglect and improv- 
 idence of the husband and father." "The leading idea upon 
 which the constitution and statutes are predicated is the protec- 
 tion of the family, and not the exemption of a certain amount of 
 
 1 Thirty Years in United States Senate, 103, 104 
 
 2 Gregg V. Bostwick, 33 Cai. 228. 
 
 8 4 Cal. 26 ; Taylor v. Hargou^, Id. 273 
 
51 OBJECT AND POLICY. §§ 5-6 
 
 real estate."* And Hon. J. A. Collins, in the Nevada Con- 
 stitutional Convention,^ said : " I do think that this idea of the 
 homestead is one of the sublimest ideas of our age. It is a 
 principle which has sought form and shape, and comes like an 
 angel of mercy to hover over and bless the families of our 
 nation." 
 
 § 5. Rural policy. — In the case of Walker v. Darst,' Mor- 
 rill, C. J., said: "It was a great triumph in civilization 
 when the organic law of a State provided that ' ISTo person shall 
 be imprisoned for debt ' ; but a still greater impetus was given 
 to the happiness of families, when the organic law of a State 
 protected a homestead from the inroads of a sheriff." 
 
 In speaking of the rural homestead, the same enlightened 
 judge, in the same case, (on p. 686) said : "It is not improb- 
 able that the intention" (of the law-making power) "was to 
 favor the farmer and planter in every practical manner. * * 
 By saying to the farmer that he can select two hundred 
 acres of land, which he may put in the highest state of culti- 
 vation, and upon which he may place whatever may contrib- 
 ute to either his real or imaginary wants,- or necessaries, or 
 fancy, and that his home will never be invaded by a creditor 
 6r his agent, but shall always be sacred as a home, is not a 
 small or slight inducement to a man to engage in agriculture. 
 By assuring the wife and mother that she can retire into a 
 rural district and select from the vast regions of Texas a place 
 free from the scenes and allurements of a city, and there 
 bring up and educate her family, and to know that, while she 
 is beautifying her home and adding comforts to conveniences, 
 and fancy to comforts, this home is her home ; that whatever 
 misfortune may befall her husband, either in business or hab- 
 its, this home is secure, and no one can take it from her and 
 her children, is a persuasive argument to a country life." 
 
 § 6. Sanctity of the home. — In the Nevada Constitu- 
 tional Convention of 1864, ex-Minister De Long, in speaking 
 
 1 Lies V. Diablar, 12 Cal. 327. 
 
 2 Nevada Constitutional Debates and Proceedings, p. 287. 
 
 3 31 Texas 682. 
 
§ 7 OBJECT AND POLICY. 52 
 
 of the adoption of the homestead provision, said: "This 
 idea is one which is founded upon the old English maxim, 
 that every man's house is his castle — that it is his sanc- 
 tuary and retreat from all the cares of life, and all the per- 
 secutions which the world can bring against him. * * 
 We ought to frame our constitution in such a manner as to 
 carry out that view. * * Then * a man can go on, with 
 that feeling of security and pride which the head of a fam- 
 ily likes to enjoy in his . domestic affairs, to beautily and 
 adorn his home. He can do so with a full consciousness that 
 no trick of the law, no covetousness of his neighbor, can take 
 from him that household altar, after he has prepared it, as 
 the place where he expects to live and die, and where his 
 wife and children are to reside when he has gone from them. 
 * * They will be made happy by retaining that little 
 spot of earth which is always sacred to the human heart. 
 The birth-place of the children would be left to them, and 
 the family could still live in the home hallowed by the asso- 
 ciations of the past. * * The " object and design of the 
 homestead law * * is to give to every man security for 
 his castle — for his home — to assure him that the place where 
 his children have been born shall not, in any event, be taken 
 away from him — to give him an opportunity to go on, with- 
 out any fear that his little place will be at last stripped from 
 him, to make all those little adornments which are so dear 
 to his heart."' 
 
 8 7. " That the interest and protection of the wife en- 
 tered largely into the consideration that induced the pro- 
 vision in our constitution, protecting the homestead, there 
 cannot be the smallest doubt ; that she should have an asylum 
 from which the creditor, by the process of law, could not force 
 her and- her children, and rudely drive them from a home 
 sanctified by so many sweet aiid endearing recollections, to be 
 exposed not only to physical suffering, but, alas ! to the more 
 baneful and blighting influences so often and so successfully 
 brought to bear on the unfortunate when necessity and not 
 
 1 Nevada Constitutional Debates and Proceedings, 1864, pp. 285, 286, 289. 
 
53 OBJECT AND POLICY. § 7 
 
 the will consents to infamy. Protect the home of the wife, 
 and the opportunity is in some measure afforded, by frugality 
 and honest industry, to support herself and children and to pre- 
 vent some of the worst calamities that the profligacy of the 
 husband could bring on them. These were, doubtless, some 
 of the considerations that influenced the framers of our consti- 
 tution in engrafting the homestead exemption as a cardinal law 
 of the land." 
 
 "There were, however, other considerations, that would 
 not be overlooked by wise philanthropists and philosophic 
 minds accustomed to look deep into the sources of all those 
 evils that' so canker and corrode society ; ascending those 
 streams to their sources, it will be found that by far, the 
 greatest part take their rise not in self-existing crime, but in 
 misfortune incident to the condition of man. The laws should 
 punish crime, but not misfortune ; the latter should be pro- 
 tected, and should not permit the unfortunate to be treated 
 as animals and hunted down, by the aid of the law, as culprits. 
 When this is not done some of the most benevolent hearts are 
 driven, by such omissions and defects in the law, into ultraism, 
 socialism, and Fourierism, and an opposition to all municipal 
 regulations. Hence, the profound wisdom of our homestead 
 law. It is natural to the unfortunate to be grateful to those 
 from whom they receive aid in their afflictions, and they will 
 love and venerate the laws when they protect misfortune 
 and not force them into the class of culprits. The homestead 
 is a point from which they can start, released from any fear of 
 their families being turned out without a home, and can 
 commence again, AntcBus-like, with renewed energy and 
 strength and capacity for business from their fall, unscathed 
 by temptation ; and, from experience, more practical and use- 
 ful members of society. With the homestead protection 
 thrown around him the husband may well exclaim : ' I am a 
 king, and my wife is a queen, and our domain is our home, that 
 none dare invade. ' Profoundly impressed with the wisdom 
 in which our homestead policy is founded, and fully impressed 
 with its ameliorating influences, we admit that it is entitled 
 
§§ 8-9 OBJECT AND POLICY. 54 
 
 to the most liberal construction for the accomplishment of 
 its objects."^ 
 
 § 8. Beneficent features of modern legislation — Its 
 extent. — The Hon. J. H. Warwick, of 1!*^ evada, in speaking 
 of homestead exemption,^ said : " This provision in our or- 
 gani c law I regard as being one of the most wise and beneficent 
 features of modern legislation. It is a feature which has 
 been incorporated into the organic law of every State in the 
 Union which has formed or remodeled its constitution dur- 
 ing the last ten years ; and it is one which, by legislative 
 action, has been incorporated into the laws of every State 
 and Territory * of the American Union.' We feel 
 what it is to have children growing up around us — what 
 it is to rest beneath the family roof-tree, or to rear that 
 sacred structure, whether it be great or small, to which we 
 all look as a shelter and a home. * * j :w^ant this pro- 
 ■s^ision as a protection to the wives aiid children of this 
 Territory. If the industry of the husband has accumulated 
 sufficient for a home, and he has afterwards become dissi- 
 pated, I still wish to say that the wife and children shall re- 
 tain a rallying place, which shall be entitled to the sacred 
 name of home, and of which no action of the husband can 
 deprive them. ' ' ^ 
 
 § 9. The independence of the citizen, as a matter of 
 public policy, was thus alluded to by Justice Baldwin, of 
 Iowa : " This act of the Legislature, in giving to each citizen 
 of the State a homestead, is based upon the idea that it is a 
 matter of public policy, for the promotion of the property of 
 the State, and the general good of the people ; that such citi- 
 zen should be independent and above want ; that he should 
 have a home, a place where he and his family may live in 
 society, beyond the reach of financial misfortune, and the de- 
 mands of creditors. ' '* 
 
 1 Traviok v. Harris, 8 Texas 314 ; True v. MorriU, 28 Vt. 674 ; Robinson v. 
 Wiley, 15 N. T. 494. 
 
 2 Nerada Constitutional Dabates and Proceedings, July 13th, 1864. 
 
 3 With the exception of two States and Territories. 
 *Report of Proceedings, pp. 281, 282, 
 
 5 Parsons v. Livingston, 11 Iowa 106 ; Charlesa v. Lamberson, 1 Iowa 439. • 
 
55 OBJECT AND POLICY. §§ 10-12 
 
 § 10. Ne-w rule in regard to extent of property liable 
 for debt. — So in New York the same general idea is ex- 
 pressed : " The statute is founded upon considerations of pub- 
 lic policy, and has introduced, a new rule in regard to the ex- 
 tent of property which' shall be liable for a man's debts. 
 The Legislature were of the opinion, looking to the advan- 
 tages belonging to the family state in the preservation of 
 morals, the education of children, and possibly even in the 
 encouragement of hope in unfortunate debtors, that this de- 
 gree of exemption would promote the public welfare." ^ 
 
 § 11. Humane character of such la-ws. — In Vermont, it 
 is said that, "the object of the law creating a homestead, 
 which should not be subject to the debts of the husband, is 
 of a humane character, and should be held to apply fairly to 
 all cases as are within the equity and spirit of the a;ct,"^ and 
 in Ohio the law is characterized as possessing the same wise 
 and enlightened attributes : 
 
 "The humane policy of. the homestead act seeks not the 
 protection of the debtor, but its object is to protect his family 
 from the inhumanity which would deprive its dependent 
 members of a home * * and in aid of this wise and 
 humane policy the whole act should receive as liberal con- 
 struction as can be fairly given to it."' 
 
 § 12. Benton's policy — Duty of State to freeholder. — 
 
 The idea suggested by Senator Benton,* as to the policy that 
 should be adopted by the general government, seems to have 
 germinated, after thirty-four years' nurture in the bosom of 
 the republic, in the Act of May, 1862,^ which provides that, 
 "E"o lands acquired under tTie provisions of this act shall, in 
 any event, become liable to the satisfaction of any debt or 
 debts contracted prior to the issuing of the patent therefor. ' ' 
 
 1 Eobinaon v. Wiley, 15 N. Y. 494. 
 
 2 True V. Morrill, 28 Vt. 674 ; MoClary v. Bixby, 36 Vt. 257 ; Lillotson v. 
 Millard, 7 Minn. 519 ; Eoff v. Johnson, 40 Ga. 555 ; Noland v. Wiokham, 9 
 Ala. 169 ; Cusic v. Douglas, 3 Kansas 123 ; Bronson v. Kinzie, 1 Howard U. S. 
 311. 
 
 3 Sears v. Hanks, 14 Ohio St. 300, 301. 
 i Sec. 3. 
 
 6 12 U. S. Stat. 392. Revised Statutes, Sec. 2296. 
 
§§ 13-14 OBJECT AND POLICY. 56 
 
 The general government, having protected the settler, 
 under the foregoing act, in the enjoyment of his home 
 while under its sovereignty, and handing him over,' an 
 independent freeholder, to the 'State in which he may he 
 domiciled, it should be the policy of such State to conserve 
 this status, and protect him in the homestead thus acquired. 
 
 § 13. The -welfare of the State. — There can be no ques- 
 tion as to the fact that the adoption of a wholesome system of 
 homestead laws is beneficial to the general welfare of the 
 State. And especially is this the case under a republican 
 form of government, where every citizen is called upon to 
 take an active part in shaping the policy of-the State. It can 
 hardly be doubted that a citizen who has a material interest 
 in the country, will exercise more care in the selection of 
 competent executive ofi&cers than he who has nothing to 
 lose. And this is doubly true in relation to the government 
 of municipal corporations. 
 
 § 14. Immigration and permanent citizenship. — It is 
 
 good policy on the part of the less populous States to hold 
 out inducements suflaciently attractive to secure immigration 
 within their borders, and to retain the emigrants permanently 
 after their arrival. And in no way can this be accomphshed 
 more effectually than in holding the home, when acquired, 
 sacred as a family altar. 
 
 Indeed, the wealth and prosperity of the western and south- 
 western States of the Union, during the last twenty years, 
 may, in a large measure, be attributed to the generous — and 
 perhaps competitive — provisions made at an early day, by 
 those States, for the protection of all citizens in the enjoyment 
 of an ample homestead. The home once acquired, the citi- 
 zen ceases to wander, and if he does now and then, it is but 
 to return to his fireside, which the State has preserved for 
 him. 
 
57 CONSTITUTIONALITY OF EXEMPTION LAWS. §§ 15-16 
 
 CHAPTER II. 
 
 CONSTITUTIONALITY OP EXEMPTION LAWS. 
 
 § 15. The poTver of the people of a State in adopting a 
 constitution, or of the legislature in enacting laws exempt- 
 ing property from sale on execution, upon contracts made, or 
 obligations incurred, subsequent to the adoption of such con- 
 stitution, or to the passage of the exemption act, has not 
 been seriously questioned ; it is conceded, that the laws ex- 
 isting at the time and place of the making of the contract 
 enter into and form part of the contract, as if they were 
 referred to or incorporated in its terms. ^ 
 
 § 16. The validity of constitutions adopted, or of stat- 
 utes enacted, which exempt propertj' from sale on executions 
 upon judgments obtained, contracts made, or obligatiqns 
 incurred, jprior to the adoption of the constitution or the 
 enactment of the statute, has been frequently questioned, 
 on the ground that they are in contravention of Sec. 10 of 
 Art. 1 of the Federal Constitution, which provides that : 
 "H"o State shall pass any law impairing the obligation of 
 contracts." 
 
 1 McOraoken v. Hayward, 2 Howard 612. The Court said : " The obliga- 
 tion of a contract consists in its binding force on the party who makes it. This 
 depends on the laws in existence when it was made ; these are necessarily refer- 
 red to in all contracts, and forming part of them as the measure of the obliga- 
 tion to perform them by the one party and the right acquired by the other." 
 Walker v. Whitehead, 16 Wallace 314 ; Olcott u. Supervisors, Id. 678. 
 
 In the case of Von Hoffman v. the City of Quincy, 4 Wallace 550, it was 
 said by the same Court : " It is also settled that the laws which subsist at the 
 time and place of the making of a contract, and where it is to be performed, 
 enter into and form part of it, as if they were expressly referred to or incorpo- 
 rated in its terms." Railroad Co. v. MoClure, 10 Wallace 511. 
 
§§ 17-19 CONSTITUTIONALITY OF EXEMPTION LAWS. 58 
 
 § 17. It is a -well settled rule that the constitution of 
 a State is a "law" within the prohibition of the United 
 States Constitution upon State laws impairing the obligation 
 of contracts.* In the case of Gunn r. Barry ^ the Supreme 
 Court says: " A State can no' more impair an existing con- 
 tract by a constitutional provision, than by a legislative act ; 
 both are within the prohibition of the ]!Tational Constitution." 
 
 g 18. Upon questions arising upon the construction 
 of the Federal Constitution and laws, the decisions of the 
 Courts of the United States are final and conclusive.' The 
 Supreme Court of ISTorth Carolina, in the case of G-arnett v. 
 Cheshire,* in speaking of the conflicting decisions of the 
 State and U. S. Supreme Court, says : " "We should make 
 haste to conform our decisions to the decisions of the United 
 States Supreme Court, because in all cases within its juris- 
 diction that is the highest Court, and the proper administra- 
 tion of justice, and the true principles of our government, 
 and the good order of society, and the comity of Courts, , 
 require subordination." 
 
 § 19. " A constitution, from its nature, deals in generals, 
 not in detail," said Chief Justice Marshall. "Its framers 
 cannot perceive minute distinctions which arise in the pro- 
 gress of the nation, and therefore confine it to the establish- 
 ment of broad and general principles." ^ 
 
 1 Railroad Co. v. McClure, 10 WaUaoe 515 ; Jefferson Br. Bank v. Skelly, 1 
 Black 436. 
 
 2 15 Wallace 623. 
 
 3 Cusio V. Douglas, 3 Kansas 123 ; Hioks v. Hotchkiss, 7 John. Ch. 297 ; 
 Eosier v. Hale, 10 Iowa 484 ; Garrett v. Ohesire, 69 N. C. 399; Mather v. Bush, 
 16 Johns. 233 ; People u. Piatt, 17 Johns. 195 ; Roosevelt v. Cehra, 17 Johns. 108 ; 
 Matter of Wendell, 19 Johns. 153 ; McCormiok v. Pickering, 4 N. Y. (4 Comst.) 
 276 ; Cochran v. Van Surlay, 20 Wendell 365 ; Kunzler v. Kohaus, 5 Hill (Ct. 
 BiTora) 317 ; North River Steamboat Co. v. Livingston, 3 Oowen (Ct. Errors) 
 713; Martin v Hunter's Lessee, 1 Wheaton 304, 334; Cohens v. Virginia, 6 
 Wheaton 264; Bank of U. S. v. Norton, 3 Marsh. 423 ; Braynard v. Marshall, 8 
 Pick. 196 ; Spangler's Case, 11 Mich. 298 ; Tarble's Case, 13 Wall. 397 ; Gilpin 
 u. Critohlow, Sup. Ct. Mass., Am. L. R., March, 1874; Kanouse v. Martin, 14 
 Howard 23, 15 Howard 198. 
 
 * 69 N. C. 399. Cooly Const. Lim., 3d Ed. 11, 12. 
 B Bank of the U. S. v. Daveaux, 5 Cranoh 61 to 92. 
 
59 CONSTITUTIONALITY OF EXEMPTION LAWS. §§ 20-22 
 
 § 20. No distinction being made by the Courts be- 
 t-wreen constitutional and statutory exemptions of prop- 
 erty from forced sale, so far as they are, or either of them is, 
 held to conflict with the restraint imposed upon the several 
 States by Section 10 of Art. 1 of the Constitution of the 
 United States, we will therefore trefit both provisions under 
 the same general heading. 
 
 § 21. Two classes of laws and constitutions have 
 been adopted, upon which this constitutional question has 
 arisen ; one by which the debtor's property is declared to be 
 exempt from all debts, judgments, and liens, both old and 
 new ; and the other by which it is made exempt from all 
 debts, except judgments and liens existing at the time of the 
 adoption of the constitution or of the enactment of the stat- 
 utes. It is contended on the one hand, that one or both of 
 these classes of constitutional provisions or statutory enact- 
 ments are in contravention of the constitutional provision 
 above quoted, and on the other hand, that they aflect only 
 the remedy, and not the right of the creditor, or the obliga- 
 tion of the debtor. 
 
 The discussion of the question renders it necessary that we 
 should consider : 
 
 1st. The distinction between the obligation of a contract 
 and the remedy, and, 
 
 2d. How far each of these classes of constitutional pro- 
 visions or statutory enactments impairs the one or the other. 
 
 § 22. The obligation of a contract is defined by Bou- 
 vier as "a legal not a mere moral obligation, it is the law 
 which binds the party to perform his undertaking. The 
 obligation does not inhere or subsist in the contract itself 
 proprio vigore, but in the law applicable to the contract."^ 
 And Chief Justice Marshall said : ^ "A contract is an agree- 
 ment in which a party undertakes to do or not to do a par- 
 ticular thing. The law binds him to perform his under- 
 taking, and this is of course the obligation of his contract. 
 
 1 Bouv. L. Die. 607. 
 
 2 Sturges v. Crowninshield, i Wheaton 197. 
 
§ 23 CONSTITUTIONALITY OF EXEMPTION LAWS. 60 
 
 * * Any law which releases a part of this obligation must 
 in the literal sense of the word impair it, which makes it 
 totally invalid and entirely discharges it. " 
 
 "A perfect right is that which is accompanied by the 
 right of compelling those who refuse to fulfill the correspond- 
 ent obligation. A perfect obligation is that which gives to 
 the opposite party the right of compulsion. " ^ 
 
 i 23. The distinction attempted to be dra^vn at an 
 
 early date between the obligation of a contract and the rem- 
 edy has been prolific of litigation, and has resulted in de- 
 cisions as various, almost, as the States in the Union. " No _ 
 attempt has been made to fix definitely the line between al- 
 terations of the remedy which are deemed legitimate and 
 those which, under the form of modifying the remedy, im- 
 pair substantial rights. Every case must be determined upon 
 its own circumstances." ^ 
 
 In Von Hoft'man v. Quincy,^ decided in 1866, in speaking 
 of the distinction between the obligation of the contract and 
 the remedy, the Court uses the following language : " The 
 doctrines upon that subject, by the latest adjudications of 
 this Court, render the distinction one rather of form than 
 substance. A right without a remedy is as if it were not. 
 For every beneficial purpose it may be said not to exist. A 
 ■different result would leave nothing of the contract but an ab- 
 stract right of no practical value, and render the protection of 
 the constitution a shadow and a delusion. Nothing can be 
 more material to the obligation of a contract than the means 
 of enforcement. Without the remedy, the contract may, in- 
 deed, in the sense of the law, be said not to exist, and its ob- 
 ligation to fall within the class of those social duties which de- 
 pend for their fulfillment wholly upon the will of the individ- 
 ual. The idea of validity and remedy are inseparable, and 
 both are parts of the obligation, which is guaranteed by the 
 constitution against invasion." 
 
 In the still later case of Walker o. Whitehead,* decided in 
 
 1 Vattel 62. 
 
 2 Brouson v. Kinzie, 1 Howard 316 and 317. 
 
 3 4 Wallace 553. 
 i 16 Wallace 314. 
 
61 CONSTITUTIONALITY OF EXEMPTION LAWS. § 24 
 
 1872, the same Court says : " The laws which exist at the 
 time of making the contract, and in the place where it is 
 made, and to be performed, enter into and make part of it. 
 This embraces those laws which alike affect its vaUdity, 
 construction, discharge, and enforcement. The remedy or 
 means of enforcing a contract is a part of the obligation of 
 that contract which the constitution protects against being 
 impaired by any law passed by a State." 
 
 § 24. Change of remedy not unconstitutional. — Such 
 being the obligation of a contract it will be seen that a statute 
 which changes or affects the remedy merely, and does not 
 destroy or impair vested rights, is not unconstitutional 
 even though it be retrospective, and althougji in chang- 
 ing or affecting the remedy, the rights of , parties may 
 be incidently "affected. A change of remedy is open to 
 no constitutional objection, provided a substantial remedy 
 is left.^ The obligation of a contract, and the remedy 
 to enforce it, are distinct things. The one arises at the 
 time the contract is made, the other on the failure to per- 
 form it.^ Thus in relation to exemption laws, it is held that 
 they are not unconstitutional on the ground of impairing the 
 obligation of contracts; though exempting property from ex- 
 ecution for debts contracted before the passage of the law,^ on 
 the ground that it relates to the remedy only, and is not 
 an abuse of the well established power of the State to regu- 
 late I'emedies.^ 
 
 Mr. Justice Cooley in his Constitutional Limitations^ says, 
 in speaking of the laws under consideration, " Kor is there 
 any constitutional objection to such a modification of those 
 laws which exempt certain portions of a debtor's property 
 from execution as shall increase the exemption, nor the 
 
 1 Kiohmond U.Richmond, etc., K. K. Co., 21 Gratt. 611. 
 
 2 Kioh V. Flanders, 39 N. H. 304 ; Newton v. Tibbatts, 2 Eng. 7 Ark. 
 150 ; Bronson v. Newberry, 2 Douglas ( Mich.) 38 ; Rockwell u. Hubbell, 2 Doug- 
 las ( Mich.) 197 ; Bronson v. Kinzie, 1 Howard 311 ; Spreoker v. Wakeley, 11 Wis. 
 432; U. S. V. Conway and U. S, v. Samparyac, 1 Hemp. 313 and 118. 
 
 3 Stephenson v. Osborne, 41 Miss. 119. 
 
 4 Grrimes v. Byrne, 2 Miu. 89. 
 6 Cooley's Con. Lim. p. 287. 
 
§ 25 CONSIITTJTIONALITY OF EXEMPTION LAWS. 62 
 
 modificatiou3 being made applicable to contracts previously 
 entered into" * * "Regulations of this character have al- 
 waj'S been considered in every civilized community, as 
 properly belonging to the remedy to be exercised or not by 
 every sovereignty, according to its own views of policy and 
 humanity."^ In the case of Von Hoffman?;. The City of 
 Quincy,^ the Court says : "It is competent for the State to" 
 change the form of the remedy or to modify it otherwise as 
 they may see fit, provided no substantial right secured by 
 the contract is thereby impaired." * * * "They may 
 also exempt from sale under execution the necessary im- 
 plements of agriculture, the tools of a mechanic, and articles 
 of necessity in household furniture."^ In Bi-ongon v. Kinzie,* 
 Taney, C. J., said the same thing, adding that " it must reside 
 in every State to enable it to secure its citizens from unjust 
 and harassing litigation, and to protect them in those pur- 
 suits which are necessary to the existence and well-being of 
 every community. ' ' Woodbury, J. in delivering the opinion 
 of the Court, in the case of Planter's Bank v. Sharpe,' enumer- 
 ated exemption laws among the examples of legislation which 
 might be constitutionally applied to existing contracts, to se- 
 cure citizens the "necessaries and comforts of life." 
 
 § 25. A State has the right to change the remedy, but 
 not the contract. — The distinction between the obligation 
 of a conti-act and the ^^ remedy" for its enforcement is well es- 
 tablished by the authorities; and while the legislature has no 
 right to impair the obligation of the contract, it has the un- 
 doubted right to change, modify, or vary the nature and ex- 
 tent of the remedy, provided a substantial remedy is left the 
 creditor. Under the United States Constitution the former 
 power is denied to the several States, but the latter exists in 
 
 1 Bronson r. Kenzie, 1 Howard 311 ; Rockwell u. Hubbells, adm., 2 Douglas 
 (Mich.) 197i Quackenbush v. Danks, 1 Denlo 128, 3 Denio 594, and 1 N. Y. 129 ; 
 Sprecker v. Wakeley, 11 Wis. 432 ; Morse v. Goold, 11 N. Y. 281 ; Cusio ». Doug- 
 las, 3 Kansas 123 ; Maxey v. Loyal, 38 Ga. 531; Hardeman v. Downer, 39 Ga. 425. 
 
 2 Von Hoffman v. Quinoy, 4 Wallace 553. 
 
 3 Id. 555. 
 
 4 1 Howard 311 ; Sneider v. Heidelberger, 45 Ala. 126. 
 B 6 Howard 301. 
 
63 CONSTITUTIONALITY OF EXEMPTION LAWS. § 26 
 
 full force. ^ The United States Supreme Court says :^ " One 
 of the tests that a contract has been impaired is that its value 
 has, by legislation, been diminished." In commenting on 
 the foregoing remarks the Court in another case further said: 
 "This has reference to legislation which affects the contract 
 directly, and not incidentally or only by consequence."' The 
 Court seems to intimate in the foregoing remark, that if the 
 impairment of the contract was done indirectly it would be 
 a valid law. In the later cases the Court modifies the broad- 
 ness of this language.* 
 
 § 26. The constitutionality of the exemption la-w of 
 the State of Nevr York, passed in 1842, was before the Su- 
 preme Court in 1845, in the case of Quackenbush v. Danks, 
 upon a judgment docketed in 1837. An alias fieri facias 
 was issued in 1843 on the judgment. The Court was of opin- 
 ion that statutes which are not made expressly retroactive in 
 terms, should not be construed to affect past transactions, so 
 it would appear that the Exemption Act of 1842 ought not to 
 affect executions for debts contracted before its passage. 
 But the Court intimated that the general words in which the 
 law was framed were bi-oad enough to include contracts al- 
 ready in existence, and that if the statute admitted of that 
 construction, it conflicted with the provisions of the Constitu- 
 tion of the United States forbidding any State to pass a law 
 impairing the obligation of contracts, and was so far void. 
 
 1 Cutis V. Hardee, 38 Ga. 350 ; Phill. (N. C.) L. 410 ; Coosa River Steamboat 
 Co. V. Barclay, 30 Ala. 120 ; Stocking v. Hunt, 3 Den. (N. T.) 274 ; McLaren 
 V. Pennington, 1 Paige 102 ; Miller v. Moore, 1 E. D. Smith 739 ; Sullivan ». 
 Brewster, Id. 681, to same eflfect ; Thornton v. Hooper, 14 Cal. 9 ; Paschal v. 
 Perez, 7 Texas 348 ; Sutherland v. De Leon, 1 Texas 250 ; Catlin u. Hunger, 1 
 Texas 598. 
 
 2 Von Hoffman v. Quinoy, 4 Wallace 553. 
 
 3 Burr V. Houghton, 9 Peters 359 ; Ogden v. Saunders, 12 Wheaton 230 and 
 270 ; Mason v. Haile, 12 Wheaton 373 ; Sturges v. Crowninshield, 4 Wheaton 
 200 ; Bumgardneru. Circuit Court, 4 Mo. 50 ; Trapley v. Hamer, 9 S. & M. 310 ; 
 Quackenbush v. Danks, 1 Denio 128; Evans v, Montgomery, 4 W. and S., (Penn.) 
 21S ; HoUoway v. Sherman, 12 Iowa 282 ; Spreoker i;.Wakeley, 11 Wis. 432 ; Smith 
 V. Packard, 12 Wis. 371; Porter v. Mariner, 50 Mo. 364; Morse v. Goold, 11 N. 
 T. 281 ; Penrose v. Erie Canal Company, 56 Penn. 46 ; 26 Ark. 527. 
 
 i Gunn V. Barry, 15 Wallace 623 ; Walker v. Whitehead, 16 Wallace 314. 
 
§ 27 CONSTITUTIONALITY OF EXEMPTION LAWS. 64 
 
 Tlie case was taken up to the Court of Appeals, and the judg- 
 . ment of the Supreme Court in so far as it determined that fhe 
 act was unconstitutional and void as to debts contracted before 
 its passage, was affirmed, the Court being equally divided.* 
 
 § 27. The same point, as to the constitutional validity 
 of the exemption law of 1842, so far as it affected prior 
 judgments, was again presented to the Court of Appeals in 
 Morse v. Goold.^ In this case the Court, after declining to 
 regard Danks v. Quackenbush, supra, as a binding precedent, 
 because the members of the Court had been equally divided 
 in opinion in that case, overruled it : Holding that the act ex- 
 empting certain property from levy and sale on execution' 
 applied to judgments and executions on debts contracted be- 
 fore as well as after its passage ; that the act merely modified 
 the remedy for enforcing contracts, and neither destroyed it, 
 nor materially impaired its efficiency; that therefore the act 
 did not conflict with the provision in the Constitution of the 
 United States now under consideration. 
 
 Said Denio, J. : " The contracting of a debt does not in any 
 legal sense create a lien upon the debtor's property. He is as 
 much at liberty to deal with it and transfer it bona fide as 
 though he were entirely free from debt. The right which a 
 creditor by becoming such acquires, is to have the use and 
 benefit of the laws for the collection of debts which may be 
 in force, when he shall have occasion to resort to them to en- 
 force his demand against the debtor. * * Legal remedies 
 are in the fullest sense under the rightful control of the Leg- 
 islatures of the several States, noth withstanding the provision 
 in the Federal Constitution securing the inviolability of con- 
 tracts; and it is not a valid objection to legislation on that 
 subject, that the substantial remedy is less beneficial to the 
 creditor than the one which obtained at the time that the 
 debt was contracted. That this principle is a sound one, I 
 cannot entertain the slightest doubt. Such legislation must 
 of necessity belong to the States, for it is certain that it is not 
 
 1 Danks v. Quaokenbuah, 1 N. T. (1 Com8t.) 129. 
 
 2 11 N. Y. 281. 
 
 3 Stat. 1842, 193. 
 
65 CONSTITUTIONALITY OF EXEMPTION LAWS. § 27 
 
 embraced within any of the grants of powers to the general 
 government, and in the natui-e of things can only be exercised 
 by the State sovereignties. * * There is no universal 
 principle of law that every part of the property of the debtor 
 is liable to be seized for the payment of a judgment against 
 him. The propriety of exempting articles of small value 
 * * was engrafted upon the law of the State befoBe the rer 
 vision of 1813, and the list of exempt articles has been from 
 time to time increased down to the passage of the Act of 1842 ; 
 but the great mass of individual property always has been and 
 still is liable to the claim of creditors. According to the 
 opinion of the Supreme Court, each of these acts ought to 
 have been limited to future contracts, and until the prior 
 cases had been disposed of there must have been two Mhds 
 of executions, one embraciug and the other excepting the 
 exempt property ; for however trifling and unimportant it 
 might be, the provision releasing it from the execution is con- 
 sidered to that extent a violation of all prior contracts of the 
 debtor, which as already remarked is quite erroneous. 
 "When it is remembered that this right, so far as it is pro- 
 tected by the Constitution of the United States, is limited to 
 the benefit of the general laws of the State for the collection 
 of debts, and to the continuance of such laws in substance 
 aad with good faith, it seems clear that any change which the 
 policy or humanity of the Legislature may make, which 
 shall leave a substantial remedy, does not touch the obliga- 
 tion of prior contracts within.the meaning of the constitution. 
 The regulation prescribed by the Act of 1842 is a general one. 
 It professes to give the rule according to which during all fu- 
 ture time the rights of creditors are to be enforced ; and it is not 
 made to embrace past transactions because there is any mo- 
 tive for relieving existing debtors, but in order that the 
 course of ^ legal procedure should be uniform. * * The 
 question is, whether the law which prevailed when the con- 
 tract was made has been so far changed that there does not 
 remain a substantial mode of enforcing it in the ordinary and 
 regular course of justice. * * I regard the Act of 1842 as 
 a provision clearly within the competency of the Legislature, 
 
 Homestead — 5. 
 
§ 28 ■ CONSTITUTIONALITY OF EXEMPTION LAWS. 66 
 
 and one which they might lawfully apply to all future pro- 
 ceedings in Courts, whether such proceedings should relate to 
 existing or future causes of action."^ 
 
 § 28. !We have thought proper to incorporate a large 
 portion of the foregoing opinion in our text for the reason, 
 that it is a well considered case,- laying down general prin- 
 ciples which are well sustained by the ablest decisions, both 
 before and since its rendition, and the principles then an- 
 nounced have been generally followed and may now be said 
 to furnish the rule. 
 
 It will have been noticed that it establishes the following 
 principles : 
 
 1st. That all legal remedies are properly, and in the nature 
 of things must from necessity be, under the control of the 
 State. 
 
 2d. That the general government can only exercise the 
 specific powers granted her by the people, all others being 
 reserved to the sovereignties ; and that this remedial right is 
 one of the reserved. 
 
 3d. That a State law furnishing a substantial remedy — 
 although it may not be as speedy and efficacious as the remedy 
 existing when the debt may have been contracted — is within 
 the constitutional resti'aint imposed by the people of the sev- 
 eral States upon themselves, in the grant of powers to the 
 general govei'nment. 
 
 4th. That the creditor is entitled, only, to the use and 
 assistance of the process of the law, for the collection of his 
 debt, which may be in force in the State when he calls upon 
 her to enforce his demand. 
 
 5th. That there is a marked distinction as to the right, be- 
 tween a simple indebtedness and a lien — a vested right. ^ 
 
 1 11 N. Y. 291, citing : 4 Wheaton, 122, 200 ; 12 "Wheaton, 370 ; 9 Pet. U. S. 
 328 ; 5 Pet. 457 ; 5 How. (U. S. ) 316 ; 2 Kent 397 ; 21 Pick. 169 ; 2d Story 
 on Const. 251 and 268 ; 22 Pick. 430 ; 8 Mass. 423 and 428, distinguishing, 1 
 Howard 411 and 2 Howard 608. 
 
 2 The following oases sustain the principles announced : Bronson v. Kinzie, 
 per Taney, Ch. J., 1 Howard 316 ; Stocking v. Hunt, 3 Denio 274; Vanbaum- 
 baok ■!). Bade, 9 "Wis. 578; MoCraoken v. Hay ward, 2 Howard 612.; Butler u. 
 Palmer, 1 HUl 324 ; Van Kensselaer v. Snyder, 9 Barb. 302, 13 N. Y. 299 ; Con- 
 
Q7 CONSTITUTIONALITY OF EXEMPTION LAWSr §§ 29-30 
 
 § 29. The Constitution of the United States applies 
 only to the stipulations of the contract. — The constitutional 
 provision in relation to laws impairing the obligation of con- 
 tracts, was designed to operate only upon some of the under- 
 takings contained in the contract, and was not intended to inter- 
 fere with the internal regulations which a State may think 
 proper to adopt for the gove^rnment of its citizens.^ Thus, it 
 was held by the Supreme Court of the United States, in the 
 case of Calder v. Bull,^ that a resolution or law of the Legis- 
 lature of Connecticut, setting aside a decree of a Court and 
 granting a new ti'ial to be had before the same Court, was 
 not constitutionally objectionable. 
 
 § 30. Suits pending may be affected by change of 
 remedy without contravening the Constitution of the United 
 States. An attachment of property contemporaneous with 
 the commencement of a suit, is not such a vested right as 
 will prohibit legislation taking away the right to further 
 prosecute the suit in the form in which it was commenced. 
 So a State may modify, or take away, remedies for the recov- 
 ery of debts. ^ It was held in Minnesota that a law passed 
 subsequent to the making of a mortgage, which so changed 
 the law as to allow the mortgagor to retain possession till the 
 
 key V. Hart, 14 N. Y. 22 ; Guild v. Rogers, 8 Barbour 502 ; Story v. Furman, 
 25 N. T. 214 ; Coriell v. Ham, i Greene (Iowa) 455 ; Heyward v. Judd, 4 Minn. 
 483 ; Swift v. Fletcher, 6 Minn. 550 ; Maynes v. Moore, 16 Ind. 116 ; Smith v. 
 Packard, 12 Wis. 371 ; Grosvenor u. Chesley, 48 Me. 369 ; Paschal v. Perez, 7 
 Texas 365 ; Auld v. Butcher, 2 Kansas 155 ; Kenyon v. Stewart, 44 Penn. St. 
 179 ; Clark v. Martin, 49 Penn. St. 299 ; Sanders -u. Hillsborough Ins. Co., 44 N. 
 H. 238 ; Huntzinger v. Brock, 3 Grant's Penn. Cases 243 ; Mechanics Bank's 
 Appeal, 31 Conn. 63 ; Ogden v. Saunders, 12 Wheaton 270 ; Beers v. Haughton, 
 9 Peters 359 ; Bumgardner v. Circuit Court, 4 Mo. 50 ; Trapley v. Hamer, 9 Smed. 
 &M. 310 ; Bronson v. Newberry, 2 Doug. Mich. 38 ; Eookwell v. HubbellAdm., 2 
 Doug. Mich. 197 ; Evens v. Montgomery, 4 W. & S. 218 ; Holloway v. Sherman, 
 12 Iowa 282; Sprecker v. Wakeley, 11 Wis. 432; Porter v. Mariner, 50 Mo. 
 364 ; Penrose v. the Erie Canal Co., 56 Penn. St., 46 ; 1 Deuio, 128, 3 Denio 
 594, 1 N. T. 129, 6 Barbour S. Ct. 327. 
 
 1 Barlow v. Gregory, 31 Conn. 264. 
 
 2 3Dall. 386. 
 
 3 Read v. Frankfort Bank, 23 Maine 318; TJ. S. Bank v. Longworth, 
 1 McLean (TJ. S.) 35 ; Woods v. Buie, 5 Howard (Miss.) 285 ; Evans v: Mont- 
 gomery, 4 Watts & Serg. 218 ; Oriental Bank v. Freeze, 18 Maine 109. 
 
§§ 31-32 'CONSTITUTIONALITY OF EXEMPTION LAWS. 68 
 
 expiration of the period of redemption, which was one year, 
 applied to a mortgage made before the passage of the act, 
 though the law, at the time the mortgage was executed, 
 entitled the purchaser at foreclosure sale to immediate pos- 
 session, and that such change in the law did not impair the 
 obligation of the contract.^ 
 
 § 31. Execution laws in force at the time of a con- 
 tract enter into it, so far as they affect the obligation of eon- 
 tracts ; but so far as laws are merely remedial, they may be 
 changed at any subsequent time, and the new law will govern 
 the remedy on the contract.^ The general rule is, that, " the 
 right to a particular remedy is not a vested right ; and the 
 exceptions are of those peculiar cases in which the remedy is 
 a part of the right itself."' An act granting a stay of execu- 
 tion, in Pennsylvania, under certain conditions on "all judg- 
 ments or debts upon which stay of- execution has been or may 
 be waived by the debtor in any original obligation or contract 
 upon which such judgment has been or may be hereafter ob- 
 tained " was held to be unconstitutional, being in conflict with 
 § 10, Art. 1, of the Constitution of the U. S.* Such acts were 
 also held unconstitutional so far as they were attempted to be 
 applied to judgments rendered before their passage.* 
 
 § 32. The State cannot abolish the remedy or injuri- 
 ously change it, although it may modify it by subsequent 
 statute, yet a statute which takes away all remedy impairs its 
 obligation. ° "A vested right of action is property in the 
 
 1 Berfchold v. Holman, 12 Miim. 335 ; Webb v. Moore, 25 Ind. 4 ; Grroavenor v. 
 Chesley, 48 Maine 369., 
 
 2 Coriell -v. Ham, 4 Green 458 ; HoUoway 'v. Sherman, 12 Ip-wa 282 ; Hey- 
 •ward V. Judd, 4 Min. 488 ; Stone v. Bassett, 4 Min. 298 ; Van Rensselaer v. 
 Hays, 19 N. Y. 68 ; Van Eensselaer v. Ball, Id. 100 ; Balston v. Lothian, 18 Ind. 
 303 ; Smith v. Packard, 12 Wis. 371. 
 
 3 Cooly Con. Urn. 261 ; Rosier v. Hale, 10 Iowa 484 ; Review of all cases 
 pro and con in the case of Rosier v. Hale, 10 Iowa ; Smith v. Bryan, 34 HI. 
 377; Lord v. Chadbourne, 42 Me. 429 ; McOormick v. Rusoh, 15 Iowa 127. 
 
 4 Bellmyer v. Evans, 40 Penn. 324. 
 
 B Iglehart v. Wolfin, 20 Ind. 32 ; Soobey v. Gibson, 17 Ind. 572 ; Stevens v. 
 Andrews, 31 Mo. 205. 
 
 6 Bruce v. Schuyler, 4Gilm. 8 111. 241 ; Cornell v. Hichens, 11 Wis. 367; Maltby 
 V. Cooper, 1 Morris (Iowa) 59 ; Harlan v. Sigler, 1 Morris (Iowa) 39 ; Hill v. 
 KesBlor, 63 N. C. 439 ; Garrett v. Cheaire, 69 N. C. 402. 
 
69 CONSTITUTIONALITY OF EXEMPTION LAWS. § 33 
 
 same sense in which tangible things are property, and is pro- 
 tected. "^ 
 
 The suspension by statute of remedies, or any part thereof, 
 existing when the contract was made, more or less impairs 
 the obligation of the contract, and is unconstitutional.^ 
 
 § 33. Distinction bet-ween liens and simple indebted- 
 ness. — In the case of Hill v. Xe8sler,'the Supreme Court, upon 
 the question whether the provisions of the constitution' of 
 N. C, Art. X, §§ 1 and 2, exempting certain property from 
 execution sale, impairs the obligation of pre-existing con- 
 tracts, decided that the exemption of a homestead of $1,000 
 and of personal property worth |500 applies to debts existing 
 before the adoption of the constitution. Holding that home- 
 stead and exemption laws apply to debts — mere indebtedness 
 — existing before the adoption of the constitution of 1868. 
 Debts not being a lien upon the property of a debtor. But 
 decided otherwise where specific liens were created. 
 
 In the case of McKeithan v. Terry,^ the execution was 
 levied before the adoption of the constitution, and the Court 
 held that there was a specific lien, a vested right, which it 
 was not the purpose of the constitution to destroy, " if, in- 
 deed, it had the power. " Specific liens ci-eated before the 
 adoption of the constitution are not divested by the provision 
 for a homestead, in it." 
 
 A late case in North Carolina,^ in which the Court reviews 
 the recent case decided by the Supreme Court of the United 
 States,^ in relation to the exemption laws of Georgia, as well 
 as the cases in its own Court, affirms that the homestead laws 
 of North CaroHna do not impair the obligation of a contract, 
 and are not unconstitutional. 
 
 1 Cooly's Con. Lim. 361 ; Cornell v Hioliens, 11 Wia. 353 ; Oriental Bank v. 
 Freeze, 18 Maine 109; "Woodruff u. The State, 3 Ark. 285; Bishop's Fund d. 
 Eider, 13 Conn. 87 ; Read v. Frankfort Bank, 10 Shop. (23 Maine), 318. 
 
 2 Th*rne v. San Francisco, 4 Cal. 127 ; Winter v. Jones, 10 Ga. 190 ; Mundy v. 
 Monroe, 1 Mich. 68. 
 
 3 63 N. C. 437. 
 
 4 McKeithan v. Terry, 64 N. 0. 25. 
 
 5 Garrett v. Chesire, 69 N. C. 396., 
 
 6 Gunn v Barry, 15 Wallace 610. 
 
§§ 34-35 CONSTITUTIONALITY OF EXEMPTION LAWS. 70 
 
 § 34. General indebtedness does not affect homestead. 
 
 The Constitution of Minnesota contains the following clause : 
 " A reasonable amount of property shall be exempt from 
 seizure or sale, for the payment of any debt or liability : the 
 amount of such exemption shall be determined by law."^ 
 
 Accordingly, in 1851, the Legislature passed the Homestead 
 Exemption Law, which was amended in 1854. The Supreme 
 Court said,^ in speaking of these acts, that it was " evident 
 that the intention of the Legislature was to exempt from sale 
 on execution or other process of a Court this homestead as 
 against any general indebtedness that the owner might incur, 
 not connected with the land itself, or the improvements 
 thereon, or liens voluntarily created by mortgage." 
 
 § 35. Specific indebtedness merged in a lien afibcts 
 hjom.estead. — The fact that premises became a homestead 
 after a lien has attached, cannot deprive the lien claimant of 
 his lien. And a "lien claimant having a lien older than the 
 homestead right, may enforce his lien without any reference 
 to such homestead right, and in such case the homestead 
 tenant will not be permitted to select land which he regards 
 as his homestead, in such a manner as to interfere with the 
 enforcement of the lien. And such liens are assignable."' 
 ' So in "Wisconsin it was held that the statute which pro- 
 vides' "that the owner of a homestead may remove there- 
 fi'om, or sell and convey the same, and such removal or sale 
 and conveyance shall not render such homestead subject to 
 forced sale on execution or other final process hereafter issued 
 on any judgment" does not apply to executions issued on 
 judgments which had become liens prior to the passage of the 
 law.^ In the case of Hoyt v. Howe^ the Court held that the 
 judgment of a Court of Record being a lien upon all the 
 
 1 Cogel V. Micko-w, 11 Minn. 477. 
 
 2 Olson V. Nelson, 3 Minn. 58. 
 
 8 Tuttle V. Howe, 14 Minn. 151. 
 
 i General Laws 1858, Chap. 137, E. S. 798. 
 
 5 Seamans v. Carter, 15 "Wis. 548; Dopp v. Albee, 17 Wis. 590; Cusiou. Doug- 
 las, a Kansas 123 ; Baltimore A. C. u. Sohell, 17 Wis. 308. 
 
 6 Hoyt V. Howe, 3 Wis. 660 [752] ; Folsom u. Carli, 5 Minn. 333 ; Tillotson 
 V. MiUard, 7 Minn. 513. 
 
71 CONSTITUTIONALITY OF EXEMPTION LAWS. § 36 
 
 real estate of the judgment debtor, " the homestead of the 
 debtor, as coBstituting a part of his real estate, is subject to 
 such lien, but that the homestead premises are exempted from 
 forced sale as long as they remain the actual homestead of the 
 judgment debtor. But that when the homestead ceases to be, 
 occupied as such, by his voluntary act, as by alienation, or 
 otherwise, the lien of judgment then comes into effect and 
 may be enforced. " 
 
 In the State of Kansas, it was held in the case of Cusic v. 
 Douglas,^ that the first section of the schedule to the consti- 
 tution of that State does not exempt a judgment rendered 
 prior to the adoption of the constitution from the operation 
 of the homestead exemption clause. It was argued on be- 
 half of the judgment creditor, that the exemption clause in 
 the State constitution was in contravention of the Constitu- 
 tion of the Upited States as impairing the obligation of con- 
 tracts. But the Court held — on the authority of Bronson v. 
 Kinzie ^ — that the argument was not well founded. Holding 
 that there Was a clear recognition by the Supreme Court of 
 the United States in the foregoing' case, of the power of the 
 State to take away from the creditor his right to subject a 
 portion of the debtor's property to the satisfaction of his debt. 
 But the doctrine was not predicated upon any admission of 
 the power of the Legislature to impair the obligation of the 
 contract, but proceeded rather upon the theory that such legis- 
 lation applies to the remedy, and that the power to change 
 it extends to such modifications as sound policy and the well- 
 being of the community shall dictate. 
 
 § 36. " State Legislatures have the unquestionable 
 right to pass laws which operate to control and modify the 
 express or implied provisions of contracts. It is only when 
 they impair the obligation of the contract that the validity 
 of their acts may be called in question. " " The ti'ue question is 
 whether the obligation of the contract is impaired either by 
 the law operating upon it directly, or by its operations upon 
 the remedy in such a manner as to essentially impair and 
 
 1 3 Kansas 123. 2 l Howard 311. 
 
§§ 37-38 COXSTITUTIONALITY OF EXEMPTION LAWS. 72 
 
 take away the right, of the party to enforce the obligation. 
 It is not enough that the remedy is changed and rendered 
 less speedy and convenient. If there is still a substantial 
 remedy left to enable the party to enforce his rights, that is 
 enough."^ 
 
 § 37. But as to the eontraot itself, the binding force 
 and coercive power of the law applicable to the contract, as 
 the same existed at the time it was made, constitutes the op- 
 ligation of the contract. Any subsequent act of the Legis- 
 lature, therefore, remedial or othei-wise, which alters or 
 changes the then existing law which created and defined that 
 legal obligation to such an extent as to make its legal force 
 and power less binding upon the defendant to perform it, ob- 
 structing its enforcement or imposing conditions for its per- 
 formance not prescribed by the law which created and de- 
 fined that legal obligation at the time the contract was made, 
 necessarily impairs it, and is prohibited by the Constitution.^ 
 A law made after the existence of a contract which alters the 
 terms of it, by rendering it less beneficial to the creditor, or 
 by defeating any of the terms upon which the parties had 
 agreed, impairs its obligation, within the meaning of the Con- 
 stitution of the United States.' 
 
 i 38. Rights of property depend on a legal and judicial 
 construction of the statute existing when they vest, not on a 
 legislative construction by a subsequent declaratory act.* 
 The Legislature have the power to take away by statute 
 what was given by statute, but not so as to disturb vested 
 rights already vested under the former law.' So, in Califor- 
 
 1 James v. StuU, 9 Barb. 485. 
 
 2 Ayoocku. Martin, 37 Ga. 124. 
 
 BBlanoliard v. Eussell, 13 Mass. 1, 16; King v. DedhamBauk, 15 Mass. 447, 
 sustaining the same principle ; Baboook v. Middleton, 20 Cal. 644 ; Tuolumne 
 Co. V. Sedgwick, 15 Oal. 515 ; McOauley v. Brooks, 16 Cal. 11 ; Montgomery 
 V. Kasson, 16 Cal. 189 ; Grogau v. San f rancisco, 18 Cal. 590 ; Conant v. Van 
 Schaiok, 24 Barb. (N. T.) 87 ; Majsville Turnpike Co. v. Ho-w, 14 B. Mon. 
 (Ky.) 342 ; Damman v. Com. of School Lands, 4 Wis. 414. 
 
 4 Hunt V. Hunt, 37 Maine (2 Heath) 339. 
 
 6 Oriental Bank v. Freeze, 6 Shep. 18 Maine 109 ; Woodruff v. The State, 3 
 Arkansas 285 ; Bishop's Fund v. Rider, 13 Conn. 87 ; Readu. Frankfort Bank, 10 
 Shep; 23 Me. 818. 
 
73 CONSTITUTIONALITY OF EXEMPTION LAWS. § 39 
 
 nia it was said that an act denying the right of sale for the 
 enforcement of the contract, " would probably be such a 
 vital assault upon the obligation as to practically destroy it, 
 and therefore would be unconstitutional." " But a repeal of 
 a right of redenaption — in other words, an act making a sale 
 absolute instead of conditional — would not impair the con-, 
 tract."' The same Court held in the case of the People v. 
 Woods,^ that the Act of 1851 to fund the indebtedness of 
 San Francisco amounted to a new contract with creditors, 
 and that the act could not be materially altered to their dis- 
 advantage ; that therefore the Consolidation Act of 1856, § 
 95, was unconstitutional. The lawful repe^ of a statute can- 
 not be constitutionally made to destroy contracts which have 
 been entered into under it, but being legal when made, they 
 remain valid notwithstanding the repeal.^ 
 
 § 39. A contract, when complete, no new conditions 
 can be incorporated. — The lien of a bondholder who has 
 loaned money to a State, on the pledge of certain property 
 by its legislature, cannot be divested or postponed by a 
 subsequent act of such legislature. Such bondholder is pro- 
 tected by the clause of the Constitution of the United States, 
 which forbids a State to pass a law impairing the obligation 
 of contracts.^ In the case of Eobinson v. Magee,^ the Su- 
 preme Court of California held, that an act of the Legislature 
 passed in 1855, declaring the pre-existing claims of creditors 
 forever barred if they failed to present the same for registry 
 by a certain time, impaired the obligation of the contract, 
 
 1 Tudumne Kedemption Co. v. Sedgwick, 15 Cal. 515. 
 
 2 Tailant v. Woods, 7 Cal. 579 ; Catlin v. Hunger, 1 Texas 598 ; Sutherland v. 
 Deleon, 1 Texas 250. 
 
 3 15 Cal. 515 ; MoCauley i;. Brooks, 16 Cal. 11 ; Southard v. Central R. E. Co., 
 2 Dutch. N. J. 13; People v. Auditor-Gteneral, 9 Mich. 327 ; Montgomery «. Kas- 
 son, 16 Cal. 189 ; Adams v. Palmer, 51 Maine 480 ; Commonwealth v. New 
 Bedford Bridge, 2 Grey 339 ; State v. Phalan, 3 Harrington 441 ; State v. Haw- 
 thorn, 9 Mo. 389. 
 
 4 Wabash Co. v. Beers, 2 Black (U. S.) 448. 
 
 6 Kobinson v. Magee, 9 Cal. 81 ; Winter v. Jones, 10 Ga. 190. To the same 
 effect as to principle : State v. Crittenden County Court, 19 Ark. 360 ; Thome 
 V. San Francisco, 4 Cal. 127 ; Winter v. Jones, 10 Ga. 190 ; Mundy v. Monroe, 1 
 'Mich. 68. 
 
§§ 40-41. CONSTITUTIONALITY OF EXEMPTION LAWS. 74 
 
 and was therefore void. "After the contract is once com- 
 plete it impairs its ohUgations to impose new conditions, and 
 this the constitution prohibits." * * "Any provision of 
 the statute substantially defeating the end contemplated by 
 the parties to the contract must impair its obligation. This 
 obligation must depend upon the law as it was when the con- 
 tract was made ; the legislature cannot, therefore, by a sub- 
 sequent act impair its obligations, by requiring the perform- 
 ance of other conditions not required by the law of the con- 
 tract." 
 
 § 40. Change of constitution, no effect on prior con- 
 tract. — I^or can a State, by a change of constitution, be 
 released from a contract made under a former constitution 
 which authorized it to be made. * 
 
 "Where the new constitution of Ohio contained a clause to 
 the effect, that "the Greneral' Assembly shall never authorize 
 any county, town, or township, by vote of its citizens, or 
 otherwise, to become a stockholder in any joint stock com- 
 pany, corporation, or association," it was held, in the case of 
 Cass V. Dillon,^ that a law enacted before the adoption of 
 the new constitution authorizing such subscription was not 
 repealed by implication, as the new clause referred to future 
 laws. ^ 
 
 § 41. The contract designed to be protected by Con- 
 stitution of the United States. — The Supreme Court of the 
 United States has said, in the case of Butler et als v. Pennsyl- 
 vania,* " that the contracts designed to be protected by the 
 tenth section of the first article of the Federal Constitution 
 were "contracts by which perfect rights — certain, definite, 
 fixed, private rights of property — are vested," as distin- 
 guished from rights growing out of measures or engage- 
 ments adopted or undertaken by the body politic, or. State 
 
 1 Dodge V. Woolsey, 18 Howard (XT. S.) 331 ; Meolianios and Traders Bank v. 
 Debolt, Id. 380 ; Mechanics and Traders Bank v. Thomas, Id. 384. 
 
 2 Cass V. Dillon, Kamsey J. dissenting, 2 Ohio St. 607. 
 
 3 Sedgwick on Stat, and Con. Law 490. 
 
 4 10 Howard 416. 
 
75 CONSTITUTIONALITY OF EXEMPTION LAWS. § 42 
 
 government, for the benefit of all, and which, from the neces- 
 sity of the case, and according to universal understanding, 
 are. to be varied or discontinued as the public good shall 
 require.^ "And the terms of the clause include as well 
 executory as executed contracts."^ 
 
 In the case of Howard v. Bugbee,^ the Supreme Court held 
 that a statute of the State of Alabama, authorizing a redemp- 
 tion of mortgaged property by bona fide creditors of the 
 mortgagor, in two years after the sale under a decree, was 
 unconstitutional and void as to sales made under mortgages 
 executed prior to the date of its enactment, as impairing the 
 obligation of the contract. 
 
 So an act of the legislature of ISTew Jersey, declaring that 
 certain lands which should be purchased for the Indians should 
 not hereafter be subject to any tax, constituted a contract 
 which could not be rescinded by a subsequent legislative act. 
 Such repealing act being void under the clause of the Consti- 
 tution of the United States, which.prohibits a State from pass- 
 ing any law impairing the obligation of contracts. * 
 
 i 42. With regard to past transactions, the legislature 
 cannot substitute a nugatory remedy for a good one, but they 
 can substitute another good one — parties have a vested right • 
 to some remedy substantially as good as the old one, but not 
 to that particular one.^ A legislature has no right " so to'regu- 
 late the remedy as that it shall destroy a contract by destroy- 
 ing all means of enforcement. A contract is just as much im-. 
 paired by a prohibition to sue upon it as by direct legislative 
 action, declaring it void."^ If a law defeat the end or object 
 contemplated by the contract,- the operative force of the obli- 
 
 1 Sedgwick on Stat, and Con. Law 618, 
 
 2 Fletcher v. Peck, 6 Cranch 133, 137. Cooley's Con, liim. 3d Ed. 273, 274. 
 
 3 24 Howard (U.S.) 461; Mundy v. Monroe, 1 Mich. (Mann) 68; same 
 principle in case : Planters Barik v. Sharp, 6 Howard (U. S. ) 301. 
 
 4 New Jersey v. Wilson, 7 Cranch 164, principles announced in the case sus- 
 tained in Hardy v. Waltham, 7 Pick. 110; At water u. Woodbridge, 6 Conn. 
 223 ; Osborne v. Humphrey, 7 Conn. 335. 
 
 5 Thornton v. Hooper, 14 Cal. 9 ; I/ockettt). Usry, 28 Ga. 345. 
 
 6 Scarborough v. Dugan, 10 Cal; 305 ; Johnson v. Bond, 1 Hemp. 533 ; Coff- 
 man v. Bank of Kentucky, 40 Miss. 29 ; Hill v. Boyland, 40 Miss. 618. 
 
§ 43 CONSTITUTIONALITY OF EXEMPTION LAWS. 76 
 
 gation of the contract is impaired.^ Whenever "the legis- 
 lature so far alters the remedy as to impede, destroy, change, 
 or render the I'ight scarcely worth pursuing, they necessarily 
 impair the obligation of the contract upon which such right 
 was founded, and the act is unconstitutional."^ 
 
 § 43. Rights under decree of sale. — Statutes providing 
 that lands shall not be sold on execution, unless they have 
 been first valued and one-half or two-thirds of the appraised 
 value bid for them, do not apply to a sale or an execution on 
 a decree of foreclosure of a mortgage made before the pass- 
 age of the statute, and so far as such laws affect pre-existing 
 contracts, they are unconstitutional and void.' 
 
 Where " a contract provides for the payment of money by 
 one party to another, and, by the law then in force, property 
 would be liable to be seized and sold on execution to the 
 highest bidder, to satisfy any judgment on such contract, a 
 subsequent law forbidding property from being sold on exe- 
 cution for less than two-thirds the value under the appraisal 
 pursuant to the directions contained in the law, though pro- 
 fessing to act on the" remedy, amounts to a denial or obstruc- 
 tion of the rights accruing by the contract, and is directly 
 obnoxious to the protection of the constitution."* 
 
 So acts of the legislature, inhibiting actions of ejectment 
 by mortgages before foreclosure, were held to be unconstitu- 
 tional and void as to mortgages previously executed, because 
 
 1 Goenen v. Schroeder, 8 Minn. 387 ; De Cordova v. Galveston, 4 Texas 470 ; 
 Tucker v. Burns, 2 Swan. (Tenn.) 35 ; Oatman v. Bond,' 15 "Wis. 20 ; Soutter v. 
 Madison, Id. 30 ; Parish v. Eager, Id. 532 ; Robinson v. McGee, 9 Gal. 81 ; 
 Smitli V. Morse, 2 Gal. 524; Curran v. Arkansas, 15 Howard (U. S.) 304. 
 
 2 Smith V. Morse, 2 Gal. 524 ; De Gordova v. Galveston, 4 Texas 470 ; Tucker 
 V. Burns, 2 Swan (Tenn) 35 ; Curran v. Arkansas, 15 Howard (U. S.) 304 ; Oat- 
 man u. Bond, 15 Wis. 20^ Id. p. 30, Id. p. 532. 
 
 3 MoCracken v. Hayward, 2 Howard 608 ; Gantley's Lessee v. Ewing, 3 
 Howard (U. S.) 707 ; Falconer v. Campbell, 2 McLean 195 ; Rawley v. Hooker, 
 21 Ind. 144 ; Willard v. Longstreet, 2 Douglas (Miuh.) 172 ; Cargill v. Power, 
 
 ' 1 Mich. 369 ; Grimes v. Byrne, 2 Minn. 97 ; Heyward v. Judd, 4 Minn: 483, 
 Id. 298 ; Atkinson v. Duffy, 16 Minn. 45. 
 
 4 Cooly, Con. Lim. 3d Ed. 289, 290, ; MoCracken u. Hayward, 2 Howard 608 ; 
 WUlard V. Longstreet, 2 Douglas (Mich.) 172 ; Rawley v. Hooker, 21 Ind. 144 ; 
 Gantley's Lessee v. Ewing, 3 How. 707 ; Bronson v. Kinzie,, 1 How. 311. 
 
77 CONSTITUTIONALITY OF EXEMPTION LAWS. § 44-45 
 
 they did not affect the remedy merely, but took away the 
 right of rents and profits, which was a part of the security. ' 
 
 § /44. Statutes of limitations aff"ect the remedy, not the 
 contract, therefore are held to be constitutional, provided 
 no vested rights are disturbed.^ And such statutes may be 
 enacted, or modified by the legislature even in respect to 
 previously existing debts, without infringing the constitu- 
 tional provision relative to contracts.' But if statutes of lim- 
 itations do not allow a reasonable time after the passing 
 thereof, for the commencement of suits on existing causes of 
 action, they are unconstitutional.* 
 
 § 45. Retrospective la-ws which do not impair the obli- 
 gation of contracts, or partake of the character of ex post 
 facto laws, are not forbidden by any part of the Constitution 
 of the United States.^ State legislatures may pass retro- 
 spective laws,. which overstep the line of legislative power 
 granted by their own constitutions. " Acts of these classes, 
 however objectionable, are not within the scope of the re- 
 strictions of the Federal Constitution, and give no right of 
 appeal from the decisions of the State " to the Federal tri- 
 bunals.* It is only when such laws impair the obligation of 
 the contract that the restraining power of the Federal Con- 
 stitution is brought into requisition, or when a right is claimed 
 
 1 Mundy v. Munroe, 1 Mich. 68 ; Black-wood v. Van Vleet, 11 Mich. 252 ; 
 Cooley Gout. Limitations 290 ; Stevens v. Brown, Walk Ch. (Mich.) 41. 
 
 2 Cox V. Berry, 13 Ga. 306 ; Garrett v. Beaumont, 24 Miss. 377 ; Billings v. 
 HaU, 7 Cal. 1. 
 
 S Griffin v. McKenzie, 7 G*. 163 ; "Walker v. Bank of Miss., 2 Eng. 7 Arkan- 
 sas 484, 500; Hawkins ii. Campbell, 1 Eng. (6 Ark.) 513; Couch u. MoKee, 1 
 Eng. 6 Ark. 484 ; Waltermire v. Westover, 14 N. Y. 16 ; Morse v. Goold, 11 
 N. Y. 281. 
 
 4 Call V. Hagger, 8 Mass. 429, 430 ; Proprietors of the Kennebeok purchase v. 
 Laboree, 2 Greenl. (Maine) 294; Society v. Wheeler, 2 GaU (U. S.) 141; 
 4 Wheat»n 207 ; 3 Pet. 290 ; 1 Blaokf. 36. 
 
 5 Satterlee v. Mathewson, 2 Peters 386 ; Sedgwick Stat, and Con. 192 ; Sedg- 
 wick Stat, and Con. 639. 
 
 6 Calder v. Bull, 3 Dall. 386 ; Satterlee v. Mathewson, 2 Peters 413 ; Charles 
 River Bridge Case, 11 Peters 538 ; Cochran v. Van Surlay, 20 Wend. 379, see Sena- 
 tor Ver Plank's remarks ; Watson v. Mercer, 8 Peters 110 ; Bait. & S. B. K. v. 
 Nesbit, 10 Howard 401 ; East Hartford v. Hartford B. Co., Id. 539. 
 
§ 46 CONSTITUTIONALITY OF EXEMPTION LAWS. 78 
 
 under the Constitution or laws of the United States, relief 
 may be sought by writ of error from the Supijeme Court of the 
 United States, when the decision of the State Court is against 
 such right. ^ 
 
 i 46. Statutes not retrospective in operation unless 
 clearly so intended. — A.statute will not be permitted to have 
 a retrospective operation unless its terms clearly indicate that 
 such operation was intended by the legislature.^ The Consti- 
 tution will not permit a right of entry, once vested, to be 
 divested by a subsequent retrospective act of the legislatui-e.' 
 So in Ohio it was held that an act operating retrospectively 
 to cure a conveyance made by a married woman, but not ex- 
 ecuted in the manner required by the statute, was void.^ 
 
 In New York, the act of the legislature, passed April 7th, 
 1848, for the more effectual protection of the property of mar- 
 ried women, so far as it was intended to affect existing rights 
 of property in maiTied persons, whose marriage was prior to 
 the passage of the act, was held to be unconstitutional and 
 void.^ 
 
 The above statute provides that " the- real and personal 
 property, and the rents and issues, and profits thereof, of any 
 female now married, shall not be subject to the disposal of her 
 husband, but shall be her sole and separate property, as if she 
 were a single female, except so far as the same may be liable 
 for the debts of the husband heretofore contracted." It was 
 held in the ease of White v. White,^ that this statute was not 
 within the clause of the Constitution of the United States 
 which prohibits the States from passing any law impairing the 
 obligation of contracts, but that so far as the statute relates 
 
 1 Galpin v. Oritchlaw, Sup. Court, Mass., M'arch, 1874 ; Kanouse v. Martin,, 
 14 Howard 23 ; Kanouse v. Martin, 15 Howard 198. 
 
 2 Jarvis v. Jarvis, 3 Bdwd. Ch. 490, 465 ; Briggs v. Hubbard, 19 Vt. (4 
 Wash..) 86 ; Head v. Ward, 1 J. J. Marsh 378, 281 ; Plumb v. Sawyer, 21 Conn. 
 351 ; Thome v . San Eranoisoo, 4 Cal. 127 ; Von Schmidt v. Huntington, 1 
 Gal. 55. 
 
 3 Southard v. Central R. R. Co., 2 Dutch. (N. J.) 13. 
 i Good V. Zeroher, 12 Ohio 364. 
 
 5 Holmes v. Holmes, 4 Barb. 295. 
 
 6 White V. White, 5 Barb 474. See the case of Lawrence v. Miller, 1 Sandf. 
 516. 
 
79 CONSTITUTIONALITY OF EXEMPTION LAWS. § 47 
 
 to existing rights of~property, in married persons was uncon- 
 stitutional and void under the constitution of the State. So 
 in Pennsylvania, the Act of 1848, supplementary to an Act of 
 1833, relating to last wills and testaments, was held to be un- 
 constitutional and void, so far as it purported to be retroactive 
 in its effect.! In Iowa, the Act of 1860, providing for the , 
 redemption of real estate sold on foreclosure, so far as it af- 
 fected contracts made before its enactment, was held invalid.^ 
 The question of the validity of retroactive laws came before 
 the Supreme Court of Jforth Carolina, in the cases of Hill v. 
 Kessler, ' and Garrett v. Chesire,'* in which cases the Court held 
 that such laws were constitutional as to pre-existing liabilities, 
 but conceded that if such exemption laws, retroactive in effect, 
 impaired the obligation of a contract, " either expressly or by 
 implication, they were against the Constitution of the United 
 States, and would therefore be void. ' ' In the case of Charless 
 V. Lamberson,' the Supreme Court of Iowa decided that where 
 the defendant in 1848 purchased the premises in controversy ; 
 in the spring of 1851 commenced building thereon, and on the 
 9th of July following, moved into the building, and con- 
 tinued to reside therein ; and when on the 3d of Febuary, 
 1852, the plaintiff recovered judgment against the de- 
 fendant on a conti'act made in April, 1851, issued execution 
 under which he purchased the property, and obtained the 
 sheriff''s deed in 1853. Held, 1st, That the defendant not 
 having occupied the premises while the Act of 1849, in re- 
 lation to homesteads, was in force, the said premises were 
 not exempt from forced sale, as a homestead under the act.^ 
 2d, That the contract on which the judgment was rendered, 
 having been made prior to the code taking effect, the prem- 
 ises were not exempt, as a homestead, under the code. 
 
 § 47. Retrospective la^vs of Georgia. — A rule adverse 
 to the principles laid down in the forgoing cases has obtained 
 
 1 Greenough v. Greenougli, 11 Penn. St. 489. 
 
 2 Molony v. Fortune, 14 Iowa 417. 
 
 3 63 N. C. 437. See MoKeithan v. Terry, 64 N, C. 25, and Sluder v. Kogerp, 
 Id. 289. 
 
 4 69N. 0.396. 
 
 5 1 Iowa 442. 
 
 6 Occupation of premises was a pre-rec[uisite of the statute before declaration. 
 
I 47 CONSTITUTIONALITY OF EXEMPTION LAWS. 80 
 
 in the State of Georgia. The Supreme Court of that State 
 had uoiformly held that a homestead is not subject to the pay- 
 ment of a judgment obtained prior to the passage of the home- 
 stead law, which does not fall within one of the exceptions ^ 
 mentioned in the Act of 1868.^ But upon appeal from such de- 
 cisions to the United States Supreme Court, the latter Court 
 has in each case reversed such decisions ; holding that such 
 retroactive laws do impair the obligation of a contract, and 
 are within the inhibitory clause of the Constitution of the 
 United States.' In the case of Hardeman v. Downer,^ the 
 Georgia Court said that when homestead and exemption laws 
 were made in good faith to secure the family of insolvent 
 debtors a reasonable means of subsistence from the debtor's 
 property, they do not, "even though retroactive, fall within 
 the prohibition of Sec. 10 of Art. 1 of the Constitution of the 
 United States, declaring that no State shall pass any law im- 
 pairing the obligation of a contract." " The homestead pro- 
 vision of the constitution of 1868 is retroactive, and applies to 
 judgments,^ executions, and decrees, founded on debts con- 
 tracted before its adoption, even though reduced to judgment 
 before that time, and is without exception, save as therein 
 provided. The Constitution of the United States does not 
 prohibit a State from divesting a vested right, except when 
 that right is vested by virtue of and under a contract of the 
 parties. A creditor under an ordinary contract acquires no 
 vested right in the property of his debtor, and it is within the 
 powers of a State to declare which of the claimants against an 
 insolvent debtor— a stranger or his wife and family, who by 
 law have a legal right to a support from him — shall have the 
 preference. 
 
 1 The exoeptiona are taxes, money loaned or expended in improvements of 
 the homestead or purchase money, labor or materials furnished, or removal of 
 incumbrances, 
 
 2 Pulliam et als. v. Sewall et als., 40 Ga. 73. 
 
 3 Gunn V. Barry, 15 "Wallace 610 ; Walker v. Whitehead. 16 Wallace 314 ; 
 Oloott V. Supervisors,- 16 Wallace 678. 
 
 4 Hardeman v. Downer, 39 Ga. 425. 
 
 6 Judgments in the State of Georgia are declared to be liens on all the real 
 property of the debtor. In North Carolina judgments were not liens on real 
 property till m^-de so by the recent adoption of the code. . 
 
81 CONSTITUTIONALITY OF EXEMPTION LAWS. § 48 
 
 In the case of Chambliss v. Phelps ' the Court said : " A 
 mortgage given by the debtor is hot one of the exceptions 
 provided by the Constitution to which the homestead for his 
 family is liable." "An execution which was issued from a 
 judgment to foreclose a mortgage before the adoption of the 
 Constitution of 1868 cannot be enforced against the home- 
 stead.. A homestead is subject to an execution founded upon 
 debt contracted for the purchase money, and the fact that the 
 debt was transferred to a third party, does not change that 
 liability; audit is subject to the payment of the purchase 
 money, whether contracted before or since the Constitution." 
 In the case of Gunn v. Barry,^ the constitutionality of retro- 
 active exemption and homestead laws came again before the 
 Supreme Com't of Georgia, under the following state of facts: 
 In 1866, Gunn obtained a judgment against one Hart and_/?. fa. 
 issued thereon. Under the Homestead Act of October 3d, 
 1868, Hart had certain lands set apart as his homestead. 
 Subsequently Gunn tried to get the sheriff, Barry, to levy 
 his Ji. fa. on said land, but he would not, on the ground that 
 the land had been so set apart. Gunu reciting these facts 
 asked for a mandamus to compel such levy, upon the ground, 
 that, as to this prior indebtedness, said homestead act was not 
 operative under the Constitution of the United States. The 
 Court held that it was, and refused to grant the mandamus. 
 Oh appeal to the Supreme Court of the State, the judgment 
 of the lower Court was affirmed, the Court holding that the 
 Homestead Act was valid and constitutional as against judg- 
 ments obtained prior to its date. Upon a writ of error this 
 case was brought before the Supreme Court of the United 
 States.^ 
 
 § 48. The lien of a judgment is a vested right, and 
 cannot be disturbed by a constitutional provision, even 
 though such constitution be ratified by Congress. The Con- 
 stitution of the United States is above and beyond the inter- 
 ference of Congress. 
 
 1 39 Ga. 386. 
 
 2 44 aa. 351. 
 
 3 Grimn V. Barry, 15 Wallace 610. 
 
 Homestead — 6. 
 
§ 48 CONSTITUTIONALITY OF EXEMPTION LAWS. 82 
 
 When the judgmeut was obtained by Gunn against Hart 
 in May, 1866, the exemption law of the State of Georgia, then 
 in existence, exempted ft-om forced sale property belonging 
 to the head of a family of 50 acres of land, the land to in- 
 clude the dweUing-house, if the same and improvements did 
 not exceed $200 ; also farming utensils, horse, cow, etc., and 
 necessary household furniture. At the time the judgment 
 was obtained. Hart had 272i acres of land, worth f 1,300, and 
 the judgment bound it as a lieu. He had no other land or 
 property, except one piece worth about $100. In 1868, Geor- 
 gia adopted its constitution, in which it is provided that 
 " each head of a family, or guardian, or trustee of a family 
 of minor children, shall be entitled to a homestead of realty 
 to the value of $2,000 in specie, and personal property to the 
 value of $1,000 also in specie, to be valued at the time they 
 are set apart." " And no Court or ministerial oificer in this 
 State shall ever have jurisdiction or authority to enforce any 
 judgment decree or execution against said property so set 
 apart. ' ' The constitution having been thus adopted in form 
 by the people of Georgia, Congress, by an Act of June 25th, 
 1868,* admitted the State of Georgia to representation in Con- 
 gress. The constitution of Georgia being thus approved by 
 •Congress, and operative, the Legislature of that State, on the 
 3d of October, 1868, passed an Act to provide for setting 
 apart a homestead of realty and personalty, and for the valu- 
 ation of the same as required by Sec. 1 of Art. 7 of their con- 
 stitution. Under the Act all the land of Hart, the defendant, 
 which in all was worth about $1,400, was set apart to him 
 and his family as a homestead. The question of the consti- 
 tutionality of said laws as against Gunn, who had obtained 
 his judgment before the adoption of the constitution, and be- 
 fore the passage of the new exemption law, thus came before 
 the Supreme Court of the United States. The Court, after 
 comparing the exemption laws of Georgia in force at the 
 time the judgment was ente'red in the case and the exemp- 
 tion laws passed subsequently, says :^ "]S"o one can cast his 
 eyes over the former and later exemptions, without being 
 
 1 15 Stat, at Large, 73 2 15 Wallaoe, p. 622. 
 
83 CONSTITUTIONALITY OF EXEMPTION LAWS. § 48 
 
 struck by the greatly increased magnitude of the latter," and 
 after quoting Bed. 10 of Ai-t. 1 of the Federal Constitution, 
 continues : " If the remedy is a part of the obligation of the 
 contract, a clearer case of impairment can hardly occur than 
 is presented in the record before us. The effect of the Act 
 in question, under the circumstances of this judgment, does 
 not indeed merely impair, it annihilates the remedy. There 
 is none left.i" 
 
 "But the act reaches still further. It withdraws the land 
 from the lien of the judgment, and thus destroys a vested 
 right of property which the creditor had acquired in the pur- 
 suit of the remedy to which he was entitled by law as it stood 
 when the judgment was recovered. It is in effect taking one 
 person's property and giving it to another without compensa- 
 tion. " " This is contrary to the social compact. " ^ " Though 
 her constitution was sanctioned by Congress^ this provision 
 can in no sense be considered an act of that body. The 
 sanction was only permissive as a part of the process of her 
 rehabilitation, and involved nothing aflB.rmative or negative 
 beyond that event." " Congress cannot, by authorization or 
 ratification, give the slightest effect to a State law or consti- 
 tution in conflict with the Constitution of the United States. 
 That instrument is above and beyond the power of Congress 
 and the States, and is alike obligatory upon both." 
 
 " A State can no more impair an existing contract by a 
 constitutional provision than by a legislative act ; both are 
 within the prohibition of the National Constitution." 
 
 "The legal remedies for the enforcement of a contract 
 which belong to it at the time and place where it is made, 
 are part of its obligation. A State may change them, pro- 
 vided the change involves no impairment of a substantial 
 right. If the provision of the constitution or the legislative 
 
 • 
 
 1 Calder v. Bull, see 3 Dallas 388. 
 
 2 It -was argued, with some persistency on the part of the defendant in error, 
 that as the constitution of Georgia was sanctioned by Congress, that in fact it 
 was made through the power and agency of Congress, under its law, and under 
 its eye ; that it was more the work of Congress than of the State ; if it was not 
 an Act of Congress, it had all the validity of such an Apt. That Congress 
 could pass laws impairing the obligation of contracts. Citing Evans v. Eaton, 
 Peters 0. 0. 322. 
 
§ 49 CONSTITUTIONALITY OF EXEMPTION LAWS. 84 
 
 act of a State, fall within the category last mentioned, they 
 are to that extent utterly void. They are, for all the purposes 
 of the contract which they impair, as if they had never ex- 
 isted. The constitutional provision and statute here in ques- 
 tion are clearly within that category, and are therefore 
 void." 
 
 "The jurisdictional prohibition (that officers shall not en- 
 force execution, etc.) which they (the constitution and 
 statutes) contain with respect to the Courts of the State, can, 
 therefore, form no impediment to the plaintiff in error in 
 the enforcement of his rights touching this judgment, as 
 those rights are recognized by this Court." ^ 
 
 "Judgment reversed, cause remanded to the Supreme 
 Court of Georgia, with directions to enter a reversal to re- 
 verse the judgment of the Superior Court of Randolph 
 County." 
 
 § 49. Validity and remedy both parts of the eon- 
 tract. — The constitutionality of the retrospective laws of 
 Georgia was again involved in the case of Walker v. White- 
 head,^ in which case it was held that the provisions of the Act 
 of October, 1870, were constitutional. The plaintiff brought 
 •suit in January, 1870, on a promissory note for §7,219.47, 
 given in March, 1864, payable in March, 1865. The Act of 
 1870 enacted that "in all suits pending on any contract 
 made before June 1st, 1865," it should not be "lawful for 
 the plaintiff to have a verdict" unless he made "it appear 
 that all taxes chargeable by law on the same had been duly 
 paid for each year since the making of the same," and further 
 enacted that it should be a condition precedent to such recov- 
 ery, that the said debt has been regularly given in for taxes, 
 and the taxes paid, and made other retrospective enactments. 
 Whipn the case was called on the calendar the defendant 
 moved the Court to dismiss it, '•' because the plaintiff had not 
 filed an affidavit of the payment of the taxes upon the note, as 
 required by the Act of the Legislature of Georgia, of the 13th 
 
 1 Citing White v. Hart, 13 Wallace 646 ; Von Hoffman v. City of Quinoy, 4 
 Wallace 535. 
 
 2 43 Ga. 530. 
 
85 CONSTITUTIONALITY OF EXEMPTION LAWS. § 49 
 
 of October, 1870. The plaintiff objected upon several 
 grounds. The Court overruled his objections and dismissed 
 the case. The plaintiff thereupon removed it to the Supreme 
 Court of the State. That Court affirmed the judgment of 
 the Court below. 
 
 Upon writ of error, the case was taken to the Supreme 
 Court of the United States.^ This latter Court said: "The 
 contract here in question is within the predicate of this act.^ 
 It was made more than six years before the act was passed. 
 The act was retrospective — denounced a penalty not before 
 prescribed for the non-payment of taxes — and, if such delin- 
 quency had existed for a single year, confiscated the debt by 
 making any remedy to enforce payment impossible. The 
 denunciation and the penalty came together. There was no 
 warning, and there could be no escape. The purpose of the 
 act was plainly not to collect back taxes — that was neither 
 asked nor permitted as a means of purgation — but to bar the 
 debt and discharge the debtor. 
 
 "The act is not an ex post facto law, only because that 
 phrase, in its legal sense, is confijied to crimes and their pun- 
 ishment." 
 
 ' ' The Constitution of the United States declares that no 
 State shall pass any ' law impairing the obligation of con,- 
 tracts.'" . , 
 
 1 Walker v. Whitehead, 16 Wallace 315. 
 
 2 The Act of the Legislature of Georgia of October 13th, 1870, was as follows : 
 Sbc. 1. That " all suits pending or hereafter brought in or befpie any Court of 
 the State, founded upon any debt or contract, or cause of action, made or im- 
 plied, before the 1st June, 1865, or upon any other debt or contract in renewal 
 thereof, it shall not be lawful for the plaintiff to have a verdict or judgment in 
 his favor, unless he has made it clearly to appear before the tribunal trying the 
 same, that all legal taxes, chargeable by law upon the same, have been 
 duly paid for each year since the making or implying of said debt or contract." 
 Sbc. 2. " In any suit now pending or hereafter brought, it shall be the duty of 
 the plaintiff, within six months after the passage of this Act, if the suit be pend- 
 ing, and at the filing of the writ, if the suit be hereafter brought, to file with the 
 Clerk of the Court of Justice, an affidavit, if the suit was founded on any debt 
 or contract as described in Sec. 1, that all legal charges, chargeable bylaw upon 
 such debt or contract, have been duly paid, or the income thereon, for each year 
 since the making of the same, and that he expects to prove the same upon the 
 trial, and, upon failure to file such affidavit as herein required, said suit shall, 
 on motion, be dismissed." , 
 
§ 50 CONSTITUTIONALITY OP EXEMPTION LAWS. 86 
 
 " These propositions may be considered consequent axioms 
 in our jurisprudence. " " IsTothing is more material to the obli- 
 gation of a contract than the means of its enforcement. The 
 ideas of validity and remedy are inseparable, and both are 
 parts of the obligation which is guaranteed by the Constitu- 
 tion against the impairment." " The obligation of a contract 
 'is the law which binds the parties to perform their agree- 
 ment. ' Any impairment of the obligation of a contract — the 
 degree of impairment is immaterial — is within the prohibition 
 of the Cojjstitution. 
 
 " The States may change the remedy, provided no substan- 
 tial right secured by the contract is impaired. Whenever such 
 a result is produced by the act in question, to that extent it is 
 void. The States are no more permitted to impair the effi- 
 cacy of a contract in this way than to attack its vitality in any 
 other manner. Against all assaults coming from that quarter, 
 whatever guise they may assume, the contract is shielded by 
 the Constitution. It must be left with the same force and ef- 
 fect, including the substantial means of enforcement which 
 existed when it was made. The guarantee of the Constitution 
 gives it protection to that extent." ^ 
 
 " The effect of these propositions upon the judgment before 
 us requires but a single remark. A clearer case of a law im- 
 pairing the obligation of a contract within the meaning of the 
 Constitution can hardly occur." 
 
 "The judgment of the Supreme Court of Georgia is re- 
 versed, and the cause will be remanded to that Court, with 
 directions to enter a judgment of reversal, and then to pro- 
 ' ceed."2 
 
 § 50 Ne-w rule — no homestead as against prior debt. — 
 
 The rule adopted in Georgia since the foregoing decision of 
 Gunn V. Barry seems to be, that in order to be entitled to a 
 homestead under the constitution of 1868, the clainiant must 
 be free from debt. A simple indebtedness, which accrued 
 
 1 Citing Von Hoffman v. City of Quiuoy, 4 Wallace 535. 
 
 2 See the very able review of the questions here involved reported in Am. L. 
 Eeg. April 1874 "Vol. 13 N. S. 236 from Supreme Court Maasissippi, in case of 
 Lasey v. Phipps; also the Homestead Cases, 22 Gratt. 266. 
 
'87'* CONSTITUTIONALITY OF EXEMPTION LAWS. § 50 
 
 before the adoption of the constitution, will subject the home- 
 stead to sale on execution issued on a judgment rendered for 
 such debt.^ 
 
 1 Jones V. Brandon, 48 Ga. 593 ; Chambliss v. Jordan, 50 Ga. 81. But see 
 Larenoe v. Evans, 50 Ga. 216 ; Gunn v. Thornton, 49 Ga. 380 ; Smith v. Whittle, 
 50 Ga. 626. 
 
§§ 51-62 CONSTRUCTION OF STATUTES. 88 
 
 CHAPTER III. 
 
 CONSTRUCTION OP STATUTES AND CONSTITUTIONAL PROVISIONS. 
 
 g 51. The great object •vo'ith reference to -which all the 
 rules and maxims that govern the interpretation of statutes, 
 constitutions, and other written instruments have been 
 framed, is to discern the true intent of their authors, to ascer- 
 tain the meaning, the force, and effect which the Legislature 
 which enacted such statute, or the convention which adopted 
 such constitution, intended it should have.^ 
 
 § 52. One of the cardinal rules of interpretation re- 
 ferred to is, that in the absence of ambiguity of expressio n 
 no exposition shall be made which is opposed to the express 
 words of the instrument. A writer on American law says : 
 "Where the meaning is satisfactorily perceived and under- 
 stood, there is no room for a liberal or strict or equitable or 
 large or narrow, or other construction than according to the 
 meaning."^ 
 
 But if the words are ambiguous, the following points must 
 be investigated : the occasion and necessity of the law, the 
 evil to be overcome, and the remedy had in view. Every stat- 
 ute must be construed with reference to the object contem- 
 plated in its provisions, so as to effectuate the intention of the 
 legislature, and the statute must have a reasonable construc- 
 tion in conformity with its general object.^ Mr. Justice 
 Blackstone says that " words are generally to be understood 
 in their usual and most known signification, not so much re- 
 garding the proprieties of grammar as their general and pop- 
 
 1 Kenedy v. Kenedy, 2 Ala. 572 ; Canal Co. v. Eailroad Co., 4 Gill and J. 
 (Maryland) 1, 152. 
 
 2 6 Dane's Digest, 600. 
 
 3 Wassell v. Tunnah, 25 Ark. 101. 
 
89 CONSTRUCTION OF STATUTES. §§ 53-754 
 
 ular use;" * * that "if words happen to be dubious, 
 their meaning may be established fi'om the context, or by 
 comparing them with other words and sente'nces in the same 
 instrument ; that illustrations may be further derived from 
 the subject-matter with reference to which the the expres- 
 sions are used; that the efiect and consequence of a particular 
 construction is to be examined, because if a liberal meaning 
 would involve a manifest absurdity, it ought not to be adopt- 
 ed ; and that the reason or spirit of the statute or the causes 
 that led to its enactment are often the best exponents of the 
 words, and limit their application.^ If the intention of the 
 law-making power can thus be clearly ascertained it should 
 be followed, and in no case more than in the interpretation of 
 the homestead statutes. 
 
 § 53. The -word " homestead" is used both in the con- 
 stitutions and in th.e statutes in its ordinary and popular 
 sense, or in other words, its legal sense is also its popular 
 
 § 54. As to the construction of statutes of exemption, 
 
 some disagreement exists among the authorities) whether 
 they should be construed strictly as being in derogation of 
 the common law, or liberally as being remedial in their ten- 
 dency. But the weight of opinion seems to incline to the 
 latter construction ; that they are remedial in theii" nature and 
 are to be liberally interpreted,^ and that they should be 
 construed with a view to secure the object intended. This 
 view is probably the b'est, and the one most likely to lead to 
 a reasonable and just result.* Says Bronson, J., in Walker v. 
 Harris : ° " The current of authority at the present day is in 
 
 1 1 B. C9m. 59 ; 1 Kent. Com. (2d) 460. 
 
 2 Gregg V. Bostwick, 33 Cal. 227 ; Estate of Delaney, 37 Cal. 179. 
 
 3 Hawthorne v. Smith, 3 Nev. 182 ; Noland v. Wickham, 9 Ala. 169 ; Wasaell 
 V. Tunnah, 25 Ark. 101 ; Robinson v. Wiley, 15 N. Y. 489 ; Kitohell v. Burg- 
 win, 21 111. 44 ; Montague v. Richardson, 24 Conn. 338 ; Voorhiesu. Bonneatel, 
 7 Blatoh. 500 ; Favers v. Glass, 22 Ala. 621 ; Richardson v. Buswell, 10 Met. 506 ; 
 Wade V. Jones, 20 Mo. 75 ; Derre v. Chapman, 25 111. 610 ; Hill v. Johnston, 29 
 Penn. St. 363 ; Charless v. Lamberson, 1 Iowa 441 ; True v. Morrill, 28 Vt. 674 ; 
 Pool V. Reid, 15 Ala. 826. 
 
 i Gibson v. Jenney, 15 Mass. 205. 
 B 20 "Wendell 562. 
 
§§ 55-56 CONSTRUCTION OF STATUTES. 90 
 
 favor of reading statutes according to the natural and most 
 obvious import of the language, without resorting to subtile 
 or forced construction for the purpose either of limiting or 
 extending their operation." 
 
 § 55. Homestead exemption is the creature of statute, 
 
 and in interpreting the homestead laws this must be borne in 
 mind, that any one claiming the privileges of the law must 
 comply with its requirements and conditions: hence whether 
 a man seeks to establish his right as plaintiff, or maintain it 
 as defendant, he must be careful in his pleadings and his 
 proof to bring his case within the provisions of the statute, or 
 at least within its equity.^ 
 
 While exemption laws should be liberally construed, and 
 " statutes granting exemptions should receive such construc- 
 tion as will carry out the the liberal and benevolent policy of 
 the legislature, yet parties must bring themselves within 
 their provisions, at least in spirit, before they can claim ex- 
 emption under them. "^ They "are purely the creations of 
 statute law, and the scope and extent of rights of parties 
 claiming benefit under them, must be determined by refer- 
 ence to the statutes."^ " The law exempting property from 
 execution, being remedial and resting on a wise policy, should 
 as far as practicable be construed beneficially for the 
 debtor."^ 
 
 § 56. The requirements of the statutes must be fol- 
 io-wed. — The statutes of California, (1862) Ohio, Iowa, Maine, 
 Michigan, Georgia, Texas, Alabama, Illinois, South Carolina, 
 and some others, require the homestead claimant to proceed 
 in a sp.ecial manner, and to take certain steps — such as selec- 
 
 1 Beeoher v. Baldy, 7 Mich. 502 ; Thorns v. Thorns, 45 Miss. 263 ; Helfen- 
 stein V. Cave, 3 Iowa 290 ; Walters v. People, 18 111. 194 ; Charlessu. Lamberson, 
 1 lo-wa 441 ; Kitohell v. Bourgwiu, 21 111. 44 ; Bevan v. Hayden, 13 Iowa 122 ; 
 True V. Morrill, 28 Vt. 674. 
 
 2 13 Iowa 122 ; Id. 1 Iowa (Coles Ed.) 435 ; see Himmelmann v. Schmidt, 23 
 Cal. 117. 
 
 3 45 Mias. 273. 
 
 i Alvord V. Lent, 23 Mich. 369 ; Eobinson's Case, 3 Abb. Pr. (O. S.) 467 ; 
 Eastman v. Caswell, 8 How. Pr. 75 ; Carpenter v. Herrington, 25 Wend. 370 ; 
 Cook V. McChristian, 4 Cal. 26 ; Id. 1 Iowa 512. 
 
91 CONSTRUCTION OF STATUTES. § 56 
 
 tion, declaration, and recording — to obtain the benefit of the 
 homestead exemption, and where these proceedings are' dis- 
 tinctly pointed out and required by the statute, they form 
 conditions precedent essential to the validity of the exemp- 
 tion,^ and in ease of a failure by the husband or wife, as the 
 case may be, to do what the statute requires, the family is 
 affected by the default.^ Under some statutes, however, no 
 mode is pointed out by which the "intention to dedicate the 
 property as a homestead shall be made known ; in such cases 
 the occupation of the premises by the family would " by the 
 common law," raise the presumption that the premises so 
 held by the family constituted the homestead," and every 
 one would be bound to take notice of the character of the 
 occupant's- claim. "' In California, under the Act of 1851, the 
 Court has frequently held that residence by the family was 
 presumptive evidence of the appropriation of the premises 
 as a homestead, and is notice of the homestead right to all 
 the world. The residence required was actual, not construct- 
 ive.^ 
 
 In the later statutes of Califonaia in 1860, 1861, 1862, and 
 1868, and in the Code, 1872, the mode of protecting home- 
 stead rights created under the Act of 1851, and of creating 
 like rights thereafter, and of protecting them when so ac- 
 quired, was so varied as to afford a more efficient protection 
 to the community as against the right, and the directory 
 clauses in these acts concerning the declaration and record- 
 ing of the homestead being formal and precise, a failure on 
 the part of the exemption claimant to comply with their re- 
 quirements will prevent the homestead right from accruing.^ 
 
 1 Manning v. Dove, 10 Bich S. C. (Law) 403 ; Prieraon v. Wesberiy, 11 Id. 
 355 ; Slonkers v. Beardsley, 9 Ohio St. 591 ; Helfenstein v. Cave, 3 Iowa 292 ; 
 People V. Plumated, 2 Mich. (Gibbs) 469 ; Frost v. Sha-w, 3 Ohio St. 272 ; 
 Wildes V. Vanvoorhis, 15 Grey 143 ; Lawton v. Bruce, 39 Maine 486 ; Pink- 
 erton v. Tumlin, 22 Geo. 165 ; Herschfeldt v. George, 6 Mich. 468 ; Beeoher v. 
 Baldy, 7 Id. 509 ; Line's Appeal, 2 Grant's Case 197. 
 
 2 Davenport v. Alston, 14 Geo. 271 ; Crow v. Whitworth, 20 Id. 38 ; Tad- 
 look V. Booles, 20 Texas 782 ; Brewer v. "Wall, 23 Id. 589 ; Getzler v. Saroni, 18 
 HI. 518 ; Simpson v. Simpson, 30 Ala. 225. 
 
 3 Cook V. MoChristian, 4 Gal. 23 ; Reynolds v. Pixley, 6 Cal. 165. 
 i Holdeni;. Pinney, 6 Cal. 234 ; Reynolds v. Pixley, 6 Id. 165. 
 
 6 Bartholomews. Hook, 23 Cal. 278; In re Reed, Id. 410. 
 
§§ 57-59 CONSTRUCTION OF STATUTES. 92 
 
 § 57. Construction of amendments to original stat- 
 utes — Where an original statute has passed through many 
 alterations by being remodeled and amended, the amend- 
 ments and alterations must be considered together, in rela- 
 tion to like matter, with the original act, " in order to as- 
 certain what rights and interests were brought into being by 
 the force of these acts of the Legislature acting upon condi- 
 tions precedent to their possible operation." '- 
 
 § 58. Liberal and strict construction of statutes. — The 
 
 principles of construction applied to the homestead statutes 
 by some few of the Courts, are of the strictest character as 
 to a statute in derogation of the common law,^ while other 
 Courts havevsought " even in terms of rhetoric fov adequate 
 forms of expressing the liberal extent to which the statute 
 should be carried."^ In a recent casein New Hampshire,* 
 Perley, Ch. J., declared the opinion of that Court to be that 
 the statute should have a liberal interpretation to accomplish 
 the object of the law, not a narrow construction tending to de- 
 feat the humane object of the statute. That object was de- 
 clared to be to leave for the upholding and support of the 
 debtor's family a pioperty where they lived, not exceeding 
 1500 in value, that should be protected from levy and attach- 
 ment for his debts. 
 
 § 59i The statute is treated as a remedial measure and 
 is construed liberally in Illinois.^ — The homestead exemp- 
 tion law of that State ° provides that in addition to the prop- 
 erty now exeifipt by law from sale under execution, there 
 shall be exempt the lot of ground and the building thereon 
 occupied as a' residence and owned by the debtor, being a 
 householder and having a family. 
 
 1 Moa-uade v. Whally, 29 Cal. 612 ; Kilgore v. Beck, 40 Geo. 293. 
 
 2 Olson V. Nelson, 3 Minn. 60, Emmet 0. J. dissenting ; Rue «.' Alter, 5 Denio 
 119 ; Allen V. Cook, 26 BaVb. 376. 
 
 3 Washb. E.. Prop. 326. See case of Vogler v. Montgomery, 54 Mo. 578 ; case 
 given in full in April No. 1874 Am. L. Register, 244 ; Gunnison v. Twitohel, 38 
 
 " N. H. 69. 
 
 4 Buxton V. Dearborn, 46 N. H. 44. 
 
 5 Deere v. Chapman, 25 111. 612. 
 
 6 Soates Comp. 576, Sec. 1. 
 
93 CONSTKUCTION OF STATUTES. §§ 60-61 
 
 " The statute must have a constructiou so liberal as to ad- 
 vance the object contemplated by the legislature and noth- 
 ing more, and we are to understand by its phraseology that 
 several things must concur before exemption can be allowed. 
 The lot of ground must have a building or buildings upon it, 
 this building or buildings must be occupied as a residence ; 
 it must be owned by the debtor, who must be a householder 
 and have a family. * * _^ cabin or tent, or some other 
 structure in which a residence might be taken" up, might sat- 
 isfy the requirements of the statute that a building should be 
 upon the land. Having a wife is having a family." ^ 
 
 § 60. Construction of statutes in Arkansas. — :In Ar- 
 kansas, the Court says : " In view of the enlightened public 
 policy which dictated the Homestead Act and its obvious in- 
 tent, the phraseology, one town or city lot, must be understood 
 as the lot or piece of ground on which the head of the family 
 has a house, with the appurtenances, which he uses as a home, 
 no matter whether it contains more or less than one lot accord- 
 ing to the plat and survey of the town or city. ' '^ So in Nevada a 
 liberal construction is given to the homestead and exemption 
 laws — the Supreme Court says that it was clearly the intention 
 of the coiastitution to protect a debtor's homestead from forced 
 sale, and that it was equally clear that the legislature intend- 
 ed to effectuate that intention. " This being the policy of the 
 law, creditors will not be allowed to defeat its object, unless 
 the statute clearly gives that right, or clearly points out the 
 contingency, upon the transpiring of which the debtor will 
 lose his exemption. "^ So that he who attempts to disturb the 
 homestead right, must show that that right is given him un- 
 der the statute. 
 
 § 61. In California the same liberal interpretation has been 
 given to the laws under consideration. The Supreme Court 
 saying that the filing of a declai-ation of homestead by the 
 wife alone, under the statute,, which says that it must " be 
 
 1 Kitohell V. Burgwin, 21 111. 40 ; Franklin u. Coffee, 18 Texas 413. 
 
 2 "Wassell V. Tuunah, 25 Ark. 101. 
 
 3 Hawthorne v. Smith, 3 Nev. 182. 
 
§ 62 CONSTRUCTION OP STATUTES. 94 
 
 signed by the party making the same, and acknowledged and 
 recorded as conveyances of real estate are required to be ac- 
 knowledged and recorded," need not be acknowledged in the 
 manner required by law in the case of the conveyance of the 
 separate property of a married woman, it was held sufficient 
 that the declaration be made, acknowledged, and recorded in 
 the ordinary mode. Th6 statute was construed to mean that 
 only in the case of the alienation of the homestead was the 
 wife required to make the acknowledgment in the form re- 
 quired in the case of the " conveyance of her separate real 
 property." The Court further said that the conclusion at 
 which it had arrived was " strengthened by the fact that the 
 legislature had expressly required a declaration of abandon- 
 ment to be acknowledged by the wife as she should acknowl- 
 edge a conveyance of her separate real property," that is, 
 "being made acquainted with the contents of the instru- 
 ment," " and being examined separate and apart from her hus- 
 band. "^ 
 
 But tho.ugh this liberal construction is given to exemption 
 laws, "the exemption from seizure will not be extended to 
 objects not expressly designated in the law."^ 
 
 § 62. Texas, in 1839, passed an act that there should be, 
 from and after the passage of the act, reserved to every cit- 
 izen or head of family in this republic, free from any writ or 
 execution issuing from any Court, fifty acres of land, or one 
 town lot, including his or her homestead, and improvements 
 not exceeding five hundred dollars in value, household furni- 
 ture not to exceed two hundred dollars, implements of hus- 
 bandry of the value of fifty dollars, tools, apparatus, and 
 books belonging to the trade or profession of any citizen. 
 The Supreme Court of Texas said, in construing the forego- 
 ing act, that the words " every citizen" should not be taken 
 in a restricted sense, as designating only the native-born or 
 naturalized citizen, but in its general acceptation and mean- 
 ing as descriptive of the inhabitants of the country. They 
 further held that the statute extends as well to single men or 
 
 1 Clements v. Stanton, 47 Oal. 60. 
 
 2 GuUlory v. Deville, 21 La. An. 686. 
 
95 CONSTRUCTION OF STATUTES. §§ 63-'65 
 
 individuals as to married men or heads of families. The 
 terms are " every citizen or head of family " — that is, every 
 individual independent of and not properly connected with a 
 family as one of its members,' and also every head of family 
 shall be entitled, etc. So in regard to the tools, apparatus, 
 books, belonging to the trade or profession of " any citizen " 
 it was held that, not referring specifically to heads of fami- 
 lies, it was very clear that no distinction in the Act was made 
 between single men and heads of families, neither as re- 
 gards the homestead, nor the other articles enumerated.^ 
 
 § 63. Construction of statutes adopted from other 
 States. — Where the legislature enact a statute which is a 
 literal transcript of a statute of another State, it will be pre- 
 sumed that they intended to adopt the construction which 
 had been placed upon it by the highest Court of the State 
 from whence it was borrowed.^ 
 
 § 64. Interpretation of constitutional provisions. — The 
 
 constitution of Nevada, Art. IV, Sec. 30, which prescribes 
 that the homestead "shall be exempt from, forced sale under 
 any process of law, and shall not be alienated without the 
 joint consent of husband and wife * * provided the provi- 
 sions of this section shall not apply to any process of law ob- 
 tained by virtue of a lien given by the consent of both hus- 
 band and wife," and expressly prohibits the Legislature from 
 exempting the homestead from forced sale upon a lien cre- 
 ated by husband and wife for a loan or indebtedness. There- 
 fore the Act of March 6th, 1865, to exempt the homestead 
 and other property fi'om forced sale in certain cases, in so far 
 r as it provides that no valid mortgage, for the purpose of se- 
 curing a loan or indebtedness, can be made by husband and 
 wife upon their homestead, was held to be unconstitutional. ^ 
 
 § 65. Constitution of Minnesota and construction of 
 statutes. — Art. 1, Sec. 12, of the constitution of Minnesota 
 
 1 Cobbs V. Coleman, 14 Texas 594. 
 2Skouten v. Wood, 57 Mo. 380, 
 3 Dunker v. Chedio, 4 Nev. 378. 
 
§ 65 CONSTRUCTION OF STATUTES. 96 
 
 contains the following clause : " A reasonable amount of 
 property shall be exempt from seizure or sale, for the pay- 
 ment of any debt or liability ; the amount of such exemp- 
 tion shall be determined by law. ' ' 
 
 Accordingly, in 1851, the Legislature passed the homestead 
 exemption law, which was amended in 1854. In these acts 
 the Legislature provided for the exemption from forced sale, 
 on execution or other process of a Court, this homestead as 
 against any general indebtedness that the owner might incur, 
 not connected with the land itself, or the improvements 
 thereon ; and such exceptions as would prevent the owner 
 from increasing the value of his land at the expense of those 
 who furnished him with labor or materials in its improve- 
 ment, as well as the protection of the public in the collection 
 of taxes and assessments, and liens of mortgage voluntarily 
 created in the mode provided by law. The exemption and 
 the exceptions to its operation are to be read together, as 
 they were one act ; and as to the class of claims excepted, it 
 is as if there was no exemption, the land standing in relation 
 ,to them as any other land of the owner would. ^ 
 
 A further exception was made in favor of clerks', laborers', 
 and mechanics' wages, but the Supreme Court held in the case 
 of Tuttle V. Strout,^ that the section of the " Act for a home- 
 stead exemption " which excepts debts or liabilities due for 
 the wages of clerks, laborers, and mechanics, from the opera- 
 tion of the exemption provided by the act, was unconstitu- 
 tional and void. Emmet, C. J., said: "We cannot resist 
 the conclusion that the ninth section of the act conflicts with 
 Sec. 12 of the Bill of Rights. The language of the consti- 
 tution is too plain to admit of a serious doubt either as to 
 its interpretation or application to the act under considera^ 
 tion. ' A reasonable amount of property shall be exempt 
 from seizure or sale for the payment of any debt or liability.' 
 This includes debts or liabilities of every kind or description, 
 vrithout exception ; and it certainly requires no argument to 
 show that a sum of money due for services rendered by a 
 
 1 Olson V. Nelson, 3 Minn. 53 ; Oogel v. Miokow, 11 Id. 475. 
 
 2 7 Minn. 465. 
 
97 CONSTRUCTION OF STATUTES. § 66 
 
 ' clerk, laborer, or mechanic, is a debt or liability. The con- 
 Btitution makes no exception in favor of any-particular class 
 of persons, or kind of debt or liability ; nor should we rec- 
 ognize the right of the legislature to make any such dis- 
 tinctions. If one class of persons, or kind of debts or lia- 
 bilities, may be excepted, all may be, and the constitutional 
 provision thus rendered entirely nugatory." ^ 
 
 § 66. The Arkansas constitution of 1868, Art. 12, under 
 the title of "Exempted Property," Sec. 1, provides that 
 " the personal property of any resident of this State, to the 
 valueof 12,000, to be selected by such resident, shall be ex- 
 empted, from sale on execution." Sec. 2 provides that, 
 " hereafter the homestead of any resident in this State, who 
 is a married man or head of a family, shall not be encum- 
 bered in any manner while owned by him, except for taxes, 
 laborers' and mechanics' liens, and security for the purchase- 
 money thereof. " Sec. 3 provides that, " fvery homestead, 
 not exceeding 160 acres of land, and the dwelling and appur- 
 tenances thereon, to be selected by the owner thereof, and 
 not in any city, town, or village, or in lieu thereof, at the op- 
 tion of the owner, any lot in a city, town, or village, with the 
 dwelling and appurtenances thereon, owned and occupied by 
 any resident in this State, and not exceeding the value of 
 $5,000, shall be exempted from sale on execution ; " but no 
 property shall be exempt from sale for taxes for the payment 
 of obligations contracted for the purchase of said premises, 
 for the creation of improvements thereon, or for labor per- 
 formed for the owner thereof, etc. 
 
 In the case of Greenwood v. Maddox ^ the Court said : 
 " Sec. 3 is to be construed in connection with Sees. 1 and 2, 
 and so construed it exempts all homesteads from sale on exe- 
 cution or other final process except in the instances in the 
 Sees, named, and it does not, by any of its expressions, limit 
 the benefit of this exemption to married men or heads of fam- 
 ilies. Under Sep. 2 the homestead of an unmarried man 
 
 1 The Act at present in force contains no such provision. 
 
 2 27 Ark. 648. 
 
 HOMESTBAD^T. 
 
§ 67 CONSTRUCTION OF STATUTES. 98 
 
 may be encumbered, but a married man or head of a family 
 cannot encumber his homestead. ' ' 
 
 § 67. Constitution of Michigan, 1850, limiting value, 
 rights under la-w of 1848, ■w^hen no limit to value. — In 
 
 Michigan, where under a statute passed in 1848, there was no 
 limit as to the value of the homestead, subsequently, in 1850, 
 a new constitution was adopted, limiting the value of the 
 homestead to fl,5G0. It was held that a homestead of the 
 value of $5,000, or any homestead, was not exempt under the 
 following facts : 
 
 In April, 1858, one Baldy obtained a judgment against 
 Beecher for $1,000 and costs, upon a debt contracted in April, 
 1857. Beecher filed his bill to restrain the defendant from 
 proceeding to sell the property claimed as a homestead to 
 satisfy the judgment. The bill alleged that the lot of ground 
 was twenty-five feet front by one hundred feet in depth, that 
 the entire front of said lot is covered by the dwelling-house, 
 that he selected said premises many years ago, and long be- 
 fore the obtaining of said judgment, as his homestead ; that at 
 the time of the selection of said homestead it was worth more 
 than 11,500, to wit, the sum of $5,000. 
 
 It was contended on the part of the homestead claimant, 
 that the phrase in the constitution, " not exceeding fifteen 
 hundred dollars," was not to be construed as a limitation up- 
 on the power of the legislature, but that the intention of the 
 constitution was only to require that a homestead to that 
 amount at least should be exempt at all events, leaving it to 
 the legislature to exempt a larger amount if they should see 
 fit ; and hence that it was not repugnant to the law of 1848, 
 and that both the law of 1848 and the constitution of 1850 
 might stand together. 
 
 But the Court held that the sum mentioned in the consti- 
 tution was a limitation, and that a homestead cannot be 
 exempt as an entirety which, at the time it is first claimed as 
 a homestead, is worth a greater amount -; that therefore the 
 constitution was repugnant to the statute, and to that extent 
 repealed it.-^ 
 
 1 Smith V. Hickman, 2 Cooke Ch. (Tenn.) 330. Per contra, see McCartee v. 
 Orphan Asylum Society, 9 Cow. 437; Byrne v. Stewart, 3 Dessau (S. C.) 135. 
 
99 CONSTRUCTION OF STATUTES. § 67 
 
 The Court further held that where the house covered the 
 whole front of the lot, and coixld not be divided, and that it 
 was worth Ave thousand dollars, it was not exempt from 
 forced sale, the legislature having provided no means, in such 
 case, of selecting the required exemption. 
 
 The Court admitted that the constitutional provision was 
 an express prohibition against a forcible sale on execution of 
 the homestead described in it — ^that is, a house and lot of the 
 value of fifteen hundred doUai-s. The Court said : " If, 
 then, when reduced in quantity as far as divisible, without 
 cutting off any part of what is essential to constitute it a 
 homestead — of what is necessary to its ordinary use as such 
 — it still exceeds the specified value, it is not one of the 
 homesteads, the forced sale of which is prohibited by the 
 constitution, and cannot therefore be exempt by the opera^ 
 tion of that instrument alone. ^ The constitution has exempt- 
 ed a homestead of a certain 4escription. Where the home- 
 stead does not answer this description, it is competent for the 
 legislature to exempt something out of it, or in lieu of it, as 
 an equivalent in value. This would not be contrary to the 
 constitution, but in analogy to it. But what this equiva- 
 lent should be, whether a part of the premises, their use for 
 a certain time, or so much cash, as part of the proceeds of 
 sale, is matter for legislation, not for judicial discretion. It 
 is not for the Courts to remedy all the inequalities, real or im- 
 aginary, of the constitution or statutes. The premises claimed 
 as a homestead in this case are stated in the bill to be worth 
 five thousand dollars. This takes them out of the description 
 of a homestead exempt by the constitution. The only, ground 
 on which complainant could claim a homestead out of these 
 premises at all, was by showing that they were divisible, in 
 such manner as to leave a homestead, including the dwelling- 
 
 1 The clause in the constitution is ats follows : " Every homestead * • * 
 to be selected by the owner thereof, any lot in any city, village, or recorded town 
 plat, « * * and the dwelling-house thereon and its appurtenances, owned 
 and occupied by any resident of the State, not exceeding in value fifteen hund- 
 red dollars, shall be exempt from forced sale on execution or any other final pro- 
 cess from a Court, for any debt contracted after the adoption of this constitu- 
 tion." 
 
§ 67 CONSTRUCTION OF STATUTES. 100 
 
 house and appurtenances, within the prescribed value. The 
 bill alleges nothing of the kind ; but from the description in 
 the bill it is quite evident they were not thus divisible. At 
 all events, this being a right existing only by the force of the 
 constitution,^ it was for the complainant, by his allegations, to 
 bring himself within the constitution ; and not having alleged 
 the premises to be divisible, they must, as the bill now 
 stands, be considered indivisible, and therefore not exempt 
 either wholly or in part." ^ 
 
 1 Beeoher v. Baldy, 7 Mich. 500-1. See case of Baylor and Dawson v. San An- 
 tonio Nation. Bank, 38 Texas 448. 
 
 Note. — ^We have given an extended notice of this case of Beecker v. Baldy, as 
 it presents an interpretation of the statute in relation to homesteads at variance 
 with most of the. cases which have come under our observation. See chap. 4, sec. 
 2, nature of the right. See Dulanty v . Pynchon, 6 Allen 510 ; Lazell v. Lazell, 8 
 Allen 575 ; Connor v. MoMurray, 2 Allen 204 ; Castle v. Palmer, 6 Allen 404; 
 Goldman v. Clark, 1 Nev. 607 ; Baylor and Dawson v. Na. Bank, 38 Texas 448 ; 
 Fogg V. Fogg, 40 N. H. 284 ; Finley v. Dietrick, 13 Iowa 517 ; Clark v. Potter, 
 13 Grey 21 ; Cohen v. Davis, 20 Cal. 187. But under an amendment to home- 
 stead law, requiring notice to be filed, see Estate of Keed, 23 Cal. 410 ; Noble v. 
 Hook, 24 Cal. 638 ; Kelly v. Baker, 10 Min. 154 ; Finley u. Dietrick, 12Iowa517. 
 
 2 See Van Hook v. Whitlock, 2 Edw. Ch. 304, in which case it is held that 
 " where a remedial statute does not point out the manner in which it shall be 
 enforced, an action lies in favor of the party aggrieved by implication. See 
 Manning v. Merritt, 1 Clark (Ch. N. Y.) 98 ; "Ward v. Huhn, 16 Minn. 159. See 
 case of Line's Appeal, 2 Grant's cases 197 ; Dodson's Appeal, 1 Casey 25 Penn. 
 St. 232 ; Fogg v. Fogg, 40 N. H 282 
 
101 NATURE AND EXTENT OF THE RIGHT. § 68 
 
 CHAPTER IV. 
 
 NATURE AND EXTENT OE THE RIGHT. 
 
 g 68. Definition of the -word homestead. — " The home- 
 stead" is defined byWehster to be "the place of a mansion- 
 house — the enclosure of ground immediately connected with 
 the mansion." "The home-seat of the family." In law, " a 
 person's dwelling-place, with that part of his landed property 
 which is about and contiguous to it." 
 
 "A homestead is a house or dwelling-place, used as a home, 
 and designed as a shelter of the homestead roof," together 
 with the prescribed quantity of land on which the house is 
 situated. The homestead, therefore, means the home 
 place. It is the dwelling-place of the family, where they per- 
 manently reside.^ " A man's homestead must be his place 
 of residence, the place where he lives, where he usually sleeps 
 and eats, where he surrounds himself with the ordinary insig- 
 nia of a home, and where he may enjoy its immunities and 
 privacy. " ^ "A homestead is the residence of the family— ia 
 the place where the home is — and it would seem unreasona- 
 ble, on first impression, that the premises should be regarded 
 as a homestead, unless devoted principally to such residence 
 and home." ^ It represents a portion of land with the dwell- 
 ing-house, where the family resides, with^the usual and cus- 
 tomary appurtenances, including out-houses of every kind ne- 
 cessary or convenient for family use. Whatever is used being 
 necessary or convenient as a place of residence, as contradis- 
 
 1 Cook V. McGhristian, 4 Oal. 26 ; Taylor v. Hargous, 4 Gal. 268 ; Franklin 
 u. Coffee, 18 Texas 415 ; Walters u. The People, 18 111. 194; Tumlinson v. 
 Swlnney, 22 Ark. 400. 
 
 2 Philleo V. Smalley, 23 Texas 394. 
 
 3 Ackley v. Chamberlain, per Field, C. J., 16 Cal. 181. 
 
§ 69 NATURE AND EXTENT OF THE RIGHT. 102 
 
 tinguished from a place of basiness, constitutes the homestead 
 subject to the statutory hmit.^ 
 
 It is the inviolable sanctuary of the family, not merely of 
 the head of the family, but of all its members, whether con- 
 sisting of husband, wife, and children, or any other combina- 
 tion of human beings living together, such as brothers and 
 sisters, mother, etc., and having a common object in their 
 pursuits and occupations. Such a combination of persons thus 
 circumstanced necessarily constitute the family. It is the 
 homestead of a family, and not that of the head of a family 
 simply which is protected. In its most comprehensive mean- 
 ing it embraces a collective body of persons living together 
 in one house, or mthin one curtilage, in legal phrase.^ 
 
 § 69. The homestead right is not a fixed definite estate 
 in the land. — It was not intended by the homestead enact- 
 ments to create a new estate, but simply an exemption to 
 protect the homestead within the statutory or constitutional 
 limit from forced sale.' This exemption is not an individual 
 privilege of a debtor, apart from the family, but a protection 
 thrown around the home, by the State, for the welfare of the 
 household, of which the debtor cannot be deprived, if an un- 
 married person, without some act relinquishing the right ; or 
 if a married person, without the joint conveyance of the 
 spouses. ■• 
 
 The right of homestead is the creature of statute, unknown 
 to the common law. But it seems to partake of an interest 
 or right in the home, indeterminate in its duration, which 
 may continue for the joint lives of the possessor and his wife, 
 and in some cases until the majority of their children. That 
 it is defeasible does not change the quahty of that right while 
 it continues.^ "Homestead rights cannot be transferred by 
 
 1 Tumlinson v. Swinney, 22 Ark. 400 ; Gregg v. Boatwiok, 33 Cal. 227; Mo- 
 Donald V. Badger, 23 Cal. 394. 
 
 2 Wilson V. Ooohran, 31 Texas 679 ; Cox v. Wilder,, 2 Dillon 0. C. 46 ; Vogler 
 V. Montgomery, 54 Mo. 577. 
 
 3 McDonald v.' Crandall, 43 111. 232 ; Bowman v. Norton, 16 Cal. 219 ; Ho-we 
 V. Adams, 28 Vt. 544, per Redfield, 0. J. 
 
 4 Dye v. Mann, 10 Mich. 291. 
 
 5 Silloway v. Brown, 12 Allen (Mass.) 30 ; Kerley v. Eerley, 13 Allen 286. 
 
103 NATURE AND EXTENT Or THE RIGHT. § 70 
 
 any conveyance. They do not lie in grant. Such rights may 
 ■be released or abandoned, but they are, in their nature, in- 
 capable of sale or transfer. The right to have property pro- 
 tected fi'om forced sale is a purely personal right, which can- 
 not be bought or sold. ' ' ^ 
 
 In the case of Allen v. Cook,^ the Court said that " the 
 homestead right in IJ^'ewTork, under the statute of 1850, was 
 a purely personal right,^ and merely enabled the debtor to 
 have his homestead exempt from forced sale during his life, and 
 that of his widow, and until his children had attained the age 
 . of twenty-one years ; on condition that the householder and 
 his family resided on the premises. If judgment was recov- 
 ered against him in any suit, the homestead right did not op- 
 erate to destroy the lien of judgment, but merely suspended its 
 enforcement ; so, therefore, if the householder sold his home- 
 stead premises, the right of exemption — which could not be 
 sold — was gone, and the premises were liable in the hands of 
 a grantee, for all previous liens of judgment recovered against 
 the grantor. ' ' * This case of Cook v. Allen was affirmed in 
 Smith V. Brackett,' where the Court said : " The exemption 
 is a mere personal privilege which the statute secures the 
 debtor and to his widow and children, after decease, which 
 does not run with the land, and which cannot be transferred 
 to another with the land. The object of the statute seems to 
 have been to secure a habitation for famihes, rather from 
 motives of public policy than the protection of the debtor's 
 property against the claims of his creditors." 
 
 § 70. Repeal of statute does not aflEfeet right acquired. 
 
 — The right of homestead once acquired under any previous 
 
 1 Bowman v. Norton, 16 Cal. 219 ; Gunnison v. Twitchel, 38 N.H. 62. 
 
 2 26 Barb. 374. 
 
 3 Folsom V. Corli. 5 Minn. 337. 
 
 4 Of course the principles here announced have no application in those States 
 ■where it is declared by statute that no lien of judgment attaches to the hijme- 
 stead. As to personal privilege, see Norris v. Kidd, to appear in 28 Arkansas. 
 " Levy and sale void, no title passes -where occupied as homestead," see Kendell 
 V. Olark, 10 Cal. 17 ; Williams v. Young, 17 Cal. 403 ; Deffeliz v. Pico, 46 Cal. 
 289. 
 
 5 36 Barb. 571 ; Gunnison t) Twitchel, 38 N. H. 62. 
 
§§ 71-72 NATUKE AND EXTENT OP THE RIGHT. 104 
 
 statute will not be affected by the repeal of such statute. 
 Thus, in California, it was held that the Act of 1860, section 
 5, gives to the parties who claim a homestead under the Act 
 of 1851, a right, if they wish to bring themselves within the 
 rights and restrictions of the Act of 1860, by filing the declar- 
 ation therein required ; but it does not compel them so to do, 
 and until they have so filed the declaration they continue to 
 be governed by the law of 1851.^ In many of the States the 
 homestead right is not waived or lost by the householder's re- 
 moval therefrom with his family. When once lawfully ac- 
 quired it cannot be released or lost, except by deed duly 
 acknowledged according to law.^ 
 
 § 71. The nature, tenure, or title of the estate in the 
 land is not changed or altered in any way on account of its 
 destination to homestead uses. In a majority of the States 
 the law makes no infringment upon the husband's or wife's 
 right of property, nor does it affect the tenure of the proper- 
 ty. The estate, whatever may have been its nature, con- 
 tinues in the person who was the tenant before it became 
 homestead ; but for the purpose of securing the homestead to 
 the family, the power of separate alienation is taken away.^ 
 
 Premises which are thus occupied as a homestead by hus- 
 band and wife, and have all the statutory properties thereof, 
 but in which the husband has only an equitable interest, will 
 be protected as a homestead, as well as when the legal title 
 to the property is vested in the wife, and even though a por- 
 tion of it is occupied for business purposes.'' 
 
 § 72. Husband and -wife, rights and privileges. — Al- 
 though the husband has the legal title to the homestead, 
 
 1 Fiuley v. Deitrick, 12 Iowa 517 ; Clark v. Potter, 13 Grey (Mass.) 21 ; Cohen 
 V. Davis, 20 Cal. 187, but see Estate of Reed, 23 Cal. 410, as to filing notice on 
 or before June Ist, 1862 ; Noble v. Hook, 24 Cal. 638, see also Kelly v. Baker, 10 
 Minn. 154. 
 
 2 Delanty v. Pynohon, 6 Allen 510 ; Lazell v. Lazell, 8 Allen 575 ; Connor v. 
 MoMurry, 2 Allen 204 ; Castler v. Palmer, 6 Allen 404. 
 
 3 Gunnison v. Twitohel, 38 N. H. 62 ; Stewart v. Maokay, 16 Texas 56 ; Davis 
 V. Andrews, 30 Vt. 678 ; Folsom v. Carii, 5 Minn. 337. 
 
 i Oi*u. Shraft, 22 Mich. 260 ; McKeei). Wilcox, 11 Mich. 358. 
 
105 NATURE AND EXTENT OF THE EIGHT. § 72 
 
 the wife, when there is one, has a right to insist that the 
 homestead once acquired shall continue until another home- 
 stead is acquired, or -until she consents to its alienation or 
 abandonment. But she has no right in the homestead, inde- 
 pendent of the husband, which she can enforce. The chil- 
 dren, when there are any, have no title or estate whatever in 
 the homestead, but have only a mere right to maintenance 
 and shelter.^ 
 
 It has been held in IS'evada, that if the husband erects a 
 house and resides therein with his family, such action on his 
 part is sufficient to dedicate that property as a homestead, 
 holding that the statute which requires the owner of the prop- 
 erty to make his claim of homestead is merely directory. So 
 long as the house and lot do not exceed the statutory limit in 
 value it makes no difference that the house is large and suit- 
 able for other purposes, besides being used as a family resi- 
 dence. The object of the statute was stated to be "to pro- 
 tect five thousand dollars' worth of land and improvements, in- 
 cluding the family residence. ' ' 
 
 Being once dedicated as a homestead it can only be divested " 
 of that character by the joint act or deed of husband and 
 wife. A married woman can only convey by following the 
 prescribed forms. No conveyance or lease by the husband 
 alone can divest the premises of the character of homestead. * 
 
 "The right of the wiie to the homestead of her husband 
 and her interest in it, are present, fixed, and substantial ; they 
 are not merely possible, remote, or contingent. ^ Her rights 
 and interests are in possession and enjoyment, and not merely 
 in expectancy or dependent. The husband and wife are as to 
 the homestead practically joint tenants, subject to certain lim- 
 itations for the benefit of the children. The husband cannot 
 alienate the homestead, or even his own interest in it, except 
 the wife concur in signing the conveyance. ' ' The nature of 
 the wife's interest in the homestead is such, that, in general, 
 it is not liable to be affected or concluded by the omission, 
 neglect, or default of her husband.' 
 
 1 Da-wly V. Ayers, 23 Cal. 108. 
 
 2 Goldman v. Clark, 1 Nev. 607. 
 
 3 Adams v. Beale, Wright 0. J. dissenting, 19 Iowa 61 ; Conroy v. Sullivan, 
 
§ 73 NATURE AND EXTENT OF THE EIGHT. 106 
 
 In Iowa it has been decided that the right of the wife in 
 the homestead owned by the husband before marriage vests 
 in the wife at the time of marriage. " It is of a higher char- 
 acter and more in the nature of a vested interest or title than 
 a dower right in the other real estate of her husband. It is 
 of such a vested character as clothes her with a right to re- 
 deem from tax sale — under a saving clause in favor of mar- 
 ried women — after the time for redemption by the husband 
 has expired." ' ' 
 
 § 73. Nature of the estate or tenure of right in Cali- 
 fornia. — In a series of early decisions, in California, under 
 the Homestead Act of 1861, it was -held, that as soon as a 
 place, by the occupancy in good faith of the family, acquired 
 the character of a homestead, the nature of the estate was 
 changed, without reference to the manner in which the title 
 to the property oi-iginated, whether it was the separate estate 
 of the husband, or the common property of both husband and 
 wife ; that it was turned into a sort of joint tenancy with the 
 right of survivorship, at least as between husband and wife, and 
 that this estate could not be altered or destroyed except by 
 the concurrence of both in the manner prescribed by law. ^ 
 
 But in a series of subsequent decisions under the same stat- 
 ute, the theory of a joint tenancy as between the husband 
 and wife is rejected, and it was held that the estate in the - 
 homestead continued and remained in the husband, it having 
 been his separate, or community property. Said C. J. Field 
 in Gee v. Moore :' "If the premises are the separate prop- 
 erty of the husband or the common property of both husband 
 and wife, before they become a homestead, they remain such 
 separate or common property afterwards. * * We are 
 aware of decisions of this Court holding different views from 
 those expressed in this opinion. Thus, in Taylor v. Hargous * 
 
 44 111. 451 ; Sargent v. Wilcox, 5 Cal. 504 ; Eevalk v. Kraemer, 8 Oal. 66 ; Tadlook 
 V. Eooles, 25 Texas 782 ; Marks v. Marks, 9 Cal. 90. 
 
 1 Adams v. Beale, 19 Iowa 61 ; Chase v. Abbott, 20 Iowa 154. 
 
 2 Taylor v. Hargous, 4 Cal. 273 ;, Sargent v. Wilson, 5 Cal. 504 ; Estate of 
 Tompkins, 12 Cal. 114, and many other oases. 
 
 3 14 Cal. 472. 
 i 4 Cal. 273. 
 
107 NATURE AND EXTENT OP THE RIGHT. § 74 
 
 it is said that ' as soon as a place, by the occupancy in good 
 faith by the family, acquires the character of a homestead, the 
 nature of the estate is changed.' 
 
 " The doctrine as to the joint estate of the husband and wife, 
 with the right of survivorship, is repeated in subsequent 
 cases. This doctrine has never met with the approbation of 
 the profession, and is not warranted by any language in the 
 constitution or the statute. There is nothing in the nature of 
 the homestead right or privilege which justifies its designation 
 as such estate. The right or privilege has no single feature 
 resembling a joint tenancy. The estate rests where it existed 
 before the premises were appropriated as a homestead. The 
 appropriation of them confers a right upon the wife to insist 
 that their character as a homestead shall continue until she 
 consents to their alienation, or until another homestead is 
 provided, or they are otherwise abandoned. The wife, if 
 surviving her husband, takes the homestead, not by virtue of 
 any right of survivorship arising from the alleged joint ten- 
 ancy, but as property set apart by law from her husband's 
 estate, for her benefit and that of his children, if there be any. 
 In the same way, other property exempt from forced sale is 
 set apart to her. ' ' 
 
 The theory that the homestead estate was not a joint ten- 
 ancy,- though perhaps sound in law, was not popular in Cfal- 
 ifornia. During the next session of the legislature, the Home- 
 stead Law Amendment Act of 1860 was passed, by which it 
 was declared that the husband and wife shall be deemed to 
 hold the homestead property as joint tenants, (Sec. 1) and 
 the clause applied as well to homesteads held under the Act 
 of 1851. 
 
 § 74. Nature of the tenure in California as to husband 
 and wife continued. — By the Act of 1862, the right of sur- 
 vivorship — the chief incident of a joint tenancy at common 
 law — was added to the homestead estate in California. 
 
 The following opinion by Sawyer, C. J., in the case of- 
 Barber v. Babel,' gives the gist of the law, as it at present 
 stands in that State. After stating the fact that the statutes 
 
 136Cal. 16. 
 
§ 74 NATURE AND EXTENT OF THE RIGHT. 108 
 
 of 1860 and 1862 had changed the homestead estate into a 
 joint tenancy with the right of survivorship, he proceeds : 
 " There is no occasion to discuss at large the question as to 
 whether the estate of the husband and wife is exactly the 
 same in all respects, and with all the incidents of a joint ten- 
 ancy in the technical sense of the term as used in the com- 
 mon law, or whether the term 'joint tenancy ' is the best 
 that could be chosen to express the intention of the legisla^ 
 ture. But we do not perceive why the character of the right 
 as defined does not substantially approach very near a joint 
 tenancy, although not created in precisely the same way ; 
 even if not a technical joint tenancy at common law. In the 
 homestead estate most of the unities of joint tenancy are 
 found, for it is created by the same instrument and at the 
 same time. The homestead right and the joint interests are 
 created by the executing, acknowledging, and recording of 
 ibhe declaration. The new character of the estate with its 
 new incidents commences at that moment, and the new rights 
 vest in both parties at the same time. So far as the home- 
 stead right is concerned, ' they have one and the same inter- 
 est accruing by one or the same conveyance, or act, com- 
 mencing at one and the same time, and held by one and the 
 same undivided possession.' If the husband controls the 
 property during coverture, it is not because he has a greater, 
 more valuable, or different interest in the homestead from that 
 of his wife, but because the law has made him the head of 
 the household, and devolved upon him the duty of manage- 
 ment, not for his own interest merely, but for the joint bene- 
 fit of both. And the right of survivorship, the grand inci- 
 dent of joint tenancy, is added. The main substantial differ- 
 ence now seems to be the want of power in one of the par- 
 ties to sever the tenancy, or convey at all without the concur- 
 rence of the other in the mode prescribed. But however 
 this may be, there is a joint interest in the homestead ; a 
 joint holding, if not a technical joint tenancy. " "Although 
 the mode of creating the joint estate or interest in the hus- 
 , band and wife is not a conveyance in form, from the one in 
 whom the title stands upon the record to the two, and though 
 the formal legal title may be conceded to remain where it 
 
109 NATURE AND EXTENT OF THE EIGHT. §§ 75-76 
 
 was before, yet the effect and operation of recording the dec- 
 laration made- in due form is to take from the separate prop- 
 erty of the party owning, or the common property of both, 
 the property claimed as homestead, and to vest in the two 
 jointly an estate or interest in the land, which interest to the 
 extent of the homestead value cannot thereafter while both 
 live be severed, alienated, encumbered, divested, destroyed, 
 or injured without the concurrent act of both parties, equally 
 solemn and formal with that by which the new and different 
 estate or interest was created.- The new character of the es- 
 tate or interest thus vested may be thrown off', and the land 
 returned to its original status, by a declaration of abandon- 
 ment duly executed, acknowledged, and recorded. The 
 express provision that 'the husband and wife shall be 
 deemed to hold as joint tenants ' certainly means that they 
 shall hold some estate or interest as to the homestead differ- 
 ent from that held before ; that the estate or interest in the 
 homestead shall be joint, and that the wife, at least, shall 
 have a more distinct, specific, individual, available, inde- 
 structible, and valuable interest or right than she held before ; 
 otherwise* the provision is without meaning or consequence. " 
 " Under the provisions of the law tinder consideration, 
 there is a joint estate or interest in the homestead vested in 
 the husband and wife, which can only be divested by the con- 
 current act of husband and wife." ^ 
 
 TO WHAT EXTENT MAY BE USED- EOR PUEPOSES OTHER THAN 
 THE FAMILY DWELLING. 
 
 § 75. Diversity of opinion -where quantity the limit. — 
 
 There is some diversity of opinion among the authorities in 
 the construction of statutes, in relation to the latitude allowed 
 in the uses to which the homestead exemption property may 
 be put, especially under those laws which exempt a certain 
 quantity of land instead of value. 
 
 § 76. A single building, portions rented out, exempt. — 
 
 In Wisconsin, under the Exemption Law of 184.9, which pro- 
 
 1 36 Gal. 17, 18. 
 
§ 77 NATURE AND EXTENT OF THE BIGHT. 110 
 
 vided that a homestead consisting of any quantity of land not 
 exceeding forty acres, used for agricultural purposes, and the 
 dwelling-house thereon and its appurtenances, to be selected 
 by the owner thereof, and not included in a,nj town plat or 
 village'; or instead thereof, at the option of the owner, a quan- 
 tity of land, not exceeding in amount one-fourth of an acre, being 
 within a recorded town plat, or city, or village, and the dwell- 
 ing-house thereon, and its appurtenances, owned and occupied 
 by any resident of this State, shall not be subject to forced 
 sale, etc., from and after January, 1849. It was held in the 
 case of Phelps v. Rooney,^ that a building, the main portion 
 of which was let out to tenants, and used as stores, bringing 
 m f 1,500 a year rental — which was in style of architecture 
 a store, and six-sevenths of its use and value were devoted 
 to that purpose — was exempt under the homestead law, be- 
 cause the owner and his family occupied a few rooms in the 
 top of the building as a residence. According to this con- 
 struction the word "homestead," as defined, means the land 
 not exceeding the prescribed amount upon which the dwell- 
 ing-house, residence, habitation, or abode of the owner is 
 situated, without regard to the precise naanner in which it is 
 used, or the nature or the character of the building thereon, 
 restrained only by the amount of land mentioned in the act, 
 and upon the fact that it is actually occupied in good faith as 
 a dwelling by the owner and his family, i^'or does the owner 
 forfeit the benefit of the exemptions by devoting the most val- 
 uable part of the building to another use than a mere residence 
 for his family. " A construction," said Dixon, C. J., dissent- 
 ing, " which will enable a man to exempt, as his homestead, 
 a lot with a shot-tower on it. " 
 
 § 77. Separate buildings, rented, not exempt. — A case 
 somewhat similar presented itself before the same Court, 
 under the same statute, in the case of Cassilman v. Packard,'' 
 in which the Court decided that the quarter-acre was not ex- 
 
 1 9 Wis. 70. 
 
 2 16 "Wis. 115 ; In Ee Tertelling, 2 Dill. 341. In connection with the subject 
 of the division of floors, or stories, by diflferent owners and rights, see an able 
 article in American Law Kegister, August 1862, Vol. 1 IST. S. 577, Vol. 10 old 
 sei'ies. 
 
Ill NATURE AND EXTENT OF THE RIGHT. § 78-79 
 
 empt in toto, from the fact that, besides the dwelling-house, 
 there were stores on the lot which were separate, buildings. 
 It was held that it was not the intention and meaning of the 
 law, exempting one-fourth of an acre upon which the debtor 
 lives, in a city or town, that all the buildings thereon, and 
 the ground on which they stood, should be exempt merely 
 because the debtor lives on one of them. That the exemp- 
 tion means no more of a lot to be exempt than is actually used 
 as a homestead and occupied for that purpose, and that 
 stores, etc., erected on the lot and rented out by the debtor, 
 are in no sense portions of the homestead, and may be levied 
 upon and sold. 
 
 § 78. Buildings designed exclusively for business pur- 
 poses. — In California the point has not been judicially deter- 
 mined, but it was questioned by the Court whether premises 
 which are designed exclusively for business purposes, even 
 though the family may happen to reside thereon, can be dedi- 
 cated as a homestead. In the case of Ackley v. Chamberlain,^ 
 Field, C. J., says : " It would seem unreasonable, for example, 
 that a gas factory should be impressed with the character of 
 a homestead, because the owner resided with his family in an 
 upper story of the building, or that a storehouse shouM be- 
 come exempt from execution because the owner occupied the 
 basement in the same way. The question whether property 
 devoted chiefly to business purposes can be subject to a home- 
 stead claim is full of embarrassment. " 
 
 § 79. May be us'^ed for business purposes and familys 
 dwelling. — It seems that property may be devt)ted to home- 
 stead purposes, even when it is used for business pui'poses, 
 provided that the business does not interfere with its general 
 cTiaracter as a family dwelling-house. 
 
 In the case of Ackley v. Chamberlain, above noticed, the 
 premises consisting of.a principal building with a barn, store- 
 house, and out-houses appurtenant thereto, were held to be a 
 homestead," although the principal building was used as a ho- 
 
 1 16 Cal. 184. 
 
§ 80-81 NATUEE AND EXTENT OF THE EIGHT. 112 
 
 tel as well as a dwelling for the family, it appearing that the 
 land had been pre-empted and the building originally intended ^ 
 as a residence for the family, and that the nature and extent 
 of the hotel-keeping did not interfere with the general char- 
 acter of the premises as a family dwelling-place. 
 
 In the case of Gregg v. Bostwick,' it is said : " If the 
 premises are used also as a place of business by the family, 
 as not unfrequently happens, they do not therefore cease to be 
 a homestead, if they are necessary or convenient for family 
 use independent of the business. ' ' And this seems to be the true 
 test, whether premises used partly for business are homestead 
 or not ; if necessary or convenient for family use, they may 
 be homestead ; if otherwise, not." 
 
 § 80. In Massachusetts, homestead premises may be 
 used for business purposes, and it is held that the right may 
 exist in a country hotel. ^ 
 
 i 81. Used only for businesfe, not exempt — O-svner may 
 combine both business and dwelling.— In Texas it is held 
 that a place of business used only as such does not come with- 
 in the provisions of the law,' but the exemption should not 
 be construed as reserving merely a residence where a family 
 may eat, drink, and sleep ; it includes also a place where the 
 head or members may pursue such business or avocation as 
 may be necessary for the support and comfort of the family. 
 "The office of a lawyer or shop of a mechanic is necessary 
 to the convenience and success of their respective profession 
 or trade, but it would frequently be of much inconvenience 
 and detriment that this shop or office should be part of the 
 same building, or even on the same lot with the residence of 
 the fanjily, and so it may be on a separate lot at a distance 
 from the" residence, and will still be protected." * Although 
 this latitude is allowed, and this liberal interpretation is given 
 
 1 33 Cal. 228 ; Rhodes v. MoCormiok, i Io-«ra 368 ; Gary v. Eaatabrook, 6 Cal.. 
 457. 
 
 2 Lazell V. Lazell, 8 Allen 575 ; Mercer v. Chase, H Allen 194. 
 
 3 Phitteo V. Smalley, 23 Texas 502 ; Franklin v. Coffee, 18 Texas 413. 
 
 4 Pryor v. Stone, 19 Texas 373 ; Stanley v. Greenwood, 24 Texas 224 ; Moose 
 V. White, 30 Texas 440. 
 
113 NATURE AND EXTENT OP THE EIGHT. §§ 82-84 
 
 to the law, yet the Court says : " It is not enough to support 
 a homestead claim that he uses the premises for business pur- 
 poses and sleeps there ; it must be a place where he lives, 
 where he furnishes himself, if single, or his family, if he has 
 one, with all such things as are required in the support or 
 sustenance of himself or his family." ^ The exemption guar- 
 anteed by the law and the constitution is based on the suppo- 
 sition that there is a homestead in fact in actual existence, ; 
 that there is a home in which the citizen and his family are 
 or might be settled. " There must be a homestead over 
 which the constitution may throw its shield, and not land 
 merely, upon which the owner may or may not put up his 
 cabin, mansion, or improvements, and claim a home. A home- 
 stead necessarily includes the idea of a house for residence, 
 or mansion house ; on town or city lots it cannot exceed a 
 certain value. "^ 
 
 § 82. In Kansas, a homestead and a brewery may ex- 
 ist in the same building, and this, although the greater part 
 of the building is used for brewing purposes.' 
 
 § 83. Store, -warehouse, not exempt. — In Illinois it would 
 appear that a stable, a horse lot, a smoke house, and the 
 grounds connected therewith, together with the dwelling- 
 house, would' constitute the homestead ; but that a store, a 
 warehouse, and the grounds connected with these, would not.* 
 
 § 84. Only d-welling and its appurtenances. — In Iowa, 
 the rule is more stringent than iu Texas and other States. It 
 is not to embrace more than one dwelling-house, nor any 
 other buildings except such as are properly appurtenant to 
 the homestead as such ; and a shop situated thereon and 
 really used and occupied by the owner in the prosecution of 
 his ordinary business, and not exceeding in vajue the statutory 
 
 1 Wilson V. Cochran, 31 Texas 677. 
 
 2 Franklin v. Coffer, 18 Texas 413 ; Williams v. Cochran, 31 Texas 679 ; Phil- 
 leo V. Smalley, 23 Texas 502 ; In re Tertulling, 2 Dill. 341. 
 
 3 In re Tertulling, 2 Dillon 341 ; see Chapter on Bankruptcy. 
 
 4 Eeinbaok i;. Walter, 27 111. 393 ; In re Tertulling, 2 Dill. 341. 
 
 Homestead — 8. 
 
§.85 NATURE AND EXTENT OF THE EIGHT. 114' 
 
 amount, may be appurtenant to such homestead.^ " When an 
 execution defendant shall use a particular building as a home, 
 the whole of such building in case of controversy and disa- 
 greement " will be presumed to constitute and be a part of 
 the homestead until it is shown by the party adversely inter- 
 ested that some specific portion is not of the homestead char- 
 acter, and therefore not exempt." "And if under the same 
 roof as the homestead * there shall be a floor or floors, room or 
 rooms, which are not thus used, they are no more exempt 
 than if under another roof, or on another and dift'erent por- 
 tion of the lot. A defendant cannot, by calling his house a 
 homestead, make it such. He cannot, by using one room in 
 a building containing forty, exempt the entire premises." 
 " In our opinion it was never the intention of the law-making 
 power to exempt from execution an entire building or house, 
 for whatever used, because some portion of it was used by the 
 owner as his homestead. So long as the building shall come 
 within the meaning of a homestead, as defined by the code, 
 the value of it is not limited, though the extent of the ground 
 is. But when not within this definition, it is liable, whatever 
 its value. ' ' And " if a portion of a building shall come within 
 this definition, and a portion not, then a portion may be ex- 
 empt and another not." The object of the law is to protect 
 the home, and preserve it for the family, and not shops 
 and stores, rooms, hotels, and office rooms which are rented 
 and occupied by other persons."^ The homestead em- 
 braces the lots and buildings appurtenant to the house, in- 
 cluding those used and occupied by the owner in the pursuit 
 of his ordinary avocation, but it does not include buildings 
 which are rented to others, and produce a revenue for the 
 owner.' 
 
 § 85. in Georgia no restriction is placed upon the use 
 
 to which the homestead premises may be put.^ 
 
 1 Rhodes v. MoCormiok, 4 Iowa 371 ; Thorn v. Thorn, 14 Id. 49. 
 2Khodeat). McCormick, 4Io-wa 368; Oharless t). Lamherson, 1 Iowa 435. 
 SKurz V. Brusoh, 13 Iowa 579. 
 4Kirkland v. Davis, 43 Oa. 318. 
 
115 NATURE AND EXTENT OF THE RIGHT. §§ 86-88 
 
 § 86. In MiclQgan, the same view is taken. " Fo one 
 would imagine that a person would lose his homestead privi- 
 lege if he should happen to use some room in his dwelling 
 for his law office, or because his wife should in her own right 
 carry on dress-making in one of the apartments. ' ' ' 
 
 § 87. In Minnesota, no limitation placed on the home- 
 stead. — Minnesota sustains the same views, allowing a some- 
 what broader latitude in the use of the homestead prem- 
 ises than that of Michigan, Wisconsin,^ and California. 
 
 The Supreme Court of Minnesota says, in substance, that it 
 is to be observed that no limitations were imposed by the leg- 
 islature upon the use which should be made of the homestead of 
 eighty acres, or one lot, provided only it was the dwelling-place 
 of the person claiming the exemption ; as to the balance be- 
 yond what was required for the site of his house, the home- 
 stead tenant seems to have been left free to do what he liked 
 with it, to let it remain unimproved and vacant, or to devote 
 it to any use he pleased — to let it, for instance. He may carry 
 on his own business there, and let the parts which he does not 
 occupy to other men of business, and the whole will be ex- 
 empt if he lives on the lot, (if in a town) or on the parcel of 
 eighty acres, if in the country.^ A homestead estate maybe 
 taken to include an entire dwelling-house, although a poi'tion 
 of the same is occupied by a third person paying rent therefor 
 to the owner. ^ 
 
 § 88. No limitation on the use — Lodging house. — In 
 
 iN'evada, the statute of 1861 exempts from forced sale a tract 
 of land on which the homestead is located, to the extent of 
 $5,000 in value ; it also provides that no division of the home- 
 stead, property shaill be made without the assent of the owner, 
 where it consists of one acre or less. The debtor hae, there- 
 fore, the privilege of selecting any land included in the home- 
 stead tract, provided it does not exceed $5,000 in value. 
 There is no limit or qualification as to the other uses to which 
 
 1 Orr V. Sihraft, 22 Michigan 260. 
 
 2 Casselman v. Packard, 16 "Wis. 115. 
 
 3 Kelly v. Baker, 10 Minn. 154. 
 
 i Mercer v. Chace, 11 Allen (Mass.) 194. 
 
§§ 89-90 NATURE AND EXTENT OP THE EIGHT. 116 
 
 the land may be put, if one use it for a homestead,^ even 
 though the premises are divided by an imaginary Hne, the 
 dwelling-house situated on one portion and a livery stable on 
 the other. Real estate worth less than the statutory hmit, on 
 which a husband and wife reside, is exempt from execution, 
 although the husband has formerly rented the house thereon 
 -for a lodging-house, and has conveyed the premises in trust for 
 his wife, who, however, has never assented to such convey- 
 ance in the manner prescribed by law ; and although he does 
 not assert his own claim to the premises as a homestead, or 
 is estopped from so doing, the wife may still make her claim 
 thereto.^ 
 
 § 89. Increase of homestead to prescribed value or 
 quantity. — A homestead may be of any value or any quantity 
 less than tlie prescribed value or quantity, under any given 
 statute. If the homestead be of less value or of less quantity 
 than the statutory allowance, it may be increased to the max- 
 imum value or quantity.^ 
 
 § 90. Only that which is occupied and used as home- 
 stead is exempt. — If a party occupies a homestead of less 
 value than the statutory amount, while he has other real es- 
 tate that is rented to tenants,it is only that which is occupied 
 as a homestead which is exempt.'* 
 
 So in Michigan, where the owner of a town lot built upon 
 it in such a way as to show that he designed it for two fam- 
 ilies and not for one, and leased one portion and lived in the 
 other, it was held that the leased part could not properly be 
 regarded as his homestead nor exempt from execution ; that 
 the law did not exempt property to the amount of $1,500, 
 whether designed as a homestead or not ; it merely covered 
 as much 'as came within the designation " occupied by the 
 family, ' ' although worth but a trifle. The obj eet is to preserve 
 
 1 Clark V. Shannon, 1 Nev. 568. 
 
 2 Goldman v. Clark, 1 Nev. 607. 
 
 3 Thorn V. Thom, 14 Iowa 49 ; Richards u. Helms, 38 Texas 445 ; Baylor and 
 Dawson v. San Antonio Nat. Bank, 38 Texas 448. 
 
 i Hart V. Webb, 36 N. H. 158 ; Dyson v. Shealy, 11 Mich. 527 ; Casselman v. 
 Packard, 16 Wis. 116. . 
 
117 NATURE AND EXTENT OF THE RIGHT. §§ 91-92 
 
 the home, and no more.^ But where a householder has his 
 dwelling-house upon a town lot, and is farming the lot to- 
 gether with a tract of land adjoining, all in one iuclosure, it 
 is competent for him to show that the whole premises consti- 
 tute his homestead.^ 
 
 § 91. Oeoupaney of homestead of greater value than 
 the statutory allo-wance. — A person who is in debt and living 
 on land which he claims as a homestead, but which is worth 
 more than the statutory limit, is liable to have the overplus 
 sold on execution. If the land can be divided in conformity 
 with the statute, a certain portion worth the amount in value 
 allowed the debtor, under the particular statute, may be set oflf, 
 which he' can hold exempt. But if in the course of time the 
 portion so allotted to him has so increased in value as to be 
 worth more than the statutory limit, the homestead may be 
 divided a second time and the overplus again sold for the sat 
 isfaction of creditors, and this course may be pursued as often 
 as the homestead increases in value and remains divisible; 
 but if indivisible the whole may be sold by the creditor up- 
 on the payment to the homestead claimant of the amount ex- 
 empt by law.^ 
 
 § 92. liimit in quantity or value. — In some States, it 
 vrill have been seen, the exemption does not exceed a certain 
 quantity of land, while in others the exemption is hmited to 
 a certain value. Where quantity is made the limit, the home- 
 stead may consist of the whole quantity named, or less. The 
 same where value is made the limit, the homestead may reach 
 in value the figure named, or less. In the case of Gregg v. 
 Bostwick, Sanderson, J. , in delivering the opinion of the Court, 
 says : ^ " Hence, neither quantity nor value can be taken into 
 account as tests as to what the homestead is, in' fact, in a 
 given case ; for they, in no just sense, enter into the definition 
 of a homestead. They operate only as limitations. If the 
 
 1 Dyson v. Shealy, 11 Mich. 527 ; Casaelman v. Packard, 16 Wis. 115. , 
 
 2 Thornton v. Boyden, 31 111. 200. 
 
 3 Stnbblefield v. G-raves, 50 111. 110 ; Walters v. People, 21 111. 178 ; Gregg v. 
 Bostwick, 33 Cal. 227 ; McDonald v. Badger, 23 Cal. 393. 
 
 4 33 Cal. 226. 
 
§ 93 NATURE AND EXTENT OF THE EIGHT. 118 
 
 homestead, when ascertained, exceeds the quantity named 
 where limitation is by quantity, it must be reduced by cut- 
 ting off the excess ; or if it exceeds the value named, where 
 the limitation is by value, it must be divided, if that can be 
 done ; if not, it must be sold and the proceeds divided." 
 
 ^ In Texas, the Constitution of 1869 provides that the legisla- 
 ture shall have power to exempt the homestead of a family 
 not to exceed two hundred acres of land, (not included in any 
 town or city) or any town or city lot or lots, in value not to 
 exceed 15,000, "which shall not be subject to forced sale." 
 The laws provide that there shall be reserved to every citizen, 
 head of family or householder, citizen of the State, a home- 
 stead, (as in the Constitution of 1869) from forced sale of the 
 value of 15,000, "at the time of their destination as such 
 homestead, nor shall the subsequent increase in the value of 
 the homestead, by reason of improvements or otherwise, sub- 
 ject the same to forced sale." ' 
 
 § 93. Change of character of homestead from rural to 
 urban. — In those States where the statute prescribes a cer- 
 
 1 Laws of Texas, 1870, 1873, p. 6i. 
 
 Note. — Pasohal's Laws, 1870. The restriotion of the urban homestead to the 
 value of $2,000, iuoluding improvements, continued in Texas under the then 
 constitution until 1869. An attempt had been made by the legislature, in 1860 
 and in 1866, to render the subsequent increasement in the value of the homestead, 
 by reason of improvements or othervrise, exempt from forced sale ; but these acts 
 were declared unconstitutional. They were nugatory, because they were in con- 
 flict with the existing constitution, which provided that the homestead should 
 not exceed $2,000 in value ("Walker v. Darst, 31 Texas 681). "This opinion," 
 says the reporter, " pronounced in the face of the constitution, which gave the 
 power to the legislature to exempt the property of families, and of the two stat- 
 utes making such exemption of improvements, must have induced the conven- 
 tion of 1868-69 to leave no doubt in the constitution which made organic what 
 the legislature had twice declared. ' ' 
 
 The 15th Sec. of Art XII of the Constitution of 1869 reads as follows : "The 
 legislature shall have power,and it shall be their duty, to protect by law from 
 forced sale a certain portion of the property of all heads of families. The home- 
 stead of a family, not to exceed two hundred acres of land, not included in a 
 city, town, or village, or any city, town, or village lot or lots not to exceed 
 )jS5,000 in value at the time of their destination as a homestead, and without 
 reference to the value of any improvements thereon, shall not be subject to forced 
 sale for debts," etc. 
 
 Virtually a homestead in a town may, now, therefore, be Of any value what- 
 ever, provided that the land did not cost more than $5,000 at the time it was 
 firpt adopted as a homestead. 
 
119 NATURE AND EXTENT OF THE RIGHT. § 93 
 
 tain quantity in the country for farming purposes, and in vil- 
 lages, towns, and cities a smaller quantity for residence pur- 
 poses, as well value as amount, some conflict of opinion has 
 arisen as to whe'ther the character of a rural could be changed 
 into an urban homestead^ The Supreme Coui-t of Texas said, 
 in the case of Taylor v. Boulware: ^ "We are not disposed to 
 question the power of the legislature to extend the limits of 
 a town, nor to question that after the plat or plan of the town 
 shall have been extended corresponding with the boundaries 
 so authorized to be extended, a homestead falling within such 
 extension, though acquired before it was done, would work a 
 change in the chai'acter of the homestead from^a country to 
 a town homestead, and subject necessarily to the value limi- 
 tation placed upon city homesteads by the constitution. But 
 in the subsequent case of Basset v. Messner,^ the same Court 
 held diiferent views. In this case it was held that the exten- 
 sion of a town so as to include a rural homestead did not, and 
 under the constitution, could not, change the character of the 
 homestead from a country to a town homestead, and that even 
 could the tacit or actual consent of the proprietor be obtained, 
 his wife's consent must be given in the manner required by 
 statute, before the character of the homestead could be 
 changed. 
 
 So, in Iowa, 'the same principle is maintained as that ex- 
 pressed in this last mentioned case in Texas. "The home- 
 stead right having once legally attached, it cannot be taken 
 away without the consent of the owner." Therefore, if a city, 
 town, or village extends its corporate limits so as to make a 
 rural homestead part of such village, the premises do not 
 thereby lose their homestead character, neither is the home- 
 stead cut down to one-half acre in extent. It remains, to all 
 intents and purposes, the same as before, provided it does not 
 exceed the statutory value. ^ 
 
 1 17 Texas 78. 
 
 2 30 Texas 604 ; 38 Texas 425. The principles in the foregoing case were 
 affirmed in Nolan v. Keed, where it is held that extending the boundaries of the ^ 
 corporation did not change the homestead from a rural to a town homestead ; 
 nor did the erection of houses for rent on the land subject it to forced sale. 
 Finley v. Deitrick, 12 Iowa 518, Wright J. dissenting. 
 
§§ 94-97 NATURE AND EXTENT OF THE EIGHT. 120 
 
 § 94. Extension of to'wn destroys the character of rural 
 homestead. — In Wisconsin, a homestead used for agricultural 
 purposes only, and exempt from forced sale under the Act of 
 1849, was incorporated within the limits of the city of Racine 
 by a subsequent act of the legislature, against the wishes of 
 the owner, who continued to cultivate in the same manner 
 as before, and to use it for his homestead. The Court held that 
 after its incorporation with the city, the law exempting agri- 
 cultural lands not included within any town plot, or city, or 
 village, no longer applied to it. ' Differing with the two last 
 cases cited from Iowa and^ Texas, and agreeing substantially 
 with the first case in Texas. 
 
 § 95. Reduction of homestead by extension of to-wn. 
 
 In Kansas, the same view has been taken, holding that 
 if the corporate limits of a town or city are extended so as 
 to include a part or all of the claimant's homestead property, 
 his homestead is so much reduced in extent. If the corporate 
 limits of the city were so extended as to in§lude the whole of 
 his rural homestead, his homestead would be reduced to one 
 acre.^ If the extension of the city limits included only a 
 part of his rural homestead, it seems that he would be at lib- 
 erty either to select one acre as an urban homestead or to x&- 
 tain his farmer rural homestead — less the portion which the 
 limits of the city covered, which portion would then be sub- 
 ject to forced sale on execution.' 
 
 § 96. A person cannot have two homesteads, one in 
 
 the city and one in the country.* Nor can he have two, eith- 
 er of which at his election will be exempt.^ 
 
 § 97. There is an apparent exception to this rule, which 
 may arise, under certain circumstances. It has been held 
 
 1 Bull V. Oonroe, 13 Wis. 233 ; Piirker v. King, 16 Wis. 223. 
 
 2 The constitution and statutes of Kansas exempt a homestead to the extent of 
 160 acres of farming land, or of one acre within the limits of an incorporated 
 town or city occupied as a residence of the family of the owner. 
 
 3 Sarahas v. Fenlon, 5 Kansas 592. 
 i Id. 5 Kansas 596. 
 
 5 Wright V. Dunning, 46 111. 271 ; Tourville v. Pierson, 39 111. 446. 
 
121 NATURE AND EXTENT OF THE RIGHT. §§ 98-100 
 
 that where the Probate Court has set apart a homestead for 
 the benefit of the widow and minor children, such widow sub- 
 sequently marrying is not precluded from acquiring home- 
 stead rights in the property of her second husband, while 
 holding the homestead acquired by the first marriage.^ This 
 is in harmony with the general policy of the law, that the 
 homestead is for the benefit of the family, "not for the hus- 
 band and wife alone." The children of the former marriage 
 Would have no interest, as such, in the new homestead, while 
 the children of the second marriage would have ho interest in 
 the homestead set apart by the Probate Court. 
 
 § 98. The gro^iving crop on land set apart as a home- 
 stead is not liable to be taken on execution.^ Ordinarily the 
 sale of land carries with it the crop then growing on it ; but 
 the laying aside of the homestead is not exactly a sale. It is 
 an appropriation of land for the benefit of the family, to the 
 exclusion of the debts of the head, and does not carry with it 
 the crop then growing on the land, to the exclusion of a lien 
 granted by the husband on such crop.^ 
 
 In Vermont, the growing crops are held to be exempt, but 
 under special statute of 1849, which says : " The homestead 
 of the execution debtor, , consisting of the lands, dwelling- 
 house occupied by him as a homestead, and out-buildings, and 
 the yeai-ly produce thereof. ""' 
 
 i 99. Exchange of homestead, or exempt property, for 
 merchandise. — The exchange of the homestead for articles 
 of merchandise, or other commodities of a commercial char- 
 acter, will not be permitted — such merchandise or commer- 
 cial commodities so received in exchange will be liable to be 
 taken on execution. ' ' ^ 
 
 § 100. An exchange may be made of one homestead 
 for another, in Iowa, where they are of the same value, or 
 
 1 Higgins V. Higgins, 46 Cal. 259. 
 
 2 Marshall & Co. v. Cook, 46 G-a. 302. 
 
 3 Clements v. Lee, 47 Ga. 626. 
 i Jewett V. Guyer, 38 Vt. 217. 
 
 5 Friedlauder v. Mahony, 31 Iowa 311. 
 
§§ 101-102 NATURE AND EXTENT OF THE RIGHT. 122 
 
 less, or if the new homestead be of greater value than the old, 
 it will be exempt to the extent of the value of the old. In 
 other words, in all cases where the old homestead would be 
 exempt, the new one would be exempt to that extent.^ 
 
 § 101. So of the sale of a former homestead and the 
 purchase of a ne-w one, the avails of such former homestead 
 are exempt from execution for prior debts contracted before 
 the purchase of the second homestead, but otherwise liable if 
 not the result of the sale or exchange of former exempt prop- 
 erty.^ 
 
 § 102. Insurance money due on the destruction of the 
 homestead by fire, is not liable to levy or attachment in the 
 hands of the insurance company, but is protected the same as- 
 the house would have been, if not destroyed ; and this upon 
 general principles, even "though the statute is silent upon the 
 subject. Thus, where, on the 31st of March, 1871, a home- 
 stead was duly selected, as provided by law, worth less than the 
 statutory value ; on the 11th of March, 1873, a policy of in- 
 surance was efi'ected on the premises. On the- 5th of June, 
 1873, the house was destroyed by fire. On the 17th of Sept. , 
 1872, a judgment was duly recovered against the insured, and 
 on the 7th of June, 1873, an execution was issued by virtue of 
 which the sheriff levied on the money due from the insurance 
 company. The wife of the insured, upon affidavits setting 
 forth the facts, moved the Court to set aside the levy. The' 
 Court ordered the levy and garnishment, upon the said money 
 in the hands of the insurance company, set aside, and the 
 money discharged from the levy, execution, and garnishment. 
 Upon appeal to the Supreme Court the order was affirmed, 
 that Court holding that the sum due from the insurance com- 
 pany was not subject to garnishment by a creditor of the 
 husband.^ 
 
 1 Furman v. Dewell, 35 Iowa 170. 
 
 2 Farra et als. v. Quigley, 57 Mo. 284 ; Pearson v. Minturn, 18 Iowa 36 ; Black 
 V. Epperson, 40 Texas 163, 187. 
 
 Z Houghton V. Lee, case No. 4086, filed July 13th, 1875, Supreme Court Gal. 
 July Term 1875. 
 
128 OUT OF WHAT IT MAT BE CARVED. - §§ 103-104 
 
 CHAPTER V. 
 
 OUT OP WHAT IT MAT BE SELECTED OR CARVED. 
 
 § 103. The nature and character of the estate or right 
 
 or interest in the land on which the homestead may be based, 
 varies in different States in the nature of the ownership, or 
 <»title to the land, or the right to demand title or interests in 
 the land, as well as in the value exempted ; but a substantial 
 agreement pervades the laws of all the States in requiring the 
 occupancy of the premises as the family home, before or at 
 the time of such selection. 
 
 Most of the statutes provide that the homestead shall con- 
 sist of a certain quantity of land, with the dwelling-house 
 thereon. In such case a homestead right cannot be success- 
 fully asserted when the claimant has no interest in the land. * 
 Thus, in Michigan, it was held that a party cannot legally 
 claim, under the statute of 1848, the homestead exemption 
 unless he is both owner and occupant of the premises sought 
 to be exempted, such being the express condition on which 
 the law protects a debtor in the enjoyment of his home- 
 stead.^ 
 
 § 104. Not limited in choice to the government sur- 
 vey or imaginary lines. — The owner of a large tract of 
 land in which a homestead right exists, is not limited in' his 
 choice of a homestead to the particular forty acres — the stat- 
 utory limit — according to the government survey, on which 
 his house stands. His house might stand on one plat of forty 
 acres, and his barn and out-houses on another. He is entitled 
 
 1 Smith V. Smith, 12 Gal. 216, 225 ; Beeoher v. Baldy, 7 Mich. 501 ; Parmer u. 
 Simpson, 6 Texas 303 ; Shepherd v. White, 11 Texas 346 ; Pizzala v. Campbell, 
 46 Ala. 35 ; Brown v. Keller, 32 111. 154. 
 
 2 Wisner v. Pamham, 2 Mieh. 472 ; Bevalk v. Kraemer, 8 Gal. 71. 
 
§§ 105-106 OUT OF WHAT IT MAY BE CARVED. 124 
 
 to have forty acres laid ofl" to him, in the shape most conve- 
 nient for him, out of any part of his property, provided that 
 the dwelUng-house and out^buildings are on the forty acres se- 
 lected.^ "Where a levy was made on a tract of land contain- 
 ing one hundred acres, and the debtor claimed forty acres oft' 
 the west side of the south half of the tract as exempt, and it 
 turned out that his dwelling-house was mostly, if not entirely, 
 situate on the north half of the tract, it was held that whether 
 the dwelling-house was in fact situated on the premises thus 
 claimed was not material, and that it would be presumed that 
 he intended by his selection to embrace the dwelling-house 
 and its appurtenances, instead of claiming by any particular 
 government subdivision.^ Nor do imaginary lines affect the 
 homestead exemption.^ 
 
 § 105. The separate property of the husband may be- 
 come the homestead in California, as well as the common 
 property acquired after marriage (Code, Sec. 1238, Amend. 
 1874). His voluntary act in taking his wife to reside upon 
 his separate property makes it his homestead, as well as that 
 of his wife and family, with all the incidents attached to it. 
 Such has always been the rule in California,^ and is now ex- 
 pressly declared by the Code as above. 
 
 § 106. But the separate property of the vrife cannot 
 
 become the homestead of the family without her consent in 
 writing, by joining in making the declaration of homestead 
 (Civil Code, Sec. 1239, Amend. 1874). There is an express 
 provision in the constitution of California, which says that all 
 property of hers acquired before marriage, or if after by 
 gift, bequest, devise, or descent, shall be her separate prop- 
 erty, (Art. IX, Sec. 14) and the statute provides that such 
 property can only be alienated or ehcumbered by the volun- 
 tary act in writing of a married woman, and acknowledged 
 in an examination separate and apart, and without the hearing 
 of her husband. 
 
 1 Kent V. Agard, 22 "Wis. 150. 
 
 2 Herriok v. Graves, 16 Wis. 157. 
 
 3 Clark v. Shannon, 1 Nev. 568 ; "Walters v. The People, 18 111. 194 ; aieason 
 V. Edmnnds, 2 Soam. 448 ; "Walters v. The People, 21 111. 178. 
 
 i Revalk v. Kraemer, 8 Cal. 66. 
 
125 OUT OF WHAT IT MAY BE CARVED. §§ 107-110 
 
 "The mere act of the wife of residing with her husband on 
 the premises^annot be construed into a change of her right in 
 regard to her separate property."^ But where property is 
 conveyed to a married woman for a valuable consideration, it 
 becomes, not the separate property of the wife, (unless by 
 way of gift from husband of either land or money ^) but the 
 common property of both husband and wife, and, as such, is 
 entitled to be dedicated to homestead purposes.^ 
 
 § 107. In Illinois it seems that a homestead right may 
 attach to lands of which the wife is the owner in fee, the 
 husband having only an estate as tenant by the curtesy.^ 
 But the husband and family must reside thereon with her.' 
 
 § 108. In Ohio it has been held that, where real estate of 
 the wife, held by her (under statute of 1866) as her sepp,rate 
 property, is occupied by the husband as a family homestead, 
 he is not the owner of such homestead within the meaning of 
 the statutes relating to the exemption of property from exe- 
 cution.* 
 
 S 109. In Indiana a debtor cannot claim exemption from 
 levy of land belonging to his wife, or of which she and not 
 he'holds the deed.'' 
 
 § -110. In Michigan a man cannot claim as a homestead, 
 under the homestead exemption act, a lot which he has 
 caused to be conveyed to his wife, on the ground that no one 
 but the debtor can claim it. " If it was the wife's property it 
 was not liable to be taken on execution for his debts ; if it 
 was not, her pretended title can be of no avail to him for the 
 purpose of exemption. As owner, she cannot claim it under 
 
 1 Eevalku. Kramer, 8 Gal. 71. 
 
 2 Hussay v. Castle, 41 Gal. 239; Woods v. Whitney, 42 Gal. 361 ; Lord v. 
 Hough, 43 Cal, 581 ; Higgins v. Higgina, 46 Gal. 259 ; Dow v. Gould & Curry, 
 31 Gal, 629 ; Peck v. Brumagim, 31 Gal. 440. 
 
 S Riley V. Pehl, 23 Gal. 74. 
 
 4 Boyd V. Gudderback, 31 111. 113. 
 
 5 Tourville v. Pierson,' 39 111. 446. 
 
 6 Davis V. Dodds, 20 Ohio St. 473. 
 
 7 Holman v. Martin, 12 Ind. 553, see Bankruptcy. 
 
§§ 111-112 OUT OF WHAT IT MAY BE CARVED. 126 
 
 the exemption act against his debts — having conveyed it, the 
 title is good between him and her, though void as to credit- 
 ors, he cannot claim it as exempt, for no title remains in him 
 on which to base such a claim. "^ 
 
 § 111. In Wisconsin, on the other hand, it has been held 
 that it was immaterial whether the title to the homestead is 
 vested in the householder, or in his wife as his trustee. In 
 either case, it is equally exempt from forced sale. In the case 
 of Dreutzer v. Bell,^ the defendant, Bell, had conveyed 
 his homestead to one P, who reconveyed to Bell's wife ; this 
 was done under the impression that the homestead would be 
 more secure against Bell's creditors. The Court was of 
 opinion that these conveyances did not operate to defeat the 
 homestead right. " It must be admitted plaintiflf could not 
 sell the homestead, had the title remained in Bell. Does the 
 circumstance that the title has passed around into the wife . 
 place them in a better position in respect to it than when the 
 whole legal and equitable estate was in him ? "We cannot 
 see that it does." The homestead law is for the benefit of 
 the family, the wife and children as well as the head of the 
 family.' 
 
 § 112. Some right or title to the land necessary to the 
 right. — A person owning a building, but having no property 
 .in the land whereon it stands, cannot maintain any claim of 
 homestead in such building. Title to the land, or a right to 
 demand title or an interest in the land, is essential ; so held, 
 against the wife, where the house was erected on land which 
 the husband after his second marriage purchased in the 
 name (by way of advancement) of his children by a former 
 wife, but with funds owned by him prior to his marriage with 
 the wife who set up the homestead claim.'' 
 
 1 HersMeldt v. George, 6 Mich. 457, see Bankruptcy, the recent rule very dif- 
 ferent. 
 
 2 11 Wis. 114. 
 
 3 Volger V. Montgomery et als., 54 Mo. 577. 
 
 ISraitli V. Smith, 12 Cal. 223 ; Deere v. Chapman, 25 111. 610 ; Davenport v. 
 Alston, 14 Ga. 271 ; Brown v. Keller, 32 HI. 152. 
 
127 OUT OF WHAT IT MAY BE CARVED. §§ 113-114 
 
 § 113. Wrongful possession of homestead creates no 
 title. — The mere use of the premises as a homestead does 
 not of itself create any interest in the property when the par- 
 ties claiming the homestead have in fact no title or estate 
 therein.^ - To be in a position to assert any claim to' home- 
 stead rights in tenements, the individual so claiming must be 
 in the actual possession, but no one holding by a wrongful i 
 possession can create any homestead right which can be as- 
 serted as against the lawful possessor, though the right is ten- 
 able as against the rest of the world. ^ 
 
 § 114. A homestead right may exist in lands 'which 
 are held by a less estate than a fee simple, in fact it may 
 exist where a person has nc estate whatever, but a mere 
 naked possession. The homestead right does not depend 
 upon the character of the title held by the party claiming it : 
 it is impressed on the land to the extent of the interest of the 
 claimant in it ; not on the title merely. " The actual home- 
 stead, as against everybody who has not a better title, be- 
 comes impressed with the legal homestead by taking the pro- 
 ceedings prescribed by the statute."^ "Whatever interest, there- 
 fore, the homestead claimant might have, would be protected 
 from forced sale. In Brooks v. Hyde,^ the same doctrine was 
 held: "We know of no reason why parties, otherwise en- 
 titled to the benefits of the homestead law, who are wroilg- 
 fully in possession, may not shelter the possession under the 
 provisions of the homestead act. By a dedication to home- 
 stead use they of course acquire no title to the land which 
 ^they did not before have, and no additional protection against 
 the claim of the true owner, -but as against their creditors the 
 possession of the land is as much protected by the homestead 
 law as if they were invested with the fee-simple. In the solu- 
 tion of all questions arising between homestead claimants and 
 those claiming under or against them as creditors, the ab- 
 sence of title is a false quantity which must be excluded from 
 
 1 Calderwood v. Tevie, 23 Oal. 336. 
 
 2Mannu. Rogers, 35 Oal. 317; Brooks i). Hyde, 37 Cal. 367 ; Strachn r. Foss, 
 42 N. H. 40 ; McClurken v. McClurken, 46 HI. 327. 
 8 Spencer v. Geisaman, 37 Oal. 99. 
 437 Oal. 373. 
 
§§ 115-117 OUT OP WHAT IT MAY BE CARVED. 128 
 
 consideration." The same rule has obtained in Illinois. In 
 the case of McClurken v. McClurken,' just cited, the Court 
 says substantially, a claim of homestead under a mere naked 
 possession without any ownei'ship in the land, or at least a 
 terin of years which will not expire at the lessee's death as a 
 basis for such claim, cannot be set up^to defeat recovering in 
 ejectment under a paramount legal title. 
 
 § 115. In Alabama, o^wnership and occupancy neces- 
 sary. — To constitute a homestead under the statutes of that 
 State, the realty in which it is claimed must -not only be occu- 
 pied but owned by the claimant through whom it is claimed. 
 It was held that the widow would not be entitled to a home- 
 stead where the husband had only a leasehold estate, and 
 was not the owner of the land.^ 
 
 § 116. Right of homestead expires -with the term for 
 ■which held. — In Illinois, if the homestead exemption attaches 
 to any estate less than a fee, it cannot continue or be claimed 
 after the estate has terminated.' The person who, by the 
 provisions of the act, is entitled to its benefits, must be the 
 owner of the premises, whatever may be said of the owner of 
 the term — a life or contingent estate — a person having no in- 
 terest in the property, or right to its enjoyment, is not em- 
 braced in the provisions of the law. So, where a party held 
 premises upon which he resided, under a lease, the term of the 
 lease having expired, his widow was precluded from setting 
 up a homestead right. 
 
 § 117. Any interest which can be sold on execution. — 
 
 The benefits of the homestead law are not confined to an 
 ownership in fee, but attach to the house and lot to which the 
 debtor has such a term as may be sold on execution. The ob- 
 ject of the statute was said to be to protect the owner and his 
 family in a home free from sale under judgment or decj-ee, 
 and a tenant for years was as clearly within the reason of the 
 statute as the owner of a larger estate. The law was designed 
 
 146 111. 331. 
 
 2 Fizzala v. Campbell, 46 Ala. 35. 
 
 3 Brown V. Keller. 32 111. 154. 
 
129 OUT OF WHAT IT MAY BE CAKVBD. § 117 
 
 to protect estates liable to sale on execution or decree, and a 
 term of years was held to be such an estate/ and an ownpr of 
 a term of years was an " owner " within the meaning of the 
 statute, and his house and leased lot were not subject to at- 
 tachment, or levy and sale, under an execution, and a pur- 
 chaser, under a forced sale, can acquire no title to it.^ And 
 the homestead claim to such leasehold property may be set 
 up after a sale, under a judgment or decree, unless it was re- 
 leased as provided by law.' A house, erected upon ground 
 held under a lease, is annexed to and forms part of the 
 leasehold estate. The house is not, of itself, a separate chat- 
 tel, but it, together with the lease of the land, forms a chattel 
 real, and not being naturally divisible, it is not regular for the 
 sherifl", under a judgment, to sever the house from the term 
 to which it is attached ; and generally a sheriff' has no power 
 to sell houses, timber, or ornamental trees, or to sever them 
 from the fee. Such a proceeding would be waste.* In Mas- 
 sachusetts, Michigan, l^ew Hampshire, Ohio, Wisconsin, Min- 
 nesota, Nebraska, Iowa, and other States, the same principle 
 will apply. " A homestead may be claimed in a dwelling- 
 house belonging to the debtor, which stands upon the land of 
 another, by virtue of a lease to the owner of the house. ^ So, 
 in Iowa, a homestead may exist in a leasehold estate for years. 
 In the case of Pelandw. De Bevard,' plaintiff leased one Snow 
 certain premises for the term of five years, for an agreed 
 annual rent. It was further agreed that if Snow should 
 erect a building suitable for a family, and a stable, on the 
 leased premises, the lessor was to pay him, at the expiration 
 of the lease, the value of the same, to be estimated by parties 
 chosen therefor. The lessee made the proposed improve- 
 
 1 MoClurken v. MeClurken, 46 111. 327 ; Deere v. Chapman, 25 hi. 610. 
 
 2 White V. Clark, 36 111. 285 ; Moore v. Titman, 33 lU. 358 ; Booker v. Ander- 
 son, 35 111. 66 ; Mooers v. Dixon, 35 ni. 208 ; Silsbe v. Lucas, 36 111. 462. 
 
 SConklinu. Foster, 57111. 104. 
 
 4 Id. 105. 
 
 6 1 "Wash. Eeal Prop. 337 ; Thurston v. Maddooks, 6 Allen (Mass.) 428 ; Kelly 
 V. Baker, 10 Minn. 154; Norris v. Moulton, 34 N. H. 392 ; Colwell v. Carper, 
 15 Ohio St. 279. 
 
 6 13 Iowa 53 ; Bartholomew v. West, 2 Dillon 291. 
 
 Homestead — 9. 
 
§ 118 OUT OP WHAT IT, MAY BE CARVBp. 130 
 
 ments, and occupied the house as a homestead. It was held 
 that the owner of a leasehold was entitled to the exemption 
 provided by the statute, because such exemption " was hot 
 limited to any particular estate, either as to its duration or 
 extent ' ' ; and that being homestead, the right to the posses- 
 sion of the premises, under the lease, could not be assigned ' 
 by the husband without the concurrence of the wife, in the 
 usual way. And that " an assignment by the husband alone 
 would transfer to the assignee the right to recover of the les- 
 sor the value of the improvements at the expiration of the 
 term. Such assignment by the husband would be good with- 
 out the joinder of the wife, so far as it related to the improve- 
 ments, because the right of Snow, or his assign, to compensa- 
 tion tor his improvements, was not a part of the homestead, 
 but as much capable of transfer and assignment as a prom- 
 issory note or any other debt against the lessee. " ' 
 
 In Mississippi, it is held that the term lands, as used in the 
 statute of that State, which provides that " every head of a 
 family shall be entitled to hold, own, and possess, free from 
 sale under execution, one hundred and sixty acres, not within 
 any city, town, or village, or if within any city, town, or village, 
 lands to the value of fifteen hundred dollars, includes an in- 
 terest in land for years, for life, or any greater estate of free- 
 hold. ^ 
 
 In ITorth Carolina, a debtor is entitled to a homestead in an 
 equity of redemption, subject to the mortgage debts,^ also a 
 reversionary interest in lauds is exempt from execution un- 
 der the homestead law.^ 
 
 The true rule seems to be any interest of the debtor which 
 might be sold on execution.^ 
 
 § 118. Leasehold property adjoining homestead, not ex- 
 empt. — The term "homestead" would not apply, in some 
 States, to leased property, though it adjoins the premises 
 
 1 13 Iowa 54. 
 
 2 Johnson v. Eiohardson, 33 Miss. 462. 
 
 3 Cheatham u. Jones, 68 N. C. 153. 
 i Poe V. Hardie, 65 N. 0. 447. 
 
 5 Deere v. Chapman, 25 111. 610 ; Johnson y. RicharJson, 33 Miss. 462 ; Barthol- 
 omew V. West, 2 Dillon 291. 
 
181 OUT OF WHAT IT MAY BE CARVED. § 119 
 
 used as a homestead, when such leased property is occupied 
 by tenants, and was never occupied as a home by the owner. 
 And property thus leased constitutes no part of the homestead, 
 even though the homestead proper does not equal the value 
 allowed by statute. * 
 
 § 119. Homestead right in equitable interest. — Difl'er-. 
 ent rules are applied in different States in respect to the na- 
 ture and extent of the equitable ownership of property req- 
 uisite in respect to which the homestead exemption will ap- 
 ply. In Illinois, one who holds an equitable title to land un- 
 der a contract to purchase, is suflB.ciently an owner of such 
 land, within the meaning of the homestead law, to claim the 
 exemption. He holds that species of estate to which the 
 homestead right will attach, and which will be protected 
 from levy and sale, as against third persons ; " and whether 
 the debtor holds in fee-simple, for life or for a term of years, 
 the reasons for affording the exemption apply with equal 
 force. "^ While in Massachusetts it has been held that the 
 right does not attach until the owner has a deed of the estate, 
 nor would it retroact to the date of the bond under which 
 the conveyance is made, though the deed be delivered in ac- 
 cordance with its provisions.' Whereas, in Iowa, where the 
 owner of a homestead took possession of an adjoining tract of 
 land under a parol contract of purchase, and improved the 
 same as part of the homestead, it was held exempt from judi- 
 cial sale to satisfy a debt contracted after such purchase, but 
 before an actual conveyance of the property to the debtor.'' 
 
 In Michigan, a homestead may be claimed where a party is 
 in possession of land under an executory contract to purchase. 
 In such case, the purchaser, if a married man, cannot alienate 
 his interest without the concurrence and signature of his wife, 
 for the reason that equity considers that as done which the 
 
 1 Hoitt V. "Webb, 36 N. H. 158 ; Davis u. Andrews, 30 Vt. 678 ; Walters v. 
 People, 18 111. 194 ; as to occupancy by tenant, 21 111. 178 ; 7 N. H. 245 ; 23 111. 
 536. 
 
 2 Blue V. Blue, 38 111. 10 ; McManus v. Campbell, 37 Texas 267 ; McKee o. Wil- 
 cox, 11 Mich. 358 ; McMamis v. Campbell, 32 Texas 442. 
 
 3 Thurston v. Maddooks, 6 Allen 428. 
 i Fyffe V. Beers, 18 Iowa 4. 
 
§ 120 OUT OF WHAT IT MAY BE CAEVBD. 132 
 
 parties had agreed to do, and gives the same eifect to the 
 equitable estate that the law gives to the legal estate.' 
 
 In Texas, homestead rights attach whenever there is a ded- 
 ication of the property to homestead purposes ; and this may 
 be before the fee passes, or before the purchase-money is 
 fully paid, subject, however, to the vendor's lien.^ 
 
 § 120. As to lands held in joint tenancy and in common, 
 
 a different rule prevails in different States, irrespective of stat- 
 utory regulation, in allowing the right of homestead in such 
 tenures. The right is allowed, among others, in Illinois, 
 Iowa, Arkansas, Texas, and Vermont, while among those in 
 which the right is denied may be mentioned California,' In- 
 diana, Massachusetts, New Hampshire, and Wisconsin. 
 
 As the homestead is protected in a simple possessory claim, 
 a leasehold, or life interest, or equitable title,* as well as the 
 legal title,^no satisfactory reason has been assigned why the 
 rule in the foregoing States of Illinois, Iowa, Vermont, Texas, 
 and Arkansas should not prevail, being in harmony with the 
 object and policy of the homestead laws existing in the sev- 
 eral States, and with the rule "any interest which might be 
 sold on execution." 
 
 Besides, a parol partition between tenants in common, when 
 followed by a several possession in conformity therewith, will 
 so far bind the possession as to give to each cotenant the 
 rights and incidents of an exclusive possession of his prop- 
 erty.* The legal title might not perhaps be considered as 
 passing by such paz'ol partition, unless after an exclusive pos- 
 session sufficiently long to justify the presumption of a deed 
 under the limitation act ; yet the parol partition followed by a 
 several possession would leave each cotenant seized of the le- 
 
 1 McKee v. Wilcox, 11 Mich. 358. 
 
 2 MoManua v Campell, 37 Texas 268. 
 
 3 Statutes of 1868 allowed homestead in lands held in common, but abrogated 
 by Code, 1873. 
 
 i See Ante, Sees, 114, 116, and 117. 
 
 5 Wash, on Real Prop. 3d ed. 587 ; "Wood v. Fleet, 36 N. Y. 501 ; Robinson v. 
 McDonald, 11 Texas 385 ; Cobnm v. EUenwood, 4 N. H. 99 ; Folger v. Mitchell, 
 3 Pick. 396 ; Adams v. Frothingham, 3 Mass. 352 ; Corbett v. Noroross, 35 N. H. 
 99 ; Rothwell v. Dewees, 2 Black 613 ; Tomliu v. Hillyard, 43 111. 300. 
 
133 OUT OP WHAT IT MAY BE CARVED. §§ 121-1-22 
 
 gal title of his proportion of his allotment, and the equitable 
 title to the other portion, and from his cotenant he could com- 
 pel, by bill in equity, a conveyance of the legal title of that 
 portion, according to the terms of the partition. When a 
 parol partition between tenants in common is had, followed 
 by a several possession, and before any judgment lien has 
 attached,^ there is no reasoii why each, cotenant cannot claim 
 the homestead right, even though the legal title to one por- 
 tion of his allotment be in the other, as each holds it after such 
 partition as trustee for the other. And a mere severance of 
 possession by tenants in common may be inferred from far 
 less proof than would be required to show a sale of land to a 
 stranger.^ 
 
 § 121. Homestead may be acquired in lands held in 
 joint tenancy. — The Supreme Court of Texas has repeatedly 
 held that a tenant in common of real estate may establish 
 upon such lands his homestead, without prejudice to his 
 cotenants ; and on partition, equity will allot to such im- 
 proving tenant his homestead, whenever that can be done 
 without injury to the other owners.^ 
 
 g 122. In Icwa, a tenant in comraon may claim and 
 
 hold a homestead in his interest in the undivided premises. 
 In the case of Thorn v. Thorn,* the Court says : " We do not 
 see why the homestead may not be awarded to the proper 
 owner as tenant, without the slightest detriment to his coten- 
 ants. Independently of any homestead right^ it has been held 
 by some Courts, that where one of the joint tenants had made 
 valuable improvements, that on partition subsequently made, 
 he would be entitled to that part on which improvement had 
 been made, or to compensation.^ But the homestead right 
 " cannot be claimed and enforced by one tenant in common 
 to the deti'iment of his cotenants. Hence, if he should hap- 
 pen to have erected and occupied a honjestead on a piece of 
 
 lEeynolds t;. Pixley, 6 Oal. 165. 
 
 2 Tomlin v. Hilyard, 43 111. 300. 
 
 3 Williams v. Wethered, 37 Texas 132 ; Smith o. Deschaumes, Id. 429. 
 i 14 Iowa 49. 
 
 BRobinson v. McDonald, 11 Texas 385. 
 
§§ 123-125 OUT OF WHAT IT MAY BE CARVED. 134 
 
 land which could not be partitioned without great prejudice 
 to his cotenants, it would have to be sold, but in that event 
 the Court would see that the value of the homestead and im- 
 provements distinct from the land would be secured to the 
 party at whose expense and labor they had been made." 
 
 § 123. In Arkansas, VT^here' lands held in common are 
 
 levied on, a tenant in common is at liberty to apply for 
 partition, and after partition, by fixing his dwelling thereon, 
 he will be entitled to the benefit of the exemption law. The 
 Court said : " We are aware that it has been held, in Califor- 
 nia, that a homestead cannot be claimed by a tenant in com- 
 mon, on the ground that no provision is made by the home- 
 stead statute of that State for partition.^ But it has been 
 ruled otherwise in Iowa and in Vermont,^ and we prefer the 
 reasoning of these decisions."^ 
 
 § 124» Right of homestead in lands held in common. — 
 
 IlT Vermont, in discussing the right of homestead in lands 
 held iu common, the Supreme Court says : " There is nothing 
 in the nature or policy of the exemption which makes it any 
 more applicable to property of which the husband or head of 
 family is the sole and absolute owner than the property in 
 which he owns an undivided share as tenant in common 
 with others."* 
 
 g 125. Homestead cannot be acquired in land held in 
 joint tenancy. — The contrary rule obtains in Wisconsin and 
 in California, where land held in joint tenancy, or tenancy in 
 common, is not susceptible of dedication to homestead uses ; 
 the homestead, within the meaning of the statute relating to 
 that subject, must be owned by the claimant in severalty. 
 "A careful examination of the homestead law seems necessa- 
 
 IWolf V. Fleischacker, 5 Cal. 244 ; G-iblin v. Jordan, 6 Cal. 417 ; so in Indiana 
 and Massachusetts, 1 Wash, on Real Prop. 338. 
 
 2 36 Vt. 254, 257. 
 
 3 Greenwood v. Maddox, 27 Ark. 648-660 ; sustaining this view are Horn v. 
 Tufts, 39 N. H. 483 ; Thorn v. Thorn, 14 Iowa 53 ; MoClary u. Bixby, 36 Vt. 
 254 ; Eohinson v. McDonald, 11 Texas 385. 
 
 4 MoClary v. Bixby, 36 Vt. 257. 
 
135 OUT OB "WHAT IT MAY BE CAEVBD. § 126 
 
 rily to lead to the conclusion that an undivided interest in real 
 estate, is not, as such, susceptible of such an ownership and 
 occupancy as the law contemplates in order to constitute a 
 homestead. The occupant need not have a perfect title ; but 
 whatever his interest may be, the occupancy, in order to con- 
 stitute a homestead, must be of some specific portion capable 
 of being set apart by metes and bounds, and thus separated 
 from that which is not exempt." "In all cases where the 
 amount of land is large enough to leave the debtor more than 
 the quantity exempt from execution, it would be practically 
 impossible to apply the provisions of the exemption law to an 
 undivided interest, and if this be so, it shows that the State 
 intends that the claim of a homestead shall be made only in 
 respect to that which the party owns and occupies in sever- 
 alty. This view of similar statutes has been taken in the 
 following cases, and it seems to us impossible to avoid that re- 
 
 § 126. No right of homestead in such lands in Califor- 
 nia. — As will have been seen, in California a homestead can- 
 not be carved out of lands held in joint tenancy or tenancy in 
 common ; or out of land held by a firm as partnership assets. In 
 the leading case of "Wolf v. Pleischacker ^ the defendant was 
 the owner of an undivided one-third in a tract of land, he 
 having jointly purchased with two others. The Court said : 
 " It required the title of three to constitute an ownership to 
 the land, and there was no part of it which he had the power 
 to set apart as his own so as to constitute a homestead. The 
 right of the other joint tenants was as great to the whole as 
 his own right. The law did not contemplate that homesteads 
 should be carved out of land held in joint tenancy or tenancy 
 
 (( Citing Wolf V. Fleischacker, 5 Cal. 244 ; Oiblin v. Jordan, 6 Cal. 416 ; Elias 
 V. Verdugo, 27 Cal. 418 ; Thurston v. Madddcka, 6 Allen 427. ' 
 
 1 A homestead right cannot be originally acquired in land held by the claim- 
 ant in common with a stranger, Thurston v. Maddooka, 6 Allen 427. 
 
 1 West V. Ward, 26 Wis. 579. 
 
 2 5 Oal. 244 ; Elias v. Verdugo, 27 Cal. 418 ; Reynolds v. Pixley, 6 Cal. 167 ; 
 Kellersberger v. Kopp, 6 Id. 565 ; Bishop v. Hubbard, 23 Id. 517 ; Ward v. 
 Huhn, 16 Minn. 161 ; Thurston v. Haddocks, 6 Allen 429 ; Kingsley v. Kings- 
 ley, 39 Cal. 665. 
 
§ 127 OUT OF WHAT IT MAY BE OARVBD. 136 
 
 in common, because it does not provide any mode for their 
 separation and ascertainment." 
 
 This doctrine was affirmed in the cases above cited, as well 
 as in Seaton v. Son.' In this last case the Supreme Court of 
 California hold that even when the joint tenant or tenant in 
 common is in the exclusive possession of the premises, he can- 
 not carve a homestead out of such laud so owned and held. 
 Although the claimant owned seventeen-eighteenths, and 
 supposed that he did, and always claimed to, own the whole. 
 
 The rule in California has been carried to the extent that, 
 where land is held by a husband, wife, and child, as tenants 
 in common, it is not subject to homestead rights.^ But in 
 New Hampshire, where the husband conveys an undivided 
 half of the homestead property, and his grantee enters into 
 possession of a portion of the land so conveyed, the homestead 
 will be limited to the portion so occupied as a homestead ; if 
 possession be not abandoned, such sale by the husband does 
 not waive the homestead right. ^ In the case of Kellersberger 
 V. Xopp,^ it was determined that a homestead right was de- 
 stroyed by a conveyance of an undivided portion, though the 
 grantor and gi-antee occupied, as their respective homes, dif- 
 ferent parts of the same building. 
 
 § 127. It seems difficult, in view of the object and pol- 
 icy of the la-w,^ to reconcile the construction of the law in 
 relation to joint tenants, and tenants in common, with that 
 which permits a mere wrongful possessor to avail himself of 
 the benefits of the homestead exemption. It seems strange 
 to say that a joint tenant, in exclusive possession, is worse off 
 than a wrongful possessor. The former has a good legal title 
 and right to occupy the whole of the land ; the latter is a mere 
 trespasser. Stranger still is the rule in the foregoing case of 
 
 1 32 Cal. 481 ; as well as in Cameto v. Dupuy, 47 Cal. 79. 
 
 2 G-iblin v. Jordan, 6 Oal. 416. On similar facts, decided the other way, see 
 case in Grreenwood v. Maddox, 27 Arkansas 660 ; see also MoClary v. Bixby, 36 
 Vt. 257. 
 
 3 Horn V. Tufts, 39 N. H. 478. 
 
 4 6 Cal. 563. By statute of 1868, homesteads may be claimed in lands held iu 
 joint tenancy. 
 
 6 Supra, Sees. 1 to 16. 
 
137 OlFT OF WHAT IT MAY BE CARVED. § 127 
 
 Giblin v. Jordan,^ where the property is owned exclusively 
 by the very persons, the constituents of a family in the full 
 sense of the word, for whose benefit, according to the univer- 
 sal opinion of all Courts, the homestead exemption law was 
 enacted. 
 
 In the case of G-reenwood v. Maddox,^ already cited, a 
 brother and two sisters were tenants in cpmmon of three hun- 
 dred and twenty acres (160 acres being the statutory limit of 
 homestead quantity). The brother's interest of one-third was 
 levied upon under execution, and an attempt made to sell that 
 interest. The Court said he (the brother) certainly had the 
 elements out of which he could cause a homestead to be 
 formed, by having the land partitioned, and fixing his dwell- 
 ing oh the share allotted to him. 
 
 By comparing the constitutions and statutes of Arkansas and 
 California, in relation to homesteads, it will be found that they 
 are essentially similar. The constitutional and statutory re- 
 quirements in both States are residence, ownership, and actual 
 occupation. Yet it is held, in the foregoing case, that where 
 lands, held in common, are levied upon, the tenant in com- 
 mon is at liberty to apply for partition, and in the meantime, 
 the execution will be stayed till such partition is effected. 
 The reason assigned in California, Ho wit: that the statute 
 has provided no mode of separation, and because a division 
 and appraisal would put the other owners to trouble — is not 
 satisfactory. The same reasons will apply to Arkansas, 
 Texas, and Vermont, yet there is a mode pointed out. The 
 common law furnishes a mode of partition in all cases. Cred- 
 itors could have no just cause of complaint where the debtor 
 is allowed the one-half or one-third of a piece of land equally 
 with him who is fortunate enough to own the whole. Of 
 course, this homestead right could not and need not affect the 
 cotenant's rights, but the right of exemption might be main- 
 tained against the balance of the world. The reason assigned 
 in "Wisconsin,^ that " where the amount of land is large enough 
 
 1 6 Cal. 416. 
 
 2 27 Ark. 660 ; Williams v. Wethered, 37 Texas 131 ; McClary v. Bixby, 36 
 Vt. 257. 
 
 3 5 Cal. 244. 
 
 4 West V. Ward, 26 Wis. 579. 
 
§§ 128-130 OUT OF WHAT IT MAY BE CARVED. 138 
 
 to leave the debtor more than the quantity exempt from exe- 
 cution, it would be practically impossible to apply the provi- 
 sions of the Exemption Law to an undivided interest," pre- 
 sents no greater diflS.culty than was presented in the Arkansas 
 case, and overcome under a statute in every way similar. 
 
 The reasoning in Calderwood v. Tevis, 23 Cal. 335 ; in 
 Brooks V. Hyde, 3T Cal. 373, and in Spencer v. Geisseman, 
 37 Cal. 99, would naturally apply with as much, if not more 
 force, to joint or common tenancies, as to a simple possessory 
 claim, or perhaps trespass. There does not seem to be any 
 good reason why the same rule should not apply in cases of 
 joint tenancies and tenancies in common, that is applied to 
 leasehold, life, or equitable estates, to wit: " any interest of 
 the debtor which might be sold on execution. ' ' ' 
 
 § 128. Satisfactory rule in Texas. — ^In the case of Smith 
 V. Deschaumes ^ the Supreme Court of Texas lays down the 
 rule which seems the most satisfactory, to wit : that a tenant 
 in common can, with the consent of his ootenant, acquire a 
 homestead in the common property against all the world ex- 
 cept his cotenant. 
 
 § 129. Separate parcels of land composing the home- 
 stead. — A great diversity of opinion exists among the au- 
 thorities as to whether the homestead right may be carved 
 out of separate and distinct parcels of land, or whether such 
 laud must form a compact body. 
 
 § 130. In Texas, the homestead in a city or tovT^n is 
 not limited to one lot. It may extend over any number of 
 town or city lots necessary to the convenience and comfort of 
 the family. The limitation is not to their number, but to 
 their value, and it* is not material how many lots were re- 
 quired for the purposes of the family, provided the lots and 
 improvements did not exceed in value the statutory amount.^ 
 ISov is it necessary that the lots shall adjoin, or be contiguous 
 I 
 
 1 Deere v. Chapman, 25 111. 610 ; Johnson v. Richardson, 33 Miss. 462. 
 
 2 37 Texas, 429, 430. 
 
 3 Hancock v. Morgan, 17 Texas 585 ; "Williams v. Jenkins, 25 Texas 279. 
 
139 OUT OF WHA^T IT MAY BE CARVED. § 131 
 
 to each other. All that is required to entitle the property to 
 exemption from forced sale is, that it should be used for the 
 convenience or uses of the head or members of the family.^ 
 But a vacant lot, perfectly distinct from the homestead, and 
 separated by a street from the residence of the family, and 
 wholly unimproved, which was never used, and was probably 
 never intended to be used as part of the homestead, was held 
 not to be- exempt from forced sale. There was nothing to as- 
 sociate it or connect it in any way with family uses.^ 
 
 A homestead in the country may consist of separate parcels 
 of land ; the two hundred acres need not lie in one body, and 
 a homestead already acquired, which is smaller than the max- 
 imum allowed by law, may be increased up to such maxi- 
 mum, and the addition, provided it be useful pr convenient 
 for the family, becomes part of the homestead, and as such 
 will be protected from forced sale.^ 
 
 § 131. May be of one or more lots, but must be occu- 
 pied and used. — In California, the homestead^ " if situate in 
 the country, may include a garden or farm ; if situate in a 
 city or town, it may include one or more lots, or one or more 
 blocks." Li either case, whether it be rural or urban, "it is 
 unlimited by extent merely." "It need not be in a compact 
 body: on the contrary, it may be intersected by streets, alleys, 
 or highways. I^T either is it circumscribed by fences merely. 
 In respect to quantity alone it is unlimited, whether in town 
 or country. In short, the only tests are use and value. 
 Whatever is used, being necessary or convenient, as a place 
 of residence, as contradistinguished from a place of business, 
 constitutes the homestead, subject to the statutory value. " ■• 
 The homestead for which the statute provides is not one in 
 name merely, but one in fact, and must be actually used as 
 such. In- the foregoing case of Gregg v. ■ Bostwick, the 
 facts are : that Gregg was married prior to 1850 ; in that year 
 
 1 Pryor v. Stone, 19 Texas 371 ; Eagland v. Eogers, 3i Texas 617. 
 
 2 Methery v. Walker, 17 Texas 593 ; Wilson v. Cochran, 31 Texas 677. 
 
 3 Campbell v. MoMamis, 32 Texas 442 ; Williams v. Hall, 33 Texas 212. 
 
 i Gregg V. Bostwick, 33 Cal. 227 ; Estate of Delauey, 37 Cal. 179 ; approved 
 in Mann v. Eogers, 35 Cal. 319, following generally the rule in McDonald v. 
 Badger, 23 Cal. 397, as to several lots. 
 
§ 132 OUT OF WHAT IT MAY BE CARVED. 140 
 
 he purchased, and moved with his family upon block eigh- 
 teen, consisting of lots one, two, three, and four ; and in 1851 
 he enclosed them, and so continued to reside until ] 857 or '58, 
 when he removed with his tamily, consisting of wife and five 
 children, from his dwelling on lot one, to a house built by 
 him on lot three ; and thereafter, in 1860, they again removed 
 to another house on the northwest corner of lot three. In 
 March, 1862, they regularly executed and recorded their dec- 
 laration of homestead — under act of 1861 requiring declara^ 
 tion and recording — claiming all of block eighteen as a home- 
 stead. At this time there were upon the block so claimed 
 eight buildings, besides the dwelling-house in which they 
 lived, to wit : on lot one a hall, or gymnasium building, or 
 public hall ; upon lot two a storehouse ; upon lot three a dwell- 
 ing-house, and upon lots four and five dwelling-houses. All of 
 these buildings were occupied by tenants of Gregg. 
 
 Held, that his homestead was limited to that portion of lot 
 three, inclosed by the fence, which his family was residing 
 upon and using as a homestead at the time the declaration 
 was made. "The premises to be described in the declara^ 
 tion are such, and only such, as the parties are residing upon 
 and using as a homestead at the time their declaration is 
 made. If more is included, it will not, for that reason, be- 
 come a part of the homestead, and, therefore, exempt from 
 execution, notwithstanding the whole may be less than five 
 thousand dollars in value." ^ 
 
 ONE OR MORE LOTS. 
 
 § 132. In North Carolina, under Art. 10 of the Constitu- 
 tion and Act of 1868-9, it has been held that a homestead 
 may be laid off in two tracts of land, not contiguous, provid- 
 ing they do not exceed the statutory value. ^ Before the Act 
 of 1868, the owner of the land was not restricted by the con- 
 stitution to the choice of his homestead to the tract upon which 
 
 1 Id. 229. 2 Martin v. Hughes, 67 N. 0. 293. 
 
141 OUT OF WHAT IT MAY BE CARVED. §§ 133-136 
 
 he resided, nor to contiguous tracts, but the same might have 
 been assigned from any land of the required value. ^ 
 
 g 133. . In New Hampshire, it has been held that a small 
 piece of land on which hay is cut for a cow kept at the house 
 where a man lives, may be regarded as a part of his home- 
 stead, though the land is separate from the house, and a mile 
 distant, provided that the house and land together do not ex- 
 ceed the statutory limit in value, and the land is used in con- 
 nection with the house to furnish necessary feed for the cow.^ 
 
 § 134. So in Vermont, where a highway ran through 
 property claimed as exempt, on one side of which was the 
 residence, and on the other a blacksmith's shop, (not used for 
 the purpose for which it was built) with a water privilege, it 
 was held that the whole propei'ty was exempt, being within 
 the statutory limit. ^ 
 
 § 135. In Alabama, a debtor may select any portion of 
 his real estate, whether in his actual possession or not, which 
 he may prefer, not to exceed the quantity allowed by law, 
 provided the selection is not unreasonable or capricious. A 
 house on one acre or less might be chosen, with other land en- 
 tirely apart from it.* 
 
 § 136.' Massachusetts seems to follow the same rule ; in 
 the case of Taylor v. Mexter,^ it was strongly intimated, 
 though it did not become necessary to determine the point, 
 that the term homestead might include land not contiguous 
 to the dwelling-house if intimately connected and u sed with 
 it, and also that the "homestead farm " might have a broader 
 signification than the term homestead used alone. The let- 
 ting of small portions of it for the season, or for short terms, 
 did not sever it from the home ; nor did the intention to sel 
 it for house lots change the character. 
 
 1 Mays and Parker v. Cotton, 69 N. C. 289. 
 
 2 Buxton V. Dearborn, 46 N. H. 43. 
 
 3 "West River Bank v. Gale, 42 Vt. 27. But see Mills v. Estate of Grant, 36 
 Vt. 269 ; True v. Estate of Morrill, 28 Vt. 672, for contrary opinion in probate 
 matters. 
 
 4 Melton v. Andrews, 45 Ala. 454. 
 5 11 Pick. 347. 
 
§§ 137-138 OUT OF WHAT IT MAY BE CARVED. 142 
 
 But a parcel of land distaut two miles and more from the 
 homestead residence of the family, used by the owner for 
 pasturing cattle belonging to himself and to others, is not 
 sufficiently connected with the homestead to be ^exempt from 
 execution.^ 
 
 i 137. Stricter rule — Must be in one body. — On the other 
 hand, a stricter rule is observable, in many of the other States, 
 than those we have been noticing. For instance, in Illinois, 
 it has been held that a ti'act of land separate from the home- 
 stead lot, and not in any way adjoining it, is not a part of the 
 homestead. In the case of Walters v. The People,^ the 
 Court said, that a tract of timber laud a mile distant trom the 
 homestead, yet necessary for fuel for the use of the farm, etc. 
 is not exempt under the statute. " The language of the act 
 seems to contemplate but one piece of land. The exemption 
 is confined to the lot of ground, and the buildings thereon oc- 
 cupied as a residence." " There is no provision in the act to 
 make up the value of the homestead to one thousand dollars, 
 by other property, where it falls short in value." But "two 
 or more adjoining lots might be occupied and used as one lot 
 for a homestead, and might be essentially, so as to be indivi- 
 sible. I am not able to 'construe the act as including sepa^ 
 rate lots and tracts, not even for the purpose of securing so 
 essential an article as fuel." 
 
 But where a householder has his dwelling-house upon a 
 town lot, and is farming the lot, together with a tract of land 
 adjoining, all in the same inclosure, it is competent for him to 
 prove that the whole premises constitute his homestead. ' 
 
 § 138. In Wisconsin, the homestead, while it may consist 
 of two or more adjoining lots, must constitute but one tract 
 or body in a reasonably compact form ; though the fact that 
 such a tract is intersected by a highway, railway, or water- 
 course, will not defeat the claim of the owner to hold it as his 
 homestead. But where one of the tracts claimed as exempt 
 lies more than a mile distant from that tract whereon the 
 
 1 Adams i;. Jenkins, 16 Gray 146. 2 18 HI. 194 ; confirmed in 21 111. 178. 
 3 Thornton v. Boyden, 31 111. 200. 
 
143 OUT OF WHAT IT MAY BE CAEVBD. §§ 139-141 
 
 homestead dwelling is, though it may be convenient or neces- 
 sary for the use of the householder, it will not be held to be 
 a part of the homestead.' 
 
 § 139. In Minnesota, a person residing upon one parcel 
 of land, and owning other parcels upon which he has never 
 dwelt, cannot claim such other parcels as exempt, not even 
 though he has them under cultivation, and they abut on his 
 actual homestead.^ 
 
 § 140. In lo-wa, while a tract of land not connected with 
 the dwelling may be held as a homestead, it must to this end 
 appear that " they are habitually and in good faith used as a 
 part of the same homestead." The mere fact that the owner 
 used, worked, and occupied the land is not sufficient.' 
 
 MISCELLANEOUS PKOVISIONS. 
 
 g 141. Homestead in United States lands. — A home- 
 stead selected out of lauds acquired from the United States 
 under the Act of May, 1862, which says : "No lands acquired 
 under the provisions of this Act shall, in any event, become 
 liable to the satisfaction of any debt or debts contracted prior 
 to the issuing of the patent therefor. ' ' 
 
 Held, that a homestead claim perfected by a patent under 
 the above act, and afterwards conveyed by the patentee to 
 another person, "is exempt from execution and sale for a debt 
 contracted by the patentee prior to the issuing of the patent, 
 and which had been reduced to judgment before the convey- 
 ance," on the ground that "under the Federal Constitution 
 Congress"is vested with the exclusive power to manage and 
 dispose of the public lands. It may dispose of them in such 
 manner, and on such terms and conditions, and subject to 
 
 1 Herrick v. Graves, 16 Wis. 166 ; Bunker v. Locke, 15 "Wis. 635 ; following 
 18 HI. 194, and 28 Vt. 672. 
 
 SKreain v. Mau, 15 Minn. 116; Oogel u. Mickaw, 11 Minn. 474 ; Kelly v. 
 Baker, 10 Minn. 154. 
 
 3 Reynolds v. Hull et al., 36 Iowa 394. 
 
§§ 142-145 OUT OP TVHAT IT MAY BE CARVED. 144 
 
 such restrictions and limitations, as in its judgment will best 
 promote the public welfare."' 
 
 § 142., Trust property cannot become homestead. — 
 
 A homestead cannot be carved out of land held in- trust by 
 the cestui que trust, though residing on the land, he being a 
 mere tenant at will of the owner of the fee.^ So a trustee 
 caimot acquire a homestead in land as against the cestui que 
 trust. ^ 
 
 § 143. Assets of a partnership not subject to homestead 
 claim. — 'So right of homestead can be acquired in property 
 which is part of the assets of a partnership.^ 
 
 § 144. The legatee of a specific bequest of real estate 
 under a -will, who has the assent of the executor to the leg- 
 acy, has not such a title as gives him a right to take a home- 
 stead therein, to the exclusion of the creditors of the testator. 
 The assent or dissent of the executor is immaterial. The leg- 
 atee takes subject to the charge that all the testator's property 
 became assets at his death for the payment of his debts. The 
 lien of a judgment follows the land into the hands of the leg- 
 atee, as they would into the hands of any purchaser from the 
 testator.* 
 
 § 145. Homestead acts apply to and affect property ac- 
 quired previous to their passage, as well as that subsequently 
 acquired.^ 
 
 1 Miller v. Little, 47 Cal. 349 ; Clark v. Bayley, Sup. ,Ct. Oregon, Dec. Term 
 1874, Cent. L. Jour. May 1, '75. 
 
 2 Sumner v. Sawtelle,'8 Minn. 309. 
 
 3 Shepherd v. White, 11 Texas 346. 
 
 IKingsley v. Kingaley, 39 Cal. 665 ; Clegg v. Houston, 1 Phila. E. 35-2. 
 
 6 Morris v. Eosa, 42 Ca. 121. 
 
 6 Cook V. MoChristian, 4 Cal. 23 ; Moss v. Warner, 10 Cal. 296. 
 
145 WHO MAY CLAIM THE EIGHT. §§ 146-147 
 
 CHAPTER VI. 
 
 WHO MAT CLAIM THE RIGHT OF HOMESTEAD. 
 
 § 146. The right of selecting a homestead, by the head 
 of the family, exists now in nearly all of the States and 
 Territories of the Union. There is a uniform agreement, 
 that the husband or father, being primarily the head of the 
 family, has, as such, the right of such selection. But accord- 
 ing to the decisions of many of the States, one may be such 
 head, however, without being either. Thus, the mother may 
 become such upon the death of the husband. So, a son, hav- 
 ing a mother, brother, or sister, or all or either, depending 
 upon him for a support, and living in a household which he 
 controls, might be such head.' 
 
 § 147. In the Civil Code of California, Sec. 1261, as 
 amended in 1874, the phrase "head of a family" is defined 
 to be — 
 
 1st. The husband, when the claimant is a m|Lrried person. 
 
 2d. Every person who has residing on the premises, 
 with him or her, and under his or her care and maintenance, 
 either — 
 
 (1.) His or her minor child, or the minor child of his or 
 her deceased wife or husband ; 
 
 (2.) A minor brother or sister, or the minor child of a de- 
 ceased brother or sister ; 
 
 (3. ) A father, mother, grandfather or grandmother ; 
 
 (4.) The father, mother, grandfather or grandmother of a 
 deceased husband or wife ; 
 
 (5.) An unmarried sistei', or any other of the relatives men- 
 
 1 Whalen v. Cadman, 11 Iowa 226 ; Parsons v. Livingston, 11 Iowa 104. 
 
 Homestead — 10. 
 
§ 148 WHO MAY CLAIM THE RIGHT. 146 
 
 tioned in this section, who have attained the age of majority, 
 and are unable to take care of or support themselves. 
 
 By Section 1260 of the same Code, any pei-soa other than 
 the head of a family may select a homestead of the value of 
 one thousand dollars. 
 
 In Arkansas, the right extends to all inhabitants, male or 
 female, being a householder or the head of a family.^ 
 
 So in Minnesota, the right extends to every resident of the 
 State, who is the owner and occupant of the land in which 
 the right is claimed. This may be a widow, or minor chil- 
 dren, who shall be occupants for the purposes of a home.^ 
 
 In Georgia, the right likewise extends to -the head of a 
 family, and in some cases, to his or her children under the 
 age of fifteen. ^ 
 
 In Illinois, it attaches to a householder with a family.* So 
 in Maine, Massachusetts, Michigan, Mississippi, Kew York, 
 New Hampshire, Ohio, Vermont, and so of the others.* 
 
 In Texas, under the Constitutions of 1845, 1866, and 1869, 
 every head of a family could acquire a homestead, and such 
 head of a family comprised a husband, with his wife living, a 
 widower or a widow, with minor children dependent upon 
 him or her, a divorced wife to whom the care of the children 
 had beeia assigned, a guardian, or any other person to whom, 
 as the head, the members of the family were entitled or 
 obliged to look for maintenance or assistance. 
 
 § 148. But a husband, -whose vrife ^vas living a-way 
 from the State, could not claim the homestead right. 
 " Though the domicile of the husband, as a general rule, is to 
 be regarded as the domicile of the wife, but this rule caimot 
 be held to admit of no exception. The husband cannot come 
 from a foreign country, acquire a homestead, and remain 
 
 1 MoKenzie v. Murphy, 24 Ark. 155. 
 
 2 Polsom V. Carli, 5 Minn. 337 ; Bevalk v. Kraemer, 8 Gal. 66, 71 ; Tillotson v. 
 Millard, 7 Minn. 520 ; Gee v. Moore, 14 Gal. 476, 477 ; Bowman v. Norton, 
 16 Gal. 217. 
 
 3 Davenport v. Alston, 14 Geo. 271. 
 
 i KitcheU v. Burgwin, 21 111. 40 ; Deere v. Chapman, 25 111. 612. 
 
 5 Silloway v. Brown, 12 Allen 30 ; Doyle v. Coburn, 6 Allen 71 ; Beeoher v. 
 Baldy, 7 Michigan 488 ; Morrison v. McDaniel, 30 Miss. 217 ; Griffin v. Suther- 
 land, 14 Barbour 458; Sears v. Hanks, 14 Ohio St. 298. 
 
147 WHO MAY CLAIM THE RIGHT. § 148 
 
 years in Texas, (his wife, meanwhile, remaining in that for- 
 eign country) and then claim a homestead in his property to 
 the exclusion of the rights of others." ' 
 
 So, in Alabama, it was held in the case of Allen v. Manasse,^ 
 that a person who has his wife and one or more children per- 
 manently residing in another State, cannot claim the exemp- 
 tion. " The exemption is not conferred on the property of 
 every person, and it seems clear that a debtor, merely as such, 
 is not considered; it is only when connected with others that 
 protection is cast around his property, and the reason is, that 
 those dependent on him may not be injured by his destitu- 
 tion. This connection, too, which creates the exemption, 
 must exist in the State. The fact that the claimant had been 
 accompanied by his son during his residence within the State 
 does not constitute them a family, within the sense of the sta1> 
 ute. To constitute such a family there must be a condition 
 of dependence, and no mere aggregation of individuals will 
 create this relation. Not can the circumstance that a family 
 exists elsewhere have any material influence on the case. 
 They are possibly dependent upon the plaintifl!, but they are 
 not a family within this State, and therefore are not within 
 the letter or spirit of the act. ' ' 
 
 Under the Act of 1833, in Alabama, to entitle a debtor to 
 its benefit, which exempts certain property from execution, 
 it was necessary that he had a family within the St^te.' 
 
 Where a debtor owned a farm, one portion of which was 
 in Alabama, and another portion in Mississippi, the house 
 in which he resided being on the Mississippi side of the 
 line ; the. levy was made in Alabama, and the question was, 
 therefore, whether the plaintiff was entitled to the protection 
 of the Act of 1838, which exempts one horse, etc., from levy 
 and sale for the use of every family. 
 
 The Court applied the rule of construction laid down in Al- 
 len V. Manasse, above cited, and held that as the debtor did not 
 have his residence within the State, but resided beyond the 
 limits of it, he was not within its protection. The Court was 
 
 1 Meyers v. Claus, 15 Texas 516. 
 
 2 4 Ala. 554 
 
 3 Ambererombie v. Anderson,, 9 Ala. 981. 
 
§§ 149-150 WHO MAY CLAIM THE KIGHT. 148 
 
 also of opinion tliat the statute of Mississippi, which is almost 
 identical with that of Alabama, could not protect him. For 
 although the horse was exempt from levy and sale in Missis- 
 sippi, yet the act of that State, being local, cannot protect 
 property beyond her jurisdiction. So the debtor between the 
 two statutes lost his horse. ^ 
 
 But under the Alabama Constitution of 1867 (Art. 14, Sec. 1) 
 a resident without a family may claim the benefit of the ex- 
 emption laws.^ 
 
 § 149. In Nebraska, in regard to a resident alien whose 
 family is not in the State, it is held that such alien is as 
 much entitled to the benefit of the law giving exemption 
 from sale of his property taken upon execution against him, 
 as a citizen ; if such alien came to the State with a settled pur- 
 pose of abandoning his foreign residence, and on his arrival 
 fixed upon the State as his home, with the intention of bring- 
 ing his family to join him. The statutes of ISTebraska, on this 
 subject, make no distinction between resident and alien citi- 
 zens ; they are alike entitled to their protection and benefits. 
 In this they are in harmony with Sec. 14, Art. 1, of the con- 
 stitution of the State, which declares that " no distinction 
 shall ever be made by law between resideiit aliens and citi- 
 zens, in reference to the possession, enjoyment, or descent of 
 property."^ 
 
 § 150. Temporary residence of husband and -wife suffi- 
 cient. — In California, it has been held in the case of Dawley and 
 Wife V. Ayers,* that, during a temporary sojourn of husband 
 and wife, who do not intend to reside permanently within the 
 State, they are entitled to the right of homestead so long as 
 they claim and use the property as such. The Court said : 
 " It appears from the record that the plaintiffs own a tract of 
 land in Missouri, incumbered by a mortgage, and that it had 
 been their intention, after making some money here — suffi- 
 
 1 Boykin v. Edwards, 21 Ala. 261. 
 
 2 "Webb V. Edwards, 46 Ala. 17. 
 
 8 The People ex rel Dobson v. MoClay, 2 Neb. 7. 
 4 23 Cal. 110. 
 
149 WHO MAY CLAIM THE RIGHT. §§ 151-152 
 
 cient at least to pay off the mortgage — to return to that State 
 to reside. (It being contended that they were not citizens, or 
 bona fide residents, therefore they were not entitled to the 
 benefits- of the homestead law.) " The homestead law is not ' 
 limited in its operations to any class, but is universal in its 
 application ; and all classes of persons are entitled to its ben- 
 efits, without any distinction as to citizenship, or capability 
 of becoming citizens. So long as the parties actually reside 
 in the State and use the property as a home, they cannot be 
 denied the benefits secured by law." 
 
 § 151. Death of -wife and departure of adult children 
 does not destroy -right. — In Massachusetts, a householder 
 ' does not lose the right of homestead by death of his wife and 
 departure of the children who have arrived at maturity, or 
 by reason of divorce. The reason assigned for the continu- 
 ance of the right is, that he may adopt other persons as mem- 
 bers of his family.^ 
 
 § 152. When a -wido-wer in Iowa, without children, ac- 
 quired real property, which he occupied as a homestead for 
 himself and his mother, who was the sole member of his 
 family, it was held that he was the head of a family within 
 the meaning of the statute, and that the premises so occupied 
 were exempt fi-om levy and sale.^ So a widower without 
 children may retain a homestead right in property which the 
 wife, holding the legal title, had (under the statute) devised 
 to another.^ 
 
 In "Wisconsin, the privilege of the homestead exemption is 
 not confined to married men. In the case of Meyers v. 
 Ford,* the plaintiff, a widower, whose children were all 
 married and away from home, had rented the premises 
 claimed as his homestead, but boarded and lodged in the 
 house ; it was held that the premises were exempt. 
 
 1 Silloway v. Brown, 12 Allen 34 ; Doyle i;. Oobum, 6 Allen 71 ; see, per con- 
 tra, Revalk v. Kraemer, 8i Cal. 72 ; see, in support of Mass. oases, 11 Iowa 226 
 and 105 ; Barry v. Leeds, 51 N. H. 253 ; Meyers v. Ford, 22 Wis. 139. 
 
 2 Whalen v. Cadmus, 11 Iowa 226 ; Parsons v. Livingston, Id. 104. 
 
 3 Stewart v Brand, 23 Iowa 477. 
 
 4 22 Wis. 139. 
 
§§ 153-155 WHO MAY CLAIM THE RIGHT. 150 
 
 The same rule is adopted in New Hampshire. A widower 
 having a minor child residing with him, and supported . by 
 him, at his own dweUing-place, is the head of a family. And 
 as such head of a family he is secured by law in the posses- 
 sion and enjoyment of, and title to the homestead right, ex- 
 empt from sale on execution. The right thus acquired is not 
 lost or destroyed by the arrival of his only child at maturity 
 and its removal from the homestead, the father still continu- 
 ing to occupy the premises as his dwelling-place and home.' 
 
 § 153. Unmarried -women as heads of families. — A wo- 
 man who was never married, and had no children, cannot 
 hold an estate of homestead in Massachusetts, although she 
 lives on the property with her mother, under Stat. 1855, C. 
 238, which enacted that "there shall be exempted to the 
 value of f 800, the homestead farm, or lot or building there- 
 on, occupied as a residence and owned by the debtor, he be- 
 ing a householder and having a family," held that "looking 
 at the provisions of this statute, it would seem quite clear that 
 they do not embrace the case of an unmarried woman having 
 no children."^ It seems difficult to reconcile the doctrine as 
 laid down in the above case, and that in 12 Allen 34, and 6 
 Allen 71, Meyers v. Ford, 22 Wis. 139, and the other cases 
 quoted supra. Sees. 151, 152 ; wherein a son living with his 
 mother is held competent to receive the protection of the ex- 
 emption laws, who certainly does not require to be shielded 
 , by force af law from creditors any more than does the daughter. 
 
 § 154. An unmarried -woman -w^ho has the care of her 
 child, a minor, is permitted to select a homestead not ex- 
 ceeding the statutory value, though she has never been mar- 
 ried, and the child be a bastard.' 
 
 § 155. A -wife having no children of her o-wn, is not, in 
 
 Georgia, the head of a family of the children of her husband by 
 a former marriage, therefore she is not entitled to the pro- 
 tection of the exemption laws.' 
 
 1 Barney v. Leeds, 51 N. H. 253. 
 2 -Woodworth v. Comstock, 10 Allen 425. 
 3 Ellis V. White, 47 Cal. 75. 
 4Lathrop v. Soldins, 45 Ga. 483. 
 
151 WHO MAY CLAIM THE RIGHT. §§ 156-159 
 
 § 156. A married -vwoman possessed of separate prop- 
 erty, residing in Alabama, who has no childreu and whose 
 husband is non-resident, has no family within the contemplar 
 tion of the statute, and is not entitled to claim the benefit of 
 the exemption law.' 
 
 § 157. Residence of the -wife alone, her husband never 
 having resided on the premises, a proper declaration having 
 been filed by her, was held in California to have been suffi- 
 cient. The Court said :^ " The point is not free froni diffi- 
 culty. It is clear that under the act there cannot be two 
 separate valid homestead claims,^ the one by the husband, 
 and the other by the wife, upon separate parcels of land ; but 
 in the absence of any showing as to the causes of the absence 
 of the husband from the homestead selected by the wife, or 
 any proof that he had a fixed home or residence elsewhere, 
 or any other family than his wife, it appears to be entirely 
 consistent with the spirit of the homestead act, that the wife 
 having a family of her own " (in this instance the family con- 
 sisted of a sister and niece whom she had raised) "shduld 
 be allowed to select and establish a homestead, by her own 
 residence upon it with her family."'' 
 
 § 158. If the husband abandons the -wife she becomes 
 then the head of the family, and may control the home- 
 stead, and exercise power over it as fully as though she were 
 a feme sole J 
 
 Abandonment and Multery on the part of the wife will 
 not divest the homestead of its character as such, nor will it 
 defeat or impair her right to it as a homestead, nor that of 
 the children.^ 
 
 S 159. The surviving -widow is, as to the homestead, as 
 
 1 Keiffen v. Berney, 31 Ala. 192. 
 
 2 Gambette v. Brook. 41 Gal. 83. 
 
 3 See Sec. 324 as to two homesteads of wife, and family, of two mairiag-es. 
 i See Tourville v. Pierson, 39 111. 446. 
 
 6 Wright V. Hayes, 10 Texas 130. 
 6 Lies V. De Diablar, 12 Cal. 329. 
 
§§ 160-161 WHO MAY CLAIM THE RIGHT. 152 
 
 much the head of the family, and entitled to control the rents 
 and profits of the same, as was the husband when living. ' 
 
 § 160. A bachelor may be head of family. — A bache- 
 lor who has living with him a mother and two sisters, all 
 over twenty-one years of age, in the same house, on land 
 which he seeks to set apart as a homestead for his and their 
 use, is a head of a family. " A husband, a widow, a guar- 
 dian, or a trustee, who represents those who are dependent 
 upon him or her for a support, and is the head of a family 
 of such dependents, is entitled to a homestead ; and there is 
 no reason why the same rule does not apply in favor of the 
 head of any other household of dependents whom it is his le- 
 gal duty " (under the particular statute alluded to) to sup- 
 port, while the relation lasts and the necessity exists. ^ 
 
 § 161. But where the bachelor has no person depending 
 upon him for support and maintenance, which the law would 
 impose upon him as a legal duty, such bachelor is not the head 
 of a family in such a sense as to make him entitled to a 
 homestead. And the Georgia statutes of 1870, " declaring a 
 single person to be the head of a family, is unconstitutional." 
 It assumes to be an act " declaratory of the meaning of the 
 constitution, whereas under our system of government, the 
 judiciary is alone empowered to interpret the constitution and 
 the laws." ' 
 
 So, an unmarried man, with whom his brother and his 
 brother's wife lived, and for whom they kept house, he fur- 
 nishing the necessaries for house-keeping and living, was held 
 not to be the head of a family within the contemplation of 
 the homestead laws.^ 
 
 In Texas, where a single man who had sometimes occupied 
 a house and lot as a sleeping place, never having servants or 
 any person connected with him residing on it, and who had 
 rented out the place when the execution was levied, it was 
 held, that he had no family claims, and the property was sub- 
 ject to forced sale.^ 
 
 1 Floyd V. Hosier, 1 Iowa 513. 3 Calhoun v. MoLendon, 42 Ga. 405. 
 
 2Marsh v. Lazenby, 41 Ga. 153. ^iWhalen v. Cadmus, 11 Iowa 226. 
 
 6 Wilson V. Cochran, 31 Texas 677. 
 
163 WHO MAY CLAIM THE RIGHT. §§ 162-164 
 
 In Indiana, where a man was shown to be over twenty-one 
 years of age, and unmarried ; he and his sister lived together 
 for several years, each owning some personal property, and 
 each by their.labor contributing towards their household ex- 
 penses, he appearing to direct and control aflairs ; under these 
 circumstances, the Court was of opinion that he was a house-^ 
 holder, and entitled to the benefits of the exemption law.^ 
 
 § 162. Under the constitution and statutes of Arkan- 
 sas, the right of homestead is not confined to married men, 
 or heads of families.^ 
 
 § 163. Members of a copartnership are not entitled to 
 the exemption of copartnership property 'under the laws of 
 Pennsylvania.' 
 
 § 164. In Connecticut a ivife may acquire a home- 
 stead, " as her separate property. " The statutes of that State 
 provide that whenever the husband's interest in the home- 
 stead or dwelling-hous.e has been levied upon, the wife may 
 tender the amount of the execution, and thereupon be con- 
 veyed to the wife, and thereafter vested in her.^ 
 
 1 Graham v. Crockett, 18 Tnd. 119; Marsh et als. v. Lazenby, 41 Ga. 153. 
 
 2 Greenwood v. Maddox, 27 Ark. 648. 
 SClegg V. Houston, 1 Phila. R. 352. 
 
 i Stat, of Conn. Chap. 73. Properly speaking, there is no provision for home- 
 stead, in the general acceptation of the term, in Connecticut. 
 
§§ 165-166 HOW IT MAY BE ACQUIRED. 154 
 
 CHAPTER VII, 
 
 HOW IT MAT BE ACQUIRED. 
 
 § 165. General rule — Actual residence by family nec- 
 essary. — While the mode and manner of acquiring the right 
 of homestead vai'ies in the several States, one rule seems to 
 be very general, which is, that to impress the premises with 
 the legal attributes of a homestead — besides ownership — there 
 must be actual residence and occupation by the family.^ 
 
 § 166. Certain steps must be taken. — In many of the 
 States the right of homestead attaches, by occupancy, without 
 any formal act of the proprietor of the home — the statutes 
 confer the right as an incident to the estate. But in a num- 
 ber of the States, the claimant is required, by enactment, to 
 take certain steps, such as declaration and recording, in order 
 to be entitled to the benefits of the exemption. When such 
 is the statutory requirement it must be pursued before levy, 
 or sale, or conveyance by the husband alone, or the right may 
 be lost. The right of the homestead exemption being the 
 
 1 Moss V. Warner, 10 Gal. 296 ; Cook v. MoChristian, 4 Cal. 26 ; Christy v. 
 Dyer, 14 Iowa 438 ; Charless v. Lamberson, 1 Iowa 435 ; People v. Plumsted, 2 
 Mich. 465 ; Tillotson v. Millard, 7 Minn. 513 ; Coolidge v. Wells, 20 Mich. 79 
 Morgan v. Stearnea, 41 Vt. 398 ; Hoitt v. Webb, 36 N. H. 158 ; Horn v. Tuft, 
 39 N. H. 484 ; AUman v. Gann, 29 Ala. 240 ; Brown v. Martin, 4 Bush (Ky.) 47 
 Barle v. Earle, 9 Texas 630 ; Philleo v. Smally, 23 Texas 498 ; Prior v. Stone, 
 19 Texas 371 ; Franklin v. Coffee, 18 Texas 413 ; Austin v. Swank, 9 Ind. 112 
 Robson V. Lindrum, 47 Ga. 250 ; Morrison v. MoDaniel, 30 Miss. 213, 287; Kos- 
 ter V. Mo Williams, 41 Ala. 302 ; Prescott •</. Prescott, 45 Cal. 58 ; Kix v. Mc 
 Henry, 7 Cal. 91, Id. 245 ; Elmore v. Elmore, 10 Cal. 226 ; Wisner v. Pamham, 
 2 Mioh. 472 ; Dyson v. Shelay, 11 Mioh. 527 ; Tourville v. Pearson, 39 111. 447 
 Lee U.Miller, 11 Allen (Mass.) 37; Elston v. Kobinson, 23 Iowa 208, 14 Id, 
 438, 527, 523 ; Kresin v. Mau, 15 Minn. 116 ; Brown v. Martin, 4 Bush (Ky.) 47 
 True V. Morrill, 28 Vt. 672 ; Norris v. Moulton, 34 N. H. 392 ; Lawton v. Bruce, 
 39 Me. 484. 
 
155 ^ HOW IT MAY BE ACQUIRED. §§ 167-169 
 
 creature of constitutional provision, or statutory enactment of 
 the particular State, the person claiming its protection must 
 pursue the requirements of the law under which the exemp- 
 tion is claimed.^ 
 
 § 167. States in vrhich formal act of selection is neces- 
 sary. — Besides occupancy and ownership, or some-right or 
 title to the land, in order to be protected in the right, it is 
 necessary to make selection and record of the homestead in 
 the States and Territories of Alabama, California, Colorado, 
 Georgia, Idaho, Indiana, Kentucky, Maine, Massachusetts, 
 Michigan, Ifevada, 'Sew Jersey, New York, Virginia, "Wash- 
 ington Territory, and Western Virginia. 
 
 § 168. States and Territories in ^vhich no formal act of 
 selection is necessary. — 'So formal act of selection is neces- 
 sary, beyond right to the land, and occupancy by the family, 
 in the States and Territories of Arizona, Arkansas, Connecti- 
 cut, Dakota, Florida, Illinois, Io\Ya, Kansas, Louisiana, 
 Maryland, Minnesota, Montana, Mississippi, Missouri, Neb- 
 raska, 'Sew Hampshire, I^orth Carolina, Ohio, Pennsylvania, 
 South Carolina, Tennessee, Texas, Utah, Vermont, "Wyoming, 
 and "Wisconsin. 
 
 § 169. The modes of acquiring homesteads in the var- 
 ious States and Territories, are as foUo-ws : — Is Alabama, 
 the exemption is dependent on the fact that the family has 
 the home in actual use, and selected by the head of the 
 family.^ 
 
 In Arizona, any owner may select from his or her property 
 a quantity of land, with the dwelling-house thereon, not ex- 
 ceeding the statutory value, as a homestead. I^To formality 
 
 1 Dyson *. Shely, 11 Mich. 527 ; Slanker v. Beardsly, 9 Ohio St. 589 ; People v. 
 Plumsted, 2 Mich. 465, 469 ; Front v. Shaw, 3 Ohio St. 270 ; Manning v. Done, 
 10 Rich. (S. C. Law) 395 ; Pinkerton v. Tumlin, 22 Ga. 165 ; Davenport v. 
 Alston, 14 Ga. 271 ; Hersohfeldt v. George, 6 Mich. 456 ; Beecher v. Baldy, 7 
 Mich. 510; Crowi^-Whitworth, 20 Ga. 38, 2 Grant's Cases 197; Lawton v. Bruoe, 
 39 Me. 484 ; Clark v. Pattee, 15 Gray 21 ; Helfensteiu v. Gore, 3 Iowa 292 ; 
 Brown v. Martin, 4 Bush (Ky.) 47. 
 
 2 Koster v. Mo Williams, 41 Ala. 302 ; af&rming principles announced in All- 
 man V. Gann, 29 Ala. 240. 
 
§ 169 HOW IT MAT BE ACQUIRED. 156 
 
 is necessary in order to secure the exemption. The house- < 
 holder may notify the officer at the time of the levy of what 
 he claims as homestead.^ 
 
 In Arkansas, the constitutional requirements are residence, 
 ownership, and actual occupation.^ 
 
 In California, premises do not assume the homestead 
 character until there has been actual residence thereon by the 
 family. It must be resided upon and used as such at the 
 time that the declaration of homestead is made.^ The dec- 
 laration may be made by "the husband and wife, or either 
 of them, or other head of family, and acknowledged as a 
 grant of real property, and recorded in the office of the re- 
 corder of the county in which the land is situated ; which 
 statement must show that the person making it is residing on 
 the land, and claims it as a homestead." * 
 
 In Colorado, the claimant is required, in order to be en- 
 titled to the benefit of the act, to have written in the margin 
 of the record of his recorded title, the word "Homestead," 
 and it shall only be exempt while occupied as such by the 
 owner or his family.^ , 
 
 In Connecticut, strictly speaking, there is no law of home- 
 stead other than the provision, " that whenever a husband and 
 wife shall have a joint or separate title to the whole or any 
 part of the homestead, or dwelling-house, and lot, on which 
 the same is situated, and any creditor of the husband shall 
 have levied an execution upon the husband's interest therein, 
 the wife may tender to the creditor the amount of his execu- 
 tion, and the interest so levied upon shall be conveyed to the 
 wife, and thereafter vested in her," and shall not be liable for 
 debts of the husband.^ 
 
 In Dakota, the law provides that the homestead may be 
 acquired by marking off by fixed visible monuments embrac- 
 
 1 Comp. L. of Arizona, Chap. 37, See. 1. 
 
 2 Gould's Digest 68, Sec. 29, Ark. Code 481 ; Greenwood v. Maddox, 27 Ark. 
 649. 
 
 3 Gregg V. Bostwick, 33 Cal. 227 ; Benedict v. Bunnell, 7 Cal. 245 ; Holden v. 
 Finney, 6 Cal. 234. Under the Act of 1851, up to the amendatory Act of 1860, 
 no record notice was required. 
 
 4 Cal. Code, Sees. 1262, 1263, and 1264. 
 
 5 Laws Colorado T., Jan. 10, 1868. 
 
 6 Stat, of Conn. 1869, Chap. 73. See Eev. Stat, of Conn. 1866, p. 302. , 
 
167 HOW IT MAY BE ACQUIRED. § 169 
 
 ing the dwelling. The description of the homestead, certified 
 and acknowledged by the owner, shall be recorded by the 
 register of deeds of the proper county, in a book to be called 
 the "Homestead Book," shall be exempt so long as it retains 
 the character of homestead, but a failure to record it as such 
 homestead does not render it liable to execution. It may be 
 claimed and selected when execution is levied upon the prem- 
 ises, and becomes the duty of the officer to set apart the 
 dwelling-house and lot of the statutory value. ^ 
 
 In Florida, a homestead, to the extent of 160 acres of land 
 in the country, or half an acre within the limits of any incor- 
 porated city or town, owned by the head of a family residing 
 in the State, and the improvements on such real estate, may 
 be acquired by occupancy, if in a rural district, must be culti- 
 vated or put to other productive use to the extent of, at least, 
 five acres. ^ 
 
 In Georgia, the requirements of the law — Act of 1868 — 
 are that every person seeking the benefit of the homestead 
 exemption, provided for in the act, shall make out a schedule 
 and description to be approved by the ordinary, and when so 
 approved to be recorded in the clerk's office of the Superior 
 Court. ^ 
 
 In Idaho, the claim must be made in writing, the premises 
 particularly described, and the declaration executed in the 
 same manner as a conveyance of real estate, and recorded.^ 
 
 In Illinois, the right of homestead will not arise froni 
 purchasing property for a homestead, but from actual occu- 
 pancy as such, and this occupation must be by the hus- 
 band and family.^ The statute does not require the hus- 
 band or wife to do anything further in order to create the ex- 
 emption ; the law' confers that right.* 
 
 1 Laws of Dakota, 11 Sess. January 14th, 1875, p. 164. 
 
 2 Const, of Fla. 1868, Art. 10, Sees. 1, 2, 3. Bush's Digest, 325, Laws 1866, 
 1869, 1871, and 1872. 
 
 3 Const, of Ga. 1868, Code 2013 ; Bearing v. Thomas, 25 Geo. 224 ; Pinokerton 
 V. Turlin, 22 Ga. 165 ; Eobson v. Lindrum, 47 Geo. 250; Davenport u. Alston, 
 14 Ga. 271. 
 
 4 Laws of Idaho, Feh. 2d, 1864. 
 
 5 TouTville V. Pieraon, 39 111. 447. 
 
 6 Pardee v. Llndley, 31 111. 187. 
 
§ 169 now IT MAY BE ACQUIEBD. ' 168 
 
 ♦ 
 
 In Indiana, selection must be made by the head of the 
 family of the property which is proposed to be held exempt.^ 
 
 In Iowa, the homestead claimant may make his selection, 
 and have it recorded in the registry of deeds. This may 
 be done by either of the spouses. If no selection is made, 
 an officer having an execution must cause it to be done be- 
 fore levy. There must be actual occupancy:^ 
 
 In Kansas, the homestead may be selected by any head of 
 family, out of lands occupied as such ; if not so selected by 
 such head of family before levy, it may then be claimed by 
 the husband, wife, agent, or attorney, or other head of family.' 
 
 In Kentucky, there must be actual use, purpose, and inten- ■ 
 tion of the claimant, to use and enjoy the property sought to 
 be exempted as a home, by himself and family.'' 
 
 In Louisiana, the prerequisites of the right of acquisition 
 are ownership, actual residence, family ties, or persons de- 
 pendent on claimant for support.^ 
 
 In Maine, the claimant must file a certificate ox selection 
 in the proper record ofiice, containing a description of the 
 premises, and the family must be in the actual possession ; 
 provided, however, that the claimant is not the owner of an 
 exempted lot purchased from the State. ^ 
 
 In Maryland, actual bona fide residence and occupation of 
 the claimant are the only essentials to the acquisition. 'So 
 other formalities are necessary till the issuance of an execu- 
 tion against the property.^ 
 
 In Massachusetts, there must be selection, recording, and 
 actual residence at the time the declaration is made.^ 
 
 In Michigan, the claimant must be the owner and occu- 
 pant of the land, and a formal act of selection made before 
 \e\y and sale.' 
 
 1 Austin V. Swank, 9 Ind. 112 ; Haven v. Melogue, 9 Ind. 196. 
 
 2 Charless v. Lamberson, 1 Iowa 435 ; Blston v. Robinson, 23 Iowa 208. 
 8 General Laws of Kansas, 1868, 473; Const. Kansap, Art. 15. 
 
 i Myers' Supplement, 714 ; Brown v. Martin, 4 Bush (Ky.) 47. 
 
 6 Stat, of La. 333, Sec. 1691 et seq. ; Eev. Stat. 1870, Arts. 644, 645. 
 
 6 Lawton v. Bruce, 39 Maine 484. 
 
 7 Code Slip. 1861-7 and 1870, Sec. 6. 
 
 8 Gen. Staf. C. 104, Sec. 2 etc. ; Lee v. Miller, 11 Allen 37. 
 
 9 Stat. 1848, Const. 1850, Stat. 1861 ; Wisner v. Famham, 2 Mich. 472 ; 
 People u. Plumstead, 2 Mich. 465 ; Dye v. Mann, 10 Mich. 298. 
 
159 HOW IT MAY BE ACQUIRED. § 169 
 
 In Minnesota, no other requirements are prescribed than 
 that of residence and occupation, in order to acquire the right 
 of homestead.^ 
 
 In Montana, the law provides for selection and recording, 
 but failure to select and record does not make the homestead 
 liable. It must be owned and occupied.^ 
 
 In Mississippi, the only requirements are that the premises 
 be of the prescribed value and size — in the country, 240 acres— 
 and occupied as a residence in order to secure exemption from 
 forced sale.' 
 
 In Missouri, no formality is required beyond ownership 
 and occupation by the family of any resident of the State, not 
 to exceed 160 acres in the country, and the prescribed value, 
 including improvements. In towns having a population of 40,- 
 000 and upwards, not to exceed eighteen square rods of a 
 certain value, and in towns of less than 40,000, thirty square 
 rods, not to exceed the statutory value. ^ 
 
 In !N^ebraska, if no selection is made by the householder, 
 or head of family before levy, selection can then be made of 
 the prescribed quantity with the improvements.' 
 
 ^In Nevada, in order to secure the right of homestead, the 
 husband and wife, or either of them, or other head of family, 
 must sign, acknowledge, and record a declaration that they 
 are actually residing on the premises, particularly describing 
 .the same, and intend to hold and claim the same as such 
 homestead.* 
 
 In New Hampshire, no formal act of setting apart the 
 homestead is necessary ; the right attaches by occupancy 
 and ownership, not exceeding the amount exempt by law.' 
 
 In New Jersey, it is necessary that the claimant should 
 own and occupy the premises with his family. There must 
 
 1 Tillotson V. Millard, 7 Minn. 517 ; Kresin u. Mau, 15 Minn. 116 ; Cogel u. 
 Mickow, 11 Minn. 475. 
 
 2 Stat. 1871-2, 84. 
 
 3 Laws of 1865 ; Morriaon u. MoDaniel, 30 Miss. 213. 
 
 4 Stat, of Missouri, 1870 p. 859. 
 
 5 Laws of Nebraska, 1873 p. 616. 
 
 6 Compiled Laws of Nevada, p. 60. 
 
 7 Norris v. Moulton, 34N. H. 392 ; Hoit v. "Webb, 36 N. H. 158 ; Horn v. Tuft, 
 39 N. H. 484. 
 
§ 169 HOW IT MAY BE ACQUIRED. 160 
 
 be selection or declaration of the claim of homestead by the 
 claimant of record ; either the conveyance by which the title 
 to such land is acquired must show such intention, or a notice 
 of such claim to so hold must be executed and acknowledged 
 by the person owning the property, containing a full descrip- 
 tion, recorded in the office of the clerk of the county in 
 which the property is situated.^ 
 
 In Kew Yokk, the homestead statute is similar to that of 
 Massachusetts ; either the deed of the owner must disclose the 
 intention to claim the premises as a homgstead, or he is re- 
 quired to make a declaration by an instrument in writing, ex- 
 ecuted and acknowledged, describing the premises occupied 
 as a residence, and filed and recorded in the clerk's office of 
 the proper county.^ 
 
 In IsToRTH Carolina, every resident may claim a homestead, 
 provided the claimant occupies the same "as an actual" 
 homestead. The exemptioner is not obliged to take any steps 
 in order to secure the protection of the law before levy, 
 and then, if not claimed, the officer having an execution 
 against the debtor is commanded to appoint appraisers to set 
 off the same ; the law also provides that the claimant may ap- 
 ply to the justice of the peace, before levy, to set off the 
 same.' 
 
 In Ohio, no formal act is necessary ; the selection may be 
 made at any time, by either husband or wife, or other head 
 of family, before sale under execution.^ 
 
 In Pennsylvania, the debtor exercises the right to claim 
 the homestead when levy is made, to the officer having the 
 execution, and if there is neglect to claim it, then he is held 
 to have waived the right. ^ 
 
 In South Carolina, application may be made to the officer 
 having an execution against the property to have the exemp- 
 tion sfet off.^ 
 
 1 Nixon's Digest Laws N. J., 1868, p. 859. 
 
 2 Bev. Stat, of N. Y. ; 4 Edmonds' Stats. 633 (Act of 1850). 
 
 3 Laws of N. C. 1868 and '69, 331, Const. Ait. 10, Sec. 2. 
 i Eev. Stat, of Ohio 1145, Act of March 23, 1850. 
 
 5 Bowman v. Smiley, 31 Penn. 225 ; Miller's Appeal, 16 Penn. St. 300 ; Bob- 
 son's Appeal, 25 Penn. 234. 
 
 6 Manning V. Dove, 10 Rich. 403 ; Const. 1868, Art. 2, Sec. 32. 
 
161 HOW IT MAY BE ACQUIRED. § 169 
 
 In Tennessee, no steps need be taken by the bead of the 
 family, in order to secure the exemption. When an execu- 
 tion against the property of a debtor is placed in the bands of 
 an officer, it becomes his duty first to select three disinterested 
 freeholders, who shall set apart the premises occupied, of the 
 prescribed value.' 
 
 In Texas, occupatioil of premises by any head of fam- 
 ily is a sufficient dedication of the premises to homestead 
 purposes, if within the prescribed value, when appropriated 
 to such use.^ 
 
 In Utah, no formality is necessary in acquiring the home- 
 stead — it is sufficient that it be occupied by the claimant and 
 his family.^ 
 
 In Virginia, either the deed through which the land is 
 claimed must specify that it is intended to claim such prem- 
 ises as a homestead, or a declaration filed for record. But the 
 failure to so select the homestead does not prevent the claim- 
 ant fi'om invoking the protection of the law against an at- 
 tempted levy and sale.* 
 
 In Vermont, the essential condition of the acquisition of a 
 homestead is ownership, or right and occupancy by the 
 family.^ 
 
 In Washington Territory, in order to acquire the right, 
 the word "Homestead " must be inscribed on the margin of 
 the claimant's recorded title. ^ 
 
 In Western Virginia, there must be dedication and writ- 
 ten record of the homestead by the head of family residing 
 within the State.'' 
 
 In Wisconsin, ownership and occupation by the family are 
 the only essential requirements of the right of exemption of 
 the homestead.' The exception extends also "to any person 
 
 1 Shankland's Stats. 117. 
 
 2 Paschal's Laws of Texas, 1870. 
 
 3 Laws of Utah, 1870, 58. 
 
 i Acts of Vir. 1866 and 7, p. 926, and Acts 1869 and '70, 198, Acts 1871 and '72, 
 p. 22. 
 
 B Morgan v. Steams, 41 Vt. 398 ; True v. Morrill, 28 Vt. 672. 
 ■ 6 Gen. Laws "Waeli. Ter. 1869, Id. '71, Chap. 31, See. 333. 
 
 7 Stats. 1872-3, 554-9. 
 
 8 Kev. Stat. "Wis. 1858, Sec. 23, Chap. 134. 
 
 Homestead — 11. 
 
§§ 170-171 HOW IT MAY BE ACQUIRED. 162 
 
 owning and occupying any dwelling-house on land not his own, 
 wMch land he shall be rightfully in possession of by lease or 
 otherwise.' 
 
 In Wyoming, the homestead is exempt so long as it is actu- 
 ally occupied by the family. 'No selection is required.^ 
 
 In the States of Delaware, Oregon, and Rhode Island 
 there is no homestead exemption, nor in the Territory of 
 New Mexico. 
 
 § no. Residence necessary -when notice filed. — The 
 
 homestead for which the law provides is not one in name 
 merely, but one in fact ; ' therefore it is necessary, as a gen- 
 eral rule, (to which there are a few exceptions) that when rec- 
 ord notice is required to be filed, the person filing the decla- 
 ration should actually reside upon the premises at the time of 
 filing such notice.^ Making and recording a declaration of 
 homestead, and beginning to build a house on the land de- 
 scribed in the declaration, will not entitle one to an estate of 
 homestead, therein until an actual hving upon the premises. 
 Even the fact that a house which had been on the land, pre- 
 viously, and which had been occupied for a shoi-t time, for 
 temporary purposes, harvesting a crop, would not be within the 
 requirements of the law.^ A mere intention to occupy, though 
 subsequently carried out, is not sufficient." 
 
 § 171. Intention to use land bought as a homestead at 
 
 some future time, but which has no dwelling upon it, and has 
 never been used as a homestead, is not sufficient, and does 
 not exempt the land from levy and sale.^ Thus, in Kentucky, 
 
 1 Laws of Wis. 1858, Sec. 28, Chap. 134. Amended 1867, Chap. 172. 
 
 2 Laws of Wyoming, 1869, 305*. 
 
 3 Gregg v. Bostwiok, 33 Cal. 227 ; Benedict v. Bunnell, 7 Cal. 245 ; Holden v. 
 Pinney, 6 Cal. 234. 
 
 i Presoott V. Presoott, 45 Cal. 58 ; Gregg v. Bostwiok, 33 Cal. 220. 
 
 5 Coolidge v. Wells, 20 Mich. 79 ; Lee v. Miller, 11 Allen 37 ; Lawton v. 
 Bruce, 39 Me. 484. 
 
 6 Christy v. Dyet, 14 Iowa 438 ; Elston v. Eohinson, 23 Iowa 208 ; Cole v. 
 Gill, 14 Iowa 527 ; Williams v. Sweetland, 10 Iowa 51 ; Chailess v. Lamberson, 
 1 Iowa 435 ; Tourville v. Pearson, 39 111. 447. 
 
 7 Coolidge v. Wells, 20 Mich. 79 ; Christy v. Dyer, 14 Iowa 438 ; Williams v. 
 Sweetland, 10 Iowa 51 ; Coleii. Gill, 14 Iowa 527 ; Charlessu. Lamherson, 1 Iowa 
 435 ; Davis v. Kelly, 14 Iowa 523 ; Tourville v. Pierson, 39 111. 447. 
 
163 HOW IT MAY BE ACQUIRED. § 172 
 
 when fhe claimant " neither had his home upon the premises, 
 nor at the time of the levy and sale had treated the prop- 
 erty as his place of residence, or by any consistent act, or 
 otherwise, manifested any intention to actually use the 
 property as a home for himself and family," it was held 
 that no right of exemption existed ; that the right of ex- 
 emption of a homestead " depends upon the present and 
 actual purpose and intention "of the claimant to use and enjoy 
 the property sought to be exempted as a home for himself 
 and family, and that right does not exist when the residence 
 of the claimant and family is permanently located elsewhere. "* 
 In Mi chigan, under the statutes of 1848, and the constitu- 
 tion of 1850, and the amendatory act of 1861, it has been re- 
 peatedly held that a party cannot legally claim the homestead 
 exemption, unless he occupies the premises when the formal 
 act of selection is made, and this must be done before levy 
 and sale; it cannot be done subsequently, such being the con- 
 dition upon which the law protects a debtor in the enjoyment 
 of his homestead.^ But it was held in the case of Thomas w. 
 Dodge, ^ that it did not require any action on the part of the 
 homestead owner to render a village house and lot, worth less 
 than the statutory value, exempt from execution, so far agree- 
 ' ing with the rule in Beecher v. Baldy,^ in the constitutional 
 protection thrown around the home. 
 
 g 172. Cannot be acquired by filing notice after re- 
 moval. -j-Thus in California, where, atone time, the husband 
 and wife actually resided on the premises claimed as a home- 
 stead, subsequently they removed therefrom, at the husband's 
 request, she going to reside with her brother ; in the mean- 
 time the premises were rented out," aud subsequently con- 
 veyed by the husband in fee, but no consideration passed, the 
 grantee in the deed received the same, for the purpose of 
 disposing of the property and giving the proceeds of the sale 
 to the husband ; subsequent to the making of the deed, and 
 
 1 Brown v. Martin, 4 Bush (Ky.) 47. 
 
 2 People V. Plumstead, 2 Mich. 465 ; Wisner w . Farnham, 2 Mich. 472 ; Frank- 
 lin V. Coflfee, 18 Texas 413. 
 
 3 8 Mioh. 51. 
 i 7 Mich. 488. 
 
§§ 173-174 HOW IT MAY BE ACQUIRED. 164 
 
 before sale, the wife made and filed a declaration of home- 
 stead on the premises. Held, " that in order to impress the 
 character of a homestead upon premises, they must be such 
 in fact, by occupation at the time the declaration is filed. 
 Under the circumstances appearing, the declaration of the 
 wife, claiming the premises in controversy as a homestead," 
 could not be supported.^ This use must be actual, not con- 
 structive — that is, actual occupancy when the selection is 
 made — occupation by a tenant will not do. But when actual 
 dedication and selection has been made, according to law, a 
 subsequent removal does not, in all cases, destroy the estate 
 created.^ 
 
 § 173. The length of time of occupancy required to es- 
 tablish a homestead right in premises may be very short. In 
 Illinois, where the head of a family purchased a tract of land 
 and went into possession, moving with his family into a house 
 on the premises, (then occupied by his grantor) occupying 
 part of the house and a shanty which he had built ; in less 
 than a month his wife was forced to leave him on account of 
 his cruelty ; it was held that he had acquired a homestead 
 right in the premises ; and that the fact that after his wife 
 had left him he removed from the premises and lived at a 
 neighbor's, was not sufficient to destroy the right thus ac- 
 quired.^ 
 
 § 174. Time — Act of moving in — Presence of family 
 not necessary. — While it is true that the intention to occu- 
 py premises as a homestead is not sufficient to invest it with 
 that character, under some circumstances the homestead 
 character may attach without actual occupancy by th-e family. 
 Thus, it was held that the homestead character attached to 
 premises which have been purchased for that purpose, and 
 
 1 Presuott V. Presoott, 45 Cal. 58 ; Gregg v. Bostwick, 33 Cal. 220. 
 - 2 Holden v. Pinney, 6 Cal. 235 ; Benedict v. Bunnell, 7 Cal. 245 ; Gary v. 
 Ties, 6 Oal. 625 ; Wisner v. Farnham, 2 Mich. 472 ; Philleo v. Smalley, 23 
 Texas 498 ; Morris v. Moulton, 39 N. H. 392 ; Myers u. Claus, 15 Texas 516 ; 
 True V. Morrill, 28 Vt. 672 ; "Williams v. Sweetland, 10 Iowa 435 ; Tourville v. 
 Pierson, 39 111. 447 ; Franklin v. Coflfee, 18 Texas 413. 
 
 3Bonnell v. Smith, 53 111. 375 ; Melton v. Andrews, 45 Ala. 454, 
 
165 HOW IT MAY BE ACQUIRED. § 175 
 
 not being quite ready for occupancy, the debtor placed his 
 goods in the house, and took board with his family at a hotel 
 in the vicinity till some repairs were completed. It was fur- 
 ther held that the homestead character attached to the 
 premises from the time of placing the effects in the house, 
 and that such homestead was exempt fromiHability for a debt 
 contracted intermediate the moving of the goods into the 
 house, and the actual occupation, or the presence of the fam- 
 ily therein.^ 
 
 In Ifew Hampshire, while a debtoi" was in the act of moving 
 into a dwelling-house with a design to occupy it as the fami ly 
 homestead, and having no other real estate, the plaintiff, his 
 creditor, attached it upon mesne process, and the debtor 
 completed the moving in on the next day, and thereafter oc- 
 cupied it as a family home. The plaintiff' subsequently ob- 
 tained judgment in the suit, and extended his execution upon 
 the whole property ; although application was made to the offi- 
 cer, as required by statute, he refused to set off a homestead. 
 It was held that the property must be regarded as the family 
 homestead at the time of the attachment, and even though it 
 exceeded in value the amount exempted by law ; that there- 
 fore the writ was wholly void as against the defendant 
 debtor.^ 
 
 § 175. Temporary oooupation, with full intent to 
 make permanent home, sufficient. — In Texas, while there 
 must be a home, or residence, whether house, or cabin, or 
 tent, to constitute a homestead within the protection of the 
 law, it would appear that preparation to improve with the 
 view to occupation will suffice. But that preparation must 
 be of such a character, and to such an extent, as to manifest 
 beyond a doubt the intention to complete the improvements, 
 and reside upon the place as a home. In such case, it must 
 be shown how and when the building materials and the lots 
 were destined for homestead uses.^ 
 
 1 Neal V. Coe, 35 Iowa 407. 
 2Pogg V. Fogg, 40 N. H, 284. 
 
 3 Franklin u. Coffee, 18 Texas 413 ; Anderson v. McKay, 30 Texas 186; see 
 also PhiUeo v. Smalley, 23 Texas 498 ; Prior v. Stone, 19 Texas 371 ; Earle v. 
 
§ 176 HOW IT MAY BE ACQUIRED. 166 
 
 § 176. When the selection may be made. — A home- 
 stead can be acquired by acts done after levy and before sale 
 on execution, where there is no fraud, and the question of 
 homestead must be tried upon the facts existing at the time 
 of sale.' In Arkansas, it has been held that a party hav- 
 ing two residences, on separate tracts of land, both of which 
 had been levied upon, may, unless previous selection had 
 been made, elect, even on the day of sale, which of the two 
 places he recognizes as his homestead, and the selection then 
 made will suffice to withdraw the place designated from sale, 
 to the extent authorized by the statute.^ On the other hand, 
 in Alabama, and in Michigan, it has been held that the home- 
 stead exemption must be claimed at the time of a levy, or 
 after, and before sale, even if the defendant had no knowl- 
 edge of the sale,^ and must have been set apart as a home, 
 and for the purposes of the owner, or his family.* 
 
 The homestead may be claimed after a judgment in per- 
 sonam, against the husband, is docketed on foreclosure of 
 mortgage given to secure the debt for which the mortgage 
 was given, but which does not cover the homestead, if the 
 declaration of homestead is filed and recorded before the bal- 
 ance is reported of the sale of the property, and docketed ; 
 on the ground that when a judginent in personam is rendered 
 for the amount due, and directing the sale of the mortgaged 
 premises, and an application of the proceeds to the payment 
 of the judgment, the judgment, even if docketed, does not 
 become a lien on the real property of the defendant, until the 
 mdrtgaged property has been sold by the sheriff, and the 
 balance, if any, reported by him and docketed, and then 
 
 Earlej 9 Texas 63p. Contrary rule obtains in Iowa, see Charless v. Lamber- 
 son, 1 Iowa 435, and Wisner v. BaS-nham, 2 Mich. 472 ; see the nice distinction 
 drawn in Williams v. Sweetland, 10 Iowa 51, and Holden i>. Pinney, 6 Cal. 235. 
 
 1 Stone u. Darnell, 20 Texas 11 ; Bell v. Davis, 42 Ala. 460 ; Hawthorne v. 
 Smith, 3 NeT. 182 ; Simpson v. Simpson, 30 Ala. 225 ; Bliss v. Johnson, 40 Ga. 
 297. 
 
 2 Tomlinson v. Swinney, 22 Ark. 400 ; Melton v. Andrews, 45 Ala. 454. 
 
 3 Bell ■(). Davis, 42 Ala. 460 ;. Simpson u. Simpson, 30 Ala. 255; Gresham v. 
 "Walker, 10 Ala. 370 ; Herschfeldt v. George, 6 Mich. 457. The point was not 
 necessary to the decision of the case. People v. Plumstead, 2 Mioh. 465. 
 
 4 Dyson V. Shelby, 11 Mich. 527 ; "Wisner i). Farnham, 2 Mich. 472. 
 
167 HOW IT MAY BE ACQUIRED. § 176 
 
 only for such balance.^ In IS'evada, the selection of a home- 
 stead may be recorded as such at any time before actual sale 
 under execution ; that is, where the property so selected pos- 
 sesses the characteristics appertaining to such homestead, 
 even though an attachment has been levied upon the prop- 
 erty prior to such selection.^ 
 
 1 Culver V. Rogers, 28 Cal. 525. In California, the Gen. Statutes declare that 
 a judgment is a lien upon all the property of the judgment debtor, within the 
 county in which the judgment may be docketed, or a transcript thereof filed. 
 Code Civil Procedure, Sec. 671. But statute regulating proceedings on fore- 
 closure of mortgage provides that when deficit, after sale is docketed, becomes 
 a lien upon all real estate. Practice Act, amended in 1861, p. 306. 
 
 2 Hawthorne v. Smith, 3 Nev. 182. 
 
§§ 177-178 FROM WHAT IT IS EXEMPT. 168 
 
 CHAPTER VIII. 
 
 FROM WHAT. THE HOMESTEAD IS EXEMPT. 
 
 § m. The homestead right is favored by the Courts, 
 
 and will be defended against all assaults, and fraudulent 
 schgines to defeat it. If a deed to the homestead be deliver- 
 ed to the purchaser before the purchase money is paid, and 
 the purchase money is then attached in a suit brought by the 
 real, though not the ostensible purchaser, equity will compel 
 the cancelation of the deed so obtained.^ 
 
 S 178. The homestead, in many of the States, is ex- 
 empt from the lien of a judgment. — Thus, in California, 
 it has been held that a judgment cannot become a lien upon 
 the homestead. " It can become a lien only upon the real 
 property of the judgment debtor, which is not exempt from 
 execution."^ 
 
 In Iowa, even where the homestead premises acquired be- 
 fore the debt was contracted were sold, and the debtor trans- 
 ferred his homestead to other property of less value than the 
 former homestead, acquired after the debt was created, all of 
 which was done before judgment was rendered upon the 
 debt, it was held that the new homestead was exempt from 
 judicial sale from the satisfaction of the debt. ' And in Texas, 
 a debtor who has no homestead may acquire one, with all its 
 immunity from sale under judgments against him, and it is 
 immaterial that the judgments were in existence when he ac- 
 quired the homestead ; and these principles are applicable to 
 a debtor, who, having a homestead of less value or extent 
 
 IStm V. Saundera, 8 Cal. 286. 
 
 2Bo-wmaii v. Norton, 16 Cal. 214; Hume v. Gassefct, 43 111. 297 ; Bonnell v. 
 Smith, 53 m. 377 ; Blue v. Blue, 38 HI. 10 ; areen v. Marks, 25 111. 221. 
 3 Pearson v. Minturn, 18 Iowa 36. 
 
169 FEOM WHAT IT IS EXEMPT. § 179 
 
 than the legal maximum, enlarges it to that maximum.' This 
 rule is sustained in a number of the States, where a judgment 
 is a lien upon the real estate of the judgment debtor. It is 
 held that the lien, created by a judgment, does not attach to 
 land purchased by a judgment debtor, after the date of the 
 judgment for homestead purposes, on the ground that a judg- 
 ment is not a lien upon aftei'-acquired lands until execution 
 issues and levy on such lands. ^ 
 
 § 179. A judgment against the husband alone is not a 
 lien upon the homestead, nor is such judgment any incum- 
 brance upon the land owned by the husband and occupied as 
 such by himself and family.^ But it is otherwise where the 
 premises exceed the statutory value ; in case of sale of the 
 homestead under execution, the purchaser at such sale will 
 have acquired an equitable lien upon the surplus, which he 
 may enforce as soon as the premises cease to be homestead.'* 
 A judgment and execution do not create a lien upon the 
 homestead of the judgment debtor, as regards the homestead 
 value, and the owner may sell or mortgage it.^ Thus, after , 
 the owner of a homestead had executed a mortgage upon the 
 land, but without releasing the homestead right, a judgment 
 was recovered against him, audit was held that the homestead 
 right could be afterwards sold and vested in the mortgagee 
 free of the lien of the judgment.^ The homestead is in the 
 
 1 Campbell v. McManus, 32 Texas 442 ; Mc'.Manus v. Campbell, 37 Texas 267 ; 
 see also Randall v. Buffington, 10 Cal. 491. 
 
 2 Maokey v. Wallaoe, 26 Texas 526 ; Trotter v. Dobbs, 38 Mias. 198 ; Stiles v. 
 Murphy, 4 Ohio (Ham.) 92 ; Woods v. Malrs, 1 Iowa (Grreen) 275 ; Moody v. 
 Doe, 25 Miss. 484; Calhoun v. Snider, 6 Binn. (Penn.) 135 ; McManus v. Gamp- 
 hell, 37 Texas 267 ; Campbell v. MoManus, 32 Texas 442 ; Randall v. BufBng- 
 ton, 10 Cal. 491. 
 
 3 Revalk v. Kraemer, 8 Cal. 66 ; Lamb v. Shays, 14 Iowa 567 ; DoUman v. 
 Harris, 5 Kan. 597 ; Hume v. Gassett, 43 111. 297 ; Morris t;. Ward, 5 Kan. 239 ; 
 Bonuell v. Smith, 53 111. 377 ; Green v. Marks, 25 HI. 221 ; Blue v. Blue, 38 
 111. 10. 
 
 4Bluei;. Blue, 38 111. 10 ; McDonald v. Crandall, 43 111. 231 ; Coe v. Smith, 
 47111.225. 
 
 5 Green v. Marks, 25 111. 221 ; Bliss v. Clark, 39 111. 590 ; Conklin v. Foster, 
 57 HI. 104; Brown v. Coon, 36 111. 248 ; Pishbaok v. Lane, 36 111. 438 ; Bowman 
 V. Norton, 16 Cal. 214. 
 
 6 Bonnell v. Smith, 53 111. $77. 
 
§ 180 * FROM WHAT IT IS EXEMPT. 170 
 
 same situation with reference to a judgment lien as though no 
 judgment existed against the debtor.' 
 
 § 180. Effect of judgments -wrhen the right ceases. — 
 
 When the homestead exemption shall, from any cause, cease 
 to exist, and the premises become liable to levy and sale, 
 then the first levy and sale after they so become liable 
 will bind the property, whether the writ is issued on a 
 senior or junior judgment, and the reason of this is, that it is 
 the writ, and not the judgment, in Illinois, which creates the 
 lien on the debtor's estate. Thus, where there were two judg- 
 ments recovered against the owner of a homestead, at differ- 
 ent times, an execution was issued on the junior judgment, 
 and while that execution was in existence and the debtor still 
 in the occupancy of the premises as a homestead, the debtor 
 and his wife released to the plaintiff, in the junior judgment, 
 their homestead right, and such release was followed by levy 
 and sale under the execution. Subsequently, and after the 
 debtor had abandoned the premises, an execution was sued 
 out upon the senior judgment, and levied upon the premises, 
 and they were sold. It was held that, upon the execution 
 of the release of the homestead right, the premises then, for 
 the first time, became liable to levy and sale, and the execu- 
 tion issued upon the junior judgment being in existence, and 
 a release followed by a levy and sale thereunder, all the debt- 
 or's title passed to the purchaser at that sale, and could not 
 be defeated by any subsequent sale under the senior judg- 
 ment.^ And where a judgment debtor, owning and occupy- 
 ing a homestead, sells the property to a junior judgment 
 creditor, and surrenders possession to him, the purchaser 
 takes the title free from any lien of judgment or claim by 
 sale, under execution, by a senior judgment creditor.' 
 
 1 Green v. Marks, 25 HI. 221 ; Dorsey v. MoParland, 7 Cal. 342 ; Engelbrecht 
 V. Shade, 47 Cal. 627-9 ; Van Eeynegan v. Revalk, 8 Cal. 75 ; Deffeliz v. 
 Pico, 46 Gal. 289 ; Alley v. Bay, 9 Iowa 509 ; Yost v. Devault, 9 Iowa 60 ; Bon- 
 nell V. Smitli, 53 111. 377 ; Coe v. Smith, 47 111. 225 ; McDonald v. Orandall, 43 
 
 HI. 231. 
 
 2 Bliss V. Clark, 39 111. 590. 
 
 3 Conklin v, Foster, 57 111. 104, and Bliss v. Clark, Id. 
 
171 FROM WHAT IT IS EXEMPT. §§ 181-183 
 
 § 181. In lo-wa, a judgment does not attach as a lien 
 upon the premises used and occupied by tlie judgment 
 debtor unless the debt was antecedent to the acquisition of 
 the homestead ; and a conveyance of the homestead while 
 it is thus used and occupied, invests the grantee with 
 a title thereto free from the lien of any judgment against 
 the grantor ; but a judgment having been obtained against 
 the debtor, such judgment is a lien on all his real estate, 
 except his homestead used and occupied as such ; there- 
 fore, if the debtor ceases to use and occupy such premises as 
 a home, (otherwise than by a conveyance for a valuable con- 
 sideration) existing judgments attach as liens thereon, in the 
 same manner that judgments attach as liens upon property 
 acquired after the rendition thereof. ^ 
 
 § 182. Relinquishment and sale, one transaction, — In 
 
 California, it is held that if while a judgment is standing 
 against the husband, the husband and wife make a sale of the 
 homestead, and at the same time make a relinquishment of 
 the homestead right in the manner required by law, so that 
 the two constitute but one transaction, and the homestead 
 does not exceed the statutory value, the lien of the judgment 
 will not attach to the homestead, and the proper Court will 
 enjoin the sale upon an execution issued on the judgment. 
 But the Court said that if the husband and wife make a re- 
 linquishment of the homestead right, and afterwards sell the 
 homestead property, and the relinquishment takes effect be- 
 fore the sale, the lien of the judgment will attach to the prop- 
 erty.^ 
 
 § 183. Judgment, subsisting lien, enforced -when unoc- 
 cupied. — A different and much more unsatisfactory interpret- 
 ation as to liens of judgments on homestead property, under 
 
 IJjamb V. Shays, 14 Iowa 567 ; Parker v. Dean, 45 Miss. 409 ; Alley v. Bay, 9 
 Iowa 509 ; Tost v. Devault, 9 Iowa 60 ; Green v. Marks, 25111. 221. 
 
 2 Marriner v. Smith, 27 Cal. 649-652 ; Barber v. Babel, 36 Cal. 11 ; Aokley v. 
 Chamberlain, 16 Cal. 181 ; Deffeliz v. Pico, 46 Cal. 289 ; Engelbreoht u. Shade, 
 47 Cal. 627 ; Kendall v. Clark, 10 Cal. 17 ; Lamb v. Shay, 14 Iowa 567. See 
 Williams v. Young, 17 Cal. 403, where it is held that a sale under execution 
 on judgment against husband alone is absolutely void. 
 
§ 184 PROM WHAT IT IS EXEMPT. 172 
 
 similar Statutes to the foregoing, has obtained in Wisconsin, 
 and some few other States. In Wisconsin, a majority of the 
 Court * held, that the judgment of a Court of record consti- 
 tutes a lien upon all the real estate of the judgment debtor, 
 situated in the county where the record of judgments, or a 
 transcript thereof, is filed. That the homestead of the debtor, 
 as constituting part of the real estate, is subject to such lien, 
 but that the homestead premises are exempted from forced 
 sale as long as they remain the actual homestead of the judg- 
 ment debtor. But that when the homestead ceases to be oc- 
 cupied as such by his voluntary act, as by alienation, or other- 
 wise, the lien of judgment then comes into effect, and may 
 be enforced by levy and sale on execution.^ 
 
 " The effect of the exemption, therefore, is merely to pre- 
 vent the forced sale of the homestead premises during the 
 time that they remain the residence of the judgment debtor. 
 And if the judgment debtor alienates the homestead, the 
 vendee takes it subject to the lien of the judgment." Smith, 
 J., dissenting, said, with much reason, that such a construc- 
 tion of the law was open to the objection that "the home- 
 'steadof the unfortunate debtor would be his prison," and 
 that the beneficial enactment of the legislature was but " an 
 ingenious device to confine all energies of the man to the 
 narrow limit of his homestead." The ruling was affirmed 
 in the case of Trustees, etc., v. Schell.' 
 
 g 184. In Minnesota the same rule obtains as that in 
 Wisconsin.* Where a judgment had been docketed against 
 
 1 Ployt V. Howe, 3 Wis. 753 ; to tte same effect are the following : Allen v. 
 Cook, 26 Barb. (S. C.) 374 ; Chamterlin v. Lyell, 3 Mioh. 448 ; Lawton v. 
 Brnoe, 39 Maine 488 ; HersMeldt v. George, 6 Mich. 456. 
 
 2 The legislature of Wisconsin, in 1858, after the decisions above noticed were 
 rendered, enacted that no judgment, in either Federal or State Court, should he 
 a lien upon, the homestead. 
 
 8 17 Wis. 308 ; Folsom v. Carli, 5 Minn. 333 ; Tillotson v. Millard, 7 Minn. 
 513 ; Gogel v. Miokow, 11 Minn. 475. For contrary rule see Green h. Marks, 
 25 111. 221 ; to the same effect are the following : Dorsey v. McFarland, 7 Cal. 
 342 ; Van Reynegan v. Revalk, 8 Cal. 75 ; Alley v. Bay, 9 Iowa 509 ; Tost v. 
 Be Vault, 9 Iowa 60 ; Lamb v. Shay, 14 Iowa 569. 
 
 i But this has been changed by statute. Act 1860, which provides that a jiidg- 
 ment debtor may remove from or sell the homestead without subjecting it there- 
 by to sale on execution. 
 
173 FROM WHAT IT IS EXEMPT, § 185 
 
 the homestead owner, it was held that the hen of judgment 
 attached to the homestead as well as any other real property 
 of the debtor, and the exemption of the homestead was only 
 an exemption ft-om sale on execution while occupied by the 
 debtor and his family. The exemption did not aflect the lien 
 of judgment, and when the judgment debtor abandoned the 
 property as a residence, or conveyed it to another, the ex- 
 emption ceased, and the judgment creditor had then the right 
 to enforce his lien by a sale of the premises on execution, 
 and the grantee took the premises subject to the lien of the 
 judgment.^ 
 
 § 185. Right of the State, as affecting the homestead. 
 
 The State is not in any better position than the citizen, in 
 regard to the collection of debts as against the homestead of 
 the debtor.^ In Ilhnois, it is said that a judgment rendered 
 against a town collector on his official bond is like any other 
 judgment, and creates no lien which can be enforced against 
 his homestead. The act " making a town collector's bond a 
 lien upon all his real estate does not repeal the homestead ex- 
 emption act, so far as his bond is concerned. " ^ In Kentucky 
 the contrary rule obtains, where it is held that the homestead 
 act does not apply to, the State, and that the homesteads of 
 the sureties of a sheriff were subject to an execution in -favor 
 of the State which issued on a judgment rendered against the 
 sheriff and his sureties for public dues. The Court said that 
 the commonwealth is not embraced by an act which is niade 
 to operate between individuals, unless there is something in 
 the act which shows an intention to subject the State to the 
 same rule.^ 
 
 1 Whitworth v. Lyona, 39 Misa. 467 ; in Miss, changed by statnte of 1870 ; 
 Folsomi!. Carli, 5 Minn. 333 ; Tillotson v. Millard, 7 Minn. 513 ; see, per contra, 
 Green v. Marks, 25 111. 221 ; Lamb v. Shay, 14 Iowa 567. 
 
 2 Richards v. Chace, 2 Gray 383 ; Wilda v. VanvoorhiB, 15 Gray 139 ; Williams 
 V. Williams, Sup. Ct. Tenn., April Term, 1874. 
 
 3 Hume V. Gossett, 43 111. 297. ' 
 
 4 Comraonwealth v. Cook, 8 Bush 225. 
 
§§ 186-188 FROM WHAT IT IS EXEMPT. ' 174 
 
 CLAIMS AND LIENS -WHICH MAY AFFECT THE HOMESTEAD. 
 
 i 186. Where a judgment attaches to real property as 
 a lien, and if the same real property is sold after the lien of 
 a judgitient has attached, and it be conveyed' to a third per- 
 son, the lien of judgment will follow the land in such third 
 person's hands, though he may have purchased the land in 
 ignorance of the fact, and such innocent purchaser will not be 
 able to claim homestead rights in the laud until such lien of 
 judgment has been satisfied.^ 
 
 So of an award that has been made the judgment of a Court 
 of record, such award, thus recorded, attaches to real property 
 as a lien, in the same manner as a judgment, and will prevent 
 the homestead right from attaching till compliance with such 
 award. ^ 
 
 S 187. Effect of the situation of the parties and prop- 
 erty, -when liability incurred. — The right to claim the ben- 
 efit of the homestead act is controlled by ' the situation of 
 the property at the time the debt was contracted or the lien 
 attached, and not by the subsequent acts of the debtor and 
 his family. If the premises are not exempt at the time of 
 the creating of the debt or hen, a subsequent occupation of 
 the premises, as homestead, would not render them exempt. 
 
 On the other hand, the homestead may have been exempt 
 at the time the debt was contracted, and become liable by its 
 subsequent abandonment.' 
 
 S 188. Li^n of judgment on note given for debt, barred 
 by statute of limitations. — In some States, it is held that 
 where a homestead is liable for debts contracted before a cer- 
 tain date, and the debt is barred by the statute of limitations, 
 it seems that a note given to secure the debt, though given 
 after the declaration of homestead, will be a prior equity, and 
 judgment thereon will be a lien on the homestead.* 
 
 1 Gunn V. Miller, 43 Ga. 377 ; Hale v. Heaslip, 16 Iowa 451. 
 
 2 Gill V. Mizell, 43 Ga. 589. « 
 
 3 Titraan v. Moore, 43 111. 170 ; Upman v. Banks, 15 Wis. 449 ; 23 Cal. 277. 
 
 4 Wood V. Lord, 51 N. H. 448 ; Strachn v. Foss, 42 N. H. 43. 
 
175 FROM WHAT IT IS BXEMpl. §§ 189-191 
 
 § 189. Lien of judgment on homestead, allow^ed to 
 slumber for years, still a lien. — And where a creditor who 
 has a lien of judgment on all the real estate of the debtor, 
 including his homestead, if he lets his lien sleep for sev- 
 eral years, until all the property of the debtor, except the 
 homestead, has been exhausted to satisfy junior judgment 
 liens in the hands of other parties, is not thereby precluded 
 from asserting his lien on the homestead, although his lien, 
 if it had been enforced while the debtor had other property, 
 that other property must have been exhausted before the 
 homestead could have been held liable. His delay places 
 him in no worse position than if his lien had been on the 
 homestead alone. This would be the result even where the 
 statute requires that all other property of the debtor, subject 
 to execution, shall be exhausted before the sale of the home- 
 stead.' 
 
 § 190. Lien of judgment in Justice's Court — Recording 
 transcript — Intervening act of legislature. — But where 
 judgments rendered in Justices' Courts are not liens upon real 
 estate, until a transcript is filed in clerk's office of a Court of 
 record, or in the recorder's office of the county where the 
 property may be situated, they do not affect the homestead pre- 
 vious to such filing. And this lien may be defeated by in- 
 tervening legislative act, where the taking effect of an act of 
 the legislature intervenes between the rendition of such judg- 
 ment and the filing of the transcript, discharging the home- 
 stead from the lieu of all judgments. 
 
 It is held that the right of the judgment creditor to perfect 
 his lien upon the real estate of his debtor, by filing a trans- 
 cript of his judgment, is not a vested right, and the legisla^ 
 ture, by a change in the law, can deprive him of such incho- 
 ate right. ^ 
 
 § 191. But the change in such la-w does not apply to 
 executions issued upon judgments which had become liens 
 
 1 Denegre v. Haun, 14 Iowa 240 ; Tuttle v. Howe. 14 Minn. 145 ; Bj,rtholo- 
 mew V. Hook, 23 Cal. 277. 
 
 2 Borrman v. Sohober, 18 Wis, 437. 
 
§§ 192-193 I'R%M WHAT IT IS EXEMPT. 176 
 
 prior to the passage of the law. ' In Wisconsin, prior to the 
 Act of 1858, the judgment of a Court of record was a lien 
 upon the homestead of the debtor, but the exemption protected 
 it from forced sale on execution during the time it was oc-. 
 cupied as a homestead, but when the debtor ceased to occupy 
 it or alienated it, the lien could be enforced, as in other 
 cases. ^ 
 
 § 192. Lien of judgment upon the homestead before 
 filing notice — Wife's interest. — In California, where a house 
 and lot had been occupied by the husband and wife since the 
 year 1859 as their homestead, but no declaration, under the Act 
 of 1862, was made and filed, until the wife did so on 11th of 
 June, 1863 ; the husband had confessed a judgment on June 
 6th of the same year. This judgment became a lien upon 
 the homestead, and rendered it liable to be sold on execu- 
 tion, but the wife, by filing her declaration, acquired such an 
 interest in the homestead as to enable her to maintain an 
 action against the sheriff to compel him to exhaust her hus- 
 band's personal property, and his other real estate, before 
 proceeding to sell the homestead.' 
 
 § 193. In lo'wa, a homestead is subject to the payment 
 of debts created prior to its acquisition, and no distinction 
 obtains between domestic and foreign debts. ^ 
 
 But a judgment does not attach as a lien upon premises 
 (under the statute of Iowa) held by, the judgment debtor as 
 a homestead, either while occupied as such, or when sold and 
 the possession surrendered by the husband and wife.* Nor is 
 it sufficient to make a judgment a lien upon the homestead, 
 (otherwise than as a mechanic's lien) to show that it was for 
 materials furnished, and labor performed on the homestead 
 property. It is essential to show that the liability arose be- 
 fore it was occupied as a homestead." 
 
 1 Seamans v. Carter, 15 "Wis. 548. 
 
 2 Simmons v. Johnson, 14 Wis. 523. 
 
 3 Bartholomew v. Hook, 23 Cal. 277 ; See case in Wisconsin and Tennessee^ 
 Sees. 187, 188, 190. 
 
 * Laing v. Cunningham, 17 Iowa 510 ; Sloan v. "Waugh, 18 Iowa 224. 
 6 Lamb v. Shays, 14 Iowa 567 ; Cummings v. Long, 16 Iowa 41. 
 6 Delevan v. Pratt, 19 Iowa 429. 
 
177 TKOM WHAT IT IS EXEMPT. §§ 194-197 
 
 § 194. A change of homestead by a judgment defend- 
 ant, from one parcel of land to another, cannot displace or af- 
 fect the liens of judgment that had accrued before such 
 change.^ But the owner may change his homestead ; and 
 the new homestead, to the extent in value of the old one, will 
 be exempt in all cases in which that would have been.^ 
 
 § 195. Judgment rendered after purchase of land, but 
 before occupancy, or before passage of the Islmv, valid 
 lien. — The homestead may be subjected to sale on execution 
 rendered on a debt contracted prior to the occupancy of the 
 premises as a homestead, or on a claim which accrued before 
 the passage of the exemption act.^ And this lien will be 
 valid, even though the debt was not contracted till after the 
 purchase of the land upon which the homestead improve- 
 ments were subsequently made.^ 
 
 § 196. Iiien of judgment in Texas, purchaser under 
 deed of trust. — "Where a deed of trust of the homestead was 
 given, duly signed and acknowledged by the husband and 
 wife, and subsequently sold under such deed of trust, there 
 being a judgment lien on the premises, it was held, in Texas, 
 that the purchaser under such deed of trust took the prem- 
 ises subject to the lien of the judgment.'^ 
 
 § 197. Homestead not subject to attachment. — An at- 
 tachment is but a preliminary execution, so that a homestead 
 is not subject to attachment any more than it is to an exe- 
 cution, that is, final process.^ 
 
 1 Elston V. Kobinson, 21 lo-wa 531. 
 
 2 Furman v. Dewell, 35 Iowa 170. 
 
 3 Elston V. Bobinson, 23 Iowa 208 ; Howard v. WUbur, 5 Allen 219 ; Hale v. 
 Heaslip, 16 Iowa 457 ; Page v. Ewbank, 18 Iowa 580 ; Charless v. Lamberson, 1 
 Iowa 435 ; Seaman v. Carter, 15 Wis. 544 ; Dopp v. Albee, 17 Wis. 590 ; Trustees 
 V. Schell, 17 Wis. 308. 
 
 i Id. Iowa cases above cited ; also, Christy v. Dyer, 14 Iowa 438 ; Elston v. 
 Robinson, 23 Iowa 208 ; Cole v. Gill, 14 Iowa 527 ; Williams v. Sweetland, 10 
 Iowa 51. 
 
 6 Saul V. Epperson, 38 Texas 492. As to effect of deed of trust so signed, see 
 Jordan v. Peak, 38 Texas 4^9. 
 
 6Grubbs v. Ellyson, 23 Ark. 287 ; Eogg v. Fogg, 40 N. H..281. 
 
 Homestead — 12. 
 
§§ 198-200 FROM WHAT IT IS EXEMPT. 178 
 
 § 198. Selection of homestead after attachment. — I^or 
 is a lien by attachment such a lien as will sustain an execu- 
 tion levied upon the homestead, recorded after the attach- 
 ment, but before judgment. In such case, the judgment does 
 not relate back to the date of the attachment. ^ 
 
 § 199. Homestead not affected by extrinsic debts. — 
 
 The homestead is not to be aflfected by levy and sale under 
 judicial process for extrinsic debts or charges. If the prem- 
 ises are in fact impressed with the character of homestead, 
 then the levy and sale are void and pass no title to the pur- 
 chaser.^ 
 
 TORT. 
 
 g 200. Effect on homestead of judgments in actions 
 of tort. — There are conflicting decisions as to the question 
 whether a homestead is exempt from sale on execution for 
 damages recovered in an action of tort. 
 
 In 'Sew York, it was held that a party who has a good 
 cause of action for a breach of promise of marriage, has no 
 debt against the delinquent party to the contract, which he 
 can recover out of defendant's premises under the Homestead 
 Exemption Act of 1850.' But in Shonber v. Kilmer,* a con- 
 trary opinion was held, Willard, J., saying: "The Act of 
 1850 does not exempt the homestead of a householder £i-om 
 sale on execution, except for debts contracted after the pas- 
 sage of the law. If the execution be issued upon a judgment 
 in tort, the homestead is not exempt ; a judgment for costs 
 in an action of toi't falls within the same rule." 
 
 The point seems to have been decided finally, so far as 
 New York is concerned, in Lathrop v. Singer,^ where it was 
 held, that the Act of 1850 does not contemplate an exemp- 
 
 1 Hawthorn v. Smith, 3 Nevada 185, 
 
 '^ Deffeliz !). Pico, 46 Cal. 289, citing and approving Kendall v, Clark, 10 
 Cal. 17 ; "Williams v. Young, 17 Oal. 403. 
 8 Cook V. Newman, 8 How. N. Y. Pr. 523. 
 4 8How. N. Y. Pr. 527. 
 6 39 Barb. 396. 
 
179 FROM WHAT IT IS EXEMPT. § 201 
 
 tion of the homestead from execution issued upon a judg- 
 ment recovered in an action of tort. The act exempts the 
 homestead only from execution for dehts contracted._ 
 
 In Pennsylvania, it is held, that the law exempting prop-, 
 erty from levy and sale on execution, extends only to cases of 
 debt on contract. A judgment for costs is of the same na- 
 ture as debt on contract, so far as the exemption law afl'ects 
 the rights of the parties. The fact that costs accrued against 
 a plaintiff who failed in an action of tort, makes no difference 
 so far as relates to the exemption law : " when a plaintiff in 
 an action of trover has lost, and the judgment is against 
 him for costs, he is not thereby put into the situation which 
 the defendant would have occupied if the luck had been re- 
 versed. ' ' ^ 
 
 In Georgia, prior to 1868, the same rule prevailed as in 
 Ifew York, where it is held that the homestead exemption 
 acts do not protect property from judgments founded on torts. 
 They apply " expressly and exclusively to judgments founded 
 on contracts."^ 
 
 § 201. Not affected by judgments in actions of tort. 
 
 In North Carolina, it is held, that a homestead and personal 
 property exemption, under Art. X. of the constitution, and 
 the laws passed in pursuance thereof, cannot be sold under an 
 execution issued upon a judgment rendered in an action of 
 tort. 3 
 
 The better rule, and one in entire harmony with the uni- 
 versally expressed object and policy of the homestead law, 
 finds expression in "Wisconsin, in the case of Smith v. Omans,* 
 wherein it is said that the homestead of a judgment debtor 
 is not liable to forced sale on execution, although the judg- 
 ment was rendered in an action of tort ; and the reason of 
 this seems to be that the object of the exemption law is to 
 protect the family of the debtor, as well as himself " Yet 
 this beneficent purpose would be often wholly defeated, if the 
 homestead could be swept from und'er the family whenever 
 the husband chose to incur a liability for which an action of 
 tort could be maintained." 
 
 1 Lane v. BaKer, 2 Grant's Cases 424. 3 Dellinger v. Tweed, 66 N. C. 206. 
 
 2 Davis V. Heuson, 29 Ga. 345. * 17 Wis. 395. 
 
§ 202 FKOM WHAT IT IS EXEMPT. 180 
 
 In Illinois, substantially the same rule is adopted as that of 
 Wisconsin ; it is there held that a homestead is not liable to 
 forced sale in satisfaction of damages recorded in an action of 
 tort. The language of the act is, the homestead is exempt 
 "from levy and forced sale under any process or order from 
 any Court of law or equity, for debts contracted from and after 
 the fourth day of July, 1851." A judgment for tort is not a 
 debt contracted, but the law of 1857 declared it to be the ob- 
 ject of the legislature to prevent the alienation of the home- 
 stead in any case except by the consent of the wife. In the 
 light of both these laws, the Supreme Court of Illinois has 
 frequently held that it was the evident intent of the legislar 
 ture to protect the homestead as a shelter for the wife and 
 children independently of any act of the husband. He can- 
 not deprive them of their right to it without the consent of 
 the wife, either by his contract or torts. There is no more 
 reason, so far as the wife is concerned, for permitting the 
 homestead to be sold for the husband's tort, than for his vio- 
 lation of a contract ; and it is the policy of the law to forbid it 
 being sold under a judgment and execution in either case.* 
 
 SPECIFIC LIENS. 
 
 § 202. In nearly all the States the homestead is aflfected by 
 certain liens, such as vendors' and mechanics' liens. But un- 
 der some ot the homestead laws, no exception was made of 
 any nature or kind. For instance, in Texas, under the Con- 
 stitutions of 1845 and 1860, no provision was made that the 
 homestead should be subject to any lien, whether vendors', 
 mechanics', or laborers', or the lien of taxes. But the Courts 
 always held that the homestead right was subordinate to the 
 vendor's right to recover his land f that the homestead right 
 could not commence until the vendor's lien had been satisfied. 
 
 1 Conroy u. Sullivan, 44 111. 451. 
 
 2 Stone U.Darnell, 20 Texas 12 ; Montgomery u, Tutt, 11 Cal, 191 ; Parmer ti. 
 Simpson, 6 Texas 303 ; Burnes v. Gray, 7 Iowa 26 ; Dillon v, Byrne, 5 Cal. 455 ; 
 Shepherd "o. White, 11 Texas 354 ; Phelpha v. Conover, 25 111, 309 ; Succession of 
 Eanlkes, 12 La. An. 537 ; 3IoHendry u. Keilly, 13 Cal. 75. 
 
181 FROM WHAT IT IS EXEMPT. §§ 203-204 
 
 That the property was not homestead as far as the vendor's 
 right was concerned. Other liens were not so favored by 
 the Courts. The homestead, once acquired, was exempt from 
 all debts, whether liens or not ; unless such liens had been 
 created by a written contract to perform work or labor upon 
 the preniises before they became homestead, and to hold the 
 homestead liable for such labor performed, which adds to the 
 value of the homestead, and which contract required to be 
 duly recorded.^ And this lien so created extended only to the 
 sum mentioned in the contract ; if in the course of the work 
 on the premises, a larger amount than was stipulated in the 
 contract should become due to the person performing such 
 work, there was no lien in favor of such person for the excess 
 over the amount provided for in the contract.^ 
 
 But, under the twelfth article of the Constitution of 1869, 
 the legislature is empowered to protect a homestead of the 
 value of $5,000, exclusive of the improvements, from forced 
 sale, except for the purchase price thereof, or for taxes, or for 
 labor and materials furnished therefor. 
 
 § 203. Where homestead exempt from sale of taxes, 
 except those levied thereon, not aifeoted by change of 
 la-w. — Where, under the laws in force at the date of the levy 
 of a tax, the homestead was exempt from sale for any taxes 
 except those levied thereon, though not separately listed, a 
 subsequent change in the law would not affect the right of the 
 owner. At a sale made for such taxes, it could not be sold in 
 connection with other lands, in such manner as to compel the 
 owner to pay the taxes on such other lands in order to save 
 his homestead from absolute loss. ' 
 
 § 204. Material man cannot enforce lien on homestead. 
 
 In Minnesota, it is held that a material man who furnishes 
 materials for the erection or repairs for a house on exempted 
 property, cannot enforce a lien, from the fact that the lien 
 can only be enforced by seizure and sale of the property on 
 
 1 Merchant v. Perez, 11 Texas 20, 
 
 2 Merchant v. Perez, 11 Texas 20 ; Potehinsky v. Krempkan, 26 Texas 307. 
 
 3 Penn . v. Clemans, 19 Iowa 372. 
 
§§ 205-207 FROM WHAT IT IS EXEMPT. 182 
 
 (vhich lie claims the lien, while the statute and the constitution 
 of that State forbid the forced sale of exempt property. But 
 3uch material man's lien will attach as against a person who, 
 in good faith and without notice, purchases the premises 
 subsequently to the erection of the building in which the ma- 
 terials are used, and prior to the recording and filing of the 
 account.^ 
 
 § 205. Necessaries furnished family in connection 
 with homestead. — In Georgia, the homestead is not exempt 
 from a claim for necessaries furnished to the family in connec- 
 bion with the enjoyment of the homestead,^ but a judgment 
 obtained against a widow for the rent of a house, other than 
 the homestead property, was not within the purview of the 
 act, or in accordance with the true intent and meaning 
 bhereof.' 
 
 § 206. Merger in note — Laborer's lien — Services.— A 
 
 promissory note, given for labor, does not change the character 
 of the claim, and is still within the exception of the homestead 
 act in E^ew Hampshire.^ But the professional services of a 
 physician do not constitute a claim for labor within the mean- 
 ing of the act, and a promissory note, executed by the debtor 
 and his wife for such services, but without a mortgage of the 
 homestead, is not a release or waiver of the exemption.^ 
 
 PBIOE DEBTS. 
 
 § 207. Statutory protection of- existing debts on ac- 
 quisition of homestead. — In Massachusetts, under the Home- 
 stead Act of 1855, 0. 238, which provides that " no property, 
 
 1 Cogel V. Miotow, 11 Minn. 475. 
 
 2 The Act of 1869 provides that the homestead shall be exempt from forced 
 Bale, etc., "excepting stock, provisions, and other articles used in making the 
 crops, necessaries for the family, medical services, and tuition, etc." 
 
 3 Bazemare v. Davis, 48 Ga. 339. 
 
 i Weymonth v. Sanborn, 43 N. H. 171. 
 
 B Eeed v. Defebaugh, 24 Penn. 495 ; Weaver's Estate, 25 Penn. 434. 
 
183 FROM WHAT IT IS EXEMPT. §§ 208-209 
 
 by virtue of this act," shall be exempted from levy, for any 
 debt contracted previous to the passage of this act," itisheld 
 that a debtor who becomes insolvent, owing debts contracted 
 before the passage of the act, exceeding the amount allowed 
 as a homestead exemption, must surrender his homestead to 
 his assignee in insolvency.' And an alienation of it by the 
 owner and his wife to a third person, will be a fraud on the 
 creditors, and void.^ 
 
 Under the foregoing act, the homestead privilege was not 
 operative as against debts contracted prior to its acquisition, 
 but if, after payment of those debts, any residue were left, 
 the homestead exemption would be operative as to that.' 
 
 § 208. A note given for money borrOTved on the day of 
 the deed, and applied in part payment of the purchase-money, 
 was considered an existing debt, at the time of the purchase of 
 the homestead, and was a lien thereon.^ But where, since the. 
 passage of the homestead act, a note secured by mortgage 
 has been given in exchange for another note which was not 
 secured, and had been made previous to the passage of the 
 homestead act, it will be regarded as having been taken in 
 payment of the first note, and an extinguishment of the debt 
 secured thereby. ° 
 
 § 209. Where a homestead debtor becomes insolvent, 
 
 those creditors whose claims accrued before the right 
 of homestead was acquired, are entitled to have the 
 whole amount of the homestead value realized by the 
 assignee paid to them in satisfaction of their claims, and 
 they may come in with the other creditors against the bal- 
 ance of the property, if they have not been paid in full. 
 The reversionary interest in the land, after the expiration of 
 the homestead right, should be distributed among the gen- 
 eral creditors.® 
 
 1 Woods V. Sanford, 9 Gray 16 ; Rice v. Southgate, 16 Gray 143. 
 
 2 Beals V. Clark, 13 Gray 19. 
 
 3 Clark v. Potter, 13 Gray 21. 
 
 i Stevens v. Stevens, 10 Allen 146. 
 
 6 Adams v. Jenkins, 16 Gray 146 ; Bums t). Thayer, 101 Mass. 426. 
 6 White V. Eice, 5 Allen 73 ; Woods v. Sanford, 9 Gray 16 ; Bice v. Southgate, 
 16 Gray 142 ; Gibbs v. Bryant, 1 Pick. 121 ; Appleton v. Baaoom, 3 Met.'169. 
 
§§ 210-213 PROM WHAT IT IS EXEMPT. 184 
 
 § 210. Exemption la-w does not apply to pre-existing 
 debts. — In JSTew Hampshire, the homestead exemption act 
 does uot apply to contracts made "on the Ist Jan., 1852, or 
 prior to that date, but only i;o those made after that day. 
 Judgment was recovered on a note dated May, 1853, signed 
 by Dudley and one Eobinson. But it appeared that this note 
 was given for two notes, previously given by Dudley, one of 
 them directly to the plaintiff, and the other to one Palmer, 
 which he indorsed to the plaintiff', and both dated before Jan. 
 2d, 1852. It was held that the homestead exemption did not ap- 
 ply in this case in favor of Dudley, though it would in favor of 
 Robinson.^ 
 
 § 211. In lo-wa, a homestead is not exempt from sale for 
 the payment of debts contracted prior to the time any im- 
 provements were made upon the land, and before it was used 
 in any way as a home, or for the purpose of a homestead.^ 
 
 And it is further liable to debts contracted in another State 
 before its acquisition, and is subject to sale therefor after the 
 exhaustion of the other property of the debtor liable to exe- 
 cution.' 
 
 § 212. Delivery bond not a contract. — The Exemption 
 Law of Mississippi of 1841, exempting certain property from 
 sale therein mentioned, only applies to contracts made after 
 its passage : held, that a delivery bond cannot be regarded as 
 a contract in contemplation of that statute.* 
 
 § 213. Statutes excluding existing debts from the ex- 
 emption — Merger — Marshaling assets. — In Kentucky, it 
 is held that the homestead exemption provided for by the 
 Act of 1866,^ does not apply to debts or liabilities created or 
 ; incurred before June, 1866, at which time the act took 
 effect. It does not apply to a note executed after that date, 
 
 1 Ladd V. rhidley, 45 N. H. 61 ; Mareli v. Alford, 5 Bush (Ky.) 392 ; Webster 
 -u.JBronston, 5 Bush (Ky.) 521 ; Kibby v. Jones, 7 Bush 243 ; see Sec. 213. 
 
 2 Hyatt V. Spearman, 20 Iowa 510. 
 
 SLaing v. Cuaningham, 17 Iowa 510; Brainard v. VanKvirau, 22 Iowa 264. 
 4 Smith r. Brown, 28 Miss. 810. 
 6 Meyers' Sup. 714. 
 
185 FROM WHAT IT IS EXEMPT. § 214 
 
 as a renewal of a note given before that date. The renewal 
 of a note is not a satisfaction of a debt, but only a change of 
 the evidence of it.^ N"or does the act apply to or embrace a 
 note executed after the date of the taking effect of the act, 
 in payment of an account for articles purchased and delivered 
 before that date.^ 
 
 Where a house and lot under a deed of trust for the equal 
 pro rata benefit of creditors, sold for |2, 6271^1,, in which a 
 homestead right was reserved in the 'deed and claimed by the 
 grantors, prior debts (to June 1st, 1866,) amounted to |l,616i^o'|„ 
 subsequent debts amounted to 2,052,^oV The Cix'cuit Court 
 adjudged a pro rata distribution of the entire fand, except 
 $1,000, among all the creditors, and then applied so much of 
 the $1,000 as was necessary to fully satisfy the prior debts ; 
 thus leaving llOli^oli undisposed of to the homestead claimant, 
 who appealed. By an equa] division of the Court of Ap- 
 peals, the judgment of the Circuit Court was affirmed.' 
 
 It has also been held that the homestead act did not apply 
 to a judgment which was recorded on a liability which ex- 
 isted prior to June 1st, 1866, and that the act did notagply to 
 the costs ; that the costs of all such cases are only incidents 
 attached thereto, and must be governed by the laws apphca- 
 ble to the debt or liability out of which they grew.* 
 
 And where part of a debt was contracted prior to June, 
 '66, and part after said date, and a note given for the whole 
 debt, it was held that the homestead was exempt as to that 
 portion of the consideration of the note contracted after the 
 law took effect, but liable for the portion contracted prior to 
 ' the act taking effect.^ 
 
 6 
 
 § 214. Homestead not affected by prior debts in Cali- 
 fornia and in Texas. — The homestead is not affected by 
 debts existing prior to the acquisition of the homestead ; 
 even if the claimant be in a state of absolute insolvency, it 
 
 1 Lo-wxy V. Fisher, 2 Bash 70 ; Kibby v. Jones, 7 Bush 243 ; Pryor v. Smith, 
 4 Bush 379. 
 
 2 Marsh v. Alford, 5 Bush 392. See Seoa. 207, 210. 
 
 3 Webster v. Bronston, 5 Bush 521. 
 i Knight V. Whitman, 6 Bush 51. 
 BKibbj V. Jones, 7 Bush 243. 
 
§ 215 FROM WHAT IT IS EXEMPT. 186 
 
 matters not, for the law protects the homestead against debts 
 contracted prior, as well as those contracted after the destina- 
 tion of the property as a homestead, and this is equally the 
 case, whether he was married or single when the debt was 
 contracted.* 
 
 VENDOR'S LIEN. 
 
 § 215. No homestead right can be acquired in property 
 upon -which purchase-money is due, as against the claim 
 of the vendor ; though it may be impressed with " that 
 character, it will remain subordinate to the lien of the vendor, 
 whether that lien be created by mortgage or otherwise, until 
 it is removed in some lawful manner.^ 
 
 The case of Hopper v. Parkinson, 5 ISTev. 233 — referred to 
 in note — was a foreclosure suit on a mortgage given by the 
 husband to secure the purchase-money of land, and made con- 
 temporaneously with the deed of the land to. him ; the wife, 
 being permitted to defend, set up a homestead right, and it 
 was held that neither husband or wife could acquire any such 
 right as against the mortgage debt. But it was said that a 
 suit to foreclose a mortgage given to secure the purchase- 
 money, is not a suit for the enforcement of a vendor's lien. 
 
 1 North V. Sheam, 15 Texas 176 ; Randall v. Buffington, 10 Cal. 493 ; Culver 
 u. Rogers, 28 Cal. 526 ; In re Henkel, 2 Sawyer C. C. 305. 
 
 2 Burford V. Rosenfield, 37 Texas 42 ; Campbell v. MoManns, 32 Texas 442 ; 
 MoManus v. Campbell, 37 Texas 267 ; Hopper u. Parkinson, 5 Nev. 233 ; McHen- 
 dry V. Reilly, 13 Cal. 75 ; Dillon v. Byrne, 5 Cal. 456 ; Lassen v. Vanee, 8 Cal. 
 271 ; Calhoun v. Calhoun, 2 Rich. N. S. 284 ; Baker v. Ramer, 27 Texas 52 ; 
 Tunstall V. Jones, 25 Ark. 272 ; Farmer i;. Simpson, 6 Texas 307 ; Deirt on Vend- 
 ors ; Doydeu v. Frost, 3 Myl. and C. 670 ; Parker v. Kelly, 10 S. & M. 
 184; 6 S. & M. 490; Meigs R. 52; Tamer -u. Hicks, 4 S. & M. 300; 4 
 Litt. R. 289 ; 5 Monroe 287 ; Pinchain v. CoUard, 13 Texas 333 ; Magee v. Ma- 
 gee, 51 111. 500 ; Austin v. Underwood, 37 111. 438 ; Eyster v. Hathaway, 50 III. 
 521 ; Cossell v. Ross, 33 HI. 244; Weider v. Clark, 27 m. 251 ; Chambliss v. 
 Phelps, 39 Ga. 386 ; Lane v. Collier, 46 Ga. 580 ; Hawks v. Hawks, 46 Ga, 204 ; 
 Christy v. Dyer, 14 Iowa 438 ; Cole v. Gill, 14 Iowa 527 ; Burnap v. Cook, 16 
 Iowa 149 ; Barnes v. Gay, 7 Iowa 26 ; Pratt v. Delavan, 17 Iowa 307 ; Kyles 
 and Dunlap's Appeal, 45 Penn. St. (9 Wright) 353 ; Buckingham v. Nelson, 42 
 Miss. 417; Calhoun v. Calhoun, 2 Rich. ( S. C.) N. S. 284 ; Williams v. Young, 
 17 Cal. 403 ; Montgomery v. Tutt, 11 Cal. 190 ; Skinner v. Beatty, 16 Cal. 156 ; 
 New England M. Co. v. Merriam, 2 Allen 390. 
 
187 FROM WHAT IT IS EXEMPT. §§ 216-217 
 
 § 216. Tenure of the vendee, in the nature of a trust 
 for vendor. — In Tunstall v, Jones,' it is said, the lien of a 
 vendor is in the nature of a trust, and equity regards the vend- 
 ee as holding the estate in trust for the payment of the pur- 
 chase-money, and he cannot set up any adverse title or do any- 
 thing which can place him in a position inconsistent with the 
 interests of the trust, and therefore, though by the appropri- 
 ation of the land as a homestead, it becomes exemptfrom ex- 
 ecution, it still continues subject to the lien. But the bare 
 existence of the lien has no such effect as to remove the ex- 
 emption and subject the homestead to sale under execution. 
 
 In Texas, the same principle and reasoning is maintained, 
 where it is said that the vendor of land who retains a lien there- 
 on for the purchase-money, has the superior right to the land 
 as against his vendee until payment of the purchase-money 
 has been made ; and his deed to the purchasers, reserving such 
 lien, does not vest absolute title in them until the ^purchase 
 money is paid, previous to which they hold the property in 
 subordination to the vendor's right. 
 
 § 217. Note for purohase-mpney barred by statute of 
 limitations. — It is further held in Texas, that even if the 
 notes given for the payment of the purchase-money became 
 barred by the statute of limitations it matters not. The pur- 
 chaser cannot obtain absolute title to the property, as against 
 the vendor, without the payment of the purchase-money.^ 
 
 Eight of homestead does not attach until the property is 
 paid for. "Where F bargained for a tract of land in 1851, 
 giving his notes for the purchase-money, receiving his vend- 
 or's bond for the title ; in 1856, F being then dead, and the 
 land not being paid for, the Probate Court set aside 200 acres 
 of the tract as a homestead for the family. It was held that 
 this order of the Court was without authority of law, for the 
 reason that the purchase-money remained unpaid and the ti- 
 tle had never vested in F.* 
 
 1 25 Ark. 272. 
 
 2 Dunlap V. Wright, 11 Texas 597 ; Baker v. Ramer, 27 Texas 52 ; MoManus v. 
 Campbell, 37 Texas 267. 
 SMeCreery v. Fortson, 35 Texas 641 ; Joplin v. Fleming, 38 Texas 526. 
 
§§ 218-219 FROM \VHAT IT IS EXEMPT. 188 
 
 But it is not essential in that State that the fee should pass 
 before the homestead right attaches. This right attaches 
 whenever premises are dedicated to homestead purposes, 
 even before the purchase-money is fully paid, though in the 
 latter case the property remains subject to the vendor's lien.' 
 
 g 218. Money borro'wed, to pay pre-existing debt cre- 
 ated for purchase of homestead, is not a lien for purchase- 
 money ; ^ thus it was held that where a party advances money 
 to relieve a homestead from the lien for unpaid purchase- 
 money, and takes from the purchaser and his wife notes for 
 the amount advanced, and a deed of trust to secure their pay- 
 ment, he is not thereby subrogated to the rights of the 
 vendor, and the homestead is relieved from the lien for pur- 
 chase-money. In such case, the notes and the deed of trust, 
 being for money loaned, the contract is not such a one as can 
 subject the homestead to forced sale, whatever may have been 
 the intention of the parties to the contract, at the time.' But 
 it is otherwise where the loan and the payment are one trans- 
 action ; thus, in California, it was held, that where a party ad- 
 vances money to pay the purchase-money which had pre- 
 viously been secured by a mortgage on the homestead, and for 
 such advance takes, as security, a mortgage on the homestead, 
 signed by the husband alone, the debt is, to all intents and 
 purposes, the same, though the creditor may be changed ; and 
 the vendor's lien for purchase-money, represented by the 
 mortgage to the new creditor, will be paramount to the home- 
 stead claim, especially where the satisfaction of the vendor's 
 lien and the, execution of the new mortgage are contempora- 
 neous aets.^ 
 
 • 
 
 § 219. What may be united -with lien for purchase- 
 money. — It seems that, in Illinois, an unpaid vendor of land 
 may unite to his lien, for the purchase-money, a debt of a 
 different nature, in a mortgage or deed of trust, and if the 
 mortgagor omits to pay, or offer to pay, that portion which is 
 
 1 MoManus v. Campbell, 37 Texas 267. 
 
 2 Austin V. Underwood, 37 111. 438. See GrifBn v. Blanchar, 17 Gal. 71. 
 
 3 Malone v. Kauffman, 38 Texas 454. 
 
 4 Carr v. Caldwell, 10 Cal. 384. 
 
189 FROM WHAT IT IS EXEMPT. §§ 220-221 
 
 purchase-money, and a sale is had under the deed of trust or 
 mortgage, in default thereof the title will pass to the pur- 
 chaser, and he may recover the premises in ejectment.' 
 
 In California, it has been held that a vendor can add nothing 
 to the debt created for the purchase-money of the homestead, 
 except interest on the same. He cannot tack on to his lien 
 any subsequent debt which may since have become due to 
 him, not even if the husband executes a mortgage on the 
 homestead without the concurrence of the wife.^ l^or can he 
 charge the land by an agreement to pay interest in addition 
 to the purchase-money.^ 
 
 § 220. Change in the form of the instrument for pur- 
 ohase-money . — No . change in the form of the instrument 
 given to secure the purchase-money, as, for example, from a 
 mortgage to a deed of trust, will avail to change the charac- 
 ter of the debt. When purchase-money is the consideration 
 in any one instrument, it will so continue in any other.* 
 
 § 221. Third person paying money to vendor assumes 
 the relation of vendor to purchaser. — Where a purchaser 
 of laud went into possession and occupied it as a homestead : 
 while so in possession, he procured a third person to pay the 
 purchase price to the vendor, promising to execute a niort- 
 gage to secure the payment of the money as soon as he ob- 
 tained a deed. He obtained a deed, but refused to execute 
 the mortgage. Upon bill filed, by the party paying the money, 
 against the purchaser, to enforce his lien, upon the land, it 
 was held, that the money paid by the complainant, having 
 been paid by him directly to the vendor for the purpose of 
 having the land conveyed to the purchaser, must be regal-ded 
 as the purchase-money of the premises, against -which de- 
 fendant could not assert the homestead exemption. ° 
 
 So, alsOj where a party owning and residing upon a home- 
 
 1 Austin V. Underwood, 37 111. 438. 
 
 2 Dillon V. Byrne, 5 Cal. 456 ; Barnes v. Gay, 7 Iowa 26. 
 
 3 McHendry v. Reilly, 13 Cal. 75. 
 
 4 Austin I). Underwood, 37 111. 438. 
 
 5 Magee v. Magee, 51 111. 500 : Lassen v. Vance, 8 Cal. 271 ; Austin v. Under- 
 wood, 37 ni. 438. 
 
§§ 222-223 FROM WHAT IT IS EXEMPT. 190 
 
 stead, purchases and receives a conveyance of an adjoining 
 tract to be used in connection with and as part of the home- 
 stead, and procures the purchase-money for the adjoining tract 
 to be paid by a third person, as a loan to the purchaser ; the 
 money thus loaned will be regarded as the purchase-money 
 for the land, as against the claim of homestead by the pur- 
 chaser, for whom it was paid ; and in this case the distinction 
 was taken between such a case and one where money was 
 loaned to pay a pre-existing debt created for the purchase of 
 the homestead.^ 
 
 § 222. Conduct on part of vendor -which -will bar as- 
 sertion of claim. — Any conduct on the part of the vendor of 
 real estate which shows an intention to give up his lien for 
 the purchase-money, will be a bar to its assertion ; and the ac- 
 ceptance of other security, or the personal security even of 
 ^e husband and wife, is sufficient to raise the presumption 
 that he means to give up his lien.^ 
 
 g 223. Where money is simply borro-wed, and then, after 
 it,i8 obtained, is used to pay the purchase-money, it will not be 
 a lien upon the homestead. The payment and the loan must 
 in equity be one transaction, to enable the lender to claim a 
 lien upon the homestead. 
 
 The statute, "in declaring that the homestead right should 
 not be claimed against a debt due for the purchase-money, 
 obviously used the language in its popular and ordinary sig- 
 nification. All persons understand the term purchase-money 
 to mean the price agreed to be paid for the land, or the debt 
 created by the purchase. It is not understood to mean a 
 debt due to any other person than the vendor, even though 
 such money may have been applied by the borrower to the 
 purchase of the land. The statute applies only to parties 
 who stand in the relatioii of vendor and vendee, and those 
 representing them." ^ 
 
 1 Austin V. Underwood, 37 111. 438 ; Magee v. Magee, 51 111. 500. 
 
 2 Griffin v. Blanohar, 17 Cal. 71 ; Carr v. Caldwell, 10 Cal. 384. 
 
 3 Eyster v. Hathaway, 50 m. 521. 
 
 I 
 
191 FROM WHAT IT IS EXEMPT. §§ 224-225' 
 
 S 224. Purehase-money of outstanding tltle-^ — If' the 
 
 busband purchase an outstanding title to the homestead, in 
 order to secure the continued enjoyment of the right, it will 
 be presumed to have been necessary ; but the presumption 
 may be rebutted by the wife, upon showing that she or her hus- 
 band owned the paramount title when the outstanding title 
 was acquired ; and if the wife shall show that the real title 
 was so held when the outstanding title was obtained, then the 
 consideration agreed to be paid will not be regarded as pur- 
 chase-money, so as to subject the land to payment. On the 
 other hand, if the wife fail to show that the paramount title 
 was already held by either herself or her husband, it will be 
 considered that the money agreed to be paid for such subse- 
 quently acquired title is purchase-money.^ 
 
 § 225. What -will be held to be purehase-money. — 
 
 Where A owned a tract of land which he had mortgaged 
 to B for $1,400 : C wished to buy this tract from A for 
 f3,000, and another tract from B for $1,600. It was ar- 
 ranged that A should convey his tract for $3,000, less the 
 mortgage, and that _ B should then convey both tracts to 
 C for $4,600 ; C to pay $1,000 down, and give a mortgage for 
 the balance. 
 
 It was held that this was a sale of the whole from B to C, and 
 that the mortgage being given for part of the purchase-mon- 
 ey, C could not claim a homestead in the ti'act of A to defeat 
 the foreclosure.^ 
 
 And when land was bought, and the purchaser indorsed 
 the note of a third person to the vendor in payment, and 
 transferred a mortgage to him securing the note of such third 
 person : held, that this was no novation of the original con- 
 tract, no change in the relation of the parties to each other as to 
 deprive the vendor of his right to enforce the payment of the 
 purchase-money by levy on the land under execution against 
 the maker and indorser of the note. (The land had been 
 set apart as a homestead by the purchaser.) The land being 
 the consideration for the indorsement of the note, and for the 
 
 1 Oassell V. Rosa, 33 111. 244. 2 Welder v. Clark, 27 111. 251. 
 
§ 226 FROM WHAT IT IS EXEMPT. 192 
 
 mortgage, until they are paid the claim of the vendor for 
 the purchase-money is superior to the homestead. ' 
 
 Again, where A sold land to B, taking his note for the pur- 
 chase-money secured by a mortgage on the land, which was 
 duly recorded, and B sold a portion of the land to C, who 
 paid a part of the purchase-money to B, and for the balance 
 joined with B in a note to A, secured by a mortgage 
 on the land of both B and C, A giving up the old mortgage, 
 it was held that on foreclosure the fi. fa. may sell the land of 
 C, notwithstanding C may have had the same set off as a 
 homestead ; whether the purchase-money debt of C to B was 
 satisfied by novation is not material. The note and mort- 
 gage given by C to A was for the removal of an incumbrance 
 from the land, and brought the land within the exception of 
 the clause of the Constitution of 1868.^ 
 
 § 226. Purchase-money, action at la-w on note, spec- 
 ial execution. — Where the vendor took a mortgage for the 
 purchase-money of his vendee, who occupied the premises as 
 a homestead, it was held that it was not a debt arising after 
 the purchase of such homestead, and may therefore be sub- 
 jected to satisfaction for the same ; and the husband can 
 give a valid mortgage to secure the purchase-money without 
 the concurrence and signature of his wife. And if the vend- 
 or, instead of proceeding to foreclose his mortgage, brings 
 an action at law on one of the notes secured by the mortgage, 
 and gets judgment, the judgment is, as between him and his 
 vendee, a lien on the mortgage premises from the date of re- 
 cording of the mortgage ; but before such judgment lien can 
 relate back as to third persons, the property must be de- 
 scribed in the same, and a special execution directed to 
 issue.' 
 
 Of course, a subsequent homestead right does not affect the 
 vendor's lien in any way.* 
 
 1 Lane v. Collier, 46 Ga. 580. 
 
 SHawkes v. Ha-wkes, 46 Ga. 204. 
 
 3 Christy v. Dyer, 14 Iowa 438 ; Redfield v. Hart, 12 Iowa 35§ ; Lassen u. 
 Vance, see 8 Cal. 271 ; Cole v. Gill, 14 Iowa 527; Burnap v. Cook, 16 Iowa. 
 149 ; Bai-nes v. Gay, 7 Iowa 26 ; Pratt v. Delavan, 17 Iowa 307. 
 
 4Id. 7Iowa 26. 
 
193 FROM WHAT IT IS EXEMPT. §§ 227-229 
 
 § 227. What is not purchase-money — Definition of 
 vendors. — In Pennsylvania, it is held that where a person 
 who advances money to the purchaser to pay the vendor for 
 realty sold, does not stand in the place of the vendor so far 
 as regards a hen for the money advanced. " Manifestly he is 
 a loan creditor, and nothing more." Therefore, it was held 
 that a widow was entitled to her exemption as against such 
 loan creditor. " The possessors of vendor's liens are a well 
 defined class of creditors. They are those who have parted 
 with their lands in consideration of the price agreed to be 
 paid, and to give any part of that to the widow of the pur- 
 chaser would he to endow her out of the vendor's property, 
 instead of her husband's. But a man who lends money to 
 pay the purchase price of land is by no means a vendor, nor 
 can he have a vendor's lien on the land." * 
 
 § 228. Vendor's lien, -where there is -waiver of ex- 
 emption in Pennsylvania. — The eiFect of a waiver of the 
 exemption on the part of the debtor in Pennsylvania, seems 
 to work a great hardship on the vendor in some cases. It is 
 said that when the exemption under the act is claimed by 
 the debtor, no creditors, except creditors for unpaid purchase- 
 money, can levy on the exempt property ; but where the ex- 
 emption is not claimed, or having once been claimed, has 
 been waived, purchase-money liens rank with all other liens, 
 that is, according to their date of docketing. The claim for 
 exemption is a personal privilege, and the debtor has a right 
 to withdi-aw it, even though a withdrawal of the exemption 
 claim will give the fand to the first judgment creditors in 
 preference to the holder of the vendor's lien.^ 
 
 § 229. Purchase-money under the Rev. Code of Mis- 
 sissippi. — Art. 284, p. 530, provides that " no property is ex- 
 empt when the purchase-money forms, in whole or in pai-t, the 
 debt on which the judgment is founded,'.' but such judgment 
 must be against the purchaser ; and if against his executrix 
 
 ' 1 Notte's Appeal, 45 Penu. St. (9 "Wriglit) 361. 
 2 Kyle & Dunlap'B Appeal, 45 Peun. St. (9 Wright) 353. 
 
 , Homestead — 13. 
 
§§ 230-231 FROM WHAT IT IS EXBMEt. 194 
 
 only when the property purchased is real estate, it cannot be 
 enforced under the statute by the sale of the property.' 
 
 § 230. Cases -wherein homestead paramount to vend- 
 or's lien.— In a case arising in Georgia, where A sold land to B, 
 taking his notes for the purchase-money, giving bond for 
 titles, and afterwards indorsed one of the notes to 0, who in- 
 dorsed it to D, and B, having paid some of the purchase-money, 
 abandoned the land, apd A having died, his administrator 
 took possession of the land. Held, that the indorser and minor 
 children of A are entitled to a homestead in the land as 
 against a" judgment obtained by D on the indorsed note 
 against B as principal, and A and C as indorsers. The equity 
 of B, under his bond for title with some of the purchase- 
 money paid, to pay the purchase-money and demand title, 
 does not, in such case, make the lien of the judgment para^ 
 mount to the homestead.^ 
 
 Under the code of Georgia, in force in 1864, it would ap- 
 pear that the homestead was not subject to sale, even for the 
 purchase price of the land. 
 
 In the case of Rushin v. Gance,' it is said that the home- 
 stead and exemption provision of the code, in the exemption 
 law of the State of Georgia, referred to in the Bankrupt Act 
 of the United States, March 2d, 1867, which vests in the 
 bankrupt, free from his debts, whatever property the State 
 exempted from levy and sale under laws in force in the year 
 1864 ; and as, by the code, said homestead is not subject to 
 levy and sale for the purchase-money, a judgment-creditor of 
 a discharged bankrupt, though he obtained his judgment be- 
 fore the bankrupt's discharge, cannot levy upon and sell the 
 , homestead of the, bankrupt set apart by the bankruptcy offi- 
 cials, even though said judgment be for the purchase-money 
 of the homestead. 
 
 § 231. Assignment and transfer of vendor's lien. — ■ 
 
 Some difference of opinion exists as to whether the lien of 
 the vendor passes by the mere transfer of the note or bond 
 
 1 Buckingham v. Nelson, 42 Miss. 417. 
 
 2 Fairoloth v. St. John, 44 Ga. 603. 
 
 3 41 Ga. 180. 
 
195 FROM WHAT IT IS EXEMPT. §§ 232-233 
 
 given for the purchase-money. In Pinchain v. Collard,^ the 
 Court say, in discussing this subject : " Mr. Dart, in his treatise 
 on vendors, B^ys that the lien is assignable by parol, and 
 refers to Dryden v. Frost,^ which fully sustains the conclusion 
 drawn by the author. But in that case there were some pe- 
 culiar circumstances. The vendor not only agreed that the 
 plaintiff" should receive the sum from the purchaser, but the 
 pm'chaser also agreed to pay it to the plaintiff", that is, he gave 
 him his pi'omissory note for the amount. Many authorities 
 might be cited in support of the position that an assignment 
 of the note for the purchase-money transfers, also, the vendor's 
 lien. Among these may be cited Parker v. Kelly, (10 Smed. 
 & M. 184), Tamer v. Hicks, (4 Id. 300), (6 Id. 490), Meigs 
 R. 52, 4 Litt. R. 289, 5 Monroe 287, 18 Ala. 371. 
 
 " In opposition to this view, and that such transactions do 
 not pass the vendor's lien, may be cited 9 Ga. 86, 10 Hemp. 
 871, 1 Bland. Chan. 519, 1 Paige R. 502." 
 
 The Court, however, expressed no opinion, on the point. ' 
 
 § 232. Fraud in the acquisition and disposition of the 
 homestead. — Some diversity of opinion exists in several of 
 the States, in relation to the eff'ect of fraud in the conveyance 
 and acquisition of the homestead, as affiecting creditors and 
 their rights. 
 
 § 233. What is not a fraud on creditors. — It is said that 
 it is not a fi'aud on creditors, for a debtor, even in insolvent 
 'Circumstances, to buy a homestead which will be beyond 
 their reach, with money which would otherwise be applied 
 towards the payment of his debts. So the removal of a lien 
 from the homestead is an act lawful in itself, although a de- 
 fendant, being indebted in a sum of money which was se- 
 cured by a mortgage on his homestead, a^nd afterwards be- 
 
 1 13 Texas 333. In California, and many other States, it is uniformly held, 
 that the mere indorsement of the notes carries with it the mortgages withont 
 any further assignment. Hurt v. Wilson, 38 Cal. 263. 
 
 2 3 Myl & C, 670. 
 
 3 See Chambliss v. Phelps, 39 Ga. 386, where it is held that the fact of the debt 
 being transferred to a person does not change the liability of the land for such 
 purchase price. 
 
§ 234 PKOM WHAT IT IS EXEMPT. 196 
 
 coming insolvent, and after several ' attachments had been 
 issued in suits against him, and levied upon his place of busi- 
 ness, takes the money which he has, and pays off the debt se- 
 cured by mortgage. It wa's held that this action was not an 
 act to hinder, delay, and defraud his creditors.^ 
 
 Nor will an insolvent debtor be deprived of the benefit of 
 the homestead exemption, where he purchases property with 
 his own money, merely because he procures the legal title to 
 be vested in his wife, if his intention was, when he purchased, 
 to hold the property as and for a homestead. But it would 
 be otherwise, if, in taking the title to his wife, his design 
 was simply to acquire property which he could hold in fraud 
 of his creditors. The intention must be manifest that the 
 premises were intended for a homestead.^ Any fraudulent 
 attempt to defeat the homestead right will be frustrated by 
 ihe Courts, even in the husband's lifetime, against all fraudu- 
 lent schemes to defeat it.' 
 
 § 234. A conveyance by a debtor of his homestead is 
 not fraudulent, as to creditors. — And where in such a case 
 the grantee was the debtor's mother, he having purchased the 
 premises with her money, and she having taken the convey- 
 ance in satisfaction of his indebtedness to her, it was further 
 held that she was a bona fide purchaser for value. ^ 
 
 So, where a husband and wife conveyed a farm to their 
 daughter, and subsequently the husband was declared a bank- 
 rupt, on a bill filed by his assignee, the deed was declared 
 fraudulent and void as to creditors. The husband- and wife 
 then claimed a part of the farm as their homestead. The 
 bankruptcy Court, without deciding this claim, ordered the - 
 land sold, subject to any legal claim of the bankrupt, a pur- 
 chaser having brought ejectment for the part claimed and oc- 
 
 1 111 re Henkel, 2 Sawyer, C. C. 305 ; Campbell v. MoManua, 32 Texas 442 ; 
 Bandall v. Bnffingtou, 10 Gal. 493 ; Culver v. JElogers, 28 Oal. 526 ; MoMaaus u. 
 Campbell, 37 Texas 267. 
 
 2 Cipperly v. Rhodes, 53 111. 346. 
 
 3 Still V. Saunders, 8 Cal. 286. 
 
 i Hibben v. Soyer, 33 Wis. 319 ; Bartholomew v. West, 2 Dill. 293 ; Eix v. 
 Capitol Bank, 2 Dill. C. 0. 369 ; Cox v. Wilder, 2 Dill. C. C. 45 ; Perry v. Tay- 
 lor, 'lO Bank. Reg. 203. 
 
197 FROM WHAT IT IS EXEMPT. § 235 
 
 cupied as a homestead. It was held 'that the purchaser was 
 not entitled to recover. The deed being set aside, the title 
 reverted to the bankrupt, and then passed to his assignee, 
 subject to the exemptions of the bankrupt act.* 
 
 A grantor who makes a conveyance of his land which 'is 
 fraudulent as to his creditors, does not thereby forfeit his right 
 to a homestead as to such creditors. They can sell, under an 
 execution, only the remaining part of his land, leaving the 
 homestead to be contested between the alleged fraudulent 
 grantor and grantee,^ and where a conveyance, made by a 
 debtor, has been set aside as a fraud upon the rights of his 
 creditoi's, the creditors cannot, under an execution issued 
 under the decree in the case, set up the fraudulent convey- 
 ance against which they claim, as a bar to the debtor's asser- 
 tion of his right to have a family homestead exempted from 
 sale on execution.^ 
 
 §,235. Fraudulent acts of ovirner of which the law 
 ■will not permit a denial. — In the case of Welch v. Rice,^ 
 the Court says, in speaking of homestead claimants, " owners 
 can do some acts which the policy of the law will not permit 
 them to gainsay or deny." If " a married woman, evidently 
 free from all constraint, and with a full knowledge of her 
 rights, should represent that a certain tract of land was not 
 her homestead, and then cause a person to purchase it, she 
 would be concluded by her acts ; but if the party purchasing 
 should know all the facts, or by reasonable diligence could 
 know, and it should be apparent that the married woman was 
 not entirely free from restraint, or was not cognizant of her 
 ■rights, whatever admissions might be made under these or 
 similar circumstances could not, with any propriety, be said 
 to influence the purchaser, or to estop the married woman 
 from asserting her rights. These admissions, whether of law 
 
 1 MoFarland v. Goodman, Circuit Court U. S., East. Dist., Wis. ; Law Regis- 
 ter, Nov. '74, p. 697 ; In re Pratt, Pacific L. Rep., Jan. 23d, '74 ; Smith v. Kerr, 
 2 Dillon 63 ; In re Detrick, 14 Am. L. Eeg. 166 ; Volger v. Montgomery, 13 Am. 
 L. Beg. 244. 
 
 2 Crummen v. Bennett, 68 N. C. 494. 
 
 3 Sears v. Hanks, 14 Ohio 298. 
 * 31 Texas 688. 
 
§§ 236-238 FROM WHAT IT IS EXEMPT. 198 
 
 or of fact, which have been acted on -by others, and which 
 were calculated to influence a prudent man^ and which were 
 the cause of another's actions, and which were deliberately 
 and knowingly made, are conclusive against .the party making 
 thera, in all cases between him^and her, and the person whose 
 conduct was thus influenced." 
 
 § 236. The English doctrine in regard to conveyances 
 in fraud of creditors is, that in order to make even a volun- 
 tary conveyance, without consideration, void as to creditors 
 existing or subsequent, it is indispensable that it should trans- 
 fer property which would be liable to be taken in execution 
 for the payment of debts. Clearly this principle applies to 
 the conveyance of homesteads, which have a paramount en- 
 during exemption from all debts ; and the conveyance of the 
 homestead premises for a valuable consideration, or even for 
 no consideration, cannot be deemed a conveyance to defraud 
 creditors.* 
 
 § 237. Exemption not an incumbrance, claim, or lien — 
 Fraudulent representation. — The exemption of real estate 
 fi'om sale on execution is not an " incumbrance, claim, or lien ' ' 
 on the land. The householder was none the less the owner be- 
 cause of the exemption of the entire estate in the premises. 
 His power of disposition thereof is not thereby in any degtee 
 impaired. So, where a man applied for credit, and repre- 
 sented that there was no incumbrance, claim, or lien on his 
 property, with the exception of a small mortgage, (though he 
 had recorded his property a^ a homestead), it was held that 
 he had not committed such fraud as would estop him from 
 claiming the exemption of the premises from sale under an 
 execution issued for the debt contracted on the faith of his 
 representations in regard to his property. ^ 
 
 § 238. Deed, intent to delay and defraud creditors. — 
 
 But a deed made with intent to hinder, delay, and defraud 
 creditors is valid as to every person but those intended to be 
 
 1 See Wood v. Chambers, 20 Texas 247 ; Martel v. Somers, 26 Texas 551. 
 
 2 Eobinson v. WiUy, 19 Barb. 157. 
 
199 FROM WHAT IT IS EXEMPT. § 238 
 
 defrauded thereby ; and the grantor in such deed can have 
 no homestead right in the premises conveyed. ' 
 
 So, in Pennsylvania, it is held under their $300 exemption 
 law, that a conveyance of real estate in fraud of creditors 
 estops a debtor from demanding f 300 worth of the proceeds 
 of a sheritTs sale, a principle which applies itself with equal 
 force to transfers of personal property in fraud of creditors, 
 or the concealment thereof.^ 
 
 1 Piper V. Johnston, 12 Minn. 60. 
 
 2DeifiEenderfer v. Fisher, 3 Grant's Cases 30 ; Edwards v. Mahon, 5 Phila. R. 
 531 ; Strouse's Ex. v. Becker, 38 Penn. St. 190; Emerson u. Smith, 51 Penn. St. ,90 ; 
 Freeman v. Smith, 6 Casey 264 ; McCarthy's Appeal, 68 Penn. St. 217 ; Huey's 
 Appeal, 29 Penn. St. 219 ; Smith v. Emerson, 43 Penn. St. 465. 
 
 The weight of authority in the recent decisions of the XJ. S. Courts are 
 against these rules. See Sees. 468-471, and 489, Bankruptcy Chapter. 
 
289 HOW DIVESTED. '200 
 
 CHAPTER IX. 
 
 HOW DIVESTED. 
 
 1. Alibnation, Contbyancb. 
 
 A. By both Spouses. 
 
 2. By Contkact to Convey. 
 
 3. By Moktgage, Deed of Tbust. 
 i. By Abandonment. 
 
 5. By "Waiybk. 
 
 BY CONVEYANCE. 
 
 § 239. Former rule relating to the effect of alienation 
 by husband alone. — Formerly the view obtained, and it still 
 obtains in a few of the States, that the occupancy of a piece 
 of land as a homestead merely suspended the operation of 
 any alienation, incumbrance, or liens concerning it, during the 
 time it was so occupied as a homestead ; for instance, that 
 every deed, mortgage, or other conveyance of the homestead 
 by the husband alone, and every lien or incumbrance ob- 
 tained through his act, or against him alone, is as .effectual 
 and binding on the homestead as it would be on any other 
 land, except that its operation is merely suspended while it is 
 so occupied as a homestead ; and that as soon as the land ceases 
 to be occupied as a homestead, such deed, mortgage, lien, or 
 incumbrance then comes into instant and effective operation, 
 or in other words, that the husband alone, by his own act, 
 could alienate his homestead as fully and completely as he 
 -could any other land, by a deed, mortgage, or other con- 
 veyance thereof, or by allowing a decree of Court to go 
 against him for it, or by allowing a judgment lien to attach 
 thereto, except, however, that such alienation is subject only 
 
201 HOW DIVESTED. § 240 
 
 to the contingency of his continuing to occupy the land as a 
 homestead.^ 
 
 g 240. The more recent vieAV, and the one which seems 
 most consonant with the object to be attained, namely, the 
 protection of the family against the" improvidence or misfor- 
 tune of its head, is that no incumbrance or lien can ever at- 
 tach to or affect the homestead, except such as are specifically 
 mentioned in the enactment, constitutional or statutory, crea1> 
 ing the exemption. In general, there are liens for the pur- 
 chase-money, vendors', mechanics', and laborers' liens, and 
 mortgages lawfully obtained, with the written consent of the 
 wife, and the lien of taxes. IsTo alienation by the husbaild 
 alone, in whatever way it may be attempted to be effected, 
 is of any validity. Nothing that he alone can do, or suffer to 
 be done, can cast the slightest cloud on the title to the home- 
 stead — it remains absolutely free from all liens, deeds, or in- 
 cumbrances, except those above mentioned. This latter view 
 has now, in nearly every State, superseded the former, most- 
 ly through statutoi'y regulations.^ 
 
 IGee V. Moore, 14 Cal. 472; Bowman v. Norton, 16 Cal. 213; Atkinaon 
 V. Atkinson, 37 N. H. 434 ; Silloway v. Brown, 12 lUen 30 ; West u. "Ward, 
 26 Wis. 579 ; Simmons v. Johnson, 14 Wis. 523 ; Hoyt v. Howe, 3 Wis. 753 ; 
 Trustees, etc., v. Schell, 17 Wis. 308 ; Lawton v. Bruce, 39 Maine 488 ; Whit- 
 wortli V. Lyons, 39 Miss. 467 ; changed by statute in Miss. ; in Wis. changed by 
 statute of 1858 ; McQuade v. Whaling, 31 Cal. 526 ; Guiod u. Guiod, 14 Cal. 
 506 ; Sampson v. Williams, 6 Texas 109 ; Brown v. Coon, 36 111. 243 ; McDon- 
 ald V. Crandall, 43 111. 231 ; Morris v. Seargent, 18 Iowa 90/; Halt v. Haule, 
 19 Wis. 472 ; Smith v. Provin, 4 Allen 516 ; Allen v. Cook, 26 Barb. 374 ; 
 Chamberlin v. Lyell, 3 Mich. 448 ; Herschfeldt v. George, 6 Mich. 456 ; Folsom 
 V. Carli, 5 Minn. 333 ; Parker v. Dean, 45 Miss. 420. 
 
 2 DeSeliz v. Pico, 46 Cal. 289 ; Lies v. Diablar, 12 Cal. 327 ; Pool v. Gerrard, 
 6 Cal. 71 ; Kevalk v. Kraemer, 8 Cal. 66 ; Dorsey v. MoFarland, 7 Cal. 342 ; Sears 
 V. Dixon, 33 Cal. 326 ; Lord v. Morris, 18 Cal. 482 ; Barber v. Babel, 36 Cal. 11; 
 Lent V. Morrill, 25 Cal. 499 ; Engelbrecht v. Shade, 47 Cal. 627 ; Lloyd v. 
 Frank, 30 Wis. 306; Williams v. Williams, S. C. Tenn., April, 1874; Lamb v. 
 Shay, 14 Iowa 567 ; Dye v. Mann, 10 Mich. 291 ; Larson v. Reynolds, 13 Iowa 
 579 ; Clark v. Shannon, 1 Nev. 568 ; Olson v. Neilson, 3 Minn. 53 ; Thorn v. 
 Darlington, 6 Bush 448 ; Lee v. Kingsbury, 13 Texas 71 ; Dollman v. Harris, 5 
 ■ Kansas 597 ; Stewart v. McKay, 16 Texas 58 ; Morris v. Ward, 5 Kansas 239 ; 
 Rogers v. Renshaw, 37 Texas 625 ; Green v. Marks, 25 111. 221 ; MoManus v. 
 Campbell, 37 Texas 267 ; Bonnell v. Smith, 53 111. 377; Conklin v. Foster, 57 HI. 
 104 ; Parker v. Dean, 45 Miss. 409, changed by statute of 1867 and 1870 ; Stat- 
 utes of Wisconsin, 1858. 
 
§§ 241-242 HOW DIVESTED. 202 
 
 § 241. The natural right of alienation not inhibited. — 
 
 The homestead is exempt from forced sale, but its voluntary 
 alienation is not inhibited. The right of disposition, certain- 
 ly one of the most valuable incidents of ownership, is restrict- 
 ed only by the necessity, if the head of the family be married, 
 of obtaining the consent of the wife in the form prescribed 
 by law, and the owner having the legal, and it has been fre- 
 quently termed the natural right of disposing of his property, 
 can exercise all such powers over the subject-matter as are 
 not inconsistent with the plain and obvious intent of the 
 law.^ 
 
 § 242. Alienation of the homestead by conveyance. — 
 
 Premises which have been dedicated as a homestead can only 
 be divested of that character by the joint deed, or act, of the 
 husband and wife.^ Any conveyance purporting to convey 
 the homestead property must comply with the letter of the 
 statute.'* As a general rule, the statutes require the joint deed 
 of both husband and wife. The husband must make the con- 
 tract and the wife must assent to it, therefore the separate 
 deeds of husband and wife are invalid.^ A conveyance by 
 the husband alone is an absolute nullity while the premises 
 
 1 Sampson v. 'Williamsoii, 6 Texas 109. 
 
 2 Taylor u. Hargous, 4 Cal. 273 ; Halt v. Haule, 19 Wia. 472 ; Gee v. Moore, 
 14 Cal. 475 ; Williama v. Star, 5 Wis. 534 ; Sargent v. Wilson, 5 Cal. 504 ; 
 Goldman v. Clark, 1 Nev. 607 ; Lies v. Diablar, 12 Cal. 327 ; Lee v. Kingsbury, 
 13 Texas 71; Patterson v. Kreig, 29 111. 514 ; Rogers v. Eenshaw, 37 Texas 625 ; 
 Boyd V. Cudderbaok, 31 111. 113 ; Morris v. Seargent, 18 Iowa 90 ; Alley v. Bay, 
 9 Iowa 509 ; Bumside v. Terry, 45 Ga. 621 ; Simpson v. Robert, 35 Ga. 180 ; 
 Atkinson u. Atkinson, 37 N. H. 434 ; Horn v. Tuft, 39 N. H. 478 ; Davis v. 
 Andrews, 30 Vt. 678 ; Greenough v. Turner, 11 Grey 332 ; Jenney v. Grey, 5 
 Ohio Stat. 45; Rev. Stat. N. Y. (1850) 615; Olsen v. Nelson, 3 Minn. 53; 
 Lawrer v. Slingerland, 11 Minn. 447 ; Sharp v. Baily, 14 Iowa 387 ; Yost v. De- 
 vault, 9 Iowa 60 ; Riehl v. Bingenheimer, 28 Wis. 84 ; Tisher v. Meister, 24 
 Midh. 447 ; Ring v. Burt, 17 Mioh. 465 ; Williams v. Williams, S. C. Tenn., Apl. 
 Term, 1874 ; How v. Adams, 28 Vt. 541 ; Connor v. McMuny, 2 Allen 202 ; Thorn 
 V. Darlington, 6 Bush 448. 
 
 3 Lies ^.Diablar, 12 Cal. 327 ; Toung i>. Van Benthuysen, 30 Texas 763; 
 Hamblin u. Wfirneoke, 31 Texas 91. 
 
 4 Pool V. Gerrard, 6 Cal. 71 ; see Luther v. Drake, 21 Iowa 92 ; Dorsey v. Mo- 
 Farland, 7 Cal. 342 ; How v. Adams, 28 Vt. 544 ; Van Reynegan v. Revalk, 8 
 Cal. 75. 
 
203 HOW DIVESTED. § 242 
 
 continue impresssed with the homestead character.' Aud 
 even if the husband and wife gave up possession of the 
 homestead to the purchaser under such a conveyance they 
 would not be estopped thereby from bringing ejectment 
 against him to recover possession of the homestead.^ So, if 
 after a conveyance by the husband alone, the husband and 
 wife were to join in a valid conveyance, in the mode pre- 
 scribed by law, to a third person, the vendee of the husband 
 and wife would succeed to all their right, title, and interest in 
 the homestead, notwithstanding the prior conveyance to the 
 vendee of the husband.^ While, in 'New Hampshire, it is 
 requisite that the wife should join in the act of alienation, yet, 
 if the husband conveys the homestead without the concur- 
 rence of the wife, the grantee takes it subject to the home- 
 stead right of the wife, till such time as the husband acquires 
 a new homestead, which, though of less value than the former, 
 terminates.the right.'* So in the case of Horn v. Tufts,* it is 
 held that if a husband conveys an undivided half of the 
 homestead on which he and his family have lived, to a third 
 person, and his wife does not join in the deed, but the 
 grantee enters into possession of his part and the husBand con- 
 tinues to occupy the residue in common as his homestead, 
 the homestead right becomes limited to the half so occupied. 
 In that State the homestead does not become assignable until 
 the homestead has been set out by metes and bounds.' 
 
 l^Except in the State of Mississippi, see Thorns v. Thorns, 45 Miss. 243. 
 
 2 Taylor v. Hargous, 4 Gal. 268 ; Dorsey v. McFarland, 7 Gal. 345 ; White v. 
 Glark, 36 111. 285 ; Boyd v. Cudderbaok, 31 HI. 113 ; see McDonald v. Grandall, 
 43 111. 232. 
 
 SLeeu. Kingsbury, 13 Texas 71 ; Sampson v. Williamson, 6 Texas 109 ; Stew- 
 art V. McKey, 16 Texas 58 ; Rogers v. Renshaw, 37 Texas 625 ; see Young v. 
 Van Benthuysen, 30 Texas 763 ; Hambliu v. Warneoke, 31 Texas 91 ; Alley v. 
 B^y, 9 Iowa 509 ; Yost v. Devault, 9 Iowa 60 ; Williams v. Sweetland, 10 Iowa 
 51 ; Doyle v. Cobum, 6 Allen 72 ; G-ee v. Moore, 14 Gal. 472 ; Drury v. Baohelder, 
 11 Grey 214 ; Bowman i;. Norton, 16 Gal. 213. 
 
 i Atkinson v. Atkinson, 37 N. H. 434 ; Gunnison v. Twitohell, 38 N. H. 62 ; 
 Horn V. Tufts, 39 N. H. 478 ; see Davis u. Andrews, 30 Vt. 678 ; How v. 
 Adams, 28 Vt. 541 ; Sargent v. Wilson, 5 Gal. 504. Compare Eiohards v. 
 Chaoe, 2 Gray 283 ; Williams v. Starr, 5 Wis. 534 ; Yost v. Devault, 9 Iowa 60 ; 
 Alley V. Bay, 9 Iowa 509 ; Jenny v. Grey, 5 Ohio St. R. 45. 
 
 5 Gunnison v. Twitohell, 38 N. H. 62 ; Bennett v. Cutter, 44 N. H. 69 ; At- 
 kinson V. Atkinson, 37 N. H. 434. 
 
§ 242 HOW DIVESTED. 204 
 
 So, in Massachusetts, it is held that where a householder, 
 with a homestead estate in his land, has alienated such land, 
 but without relinquishing his right of homestead, the grantee 
 is the general owner, entitled to the whole, except so far as 
 his grantor's special title may exclude him ; and until his 
 homestead has been set out to the grantor, he and the owner 
 of the residue are in the relation to each other of tenants in 
 common. 1 We have seen in the California cases, cited in this 
 section, that any conveyance or mortgage of the homestead 
 premises ' by the husband alone was absolutely void if the 
 homestead was of less than the statutory value, and was void 
 to the extent of that value, if they were worth more. After- 
 wards, in a series of decisions by Field, C. J., it was held 
 that the title in the homestead continued and remained iu the 
 husband, and that a conveyance or mortgage by him alone 
 was valid, bitt valid, subject to the right of the husband and 
 his family to remain in possession of the premises so long as 
 it remained their homestead, but that the husband had the 
 power at any time, by removal, to terminate their home- 
 stead.^ In the case of Gee v. Moore, it was held that a sale of 
 the homestead premises by the husband alone vested the es- 
 tate in the vendee, subject only to the right of the family tore- 
 main in possession until another homestead was acquired, or the 
 character of the premises as a homestead was otherwise gone ; 
 and upon the death of the wife without issue living, or by the 
 abandonment of the premises by the husband, the pi'operty 
 ceased to be homestead, and the vendee of the husband was im- 
 mediately entitled to the possession. But in 1860 an amend- 
 ment to the homestead law was passed, by which the homestead 
 estate was vested in the husband and wife as joint tenants, thus 
 making the husband's single deed to convey the property in- 
 valid ; and in 1862 another amendatory act was passed, which 
 provided (Sec. 2) that : " No alienation, sale, conveyance, 
 
 1 Sillo-way v. Bro-wn, 12 Allen 30. 
 
 2 Gee V. Moore, 14 Cal. 472 ; Guiod v. Gaiod, 14 Gal. 506 ; Bowman v. Norton, 
 16 Cal. 213 ; as to the question of removal, and the domicile of the husband and 
 domicile of the wife, see Am. Lead. Cases, vol. 1, 737 ; Lacy v. Clemens, 36 
 Texas 661 ; Meyer v. Glaus, 15 Texas 516 ; Earl v. Earl, 9 Texas 634 ; Story Con- 
 flict of Laws, 45 ; Johnson v. Smith, 21 Texas 726 ; The Bepublio v. Young, Dal- 
 lum 464 ; Russell v. Randolph, 11 Texas 460 ; State v. Skidmore, 5 Texas 469. 
 
205 HOW DIVESTED. § 242 
 
 mortgage, or other lien of or upon the homestead property 
 shall be valid or eft'ectual for any purpose whatever, unless 
 the same be executed and acknowledged by his wife, if the 
 owner be married, and the wife be a resident of the State, in ' 
 the same manner as provided by law in the case of the con- 
 veyance by her of her separate and real property." 
 
 So, in Illinois, under the amendment of the Homestead Act 
 of 1857, it was held, that where the owner of a homestead, 
 residing upon it with his family, since the passage of the fore- 
 going amendnient, executed a deed of conveyance thei'efor, 
 but did not relinquish the homestead exemption, such a con- 
 veyance operates to pass the fee, but suspends its operation 
 until the grantor abandons the premises, or surrenders posses- 
 sion to the grantee. But where a party conveys the home- 
 stead, and the exemption is not relinquished in the mode 
 prescribed by law, the grantee does not acquire such a title 
 as will, authorize a recovery in ejectment, or enable him to 
 defend against his grantor, still remaining in possession in an 
 action of trespass on the premises.' 
 
 In California, the right of homestead had attached to certain 
 premises ; the husband subsequently became insane, and a 
 guardian, appointed to take charge of his affairs, petitioned 
 the Court making the appointment for an order to sell the 
 homestead, which order was granted, and the property sold 
 under direction of the Court, the wife not joining in the deed 
 of sale. It was held' that such sale was- invalid, though the 
 wife knew of the proceedings, and received part of the pro- 
 ceeds of the sale, she not having joined in the conveyance ; 
 the guardian having no greater right or authority than the 
 ward would have had, had no disability existed on the part of 
 the husband.^ 
 
 But in Massachusetts, under a somewhat similar statute, 
 the Couzi; of that State held that the law did not exempt the 
 homestead from sale by the guardian of the owner, for pay- 
 ment of his debts, and for his support. ^ 
 
 1 McDonald v. Crandall, 43 111. 232 ; Hewitt v. Templeton, 48 111. 367. 
 
 2 Fledge v. Garvey, 47 Cal. 371. 
 
 3 Wilber v. Hipkey, 8 Gray 432. See Chapter Deaoent and Probate, for fuller 
 statement of these oases. 
 
§§ 243-245 HOW divested, 206 
 
 § 243. Aokno-wledgment of wife in alienations of the 
 homestead. — In many of the States, it.is absolutely essential, 
 in order to make a valid conveyance of the homestead, that 
 the wife acknowledge the deed separate and apart from her 
 husband, and the acknowledging officer is bound to certify that 
 he made her acquainted with the contents of the instrument, 
 and that she signed and acknowledged it freely and of her 
 own volition.^ 
 
 § 244. Special release of the homestead estate requi- 
 site, in some of the States. In order that the deed shall 
 pass the homestead right of the grantors, it must contain a 
 special release of the right in express terms. Where the 
 hbmestead is not specifically named as conveyed, no general 
 language in the deed, though it comprehend " every claim, 
 interest, or estate, of whatever description at law or in equity," 
 will pass the right or estop the householder from asserting it 
 against any one claiming under the deed.^ And in some few 
 of the States, the wife must join in the granting part 
 of the deed, and her name must appear in the in testimonium 
 part thereof.' 
 
 § 245. Not essential to state that it is the homestead 
 that is intended to be conveyed. — While in some few of 
 the States it is necessary to relinquish the homestead in ex- 
 press terms, in others it is not essential to the validity of a 
 conveyance, mortgage, or deed of trust of the homestead, 
 that the grantors state explicitly that it is the homestead 
 
 1 Toung V. Van Benthuysen, 30 Texas 763 ; Goldman v. Clark, 1 Nev. 607 ; 
 Clark V. Shannon, 1 Nev: 568 ; Bumside v. Terry, 45 Ga. 621 ; Code of Tenn. '' 
 2114 ; Williams v. Williams, Sup. Ct. Tenn., April, 1874 ; Myers Sup. (Ky.) 714 ; 
 
 6 Bush (Ky.) 448 ; Pascal's Digest, Texas, Art. 1003 ; Sargent v. Wilson, 5 Gal. 
 505 ; Codes of Cal., Sees. 1186 and 1191 ; Lees v. Diablar, 12 Cal. 327 ; Fisher v. 
 MeiSter, 24 Mich. 447 ; Bev. Stat. N. T. 615 ; Act of 1850 ; How v. Adams, 28 
 Vt. 543 ; Halt v. Haule, 19 Wis. 472 ; Olsen v. Nelson, 3 Minn. 53, changed 
 in Minn, by statute of 1860 and 1866 ; see Lawler v. Slingerland, 11 Minn. 447. 
 
 2 Miller v. Marokle, 27 111. 405 ; Sharp v. Baily, 14 Iowa 387 ; Pardee v. Lind- 
 ley, 31 111. 187 ; Larsen v. Eeynolds, 13 Iowa 579 ; Patterson v. Kreig, 29111. 514 ; 
 Greenough v. Turner, 11 Grey 332 ; Vanzant v. Vanzant, 23 111. 540 ; Drury v. 
 Bachelder, 11 Grey 214 ; Doyle v. Cobum, 6 Allen 72 ; Silloway v. Brown, 12 
 Allen 30 ; Adams v. Jenkins, 16 Grey 146. 
 
 3 Sharp v. Baily, 14 Iowa 387. 
 
207 HOW DIVESTED. §'§ 246-247 
 
 which they wish to convey or incumber, for the very obvious 
 reason that " the grantors interested in the property are 
 presumed to know what they are granting when they use ex- 
 pressions which accurately describe the property."^ 
 
 § 246. Husband's right to arrange prior equities. — 
 
 The restriction on the power of the husband to dispose of his 
 homestead without the wife's consent, applies only where the 
 husband has acquired full property in the land, and not where 
 it is charged with preceding equities or incumbrances. 
 These must be discharged, because they have precedence over 
 the rights of the homestead privilege ; and the right of the 
 husband to make arrangements in relation to the incumbrance, 
 or to renounce the lands thus burdened or subject to condi- 
 tions and contingencies, cannot be questioned by the wife, in 
 virtue of her remote right, which might arise if the incum- 
 brances or conditions were ever discharged or removed — un- 
 less in cases where the husband is squandering the property 
 with a fraudulent design of depriving his wife of a homestead.* 
 
 g 247. Surplus over statutory value or quantity. — 
 
 "While the general rule is that a grant of the homestead by the 
 husband alone is void, where the premises do not exceed the 
 statutory value or quantity, it is not void as to the surplus in 
 value or quantity. The general rule is- that where a grant 
 is declared void, only that part which conflicts with the 
 statute is void, and the instrument is good itself as to those 
 portions which do not conflict with the statute ; ^ therefore, 
 a sale or alienation of the homestead by the husband alone, 
 without the signature of the wife, is void only as to the statu- 
 tory value of the homestead. Any excess over that value is 
 subject to the control of the husband, and may be disposed 
 of by him in any manner he thinks fit. But where the ex- 
 
 1 Pfeiffer v. Reihn, 13 Cal. 643 ; Baboook v. Hoey, 11 Iowa 375 ; O'Brien v. 
 Yoiing, 15 Iowa 5. 
 
 2 White V. Shepherd, 16 Texas 163 ; Tunstel v. Jones, 25 Ark. 372 ; Cassell v. 
 Eoss, 33 m. 245 ; Hawkes v. Hawkes, 46 Ga. 204 ; Chriaty v. Dyer, 14 Iowa 
 438; Lassen v. Vance, 8 Cal. 271. 
 
 3 People V. Biirbank, 12 Cal. 378 ; 1 Blk. Com. 87 ; French v. Teschemaker, 24 
 Cal. 518. 
 
§§ 248-249 HOW divested. 208 
 
 cess is sold, the interest conveyed must be defined and cer- 
 tain, otherwise the purchaser will be unable to show any ti- 
 tle to any particular part of the premises of which a Court 
 could take notice. "^ In Michigan, however, it was held that 
 a conveyance by a husband of an estate in which he has a 
 homestead without joinder of the wife, is void as to the en- 
 tire estate, and not only to the extent of the homestead in- 
 terest.^ 
 
 § 248. Deed of husband alone to lands held in joint or 
 common tenancy. — There is nothing to prevent the owner 
 of an undivided interest in land held in joint tenancy or ten- 
 ancy in common, from conveying it without the concurrence 
 and signature of his wife, even though he and his wife have 
 been residing on the land and using it as their homestead, in 
 those States such as California, Indiana, Massachusetts, l^ew 
 Hampshire, Wisconsin, and some others, wherein the right of 
 homestead is denied in lands so held.' 
 
 § 249.. Conveyance by the husband and wife of an 
 undivided interest destroys the right of homestead 
 
 in those States where the right is denied in lands held in 
 common. The reason assigned being, that as a husband arid 
 wife could, by joining in a conveyance, destroy the homestead 
 right already acquired by selling the whole of the homestead 
 property, so they could destroy the homestead right by sell- 
 ing an undivided portion thereof, and thereafter the residue 
 would be subject to the disposition of the husband alone.* 
 
 1 Gary v. Bastabrook, 6 Cal. 457 ; Atkinaon v. Atkinson, 37 N. H. 434 ; Gun- 
 nison V. Twitchell, 38 N. H. 62 ; Stewart v. Maokey, 16 Texas 57 ; Rogers v. 
 Renshaw, 37 Texas 625 ; Smith v. Provin, 4 Allen 516 ; Thorn v. Darlington, 
 (Ky.) 6 Bush 448 ; Dye v. Mann, 10 Mich. 291 ; Booker v. Anderson, 35 111. 67 ; 
 Boyd i;. Cudderworth, 31 111. 113 ; Swan v. Stevens, 99 Mass. 9 ; Sargent v. 
 Wilson, 5 Cal. 504 ; Lies v. Diablar, 12 Cal. 327 ; Horn v. Tufts, 39 N. H. 478 ; 
 Davis V. Andrews, 30 Vt. 678 ; How v. Adams, 28 Vt. 541 ; Clark v. Shannon, 
 1 Nev. 568 ; Green v. Marks, 25 111. 221 ; Bliss v. Clark, 39 HI. 590 ; Brown v. 
 Coon, 36 111. 248 ; Luther v. Drake, 21 Iowa 92 ; Halt v. Haule, 19 Wis. 472. 
 
 2 Dye V. Mann, 10 Mich. 291. 
 
 3 West V. Ward, 26 Wis. 579 ; Thurston v. Maddook, 6 Allen 427 ; Parker v. 
 Dean, 45 Miss. 409 ; Kellersherger v. Kopp, 6 Cal. 563 ; Wolf u. Fleisohacker, 5 
 Cal. 244 ; Giblin v. Jordan, 6 Cal. .416 ; Elias v. Verdugo, 27 Cal. 418. 
 
 4 kellersherger v. Kopp, 6 Cal. 565 ; Parker r. Dean, 45 Miss. 409, 423. But 
 
209 HOW DIVESTED. . §§ 250-254 
 
 § 250. Alienation by husband alone of house on leaseA 
 land. — "Where a man of family has been living in his own 
 house, which is on leased ground, and using the premises as 
 a homestead, he may, in Wisconsifi, assign the lease and sell 
 the house without the consent and signature of his wife.^ 
 
 § 251. Conveyance of property by husband before 
 selection. — The owner of premises may convey the same 
 without the signature of the wife, if such conveyance is made 
 before selection of the premises as a homestead.^ 
 
 § 252. -Fraudulent procurement of -wife's signature 
 to husband's deed of honxestead. — A conveyance of the 
 homestead, by the husband, for which he receives the consid- 
 eration, but in which the wife does not join, or to which her 
 name is signed by a third party without authority, is void, 
 and will be set aside at the suit of the husband and wife. 
 The rights of the wife, and those of the family, in the home- 
 stead, cannot be prejudiced or affected by the fraudulent acts 
 or bad faith of the husband in the sale and conveyance there- 
 of.^ It has also been held, that the conveyance of the home- 
 stead by the husband is not valid as against his wife, although 
 it appears he had signed his wife's name to the deed, and that 
 he had been in the habit of so executing deeds with the ac- 
 quiescence of the wife.* 
 
 § 253. The vT^ife cannot sell her interest in the home- 
 stead to her husband. — Such a pretended sale would be a 
 sale to herself, and would be ineffectual for any purpose 
 whatever.^ 
 
 i 254. The husband can convey the homestead to a 
 trustee for benefit of -wife. — A married man, owning a 
 
 see the better rule in the case of Horn v. Tufts, 39 N. H. 478, and Silloway v. 
 Brown, 12 Allen 30. 
 iPlatto u. Cady, 12 Wis. 461. 
 
 2 Wiener v. Famham, 2 Mich. 475. 
 
 3 Eli V. Gridley, 27 Iowa 376. See distinction in Brown v. Coon, 36 111. 243. 
 
 4 Morris v. Seargent, 18 Iowa 90. 
 
 5 Welch V. Eioe, 31 Texas 688. 
 
 Homestead — 14. 
 
§§ 255-256 HOW divested. . 210 
 
 homestead, is capable of conveying such homestead to a 
 trustee for the benefit of his wife and children, without 
 the signature of the wife being necessary to the validity of 
 the conveyance — the trusf being a passive trust. The deed 
 would not be void for want of the wife's signature, not being 
 an "alienation" of the homestead within the meaning of the 
 law, and the trust being passive the trustee takes no title, but 
 the estate vests immediately in the cestui que trust. ^ Besides, 
 a right of homestead is not aft'ected by even a fraudulent deed 
 . from the owner of the land to his wife, through the medium 
 of a third person.^ So, a conveyance of the homestead, by 
 parents to their son, to induce him to live with them on the 
 place, which they were to assist him in cultivating, being 
 merely a means of applying the homestead more effectually 
 to the maintenance of the grantors, held not to extinguish 
 their rights under the homestead exemption law.^ 
 
 §. 255. In Mississippi, the husband alone can alienate 
 the homestead, without the consent or concurrence of the 
 wife. The law provides that " every free white citizen of 
 this State, male or female, being a householder and having a 
 family, shall be entitled to hold exempt, etc., and such ex- • 
 emption shall continue after the death of such householder, 
 for the benefit of the widow of said deceased." * 
 
 It was held that, in the absence of any restrictions in the 
 statutes, it would seem "to follow that the title remains in 
 the debtor, and his power of disposition is unembarrassed. 
 There is no restriction in the statutes. The prominent idea 
 is to exempt the homestead from creditors." ^ 
 
 BY CONTilAOT TO CONVEY. 
 
 § 256. Contract to convey homestead executed by 
 husband alone. — As in most of the States a conveyance of 
 
 1 Eiehl V. Bengenheimer, 28 Wis. 84. 
 
 2 Castle V. Palmer, 6 Allen 401. 
 
 3 Murphy u. Crouch, 24 Wis. 365. 
 
 i Rev. Code, Art. 281, p. 529, Acts of 1865 and 1867. 
 6 Thorns V. Thorns, 45 Miss. 263 and 274. 
 
211 Hbw DIVESTED. §§ 257-258- 
 
 the homestead by the husband without the signature of the 
 wife is of no validity, so an executory contract of the husband 
 will not be enforced against the homestead.^ 
 
 § 257. Bond to convey homestead, by husband alone, 
 may be carried out after -wife's death. — If a bond be 
 given by the husband alone in the wife's lifetime, he may 
 make title after her death, because to do so is only to carry 
 into effect a contract which he was fully empowered by law 
 to make at the time of the execution of the bond. It is true 
 that the husband is not at liberty to alienate the homestead 
 during his wife's lifetime without her consent. But a bond ' 
 executed by him in his wife's lifetime, conditioned that he 
 will convey his homestead with a perfect title at a future 
 time, will in contemplation of law be a valid instrument, 
 binding upon the husband, and damages might be recovered' 
 against him for breach of it by suit upon the bond.^ 
 
 § 258. Bond to compel Avife to convey. — Undoubtedly a 
 bond to compel the wife to convey at a future time would be 
 void, because it would be an undertaking to do an unlawful 
 thing. ^ But a bond to make title at some future day to a 
 certain tract of land, the same being the homestead of the 
 obligor and his wife and children, would not be an unlawful 
 -undertaking. Such a contract might be entered into in the 
 confident expectation that the wife would freely make the 
 necessary conveyance ; or it might be entered into with the 
 intention to acquire another homestead before the time 
 elapsed for the performance of the bond. It is true that, while 
 the premises which the party might so undertake by his 
 bond to convey remained the homestead of the obligor and 
 his wife, the Courts would not decree specific performance of 
 the bond. But if the wife should die before the time ex- 
 pired for the performance of the bond,^ or if before the expira- 
 
 1 Except, perhaps, in Mississippi and one or two other States. See Sec. 240, 
 Alienation of the homestead by conveyance, and Sec. 262, Mortgages. 
 , 2Clarkin v. Lewis, 20 Cal. 634 ; Yostu. Devault, 9 Iowa 60 ; Berlin v. Burns, 
 17 Texas 532. 
 
 3'Clarkin v. Lewis, 20 Cal. 634 ; Ward v. Terry, 2 Douglas (Mich.) 344. 
 
§§ 259-260 HOW divested! 212 
 
 tion of that time the obhgor and his wife should acquire 
 another homestead, then the Courts might decree specific per- 
 formance of the bond, because every legal obstacle to a 
 specific performance would be removed. '■ 
 
 § 259. Speoific performance not enforced, damages ob- 
 tained. — It has also been held in California, Michigan, and 
 in Texas, that an executory contract or bond by a married 
 man to Qonvey the homestead premises will not be specifically 
 enforced, but a contract by him to convey the homestead is 
 not void, and damages may be recovered against him for its 
 breach.^ And a contract of a married man for the sale and 
 conveyance of land, being the homestead premises of him- 
 self and wife, is not fulfilled by the tender of a conveyance 
 executed by himself alone, as such conveyance would not pass 
 the title. ^ 
 
 § 260. Contract to convey land executed before adop- 
 tion as homestead, vrill prevent the homestead right from 
 attaching. — A contract by a married man to convey an undi- 
 vided interest in the land, executed before any residence of 
 his family and that of his covenantee on the premises, will 
 prevent the homestead right from attaching. Therefore a 
 deed executed by the husband alone after residence by the 
 family, would be valid.* 
 
 The same principle is adopted in Iowa, where it is held 
 that a subsequent adoption as a homestead of land previously 
 agreed to be sold cannot release the party from his obliga- 
 tion to convey : ^ holding that the plea that the house is 
 "now " a homestead, and that the wife refuses to join in the 
 conveyance, is bad.* 
 
 1 Brewer v. Wall, 23 Texas 585 ; Allison v. Shilling, 27 Texas 450 ; Wright v. 
 Hays, 3i Texas 253 ; Weed v. Terry, 2 Douglas (Mich.) 344. 
 
 2 Weed v. Terry, 2 Douglas (Mich.) 344 ; Clarkin v. Lewis, ^0 Cal. 634 ; Alli- 
 son V. Shilling, 27 Texas 450 ; on the question of damages, see Yost v. De- 
 vault, 9 Iowa 62 ; Cross v. Evarta, 28 Texas 524 ; Brewer v. Wall, 23 Texas 
 585; Wright v. Hayes, 34 Texas 253 ; Ray v. Young, 13 Texas 552 ; 4 Iowa 1. 
 
 3 Clarkin v. Lewis, 20 Cal. 635. 
 
 i Kellersberger v. Kopp, 6 Cal. 563. 
 
 5 Yost V. Devault, 3 Iowa 345 ; same, 9 Id. 60. 
 
 6 Presser v. Hildebrand, 23 Iowa 483. 
 
213 HOW DIVESTED. §§ 261-262 
 
 It would be no obstacle to a decree for specific perform- 
 ance, to the extent of his ability, against a vendor whose wife 
 refused to join him in the deed, that the boundaries of the 
 homestead had not been designated, platted, and recorded ; 
 because the wife might still. do this under the statute, giving 
 the homestead such form as they might elect, for the decree 
 itself might provide for this, by directing the homestead to 
 be marked, platted, and recorded within a prescribed time. 
 
 § 261. A note given in consideration of the cancela- 
 tion of a bond to convey homestead void, for -want of con- 
 sideration. — A note given by the obligor in consideration of 
 the cancelation of the obligation to convey his homestead at 
 a future day, is void for want of consideration.* 
 
 BY MORTGAGE. 
 
 § 262. The homestead is protected against all modes 
 of conveyance, whether of mortgage or deed absolute, un- 
 less released or disposed' of in the manner pointed out by 
 statute. As a general rule, in order to make a valid mort- 
 gage on the homestead, vsdthin the statutory value or quan- 
 tity, such mortgage must be the joint act of husband and 
 wife.^ The homestead is not affected by anything which the 
 husband does, or suffers to be done, without the concurrence 
 
 1 Berlin v. Bums, 17 Texas 532. 
 
 2 KogerB v. Eenshaw, 37 Texas 625 ; Burns v. Jones, 37 Texas 50 ; Stewart v. 
 Maokay, 16 Texas 56 ; Patterson v. Kreig, 29 111. 514 ; Dorsey v. MoFarland, 7 
 Cal. 342 ; Marshall v. Barr, 35 111. 106 ; Revalk v. Eraemer, 8 Gal. 66 ; Best v. 
 Allen, 30 111. 30 ; Van Eeynegan v. Eevalk, 8 Cal. 75 ; Williams v. Starr, 5 Wis. 
 534 ; Cook v. Klink, 8 Gal. 847 ; Hait v. Hauls, 19 Wis. 472 ; Lies v. Diablar, 
 12 Cal. 327 ; Charaberlin v. Lyell, 3 Mioh. 448 ; Brooks v. Hyde, 37 Gal. 366 ; 
 Ksher v. Meister, 24 Mich. 447 ; Lassen v. Eeynolds, 13 Iowa 579 ; Connor v. 
 McMurry, 2 Allen 202 ; Alley v. Bay, 9 Iowa 509 ; Adams v. Jenkins, 16 Gray 
 146 ; Lawver v. Stiagerland, 11 Minn. 447 ; Thorn v. Darlington, 6 Bush 448 ; 
 Gunnison V. Twitohell, 38 N. H. 62 ; Howe v. Adams, 28 Vt. 541 ; Atkinson v. 
 Atkinson, 37 N.H. 434 ; Jenny v. Grey, 5 Ohio St. 45 ; Clark v. Shannon, 1 Nev. 
 568 ; Bumside v. Terry, 45 Ga. 621; Eev. Stat. N. T., 1850, p. 615 ; Simpson v. 
 Eohert, 35 Ga. 180 ; "Williams v. Williams, S. C. Tenn., April, 1874 ; poUman v. 
 Harris, 5 Kans. 597 ; Morris v. Ward, 5 Kans. 239. 
 
§ 262 HOW DIVESTED. 214 
 
 of the wife. Thus, where a married man mortgaged the 
 homestead without the concurrence of his wife, and the hus- 
 band and wife subsequently mortgaged the homestead to 
 another person, the mortgagees of the first aud second mort- 
 gage both foreclosed' their mortgages, neither making the 
 other a party, whereupon the mortgagee of the husband and 
 wife filed a bill against the mortgagee of the husband aloue, 
 to set aside the decree of foreclosure of the latter, alleging 
 that the homestead premises did not exceed the statutory 
 value. The Court held that the holder of the mortgage exe- 
 cuted by the husband and wife could urge the same objections 
 to the mortgage executed by the husband alone, that the hus- 
 band and wife could, and that the decree of foreclosure of 
 the mortgage executed by the husband alone was a cloud 
 upon the title of the holder of the joint mortgage, and was 
 entitled to have it set aside. The reason of the rule assigned 
 was, that any other would allow the husband alone the power 
 to obstruct the right of alienation belonging to both husband 
 and wife. ^ A mortgage executed by the husband alone being 
 thus void, so far as the actual homestead is concerned, it may 
 be sold and conveyed by the husband and wife jointly, and 
 the purchaser will take the title free from all incumbrances, 
 notwithstanding such mortgage. And if a decree of fore- 
 closure be entered on such a mortgage, so executed, after 
 sale or abandonment, against the husband, wherein the wife 
 is not a party, the decree would be void so far as her interests 
 could be affected. The same principles apply, in every res- 
 pect, to mortgages or conveyances executed by, or judgments 
 rendered against, the wife alone, notwithstanding that the 
 legal title to the homestead may be in the wife.^ 
 
 1 Dorsey v. MoFarland, 7 Cal. 342 ; Rogers i;. Renshaw, 37 Texas 625 ; Alley 
 V, Bay, 9 Iowa 509. 
 
 2 Lamb V. Shay, 14 Iowa 567 ; Dollmau v. Harris, 5 Kansas 597 ; Revalk v. 
 Kraemer, 8 Cal. 66 ; Morris v. Ward, 5 Kansas 239 ; Marks v. Marsh, 9 Gal. 96 ; 
 Blue V. Blue, 38 111. 10 ; Green v. Marks, 25 111. 221 ; Bonnell v. Smith, 53 111. 
 377 ; Hume v. Gossett, 43 111. 297. It was held in California, in the above case 
 of Bevalk v. Eraemer, where a mortgage was given by the husband alone on the 
 homestead, that neither the right of the husband or wife could be affected by 
 the proceedings to foreclose such mortgage, the wife not being a party. Lsu-nl 
 proceedings, to be conclusive against either, must embrace both. 
 
215 HOW DIVESTED. §§ 263-264 
 
 § 263. Death of -wife does not validate void mort- 
 gage. — A mortgage which is void, because upon the home- 
 stead, signed by the husband alone, will not become valid by 
 reason of the homestead right being lost by the death of the 
 wife of the mortgager without children ; the debt which the 
 mortgage was intended to secure is not impaired, but is 
 placed upon the same level with' other debts, and must be en- 
 forced in the same manner.' Thus, wher^ after foreclosure in 
 an action against the husband alone, on a mortgage executed 
 by him, the husband and wife joined in a mortgage to a third 
 party, it was held that the foreclosure of the first mortgage 
 bound no one as to the homestead, and that the second mort- 
 gage was absolute as against the homestead, and that the 
 wife's decease before the second mortgage was recorded did 
 not impair it as against a void mortgage.^ 
 
 § 264. Aokno-wledgment of the vT'ife in executing mort- 
 gage. — In executing a valid mortgage, affecting the home- 
 stead, it is essential that the wife observe the same formali- 
 ties that are required in absolute conveyances, that, is in 
 the acknowledgment, and in being examined separate and 
 apart from the husband. ' A mortgage of land belonging to 
 the husband, executed but not acknowledged by the wife in the 
 prescribed form, is inoperative, and will not be enforced in 
 equity. It follows, therefore, that as to the homestead a mort- 
 gage cannot be enforced against either of the mortgagors. It 
 is only good to convey the husband's interest in lands which 
 may be comprised in the mortgage, but will not embrace the 
 homestead.* In Minnesota, however, this requirement of the 
 statute has been changed, so that the signature of the wife 
 
 1 Eevalk v. Kraemer, 8 Gal. 66 ; Williams v. Starr, 5 Wis. 534 ; Alley v. Bay, 
 9 Iowa 509. Per contra, see IJarsen v. Keynolds, 13 Iowa 579 ; Stewart v. 
 Maokey, 16 Texas 56. 
 
 2 Van Reynegau v. Bevalk, 8 Gal. 75'; Cook v. Kliuk, 8 Gal. 347 ; Moss v. 
 Warner, 10 Gal. 296 ; Lies v. Diablar, 12 Gal. 327 ; Fisher v. Meister, 24 Mich. 
 447 ; Blue v. Blue, 38 111. 10. But see distinction as to effect of foreclosure of 
 both mortgages, one free from homestead right and one subject to it, where no re- 
 demption in case of Silsbee v. Lucas, 36 111. 462. 
 
 3 See Sec. 243, and cases there cited. 
 
 4 Halt V. Haule, 19 Wis. 472 ; McMurry v. Connor, 2 Allen 205. 
 
§ 265 HOW DIVESTED. 216 
 
 simply is sufficient under the statute of 1860 in the absence 
 of any fraud practiced upon her in obtaining it. ^ 
 
 § 265. Special release of the right of homestead. — In 
 
 a few of the States, besides the other formalities noticed, it is 
 further necessaj-y that there be an express release of the 
 homestead right, and the wife must join in the mortgage or 
 deed, and the certificate of acknowledgment thereto must 
 show that the wife released the right fi-eely and voluntarily.^ 
 Thus, where a husband and wife executed a mortgage upon 
 lands to which a homestead right had attached, it was held 
 not sufficient to pass such right, that it expressly released the 
 right in the body of the deed, it not appearing from the 
 certificate of acknowledgment that the wife acknowledged 
 that she released this particular right freely and voluntarily, 
 and without compulsion.^ "Without it so appears, the deed or 
 mortgage will be inoperative as a release of that right ; as 
 the law has made the signature and acknowledgment of the 
 wife a condition of the alienation of the homestead, her re- 
 lease alone of the fee or her dower in the premises is not suf- 
 ficient. It must appear from the certificate of acknowledg- 
 ment that the wife has especially released her right to claim 
 the benefits of the homestead act.^ So, where a deed of trust 
 was executed by a householder and his wife, containing no 
 words of release of the right of homestead of the grantors, 
 and the certificate of acknowledgment only set forth that 
 the wife relinquished her right of dower in the premises, and 
 had "no desire to retract the same," it was held that the 
 homestead right of the grantors did not pass by the deed.^ 
 Again, where a hu^sband and wife executed a deed of trust on 
 their homestead, the deed containing no release or waiver of 
 the right thereto, the debt thereby intended to be secured 
 
 1 Lawyer u. Slingerland, 11 Minn. 447. 
 
 2 Boyd V. Cudderback, 31 111. 113 ; Smith v. Miller, 31 111. 160 ; Vanzant v. 
 Vanzant, 23 111. 536 ; Adams v. Jenkins, 16 Grray 146 ; Conner v, MoMurry, 2 
 Allen 202. 
 
 8 Boyd V. Cudderbaok, 31 111. 113 ; Adams v. Jenkins, 16 Gray 146. 
 4 Vanzant v. Vanzant, 23 111. 536 ; Smith v. Miller, 31 HI. 160. 
 B Thornton v. Boyden, 31 111. 200 ; Best v. Allen, 30 111. 30 ; Connor v. Nichols, 
 31 111. 148. 
 
4 
 
 217 HOW DIVESTED. §§ 266-267 
 
 having become due, and being unpaid, tbe trustee named in 
 the deed proceeded to sell the premises under a power con- 
 tained in the same instrument. Afterwards, the husband, who 
 remained in occupation of the promises, took a lease thereof 
 from the purchaser at the trustee's sale, for a year, and paid 
 rent. The lessee remaining in possession after the expiration 
 of the lease, the lessor commenced an action of forcible de- 
 tainer against him to recover possession of the premises. But 
 the Court held that nothing had been done which could oper- 
 ate as a release or waiver of the homestead right. The right 
 not being released by the deed no title passed thereby, nor 
 by the sale under the deed, as against the right. The fact 
 that the husband accepted a lease from the purchaser under 
 the deed and paid him rent, did not change the right of the 
 parties in that regard.' 
 
 § 266. It is not necessary to describe the premises as 
 the " homestead " in a mortgage any more than in a deed, 
 except in those States where a special release is required by 
 statute, as the parties executing such mortgage are presumed 
 to know what they are mortgaging.^ 
 
 § 267. A mortgage of the homestead executed by the 
 husband alone, over statutory value, without the assent of 
 the wife in the manner provided hj law, would not be totally 
 void in some of the States, where the land or premises mort- 
 gaged exceed the statutory value. The mortgage would be 
 valid as to that excess,^ or void only to the extent that it 
 could not be enforced as long as the mortgaged premises, 
 were occupied as a homestead by the family. Upon their 
 abandonment, or upon the acquisition of another homestead 
 by the head of the family, the mortgage could be enforced.^ 
 
 1 Booker v. Anderson, 35 111. 66. 
 
 2 See Sec. 245, Pfeiffer v. Eiehn, 13 Cal. 643 ; Baboook v. Hoey, 11 Iowa 375 ; 
 O'Brien v. Young, 15 Iowa 5. 
 
 3 Gary v. Eastabrook, 6 Cal. 457 ; Sargent u. Wilson, 5 Cal. 505 ; Boyd v. 
 Cudderback, 31 111. 113 ; Booker v. Anderson, 35 111. 67 ; Clark v. Shannon, 1 
 Nev. 568 ; Lies v. Diablar, 12 Cal. 327 ; Smith v. Miller, 31 111. 157 ; Moss v. 
 Warner, 10 Cal. 296 ; Dye v. Mann, 10 Mich. 291. 
 
 4 Stewart v. Mackey, 16 Texas 56 ; Rogers v. Esnshaw, 37 Texas 625 ; Young 
 
§§ 268-269 HOW divested. ■ 218 
 
 § 268. A mortgage by the husband alone of his inter- 
 est in lands held in common, would be valid without the 
 signature of the wife, although he and his family reside on 
 the premises, in those States where the right of homestead 
 is denied in lands held by such tenure.^ 
 
 § 269. A mortgage executed by the husband alone, be- 
 fore occupancy or selection, valid. — The claim of home- 
 stead will not prevail against a mortgage signed by the hus- 
 band alone, before actual occupation of the premises so 
 claimed,^ or before selection, when the statute of the partic- 
 ular State requires formal selection and recording after oc- 
 cupancy.' To eiatitle a mortgagor to a homestead in mort- 
 gaged premises, such mortgagor must not only be the head 
 of a family, but at the time of the execution of the mortgage 
 must reside with his family, and so continue to reside on the 
 mortgaged premises.* Occupation by a tenant will not do ; 
 for instance, where a tract of land is leased to a tenant who 
 cultivated it, while the owner and his family lived upon 
 a distinct tract of land, there is no such occupation of the 
 leased tract as will establish the homestead right thereto, or 
 avail to defeat a mortgage executed during the tenancy of 
 the lessee, by reason of the homestead law.^ 
 
 So, in California, the Court said in deciding whether a 
 mortgage was valid or not : " The whole case resolves itself 
 into this statement : the husband, after the death of his wife, 
 
 V. Graff, 28 III. 20 ; Atkinson v. Atkinson, 37 N. H. 434 ; Pidgeon v. Trustees 
 of Schools, a 111. 501 ; G-ee v. Moore, 14 Cal. 475 ; Bowman v. Norton, 16 Cal. 
 214 ; Smith v. Provin, 4 Allen 516 ; Silloway v. Brown, 12 Allen 30. 
 
 1 "West V. "Ward, 26 Wis. 579 ; Wolf v. Pleisohaoker, 5 Cal. 244 ; Thurston v., 
 Maddook, 6 Allen 427 ; EUas v. Verdugo, 27 Cal. 420. See Chap. 5, Sec. 120-128, 
 and this Chapter, Sec. 240. 
 
 2 Cary v. Tioe, 6 Cal. 625 ; Kellersberger v. Kopp, 6 Cal. 563 ; Benson v. 
 Aitken, 17 Cal. 163 ; Foss v. Stratoher, 42 N. H. 40 and 43 ; MoCormiok v. Wil- 
 cox, 25 111. 274 ; Fergus v. Woodworth, 44 111. 377 ; Slaughter u. Detiney, lOInd. 
 103; Slaughter v. Detiney, 15 Ind. 49 ; Thompson v. Piokel, 20 Iowa 490 ; Olson 
 V. Nelson, 3 Minn. 53 ; Jarboe v. Colvln, 4 Bush 71. 
 
 ' 3 Cohen v. Davis, 20 Cal. 187, and Lord v. Morris, 18 Cal, 482 ; see Himmel- 
 man v. Schmidt, 23 Cal. 117 ; Barber v. Babel, 36 Cal. 11 ; Low v. Allen, 26 
 Cal. 141 ; Lent v. Shear, 26 Cal. 370. 
 4 MoCormiok v. Wilcox, 25 111. 274 ; Fergus v. Woodworth, 44 HI. 377. 
 6 Tourvill V. Pearson, 39 111. 447 ; Benson v. Aitken, 17 Cal. 163. 
 
219 HOW DIVESTED. § 270 
 
 had a right to dispose of the premises, whether they were 
 homestead or uot, at his sole pleasure, t)y any lawful means 
 of disposing of real estate. He had a right by his sole will 
 to abandon those premises as homestead ; he did apparently 
 so abandon them ; while in this condition he conveyed them 
 to the mortgagee. The fact that at this time he was again 
 married did not affect the conveyance. The mortgagee was 
 not bound to take notice of the fact, nor was it shown that he 
 knew it. The mortgage^ cannot be charged, in the face of 
 the fact that the premises were in possession and occupancy 
 of the tenant — of the mortgagor — with knowledge that the 
 mortgagor, against the effect of his own deed, and against the 
 implied assurance of a right to sell the premises claimed, or 
 was about to resume possession of them as a homestead." ^ 
 Again, where a man's wife was absent for nearly two years 
 in another State, on a visit, and during such absence the hus- 
 band purchased and improved certain property, with the in- 
 tention of making it his home, and before the return of his 
 wife executed a mortgage upon it, the property was holden 
 not to be homestead as against the mortgage.^ 
 
 § 270. Husband alone may give a rene^wal mortgage 
 •w^here former mortgage -was a valid lien. — Where an old 
 mortgage, which was a valid lien upon the premises, which 
 became a homestead, is released and paid off with money 
 procured by a new mortgage, the acts being contemporaneous, 
 or nearly so, in equity the transaction is an assignment of the 
 first mortgage in consideration of the money advanced by the 
 second mortgage, not the creation of a new incumbrance, 
 but changing the form of the old, and this will be the case 
 
 1 Benson v. Aitken, 17 Gal. 163. 
 
 2 Eix V. MoHenry, 7 Cal. 89 ; Carey v. Tice, 6 Cal. 625. But see case of Gatn- 
 bette V. Brock, 41 Cal. 78, wherein it is held that a married woman may claim 
 a homestead, notwithstanding her husband never resided or made his home up- 
 on the premises, or joined in making the declaration under stat. of 1860. To the 
 game effect as Eix v. McHenry, see Oharless v. Lamberson, 1 Iowa 435 ; Weianer 
 V. Famham, 2 Mich. 472. For contrary opinion a^e Williams v. Sweetland, 10 
 Iowa 51, where it was held that a residence by the husband with his housekeep- 
 er, he awaiting the arrival of his wife and children from another State, was 
 sufficient to impress the homestead character upon the premises. Hence a con- 
 veyance before the wife's arrival by the husband alone was void. 
 
§ 271 HOW DIVESTED. 220 
 
 even where th6 wife does not join in tlie execution of the 
 second mortgage.^ So, where a mortgagee, who was in posses- 
 sion under an entry to foreclose at the date of the passage of 
 the Homestead Act of 1855, in Massachusetts, and afterward 
 discharged his mortgage, took a new mortgage for the same 
 amount, and gave up possession. It was held that the dis- 
 charge of the old mortgage and the taking of the new one 
 being part of the same transaction, that no estate of home- 
 stead was acquired by the mortgagor, or his family, as against 
 the mortgagee.^ But it must appear that the first mortgage, 
 for which the second is given in renewal, was a lien superior 
 to the right of homestead.^ Thus, as in some of the States, 
 it is held that the act does not apply where a mortgage was 
 executed on the land prior to the passage of the homestead 
 act, therefore it would be a lien superior to the homestead 
 estate.^ 
 
 i 271. The husband alone cannot prolong the lien of 
 mortgage, virithout -vyife's consent, after selection and 
 
 recording, or prolong the statute of limitations, thereby creat- 
 ing a new right, nor to destroy the homestead right in this 
 way, any more than in any other manner, by his sole will. 
 He has no power alone to ati'ect an existing homestead. He 
 cannot, by his act alone, execute a new note and mortgage in 
 place of a prior one given on the homestead before the decla^ 
 ration of homestead was filed, nor can he, by any act, con- 
 tinue the old mortgage in life, as to the homestead interest, 
 beyond the time when it would be otherwise barred by the 
 statute of limitations.^ The principle is well established in 
 California, that, after a conveyance of mortgaged premises, 
 or the transfer of any interest therein, the mortgagor has no 
 
 1 Swift V. Kraemer, 13 Cal. 526 ; Carr v. Caldwell, 10 Oal. 384 ; White v. 
 Shepherd, 16 Texas 163 ; Tunstall v. Jbnes, 25 Ark. 272 ; Cossell v. Eoss, 33 lU. 
 244 ; Hawkes v. Hawkes, 46 G-a. 204 ; Christy v. Dyer, 14 Iowa 438 ; Laasen v. 
 Vance, 8 Cal. 271 ; Griffin v. Trentlin, 48 Ga. 148 ; Eoupe v. Carradiue, 20 La. 
 An. 244 But see Barber v. Babel, 36 Cal. 22, what appears contrary rule, but 
 under particular statute of 1860. 
 
 2 Burns V. Thayer, 101 Mass. 426. 
 
 3 Griffin v. Trentlin, 48 Ga. 148. 
 
 i Eoupe V. Carradine, 20 La. An. 244. 
 
 5 Barber v. Babel, 36 Cal. 21 ; Spencer v. Friedendall, 15 Wis. 666. 
 
221 HOW DIVESTED. . §§ 272-273 
 
 power to create, revise, renew, or prolong a charge upon the 
 premises, or interest therein, while such interest remains in 
 .another party. This is plain enough upon principle. A party 
 can affect, by his own acts, only that which he himself owns 
 and can. affect even that only in some mode allowed by law. "■ 
 So, after a mortgage has once been paid, it cannot, by a mere 
 verbal agreement between the parties, be transferred to anew 
 debt which it was not originally given to secure ; and even 
 if this could generally be done, it could not be done with a 
 mortgage on the homestead, without the wife's consent, by 
 reason that it would violate that provision of law which 
 makes void any conveyance of the homestead without the 
 consent and signature of the wife.^ 
 
 § 272. Mortgages on the homestead executed by hus- 
 band and -wife — The -vyife may plead usury against the 
 note executed by the husband alone — acts which would estop 
 him from setting up usury in the notes, as a defense would 
 not estop the wife in respect to the homestead. She is in- 
 terested in protecting the homestead right from any illegal 
 or usurious incumbrance, or in reducing the amount of any 
 recovery under which the same might be sold.' 
 
 § 273. Homestead in Avife's land mortgaged for hus- 
 band's debt — Strict foreclosure not allo-wed. — Where a 
 married woman owning real estate in her own right volun- 
 tarily mortgages it to secure a debt due by her husband, 
 equity will decree that the debt shall be paid out of the fund 
 so set apart for that purpose, and will decree a sale. But if 
 the estate mortgaged is claimed as a homestead, or greatly 
 exceeds in value the amount for which it is incumbered, a 
 strict foreclosure will not be allowed ; unless the homestead 
 right has been waived, the sale must be made subject to that 
 right.* 
 
 1 Lord V. Morris, 18 Gal. 482 ; Lent v. Morrill, 25 Cal. 499 ; Lent v. Shear, 26 
 Gal. 370 ; Low v. Allen, 26 Cal. 141. 
 
 2 Campbell v. Babcock, 27 Wis. 512. 
 
 3 Campbell 1). Baboook, 27 Wis. 512 ; Thompson u. Piokel, 20 Iowa 490 
 
 4 Young V. Graff, 28 El. 20. 
 
§§ 274-276 HOW divested. 222 
 
 § 274. Mortgage of homestead to secure partnership 
 debt of husband. — If a husband and wife mortgage a home- 
 stead to secure the payment of a partnership debt of which 
 firm the husband is a member, and subsequently to the exe- 
 cution of the mortgage the firm makes an assignment lor the 
 benefit of their creditors, the mortgagee is entitled to a pro 
 rata share of the proceeds of the assets of the partnership in 
 the hands of the assignee, and the homestead is only liable 
 for the deficiency. The mortgaging of a homestead by a 
 husband and wife to secure a partnership debt, the husband 
 being a member of the copartnership, does not give to the 
 other creditors of the partnership a right to make liable to 
 their debts the homestead so mortgaged. ' 
 
 § 275. A third party cannot set up -vsrant of release of 
 homestead right with notice of lien. — Where the husband 
 and wife execute a mortgage upon their homestead without 
 the statutory waiver in Illinois, and afterwards convey it to a 
 third party subject to the mortgage lien, and which lien 
 formed a part of the purchase price, it was held in a suit to 
 foreclose by the mortgagee that the third party who purchased 
 the premises subject to such lien was estopped from setting 
 up as a defense the omission of the husband and wife to re- 
 lease their homestead right in the mortgage.^ 
 
 § 276. Mortgage of several parcels of land including 
 homestead. — In foreclosing such mortgage, the homestead 
 should be-sold only to supply the deficiency remaining after ex- 
 hausting the other property mortgaged. A sale in a " lump ' ' 
 of several distinct parcels of land described in one mortgage 
 in the foreclosure thereof, constitutes sufiB.cient ground for 
 setting a sale aside, and ordering a resale.' But in Wiscon- 
 sin, in a foreclosure sale under a mortgage which covered the 
 mortgagor's homestead, as well as his other real estate, the 
 sheriff, contrary to the mortgagor's request, refused to offer 
 first the non-exempt land, but sold the homestead alone for 
 
 1 Dickson V. Chom, 6 Iowa 21 ; Lambert v. Powers, 36 Iowa 18. 
 
 2 Pidgeon v. The Trustees of the Schools, 44 111. 501. 
 
 3 Boyd V. Ellis, 11 Iowa 97 ; Lay v. Gibbons, 14 Iowa 377. 
 
223 HOW DIVESTED. § 277 
 
 the amount of tlie judgment. Certain creditors of the mort- 
 gagor had hens of judgments on the non-exempt property. 
 The Court held that the sale eould not be disturbed. Dixon, 
 C. J., said: " However just and reasonable it might be for the 
 Court to compel a sale of the business lot first, and thus save 
 the homestead, if that were the only question, yet we think 
 Dow's equity to hold his homestead fully countervailed by 
 the equities of his creditors, who must look to the business lot 
 for their satisfaction, and who have no lien upon the home- 
 stead. Until the legislature shall 'have declared the obligar 
 tion to preserve the homestead superior to that of paying 
 one's honest debts, we must hold the equity of the creditor 
 at least equal to that of the debtor in cases like this." ^ 
 
 The reasoning is exceedingly unsatisfactory, but the hostil- 
 ity of the Chief Justice to the homestead law is displayed in 
 all his opinions. 
 
 The legislature of "Wisconsin availed themselves of the sug- 
 gestion of the Chief Justice, in enacting, in 1870 : "^ That if 
 any portion of the mortgaged premises shall consist of a home- 
 stead, it shall be the duty of the Court, in such manner as it 
 shall direct, to ascertain whether the part of such mortgaged 
 premises not included in the homestead can be sold separ- 
 ately without injury to the owner, and if the Court shall so 
 find, then in that case the judgment shall provide that the 
 homestead shall not be sold, nor offered for sale, until all other 
 lands covered by the mortgage and described in the com- 
 plaint shall have been offered and sold, and that the home- 
 stead should not be sold until all the other lands so covered 
 by the mortgage are sold.^ 
 
 S 277. Mortgage, character of exemption lavrs. — In 
 
 Pennsylvania, the exemption laws are merely of a quasi 
 homestead character. The exemption extends to either real 
 or personal property, or both, of the debtor, in all to the 
 value of three hundred dollars, which may be claimed at 
 any time ,before levy and sale. The exemption laws in that 
 
 1 Jones V. Dow, 18 Wis. 241 ; White v. Polleys, 20 Wis. 530. 
 2EeT. Stat. (1870) Chap. 113, amendatory of Sec. 1, Chap. 145. 
 3 Lloyd V. Trank, 30 Wis. 306. 
 
§ 277 HOW DIVESTED. 224 
 
 State receive a strict construction by the Courts, which may 
 be said, in some instances, to be hardly in unison with the 
 more receilt and advanced views expressed by a, majority of the 
 sister States, in relation to the homestead and exemption laws. 
 Still, many of the Pennsylvania decisions may be useful in in- 
 terpreting and giving effect to the statutes that have been 
 passed in other States from time to time, on the subject of 
 exemptions. 
 
 The Exemption Act of April 9th, 1849, is construed as a 
 mere limitation of the remedy given by the law against a 
 debtor's property, for "judgments obtained upon contract." 
 The word " contract " in the act is held to refer to the dis- 
 tinction in pleading between actions arising ex-contractu, and 
 actions sounding in tort. That although a mortgage is a con- 
 tract, and the process authorized to issue thereon results in a 
 judgment, such a judgment was not in the view of the legis- 
 lature when the Exemption Act of 1849 was passed, and that 
 the exemption law did not apply to a debt secured by a mort- 
 gage so as to exempt any part of the mortgage premises from 
 sale under proceedings on the mortgage or the bond accom- 
 panying it, as against the mortgagee.-' 
 
 It is further held that a defendant is not entitled to the ben- 
 efit of the exemption of $300, under the Act of 1849, in the 
 case of a sale on levari facias on a mortgage of real estate. 
 " The mortgagee has a special lien, and he may enforce it in 
 Pennsylvania by an ejectment against the mortgagor, in 
 which proceeding it cannot be pretended that there could be 
 any claim for the fSOO exemption." The act does not apply 
 to a levari facias on a mortgage, " because it is not a levy and 
 sale upon judgment obtained upon contract ; there is no 
 levy ; there is strictly no judgment obtained upon the con- 
 tract."' 
 
 'Sot is a mortgagor, when his land is sold under a levari, 
 entitled to 1300 out of the surplus which remains after the 
 satisfaction of the mortgage, but he is bound ta relinquish 
 the whole to his judgment creditors. It said by the Court 
 that a man who executes a mortgage virtually waives his 
 
 1 Gangwere's Appeal, 36 Penn. St. 466. 
 
 2 Morgan v. Noud, 5 Penn. L. J. B. 93. 
 
225 HOW DIVESTED. § 278 
 
 right to the exemption by pledging the whole of the property 
 for the payment of the mortgage debt, and that he cannot be 
 allowed to set up a claim against other creditors which he has 
 rehnquished in favor of the mortgagee.^' 
 
 Since the foregoing decisions, which were rendered in 1860, 
 and some prior thereto, the Court has modified the rule to a 
 certain extent. Thus^ in 1871, the rule is stated to be' that 
 where a husband and wife have executed a junior mortgage, 
 therein waiving the claim to exemption, and their property 
 is sold under such mortgage, the waiver does not affect the 
 exemption as, to prior liens. But an express waiver in favor 
 of a junior lien deprives the debtor of all power to participate 
 in the distribution of a fund, and leaves it to be appropriated 
 amongst creditors precisely as if the exemption law did not 
 exist. Yet it is said that it would be a straining of this 
 principle to enforce its application to the distribution of an 
 entire fund in consequence of the implied waiver resulting 
 from the execution of a mortgage." As against a mortgagee 
 the rights of the debtor are gone. The execution of a mort- 
 gage does not amount to a waiver of all claims to exemption, 
 as against general judgment creditors. 
 
 Held, that in such case the fund must be distributedin this 
 manner : 1st, the payment of the mortgage or mortgages ; 
 2d, to thedebtor under the exemption law ; 3d, the residue 
 to the judgment liens in the order of their priority.^ 
 
 BY ABANDONMENT. 
 
 g 278. General revie^w of the question of abandon- 
 ment. — In those States where no statutory mode has been pro- 
 vided, either for giving notice of the claim of homestead, or of 
 abandoning such homestead after it has once been acquired, 
 and as the homestead is very tenderly regarded by the Courts, 
 it is confessedly difficult to lay down any rule which will ap- 
 
 1 The Saving Fund v. Creighton, 3 Phila. E. 58. 
 
 2 Bower's Appeal, 68 Penn. St. (18 P. Smith) 126. 
 
 Homestead — 15. 
 
§ 278 HOW DIVESTED. 226 
 
 ply in all cases, as to what shall constitute an abandonment of. 
 the homestead. It was a question at one time, whether, in 
 aid of the homestead, the rule in relation to domicile should 
 not be applied, viz : that the old domicile remains until the 
 party has acquired another,^ but that rule was never applied 
 in its integrity. The Courts, though admitting that less evi- 
 dence than that of the acquisition of anew homestead will be 
 sufficient to prove the abandonment of a former homestead, so 
 as to subject the property to forced sale, yet held thatdt must 
 be undeniably clear and " beyond the the shadow of a rea- 
 sonable doubt " that there has been a total abandonment with 
 no intention to return and claim the exemption.^ 
 
 "The question of abandonment of homestead, or by what 
 acts and circumstances a person who has a homestead forfeits 
 his rights to the exemption, before or without acquiring a 
 new homestead, presents great difficulty. The rules in rela- 
 tion to domicile, the "abandonment of the old and the ac- 
 quisition of the new domicile, are not, if it be admitted that 
 mere abandonment will forfeit the homestead right, alto- 
 gether applicable. For it is a maxim that every one ' must 
 have a domicile somewhere, and also, that he can have but 
 one ; that his domicile continues until he can acquire another, 
 and that by acquiring a new domicile he relinquishes his 
 former one." The more correct principle, says Judge Story, 
 is that the original domicile is not lost until a new one is ac- 
 quired facto et animo.^ 
 
 " If we admit that an old homestead may, in opposition to 
 
 1 Aa to the question of Domicile, see Am. Lead. Oases, vol. 1, 737 ; 9 Ed. Kent, 
 vol. 4, 338, and note ; The Republic v. Young, Dallum 46i ; Phillips v. The City 
 of Springfield, 39 111. 83 ; State v. Skidmore, 5 Texas 469 ; Shepherd v. Cassidy, 
 20 Texas 24 ; Story, Conflict of Laws, Sees. 45, 47 ; Gauhenaut v. Cockrell, 
 
 20 Texas 96 ; Thorndike u. City of Boston, 1 Met. 242 ; Walters v. The People, 
 
 21 111. 178 ; Sears v. City of Boston, 1 Met. 250 ; Forbes v. Harper, 15 Cal. 202 ; 
 Holden V. Pinney, 6 Cal. 234; Horn v. Tufts, 39 N. H. 478 ; Nims v. Bigelow, 
 45 N. H. 347. 
 
 2Gauhenaut v. Cockrell, 20 Texas 96; Cox u. Shopshire, 25 Texas 113; Mills 
 u. Van Boskirk, 32 Texas 360; Shepherd v. Cassidy, 20 Texas 24; Titman v. 
 Moore, 43 HI. 170 ; Taylor v. Hargous, 4 Cal. 268 ; Hoitt v. Webb, 36 N. H. 
 158; Locke v. Kowell, 47 N. H. 46; Wood v. Lord, 51 N. H. 448; Folsom v. 
 Carli, 5 Minn. 333. 
 
 3 Story, Conflict of Laws, Sec. 47. 
 
227 HOW DIVESTED. § 278 
 
 this rule, with regard to the change of domicile, be abandoned 
 before the acquisition of a new one, it can only be on the 
 most clear and conclusive facts of abandonment of the home- 
 stead with an intention 'not to return. An old domicile can- 
 not be forfeited without conclusive proof that a new one has 
 been acquii'ed. If an old homestead can be lost without 
 proof that a new one has been gained, certainly the circum- 
 stances to show abandonment must be clear and decisive. 
 ~We do not intend to assert the proposition that an old home- 
 stead remains until a new one has been gained. This would 
 pei'haps too much embarrass and obscure the conditions 
 and rights of property to receive judicial sanction, there 
 being no law or statute to that effect. But while this is ad- 
 mitted, we must remember the wise and beneficent purpose 
 of the homestead exemption," "and a right so strongly se- 
 cured, founded on such high public policy, cannot be lost by 
 the mere absence of the party or the family intended to be 
 benefited. The homestead is not to be regarded as a species 
 of prison bounds, which the owner cannot pass oyer without 
 , pains and penalties. His necessities or circumstances may 
 frequently require him to leave his homestead for a greater or 
 less period of time. He may leave on visits of business or 
 pleasure, for the education of his children, or to acquire in 
 some more favorable locality means to improve his home- 
 stead or for the subsistence of his fam'ily, or he may intend 
 to abandon provided he can sell. But let him leave for 
 what purpose he may, be his intentions what they may, pro- 
 vided they are not those of total relinquishment or aban- 
 donment, his right to the exemption cannot be regarded 
 as forfeited. And if he did intend, on leaving, to abandon, 
 this may be changed by him up to the time he acquires a 
 new homestead. He may show this change by the resump- 
 tion of his residence, or it may be made known in other 
 modes, and however it may be made known or ascertained, it 
 will be effectual to pi'otect his rights ; for if the place be in 
 fact his homestead it cannot be exposed to forced sale. 
 Frauds will not be permitted, but the right to the homestead 
 cannot be forfeited unless by a party showing a continuous 
 
§ 279 HOW DIVESTED. 228 
 
 abandonment up to the time that some opposing right by 
 sale has vested legally in other parties."^ 
 
 So, in Massachusetts, it has been expressly held, after an 
 exhaustive review of all the authorities bearing on the ques- 
 tion, that an estate of homestead acquired cannot be lost by 
 a mere departure therefrom uutil a new homestead has been 
 acquired elsewhere.^ In Mississippi, the abandonment or for- 
 feiture of the homestead right is only declared upon clear 
 and decisive proofs of an intention totally to relinquish and 
 abandon such premises. If the intention to abandon the 
 homestead exists, such intention may be changed, and if posses- 
 sion be resumed before intervening rights have attached, the 
 homestead will be protected.' But ujDon the acquisition of a 
 new homestead, the right to the former is abandoned. If 
 the debtor removes from one to another, and is owner of 
 both, the immunity applies to the latter. He may change 
 the homestead without the wife's consent, but so long as the 
 wife and family occupy the premises, although the husband 
 may have left them, it is still the homestead until the h.us- 
 band has actually acquired and established another.'' In l^ew 
 Hampshire, it is said that it is the unequivocal act of aban- 
 donment by the person holding the homestead right, which 
 only can deprive him or her of the estate, such as is evinced 
 by a sale or absolute conveyance, or by change of domicile, or 
 by a substitution of another estate elsewhere, and verbal 
 testimony is admissible to show a change of domicile, and the 
 intention to change it is a matter of fact to be found.'* 
 
 § 279. Occupation of the premises selected, as a gen- 
 eral rule, is requisite to protect the homestead from sale or 
 execution.^ But there are exceptions to this rule. It has been 
 
 1 Shepherd v. Casaidy, 20 Texas 24; Mo83 v. Warner, 10 Gal. 296 ; Harper v. 
 Forbes, 15 Cal. 202 ; Brennan v. Wallace, 25 Gal. 110. 
 
 2 Woodbury v. Luddy, 14 Allen 1 ; Drury u. Baohelder, 11 Gray 214. 
 
 3 Gampbell «. Adair, 45 Misa. 170. 
 4 Thorns V. Thorns, 45 Mias. 263. 
 
 6 Hoitt V. Webb, 36 K. H. 158 ; Horn v. Tufts, 39 N. H. 478 ; Wood v. Lord, 
 51 N. H. 448 ; Titman v. Moore, 43 111. 170 ; Locke v. Eowell, 47 N. H. 46 ; 
 NimsD. Bigelow, 45 N. H. 347; Warner u. McMillan, 38 Texas 414; Folsom v. 
 Carli, 5 Minn. 333-337. 
 
 6 Charless v. Lamberson, 1 Iowa 435 ; Christy v. Dyer, 14 Iowa 438 ; Williams 
 
229 HOW DIVESTED. § 280 
 
 held, in Illinois, that actual residence is not, under all. circum- 
 stances, essential. That the occupancy required by the 
 statute might be by a tenant for the benefit of a widow and 
 minor children. That, "if the statute, in their case, was to 
 be construed as requiring a personal occupancy, it would be 
 rendered wholly nugatory." In order to give the statute ef- 
 fect, it must be construed as requiring only such occupancy as 
 the condition and best interests of the parties on whom the 
 homestead I'ight has devolved, may require.' To carry out 
 the object of the statute, it may become necessary, when the 
 husband is dead, and especially so when both parents have 
 died, and the children entitled to the benefits of the law are 
 of tender years, that a residence by a tenant may be substi- 
 tuted for an actual occupancy by the widow and children 
 But it is only in such cases, and under such peculiar circum- 
 stances, that the residence of the person claiming the benefit 
 'of the act can be dispensed with.^ In such cases, of widows 
 and orphans, no rule can be laid down to govern, but each 
 case must be disposed of upon its own peculiar circumstances.^ 
 In Massachusetts, it has been held that a widow who uses a 
 room in the house which used to be the dwelUng-house of ber 
 husband during his life, and was occupied by him as a home- 
 stead, for the purpose of storing her furniture, continues to 
 occupy the homestead within the meaning of the law, so as 
 to be entitled to the benefit of the homestead exemption.* 
 
 g 280. Removal from the premises after conveyance 
 by husband, not abandonment. — Occupancy by the family 
 is presumptive evidence of the appropriation of a place as a 
 hoihestead, and is consequently notice to all the world. The 
 removal qf the husband and wife from a homestead thus ap- 
 
 V. Sweetland, 10 Iowa 51 ; Cole v. Gill, 14 Iowa 527 ; Gregg v. Bostwick, 33 
 Cal. 229 ; Gambetta v. Brook, 41 Cal. 83 ; Mann v. Rogers, 35 Cal. 319 ; Estate 
 of Delany, 37 Cal. 179 ; Folsom v. Carli, 5 Minn. 333, changed by statute of 
 1860. 
 
 1 Walters v. The People, 21 111. 178 ; Titman v. Moore, 43 111. 170 ; Brinker- 
 hoff V. Everett, 38 111. 263 ; Volger v. Montgomery, 54 Mo. 577. 
 
 2 Kitchell V. Burgwin, 21 Dl. 40 ; Cabeen v. Mulligan, 37 lU. 230. 
 
 3 Cabeen v. Mulligan, 37 111. 230 ; Blue v. Blue, 38 111. 10. See Stewart v. 
 Brand, 23 Iowa 478 ; Eyffe v. Beers, 18 Iowa 5 ; Orman v. Orman, 26 Iowa 361. 
 
 4 Breheen v. Fox, 100 Mass. 234. See Denton v. Woodbury, 24 Iowa 74. 
 
§ 28(3 HOW DIVESTED. 230 
 
 propriated, after and in consequence of a sale and conveyance 
 by the husband, in which the wife did not join, furnishes no 
 evidence of an abandonment of the homestead by her, but 
 seems "to be the very case against which the law intended 
 to provide. ' ' This estate, once acquired, cannot be altered or 
 destroyed, except by the concurrence of both husband and 
 wife in the manner provided by law. ^ ]S"or will a conveyance 
 by the husband and wife, of the homestead to a third party, 
 under an agreement that it should be conveyed to the wife 
 •by the grantee, constitute an abandonment, or affect the 
 homestead right. It is not a fraud on creditors in thus trans- 
 ferring the legal title, for it was effectually shielded by the 
 provisions of the homestead law from such claim whilst the 
 legal title was in the husband as well as while in the wife.^ 
 But, though the wife's separate real estate is not liable for the 
 debts of her husband in Iowa, yet if a husband conveys the 
 homestead to his wife by a voluntary conveyance, and after- 
 wards abandons the same with his family, such conveyance 
 will be void against creditors as soon as the abandonment has 
 been consummated, and the abandoned homestead, in such 
 case, will be liable for the husband's debts.' But such an 
 abandonment, for a temporary purpose, does not forfeit the 
 homestead as to parties who have not sustained any injuries 
 thereby.^ But in Illinois it is held that where a husband and 
 his family have abandoned the homestead, and the husband 
 has sold the premises without the consent of the wife, the 
 wife cannot leave her husband while they are living in their 
 new domicile, and intrude on the possession of the purchaser 
 in the former homestead, insisting ^hat she has homestead 
 rights therein. During the lifetime of her husband no 
 
 1 Taylor v. Hargous, 4 Gal. 273 ; Harper v. Forbes, 15 Gal. 202 ; Boraey v. 
 McFarland, 7 Gal. 342 ; Estate of Tompkins, 12 Cal. 114; Guiod v. Guiod, 14 Gal. 
 506 ; Holden v. Pinney, 6 Cal. 234 ; Hoitt v. Webb, 36 N. H. 158 ; Horn v. Tufts, 
 
 " 39 N. H. 478 ; Wood v. Lord, 51 N. H. 448 ; Dan v. Tozier, 10 Cal. 167 ; Stew- 
 art V. Brand, 23 lo-wa 477 ; Wetz v. Beard, 12 Ohio St. 431 ; White v. Clark, 36 
 m. 285 ; Bearing v. Thomas, 25 Ga. 223 ; Nims v. Bigelow, 45 N. H. 347 ; Locke 
 V. Kowell, 47 N. H. 46. 
 
 2 Hugunin v. Dewey, 20 Iowa 368. 
 
 3 Gardner v. Baker, 25 Iowa 343. 
 
 4 Morris v. Sargent, 18 Iowa 90. 
 
231 HOW DIVESTED. §§ 281-282 
 
 homestead claim which she could assert can exist in her.^ 
 His domicile in lawis also her domicile.^ But if the husband 
 remove his wife and family into another county, and without 
 providing them a home, abandon his wife, she may resume 
 ^ possession of the homestead.' 
 
 § 281. A person having acquired a neAV residence, 
 even though it is not a homestead, will not be permitted, in 
 Illinois, to insist upon the homestead light to defeat a deed 
 or mortgage — which does not release the benefits of the 
 act — executed by him while occupying his newly acquired 
 residence, unless it clearly appears that the new residence 
 was only temporary. The husband, being the head of the 
 family, has the right to determine and control their residence, 
 and when he intentionally removes from and abandons the 
 homestead, and his family accompanies him, neither he nor 
 they have any power to resume it, so as to cut off intervening 
 liens which have attached during such abandonment.* '' "We 
 are not prepared to hold that the head of the family may 
 abandon the lot of ground, remove his dwelling to other 
 premises, incumber the premises on which he formerly resid- 
 ed, and after an absence of three years, return to his former 
 home and claim and hold it as a homestead against such in- 
 cumbrance, merely by showing that it had been his home, 
 and that he had, during his abandonment of the property as a 
 residence, a secret intention at some time in the future to re- 
 sume it as a home." ° 
 
 § 282. Temporary residence elsewhere no forfeiture 
 of the homestead. — A residence once in good faith draws 
 .around it the protection of the homestead law, and a tempo- 
 rary resid^hce elsewhere, whether for business or pleasure, or 
 a protracted stay even for years, will not forfeit the right un- 
 
 1 Getzler v. Saroni, 18 HI. 511 ; Guiod v. Guiod, 14 Cal. 507. 
 
 2 Phillips V. City of Springfield, 39 111. 83 ; 14 Cal. 507. 
 
 3 Walters v. The People, 21 111. 178. 
 
 4 Titman v. Moore, 43 111. 170 ; Thoms v. Thorns, 45 Miss. 263 ; Campbell v. 
 Adair, 45 Miss. 170. 
 
 B Fergus v. Woodworth, 44 111. 377. 
 
§ 283 HOW DIVESTED. 232 
 
 less the design of permanent abandonment be apparent.^ 
 Where a debtor, being the owner of a house and lot occupied 
 by himself and family, the only real estate he owned, not ex- 
 ceeding the statutory value, leased the same and went with 
 his family to another county of the State for temporary pur- 
 poses, it was held that the debtor did not lose his right to 
 have the homestead set oft' to him by leasing the premises 
 for the year, and going away with his family for temporary 
 purposes.^ So, in Illinois, where a judgment debtor owning 
 a homestead and residing thereon, rented the premises for 
 three years, and removed therefrom with his family in the 
 fall of the year to ,a town in the same county for the purpose 
 of earning money to pay his debts, but with the intention of 
 returning, and did return the following spring and resumed 
 the occupancy of his homestead with his family, it was held 
 that these facts were not sufficient to show an abandonment 
 of the homestead ; ' but the intention to retuna and occupy 
 the homestead must be clearly manifest from surrounding cir- 
 cumstances,^ as where a party left the State to better his con- 
 dition, and being taken sick, rented rooms in adjoining State, 
 and kept house there with his wife, and so remained about 
 nine months, but always with the intention of returning to 
 his home, it did not amount to an abandonment of his home- 
 stead.^ 
 
 § 283. What w^ill be construed as an abandonment. — 
 
 A debtor, who removes with his family to another State, and 
 
 1 Tumlinson v. Swinney, 22 Ark. 400 ; Buck v. Conlogue, 49 111. 394 ; Stewart 
 V. Brand, 23 Iowa 477 ; Wisner v. Farnham, 2 Micb. 272 ; Myers v. Claus, 15 
 Texas 516 ; Walters ti. People, 18 111. 199 ; Wright v. Dunning, 46 111. 271 ; 
 Cook V. MoChristian, 4 Cal. 25 ; True v. Morrill, 28 Vt. 672 ; Norris v. Maul- 
 ton, 34 N. H. 392 ; Phillio v. Smalley, 23 Texas 498 ; Holden v. Pinney, 6 Cal. 
 235; Campbell v. Adair, 45 Miss. 170; Kix v. Capitol Bank, 2 Dill C. C. 369; 
 Harper v. Forbes, 15 Cal. 202 ; Moss v. Warner, 10 Cal. 296 ; Guiod v. Guiod, 
 14 Cal. 506 ; Estate of Phelan, 16 Wis. 76 ; Herriok v. Graves, 16 Wis. 157 ; 
 Williams v. Sweetland. 10 Iowa 51; Fyffe u. Beers, 18 Iowa 5; Stewarts. 
 Brand, 23 Iowa 478 ; Orman v. Orman, 26 Iowa 361 ; Morris v. Sargent, 18 
 Iowa, 90'; Brennan v. Wallace, 25 Cal. 110. 
 
 2 Wetz V. Beard, 12 Ohio St. 431 ; Elston v. Robinson, 23 Iowa 208. 
 
 3 Wiggins v. Chance, 54 111. 175. 
 i Titman v. Moore, 43 111. 170. 
 
 6 Cipperly v. Khodes, 53 111. 346 ; Wright v. Dunning, 46 111. 271. 
 
233 HOW DIVESTED. § 283 
 
 remains there for two years, may be regarded as having aban- 
 doned his homestead, and that without reference to what he 
 may say or do before or after his return. "If he might re- 
 move his family and effects to another State, and remain there 
 with them for two years, and still claim his former residence 
 as exempt from sale under the homestead law, we are at a Loss 
 to conceive how long an abandonment it would require to sub- 
 ject it to the payment of his debts. To permit such an aban- 
 donment without rendering the property liable to forced sale 
 would be to enable debtors to perpetrate numberless frauds 
 upon their creditors. " ' It is said that it requires stronger and 
 clearer proof of abandonment where the indebtedness for 
 which the homestead is sought to be rendered liable was in- 
 curred during actual occupancy thereof, than where the party 
 claiming the exemption was not in actual possession of the 
 homestead.^ Where there is an abandonment of the home- 
 stead, with a fixed intention not to return, the property may 
 be subjected to the demand of creditors. But, it must be re- 
 membered, the question of abandonment is almost exclusively 
 a question of intent, and that intent must be clearly estab- 
 lished by the best accessible evidence ; that a party has been 
 absent for an indefinite period is not sufficient to establish the 
 fact of abandonment, unless accompanied with proof of intent 
 * not to return. The declaration of a party before, at the time 
 of, and after leaving his home, may be given in evidence to 
 establish the intent.' In Kansas, after foreclosure proceed- 
 ings had, foreclosing a mortgage on the homestead, the fact 
 that the husband left the State and was shortly afterwards fol- 
 lowed by his family, was held not sufficient evidence of aban- 
 donment of the homestead.^ In Minnesota, the owner of a 
 homestead could not remove from the premises under the Act 
 of 1858 without forfeiting the exemption.^ But subsequently, 
 
 1 Fergus V. Woodwortb, ii 111. 377 ; Cabeen v. Mulligan, 37 111. 230 ; Dunton 
 Ti. Woodbury, 24 Iowa 74 ; Batts v. Scott, 37 Texas 65 ; MoMillau u. Warner, 
 38 Texas 414. 
 
 2 Davis V. Kelly, 14 Iowa 523. , 
 
 3 McMillan v. Warner, 38 Texas 414 ; Campbell v. Adair, 45 Mis. 170 ; Hoitt 
 V. Webb, 36 N. H. 158 ; Locke v. Howell, 47 N. H. 46. 
 
 J Rix V. Capitol Bank, 2 Dill. C. C. 369. 
 6 Tillotson t!. Millard, 7 Minn. 520. 
 
§§ 284-286 HOW DIVESTED. 234 
 
 in 1860, the legislature passed an act expressly authorizing 
 the homestead tenant to leave it without rendering it liable 
 to sale on execution. So, in "Wisconsin, previous to the Act of 
 1858, although absence from the homestead, temporarily, 
 on business or pleasure, would not have forfeited the home- 
 stead right, a removal therefrom, and the taking of another 
 house, would have worked such a result.^ The Act of 1858 
 provides that the owner of a homestead might remove there- 
 from without forfeiting the exemption. 
 
 § 284. Repeated efforts to sell, on the part of the hus- 
 band and -wife, aftbrd no pi'oof of abandonment of the home- 
 stead, nor will their declarations of intention to sell and re- 
 move from the same constitute an abandonment. The decla- 
 rations of the husband will in no way bind the wife, and the 
 act of the wife, in going with her husband to reside on another 
 place, will not affect her rig^hts.^ 
 
 § 285. Going in search of another home no presump- 
 tion of abandonment. — K the citizen or family should 
 leave their homestead in search of another home, the first 
 homestead retains all its privileges and immunities until an- 
 other one is acquired, and no presumption of abandonment 
 will arise in such case.^ Where an intention to leave the old 
 and acquire a new homestead has been formed in the minds 
 of the occupants, such intention, until it is consummated by 
 any act, such as surrendering possession, can be changed at 
 any time, and will not amount to an abandonment.* 
 
 S 286. Desertion or adultery on the part of- the 
 father, no forfeiture of the homestead right. — The fact 
 that the husband may have committed adultery will not 
 operate as a forfeiture of his homestead right ; the reason as- 
 
 1 Estate of Phelan, 16 Wis. 76 ; Herrick v. Graves, 16 "Wis. 157. 
 
 2 Dunn v. Tozer, 10 Cal. 167 ; Moss v. Warner, 10 Cal. 296 ; Stewart v. Brand, 
 23 Iowa 477 ; Guiod v. Guiod, 14 Cal. 506 ; Dorsey u. McFarland,' 7 Cal. 342. 
 
 3 Fullerton V. Doyle, 18 Texas 10 ; I'ranklin v. Coffee, 18 Texas 417 ; Wright 
 V. Hays, 10 Texas 130 ; Hoffman v. Neuhaus, 30 Texas 636 ; Sampson v. Wil- 
 liams, 6 Texas 109 ; Eckhardt ,». Schlecht, 29 Texas 129 ; Ives v. Mills 37 HI. 
 73 ; Walters v. People, 21 111. 179 ; Kitohell v. Bourgwin, 21 111. 40. 
 
 * Cross V. Evarts, 28 Texas 524. 
 
235 HOW DIVESTED. §§ 287-289 
 
 signed is, in Illinois, that his right would also defeat that of 
 his wife, and no act of his can have that effect.' Or if he 
 abandons his wife and family she" might i-emain and hold the 
 homestead as against his acts and those of his creditors.^ De- 
 sertion of the family by the father, the family remaining in 
 possession of the homestead, the father is, in the eye of the 
 law, still in the occupation, and able to assert his homestead 
 right. The residence of the family remains the home and 
 residence of the Mher, at least until it is proved that he has 
 acquii-ed a home and settlement elsewhere, and this the law 
 can never assume that he has done. " The presumption is, 
 that he continues a wanderer without a home until he returns 
 to his duty and his family."" 
 
 § 287. Adultery or desertion on the part of the 
 -wife. — The crime of adultery, or abandonment, or desertion 
 by the wife of the homestead, or of the family, is not a cause 
 of defeating the right of homestead — the statute being 
 silent.^ 
 
 § 288. Involuntary absence on part of -wife no aban- 
 donment by her. — Where the wife of a homestead owner is 
 compelled by a mortgagee to leave the liomestead premises, 
 such absence on her part does not amount to abandonment ; 
 but if, having left, she acquires a new homestead, she will not 
 be able to hold the old homestead.^ So, of a homestead oc- 
 cupied by the husband and wife at the time the husband con- 
 veyed it, the wife not joining in the conveyance, it. may be 
 claimed by the wife, though abandoned by the husband, 
 unless the husband has acquired a new residence.* 
 
 § 289. Voluntary absence on part of -wife. — A married 
 woman who has withdrawn altogether from the State, and is 
 
 IBlueu. Blue, 38 111. 10. 
 
 2Titcomb V. Moore, 43 I11..170 ; "White v. Clark, 36 111. 285. 
 
 3 Moore v. Dunning, 29 HI. 130. 
 
 4 Lies V. Diablar, 12 Cal. 33.0. 
 
 5 Horn v. Tufta, 39 N. H. 478 ; Wood v. Lord, 51 N. H. 448 ; Nims u. Bige- 
 low, 45 N. H. 347. 
 
 . 6 White V. Clark, 36 111. 285. 
 
§ 290 HOW DIVESTED. 236 
 
 domiciled in another State, cannot claim any homestead priv- 
 ileges, nor can a woman who has without good cause volun- 
 tarily deserted her husband's bed and board for several (two 
 or three) years immediately previous to his decease, make a 
 claim to the homestead, or widow's allowance at the hus- 
 band's death. In both these cases the action of the wife has 
 been held to be tantamount to an abandonment of their home- 
 stead privileges.^ The wife is entitled to continue in the oc- 
 cupation of the homestead upon the death of the husband ; 
 if, however, she permanently abandons it as a homestead, it 
 ceases to have that character, and she forfeits her right 
 thereto, and becomes a tenant in common with the other 
 heirs.^ It will be deemed an abandonment on the part of 
 the widow who marries again, and removes from the home- 
 stead premises with her husband to another place, if she and 
 her^husband have no intention of returning to resume occu- 
 pancy of the homestead ; but a vague design of returning, to 
 be executed and carrifed out at some indefinite period of time, 
 is not sufficient to preserve the right where the claimant is 
 residing at a different place and on other premises.' 
 
 § 290. Abandonment by minor children. — It is no aba'n- 
 
 donment of the homestead by children, some of them being 
 
 minors, who, after the death of the father and mother, are 
 
 taken away from the homestead to reside with their kindred ; 
 
 and the homestead occupied by the father at his death may 
 
 be rented to a tenant }ij the guardian of the minor children 
 
 for their benefit, and such leasing of the premises will not 
 
 constitute an abandonment of the homestead in their case. 
 
 "It is doubtful whether there can be any valid abandonment 
 
 of the homestead by minors, unless by order of a Court of 
 
 equity."^ In Georgia, where it appeared that a widow with 
 
 minor children, whose father died in the State, married a 
 
 I 
 
 1 Trawick v. Harris, 8 Texas 312 ; Earle v. Earle, 9 Texas 630 ; Monk v. Ca- 
 pon, 5 Allen 146. 
 
 2 Stewart v. Brand, 23 Iowa 478 ; Orman «> Orman, 26 Iowa 361 ; Monku. Ca- 
 pen, 5 Allen 146 ; Fyffe v. Beers, 18 Iowa 5 ; Dunton v. Woodbury, 24 
 Iowa 74. 
 
 3 Moore v. Titman, 43 HI. 169. 
 i Blue V. Blue, 38 111. 10. 
 
237 HOW DIVESTED. § 291 
 
 second time, and she and her husband, after living in the 
 county of her first husband's residence for some time, left 
 the State, taking the minors with . them ; but frequently 
 avowed their intention of returning to their former home, 
 which they claimed never to have abandoned, and an applica- 
 tion was made on behalf of the minors for a homestead out of 
 - their father's estate by next friend in the county in which 
 their father died resident : it was held that the minor children 
 were entitled to such homestead, and that if the facts consti- 
 tuted an abandonment by the mother, as far as the children 
 were concerned there was no abandonment.^ ' 
 
 WAIVER OF THE EIGHT OP EXEMPTION. 
 
 % 
 
 § 291. Waiver of the right must be in ^writing, prop- 
 erly executed. — Although the question of "waiver '{ of the 
 homestead right has been treated under the several sub-heads 
 in the present chapter, such as alienation, mortgage contract, 
 abandonment, etc., yet it may be useful to notice the de- 
 cisions that have been rendered in those States where no mode 
 is pointed out by which the right may be waived, other than 
 those heretofore noticed ; as well as such decisions as were 
 rendered in some States, prior to the passage of any law in 
 relation to waiver. 
 
 In many of the States it is provided by statute that no re- 
 lease or " waiver " of the homestead exemption shall be valid 
 unless the same shall be in writing and subscribed by. the 
 party or husband and wife. That is, to th e extent of the home- 
 stead value or quantity.^ 
 
 1 Harkins v. Arnold, 46 G-a. 656. See, for contrary opinion, Buck u.Coulogue, 
 49 m. 394, and Wright v. Dunning, 46 111. 271, where it is held that the widow, 
 heing aa much the head of the family as the father while living", could abandon 
 the homestead and affect rights of minor children. See Dunton v. Woodbury, 
 24 Iowa 74 ; Moore v. Dunning, 29 111. 130 ; Cabeeu v. Mulligan, 37 HI. 230. 
 
 2 Kitohell V. Burgwin, 21 111. 40 ; Vaiizant v. Vanzant, 23 111. 536; Atkinson 
 u. Atkinson, 37 N. H. 434 ; Horn v. Tufts, 39 N. H. 478 ; Davis v. Andrews, 30 
 Vt. 678 ; Gunnison v. Twitohell, 38 N. H. 62 ; Howe v. Adams, 28 Vt. 541 ; Sar- 
 gent V. Wilson, 5 Oal. 504 ; Olsen v. Nelson, 3 Minn. 53. On the other hand, see 
 principles discussed in Richards v. Chaoe, 2 Gray 383 ; Williams v. Starr, 5 Wis. 
 534 ; Yost v. Devault, 9 Iowa 60 ; Alley v. Bey, 9 Iowa 509 ; Jenny r. Grey, 5 
 Ohio St. R. 45. 
 
§ 292 now DIVESTED. 238 
 
 The question of "waiver " has eoihe before the Pennsyl- 
 vania Courts repeatedly since the Exemption Law of 1836, and 
 more particularly under the revised statute of 1849, which 
 exempts, as already stated elsewhere, |300 worth of property 
 of the debtor, whether of realty or personalty. There are 
 few or no decisions in any of the other States which have a 
 bearing on the question of " waiver " of the homestead ex- 
 emption. In fact, a majority of the Pennsylvania decisions 
 have arisen under proceedings affecting personalty under the 
 exemption laws of that State, yet there are many decisions 
 which may aid in the solution of the question of waiver of 
 the homestead right. 
 
 In the earlier decisions of that State the statutory privilege 
 is characterized as not being an exemption in itself, but a 
 right to obtain one in a designated manner ; if the debtor 
 would secure it he must comply with the conditions of the 
 law. " The exemption is not of the proceeds of sale from ap- 
 plication to the payment of the debt, but of the appraised 
 property itself from sale. It was not intended that the debt- 
 or should retain money. Where land has been levied upon 
 and by an appraisement, it has been determined that it can- 
 not be divided so as to set apart to the debtor so much there- 
 of as is equal to his requirement — ^the whole may be sold. 
 Then he may receive from the proceeds of the sale an equiv- 
 alent from that which would otherwise have been exempted 
 from sale. This exceptional case exists only where the land 
 cannot be divided." ^ 
 
 I 292. Waiver of the statutory privilege of exemption 
 of a portion of his property from levy and sale under execu- 
 tion is one which maybe waived by the debtor. "When 
 made at the time the debt is created, the waiver is based 
 upon the same consideration as that upon which rests 
 the liabihty to pay, and is therefore irrevocable. Such a 
 waiver is a contract, that, so far as regards the judgment 
 creditor in whose favor it is made, the debt shall be collecti- 
 
 1 Line's Appeal, 2 Grant's Cases 197 ; Dodson's Appeal, 25 Penn. St. (1 Casey') 
 232. 
 
239 HOW DivBSTBD. §§ 293-296 
 
 ble in the same manner as if the Act of 1849-had never been 
 passed. ' ' ^ 
 
 § 293. Where there is no waiver of exemption in tha 
 judgment under which property is sold, the debtor can claim 
 $300 of the proceeds, even though there be a waiver of the 
 exemption in other judgments against him. Andjthe holders 
 of the judgments containing no waiver can compel the cred- 
 itors with waiver to resort first to the exempt fund for pay- 
 ment.^ 
 
 § 294. A debtor cannot waive his right to the $300 
 exemption in favor of a junior lien creditor, nor can he 
 
 assign it to a third person ; whatever he does not regularly 
 claim for himself remains in the fund, to be distributed ac- 
 cording to law.^ 
 
 § 295. The right must be claimed, silence construed 
 as ■waiver. — And if he desires to have the benefit of the 
 exemption act he must claim it — if not, his silence will be con-. 
 strued as a waiver. Where a debtor's land was levied upon, 
 and he claimed the exemption, and an appraisement was 
 made, but no sale eff"ected under that execution, and after- 
 wards another creditor levied upon a part of the same land 
 and sold it, without the debtor having given the notice upon 
 the latter execution, it was held that he had waived hig 
 right. ^ 
 
 § 296. A stipulation in the condition of a bond waiv- 
 ing all law or lavrs that would prevent the obligee, his 
 heirs, executors, or administrators, frorn levying on and sell- 
 ing the obligor's property, is a waiver of the exemption law, 
 and can be avoided only on the ground of fraud, accident, 
 mistake, or some other equitable principle.^ A waiver of 
 
 1 Bowman v. Smiley, 31 Penn. St. 225. 
 
 2 Pittman's Appeal, 48 Penn. St. 315. 
 
 SBowyer's Appeal, 21 Penn. St. 210; Hill o. Johnston, 29 Penn. St. 362; 
 Shelley's Appeal, 36 Penn. St. 373; Lanok's Appeal, 44 Penn. St. 395. See 
 also Johnston & Sutton's Appeal, 25 Penn. St. 117. 
 
 4 Dobaon's Appeal, 25 Penn. St. 233. 
 
 6 Smiley v. Bowman, 3 Grant's Cases 132. 
 
§§ 297-300 HOW DIVESTED. 240 
 
 claim of exemption is binding ; even if the debtor afterwards 
 changes his mind, and makes claim thereto in due time, the 
 waiver in the first instance formed part of the original con- 
 tract. * 
 
 S 297. Waiver under one la-w is not a waiver under 
 subsequent act. — But where a defendant, in an execution 
 issued upon a judgment for a debt contracted prior to the 4th 
 July, 1849, consented to a levy on articles exempt by the Act 
 of 1836, it was held competent for him to withdraw such con- 
 sent before the day of sale, and that the officer selling such 
 articles after notice of such withdrawal was liable for so do- 
 ing. ^ 
 
 § 298. Waiver of " inquisition no forfeiture of the 
 right to claim exemption. — When a defendant waives his 
 right to an inquisition to condemn real estate levied on, and 
 agrees that the sheriif may sell, he does not thereby forfeit 
 his right of claiming the exemption of $800.' 
 
 This waiver, or agreement to waive the exemption law, 
 made when the debt is contracted, must be expressed in clear 
 and precise language. Such an agreement cannot be inferred 
 or conjectured.^ 
 
 § 299. Exemption cannot be claimed -where deed of 
 assignment does not make reservation. — Where a debtor 
 assigns all his property for the benefit of his creditors, he 
 cannot claim the exemption of $300 out of such property, un- 
 less he expressly reserved the right in the deed of assign- 
 ment.* 
 
 S 300. Agreement -with debtor that he may retain 
 part of land. — But where a debtor gave a note in 
 which he waived the f 300 exemption, and his land being af- 
 
 1 Lanok'a Appeal, 24 Penn. St. 426 ; Hoffman v. McDern-vrood, 1 Pitts 197. 
 
 2 Hutchinson v. Campbell; 25 Penn. St. 273; Case v, Dunmore, 23 Penn. 
 St. 93. 
 
 3 Shaw's Appeal, 49 Penn. St. (13 Wright) 177. 
 i O'Nail V. Craig, 56 Penn. St. 161. 
 
 5 Blackburn's Appeal, 39 Penn, St. R. 160. 
 
241 HOW DIVESTED. §§ 301-303 
 
 terwards, levied upon, he claimed the exemption, and the 
 plaintiff, notTelying on the waiver in the note, got the debtor 
 to indorse another waiver on the writ, agreeing that if he 
 would abandon his claim to the exemption he might retain 
 part of the land — fifteen acres and the house : the Court 
 held that this agreement was binding on the plaintiff, and that 
 he was a trustee of the fifteen acres of land and the house. ^ 
 
 . § 301. Waiver of the husband. — A married householder 
 cannot by any waiver consent to a pale ,of his homestead on 
 execution so as to render the sale valid withoat the consent of 
 his wife." 
 
 § 302. Failure or neglect to file a declaration of 
 homestead, by either husband or wife, is a waiver of the 
 homestead right in those States where, in order to secure the 
 exemption, it is necessary to file such declaration.^ 
 
 EASEMENT UPON THE HOMESTEAD. 
 
 § 303. The power of the iusband to grant right of way 
 over the homestead without the wife's consent seems to be 
 established by a late case in Iowa. The proposition, as here- 
 tofore generally understood and conceded, has been that the 
 homestead should not only be protected from forced sale upon 
 legal process, but that neither spouse could legally convey or 
 incumber it, but it would seem that an easement is not to 
 be regarded as affecting the title to the land, and that there- 
 fore the husband might grant a way over the homestead, so 
 long as thereby he does not defeat the occupancy of it as such, 
 upon the same principle that a husband having the control of 
 the income from the homestead might lease such parts as 
 
 1 Beegle v. Wentz, 55 Penn. St. (5 P. Smith) 369. 
 
 2Eisher v. Meister, 24 Mich. 447 ; Yost v ;Devault, 9 Iowa 60 ; Dye v. Mann, 
 10 Mich. 291 ; Alley v. Bay, 9 Iowa 509 ; Vanzant t/. Vanzant, 23 111. 536 ; 
 Williams V. Sweetland, 10 Iowa 51 ; Larsen v. Beynolds, 13 Iowa 579. 
 
 3 In the matter of the Estate of Reed, 23 Gal. 410 ; Bartholomew v. Hook, 23 
 Gal. 277. 
 
 Homestead — 16. 
 
§ 303 HOW DIVESTED. • 242 
 
 were not in actual use by the family, or might farm out a 
 part of it on shares. That he could alone grant an estate in 
 it, even of the nature of an easement, which should be a per- 
 manent one and uncontrollable by the spouses, appears to be 
 antagonistic to the general intentions of the framers of the 
 constitutions and laws as to homesteads, but the latest ruling 
 upon the point favors the right of the husband so to do.^ 
 
 An easement and permanent use of certain portions of land, 
 held as a homestead, may be acquired as against the home- 
 stead claimant. 
 
 Thus, where the owner of land, which is occupied as a 
 homestead, has dedicated a part of such land as a public high- 
 way, and executed a release of all claim to damages, under 
 seal, and for a valuable- consideration ; and such road was 
 opened, used, and worked, the fee of the land still remaining 
 in the grantor, the question of a homestead right in the land, 
 by his surviving widow, cannot be I'aised. The objection that 
 all the requirements of the statute, in dedicating, were not 
 observed, can have no weighty when the owner himself initi- 
 ated the proceedings, and every act therein was done with 
 his knowledge and consent.^ 
 
 And when a man conveys his homestead, and describes 
 in the conveyance that the premises abut on cei'tain streets, 
 and covenants to permit such bounds to be used as streets, 
 he cannot erect a building upon the spaces designated as 
 streets, on the ground that the same remained part of his 
 
 1 Chicago & S. W. B. B. Co. i;. S wenney, 38 Iowa 182 : " Can a husband grant 
 a right of "way to a railroad company over the homestead property, unless the 
 ■wife concurs in and signs the conveyance ? As applied to the circumstances of 
 this case, we reply in the affirmative. The right of way is but an easement and 
 does not pass the title ; and in this case it does not, and is not claimed to, affect 
 the substantial enjoyment of the homestead as such. If the homestead was a 
 single lot, and the right of way occupied it all, so as to destroy the homestead or 
 defeat its occupancy as such, the case would be very different. It oannotbe 
 doubted that if the husband, in this case, instead of cultivating the homestead 
 himself should make a contract with his neighbor, or another, to cultivate.it, or 
 a part of it, upon shares, or for a fixed money rent, for one or for a series of years, 
 such contract would be valid and binding, although the wife did not join or con- 
 cur in and sign such a contract. And yet no one would claim that the husband 
 could convey or make a permanent lease of the whole homestead without such 
 concurrence by the wife." 38 Iowa 18^. 
 
 2 Tricksy v. Schlader, 52 111. 78. 
 
243 HOW DIVESTED. § 303. 
 
 homestead, and had not beeii dedicated as streets. As to the 
 grantees, and those claiming under them, the conveyance was 
 a dedication of the streets named as pubhc highways, and so 
 vested in them, the grantees, a right of way as an appurte- 
 nance of the lot, and therefore free from the claim of home- 
 stead.^ 
 
 1 Kittle V. Pfeifferet als., 22 Cal. 484, 
 
§ 304 DIVORCE. ' 244 
 
 CHAPTER X. 
 
 DIVORCE. 
 
 g 304. Another mode by which the homestead may be 
 divested, as such, is by divorce of the husband and wife. 
 
 The following doctrine is held in regard to lands held in 
 joint tenancy by husband and wife, and the effect of a divorce 
 between the parties on such estate. " It is laid down that, if 
 husband and wife purchase," or acquire "an estate jointly, 
 and are disseized, and the husband releases, and afterwards 
 they are divorced, the wife shall have-the moiety, though be- 
 fore the divorce there were no moieties, for the divorce con- 
 verts it into moieties." ^ " This must necessarily be so ; for 
 although in such case the relation of husband and wife exist- 
 ed, de facto, at the time the conveyance was made to them, 
 jointly or acquired, as common property ; yet in contempla- 
 tion of law, that unity of persons out of which this anomalous 
 tenancy springs, and on which alone it depends as a mere in- 
 cident, never did exist, and as some effect must be given to 
 the conveyance," or acquisition, "the divorce is regarded as 
 having severed the entirety and turned it into moieties. It 
 would seem reasonable that this principle should be held 
 equally applicable where a marriage lawfully contracted is 
 dissolved by a divorce, for some supervenient cause, as fre- 
 quently happens under our law, though its application is not 
 so easy in such cases as where the marriage contract was void 
 ab initio." 
 
 1 Bright's husband and wife, 25, 162, 165, Id. 2, p. 364. As to the question of 
 community interests of husband and wife on dissolution of the marriage by di- 
 vorce, see Eslinger v. Eslinger, 47 Gal. 62 ; Lord v. Hough, 43 Oal. 581 ; Wilson 
 V. 'Wilsbn, 45 Cal. 399 ; Godey u. Godey, 39 Oal. 157 ; EidenmuUer v. Eiden- 
 muUer, 37'Cal. 364. Under the laws of California, all property acquired after 
 marriage is common property, as in Texas. . 
 
245 • DivoECB. § 305 
 
 " K the rights of husband and wife in relation to an estate 
 held by entireties are not altered by the decree declaring the 
 divorce, what becomes of the joint estate ? "What are their 
 respective rights in the future in regard to it ? They are no 
 longer one legal person — the law has made them twain. 
 They are no longer capable of holding by entireties ; the rela- 
 tion upon which that tenancy depends has been destroyed ; 
 the one legal person has been resolved by judgment of law 
 into two distinct, individual persons, having in the future no 
 relation to each other, and with this change of their relations 
 must necessarily follow a corresponding change of the ten- 
 ancy dependent upon the previous relation. As they cannot 
 longer hold by joint seizin, they must hold by moieties. The 
 law, in destroying the unity of persons between them, has by 
 necessary consequence^ destroyed the unity of seizin, in res- 
 pect of their joint estate, for independent of the matrimonial 
 union this tenancy cannot exist." ^ 
 
 g 305. Character of homestead, as such, may be lost 
 by divorce. — In the earlier decisions in California, the ten- 
 ure of the homestead has been termed, as between husband 
 and wife, a joint tenancy. It is said in the case of Gimmy v. 
 Doane,^ that there is only one way in which the homestead 
 may lose its character as such, and that is by an order of 
 Court in case of divorce of the husband and wife. 
 
 In such case, when the homestead may be partitioned or 
 set apart to one of the parties in the same manner as the 
 other common property of the spouses, and in case of such 
 partition or setting apai't of the property, where there are no 
 children, such property will lose its character as homestead ; 
 certainly in the hands of a divorced husband, and presumedly 
 so in the hands of the divorced wife. This is the only way the 
 joint tenancy — if such it may be called — in the homesteacj 
 estate, as between husband and wife, can be terminated. 
 
 1 Ames V. Norman, 4 Sneed (Term.) 695. See Shoemaker v. Clialfant, 47 Cal. 
 435. 
 
 2 22 Cal. 635. The same principle is maintained in Texas : Upon tlie death of 
 householder, when no constituent member of the family remains, the home- 
 steadjexemption ceases to exist ; Hoffman v. Neuhaus, 30 Texas 633 ; Sossaman 
 'v. Powell, 21 Texas 664 ; Burns v. Jones, 37 Texas 50. 
 
§§ 306-307 DIVORCE. - 246 
 
 § 306. Decree and partition then liable for antecedent 
 judgments. — Aud when the homestead exemption is thus ter- 
 minated by decree of Court dissolving the bonds of matrimony 
 and decreeing partition of the homestead between the parties, 
 such premises so partitioned become hable' to be sold on exe- 
 tion issued on a judgment recovered prio^ to the decree of 
 divorce and partition. Thus, where in 1871 certain premises 
 became the homestead of husband and wife, and so continued 
 up to the time when they were divorced, by a decree of 
 Court, in 1873 ; the decree directed the homestead property 
 to be equally divided between the husband and wife, parti- 
 tion having been had by the intervention of commissioners. 
 The Court in confirming the same adjudged that the " respect- 
 ive portions allotted to each be held by them respectively, 
 free and clear of all claims by or on the part of the other." 
 Subsequent to these proceedings, an execution issued on a 
 judgment rendered against the husband, and that portion al- 
 lotted to him was offered for sale by the sheriff. Upon suit to 
 restrain the sale, it was held that the premises were liable, 
 that "the decree severed the sort of joint tenancy of the 
 parties in the homestead premises — it also destroyed the right 
 of survivorship. The joint deed of both parties is no longer 
 essential for the alienation or abandonment of any portion of 
 the premises. The family, for whose benefit the provisions 
 of the homestead act were mainly designed, was severed by 
 the decree. All the principal qualities of the homestead es- 
 tate, except that of hability for debts, etc., having been de- 
 stroyed, the decree was as effectual in its results as would 
 have been a declaration of abandonment." 
 
 " It results from these views that the portion of the prop- 
 erty which was allotted to the plaintiff was liable to execution 
 for the payment of his debts."* 
 
 § 307. Adultery, or various other Acts of the parties, 
 does not affect the right. — The fact that the husband may 
 have committed adultery will not opei-ate as a forfeiture of 
 his homestead right, where a forfeiture of his right would 
 
 1 Shoemaker v. Chalfant, 47 Cal. 435 ; Hoyt v. Howe, 3 Wis. 660 ; Simmons 
 V. Johnson, 14 Wis. 523. 
 
247 DivoKCB. § 308 
 
 also defeat that of Ms wife, and no act of "Ms can have that 
 effect. Where the householder and his family were resid- 
 ing upon premises at the time of their sale under execu- 
 tion, there being no release of the homestead right'; sub- 
 sequently, the wife obtained a decree of divorce, on the ground 
 of adultery on the part of the husband. Held, that no for- 
 feiture was incurred to prevent the assertion of the homestead 
 exemption as against the purchaser, under the execution.' 
 
 The samd principles obtain in Massachusetts. Upon the 
 question whether the homestead right had been, or could be, 
 extinguished by the various acts of the parties holding that 
 estate, Dewey, J., said, in Doyle v, Coburn : ^ "S"or did the 
 separation of husband and wife, as shown by her withdrawal 
 in 1861, taking with her the child, defeat the homestead es- 
 tate. The defendant has personally occupied the same as his 
 place of residence up to the present time. He acquired his 
 homestead as a ' householder having a family.' It is not ne- 
 cessarily lost by the death or absence of his wife and children. 
 Others may be adopted as members of his household, and his 
 homestead retain its existence." 
 
 "I^or does the withdrawal of the wife, under a decree for 
 a divorce from bed and board, obtained on her applica- 
 tion, and the assignment to her of the custody of the child, 
 defeat the husband's right of homestead, he continuing to oc- 
 cupy it as such." 
 
 § 308. A sale on execution under the decree would not 
 defeat the homestead right, inasmuch as it is exempt from 
 execution ; and it is immaterial that the wife assented to such 
 sale, or that it was for her benefit. Any such sale would be 
 illegal, and would not affect the homestead.^ 
 
 "Where a decree was entered, divorcing a husband and 
 wife, and giving the wife a general judgment only for alimony, 
 leaving the husband the head of the family, consisting of him- 
 self and several minor children, it was held that a' homestead, 
 
 1 Blue V. Blue, 38 111. 10 ; Redfern v. Redfem, 38 HI. 509 ; Byers v. Byers, 21 
 Iowa 268 ; Woods v. Davis, 34 Iowa 265. 
 
 2 6 Allen 71. 
 
 3 Id. 6 Allen 73. 
 
§§ 309-310 DIVORCE. 248 
 
 acquired and occupied as such, was exempt from sale to sat- 
 isfy sucli judgment for alimony. Whether the Court, in 
 rendering a decree of divorce, can set apart the homestead 
 to the wife, either absolutely or for a limited period, or can 
 make the judgment for alimony a lien thereon — leaving the 
 husband the head of the family — is a question not decided.* 
 
 § 309. Custody of the children given to mother after 
 divorce, not thereby head of family, and entitled to the 
 homestead. — In the same State, it is held that, when a wife 
 has obtained the custody of the children, after a divorce from 
 the husband, she does not thereby become the head of the 
 family on the ground that the decree awarding to her the cus- 
 tody of the child, or children, does not exonerate the husband 
 from the liability to support the same in the event of the inabil- 
 ity of the mother to do so. It seems fully to accord with the 
 provisions of the homestead law, that the exemption should 
 last as long as his liability for support exists, provided he con- 
 tinue in the actual occupation of the property. Besides, the 
 homestead law is intended for the benefit of the children as 
 well as of the parents. " It does not accord with the spirit 
 of the humane provisions of the statutes, that the divorcing 
 of the wife, and awarding to her of the children, should de- 
 prive them of all interest in the homestead property."^ 
 
 § 310. A contrary, and what appears to be a more hu- 
 mane and equitable rule, obtains in Illinois and in Texas. 
 Where the wife of a pai'ty having a homestead right obtains a 
 divorce from him, she being " the meritorious cause thereof, " 
 and the custody of their child being committed to her, she be- 
 comes the head of the family, and the homestead right passes 
 to her as such by the operation of the statute. "In fact, she 
 holds it by the double right, as alimony by a decree of 
 Court, and as her homestead by the operation of the statute." 
 
 1 Byera v. Byers, 21 Iowa 268. See Brandon v. Brandon, Sup. Ct. Kan., Am. 
 L. Beg., July, 1875, (N. S. Vol. 14, No. 7). 
 
 2 ■Woods V. Davis, 34 Iowa 264 ; Byers v. Byer-s, 21 Iowa 269. As to the ques- 
 tion of liability of husband to support child after divorce, when wife awarded 
 the custody of child, see Wilson v. Wilson, 45 Cal. 399 ; Brandon v. Bran- 
 don, Sup. Ct. Kan., Am. L. Eeg., July, 1875. 
 
249 DIVORCE. §§ 311-314 
 
 § 311. Nor will the Avife forfeit her homestead right 
 if she leaves during coverture on account of hei- husband's 
 cruelty. She may be said to leave undez- moral compulsion.* 
 
 § 312. Nor does the death of the wife after the divorce in 
 such case operate to destroy the homestead right, her child 
 being still alive, because the statute secures it to the child 
 until it attains the age of twenty-one years. 
 
 2 
 
 § 313. Where the husband obtains a divorce fronx the 
 wife, there being minor children of whorn he has the care 
 and custody, the divorce does not change his position : he still 
 remains the. head of the family and is entitled to occupy the 
 ' homestead as such. And whatever right the wife may have 
 in the homestead it is subordinate to the right of the hus- 
 band while he lives, and continues to be the head of the fam- 
 ily and to occupy the premises. So, after a divorce between 
 the husband and wife, if the latter acquires the fee in the 
 premises constituting the homestead from the grantee, in a 
 deed executed by her and her husband prior to the divorce 
 which did not operate as a release of the homestead right, she 
 will hold subordinate to her husband's right of homestead, 
 there being minor children of whom he retains the care and 
 custody.^ 
 
 § 314. In Texas, the rule is, that w^here a divorce is 
 obtained by husband or -wife, the spouse to whom the 
 care of the children is awarded by the Court becdmes the 
 head of the family, and, as such, becomes entitled to the use 
 ■ of the homestead for life.^ The same rule prevails in Kan- 
 sas. In the case of John Brandon v. Mary Ann Brandon, ° 
 the plaintiflF was granted a divorce on account of the fault of 
 
 1 Vanzant v. Vanzaut, 23 111. 536 ; Tieman v. Tieman, 34 Texas 524 ; Redfern 
 V. Efidfem, 38 111. 509. 
 
 2 Bonnell v. Smith, 53 111. 377 ; Stat, of 111. 1871 and '72. 
 
 NoTB. — By the statutes of HI., Laws 1871 and '72, p. 478, See. 5, it is provided 
 that "in case of divorce, the Court granting the divorce may dispose of the 
 homestead estate according to the equities of the case." 
 
 3 Redfern v. Bedfern, 38 111. 509. 
 
 - 4Tiemann u. Tiemann, 34 Texas 522. 
 6Sup. Ct. Kansas, Am. L. Reg., July, 1875, Vol. 14, (N. S.) No. 7. 
 
§ 316 . DIVORCE. 250 
 
 the defendant on the charge of habitual drunkenness, but the 
 Court awarded the defendant the care, custody, nurture, and 
 education of the two minor children of the plaintiff" and de- 
 fendant, one three and a half years old and the other one year 
 old. The decree provided that the defendant should have 
 and retain the possession of the homestead of the plaintiff 
 during her natural life, and that the plaintiff" should forth- 
 with- deliver possession of said premises to said defendant, and 
 that the plaintiff should pay as further alinjony the sum of 
 twenty-five dollars per month to the defendant. Upon appeal 
 to the Supreme Court by the plaintiff, it was held : 1st. That 
 " the fact that the title to the homestead property is in the 
 husband does not give him any greater interest in it as a 
 homestead" ; "in so far as it is homestead, it is the home- 
 stead of each, and upon divorce the Court has the power to 
 assign it to either." "The assignment of the homestead to 
 the wife is within this power " granted to the Courts. "And 
 the constitutional gi'ant of power to divorce is broad enough 
 to include the power to determine the subordinate and de- 
 pendent questions of the family property and the care 
 and custody of the children. In this case we have only 
 the question of power to determine, for as the testimony 
 is not before us, we are unable to form any opinion as to the 
 propriety of the assignment of the homestead to the wife." 
 2d. Held, that the Court could not say it was error on the 
 part of the Court below in awarding " the custody of the 
 children to one found to be an habitual drunkard ' ' (in the 
 absence of the testimony in the casie). " The children were 
 of tender years, and needed a mother's care of them during 
 their infancy." "So far as the amount of alimony is con- 
 cerned, we suppose it was intended for the benefit of the 
 children rather than of the wife. We, however, are not pre- 
 pared to say that it was exorbitant, when the custody and 
 care of the children are taken into account." 
 
 & 315. When a husband, in fraud of his -vsT^ife's rights, 
 
 and in collusion with a third person, conveys his homestead 
 premises to the latter, without his wife's consent and signa- 
 ture, he loses all claim to the premises as homestead, as far 
 
251 DIVORCE. § 316 
 
 as he is personally concerned ; and therefore he cannot deny 
 fraud in the conveyance, on the ground that, as a homestead, 
 the land was not subject to sale on execution for, alimony in 
 an action of divorce maintained against him by his wife. 
 
 If he had not made such fraudulent convej'^ance, it is 
 doubtful whether the land could have been sold in execution 
 for the alimony in the divorce suit ; but the wife's remedy 
 would have been to have a portion of the homestead prem- 
 ises set off to her, and title thereto passed to her by the de- 
 cree in the suit.^ 
 
 § 316. In Pennsylvania, where a judgment of divorce has 
 been pronounced and death ensues, the survivor cannot claim 
 under the exemption laws any portion of the property left by 
 the decedent. In every case, to entitle the survivor to partic- 
 ipate in the benefits of the exemption law, the family rela- 
 tion must exist at the time of death ; or if it does not actually 
 exist, through desertion or some other cause, it must exist in 
 contemplation of law, as the purpose of the law is a provision 
 for the wants of the family.^ 
 
 1 Barker v. Dayton, 28 Wis. 367. 
 
 2 Hettrick v. Hettriok, 55 Penn. St. 290. 
 
§§ 317-318 DESCENT AND PROBATE. 252 
 
 CHAPTEE XI. 
 
 DESCENT AND PROBATE. 
 
 § 317. General statement — The death of one of the 
 spouses does not, in many of tlie States, alter in any way 
 the estate or title of the homestead. If the homestead had 
 been the separate property of either, or the common proper- 
 ty of both, before the homestead character attached, it still 
 remained such separate or common property, subject to the 
 right of occupancy by the survivor and minor children.^ 
 
 § 318. The survivor takes the title absolutely, in other 
 States, and again, in others, it descends to the wife and chil- 
 dren jointly, if there be any children ; ^ if not, the fee-simple 
 estate vests in the widow, and upon her death descend to her 
 heirs, lineal and collateral, and not to the heirs of the hus- 
 band.' 
 
 Thus, in Missouri, one Wood, at the time of his death, held 
 a homestead in certain premises, of which he was the owner 
 in fee-simple absolute. Subsequently the widow was allowed, 
 as a homestead, 120 acres of the estate of her deceased hus- 
 band. " The deceased left no minor children, but had sev- 
 eral children by a former wife, who were of age, and married. 
 One of the married daughters filed in the Circuit Court a 
 petition to enjoin the defendant widow from wasting the tim- 
 beron the 120 acres so set apart. "A temporary injunction 
 was granted, and ultimately this injunction was made final." 
 
 1 Size V. Size, 24 Iowa 580 ; Jolinson t;. Bush, 0^1. S. C, Oct. Term, 1874, to 
 appear in 48 Oal. ; Header v. Place, 43 N. H. 307 ; Myer v. Myer, 23 Iowa 359 ; 
 Hamblin v. Warnecke, 31 Texas 91 ; Bassett v. Meaner, 30 Texas 604 ; Colton i'. 
 Wood, 25 Iowa 43 ; Burns v. Kess, 21 Iowa 207. 
 
 2 Wixom's Estate, 35 Cal. 320 ; Rich v. Tubbs, 41 Cal. 34 ; Comp. L. 111. 1871 
 and '72, p. 478, Sec. 2. 
 
 3 Doane v. Doane, 33 Vt. 652 ; Skouton v. "Wood, 57 Mo. 380. 
 
253 DESCENT AND PROBATE. § 318 
 
 The question was, whether the homestead of the wife, as- 
 signed to her by the Probate Court, was a life estate or a fee- 
 simple. 
 
 The statute under which this case was decided reads as fol- 
 lows : 
 
 "If any housekeeper or a head of a family shall die, leav- 
 ing a widow or any minor children, his homestead, to the 
 value aforesaid, ($1,500) shall pass to and vest in such widow 
 or children, or if there be both, to such widow and children, 
 without being subject to the payment of the debts of the de- 
 ceased, unless legally charged thereon in his lifetime ; and 
 such widow and children, respectively, shall take the same 
 estate therein of which the deceased died seized, provided, 
 that such children shall, by force of this chapter, only have 
 an interest in such homestead until they shall attain their 
 majority ; and the Probate Court having the jurisdiction of 
 the estate of such deceased housekeeper or head of a family, 
 shall, when necessary, appoint three commissioners to set out 
 such homestead to the person or persons entitled thereto." 
 
 It was held in this case that, there being no minor chil- 
 dren, the widow took the estate absolutely; "and on her 
 death it goes to her heirs, lineal or collateral, to the ex- 
 clusion of the husband's heirs. " * * * " The law declares 
 her title to be the same as her husband had, and as he had a 
 fee-simple, she enjoys the same, and can dispose of it as she 
 pleases ; and on her death without such disposition, it would 
 necessarily go to her heirs, to the exclusion of her husband's 
 children, who were at maturity at his death." " As the wid- 
 ow in this case took a fee, there was no ground for an injunc- 
 tion by the heirs of the husband ; and as the statute de- 
 clares she shall take a fee where her husband had one. The 
 Circuit Court erred, therefore, in granting any injunction, 
 and its judgment is reversed." ' 
 
 1 Skouton V. Wood, 57 Mo. 382 ; Day v. Adams, 42 Vt. 510 ; Simouds v. Pow- 
 ers, 28 Vt. 354; Keyes v. Hill, 30 Vt. 759 ; Doane v. Doane, 33 Vt. 652 ; Davis 
 V. Andrews, 30 Vt. 678 ; MoClary v. Bixby, 36 Vt. 257. 
 
 The Supreme Court of Missouri, in deciding this case, followed the decisions of 
 Verniont, wherein it is held that the widow takes the fee absolutely ; the Mis- 
 souri statute being a literal copy of the Vermont statute on the same subject : 
 "Homestead right in widow a right in fee, and descends to her heirs." Doane 
 V. Doane, 33 Vt. 652. 
 
§§ 319-320 DESCENT AND PROBATE. 254 
 
 § 319. General statement of the right in California.. — In 
 
 California, under the homestead laws of- 1851, in a series of 
 early decisions up to the year 1859, the Supreme Court of that 
 State uniformly held the theory that the husband and wife 
 were quasi joint tenants of the homestead. ^ In a subsequent 
 series of decisions by Field, C. J., under the same statute, 
 the theory of a joint tenancy on the part of the husband and 
 wife is rejected, and the theory is maintained that the right 
 of homestead did not change the nature of the prior estate in 
 the land ; whether it was the separate property, of the hus- 
 band or the common property of both husband and wife, it 
 continued to remain such common or separate property.^ 
 This latter view was unpopular, and the legislature, in the 
 following year, 1860, passed an act by which it was declared 
 "that the husband and wife shall hold the homestead prop- 
 erty as 'joint tenants,' and that upon the death of the husband 
 or wife the homestead shall be set apart for the benefit of 
 the survivor and his or her legitimate children. ' ' Thus re- 
 storing by legislation the interpretation of the Court of the 
 Act of 1851, which had obtained up to the year 1859. Sub- 
 sequently, by the amendatory act of 1862, the children of the 
 deceased husband or wife do not inherit any interest in the 
 homestead, but it vests absolutely in the survivor. By the 
 Codes adopted in 1873, (Civil Code, Sec. 1474) the provi- 
 sions of the Act of 1862 are continued in force. 
 
 i 320. If the -wife dies leaving husband and children 
 the homestead is inherited by the husband, and vests in 
 him absolutely, but the premises retain their homestead 
 character for the protection of the family, that is to say, for 
 the protection of the chi Idren, who, however, take no other in- 
 terest in the estate ;^ but if the wife dies leaving no issue 
 
 1 Taylor u. Hargous, 4 Cal. 273; Poole v. G-irrard, 6 Gal. 71; Doraeyi'. MoEar- 
 land, 7 Gal. 342; Eevalk v. Kraemer, 8 Cal. 66 ; Dunn v. Tozer, 10 Cal. 167 ; 
 Lies V. Diablar, 12 Cal. 327 ; and others. 
 
 2 aee V. Moore, 14 Cal. 472 ; Guiod v. G-uiod, 14 Cal. 506 ; Harper ti. Forbes, 
 15 Cal. 202; Bowman u. Norton, 16 Cal. 213; Brennau v. Wallace, 25 Gal. 108; 
 MoQuade v. Whally, 31 Cal. 526. 
 
 SEstate of Buchanan, 8 Gal. 507 ; Estate of Wixoni, 35 Cal. 320. 
 
255 DESCENT AND PROBATE. §§ 321-323- 
 
 living, the property in the hands of the husband loses its 
 homestead character and becomes answerable for his debts. ^ 
 
 § 321. When the husband dies leaving a -wido-w, or a 
 wido-w and children, surviving him, the homestead vests 
 absolutely in the widow, free from all debts of the deceased, 
 and it then becomes the duty of the Probate Court to set the 
 homestead apart for her use.^ The surviving wife only in- 
 herits the actual statutoi-y homestead, that is, the dwelling- 
 house and sufficient land to be worth $5,000, and this clear of 
 all incumbrances upon it, out of the proceeds of the hus- 
 band's estate, should there be sufficient assets for that pur- 
 pose.^ 
 
 § 322. Where no homestead had been selected or ac- 
 quired during the lifetime of the spouses, the widow is en- 
 titled to have a homestead set apart to her by the Probate 
 Court out of the husband's property.* ' 
 
 § 323. Property susceptible of dedication after death. 
 
 Previous to the adoption of the Codes in 1873, the premises 
 set apart to the widow must have been such as were suscepti- 
 ble of dedication to homestead uses during her husband's life. 
 Thus, premises held during the lifetime of the husband as 
 partnership assets, and assigned to his estate on the partition 
 of the real estate of the firm, could not be assigned to the 
 widow of the deceased member of the firm, not even though 
 she and her husband had been residing on the premises 
 during his life.^ 
 
 But. under Sec. 1482 of the Code, on petition, the Court is 
 authorized to set apart for the use of the widow a homestead 
 in any lands owned by the decedent as joint tenant or ten- 
 ant in common, and ord«r partition thereof, by action in the 
 proper Court, and when so partitioned, to be recorded as such 
 homestead, and not to exceed in value $5,000. And when 
 
 IBevalk v. Kraemer, 8 Cal. 72 ; since changed by statute. Benson u. Aitken, 
 17 Cal. 163. 
 2 Estate of Buchanan, 8 Oal. 507 ; Estate of Wixora, 35 Cal. 320. 
 3 Estate of Delany, 37 Cal. 176. 
 
 i Code of C. P., Sec. 1481 ; Estate of Busse, 35 Cal. 315. 
 5 Estate of Isaacs, 30 Cal. 113; Kingsley i;. Kingsley, 39 Cal.' 665. 
 
§ 324 DESCENT AND PROBATE. 256 
 
 partition cannot be had of the specified value, and a sale is 
 ordered, the proceeds of the sale to the amount of $5,000 are 
 to be paid to such claimant. 
 
 § 324. WidoAV after second marriage entitled to t-wo 
 homesteads. — A widow to whom the Probate Court has set 
 apart a homestead out of the estate of her decea^sed husband, 
 may, if she afterwards marries, claim a second homestead 
 under the general homestead act, in the estate of her second 
 husband. 
 
 In the case of Higgins v. Higgins,^ the plaintiffs were the 
 children of one of the defendants, Solomon Higgins, by his 
 first wife, Hulda, who acquired the title to the land in 'Contro- 
 versy ; ' ' that the purchase-money was paid out of the com- 
 mon property of the marriage ; that at request of the hus^ 
 band, and by way of gift from him, and with the intention on 
 his part that the same should become her separate estate, 
 the property was conveyed directly from the grantor to the 
 wife, by bargain and sale deed. " ^ That the wife " afterwards 
 died intestate during the lifetime of the husband, leaving the 
 plaintiffs as her heirs at law ; that the husband subsequently 
 intermarried with the defendant, Ann Higgins ; that there- 
 after, and whilst residing on the premises with her husband, 
 the said Ann duly filed and recorded a declaration claiming 
 said premises as a homestead ; after which her husband, Sol- 
 omon Higgins, by a deed reciting love and affection as the 
 consideration, conveyed the premises to his daughter, Mrs. 
 Goldstone, one of the plaintiffs ; and that ever since the filing 
 of the declaration of homestead, the defendant, Ann Higgins, 
 has resided upon, and claimed, and used said premises as a 
 homestead. " " The whole title, therefore, legal and equitable, 
 
 1 46 Cal. 259, 263 ; see Miles v. Miles, 46 N. H. 261. 
 
 2 It is a well-settled rule in California, that if a husband purchases an estate," 
 and pays for it out of the common property, and causes it to be conveyed to the 
 wife by a deed of bargain and sale, (provided it is not done in fraud of creditors) 
 with ,the intent that it become her separate estate, the transaction will operate 
 and be upheld as a gift from the husband to the wife. 
 
 Peck V. Brummajim, 31 Cal. 440 ; Dow v. G. & C. G. & S. M. Co. 31 Cal. 653 ; 
 Ingersollu. Trubody,40 Cal. 603 ; Woods v. Whiting, 42 Cal. 359 ; Higgins v. 
 Hio-crinB, 46 Cal. 263 ; Rhine v. Ellen, 36 Cal. 362 ; Ramsdell v. Fuller, 28 Cal. 37. 
 
257 DESCENT AND PROBATE. § 324 
 
 is in the- plaintiia's, unless the operation of the deed fyom Sol- 
 omon Higgins to his daughter has been defeated by the home- 
 stead claim filed by the defendant, Ann Higgins." Solomon 
 Higgins and his wife, the defendant, Ann Higgins, intermar- 
 ried on the 4th of February, 1870 — she being the widow of 
 John Jones, deceased — and that on the loth of the same 
 month, eleven days after her marriage with Higgins, the 
 Probate Court, by a proper decree, set apart to her, as the 
 widow of Jones, as a homestead for the use and benefit of 
 herself and the children of her marriage with Jones, of whom 
 there are four ; that the decree was duly recorded and in full 
 force. There are no children of the second marriage." 
 
 " Whether the wife, under these circumstances, can claim 
 a homestead in the estate of her second husband, is a novel 
 question, for the first time presented to the Court." 
 
 " It is said that, if she can claim both, she will be protected 
 in the enjoyment of two homesteads at the same time — a re- 
 sult which, it is claimed, was not contemplated by the statute. ' ' 
 
 But it is to be observed, that the homestead to be set apart 
 under the Probate Act, for the use of the widow and the 
 minor children, is a mere reservation out of the propei'ty of 
 the estate for their benefit, and is for the use of the minor 
 children as well as the widow. 
 
 " Under the general homestead act, however, the home- 
 stead goes to the wife alone, if she survives the husband, and 
 the children by a former marriage would have no interest in 
 it, while the children of her last marriage would have no in- 
 terest in a homestead set apart from the estate of her first 
 husband. ' ' 
 
 " Looking to the policy which dictated the two classes of 
 homesteads, we think that the fact that a homestead had been 
 set apart from the estate of her former husband for the use 
 of Mrs. Higgins and her minor children, did not estop her 
 from claiming a homestead out of the estate of her second 
 iiusband. On the death of his former wife, intestate, Solo- 
 mon Higgins succeeded, under the statute of distributions 
 and descents, to one-third of the property, and the other 
 two-thirds descended to the plaintiff's as heirs at law of the 
 
 Homestead — 17. 
 
§§ 325-32B DESCENT AND PHOBATE. 268 
 
 mother. The only interest in which Mrs. Higgins could as- 
 sert the right of homestead was the one undivided third part 
 of the property derived by her husband for the deceased 
 wife, and that an amount not exceeding |5,000 (Act March 
 9th, 1868) she was entitled to take up a homestead claim on 
 his undivided one-third interest, and after the homestead,cIaim 
 was perfected, the husband, by 'his sole conveyance, could 
 not defeat it. " ^ 
 
 In another case, (decided in 1872) the same Court held 
 that: "If a widow who is entitled to a homestead " under 
 Sections 121 to 125 of Probate Act in relation to homesteads, 
 "again marries before an order of the Probate Court is made 
 setting apart such homestead, she loses by her marriage the 
 right to such homestead. " ^ 
 
 § 325. In New Hampshire, it is held that by a second 
 marriage a vridow does not lose her right of homestead, 
 
 whether it be assigned to her before such marriage or not ; 
 the reason assigned being, that the policy of the law is against 
 restraint upon marriage.^ 
 
 § 326. In California, ■where there has been no home- 
 stead created during the existence of the community, by a 
 compliance with the homestead act, the widow can acquire 
 no homestead interest in the property under the foregoing 
 sections of the homestead act, until an order of the Probate 
 Court, or judge, has been made setting it apart to her.^ 
 
 Nor does the Court acquire jurisdiction to so set apart a 
 homestead for the surviving wife, when no homestead has 
 
 lid. p. 266. 
 
 2 Estate of Boland, 43 Cal. 642; Anderson u. Coburn, 27 Wis. 558. It will 
 have been seen that this case of Boland and that of Higgins i;. Higgins, just cited 
 at length, are in conflict in relation to setting aside a homestead for the use of the 
 ■widow after her second marriage. Yet both decisions arose virtually under the 
 same statute, and the same judges participated in both decisions. But the 
 question of allowing a homestead by the Probate Court to Mrs. Higgins as 
 widow of Jones, did not arise in the former case, and the question was not nec- 
 essary to the decision. 
 
 3 Miles V. Miles, 46 N. H. 261. See Anderson v. Coburn, 27 Wis. above, con- 
 trary rule. 
 
 4 Estate of Boland, 43 Cal. 642. 
 
259 DESCENT AND PROBATE. §§ 327-329 
 
 been selected before the deatb of the husbariid, unless a peti- 
 tion therefor is filed. ^ 
 
 § 327. Action of the Probate Court does not aflfeot 
 the title. — The setting apart for the use of the family of the 
 deceased husband or wife, property which had been dedi- 
 cated as a homestead under the homestead act, does not 
 change or transfer the title ; nor does it adjudicate the ques- 
 tion of title. The only effect of such order of the Probate 
 Court is to relieve the property from administration, and that 
 it does not constitute assets of the estate of the deceased.^ 
 
 § 328. Acquiescence of the vridoAV in homestead set 
 apart for a length of time is conclusive. — When the wid- 
 ow has had the homestead set apart to her, and has ac- 
 quiesced in the order so setting it apart, such acquiescence is 
 final and conclusive, and she will not be permitted afterwards 
 to successfully petition the Court to set apart another home- 
 stead in heu of the one she had originally petitioned for, be- 
 cause she thinks she has not chosen the most advantageous 
 piece of her husband's property. 
 
 Thus, where a widow who had applied to the Probate 
 Court to have the last residence of herself and husband set 
 aside as a homestead, and had acquiesced for eighteen 
 months in the order setting it aside, it was held that she 
 was concluded by her own act from afterwards claiming a lot 
 on which she and her husband had formerly resided, merely 
 because she had ascertained there were liens on the lot first 
 set aside.' 
 
 § 329. Omitting to file declaration in time, rights of 
 creditors. — Where, by an amendment to the homestead law, 
 those who would avail themselves of the exemption were re- 
 quired to file a declaration of such intention to claim and 
 hold such homestead on or before a certain day named, and 
 where a householder died before the time expired allowed by 
 
 ICameto v. Dupuy, 47 Cal. 79. 
 
 2E,ioln;. Tubba, il Cal. 35; Sohadt v. Heppe, 45 Cal. 433. 
 
 3 Holden v. Pinney, 6 Cal. 284. 
 
§ 330 DESCENT AND PROBATE. 260 
 
 law, and no claina of homestead was filed. It was held that 
 Ms widow could not claim a homestead against the hushand's 
 creditors, unless the declaration was filed before the time ap- 
 pointed by statute expired.' 
 
 DESCENT TO HEIRS OE HOMESTEAD ESTATE. 
 
 § 330. The la-w in relation to the descent of the home- 
 stead property after the death of one or both of the 
 spouseg, or by the death of one and the abandonment of the 
 premises by the other, has repeatedly received interpretation 
 by the Courts in California and Texas. In the recent case of 
 Johnson v. Bush,^ which arose in California under the Home- 
 stead Act of 1851, where the homestead property in contro- 
 versy was the common property of Eaton and wife, and was 
 occupied by them until her death in 1859, Crockett, J., in 
 delivering the opinion of the Court, thus announces' the rule 
 in relation to the fee of the land : 
 
 "The dedication of the land as a homestead, under the 
 Homestead Act of April 21st, 1851, did not constitute the 
 husband and wife joint tenants, with a right of survivorship, 
 nor change the nature of their prior estate in the land, and 
 had no other effect than to exempt it from alienation so long 
 as the homestead claim was impressed upon it, except by the 
 joint deed of the two spouses.' 'The power of alienation, 
 and not the nature of the estate, is thus affected. If the 
 premises are the separate property of the husband, or the 
 common property of both the husband and wife before they 
 become a homestead, they remain such separate or common 
 property afterwards. ' It is clear, therefore, that if the home- 
 
 1 Estate of Beed, 23 Cal. 410, under amendment to Homestead Act of June 1, 
 1862 ; see different rule under Act of 1860 ; Cohen v. Da,vis, 20 Cal. 187 ; Noble 
 V. Hook, 24 Cal. 638 ; Finley v. Deitriok, 12 Iowa 519 ; Kelly v. Baker, 10 
 Minn. 154. 
 
 2 Cal. S. C, Oct. Term, 1874— not yet reported. In Pacific L. Bep., Not. 10, 
 '74, to appear in 49 Cal. 
 
 3 Gee v. Moore, 14 Cal. 474 ; Bowman v. Norton, 16 Cal. 213 ; Himmelmann v. 
 Schmidt, 23 Cal. 117 ; Brannau v. Wallace, 25 Cal. 114 ; MoQuade v. "Whalley, 
 31 Cal. 531. 
 
261 DESCENT AND PROBATE. § 330 
 
 stead claim was terminated by the death of the wife, her in- 
 terest in the property immediately vested in her children, 
 who became tenants in common with their father, and were 
 entitled to be let into possession with him. ' On the other 
 hand, if the homestead claim smwived to the husband as the 
 head of the family, (a point not decided) nevertheless, the 
 children were not thereby deprived of the interest in the 
 common property which they had inherited from their 
 mother, and which they held, subject only to the homestead 
 claim of their father. When the claim was abandoned, or 
 tor any reason ceased to exist, the right of the children be- 
 came absolute, and entitled them to the immediate possession 
 of their undivided interest in the property. If it be con- 
 ceded,, therefore, that Eaton, after the death of his wife, was 
 entitled to occupy the land as a homestead, he held it as such 
 subject to the rights of his children as the owners of an undi- 
 vided half of the property, and whose right to be let into 
 possession would become absolute on the termination of the 
 homestead claim. In 1865, Eaton removed from these prem- 
 ises, and in 1867 conveyed them to the defendant by deed 
 absolute. This was clearly an abandonment of the homestead, 
 and the plaintiffs, who are the children of the deceased Mrs. 
 Eaton, became entitled to enter. We attach no importance 
 to the fact that, in 1861, after his second marriage, Eaton filed 
 a defclaration of homestead, including these premises, under 
 the Homestead Act of 1860. He could not deprive his chil- 
 dren of their estate by an attempt to dedicate property as a 
 homestead for himself and his second wife under the new law, 
 which establishes a sort of joint tenancy in the homestead, 
 with a right of survivorship, between husband and wife. ' ' 
 
 Such inheritance is regulated by the law in force at the 
 time of the death. ^ 
 
 1 Broad v. Broad, 40 Cal. 493 ; Broad v. Murray, 44 Cal. 228 ; Folsom v. CaiH, 
 SMinn. 337. 
 
 2 Eicli V. Tabbs, 41 Cal. 35 ; Sohadt v. Heppe, 45 Cal. 433. To the same ef- 
 fect, Hartmani;. ThomaB, 37 Texaa 90; Walker v. Young, 37 Texas 519; Bell 
 V. Sohwarz, 37 Texas 572 ; Magee v. Kioe, 37 Texas 502 ; Jones v. Jones, 15 
 Texas 140; Tadlook u. Ecoles, 20 Texas 782; Brewer v. Wall, 23 Texas 585; 
 Burleson v. Burleson, 28 Texas 418 ; Soaseman v. Powell, 21 Texus 666 ; Good v. 
 
§ 331 DESCENT AND PROBATE. 262 
 
 DESCENT AND PROBATE IN TEXAS. 
 
 § 331. The lavrs governing the homestead property on 
 the death of one of the spouses in Texas, as interpreted 
 by the tribunals of that State, are very similar to those of Cal- 
 ifornia, especially under the Act of 1851 of the latter State. 
 The laws relating to rights of husband and wife, of community 
 property, of descents and distributions, are alike. 
 
 The statute of Texas provides that "all property exempt 
 from execution shall be set apart for the use of the widow 
 and children."^ 
 
 The Supreme Court of Texas, in discussing the second sec- 
 tion of the statute of 1848, in relation to this subject, says : 
 " There is no distinction in terms between minor and adult 
 children, nor was there any in the like provisions in the stat- 
 utes of 1843 and of 1846. If we are to consider the policy and 
 object of the legislature, the conclusion would be that the 
 family should be secured in the home of the deceased, 
 whether the family consisted of a widow, or children, or 
 either, or whether the children at home be adults or 
 minors."^ 
 
 But a difterent view was taken subsequently in the case of 
 Hoffman u. Newhaus,' in which Morrill, C. J., said : "The 
 constitution of this State and the laws made in obedience 
 thereto, after defining a homestead, secure it to the family. 
 When children arrive at the age of majority, and especially 
 when they leave the family of their father and mother, and 
 become a separate family, they are no longer any part of the 
 old family. They can acquire a^ homestead of their own 
 which will be secure from all interference. The homestead 
 cannot be divided out, for that would partially destroy it, and 
 thus plainly violate its sacred character. As long, as 
 
 Coombs, 28 Texas 50 ; Cooper v. Singleton, 19 Texas 267 ; Walker v. Ho-ward, 
 34 Texas 478. 
 
 1 See Pasohal's Digest, L. 1843, 1846, 1848, 1866, and 1870, and Cohst. 1866. 
 
 2 James v. Thompson, 14 Texas 466 ; Green v. Crow, 17 Texas 180 ; Lockhart 
 V. White, 18 Texas 102. 
 
 3 30 Texas 633. 
 
263 DESCENT AND PROBATE. § 331 
 
 there is a family having a head, and as long as this 
 head chooses to occupy the homestead, it cannot be in- 
 terfered with for any purpose." "The statute requires 
 the. Chief Justice (of the county) to set apart for the 
 use and benefit of the widow and children what is exempt 
 from execution." "The homestead cannot be divided, as the 
 proviso in the section shows, which expressly requires that 
 nothing in the act shall be so construed, if the estate is not. 
 insolvent, as to prohibit the distribution and partition of said 
 estate among the heirs and distributees thereof, including the 
 portion designated and set apart to the widow, excepting the 
 one year's provision. As the heirs of a deceased person who 
 has children are these children, and as a distinction is drawn 
 between the heirs and the widow and children, the word 
 children must be construed to mean minor children, and 
 it is for these minor children and the head of the family, 
 whether that head of the family consists of father, or mother, 
 or guardian, that the homestead is reserved." And the law 
 will protect them in the enjoyment of their right from the in- 
 terference either of the heirs at law or the general creditors. 
 Upon the death of the husband, the widow takes to her sole 
 use one-half of the property exempt in the lifetime of her 
 husband, and the other half she holds for the benefit of the 
 children of the marriage.^ Even if the Probate Court had 
 not been by any law invested with authority to designate for 
 the use of the widow of the deceased the property which in 
 his lifetime had been exempt from execution, yet such prop- 
 erty would, in the possession of the widow, be exempt from 
 execution or forced sale. During the existence of the mar- 
 riage the husband was the head of the family, but on its dis- 
 solution by death the surviving wife was placed in that posi- 
 tion, and in such position she has all its incidents, rights, and 
 privileges. The same of the husband on the death of the 
 wife. The right of either as the head of a family to retain 
 the property exempt from execution is perfect, and the right 
 of one is entirely equivalent to that of the other, and is 
 neither of a higher, or lower, or different, but of the same 
 
 IWood f. Wheeler, 7 Texas 21. 
 
§§ 332-334 DESCENT AND PROBAIB. 264 
 
 grade, nature, and force. Husband and wife are not one, under 
 the laws of Texas. The existence of the wife is not merged 
 in that of her husband, as far as the rights of property are 
 concerned — they are distinct persons as to their estates. 
 "They are co-equals in life, and at death the survivor, whether 
 husband or wife, remains the head of the family. ' 
 
 '1 
 
 § 332. Where no constituent member of the family re- 
 mains the homestead exemption ceases. — The rule seems 
 now to be well settled in Texas — although formerly an appar- 
 ently different rule obtained — that where no constituent mem- 
 ber of a family remains, the homestead exemption ceases to 
 exist, and the property becomes subject to the debts of the 
 last owner, notwithstanding he left children or descendants, 
 who were not members of his family at the time of his death.^ 
 
 § 333. It vests in the heirs -with or -without adminis- 
 tration. — "Where the homestead property of the deceased 
 tenant had been illegally disposed of, as by the husband 
 without the consent of his wife, the heirs have rights therein 
 apart from any which they might claim through an adminis- 
 trator. It vests in the heirs with or without adminstration, 
 and cannot be converted to the use of the creditors.^ 
 
 § 334. Death of -wife -without issue, husband retains 
 homestead. — "Where a man and his wife acquired a home- 
 stead, and the wife died, leaving no issue, the husband con- 
 tinued to occupy the premises as before with his slaves, hire- 
 lings, etc. His niece and her husband came to live with him 
 after the wife's death, and it was held that the homestead 
 right continued under the constitution, that the death of the 
 wife di d not destroy its di stinctive character as a homestead, and 
 if he had been without servants or any one with him after the 
 death of his wife, it would still have been his homestead as 
 long as it continued to be his residence.^ 
 
 1 7 Texas 19. 
 
 2 Burns v. Jones, 37 Texas 50 ; Hoffman v. Neuhaus, 30 Texas 633 ; Sossaraan 
 V. Powell, 21 Texas 664. 
 
 3 Norris v. Duncan, 21 Texas 594 ; Sossaman v. Powell, 21 Texas 664. 
 
 4 Wood V. Wheeler, 7 Texas 13 ; Taylor u. Boulware, 17 Texas 77. 
 
265 DESCENT AND PROBATE. ^ §§ 335-336 
 
 . § 335. Homestead right does not survive if separate 
 property. — The Court has decided that the " homestead 
 right " of the wife does not survive after her death, so as to 
 vest a homestead right in the children of the marrige — if 
 there be any. After the death of the wife the husband may 
 sell the homestead, if it be separate property ; the children 
 having no interest in the homestead which restricts the fath- 
 er's right to sell.^ Sec. 22 of Article 7 of the Constitu- 
 tions of 1845 and 1866, in speaking of the homestead ex- 
 emption, says : " Nor shaU the owner, if a married man, be 
 at liberty to alienate the same — homestead — without the con- 
 sent of the wife." "Which language the Court interprets as 
 " clearly implying that if the owner be not a married man he 
 shall have the power to alienate the homestead."^ 
 
 § 336. AUo-wanoe to minor heirs, vrhere homestead 
 subject to deed of trust. — "Where on the 23d of March, 
 1867, M and wife owned and occupied a homestead in B 
 county, and on that day M conveyed a lot in Galveston to a 
 creditor to secure a debt. In the fall of 1867, M and his 
 family moved upon his lot in Galveston, and occupied it as 
 a homestead until the death of M, whose widow and minor 
 children continued to occupy the lot as a homestead until the 
 widow also died. The estates of M and wife were insolvent, 
 and they left no other real estate ' than the lot in Galveston. 
 Held, that as M and wife, at the execution of the deed of 
 trust, occupied as their homestead other land than the lot in 
 question, their homestead right attached to the lot — if it at- 
 tached at all — subject to the deed of trust ; but that the mi- 
 nor children of M and wife were entitled, in preference to the 
 deed of trust, to an allowance in lieu of homestead, to be 
 raised by the sale of the lot by the administrator — the over- 
 plus above the allowance of the minor children to be applied 
 to the deedof trust which had been presented to the admin- 
 istrator duly probated.' 
 
 1 Tadlock v. Ecoles, 20 Texas 782. 
 
 2 Brewer v. Wall, 23 Texas 585. 
 
 3 Botts V. Scott, 37 Texas, 59. 
 
§§ 337-338 DESCENT AND PROBATE. 266 
 
 § 337. Adult children living apart, not entitled to 
 homestead in land subject to deed of trust. — Thus where 
 in April, 1860, R and his wife duly executed a deed of trust 
 upon their homestead to secure indorsers on their notes. In 
 1863, R died insolvent, and his wife subsequently died'in 
 1866', insolvent. Soon after the death of the latter, their son, 
 who was then of full age, left the property, and never af- 
 terwards resided upon it ; and in 1867, two daughters, the 
 only children of R and wife, married and acquired other 
 homes. The indorsers paid the notes, and brought suit 
 against the children and heirs of R and wife, to enforce the 
 deed of trust. Held, that the plaintiffs were entitled to have 
 the trust enforced, the property sold, and to reimbursement 
 out of its proceeds. As the defendants did not remain to- 
 gether as a family, nor continue to occupy the property as a 
 homestead, they can only take it subject to the incumbrance 
 of the deed of trust. Had they been minors remaining to- 
 gether, and occupying the property as a homestead, or if a 
 surviving widow, the head of a family, was the party defend- 
 ant, the question presented would be a different one.^ 
 
 g 338. Disposition of husband of his community in- 
 terest — Partition. — A surviving husband may, after the 
 death of his wife, dispose' of his community interests in the 
 homestead, regardless of the children of the marriage ; and 
 it is immaterial that the property has continued to be the 
 homestead after the death of the wife, and the children of 
 the marriage are minors. A purchaser of such surviving 
 husband becomes a tenant in common with the children, who 
 inherit their mother's community interests ; and the right of 
 such purchaser to a partition of the property cannot be post- 
 poned until the children become of age, or acquire home- 
 steads of their own. But the purchaser may abstain from 
 requiring a , partition and proceed for half the rents and 
 profits.^ 
 
 1 Petty V. Barrett, 37 Texas 84. 
 
 2Hartman v. Thomas, 37 Texas 90 ; Rich v. Tubbs, 41 Cal. 35 ; Sohadt v. 
 Heppe, 45 Oal. 433 ; Bowman v. Norton, 16 Cal. 214 ; Breunan v. "Wallace, 25 
 Oal. 114; Brood ». Murray, 44 Cal. 228 ; Johnson u. Bnsh, Cal. S. C, Oct. Terra, 
 
267 DESCENT AND PROBATE. § 339 
 
 § 339. Rights of children in community property. — 
 
 "Where there are children of a marriage, and the homestead 
 is community property, the surviving conjugal partner is en- 
 titled to retain the homestead ; but if there are no commu- 
 nity debts, cannot sell more than his or her half of the prop- 
 erty ; and if, there being no such debt, he or she has at- 
 tempted to sell the entire estate, and has delivered posses- 
 sion to the purchaser, the children are entitled to recover from 
 the latter the community interest descended to them from 
 their deceased parent.' 
 
 On the death of a connubial partner the interest of the de- 
 ceased in the commuuity property passes to his or her heirs. 
 The homestead property, however, remains subject to the 
 homestead rights of the survivor ; but when the survivor 
 abandons the homestead the heirs are entitled to partition.^ 
 It is not the homestead right which descends, upon the death 
 of either parent, to their children, which the survivor can- 
 not control or alienate, but it is the fee of an estate in com- 
 mon with the surviving parent, subject only to the conditions 
 — if a homestead, to occupy it during life. This homestead 
 right is a right guaranteed to every family by the Constitution 
 of 1845 and 1866. It was not a right transmissible or inherita^ 
 ble to or by the heir at common law ; but community prop- 
 erty was transmissible. When it> is community property as 
 well as homestead, though the survivor can sell the home- 
 stead right, or abandon it, after the death of the conjugal 
 partner, yet the survivor cannot sell that which was inherita- 
 ble and did descend on the death of one of the parents to the 
 children, except as already stated. The survivor has the 
 right to sell or dispose of his or her own interest in the prop- 
 ty, but not by metes and bounds. He or she is and be- 
 comes a tenant in common with his or her children, with unity 
 
 1874 ; Gee v. Moore, 14 Cal. 474 ; Himmelman v. Schmidt, 23 Cal. 117 ; Brood 
 V. Brood, 40 Oal. 493! 
 
 1 Walker v. Young, 37 Texas, 519, and oases cited in the foregoing note, as 
 well as 37 Texas 572, 502 ; 15 Id. 140 ; 20 Id. 782 ; Clark v. Nolan, 38 Texas 
 416. 
 
 2 Bell ». Soh-warz, 37 Texas 572, and cases cited from California in the pre- 
 vious paragraph. Folsom v. Carli, 5 Minn. 337 ; Clark v. Nolan, 38 Texas 416. 
 
§§ 340-342 DESCENT AND PROBATE. 268 
 
 of possession and unity of title, and their interests alike in the 
 estate — where subject to community debts. ^ 
 
 WIDOW'S RIGHTS. 
 
 § 340. The homestead to be set aside for the use of 
 ■wido-w and children. — The homestead staitute of Texas re- 
 quires the Probate Court to set aside the homestead for the 
 use of the widow and children at the first term of the Court 
 after the inventory and list of claims have been returned, 
 which may be before the solvency of the estate has been judi- 
 cially ascertained. Though it may be subject to final parti- 
 tion and distribution, it is not assets in the hands of the ad- 
 minstrator, but the use of it as a homestead is "reserved to 
 the family during the the period of administration ; and it 
 will be set apart for the widow and children, irrespective of 
 the disposition of the fee by will.^ 
 
 § 341. Only the la-wful -wife can make the claim. — A 
 
 woman who was not the wife nor is the widow of a man de- 
 ceased, cannot claim any homestead rights through him. If 
 the deceased leaves a lawful wife and children, the homestead 
 right, if any such attached, would pertain to them.' 
 
 § 342. The homestead -which the viridovr is entitled to 
 have set apart for her use is not confined to the former res- 
 idence of the family, nor to town or country. The law gives 
 to the widow the full and free right of selecting and having 
 her homestead set apart for her and her children out of the 
 whole property of her deceased husband. The homestead 
 exemption is for the benefit of the family, and the head of 
 the family is entitled to select his or her homestead as he or 
 she may judge from the circumstances of each case to be for 
 
 1 Magee v. Kice, 37 Texas 502. To the same effect, Jones v. Jones, 15 Texas 
 140 ; Tadlook v. Eooles, 20 Texas 782 ; Good v. Coombs, 28 Texas 50 ; Brewer v. 
 Wall, 23 Texas 585 ; Burleson v. Burleson, 28 Texas 418 ; Cooper v. Singleton, 
 19 Texas 267 ; Walker v. Ho-ward, 34 Texas 478 ; Sosseiuan v. Powell, 21 Texas 
 666. 
 
 a O'Doherty v. McGloin, 25 Texas 67. 
 
 3 Eobinson v. Crump, 35 Texas 426. 
 
269 DESCENT AND PROBATE. §§ 343-345 
 
 their best interests, and where the homestead selected by the 
 widow may not be of the value of the statutory amount, it 
 will be made up in money arising from the sale of other 
 property, should there be any. ^ 
 
 § 343. Allowance to the -widow a superior lien. — 
 
 Where the estate of the deceased husband is insolvent, the 
 decree of the Court, making an allowance for the support of 
 the widow, and also for an allowance of an amount of money 
 in lieu of articles exempt from forced sale, but not exceeding 
 in kind that which she was entitled to have set apart for her 
 use, is a judgment lien of a superior nature to all other judg- 
 ment liens, and takes precedence of them. This claim be- 
 longs to the second class of debts to be paid in preference to 
 all others, except such as for funeral expenses, etc. It has 
 precedence over specific liens created in the lifetime of the 
 deceased husband, except when such lien is for the purchase- 
 money of the property to which it is attached.^ 
 
 § 344. When the claim for allowance must be made. — 
 
 Where an estate is solvent, and is ready for distribution, it is 
 too late for the widow and children to apply for an allowance 
 in lieu of the property exempt from execution, because the 
 time has elapsed during which the statute of the State de- 
 signs to secure such property to the widow and children, and 
 an allowance of it subsequent to that time would be in contra- 
 vention of the provision which directs that such property 
 shall be distributed among the heirs.' 
 
 § 345. Deceased must have had his domicile in the 
 State to entitle the ^svidoAW to homestead. — This right of 
 the widow to a homestead or allowance results from the 
 domicile of the husband, within the State at his decease. Her 
 rights are not dependent on the whereabouts of her residence 
 afterwards.^ Where the wife leaves the State, with her hus- 
 
 1 Eagland v. Kogers, 34 Texas 617. 
 
 2 Robertson v. Paul, 16 Texas 472 ; Giddinga v. Crosby, 24 Texas 295. 
 
 3 Little V. Birdwell, 27 Texas 690. 
 
 4 Green v. Crow, 17 Texas 180. 
 
§§ 346-348 DESCENT and probate. 270 
 
 band, who has sold the homestead without the wife's signa- 
 ture, and is domiciled in another State, where the husband 
 dies, and after several years the widow returns to her former 
 home, she has lost her right of homestead as the surviving 
 widow, which she might have had had she not changed her 
 domicile ; ^ or where she voluntarily abandons her home, de- 
 serting her husband, and becomes domiciled in another State, 
 she cannot, after her husband's death, return from such for- 
 eign home, and claim a homestead.^ 
 
 § 346. Descent to ■wido-w during vridcwhood — Subse- 
 quent removal. — In Mississippi, under the provisions of the 
 Act of 1852, the title' to the homestead or quarter-section of 
 land exempt by law from execution for the husband's debts'^ 
 vests immediately upon his death in the widow — if there be 
 no children — during widowhood, free from all liability for the 
 debts of the husband ; and her title, so vested, is not forfeited 
 in favor of the husband's cr^itorS by her subsequent re- 
 moval from the State.' 
 
 § 347. Exempt property not affected ^y debts con- 
 tracted before the passage of the act. — The provision of 
 the foregoing statute which provides that all the property, 
 real and personal, of the deceased, which by law was exempt 
 from execution in his lifetime, shall go and descend to his 
 widow and children, exempt from his debts, saves the property 
 to the widow and children, as well against the claims of credit- 
 ors before the passage of the act, as also against those created 
 after, in cases where the father and husband dies after the 
 date of the act.^ 
 
 § 348. WidoAV entitled to the right, though husband 
 died before adoption of the constitution giving the 
 right. — In South Carolina, the widow is entitled to a home- 
 stead in the real estate of her deceased husband, and this, al- 
 
 1 Jordon ii. Godman, 19 Texas 273. 
 
 2 Traviok v. Harris, 8 Texas 312. 
 
 3 Brown u. Brown, 33 Miss. 39, and Statute of 1865; Smith u. Wells, 46 
 Mies. 64. 
 
 4 Morrison v. MoDaniel, 30 Miss. 213. 
 
271 DESCENT AND PROBATE. §§ 349-351 
 
 though he died before the adoption of the Constitution of 
 1868, giving the right. 
 
 And even when the widow joins in a petition with the ad- 
 ministrator for the sale of the real estate for payment of debts, 
 a decree pro confesso was entered against the widow of the 
 intestate and a decree for sale made. It was held that the de- 
 cree was no bar to an application afterwards made by the 
 widow to the Probate Court to have a homestead set off to 
 her in the lands ordered to be sold.^ 
 
 § 349. Wido-w though -without children entitled to the 
 right.— That a widow has no child or children is of itself no 
 ground for holding that she is not entitled to the homestead 
 exemption allowed by the constitution.^ 
 
 § 350. Where no debts, no homestead, in North Caro- 
 lina. — Where a husband dies leaving no debts, in that State, 
 it is held, under the Constitution of 1868, and Acts of 1868 
 and '69, Chap. 127, Sec. 10, that the widow cannot have a 
 homestead laid off for herself and minor children. The reason 
 assigned for this rule is, that the act applies only where there 
 are creditors of the deceased owner, and thkt as between the 
 widow and the heirs, the estate goes under the general laws.^ 
 Yet the statute provides that " the homestead shall continue 
 during the minority of any of the children." And if the 
 owner dies "leaving no children, but a widow, the exemp- 
 tion shall continue during her life. ' ' 
 
 § 351. The -widovsr and minor children of a deceased 
 person are entitled as against creditors to a homestead, 
 
 to be laid off just as it would have been upon the application 
 of the husband and father previous to his death.* 
 
 It is said that the theory of the homestead provision of the 
 Constitution, and the Act of 1868, is to set apart for the sole 
 
 1 Ex parte Strobel, 2 Rich. N. S. 309 
 
 2 Bradley v. Rodelsperger, 3 Rich. 226. 
 
 3 Hager v. Nixon, 69'N. G. 108. 
 
 4 Hodo V. Johnson, 40 Ga. 439 ; Adams v. Adams, 46 &a. 630 ; Moore v. Gill, 
 43 Ga. 388 ; Sims v. Johnson, 40 Ga. 555. 
 
§§ 352-354 DESCENT AND PROBATE. 272 
 
 use of the family of the debtor what is deemed a support for 
 the family. The family, and the family alone, is the object 
 and intent of the homestead enactments. "When and while 
 that exists the homestead exists, and wlien that ceases the 
 homestead ceases. And when a homestead is laid off to a 
 debtor and his family, which, at the time, consisted of only a 
 wife ; and the husband and wife both die, leaving no family 
 but adult children, the homestead reverts to the estate of the 
 husband, and is subject to debts as other jjroperty.^ 
 
 § 352. WidoAV, without children, not entitled to home- 
 stead — A widow, who has no children living with Her de- 
 pendent upon her for support, is not entitled to a homestead 
 out of the property of her deceased husband, as the head of a 
 ' family.^ 
 
 § 353. The " minor children of a deceased father are 
 entitled, as 'against the creditors of the father, to the home- 
 stead and exemption provided for by Article 5, Sec. 1, of the 
 Constitution of 1868, and. such homestead exemption being 
 similar in object with the laws allowing dower to the widow 
 and minor children, is to be construed in harmony therewith, 
 and such minor children vrill take their homestead, and ex 
 empt personalty, subject to dower in the same, and a year's 
 support allowed. ' 
 
 § 354. Distributive share of adult heirs. — But it would 
 seem in contradiction of this rule, in relation to minor chil- 
 dren's right, that such right does not obtain as against the 
 distributive share of the adult heirs. The question whether 
 the homestead clause in the Constitution of 1868, and the act 
 passed' the same year, giving effect to such clause, so changed 
 the statute of distribution as to give the widow and minor 
 children of a deceased person a homestead and exemption 
 in his property as against the claims of the other heirs at 
 law to their distributive share, came before the Court, and it 
 
 1 Heard v. Downer, 46 Ga. 629. 
 
 2 Oallioim v. McLendon, 42 Ga. 405 ; Kidd v. Lester, 46 Ga. 231 
 SRoff & Co. V. Johnson, 40 Ga. 555. 
 
273 DESCENT AND PROBATE. §§ 355-357 
 
 was held that neither the widow nor minor heirs of a deceased 
 person have any right of homestead in the property of the 
 deceased as against the claim of the adult heirs to their dis- 
 tributive share, under the statute of distribution.^ 
 
 § 355. In Louisiana, the rights granted the 'wrido'w and 
 children of a deceased person by the Homestead Act of March 
 17th, 1852, vests in them at the time of the death of the de- 
 ceased, provided their condition in life at that moment of 
 time entitle them to the benefit of the act — tliat is, that they 
 have not property of the value of one thousand dollars. 
 Their pecuniary circumstances, at the time of the death of 
 the insolvent, and not at any subsequent time, settles their 
 right to any claim under the homestead act.^ 
 
 § 356. Widovr takes full property when no children — 
 When there are children, takes only the usufructury. — 
 
 Under this homestead act, the widow, where there are no 
 surviving children or other descendants of the deceased, takes 
 the bounty provided thereby in full property ; but where 
 there are children or other descendants she has merely usu- 
 fructury rights in it.* 
 
 § 357. Must be residents of the State. — In order to en- 
 title the widow or orphan children to a homestead allowance, 
 they must be, in contemplation of law, at least, residents of 
 the State at the time of the death of the father or husband. 
 
 Thus, where the residence of the decedent in his lifetime 
 is in another State, although dying in Louisiana, where he 
 had been daily in business, the widow and orphan children 
 are not entitled to the allowance for homestead purposes of 
 $1,000. The law of 1852 makes this allowance where the 
 widow and children are in necessitous circumstances, which 
 was admitted in this case. But being residents of Mississippi at 
 the time of the death of the husband and father, their subse- 
 quent removal to Louisiana would not confer the right to 
 
 1 Kemp. V. Kemp, 42 Ga. 523. 
 
 2 Gimble v. Gimble, 13 La. An. 352. 
 
 3 Succession of Yartorough, 13 La. An. 378. 
 
 HoMESTEAi) — 18. 
 
§ 358 DESCENT AND PROBATE. 274 
 
 the 11,000 as homestead, which is allowed to widows and or- 
 phans in necessitous circumstances domiciled in the State. 
 The situation of the claimants at the death of the husband or 
 father governs any rights the successors or heirs had vest- 
 ed immediately on death. ^ 
 
 S 358. The domicile of the husband controls that of 
 the -wife, therefore — 
 
 Where the husband, domiciled in Louisiana, dies, leaving 
 property in the State, the surviving wife is entitled to the 
 benefit of the homestead law, notwithstanding she has never 
 resided in the State. 
 
 This decision arose under the following state of facts : The 
 deceased and his widow were married in 1845, in New York, 
 where they both resided. After the birth of two children, 
 he left for California ; subsequently took up lys residence in 
 Louisiana, where he died, and where his estate was being 
 administered upon, his wife and children remaining in 'New 
 York, and never having been in Louisiana. 
 
 In the foregoing case of the succession of !N"orton, such 
 a demand ( homestead allowance ) was refused, on the 
 ground that the domicile, in contemplation of law of 
 both husband and wife at the time of the death of the hus- 
 band, was in Mississippi, "and that the homestead law was 
 enacted for the benefit of those domiciled in the State at the 
 time of the death." " In this case, it is admitted that the 
 domicile of the husband was in Louisiana at the time of his 
 death, and as by our law the domicile of the wife is the dom- 
 icile of the husband, the case of Ijforton, (printed Cooper, 
 18 La. An. 36) is not precisely in point." "We think that the 
 domicile of the husband must control in this matter, and reg- 
 ulate the rights of the wife and children under this act with 
 the same propriety that half the community property is given 
 to a wife who has never been in the State. ^ 
 
 1 Succession of Nortx)n, 18 La. An. 36 ; Bell v. Sckwartz, 37 Texas 572 ; Kich 
 V. Tubba, 41 Cal. 35 ; Sohadt v. Heppe, 45 Oal. 433, and cases cited from Texas, 
 Sec. 330. 
 
 2 See Cole's Widows v. Ex., 7 N. S. L. (7 Martin 401) 42, and Dixon v. 
 Dixon, 4 L. 191. 
 
275 DESCENT j^ND PROBATE. §§ 359-360 
 
 " The evidence shows that the widow is in possession of 
 property worth f 100, and under the provisions of the Statute, 
 she is entitled to the usufruct of nine hundred dollars out of 
 this succession during her widowhood, when it vests in the 
 children of the deceased. " ^ / 
 
 § 359. Widow and children have a superior lien. — This 
 allowance under the homestead law of Louisiana to the sur- 
 viving vndow and children of the deceased husband, have a 
 superior mortgage and privilege on the proceeds of the sale , 
 of the property of the husband to the extent of one thousand 
 dollars over all other creditors, except the vendor's privilege 
 and the expenses of the sale. The widow may assert the 
 privilege in a suit between the other creditors, whether mort- 
 gage creditors or otherwise, and the purchaser of the prop- 
 erty before the Court that granted thp order of seizure and 
 sale.^ 
 
 § 360. Homestead personal privilege, as long as 
 •w^idov/" remains unmarried. — In Minnesota, as in Texas, 
 (and in California, up to the passage of the Act of 1860) 
 under the Act of 1851, the homestead right was a 
 purely personal one. The right did not alter in any 
 way the estate or title in the homestead premises. 
 If they had been the separate property of the husband 
 or the wife, before the homestead character attached, 
 they still remained such separate property. The homestead 
 owned and occupied by the head of the family was exempt 
 from sale on execution, and from that only. The exemption 
 from sale was continued after the death of the head of the 
 family so long as the premises were occupied as a homestead 
 by the widow, she continuing unmarried, and until the young- 
 est child attained its majority.' 
 
 After the decease of the housekeeper, or head of the fam- 
 ily, his widow has the right to hold, control, and enjoy the 
 homestead as a home for herself, without restraint or abate- 
 
 1 Succession of Christie, 20 La. An. 383. 
 
 2 Quartier v. Hill, 21 La. An. 429. 
 SFolsom V. Oarli, 5 Minn. 339. 
 
§§ 361-362 DESCENT AND PROBATE. 276 
 
 ment by any of the children of her deceased husbaad who 
 are not members of her family. ^ The clear design of the 
 law is to continue the homestead entire as the home of the 
 widow, or of the widow and children constituting the family at 
 the decease of the husband, and no rights of the children be- 
 come operative to sever or divest such homestead as the fam- 
 ily home, so long as the widow, or widow and children, see 
 fit to continue it as such family home.^ 
 
 § 361. Widow's right in Pennsylvania. — The same 
 principle obtains in Pennsylvania as to the quasi homestead — 
 real or personal estate of the value of f 800 — exemption al- 
 lowed by the statute of that State. The widow is allowed 
 the exemption from the estate of her deceased husband, 
 whether he died solvent or insolvent ; so much of the estate 
 belongs to her, and her children, if she have any, for the use 
 of the family.' 
 
 § 362. Widow's rights in lo-wa, descent and distribu- 
 tion. — Upon the death of the husband, the widow holds the 
 homestead free from debts, exactly as the husband did, and 
 she becomes the head of the family.'* So the husband, after 
 the death of his wife, has the right to occupy and possess 
 the whole homestead, and this regardless of the fact as to 
 which, the husband or the wife, is owner of the fee, and also 
 ' regardless of the fact of issue or no issue. ^ Thus, the widow 
 being entitled to the use and occupancy of the homestead, 
 her second marriage does not entitle the heirs of her first 
 husband to partition.'' But the homestead descends to the 
 heirs of either husband or wife, whichever may hold the le- 
 gal title, subject to the right of occupancy in the survivor.' 
 An administrator has no right, therefore, to recover of the 
 
 IKeyes v. HiU, 30 Vt. 759. 
 
 2 3 Id., and Perrin v. Sargeant, 33 Vt. 84. 
 
 3 Compher v. Compher, 25 Penn. St. 31. 
 * Floyd V. Mosier, 1 Iowa 512. 
 
 5 Bums V. Keas, 21 Iowa 265 ; Stewart v. Brund, 23 Iowa 477. 
 
 6 jSTicholas v. Purozell, 21 Iowa 265 ; Dodds u. Dodds, 26 Iowa 311 ; Size v 
 Size, 24 Iowa 580. 
 
 7 Cotton V. Wood, 2p Iowa 43. 
 
277 DESCENT AND PROBATE. §§ 363-364 
 
 widow rent for the use or occupation of the homestead.^ 
 When the fee ia in the hushand, on his decease the legal title 
 descends to the heirs, subject to the foregoing right of occu- 
 pancy; therefore, the widow, not having the fee, cannot after 
 a second marriage abandon, sell, and convey the homestead to 
 - another, vdth a view of investing the proceeds in another 
 homestead. Though the widow cannot sell her homestead in , 
 order to procure a new one with the proceeds, on application, 
 a -Court of chancery might authorize such a change, care be- 
 ing taken to see that the title to the new homestead shall be 
 held the same as the old, and that all the parties in interest 
 shall be the same.^ 
 
 § 363. Wido-w's rights in Massachusetts. — The assign- 
 ment of dower to the widow by the heirs at law does not de- 
 feat her right to the homestead estate of 1800, in addition to 
 dower, if so much estate remains to which the homestead 
 right attaches.' 
 
 The title to the homestead estate is said to be in the wid- 
 ow during widowhood, and in all the minor children, respect- 
 ively, while under age ; but the right of possession and en- 
 joyment is in those only of the family who remain' in occupa- 
 tion of the premises.* 
 
 But if the widow, before the homestead estate is set off to 
 her to which she is entitled, procures an assignment to her- 
 self of dower of one-third of the rents, issues, and profits, as 
 tenant in common with the other owners, and then conveys 
 it, she waives and relinquishes her rights of homestead.^ 
 
 I 364. An estate of homestead created by statute can- 
 not be affected by the -will of the householder. — A power 
 in the husband to terminate this freehold with his life, by 
 disposing of the land in his will, it is said, by the Massachu- 
 setts Courts, is inconsistent with the spirit and intent of the 
 
 1 Huey V. Huey, 26 Iowa 527. 
 
 2 Size V. Size, 24 Iowa 580. 
 
 3 Meroier v. Chace, 11 Allen 194. 
 
 i Abbott V. Abbott, 97 Mass. 136 ; Monk v. Capen, 5 Allen 146 ; Shaw v. Hear- 
 sey, 5 Mass. 523. 
 5 Bates v. Bates, 97 Mass. 392. 
 
§§ 365-367 DESCENT AND PROBATE. 278 
 
 statute, as manifested in the clauses declaring that no release 
 or waiver except by deed, and no deed from the husband 
 alone without his wife, should be valid in law, and that the 
 exemption should continue after his death, for the benefit oi 
 his widow.and children.' 
 
 i 365. When no proceedings necessary. — Where the 
 whole premises are of less value than the exemption allowed 
 by statute, the widow has no occasion to institute any pro- 
 ceedings to set out a homestead, if she was in occupation of 
 the premises during the lifetime and at the time of the de- 
 cease of her husband.^ 
 
 g 366. Wido-wr's right in Nevr Hampshire. — The same 
 principle is fally sustained, and the widow who continues after 
 the decease of her husband to occupy the family dwelling is 
 entitled to have it assigned to her out of the estate, and her 
 right thereto is paramount to the claims of creditors, heirs, 
 and devisees, so long as she continues in such occupancy. 
 And such assignment is to be made notwithstanding the es- 
 tate may be under the incumbrance of a mortgage which is 
 paramount to the homestead right, and in making the as- 
 signment the estate is to be valued as though it were free 
 from mortgage.^ 
 
 IsTor will any conveyance by mortgage, or a lease, or other 
 conveyance not signed by the wife, bar the widow of her 
 homestead, nor will the temporary residence of the husband 
 in a foreign jurisdiction, or the purchase of a doubtful or con- 
 tingent estate there, deprive the wife of her estate created 
 under the act where the right is claimed.^ 
 
 § 367. A voluntary separation of husband and -wife, 
 
 in ISTew Hampshire, will not, after the husband's decease, de- 
 prive the widow of her homestead rights under the statute ot 
 that State. ^ 
 
 1 Brettim v. Fox, 100 Mass. 234. '3 Norris v. Moultou, 34 N. H. 392. 
 
 2 Parks V. Beilly, 5 AUen 77. * Header v. Place, 43 N. H. -307. 
 
 5 Header u. Place, 43 N. H. 307. 
 
279 DESCENT AND PKOBATB. §§ 368-369 
 
 § 368. In Pennsylvania, the two latter rules are some- 
 what modified : where a wife leaves her husband and re- 
 nounces all conjugal intercourse a considerable time (twelve 
 years) before his death, it is held that she becomes not such 
 a widow after his death as was in the contemplation of the 
 legislature when the act was passed, entitling her to adminis- 
 ter his estate, and to appropriate to her own use the exemp- 
 tion allowed the widow by law.-^ 
 
 It is further held, that the wife who has lived in a foreign 
 country, and never formed part of her husband's family 
 within the State, is not within the contemplation of the l^w.^ 
 N"or is a wife who, by articles of separation, has relinquished 
 all her rights to her husband's estate.' 
 
 These laws contemplate the case of a wife who lives with, 
 her husband till his death and faithfully performs all her 
 duties to his family, not one who voluntarily separates herself 
 from him and performs none of the duties imposed by the re- 
 lation.* 
 
 But when the wife has been deserted by the husband, and 
 he has been absent many years, there is no rule of law which 
 requires such married woman to take notice at her peril of 
 his death. Therefore, if when she does hear of his death, 
 she takes means immediately to have her exemption set out 
 to her from her husband's property, it will be allowed her. 
 It is not her fault that the family relation does not actually 
 exist ; nevertheless, it exists in contemplation of the law.^ 
 
 § 369. Absence or removal from homestead no bar to 
 claimt. — In Ifew Hampshire, the right of a married woman 
 to a homestead to be assigned to her after her husband's death, 
 is not impaired by her removal from the premises during his 
 hfe, nor by her continued absence after his death. It is in- 
 consistent with the general scope, policy, and object of the 
 
 1 Tozier v. Tozier, 2 American Law Register 510. 
 
 2 Spiers' Appeal, 2 Casey (26 Penn.) 233. Per contra, see Succession of Norton, 
 18 lia. An. 36 ; Succession of Christie, 20 La. An. 383. 
 
 8 Cilinger's Appeal, 11 Casey (35 Penn.) 537 ; Hettrich v. Hettrich, 55 Penn. 
 St. g90. 
 i Odiorne's Appeal, 54 Penn. St. 175 (4 P. Smith). 
 6 Terry's Appeal, 55 Penn. St. 345. 
 
370 DESCENT ANb PROBATE. 280 
 
 homestead laws, to allow a waiver of the homestead without 
 a wi'itten instrument acknowledged in the mode pointed out 
 by law in such cases. ^ 
 
 So, where the husband in his lifetime conveys the real es- 
 tate occupied by himself and wife as a family homestead, the 
 wife not joining in the deed, after his death the widow, al- 
 though out of possession, is entitled to claim, and have as- 
 signed to her therefrom, a homestead of the statutory value, 
 which will vest in in her as a conditional estate for hfe, its 
 continuance depending upon the condition subsequent, that 
 she continues to occupy it as her homestead.^ 
 
 g 370. In -what property a homestead may be assigned 
 the -OT-idow. — There is no authority in the Probate Judge to 
 assign to a widow her homestead, except in the estate of 
 which the husband died seized, or perhaps when there is no 
 dispute about the title. ^ 
 
 l!fo demand of a homestead is necessary to be made to en- 
 able a widow to maintain her petition for the assignment of 
 her homestead interest, and it is not a valid objection to such 
 assignment that the petitioner has not an estate, but merely a 
 right in the premises.^ 
 
 A widow is entitled to a homestead in an equity of re- 
 demption in real estate of her late husband against all per- 
 sons except the mortgagee, or those claiming under him. 
 But she cannot have a homestead as against the mortgagee, 
 except by payment of the whole mortgage debt. Against 
 any and every one having an interest in the redemption, and 
 who has actually redeemed the mortgage, she can hold her 
 homestead upon payment of contribution. If the adminis- 
 trator redeems the moi'tgage from the assets of the estate, then 
 the widow takes a homestead without contribution. If the 
 equity of redemption is purchased after the death of the 
 mortgagor, by the mortgagee, the two estates become 
 merged, and in such case the widow may hold her home- 
 
 Norris v. Moulton, 34 N. H. 392 ; Atkinson v. Atkinson, 37 N. H. 436. 
 
 2 Atkinson v. Atkinson, 37 N. H. 434 ; Davis v. Andrews, 38 Vt. 678. 
 
 3 Hornt). Tufts, 39 N. H. 478. 
 
 i Atkinson v. Atkinson, 40 N. H. 249. 
 
281 DESCENT AND PROBATE. §§371-373 
 
 stead discharged from the mortgage by paying contribution 
 only. The mortgage debt is to be shared between the owner 
 of the equity of redemption and the widow having home- 
 stead, according to the relative value of the proportion of 
 mortgaged property held by each. ^ 
 
 § 371. Wido-w's right of homestead as against creditor's 
 claims. — ^And if a creditor, whose debt accrued before the 
 passage of the homestead acts, presents his claim to the com- 
 missioner on an insolvent estate, takes his dividend, and with- 
 out objection allows the widow's homestead to be assigned by 
 the Probate Court, and the administrator for the payment of 
 the debts sells the land assigned, subject to the widow's 
 homestead, such creditor cannot afterwards require the ad- 
 ministrator to sell any interest in the land assigned for home- 
 stead, to pay the balance of the debt. In such case, if a 
 creditor would enforce his claim against a widow's right of 
 homestead, he should object to the assignment until his debt 
 is paid.^ 
 
 § 372. Exchange of homestead, death of husband be- 
 fore building house. — But where the husband exchanges 
 the homestead for land, and conveyances are accordingly ex- 
 ecuted, after which he takes possession of and cuts some logs 
 on the land for the purpose of building a house thereon, but 
 dies before he does so, a Court of equity will not decree a 
 conveyance of the land to the vnfe by the husband's adminis- 
 trator, in order that she may sell it, and with the proceeds 
 purchase another homestead.^ 
 
 § 373. Bar of homestead by anti-nuptial agreement, 
 
 A widow may bar her right of homestead, as well as dower, 
 by anti-nuptual agreement. "Where a " plaintiff was the sec- 
 ond wife of the intestate, who died without issue of their 
 marriage : an anti-nuptual agreement had been entered into 
 between them, whereby she covenanted to claim no share in 
 his estate,' otherwise than according to the provisions of said 
 
 1 Norris v. Morrison, 45 N. H. 490. 
 
 2 Judge of Probate v. Simonds, 46 N. H. 363. 
 
 3 Palmer v. Blair, 25 Iowa 230. 
 
§§ 374-375 DESCENT AND PROBATE. 282 
 
 agreement. Tlie plaintiff did not elect to waive the pro- 
 vision made for her by said agreement, but, induced by the 
 fraud and artifice of the only son and sole heir of the intest- 
 ate, accepted and received the same in full of all claim 
 against said estate, and retained the same without offering to 
 restore it to the estate. Held, that the plaintiff was thereby 
 barred of dower and homestead. Held, also, that without 
 waiver of said provision, and notice of it in writing, the Pro- 
 bate Com-t had no power to decree the plaintiff" homestead 
 and dower, although said provision was wholly inadequate for 
 her support. The Probate Court, on the plaintiff's applica- 
 tion, caused homestead and dower to.be set out to her, from 
 which proceeding this appeal was taken. Held, that although 
 such proceedings might be considered as equivalent to a de- 
 cision that said provision was not sufficient for her support, 
 and to an extension of time for making election ; yet that it 
 could not supply the indispensable requisites of election waiv- 
 er and notice thereof in wi'iting to the Probate Court." ^ 
 
 § 374. A widow is not bound by a verbal agreement 
 of her husband during his lifetime, by which his home- 
 stead was to be conveyed to third parties in consideration that 
 the latter were to support him and his wife during their lives, 
 although the husband, previous to his death, with the knowl- 
 edge of his wife, delivered a deed duly executed, but not 
 signed by his wife.^ 
 
 ' § 375. Claim of ^vidow in land, where she acts as 
 agent for the sale, and is silent as to her OMirn claim. — 
 
 Where the widow of the true owner of land acted as agent 
 for another person in negotiating a sale from the latter to a 
 third person without notifying him that she or her husband 
 claimed any interest in the land — although it does not appear 
 that at the time she knew of her rights, or that the party 
 with whom she was dealing relied upon her representations — 
 it was held that she was not estopped from setting up her 
 claim after her husband's death. |-,But if the widow married 
 
 1 Hathaway v. Hathaway, 46 Vt., 13 Am. L. Reg., N. S., 778. 
 
 2 Ring V. Burt, 17 Mich. 465. 
 
283 DESCENT AND PROBATE. §§ 376-378 
 
 again, she could not recoyer such land on the ground that it 
 had been her husband's homestead ; but she can recover the 
 rents and profits from the 'death of her former husband to the 
 time of her second marriage, deducting the value of the per- 
 manent improvements made.^ 
 
 § 376. When a -widow's right to the possession of real 
 estate conies under the la-w of do\yer only, and not under 
 the law in relation to homestead, she cannot claim possession 
 of the premises by virtue of her homestead right. ^ 
 
 § 377. Widow's right as against an heir (of real estate 
 liable to sale for payment of the debts of the deceased, and 
 subject to a mortgage for payment of one of them) who 
 gives to the executor under the statute a bond conditioned 
 to pay all the debts, and in fulfilling that condition takes to 
 himself an assignment of the mortgage, cannot, by virtue of 
 the mortgage title and by foreclosure, defeat estates of dower 
 and homestead previously assigned to the widow in the mort- 
 gaged premises with his assent.^ 
 
 § 378. Wido-w's right in Pennsylvania. — There are a 
 great number of decisions under the exemption laws of 1848, 
 1846, 1849, 1851, and 1859, which relate to probate matters, 
 but as has been remarked elsewhere, the exemption allowed 
 may be either real or personal property, in all not to exceed 
 three hundred dollars in value, which can hardly be classed in 
 the category of homestead exemption. Still, a few of the de- 
 cisions may be useful in illustrating or supplying rules in 
 cases that may arise. 
 
 A section of the Act of 1851 provides as follows : "Here- 
 after the widow or children of any decedent dying within 
 this commonwealth, testate or intestate, may retain either 
 real or personal property belonging to said estate to the value 
 of three hundred dollars, and the same shall not be sold, but 
 suftered to remain for the use of the widow and family. ' ' 
 
 1 Anderson v. Cobum, 27 Wis. 558. 
 
 2 Cavender v. Smith, 8 Iowa 360. 
 
 3 King V. King, 100 Mass. 224 ; Draper v. Baker, 12 Oush. 288. 
 
§§ 379-381 DESCENT AND PROBATE. 284 
 
 § 379. Wido-w's right to sell. — Under this statute, it has 
 been held that a widow to whom real estate had been set 
 apart under the act, can sell it, and her conveyance will pass 
 the title to the vendee, who can maintain ejectment against 
 her. 
 
 The words which, prima facie, seem to establish a trust in 
 the widow, " and the same shall not be sold, etc.," have no 
 operation on the language of the exemption. " They apply 
 only to the officers of the law whose duty it is to administer 
 the estate."^ 
 
 § 380. Personal privilege, w^aiver by the Awido-wr. 
 
 The right of a widow to retain real or personal property of 
 her deceased husband's estate, to the value of f 300, is a per- 
 sonal privilege, and of course may be waived, and it is waived 
 entirely when she neglects to demand an appraisement.^ 
 And of course if an appraisement be made, and the widow 
 elect to retain less than the statutory value, she waives her 
 claim to all she neglects to retain. Having had one appraise- 
 ment, she is not entitled to another, when the remaining prop- 
 erty of her husband is about to be sold for the payment of 
 debts. Therefore, a demand for an appraisement is too late 
 after the administrator has incurred expenses in proceedings 
 to effect a sale of the property.' 
 
 § 381. No further allo^wranee where -wrido-vsr appro- 
 priates to her ovrn use $300 -worth of her deceased hus- 
 band's property, without any appraisement or administration, 
 and a creditor of the decedent afterwards takes out adminis- 
 tration — she cannot recover against him for not setting out to 
 her her exemption under the Acts of 1851 and 1859. Those 
 acts require administration, a claim, and election of realty or 
 personalty, and an appraisement for the widow. If, there- 
 fore, a widow disregards the legal mode of proceeding, and 
 neither takes out administration herself nor causes any one 
 
 1 Sipes V. Mann, 39 Penn. St. 414. 
 
 2 Weaver's Appeal, 6 Harris, (18 Penn.) 309; Neff's Appeal, 9 Harris (21 
 Penn.) 247. 
 
 SDavia' Appeal, 34 Penn. St. 256 ; Baskin's Appeal, 38 Penn. St. 65. 
 
285 DESCENT AND PEOBATE. §§ 382-383 
 
 else to do so for her, slie cannot recover damages against 
 him for not setting out to her her exemption.* 
 
 • 
 
 § 382. Wido'w must make claim 'vtrithin reasonable 
 time. — If she claims her statutory allowance under the 
 " "Widow's Act " she must make her claim within a reasona- 
 ble time after her husband's decease ; but if she delays her 
 claim seven years, and then prosecutes it through a second 
 husband, she is not entitled to the exemption. And if, 
 through such claim, any property is set apart to her, the pro- 
 ceedings in appraisement will be a nullity and pass no title to 
 her, and she can be ejected at the suit of the owner. ^ 
 
 § 383. Widcw's right as against certain lien credit- 
 ors. — She is entitled to her exemption out of the real or per- 
 sonal estate of her deceased husband, as against all lien cred- 
 itors whatever, excepting only as against a vendor's lien for 
 unpaid purchase-money, which is the only lien protected by 
 the Act of 1851.= 
 
 The Court refused to apply the foregoing interpretation in 
 Gangware's Appeal,^ but it will be seen by references to the 
 cases that the circumstances were entirely different, and un- 
 der a statute entirely different from the Act of 1851. 'Not 
 does the reasoning in behalf of mechanics' liens which was 
 employed in Lauck's Appeal,^ apply under the Act of 1851, 
 for the Exemption Law of 1849, under which both the above 
 cases arose, is based on "judgments obtained on contract." 
 Only. against such judgments were debtors entitled to the ex- 
 •emption, and it was held that neither mortgages nor me- 
 chanics' liens were "judgments obtained on contract." But 
 the Widow's Act of 1851 is entirely different. It contem- 
 plates every case of a decedent leaving any estate, and a 
 widow an'd children. It gives them first of all f 300, and 
 postpones all other claimants except only vendors of realty.^ 
 
 1 Lyman, Adtn., v. Byam et al., 38 Penn. St. 475. 
 
 2 Burk V. Gleason, 46 Penn. St. (10 Wright) 297. 
 
 3 Hildebrand's Appeal, 39 Penn. St. 133. 
 
 i Grangware's Appeal, 12 Casey Penn. St. 471. 
 5 Lauok's Appeal, 12 Harris 428. 
 
 SBaldy's Appeal, 40 Penn. St, 329 ; HiU v. HiU, 42 Penn. St. 198 ; Hilde- 
 brand's Appeal, 39 Penn. St. 133. 
 
§§ 384-387 DESCENT AND PKOBATB. 286 
 
 § 384. Charge upon realty, when personalty not suffi- 
 cient. — If the . personal property of a deceased husband be 
 not of sufficient value to satisfy her claim of exemption, the ^ 
 balance may be charged upon the realty, and as such follows 
 the lands into the hands of a purchaser from the heirs who 
 have received it under a partition, and the Orphan's Court has 
 power to enforce the payment of the same so charged by a 
 decree for the sale of the land.* 
 
 § 385. Actual levy before death bars -wido-w's claim. 
 
 But when an execution has been levied during the lifetime 
 of the husband, but before the sale he dies, his widow is not 
 entitled to the exemption out of the proceeds of sale, which 
 is affected by virtue of the levy so made.^ 
 
 § 386. Who the lavrful -wido-w. — It has been decided 
 that, when a woman had married a man who had been previ- 
 ously lawfully married, and whose wife was living at the time 
 of his second marriage, and the woman subsequently married 
 a second husband, who died, she was his lawful wife, and was 
 entitled to claim the exemption of three hundred dollars as 
 the widow of the deceased.^ 
 
 ■WIDOWS BIGHT. 
 
 § 387. Do-v(rer and homestead in the same land. — A di- 
 versity of opinion exists among the authoi'ities, whether the 
 widow is entitled to a homestead and dower in the same 
 lands. 
 
 For instance, in Iowa and Iforth Carohna it is maintained 
 that it was not the intention of the law-makers that a widow 
 should enjoy, at the same time, both dower and homestead in 
 the same real estate of her husband. 
 
 Where a widow, on her own application, had her dower 
 set off so as to include the dwelling-house of the deceased 
 and a portion of the forty acres comprising the homestead, it 
 
 1 Detweiler's Appeal, 44 Penn. St. 243. 
 
 2 Thompson's Appeal, 36 Penn. St. 418. 
 
 3 In re Shaak's Estate, 3 Pitts, 275. 3 
 
287 DESCENT AND PROBATE. § 387 
 
 was held that she could not claim' the residue under a home- 
 stead right. Section .2295 of the Revision enacts that, 
 " upon the death of either husband or wife, the survivor may 
 continue to possess and occupy the whole homestead until it 
 is otherwise disposed of according to law." On this point, 
 the Court said : '^ " It is otherwise disposed of according to 
 law, if it is, upon her application for dower, ordered to be 
 sold, because not susceptible of division, and it is thus sold, 
 and one-third of, the proceeds paid to her, with which she 
 may buy a new homestead. ' ' If this is so, why is it not also 
 "otherwise disposed of according to law," if it is set apart to 
 her in fee as dower upon her application ? After that she oc- 
 cupies her own homestead, not her husband's, so to speak. 
 The Court, in this case, did not decide whether the widow 
 could be compelled by the heirs to accept dower, when she 
 herself preferred to retain the homestead right. 
 
 For anything that was there decided, it may well be that 
 the widow would have the right, as against the creditor's 
 heirs or devisees of the husband, to retain her homestead 
 right, and refuse her dower. It is also possible, but this was 
 doubted by the Court, that if the dower was assigned in lauds 
 other than the homestead, the widow might retain her right 
 in the homestead as well as the dower assigned. 
 
 In this Iowa case, it would appear that the views therein 
 expressed are not tenable. Dower is a common-law right, and 
 all statutes defining dower are merely directory. By the com- 
 mon law, a wife is dowered of one-third of her husband's 
 lands, and she ought to receive that dower. Whether she 
 ought, in addition, to have a homestead right, is a question for 
 the legislature that passes the homestead acts. The legisla- 
 ture knew, when they passed the homestead act, that she 
 was entitled to dower, but they did not except a dowered 
 widow from the benefits of the homestead act. It would 
 seem that, without an express enactment to the contrary, a 
 
 1 Meyers?;. Meyers, 23 Iowa 359 ; "Watts v. Leggett, 66 N. 0. 197. 
 
 In North Carolina, it is held that dower and homestead do not attach tO{?ether, 
 either in the widow, or widow and children, but dower having been assigned 
 to the widow, the children are only entitled to a homestead sub modo, i. e., a 
 present interest, the enjoyment of which is postponed until the death of the 
 doweress. 
 
§§ 388-389 DESCENT AND PROBATE. 288 
 
 widow is dowerable out of the homestead estate ; that is, she 
 is entitled to both rights in the same parcel of land. If she 
 is entitled to the homestead, under the statute, certainly her 
 one-third dower right is comprised in the whole. In other 
 words, if she takes the whole under the homestead law of the 
 particular State, there would seem to be no question of dower 
 in that particular piece of land. " It is a peculiar and favored 
 right ; so much favored, indeed, that, according to Lord 
 Bacon, it is ' the common by-word in the law, that the law fav- 
 oreth three things : first, life, second, liberty, third, dower.' " ^ 
 In Vermont, under the Act of 1849, which was silent as to 
 dower and homestead in the same land, the practice was to 
 set out the homestead to the widow, then dower in the bal- 
 ance of all the lands of the deceased husband.^ The statute 
 of 1855 provided that the widow's share in the homestead 
 shall be deducted from her dower. Under this last act a 
 widow's dower was first set out in one full third of the estate. 
 Her homestead was afterwards set out, covering a portion of 
 the premises embraced in the assignment of dower. It was 
 held that this was a virtual compliance with the requirements 
 of the statute, and that there was no incompatibility in the 
 proceeding. ^ 
 
 § 388. Rule as to do-wer and homestead in Kentucky. 
 
 The homestead exemption, after the death of the husband, 
 cantinues for the benefit of his 'widow and children, "but 
 shall be estimated in allotting dower. ' ' Dower of widow is in- 
 creased in certain eases by the Homestead Exemption Act of 
 1-866.'' If one-third of the deceased debtor's land is of less 
 value than one thousand dollars, the widow is entitled to have 
 allotted to her as for her dower so much of the land, includ- 
 ing the homestead, as was of the value of one thousand dol 
 lars, " but shall be estimated in allotting dower. "^ 
 
 § 389. In Alabama, it is held that doTver is no bar to a 
 homestead claim. — Under Section 2061 of the Revised 
 Code, it is held that the widow and children are entitled as 
 
 1 Cox V. Wilder, 2 Dill. C. C. 46. 3 Doane v. Doane, 33 Vt. 652. 
 
 2Doane v. Doane, 33 Vt. 651. IMyer's Supplement, 714. 
 
 B Ga^away, etc. v. Woods, 9 Bush (Ky.) 72. 
 
289 DESCENT AND PROBATE. §§ 390-391 
 
 against creditors — but not as against heirs, distributees, or 
 legatees, — that isj, where the lands of the decedent have to 
 be sold to pay his debts, to have so much of the land as will 
 amount to |500 in value set apart for their benefit ; and this 
 notwithstanding dower may have been assigned to the widow. 
 The Act of December 9th, 1864, provides the manner in which 
 the judge of probate "shall proceed to lay oflF and set apart 
 said land." If the judge of probate does not so proceed, it 
 is allowable for the widow to file a petition to enforce the 
 right conferred by the statute, and it is the duty of the Court 
 to proceed, and it cannot repudiate or reject the petition.' 
 
 S 390. Wido^v -with separate estate no bar to home- 
 stead right.^-And even the fact that the widow has a sepa- 
 rate estate of greater value than her dower and distributive 
 share, will not bar the right of herself and her minor chil-' 
 dren to their homestead exemption of the value of $500 in 
 the lands of her husband. And when the widow's petition 
 for such exemption fails to set out the names of the minor 
 children, and no objection is made on that account, it is not 
 material. If the title was vested in the widow by name, and 
 the minor children as a class without designation by name, it 
 would be upon the maxim that, "That is certain which can 
 be mad^ certain." ^ 
 
 § 391. In Illinois, the Tvidow^ is entitled to the right of 
 dovrer and homestead in the same land, and the reasoning 
 of the Court in announcing that conclusion is much more 
 satisfactory and in unison with the general spirit and object 
 of the homestead law. The homestead right and the right 
 of dower are held to be distinct and independent rights, the 
 former being a mere right of occupancy of the premises under 
 . certain circumstances ; the latter, though an inchoate right, 
 does not depend upon occupancy, but upon the marriage, the 
 seizin of the husband during coverture and upon his death. 
 Until the death of the husband, it is merely an interest which 
 attaches to the land by reason of marriage and seizin; it rests 
 
 IJordon v. Strickland, 42 Ala. 315. 2 Johnston v. Davenport, 42 Ala. 317. 
 
 Homestead — 19. 
 
§§ 392-394 DESCENT AND PROBATE. 290 
 
 in action only, and cannot be conveyed by deed. After itla 
 assigned it becomes an estate upon wbich the widow can 
 enter, and whicb she can convey by deed, and which is liable 
 to be sold on execution for her debts* It is a settled maxim 
 of the law that of this right a widow cannot be deprived — 
 except by opei-ation of the statute of limitations in certain 
 cases' — except by the mode pointed out by statute.^ 
 
 And a right of dower does not merge in a homestead right 
 in the, same premises, because as these interests in the widow 
 are of a different nature, there is no lesser estate capable of 
 being merged in a larger one. Therefore, if a husband dies 
 in possession of the homestead, his widow would be en- 
 titled not only to the right of homestead, but to her right of 
 dower as well, in the same premises. 
 
 § 392. Value of homestead right paid to husband dur- 
 ing his life on foreclosure does not debar ^vidow from cMm- 
 ing do-wer in the -whole land. — And even where the hus- 
 band had moi'tgaged the homestead premises, and upon fore- 
 closure, he having claimed the right of homestead therein, 
 they being worth more than fl,000 the sum was paid to him 
 and the property was sold under the foreclosure, upon his 
 death his widow will not be restricted in her claim to dower 
 in the premises, to the residue of the property after deduct- 
 ing the value of the homestead right which had been paid to 
 her husband on the foreclosure, but she will be entitled to 
 dower in the entire premises unaffected by the purchase of 
 the homestead right.' 
 
 § 393. Remarriage of widow, entitled to dower in 
 homestead as well as in all the land of the deceased hus- 
 band. — In Wisconsin, ^t is held that a widow who has had 
 dower assigned to her in all the lands of her husband, not be- • 
 ing homestead, may have dower assigned to her in the home- 
 stead also if she marries again."" 
 
 § 394. In Georgia, if the widow have a minor child, 
 she is entitled to a homestead and dower in the same 
 
 1 Owen V. Peacock, 38 TU. 33. 8 Walsh v. Eeia, 50 111. 477. 
 
 2Nicoll V. Ogden, 29 111. 386. 4 Bresee v. Stiles, 22 Wis. 120. 
 
291 DESCENT AND PROBATE. f § 395-398 
 
 lands.* But where a married man died intestate, leaving a 
 widow as his sole heir at law, who elected to take her dower 
 in the lands of her deceased husband, she ia not afterwards 
 entitled, as against her husband's creditors, to have a home- 
 stead out of the other lands of which her husband died 
 seized.^ 
 
 § 395. In Massachusetts, the -wido-w is entitled to dow- 
 er and homestead. — It is held in that State that there is noth- 
 ing inconsistent in the right to both dower and homestead in 
 the same estate.' 
 
 § 396. So, in Mississippi, it -would appear that the -wid- 
 o-w is entitled to do-wer and homestead: it is held that the 
 Probate Court has no power to authorize an adminstrator to 
 take into possession and lease out the exempt homestead, or 
 to interfere with the widow's right of dower.* 
 
 § 397. Descent after devise. — In Minnesota, after the 
 death of the head of the family the homestead descends to 
 the widow and minor children, and may be held by them un- 
 til the widow dies or marries again, or until the minor chil- 
 dren attain full age. The homestead then goes to the heirs 
 or deMsees of the deceased owner in fee.® 
 
 § 398. In Massachusetts the title to homestead after 
 death of the husband and father is characterized as such an 
 estate as that of husband and wife at common law under a 
 grant to both of them, by which they become seized of the 
 entirety, where neither could dispose of any part without the 
 assent of the other.* 
 
 " But although the title in the homestead estate is in the 
 widow during widowhood, and in all the minor children res- 
 pectively, while under age, the right of possession and en- 
 
 1 Adams v. Adams, 46 Ga. 630. 
 
 2 Hickson u. Bryan, 41 Greo. 620. 
 
 3 Monk V. Capen, 5 Allen 146. 
 
 4 Smith V. Wells, 46 Miss. 64 ; Act of Nov., 1865. 
 
 5 Folsom V. Carli, 5 Minn. 337. 
 
 6 Shaw V. Hearsey, 5 Mass. 523. ' 
 
§§ 31)9-401 DESCENT AND PROBATE. 292 
 
 joyment is in those only of the family who remain in the oc- 
 cupation of the homestead." ' 
 
 § 399. In Texas, on the death of one of the spouses in- 
 testate, the community interest of the decedent descends alike 
 to all the children, whether by the same or sevesal spouses.* 
 
 ABANDONMENT BY WIDOW. 
 
 § 400. In Illinois, after the death of the husband, th« 
 widow, in relation to abandonment of the homestead, is placed 
 in the same position that the husband would be if living. 
 The widow, being under no disability, may abandon the home- 
 stead. Where it appears that it has ceased to be her home 
 and that she has adopted another domicile, she thereby 
 loses the right to the privilege extended to her by law. So 
 it will be if she abandons it with the intention of not return- 
 ing, although she may not have acquired another home. But 
 temporary absence, from sickness or other cause, with an in- 
 tention of returning, would be quite different, and no privi- 
 leges sanctioned by the statute would be lost.' The same 
 principles which apply to the husband, and govern the ques- 
 tion of abandonment, apply to the widow, except in those 
 States where the children have rights which cannot be de- 
 feated. 
 
 § 401. What is deemed abandonment of homestead 
 by -widow. — A woman, though entitled to an estate of 
 homestead while her husband is alive, may by her own acts 
 after his death lose her right. By having dower assigned to 
 her in all the lands of the decedent, and then conveying her 
 interest, she is deemed to have abandoned her right to such 
 homestead.* 
 
 A married woman who has withdrawn altogether from the 
 State and is domiciled in another State cannot claim any 
 homestead privilege ; nor can a woman who has without good 
 cause voluntarily deserted her husband's bed and board for 
 
 1 Abbot V. Abbot, 97 Mass. 136. 3 Wright v. Dumjng, 46 111. 276. 
 
 a Morrill v. Hopkins, 36 Texas 686. * Bates v. Bates, IV Mass. 392. 
 
293 DESCENT AND PROBATE. § 402 
 
 several (two or three) years immediately previous to his de- 
 cease, make a claim to the homestead or widow's allowance 
 at the husband's death. In both these cases the action of the 
 wife has been held to be tantamount to an abandonment of 
 their homestead privileges.^ 
 
 Mr. Justice Libscomb, in delivering the opinion of the 
 Court in the foregoing case of Travick v. Harris, said : 
 
 " When the wife has voluntarily withdrawn from the narrow 
 but sacred precincts of that home in which she was protected 
 by law, and left the State, and domiciled in another State ; 
 that she should claim the protection of the homestead law is 
 so very repugnant to the beneficent designs it contemplates. 
 From her domicile in a foreign land she cannot, after the 
 death of the husband she had abandoned, claim the home- 
 stead, and thus convert what was intended for the holiest pur- 
 poses to mere speculation." 
 
 § 402. Abandonment by -widow does not debar claim of 
 children. — Where a widow with minor children, whose father 
 died within the State, married a second time, and she and 
 her husband, after living in the county of her first husband's 
 residence for some time, left the State, taking the minors 
 with them, but frequently avowed their intention of returning 
 to their former home, which they claim never to have aban- 
 doned, and application is made on behalf of the minors for 
 homestead out of their father's estate, by next friend, in the 
 county in which their father died resident, their homestead 
 will be allowed to them, and if the facts constitute an aban- 
 donment by the mother, as far as the children are concerned 
 there will be no abandonment.^ 
 
 1 Travick v. Harris^ 8 Texas 312 ; Earle v. Earle, 9 Texas 630 ; Monk v. Capon, 
 5 Allen 146 ; Moore v. Titman, 43 III. 169 ; Stewart v. Brand, 23 Iowa 478 ; 
 Orman v. Orman, 26 Iowa 361 ; Fyffe v. Buss, 18 Iowa 5 ; Dunton v. Woodbury, 
 24 Iowa 74 ; see case of Lies v. Diablar, 12 Cal. 330. 
 
 2 Haskins v. Arnold, 46 Ga. 656 ; Blue v. Blue, 38 111. 10 ; Denton v. Wood- 
 bury, 24 Iowa 74 ; Moore v. Dunning, 29 111. 130 ; Cabeen v. Mulligan, 37 111. 
 230. See for contrary opinion Buck v. Conlongue, 49 III. 394^ and Wright u. 
 Dunning, 46 111. 271, where it is held that the widow, being as muab the head 
 of the family as the father while living, could abandon the homestead and 
 affect the right of minor children. As to abandonment in general, Sec. 278 
 et seq.. Chap. IX. 
 
§§ 403-404 DESCENT AND PROBATE. 294 
 
 § 403. Alienation of the homestead, after descent, chil- 
 dren not affected by act of widovir. — When the homestead 
 has been set apart for the minor children of a deceased person, 
 •it is doubtful whether such homestead can afterwards be sold 
 during a minority of the children. If it can be sold at all, it 
 can only be sold by the intervention of a Court of equity, in 
 the same manner as other realty belonging to minors can be 
 sold. Certainly the executor as such could not sell the prop- 
 erty. The setting apart of the land as a homestead divested 
 the estate of the decedent of the title, and conferred it upon 
 the minors, and the deed of the executor in such case would 
 be worth nothing. ^ 
 
 So where the widow releases all her interest in the home- 
 stead to a purchaser, such release will in no wise affect the 
 interests of the children.^ 
 
 S 404. liiens on property set aside as homestead in 
 probate — An order of the Probate Court setting apart prop- 
 erty as a homestead, will not defeat a mortgage which has 
 properly vested as a lien on the property, when the mortgagee 
 was not a party to such proceedings.' And a mortgage exe- 
 cuted by the husband to secure an antecedent debt, would be 
 Valid against the widow after his decease and her claim of 
 homestead.^ 
 
 A widow's claim to exemption is not superior to the lien of 
 a judgment recovered against the husband during his life- 
 time (before the passage of the homestead act). 
 
 The right vests in the debtor as soon as he obtains judg- 
 ment, and the act, not being retroactive, does not disturb 
 vested interests.^ 
 
 A person who advances money to the purchaser to pay the 
 vendor for realty sold, does not stand in the place of the vend- 
 or so far as regards a lien for the money advanced. "Mani- 
 
 1 Sloan V. "Vance, 45 Ga. 310 ; Blue v. Blue, 38 111. 10. 
 
 SMiller v. Marokle, 27 111. 402 ; Vanzant v. Vanzant, 23 HI. 541. Of course, 
 these principles apply only in those States where the homestead does not inure 
 exclusively for the benefit of the widow. 
 
 8 Lies I). Diablar, 12 Cal. 327. 
 
 4Wood v. Lord, 51 N. H. 448. 
 
 SRishell V. Bishell, 48 Penn. St. (12 "Wright) 243. 
 
295 DESCENT AND PROBATE. §§ 405-406 
 
 festly he is a loan creditor, and nothing more." Therefore a 
 widow is entitled to her exemption as against such loan cred- 
 itor. The possessor of a " vendor's lien is he who has parted 
 with his lands in consideration of the price agreed to be 
 paid." But a man who lends money to pay the purchase 
 price of land is by no means a vendor, nor can he have a 
 vendor's lien on the land. ' 
 
 Where A made a sale of land to B, taking his notes for 
 the purchase-money, giving his bond for titles, and afterwards 
 indorsed one of the notes to C, who indorsed it to D, and B 
 having paid some of the purchase-money abandoned the land, 
 and A having died, his administrator took possession of the 
 land : held, that the indorser and minor children of A are 
 entitled to a homestead in the land as against a judgment ob- 
 tained by D on the indorsed note against B as principal, and 
 A and G as indorsers. The equity of B under his bond for 
 titles, with some of the purchase-money paid, to pay the pur- 
 chase-money and demand title, does not, in such case, make 
 the lien of the judgment paramount to the homestead.'' 
 
 § 405. Lien of attachment, death of defendant. — The 
 
 death of a defendant, after levy of an attachment upon his 
 property, and before judgment, dissolves the lien of attach- 
 ment.* 
 
 ACTION AND PRACTICE IN PROBATE. 
 
 § 406. Sale of the homestead by guardian of insane 
 husband, -without signature of -wife. — Where the home- 
 stead is selected, and subsequently the husband becomes insane, 
 and a guardian is appointed by order of the Probate Court, 
 who petitions the Court for an order to sell the homestead, 
 which order is granted and the property is sold by virtue of 
 the proceedings : held, that the Court had no authority to 
 sell the homestead without the wife joining in making the 
 deed to the purchaser, although the wife knew of the pen- 
 
 1 Notte's Appeal, 45 Penn. St. 361. 
 
 2 Faircloth v. St. Johns, 44 Ga. 603. 
 
 3 Hensley v. Morgan, 47 Cal. 622 ; Myers v. Mott, 29 Cal. 367. 
 
§ 407 DESCENT AND PROBATE. 296 
 
 dency of the proceedings in the Court, and urged the sale and 
 received from the guardian a portion of the proceeds of the 
 sale, and appropriated the same to the support of herself and 
 children. The Court said that "a guardian is but a repre- 
 sentative of his ward, and has no greater power in the dis- 
 position of the property of his ward than the latter would 
 have if laboring under no disability ; and clearly he has no 
 power to dispose of the estate of the wife of his ward.^ But 
 in Massachusetts, under similar statutes, the contrary doc- 
 trine was held. The statutes of 1855, C. 238, exempt 
 the homestead from sale on execution, and prevent the 
 husband from alienating it without the concurrence of the 
 wife. The Court held that the law did not exempt the home- 
 stead from sale by the guardian of the owner, for payment of 
 his debts, and for his support and maintenance, upon a license 
 of the Court of Probate.^ 
 
 § 407. Sale of homestead by order of Court, who par- 
 ties, minor heirs. — Where upon a bill filed by the next 
 friends of minor children to enjoin the sale of certain lands 
 and personalty under a decree before rendered, in which 
 they claimed an interest under a homestead set apart to 
 them, and as heirs of their deceased mother, counsel repre- 
 senting said next friends upon the hearing of the application 
 for an injunction, consented to said sale, the guardian of said 
 minors not being a party to the bill, and said lands' were sold 
 to a purchaser, who, the bill alleged, bought with notice of 
 the claims of said children, and was proceeding to take pos- 
 session of the land then held by the guardian of said minors 
 as their homestead. 
 
 Held, upon a bill filed by the guardian of said minors at- 
 tacking the decree under which the sale was made, praying 
 that said purchaser be enjoined from taking possession of said 
 
 1 Pledgee. Oarney, 47 Cal. 371. 
 
 2 Wilbur V. Hlokey, 8 Grey 432. It ig submitted, that the rule iu the Califor- 
 nia case is the better law ; indeed, the reasoning in that case seems unanswerable — ■ 
 that the guardian is but the representative of his ward, and can do only that 
 which the ward could do if no incapacity intervened. Here, in the very teeth 
 of the statutory prohibition, the guardian can do that which would be unlawful 
 for the ward to do, if he were in a disposing mind. 
 
297 DESCENT AND PEOBATB. §§ 408-409 
 
 property, equity will restrain such action until the rights of 
 said minors can be fully determined upon a final decree. ^ 
 
 An administrator's sale of land, after the homestead law 
 takes effect, is void as against the heirs, when the land is 
 shown to have been the intestate's homestead. Or if the rec- 
 ord in the Probate Court does not show affirmatively one of 
 two facts, either that the land was not decedent's homestead, 
 or that there were debts contracted before the passage of the 
 homestead act, for which it was necessary to sell the land, 
 the sale in like manner would be void.^ 
 
 § 408. A Avido-w is considered a creditor of her de- 
 ceased husband's estate to the extent of her separate allow- 
 ance, and is entitled to have the real estate sold for its pay- 
 ment, but if the will of the husband decree separate parcels 
 of real estate to her and his children the fund for the pay- 
 ment of her allowance should not be raised exclusively from 
 the property devised to the children, but should be appor- 
 tioned between that and the property devised to her accord- 
 ing to their respective value. But in apportioning the bur- 
 den between the widow and children, the homestead being in 
 the occupancy of the widow, but devised to the children, 
 should not be taken into account or ordered sold.^ 
 
 § 409. Wido^w, tenant in common. — Petition for parti- 
 tion the proper remedy. — On application by the widow for 
 an assignment of homestead, where such applicant has not an 
 estate in the land, but merely a right in the premises, peti- 
 tion for partition. against the tenant of real estate is a proper 
 proceeding by such widow whereby to obtain an assignment 
 of her homestead therefrom.^ 
 
 In those States where the right is not extinguished by a 
 second marriage, if the widow claims a homestead a bill in 
 equity is a proper proceeding for the recovery and assignment 
 of such honiestead, and the minor children are proper if not 
 necessary parties.^ Again, where the right of homestead is 
 
 1 Colley V. Duncan, 47 Ga. 668. 3 Deltzer v. Scheuster, 37 111. 301. 
 
 2 Howe V. Moaivern, 25 Wis. 525. i Atkinaon v. Atkinson, 37 N. H. 434. 
 
 5 Miles V. Miles, 46 N. H. 261. 
 
§§ 410-413 DESCENT AND PROBATE. 298 
 
 conferred only where there are minor children, the petition 
 should allege a dependent family, or it will be bad on demur- 
 rer, as it should affirmatively show that applicant was entitled 
 to the homestead und er the act. ^ But it would seem that such 
 objection must be made in the lower Court, as objection to 
 such petition in failing to allege the names and ages of minor 
 children, being first made in the appellate Court, was disre- 
 garded.^ 
 
 § 410. Creditors may make objections to the regulari- 
 ty of the proceedings, and contest the right of the appli- 
 cants to be considered "the family of minors " of the de- 
 ceased.' 
 
 § 411. When the claim for allo-w^ance to -wridcwr should 
 be made. — "When the estate is solvent and is ready for dis- 
 tribution it is too late for the widow and children to apply 
 for an allowance in lieu of the property exempt from execution, 
 because the time has elapsed during which the law designs 
 to secure such property to the widow and children.* 
 
 § 412. Jurisdiction of Probate Courts as to the home- 
 stead. — In the administration of an estate the Probate Court 
 has jurisdiction to ascertain what is the homestead ; but in Tex- 
 as, the Court has no jurisdiction to order the sale of the home- 
 stead, nor would a purchaser at such sale take any right as 
 against the minor children.^ Such is the law in relation to 
 the sale of the homestead or other property in most of the 
 States, except perhaps in a few of those States where such 
 jurisdiction is especially given by law. 
 
 § 413. Who entitled to money a-warded in lieu of 
 homestead. — Where there was no homestead pertaining to 
 an insolvent estate, the Probate Court ordered the adminis- 
 trator to pay to the widow of decedpnt $2,000 in lieu of a 
 homestead. The guardian of the decedent's child sued the 
 
 1 Lynch v. Pace, 40 Ga. 173. 
 
 2 Johnson v. Davenport, 42 Ala. 317. 
 
 3 Eoft, Sims & Co. v. Johnson, 40 Ga. 555. 
 
 4 Little V. Birdwell, 27 Texas 690. 
 6 Cannon v. Bonner, 38 Texas 487. 
 
299 DESCENT AND PROBATE. § 413 
 
 administrator for half the allowance. Held, that the ex- 
 ceptions to plaintiff's petition were properly sustained.^ The 
 allowance being made to the widow she alone could maintain 
 an action for it. 
 
 1 Burt V. Box, 36 Texas 114. 
 
§ 414 ACTION AND PRACTICE. 300 
 
 CHAPTER Xn. 
 
 ACTION AND PE.ACTICE. 
 
 § 414. Parties are bound by the determination of the 
 Court. — In actions, and in practice in relation to the home- 
 stead right, the well known rule of law that parties to a suit 
 in a Court of competent jurisdiction, where they labor under 
 no disability, are bound by the determination of their rights, 
 if fairly before the tribunal, applies as well to actions affect- 
 ing this right as to all others. And where the rights of par- 
 ties have been once adjudicated, they cannot again be liti- 
 gated in the same or any other Court of co-ordinate jurisdic- 
 tion. 
 
 Thus, in Illinois, where a widow was made a party in a pro- 
 ceeding for partition by heirs, and it being alleged that she 
 was entitled to dower, the Court awarded to her her dower, 
 she obtaining an allowance in lieu thereof, and the lands were 
 sold under the partition proceeding, subject to the payment 
 of the widow's allowance, she making no claim of homestead 
 at the time : it was held that she could not afterwards set up 
 her homestead right against the purchaser under the parti- 
 tion sale.' So, if unmarried persons, the heads of families, ca- 
 pable of releasing the homestead, and occupying it, fail to as- 
 sert the right when a Court adjudicates upon it in a suit to 
 which they are parties, they will be concluded from after- 
 wards asserting it.^ 
 
 And where a person under a disability is sued, and the 
 
 1 Tadlock v. Eccles, 20 Texas 782 ; Wright u. Dunning, 46 111. 273 ; Chilson 
 u. Beeves, 29 Texas 276 ; Lee v. Kingsbury, 13 Id. 68 ; Baxter v. Dear, 24 Id. 
 17; MoCreery v. Fortson, 35 Id. 641. 
 
 2 Wright V. Dunning, 46 111. 275. 
 
301 ACTION AND PRACTICE. § 414 
 
 homestead is involved, it will be affected by any neglect to 
 assert it like any other right. 
 
 But where a husband and wife are made parties to a suit, 
 and they are entitled to homestead rights which are not re- 
 lied upon, the wife is not concluded from afterwards assert- 
 ing the right ; and inasmuch as in those States where she 
 cannot sue alone for the right, it may be asserted by husband 
 and wife notwithstanding the judgment. This exception 
 grows out of the statute conferring the right, which declares 
 that the husband alone cannot release the right, but that he 
 must be joined by his wife. For he would be alone in releas- 
 ing the right if judgment in a suit where the homestead was 
 concerned was given against him, and he did not plead the 
 right. ^ 
 
 In Texas, it is said : " There being nothing in the nature of 
 the homestead right to exclude it from the operation of the 
 general principle, that the judgment or decree of a Court of 
 competent jurisdiction, directly upon the point necessarily 
 involved in the decision of the question, is conclusive be-^ 
 tween the parties and their privies, upon the same matter 
 coming directly in question in the same or another Court of 
 concurrent jurisdiction, it is essential on the one hand, that 
 all parties whose claims are sought to be disbarred he 
 brought before the Court, and on the other, that the claims 
 be properly presented so that the benefits intended to be com 
 ferred shall be protected." Thus, where a mortgagor, being 
 sued for a foreclosure, pleaded his homestead exemption, and 
 there was a foreclosure nevertheless, ordering the property to 
 be sold, and the property accordingly was sold, it was held 
 that the mortgagor was concluded by the judgment of 
 foreclosure from again pleading his homestead exemption in 
 a suit brought by the purchaser to recover the property.^ 
 
 JJfor will the fact that a wife relied upon the promises of 
 a husband by whom she was deceived, to have a defens& 
 made for her in the first suit to protect her homestead rights, 
 
 1 "Wright V. Dunning, 46 111. 274. 
 
 2 Lee V. Kingsbury, 13 Texas 68 ; Tadlook v. Ecoles, 20 Texas 782 ; Chilson u.. 
 Beeves, 29 Texas 276 ; MoCreery v. Portson, 35 Texas 641^ 
 
§ 415 ACTION AND PRACTICE. 302 
 
 entitle her to relief against a judgment of foreclosure after it 
 has once been rendered.' 
 
 The parties to a foreclosure proceeding are bound by the 
 decree therein, and cannot interpose in an action to recover 
 possession by the purchaser at the sale made under the exe- 
 cutioia, the defense that the mortgaged premises were their 
 homestead, and that the mortgage for that reason was invalid. 
 Such defense can be made available only in the foreclosure 
 proceedings.^ But an action may be maintained in equity to 
 set aside the sale of a homestead under execution against the 
 owner thereof.' 
 
 In Georgia, a creditor is not obliged to go before the " or- 
 dinary " and contest the right of a debtor to a homestead on 
 any other grounds than those stated in the sixth section of 
 the Act of 1868, as amended by the Act of 1870. But if he 
 voluntarily appear and submit issues to the "ordinary" 
 which, but for stich submission, that officer would have no 
 power to pass upon an application for homestead, and for 
 which the ordinary takes jurisdiction, such creditor will be 
 bound by the jurisdiction.^ Thus, it is held, that where cred- 
 itors or others appear before an " ordinary " to contest the 
 granting of a homestead to a wife or widow or family, they 
 are concluded by the judgment upon all questions which it is 
 necessary for. the applicant to prove, and upon all questions 
 which the statute provides that the creditors may make, but 
 they are not concluded upon questions over which the ordi- 
 nary has no jurisdiction, unless it appears that they actually 
 raised such questions, and that they were then decided by the 
 consent of parties.^ 
 
 § 415. Legal proceedings, to be conclusive against 
 either husband or wife, must embrace both. — So it was 
 
 held where the homestead was claimed by the husband in an 
 action in which he alone was defendant, to foreclose a mort- 
 
 1 Baxter v. Dear, 24 Texas 17. 
 
 2 Haynes v. Meek, 14 Iowa 320 ; McCreery i;. Fortson, 35 Texaa 641. 
 
 3 Coon V. Jones, 10 Iowa 132 ; Barton v. Drake, Sup. Ct. Minn. 1875, Cent. 
 L. J., vol. 2, 308. , 
 
 4 Patterson v. Wallace, 47 Ga. 452. 
 6 Harris v. Colquit, 44 Ga. 663. 
 
303 ACTION AND PRACTICE. § 415 
 
 gage made by him alone since marriage, that neither the 
 rights of the husband or wife could be affected by the pro- 
 ceedings in that case, the wife not being a party. ^ But the 
 Court will' order the wife to be brought in as a party, in an 
 action to foreclose a mortgage against a husband, where the 
 defendant sets up the' right of homestead as a defense ; else 
 no decision upon the question of homestead can be conclusive 
 either upon the husband or wife.^ If the wife is not made 
 a party in a suit to foreclose a mortgage on the homestead, she 
 may intervene, or be allowed by the Court to file a separate 
 answer ; the plaintiff having liberty to amend his complaint 
 if any matters are set up in the answer which he might wish 
 to anticipate by further allegations.^ 
 
 Or where an execution issues on a judgment entered 
 against the husband, and levy or garnishment of moneys in 
 third parties' hands, which are the result or proceeds of insur- 
 ance of the homestead destroyed by fire, the wife may inter- 
 vene, and will be heard on motion to set aside such levy or 
 garnishment.* 
 
 In Kansas, a decree of foreclosure of a mortgage signed by 
 the husband alone, if such decree be entered, even after sale 
 or abandonment of the homestead, wherein the wife was not 
 a party, the decree is void so far as it affects her interests, 
 and is no evidence of anything as against her. 
 
 And the same rule obtains in respect to mortgages execute 
 ed by the wife alone, and this notwithstanding the legal title 
 to the homestead may be in the wife and not in her husband. 
 And where an action is brought to foreclose such mortgage 
 executed by the wife alone, where the homestead is her sepa- 
 rate property, the husband is a propei: party, and if the action 
 is brought against the wife alone, there is a defect of parties.^ 
 While it is not essential in all cases to make the wife a party 
 to a proceeding to foreclose a mortgage on the homestead, it 
 
 1 Revalk v. Kraemer, 8 Cal. 66 ; Shoemaker v. Gardner, 19 Mich. 96. 
 
 2 Marks v. Marsh, 9 Oal. 96. 
 
 S^Sargent v. Wilson, 5 Oal. 504 ; Moss p. Warner, 10 Cal. 296. 
 4Houghton u. Lee, Sup. Ct. Cal., July Term, 1875. See Sec. 102. 
 5 Dollman v. Harris, 5 Kansas 597 ; Morris v. Ward, 5 Kansas 239 ; Kevalk 
 V. Kraemer, 8 Cal. 66 ; Thorn v. Darlington, 6 Bush (Ky.) 448. 
 
§§ 416-418 ACTION AND PEACTICB. 304 
 
 is in all cases the safer practice, and it is necessary when it is 
 sought to bind her by decree.^ 
 
 But where such foreclosure is of a mortgage given to se- 
 cure the purchase-money, she need not be made a party. ^ 
 
 It is questioned, in Nevada, whether the husband alone can 
 set up in his answer to a complaint for foreclosure, the feet 
 that the property mortgaged is homestead, and that his wife 
 had not joined in the mortgage.' 
 
 § 416. Wife may set up usury. — In an action to foreclose • 
 a mortgage upon the homestead executed by the husband 
 and wife to secure a note executed by the husband alone, 
 the wife may set up a plea of usury against the note. She 
 is interested in protecting the homestead right from any ille- 
 gal or usurious incumbrance, or in reducing the amount of any 
 recovery under which the same might be sold.^ And she has 
 such an interest in the homestead as to enable her to maintain 
 an action against a Sheriff to compel him to exhaust her hus- 
 band's personal property and his other real estate before pro- 
 ceeding to sell the homestead.^ 
 
 g 417. The death of the ■wife after suit brought by her 
 
 husband and herself for the homestead may defeat a recovery 
 by the husband, (where he individually would be estopped 
 from claiming the right) although the right to recover existed 
 at the commencement of the suit.* 
 
 § 418. Plea that the deed or mortgage does not operate 
 as a release of the homestead right can be interposed as a 
 defense in any action by which it is sought to deprive the hus- 
 band and wife of the right, or to eject them from the prem- 
 ises to which the right attaches. The plea that the deed or 
 mortgage does not operate as a release of the right of home- 
 stead may be interposed as a bar in an action of ejectment 
 
 1 Chaae v. Abbott, 20 Iowa 154, and cases cited ; Clark v. Shannon, 1 Nev. 568. 
 2Amphlett v. Hibbard, Sup. Ct. Mich., April, Term, 1874 ; Skinner v. Beatty, 
 16 Gal. 157. 
 8 Clark V. Shannon, 1 Nev. 568. 
 4 Lyon V. "Welsh, 20 Iowa 578.' 
 6 Bartholomew v. Hook, 23 Cal. 279. 
 6 Gee V. Moore, 14 Cal. 472. 
 
305 ACTION AND PEACTICB. § 418 
 
 against the grantors or mortgagors. IsTor will the fact that the 
 premises were of value exceeding the statutory amount at all 
 weaken the defense as a bar to recovery in ejectment.' 
 
 It is further held, in Illinois, that if a mortgage contains a 
 power of sale, the homestead right in the premises not being 
 released, a Court of equity will interpose by injunction to re- 
 strain the mortgagee from selling the premises under a power 
 of sale in the mortgage. And where such mortgage is fore- 
 closed, the omission on the part of the husband and wife to 
 assert their homestead right as a defense to the bill of fore- 
 closure, will not operate as a waiver of their right. But, even 
 after the sale, the husband and wife may have the sale set 
 aside, on motion, on the ground that they held a homestead 
 right in the premises. The defendants can have all the relief 
 by their motion that they could have by original bill in 
 equity.^ 
 
 The homestead right can only be lost by release or abandon- 
 ment in the mode pointed out by statute. So, in a suit to 
 foreclose a mortgage, in the execution of which the home- 
 stead right was not released, a mere failure on the part of the 
 mortgagor to claim the right, by answer or cross bill, will not 
 have the effect to bar the right, or to be considered as a re- 
 linquishment of the benefits of the statute. To give a de- 
 cree by default, such an eftect would be to enable the hus- 
 band to frustrate the design of the statute. It would enable 
 him, by indirection, to release the homestead independent of 
 the action of the wife, when he could not do so in any direct 
 mode. 
 
 If the property is worth no more than the statutory limit, 
 the homestead right may be set up as a defense to the 
 suit for foreclosure to defeat a decree, or a bill may be filed 
 to' defeat a decree of foreclosure in such case. But if the 
 premises are worth more than the statutory limit, while 
 the mortgagor may claim the benefit of the act, yet the 
 
 1 Patterson v. Kreig, 29 111. 514; Smith v. Miller, 31 111. 157; Connors. 
 Nichols, 31 111. 148 ; Thornton v. Boyden, 31 111. 200. 
 
 2 Boyd V. Cudderbaok, 31 HI. 113 ; Hoskins v. Litchfield, 31 Dl. 137 ; Hough- 
 ton V. Lee, Sup. Ct. Cal., July T., 1875. See Sec. 102. 
 
 Homestead — 20. 
 
§§ 419-420 ACTION AND PKAOTIOB. 306 
 
 Court will not open a decree in such a case, rendered upon 
 the default of the defendant. But when the master proceeds 
 to execute the decree, he must ascertain whether the home- 
 stead right exists, and if so, he must proceed in the manner 
 pointed out by the statute.' 
 
 § 419. The Court will take judicial notice, that a quarter- 
 section of land consists of four tracts, of forty acres each, with 
 well defined bounds. This being so, it is competent to in- 
 quire the value of the forty-acre tract occupied by the debtor, 
 and if it does not exceed the statutory value, the same is ex- 
 empt unless released in the mode prescribed by the statute. 
 To refuse such inquiry is error. ^ 
 
 § 420. In Illinois, where a husband and wife executed a 
 mortgage on premises occupied by them as a homestead, but 
 there was no release of the homestead right : afterwards, 
 the husband abandoned his wife, leaving her in possession of 
 the homestead, but providing no means for her support. A 
 sale of the premises was had under a power in the mortgage, 
 and the purchaser thereat subsequently brought ejectment 
 against the husband, and recovered a judgment, and there- 
 upon ousted the wife from her possession by force. It was held 
 that the judgment in ejectment, so far as the right of home- 
 stead was concerned, was a nullity, and though a writ of pos- 
 session, issued upon such judgment, would be sufficient legally 
 to eftect the purpose of expelling the wife from the premises, 
 yet it would not impair or destroy the homestead right. Nor 
 would the right of the wife, in such a case, to assert her 
 claim to the homestead be at all impaired by her omission 
 to plead in the ejectment suit, as she was not a party thereto. 
 In sucli case, the judgment in ejectment would be a bar to any 
 remedy at law on the behalf of the wife to recover the pos- 
 session under the claim of the homestead right, but she has 
 a remedy, in chancery, against the party who ousted her, 
 under the judgment, to restore her to the proper enjoyment 
 of her homestead right. 
 
 And where the wife files her bill against the plaintiff in an 
 
 1 Moore v. Titraan, 33 111. 358. 2 Hill v. Bacon, 43 111. 477. 
 
307 ACTION AND PKACTICB. §§ 421-422 
 
 ejectment suit, who thus pusted her from the possession of 
 the homestead, the% proper mode of adjusting the right of the 
 parties was determined to be, to take an account of the rents 
 and profits received by the defendant, deducting therefrom 
 the taxes paid by him, and all necessary repairs put upon the 
 premises, and if the premises were worth more than the stat- 
 utory amount, to make an order in analogy with the statute, 
 to set off the homestead in kind ; and if that could not be 
 done, that the premises be sold, unless the defendant would 
 pay to the complainant the value of the statutory homestead 
 and the balance due for rents and profits, and the same would 
 be a lien upon the premises.* 
 
 In Pennsylvania, it is held, that where a plaintiff enters up 
 judgment on a bond accompanying his mortgage, instead of 
 proceeding on the mortgage itself, and sells the mortgage 
 premises under a venditioni exponans, the adoption of one 
 or other remedy does not vary the relative rights of either 
 party. It is said, if the proceedings had been under the 
 mortgage, the mortgagor could not have claimed the $300 
 exemption, neither is he entitled to such exemption, because 
 the mortgagee has elected to proceed on the bond.^ 
 
 § 421. Aeoounting of first to second mortgagee for 
 rents and profits when in possession. — The holder of a 
 second mortgage of real estate, in Massachusetts, which is 
 subject to the mortgagor's right of homestead in part of the 
 premises may, in a bill to redeem, compel the holder of the 
 first mortgage, which is not subject to the right of homestead 
 after he has t^-ken and maintained actual and exclusive pos- 
 session for the purpose of foreclosure for breach of condition, 
 to account to him for all the rents and profits which, by due 
 diligence, he might have recovered, including the home- 
 stead.^ 
 
 i 422. Appointment of a receiver in case of foreclos- 
 ure of mortgage on homestead. — Very grave doubts were 
 entertained by the Supreme Court of Iowa, whether in any 
 case a receiver should be appointed to take possession and 
 
 1 Mix V. King, 55 111. 434. 2 Dornan v. MoAuley, 3 Phila. 324. 
 
 3 Richardson r. Wallis, 5 Allen 78. 
 
§§ 423-424 ACTION and practice. 308 
 
 charge of a mortgagor's homestead, pending proceedings to 
 foreclose a mortgage. Said the Court : " The question is an 
 interesting and important one, not free from difficulty."' 
 
 § 423. Probate Courts are not proper tribunals to de- 
 termine litigated questions, or "to afibrd relief. Courts 
 having equity jurisdiction have full power and authority to 
 hear and determine the questions involved, and to afford such 
 rehef, if any, as the parties may be entitled to. So, where 
 B petitioned the Probate Court to make an order for the sale 
 of the homestead to pay the debts of the deceased, secured 
 by a valid mortgage on the homestead, it was held that the 
 order of the Probate Court refusing to direct a sale of the 
 homestead for the purpose of satisfying the mortgage, was 
 not erroneous.^ 
 
 § 424. Sale of the statutory overplus. — In Texas, it 
 is questioned whether a judgment creditor can apply to the 
 Court to exercise its equitable power to subject the surplus 
 over the statutory quantity of the homestead of the debtor, 
 to forced sale or partition for the satisfaction of his judgment. 
 If such a proceeding can be maintained, it must be when the 
 creditor cannot obtain satisfaction of his judgment in the or- 
 dinary way, and it must be in subordination of the right of the 
 homestead tenant to point out what property he is willing to 
 give, and that which he intends to retain as his homestead. 
 And a petition in such a suit, if it will lie, must allege that 
 an opportunity had been afforded to the homestead tenant to 
 designate out of the property that part which he selected as 
 his homestead, and that part which should be regarded as ex- 
 cess, and that he had refused to do so. Further, such a peti- 
 tion must aver that the defendant had no other property lia- 
 ble to be taken in execution in satisfaction of the debt.* 
 
 Where suit was brought to subject the homestead of the 
 defendant to the payment of a judgment to the extent of its 
 value above the exemption allowed by law, it was necessary 
 that the jury in their verdict should find the fact that a judg- 
 
 1 Oallanan v. Shaw, 19 Iowa 185. 2 Estate of Orr, 29 Cal. 101. 
 
 3Maokay v. Wallace, 26 Texas 526. 
 
309 ACTION AND PRACTICE, §§ 425-427 
 
 ment had been previously rendered against the, defendants, 
 otherwise a decree by the Court, condemning the property to 
 sale, is not sustained by the verdict, and was consequently 
 declared erroneous. 
 
 § 425. Wife's separate funds forming part to be de- 
 ducted. — In such cases, where the debt for which judgment 
 was rendered was contracted since the adoption of the State 
 constitution, the correct rule was for the decree to condemn 
 the homestead property, if situated in a city or town, to be 
 sold for the payment of the judgment, in whole or in part, 
 reserving to the homestead tenant from the proceeds of the 
 sale the sum of f2,000, exempt by the constitution in force at 
 this time. And where the wife of the defendant had ex- 
 pended any of her separate funds upon the homestead prop- 
 erty, in improvements or otherwise, the amount so expended 
 was also to be deducted from the proceeds of the sale and 
 paid to her, the creditor receiving any balance there might 
 be after deducting $2,000, and the amount which the debtor's 
 wife had expended out of her separate property.^ 
 
 § 426. Po^ver of sale in trust deed, duty of trustee. — 
 
 If a suit, by husband and wife against a trustee and cestui 
 que trust, to restrain the sale of property under the deed of 
 trust, be decided against them, the trust property should not 
 be sold by the sheriff if it be the homestead of the plaintiff' ; 
 but the trustee should sell in accordance with the powers in 
 the deed.^ 
 
 § 427. Practice in selling homestead -where over stat- 
 utory value. — In Cahfornia, where an execution for the en- 
 forcement of a judgment is levied upon the homestead, the 
 judgment-debtor may apply to the county judge of the county 
 in which the homestead is situate for the appointment of per- 
 sons to appraise the value thereof.^ The application must be 
 made on a verified petition showing : 
 
 1 Paschal v. Cushman, 26 Texas 74. 
 
 2 Bomback v. SykeB, 24 Texas 217. 
 
 3 Cal. Code Civil Procedure, Sec. 1245, in force 1873. 
 
§428 ACTION AND PRACTICE. 310 
 
 1st. The fact that an execution has been levied on the 
 homestead. 
 
 2d. The name of the claimant. 
 
 Sd. That the value of the homestead exceeds the amount 
 of the homestead exemption.^ 
 
 Upon the filing service of notice upon claimant, and at the 
 hearing, the county judge shall appoint three disinterested resi- 
 dents of the county to appraise the value of the homestead 
 and report the same to the Court. 
 
 If from such report it appears to the judge that the laud 
 claimed can be divided without material injury, he must, by 
 an order, direct the appraisers to set off to the claimant so 
 much of the land, including the residence, as will amount in 
 value to the homestead exemption, ($5,000) and the execu- 
 tion may be enforced against the remainder of the land (Sec. 
 1253). 
 
 If it cannot be divided, the judge shall make an order direct- 
 ing its sale under execution, but no bid shall be received un- 
 less it exceeds the amount of the homestead exemption. If 
 the sale is made the proceeds thereof to the amount of $5,000 
 must be paid to the claimant, and the balance on the execu- 
 tion.^ The money paid to the claimant is entitled to all the pro- 
 tection against legal process and the voluntary disposition of 
 the husband which the law gives to the homestead.^ 
 
 S 428. In Illinois, -when money is paid in lieu of 
 homestead. — "When the property is sold under execution, 
 and exceeds the statutory limit, and it cannot be sold in sub- 
 divisions, the money so paid is exempt from, execution for 
 one year, and is so exempt for one year after it is actually 
 paid to the debtor, and the statute does not begin to run un- 
 til the money has been handed over. 
 
 And if the officer making the execution sale tenders the 
 amount exempted to the judgment debtor, he has a right to 
 decline to take it, until he can test the validity of the sale 
 by which his homestead was sold, by motion in Court, and 
 the time consumed in such litigation is not to be computed ae 
 
 1 Cal. Code Ci-r. Pro., Sec. 1246. 2 Id., Sees. 1255, 1256. 
 
 3 Id., Sec. 1257. 
 
311 ACTION AND PKACTICE. §§ 429-431 
 
 part of the year during which the money so paid shall con- 
 tinue exempt.^ 
 
 § 429. in Ne-w Hampshire, if the homestead exceeds the 
 statutory value, the ofScer, upon due application, must set out 
 the homestead before he can make sale of any interest there- 
 in, and then can only proceed against the surplus. If, after 
 such application, the officer, without setting out the homestead, 
 undertakes to dispose of it, a Court of equity will interfere 
 by injunction, upon the ground that it will create a cloud on 
 the debtor's title.^ 
 
 § 430. In lo-wa, "the owner may select his homestead 
 
 and cause it to be marked out, platted, and recorded ; but a 
 failure to do this does not leave it liable, that duty, in case of 
 such failure by husband and wife, devolving on the officer 
 having an execution against the owner." 
 
 Where a party claims a homestead in lands used for agri- 
 cultural purposes, he must allege and show that the home- 
 stead claimed does not exceed the quantity allowed by stat- 
 ute ; that it is not included in the recorded plat of a city, town, 
 or village.^ When the defendant pleads his homestead right 
 he may also plead that the homestead is susceptible of divi- 
 sion, so that the part consisting of the dwelling-house, etc. , 
 may be set off in such manner that the homestead will not 
 exceed the statutory value.^ 
 
 § 431. In Minnesota, where a homestead claimant has a 
 greater quantity of land than the statute allows for a home- 
 stead, execution may be had on the excess ; the homestead 
 claimant shall point out to the officer who makes, the levy 
 what portion of the property he regards as his homestead, 
 and that part shall be free from execution. If the plaintiff 
 in execution shall be dissatisfied with the part so set aside, 
 he may have the premises surveyed, beginning at a point to be 
 designated by the owner, and have set off in a compact form 
 
 1 Walsh V. Horine, 36 111. 238. In Oal. for eix months, under Code, 1874. 
 a Tucker v. Kenniston, 47 N. H. 267. 
 
 3 Rhodes v. MoCormick, 4 Iowa 371. 
 
 4 Helfenetein v. Cave, 6 Iowa 374. 
 
§ 432 ACTION AND PRACTICE. 312 
 
 the amount of land allowed by statute, including the dwelling- 
 house.* 
 
 § 432. Ho'W and -when the right of homestead may be 
 asserted. — Where, after a foreclosure sale, an action of forci- 
 ble detainer is brought against the husband to oust him from 
 the posssession of the homestead, the husband and wife, 
 claimants of the homestead, can assert their right by bill in 
 equity, and thereby enjoin the further prosecution of the 
 action of forcible detainer, and Have the forced sale set aside. 
 The wife is not bound to set up her right in an action of forci- 
 ble detainer. If the right was in the husband, there would 
 be force in the objection that it was not asserted in that suit ; 
 but the right is in the wife, and she has no other means of 
 asserting it than by bill.^ 
 
 Where a husband and his wife join in the execution of a 
 mortgage upon premises in which they have a homestead 
 right, but which was not released in the mortgage, the mere 
 omission on their part to interpose their claim to that right 
 as a defense to a bill to foreclose the mortgage will not oper- 
 ate as a waiver of such right. But the mortgagors by original 
 bill in equity can assert their right to the homestead, and 
 while the decree of foreclosure will not be disturbed, the sale 
 and all subsequent proceedings will be set aside, and the mas- 
 ter directed to sell the premises in the mode pointed out by 
 the homestead act.' 
 
 In Georgia, if an application by the head of the family to 
 have the homestead set apart is made before the sale, though 
 » after the levy, and proper notice is given thereof to the offi- 
 cer conducting the sale, the land is sold subject to the home- 
 stead.* 
 
 Where the head of a family applied to the ordinary 
 by petition to have a homestead set apart for his family, 
 and accompanied by a schedule of his property, and the land 
 was sold at a sherifl"'s sale, pending his application, the pur- 
 
 1 Gen. Stat. Minn., Chap. 68, Sees. 3, 4 and 5. 
 
 2 Booker v. Anderson, 35 111. 66. 
 
 3 Moore v. Dixon, 35 111. 208 ; Wing v. Cropper, 35 HI. 256. 
 
 4 Blivens v. Johnson, 40 Ga. 297. 
 
313 ACTION AND PEACTICB. §§ 438-435 
 
 chaser at such sale, with notice of lis pendens, took the prop- 
 erty subject to the incumbrance, where the homestead was 
 properly laid off". And when the head of the family has 
 acted with good faith and reasonable diligence to have his 
 homestead laid off, a Court of equity will interfere to prevent 
 an eviction until all the parties can be fairly heard. ^ 
 
 The head of the family may file a claim for the benefit of 
 the family, when property set apart under the homestead and 
 exemption laws of the State is levied upon for the payment 
 of any debt to which it is not subject. 
 
 Trespass is a proper remedy in such a case, but it is not the 
 only one. The family are not obliged to wait until they are 
 turned out by the sheriff under an illegal sale, and then sue 
 for the damages ; they may arrest the illegal proceedings by a 
 claim under the general laws of the State of Georgia on that 
 subject.^ 
 
 § 433. The filing of the declaration of homestead, un- 
 der the statute of California, requiring the husband or wife 
 to acknowledge and record the same as conveyances of real 
 estate are required to be acknowledged and recorded, where 
 done by the wife alone, need not be acknowledged in the man- 
 ner required by law in the case of the conveyance of the sep- 
 arate property of a married woman. ^ 
 
 § 434. A notice given to a sheriff who is about to levy 
 on certain premises, that such premises are the homestead of 
 the person giving the notice, does not invalidate the sale. 
 Such notice has neither power to create a homestead right in 
 the premises, nor is it any evidence that such premises were 
 in fact the homestead of the person giving the notice, and the 
 sheriff can proceed with the sale regardless of the notice.^ 
 
 § 435. In Ohio, the mode and time prescribed by the 
 
 statute for the assertion of a debtor's claim to the exemption 
 
 1 Kelgore v. Beck, 40 Ga. 293 ; Blivens v. Johnson, Id. 297. 
 
 2 Bartlett v. Eussell, 41 Ga. 196. 
 
 3 Clementa v. Stanton, 47 Oal. 61. 
 
 4 Vella V. Pico, 41 Cal. 469. The statute of California requires record notice 
 of claim to be filed. 
 
§§ 436-437 ACTION and practice. 314 
 
 of a homestead, are, on applieation of the debtor or his wife, 
 his agent or attorney, to the sheriff' or other officer executing 
 the writ of execution, founded on any judgment or decree.' 
 When once the homestead has been regularly set oft' under 
 the statute, no " further proceedings " can be had against it 
 while the right to the homestead so set off continues. The 
 question as to whether a homestead set off' under the statute 
 has subsequently became subject to further proceedings 
 against it, should be first presented to and determined by the 
 Court under whose process such proceedings are sought before 
 the same are had.'' 
 
 § 436. A bill to protect the homestead must show all 
 the facts necessary to a description of the homestead as de- 
 fined by law, and- must aver that the value does not exceed 
 the statutory limit. It is not enough to declare simply that ' 
 the right exists — the pleadings should set out the facts which, 
 if proven, would establish the right.' It is said, in Illinois, 
 that when the debtor has shown fhat he is within the enacting 
 clause of the first section of the homestead act of that State, 
 he is, prima facie, entitled to its benefits, and it must be re- 
 butted by the creditor before he can subject the property to 
 levy and sale.* 
 
 § 437. What allegations are sufficient in bill in equity. 
 
 In Massachusetts, where the question arose whether a hus- 
 band is entitled to maintain a bill to redeem land from a 
 mortgage by reason of holding a homestead estate in the 
 equity of redemption, under Stat. 1855, C. 238, the plaint- 
 iff's bill alleged that the premises were part of the home- 
 stead farm of plaintiff", though separated by the propei'ty of 
 other persons from that part of his farm whereon his dwell- 
 ing-house stood, and that he had acquired an estate of home- 
 stead in the premises : the Court held, that demurrer would 
 not lie, on the ground that the bill contained the distinct aver- 
 
 1 Sears v. Hanks, 14 Ohio St. 298. 
 
 2 Wetz V. Beard, 12 Ohio St. 431. 
 
 3 Shoemaker v. Gardner, 19 Mich. 96 ; Myers v. Pfeiffer, 50 HI. 485 ; Harper 
 ■e. Forbes, 15 Gal. 202. 
 
 4 Stevenson v. Marony, 29 111. 532. 
 
315 ACTION AND PRACTICE. §§ 438-439 
 
 ment that the parcel of land described in the mortgage was 
 the homestead of the plaintiff.' 
 
 g 438. Sale of equity of redemption — Homestead right 
 must be claimed before sale. — Under Statutes of 1859, C. 
 298, of the same State, a sale on execution of an equity of re- 
 demption in land will bar all homestead right therein, unless 
 such rights are claimed at the time of the sale, or before. 
 
 Prior to the enactment of the general statutes, a levy of an 
 execution made upon land which is subject to the homestead 
 right, acquired under Stat, of 1855, C. 288, was effectual to 
 pass a title to the reversionary interest of the homestead owner, 
 and nothing more ; and that though, at the time of the exe- 
 cution the estate of homestead had not been set out, and no 
 claim was made thereto, nor was any deduction had by reason 
 of the right. ^ A homestead right is such a freehold estate as 
 will avail a tenant in defense to a writ of entry.' If it ex- 
 tend over the entire premises sued for, and require the whole 
 value of the estate to satisfy it, then the action will be de- 
 feated.'* But if it fall short of this, either in value or extent, 
 and there is no disclaimer as to the residue, the demandant is 
 entitled to recover, but his judgment must necessarily be a 
 Umited one, in accordance with Gen. Stat., C. 134, Sec. 10.^ 
 
 § 439. Proceedings to set out homestead — Mathemati- 
 cal accuracy not. necessary. — In Alabama, in a pi'oceeding 
 under Sec. 2881, Kev. Code, to appraise and set apart to the 
 debtors the homestead exempt from execution, the law does 
 not require that mathematical accuracy shall be observed. 
 And where freeholders are appointed, their action should 
 never be disturbed, except in case of fraud or corruption, 
 or irregularities seriously affecting the rights of one or of 
 both parties.* 
 
 1 Davis V. Wetlierell, 13 Allen 60; Adams u. Jenkins, 16 Gray 146. 
 
 2 Castle u. Palmer, 6 Allen 401. 
 
 3 Silloway v. Brown, 12 Allen 30. 
 i Parks V. Eeilly, 5 Allen 77. 
 
 6 S-wan V. Stephens, 99 Mass. 10. 
 * Pomroy v. Bunting, 42 Ala. 250. 
 
§§ 440-442 ACTION AND PRACTICE. 316 
 
 § 440. Tenant in common may apply for partition. — 
 
 In Arkansas, when lands held in common are levied upon, a 
 tenant in common is at liberty to apply for partition, and 
 after partition, by fixing his dwelling thereon, will be entitled 
 to the benefit of the homestead exemption.^ 
 
 § 441. Estoppel by covenants in deed of homestead. — 
 
 The grantor of premises occupied as his home is estopped by 
 the covenants of his deed from maintaining a bill in equity 
 for the assignment of a homestead to himself therefrom. 
 During the lifetime of the husband and father, who has con- 
 veyed with covenants the premises' occupied as the family 
 home, neither his wife nor minor children, claiming and iden- 
 tified with him, are entitled to have a homestead assigned 
 and set out therefrom against the covenants of his deed.^ 
 
 g 442. Cloud on title to homestead, bill in equity. — 
 
 The forced sale of a homestead being illegal, and the sale of 
 a house on leased land owned and occupied as a homestead 
 under an execution, confers no title on the purchaser, nor does 
 it divest the homestead claimant of any of his rights. Still, 
 it is a cloud upon the title, and equity will take jurisdiction 
 to remove it, especially when the purchaser under the exe- 
 cution is in possession, and threatens to remove the house, or 
 to commit any other kind of waste. And the Court, if it has 
 acquired jurisdiction, even for other purposes, will proceed to 
 do complete justice, and in such case give rents against the 
 purchaser under the execution for the time the property was 
 occupied by him.' In California, a homestead is not affected 
 by levy and sale under judicial process for extrinsic debts or 
 charges ; and a purchaser of the homestead premises under 
 an iUegal sheriff's sale, can acquire no right to the property. 
 Such a sale being totally void, the sheriff's deed conveys 
 nothing. Thus, where a plaintiff in ejectment claimed to de- 
 raign title to the premises in controversy through a judgment 
 rendered against the defendant in November, 1857, an exe- 
 
 1 Greenwood v. Maddox, 27 Ark. 649. 
 
 2Fo9s V. Straohn, 42 N. H. 40 ; Strachn v. Foaa, 42 N. H. 43. 
 
 SConklin v. Foster, 57 111. 104; Harrington v. Utterback, 57 Mo. 519. 
 
317 ACTION AND PRACTICE. §§ 443-444 
 
 cution and shei'iff 's sale thereunder in 1860, and a sheriff 'a 
 deed made in pursuance of such sale in September, 1864, it 
 being shown that, at the dates of the judgment, levy, and 
 sale, the premises were occiipied by the defendant with hia 
 family as a homestead, (under the Act of 1851) it was held 
 that the levy and sale were void, and passed no title to the 
 purchaser.^ Such a sheriff's deed, being a cloud on the title, 
 and preventing the free alienation of the property, will be 
 removed on application by bill in equity.^ 
 
 § 443. Subsequent acquired title, ejectment. — A sher- 
 iff's deed transfers to the purchaser all the interest the exe-. 
 cution debtor had in the land sold at the date of the levy, but 
 no subsequently acquired right or interest of such debtor. 
 If or does the execution sale and sheriff's deed estop the exe-- 
 cuttbn creditor from asserting a subsequently acquired right 
 of possession as against the right of possession sold under the 
 sheriff's deed. Thus, where the possessory claim of a settler 
 on public land was sold on execution, and afterwards he en-. 
 tered the same land as a homestead under the Act of Con-, 
 gress of 1862, it was held that he had by his homestead entry 
 acquired from the paramount proprietor a right and interest 
 in the land which he did not possess at the time of the levy 
 ■and sale, and that this newly acquired right and interest 
 vested an independent right of possession, which would con- 
 stitute a complete and valid defense to an action of ejectment 
 under the sheriff's deed.^ It is no valid objection to the main- 
 tenance of a suit in ejectment by a married man to recover 
 possession of his homestead, that he has applied for a dis-. 
 charge from his debts under the insolvent laws.* 
 
 § 444. All other property must be exhausted before 
 selling the homestead. — It is the policy of the law to re^ 
 
 1 Deffeliz v. Pieo, 46 Oal. 289 ; Dunn v. Tozer, 10 Cal. 167 ; Kendall v. Clark, 
 10 Oal. 17; Williams v. Young, 17 Cal. 403. 
 
 2 Dunn u. Tozer, 10 Cal. 167; GrifEths u. Cunuinghara, Sup. Ct. Cal., Janu- 
 ary Term, 1874, (No. 3,965) Paoiac Law Bep., March 10th, 1874, not re- 
 ported ; Barton v. Drake, Sup. Ct. Minn., 1875, noticed in Central Law J., St^ 
 Louis, May 7th, 1875, Vol. 2, No. 19, p. 308. 
 
 3 Emerson ts. Sanaome, 41 Cal. 552 . 
 
 4 Moore v. Morrow, 28 Oal. 551. 
 
§ 444 ACTION AND PRACTIOB. 318 
 
 quire all other property of the defendant in execution to he 
 exhausted before touching his homestead. In the case of the 
 foreclosure of a mortgage covering several pieces of land, one of 
 which is homestead property, the Court will order all the other 
 land to be first sold, and only allow resort to the homestead 
 to supply the deficiency, if any, after all other lands are ex- 
 hausted. Nor will it allow the land to be sold as a whole ; 
 when it is sold as a whole, the sale, on proper application, will 
 be set aside, and a resale ordered.^ But the defense must be 
 made in the proceeding in foreclosure or enforcement of the 
 lien, otherwise the right will be barred, as the judgment can- 
 not be attacked collaterally.^ 
 
 Thus, in Califoi-nia, where the husband and wife executed a 
 mortgage upon a tract of land, a part of which tract was claimed 
 as a homestead : the husband afterwards executed a mortgage 
 upon a. part not covered by the homestead, and the fii's{ mort- 
 gagee forecloses making the other mortgagee a party, it was 
 held that the second mortgagee could not insist that the home- 
 stead be sold, but that the decree should direct that the part 
 not covered by the homestead should be first sold, and if the 
 proceeds satisfy the first mortgage, that the homestead be re- 
 served from sale. That the second mortgagee must rely on 
 the surplus, if any, arising from the sale of the part not cov- 
 ered by the homestead.' 
 
 So, in Wisconsin, under the Amendatory Act of 1870, and 
 the decisions of that State, it is the practice and rule, that if 
 any portion of mortgaged premises consists of a homestead, to 
 sell that portion, if it is practicable, which is not covered by 
 the homestead claim, and that the homestead should not be 
 sold until all the other lands covered by the mortgage are sold. 
 But a mere irregularity in practice, which does not aft'ect sub- 
 stantial rights, will be no ground for setting aside the fore- 
 closure sale. The party seeking to have such sale declared 
 
 1 Boyd V. EUia, 11 Iowa 98 ; Stevena v. Myers, 11 Iowa 185 ; Bradford v. Lim- 
 pus, 13 Iowa 424 ; Lay v. Gibbons, 14 Iowa 377 ; Burmeister v. Dewey, 27 Iowa 
 468 ; Denegre v. Haun, 14 Iowa 240 ; Lloyd v. Frank, 30 "Wis. 306 ; McLaugh- 
 lin V. Hart, 46 Cal. 638 ; Bartholomew v. Hook, 23 Cal. 279. 
 
 2McCreery I). Fortson, 35 Texas 641. See case of Barton u. Drake, Sup. Ct. 
 Minn,, 1875, reported in Cent. L. Journal, No. 19, toI. 2, 308, May 7th, 1875. 
 
 8 McLaughlin I!. Hart, 46 Cal. 638 ; Dye v. Mann, 1*0 Mich. 291. 
 
319 ACTION AND PfeACTICE. § 444 
 
 invalid must prove more thau mere irregularity ; he must 
 show that he was substantially injured.^ 
 
 Allegations in bill where it is sought to enjoin the sale 
 under a deed of trust or mortgage, the bill should allege that 
 the owners have such other property, or an injunction restrain- 
 ing such sale will be denied.^ 
 
 But a sheriff's sale under special execution of two hundred 
 and forty acres of land in a body will not be declared void 
 when it appears that the land was first offered in forty-acre 
 tracts by the sheriff, and that no bids were received for any 
 portion thus offered. Nor would the case be changed by the 
 fact that one of the tracts thus sold was the homestead of the 
 defendant. The offering of the property in separate tracts 
 and his endeavors so to sell it, before selling it en block, was 
 held to be an exhausting of the other property named in the 
 writ, within the meaning of the law, which provides . that a 
 homestead shall not be sold except to supply a deficiency re- 
 maining after exhausting the other property.^ 
 
 This requirement of the statute of Iowa has been held to 
 be directory merely, and that a failure on the part of the 
 officer to comply with it does not affect the title of a pur- 
 chaser of the homestead at judicial sale.* 
 
 The interests of a defendant in the assets of a partnership 
 of which he is a member, being liable to be taken in execu- 
 tion or reached by proceedings thei'eunder, must be first ex- 
 hausted before resort can be had to the homestead of the de- 
 fendant.^ Real estate which has been taken on execution 
 will not be protected by merely claiming it as a homestead, 
 nor is the officer bound to treat it as such when it has not 
 been nor is actually occupied. ° But where the land is sold a 
 portion of which is occupied for homestead purposes, and it 
 is sold en block, the saHe will be set aside on application. 
 But where the lots have been sold separately, a decree setting 
 aside a sale only of the lot on which the debtor's residence 
 
 1 Lloyd V. Frank, 30 Wis. 306. 
 
 2 Stevens v. Myers, 11 Iowa 185. 
 SBlirmeister v. Dewey, 27 Iowa 468. 
 
 4 Denegre v. Hann, 14 Iowa 240. 
 
 5 Lambert v. Powers, 36 Iowa 18. 
 
 6 Campbell v. Ayers, 18 Iowa 255 ; Franklin v. OofBee, 18 Texas 453. 
 
§ 445 ACTION AND PRACTICE. 320 
 
 stood is proper, and gives to the debtor all the relief to whicli 
 lie is equitably entitled.^ 
 
 The Courts of Illinois, as well as in a large proportion of the 
 other States, have uniformly held that where it appears that 
 land or lots which could be divided and sold in parcels were 
 sold en masse, such sales are irregular, and will be set aside.* 
 The case of Greenup v. Stoker ' is no exception to the rule. 
 The facts show that in that case there was but a single quar- 
 ter-section of land sold, and no allegations or proof that it 
 could have been advantageously divided, or any subdivision 
 would have satisfied the execution if sold. Where a farm is 
 composed of several adjoining tracts, it is the " duty of the 
 officer to offer each tract separately, and if the smallest sub- 
 division will not sell, then add another subdivision to it, and 
 so on till it has been offered in subdivisions, when, not selling, 
 it would be just to the creditor to sell it on a reasonable 
 bid en masse," the officer should make a full return of the 
 facts. In such case, the creditor would have to pay the 
 amount of the homestead exemption (under the statute ot 
 Illinois) to the debtor upon making such sale.* 
 
 § 445. Illegal sales of homestead. — In Georgia, where 
 property exempt from execution has been illegally levied 
 upon, mandamus, among others, is a proper remedy to compel 
 the sheriff to restore the property to the possession of the 
 claimant.' 
 
 In ISTew Hampshire, at the time of the levy of an execution 
 on land, if the debtor and his family occupy the premises as 
 their home, such execution is properly made su"bject to the 
 homestead exemption, though neither the debtor nor his wife 
 make application to the officer levying the execution, to set 
 off the homestead in the statute mode. The homestead, being 
 
 1 Wiggins V. Clianoe, 54 111. 175 ; Linton v. Quinly, 57 111. 273 ; Hill u. Ba- 
 con, 43 111. 478. 
 
 2 Day V. Graham, 6 111. (1 Oilman) 435 ; Roas v. Mead, 10 111. (5 Oilman) 171 i 
 Stewart v. Croes, 10 111. (5 Gilman) 442, and oases above cited. 
 
 3 12 111. 24. 
 
 4 Phelps V. Conover, 25 111. 313. 
 
 6 Mitchell v. Hay, 37 Ga. 581 ; Tucker v. Kenniaton, 47 N. H. 267. j 
 
321 ACTION AND PRACTICE. § 446 
 
 given by statute to the debtor in his own right, is not lost by 
 the neglect to make such application.^ 
 
 l^ov can a creditor lawfully seize and sell, on execution, 
 his debtor's right of redeeming the family homestead, or any 
 interest therein, where it does not exceed the statutory value. ^ 
 
 § 446. Sale of homestead premises — If occupied, sale 
 void. — In Illinois, in relation to executions, judgments, and 
 sales, where premises are occupied as a homestead, not ex- 
 ceeding the statutory value, they are not subject to levy and 
 sale, under execution, against the owner ; and should prem- 
 ises thus circumstanced be sold under such process, and — 
 there being no .redemption — a sheriff's deed made to the 
 purchaser, no title will pass thereby, and the sale will be 
 void, and the judgment and execution will be no lien on the 
 homestead as long as the debtor is in a position to claim the 
 benefits of the law. ' And when the_ homestead is thus sold, 
 and the creditor is in a position to claim the benefit of the 
 act, he may have the levy and sale set aside.^ 
 
 Even an abandonment of the homestead by the owner, after 
 the execution of the sheriff's deed, would not operate to ren- 
 der the void sale a valid one, and the purchaser could claim 
 nothing by reason of such abandonment.* But a party who 
 claims a homestead exemption, as against a sheriff's sale, 
 must show that the right existed when the judgment was ren- 
 dered and when the lien attached. It is not enough for him 
 to prove that it was hi_s homestead at the time of the levy 
 and sale.* 
 
 A sale of property, by a judicial officer, will not be set aside 
 except for such iregularities as manifestly produce injustice 
 
 1 Fletcher V. The State Capitol Bank, 37 N. H. 369. 
 
 2 Tuckei: V. Kenniston, 47 N. H. 267. 
 
 3 Deffeliz v. Pico, 46 Cal. 289 ; Dunn v. Tozer, 10 Cal. 167 ; Green v. Marks, 
 25 III. 221 ; Kendell v. Clark" 10 Cal. 17 ; Williams v. Young, 17 Cal. 403 ; Bar- 
 ton u. Drake, Sup. Ct. Minn., 1875, Cent. L. Jour., Vol. 2, 308, May 7th, 1875. 
 
 i Stevenson v. Morony, 29 111. 534 ; Hill v. Bacon, 43 111. 478 ; Dunn v. Tozer, 
 10 Cal. 167 ; Wiggins v. Chance, 54 111. 175 ; Linton v. Quiiuhy, 57 111. 273. 
 6 Wiggins V. Chance, 54 111. 175. 
 6 Eeinback v. Walter, 27 111. 393. 
 
 Homestead — 21. 
 
§§ 447-448 ACTION and practice. 322 
 
 and wrong. A party will not be permitted to remain until 
 long after the sale, and then, if it be to his interest, avoid it, 
 and if not, permit the purchaser to hold the property. 
 
 If, however, the sale of the property, in gross, produces 
 such inadequacy in price as to amount to great wrong and op- 
 pression, a Court of equity might entertain jurisdiction even 
 two or three years after the sale, and afford relief against the 
 purchaser, if he had not parted with the title, upon reasona- 
 ble cause being shown for the delay. ' 
 
 § 447. Where the debtor points out property to be 
 levied on, only reasonable accuracy required. — Where 
 the sheriff comes with an execution to make the amount by 
 levy on real property, and the debtor points out to him the 
 portion thereof he claims to have exempt, only reasonable ac- 
 curacy is required from the debtor. Thus, where a levy was 
 made on a tract of land, and the debtor claimed forty acres 
 off the west side of the south half as exempt, and it turned 
 out that his dwelling-house was mostly situated on the north 
 half of that tract, it was held that he intended by his selec- 
 tion to embrace the dwelling-house and forty acres corres- 
 ponding as nearly as possible to the government subdivision 
 which he had pointed out. 
 
 The debtor is required to state with reasonable certainty 
 what he claims as his homestead, that is, a sufficient claim to 
 the sheriff ; and if the execution creditor is dissatisfied with 
 the amount claimed, the sheriff must cause a survey to be 
 made, setting off the exempt property in a compact form, on 
 the part including the dwelling-house and its appurtenances.^ 
 
 g 448. False claim of homestead to part of land does 
 not vitiate levy on part assigned to creditor. — An officer 
 in levying an execution on a small parcel of land with a dwell- 
 ing on it, which the debtor claims as his homestead, and 
 which claim is allowed by the sheriff, and he sets off to such 
 debtor an undivided portion as a homestead, and the other 
 undivided part to the creditor in satisfaction of his claim, and 
 afterwards it is ascertained that the debtor had no estate of 
 
 1 Fergus v. Wood worth, 44 HI. 374. 2Herrick v. Graves, 16 Wis. 157. 
 
323 ACTION AND PRACTICE. § 449 
 
 homestead in the land, it was held, in Massachusetts, not- 
 withstanding the false claim, that the levy on the part as- 
 signed to the creditor was valid. ^ 
 
 A sheriff's sale is not invalid because not made expressly 
 subject to the estate of homestead. But as the sale would 
 necessarily be subject to the right of homestead w^hether so 
 declared or. not, the omission to make it so expressly does not 
 operate to invalidate the sale altogether.^ 
 
 § 449. Several judgments, and efFeet of, when home- 
 stead abandoned. — Where two judgments are recovered 
 against the owner of a homestead at different times, and an 
 execution issues on the junior judgment, and while that exe- 
 cution is in existence, and the debtor still in the occupancy 
 of the premises as a homestead, he and his wife release to the 
 plaintiff in the junior judgment their homestead right, and 
 such release is followed by a levy and sale under the execu- 
 tion ; subsequently, and alter the debtor has abandoned the 
 premises, an execution issued on the senior judgment, and 
 levied upon the premises, and they were sold : it was held 
 that upon the execution of the release of the homestead right, 
 the premises then for the first time became liable to levy 
 and sale, and the execution issued upon the junior judgment 
 being in existence, and a release followed by a levy and sale 
 thereunder, all the debtor's title passed to the purchaser at 
 that sale, and could not be defeated by any subsequent sale 
 under the senior judgment.' This result would necessarily 
 follow from the fact that a judgment and execution do not 
 create a lien upon the homestead of a judgment debtor as re- 
 gards the homestead value, and the owners may sell or mort- 
 gage it free from the lien ofthe judgment.* 
 
 But in case of the sale of the homestead under execution, 
 where the premises exceed the statutory quantity or value, 
 and there has been no release of the homestead right, thepur- 
 
 1 Bemia v. Drisool, 101 Mass. 418. 
 
 2 Swan V. Stephens, 99 Mass. 9. 
 
 3 Bliss V. Clark, 39 HI. 590. See the reasoning in the case in Bonnell v. Smith, 
 53 111. 377. 
 
 i Green v. Marks, 25 111. 221. 
 
§§ 450-451 ACTION AND PRACTICE. 324 
 
 chaser will have an equitable lien upon the surplus, which he 
 may enforce as soon as the premises cease to be homestead. 
 And upon the sale of the premises by such purchaser, the lien 
 will pass to his grantee. ' 
 
 Such release of the homestead claim by reason of abandon- 
 ment, acquisition of new homestead, change of domicile, etc., 
 may be shown by verbal testimony as tending to prove an in- 
 tention to change such domicile. Such intention is a matter 
 of fact, to be found by a jury. ^ 
 
 § 450. Pleadings to enforce contract to convey. — In a 
 
 suit against husband and wife to enforce their contract to 
 alienate the homestead, it is necessary that the petition should 
 show that the wife executed the contract in the mode pre- 
 scribed by statute. The privy examination, acknowledg- 
 ment, and declaration before the officer, as required by the 
 statute, are the essence and foundation of the obligation of 
 her deed, and facts so fundamental and so indispensable to 
 her liability on the contract cannot be supplied by presump- 
 tion or inference, but must be averred.' 
 
 § 451. Specific performance vrill not be decreed on 
 contract of husband alone. — In a suit against the hus- 
 band alone to enforce such a contract, specific performance 
 cannot be decreed against the husband on account of the rights 
 of the wife, though he may be liable for damages of breach 
 of contract, provided the contract to sell or some memoran- 
 dum of it is in writing, othenvise it would be void, and no 
 action would lie, therefore it is essential to aver an agree- 
 ment in writing.^ 
 
 So, in a suit by an administrator to recover possession of 
 premises deeded to his intestate by deed of gift, he set forth 
 the deed in which it was recited, " the property hereby con- 
 veyed shall be used as a homestead, and not otherwise. " Held, 
 
 1 Blue V. Blue, 38 111. 10. 
 
 2Hoitt V. Webb, 36 N. H. 158 ; Looke v. Eowell, 4:27. 
 
 3 Cross V. Evarts, 28 Texas 524 ; Pascal's Digest, Art. 1003, N. 427. 
 
 4 Bay v. Young, 13 Texas 552 ; Barton v. Drake, S. 0. Minn., 1875, Cent. L. 
 Journal, May 7th, 1875, Vol. 2, No. 19, p. 308 ; Cross v. Evarts, 28 Texas 524. 
 
325 ACTION AND PRACTICE. §§ 452-453 
 
 that it was necessary that its -occupancy as a homestead 
 should have been averred in the petition. ^ 
 
 § 452. In defenses to actions brought to enforce vend- 
 or's liens, in order to sustain such defense it is necessary to 
 allege that the premises were homestead when the debt 
 sought to be enforced was created. Thus, in Iowa, in an ac- 
 tion to enforce a vendor's lien, the defendant set up as a de- 
 fense that the property against which the plaintifl' was en- 
 deavoring to enforce the lien was their homestead, but the 
 answer did not clearly allege that it was a homestead when 
 the debt sought to be enforced was created. It was held 
 that a demurrer to the answer was properly sustained.^ 
 
 This rule will apply as well to the purchase of land adjoin- 
 ing the existing homestead to be used as part of such home- 
 stead, where the purchase-money is procured to be paid by a 
 third person as a loan to the purchaser. But it is otherwise 
 when the money is borrowed to pay a pre-existing debt.' 
 
 § 453. Contract of sale must be produced in enforcing 
 vendor's lien. — In an action to enforce the payment of a 
 note or other obligation given to the vendor as evidence of 
 his claim of lien, written evidence of the contract of sale of 
 the land must be produced, or where it is not produced the 
 cause of its non-production must be accounted for. The lien, 
 in such cases, is an incident growing out of the sale and 
 depending upon it. If there had been no sale there could be 
 no lien accruing, and if there had been a sale it must be 
 proven, and any other but written evidence of sueh sale 
 would be inadmissible under the statute of frauds. But if 
 the bond be not produced in evidence, or its contents admit- 
 ted, in the event of the defendant failing on notice to produce 
 it, or had it been lost or destroyed, then, but not till then, ia 
 it competent for the plaintiff to prove by parol that a note, or 
 other obligation upon which the action was founded, was giv- 
 en for the purchase-money.^ 
 
 1 Jolmson V. McDonald, 37 Texas 595. 
 
 2 Pratt V. Delevan, 17 Iowa 307. The homestead right is subservient to the 
 vendor's lien, Sec. 215, and oases, cited. 
 
 3 Austin V. Underwood, 37 111. 438. Sees. 218, 221, 223, and oases cited. 
 
 4 Farmer v. Simpson, 6 Texas 307. 
 
§§ 454-455 ACTION and practice. 326 
 
 § 454. No debtor is entitled to exemption as against a 
 vendor for realty sold, not even though an appraisement has 
 been made and confirmed by a Court, because such action is 
 not an adjudication of the debtor's rights.^ 
 
 Thus, in Georgia, whei-e an execution had been levied on 
 land which had been set apart as a homestead, the plaintiff 
 having made affidavit that the debt on which the execution 
 issued was for purchase-money, and the defendant filed a 
 counter-affidavit to the effect that to the best of his knowl- 
 edge and belief he paid the purchase-money for the land 
 levied on : held, that a demurrer to said counter-affidavit was 
 properly sustained.^ 
 
 So, in Texas, in the case of McCreery v. Fortson, noticed in 
 the chapter on Liens, where, after the death of the purchaser, 
 the land not being entirely paid for, the Probate Court set 
 aside a portion of the land as a homestead for the family ; 
 afterwards, under a decree of the District Court, the entire 
 tract of land was sold for the payment of the purchase-money, 
 noth withstanding the action of the Probate Court.' 
 
 It is not sufficient to make a judgment a lien upon a home- 
 stead (otherwise than as a mechanic's lien) to show that it was 
 for materials furbished and labor performed on the homestead 
 property. It is essential to show that the liability arose be- 
 fore it was occupied as a homestead.* 
 
 § 455. Liability of sheriff. — Where premises are levied 
 upon and sold by the sheriff" which are occupied by the debt- 
 or and his family as a homestead, the sale being totally void, 
 and as no damage can result from such sale, no action for dam- 
 age^ will lie against the sheriff.' 
 
 But where an execution has been placed in the hands of the 
 sheriff for levy and sale, it will not excuse him for failing to 
 sell, to show that a third person, not the defendant, has taken 
 a homestead on the land against which the execution was 
 
 1 Ulrioh's Appeal, 48 Penn. St. (12 Wright) 489. 
 
 2 MoGhee v. Way, 46 Ga. 282. 
 
 3 McCreery i>. Fortson, 35 Texas 641. 
 
 4 Delevan v. Pratt, 19 Iowa 429. 
 
 5 Kendall u. Clark, 10 Cal. 17. 
 
327 - ACTION AND PRACTICE. § 456 
 
 issued. And where he sets up such fact as his only excuse in 
 answer to a rule to show cause why he should not he com- 
 pelled to pay the amount of the execution to the plaintiff, a 
 rule absolute will be granted against him for the value of the 
 land, if such value be less than the execution, otherwise for 
 the amount of th-e execution.^ 
 
 A sheriff who was notified in writing that an execution 
 placed in his hands was founded on a debt which was for the 
 purchase-money of land claimed as a homestead, and having 
 failed to enforce the execution, he was held to be liable to the 
 execution creditor for the value of the land he was notified to 
 levy on and sell — the value of the land, and not the amount 
 due on the execution, being the true measure of the damage 
 which the plaintiff sustained by the failure of the sheriff to 
 perform his legal duty.^ 
 
 In Georgia, if at the time of the sale of the land by the 
 sheriff an application be pending for a homestead in favor of 
 the family of the defendant, and notice thereof is given at 
 the sale, the purchaser buys subject to the homestead.^ 
 
 § 456. Right of the -wife to maintain an action to pro- 
 tect the homestead. — In many of the States it is held that 
 the wife cannot maintain an action in her own name for 
 the protection of the homestead. Yet the avowed object of 
 the exemption is for the benefit of the wife and children. 
 The husband cannot alienate the homestead, or in any way 
 depi'ive the wife of the right of enjoyment, without her con- 
 sent. Yet if by any means the husband succeeds in disposing of 
 the homestead, and delivers the possession to a third person 
 and refuses to sanction proceedings for its restoration, the wife 
 is powerless to assert the right, ifo satisfactory reason ex- 
 ists why the wife should not in all cases be allowed to assert 
 and protect her right in the homestead. The simple right is 
 of little avail if she cannot assert that right. If she has to 
 wait till the disability is removed by the death of her husband, 
 
 1 Blaokman v. Clement, 45 Ga. 292. 
 
 2 Baker v. Bower, 44 Gra. 14. 
 
 3 raircloth v. St. Johns, 44 Ga. 603 ; Blivins v. Johnson, 40 Ga. 298 ; Kilgore 
 V. Beck, 40 Ga. 296. 
 
§ 456 ACTION AND PKACTICB. 328 
 
 before she can assert the right, the claim may be of little ben- 
 efit to her. 
 
 In Texas, it is held that a suit for the recoveiy of the 
 homestead property cannot be maintained by a married wo- 
 man in her own name, her husband being no party to the 
 suit, even if the husband has sold it in disregard of his wife's 
 wishes and against her consent, and refuses to institute suit to 
 recover it. ' 
 
 The same rule obtains in California. The reason of the rule 
 is sa'id to be because "the homestead is a joint estate of hus- 
 band and wife, with a right of survivorship, that it is neither 
 common property which would enable the husband to sue 
 alone, nor is it the separate estate of the wife, which would 
 enable her to sue alone. Both husband and wife must there- 
 fore join. The right cannot be individually asserted by 
 either. "2 
 
 But where the husband has appeared she will be permitted 
 to file a separate answer.' 
 
 The laws of both Tennessee and "Wisconsin provide that 
 a conveyance of the homestead property by the husband, 
 without the wife joining in the conveyance, is void ; yet in 
 Wisconsin the Court held that where the husband had assign- 
 ed certain school land certificates, one of which covered the 
 homestead occupied by the family, and after such assignment 
 abandoned his wife and family, the wife could not maintain an 
 action to set aside such assignment of the certificates covering 
 t he homestead, on the ground that, being a married woman, 
 she had no capacity to sue, and dismissed her bill, but intimat- 
 ed that she could perhaps maintain possession of the home- 
 stead against the assignee or holder of the certificate.^ 
 
 While, in Tennessee, the Supreme Court, in the case of 
 
 1 Murphy v. Coffee, 33 Texas 508 ; Green v. Lyndes, 12 "Wis. 404. 
 
 2 Poole V. Gerrard, 6 Cal. 71 ; Marks v. Marsh, 9 Gal. 96 ; Revalk v. Eraemer, 
 8 Cal. 66. 
 
 3 Sargent v. "Wilson, 5 Cal. 504 ; Moss ^>. "Warner, 10 Cal. 296 ; Bartholome-w v. 
 Hook, 23 Cal. 279 ; Lyon v. Welsh, 20 Iowa 578 ; Houghton v. Lee, Sup. Ct. 
 Cal., July Term, 1875. 
 
 4 Green v. Lyndes, 12 "Wis. 404. Per contra, see Bartholomew v. Hook, 23 
 Cal. 277 ; Houghton v. Lee, Sup. Ct. Cal., July, 1875. 
 
329 ACTION AND PRACTICE.^ § 456 
 
 Paralee Williams, by next friend, v. J. B. Williams et al.,^ 
 decided that a conveyance of the homestead property by the 
 husband, without the wife joining, was absolutely void ; and 
 that such conveyance nevertheless so far endangers the rights 
 of the wife, that she may maintain a bill in equity to remove 
 the cloud from the title and have her .homestead rights de- 
 clared. After stating that the laws and constitution secure a 
 homestead in the possession of each head of family, and ex- 
 empt the same from sale imder legal process during the life of 
 such head of family, the Court proceeds to say : " The plain in- 
 tention of this provision is not merely to protect the husband, or 
 the head of the family, in the possession and enjoyment of the 
 homestead, but the protection of the interests of the wife* and 
 the minor children constituted a leading consideration for 
 the adoption of the provision. The fact is apparent by the 
 prohibition against the alienation of the property without 
 the joint consent of husband and wife, when that rela- 
 tion exists. To give complete protection to the wife and 
 children, the homestead is not only exempt from reach of 
 creditors of the husband, but he is deprived of the power to 
 defeat the enjoyment of the homestead by his wife and chil- 
 dren, by selling and conveying it, except by deed in which she 
 joins. And the legislature, in giving legislative effect to those 
 provisions," (of the constitution) " requires that the convey- 
 ance shall be regulated by the laws as to the conveyance of 
 land by married women ; that is, the conveyance can be ef- 
 fective only upon privy examination of the wife." (Code, 
 Sec. 2114.) 
 
 " It is manifest, from these constitutional and legislative 
 provisions, that while possession of the homestead is the essen- 
 tial feature in the exemption from sale under legal process, or 
 by deed of the husband, the wife is recognized as having a 
 present, subsisting, and continuing interest in the maintenance 
 
 1 AprU Term, 1874, Cent. L. Journal, Sept. 24, 1874. Walbers v. The People, 
 21 m. 178. We may be permitted to suggest that the practice of requiring 
 a married woman to sue by "next friend " is a very unnecessary proceeding. 
 No good or valid reason can be assigned for the continuance of such fictions of 
 law. If the wife has any rights she should be allowed a remedy, and that 
 directly in her own proper person, without the intervention of third persons or 
 fictions of law. 
 
§ 456 ACTION AND PEACTICE. 330 
 
 and preservation of the benefits of their possession, and that 
 she has such a right in the land, connected with the right of 
 possession, that when that right is violated she is entitled to 
 claim the protection of the Courts. 
 
 " In the present case, the husband has undertaken, in contra- 
 vention of the express prohibition of the constitution and the 
 statute law, to convey the entire title of the homestead tract, 
 without the consent and against the will of the wife. It is 
 now a rule of property, made permanent by the fundamental 
 law, that every head of family is deprived of the right to 
 alienate the homestead unless his wife joins in the conveyance. 
 It follows that such conveyance is absolutely void, and com- 
 municates no title to the purchaser, so far as it abridges or 
 interferes with the wife's homestead right ; and the wife, by 
 her next friend, has such interest in the preservation of the 
 homestead as entitles her to invoke the protection of a Court 
 of chancery, by bill to quiet title, to have the cloud upon her 
 rights removed, and her homestead rights declared." 
 
 According to the case in Wisconsin, there is an unquestion- 
 able legal right secured, by positive enactment, to married 
 women, yet they are without a remedy in the very case where 
 a remedy is most required.^ In the State of Mississippi, the 
 rule as announced in Wisconsin is followed, the Court holding, 
 under the statute of that State, that the wife has not such an 
 interest in the homestead during the lifetime of the husband, 
 as that she can appeal to a Court of equity for its protection, 
 and that the husband has the power to alienate the home- 
 stead without the concurrence of the wife.^ It is hard to per- 
 ceive the reason of the rule, which holds that where the hus- 
 band abandons his wife, and withdraws his care and protec- 
 tion from her, that in law she is worse off than where the 
 husband dies ; for in either case the husband is virtually dead 
 to her. Yet this is the apparent state of the law in Wiscon- 
 sin, for the Court held, in the case of McCabe v. Mazzuchelli,* 
 
 1 See also the oaae of Taylor i;. Hargous, 4 Cali 273, and the reasoning of the 
 Court in that case. Also, see Bartholomew v. Hook, 23 Gal. 277. 
 
 2 Thorn V. Thorn, 45 Miss. 263 ; Cook v. MoChristian, 4 Cal. 25 ; Mosa v. "War- 
 ner, 10 Cal. 298. 
 
 3 13 Wis. 478, 480. 
 
331 ACTION AND PRACTICE. § 456 
 
 which was an action of ejectment, thalt where a man held 
 land under a certificate of school and university land commis- 
 sioners, for which he had paid, but had not received a patent 
 or conveyance, and who used the said land as his homestead, 
 (his wife and child continuing to reside thereon till com- 
 mencement of the suit, he having died in the meantime in Cal- 
 ifornia) conveyed all his interest and title to a third person 
 without the signature and consent of his wife, it was held 
 that such conveyance was void.' 
 
 Where the husband has abandoned his wife, leaving her in 
 possession of the homestead, but failing to provide any sup- 
 port for her, if she be wrongfully ousted from the possession of 
 the homestead, she is entitled to a standing in Court to main- 
 tain a suit in her own name for the assertion of her rights in 
 respect of her homestead, and that even during the lifetime 
 of her husband.^ 
 
 So, in Michigan, Nevada, and Iowa, the more equitable and 
 reasonable rule prevails : the wife is permitted to sue in her 
 own name, and maintain her homestead rights. 
 
 Thus, in Michigan, where a married man was in possession 
 o£, land under a contract to purchase, and surrendered such 
 contract without the consent of the wife, it was held that such 
 surrender was invalid, and that the wife might file, a bill in 
 equity in her own name, and have a specific performance of 
 the contract.* 
 
 In Nevada, it is held that the constitution and the law hav- 
 ing given the wife certain rights, she can always assert those 
 rights, and this is so even where the legislature has failed to 
 point out any particular manner in which she shall assert 
 them. " She may come into a Court of equity according to 
 the established forms and usages of that Court, and obtain 
 any equitable relief to which she is entitled." ■" 
 
 In Iowa, the same liberal interpretation of the statutes in 
 relation to the wife's right of being heardj in protecting her 
 
 1 See also, to same effect, Barton v. Drake, Sup. Ct. Minn., 1875, reported in 
 Cent. L. Jour., Vol. 2, No. 19, p. 308. 
 
 2 Love V. Moyneham, 16 111. 277 ; Mix v. King, 55 HI. 438 ; Smith v. Kehr, 
 2 Dillon 63. 
 
 SMoKee v. Wilcox, 11 Mich. 358. 
 
 i Goldman v. Clark, 1 Nev. 607 ; Mix v. King, 55 111. 438. 
 
§ 456 ACTION and' practice. 332 
 
 homestead rights, finds expression in the decisions of the 
 Courts of that State. Thus, where the wife claimed the 
 right to redeem the homestead from foreclosure sale, which 
 was resisted on the ground that she had no title in the prop- 
 erty,^ the Court, in decreeing her right to redeem, said : 
 " The right of the wife to the homestead of the hushand, and 
 her interests in it, are present, fixed, and substantial : they 
 are not merely possible, remote, or contingent. Her rights 
 and interests are in possession and enjoyment, and not merely 
 in expectancy or dependent. The husband and wife are, as 
 to the homestead, practically joint tenants, subject to certain 
 limitations for the benefit of children, etc. The husband 
 cannot alienate the homestead, nor even his own interest in 
 it, exc ept the wife concur in signing the conveyance. Can it be 
 said that she has no ' interest in ' that, the present possession 
 of which she enjoys, the title to which cannot be imparted 
 without her consent, and the alienation of which can only be 
 done by her joining in the conveyance ? " ^ 
 
 So, in Missouri, it is held, per Dillon, J., in a bankruptcy 
 case, that, "if it be necessary that the exemption (home- 
 stead) should be applied for in the name of the husband, the 
 Court would allow her (the wife) to apply in his name, " (the 
 husband had fled the country) so as to prevent the amount 
 from going into the hands of the assignee.' 
 
 1 The claim of the wife to redeem the homestead was urged under a statute 
 of that State, which authorizes the property of a married woman to be redeemed 
 from tax sale at any time within one year after the removal of the disability of 
 coverture. 
 
 2 Adams v. Beal, 19 Iowa 67 ; Chase v. Abbott, 20 Iowa 154. 
 
 3 Smith V. Kehr, 2 Dill. 63. 
 
333 EXEMPTIONS UNDER BANKRUPT LAW. § 467 
 
 • CHAPTEE XIII. 
 
 EXEMPTIONS UNDER THE BANKRUPT LAW. 
 
 1. Realty. 
 
 2. Personalty 
 
 § 457. The several statutes passed. — The fourteenth 
 section of the United States Bankrupt Law of March 2d, 
 1867,^ excepts from the operation of the assignment of a bank- 
 rupt's estate his necessary household and kitchen furniture, 
 and such of his other articles and necessaries, not exceeding 
 in value in any case $500, as shall be designated and set apart 
 by the assignee, having reference in the amount to the bank- 
 rupt's family, condition, and circumstances ; also, his wearing 
 apparel and that of his wife and children, and his uniform, 
 arms, and equipments, if he is or has been a soldier in the 
 militia, or in the service of the United States, and such other 
 property as is or shall be exempt from attachment or execu- 
 tion by the laws of the United States, and such other prop- 
 erty, not included in the foregoing exceptions, as is exempted 
 by the laws of the State in which he is domiciled,i;o an amount 
 not exceeding that allowed by such State exemption laws in 
 force in the year 1864. "And in no case shall property here- 
 by exempted pass to the assignee, or the title of the bankrupt 
 thereto be impaired or affected by any of the provisions of 
 this act." 
 
 By an amendatory act, passed on the 8th of June, 1872, 
 this provision was changed so as to give the bankrupt the 
 benefit of exemptions under State laws in force in 1871. 
 
 On the 3d of March, 1873, Congress passed another act, re- 
 lating to the same subject-matter as follows : 
 
 1 14 U. S. stats. 522, 52y. 
 
§ 458 EXEMPTIONS UNDER BANKRUPT LAW. 334 
 
 " That it was the true intent and meaning of an act, ap- 
 proved June 8th, 1872, entitled, etc., that the exemptions al- 
 lowed the bankrupt by the said amendatory act should, 
 and it is hereby enacted that they shall, be the amount al- 
 lowed by the constitution and laws of each State respectively 
 as existing in the year 1871; and that such exemptions be 
 valid against debts contracted before the adoption and pas- 
 sage of such constitution and laws, as well as those contracted 
 after the same, and against liens by the judgment or decree 
 of any State Court, any decision of any such Court rendered 
 since the adoption and passage of such constitution and laws 
 to the contrary notwithstanding. ' ' 
 
 § 458. This Act of March 3d, 1873, has been held to be 
 
 unconstitutional and void on several grounds, as follows : 
 
 1st. To declare what the law is, or has been, is a judicial 
 function.' 
 
 2d. It is unconstitutional and void in so far as it attempts to 
 exempt property from execution issued upon "debts con- 
 tracted before the adoption and passage of such constitution 
 and laws,", or from "liens" of "judgment or decree of any 
 Court." 
 
 3d. It does not provide "that the exemption laws as they 
 exist shall be operative, and have effect under the bankrupt 
 law, but that in each State the property specified in such' 
 laws, whether actually exempted by virtue thereof or not, 
 shall be excepted. It in effect declares by its own enactment 
 without regard to the laws of the State," that there shall be 
 one amount or description of exemption in one State, and an- 
 other in anothei- State. ^ 
 
 It also changes existing rights between debtor and cred- 
 itor,^ but held constitutional as to all eases where petition in 
 bankruptcy was filed after the passage of the Act. ^ 
 
 1 In re Dillard, 9 Bank Reg. 8 ; Oooley Const. Lim. 94. 
 
 2 In re Deokert, 13 Am. Law Eeg. 624; Gunn v. Barry, 15 Wallace 
 610 ; Homestead Cases, 22 Grattan 266 ; In re Dillard, Nat. Bank. Reg., Vol. 9, 
 p. 8. Per contra, see In re Jordan, 8 Bank. Eeg., 180, per Dick, J. In re Kean, 
 8 Bank Eeg. 467, per Rives, J. In re Smith, Id. 401, 427 ; Walker v. White- 
 head, 16 Wallace 314 ; Olcott v. SuJ)erTisors, 16 Wallace 678. 
 
 3 In re Jared, Everett, 9 Nat. Bank. Keg., 90. 
 
335 EXEMPTIONS UNDER BANKEUPT LAW. §§ 459-460 
 
 § 459. Practice and proceedings in United States 
 Courts.— The Act of Congress of May 19th, 1828, Sec. 3,^ 
 had provided that the proceedings on execution in the Courts 
 of the United States should be the same as were then used 
 in the Courts of each State ; and had empowered the Courts 
 of the United States by rules of practice to make such pro- 
 ceedings conformable to any changes thereafter adopted by 
 the legislation of the respective States. Through this act, and 
 subsequent rules of practice adopted as authorized by it, the 
 practice in the Federal and State Courts in 1864 was in gen- 
 eral the same as to the exemption of the property of debtors. 
 The laws of the several States exempted personal property to 
 an amount varying in value from $100 to |2,000, and exemp1> 
 ed real property" extending in value from |300 to $5,000. In 
 several of the States since the year 1868, the real estate ex- 
 emption may exceed in value this last sum, as by recently 
 adopted constitutions, any increase in value after selection or 
 improvements shall not subject the homestead to forced sale, 
 even though it subsequently exceeds the maximum allowed 
 when such selection was made.'' 
 
 § 460. Constitutionality of clauses adopting the exemp- 
 tion la-ws of the several States. — The constitutionality of 
 that part of the fourteenth section of the bankrupt act 
 adopting the exemption laws of the several States has been 
 called in question, and in a number of decisions has been sus- 
 tained, on the ground that it enacted a uniform rule in allowing 
 a bankrupt the exemption, as to amount and the estate out 
 of which it was to be taken, and the description of person to 
 whom it was to be allowed, as fixed by the State laws in force 
 on the passage of the bankrupt act. ^ 
 
 1 4 U. S. stats. 281. 
 
 2 Texas — Constitution and Act of August 15th, 1870. Kansas — In re Tertel- 
 ling, 2 Dill C. 0. R. 339. Nebraska— Bartholomew v. West, 2 Dill 0. C. E. 
 291. Georgia — Constitution of 1868, real estate, $2,000 ; personal property, 
 $1,000. Florida — Constitution of 1868, in country, 160 acres ; town, one-half 
 acre, with improvements, and $1,000 personal property. In Kansas, real es- 
 tate, $5,000 ; personal property, $2,000. 
 
 3 Ex parte Beckerford, 1 Dill. C. C. R. 45. In re Daniel Deckert, 13 Am. L. 
 Keg. 624 ; In re Geo. "W. Dillard, 9 Bk. Eeg. 8. See also Peck v. Jenness, 7 
 Howard 612 ; In re Appold, 7 Am. L. Eeg. 624. 
 
§ 460 EXEMPTIONS UNDER BANKEUPT LAW. 336 
 
 Waite, C. J., ia delivering the opinion of the Court in the 
 case of Deckert, after quoting Art. 1, Sec. 8, of the Constitu- 
 tion of the United States in relation to Congress havinff the 
 power to."estabhsh uniform laws on the subject of bank- 
 ruptcies throughout the United States," said : "A bankrupt 
 law, therefore, to be constitutional must be uniform. What- 
 ever rules it prescribes for one it must for all. It must be 
 uniform in its operations, not only within a State, but within 
 aud among all the States. If it provides that property ex- 
 empt from execution shall be exempt from assignment in one 
 State, it must in all. If it specially sets apart for the use of 
 the bankrupt certain property or certain amounts of property 
 in one State, without regard to exemption laws, it must do 
 the same in all. If it provides that certain kinds of property 
 shall not be -assets under the law in one place, it must make 
 the same provision for every other place within which it is to 
 have effect." 
 
 "The power to exempt from the operation of the law, prop- 
 erty liable to execution under the exemption laws of the sev- 
 eral States, as they were actually enforced, was at one time 
 questioned, upon -the ground that it was a violation of the 
 constitutional requirement of uniformity ; but it has thus far 
 been sustained, for the reason, that it is made a rule of the 
 law to subject to the payment of debts, under its operation, 
 only such property as could, by judicial process, be made availa^ 
 ble for the same purpose. This is not unjust, as every debt 
 is contracted with reference to the rights of the parties under 
 existing exemption laws, and no creditor can reasonably com- 
 plain if he gets his full share of all that the law, for the time 
 being, places at the disposal of creditors. One of the efl'ects 
 of a bankrupt law is that of a general execution issued in fa- 
 vor of all the creditors of the bankrupt, reaching all his prop- 
 erty subject to levy, and applying it to the payment of all his 
 debts, according to their respective priorities. It is quite 
 proper, therefore, to confine its operation to such property as 
 other legal process could reach. A rule which operates to 
 this effect^ throughout the United States, is uniform within 
 the meaning of that term, as used in the Constitution." 
 
337 EXEMPTIONS UNDER' BANKRUPT LAW. § 461 
 
 In the case of Ex parte Beckerford,^ Krekel, J., after dis- 
 cussing the other questions presented in the case, said : " The 
 second question presented and urged with earnestness is the 
 unconstitutionahty of that part of Sec. 14 of the bankrupt 
 law making the homestead exemption." "It is insisted that 
 the fourteenth section, already cited, having adopted the ex- 
 emption laws of the State in which the bankrupt is domi- 
 ciled, and these exemptions having no regard to uniformity, 
 violate the constitutional provision authorizing uniform laws 
 throughout the United States to be passed. It is obvious, 
 from the language employed, that the uniformity here referred 
 to was a uhiformity among the States. If Congress saw cause 
 to pass bankrupt laws under the grant of power referred to, 
 the injunction is that they shall be uniform throughout the 
 United States. So far as the distribution of the bankrupt's 
 assets — the point under consideration — is concerned, the law 
 is uniform. When viewed with reference to the State exemp- 
 tion laws, there is a uniformity which, on reflection, readily 
 suggests itself. Though the States vary in the extent of their 
 exemptions, yet what remains the bankrupt law distributes 
 equally among the creditors. 'Nov does the bankrupt law 
 in any way vary or change the rights of the parties. All 
 _ contracts are made with reference to existing laws, and no 
 creditor could recover more from his debtor, under the State 
 laws, than the unexempted part of his assets — the very thing 
 that is attained by the bankrupt law, which, therefore, is 
 strictly uniform." 
 
 § 461. ^Construction of statutes under bankrupt la-w. 
 
 The Courts of the United States in bankruptcy matters, in 
 dealing with State exemptions, follow theinterpretation giv- 
 en to such State exemption laws by the Courts of the State 
 where the bankrupt has his domicile.^ Thus in the case of 
 In re Dillard,' Bond, J., said: "The Supreme Court of the 
 
 1 1 Dill. c. 0. 45. 
 
 2 la re Tertulling, 2 Dillon 341, U. S. C. C, E. Dist. Va., OotVsi, 1873 ; Ed- 
 monston v. Hyde, 7 Bank. Reg. 4, per Sawyer J. ; Sup. Court U. S., per Keld J., 
 in Maesey v. Allen, 7 Bank. Reg. 401. '' 
 
 3 9 Bk. Reg. 8. 
 
 Homestead — 22. 
 
§§ 462-464 EXEMPTIONS UNDER BANKRUPT LAW. 338 
 
 ■ State has determined there is no property in Virginia ex- 
 empt from levy and execution upon debts created antecedent 
 to the passage of that statute, and, therefore, there can be 
 none under the bankrupt law which follows the exemption 
 laws of the States." 
 
 g 462. The policy of the bankrupt act is that the 
 bankrupt shall not be put in any worse condition than that 
 previously occupied by him under State exemption laws, and 
 to extend to him the benefits of its own provisions in relation 
 to the exemptions allowed. 
 
 "Its manifest purpose is to leave him on the surrender, of 
 all his assets for the benefit of his creditors, a sufficient 
 amount aqcording to his condition in society, not to be re- 
 duced to instant and abject destitution, whereby he, and it 
 may be, his dependent and helpless family, are stripped of 
 food and home, and the means of procuring either." ^ 
 
 § 463. Liberal construction given to exemption clause 
 of bankrupt act. — The Federal Courts in construing the 
 exemption clauses of the bankrupt act treat them liberally ; ^ 
 "in view of their benevolent and humane character," they 
 " are entitled to be liberally viewed by the Courts."' 
 
 g 464. Jurisdiction of U. S. Courts. — When the United 
 States Courts, under the bankrupt act, have acquired juris- 
 diction of the estate of a bankrupt, the State Courts lose 
 jurisdiction of all claims against him provable under the 
 bankrupt act, except specific liens.* 
 
 But it would seem that such jurisdiction is not exclusive of 
 the right of the assignee in banki'uptcy (who acquires title 
 and right of possession of property under the bankrupt act) 
 
 1 Chicago Legal News, Not. Uth, 1874, p. 62. 
 
 2 la re Williams, 5 Law Reporter 155, IT. S. C. C. Mass. 
 S Cox V. Wilier, 2 Dillon 49. 
 
 4 Baokman v. Packard, 2 Sawyer C. C. E. 264; In re Quinike, 2 Bissell C. 
 0. R. 354 ; Stemmons v. Burford, 39 Texas 352 ; In re Merchants' Insurance 
 Co., 3 Bissell C. C. R. 162 ; Martin v. Berry, 37 Cal. 208 ; Van Nostrand v. Oarr, 
 30 Ml. 128. 
 
339 EXEMPTIONS UNDER BANKRUPT LAW. § 4B5 
 
 to sue in a State Court, as for the recovery of property trans- 
 ferred in fraud of that act.* 
 
 A sale under execution out of a State Court, pending pro- 
 ceedings in bankruptcy of judgment debtor, passes no title.' 
 
 Yet it is said, in aiiother case, that a State Court has no 
 jurisdiction of a bill in equity, filed by an assignee in bank- 
 ruptcy, or to set aside a conveyance made by a bankrupt in 
 fraud of the act. " Courts of equity must have complete con- 
 trol over all the matter in controversy, directly or by coercion 
 of the parties ; and when this does not exist, as in the case of 
 an assignee, jurisdiction will be denied." " The jurisdiction 
 of the Courts of the United States are exclusive."' 
 
 § 465. Where specific liens have been created by pro- 
 ceedings in the State Courts, before the proceedings in 
 bankruptcy have been instituted, the U. S. Courts will not in- 
 terfere on behalf of the bankrupt in restraining the sale of 
 such property under such lien. Thus, where a bankrupt ap- 
 plied to the Court in bankruptcy for an order to the assignee, 
 requiring him to set apart certain real estate as his homestead, 
 and for an injunction restraining a creditor — ^who had recovered 
 a judgment and issued an execution thereon prior to the bank- 
 ruptcy — from proceeding to sell the property,, the appli- 
 cation was denied. The reasons assigned were, that if the 
 property in question was, and is, a homestead, the title is 
 unaffected by the bankrupt act. If it is not a homestead, 
 the creditor who has a lien to its full value is the only 
 person interested to establish the fact. If it has been wrong- 
 fully seized in execution, the bankrupt has the same rights 
 before the State tribunals as any other person whom it is 
 sought to deprive of a lawful homestead.* 
 
 1 Cook u. Waters. 9 Bank Keg. 155 (Court of Appeals, N. Y.) ; Johnson u. 
 Bishop, 11 Woolworth's C. C. K. 324. See, also, Martin v. Berry, 37 Oal. 208 ; 
 In re Dillard, 13 Am. Law Beg. 624. As to the right of the assignee to sue in 
 the State Court, rights and powers of the assignee, and jurisdiction of the State' 
 and Federal Courts, discussed by Justice Miller of U. S. C; Johnson v. Bishop, 
 1 Woolworth 324. 
 
 2 Stemmons v. Burford, 39 Texas 352. 
 
 , S^Voorhia v. Friable, 12 Am. Law Beg. 108, Feb., 1873. 
 i Moore v. Morrow, 28 Cal. 551 ; In re Hunt, S Bank Reg. 493. 
 
§§ 466-467 EXEMPTIONS XINDBK BANKRUPT LAW. 340 
 
 § 466. Specific lien under State la-w .valid as to ex- 
 empt property, though giving preference to creditors. 
 
 So, in the case of Rix v. Capitol Bank,^ it was held, under 
 the provisions of the constitution of Kansas in relation to the 
 homestead exemption, that the title to property occupied by 
 a bankrupt and his family as a residence, at the time of the 
 filing of the petition in bankruptcy, did not pass to or vest in 
 the assignee, but remained in the bankrupt ; therefore the 
 assignee had no standing in Court upon a bill filed to have a 
 prior mortgage, otherwise valid, set aside, because it gave a 
 .preference, contrary to the thirty-fifth section of the bankrupt 
 act ; nor- to restrain the foreclosure of such mortgage in the 
 Courts of the State. Dillon, Circuit J., said : " The property 
 in question being admitted to be the homestead of the bank- 
 rupt at the time of the commencement of the proceedings in 
 bankruptcy, and as such being exempt by the constitu- 
 tion of the State 'from forced sale under any process of law,' 
 the same was ' exempted ' by the bankrupt act ' from the 
 operation of the provisions ' of that section, and the ' title ' 
 thereto did not ' pass to the assignee,' nor was the title of the 
 bankrupt thereto impaired or affected by the provisions of 
 the bankrupt act." 
 
 The laws of Kansas recognizing the validity of a lien on 
 the homestead given by husband and wife, the mortgage 
 so executed within four months of the proceeding in bank- 
 ruptcy is not void as giving preference to creditors. " Such 
 mortgage did not affect the right of the owner of the home- 
 stead to exemption, which, as against general creditors, and 
 as against the assignee, continued to exist, notwithstanding 
 such mortgage." 
 
 § 467. Acquisition of homestead by fraudulent means 
 as against creditors. — The acquisition of a homestead by a 
 debtor, even though he applies the moneys arising from sales 
 of goods or property, which of right belong to his creditors, 
 to pay off' liens on such homestead, will not invalidate such 
 acquisition. 
 
 1 2 Dill. C. C. 369 ; Sohlitz y. Sohatz, 2 Bias. C. C. 248. 
 
341 EXEMPTIONS UNDER BANKRUPT LAW. § 468 
 
 Thus, where in November, 1866, a bankrupt purchased 
 property and claitned as a homestead, for the sum of $3,000, 
 borrowing $2,000 on mortgage on the property, and raising 
 f 1,000 on his note. On the 6th of December following, he 
 sold his entire personal estate for $3,000,- and with the pro- 
 ceeds paid the mortgage and note. On January 12th, he de- 
 clared the real estate homestead, in accordance with the laws 
 of the State of California. At the time this declaration was 
 made he was indebted in the sum of $2,056, from which in- 
 debtedness, under this state of facts, he applied to the Bank- 
 rupt Court to be discharged. 
 
 Held, per HoflFman, J. , upon the authority of Eandall v. ' 
 Buffington,' and Culver v. Rogers,^ " that under the laws of 
 California, the exemption of the homestead from forced sale 
 remains, notwithstanding that an insolvent has devoted mon- 
 eys which equitably belong to all his creditors, to the pay- 
 ment of a debt which was a lien on the homestead. A gen- 
 eral creditor of an insolvent cannot subject a homestead to 
 liabilities for his debts, notwithstanding that the insolvent 
 had applied property in his hands to the payment of a debt 
 which was a lien on the homestead."^ 
 
 § 468. Fraudulent assignment of title to vrife of 
 claimant, not estopped from claiming homestead. — ISTor is 
 the homestead claimant estopped from claiming a homestead 
 in property where a bond for title to the land was taken in 
 the name of a firm of which the claimant was a member, and 
 on which he builds a house, making it his home. The firm 
 assigned the bond for title to this lot to the father of the 
 claimant bankrupt, who procured the legal title, and there- 
 upon conveyed the property to the bankrupt's wife without 
 consideration, after the bankruptcy of the firm of which the 
 husband was a member. 
 
 It was contended that if the husband ("West, of "West & 
 Lewis) were otherwise entitled to the homestead, the right 
 had been lost by reason of the fraudulent assignment of the 
 
 llOCal. 493. 2 28Cal. 526. SInre Henkel, 2 Sawyer, 0. C. 305. 
 
§ 469 EXEMPTIONS UNDER BANKRUPT LAW. 342 
 
 title bond to his father, and the subsequent conveyance to the' 
 wife. 
 
 Dillon, J., said : " If it had appeared in the other suit (set- 
 ting aside the' conveyance to the wife as fraudulent) that the 
 property was exempt as a homestead, and that the creditors 
 had no claim upon it, the Court would undoubtedly have dis- 
 missed the bill of the -assignee. But I have elsewhere held^ 
 that where a fraudulent conveyance is made and set aside at 
 the instance of the assignee, the husband or head of family 
 is^ot estopped to set up the right of homestead exempt." 
 
 " Where the assignee apphed for an order to sell the prop- 
 'erty, it was competent for the husband to resist it, as he did, 
 on the ground that the property was his homestead, and ex- 
 empt as such." 
 
 It was further held, that the right to such exemption was 
 not lost by the delay of the husband to claim it until an order 
 is applied for by the assignee in bankruptcy to sell it for the 
 benefit of the estate.^ 
 
 § 469. Homestead property conveyed to son in fraud 
 of creditors. — So, in the case of Penny v. Taylor,' where the 
 father conveyed homestead property to his son in fraud of 
 creditors, it was said that although a conveyance by a father 
 to his son may be void as to creditors on account of fraud, 
 nevertheless the father is not thus deprived of his homestead. 
 
 The general rule seems to be that the fi'audulent convey- 
 ance of the homestead by a bankrupt does not estop him 
 from claiming such homestead in the premises, after such con- 
 veyance has been annulled and decreed as fraudulent and 
 void as to creditors.^ 
 
 Thus, M and wife conveyed their farm to their daugh- 
 ter on the 2d of December, 1869 : subsequently, M was 
 
 1 Cox V. "Wilder, 2 Dill. 45. 
 
 a Bartholomew v. West, 2 Dill. 293. 
 
 3 Penny v. Taylor, 10 Bank. Beg. 203. 
 
 * McFarland v. Goodman, 13 Am. Law Keg. 697 ; Pacific L. Bep., June 23d, 
 1874 ; In re Pratt, Mich. U. S. Dist, Court ; also in Cent. Law Journal, June 
 11th; 1874 ; In re Detret, 14 Am. L. Beg. 166 ; Volger v. Montgomery, 13 Am. 
 Law Beg. 244 ; Cox v. Wilder, 2 Dill. 49 ; Bartholomew v. West, 2 Id. 293 ; 
 Smith V. Kehij 2 Id. 63. 
 
343 . EXEMPTIONS UNDER BANKRUPT LAW. § 470 
 
 declared a bankrupt, when his assignee filed a bill in equity 
 to set aside and vacate the deed as fraudulent and void as to 
 creditors, which resulted in a decree in February, 1872, set- 
 ting such deed aside. The land in question had been occu- 
 pied by the bankrupt and his wife for upwards of thirty 
 years as a homestead. The only money consideration was 
 $100, but it was agreed that M and his wife were to continue 
 to occupy the premises as a homestead during their natural 
 lives, and were to be supported by their said daughter during 
 their joint lives. Under the order of the Court, the assignee 
 sold the premises, subject .to any legal claim of the bankrupt 
 to a homestead therein, to the plaintiff, who brought suit in 
 ejectment against the bankrupt for that portion claimed as 
 homestead. It was held, that the purchaser at such sale was 
 not entitled to recover ; that the deed being set aside, the ti- 
 tle reverted to the bankrupt, and then passed to his assignee, 
 subject to the exemptions of the bankrupt act, as if the deed 
 had never been made. It was further held, that the fact that 
 the deed of the bankrupt to his daughter reserved the right 
 to occupy the land as a homestead during his life, strength- 
 ened the foregoing conclusions, but were not necessary to it.' 
 
 § 470. Joining of the -wife in the fraudulent deed does 
 not estop her from claiming homestead. — It was further 
 held, thatthe voluntary joining of the wife in a deed, which is 
 afterwards set aside as fraudulent, does not prevent her on 
 such setting aside from claiming her dower or homestead. 
 
 Hopkins, J., said : " The deed, under such circumstances, 
 did not extinguish their homestead rights. That agreement 
 they could enforce, as against their grantee, and a Court of 
 equity would set aside the deed in case of her,refusal to per- 
 form it. So that the equitable right of the bankrupt to this 
 property as a homestead had not been unconditionally sur- 
 rendered or placed where he could not enforce it against his 
 grantee, if the deed had not been annulled in the interest of 
 the creditors. But I do not wish to be understood as resting 
 my decision alone on this ground. I think the decedent's 
 homestead rights sustainable upon broader and more compre- 
 
 1 McFarland v. Goodman, .13 Am. L. Eeg. 697. 
 
§ 471 EXEMPTIONS UNDER BANKRUPT LAW. 344 
 
 hensive grounds. The deed being set aside, and the creditors 
 being restored to their rights, as they existed before the 
 deed, upon what principle should the bankrupt be denied his 
 rights, as they were before the deed ? In the case of a home- 
 stead, there is a peculiar reason for the adoption of this rule. 
 The homestead is exempted for the benefit of the family of 
 the debtor ; he cannot deprive them of it without the signa- 
 ture of his wife. To transfer it requires their joint deed. 
 Her right in it is not simply inchoate, like dower, but pres- 
 ent, possessory. And indefeasible by her husband. Neither 
 can convey it except by joining with the other in the deed." 
 " It was said that she voluntarily executed this deed with 
 her husband ; that she probably knew of his unlawful purpose. 
 Suppose that to be the case — I do not think it alters her 
 rights. The position of a wife is such, and the influence of 
 the husband over her, that she is not answerable for his 
 frauds." 1 
 
 § 471. The rule seems to be firmly established, in re- 
 lation to illegal preferences under the bankrupt law, that 
 where a conveyance is made of the homestead giving such 
 preference, and is subsequently set aside on the ground of 
 such illegal preference, that the grantors are not estopped 
 from asserting their right of exemption, except as to the 
 grantee therein. 
 
 This subject* of the fraudulent transfer of property re- 
 ceived careful and studied consideration at the hands of Dil- 
 lon, J.,^ in the case of Cox v. Wilder,^ wherein one Saur and 
 ^wife made a conveyance of the farm of Saur, on which he and 
 his family resided, to "Wilder, within six months, of the bank- 
 ruptcy. Cox was the assignee in bankruptcy of Saur, who 
 
 1 MoFarland v. Gofldman, 13 Am. L. Keg. 697. 
 
 2 The opinion of Judge Dillon, in relation to the law of homestead, is en- 
 titled to great weight, from the fact of the well known ability of that able jur- 
 ist, and from the study and examination which he has brought to bear on the 
 subject. I'ew, if any, judges have bestowed upon this subject the same careful • 
 examination and thought ; hence, all his opinions reflect the result of an enlight- 
 ened mind deeply imbued with the subject. See 1 Am. Law Eeg. (N. S.) 6il 
 and 705, Sept. and Oct., 1862, to which authority we are indebted for many val- 
 uable suggestions. 
 
 8 2 Dill. i7. 
 
345 EXEMPTIONS UNDER BANKRUPT LAW. § 471 
 
 brought suit in the District Court to set aside the conveyance 
 to "Wilder. The District Court found that the conveyance 
 was fraudulent and void as to creditors, and decreed that all 
 of the rights of "Wilder and of Saur and his wife, who were 
 defendants -in the bill, be divested out of the defendants, and 
 be vested in the plaintiff, as assignee, free and discharged of 
 the homestead claim of the husband (Saur) and the dower 
 right of the wife ; from which decree the defendants appealed. 
 
 Dillon, J., after discussing the question of the wife's right 
 of dower in the property, said that the same considerations ap- 
 plied to the homestead right, and that the questions presented 
 would be solved when it was djetermined " under whom the 
 assignee claims, and to whose rights he succeeds " ; continu- 
 ing as follows : 
 
 " He claims not under, but adversely, to the deed of Wilder. 
 He succeeds to all the interests of the bankrupt, and repre- 
 sents his creditors so far as to enable him to attack convey- 
 ances made by the bankrupt in fraud of their rights. He 
 claims that the deed is void as to creditors, and on this ground 
 alone he attacks it, and upon this ground alone has he any 
 right to the property. He says it is void as to creditors, be- 
 cause fraudulent, and for this reason asks to be invested with 
 the title which it fraudulently conveyed. He cannot claim 
 under it, and must claim against it. When it is decreed to 
 be fraudulent and void at his instance, how can he set it up 
 to defeat the right" claimed? " Such a position involves 
 this inconsistency, viz : that it asks that the same instrument 
 be held void as to creditors, and then in their favor held valid " 
 as to the claim of homestead and dower. 
 
 "These exemptions, in view of their benevolent and hu- 
 mane character, are entitled to be liberally viewed by the 
 Courts, although, of course, the right must be claimed under 
 the qualifications and conditions prescribed by the statute. 
 Now, by the bankrupt act, the assignee takes ' all the prop- 
 erty conveyed by the bankrupt in fraud of his creditors ' (Sec. 
 14) ; that is, takes it as fully and effectually as if the fraudu- 
 lent conveyance had not been made. As respects the assignee, 
 the property is still the bankrupt's at the date of the bank- 
 ruptcy, and the assignee takes xinder or through him." " Ex- 
 
§ 472 EXEMPTIONS UNDER BANKRUPT LAW. 346 
 
 cept for the deed to "Wilder, the bankrupt would be entitled 
 to the exemption. But as we have seen, the assignee does 
 not and cannot claim under that deed, but in hostility to it ; 
 and when it is avoided, and the title placed in the assignee, 
 I do not think (in view of the purpose of the exemption) that 
 the husba.nd is estopped, as against the assignee, to claim the 
 right to the homestead, or the value, to the extent given by 
 statute. This view does not make the estate any less than if 
 the fraudulent conveyance had not been made, while the op- 
 posite view gives the creditors a profit out of the attempted 
 fraud, at the expense of the family for whose benefit the ex- 
 emption is mainly, if not wholly, provided." "If the law 
 gave to a single man the right to his exemption, it would ac- ' 
 cord to the natural desire to punish fraud, to visit a penalty 
 upon him ; but to denounce a forfeiture of the homestead 
 where there is a family, subverts the policy on which the ex- 
 emption is provided and allowed." 
 
 The same rule obtains where husband and wife separated, 
 and the husband, by deed of trust, conveyed certain property 
 to trustees for the benefit of the wife ; and subsequently they 
 lived together and condoned the past differences ; and such 
 deed being declared void as against creditors, the conveyance, 
 though void against creditors, being good as between husband 
 and wife, conveying the husband's right of homestead. Held, 
 that the wife was entitled to the homestead. 
 
 " The husband fled the country, and abandoned his wife, 
 leaving her, however, in the actual possession of the home- 
 stead property. " ^ 
 
 § 472. Apparent exception to foregoing rule. — ^The lan- 
 guage used by Judge Bond in a part of the opinion filed in 
 the case of Dillard,^ would appear to be in confiict with the 
 foregoing principles, but an examination of the facts in that 
 case will show that, under the Virginia statute and the de- 
 cisions of the Supreme Court of that State, the homestead 
 claimant was not entitled to the exemption, as there were 
 prior debts or liens which had become such before such claim 
 
 1 Smith V. Kehr, 2 DiU. C. C. 63. 
 
 2 9 Bank. Keg. 8. See, also, Homestead Cases, 22 Giatt. 266. 
 
347 EXEMPTIONS UNDER BANKRUPT LAW. § 473 
 
 had been made. And, further, the claim of homestead ex- 
 emption on the part of the bankrupt was made under the 
 amendment to the Bankrupt Law of 1873, which was declared 
 to be unconstitutional and void, and without the assistance of 
 which he was not entitled to a homestead.^ 
 
 § 473. Deed of trust of homestead to preferred cred- 
 itor—Surrender. — The same rUle we have been considering, in 
 relation to fraudulent preferences, is carried a step further, 
 and is applied where a preference is given by a deed of trust 
 of the homestead to a creditor, and such preference is sur- 
 rendered without suit, (under Section 23 of the bankrupt 
 act) allowing all the creditors to participate in the distribu- 
 tion of the fund, the property being sold under the deed of 
 trust, the money arising from the sale will be set apart to the 
 bankrupt in lieu of homestead ; on the ground that the same 
 effect will be given to a voluntary surrender of such a deed 
 as if a setting aside had taken place. The rule applying in 
 this case, "that the conveyance being for the benefit of 
 the grantees alone, could not operate in favor of the assignee 
 and general creditors, both of whom claim adversely to the 
 deed." 
 
 The facts on which the foregoing principles are based are 
 as follows : " The bankrupt filed his petition praying to have 
 f 1,600 set apart to him out of the assets of the estate in lieu 
 of homestead. The bankrupt was indebted to a firm, which 
 sued ,him and recovered judgment ; to delay the collection 
 whereof, he conveyed and assigned his property, including 
 his homestead", to one Meyer, in trust for himself and cer- 
 tain other creditors named in the deed ; within four months 
 after the making of this conveyance he was declared bank- 
 rupt on creditor's petition, the said Meyer and one Hamil- 
 ton were elected assignees ; Meyer presented his own as well as 
 the creditor's claims named in the trust deed for allowance as 
 secured. Hamilton, the^ co-assignee, objected, alleging that 
 an illegal preference was attempted thereby to be secured, 
 and that the trust deed was oh that account void ; Meyer, 
 to avoid the" objection, executed an instrument in writing, 
 
 19 Bank. Keg. 8. See, also, HomeBtead Cases, 22 Gratt. 266. 
 
§ 473 EXEMPTIONS UNDBK BANKRUPT LAW. 348 
 
 agreeing that if the objections were withdrawn and the claim 
 allowed to be proven up as secured, the proceeds derived 
 from the disposition of the property should be equally dis- 
 tributed among all the creditors of the estate ; the ob- 
 jections were withdrawn and the claims allowed as secured ; 
 a sale was ordered by the .Court under the deed of trust, 
 in which the assignee joined ; the proceeds of sale were 
 paid into the estate and treated as pai-t of the general fund in 
 Court. It was contended, on the part of the bankrupt, that 
 the surrender of the preference by Meyer had " the same 
 effect as the setting aside of the deed would have, and that 
 he was entitled to an allowance at least to the extent that the 
 homestead sold for. " On the part of the assignee it was con- 
 tended, "that as the claim was allowed as secured, and the 
 deed of trust held valid, as shown by the sale" under it, the 
 proceeds must be treated, so far as the bankrupt is concerned, 
 as discharged from all claim on his part." Kerkel, D. J., 
 said : " The 23d section of the Bankrupt Law provides that 
 any person having received a preference shall not prove the 
 claim on account of which the preference was given, nor 
 shall he receive any dividend therefrom until he shall first 
 have surrendered to the assignee all property, money, or ben- 
 efit. The manner in which this surrender shall be made the 
 law has not determined. In the case before the Court, Meyer 
 was not permitted to prove his claim or have any benefit 
 therefrom, until, by an instrument in writing, he had agreed 
 that the proceeds of his preference should become a part of the 
 general estate of the bankrupt. This may be treated as a 
 surrender under the 23d section, and is not a mere consent on 
 the part of Meyer for the unsecured creditors to participate 
 in the proceeds of his preference. What effect had this sur- 
 render on the rights of the bankrupt ? If the reasons given 
 by the authorities cited, that the conveyance was for the ben- 
 efit of the grantee and could not operate in favor of the as- 
 signee or general creditors, both of whom claimed adverse- 
 ly to the deed, be sound, then it must follow that the same 
 effect must be given to this relinquishment of Meyer as the 
 setting aside of the deed, had it taken place, would have had. 
 I am the more inclined to give this effect to the relinquish- 
 
349 EXEMPTIONS UNDER BANKRUPT LAW. § 474 
 
 ment under consideration from the persuasive force of the 
 Missomi case cited, and because of the harmony thus estab- 
 iished between the Federal and State decisions, furnishing a 
 permanent rule of property. " " The homestead having befin 
 sold at the trustee's and assignee's sale for f 725, this amount 
 will be set apart to the bankrupt in lieu of his homestead." ' 
 
 § 474. Disposing of homestead and occupying store, 
 claiming it as exempt. — A merchant will not be permitted 
 to dispose of his homestead for cash,in view of insolvency, 
 and move his family into his store in order to secure such 
 store as exempt. Though his right to sell his homestead be 
 undoubted, yet he will not be permitted to make the change 
 to the prejudice of creditors. 
 
 Thus, where the bankrupt had, for several years, been the 
 owner and occupant of a coinfortable house and lot, continu- 
 ing such occupancy with his family until about two weeks be- 
 fore proceedings in bankruptcy were commenced against him, 
 when he sold his homestead for cash and moved his family 
 into a part of the store, which was partitioned off, and 
 claimed the store as exempt under the homestead law : held, 
 that this was a fraud against his creditors, and also on the 
 bankrupt act, and ordered that the bankrupt deliver up pos- 
 session of the premises to the assignee. 
 
 Miller, J., said : "He was doing business in a building con- 
 structed solely for business purposes, and not having the ap- 
 pearance of a dwelling, with an adjoining building under 
 rent, open to the view of his creditors, when he was purchas- 
 ing their goods on credit, and occupying at the same time 
 with his family a comfortable homestead ; and at the time his 
 notes for an unusually large increase of stock were maturing, 
 within three days he made all these changes as to his prop- 
 erty. "^ 
 
 1 In re Detert, 14 Am. L. Reg. 166, IT. S, B. C, West. D. Missouri. The 
 oases referred to in tlie opinion are Oox u. Wilder, 2 Dill. C. C. 45 ; Volger v. 
 Montgomery, 13 Am. Law Keg. N. S. 244 ; MoFarland v. Groodman, 13 Am. 
 Law Keg. 697. 
 
 2 In re Wright, 3 Bissell 359. 
 
§§ 475-477 EXEMPTIONS UNDER BANKRUPT LAW. 350 
 
 § 475. But an exchange of homestead -will, under cer- 
 tain circumstances, be allowed. — ^Thus, where different par- 
 cels of land are owned by a person, on two of which are 
 dwelling-houses, and one of such lots with the dwelling-house 
 exceeding the value allowed by the exemption act is subject 
 to a mortgage nearly equa;l to its value ; the other lot and the 
 dwelling, occupied by a part of his family, free from liens, if 
 within the limits of the statutory amount, he will be entitled 
 on request to have set off as exempt.^ 
 
 § 476. Non-liability of homestead for purchase-money 
 under laws of 1864, in Georgia. — :It has been held in 
 the State of Georgia, that where a bankrupt had a home- 
 stead set off to him under the bankrupt law, by the officials' 
 of the Bankrupt Court, that such homestead was not subject 
 to be sold, even for the purchase-money of the same^ for the 
 reason that the laws in force under the code, in 1864, did not 
 permit the forced sale of the homestead, even for the pur- 
 chase-money ; andthattheBankrupt Actiof the United States, 
 of March 2d, 1867, vests in the banki-upt, free from his debts, 
 whatever property the State exempted from levy and sale 
 under laws in force in 1864. Therefore, it was held, that a 
 judgment creditor of a discharged bankrupt, though he ob- 
 tained the judgment before the bankrupt's discharge, cannot 
 levy on and sell the homestead by force of such judgment, 
 though it be for the purchase-money of the same.^ 
 
 § 477. Where objection is made on behalf of cred- 
 itors to the exemption of the homestead, as exceeding 
 in value the amount limited in the State exemption law, the 
 bankrupt in such case, as in Ohio, does not take a fee-simple, 
 but only a qualified estate in the homestead. If it is not sus- 
 ceptible of division, it will be ordered sold ; the sale, how- 
 ever, will be subject to the right of homestead in the bank- 
 rupt, or he retaining the statutory value, of the homestead, 
 
 1 Manufacturers' and Farmers' Battk of Wieeling v. Bayless, 1 West L. Mo. 
 356 ; also 1 Brightly's Fed. Dig. Hi. 
 
 2 Bushin v. Gause, 41 G-a. 180. 
 
351 EXEMPTIONS UNDER BANKKUPT LAW. §478 
 
 any surplus remaining above such sum will go into the gen- 
 eral fund. "^ 
 
 § 478. Other uses of the homestead than that of a 
 family d'welling, in those States where there is no limita- 
 tion on the value of the land and improvements, as in Kan- 
 sas, Texas, and Nebraska, and some other States, does not de- 
 stroy the exemption right, although the premises are used, 
 and may have been constructed, for purposes foreign to that 
 of a family dwelling, provided the family occupy a portion of 
 the building as a residence. 
 
 Thus, the constitution of Kansas provides that "a home- 
 stead to the extent of one acre, in an incorpoi'ated town or 
 city, occupied as a residence by the family of the owner, to- 
 gether with all the improvements on the same, shall be ex- 
 empt from forced sale under any process of law." 
 
 Under this constitution, one Tertelling was engaged in the 
 business of manufacturing beer at the time of the commence- 
 ment of proceedings in bankruptcy against him. He was 
 the owner of the brewery, which stood upon seven town lots, 
 all in one enclosure, the whole being less than one acre of 
 ground. He and his wife and children occupied part of the 
 brewery building as a home, to wit : two north rooms in the 
 first and the' second story. The remainder of the building, 
 the south rooms of the first and second story, the basement, 
 sheds, vaults, and ice-house, were used for carrying on the 
 brewery business. 
 
 The register found that only the portions of the building 
 occupied by the family were exempt, and those portions 
 used as a brewery were not so exempt ; which findings and 
 •conclusions were aflirmed by the District Court. 
 
 On appeal to the Circuit Court, per Dillon, J., the ease was 
 reversed, the circuit judge holding that the district judge 
 «rred in dividing the same building into two portions, the 
 one portion being considered a homestead and exempt, and_ 
 t£e remainder not a homestead, arid therefore subject to exe- 
 cution and forced sale. The Court said : " The constitutional 
 provision respecting the homestead exemption is exceedingly 
 
 1 In re Watson, 2 Bank. Reg. 174 ; In re Beokeriord, 1 Dill. C. C. 45. 
 
§ 479 EXEMPTIONS UNDER BANKRUPT LAW. 352 
 
 liberal to the debtor ; but it may admit of some doubt 
 whether it is just towards the creditor. The quantity of 
 laud exempted is limited, but there is no limitation on the 
 value of the land exempted, or the value of the (homestead) 
 improvements thereon. 
 
 "If the building is occupied as a residence by the family of 
 the owner, it is exempt, whatever its value. The building 
 now in question was thus occupied, and it is all exempt, 
 though a portion of it may have been devoted to other uses. 
 We do not decide that in addition to the house occupied as a 
 homestead, and separate from it, the owner could erect upon 
 the acre upon which his residence is situated a block of stores 
 or a brewery building, (not occupied by the family as a 
 home) and hold it exempt. 
 
 " We hold, that the whole house occupied as a home is ex- 
 empt, though a portion of it may be used and may liave been 
 constructed with a view to be used for other purposes. We 
 are of opinion that, upon the facts reported, the entire build- 
 ing is exempt from forced sale. 
 
 "The order of the District Court is reversed. "^ 
 
 § 479. A bankrupt is entitled to the statutory home- 
 stead exemption in a leasehold estate, under a State stat- 
 ute which provides that property " when owned by the head 
 of a family or wife who shall be a bona fide resident of the 
 State, any of his or her real estate not exceeding 160 acres 
 of farming land, or one lot in town or city in value f 1,000, at 
 the date of such exemption, to be held and enjoined by such 
 party as a homestead." .Thus, where a debtor was declared 
 a banki'upt, he was the owner of an unexpired term of a lease- 
 hold estate, the value of which was f 1,490, as appeared 
 frbm the sale by the assignee. The bankrupt claimed 11,000 
 of the proceeds of such sale in heu of a homestead, which 
 claim was resisted. The District Court allowed the claim, 
 and ordered the amount paid to the claimant. On appeal 
 to the Circuit Court, it was urged " that there can be no such 
 ownership as the law here contemplates in a leasehold estate, 
 and hence no homestead could be carved out of it." It was 
 
 1 In re Tertelling, 2 Dill. 0. C. 341 ; see Sees. 76 to 78, Ante. 
 
353 EXEMPTIONS UNDER BANKRUPT LAW. §§ 480-481 
 
 held by the Grcuit Court, that " by the exemption laws of 
 Missouri, in force in 1864, a homestead may be set apart to a 
 debtor out of a leasehold in real estate, or when such lease- 
 hold is not susceptible of division, he may i-etain $1,000 out 
 of the proceeds of it." The following reasons were assigned 
 for such conclusion : ' ' By the seventeenth section of the 
 Missouri ■ statutes relating to executions, it is enacted that 
 leases upon land, for any unexpired term of three years and 
 more, shall be subject to execution and sold as real prop- 
 erty." 
 
 "The term real property is defined by the thirty-eighth 
 section of the general provisions of the same statute as in- 
 cluding every estate, interest, and right in land. These pro- 
 visions seem to us to solve the question suggested in favor of 
 the bankrupt, entitling him to have a homestead set apart in 
 the leasehold owned by him at the time he was declared 
 a banki'upt."^ 
 
 § 480. Alienation by mortgage does not deprive bank- 
 rupt of homestead. — The fact that a bankrupt had mort- 
 gaged his homestead to secure the payment of money bor- 
 rowed anterior to such claim of homestead, does not deprive 
 him of such right of exemption of such homestead.^ 
 
 § 481. A member of a bankrupt firm is entitled to a 
 homestead exemption, when the lot on which the dwelling 
 stands is his individual property, although the lumber and 
 other materials used in building were charged to the firm, 
 and paid with firm funds. 
 
 A member of a bankrupt firm filed a petition to have 
 a dwelling-house and lot, occupied by himself and family, 
 set apart by the assignee as exempt property under«the 
 bankrupt act, and the laws of Michigan. The lot was the sole 
 property of the petitioner, the house was built of lumber and 
 other materials belonging to the bankrupt firm, and with 
 funds of the said firm, which were charged on the books to 
 the house, and not specifically to the petitioner. At this 
 
 1 In re Beckerford, 1 Dill. C. C. 45. 2 In re Brown, 3 Bank Eeg. 60. 
 
 Homestead — 23. 
 
§§ 482-483 EXEMPTIONS UNDER BANKRUPT LAW. 354 
 
 time, the firm was indebted to tlie petitioner to an amount 
 exceeding the cost of the house, and was considered solvent. 
 
 It was claimed, that the house was partnership property, 
 and that there can be no exemption of partnership property 
 under the bankrupt law and the laws of Michigan. 
 
 Held, that the house was part of the realty, and as much 
 the separate property of the petitioner as the realty itself ; 
 that the firm had no interest or ownership in the house, and, 
 as it was indebted to the petitioner, there could be no claim 
 for reimbursement ; that nothing passed to the assignee ex- 
 cept any excess there may be in the value of the property in 
 question over f 1,500.^ 
 
 § 482. What constitutes a family to entitle bankrupt to 
 the exemption.— Where a bankrupt, residing in Georgia, rent- 
 ed a house, hired servants, and made his home therein with a 
 widow not related by blood to him, but whom he and his 
 vdfe had educated and regarded as their adopted daughter, 
 but had failed to adopt her in accordance with law. Held, 
 that he is head of a family and entitled to exemption, as such, 
 of fifty acres of land as a homestead, but is not entitled to five 
 acres additional for each of three children of the widow re- 
 siding with them, and forming part of the household, inas- 
 much as he is not legally bound to support them." ^ 
 
 So, an unmarried man, a bankrupt, having orphan children 
 bound to him under the apprentice laws of Texas, and keep- 
 ing house, hiring servants, and conducting a household, 
 claimed a homestead of 100 acres as head of a family by the 
 laws of Texas. Held, that the bankrupt was not entitled to 
 such homestead as head of a family, but that fifty acres be 
 set apart to him as a citizen under the Texas laws, not to ex- 
 ceed'in value 1500." 
 
 § 483. It is too late to have homestead set apart af- 
 ter property has passed to assignee. — A failure on the 
 part of the wife of a bankrupt to have a homestead set apart 
 
 1 In re J. F. & C. R. Parks, 9 Bank Reg. 271. 
 
 2 In re Taylor, 3 Bank Reg. 38. 
 
 3 In re Sumners, 3 Bank Reg. 21. 
 
356 . EXEMPTIONS UNDER BANKRUPT LAW. §§ 484-485 
 
 to her for the use of the family under the homestead laws of 
 Georgia, until after the husband has been adjudged a bank- 
 rupt, will preclude such exemption being assigned after the 
 property has passed into the hands of the assignee. 
 
 Thus, where ejectment suit was brought by Mrs. Lumpkin 
 (the bankrupt's wife) and her children against Eason, the as- 
 signee, the record disclosed the following facts : that on the 
 12th of December, 1868, the premises in dispute had been 
 by the ordinary duly set apart to the wife and children as 
 their homestead. 
 
 On the part of defendant, it appeared, that on the 20th of 
 May, 1868, creditors of Lumpldn petitioned to have him de- 
 clared a bankrupt, and that his estate be taken possession of 
 for their benefit by a temporary assignee. This was done on 
 the 10th of June. On the 16th of June, Lumpkin filed an 
 answer to the petition denying the bankruptcy ; subse- 
 quently, different proceedings were had, resulting finally in 
 his being adjudged a bankrupt on the 9th of IsTovember, 
 1868 ; and on the 28th of the same month, an assignee was 
 finally appointed to take charge of his property. It was held, 
 that the wife could not have a homestead in the laud of her • 
 husband, as against the assignee of the bankrupt, and that 
 the right of the wife and children to a homestead is not such 
 a lien upon the same as follows the land into the hands of a 
 third party acquiring title before the application is made.^ 
 
 § 484. A bankrupt is not entitled to a homestead ex- 
 emption under the fourteenth section of the bankrupt act, 
 as against claims which are proven against him of a date an- 
 teiior to the taking effect of State exemption laws, in those 
 States where the exemption law provides that no property 
 shall be exempted from levy and execution for debts con- 
 tracted or liabilities arising on contracts entered into before 
 such laws took effect. 
 
 § 485. And such liabilities vrhich may arise will relate 
 back to the date of the engagement to perform such contract 
 
 1 Lumpkiu v. Eason, 10 Bank. Keg. 549 ;, also, 44 Ga. 339. 
 
§ 485 EXEMPTIONS UNDER BANKRUPT LAW. 356 
 
 or duty.^ Thus, in Missouri, where the homestead statute pro- 
 vides that it ' 'should not apply to any debts or liabilities before' ' 
 it took effect ; it was held, per Dillon, J., that where a pub- 
 lic administrator gave an official bond and received personal 
 property of the decendent before the homestead statute went 
 into force, his liability to the heirs and distributees arose in 
 such a sense as to deprive him of a homestead in property 
 acquired after. he received the assets of the estate, although 
 it did not appear that at the time the property claimed as a 
 homestead was acquired, the administrator had then converted 
 the assets of the estate which had come intp his hands. 
 
 It was said " that the bankrupt is not entitled to the home- 
 stead exemption ; that the claim of the heirs and distributees 
 was a liability contracted before, and in existence when the 
 homestead act was passed." ^ 
 
 So, in Massachusetts, the liability of the principal to in- 
 demnify his surety was held to relate back to the date when 
 the surety became responsible for the debt of his principal, 
 and not when the payments are made by such surety. 
 
 In the case of Eice v. Southgate, just cited, Bigelow, C. 
 J., said : " The question iia this case is, whether on the facts 
 stated there are any debts proved against the estate of the 
 tenant in insolvency to theamount of $800," (the statutory lim- 
 it of the homestead) " which were contracted prior to the 
 passage of the statute of 1855, C. 238, under which he claims 
 to hold the demanded premises as a homestead. If there are, 
 then it is clear that he cannot avail himself of the exemption 
 secured by that statute, because by the third section it is pro- 
 vided that no property exempted, etc., * * and all the 
 estate of the debtor which might have been taken on execu- 
 tion against him at the time of the commencement of the 
 proceedings in insolvency, vested in his assignee. ' ' 
 
 " Under well settled principles, it is clear that the contract 
 of a principal with his surety to indemnify him for any pay- 
 ment which the latter may make to the creditor in con- 
 sequence of the liability assumed, takes effect from the time 
 
 1 In re Hook, 2 Dill. 93 ; Kioe v. Southgate, 16 Gray 142 ; Gibba v. Bryant, 1 
 Pick. 121 ; Appleton v. Basoom, 3 Met. 169 ; Woods v, Santbrd, 9 Gray 16. 
 
 2 Id., 2 Dill. 93. 
 
357 EXEMPTIONS TINDER BANKRUPT LAW. §§ 486-487 
 
 when the surety becomes responsible for the debt of his prin- 
 cipal. It is then that the law raises the implied contract or 
 promise of indemnity. No new contract is made when the 
 money is paid^by the surety, but the payment relates back to 
 the time when the contract was entered into by which the 
 liability to pay was incurred. The payment only fixes the 
 amount of damages which the principal is liable under his 
 original agreement to indemnify the surety." ' "It follows, 
 that the real estate occupied by the insolvent debtor was not 
 exempted from levy on execution at the suit of his surety, who 
 entered into the contract on which he has been held liable to 
 an amount exceeding |800 prior to the passage of the act 
 under which the tenant now claims a homestead right." 
 
 WHO ENTITLED TO THE BIGHT. 
 
 § 486. No one but the bankrupt can claim the ex- 
 emption of property under the State laws ; if he does not 
 claim it his mortgagee cannot claim it as against the as- 
 signee.^ 
 
 It was held, that where a bankrupt makes no claim to have 
 set apart a portion of his property, to which he is entitled 
 under the statute exempting property from seizure and sale 
 under execution, a mortgagee, in a mortgage embracing the 
 property executed by the bankrupt and declared void as to 
 creditors under the statute of frauds, is not in a position 
 which entitles him to have such property set aside as belong- 
 ing to him by virtue of his mortgage.^ 
 
 § 487. An absconding debtor is not, by such act of ab- 
 sconding, deprived of his right of homestead, so long as 
 his wife and family remain in possession of such homestead, 
 and his assignee in bankruptcy has no right to its possession. 
 
 The resident wife will be heard, on petition, to have the 
 
 1 Citing Gibbs v. Bryant, 1 Pick. 121 ; Appleton v. Basoom, 3 Met. 169. 
 
 2 Jones v. Tracy, Western Jurist (July, 1874, No. 3) 107. 
 
 3 Edmonston v. Hyde, 7 Bank. Eeg. 13. 
 
§ 487 EXEMPTIONS UNDER BANKRUPT LAW. 358 
 
 homestead set aside to her in the proceedings in bankruptcy, 
 and the assignee enjoined from interfering with her right of 
 enjoyment, where he has intruded upon the homestead right. 
 
 In contemplation of law, the residence of the absconding 
 bankrupt will be that of his wife and family, until it is con- 
 clusively shown that he has acquired another home elsewhere. 
 
 Thus, in Michigan, Pratt, the bankrupt, absconded, and 
 was subsequently proceeded against by petition of creditor, 
 and adjudged a bankrupt. The wife of Pratt presented a pe- 
 tition to have the homestead, which, by the laws of Michi- 
 gan, is exempt " when owned and occupied by any resident 
 of this State," set off to the bankrupt or his family. The as- 
 signee, assuming that the wife and children were not entitled 
 to the exemption, had put a person in possession of a part of 
 the homestead, and threatened to deprive them of their home, 
 and refused to set off the premises as exempt. 
 
 Upon an order to show cause, the assignee pleaded the fore- 
 going exemption law of Michigan. Withey, D. J. , said : 
 "The homestead in question was owned by Pratt, and occu- 
 pied by his family, up to the time he absconded, and his wife 
 and children have continued to occupy it since. The value 
 of the premises is $2,000, on which there is a mortgage-lien 
 amounting to something over $700. When the owner's inter- 
 est does not exceed $1,500 in the homestead, it is exempt, 
 subject to any incumbrance there may exist upon it. When 
 the premises do not exceed in quantity the exemption, no 
 selection is required by the statute to be made. The object 
 of the statute is as much to protect the wife and children as 
 the husband. This is seen in the protection to the wife 
 against alienation by the husband without her signing the 
 conveyance, and, in case of his death, the provision for the 
 widow and children." 
 
 "While the family remain in the State, occupying the 
 premises as a home, the exemption is secured by the statute, 
 inasmuch as it continues to be owned and occcupied by 
 Pratt ; while his family reside on it, their occupancy is his 
 occupancy. His claim of a homestead exemption will be 
 
359 EXEMPTIONS UNDER BANKRUPT LAW. §§ 488-490 
 
 presumed in the absence of a distinct disclaimer, or some 
 act amounting to that." ^ 
 
 § 488. Homestead subject to trust deed for future ad- 
 vances. — A bankrupt, who conveys real estate by deeds of 
 trust as security of moneys then loaned, and for future ad- 
 vances, will not be permitted to retain a homestead as against 
 such advances as were made to him subsequent to the filing 
 of a declaration of homestead, under the laws of California 
 requiring such filing, and before notice to the trustee, and 
 where he obtains such advances without disclosing the fact of 
 having filed for record such declaration of homestead.^ 
 
 § 489. Exempt property may be sold and conveyed 
 by bankrupt. — An assignee in bankruptcy has no interest in, 
 and therefore cannot recover property excepted by the four- 
 teenth section of the bankrupt act. Such property the 
 debtor may legally mortgage, sell, or dispose of in any man- 
 ner he pleases. He may convey such property to a creditor, 
 and such action on his part will not be a violation of the law, 
 nor such a fraud upon other creditors, even though such 
 bankrupt creditor absconds, as will authorize the assignee to 
 proceed against the holder of such property under the section 
 of the act in relation to preferred creditors.^ 
 
 I 490. Assignment of exemption will not prevail 
 over vendor's lien. — The assignment of land, under the four- 
 teenth section of the bankrupt act, as exempt property under 
 the laws 'of the State, will not prevail over the equitable lien 
 of a vendor for unpaid purchase-money, or any portion 
 thereof.* 
 
 1 In re Chas. 0. Pratt, Cent. L. Jour., June 11, 1874; Pacific L. Jour., June 
 1, 1874. Citing Lack v. KoweU, 47 N. H. 46 ; White v. Clark, 36 111. 285 ; Cox 
 V. Wilder, 2 Dill. 45 ; Bartholomew v. West, 2 Dill. 290 ; Titman v. Moore, 43 
 111. 169 ; Bonnell v. Smith, 53 111. 375 ; Taylor v. Hargous, 4 Oal. 268 ; Booker 
 V. Anderson, 35 III. 66 ; Volger v. Montgomery, 54 Mo. 577 ; Am. L. Reg., 
 April. 1874, Vol. 13, 246. 
 
 2 In re Haake, 7 Bank Reg. 71. 
 
 SMcFarland v. Goodman, 13 Am. L. Reg. 701 ; Sohiltz v. Schatz, 2 Bissel C. 
 C. 248 ; Dreutzer v. Bill et als., 11 Wis. 114 ; see qualification of this rule in 
 Pike V. Miles, 23 Wis. 164 ; Beals v. Clark, 13 Gray 18. 
 
 4 Ex parte Pardue, North Dist. of Ga., 2 West. Jurist 279. 
 
§ 491 EXEMPTIONS UNDER BANKRUPT LAW. 360 
 
 § 491. Written -waiver of exemption under State law. 
 
 Under Sec. 1, Art. II, of the constitution of Virginia, and 
 the acta of the general assembly of June, 1870, a debtor 
 may waive his homestead right in any written instrument. 
 The words "I hereby waive the benefit of the homestead ex- 
 emption as to this debt " added or incorporated in a promis- 
 sory note by a bankrupt debtor, held a sufficient waiver 
 under the foregoing section of the constitution and acts of 
 assembly. 
 
 By the above section of the constitution it is provided 
 " that every householder or head of a family shall be entitled 
 to hold exempt from levy, etc., property to the value of not 
 exceeding f 2,000, to be selected by him ; by section three it 
 is further provided that nothing in the article should be con- 
 strued to interfere with the sale of property exempted, or 
 any portion thereof, by virtue of any mortgage, deed of trust, 
 •pledge, or other security thereon ; and section five, the gen- 
 eral assejnbly should, at its first session under the constitution, 
 prescribe In what manner and on what conditions the house- 
 holder or head of family should thereafter set apart and hold 
 for himself and family a homestead out of the property there- 
 by exempted ; and might, in its discretion, determine in what 
 manner and on what conditions he might thereafter hold, for 
 the benefit of himself and family, such personal property as 
 he might have, but that said section should not be construed 
 as authorizing the general assembly to defeat or impair the 
 benefits intended to be conferred by the provisions of this ar- 
 ticle." And section seventh, "the provisions of this article 
 should be liberally construed to the end that all the interests 
 thereof might be fully and properly carried out." 
 
 The Act of the assembly of June, 1870, in pursuance of 
 the foregoing provision, provided that "in all cases where a 
 debtor or contractor shall declare, in the body of the bond, 
 note, or other evidence of the debt or contract, that he waives 
 as to such debt or contract the exemption from liability of 
 the property which he may be entitled to hold under the pro- 
 visions of said act, the property, whether previously set apart 
 or not, should then be liable to be subjected for such debt or 
 contract under legal process." 
 
361 EXEMPTIONS UNDER BANKRUPT LAW. § 492 
 
 On the 1st of May, 1873, one Solomon was adjudged a 
 bankrupt ; a firm who held the bankrupt's note, with the 
 foregoing waiver inserted therein, made proof of their claim 
 against the estate on the 24th of May. An assignee was ap- 
 pointed, who, on the 16th of February, 1874, set off to the 
 bankrupt his homestead exemption under the laws of Vir- 
 ginia, without regard to 'the waiver expressed in the note. 
 The holders of the note thereupon filed their petition in the 
 District Court, praying to have said action of the assignee set 
 aside, so far as it. operated to prevent their subjecting the • 
 property set off to the payment of their debt in case the re- 
 mainder of the bankrupt's estate should be insufiicient for 
 that purpose. 
 
 It was contended, on the part of the exemption claimant, 
 that the said act of the assembly was unconstitutional, and 
 contrary to the spirit and intent of the constitution. 
 
 Held, that said act was constitutional, and within the scope 
 and power of the legislature as conferred by said clauses in 
 the constitution, and that the waiver was suflB.cient.' 
 
 PRACTICE. 
 
 § 492. Rules and order governing assignee in bank- 
 ruptcy. — One of the general orders of the Supreme Court of 
 the United States (under authority conferred by the tenth 
 section of the bankrupt law) requires the assignee, (Gen. Or. 
 19) immediately on entering upon his duties, to prepare a 
 complete inventory of all the property that- comes to his pos- 
 session, and to make a report to the Court within twenty 
 days after receiving the deed of assignnient of the articles 
 set off to the bankrupt by him, according to the provisions 
 of the fourteenth section of the act, with the estimated value 
 of each article, and to allow to the creditors twenty days' time 
 from the filing of such report in which to file exceptions to 
 the determination of the assignee. 
 
 Under form number twenty, the schedule of property thus 
 
 I'ln re Solomon, XJ. S. G. C, E. D. Virginia, Am. L. Times Rep., June, 1874, 
 Vol. 1, (N. S.) 351. 
 
§§ 493-495 EXEMPTIONS UNDER BANKRUPT LAW. 362 
 
 designated and set apart by the assignee to be retained by 
 the bankrupt, to wit : necessary household furniture, other 
 articles and necessaries, wearing apparel of bankrupt and 
 ^is family, equipments, if any, as a soldier, other property 
 exempted by the laws of the United States, and finally, such 
 property, real and personal, as is exempt by the State laws of 
 his domicile. 
 
 § 493. If creditors have any objections to make, on the 
 
 ground that unauthorized exemptions have been allowed to 
 the bankrupt by the assignee, they must file their exceptions 
 to his report of such allotment, under general order 19, with- 
 in the time prescribed, as respects household furniture and 
 other necessary articles ; but as to real estate, the attempted 
 exemption is void ; no title passes from the assignee, and cred- 
 itors need not except to the report, but may to the account of 
 the assignee.^ 
 
 But, in some cases, it would appear that real estate may 
 be set apart for the bankrupt, where it will not injure the 
 sale of other real estate, or work adversely to the interests of 
 the creditors.^ 
 
 g 494. Where property has been set apart by the as- 
 signee of a bankrupt, under his exemption claim, and no ex- 
 ceptions are taken to the action of the assignee, the property 
 exempted passes to the bankrupt, freed from the jurisdiction 
 of the bankrupt Court.' 
 
 § 495. An error in a schedule, where an erroneous claim 
 in such schedule is made, that certain articles therein men- 
 tioned are exempt from execution, though the affidavit to 
 such schedule states, in the prescribed form, that it contains a 
 statement of all the bankrupt's estate, is not material, its 
 truth is not affected. If the bankrupt makes an erroneous 
 claim, it is the duty of the assignee to correct it."" 
 
 1 In re Grainey, 2 Bank Keg. 163 ; In re Jackson, 2 Bank Beg. 158. 
 
 2 In re Edwards, 2 Bank Keg., N. S. 109, Jan., 1869, U. S. C. C, Virginia. 
 
 3 In re Fetherston, 5 Chicago Legal News 193 ; also, In re Fetherston, 3 Pitts. 
 Kep. 480 (20 Pitts. L. J. 77). 
 
 4 In re Whitraore, Deady 585. 
 
363 EXEMPTIONS UNDER BANKKTJPT LAW. §§ 496-501 
 
 § 496. A person who is entitled to a homestead reser- 
 vation under the laws of the State where he resides, and 
 where such property is situated, and which property a Court 
 of chancery has ordered, in general terms, to be sold to sat- 
 isfy a creditor whom he had attempted to defraud by a secret 
 conveyance of it, must set up his right to it before the prop- 
 erty is thus sold. He cannot set it up collaterally after the 
 sale, and so defeat an ejectment brought by a purchaser to 
 put him out of possession.^ 
 
 § 497. The bankrupt Court -will not enjoin a judgment- 
 creditor from selling the bankrupt's homestead under execu- 
 tion — the jurisdiction is in the State Courts.^ 
 
 » 
 
 § 498. The State exemption la-ws apply to process is- 
 sued out of Federal Courts.' 
 
 § 499. A married man may maintain ejectment to recover 
 possession of the homestead during pendency of an applicar 
 tion, on his part, to be discharged from his debts under the 
 insolvent laws.^ 
 
 PERSONALTY UNDER BANKRUPT LAW. 
 
 § 500. Bankruptcy Courts will protect the rights of 
 the bankrupt, and see that the property exempted, and to 
 which the bankrupt is entitled, is secured to him, as well as to 
 see that the bankrupt surrenders all his property, not exempt, 
 to his creditors.* 
 
 g 501. No authority resides in the Court to order an al- 
 lo-wance to the bankrupt for the support of himself and 
 family ; but the assignee may make a small allowance, not to 
 
 1 Miller v. Sherry, 2 Wall. 238 ; Johnson v. Bishop, 1 Woolworth 324 (Jus- 
 tice Miller's Decisions); 
 
 2 In re Hunt, 4 Chicago Leg. News 5. 
 
 5 Manufao. Bank of Wheeling v. Bay less, 1 West. Law, Mo. 356 ; 1 Bright. 
 Dig. 414. 
 
 * Moore u. Morrow, 28 Cal. 551. 
 
 6 In re Stevens, 2 Biss. 0. 0. 373. 
 
§ 502 EXEMPTIONS UNDER BANKRUPT LAW. 364 
 
 exceed in any event the amount expressed in the bankrupt 
 law. A reasonable sum may be allowed the bankrupt for 
 taking charge of the property.' 
 
 § 502. Rule in relation to $500 exemption under bank- 
 rupt la-w. — Some difference of opinion has arisen in relation 
 to the interpretation to be given to that portion of Section 
 fourteen of the banki'upt act which says, " that there shall 
 be excepted " from the conveyance of all the property, real 
 and personal, of the bankrupt, by the register to the assignee, 
 "necessary household and kitchen furniture, and such other 
 articles and necessaries of such bankrupt as the assignee shall 
 designate and set apart, having reference in the amount to 
 the family, condition, and circumstances of the bankrupt, but 
 altogether not to exceed in value, in any case, the sum of 
 five hundred dollars, and wearing apparel," etc., whether the 
 bankrupt is entitled to this amount of property, in any «vent, 
 irrespective of the State exemption laws. 
 
 The rule seems, however, to be, that the same articles shall 
 not be set aside for the use of the bankrupt under both State 
 and United States exemption laws: that where "all the 
 necessary household and kitchen furniture and other neces- 
 sary articles," etc., are set aside under the State laws to the 
 full value of $500 or over, there will be no further allowance, 
 especially where all the articles enumerated are delivered 
 over to the bankrupt for himself and family. The object of 
 the exemption in the United States law seems to have been 
 to supply, in any event, to the bankrupt, all the household 
 necessaries of life for his immediate use, and more especially 
 to apply to those States, which are very few, where no 
 adequate provision is made in their local laws for the pro- 
 tection of the family in case of disaster. 
 
 But "the amount of property exempted by the State 
 laws is exclusive of the $500 which may be set apart for the 
 bankrupt under Act of 1867." ^ 
 
 1 Ex parte Grant, 2 Story C. 0. 312. 
 
 2 Ex parte Cobb, 1 Bank Beg. 106 ; In re Buth, 7 Am. Law Beg. 157 ; In re 
 Hezekiah, 11 Bank Beg. 573. 
 
365 EXEMPTIONS UNDER BANKETJPT LAW. § 503 
 
 § 503. All articles enumerated and exempt by State 
 lavrs are exempt under the bankrupt lavr, irrespective 
 of their value. — In the case of Irwin Davis/ where the 
 question presented was, whether the necessary household and 
 kitchen furniture to be set apart for the use of the bankrupt 
 was confined to the value of 1500 under the bankrupt act, or 
 whether there is excepted from the operation of the assign- 
 ment all necessary household and kitchen furniture which by 
 the law of the State is exempt from levy and sale on execu- 
 tion. 
 
 It was contended, on the one hand, that the bankrupt was 
 entitled to retain all the propei'ty which, by the State law, is 
 exempt from levy and sale on execution ; and that as by the 
 State law all necessary household and kitchen furniture, with- 
 out limitation of value, is so exempted, he was entitled to 
 have it set apart to him. 
 
 On the other hand, it was contended, in opposition to this 
 view; that the fourteenth section of the act provides for the 
 exemption of the household and kitchen furniture ; "that it 
 limits the value of the furniture so exempt to the sum of 
 f500 ; and that the subsequent clause which adopts the ex- 
 emption laws of the State applied by its terms to 'other prop- 
 erty not included in the foregoing exceptions, ' i. e. , to prop- 
 erty other than household and kitchen furniture, which is in- 
 cluded in, and is the subject of, the exceptions referred to." 
 
 It was held, that the bankrupt was " entitled to retain all 
 his necessary household and kitchen furniture of the kind, 
 and to the amount, exempted by the State law," and that " all 
 these exemptions are to be allowed irrespective of the value 
 of the property." 
 
 Hoffman, J., said : "The general policy and intent of the 
 bankrupt law indicated by" its provisions, are obvious. 
 " The exemptions allowed by State laws are recognized and 
 adopted, and the bankrupt is required to surrender to the as- 
 signee, for equal distribution among his creditors, such prop- 
 erty and effects only as are by the law of his domicile liable 
 for his debts," 
 
 The framers of the law appear to have thought that the 
 
 12 Sawyer, 255. 
 
§ 504 EXEMPTIONS UNDER BANKRUPT LAW. 366 
 
 States were better able to determine each for itself what 
 property of its citizens should be applicable by law to the 
 payment of their debts, than Congress was to prescribe an in- 
 variable and universal rule. * * * * The construction 
 of the act suggested by the bankrupt is, therefore, the only 
 one which will give effect to its obvious intent, and at the 
 same time do no violence to its language. The words ' other 
 property not included in the foregoing" exceptions,' may well 
 be taken to mean property other than and not included 
 among the articles set apart by the assignee under the first 
 clause, and they will embrace all property, whether of the 
 same or a different kind, which is by State law exempted from 
 forced sales." 
 
 § 504. Articles to be set apart for the use of the bank- 
 rupt. — In Euth's Case,^ where the bankrupt, in addition to the 
 State exemption, claimed also the full sum of $500, under 
 the United States bankrupt law, Cadwalader, J., said : " The 
 bankrupt law merely provides that the State exemption laws 
 shall still apply, so far as to exclude their subjects from the 
 operation of the proceedings in bankruptcy. The law fur- 
 ther enacts, in effect, that there may in proper cases be an 
 additional exemption, to be graduated with reference to the 
 numbers, health, etc., of the members of the bankrupt's 
 family, to his condition in life, social and otherwise, and to 
 his former and recent, if not present circumstances. The al- 
 lowance is conditional, and is measured with reference not 
 merely to value, but also to subjects, and their suitableness to 
 personal requirements. The subjects must be necessaries and 
 other articles which, in character as well as in amount, are 
 suitable to his family, condition, and circumstances. The as- 
 signee should first consider what exemption is claimed under 
 the State laws. These subjects of exemption, and the 
 specially designated articles, having been set apart, the more 
 responsible duty is afterwards to be performed by him in 
 ■designating the additional articles exempted under the laws 
 of Congress. " 
 
 1 6 Phila. R. 438. 
 
367 EXEMPTIONS UNDER BANKRUPT LAW. §§ 505-506 
 
 It is said in the case of Ex parte Feely/ that the assignee 
 cannot set apart for the use of the bankrupt under the 
 State laws, property specifically mentioned in the fourteenth 
 section of the bankrupt act ; that the allowance under the 
 State law must be of a different kind of property. 
 
 § 505. Money may be allo-wed — Where there are no 
 articles which are necessaries, to be set apart to the 
 bankrupt, according to some authorities, money may be set 
 apart by the assignee, but real estate cannot be so set apart 
 in lieu thereof, even though the personal property, excluding 
 the articles exempted by the State law, be less than the 
 amount which the assignee thinks should be allowed the de- 
 fendant.^ 
 
 In the case of Welch, ^f he setting apart of money to the 
 bankrupt by the assignee was said to be improper and unau- 
 thorized, unless such money is the proceeds of specific things 
 which could and ought to be set apart under the head of 
 " other articles and necessaries " of the bankrupt. 
 
 In setting apart for the use of the bankrupt articles of ex- 
 empt property, the assignee is not obliged to designate arti- 
 cles on which there is no lien,* and all such articles so set 
 apart must be of a palpable and immediate necessity.^ 
 
 § 506. What articles are, and ■^yhat are not, exempt. — 
 
 A fowling-piece, pistol, fishing tackle, paintings, etc. , are not 
 necessaries, and cannot be set apart as such,' nor is a pew in 
 a church exempt, and therefore cannot be set apart under the 
 head of necessaries.' 
 
 A watch, not being exempt under the State statute, does not 
 properly come within the articles designated under the bank- 
 
 1 15 Pitta. li. J. 291 (1 Bright. Di^. 88). See also, as to construction of the pro- 
 visions of the third section, In re Williams, 5 Law Reporter 155 ; Ex parte 
 Noakes, 1 Bank Beg. 164. 
 
 2.1n re Thornton, 2 Bank Keg. 68 ; In re Thornton, 8 Am. Law Beg, 42 ; In 
 re Hay, 7 Bank Eeg. 344. 
 
 8 5 Bank Keg. 348. Per contra, it can, 1 N. T. Leg. Obs. 322. 
 
 i In re Preston, 6 Bank Eeg. 545. 
 
 5 In re Laidlaw, 1 Abb. N. Dig. 259. 
 
 6 In re Ludlow, 1 N. Y. L. Obs. 322. 
 
 7 In re Oomstook, 1 N. Y. Leg. Obs. 326. 
 
§§ 507-508 EXEMPTIONS XJNDBK BANKRUPT LAW. 368 
 
 rupt law, but a family sewing machine is a necessary article 
 within its meaning.^ 
 
 § 507. A cemetery vault, -where it is exempt by State 
 la-w, does not pass to the assignee, and is therefore exempt. 
 
 A bankrupt was possessed of one-half of a vault held by 
 him by virtue of a certificate from the New York Marble 
 Cemetery Company. By the second section of the statute, 
 passed in 1842, incorporating the company, it is enacted 
 " that the said cemetery shall and may at all times hereafter 
 be used and appropriated for the interment of the dead, and 
 for no other use or purpose whatever. The said vaults shall 
 be deemed personal property, and shall not, in case where 
 not more than one of them is owned by the same person, be 
 liable to sale on execution, or be inventoried as assets applica- 
 ble to the payment of debts." 
 
 Held, that the act of the State sanctioned the dedication of 
 a corporate franchise to a pious use ; that the bankrupt's in- 
 terest in the vault could not be reached by creditors, and 
 therefore that it did not pass to the general assignees.* 
 
 § 508. An assignee in bankruptcy is not entitled to re- 
 cover the proceeds of the sale of a personal right^ dis- 
 posed of within four months of such bankruptcy, of a mem- 
 ber of a voluntary association, when the right of member- 
 ship depends upon the assent of the member of such associa- 
 tion, and where such member has only a qualified and limited 
 right of property in such membership, which is subordinate 
 to that of his associates, unless there be a surplus left after all 
 claims due by such member to his associates are satisfied, and 
 then only to the extent of such sui-plus. 
 
 "Where, under the articles of association of a board of 
 stock brokers, a member cannot transfer his seat to a party 
 not elected and approved by the board ; and where, upon in- 
 solvency of a member, his rights as such are forfeited, and the 
 board is authorized to dispose of his seat, and apply the pro- 
 ceeds to the payment of his indebtedness to other members 
 of the board, to the exclusion of all others, only the residue 
 
 lln re Graham, 2 Biss. 0. 0. 449. 2 Ex parte Ely, N. Y. Leg. Obs. 131. 
 
369 EXEMPTIONS UNDER BANKRUPT LAW. § 509. 
 
 of the proceeds of the sale, after paying all the liabilities pro- 
 vided for in said articles of association, is assets of such in- 
 solvent member. ' ' 
 
 " Under such articles, F, a member, failed to meet his en- 
 gagements in the board August 24th, 1872, and being in- 
 debted in a large amount to sundry members, on that day as- 
 signed his seat in the board to W, with authority to sell and pay 
 the proceeds to his various creditors in the board. With the 
 assent of the board, W sold the seat to S, who was elected, 
 by the board, for ten thousand dollars, and with the approval 
 of the board, paid the entire proceeds pro ratably to F's 
 creditors, who were co-members. October 1st, 1872, F was 
 adjudged a bankrupt, on petition of a general creditor, filed 
 Sept., 1872. After said sale and payment, an assignee having 
 been appointed, he brought suit against W to recover said 
 sum of ten thousand dollars." 
 
 Per Sawyer, Circuit J., held, that the assignee was only en- 
 titled to the residue after payment of F's liabilities to the co- 
 members provided for in the articles of association, and there 
 being no surplus, he was not entitled to recover.^ 
 
 PEOTECTION OK BANKRUPT PROPERTY BEYOND THE STATE. 
 
 § 509. Property exempt by the lav/s of the State 
 ■where the bankrupt resides, and where the petition is filed, 
 will be protected, wherever it may be actually situated. 
 Thus, where at the time of the filing of the petition in bank- 
 ruptcy in Wisconsin, certain personal property was in the 
 possession of an ofiicer of the State of Illinois — where, by 
 law, it was not exempt — by virtue of a writ of attachment, 
 the Court said that it would not consider the laws of Illinois, 
 to see whether, under them, the property (team of horses, 
 harness and wagon) is exempt ;' the rights of the bankrupt 
 and his creditors are to be determined under the bankrupt 
 act alone. "Attachments are dissolved without reference to 
 the property upon which they are levied, the object of the 
 
 1 U. S. 0. C. for California, Pacific Law Reporter, June 9th, 1874. Also to be 
 found in Am. Law Times Rep., Vol. 1, 354, August, 1874. 
 
 Homestead — 24. 
 
§§ 510-513 EXEMPTIONS UNDEK BANKRUPT LAW. 370 
 
 act being to stop all proceedings against the bankrupt in any 
 Court, and bring all matters and questions between tbe bank- 
 rupt and any other Court for final settlement. ' ' ^ 
 
 § 510. Workman entitled to the proceeds of goods sold 
 by assignee improperly. — A merchant tailor, who is a prac- 
 tical workman, and who cut and fitted garments for customers, 
 and superintended their manufacture, is entitled, as against 
 the assignee in bankruptcy, to have exempt goods to the 
 value of $400, under the statute of Kansas in force in 1864. 
 This is a fixed and determinate right, given by statute, and is 
 not dependent upon the discretion of the assignee, and where 
 it is claimed by the bankrupt, before the sale of the goods 
 by the assignee, and illegally refused, it may be asserted 
 against the proceeds of the goods while in the hands of the 
 Court for distribution.^ 
 
 § 511. Merchants not entitled to the rights of mechan- 
 ics, miners, etc. — But, under the same local statute, a mer- 
 chant, doing business and residing in Kansas, is not entitled 
 to the special exemption allowed mechanics, miners, or other 
 persons, for the purpose of carrying on their trade or bus- 
 iness.' 
 
 § 512. The " business of *a contractor " is not a " trade, 
 occupation, or profession " within the meaning of the act 
 (Or. Code, 211) exempting certain tools and implements J&om 
 execution.* 
 
 4 
 
 § 513. Property acquired by bankrupt after proceed- 
 ings commenced does not vest in assignee. — Under the 
 fourteenth section of the bankrupt act, "property and rights 
 acquired by the bankrupt after the commencement of the 
 proceedings in bankruptcy do not vest in the assignee. ' ' 
 
 Where a wife, possessed of separate estate secured to her 
 by ante-nuptial settlement, obtained in 1869 a policy of in- 
 
 1 In re Stevens, 2 Biss. 373. 
 
 2 Ex parte Jones, 6 West. Jurist 71 ; also in 4 Chicago L, News 66. 
 
 3 In re Schwartz, 4 Bank Reg. 189.- 
 
 4 In re Whitmore, Deady 0. 0. 585 Oregon. 
 
371 EXEMPTIONS UNDER BANKRUPT LAW. §§ 514-515 
 
 Burance upon her life, payable upon her death to her hus- 
 band, the premium for a year was paid by her out of her own 
 estate. Before the year expired her husband was adjudged 
 a bankrupt. Out of .her own estate she paid the premiums 
 for the two following' years, 1870 and 1871, and before the 
 next premium fell due she died. The question arose between 
 the husband and the assignee in bankruptcy, which of the 
 two was entitled to the proceeds of the policy. 
 
 Held, that considering the nature of the contract of insur- 
 ance, and the obvious intention of the wife, that the assignee 
 had no right to the proceeds, but that they belonged to the 
 husband. "Under the circumstances of this case, the credit- 
 ors for whose benefit the money is sought, have not the 
 shadow of a shade of equity to it, nor to defeat the provident 
 and just provision which the wife intended to secure for her 
 husband, not for them. " ^ 
 
 § 514. So, in Pennsylvania, a vested expectant inter- 
 est of a bankrupt in a sum of money payable at his own 
 death, or at the death of another person, may be set apart 
 for the use of bankrupt, providing it does not exceed the 
 amount exempt by law.^ 
 
 § 515. Exemption of individual partners out of part- 
 nership assets. — Quite a diversity of opinion at one time,ex- 
 isted, and still exists to some extent, among the several Dis- 
 trict Courts, whether, under the 14th section of the bankrupt 
 act, individual partners are entitled to the exemptions therein 
 named out of the partnership assets, where there are no indi- 
 vidual assets, and where the partnership assets are insuffi- 
 cient to pay the partnership liabilities. 
 
 Thus, in Ex parte Price' it was held, that an exemption in 
 accordance with the foregoing section could not be allowed 
 to an individual partner out of the partnership estate, on the 
 ground that such exemption could only be allowed in cases 
 where there is a surplus after paying the partnership credit- 
 ors. 
 
 1 In re Murrin, 2 Dill. 125. 2 Ex parte Bennett, 6 Phila. 472. 
 
 3 6 Bank. Reg. 400. 
 
§ 515 EXilMPTIONS UNDBE BANKRUPT LAW. 372 
 
 But in the case of Ex parte Young, "^ where the assignee had 
 allowed the two members of a bankrupt firm an exemption 
 of $150 each, out of the partnership assets, there being no 
 individual assets, the register disallowed the same. On the 
 facts being certified to the Court for its opinion, it was held, 
 that the bankrupts were entitled to the exemption out of 
 partnership assets. 
 
 Again, in the case of Ex parte Rupp,^ it was held that joint 
 assets were liable to the provisions of the bankrupt act al- 
 lowing exemptions, where there are not sufficient individual 
 assets. 
 
 The subject has recently received, at the hands of Treat, 
 J., an elaborate review, in a case which arose in the E. D. of 
 Missouri, in an opinion filed ISTov. 9th, 1874, in which one S. H. 
 Richardson petitions for exemption to be allowed out of part- 
 nership assets. Treat, J., said, in spealring of the bankrupt 
 act : " That act has, at least, this twofold object : First, to en- 
 able all the creditors to share equally in his a^psets, and. 
 Second, while discharging him, being honest and unfortunate, 
 from the further obligations of his debts, to leave him some 
 provision for himself and family until he can start anew in 
 life." The liberal view to be taken of that act is illustrated 
 in the case of Cox v. Wilder,* in which the United States 
 Circuit Court overruled this Court, even in the case of a 
 fraudulent conveyance. If, despite such a conveyance by 
 husband and wife, they are, on its being set aside .as fraudu- 
 lent against creditors, re-invested in their homestead and 
 dower rights, why not, a fortiori, the needed. or prescribed 
 exemption in the absence of fraud, out of any assets in which 
 the debtor was interested. But it is urged that the individ- 
 ual interest of a partner, in copartnership assets, is only in 
 the surplus after copartnership debts are paid ; but is not the 
 question in a fraudulent conveyance, that is, fraudulent as to 
 creditors, estopped from assailing the grant ? " If his cred- 
 itors can set it aside for their own benefit, although it was 
 valid as between the parties thereto, and the ground on which 
 they can thus do so is, that they have an interest in their 
 debtor's property, entitling them to subject it to the payment 
 
 1 3 Bank. Keg. Ill . 24 Bank. Reg. 25. 3 2 Dillon 45. 
 
' 373 EXEMPTIONS UNDER BANKRUPT LAW. § 515 
 
 of their demands, and, notwithstanding their rights and the 
 acts of the grantor, he, when the creditors have divested the 
 grantee, is remitted to his original position as to homestead 
 and other exemptions in said property, why should not said 
 debtor, despite his creditors' interest in copartnership assets, 
 or the interest of copartnership creditors therein, still retain, 
 out of the copartnership assets, the amount of exemption in- 
 terests for the benefit of himself and family ? If his individ- 
 ual estate is large enough to furnish the required exemptions, 
 it should be alone subject thereto, just as his individual debts 
 are primarily chargeable to his private estate. His individ- 
 ual creditors, if there is a surplus in the copartnership estate, 
 receive the benefit thereof, if the private estate is deficient, 
 and vice versa. The copartnership creditors, if not paid out 
 of the copartnership fund, have the benefit of the private 
 estate, if not exhausted in individual debts. Hence, the tech- 
 nical rules as to the relationship of copartnership and individ- 
 ual creditors with respect to copartnership and private estates, 
 if properly applied to exemptions, would remit the debtor to 
 ' his private estate primarily, and if that were insufficient, then 
 to the copartnership estate. So far is the principle underly- 
 ing the rule from defeating the humane doctrine contended 
 for, that logically it requires that doctrine to be asserted." 
 
 " The exemptions are for the ' debtor's benefit,' and apply 
 to all his property, irrespective of the fact that creditors or 
 others may have an interest therein. As among classes of 
 creditors, individual and copartnership, they are permitted, 
 as among themselves, to proceed against the one or the other 
 fund, respectively, and against both in certain contingencies ; 
 vrhy, therefore, is not the debtor, under like contingencies, 
 entitled to the same benefit ? " 
 
 " There is nothing in the State statutes, or in the bankrupt 
 act, to the contrary ; and if we observe the scope and object, 
 instead of narrowing the question to mere technical terms, 
 we give due force to wise and humane provisions of the law." 
 
 "'The exemption claimed must be allowed." ^ 
 
 1 In re S. H. Kiohardson & Co., Chicago L. News, p. 62, November 14, 1874 ; 
 also, in 11 Bank Keg. 114. 
 
§ 516 EXEMPTIONS UNDER BANKRUPT LAW. 374 
 
 g 516. Right of disposition of exempt property by the 
 bankrupt, — The rule in relation to the disposition of exempt 
 real property by the bankrupt, by way of conveyance, mort- 
 gage, or otherwise, (Ante, See. 489) applies to personal prop- 
 erty as well, and a bankrupt can lawfully dispose of such per- 
 sonal property. 
 
 The assignee is not in a position, in relation to exempt 
 personal property, to sue and recover such property so con- 
 veyed. Where the creditors would have no right to seize 
 and sell the property, the assignee, their representative, has 
 no greater rights. 
 
 Thus, where a bankrupt was a brewer, and becoming em- 
 barrassed, mortgaged two horses as security for a debt pre- 
 viously contracted, it appearing that these were the only 
 horses owned by the bankrupt at the date of the mortgage, 
 and up to the time of the filing the petition in bankruptcy. 
 When the mortgagee received the horses and the chattel mort- 
 gage, he had reasonable cause to believe the bankrupt insol- 
 vent. The mortgagee took possession of the horses only a few 
 days before the petition in bankruptcy was filed. The bank- 
 rupt and his family left the country immediately after giving 
 the chattel mortgage, and was not known to be in the State. 
 Held, that the horses under the circumstances, being ex- 
 empt under the laws of Wisconsin, where they were, and 
 where the bankrupt had his domicile, the assignee could not 
 recover the horses from the mortgagee, and had no right of 
 action. 
 
 The Court said : " If the bankrupt had not made the mort- 
 gage, and he had remained in his domicile, the assignee in 
 bankruptcy would not be entitled to claim the horses. The 
 fact of abandonment^ of his domicile by the bankrupt after 
 the mortgage of the horses to the mortgagee, and the pos- 
 session under the mortgage before the commencement of pro- 
 ceedings in bankruptcy, cannot place the assignee in any bet- 
 ter attitude. The bankrupt had a lawful right to mortgage 
 or sell the horses, and having disposed of them, under the 
 law of the State his creditors could not take them" by legal 
 process, for debt from the mortgagee ; neither can the as- 
 
375 EXEMPTIONS UNDER BANKRUPT LAW. § 517 
 
 signee in bankruptcy recover of the mortgagee the proceeds 
 of the sale.""^ 
 
 The question seems to be resolved into this : articles ex- 
 empt under State law, which are sold or disposed of, if they 
 can b6 recovered under the State law as in fraud of creditors, 
 then the assignee can recover. If not, the assignee has no 
 standing in Court. The State law and the State interpretar 
 tiou of such law is the rule, and governs in bankruptcy pro-' 
 ceedings. 
 
 § 517. But otherwise as to a bankrupt -who sells his 
 property in order to defraud his creditors, and takes notes 
 in return, and executes a bill of sale of the same. Such sale be- 
 ing good as between buyer and seller, the vendor is not entitled 
 to the exemption of such articles, he having parted with his 
 title, although the sale be void as against creditors and the 
 vendee took no title as against them. 
 
 Thus, where a bankrupt sold all his stock in trade and tools 
 as a harness-maker, three horses and three buggies, and a lot 
 of cattle, and other property, at the price of §3,684, and took 
 notes for the amount, and a detailed bill of sale of the articles 
 was given by him to the vendee : it was held, under the cir- 
 cumstances of this case, that the bankrupt was not entitled to 
 the exemption, on the ground that he had parted with the 
 title to the property before the filing of the petition, there- 
 fore had no interest in the things as between him and the 
 purchaser. But being a fraudulent sale,^ the purchaser could 
 not hold them as against creditors.^ 
 
 ISohiltz V. Sohatz, 2 Biss. C. 0. 248. 
 
 2 In re Graham, 2 Biasell 0. 0. 449 ; Smith v. Kehr, 2 DiU. 0. 0. 63. 
 
§§ 518-520 PERSONAL PROPERTY EXEMPTIONS. 376 
 
 CHAPTER XIV. 
 
 PERSONAL PKOPERTT EXEMPTIONS. 
 
 § 518. Rules in construing statute exempting person- 
 alty same as realty. — In the construction of statutes ex- 
 empting personal property from attachment, distress, levy, 
 and sale on execution, the same rules apply generally as 
 those governing the homestead exemption, which has been 
 treated in Chap. Ill, Sees. 51 to 67, therefore we will not 
 enter into any elaborate review in the present part of the 
 work. 
 
 § 519. Liberal interpretation of exemption laws. — 
 
 The personal exemption being for the benefit of the family 
 of the debtor as well as for himself; the statutes receive a lib- 
 eral interpretation.^ 
 
 g 520. What is meant by "heads of families." — Where 
 the statute extends such exemption to the " head of the fam- 
 ily," it will not be construed to mean only a man who has a 
 wife and children living with him, but the term will be in- 
 terpreted to embrace every one who controls, supervises, and 
 manages the affairs of the house, though he have neither 
 wife or child. ^ 
 
 1 Montague v. Richardson, 24 Conn. 338 ; King v. Moore, 10 Mich. 538 ; Ford 
 V. Johns, 34 Barh. 364 ; King v. Moore, 10 Mich. 538 ; Megehe v. Draper, 21 Mo. 
 510 ; Becker v. Becker, 47 Barb. 497 ; "Wade v. Jones, 20 Mo. 75 ; Stewart v. 
 Brown, 37 N. T. 350 ; State v. Romer, 44 Mo. 101 ; Alvord v. Lent, 23 Mich. 
 369 ; Robinson's Case, 3 Abb. Pr. (O. S.) 466 ; Eastman v. Caswell, 8 Howard 
 Pr. 75 ; Carpenter v. Herrington, 25 Wendell 370 ; Buxton v. Dearborn, 46 N. 
 H. 44 ; Deere v. Chapman, 25 111. 610 ; Eranklin v. Coffee, 18 Texas 413 ; Was- 
 sell V. Tunnah, 25 Ark. 101 ; Hawthorne v. Smith, 3 Nev. 182 ; Hall v. Penny, 
 11 Wendell 44 ; G-riffin v. Sutherland, 14 Barb. 456 ; ailman v. Williams, 7 Wis. 
 329 ; Bevan v. Hayden, 13 Iowa 122. 
 
 2 Wade t;. Jones, 20 Mo. 75 ; Lallu v. Waters, 17 Ala. 482. 
 
377 PERSONAL PROPERTY EXEMPTIONS. §§ 621-523 
 
 § 521. Husband or father will not be permitted to de- 
 feat the exemption, nor will the exemption allowed for the 
 use of the family be permitted to be defeated by the action 
 of the husband or father, in turning out the property to be 
 levied upon in those States such as Michigan, where the wife 
 is empowered to take such action as will secure for herself 
 and family the personal exemption allowed by law.^ 
 
 § 522. The term " necessary " means all that is neces- 
 sary to live in a convenient manner. — So the term " neces- 
 sary " in a statute which exempted from warrant or execution 
 " bedding and household furniture necessary for supporting 
 life," was held, while it excluded superfluities and articles of 
 luxury, not to denote those articles of furniture only which 
 are indispensable to the bare subsistence of the debtor and 
 his family, but to embrace those'things which are requisite 
 in order to enable the debtor and his family to live in a con- 
 venient and comfortable manner.^ Thus, where a debtor 
 had in use for himself and family, chairs and tables, etc. , of 
 a superior quality, the law would not allow such superior arti- 
 cles to be disposed of and replaced with an inferior quality of 
 much less value, which he and they had not been accus- 
 tomed to use.^ And it was even said that "the meaning 
 was not to be confined to such articles as were considered 
 necessary when the act was passed. ' '* 
 
 § 523. Work-cart does hot include pleasure carriage. 
 
 But the term one "horse or ox-cart," under a statute exempt- 
 ing such from execution, for the ordinary purposes of hus- 
 bandry, does not extend or apply to a pleasure carriage, nor 
 to those larger wagons drawn by horses, and employed solely 
 in the carrying trade ; but such carts or wagons only as are 
 suitablie to be employed about the domestic establishment.^ 
 
 1 King V. Moore, 10 Mioh. 538. 
 SHaswell o. Parsons, 15 Oal. 266. 
 3 Deokerman v. Van Tyne, 1 Sandford 724. 
 i Montague v. Eiohardson, 24. Conn. 338. 
 5 Favers v. Glass, 22 Ala. 621. 
 
§§ 524-527 PERSONAL PROPERTY EXEMPTIONS. 378 
 
 § 524. Exempt property continues to be exempt after 
 death of householder. — Where such property is exempt 
 from seizure aud sale during the lifetime of the judgment 
 debtor, it will be protected after his death for the benefit of 
 the widow and children, as such laws were enacted for their 
 benefit as well as for the debtor's.^ 
 
 § 525. The interpretation is to be according to what is 
 ■written. — Yet, while the Courts extend to these exemption 
 statutes a liberal interpretation, it is said in the case of E.ue 
 V. Allen,^ that " the statutes exempting a debtor's property 
 froip the payment of his debts are not remedial in the ordi- 
 nary sense so as to require them to be construed with any pe- 
 culiar liberality. They are in derogation of the common 
 law, and confer immunities and privileges contrary to its gen- 
 eral maxims. The interpretation, therefore, is to be according 
 to what is written, or that which is plainly or manifestly to 
 be implied from what is written." 
 
 § 526. Exemptions derive their force from statute 
 law of State. — The exemption of property from attachment, 
 levy, distress, seizure, and sale, of course derives its force 
 from the statute^ law of the State ; as under the common law 
 there was little or no exemption of property from the process 
 issuing from the Courts. 
 
 i 527. The rule at common la-w, early adopted, in rela- 
 tion to exemption, extended only to articles and things in act- 
 ual use, such as a hat on a man's head, or a horse which he is 
 riding. Such articles and things, while so in actual use, could 
 not be taken away or distrained under the law of distress, 
 which is analagous to our law of attachment.' So, also, what- 
 ever cannot be restored in the same " plight " is exempted 
 from distress, and this rule was applied to attachments by the 
 Massachusetts Courts prior to the exemption laws of that 
 
 1 Becker v. Becker, 47 Barb. 497 ; Bonnell v. Dunn, 5 Dutch 435. 
 
 2 5 Denio 119. 
 
 3 Co. Lit. 47a, Harg's Notes; 3 Blk. Com. 280 ; Simpson u. Hartop, WUles 513; 
 Story V. Robinson, 6 T. il. 139 ; Garbor v. Faulkner, 4 T. R. 565 ; Hutching v. 
 Chambers, 1 Burr. 579. 
 
379 PERSONAL PROPERTY EXEMPTIONS. §§ 528-529 
 
 State.* The reason assigned for this rule in the early cases 
 is, that to allow distress under such circumstances would lead 
 to perpetual breaches of the peace ; and it is required on the 
 ground of public policy and the convenience of trade ; as a 
 horse standing in a smith's shop to be shod ; cloth at a 
 tailor's shop ; a horse which has cai-ried articles to market, 
 and is standing in the market, etc.^ 
 
 The rule laid down in Hargrave's Ilifote, Co. Lit., 47a, that 
 a chattel cannot be taken away or distrained, "although it 
 be valuable property, as a horse when a man or woman is 
 riding on him, or an ax in a man's hand cutting wood, and 
 the like, they are for that time privileged and cannot be di- 
 strained." So, " if nets are in the hands of a man, they can- 
 not be distrained any more than ahorse on which a man is. " ^ 
 
 After the leading case of Simpson v. Haslop * it became the 
 unquestioned rule of law that those things which are in actual 
 use cannot be taken or distrained. So, in the case of Sim- 
 bolf V. Alford,^ it is held that goods in the actual possession 
 and use of the debtor cannot be distrained. "A man's 
 clothes cannot be taken off his back in execution of a fieri 
 facias. ' ' 
 
 § 528. Common-la-w rule adored in the United States. 
 
 The same principle was aifirmed in this country, that property 
 in the manual possession of a debtor, or worn on the person, 
 could not be taken by mesne process. The sheriff was held 
 liable for trespass in attaching the plaintiff's watch while on 
 his person, and carrying it away.* 
 
 § 529. The territorial limits of the exemption law. — 
 
 The exemption law secures the articles exempted from levy 
 and sale for -the use of the iamily, everywhere within the 
 limits of the State. It is immaterial in what county the ex- 
 
 1 Bond V. Ward, 7 Mass. 128 ; Martindale v. Whitehead, 1 Jones L. (N. 0.) 
 64. 
 ■ 2 Read v. Burley, Oroke Elizabeth 596. 
 
 3 Hargrave's Note, 294 ; Bead v. Burley, Croke Eliz., 539, 596. 
 
 4 4T. R. 568. 
 
 5M. & W. 253; Adams v. Field, 12 Ad. & El. 649. 
 
 6 Mack V. Parks, 8 Gray 517 ; Green v. Palmer, 15 Oal. 411 ; Frazier v. Bar- 
 num, 19 N. J. E^. 316 ; Bumpus v. Maynard, 38 Barb. (N. Y.) 626. 
 
§§ 530-532 PERSONAL PROPERTY EXEMPTIONS. 880 
 
 emption is claimed, the immunity irom seizure and sale at- 
 taches to the property in the possession of the family wher- 
 ever it may be, whether stationary or in the act of moving 
 from one place to another, or whether such removal be made 
 openly or clandestinely. The intention of the head of the 
 family to abscond to avoid the payment of his debts cannot 
 affect the right of the family to property which the law ex- 
 empts from levy and sale for the payment of debts. ^ 
 
 § 530. Protection of the la-w applies only -where fam- 
 ily is in the State. — But while the statute protects the prop- 
 erty for the benefit of the family within the State, it will not 
 apply to one whose family is without the State. ^ 
 
 § 531. All heads of families -within its protection. — 
 
 The privileges of the exemption law extend to all persons 
 wil;hin the State, being heads of families, and no discrimina- 
 tion is usually made between permanent residents, sojourners, 
 or strangers. The law exempts certain articles, or a certain 
 amount in value, of the debtor and his family.' 
 
 § 532. What constitutes a family. — A family may con- 
 ist of two or more persons : thus, a man and his wife, though 
 they have no children, are a family in the sense of the ex- 
 emption law. So, a man and his daughter living together, 
 the wife and mother being dead, are a family.* But a grown- 
 up man, who lives with his stepmother, she having a family, 
 is neither a householder nor a member of the family with 
 which he resides. A householder means the head or person 
 who has the charge of and provides for a family, and so long 
 as that family remains together, without being broken up 
 and incorporated into other families, the exemption privilege 
 remains. The character of householder, or head of family, 
 will not be lost by a mere temporary absence, though he 
 
 1 Davis V. Allen, 11 Ala. 164 ; Marks v. The State ex rel Bowles, 15 Ind. 98 ; 
 Norman v. Belleman, 16 Ind. 156. 
 
 2 Allen v. Manasae, 4 Ala. 554. 
 
 8 Lowe V. Stringham, 14 Wis. 22^ ; Aberorombie v. Alderson, 9 Ala. 981. 
 i Cox V. Stafford, 14 How. Prao. 519 ; Sallie v. Waters, 17 Ala. 482 ; Keifler 
 V. Barney, 31 Ala. 192. 
 
381 PBKSONAL PEOPEKTT EXEMPTIONS. §§ 533-535 
 
 cease to keep house, goes with his family on a visit, stores 
 his furuiture with the intention of returning, the exemption 
 still remains.^ 
 
 In Pennsylvania, it has been held, that a bachelor debtor 
 may have the benefit of the exemption law, though it is gen- 
 erally spoken of as intended for the benefit of the family. A 
 bachelor may be a householder and head of a family, and as 
 such is entitled to the exemption.^ 
 
 A widowed daughter, the mother of several children, re- 
 siding with her father, all using the home in common, she 
 cultivating portions of the land with her children, is entitled 
 to the exemption allowed the cultivators of the soil, and 
 head of a family.' 
 
 § 533. Point of time the family relation commences as 
 aflfecting the right of exemption. — The marriage of the 
 judgment-debtor, after judgment and before the levy under 
 the execution, entitles such debtor to the exemption of the 
 articles enumerated in the law for the use of families ; on 
 the ground, it is said, that the marriage of the debtor, before 
 the levy of the execution, creates a lien in favor of the family 
 paramount to the general lien of the plaintiflE in execution.* 
 
 i 534. In Nebraska, any resident of the State is entitled 
 to the homestead exemption, even though his family are not 
 within its limits, providing he takes up his residence with the 
 intention of making it his home, and bringing his family to 
 join him.^ So, in Texas, the act exempting certain property 
 from execution is not confined to any particular class of per- 
 sons, but applies to all persons within the State." 
 
 g 535. This right of exemption is a purely personal 
 privilege, of which the debtor alone, or his family, can take 
 advantage. It is not assignable ; nor can the debtor waive 
 
 1 Griffin v. Sutherland, 14 Barb. 456 ; Wade v. Jones. 20 Mo. 75. 
 
 2 Dieffenderfer v. Ksher, 2 Grant's Cases 30. 
 
 3 Pollard v. Thomason, 5 Humph. (Tenn.) 56 ; Brigham v. Bush, 33 Barb. 596. 
 
 4 Watson u. Simpson, 5 Ala. 233. 
 
 5 The People ex reL Dobson v. MoClay, 2 Neb. 7. 
 
 6 Cobbs V. Coleman, 14 Texas 594. 
 
§ 536 PERSONAL PROPERTY EXEMPTIONS. 382 
 
 the right in favor of a subsequent creditor (unless such waiv- 
 er was cotemporaneous with the making of the contract) ; nor 
 will it be exempt in the hands of a bailee or agent, at least 
 to the extent of enabling the latter to maintain trespass 
 against the sheriff for taking the property in execution. No 
 one else, however he may claim under the debtor, can set it 
 up to hinder the creditor. ^ 
 
 i 536. Claim and notice. — In order to secure the exemp- 
 tion, in many of the States, it is requisite that the debtor 
 give notice of his intention to claim such exemption to the 
 officer who makes the levy. When the exemption law points 
 out a particular mode in which the benefits of the law are to 
 be claimed, the requirements of the act must be strictly com- 
 plied with, if the debtor would avail himself of its protec- • 
 tion.^ 
 
 " The statute allowing exemption is reasonable and benefi- 
 cent, and ought not to be so construed as to defeat the inten- 
 tion of the legislature, unless unavoidable." 
 
 " Though a debtor is entitled to the statutory exemption of 
 $300 as against the process called attachment execution, he 
 is to obtain it as in other cases by demanding it of the officer 
 when the process is served, or within a reasonable time after. 
 The reason w'hy he is held to promptitude of demand is that 
 the costs of further proceedings may be saved. If he fail to 
 make a demand, a subsequent plea of his right will not avail 
 him.^ 
 
 1 Borland v. O'Neil, 22 Gal. 505 ; Hill u. Johnston, 29 Penn. St. 361 ; Bow- 
 man V. Siuily, 31 Penn. St. 225 ; Miokes v. Tousley, 1 Cow. 114 ; Earl v. Camp, 
 16 Wend. 562 ; Smith v. Hill, 22 Barh. 656 ; Teager v. NiohoUa, 7 Phila. B. 91 ; 
 Wilson V. MoElroy, see 32 Penn. St. 82 ; MoAfloose's Appeal, 32 Penn. St. 277 ; 
 Eberhart's Appeal, 39 Penn. St. 509, and oases cited in note 1 ; Line's Appeal, 
 2 Grant's Cases 197 ; Dodson's Appeal, 25 Penn. St. 232. 
 
 2 Collins V. Boyd, 56 Penn. St. (6 P. Smith) 402 ; Senniokson v. Fulton, 1 Phila. 
 220; Gavitt v. Doub, 28 Cal. 79 ; Gresham v. Walker, 10 Ala. 370. 
 
 3 Stroure's Ex. v. Becker, 44 Penn. St. (8 Wright) 206 ; Bair v. Steinman, 52 
 Penn. St. (2 P. Smith) 423 ; Borland v. O'Keil, 22 Cal. 505 ; Slate v. Floyd, 11 
 Iridells 496 ; Haven v. Melogne, 9 Ind. 196 ; Opitz v. Winn, 3 Or. 9 ; White v. 
 Thompson, 3 Or. 115 ; Gresham v. Walker, 10 Ala. 370 ; Simpson v. Simpson, 30 
 Ala. 225 ; Watson v. Simpson, 5 Ala. 233. 
 
383 , PERSONAL PROPERTY EXEMPTIONS. §§-537-538 
 
 § 537. No claim necessary in some States, -where 
 ■vyithin the statutory allo-wance. — Where the property 
 claimed as exempt does not exceed the amount allowed by 
 statute, no formal claim or demand is necessary by the claim- 
 ant, for the statute by its own force sets apart the whole pi-op- 
 erty to the use of the debtor. By the law itself it is placed 
 beyond the law : the officer seizes and sells a;t his peril, the 
 same as when specific articles are exempt.^ 
 
 But where the property seized exceeds the amouiit exempt 
 by law, it is necessary that demand be made for the exemp- 
 tion, and an appraisement (when the particular statutes re- 
 quire such) had. The benefits of the law cannot be lost except 
 by the omission of the party entitled to make his or her claim 
 in due time and in the proper manner, or by some act incon- 
 sistent with a bona fide claim. ^ 
 
 S 538. A claihi for exemption under an attachment 
 
 must be made, not only prior to the hearing, but before the 
 day of hearing. Thus, where a defendant made his claim on 
 the same day as the hearing and shortly before trial, it was 
 held to be practically a claim at the hearing, and therefore 
 too late.^ 
 
 " The statute was not made to hinder or harass creditors, 
 but to save honest debtors who demand an appraisement in 
 time of $300 worth of their estate. If, however, they seQ, 
 their property levied upon and advertised without claiming 
 the statutory boon, they elect to waive it, and the sheriff or 
 constable may disregard a demand coming so late as half an 
 
 1 Gilleland v. Rhoadea, 34 Penn. St. 187 ; Rogers u.Watennan, 25 Perm. St. 182 
 Diehl V. Holben, 39 Penn. St. 213 ; Keller v. Brioker, 64 Penn. St, 379 ; Krost v, 
 Shaw, 3 Ohio St. 270 ; "Wilson v. MoBlroy, 32 Penn. St. 83 ; Stevens v. Becker, 
 44 Penn. St. 206 ; Cole v. Green, 21 111. 104 ; Hammer v. Freese, 19 Penn. St. 255 
 Campbell u. Gould, 17 Ind. 133. 
 
 2 Hill V. Johnston, 29 Penn. St. 362 ; MoAfoose's Appeal, 32 Penn. St. 277 
 Bowman v. Smiley, 31 Penn. St. 225 ; Eberhardt's Appeal, 39 Penn. St. 509 
 Fuller V. Sparks, 39 Texas 136. 
 
 3 Collins V. Nichols, 5 Ind. 447 ; State ex rel. Biddinger v. Manly, 15 Ind. 8 
 Zimmerman v. Briner, 50 Penn. St. (14 Wright) 535 ; Cooper v. Reeves, 13 Ind 
 53 ; Rushworth v. Swope, 1 Leg. Gaz. (Penn.) 223 ; Banoord v. Parker, 65 Penn 
 St. (15 P. Smith) 336. 
 
§§ 539-540 PERSONAL PROPERTY EXEMPTIONS. 384 
 
 hour before the sale. "1 The omission of. a debtor to give 
 notice, before the sale, of his claim to property of the statu- 
 tory value under the law, will be a bar to his claim to receive 
 ■the statutory amount of the exemption out of the pro- 
 ceeds of the sale.^ 
 
 So, a demand of an appraisement by the defendant in an 
 execution, after the property levied upon has been set up 
 for sale and the biddings begun, is too late.' 
 
 § 539. Demand must be made on each execution. — And, 
 to avail himself of the exemption law, a defendant must make 
 the demand on each particular execution. A demand on one 
 execution will not apply to a subsequent writ on a different 
 judgment.^ "Where such demand is made, and the sheriff", 
 disregarding such claim, proceeds to sell, the defendant may, 
 on leave obtained, be permitted to take out of Court the 
 amount of the exemption allowed by law from the proceeds 
 of the execution, without being compelled to resort to an 
 action against the sheriff", or other officers in charge of the 
 process, to recover the amount exempt.^ But a second de- 
 mand is not necessary when execution issues, and a sale there- 
 under is set aside after demand made, and an alias execution 
 issues subsequently.* 
 
 § 540. Time allowed in \nrhich to claim exemption. — 
 
 Lapse of time is not necessarily material, but will become so 
 when it arises from want of due diligence on one side, and 
 
 1 Simpson v. Simpson, 30 Ala. 225 ; Borland v. O'Neile, 22 Cal. 505 ; Duflen- 
 derfer v. Fisher, 3 Grant's Cases 30. 
 
 2 Miller's Appeal, 16 Penn. St. 300 ; Hammer v. Freese, 19 Penn. St. 257 ; 
 Weaver's Appeal, 18 Penn. St. 307 ; Kogers v. Waterman, 25 Penn. St. 184 ; 
 Brant's Appeal, 20 Penn. St. 141 ; Bowyer's Appeal, 21 Penn. St. 210 ; Dodson's 
 Appeal, 25 Penn. St. 233; McGee u. Anderson, 1 B. Monroe 265; at any time 
 before sale. 
 
 3 Kogers v. Waterman, 25 Penn. St. 182 ; Hammer v. Freese, 19 Penn. St. 255. 
 
 4 Dodson's Appeal, 25 Penn. St. 232 ; Line's Appeal, 2 Grant's Cases 197 ; 
 Bechtell's Appeal, 2 Grant's Cases 375 ; Haswell v. Parsons, 15 Cal. 266 ; John- 
 son & Sutton's Appeal, 25 Penn. St. 117, differs from Byrnes' Appeal, 21 Penn. 
 St. 210, in the fact that in the former the debtor's claim for exemption was 
 made in time, therefore the waiver as to that particular creditor was good, 
 
 6 Hammer v. Freese, 19 Penn. St. 257 ; S. C, 5 Penn. L. J. R. 153. 
 6 MoAfloose's Appeal, 32 Penn. St. 276 ; Cook v. Baine, 37 Ala. 350. 
 
385 PERSONAL PROPERTY EXEMPTIONS. §§ 541-542 
 
 results in loss on the other. Thus, it was held, that a claim 
 made four days before the sale, in the absence of proof that 
 defendant had earlier notice of the levy, was not too late.' 
 A reasonable time will be allowed the exemption claimant in 
 which to make his selection. Thus, in Pennsylvania, where 
 part of the goods levied upon had been set apart to defend- 
 ant on a former writ, he wanted to consult counsel as to the 
 legal effect of that selection, under the second writ. The 
 sheriff insisted on an immediate election. The Court held 
 that the delay asked by the defendant was not unreason- 
 able, and should have been granted.^ So, the absence of 
 the defendant in execution from his home will be suffi- 
 cient excuse for delay in demanding the exemption, and es- 
 pecially where the claim of exemption was made on a pre- 
 vious seizure by the same parties.^ 
 
 WHO MAT MAKE THE CLAIM. 
 
 § 541. The claim of exemption may be made by any 
 person authorized to take charge, or in charge of property, 
 or any member of the family during the temporary absence 
 of the owner, in case of a levy.^ 
 
 Or in the absence of the father and husband, or other head 
 of family, who has left the State, leaving his wife and chil- 
 dren living together, the exemption remains, and may be 
 claimed by them.' 
 
 § 542. Waiver of the right: — The question of waiver of 
 exemption laws has been differently decided in different 
 States. In Pennsylvania, the Courts hold that such waiver is 
 
 1 Kee V. Hobensiok, 2 Phila. 28 ; Seaman u. Luce, 23 Barb. 240 ; Frost v. Shaw, 
 3 Ohio St. 270 ; Lookwood v. Younglove, 27 Barb. 505. 
 
 2 Elliott V. rianigan, 37 Penn. St. 425. 
 
 3 Haswell v. Parsons, 15 Gal. 266. 
 
 i Wilson V. MoElroy, 32 Penn. St. 82 ; MoOarthey's Appeal, 68 Penn. St. 217 ; 
 Waugh V. Burkett, 3 Grant's' Cases 319. 
 6 Woodward v. Murray, 18 Johns. 400. 
 
 Homestead — 25. 
 
§ 542 PERSONAL PROPERTY EXEMPTIONS. 386 
 
 effectual and will be enforced.^ The right of waiver seems 
 not to have been questioned by the Courts of Pennsylvania, 
 from the passage of the act in 1849 till 1865, when the Court 
 said, in the case of Forreston v. Mack,^ in speaking of the 
 waiver of the exemption : "If it were res Integra; if with 
 the experience and observation we have had, we were now, 
 for the first time, to pass upon the question whether debtors 
 could waive their rights under the Act of 1849, or widows 
 theirs under the Act of 1851, we would be very likely to deny 
 it altogether and stick to the statutes as they are written." 
 A very full discussion of the question will be found in the 
 cases here noted. 
 
 It is held, in Pennsylvania, that the debtor's privilege may 
 be waived, either expressly or by implication, and that he 
 does waive it when he fails to request an appraisement in due 
 season, and request it under the execution by which the levy - 
 is made.' 
 
 In a majority of the States it is held that such waiver is 
 ineffectual, and will not be enforced.^ 
 
 In Pennsylvania,, it is said that the statutory privilege of 
 exemption of a portion of his property from levy and sale 
 under execution, is one which may be waived by -the debtor, 
 "when made at the time the debt is created, the waiver is 
 based upon the same consideration as that upon which rests 
 the liability to pay, and is therefore irrevocable. Such a 
 waiver is a contract, that, so far as regards the judgment 
 creditor, in whose favor it is made, the debt shall b6 collecti- 
 
 1 McKenney v. Keader, 6 Watts. 34 ; Case v. Dunmore, 23 Penn. St. 93 ; Hauok's 
 Appeal, -24 Penn. St. 426 ; Johnson v. Sutton's Appeal, 25 Penn. St. 116 ; Line's 
 Appeal, 2 Grant's Cases 197 ; Shelley's Appeal, 36 Penn. St. 373 ; Bowman v. 
 Smiley, 31 Penn. St. 225 ; Smith's Appeal, 23 Penn. St. 310; see, also. State ex 
 rel. Melogne, 9 Ind. 196 ; and as limiting this last case, Eltzroth v. Webster, 15 
 Ind. 21. 
 
 2^49 Penn. St. (13 Wright) 387. 
 
 3 Line's Appeal, 2 Grant's Cases 197 ; Dodson's Appeal, 25 Penn. St. 232. 
 
 4 Haswell v. Parsons, 15 Cal. 266 ; Kneettle v. Newcomb, 22 N. Y . 249 ; Craw- 
 ford V. Lookwood, 9 How. Prac. R. 547 ; Harper v. Leal, 10 How. Prac. E. 282 ; 
 Sevioks v. Walker,, 9 Am. Law Eeg. (La.) 112, 1860-61 ; Shoenberger v. Watts, 
 1 Am. Law Eeg. (N. S.) 553 ; Troutman v, Gowing, 16 Iowa 415 ; Curtis u. 
 O'Brien, 20 Iowa 376 ; Warmbold v. Sohlicting, 16 Iowa 243 ; Maxwell v. Eeed, 
 7 Wis. 582. See Hewes v. Parkman, 20 Pick. 90 ; Denny v. White, 2 Cold. 
 (Tenn.) 283. 
 
387 PERSONAL PROPBKTY EXEMPTIONS. § 542 
 
 ble in the same manner as if the Act of 1849 had never been 
 passed." ^ Any construction of the law which would forbid 
 •the debtor to waive the exemption would be an unnecessary 
 andTinwarrantable abridgment of the right of dominion over 
 property of the owner. ^ 
 
 But when there is no waiver of exemption in the judgment 
 Tinder which property is sold, the debtor can claim the statu- 
 tory exemption of the proceeds, even though there be a waiver 
 of the exemption in other judgments against him." The 
 holder of the judgment containing no waiver can compel the 
 creditors with waiver to resort, first, to the exempt fund for 
 payment. ■* But a debtor cannot waive his right to the $300 
 exemption in favor of a junior lien creditor, nor can he as- 
 sign it to a third person. Whatever he does ijot regularly 
 claim for himself remains in the fund, to be distributed ac- 
 cording to law. The opinion of Black, C. J., on the point, 
 ' was as follows : " We are clearly of opinion that all stipula- 
 tions, not to claim the $300 made in favor of a particular ' 
 creditor, are void, so far as they are intended to affect others ; 
 and that an assignment of a debtor's right is, pro tanto, an 
 abandonment of it. He must make his claird, if he makes it 
 at all, in good faith, to carry out the very purpose of the law, 
 and no other. All transfers and all waivers of his right, 
 whether expressed or implied, inure to the benefit of his 
 creditors in the proper order of their liens. Whatever he 
 does not claim for himself or his family he leaves in the gen- 
 eral fund under the control of the Court, to be distributed 
 among those who are legally entitled to it ; and such distri- 
 bution is not to be regulated by any wish of his, no matter in 
 what form he may choose to express it." ^ 
 
 ISTor can a defendant waive the benefit of the exemption 
 law in favor of a junior execution creditor, so as to give him 
 preference over a prior levy on the same property. The 
 
 1 Bowman v. Smiley, 31 Penn. St. 225. To the same effect is case of In re 
 Solomon, Aift. Law T. Eeport 351, Aug., 1874. 
 
 2 Smiley v. Bowman, 3 Grant's Cases 132. 
 
 3 Bowman v. Smiley, 31 Penn. St. 225. 
 
 i Pittman's Appeal, 48 Penn. St. (12 Wright) 315. 
 SBowyer's Appeal, 21 Penn St. 210. 
 
§ 542 PERSONAL PROPERTY EXEMPTIONS. 388 
 
 law will not tolerate him in the indulgence of preferences.^ 
 A waiver of claim to exemption is binding, even if the 
 debtor afterwards changes his mind, makes claim thereto in 
 due time, and appraisement is made and returned. The 
 waiver in the first instance, it is said, " forms part of the orig- 
 inal contract, behind which the Court will not go."^ But 
 where a debtor agreed verbally with his execution creditor 
 that he might levy on his store if he would leave him his 
 furniture, and afterwards he claimed the $300 exemption. 
 The furniture was appraised at |102. It was held, that there 
 was no consideration for the agreement, and that the debtor 
 had a right to retain the balance of the $300 worth of prop- 
 erty out of the store. Black, J., said : " It cannot be denied 
 that the right jof exemption may be waived. This is settled. 
 It is true, too, that a debtor may stipulate to waive it in such 
 a manner that he cannot afterwards claim it. In other words, 
 a legal contract by which he agrees to let his creditor take all 
 his property in satisfaction of the debt, is as binding as a 
 contract on any other subject. But it must be clearly shown 
 to have been based upon a good consideration. If it be not, 
 it is nudum pactum, and the right is not beyond the power of 
 revocation. A mere declaration by the debtor that he does 
 not intend to claim it, or an expression of his willingness that 
 the creditor may take more of the property than could be 
 taken without his consent, amounts to nothing.- When the 
 agreement to waive the exemption is made at the time the 
 debt is contracted, it is presumed to be part of the original 
 contract on which credit is given. If it be made subsequently, 
 and attested by a writing, it becomes a question of construc- 
 tion, whether the consideration set forth in the paper, as im- 
 ported by its terms, is sufficient or not. "When it is no more 
 than a verbal agreement, and that not connected with the 
 original credit, a consideration of benefit to the debtor, or in- 
 jury to the creditor, must be shown to have been the founda^ 
 tion of the promise, so plainly as to make it a manifest fraud 
 
 IBowyer's Appeal, 21 Penn. St. 210; Shelley 's Appeal, 36 Penn. St. 373 ; Hill 
 V. Johnston, 29 Penn. St. 362 ; Garrett & Martin's Appeal, 32 Penu. St. 160 ; 
 Lauok's Appeal, 44 Penn. St. 395. 
 
 ZLauok's Appeal, 24 Penn. St. 426 ; Wallace v. Collins, 5 Ark. 41. Per contra, 
 see Boss v. Lister, 14 Tex. 469. 
 
389 PBKSONAL PROPERTY EXEMPTIONS. §§ 543-544 
 
 on the part of the debtor to claim afterwards under the law. 
 * * * We cannot say that a contract to waive the right of 
 exemption is void, merely because it was orally entered into. 
 But we do say that an agreement of that kind under the cir- 
 cumstances here disclosed can seldom be safely relied on. 
 Our only reason for not going further, and saying that a parol 
 contract on such subject is altogether void, is, that it would 
 be judicial legislation." ' 
 
 § 543. Clear and precise language must be used. — An 
 
 agreement to waive the exemption made when the debt is 
 contracted must be expressed in clear and precise language ; 
 such an agreement cannot be inferred or conjectured. In the 
 case of O'Neil v. Craig,' the plaintiff took a note in which 
 his debtor promised to pay him "the sum of $37.50, for value 
 received, or the homestead exemption law, without defalca- 
 tion." The Court said : " We cannot say the note contained 
 an agreement not to claim the benefit of the exemption al- 
 lowed by the statute. We may conjecture that such was the 
 debtor's intention, but that is not enough. When, there- 
 fore, judgment was recovered for the debt and an execution 
 was issued, the debtor had a right to the exemption of his 
 personal goods not exceeding in value |300. ' ' 
 
 § 544. Confined to the express stipulations. — When the 
 waiver is made as to certain goods, such waiver will be 
 strictly confined to the express stipulations in such waiver. 
 Thus, where under a clause in a lease stipulating that all per- 
 sonal property on the premises should be liable to distress for 
 rent in arrear, and that all right of exemption should be 
 waived : held, that the waiver extends only to the property 
 on the premises, and if notes are given for the rent in arrear, 
 choses in action cannot be levied upon or attached ; the waiver 
 extends only to the property which has been made liable for 
 the rent.^ 
 
 1 Hoffman v. McDermond, 1 Pitts. 197. 
 
 2 56 Penn. St. (6 P. Smith) 161. 
 
 SMitohell v. Coates. 47 Penn. St. (11 Wright) 202. 
 
§ 545 PERSONAL PROPERTY EXEMPTIONS. 390 
 
 § 545. Waiver in, many States utterly void. — On the 
 
 other hand, while the waiver of the exemption is generally 
 upheld in Pennsylvania, in other States it is questioned, and 
 in many it is held utterly void. 
 
 In New Hampshire, where property exempted by law from 
 attachment and execution had been attached on mesne pro- 
 cess, a declaration of the debtor to a third person, " that he 
 cared nothing about the property thus attached, that the 
 creditor might have it and welcome, but that he would take 
 care he got no more." Held, that such action and language 
 could not be treated as a waiver of his right of action for the 
 taking of the property, l^or could evidence that the cred- 
 itor, having heard of the declaration, proceeded to act upon it, 
 and caused the goods to be sold on execution, avail to defeat 
 an action brought by the debtor for taking the goods, nor in 
 mitigation of damages.^ 
 
 The same view of the question, substantially, has been 
 taken in California, where in a suit against a plaintiff in exe- 
 cution for the value of household furniture sold thereunder, 
 as being exempt, the defendant offered to show that the 
 plaintiff agreed to place the property in the hands of a third 
 person, to be sold for the benefit of the defendant, the cred- 
 itor. Held, that the evidence was not admissible, because 
 such agreement does not necessarily waive the exemption from 
 forced sale.^ 
 
 In the case of Crawford v. Lockwood,' the defendant gave 
 his promissory note in this form : " $33.67. Hammondsport, 
 May 10th, 1851. — For value received, I promise to pay W. 
 "W". Bramhall, or bearer, sixty days from date, the sum of 
 thirty-three dollars and sixty-seven cents, hereby waiving the 
 benefit of all and every exemption of property from sale on 
 execution under the laws of this State." The Court held that 
 this was no waiver ; that the words used did not operate to 
 
 IBice V. Chase, 9 N. H. 178 ; Jordan v. Autrey, -10 Ala. 276 ; G-resham v. 
 Walker, 10 Ala. 370 ; Frost v. Shaw, 3 Ohio St. 270 ; see State u. Melogue, 9 
 Ind. 196. 
 
 2 Haswell v. Parsons, 15 Cal. 266. 
 
 8 9 How. Prao. B. 547. See case of In re Solomon, Am. L. Times, 351, Aug., 
 1874 in Circuit Court U. S. of Virginia. 
 
391 PERSONAL PROPERTY EXEMPTIONS. § 545 
 
 subject the defendant's exempt property to sale on execution, 
 because a waiver cannot operate upon a rigbt not yet in ex- 
 istence, and the right to have property exempt does not ac- 
 crue until that property is about to be taken in execution. 
 The Court furt^ier said, that it was doubtful whether the 
 words "hereby waiving " would amount to an agreement or 
 contract to waive the right to claim the property exempt. 
 The Court intimated that the words must undergo a material 
 change in construction before they could be converted into an 
 agreement to take effect in futuro. 
 
 The principle of estoppel will not apply in such a case, be- 
 cause it relates' not to -a matter of fact, but to a matter of 
 contract. ^ 
 
 Irf this last case of Harper v. Leal, the plaintiff made the 
 following promissory note : " 115.89. — For value received, I 
 promise to pay A. & J. M., or bearer, fifteen dollars and 
 eighty-nine cents, and the interest, on demand ; and for the 
 ■payment of the same I agree to and with them to wa\ve all 
 exemption to property." The Court held that, per se, the 
 clause in italics created no estoppel against the maker in a suit 
 for taking property exempt by statute in an execution issued 
 after judgment for the amount of such note. The Court went 
 much further and said : " IJfot only am I of the opinion that 
 the agreement in this note ' to waive all exemptions to prop- 
 erty ' creates no estoppel, but I go further, and hold that it 
 must also be regarded, in the eye of the law, as a hard, op- 
 pressive, and unconscionable contract, and that it is totally 
 void as in contravention of the spirit of our statutes and of 
 public policy." Again, the same principle was affirmed in 
 Kneettle v. IsTewcomb.^ In that case, plaintiff's exempt prop- 
 erty had been taken in execution. The note on which judg- 
 ment was recovered and execution issued was given for value 
 received, and contained the following words : " And I hereby 
 waive and relinquish all right of exemption of any property 
 I may have, from execution on this debt." The Court, per 
 
 1 Harper v. Leal, 10 How. Prao. K. 276. 
 
 2 22 N. Y. 249 ; Jordan v. Autrey, 10 Ala. 276 ; Kneettle u. Newoomb, 31 Barb. 
 169 ; Crawford v. Lockwood, 9 How. (N. Y.) 547 ; Curtis v. O'Brien, 20 Iowa 
 376 ; Maxwell i;. Reed, 7 Wis. 582. 
 
§ 546 PERSONAL PROPERTY EXEMPTIONS. 392 
 
 Denio, J., (all the judges concurnng) was of " opinion, that 
 a person contracting a debt cannot agree with the creditor 
 that in case of non-payment he shall be entitled to levy his 
 execution upon property exempt from levy by the general 
 laws of the State." 
 
 The statutes which allow the exemption are based upon 
 views of public policy, intended for the preservation of fam- 
 ilies against the improvidence or misfortune of the head, and 
 the latter cannot, by an executory agreement, waive such ex- 
 emption. Because, if eft'ect were given to such waiver, a 
 few words, contained in any note or obligation, would operate 
 to change the law between debtor and creditor, and if they 
 were enforceable, such words would generally be inserted in 
 obligations for small demands, and so frustrate the intention 
 of the legislature. 
 
 So, in Iowa, it is held that a waiver of the exemption laws 
 contained in a note will not, when a judgment is obtained on 
 such note, entitle the plaintiff to have such execution levied 
 upon property exempt from execution by the general laws of 
 the State. Such an agreement would be contrary to public 
 policy.^ But when the execution defendant has voluntarily 
 surrendered property levied upon, without claiming the ex- 
 emption, he is estopped from afterwards setting up that it is 
 exempt because it is of the character of tools with which he 
 earns his living.^ 
 
 § 546. Giving a delivery bond no -vsraiver. — -A delivery 
 bond, given for the release of exempt property, by a house- 
 holder, does not estop him from claiming the exemption after- 
 wards, and before sale. Thus, where A recovered judgment, 
 and sued out an execution against B, who gave up certain 
 property to the officer upon the writ, and executed a delivery 
 bond therefor : afterwards, and before the day of sale, he 
 claimed the property as exempt from execution ; the officer 
 refused to set it apart to him, and sold it. It was held, that the 
 execution of the delivery bond did not estop B from setting 
 up his claim to have the property set apart to him as exempt 
 from execution, at any time before sale ; and that the surren- 
 
 1 Curtis V. O'Brien, 20 Iowa 376. 2 Richards v. Haines, 30 Iowa 574. 
 
393 PERSONAL PKOPEETY EXEMPTIONS. § 547 
 
 der of his property to the officer on the writ was not a waiver 
 of his I'ight afterwards to claim it as exempt.^ 
 
 The same points were decided in the same way in Alabama, 
 Mississippi, and Arkansas. The Alabama Court said : " If 
 third persons would be affected by the withdrawal of the 
 assent of the defendant in execution, perhaps he should not be 
 permitted to claim the statutory exemption for property which 
 he had pointed out or delivered to the officer. But the mere 
 waiver of the statute privilege, uninfluenced by anything ex- 
 traneous, may be revoked. We can discover nothing in rea^ 
 son or legal analogy to prove the reverse, where the levy is 
 assented to, or even approved, ,unless there is some considera- 
 tion for it, either of benefit to the defendant in execution, or 
 injury, actual or threatened, to the plaintiff", or some one 
 else." ^ 
 
 OFFICER'S EIGHTS, DUTIES, AND LIABILITIES. 
 
 § 547. Levy on exempt property same as levy on third 
 person's property. — The rule laid down in Connecticut, in 
 relation to seizing exempt property, is, that there cannot be 
 any difference in the law applicable to the levy of an execu- 
 tion on property exempt from such levy, and a levy on the 
 property of a third person not the execution debtor. " There 
 is no difference in the principle that should apply in the two 
 cases." The officer who wrongfully takes such property in 
 execution cannot justify his action under the process placed in 
 his hands. He is liable for trespass.^ So in Alabama. If an 
 officer having process attempts to levy it on articles exempt 
 by law from sale on execution, after being warned that such 
 articles are exempt, the sheriff" is a trespasser, and the owner, 
 in such case, may use such force as is necessary to prevent the 
 levy.* 
 
 1 EUzroth V. Webster, 15 Ind. 21. 
 
 2 Jordan v. Autrey, 10-Ala. 276 ; Mosely v. Anderson, 40 Misa. 49; Atkinson 
 V. Gotcher, 23 Ark. 101. 
 
 3 Williams v. Miller, 16 Conn. 144. 
 
 4 The State u. Johnson, 12 Ala. 840 ; Simpson v. Simpson, 30 Ala. 225 ; Gauble 
 V. Reynolds, 42 Ala. 236; Freeman v. Smith, 30 Penn. St. 264. See Harleman 
 V. Buck, 30 Penn. St. 267, and 39 Penn. St. 213. 
 
§§ 548-550 PERSONAL PROPERTY EXEMPTIONS. 394 
 
 § 548. The sheriff must decide, on his ow^n responsi- 
 bility, whether property claimed as exempt from execution 
 under the exemption laws be so exempt or not.^ 
 
 In some of the States, the officer is bound to protect the 
 rights of the debtor in execution, and to apprise the defendant 
 in execution of his rights, whether it be property seized, 
 wages or money garnisheed.^ 
 
 § 549. Care of the officer in laying aside property ex- 
 empt.^ — If the officer holding an execution would protect 
 himself, he must be careful in selecting and laying aside goods 
 or chattels that are exempt from such execution ; or, where 
 goods of the value of a certain amount under the particular 
 statute are exempt, he should cause an inventory and appraise- 
 ment to be made of the whole property, and set aside goods 
 to the amount allowed by law to the debtor.' 
 
 § 550. Officer -who abuses his authority, same as if no 
 authority. — Where an officer seizes property under a lawful 
 execution, but afterwards abuses his authority, he is in the 
 same situation as though he had acted without authority. 
 Thus, in the case of Wilson v. Ellis, ^ where a constable, who 
 had seized the property of a defendant under an execution, 
 and sold it without an appraisement, although a demand for 
 an appraisement was duly made by the defendant, the Court 
 said : "In some cases, an act which was in the first instance 
 lawful becomes afterwards a trespass ab initio. Here, the levy 
 was lawful, but the sale, without an appraisement upon request 
 made, was an abuse of the authority contained in the writ to 
 levy and sell ; and this abuse rendered the constable a tres- 
 passer ab initio. It was not a mere nonfeasance, or negative 
 abuse of authority ; for selling the goods without an appraise- 
 ment was an act unauthorized by law, and left the constable 
 in the same situation as though his acts had been illegal 
 from the commencement. For, where the law has given 
 authority, it will protect persons from the abuse of the author- 
 
 1 Houston V. Smith, 1 Phila. K. 221. 
 
 2 State to use of, Conklin v. Barada, 57 Mo. 562. 
 
 3 Elliott V. Whitraore, 5 Mich. 532 ; Wyokoff v. "Wyllis, 8 Mich. 48. 
 • 4 28 Penn., St. 239. 
 
395 PERSONAL PEOPEKTY EXEMPTIONS. §§ 551-553 
 
 ity, by leaving the abuser in the same situation as though he 
 had acted without any authority. ' ' ^ 
 
 § 551. Fraud on the part of debtor no justification 
 of officer. — ISov will the officer who makes a levy on property 
 claimed as exempt be allowed to show, in an action for the 
 recovery of such property, that the debtor had other prop- 
 erty than that levied upon, subject to execution.^ An officer 
 who takes exempt property on execution wrongfully cannot 
 justify himself by the claim that he did not know what por- 
 tion of the property was exempt, not even if the debtor made 
 no claim of exemption. " The mere silence of the party 
 while an officer is stripping him of property exempt from 
 seizure under color of legal authority, furnishes no protection 
 tb the wrong-doer." Nor can an officer claim on behalf 
 of one creditor for whom he acts, the benefit of a waiver of 
 1:he exemption in favor of another creditor.^ 
 
 § 552. Eond given to officer, as inducement to sell, 
 
 void. — A bond given to an officer in order to induce him to 
 sell property exempt from execution, will be no protection, 
 as such bond is null and void. The consideration for such bond, 
 being illegal and for an act in violation of law, cannot be en- 
 forced.^ 
 
 § 553. Party disclaiming ownership cannot sue officer 
 for taking goods. — A defendant iu an execution cannot bring 
 an action against the sheriff for taking and selling goods, 
 which would have been exempt, which the debtor disclaimed 
 having any title to, when the levy was made.** Nor is 
 
 1 To ihe same effect as to the question of trespass, Bao. Ab. B. Tit. Trespass, pi. 
 4 ; Dresor v. King, 3i Penn. St. 201 ; Allen v. Crofoot, 5 Wendell 506 ; Saokrider 
 V. McDonald, 10 John. E. 253 ; Smith v. Gates, 21 Pick. 55 ; Purrington v, Loring, 
 7 Mass. 387 ; Kerr v. Sharp, 14 S. & R. 399 ; Hasard v. Israel, 1 Binn. 240. 
 
 2 Austin V. S-wank, 9 Ind. 109 ; Atkinson v. Gotoher, 23 Ark. 101. 
 
 3 Frost V. Mott, 34 N. Y. 253 ; Cornelia v. Ellis, 11 111. 585 ; but see Cook v. 
 Scott, 6 HI. (1 Gill.) 333 ; Bounell v. Bourman, 53 111. 460 ; Smothes v. Halley, 
 47 HI. 331 ; The People v. Palmer, 46 HI. 398 ; Atkinson v. Gotcher, 23 Ark. 
 101. 
 
 lEenfro v. Heard, 14 Ala. 23. 
 
 6 Gilleland v. Khoades, 34 Penn. St. 187. 
 
§§ 554-555 PERSONAL PEOPEETY EXEMPTIONS. 396 
 
 sucli a defendant who disclaims title when the levy is made, 
 entitled to have such goods subsequently set apart to him.^ 
 
 8 554. No property exempt for purchase-money. — In 
 
 many of the statutes exempting property from forced sale, it 
 is declared that the exemption of property therein authorized 
 shall not extend to an execution on a demand for the purchase- 
 money of such property. The word "purchase-money" is 
 held to mean the original demand for the property sold. Thus, 
 where an execution is issued upon a judgmeiit recovered in an 
 action for taking personal property without the consent of the 
 owner, such execution is not to be considered to be issued on 
 a demand for the purchase-money, and is not within the stat- 
 ute.^ 'Nov does it include a demand on the security given for 
 the purchase-money, when the security is given by a third 
 person.' 
 
 So, crops on leased land were held not to be exempt, on the 
 ground that the landlord had a vendor's lien in the way of 
 purchase-price.'* 
 
 § 555. Debtor's right to dispose of exempt property. — 
 
 Under the later decisions, it is a rule of law, now well estab- 
 lished, that the debtor or head of a family may dispose of the 
 exempt property in any way he may think proper ; and a 
 purchaser from him takes them free, and may maintain an 
 action against the sheriff for a subsequent levy and sale.^ 
 This right of disposition on the part of the execution debtor 
 may be exercised after the execution comes into the hands of 
 the sheriff, and by such sale he will convey a good title.* So, 
 
 1 Strouse v. Becker, 38 Penn. St. 190 ; Caagell v. 'Williaiiig, 12 HI. 387 ; Hol- 
 man v. Martin, 12 Ind. 553 ; Boyd v. Ourlin, 1 Hamph. (Tenn.) 466. 
 
 2Hoyt V. Van Alstyne, 15 Barb. 568. See Chap. IX, Vendor's Lien. 
 
 3 Davis V. Peabody, 10 Barb. 91. See Chap. XIII, Bankruptcy. Cox v. Staf- 
 ford, 14 How. Pr. 519 ; Craft u. Curtis, 25 How. Pr. 163 ; Hiokoxu.Tay, 36 Barb. 
 9 ; Mathewson v. Wilier, 3 Denio 52 ; OTerruled in Cole v. Sterns, 6 How. P. 424, 
 and Cole v. Stems, 9 Barb. 676. 
 
 4DaTia u. Meyers, 41 G-a. 95; Phelps v. Porter, 40 Ga. 485; Talliafero u. 
 Pry, 41 Ga. 622 ; Harrell v. Pagan, 43 Ga. 339. 
 
 B See Bankruptcy Chap., Sees. 489, 516. Cook v. Baine, 37 Ala. 350 ; Pool v. 
 Eeid, 15 Ala. 826. 
 
 6 Pool V. Beid, 15 Ala. 826 ; Paxton v. Freeman, 6 J. J. Marsh. 234. 
 
397 PERSONAL PKOPBRTY EXEMPTIONS. §§ 656-557 
 
 in Indiana, it has been held, that where $300 worth of prop- 
 erty has been set ofi' to a debtor under the exemption law, 
 such property may afterwards be sold by him, discharged 
 from the lien of the execution. ^ 
 
 So, in IS'orth Carolina, where A, to whom certain articles of 
 personal property had been allotted under the personal property 
 exemption act, sold and transferred the same to B, for a valuable 
 consideration ; afterwards, the articles having been seized by 
 a constable under attachment against A's property, B rescinded 
 his contract with A, and the property was sold by the officer. 
 It was held, in a suit against the officer, that A, the plaintiff', 
 had a right to recover the value of the property at the time 
 of its seizure.^ 
 
 S 556. The exchange of exempt property for other 
 goods or money does not, in Alabama, make the goods or 
 money so received in exchange liable to be sold on execu- 
 tion.* 
 
 But in North Carolina, it would seem that in order to ex- 
 empt such articles received in exchange for exempt property, 
 it is necessary to have such exchanged goods set apart by a 
 second allotment.^ 
 
 "While in Iowa, the exchange of exempt property, such as 
 homestead, policies of insurance, or the team with which the 
 head of a family habitually earns his living, for articles of 
 merchandise, such merchandise will not be clothed with the 
 exemption, but will remain liable to the payment of his 
 debts. ^ 
 
 g 557. Fraudulent sale or concealment of property. — 
 
 In many of the States the fraudulent sale of property, or con- 
 cealment, does not deprive the debtor of the exemption ; while 
 in others he is denied all protection of its benefits. 
 
 In Alabama, it is held that the articles exempted by law 
 
 1 Godman v. Smith, 17 lud. 152. 
 
 2DuvaU v. Rollins, 68 N. C. 220 ; Frost t. Naylor, 68 N. C. 325. 
 3 Cook u. Baine, 37 Ala. 350; Brewer's Adm. u. Granger, 45 Ala. 580. Per 
 contra, Friedlander v. Mahoney, 31 Iowa 311. 
 * Lloyd V. Durham, 1 Winston 288. 
 5 Friedlander v. Mahoney, 31 Iowa 311. 
 
§ 557 PERSONAL PROPBKTT EXEMPTIONS. 398 
 
 from sale on execution are not rendered subject to such sale, 
 in consequence of the head of the family fraudulently dispos- 
 ing of all the rest of his property. The reason assigned for 
 this ruling is, that the plain design of the legislature was, as 
 far as practicable, to secure to the use of the family the ex- 
 empt articles against the folly or improvidence of the head of 
 the family. \His fraudulent conduct, as it respects the rest of 
 his property, cannot be visited on his family so as to de- 
 prive them of the right thus secured to them by law.^ So, in 
 Mississippi, the fraudulent sale by a debtor of all his prop- 
 erty, except that exempt from execution, will not debar him 
 from claiming the exemption of such property from seizure.^ 
 
 In Indiana, it is held that where a person conveys property, 
 whether the sale is fraudulent or not, the grantor can be re- 
 garded as having no title. N^one against his grantee, and as, 
 against his creditors he can have no right if the sale is fraud- 
 ulent. " If he conveyed the property, though fraudulently, 
 that conveyance divested him of all interest in it. If the 
 grantee was privy to the fraud, his title is void as against the 
 creditors of the grantor. If he was not privy to the fraud, 
 and obtained the property for an adequate consideration, he 
 will hold it against the grantor and his creditors. In"* either 
 event, however, the question must arise between the grantee 
 and those creditors." ^ It is held that in no case can a man 
 avail himself of his owt fi-aud. But when an attempted fraud 
 neither injures his creditors nor benefits himself, it seems 
 that the attempt to commit a fraud is nugatory to affect his 
 exemption, one way or the other. ^ 
 
 The rule adopted in New York is to the same efiect as 
 those in Indiana, where it is held that if there be an appear- 
 ance from circumstances that the claimant of property as ex- 
 empt from execution under the statute has reduced himself 
 to exempt property by disposing of or covering up all his other 
 
 1 Calloway v. Carpenter, 10 Ala. 500 ; Cook v. Baiue, 37 Ala. 350 ; Mosely ■» 
 Anderson, 40 Mia3. 49. 
 
 2 Mosely v. Anderson, 40 Miss. 49 ; see Sees. 489 and 517, Bankruptcy. 
 
 3 Mandlove v. Burton, 1 Ind. 41. 
 i Holmes v. Welch, 12 Ind. 555. 
 
399 PERSONAL PROPERTY EXEMPTIONS. § 558 
 
 property in order to defraud his creditors, he will be placed 
 beyond the reach of the statute. ^ 
 
 In Pennsylvania, the rule has been unifoi'm, from its earliest 
 decisions, under the law of 1849, to the present time, that if 
 a debtor has fraudulently concealed or removed any of his 
 other property it will bar him of all claim to exemption.^ 
 
 It is said that the rule of decision which denies the benefit 
 of the exemption law to a dishonest debtor, who shuffles and 
 conceals his property, denies his ownership, and falsely alleges 
 title in his wife or other relatives or friends, with a view of 
 eluding the vigilance of the officer who has an execution to 
 levy, is founded on a sound morality, and is agreeable to the 
 spirit and intention of the exemption law. 
 
 - § 558. Joint o-wnership of property. — The exemption 
 law applies to personal property owned by two persons in 
 partnership, as partnership property, when the execution is 
 against both partners, in like manner as if owned by one of 
 them separately, both claiming the exemption.' But a ten- 
 ant owning property in common, under the laws of Wiscon- 
 sin, is not.entitled to the exemption of property not severable, 
 as for instance, a horse, buggy, and harness, when the exemp- 
 tion is claimed by one of such joint owners.* 
 
 But the rule is otherwise where the property is in its 
 nature capable of severance, as where several tenants in 
 common owned grain and other personal property, and where 
 the share of each might be determined by weight or meas- 
 urement, and be severed or appropriated by one tenant 
 without the consent of the others.' 
 
 In I^ew York, to entitle a person to the benefit of the ex- 
 emption law he need not be the sole owner of the chattel 
 claimed as exempt. It is held in that State that the pro- 
 visions of the exemption act extend as well to property that 
 
 1 Braokett v. 'Watkins, 21 Wend. 68. 
 
 2 McCarthy's Appeal, 68 Penn. St. (18 P. Smith) 217 ; Strous's Ex. v. Becker, 
 38 Penn. St. 190 ; Emerson v. Smith, 51 Penn. St. 90. See 30 Penn. St. 264 ; 
 Smith V. Emerson, 43 Penn. St. 456 ; Huey's Appeal, 29 Penn. St. 219. 
 
 3 Oilman v. Williams, 7 Wis. 329. 
 i Wright V. Pratt, 31 Wis. 99. 
 
 5 Newton v. Howe, 29 Wis. 531 ; West v. Ward, 26 Wis. 579. ' 
 
 / 
 
§ 559 PERSONAL PROPERTY EXEMPTIONS. 400 
 
 is held in partnership or in common, as to that owned in sev- 
 eralty.^ 
 
 In Massachusetts, it is held that the statute does not apply 
 to implements, tools, stock, and materials used for carrying on a 
 partnership business. " The exemption is several, and not 
 joint. It applies to the debtor in the singular number, and is 
 personal and individual only. If he desires to form a partner- 
 ship and combine his means with those of one, or more than one 
 person, he must take the precaution to retain exclusive owner- 
 ship of his tools and implements, allowing the use of them to 
 his associates, or he will lose entirely the benefit of the statu- 
 tory exemption as to that kind of property."^ 
 
 In California, it is held, that personal property which is ex- 
 empt from forced sale on execution is none the less exempt 
 because the judgment debtor owns an undivided interest in 
 it, in common with a stranger to the judgment.^ 
 
 EAENINGS— WAGES. 
 
 § 559. In most of the States the exemption laws protect 
 the earnings or wages of the heads of families for a varied 
 period of time. The intent of the law is that the earnings or 
 wages of such person should not be intercepted by creditors, 
 but be reserved to supply the debtor and his family with the 
 necessaries of life. 
 
 Dixon, C. J., in Brown v. Hebard,* in speaking of the 
 word "earnings," gave the following definition : "It is not 
 easy, perhaps, to determine the precise application of this 
 word as used in the statute. I think a correct definition to 
 be, the gains of the debtor derived from his services or labor 
 without any capital. If the debtor has no capital and no 
 credit contributing to increase his profits, except the credit 
 arising from the labor or service in which he is presently en- 
 gaged, and out of the proceeds of which his obligations on ac- 
 
 1 Badoliflf V. Wood, 25 Barb. 52,; Hoyt v. Van Alstyne, 15 Barb. 571 ; Stewart 
 V. Brown, 37 N. Y. 350. 
 
 2 Pond u. Kimball, 101 Mass. 105. 
 
 3 Servant! v. Lnsk, 43 Cal. 238. 
 
 4 20 Wis. 326. 
 
401 PERSONAL PROPEETT EXEMPTIONS. §§ 560-562 
 
 count of such labor and services are to be discharged, then I 
 think his net receipts or gains from such labor or service may 
 fairly be accounted earnings." 
 
 § 560. Exemption of -wages — To -whom it applies. — 
 
 Such law extends to overseers as well as laborers, who, by 
 agreement with their employers, are to be paid their wages 
 daily or weekly, to enable them to supply the necessaries of 
 life to their families ; ^ and a master workman, who makes a 
 profit on the labor of his workmen, can claim such profits 
 as exempt from attachment or execution, under an act ex- 
 empting wages from execution.^ 
 
 § 561. Garnishment — When and ho-w wages aflFeeted. 
 
 Statutes exempting the earnings of the debtor for his personal 
 services, or those of his family, at any time within thirty, 
 sixty, or ninety days, as the case may be, preceding the levy,~ 
 do not authorize the creditor to seize those accruing after that 
 date by garnisheeing the employer. In such a proceeding, 
 there arises no liabiHty on the part of the employer unless 
 there should accrue, at some time subsequent to the garnish- 
 ment, an indebtedness, on his part, to the employee, for more 
 than the time prescribed in such law.^ 
 
 § 562. A garnishee -who pays over money which con- 
 stitut^&- a part of the personalty exemption of the debtor, 
 does so at his own risk. He will be liable to the debtor 
 (his creditor) for the full amount of the money he has 
 paid.* A person who has been brought into Court as a gar- 
 nishee may answer that the property of the debtor, in his 
 hands, or his indebtedness to such debtor, is exempt by law 
 from seizure on attachment or execution,^ and he is bound to 
 
 1 Cracker v. Mathews, 25 Ga. 571 ; Kussell v. Arnold, Id. 625. 
 
 2 Penn. Coal Co. v. Costello, 33 Penn. Si,. 241 ; Brown v. Hubbard, 20 Wis. 
 326 ; Kuntz v. Kinney, 33 Wis, 510. But see Smitb v. Brooke, 49 Penn. St. 147. 
 
 3 Davis V. Humphrey, 22 Iowa 137; Caraker v. Mathews, 25 Ga. 571. 
 
 4 Watkius v. Cason, 46 Ga. 444 ; Pierce v, Chicago and Northwest. E, K. 
 Co!, Sup. Ct. Wis., Cent. L. Jour., June 11, 1874. 
 
 6 Winterfield v. Mil. and St. Paul R. R. Co, 29 Wis. 589. See as to rights 
 of debtor for money due, claimed as exempt, and ofSoer's duty. State to use 
 V. Barada, 57 Mo. 562. 
 
 Homestead — 26. 
 
§ 563 PERSONAL PROPERTY EXEMPTIONS. 402 
 
 bring the fact to the notice of the Court, otherwise the judg- 
 ment against such garnishee, and the satisfaction thereof, will 
 not bar an action against hina by the attaching debtor. Thus, 
 where one Pierce, " a resident of Wisconsin, had a claim for 
 wages (which, by the law of that State, was exempt from at- 
 tachment and from garnishment) against a railroad company, 
 existing under charters from the States of Wisconsin and Il- 
 linois. In attachment suits brought against Pierce, in Illinois, 
 the railroad company was garnisheed for the amount of its in- 
 debtedness to him. There was no personal service on Pierce, 
 of any summons, or notice of any process ; and he had no 
 actual notice of any of the proceedings, and did not appear 
 in any manner therein. Judgments were recovered against 
 him, and also against the defendant company as garnishee ; 
 and the company satisfied the judgment against it. After- 
 wards, an action was brought by Pierce against the company, 
 upon his said claim. Held, that it was the duty of the com- 
 pany, in the garnishee proceedings, to exhaust all means to 
 avoid a judgment against it, and for this purpose to bring to 
 the notice of the Court the fact that Pierce's claim was ex- 
 empt ; or to notify Pierce of the proceedings, and request 
 him to defend ; and having failed to do either of these things, 
 it is not protected in the action of Pierce against the com- 
 pany by the judgment in garnishment against it, and the sat- 
 isfaction thereof." It was further held, that in the absence 
 of proof to the contrary, the Court would presume that the 
 exemption laws of Illinois were the same as those of Wis- 
 
 § 563. Two or more classes of exemption to one per- 
 son. — Under statutes which specify exempt articles, such as 
 household fui'niture, mechanical tools, etc., such specifications 
 are cumulative ; as in the case of a man who is both the 
 head of a family and a mechanic, he will be entitled to hold 
 both classes of exempt articles.^ 
 
 So, a man who keeps a tavern and boarding-house, and 
 
 1 Pierce v. The Chicago and Northwestern R. R. Co., Sup. Ct. "WiB., June T., 
 1874, Cent. L. Jour., June 11, 1874. 
 2 Harrison v. Martin, 7 Mo. 286. 
 
403 PERSONAL PaOPBETY EXEMPTIONS. § 564 
 
 works at his trade as a tailor part of the time, may also be a 
 person engaged in cultivating the soil, and as such agricul- 
 turist is entitled to the exemption allowed to such class of 
 persons, and the implements of his trade or calling. ^ 
 
 But in Michigan, if a person claiming an exemption be en- 
 gaged in several kinds of business, they will not all be taken 
 into consideration. The exemption will be confined to one 
 branch of business, that in which the debtor is wholly or 
 principally engaged.^ 
 
 g 564. Tools of a mechanic — Trade. — The implements 
 of a debtor's trade, which are exempt from seizure and sale, 
 are the tools of a mechanic used in carrying on his business. 
 
 In general, to come within the meaning of this signification, 
 the debtor must be a mechanic in contradistinction to a manu- 
 facturer : the implements must be tools, in contradistinction 
 to machinery. 
 
 Where the owner of tools is not a tradesman, and does not 
 use the tools himself, but employs others to work for him, the 
 tools are not exempt fi'om execution. " If the exemption is 
 allowable in any case it must be confined to the case of a 
 debtor who uses the tools in his trade, and not to one who em- 
 ploys ot*hers to work for him."' In a recent case in-Con- 
 necticut, the rule is laid down substantially as follows : " The 
 implements of a delstor's trade," within the meaning of the 
 statute exempting them from execution, are tools of a 
 mechanic used in carrying on his business. Such tools are 
 exempt, although of an improved and expensive character. 
 But they must be strictly tools, in contradistinction to ma- 
 chinery. The fact that a mechanic, while carrying on a 
 trade, is also a manufacturer, will not prevent the exemption 
 of such tools as he uses in person in his trade, ll^or will the 
 fact that he is carrying on a trade extend the exemption to 
 implements used by him as a manufacturer. In one case, a 
 
 1 Springer v. Lewis, 22 Penn. St. 191 ; Eager v. Taylor, 9 Allen 156 ; Patten 
 V. Smith, 4 Conn. 455. 
 
 2 Morrill v. Seymour, 3 Mich. 64 ; Kenyon v. Baker, 16 Mich. 373 ; Smalley v. 
 Hasten, 8 Mich. 529; Atwood v. He Paut, 19 Conn. 518. 
 
 3 Aberorombie v. Alderson, 9 Ala. 981 ; Atwood y. De Forest, 19 Conn. 518. 
 
§ 56-4 PERSONAL PROPERTY EXEMPTIONS. 40-1 
 
 debtor carried on the business of book-binding and manufactur- 
 ing blank books, working himself and employing four hands. 
 He had sundry machines for doing different parts of the work, 
 all of which were operated by hand, and all of which, as wejl 
 as the tools used, would have been needed if he had done the 
 work alone. Held, that the machines were not exempt, but 
 all the tools were.' 
 
 But the expression "working tools" is construed to in- 
 clude not only such tools as are indispensably necessary to the 
 mechanic, or even such as .are in general use by individuals of 
 the same craft, but also such as the individual has adopted to 
 facilitate and diminish his labor, and not only working tools, 
 so called by the learned, but such as are so called by the 
 ecaft, such as the individual uses and has set apart as tools for 
 the advantageous prosecution of his business.^ 
 
 Thus, a sewing machine was held exempt when it was 
 necessary for carrying on the trade or business of the debtor, 
 even if the debtor himself did not know how to use it.^ So 
 the tools, implements, and fixtures of a milliner have been 
 held to be exempt.^ 
 
 At one time, in Massachusetts, the word " tools " received 
 a stricter interpretation ; thus Parker, C. J. , in Buckingham 
 V. Billings,^ in speaking of the statute of 1805, said : " This 
 statute, as it is in derogation of the common rights of creditors 
 to secure their debt out of the property of their debtors, olight 
 to have a strict construction. * * It is not to be supposed 
 that it was designed to comprehend within the term ' tools ' 
 (which are properly small articles used by the hand) compli- 
 cated machinery or expensive utensils which may of them- 
 selves be of great value. * * * When the tools of a trade 
 are exempted without any limitation, we are necessarily led 
 
 1 Seeley v. Grwillim, 40 Oonn. 106 ; Atwood v. De Forest, 19 Conn. 513 ; Kuox 
 u. Chadbourne, 28 Maine 160 ; Norris u. Hoitt, 18 N. H. 197 ; Parkeraon v. 
 
 -Wishtman, 4 Strob. 363. 
 
 2 Healy v. Batsman, 2 Bhode Island 454 ; Tellinghast v. Brodfine, 5 Ehode 
 Island 205. 
 
 3 Dowling V. Clark, 1 Allen 283 ; Dowling v. Clark, 3 Allen 571 ; Kayner v. 
 Wiioher, 6 Allen 293. 
 
 4 Wood V. Keyes, 14 Allen 236. 
 
 6 13 Mass. 82 ; Patten v. Smith, 4 Conn. 450. 
 
405 PERSONAL PROPERTY EXEMPTIONS. § 665 
 
 to the conclusion that the term tools was used in the statute 
 to designate those implements which are commonly used by 
 the hand of one man in some manual labor necessary for his 
 subsistence." But this rule has been departed from in sub- 
 sequent cases. 
 
 The meaning of the term "tools" was further elucidated 
 in Howard v. "Williams/ where they were defined to be such 
 as enabled a debtor to carry on his trade in a convenient and 
 usual manner. In that case, the tools of the debtor's appren- 
 tices were held to be exempt. 
 
 ' ' The word ' tools ' is not understood, either in its strict 
 meaning or popular use, as designating complicated ma- 
 chinery, which, in order to produce any useful effects, must 
 be worked by combining several distinct parts or separate 
 pieces, the aid of more hands than one being necessary to 
 perform the operation."^ 
 
 The statute has been held to apply to the case of a boot- 
 maker, carrying "on a small business, although he employs a 
 number of men under him in carrying on the business, work- 
 ing more or less with the tools and implements himself, but 
 being generally engaged in superintending his workmen ; and 
 that sewing machines of simple construction are of the char- 
 acter of those exempted by the statute.^ 
 
 The rule may be stated to be, that every implement that 
 is necessary, usual, or convenient to a handicraftsman, vsill be 
 exempt.* 
 
 § 565. Temporary suspension of trade. — A mechanic 
 who temporarily suspends his occupation, as such, does not 
 thereby lose the right to have his tools exempt from levy and 
 sale.* But it is otherwise where he ceases to follow his trade 
 or calling.^ 
 
 1 2 Pick. 81. 
 
 2 Kenyon v. Baker, 16 Mich. 373 ; Danforth v. Woodward, 10 Pick. 423 ; Pat- 
 ten V. Smith, 4 Conn. 450. 
 
 3 Daniels v. Hay ward, 5 Allen 43. 
 
 4 Davlin v. Stone, 4 Cush. 359 ; Parkerson v. Wightman, 4 Strob (S. C.) 363; 
 Wilkinson i;. Alby, 45 N. H. 551. See Sees. 510, 511, 512. 
 
 6 Caswell v. Keith, 12 Gray 351. 
 6 Davis V. Wood, 7 Mo. 162. 
 
§§ 566-569 PERSONAL PROPERTY EXEMPTIONS. 406 
 
 § 566. The printing or stamping blocks of a painter of 
 
 oilclotlis, used in a business requiring peculiar and extensive 
 buildings, many workmen, and considerable capital, are not. 
 "necessary tools of a tradesman," and exempt. The Court 
 held that the blocks, etc., were "tools" of trade, but that a 
 manufacturer was by no means a tradesman within the mean- 
 ing of the act, whatever he might be in popular parlance. 
 The Court said : "With us, it" (the term tradesman) "is 
 scarcely ever applied to persons engaged in the business of 
 buying and selling, and is clearly not so used in the statute 
 under consideration, but is generally, if not unvaryingly, ac- 
 cepted as signifying mechanics and artificers of every kind, 
 whose livelihood depends upon the labor of their hands." ' 
 
 § 567. A mill saw is not a tool, and is not exempt under 
 a clause in a statute exempting tools. ^ So of a peg machine 
 held not exempt, although shown to be worked part of the 
 time by hand, and actually a tool in the strict sense of the 
 word.^ 
 
 The tools, implements, materials, stock, and fixtures of a 
 paper mill are not exempt.* 
 
 § 568. A threshing machine, used by a farmer to thresh 
 the grain of other people for hire, is not exempt.^ Nor a port- 
 able machine called "Billy and Jenny," for manufacturing 
 cloth.* 
 
 § 569. Printers and editors — Printing press, type, ex- 
 empt. — Materials used in certain kinds of business, although 
 not strictly speaking "tools," will, neyertheless, come within 
 the statute exempting property from execution. Thus, where 
 it was shown that a party depended entirely upon his trade as 
 a printer and editor for means of support, his printing press 
 
 1 Eitchie V. MoCauley, 4 Penn. St. 472 ; McDowell v. Shotwell, 2 Whait. 26. 
 
 2 Batohelder v. Shopleigh, 10 Maine 135. 
 
 3 Knox V. Chadbonrne, 28 Maine 160. See also Kilburn v. Demming, 2 Vt. 
 404 ; Wetherby v. Foster, 5 Vt. 136. 
 
 4 Smith V. Gibbs, 6 Gray 298. 
 
 5 Ford V. Johnson, 34 Barb. 364; Meyer i). Meyer, 23 Iowa 376. 
 
 6 Kilburn v. Demming, 2 Vt. 404. 
 
407 PERSONAL PEOPBETY EXEMPTIONS. §§ 570-572 
 
 and materials necessary for the exercise of his trade, were held 
 exempt. The instruments and tools, to be exempt, must 
 be necessary, and not merely convenient for the exercise of 
 the trade by which the debtor gains a living.^ 
 
 In the case of Sallee v. Waters,^ the Court decided that 
 the press and type of a practical printer, whjch are necessarily 
 used by him and hi,8 journeymen in the publication of a news- 
 paper, are tools or implements of trade within the meaning 
 of the statute exempting certain articles from levy and sale 
 on execution ; but that the paper and ink was rather stock in 
 trade, and not within the purview of the statute. "Printing 
 press, cases, types^ etc., may be tools within thd meaning of 
 ,the statute exempting certain property from execution. ' ' ^ But 
 in Massachusetts and Vermont it is held otherwise.'* 
 
 § 570. The commercial books and counting-house fur- 
 niture of a merchant, and iron chests found in the counting- 
 house, in which his books and papers are kept, in Louisiana, 
 are exempt from seizure.' 
 
 g 571. The instruments of a dentist are included in the 
 
 words -" mechanical tools, " and are therefore exempt ; so is his 
 
 sign.* 
 
 The instruments of a surgeon are exempt as his tools.' 
 Professional books, used by a professional man, who supports 
 
 his family by the exercise of his profession, are exempt from 
 
 execution, as part of his family library.^ 
 
 § 572. Watches and clocks are not exempt unless 
 specifically mentioned in the statute, as a general rule.^ But 
 
 1 Prather v. Boto, 15 La. An. 524. 
 
 2 17 Ala. 482. 
 
 3 Patten v. Smith, 4 Conn. 450. 
 
 i Danforth v. Woodward, 10 Pick. 423 ; Spoouer v. Pletoher, 3 Vt. 133. 
 6 Farmers' Bank v. Franklin, 1 La. An. 393. 
 
 fiDuperron v. Oammuny, 6 La. An. 789 ; but see cases of Whitcomb u. Keid, 
 31 Miss. 567 ; Grimes v. Byrne, 2 Minn. 89 ; Maxon v. Perrott, 17 Mich. 332. 
 7 Robinson's Case, 3 Abbot's Pr. R. 466. 
 
 8 Robinson's Case, 3 Abbot's Pr. B. 466 ; Lambeth v. Milton, 2 Robinson (La.) 
 81. 
 
 9 Rothschild v. Boelter, 18 Minn. 361 ; Leavitt v. Metoalf, 2 Vt. 342 ; Smith v. 
 
§§ 573-574 PERSONAL PROPERTY BXEMPTIONSi 408 
 
 under some circumstances a watch or clock may be so neces- 
 sary, that, when in actual use, either of them may be within 
 the description of necessary household furniture, when the 
 business of such householder is such that some sort of a time- 
 piece is necessary, and therefore would be exempt.^ But 
 when a watch is carried for mere convenience, it will not be 
 exempt.^ So of articles which are merely ornamental, or ar- 
 ticles which may be useful, though not absolutely necessary.' 
 
 § 573. Musical instruments by virhich a musician 
 earns his living are exempt.* — But it is necessary, accord- 
 ing to the view, of some of the Courts, that such musician 
 should constantly follow such profession as a calling in order 
 to have such musical instruments exempt. Thus, where a 
 plaintiff in a case was a pianist, and had taught music for pay 
 within three months prior to the time of the seizure, the 
 Court held that that was not sufficient to show that teaching 
 music was at that time his business.' But a piano is not ex- 
 empt under the heading of necessary household furniture.^ 
 
 § 574. Necessary article — Question of fact. — Whether 
 any article or chattel claimed under the exemption law is 
 "necessary " is a question of' fact under the circumstances of 
 each case.^ 
 
 Thus, where it was proved that a man was taking his vege- 
 tables to market, to exchange them for articles of prime neces- 
 sity in his family, or to obtain the means of paying his taxes, it 
 was held that he would not be deprived of his right to insist 
 that such articles were actually provided for family use, and 
 exempt from seizure and sale on execution.' 
 
 Kogers, 16 Ga. 479 ; Bitting v. Vandenturgh, 17 How. 80 ; "Wilson v. Ellis, 1 
 Denio 462. 
 
 1 LeaTitt v. Metcalf, 2 Vt. 342. 
 
 2 Bitting v. Vandenburgh, 17 How Pr. 80 ; "Wilson v. Ellis, 1 Denio 462. 
 
 3 Towns V. Pratt, 33 N. H. 345 ; Erazier v. Barnum, 19 N. J. Eq. 316. 
 i aoddard v. Choflfee, 2 Allen 395. 
 
 5 Tanner v. Billings, 18 Wis. 163. 
 
 6 Dunlopu. Edgerton, 30 "Vt. 224. 
 
 7 Dains v. Prosaer, 32 Barb. 290 ; Whitmarch v. Angle, 3 Code R. (K. Y.) 53 ; 
 Griffin v. Sutherland, 14 Barb. 456 ; "Willsou v. Ellis, 1 Denio" 462. 
 
 8 Shaw V. Davis, 55 Barb. 389 ; Sickler v. Jacobs, 14 Johns. 434. 
 
409 PERSONAL PROPBKTY EXEMPTIONS. §§ 575-577, 
 
 i 575. A new article that has never been used, but 
 
 which was procured in good faith for use, and which is neces- 
 sary for carrying on a man's occupation, will be exempt. 
 Thus, a new tow-line, which had never been used, but which 
 had been procured by the debtor, a boatman, and prepared 
 for use, which was proved to be necessary in the navigation 
 of the boat, was held exempt.' But whether the boat cable 
 and anchor of a vessel can be attached, and so separated from 
 the vessel, will depend upon the situation of those articles in 
 relation to the vessel. When these articles are in actual use, 
 and necessary to the safety of the vessel, they cannot be 
 taken. But if the vessel is at a wharf, and the articles not in 
 use, they may be attached.^ 
 
 AJflMALS. 
 
 § 576. The term " -work horse," " team," etc., used in 
 
 the statutes, is construed to mean such team or work horse as 
 is required for the ordinary purposes of the family.' A horse 
 kept for the prosecution of a business or livelihood, outside 
 of the requirements of the family, is not exempt.^ But to en- 
 title a debtor to claim a horse as exempt, it is not necessary 
 to prove that the horse is a draught horse and has been used 
 for that .purpose. "A 'work horse' means one that per- 
 forms the common drudgery of the homestead : as to haul 
 wood, to draw the plow, to • carry the family to church, 
 either under the saddle or in harness" ; and he need not have 
 perfoi-med all of these services if he is intended in good faith 
 for the pui'pose.^ 
 
 § 577. A professional man might be entitled to two 
 horses if by their use he habitually earned his living ; and 
 this exemption of two horses would be sustained, although he 
 
 1 Fields V. Motd, 15 Abb. Pr. K. 6. 
 
 2 Brigga v. Strange, 17 Mass. 405 ; Potter v. Hall, 3 Pick. 368. 
 
 3 Allman v. aunn, 29 Ala. 242 ; Mundell v. Hammond, 40 Vt. 641 ; Cook v. 
 Baine, 37 Ala. 350 ; Mathews v. Eedwine, 25 Miss. 99. 
 
 4 Bobinson u. Myers, 3 Dana 441 ; Calhoun v. Knight, 10 Cal. 393 ; Brusie v. 
 Grifath, 34 Gal. 302. 
 
 6 Noland v. Wickham, 9 Ala. 169. 
 
§§ 578-579 PERSONAL PROPERTY EXEMPTIONS. 410 
 
 drove them singly. " That is to say, if his business was such 
 that he needed to use and did use both horses in a single 
 buggy, both would be exempt as fully and entirely as though 
 he used them both together, or as a team in a double buggy."' 
 
 § 578. What must be shovrn — Teamster. — When a 
 " team " is claimed as exempt from execution on forced sale, 
 it must be shown that the party claiming the exemption hab- 
 itually earned his living by the use of such "team" — in 
 other words, a teamster who does hauling for a living, with his 
 own team, to support himself and his family. It is not es- 
 sential that he drive the team himself, so long as he is en- 
 gaged personally in the business habitually.^ 
 
 Where a clerk in a store, at a stated salary, purchases a 
 " team " for his son, under age, who does the teaming, such 
 team will not be exempt, though the work was done for the 
 benefit of the father and family. A clerk, carpenter, or other 
 mechanic whose time is occupied at other pursuits, does not 
 become a teamster in the sense of the statute.' 
 
 § 579. Teamster, team, -wagon. — The New York ex- 
 emption act does not exempt a wagon in terms, neither does 
 it exempt a horse or two horses, but they are exempt never- 
 theless as a "team," by which a man earns his living. It is 
 held, in that State, that a team consists of one or more horses, 
 with their harness, and the vehicle to which they are at- 
 tached.^ And this, whether the number of animals compos- 
 ing the team consists of one, two, three, four, or more. A 
 team may be formed with either of these numbers.^ 
 
 "Where one follows the business of tanner, though he use a 
 
 1 Oorp V. ariswold, 27 Iowa 379 ; VanBuren v. Loper, 29 Barb. 388 ; Wheeler 
 V. Cropsey, 5 How. 288. 
 
 2Harthou3e v. Bikers, 1 Duer 606; Calhoun v. Knight, 10 Gal. 393; 
 Whioher v. Long, 11 Iowa 48. 
 
 3 Brusie v. Griffiths, 34 Gal. 302. 
 
 4 Hutohins v. Ghamberlain, 11 N. Y. Leg. Oba. 248 ; Eastman v. Oaswell, 8 
 How. Pr. R. 75 ; 5 Id. 228, overruling Morse v. Keys, 6 How Pr. 18 ; Wood- 
 ruff V. Gook, 25 Barb. 505 ; Dainea v. Proser, 32 Barb. 290 ; Hoyt v. Van Alatyne, 
 15 Barb. 568. 
 
 5 Wilcox V. Hawley, 31 N. T. 648 ; Bevitt v. Orandall, 19 Wis. 581 ; Hart- 
 house V. Hikers, 1 Duer 606 ; Lookwood v. Tounglove, 27 Barb. 505. 
 
411 PERSONAL PROPERTY EXEMPTIONS. §§ 580-582 
 
 horse iu his business, such horse would not be exempt, not 
 being necessary to his trade. ^ 
 
 So, a wagou used by the owner in carrying on the business 
 of selling patent couplings is not exempt.^ 
 
 The term " wagon," used in exemption statutes, is intended 
 to mean a common vehicle tor the transportation of goods and 
 merchandise, not a hackney coach for the transportation of 
 passengers.^ 
 
 But Courts will give a liberal construction to statutes, so 
 as to include under the foregoing term, "one wagon, "a 
 buggy or pleasure carriage, when it is the only one owned by 
 the debtor.* 
 
 g 580. Animals — Fraud in selling. — A person having 
 two yoke of oxen, and selling one yoke, retaining and work- 
 ing the other, though such sale be in fraud of creditors, the 
 yoke he retains is exempt.' 
 
 § 581. A heifer is included in the term cow, and is exemp t 
 as such, where the owner has no other animal or animals ^ 
 under the exemption of a cow for the use of the family. If a 
 debtor owns two cows, one of which is subject to mortgage, 
 the one which is not mortgaged is exempt.'^ 
 
 § 582. Pood, for exempt animals, is by many of the 
 statutes exempt, in some during the winter months, while in 
 others the exemption extends for one year. The exemption 
 does not extend beyond what is necessary to sustain the ani- 
 mals exempt in a given statute. " This exemption of food is 
 given to render the exemption of the animals practically bene- 
 ficial, as it would be of little use to exempt the animals if the 
 
 1 Wallace v. Collins, 5 Ark. 41. 
 
 2 Potter V. Hall, 3 Pick. 372. 
 
 3 Quigley v. Gorham, a Cal. 418. 
 
 4 Nioliols V. Claybojirne, 39 Texaa 363. 
 
 5 Hettrioh v. Campbell, 14 Penn. St. ^63. 
 
 6 Carruth v. Grossie, 11 Gray 211 ; Tryon v. Manslr, 2 Allen 219 ; Pomeroy 
 V. Treniper, 8 Allen 403 ; Johnson v. Baboook, 8 Allen 583 ; Hill v. Loomia, 
 6 N. H. 263. See Howard u. Parr, 18 N. H. 457. 
 
 7 Wilkinson v. Alley, 45 N. H. 551 ; Cooper v. Neuman, 45 N. H. 339 ; Tryon 
 V. Manser, 2 Allen 219 ; Lindsey v. Puller, 10 Watts (Penn.) 144. 
 
§§ 583-585 PERSONAL PEOPERTT EXEMPTIONS. 412 
 
 food necessary for their sustenance were liable to be taken 
 from the owner. But if the debtor have none of the animals 
 specified, the reason for exempting the food for them wholly 
 
 fails."! 
 
 § 583. Wearing apparel. — Statutes exempting wearing 
 apparel from execution include all wearing apparel" for imme- 
 diate use, as well as clothes for religious holidays, and over- 
 clothes for all seasons.^ 
 
 "Wearing apparel in the hands of a tailor is exempt as neces- 
 sary wearing apparel.^ 
 
 § 584. Household furniture, for family use, will not be 
 confined to articles absolutely in use at the time of the seizure. 
 Such a construction of the statute would be too narrow. 
 The fact that there are household goods not in immediate and 
 constant use is no objection.^ 
 
 So, where under statutes exempting household furniture 
 to a certain amount of money named in the statute, furniture 
 of the value named in the statute is exempt, whether such 
 furniture is necessary for the family use or not.^ 
 
 § 585. Where property is claimed as exempt, the 
 burden of proof is on the claimant to show that at the time 
 of the levy and sale on execution, the facts which entitle him 
 to such exemption existed, and that the property claimed is in 
 character such as is contemplated in the statute.^ 
 
 1 Cowan V. Main. 24 Wis. 569 ; King u. Moore, 10 Mich. 538 ; Kennedy v. 
 Philbriok, 38 Maine 135 ; Gailard v. Hilbom, 23 Maine 442 ; Farrell v. Higly, 
 Hill & D. Sup. (N. T.) 87. 
 
 2 Bumpus V. Maynard, 38 Barb. 626 ; .Sumbolf v. Alvord, 3 Mees & Wells 248 ; 
 Beverly v. Sayles, 10 N. H. 357 ; Ordway v. Wilbur, 16 Me. 263. As to when 
 not exempt, see Bowne v. Witt, 19 Wendell 475. 
 
 3 Bichardson v. Buswell, 10 Met. 506 ; Wentworth v. Young, 17 Maine 70 ; 
 Shaw V. Davis, 55 Barb. 389. 
 
 i Haswell v. Parsons, 15 Cal. 266 ; Montague v. Eichardson, 24 Conn. 346. 
 
 5 Mannau v. Merritt, 11 Allen 582. 
 
 6 Eastman u. Caswell, 8 How. 75; Griffin v. Sutherland, 14 Barb. 456 ; Bains 
 V. ProBser, 32 Barb. 290 ; Carnaick v. Meyers, 14 Barb. 11 ; Van Sickle v. Jao"&b3, 
 14 John. 434 ; Chambers v. Halstead, Hill & D. Supp. 385 ; Tuttle v. Buck, 41 
 Barb. 417 ; Shaw v. Davis, 55 Barb. 389 ; Perkins v. Wianer, 9 Iowa 320 ; B,oas 
 V. Hannah, 18 Ala. 125 ; Briggs v. McCuUough, 36 Cal. 542. 
 
ADDENDA. 
 
 Reports of the Following Cases were Received while 
 THE Work was passing through the Press. 
 
 g 112. The title to land in -which a homestead may be 
 claimed need not necessarily be an absolute title in fee- 
 simple, but it is necessary that the land be held by some 
 kind of title or right, in order that the claim of homestead be 
 , allowed. A mere license to occupy and use land is not such 
 a right, title, or interest as will avail a homestead claimant in 
 maintaining such a right upon property set apart and de- 
 signed as streets, alleys, places, or courts.^ 
 
 g 119. An equitable title is suificient upon which to 
 base a claim of homestead in Illinois, and an exemption claim- 
 ant is entitled to hold property so situated as to title, against 
 all the world, except the holder of the fee where there is a 
 balance due for purchase-money, and against him upon pay- 
 ment of such balance.^ 
 
 g 125. The right of homestead in lands held in com- 
 mon is denied in, Louisiana, on the ground that the claimant 
 "may never become the sole owner of any part of it, be- 
 cause it may happen that a partition by licitation may be 
 deemed most advantageous to the owners, and the partition 
 made in that way." Where the interest in a piece of land of 
 one of six heirs to the deceased father's estate was levied 
 upon and it was claimed as a homestead, the Court said : "It 
 
 1 Randal v. Elder, 12 Kan. 261. See Sees. 112, 113, 114, and cases cited. 
 
 2 Allen V. Ha-wley, 66 111. 168. 
 
 413 
 
§§ 137, 185. ADDENDA. 414 
 
 is an incorporeal, and an incorporeal cannot be tlie object of 
 the homestead act."^ 
 
 § 137. In Kansas, the land composing a city home- 
 stead must be in a compact form, and must not be separated 
 by an alley-way, or streets, or by the lands of others, but " two 
 or more lots, or pieces, or parcels of land may, when adjoin- 
 ing and when united, constitute only one tract or body of 
 land." "The language of the constitution is, that 'a home- 
 stead to the extent of 160 acres of farming land, or of one 
 acre within the limits of an incorporated town or city, occu- 
 pied as a residence by the family of the owner, shall be 
 exempt from forced sale under any process of law. ' '' The 
 language ' one acre (of land) within an incorporated town or 
 city, occupied as a residence by the family of the owner,' cer- 
 tainly does nbt mean to include various tracts of land scattered 
 through an incorporated town or city, amounting in the ag- 
 gregate to no more than one acre ; and the word ' homestead ' 
 itself seems to mean the particular place occupied by the 
 family of the owner as a home, and not to mean various tracts 
 of land wholly detached from the homestead, although they 
 may be used by the owner of the homestead." ' 
 
 § 189. Release of part of mortgaged property, lien on 
 homestead. — Where husband and wife execute a mortgage 
 on several pieces of land, one of which pieces is their home- 
 stead ; subsequently the mortgagee releases part of the land 
 so mortgaged, receiving part of the mortgage debt, but does 
 not release the homestead property : he may enforce his lien 
 against the homestead for the unpaid balance, there being no 
 implied contract or obligation on his part that he will exhaust 
 all other property so mortgaged before resorting to the home- 
 stead, although a Court of equity, iii decreeing a sale, will 
 generally order all other property to be first sold before resort- 
 ing to the exempt property.'' 
 
 1 Henderson v. Hay, 26 La. An. 156. 3 Eandal v. Elder, 12 Kansas 260. 
 
 2 Const, Kan., Art. 15, Sec. 9. 4 Chapman v. Lester, 12 Kan. 593. 
 
415 ' ADDENDA. §§ 198, 225 
 
 § 198. Attachment lien on homestead prior to oocupa- 
 tion. — The law in relation to attachment of property was 
 stated to be,^ according to the decision of the Supreme Court 
 of IsTevada, that a lien of attachment was not such a lien as 
 would debar a person entitled to the right from selecting or 
 claiming a homestead in the mode pointed out by the partic- 
 ular statute after the levy of an attachment, but before a judg- 
 ment was rendered in the case, and that the lien of the 
 judgment did not relate back to the date of the attachment.^ 
 
 The Nevada case was the only one to be found in the re- 
 ports, at the time the foregoing principle was noted, where 
 the point was directly involved. Since which time a case aris- 
 ing under somewhat similar facts has been decided in Kansas, 
 wherein it is held that an order of attachment was such a 
 lien as would prevent a homestead claimant, otherwise enti- 
 tled to the right, from acquiring a homestead estate in land 
 after the attachment and before the judgment ; the latter Court 
 holding that the claimant could then select his homestead 
 "only in subjection to the attachment lien. An attachment 
 lien, like other liens, though not an estate in the land, is such 
 a vested interest therein that it cannot be affected by any sub- 
 sequent act of the debtor. " ' 
 
 § 225. Purchase-money of homestead. — "Where an ex- 
 emption claimant is residing on premises under contract to 
 convey, on which there is a balance due, and being pressed 
 for payment, procures a third party to advance the money so 
 due to the vendor, such third party taking a deed in his own 
 name as security for such advance, will be entitled to a ven- 
 dor's lien, and the money so paid will be treated as purchase- 
 money.* 
 
 1 Sec. 198. 
 
 2 Hawthorne v. Smith, 3 Ney. 185. 
 
 3 Bullene v. Hiatt, 12 Kan. 100. See Tuttle v. Howe, 14 Minn. 145 ; Amer- 
 ican Exchange Bank v. Morris and Canal Banking Co., 6 Hill 362 ; Hale v. 
 Heaslip, 16 Iowa 452 ; Crocker on Sheriffs, § 394 ; Lament v. Cheshire, 6 Lans. 
 (N. Y.) 234. 
 
 * Allen V. Hawley, 66 lU. 170. 
 
§§ 251, 252, 269, 270 addenda, 416 
 
 § 251. Alienation by the husband before occupancy of a 
 
 lot adjoining the homestead, and which was intended as a part 
 of the homestead, but which was not actually used till after 
 conveyance, will prevent the right of homestead attaching to 
 such premises, though subsequently to the deed a kitchen is 
 built upon such lot and used by the family. ^ 
 
 § 252. 1st. The false representations in procuring the 
 ■wife's signature to a deed of the homestead, by the hus- 
 band asserting that he had purchased other lands for a home, 
 is not sufficient to avoid the result of the act. If the wife 
 relies on such representations she does so at her peril, as the 
 Courts will not afford her relief based upon such grounds.^ 
 
 2d. Conveyance signed by the -wife under duress. — The 
 
 consent of the wife required by the statutes in prescribing 
 the manner in which the homestead may be alienated, is 
 such consent on her part as is evinced by her free and volun- 
 tary act. Thus, where a wife is compelled to sign a deed of 
 conveyance by threats and menaces of her husband and the 
 purchaser to take her life if she refused, on her application a 
 deed so executed will be set aside and declared void as to 
 her,' 
 
 § 269. Property mortgaged before occupation subject 
 to the right of homestead. — In Louisiana, it is held that 
 where property is mortgaged subsequent to the passage of 
 the homestead law, but before occupation of the premises, the 
 mortgagee takes the mortgage subject to the contingency of 
 the mortgagor claiming the right of homestead un,der such 
 law, upon foreclosure of such mortgage.* 
 
 § 270. 1st. Rene-wal of mortgage for part purchase- 
 money by husband alone. — If a homestead is purchased, and 
 the purchaser and his wife execute a mortgage for the purchase- 
 money, and include in the mortgage other indebtedness for 
 which the homestead would not be liable, afterwards part of 
 
 1 Grosholz V. Newman, 21 Wallace 486. 3 Id. 
 
 2 Helm u. Helm, 11 Kan. 21. 4 Fuqua v. Chaffe, 26 La. An. 148. 
 
417 ADDENDA. §§ 303, 3&5 
 
 the mortgage debt having been paid, the first mortgage is 
 surrendered and a new one given, signed by the husband 
 alone, for the unpaid balance due on the first mortgage, the 
 holder of the renewal mortgage can enforce payment against 
 the homestead only for so much as remains unpaid of the pur- 
 chase-money of the land.^ 
 
 2d. Extension of time for payment of mortgage by hus- 
 band alone. — Where a mortgage of the homestead, the title 
 to which being in the husband, is duly executed by the hus- 
 band and wife to secure a debt of the husband, afterwards, 
 when the note falls due, the husband can make a valid agree- 
 ment with the holder of the mortgage to extend the time of 
 payment without the wife's consent, and such extension, so 
 granted, will not destroy the validity of the mortgage. The 
 wife is not, in such case, such a surety for her husband as to 
 entitle her to the rights and privileges of other sureties in the 
 sense in which the word is used in law.^ 
 
 § 303. An easement granted over premises occupied 
 as a homestead, such as a common road, r&ilroad, or other 
 privilege, does not in any manner affect its homestead char- 
 acter, as it is not an alienation, the fee to the land over which 
 the easement is granted remaining in the grantor of such 
 privilege or right.^ 
 
 § 355. WidoAv's alloAvance by •way of homestead. — 
 
 In Louisiana, a widow is entitled to the usufruct of one thous- 
 and dollars, during widowhood, by way of allowance under 
 the homestead law, but if she has any money or property of 
 any kind, the amount or value of such money or property 
 will be deducted from the statutoi-y allowance ; thus, where the 
 widow owned $215 worth of furniture, and |140 rent received 
 "by her, it was held that these two sums should be deducted 
 from the homestead allowance, whether the furniture belonged 
 
 1 Pratt V. Topeka Bank, 12 Ean. 570. 
 
 2 JcBness v. Cutler, 12 Kan. 515. 
 SEandalu. Elder, 12 Kan 261. See See. 303. 
 
 Homestead — 27. 
 
§§ 359, 397, 409, 412 addenda. 418 
 
 to the widow or not. ^ And where she has no children of her 
 own, and there are minor heirs of her deceased husband by 
 a former wife, she will be required to give security for the 
 usufruct.^ 
 
 § 359. Lien of vendor of movables inferior to mi- 
 nor's allowanee. — In Louisiana, the vendor of movables has 
 not a superior right to that of a minor in necessitous circum- 
 stances to an allowance under the homestead law. It is held 
 that the words " except those for the vendor's privilege," in 
 the homestead statute, " have reference alone to the privilege 
 of the vendor of real estate"; that, therefore, the claim 
 (f 1,000) of the minor will prevail over that of the vendor of 
 movables.' In successions, the homestead is given the high- 
 est privilege except one, that of the vendor of realty.'' 
 
 § 397. In Illinois, liens of creditors of a deceased house- 
 holder will not attach to the homestead until the youngest 
 child attains the age of majority.^ 
 
 § 409. Wido\v's right to honxestead as against heirs. — 
 
 In Illinois, it has been the rule of law, that the widow was 
 not entitled to a homestead as against the children who are 
 the heirs, in a suit for partition, where there are no debts 
 against the estate. This rule is now changed by recent 
 amendments to the statutes.' 
 
 § 412. An administrator's sale of the homestead to pay 
 
 debts, based upon a decree of Court reciting that at the time 
 
 1 Sucoesaionof Tobias Drum, 26 La. An. 539. 
 
 2 Corner v. Bourg, 26 La. An. 615. 
 
 3 Succession of Cooley, 26 La. An. 166. 
 i Succession of Eouvet,"25 La. An. 431. 
 
 5 Wolf V. Ogden, 66 111, 226, 227. 
 
 6 Sontag V. Sohmisseur, Sup. Ct. HI., June 16, 1875, 2 Western Jurist, 316 : 
 "If dower has not been allowed to the person entitled thereto, or the homestead 
 set off, in case any party to the suit is entitled to an estate of homestead in the 
 premises, or any part thereof, such dower may be allotted, and such homestead 
 set off by the Commissioners, and if the Court shall so direct, the premises so 
 allotted or set off maybe partitioned among the claimants thereto." "This 
 statute only applies to oases arising since the passage of the statute." — ^Ed. West. 
 Jurist Sept!, 1875, Vol. 2, No. 5. 
 
419 ADDENDA. §§ 418, 420 
 
 of the making of such' decree the homestead had been aban- 
 doned, will not be sustained unless the evidence be preserved 
 in the record upon which such decree is based, and the peti- 
 tion upon which the application to sell is made 'must allege 
 that the premises have been abandoned, otherwise upon ap- 
 peal the decree will be reversed. The presumption that sul- 
 ficient evidence was offered to support the decree does not 
 apply in such case.^ 
 
 § 418. Consent to a decree by the husband bars his right 
 
 to relief by a bill filed by husband and wife to set aside such 
 decree entered by consent of the husband in a chancery suit 
 in which the homestead was involved ; but the wife is not 
 bound by such act of the husband where it is shown that she 
 did not consent to such decree and was not aware of its entry, 
 as it is against the policy of the law to allow any act of the 
 husband to have the effect of depriving the family of the ex- 
 emption, except by the approbation of the wife in the manner 
 pointed out by law. In such case, although the husband will 
 be estopped by his own act in consenting to the decree, the 
 wife will be granted relief, and restored to her rights of 
 homestead.^ ' 
 
 § 420. 1st. The ■vrife may assert her right by original 
 bill to the homestead, in Illinois, where she has not signed 
 the deed or mortgage or released her right to the same, and 
 this, though there is a failure to set up the right in the fore- 
 closure proceedings.^ 
 
 2d. Account for rents and profits -wife's right. — Where a 
 wife, by bill filed for that purpose, recovered her homestead, 
 which had been sold under deed of trust in which she did 
 not release her homestead right, and the purchaser at such 
 sale obtained possession by decree entered by consent of the 
 husband in a suit in equity, without the knowledge of the 
 
 1 Wolf V. Ogden, 66 111. 225. 
 
 2 Allen V. Hawley, 66 111. 168. 
 
 3 Allen v. Hawley, 66 111. 169, citing Mooeres v. Dixon, 35 111. 208 ; Wing v. 
 Qropper, 35 111. 256 ; Silsbe u. Lucas, 36 111. 462 ; Hoskins v. Litchfield, 31 111. 
 137. 
 
§ 456 ADDENDA. 420 
 
 wife, and held such possession for several years, and had 
 further succeeded to a claim ^of four hundred dollars purchase- 
 money : it was held that the wife was entitled to an account- 
 ing and to have the rents and pi-ofits of the homestead during 
 the period of such possession by the purchaser under the 
 deed of trust, less taxes and repairs and the four hundred dol- 
 lars due as purchase-money.^ So, where the wife is unlaw- 
 fully dispossessed of the homestead, under a judgment in 
 ejectment against the husband, who had left his wife, she not 
 being a party to such suit : held, that she is entitled to have 
 all the rents and profits arising from the statutory homestead, 
 less taxes and necessary repairs.^ 
 
 3d. Lapse of time in asserting the right by the -wife 
 
 will not defeat her claim to the homestead, where she has 
 been abandoned by her husband, and has been- unlawfully and 
 forcibly dispossessed of the same by color of legal process', 
 and although she has been put of possession for many years.' 
 
 i 456. 1st. Estate of homestead — Interest of the wife 
 in Kansas. — The wife's interest in the homestead is thus spok- 
 en of in Kansas : "It may be said that the wife has in one 
 sense an estate in the homestead occupied by herself and 
 husband, although the title to the same may be in her hus- 
 band ; but still, if it is an estate, it is such an estate, as has 
 never been defined by law, an estate unknown to the common 
 law, technically no estate at all. The whole estate in such a 
 case is, in fact, in the husband, with merely a restriction for 
 the benefit of his family upon his power to alienate the 
 same." ^ "It maybe difl3.cult to define the estate," of the 
 wife, "but it is one, nevertheless. It is not like dower. 
 Dower is only a possible estate, an inchoate interest that, de- 
 pending on cei'tain events, the wife may never enjoy. That 
 the wife's right under our homestead laws is an existing in- 
 terest, probably none will deny." ^ 
 
 . 1 Allen V. Hawley, 66 HI. 170. 3 Mix v. fcing, 66 ni. 146. 
 
 2 Mix V. King, 66 111. 148. i Jenness v. Cutler, 12 Kan. 516. 
 
 5 Helm V. Helm, 11 Kan. 22. 
 
421 ADDENDA. § 456 
 
 2d. The -wife's right to sue to recover the homestead 
 
 during the lifetime of her husband and in her own name is 
 sanctioned by- the Courts of Kansas, where she is compelled 
 to join her husband in alienating the same by threats against 
 her life, and after such execution of the deed he abandons 
 her. " The homestead cannot be alienated without the joint 
 consent of the husband and wife. The wife's interest is an 
 existing one. The occupation and enjoyment of the estate is 
 secured to her against any act of her husband or of his 
 creditors, without her consent. If her husband abandons her, 
 that use remains to her and the family ; with or without her 
 husband, the law has set this property apart as her home." 
 " She, 'then, having been compelled to sign away the interest 
 by duress, has a right to come into Court and have that act 
 declared null and void, so that her rights shall not be lost by 
 the illegal conduct of those who attempted to profit by their 
 violence. When her signature is declared void, the law 
 comes in and disposes of the deed made by her husband 
 without her consent." 
 
 The purchaser demurred to the wife's petition on the 
 grounds — 
 
 " 1st. That the plaintiff herein had no legal capacity to sue 
 as sole plaintiff", she being a married woman, and the claim 
 not having accrued upon or out of her own personal estate, 
 separate and apart from the property of her husband. 
 
 '" 2d. That there is a defect of parties plaintiff", the said 
 Samantha being a married woman, and her husband not be- 
 ing joined with her as plaintiff. 
 
 " 3d. That the petition does not state facts sufficient to con- 
 stitute a cause of action. "^ 
 
 3d. The wife has not the right to sue, even in the name 
 of her husband, in Louisiana, to protect the homestead, and 
 if she attempts to protect it, in the absence of her husband, 
 she will be mulcted in damages in the sum of $500 for at- 
 tempting to assert the right. "Where the husband confessed 
 judgment in 1872, and an execution issued the following year, 
 
 1 Helm u. Helm, 11 Kan. 21 ; Allen v. Hawley, 66 HI.- 169 ; Mix v. King, 66 
 111. 145. 
 
422 ADDENDA. 
 
 the property claimed as a homestead was seized and adver- 
 tised for sale, when a petition was filed in the name of the 
 husband and wife, praying for an injunction to restrain the 
 sale of the plantation, on the ground that they were entitled 
 to a homestead. The wife made the affidavit and executed 
 the bond for the injunction, having been authorized to do so 
 by the judge, on proof that the husband was absent. There 
 was judgment in the lower Court in favor of the wife for one 
 hundred and sixty acres of land. It appears ' ' that the plan- 
 tation s«ized belonged to the husband, the debtor ; that he 
 and his wife resided in Franklin, more than a year preceding 
 the seizure, and that the husband had left the State, apparently 
 with the intention not to return to St. Mary parish. It further 
 appears that Mallon and wife have no children or other per- 
 son directly or legally dependent upon them. It is therefore 
 manifest that they have no right to the benefit of the home- 
 stead act. But the husband, who alone could have asserted 
 the right, if it existed, is not before the Court, and we cannot," 
 therefore, decide any thing to affect his rights. The wife has 
 asserted no right personal to herself in this suit, and she has 
 no right to represent her husband in the matter, nor can she 
 . bind him by her acts. 
 
 " It is therefore ordered and adjudged that the judgment of 
 the District Court be annulled, and that there be judgment in 
 favor of the defendant against the plaintiff and her sureties 
 on the injunction bond for $500 damages. It is further or- 
 dered that the costs in both Courts be paid by the plaintiff'. ' ' * 
 
 § 542. Wife's right of exemption — Waiver by bus- 
 hand. — The wife of a debtor, in Pennsylvania, has the right 
 of retaining articles which are exempt, although' her husband 
 waives such right under a law which says, " that the wife and 
 family, if any, of such debtor, shall be entitled to retain for 
 their own use such articles as may by law be exempted from 
 levy and sale on execution." Such waiver, it was said, was 
 good against him, but the wife's right was not affected. " In 
 such case the law withdraws the property to the extent of the 
 
 1 Mallon and Wife v. Gates, 26 La. An. 610. 
 
ADDENDA. 423 
 
 exemption from the grasp of his creditors, and allows it to 
 remain with his wife and family, for their use. ' ' ^ 
 
 Appraisers appointed to value homestead. — The value 
 set upon a homestead by appraisers, appointed for that pur- 
 pose upon the levy of an execution, is conclusive on the parties 
 to the proceedings as to that value, unless invalidated by 
 -some proceeding instituted for the purpose of revising the 
 record. It will not be permitted to be questioned in a pro- 
 ceeding subsequently instituted to eft'ect a partition of the 
 premises between the debtor and -the creditor to whom the 
 residue has been assigned.^ , 
 
 The right of homestead continues, in Illinois, until the 
 youngest child attains his or her majority, where on the deatk 
 of the householder the family is in the possession of the 
 premises.^ 
 
 Limitation as to time, in Illinois, in which to apply for 
 the sale of real estate by the administrator to pay debts of 
 decedent, will be barred after the lapse of seven years, unless 
 the delay can be explained, and in this respect each case 
 must depend on its own circumstances. This rule applies as 
 well to the homestead as to other property.* 
 
 Who entitled to the right of a rural homestead in Louis- 
 iana. — The law in relation to the exemption of one hundred 
 and sixty acres of land with the improvements, together with 
 the work-stock, supplies, etc., in the Act of 1852, only applies 
 to, and was intended for, a farmer. The law does not apply 
 to a house and lot outside of the city limits, purchased and 
 occupied by an attorney at law.^ 
 
 Surplus proceeds of sale under judgment lien. — Where 
 there are two judgments against a debtor, one of which is a 
 
 1 Hess V. Beatea, Sup. Ot. Penn., May 31, 1875, 32 Legal Int. 336. 
 
 2 Barney v. Leeds, (N. H.) 4 Am. Law Eeo. 29. 
 
 3 "Wolf V. Ogden, 66 HI. 225. 
 
 4 Wolf V. Ogden, 66 lU. 225. 
 
 5 Hargrove v. Flournoy, 26 La. An. 645. 
 
424 ADDENDA. 
 
 lien upon the homestead, and the sherift" sells such homestead 
 and satisfies the judgment which is a lien upon the home- 
 stead, and there is a surplus in the hands of the sheriff which 
 he pays over to the other judgment-creditor upon an order of 
 the District Court, which is obtained without notice to the 
 judgment-creditor, or any appearance by him, such an order, 
 so'made, is at least voidable, if not absolutely void, and gave 
 the parties obtaining it no right. " Said money was the pro- 
 ceeds of the forced sale of the homestead, and was, therefore , 
 exempt from execution issued on any judgment which was 
 not a lien upon the homestead, so long as the claimant desired 
 and expected to use said money in purchasing another hotae- 
 stead, or in redeeming his aforesaid homestead from forced 
 sale."' 
 
 1 Mitchell V. Miltoan, 11 Kan. 624. 
 
INDEX. 
 
INDEX 
 
 Abandonment — of homestead, §§ 278-289. 
 
 of wife, not to defeat homestead right, 55 158> 307. 
 
 by husband, effect of, J 242. 
 
 of homiestead right, effect on judgment lien, §5 183, 184. 
 
 effect of, on prior liens, § 187. 
 
 effect of, on validity of mortgage, 5 267. 
 
 of homestead, to divest right, §5 278-290. 
 
 mode of, § 278. ^ 
 
 not effected by removal after conveyance of husband, §5 280, 420. 
 
 not effected by temporary absence, §§ 278, 282. 
 
 ■what removal construed as, § 283.' ' 
 
 •what not to constitute, 5 284. 
 
 not presumed by seeking other home, 5§ 285, 487. 
 
 not effected by desertion of wife, § 286. 
 
 not effected by desertion of husband, 5 287. 
 
 not effected by involuntary absence of wife, 55 288, 311. 
 
 by voluntary absence of wife, 55 289, 401. 
 
 not effected by absence of minor children, 55 290, 402. 
 
 by widow, effect of, §§ 279, 346, 400-405. 
 
 after execution sale, effect of, 5 446. 
 
 several judgments and effect of, after, 5 449. 
 
 evidence of, 5 449. 
 
 when not a waiver of exemption right, § 516. 
 Abatement — of action by death of wife, § 417. 
 Absconding debtor-^entitled to homestead right, 5 487. 
 Absence — of wife, when and when not an abandonment, 55 288, 289, 401. 
 
 of minor children not an abandonment, 5 290. 
 
 of widow, effect of, § 401. 
 Accounting — of mortgagee in possession for rents and profits, 5 421. 
 
 acquisition of homestead, 5 70. 
 See Dedication, Selection. 
 Accuracy — in pointing out property by debtor, § 447. 
 
 in setting out homestead, 5 439. 
 Acknowledgment — of wife, to homestead declaration, 55 61, 433. 
 
 to conveyance of homestead, 5 243. 
 
 in execution of mortgage, 55 264, 265. 
 
 427 
 
428 INDEX. 
 
 Action — at law for purchase-money, § 226. 
 
 for homestead'abates by death of wife, § 421. 
 
 when will not lis against officer, ^ 553. 
 
 and practice in probate, 55 406, 413. 
 
 affecting- homestead, practice, 55 414-456. 
 
 to enforce vendor's lien, 55 452, 453. 
 
 to protect homestead rights of wife, § 456. 
 
 to set aside execution sale of homestead, 5 414. 
 
 vested right of, is property, 5 32. 
 Actual residence — necessary to homestead right, 55 165, 172. 
 
 length of time required, § 173. 
 Acquisition— of homestead, 55 165-168. 
 
 of homestead not affected by repeal of statute, § 70. 
 Admissions — when conclusive, § 235. 
 
 Adoption — of statutes from other States, construction of, 5 63. 
 Adultery— of wife not to defeat homestead right, 55 158, 287, 307. 
 
 of father not a forfeiture of homestead right, 55 286; 307. 
 
 as a ground for divorce, 5 307. 
 Agriculturist — selection of homestead by, how made, 5 430. 
 
 exempt property allowed to,, 5 563. Addenda. _ 
 
 threshing machine not exempt, § 568. 
 Alabama — statutes authorizing redemption invalid, 5 41. 
 
 requisites of exemption statute to be followed, 5 56. 
 
 homestead right, to what estate may attach, § 115. 
 
 homestead right may attach to several lots, 5 135. 
 
 when husband cannot claim homestead, 5 148. 
 
 resident may claim benefit of exemption laws, 5 148. 
 
 married woman, when not entitled to claim benefit of, 5 156. 
 
 selection of homestead, formal apts necessary, 5 167. 
 
 right of selection, on what depends, 5 169. 
 
 selection, when may be made, 5 176. 
 
 dower no bar to homestead claim, 5 389. 
 
 widow with separate est|,te not estopped, 5 390. 
 
 proceedings to set out homestead, 5 439. 
 
 fraudulent conveyance not to defeat right, 5 557. 
 Allen — rights of resident, 5 149. 
 Alienation — of homestead, 55 71, 239-244. 
 
 effect on prior liens, 5 35- 
 
 effect on lien of judgment, 5 191. 
 
 by insolvent, when fraudulent, 5 207. 
 
 natural right of, not inhibited, 5 241. 
 
 what does not constitute, 5 254. 
 
 before occupancy. Addenda, 5 251. 
 
 by mortgages not to defeat claim for, 5 480. 
 
 of homestead, 5§ 71, 239-244. '• 
 
 by husband, widow's right, 5 374. 
 
 by husband alone, leased land, 5 250. 
 
 by husband alone, before selection, 5 250. 
 
 by husband alone, before occupancy, 5 251. Addenda, 5 251. 
 
 by husband alone, lands held in common, 5 248 . 
 
INDEX. 429 
 
 Alienation— Continued. 
 
 after death of spouse, separate property, § 335. 
 of survivor of community interest, J 338. 
 by mortgage, right of bankrupt, § 480. 
 by husband and -wife, of undivided interest, § 249. 
 by widow, children's rights, J 403. 
 indirect action of husband in destroying right, $ 418. 
 See CONVBYANOB, MOKTGAGH. 
 
 Alimony— power of Court to award, § 314. 
 
 judgment for not enforceable agaiust homestead, § 308. 
 Allovrance — to bankrupt of exempt property, §§ 503, 504. 
 
 by assignee for support of family, § 501. 
 
 money may be allowed to bankrupt, § 505. 
 
 what articles are and what are not exempt, § 506. 
 Ambiguity — in written instrument, rule of construction, § 52. 
 
 words, how interpreted, § 52. 
 Amendment — to original statute construed, § 57. 
 Animals — what exempt from execution, % 576-581. 
 
 exemption not defeated by fraudulent sale of, §5 580, 581. 
 
 food for, what exempt, § 582. 
 Ante-nuptial agreement — aa a bar to widow's rights, § 373. 
 Appeal — ^to United States Courts, when will not lie, § 45. 
 Appraisement — :in setting out homestead, § 439. Addenda. 
 
 in setting apart homestead to widow, § 382. 
 See Dbscbnt and Probatb. 
 Appropriation — as homestead, what subject to, §5 103-131. 
 
 occupation as evidence of, § 280, 
 Appurtenances — to homestead, what may be, §§ 82-84. 
 
 See UsBS. 
 Arbitrators — ^recorded award of, effect, J 186. 
 
 Arizona — formal selection of homestead not necessary, 5§ 167, 169. 
 Arkansas — ^liberal construction of homestead laws, § 60. 
 
 construction of exemption laws, J 66. 
 
 lands held in common subject to dedication, % 120, 123, 127. 
 
 who may select homestead, § 147. 
 
 right of homestead not restricted to married men, § 162. 
 
 formal acts for selection of homestead, not necessary, J 167. 
 
 constitutional requirements to exercise right of, § 169. 
 
 selection of homestead, when may be made, § 176. 
 
 partition of lands and selection of homestead, § 440. 
 Assertion — of homestead right, when to be made, §5 432-435. 
 
 See Bankkhptct, Exeootion Sale, Probate. 
 Assets — of partnership, homestead in land of, § 143. 
 
 See Partnership. 
 Assignee — in bankruptcy, rules to govern, § 492. 
 
 duty to correct errors in schedule, § 495. 
 
 not entitled to recover proceeds of personal right, § 508. 
 
 what property does not vest in, $513. 
 
 not interested in exempt property, §§ 489, 516. 
 
 no right of action to recover exempt property, § 516. 
 
430 INDEX. 
 
 Assignment — for benefit of creditors, effect of, ^ 299. 
 
 of exemption, not to prevail over vendor's lien, § 490. 
 
 specific liens assignable, § 35. 
 
 of vendor's lien, how effected, § 231. 
 
 of title to lyife in fraud of bankrupt act, $ 468. 
 ' right of redemption not assignable, J 535. " 
 Attachment — ^right may be divested by statute, J 30. 
 
 insurance on homestead not subject to, § 102. 
 
 defined, § 197. 
 
 homestead not subject to, $§ 197, 198. 
 
 subject to, Addenda, § 198. 
 
 dissolved on proceedings in bankruptcy, $ 509. 
 
 exemption, rules to apply to, § 527. 
 
 common-law rule adopted, 5 528. 
 
 claim of exemption under, 55 536-538. 
 
 duties and obligations of garnishees, $ 562. 
 Attachment lien, when will not sustain execution, 55 197, 198. 
 
 dissolved by death, § 405. 
 Authority — of officer on levy in execution, 55 548-550. 
 Award — ^power of Court to award alimony, § 314. " 
 
 may prevent homestead right from attaching, 5 186. 
 Axioms — of jurisprudence, 5 49. 
 
 Bachelor — as head of family, §5 160, 482. 
 
 when not entitled to homestead right, 5 161. 
 Bankrupt — right of exemption, in Georgia, § 230. 
 ' right to homestead exemption, § 477. 
 
 entitled to homestead on leased land, § 479. 
 
 when not entitled to homestead exemption, § 484. 
 
 who entitled to exemption under State law, § 486. 
 
 right to dispose of exempt property, § 516. 
 
 sale of property, when defeats exemption right, J 517. 
 
 property beyond the State, § 509. 
 
 allowance to individual partner from assets of partnership, § 515. 
 r property acquired by, after proceedings commenced, §§ 513, 514. 
 
 right of disposition of exempt property, §§ 489, 516. 
 Bankruptcy — title not divested by fraudulent sale, §5 468, 469. 
 
 surrender of property, how made, 5 473. 
 
 State law governs as to exemption proceedings, J 516. 
 Bankrupt Court — jurisdiction of, J 464. 
 
 will not restrain State process, 5 497. 
 
 will protect rights of bankrupt, 5 500. , 
 
 authority to make allowance to bankrupt, § 501. 
 Bankrupt law — exemption, construction of section, 55 457-463, 
 
 adoption of State exemptions' constitutional, §5 460, 503, 
 
 policy and purpose of, J 462. 
 
INDEX. 431 
 
 Bankrupt lavr— Continued. 
 
 liberal construction of exemption olauae, § 463. 
 
 jurisdiction of United States Courts, §§ 18, 464. 
 
 specific liens created by legal proceedings, § 465. 
 
 specific liens under State laws, § 466. 
 
 rule as to illegal preferences, J§ 471, 472. 
 
 provisions, where not retroactive, § 484. 
 
 rules in relation to $500 exemption, J 502. 
 
 personal property exempt, §§ 503-508. 
 
 policy and intent of act, § 503. 
 
 exemptions claimed must be allowed, $ 515. 
 Bar — of homestead by ante-nuptial agreement, § 373. 
 
 of widow's claim before death of husband, J 385. 
 Bill of rights— statute in conflict with, § 65. 
 Bond to convey — by husband alone, invalid, §§ 256-258. 
 Bond to sheriff— when void, § 552. 
 Books.— commercial, § 570. 
 
 Brother — when considered head of family, § 161. 
 Building — what constitutes, 5 59. 
 
 Burden of proof — as to character of property exempt, § 585. 
 Business purposes— homestead used for, §§ 79-88. 
 
 c. 
 
 California — statute impairing obligation of contracts, § 38. 
 obligation of contract, how may be impaired, § 38. 
 requisites of homestead act to be followed, § 56. 
 liberal couatniotion of homestead act, J 61. 
 declaration by wife, sufficiency of, § 61. 
 rights not affected by repeal of act, § 70. 
 nature of estate and tenure of homestead, §§ 73, 74, 
 when buildings for business not exempt, §§ 78, 79. 
 separate property of husband may become, § 105. 
 right of homestead not in lands in joint tenancy, J 120. 
 lands held in common not subject to dedication, JJ 125, 126, 127. 
 homestead, what may include, J 131. 
 who may select, § 147. 
 
 homestead selection, formal acts necessary, J 167. 
 what necessary to secure, § 169. 
 lien of judgment to attach, § 182. 
 judgment, when a lien on homestead, § 192. 
 homestead law to apply to pre-existing debts, § 214. 
 vendor's lien represented by mortgage, 5 218. 
 nothing can be joined with vendor's lien, § 219. 
 wife to join in conveyance of homestead, 5§ 242, 259. 
 conveyance by husband of interest in joint estate valid, § 248. 
 mortgage by husband, validity of, § 269. 
 mortgagor no power to prolong lien, 5 271. 
 
432 INDEX. 
 
 California — Continued. 
 
 estate of husband and wife in, J 319. 
 
 practice and procedure on setting aside homestead, $ 326. 
 
 homestead it excess of statute tralue, practice, sale of, $ 4:27. 
 
 filing declaration under statute, § 433. 
 
 homestead not affected by levy and sale, § 442. 
 
 property to be exhausted before sale of homestead, J 444. 
 
 ■wife alone cannot sue for recovery of homestead, § 456. 
 
 waiver of exemption void, } 545. 
 
 homestead, change of not to prejudice creditor's rights, § 474. 
 when allowed, J 475. 
 not to prejudice rights of debtor, $ 556. 
 Children — ^protection of, ^$ 4, 6, 8. 
 
 birthplace of, § 6. 
 
 rights of homestead estate, §5 72, 97. . 
 
 right to homestead, § 309. 
 
 right to homestead, when absolute, § 330. 
 
 adults and minors distinguished, $ 331. 
 
 who not entitled, in land subject to trust deed, § 337. 
 
 rights of, in common property, § 339. 
 
 when take subject to dower, § 353. , 
 
 claim not affected by abandonment by widow, § 402. 
 
 rights not affected by alienation by widow, § 403. 
 Clocks — when exempt, § 572. 
 Cloud on title — husband cannot create, § 240. 
 
 when decree of foreclosure constitutes, § 262. 
 
 when it arises, J 429. 
 
 what constitutes, § 442. 
 Citizen — guarantee of home to, § 1. 
 
 interest in prosperity of State, § 13. 
 
 immigration and permanent residence, § 14. 
 
 who deemed, § 62. 
 
 entitled to benefit of homestead, § 150. 
 Colorado — what necessary to secure homestead right, § 169. 
 
 selection of homestead, formal acts necessary, 5 167. 
 Common law — rules as to exemption adopted, ^5 527, 528. 
 Common property — may be dedicated as homestead, J 106. 
 
 rights of children in, § 339. 
 Condemnation — without compensation unconstitutional, ■$ 48. 
 Congress — ^power of disposal of public lands, § 141. 
 
 power of to impair contract by Federal law, § 48. 
 Connecticut — ^power of legislature over remedies, § 29. 
 
 selection of homestead, formal acts not necessary, ^ 167. 
 
 homestead acquired by wife as separate estate, §5 164, 169. 
 
 what tools exempt from execution, § 564. 
 Constitution — idea pervading as to exemptions, § 4. 
 
 debates and proceedings in convention, §§ 4, 6. 
 
 deals in generals and not in details, $ 19. 
 
 provision affecting obligations of contract, $ 21. 
 
 limitations, exemption laws valid, § 24. 
 
INDEX. 433 
 
 Constitutipn — Continued. 
 
 obligations of contracts not injured by change in, J 40. 
 
 repeal of statute not implied from change, § 40. 
 
 rules and maxims of interpretation, JJ 51, 52. 
 
 provisions, interpretation of, § 64. 
 
 of Minnesota, provisions as to homestead, § 65. 
 Constitutional construction— subordination of State judiciary, 5 18. 
 
 amount of exempt property, how determined, 5 34. 
 
 exemption clause, 5 35. 
 
 provisions in State constitution, when void, § 48. 
 
 restriction as power to impair obligations', §$ 16, 21, 37, 42, 46, 49. 
 
 of provisions for homestead exemption, §5 65, 67. 
 
 rules fend maxims of interpretation, }§ 51, 52. 
 
 provisions, interpretation of, J 64. 
 
 as. to separate property of wife, $ 106. 
 
 residents may claim homestead exemption, J 148. 
 
 rights of resident aliens, 5 149. 
 
 power of interpretation exclusive in judiciary, J 161. 
 
 uniform operation of laws defined, § 460. 
 Constitutional \arw — ^laws impairing obligation of contracts inhibited, % 16, 
 21, 22, 37, 49. 
 
 what laws within inhibition, § 17. 
 
 validity of exemption laws, 5$ 24, 26, 27, 31. 
 
 remedies, how far State may vary or regulate, J} 24, 25, 27, 32. 
 
 validity of homestead laws, § 33. 
 
 statutes divesting or postponing rights invalid, }} 39, 46. 
 
 statutes barring claims by limitatioa invalid, $ 39. 
 
 when retroactive statute void, §§ 46, 47, 49. 
 
 what an impairment of obligation of contract, §§ 42, 49. 
 
 Federal Constitution the supreme law, J 48. 
 
 bill of rights, § 65. 
 
 exception in statute of exemptions invalid, § 65. 
 
 exemption laws construed, § 66. 
 
 adoption in bankrupt law of State exemptions, §§ 457, 460. 
 
 unconstitutionality of bankrupt act of 1873, 5 458. 
 
 " uniform operation of laws " defined, 5 460. 
 
 waiver of exemptions, § 491. 
 Construction — of homestead acts to be liberal, §§ 7, 11. 
 
 of statutes, not retrospective unless intended, § 46. 
 
 of homestead acts, to be retrospective, § 145. 
 
 of statutes under bankrupt act, § 461. 
 
 exempt clause, to be liberally construed, } 463. 
 
 of statutes of exemption, }§ 51-62, 519, 522, 525. 
 
 of amendments to statutes, § 57. 
 Contract— law a part of, $§ 15, 23, 31. 
 
 obligation of and remedy distinguished, $§ 21, 24, 37. 
 
 distinction construed, $ 23. 
 
 definition of, $ 22. 
 
 rights and remedies co-existent in, $ 23. 
 
 Homestead — 28. 
 
434 
 
 INDEX. 
 
 Contract— Contimied. 
 
 remedy a part of, JJ 23, 31. 
 
 obligation of, when impaired, §§ 25, 26, 27, 37. • 
 
 not affected by change or repeal of law, §§ 30, 38. ~ 
 
 not affected by change in constitution, § 40. 
 
 extent of power of legislature over, §§ 36, 48, 49. 
 
 constitutional prohibition defined, §J 37, 42, 49. 
 
 impaired by imposing new conditions in law, § 39. 
 
 remedy on, how far may be changed, § 48. 
 
 what impairment of, within constitutional inhibition, §§ 42, 49. 
 
 validity and remedy, both partjs of, § 49. 
 
 obligations of, cannot be impaired, § 49. 
 
 how far protected by constitutional inhibition, § 49. 
 
 to convey homestead, effect of, §^ 256-261. 
 , of sale of homestead, 5 256. 
 
 to convey homestead, by husband alone, invalid, §§ 256, 260. 
 
 to convey, pleading in action, to enforce, § 450. 
 
 to convey, to be produced in action, § 452. 
 
 what laws govern, 5 460. 
 doctrine of relation, § 485. 
 Conveyance — by married women, ourative act void, $ 46. 
 of separate property by wife, § 61. 
 by married woman, how made, $ 72. 
 of homestead to wife, §§ 164, 169. 
 in fraud of creditors, what is not, § 234. 
 doctrine as to, § 236. 
 estoppel by, § 238. 
 of homestead, effect of, 5 239. 
 by husband alone, former rule, § 239. 
 recent rule, §§ 240, 242, 364, 366. 
 voluntary alienation, not prohibited, §§ 541, 555. 
 how made, $ 242. 
 acknowledgment by wife, § 243. 
 release in, where essential, 5 244 . 
 what not necessary to state, § 245. 
 rights of husband as to prior equities, J 246. 
 by husband alone, how far void, § 247. 
 by husband, of interests held in joint tenancy, § 248. 
 of undivided interest destroys homestead right, § 249. 
 of undivided interest by hus'^and invalid, J 242. 
 of husband alone, of interest on leased land, § 250. 
 by husband before selection, § 251. 
 fraudulent acts of husband not to affect wife, § 252. 
 by wife to husbapd, J§ 253, 450. 
 to trustee for benefit of wife, J 254. 
 by husband alone, where valid, § 255. 
 to trustee of wife, not abandonment of homestead, J 280. 
 of homestead to wife, when void, 5 280. 
 dedication to public use by, § 303. 
 in fraud of wife's rights, effect of, ^ 315. 
 
INDEX. 435 
 
 Conveyance — Contimced. 
 
 by surviving husband of interest in homestead, ^ 338. 
 
 by husband alo^e, not to prejudice widow's rights, ^ 370. 
 
 by widow, not to affect rights of children, § 403. 
 
 estoppel of grantee by recitals in, § 441. 
 
 of homestead, what essential to validity, §§ 456, 470. 
 
 by wife, what essential to validity of, § 470. , 
 
 when void under bankrupt law, 5 471. 
 
 by debtor of exempt property, § 555. 
 
 what term includes, § 581. 
 Costs — in actions of tort, not affected by exemption laws, ^^ 200, 213. 
 Creditors — protection of debtor under exemption laws, J§ 1, 4, 9. 
 
 rights acquired by, §J 27, 47. ' 
 
 to what remedy entitled, § 28. 
 
 vested rights not controlled by legislature, J 35. 
 
 right to distribution of reversionary interests, $ 209. 
 
 rights on waiver of exemption, § 228. 
 
 may contest proceedings in equity, § 410. 
 
 concluded by judicial determination, § 414. 
 
 objections in bankruptcy proceedings, practice, §J 493, 494. 
 Crops. See Gkowing Crops. 
 Cruelty — as a ground for divorce, § 311. ^ 
 Custody of children— in divorce, effect of, J^ 309, 310. 
 
 creates the head of, the family, $ 314. 
 
 entitles to life estate in homestead, $ 314. 
 
 power of Ciourt to award, § 314. 
 
 D. 
 
 Dakota — selection of homestead, formal acts not necessary, § 167. 
 
 right, how acquired, § 169. 
 Damages — for breach of bond to convey, §§ 257, 259. 
 
 measure of, for failure of sheriff to levy and sell, $ 455. 
 
 no damages for void sale of homestead, $ 455. 
 
 on contract of indemnity, § 48^. 
 
 judgments in actions for, §§ 200, 201. 
 Death— of wife not to defeat homestead right, §i 151, 152, 242, 307, 317, 334. 
 
 of wife may defeat homestead right, if husband estopped, } 417. 
 
 of householder, not to d9feat exemption, J 255. 
 
 of wife, riot to validate void mortgage, $ 263. 
 
 not to affect rights of survivor, $5 317, 524. 
 
 of debtor dissolves attachment lien, § 405. 
 Debt — distinguished from lien, §§ 28, 33. 
 
 not to affect homestead, § 34. 
 
 rule in Georgia as to prior debts, J 50. 
 
 character not changed by change in form of instrument, ij 220. 
 Decree— of sale under mortgage, when invalid, JJ 41, 43. 
 
 of divorce, effect of, § 306. 
 
 of divorce not to affect homestead rights, §5 307, 308. 
 
436 INDEX. 
 
 Decree — Continiied. 
 
 of Probate Court, recital in, not conclusive as to abandonment, Addenda, 
 § 412. 
 Declaration — of homestead, effect of omission to file in time, j 329. 
 
 where and where not required to be filed, § 167. 
 
 filing under statutes of California, § 433. 
 Declarations— of husband not binding on wife, § 284. 
 Dedication — of homestead confers no title, § 114. 
 
 what property subject to, §§ 103-131. 
 
 formal acts, where and where not necessary, 5"167. 
 
 of streets on homestead, 5 303. 
 Deed — of homestead, when equity will compel cancelation, $ 177. 
 
 validity of, on what depends, 5$ 244, 245. 
 Deed of trusts— of homestead, validity of, J 245. 
 
 rights of heirs under, § 336. 
 
 what children not entitled to claim, § 337. 
 
 to preferred creditors, validity of, § 473. 
 Definitions — homestead, §§ 4, 53, 68. 
 
 contract and obligations of contract, J5 22, 49. 
 
 perfect obligations, § 22. 
 
 head of family, §J 147, 520. 
 
 purchase-money of land, § 223. 
 
 vendor, § 227. 
 
 uniform operation of law, J 460. 
 
 real property, $ 479. 
 
 necessaries, $ 522. 
 
 householder, $ 532. 
 
 earnings, wages, § 559. 
 
 tools of mechanic, working tools, § 564. 
 
 tradesman, J 566. 
 
 work horse, team, § 576. 
 
 wagon, 5 579. 
 Delaware — no homestead exemption in, ^ 169. 
 Delivery bond — not a contract, § 212. 
 
 giving of, no waiver of homestead right, § 546. 
 Demtirrer — objections, where to be taken, $ 409. 
 Dentist — what instruments exempt, § 571. 
 Descent and probate of homestead, $ 317. 
 
 survivor takes homestead absolutely, 5§ 318, 319. 
 
 husband inherits on death of wife, § 320. 
 
 widow inherits on death of husband, 5 321. 
 
 of homestead estate to heirs, § 330. 
 
 to heirs, in Texas, §5 333-335 . 
 
 to children, of common property, J 339. 
 
 domicile of husband controls that of wife, § 358. 
 
 of legal title to homestead, to heirs, J 362. 
 
 to widow during widowhood, ^ 346. 
 
 rights of widow and minor children, §5 354-399. 
 Desertion — of father not a forfeiture of homestead, JJ 286, 307. 
 
 by wife, not to defeat homestead right, § 287. 
 
 of wife, when an abandonment of homestead, ^ 401. 
 
INDEX, 437 
 
 Distribution— righte of wife on death of husband, §J 324, 325. 
 
 claim of adult heirs to, $ 354. 
 Divorce — not to defeat homestead right, J 151. 
 
 effect 01, §J 304, 313, 314. 
 
 when homestead divested by, $§ 304, 305. 
 
 partition of homestead after, debts, judgments, § 306. 
 
 not to affect rights, §§ 307, 308. 
 
 effect of giving custody of children to mother, §§ 309, 310, 312, 313. 
 \ equitable powers of the Court in awarding homestead, § 314. 
 
 remedy of wife on fraud of husband, § 315. 
 
 effect of death after decree of, § 316. 
 Domestic animals. See Animates. 
 Domicile — of husband, exceptions as to rule of, § 148. 
 
 rule as to, § 278. 
 , of husband is domicile of wife, §5 280, 281, 286, 358, 530. 
 
 ■what governs right of widow to homestead, §§ 345, 358. 
 
 of bankrupt controls exemption, J 509. 
 DoTwer — when right of supersedes homestead claim, J 376. 
 
 when heir cannot defeat claim to, § 377. 
 
 and homestead in same land, §§ 387, 399. 
 Duress — wife's signature obtained under, Addenda, § 252. 
 
 E. 
 
 Earnings — of debtor defined, §§ 559, 560. 
 
 employer, liability when attached as garnishee, § 561. 
 Easement — on homestead, who may grant, § 303. 
 Hjectment — -acts inhibiting actions unconstitutional, § 43. 
 
 homestead right not a defense in action of, § 114. 
 
 lies on invalid conveyance of homestead, ^ 242. 
 
 plea in bar to action of, § 418. 
 
 conclusiveness of judgment in, ^ 420. 
 
 defense of subsequently acquired title, J 443. 
 
 action lies pending insolvency proceedings, 5 499. 
 Employer — as garnishee of wages, liability of, § 561 . 
 Equities — prior, husband alone may sign and ari:ange,'§§ 246, 260. 
 Equity — homestead right in equitable interest, J 119, Addenda. 
 
 when will compel oanoeLition of deed, $ 177. 
 
 proceedings by widow for recovery of homestead, § 409. 
 
 what petition should allege, 5 4:09. 
 
 rights of creditors, § 410. 
 
 necessary parties in, ^J 414, 415. 
 
 relief in action of foreclosure, § 418. 
 
 jurisdiction of Courts of, § 423. 
 
 jurisdiction to decree sale of overplus, ^ 424. 
 
 when will enjoin sale of homestead, §5 429, 432. 
 
 relief from forced sale of homestead, 55 442, 446. 
 
 jurisdiction iu, when denied, 5 464. 
 
438 INDEX. • 
 
 Estates — capable of beoomins; homestead, JJ 103, 105. 
 
 forty-aore tract, how located as homestead, J 104. 
 
 separate estate of husband may become homestead, $ 105. 
 
 what subject to dedication, as homestead, § 117. 
 
 joint estates, where and where not subject to dedication, §5 120-128. 
 
 of tenants in common, where and where not subject to dedication, 5§ 120- 
 128. 
 Estoppel — of married woman by declarations, $ 235. 
 
 by fraudulent representations, 5 237. 
 
 by fraudulent conveyance, 5 238. 
 
 of husband by fraud, 5 315. , 
 
 widow, when not estopped to assert claim to exemption, 5 375. 
 
 of husband by death of wife, § 417. 
 
 by coTenants in deed of homestead, § 441. 
 
 not created by fraudulent assignment, $§ 468, 469. 
 
 wife not estopped by fraud of husband, $ 470. 
 
 waiver, when not an estoppel, J 545. 
 Evidence — proof of partition between tenants in common, i 120. 
 
 judicial notice of subdivisions of land, 5 419. 
 
 admissible of abandonment, §-449. 
 
 in action to enforce vendors' lien, 5 453. 
 Exceptions — ^in exemption laws, when unconstitutional, § 65. 
 
 of creditors in bankruptcy proceedings, practice, §5 493, 494. 
 Exchange — of homestead, effect of death of husband, J 372. 
 
 of homestead, one for another, 5? 100, 101, 475. 
 
 of homestead for other property, ^J 99, 556. 
 See CHANftE OF HoMBSTBAn. 
 Execution — ^law, how far part of contract, J 31. 
 
 statute granting stay of unconstitutional, §§ 31, 43. 
 
 is final process, § 197. 
 
 when not sustained by attachment lien, § 198. See Addenda. 
 
 levy and sAle of homestead void, § 199. 
 
 homestead exemption to be claimed before sale, 5 438. 
 
 sufficiency of claim, § 447. 
 
 false claim of homestead, effect of, § 448. 
 
 rights of party on wroiigful seizure, 5 465. 
 
 personal property exempt from, JJ 518-585. 
 
 claim and notice of exemption, J 536. 
 
 claim, when not necessary, 5 537. 
 
 effect of failure to give notice, J 538. 
 
 demand must be made on each of several, § 539. 
 
 time allowed to claim exemption, § 540. 
 
 who may make the claim, 5§ 541, 546. 
 
 officers, rights, duties, and liabilities of, 5$ 547-558. 
 
 effect of levy on exempt property, J 547. 
 Execution lien — a vested right, $ 33. 
 
 priority of when homestead right ceases, $ 180. 
 Execution sale — under decree of divorce will not defeat homestead right, §§ 
 305, 308, 315. 
 
 application to set out homestead, }} 429-432. 
 
INDEX. 439 
 
 Execution sale — Gontinued. 
 
 of homestead void, $§ 442, 445, 446. 
 
 effect of notice to steriff of exemption claim, ^ 434, 
 
 effect of subsequently acquired title, 5 443. 
 
 property to be exhausted before sale of homestead, 5 444. 
 when will be set aside, J 445. 
 
 in gross, when will be set aside, 5 446. 
 , pointing out property to be sold, § 447. 
 validity of, J 448. 
 
 equitable lien of purchaser of homestead, J 449. 
 
 when passes no title, {'464. 
 Exemption — of homestead, a cardinal law, } 7. 
 intended to promote public welfare, § 10. 
 
 from debts under United States homestead act, $ 12. 
 
 power of State to enact laws of, 5 J 15, 24. 
 
 of homestead, a creature of statute, 55 55, 526, 
 
 requirement of statute to be followed, §} 56, 169. 
 
 what property included, J 65. 
 
 what property included in homestead law, § 67. 
 
 of homestead defined, $ 69. 
 
 under homestead act a personal privilege, J 69. 
 
 of quantity instead of value, 5 75. 
 
 as regulated by quantity construed, § 76 . 
 
 not to include rented buildings, J 77. 
 
 right of, when it attaches, § 81. 
 
 of part of building as homestead, J 84. 
 
 leased part of house not exempt, 5,90- 
 
 limitation as to value, 5 91. 
 
 limitation as to quantity, § 92. 
 , effect of increase in value, §§ 91, 92. 
 
 merchandise in exchange for homestead not exempt, $ 99. 
 
 extent of in case of exchange of homestead, § 100. 
 
 avails of former honxestead exempt, §5 101, 102. 
 
 what property may be selected as homestead, §5 103, 131. 
 
 of homestead not affected by imaginary lines, § 104. 
 
 effect of estate terminated, § 116. 
 
 owner of lease not entitled to, 5 117. 
 
 leased property adjoining not subject to, J 118. 
 
 of homestead in equitable interest, § 119. 
 
 of addition to homestead, § 130. 
 
 of homestead, when extends- to several lots, 5} 132-140. 
 of homestead in public lands, § 141 . 
 of homestead depends on residence, § 148. 
 what reached by homestead, § 177. 
 from whatdebts homestead exempt, 55 177-185.' 
 effect of as to judgment liens, 55 183, 184. 
 of homestead from judgment agaipst husband alone, 5 192. 
 I of new homestead, on exchange, 5 194. 
 effect of judgment in action for tort, 5 200. 
 homestead not exempt from claim for necessaries, ■$ 205. 
 
440 INDEX. 
 
 Exemption — Continiied. 
 
 not released or waiTed by taking note, ^ 206. 
 
 effect of waiver of, § 228. 
 
 claim of a personal privilege, §§ 69, 228, 291, 486, 535. 
 
 claimant not estopped by fraudulent representations, 5 237. 
 
 effect of fraudulent conveyance, § 238. 
 
 not defeated by death, § 255. 
 
 •waiver of, by mortgage, § 277. 
 
 •waiver of, how effected, % 291-302, 491. 
 
 of homestead, intent of statute, § 309. 
 
 of homestead, when it ceases, § 332. 
 
 sufficient claim on execution sale, § 447. 
 
 not allowed against vendor, 5 454. 
 
 under bankrupt act, % 457-517. 
 
 practice under bankrupt act, § 492. 
 
 objections of creditors, J 477. 
 
 property may be sold and conveyed by debtor, $ 489. 
 
 under State law, waiver of, J 491. 
 
 what property set apart to bankrupt, § 492. 
 
 property, when passes to bankrupt, § 494. 
 
 what property of bankrupt exempt, § 503. 
 
 articles to be set apart to bankrupt, §§ 504-517. 
 
 of partnership assets, 5 515. 
 
 of personal property on execution, 55 518-585. 
 
 right of not assignable, § 535. 
 
 who may make claim for, § 541. 
 
 of earnings of head of family, § 559. 
 
 of wages, to whom to apply, § 560. 
 
 what personal property exempt from execution, J§ 559-585. 
 
 cumulative rights of party to, § 563. 
 
 of tools, on what depends, § 564. 
 
 of printing materials, § 569. 
 Exemption laws— object and policy of, % 1, 2, 10, 309. . 
 
 on what principles founded, § 2. 
 
 effect of organic law, § 5. 
 
 United States homestead act, § 12. 
 
 constitutionality of State law, §§ 15, 26, 27, 35. 
 
 validity of constitutional and statutory provisions, % 16, 20, 24. 
 
 pertain to remedies, § 24. / 
 
 may be applied to existing contracts, $ 24. 
 
 to what debts applied, % 26, 27, 34, 47, 50, 207, 214. 
 
 construction of, % 27, 54, 55, 58, 59, 291, 487, 518-538. 
 
 when impair obligations of contracts, § 33. 
 
 constitutional clause construed, $ 35. 
 
 when unconstitutional and void, % 46, 458. 
 
 homestead law of Georgia construed, § 47. 
 
 provisions of homestead law retrospective, § 47. 
 
 what liens not affected by, $ 48. 
 
 rights under, how determined, § 55. 
 
 under homestead law, extent of, % 61, 62. 
 
INDEX. 441 
 
 Exemption la-ws — Continued. 
 
 exceptions in homestead act, how construed, J 65. 
 
 exceptions in, when unconstitutional, § 65. 
 
 of Arkansas construed, § 66. 
 
 resident may claim benefit of, § 148. 
 
 unmarried woman, when not entitled to benefit of, § 153. 
 
 wife, when not entitled to protection of, §§ 155, 156. 
 
 bankrupt act, construction of provisions in, $§ 457-463, 471. 
 
 requisite provisions in, § 458. 
 
 value of property of bankrupt exempted, J 459. 
 
 to be liberally construed, §§ 518-538, 579. 
 
 territorial limits, $ 529. 
 
 protection of, when applies, § 530. 
 
 all heads of families protected, § 531. 
 
 of foreign State, presumptions as to, J 562. 
 Ex post facto laiATS — constitutional prohibition, $ 45. 
 
 confined to crimes and punishments, § 49. 
 
 Family — protection of under homestead law, 55 4, 5, 10. 
 
 what constitutes having, §§ 59, 68. 
 
 what does not constitute, § 148. 
 
 severed by decree of divorce, § 306. 
 
 what children included, ■$ 331. 
 
 of bankrupt, what constitutes, § 482. 
 
 point of time when relation commences, 5 533. 
 Parmer — ^protection of, § 5-. 
 Father — ^protection from improvidence of, § 4. 
 Federal Constitution — ^prohibitions in, to what to apply, § 18. 
 
 construction by U. S. Courts conclusive, § 18. 
 
 impairing obligation of contracts inhibited, 5§ 25, 49. 
 
 provisions construed, 5 29. 
 
 what contracts protected by, § 41. 
 
 executory and executive contracts included, § 41. 
 
 does not prohibit retrospective laws, § 45. 
 
 to what restraining provision applies, § 45. 
 
 as supreme law, § 48; 
 
 power, to dispose of public lands, in Congress, $ 141. 
 Federal Courts — ^laws governing process in, J 498. 
 Final process — what is, § 197. 
 Florida — formal acts for selection of homestead not reijuired, § 167. 
 
 homestead, how acquired, § 169. 
 Food — for animals exempt, what reserved from forced sale, 5 582. 
 Foreclosure — statutes affecting remedies unconstitutional, §§ 41, 43. 
 
 statutes affecting rights not retrospective, § 46. 
 
 validity of sale under, § 276. 
 
 conclusiveness of decree of, 55 414, 415. 
 
442 INDEX. 
 
 Toxeclosaie— Continued. 
 
 ■who concluded by proceedings in, § 415. 
 
 defenses in action of, §§ 415, 416. 
 
 homestead right as a defense, ^ 418. 
 
 appointmen); of receiver in, § 422. 
 
 sale, all property to be exhausted before homestead, § 444. 
 Forfeiture— for fraud under bankrupt law, §5 471, 472. 
 Forma — ^in bankruptcy, schedule of property, ^ 492. 
 Fraud — in acquisition and disposal of homestead, effect of, $ 232. 
 
 what is not, § 233. 
 
 estoppel by admissions of purchaser, ^ 235. 
 
 in conveyance, what essential to, } 236. 
 
 in representations, when not an estoppel, § 237. 
 
 when an estoppel, § 238. 
 
 of husband not to prejudice claim of wife, § 252. 
 
 in procuring wife's signature. Addenda, § 252. 
 
 not to invalidate acquisition of homestead, $5 467-469. 
 
 forfeiture for under bankrupt law, §§471, 472. 
 Fraudulent alienation — of homestead, effect of, § 207. 
 Fraudulent assignment — not to defeat homestead right, §§ 468, 469. 
 Fraudulent conveyance — of homestead, effect of, §§ 207, 234. 
 
 not to affect homestead right, §§ 468, 469, 517, 557. 
 
 what constitutes, § 471. 
 Fraudulent preferences — effect of, §§ 471-473. 
 Fraudulent representations — effect of, § 237. 
 Freehold — political effect of tenure, § 3. 
 Free institutions — object and intent of homestead acts, § 52. 
 
 G. 
 
 Garnishee — risk and liability, on paying over exempt wages, §§ 561, 562. 
 
 obligations as to answer, § 562. ' ^ 
 
 General GoverniHent — ^poweta limited to special grants, § 28. 
 General orders in bankruptcy — ^rules governing assignee, § 492. 
 
 objections of creditors, when to be filed, § 493. 
 Georgia — ^homestead laws, constitutionality of,'§§ 33, 47, 49. 
 
 debts not covered by exemption law, § 50. 
 
 requisites of homestead law to be followed, §§ 56, 167, 169. 
 
 uses to which homestead may be put, § 85. 
 
 who may select homestead, § 147. 
 
 wife, when not entitled to homestead, § 155. 
 
 homestead right, how acquired, § 169. 
 
 formal acts necessary, § 167. 
 
 homestead, not exempt from judgment in action of tort, § 100. 
 
 not exempt from claim for necessaries, § 205. 
 
 homestead right, when paramount to vendors' lien, §§ 230, 476. 
 
 dower and homestead may attach to same land, 5 394- 
 
 conclusiveness of judicial decision as to homestead, J 414. 
 
INDEX. 443 
 
 Georgia — Continued. 
 
 application to set aside homestead on execution, § 432. 
 
 arrest of illegal proceedings, practice, $ 432. 
 
 execution sale of homestead illegal^ § 445. 
 
 exemption not allowed as against vendor, $ 454. 
 Gro-wing crops— on homestead not exempt, §§ 98, 554. 
 Guardian — when entitled to claim homestead exemption, § 160. 
 
 power to sell homestead, J 242. 
 
 of insane person, powers of, § 406. 
 
 H. 
 
 Habitual drunkenness — as a ground for divorce, § 314. • 
 
 Head of family-iwho deemed, §} 62, 146, 152, 153, 159,160, 161, 520, 532. 
 
 right of to select homestead, § 146. 
 
 definition of, § 147. 
 
 wife, when not considered, § 155. 
 
 who not considered, § 161. 
 
 what constitutes abandonment by, § 281. 
 
 not created by custody of children, § 309. 
 
 contrary rule in oases of divorce, J 310. 
 
 husband as, after divorce, § 313. 
 
 survivor as, $ 331. 
 
 bankrupt, when considered as, § 482. 
 
 definition of, % 520, 532. 
 
 earnings of, exempt from execution, 5 559. 
 Heifer — included in term " cow," 5 581. 
 Heir — descent of homestead estate to, § 330. 
 
 when homestead estate vests in, J 333. 
 
 allowance to minor children, § 336. 
 
 claim of adult heirs to distribution of estate, J 354. 
 
 when cannot defeat estates of dower and homestead, ^ 377. 
 Highiway — intersection of not to defeat homesljead right, § 138. 
 
 power of husband to grant right of way over homestead, § 303. 
 Horses — of bankrupt, when exempt, § 516. 
 
 what exempt from execution, JJ 576-579. 
 Householder — may select homestead, § 147. 
 
 furniture exenipt xmder bankrupt law, §§ 457, 563. 
 
 defined, § 532. 
 
 furniture, what it includes, § 584. 
 Humane policy — of homestead acts, J 11. 
 Husband — protection of wife from profligacy of, $J 1, 4. 
 
 protection of wife from misfortune of, 5 5. 
 
 wHen deemed head of family, $ 147. 
 
 when cannot claim homestead right, § 148. 
 
 when entitled to claim homestead right, § 160. 
 ' power to divest homestead, earlier rule, § 239. 
 
 power to divest homestead, recent rule, } 240. 
 
444 INDEX. 
 
 Husband— Continued,. 
 
 alone cannot convey honLestead, $ 242, 
 
 restriction on power to convey construed, § 246. 
 
 conveyance of homestead by, hoiv far void, § 247. 
 
 conveyance of interest in joint estate valid, J 248. 
 
 power over residue on sale of undivided interest, § 249. 
 
 may alienate house on leased land, § 250. 
 
 conveyance of premises befqre selection of homestead, J 251, Addenda. 
 
 cannot defeat rights of wife by fraudulent acts, 5 252. 
 
 may convey homestead to trustee for use of.'wife, § 254. 
 
 cannot alone mortgage homestead, § 262. 
 
 mortgage of homestead by, how far valid, 5 267. 
 
 may mortgage lands held in common, J 268. 
 
 may mortgage homestead before occupancy or selection, ^ 269. 
 
 when may give renewal mortgage, ^ 270. 
 
 cannot alone prolong lien of mortgage, § 271 . 
 
 may grant right of way over homestead, 5 303. 
 
 no act of can defeat wife's homestead right, J 307. 
 
 after divorce, still head of family, 5 313. 
 
 when inherits homestead, § 320. 
 
 domicile of, to be that of wife; § 358. 
 
 when estopped from claiming homestead right, J 417. 
 Husband and wife— may mortgage homestead, JJ 64, 262. 
 
 rights and privileges in homestead estate, 5 72. 
 
 as joint tenants of homestead, % 72, 74, 319. 
 
 what property may be dedicated as homestead, % 105, 106. 
 
 eflPect of divorce, § 304. 
 
 distinct persons as to homestead estate, $ 331 . 
 
 survivor as head of family, 5 331. 
 
 domicile of, how regulated, § 358. 
 
 must join in action for recovery of hdinsstead, § 456. 
 
 Idaho — formal acts necessary to ac;iuire homestead, § 167. 
 
 homestead right, how acquired, § 169. 
 Idea — embodied in constitution and statutes as to homesteads, ^^ 4, 6, 10, 12 
 
 ' 255. 
 Illinois — requisites to assertion of homestead right, J 56. 
 
 liberal construction of homestead law, 5 59- 
 
 what may constitute homestead, 5 83. 
 
 homestead right, to what estate may attach, § 107. 
 
 right expires after termination of estate, § 116. 
 
 right attaches in equitable interest, $ 119, Addenda. 
 
 homestead in land held in joint tenancy, J 120- ^ 
 
 homestead to include land in one body, J 137. 
 
 exemption, to what confined, J 137. 
 adjoining lots may be appropriated, ^ 137. • 
 
INDEX. 445 
 
 I 
 
 XOinois— Continued. 
 
 who may select homestead, J 147. 
 
 formal acts not necessary to acquisition of homestead, § 167. 
 
 ■when homestead right arises, § 169. 
 
 continuance of the right till majority of youngest chUd, Addenda. 
 
 length of time of occupancy, §§ 173, 279. 
 
 judgment lien not to affect homestead, 5 185. 
 
 exemption from judgment lien in actions of tort, J 201. 
 
 what maybe united with vendors' lien, § 219 ; Addenda, § 225. 
 
 effect of conveyance of homestead, § 242. 
 
 defenses in suits for foreclosure, § 275. 
 
 occupancy, what sufficient, § 279. 
 
 effect of abandonment on rights of wife, ^ 280. 
 
 right of husband to control residence, § 281. 
 
 temporary removal not an abandonment of homestead, J 282. 
 
 widow's rights to dower and homestead in same land, $ 392. 
 
 what constitutes abandonment by widow, and effect of, J 400. 
 
 couclusiveness of judicial decision as to homestead, § 414. 
 
 sale of homestead under mortgage may be restrained, § 418. 
 
 money paid in lieu of homestead, J 428. 
 
 execution sale in mass, irregular, § 444. 
 
 consent to decree by husband bars his right, wife not affected by. Ad- 
 denda, i 418. 
 
 wife may assert right by original bill to protect homestead, Addenda, 
 §420. 
 
 execution sale, when void, § 446. 
 
 wife's right for an account of rents and profits. Addenda, $ 420. 
 
 lapse of time in asserting the right by wife. Addenda, J 420. 
 
 widow's rights to homestead as against heirs, Addenda, § 409. 
 
 when liens of creditors do not attach to homestead till children of age, 
 Addenda, § 397. 
 
 sale of homestead under decree of Court by administrator, abandonment , 
 Addenda, § 412. 
 
 limitation as to time in selling homestead to pay debts, Addenda. 
 Implements of trade — exemption of, §§ 563, 564. 
 
 exemption right not lost by temporary suspension of trade, § 565. 
 Imprisonment — ^for debt, abolition of, § 5. 
 Increase — of homestead to prescribed value or quantity, § 89. 
 Independence — of citizen, political effect and influence of homestead acts, $$ 1, 
 
 2,3,9. 
 Indiana — ^hoinestead right, to what estate may attach, § 109. 
 
 not to attach to lands in joint tenancy, $ 120. . 
 
 brother considered as head of family, § 161. 
 
 formal acta necessary to acquisition of, $ 167. 
 
 selection of homestead, by whom may be made, § 169. 
 
 husband may convey interest in joint estate, J 248. 
 
 fraudulent conveyance not to prejudice right of exemption, { 557. 
 Inheritance.^f homestead, by what law governed, }§ 318, 330. 
 
 of homestead by and on, i 321. 
 
44Q INDEX. 
 
 Injunction — ^not to issue to restrain widow's use of homesteadj^il 318. 
 
 when will restrain execution sale of homestead, § 429, 
 
 allegations in bill to restrain sale of homestead, $ 444. 
 
 not to issue to restrain proceedings in State Courts, $ 465. 
 Insolvency — alienation of homestead by insolvent, when a fraud, $ 207. 
 
 surrender of homestead to assignee, when, JJ 207, 209. 
 
 rights of prior creditors, § 209. 
 
 purchase of homestead, when not fraudulent, § 233. 
 Insolvent estate — widow entitled to money in lieu of homestead, § 413. 
 Instruments — of dentist, what exempt from execution, § 571. 
 Insurance — due on destruction of homestead, exempt, § 102. 
 Intent — to gorem in construction of written instruments, § 51. 
 
 not alone sufficient to acquire homestead right, 55 171, 174. 
 
 effect of, § 175. 
 
 to resume occupancy, J 281. 
 Intention — of rural homestead act, 5 5. 
 
 in statute, how ascertained, § 52, 
 
 to dedicate homestead, when to be made known, § 56. 
 Iowa — retroactive laws as to redemption, invalid, § 46. 
 
 requisites of statutes for homestead .selection, §5 56, 168. 
 
 wife's interest in homestead estate, J 72. 
 
 what homestead may embrace, and extent of, § 84. 
 
 homestead cannot be divested, § 93. 
 
 exchange of homesteads, 5 100. 
 
 homestead estate may attach to leasehold interest, § 117. 
 
 right attaches to land in joint tenancy, SJ 120, 122. 
 
 right attaches to equitable interest, § 119. 
 
 allotment of homestead on partition, § 122. 
 
 homestead right extends to lots in actual use, § 140. 
 
 selection of homestead, how made, §5 169, 430. 
 
 exemption of homestead from debts, J 178, 
 
 exemption from lien of judgment, § 181. 
 
 homestead, to what debts and judgment liens subject, 5 193. 
 
 exemption law not to apply to pre-existing debt, § 211. 
 
 effect of contract to convey future homestead, $ 260. 
 
 widow's rights to homestead, § 362. 
 
 dower and homestead in same lands, § 387. 
 
 sale of homestead on execution in mass irregular, J 444. 
 
 defense in action to enforce vendors' lien, $ 452. 
 
 action by wife to protect homestead rights, § 456. 
 
 waiver of exemption, when void, § 545. 
 , exchange of exempt property^ effect of, J 556. 
 
 J. 
 
 Joint estate — effect of divorce, J 304. 
 
 Joint ownership — exemption laws cover property held in, 5 558. 
 Joint tenancy— 7lands held in. under homestead act, §§ 73, 74, 319. 
 when homestead right attaches to lands held in, 5$ 120-128. 
 
INDEX. t47 
 
 Judgment — how homestead affected by, §§ 178-187. 
 
 in favor of State, § 185. 
 
 againiit husband alone not a lien on homestead, § 179. 
 
 effect of, when homestead right ceases, §§ 180, 183, 184 
 
 on note, when a lien on homestead, § 188. 
 
 allowed to slumber for years, J 189. 
 
 when lien of attaches to homestead, 55 190, 192, 193. 
 
 after purchase, before occupancy, § 195. 
 
 does not relate back to attachment, § 198. See Addenda. 
 
 for tort not a lien on homestead, 5$ 200, 201. 
 
 on note to secure purchase-money a lien, § 226. 
 
 for alimony not enforceable against homestead, § 308. 
 
 conclusiveness of, § 414. 
 
 in ejectment, when null, § 420. 
 Judicial decisions — parties bound by, J 414. 
 
 rule of interpretation of State statutes, § 461. 
 Judicial notice — taken of subdivisions of land, § 419. 
 Judicial sale — of homestead, § 406. 
 Jurisdiction — ^power to assign homestead in cases of divorce, § 314. 
 
 power of Court to award alimony and custody of children, § 314 . 
 
 of Probate Court, power to set aside homestead, §§ 326, 412. 
 
 in equity does not attach in Probate Court, J 423. 
 
 in equity to remove cloud from title, § 442. 
 
 of United States Courts in bankruptcy exclusive, § 464. 
 
 K. 
 
 Kansas — constitutional exemption clause construed, $ 35. 
 
 title to land in which homestead may be claimed. Addenda, § 112. 
 
 place of business and residence included in homestead, § 82. 
 
 reduction of rural homestead on extension of town, $ 95. 
 
 land composing city homestead must be in compact form, Addenda, $ 137. 
 
 formal acta not necessary on selection of homestead, J 168. 
 
 wife's interest in the homestead. Addenda, J 456. 
 
 wife's right to sue to recover the homestead, Addenda, § 456. 
 
 selection of homestead, by whom, J 169. 
 
 what nctt an abandonment of homestead, $ 283. 
 
 conclusiveness of decree of foreclosure, J 415. 
 
 surplus proceeds of sale under lien, other judgments. See Addenda. 
 
 attachment lien on homestead prior to occupation, valid. Addenda, 5 198. 
 
 lien on homestead, release of other property mortgaged with it, Addenda, 
 
 § 189. 
 specific liens under State laws, validity of, 5 466. 
 what may be exempted as homestead, § 478. 
 
 false representations in procuring wife's signature, Addenda, 5 252. 
 signature of wife under duress. Addenda, 5 252. 
 renewal of mortgage by husband alone, part purchase-money. Addenda, 
 
 ^270. 
 
4i8 INDEX. 
 
 Kansas — Continued. 
 
 extension of time to pay n^orfcgage by husband alone, Addenda, $ 270. 
 
 feasement granted over homestead by husband alone. Addenda, § 303. 
 Kentucky — formal acts necessary on selection of homestead, § 167. 
 
 ■what necessary to claim of right, § 169. 
 
 actual occupation necessary, 5 171. 
 
 homestead act not to apply to judgm.ent8 for State debts, $185. 
 
 exemption law not to apply to pre-existing debts, $ 213. 
 
 rule as to right of dower and homestead, 5 388. 
 
 L. 
 
 Laborer — wages of exempt from execution, § 560. 
 
 Leasehold estate — where and where not subject to selection as homestead, J} 
 
 114^118, 479. 
 Legatee — takes subject to charge for debts, § 144. 
 Legislature — powers of to enact homestead laws, JJ 36, 38. 
 
 restriction of powers of as to contracts, § 39. 
 
 cannot substitute nugatory remedies, § 42. 
 
 may pass retrospective laws, $ 45. 
 
 power to deprive creditors of inchoate rights, J 190. 
 Liens — not created by contracting debt, J 27. 
 
 distinguished from debts, % 28, 33. 
 
 by mortgage not covered by exemption, § 34. 
 
 of judgment not affected by subsequent dedication, § 35. 
 
 may be assigned, § 35. 
 
 cannot be divested by subsequent legislation, §§ 39, 48. 
 
 vested rights not affected by exemption laws, § 48. 
 
 on homestead, creation of, § 64. 
 
 of judgment follows land into hands of legatee, J 144. 
 
 of judgment, homestead where exempt from, § 178. 
 
 operation on excess in valuation, § 179. 
 
 effect of delay in enforcing judgment lien, § 189, Addenda. 
 
 when may defeat homestead right, % 186-199. 
 
 when lien of judgment enforceable, J 191. 
 
 of judgment not affected by change of homestead, J 194. 
 
 of judgment, when valid, § 195. 
 
 effect of judgment in Justice's Court, J 190. 
 
 for taxes, homestead subject to, §§ 202, 203. 
 
 of material man, $ 204. 
 
 of laborer, services, merger, J 206. 
 
 on property set aside in probate, J 404. 
 
 of judgment superior to widow's claim, J 404. 
 
 of judgment enforceable against surplus, § 449. 
 
 of judgment, what must be shown on enforcement of, % 454. 
 
 under proceedings in State Courts, in bankruptcy matters, § 465. 
 Life estate — in homestead, on divorce, in whom, J 314. 
 Limitation — of homestead right as to value, § 130. 
 
 to lot in actual occupation, § 131. 
 
INDEX. 449 
 
 Iiomsiana — no formal acts neoesaary to acquire homestead, } 168. 
 
 cannot te acquire^in lands held in common, Addenda, $ 125. 
 pre-requisites to claini of right to homestead, $ 169. 
 
 only farmer can claini homestead in country, lawyer cannot. See Ad- 
 denda. 
 rights of widow and children, § 355. See Addenda, $ 355. 
 interest of wife in homestead defined, § 356. 
 residence within Stafe essential, § 357. 
 domicile of husband controls that of wife, § 358. 
 usufructuary interest vests in widow, § 358. 
 widow and children, superior lien in husband's property, $ 359. 
 lien of vendor of movables inferior to claim of minors, Addenda,, ^S 359. 
 wife cannot sue to protect homestead. Addenda, ^ 456. 
 counting-house books, etc., exempt from execution, $ 570. 
 
 M. 
 
 Machinery — not included in tools of trade, § 564. 
 
 not exempt from execution, J 568. 
 Maine — ^requisites of homestead act to be followed, JJ 56, 167. 
 
 householder, when may select homestead, 5 147. 
 
 selection of homestead, how made, § 169. 
 Manufacturer — not a tradesman, § 566. 
 
 implements of not exempt from execution, § 564. 
 Married vroman — statute affecting existing rights, void, $ 46. 
 
 conveyance by, validity, on what depends, § 72. 
 
 alienation of separate property, 5 106. 
 
 when not entitled to benefit of exemption laws, §§ 155, 156. 
 
 when may sell homestead, 5 157. 
 
 estoppel by declarations and acts, 5 235. 
 
 See Wife, Widow. ■ 
 
 Maryland — formal acts not necessary to acquire homestead, } 168 . 
 
 essentials to right of acquisition, 5 169. , 
 
 Massachusetts — homestead right to business property, § 80. 
 
 may attach to leasehold interest, 5 117. 
 
 homestead right does not attach to equitable interest, § 119. 
 
 does not attach to lands held in joint tenancy, J 120, 
 
 homestead may include separate lots, $ 136. 
 
 householder, when may select homestead, § 147. 
 
 homestead right not defeated by death of wife, 5 151. 
 
 unmarried woman, when cannot claim homestead, § 153. 
 
 formal acts necessary to select homestead, J 167. 
 
 selection, how made, $ 169. 
 
 prior debts protected under exemption laws, 5 207. 
 
 power of guardian to sell homestead, J 242. 
 
 grantee of homestead, when tenant in common, $ 242. 
 
 conveyance by husband of joint interest valid, ^ 248. 
 
 K0MESTTi)AD 29. 
 
450 INDEX. 
 
 Massachusetts — Continued. 
 
 effect of renewal of mortgage, J 270. 
 
 hoTuestead, when lost by abandonment, 5 278. 
 
 oocnpation of homestead, suffioienoy of, 5 279. 
 
 adultery not to affect homestead right, J 307. 
 
 widow's rights to homestead, J 363. 
 
 exemption, hpw may be waived, $ 364. 
 
 widow entitled to dower and homestead, J 395. 
 
 title of homestead estate in widow, J 398. 
 
 sale of homestead by guardian, J 406. 
 
 rights of second mortgagee, $ 421. 
 
 bill in equity to protect homestead, suffioienoy of, $ 437. 
 
 contract, doctrine of relation, J 485. 
 
 tools defined, § 564. 
 Material men — when lien of attaches on homestead, % 204, 454. 
 Materials — for printing exempt from execution, § 5S9. 
 Maxim — every mail's house is his castle, J 6. 
 
 governing statutes and instruments, § 51. 
 
 as to domicile, § 278. 
 Mechanic — entitled to proceeds of goods sold by assignee, J 510. 
 
 who ndt entitled to right of exemption in bankruptcy, J 511. 
 
 distinguished from manufacturer, $ 564. 
 
 exemption right not lost by temporary suspension of trade, ^ 535. 
 
 not a teamster, § 578. 
 Mechanical tools — what included', J 571. 
 Mechanics' lien — homestead, when subject to, J 202. 
 Merger — of indebtedness into lien, J 35. \ 
 
 of original claim in promissory note, § 206. 
 
 in note renewal, $ 213. 
 Michigan — requirements of homestead law to be followed, J 56 . 
 
 constitutional provisions construed, J 67. 
 
 uses to which homestead may be put, } 86. 
 
 leased part of house not exempt, § 90. 
 
 homestead right, to what estate attaches, }§ 110, 117. 
 
 homestead estate in leasehold interest, $ 117. 
 
 in equitable interest, J 119. 
 
 householder, who may select homestead, J 147. 
 
 formal acts necessary in selection of, § 167. 
 
 selection, how made, $ 169. 
 
 occupation of premises essential, J 171. 
 
 selection, when may be made, $ 176. 
 
 conveyance by husband of homestead void, $ 247. 
 
 bond to convey, J 259. 
 
 action by wife to protect homestead right, J 456. 
 
 cumulative exemptions not allowed, 5 563. 
 Mill saiw — not exempt from execution, J 567. 
 Minnesota — retroactive effect of mortgage act, 5 30. 
 
 amount of exempt property, how determined, J 34. 
 
 exception in homestead statute, $ 65. 
 
 constitutional and statutory provisions as to homestead construed, J 65. 
 
INDEX. 451 
 
 Siliimesota — Gontinued. 
 
 uses to ■which homestead may be put, § 87. 
 
 homestead estate in leasehold interest, § 117.' 
 
 right restricted to lot in actual occupation, J 139. 
 
 ■who may select homestead, } 147. 
 
 formal acts not necessary to selection, § 168. 
 
 requirements of law to exercise of ?:ighta, J 169. 
 
 effect of judgment lien on homestead right, § 184. 
 
 material men cannot enforce lien on homestead, $ 204. 
 
 execution of mortgage on'homestead, J 264. 
 
 ■what constitutes abandonment of homestead, § 283. 
 
 descent of homestead after devise, § 397. 
 
 right of ■widow is personal, 5 360. 
 
 execution on excess of homestead over statutory value, J 431. 
 Minor heirs — cannot abandon homestead, §§ 290, 402. ■ 
 
 parties essential in application for sale, §§ 407, 409. 
 
 rights preserved on sale by Probate Court, § 412. 
 Mississippi — ^householder, ■when may select homestead, § 147. 
 
 formal acts for selection not necessary, § 168. 
 
 requirements for right of selection, § 169. 
 
 exemption not to apply to pre-existing debts, § 212, 
 
 purchase-money not affected by exemption, $ 229. 
 
 husband alone can alienate homestead, § 255. 
 
 ■whto homestead lost by abandonment, J 278. 
 
 title in homestead, when vests in widow, §§ 346, 347. 
 
 ■wido^w entitled to dower and homestead, J 396. 
 
 rights of wife in horaesteaij, 5 456. 
 Missouri — ^requirement of act in right of homestead selection, § 169. 
 
 formal acts of selection not necessary, $ 168. 
 , may be set apart out of leasehold estate, J 479. 
 
 contract, doctrine of relation, $ 485. 
 Money — ^proceeds of sale of homestead, when exempt, J 101. See Addknda. 
 
 for insurance of homestead estempt, { 102. 
 
 to pay pre-existing debt, when and where not a lien, § 218. 
 
 paid by third person to pay vendors' lien not subject to exemption, J 221. 
 
 loaned, when regarded as purchase-money, % 221, 223, 227, 404. 
 
 borrowed, when not a lien, § 223. 
 
 awarded in lieu of homestead, who entitled to, §§ 413, 473. 
 
 may be allowed to bankrupt, J 505. 
 
 no property exempt for purchase-money, § 554. ' 
 
 Montana — selection of homestead, how made, $ 169. 
 
 formal acts for selection of homestead not necessary, $ 168. 
 Mortgage — ^retrospective effect of act relating to homestead, § 30. 
 
 not protected under homestead law, § 47. 
 
 of homestead by husband and wife valid, 5 64. 
 
 of homestead valid as to judgment lien, % 179, 245, 262. 
 
 of several pieces of land, release of all but homestead. Addenda, $ 189. 
 
 to secure purchase-money, 5 215. 
 
 when a lien on homestead, $§ 218, 225, 226. 
 
 by husband alone, former rule, $ 239. 
 
452 INDEX. 
 
 Mortgage — Contintied. 
 
 by huBba.nd, recent rule, $ 240. 
 
 as a -waiver of right to exemption, $J 277, 432, 466, 480. 
 
 rights of second mortgagee, J 421. 
 
 protection of homestead, $ 262. 
 
 void, death of wife to validate, $ 263. 
 
 acknowledgment of wife es.sential, } 264. 
 
 description of premises in, § 266. 
 
 by husband, how far valid, $ 267. 
 
 by husband in lands held in common, $ 268. 
 
 by husband before occupancy, valid, § 269. 
 
 when and where husband may give renewal of, } 270. 
 
 husband alone cannot prolong lien of, $ 271. 
 
 on wife's land for debt of husband, $ 273. 
 
 to secure partnership debt, J 274. 
 
 of land including homestead, $ 276. 
 Musical instruments — when exempt, $ 573. 
 
 N. 
 
 Nature and extent — of homestead right, J} 68-72. 
 
 Nebraska — ^homesteeul estate attaches to lesisehold interest, § 117. 
 
 resident alien entitled to benefit of exemption law, ^ 149. 
 
 no formal acts for selection of home.9tead, § 148. 
 
 selection of homestead, when to be made, § 169. 
 
 who entitled to homestead exemption, $ 534. 
 Necessaries — fumisl^ed family, homestead not exempt from, ^ 205. 
 
 articles, value of, exempt under bankrupt act, 5 457. 
 
 what articles exempt, §5 503-507. 
 
 defined, § 522. 
 
 what are, is a question of fact, 5 574. 
 
 when exempt frota execution, § 575. 
 Nevada — constitutional convention, §§ 4, 6. 
 
 liberal construction of homestead laws, 5 60. 
 
 interpretation of constitutional provisions, § 64. 
 
 sufficiency of dedication of homestead, § 72. 
 
 no limitation to use of homestead, § 88. 
 
 whiit may be claimed as homestead, § 88. 
 
 formal acts for selection of homestead necessary, J 167. 
 
 right of homestead, how secured, J 169. 
 
 selection of' homestead, when to be recorded, J 176. 
 
 action by wife to protect homestead rights, § 456. 
 Ne'w Jersey — statutes creating contracts, J 41. 
 
 formal acts necessary on selection of homestead, J 167. 
 
 requisites to secure homestead, J 169. 
 Ne^i7 Hampshire — homestead estate may attach to leasehold interest, $ 117 . 
 
 not to attach to lands in joint tenancy, $ 120. 
 
 effect of conveyance of undivided interest, J 126. 
 
INDEX. 458 
 
 Neiw Hampshire — Continued. 
 
 right may attach to separate lots, $ 133. 
 
 householder, -when may select homestead, J 147. 
 
 death of wife not to defeat homestead right, } 152. 
 
 formal acts not necessary in selection of homestead, J 168. 
 
 oocnpanoy necessary to right pi homestead, J 169. 
 
 actual residence, what is, § 174. 
 
 merger of lien in note, $ 206. 
 
 exemption laws not to apply to pre-existing debts, } 210. 
 
 requisites to valid conveyance of homestead, § 242. 
 
 homestead, when assignable, § 242. 
 
 conveyance by husband of interest in joint estate valid, J 248. 
 
 what constitutes abandonment, § 278. 
 
 widow's rights to homestead, J 366. 
 
 widow's rights not prejudiced by voluntary separation, J 367. 
 
 sale of excess of homestead over statute value, § 429. . 
 
 execution sale of homestead illegal, § 445. 
 
 waiver of exemption void, § 545. 
 New Mexico — no homestead exemption, § 169. 
 Ne'w York — construction of exemption laws, §§ 26, 27. 
 
 retrospective statute, when void, § 46. 
 
 householder, when may select homestead, 5 147. 
 
 formal acts necessary on selection of homestead, J 167. 
 
 requisites to secure right of, J 169. 
 
 homestead not exempt from judgment of tort, § 200. 
 
 terms defined, ^ 579. 
 North Carolina — constitutionality of exemption laws, $ 33. 
 
 homestead right to attach to several lota, § 132. 
 
 homestead right, how asserted, § 169. 
 
 exemption laws construed, $ 201. 
 
 widow's rights to homestead, § 350. 
 
 dower and homestead in same land, § 387. 
 
 exemption of property exchanged, § 556. 
 Note — consideration of, when void, § 261. 
 Notice — occupation necessary, when filed, J 170. 
 
 when required to advance, § 170. 
 
 failure to file, §5 302, 329. 
 
 filed after removal, § 172. 
 
 of claim of exempt goods, J§ 536, 537 . 
 
 who may give, J 541 . 
 
 o. 
 
 Object and intent— of homestead law, }§ 1, 6, 69, 72, 84, 90, 351, 360 456, 
 487. 
 
 of statute not to be defeated, $ 60. 
 
 of homestead law in Yermont, $ 11. 
 Objection — ^by creditors to allowance to insolvent, J§ 477, 493. 
 
454 ^ INDEX. 
 
 Obligation— of contract, definition of, $5 22, 37, 49. 
 
 means of enforcement material to, §§ 23, 49. 
 
 when it arises, ^ 24. 
 
 distinguished from remedy on contract, § 25. 
 
 when and how impaired, §§ 26, 27, 32, 38, 39, 42. 
 
 not impaired by change in statute, §§ 30, 41, 49. 
 
 impaired by suspension of remedy, ^ 32. 
 
 on what law depends, 5 39. 
 
 impaired by redemption act, J 41. 
 
 restriction of power of legislature, § 45. 
 Occupation— essential to homestead right, $J 56, 59, 131, 165, 172, 279. 
 
 only that which is under, exempt, J 90. 
 
 of homestead of greater yalue, § 91. 
 
 must be several and not joint, § 125. 
 
 and use as test of right to homestead, ji 131. 
 
 when homestead right attaches without, J 174. 
 
 temporary, when sufficient, J5 174, 175. 
 
 by tenant for widow and children, J 279. 
 
 as evidence of appropriation, 5 280. 
 
 intention to resume, $ 281. 
 OfBcers — when not liable to action for wrongful levy, § 553. 
 
 rights, duties, and liabilities of, $5 547-558. 
 Oliio — ^homestead law, how characterized, § 11. 
 
 repeal of statute by new constitution not implied, 5 40. 
 
 retrospective curative statute void, § 46. 
 
 requisites of homestead statute to be followed, J 56. 
 
 homestead right, to what.estate attaches, § 108. 
 ~ may attach to leasehold interest, 5 117. 
 
 householder, when may select homestead, } 147. 
 
 no formal acts neoessairy on selection, § 168. 
 
 selection, when may be made, J 169. 
 
 claim to homestead exemption, how made, § 435. 
 Oregon — no homestead exemption provided for, 5 169. 
 Overseers — wages of, exempt from execution, § 560 , 
 
 Parties — legal proceedings, when not conclusive against wife, §} 414, 415 
 
 husband and wife to join in action for homestead, $ 456. 
 Partition — by parol, title .under, 5 120. 
 
 allotment of homestead on land, after, §} 121, 122. 
 
 sale of homestead on partition of joint estate, 5 122. 
 
 of homestead in case of divorce, J 305. 
 
 of homestead on sale of interest by husband, § 338. 
 
 tenants in common may sue for, § 440. 
 Partnership — assets cannot become homestead, J 143. 
 
 members of, not entitled to exemption, J 163. 
 
 mortgage to secure debt of, § 274. 
 
INDEX. 455 
 
 Peataeiahip— Continued. 
 
 assets cannot be set apart to widow, § 323. 
 member of bankrupt firm entitled to homestead, § 480. 
 assets, exemption of individual member, § 515. 
 property, exemption law not to apply to, '§ 558. 
 Pennsylvania — act granting stay of execution unconstitutional, § 31. 
 retroactive statutes void, J 46. 
 
 no formal acts necessary to selection of homestead, § 168. 
 right to homestead, when waived, § 169. 
 
 homestead not exempt from judgment lien in action of tort, J 200. 
 vendor, who not considered, 5 227. 
 effect of waiver of exemption, § 228. 
 conveyance in fraud, effect of, J 238. 
 exemption laws construed, J 277. 
 survivor, purpose of statute, $ 316. 
 widow's rights to homestead, § 361. 
 effect of desertion of husband on widow's right, J 368. 
 rights of widow and children in exempt property, } 378. 
 rights of parties on execution sale, $ 420. 
 expectant interests of bankrupt exempt, J 514. 
 bachelor as head of family, § 532. 
 waiver of right of exemption, § 542. 
 
 fraudulent concealment as a bar to right of exemption, § 557. 
 Personal property — exempt under bankrupt law, }5 457, 459, 503-517. 
 policy and intent of bankrupt act, 5 503. 
 exempt from execution, statute construed, §$ 518, 525. 
 force and effect of State statutes of exemption, § 526. 
 rule of exemption at common law, 55 527, 528. 
 territorial limits of exemption right, J 529. 
 when protection of lawapplies, § 530. 
 right of exemption purely personal, § 535. 
 claim and notice of exemption, $ 536. 
 where claim not necessary, 5 537. 
 claim of exemption under attachment, $ 538. 
 several demand necessary on each execution, J 539. 
 time allowed in which to make claim, J 540. 
 who may make claim, $ 541 . 
 waiver of claim, §5 542-546. 
 
 levy on exempt property, liability of officer, §5 547-553.. 
 no property exempt as to purchase-money, J 554. 
 right of debtor to dispose of exempt property, § 555. 
 exchange of exempt property, effect of, § 556. 
 
 effect of fraudulent sale or concealment on exemption right, } 557. , 
 
 held in joint ownership subject to exemption, 5 558. 
 earnings and wages exempt, $ 559. 
 Petition — for sale of excess of homestead value to be verified, }$ 424, 427. 
 Pleading — ^homestead right as a defense in foreclosure, 55 ^l^i ^18> ^^• 
 wife may set up defense of usury, 5 416. 
 homestead right, how pleaded, 5 430. 
 bill to protect homestead, what must aver, 55 ^36, 437. 
 
456 INDEX. 
 
 Fleadiing— Continued. 
 
 ill action to enforce conveyance of homestead, }5 450, 451. 
 
 defense in action to enforce vendors' lien, J 452. 
 
 answer of garnisliee, §562. 
 Policy — of homestead exemption laws, J$ 1, 2, 3, 7, 8, 11, 97. 
 
 of statute as to settlers on public domain, §5 12, 13. 
 
 of State to invite and retain immigration, § 14. 
 
 of exemption in bankrupt act, § 462. 
 Policy of insurance — when not to pass to assignee, § 513. 
 Political — aspect of exemption laws, 55 li 2. 
 Possessory — interest in land as homestead, 5§ 114, 117. 
 Practice — conclusiveness of judicial proceedings as to homestead, §} 414, 415. 
 
 separate funds of wife forming part of purchase-money, § 425. 
 
 on sale of excess of homestead over statute value, § 427. 
 
 and proceedings in United States Courts, § 459. 
 
 rules and orders governing assignee in bankruptcy, } 492. 
 
 in bankruptcy, objections of creditors, §§ 493, 494. 
 
 errors in schedule not material, 5 495. 
 
 claimant of homestead, when to set up right, § 496. 
 
 P'nited States Courts will not enjoin proceedings of State Courts, 5 497. 
 
 process. State exemption laws to apply, § 498. 
 
 ejectment lies to recover homestead pending bankruptcy proceedings, § 499. 
 Presumptions — of waiver of vendors' lien, 5 222. 
 
 of knowledge on alienation of homestead, J 266 . 
 
 of abandonment not entertained, § 285. 
 
 from desertion of husband, § 286. ' 
 
 as to exemption laws of foreign State, § 562. 
 Principal and surety — contract of indemnity construed, J 485. 
 Principles — governing homestead exemption, § 2. 
 Printing materials — exemption from execution, J 569. 
 Prior debts — statutory protection of, §§ 207-214. 
 
 judgment after divorce, § 306. 
 
 what are, bond, § 485. 
 
 in bankruptcy matters, JJ 484, 485. 
 Probate — sale of homestead, when invalid, 5 242 ; Addenda, § 412. 
 
 proceedings on setting apart homestead to widow, §5 322, 326, 331, 348, 
 366. 
 
 property susceptible of dedication as homestead, 55 323, 324, 331, 370. 
 
 action of Court on setting aside not to affect title, 5 327. 
 
 acquiescence of widow conclusive, 5 328. 
 
 when widow cannot claim exemption, 55 329, 340, 352. 
 
 allowance to widow a superior lien, 5 343. 
 
 when claim for allowance to be made, 55 344, 411. 
 
 when proceedings to set apart homestead not necessary, 5 365. 
 
 rights of widow to homestead on mortgaged property, 5 370. 
 
 rights of widow to homestead as against creditors' claims 55 371, 383. 
 
 when Court cannot decree dower and homestead, 5 373. 
 
 widow's right to sell property set apart, 5 379. 
 
 appraisement of property, when conclusive on widow, 5 380. 
 
 proceedings on claim of widow for exempt property, 5 381. 
 
INDEX. 457 
 
 Probate — Continued. 
 
 when widow must make claim, 5 382. 
 
 widow's rights as against lien creditors, § 383. 
 
 charge on realty, when personal property insufficient, § 384. 
 
 sale of land, when may be decreed, § 384. 
 
 claim of widow barred by levy before death, § 385. 
 
 action and practice, §§ 406-413. See Addenda. 
 
 sale of homestead by guardian of insane husband, § 406. 
 
 sale of homestead, rights of minor children protected, §j407. 
 Probate Court — recitals in, decree of, insufficient without record proof, Ad- 
 denda, 5 412. 
 
 no equity jurisdiction attaches, § 423. 
 Proceedings — in Probate Court, conclusiveness of, §J 414, 415. See Addenda. 
 Process — in United States Courts, what laws apply, $ 498. 
 Professions — books of exempt from execution, § 571. 
 
 horses of professional man exempt from execution, § 577. 
 Promissory notes — merger of original claim, § 206. 
 
 when a lien on homestead, § 208. 
 
 when extinguishes debt, § 208. 
 
 when exemption law not to apply to, §5 210, 213. 
 
 renewal note not a satisfaction 6f debt, § 213. 
 
 not a waiver of vendors' lien, § 217. 
 Public highway — on homestead dedication by grant of husband, § 303. 
 Public lands — homestead exemption on, power of Congress, § 141. 
 Public policy — of homestead act, independence of citizen, §§ 1, 9, 10. 
 
 See Poi.ict. 
 Purchase-money — defined,, §5 223, 225. See Addenda. 
 * what not regarded as, % 218, 224, 227. 
 
 no novation on note and mortgage for, § 225. See ADDENDA. 
 
 judgment for as a lien on homestead, § 226. 
 
 mortgage by husband to secure, valid, J 226. 
 
 under revised code of Mississippi, J 229. 
 
 Q. 
 
 Quantity — maximum allowance for homestead in Texas, $ 130. 
 no limits as to in California, $ 131. 
 
 R. 
 
 Real property — exemption, value of, J 459. 
 
 defined, § 479. 
 Receiver — appointment of in actions of foreclosure, } 422. 
 Record — of notice of homestead, §§ 170-176. 
 
 nnder amended law requiring intervening liens, J 329, 
 Recovery — of debts, remedy in control of legislature, J 30. 
 
458 
 
 INDEX. 
 
 Redemption — statutes authorizing, when unconstitutional, J5 41, 46. 
 
 equity of, when must be claimed, § 438. 
 
 right of not subject to execution, $ 445. 
 Reduction — of homestead by extension of town, 5 J 94, 95. 
 Release— of homestead right, effect of, J 180. 
 
 of all other land but homestead, lien, 5 189, Addenda. 
 
 in conveyance and mortgage, § 265. 
 
 in deed of trust, § 265, 
 
 how shown, § 449. 
 Remedy — intent of homestead exemption statutes, J 7. 
 
 co-existent with rights under contracts, } 23. 
 
 on contracts, when ensues, 5 24. 
 
 change of, not unconstitutional, }} 24, 25, 30, 32, 35, 36. 
 
 and obligations of contract distinguished, } 25. 
 
 under full control of legislature, $ 27. 
 
 reserved right of State as to, § 28. 
 
 right to, not a vested right, § 31. 
 
 suspended, when an impairment of obligations, $ 32. 
 
 power of State to regulate, $J 35, 36. 
 
 how far may be changed, §§ 36, 42, 49. 
 
 when part of obligation, § 48. 
 
 statute cannot substitute nugatory remedies, § 42. 
 
 and validity, both parts of contract, § 49. 
 
 State cannot destroy, § 49. 
 
 remedial statutes to be liberally construed, J 54. 
 
 of wife in action for divorce, ^ 315. 
 Removal — effect of on homestead right, § 172. 
 Rented buildings— claimed as homestead, ^ 76-90. 
 
 Reneiiral — of mortgage, part purchase-money, by husband alone, } 270 ; Ad- 
 denda, § 270. 
 Repeal — of statute by new constitution not implied, •§ 40. 
 
 void when it impairs obligation of contract, J 41. 
 
 of statute not to affect vested rights, 5 70. 
 Res adjudicata — effect of judicial determinations, § 414. 
 Residence — presumptive evidence of dedication of homestead, $ 56. 
 
 essential to homestead right, § 81. 
 
 effect of in constituting homestead exemption, {J 105, 148. 
 
 what sufficient to ola.im of homestead right, 5 150. 
 
 of wife alone, when sufficient, 5 157. 
 
 of family must be actual, 5 165. 
 
 necessary to assertion of homestead right, §J 170, 171. 
 
 elsewhere temporarily, 5} 281, 282. 
 
 of husband, presumptions from, 5 487. 
 Resident — when deemed head of family, § 147. 
 
 may claim right of homestead, § 148. , 
 
 Retroactive statutes — when unconstitutional and void, }§ 46, 47, 49. 
 Retrospective laws — not prohibited by constitution, } 45. 
 Reversionary interest — of debtor, how distributed, 5 209. 
 Rhode Island — ^no homestead exemption in, } 169. 
 
INDEX. 459 
 
 Eights— perfect defined, § 22. 
 
 without remedy cannot exist, } 23. 
 
 to particular remedy, not a vested right, } 31. 
 
 of property, on what depend, J 38. 
 
 protected by constitution, how distinguished, } 41. 
 
 under exemption laws, how determined, J 55. , 
 
 ojE homestead, nature and effect of, J 68. 
 
 of way on homestead, husband may grant, J 303. 
 Rules — of interpretation of written instrument, §5 51, 52. 
 
 of practice in United States Courts, J 459. 
 
 of practice governing assignee in bankruptcy, } 492. 
 
 in bankruptcy as to $500 allowance, § 502. 
 Rural homestead — policy and intent of statute, { 5. 
 
 change to urban, effect of, §§ 93-95. 
 
 not limited or defined by survey lines, J 104. 
 
 may consist of separate lots, § 130. 
 
 maximum as to quantity, § 130. 
 
 cannot be acquired by attorney-at-law in Louisiana, Addenda. 
 
 s. 
 
 Sale — under decree of foreclosure, when invalid, $$41, 43. 
 
 of part of homestead property not a waiver of right, $ 126. 
 
 of homestead to junior judgment-creditor, § 180. 
 
 of under decree of divorce, 55 308, 315. 
 
 of homestead by guardian, when invalid, § 406. 
 
 proceedings in probate for sale of homestead, § 407, 412. 
 
 of homestead, action to set aside, § 414. 
 
 of homestead on execution, excess over statute value, 55 424, 427, 428, 
 429, 430, 431, 477. See Addenda. 
 
 of homestead illegal, § 445. 
 
 of exempt property by debtor, 55 489, 555, 557. 
 Schedule — in bankruptcy, errors not material, 5 495. 
 Security — of home insured by homestead act, 55 li 6. 
 
 taken as a waiver of lien, 5 2^2. 
 Selection — of homestead, what estate subject to, 55 103-131. 
 
 of forty-acre tract, how made, 5 104. 
 
 of homestead on the public lands, 5 141. 
 
 right, in whom it exists, 5 146. 
 
 where formal acts are prescribed, 5 167. 
 
 where formal acts not prescribed, 5 168. 
 
 of homestead, how made, 5 169- 
 
 when may be made, § 176. 
 
 of homestead after attachment, 5 198. 
 
 by widow, 5 328. 
 Separate property — of husband may become homestead, 55 105, 111. 
 
 of wife in homestead, how acquired, .55 164, 169, 
 
 fvinda of wife forming part of, 5 425. 
 
460 INDEX. 
 
 Separate property— CoreJiMwed. 
 
 of wife not to vest in assignee in bankruptcy, 5$ 425, 513. 
 
 parcels of land composing homestead, §^ 129-140. 
 Setting apart— homestead to wife in oases of divorce, JJ 308, 314, 315. 
 
 homestead to widow, §§ 322, 323, 326, 327, 330, 340-352. 
 
 determination of Court conclusive, J 328. 
 
 homestead application, how made, § 432. 
 Settler — on public lands entitled to homestead, § 12. 
 Sewing machine — when exempt, J 564. 
 Sheriif — not liable in damages for void sale, § 455. 
 
 duties and responsibilities on levy and sale of exempt property, §J 547, 
 548-550. 
 
 not justified by fraud of debtor, 55 551, 552. 
 
 when not liable to action, ^ 553. 
 Signature — of wife procured under duress. Addenda, $ 252. 
 
 of wife procured by fraud, § 252. 
 Society — effect of tenure of land upon, § 3. 
 
 causes which produce evils in, § 7. 
 Son — when considered head of family, § 146. 
 South Carolina — requirements of homestead law to be followed, ^ 56. 
 
 no formal acts necessary in ^election of homestead, $ 168. 
 
 application for exemption, when to be made, $ 169. 
 
 widow's right to homestead, § 348. 
 Separate property — of wife, where can and where cannot become homestead, 
 
 ^ 106-111. 
 Specific lien — not divested by exemption law, } 33. 
 
 on homestead, effect of, § 202. 
 
 priority of rights of widow over, ^ 343. 
 
 created by State Court proceedings, § 465. 
 
 under State laws, validity of, 5 466. 
 Specific performance — of bond to convey, §J 258, 259. 
 
 when may be decreed, J 260. 
 
 not decreed on contract of husband, § 451. 
 
 essential averments in action for, §451. 
 State — policy as to settlers on public lands, § 12. 
 
 benefit of homestead laws to general welfare, § 13. 
 
 policy as to immigration, $ 14. 
 
 cannot impair obligation of contract, § 17. 
 
 may change form of remedy but not the contract, §§ 24, 25, 27, 28, 30, 
 32, 35, 36. 
 
 cannot be released from obligations by change in constitution, 5 40. 
 
 power to declare preference between creditors, J 47. 
 
 how far may change remedies on contracts, J§ 48, 49. 
 
 no priority of right over homestead right, J 185. 
 
 exemption laws adopted in bankrupt act, §§ 457-460. 
 
 what debts covered by exemption laws, §§ 457, 458. 
 State constitution — as a law, not to impair obligation of contract, J§ 17, 20. 
 State legislature — may regulate provisions of contract, § 36. 
 See State. 
 
INDEX. I 461 
 
 I 
 
 State sovereignty — powers to regulate remedies reserved, J 27. 
 Statutes — changing remedies not unconstitutional, §5 24, 27. 
 
 not to be construed retrospectively unless, §$ 26, 27, 45, 46. 
 
 exempting property may be retroactive, §$ 27, 145. 
 
 remedial, when valid, § 28. 
 
 may not impair obligations of contract, §§ 38, 41, 49. 
 
 repeal not to affect statutory contracts, §$ 38, 70, 
 
 cannot impose new conditions in contract, § 39. 
 
 not repealed by implication, § 40. 
 
 not to be retroactive in effect, § 41. 
 
 how far may regulate remedy, J 42 . 
 
 when subsequent statute obnoxious to constitution, } 43. 
 
 affecting existing rights, void, §§ 41, 43, 46. 
 
 destroying remedy invalid, §} 48, 49. 
 
 rules and maxims for interpretation of, }J 51, 461. 
 
 words in, how interpreted, § 52. 
 
 intention of legislature, how ascertained, J 52. 
 
 of exemption, how construed, §§ 54, 66, 
 
 amendments to, how construed, $ 57. 
 
 of exemption, to whom to extend, $ 62. 
 
 construction of adopted statute, § 63. 
 
 repeal, not to affect rights acquired, § 70. 
 
 making homestead a joint tenancy construed, §$ 73, 74. 
 
 territorial limitation of, effect of, J 148 . 
 
 effect of change of law ou inchoate rights, 5 190. 
 
 requisites on alienation of homestead to be pursued, $ 242. 
 
 construction of, a judicial question, ^ 458. 
 
 construction of provisions as to waiver of exemption, § 491. 
 
 construction of exemption laws, 5§ 518-526, 579. 
 Statute of limitations — affect the remedy and not the contract, § 44. 
 
 may be retrospective, § 44. 
 Stipulations — waiving exemption, how far void, §5 542, 544. 
 Subordination — of State judiciary on constitutional construction, } 18. 
 Subsequent acquired title — $ 443. 
 Suits — may be affected by change of remedy, § 30. 
 Sureties — on bond, when liability commences, § 485. 
 Surgeon — what instruments exempt from execution, § 571. 
 Surrender — of exempt property voluntarily, § 473. 
 Survey — ^not limited as to lines of, § 104. 
 Survivor — rights of, when destroyed by divorce, § 306. 
 
 purpose and intent of homestead statute as to, § 316. 
 
 right of occupancy of homestead, §$ 317, 331. 
 
 when takes title absolutely, $5 318, 320, 321. 
 
 husband may sell interest in homestead, J 338. 
 
 restriction of right of sale of homestead, ( 339. 
 
 lawful wife alone considered as, { 341. 
 
462 INDEX. 
 
 Tanner — horse of, not exempt from execution, J 579. 
 Taxation — statutory exemption from, a, vested right, J 41. 
 Taxes— lien of, § 203. 
 Team— defined, § 576. 
 
 when and when not exempt from execution, J 578. 
 Teamster — who ia not, §§ 578-579. 
 Tenantry — political effect of, § 3. 
 Tenants in common — estate of defined, J 120. • 
 
 rights of homestead among, JJ 120-128. 
 
 grantee of homestead, when a tenant in oommon, JJ 242, 338, 339. 
 
 may apply for partition and select homestead, § 440. 
 
 of personalty, $ 558. 
 Tennessee — no formal acts necessary in acquisition of homestead, $ 168. 
 
 homestead right, when may be asserted, § 169. 
 
 rights of wife on sale of homestead by husband, J 456. 
 Tenure — not affected by declaration of homestead, § 71. 
 
 or estate in homestead rights in California, $$ 73, 74. 
 Term of years — homestead in land held for a, J 117. 
 Territorial limits.— of exemption laws, J 529. 
 Tests — of homestead rights are use and value, § 131. 
 
 actual use essential, $ 131. 
 Texas — requisites of homestead statute to be followed, $ 56. 
 
 construction of homestead act, $ 62. 
 
 who entitled to exemption right, § 62. 
 
 place of business not within exemption law, § 81. 
 
 power of legislature to exempt homestead, § 92. 
 
 change from rural to urban homestead, § 93. 
 
 homestead right attaches on equitable interest, } 119. 
 ( right attaches to lands in joint tenancy, § 120. 
 
 partition between tenants in common, and selection, §§ 121, 127. 
 
 homestead estate extends to several lots, §^ 128, 130. 
 
 alienation of lot from part of homestead by husband alone before occu- 
 pancy. Addenda, § 251. 
 
 head of family, who considered, § 147. 
 
 when husband cannot claim right, $ 148. 
 
 who not head of family, § 161. 
 
 no formal acts necessary on acquisition of homestead, $ 168. 
 
 sufficient dedication of homestead, J 169. 
 
 exemption of homestead from judgment lien, J 178. 
 
 lien of judgment, when it attaches, J 196. 
 
 purchaser under deed of trust, § 196 . 
 
 homestead subject to vendors' lien alone, J5 202, 454. 
 
 homestead law to apply to pre-existing debts, JJ 214, 216. 
 
 vendors' lien not waived by taking note, J 217. 
 
 bond to convey homestead, 5 259. 
 
INDEX. 463 
 
 Tezas — Continued. 
 
 descent and probate in, }§ 331-339. 
 
 setting aside homestead to widow, § 3i0. 
 
 descent of community interests, $ 399. 
 
 oouclasiveness of judicial decision as to homestead, J 414. 
 
 sale of statutory overplus in value of homestead, 5 424. 
 
 wife alone cannot sue for recovery of homestead, § 456. 
 Threshing machine— not exempt from execution, $ 568. 
 Time — when the selection may be made, § 176. 
 
 allowed to make claim of exemption, J 540. 
 Timepieces— exemption of, § 572. 
 Title — nature and character of, which may be selected, } 103. 
 
 not affected by destination to homestead uses, §J 71, 330, 360. 
 
 to land not required for appropriation as homestead, §§ 112-131. 
 
 sufficiency of title for dedication, JJ 120, 125. 
 
 what title not sufficient for homestead right, § 144. 
 
 in homestead not vested till payment of money, J 217. 
 
 not divested by fraudulent conveyance, $ 235. 
 
 what passes to wife by decree of divorce, J 315. 
 
 not aifected by death of party, § 317. 
 
 to homestead not affected by probate proceedings, J 327. 
 
 of assignee in bankruptcy, § 471. 
 
 to homestead unaffected by bankrupt act, § 465. 
 Tools — of mechanic defined, § 564. 
 
 when not exempt, } 564. 
 
 exemption right not lost by temporary suspension of work, J 565. 
 
 what not necessary nor exempt, §§ 566, 567. 
 
 printing blocks of oil-cloth painter not included, § 566. 
 
 mill-saw not a tool, § 567. 
 
 printing materials exempt, § 569. 
 Tort — effect of judgments in actions for, }§ 200, 201. 
 Trade — what not considered as, §§ 512, 564. 
 
 temporary suspension of, $ 565. 
 Tradesman— defined, J§ 511, 512, 566. 
 Trial — of rights to property, question as to necessary articles, J 574. 
 
 burden of proof, $ 585. 
 Trust — property in, cannot become homestead, } 142. 
 
 tenure" of vendee in, nature of, } 216. 
 Trustee — when entitled to homestead right, } 160. 
 Trust deed — duty of trustee on power of sale in, § 426. 
 
 of bankrupt, homestead subject to, § 488. 
 
 property cannot be dedicated as homestead, $ 142 j> 
 
 two homesteads not allowed, exception, {$ 96, 97. 
 
 u. 
 
 United States homestead act — exemption from debts prior to issuance of 
 patent, $ 12. 
 land, homestead in, ^ 141 . 
 
464 INDEX. 
 
 TJnmarried women — as heads of families, §5 153, 1S4. 
 Uses— of homestead, §§ 75, 86, 474, 478. 
 Usury — note and mortgage, wife may plead, $ 272. 
 Utah — ^no formal acts necessary in acquisition of homestead, § 168. 
 occupation sufficient selection of, § 169. 
 
 V. 
 
 Value — of homestead may be increased, § 89. 
 
 ■when greater than statutory allowance, liability of, 5 91. 
 Vendee — tenure of in nature of a trust, J 216. 
 Vendor — when third person sustains relation of, J 221. 
 
 effect of default of, § 227. 
 
 not one who furnishes money to pay for land, $ 404. 
 Vendor and vendee — statutory construction, §§ 223, 404. 
 Vendors' lien— homestead subject to, $J 47, 202, 215-238, 554. 
 
 how waived, § 222. 
 
 priority over allowance to widow, $ 34'3. 
 
 assignment and transfer of, J 231. ' 
 
 assignment of exemption in bankruptcy will not prevail over, $ 490. 
 
 defense in action to enforce, J 452. 
 
 when to be produced in action, § 453. 
 
 homestead, when not liable for purchase-money, J 476. 
 
 not defeated by assignment by bankrupt, § 490. 
 Vermont — object of homestead law, § 11. 
 
 growing crops embraced in, J 98. 
 
 right of homestead in lands in joint tenancy, JJ 120, 127. 
 
 right of homestead in lands held in common, J 124. 
 
 homestead right may attach to separate lots, § 134. 
 
 who may select homestead, § 147. 
 
 no formal acts necessary to acquisition of homestead, } 168. 
 
 essential conditions to right of, § 169. 
 
 A)wer and homestead to widow, 5 387. 
 
 what not exSmpt from execution, J 569. 
 Vested rights — distinguished from deW, § 28. 
 
 right to particular remedy is not, § 31. 
 
 of action, is property, J 32. 
 
 created by execution lien, § 33. 
 
 cannot be impaired by statute, §§ 38, 46. 
 
 definition of, § 41. 
 
 to remedies, § 42. 
 
 not to be disturbed by statute of limitations, J 44. 
 
 when State may divest, 5 47. 
 
 created by lien of judgment, § 48. 
 
 cannot be divested by constitution, 5 48. 
 
 of wife in homestead estate, J 72. 
 
 perfecting lien of Justice's Court not, § 190. 
 
 not disturbed by act as to widow's rights, § 404. 
 
 cannot be affected by exemption laws, ^ 458. 
 
INDEX. 466 
 
 Virginia — formal acts for selection of homestead necessary, J 167. 
 selection of homestead, how made, § 169, 
 
 w. 
 
 ■Wages — exemption of from execution, to whom applies, J 560. 
 
 employer, liability as garnishee, § 561, 
 ■Wagon — defined, and what includes, $ 579. 
 ■Waiver— of exemption by mortgage, § 277. 
 
 of right of exemption to be in writing, J 291. 
 
 a contract irrevocable, § 292. 
 
 effect on judgment creditors, J 293. 
 
 what cannot be waived, § 294. 
 
 silence, when construed as, § 295. 
 
 by stipulation in bond, $ 296. 
 
 under one law, effect of, § 297. 
 
 of inquisition, effect of, § 298. 
 
 by deed of assignment, § 299. 
 
 by agreement, §§ 300, 373. 
 
 of husband, $ 301. 
 
 by failure to file declaration of homestead, $ 302. 
 
 of widow's right to homestead, §5 363, 380. 
 
 of exemption under State law, J 491. 
 
 when valid, $ 535. 
 
 giving delivery bond no waiver, § 540. 
 
 of right of exemption, effect of, § 542. 
 
 clear and precise language must be used, § 543 . 
 • confined to express stipulation, § 544. 
 
 where void, J 545. 
 
 when not an estoppel, § 545. 
 ■Washington Territory — ^formal acts for selection of homestead necessary, J 167. 
 
 homestead right, how acquired, § 169. 
 ■Watches — when exempt from execution, § 572. 
 ■Wearing apparel — exemption of from execution, § 583. 
 ■West Virginia — formal acts for selection of homestead necessary, $ 167. 
 
 homestead right, how dedicated, J 169. 
 ■Widow — ^may acquire second homestead by marriage, §§ 97, 324, 325. 
 
 when not entitled to homestead, §§ 115, 116. 
 
 as head of family, § 159. 
 
 when entitled to homestead, $ 160. 
 
 interest in homestead, second marriage, 5$ 321, 324, 325. 
 
 what may be set apart to, 5J 322, 323, 331, 340, 342. 
 
 rights of in homestead, '^J 340-386. 
 
 right to dower and homestead, §§ 387-399. 
 
 not bound by verbal agreement of husband, J 374. 
 
 not estopped by silence as to claim, § 375. 
 
 who considered lawful wife of deceased, J 386 . 
 
 lien of judgment superior to claim of, 5 404. 
 
 Homestead — 30. 
 
466 , INDEX. 
 
 ■Widow — Gontinvied. 
 
 as creditor of husband's estate, § 408. 
 
 as tenant in common in homestead, $ 409. 
 
 entitled to money in lieu of homestead, $ 413. 
 Widowed daughter — as head of family, $ 532. 
 Widower— without children, % 151, 152. 
 Wife — protection of by homestead law, §§ 4, 7, 8. 
 
 right to select rural hom.estead, § 5. 
 
 death of not to defeat homestead right, $§ 51, 152. 
 
 right of in homestead estate, J} 71, 72 ; Addenda, § 456. 
 
 estate not aifected by neglect or default of husband, J 72. 
 
 rights of surviving wife, $ 73. 
 
 property of, where and where not subject to selection as homestead, 
 106-111. 
 
 when not head of family, §§ 155, 156. 
 
 when head of family, 5 158. 
 
 protection of homestead against debt of husband, ^ 192. 
 
 to join in conveyance of homestead, § 244. 
 
 signature procured by fraud or duress, § 252, Addenda. 
 
 cannot sell homestead to husband, § 253. 
 
 defenses in action relating to homestead, $ 272. 
 
 mortgage by, foreclosure decree, § 273. 
 
 right of after sale by husband alone, 5 280. 
 
 decree against for partial divorce not to affect homestead right, ^ 307 . 
 
 eflfect of divorce on homestead right, 55 309, 310. 
 
 when not to forfeit homestead on leaving husband, § 311. 
 
 rig4it to homestead after divorce, § 312. 
 
 when holds fee subject to husband's right of homestead, § 313. 
 
 who considered lawful wife,'§ 386. 
 
 action by, against sheriff to protect homestead, § 416. 
 
 may set up usury on contract of husband, $ 416. 
 
 death of after suit brought to recover, terminates suit, § 417. 
 
 right of ^o sue to protect homestead, § 420. 
 
 separate funds of protected, 5 425, 
 
 validity of conveyance of homestead, 5 450. 
 
 right to sue alone for recovery of homestead, § 456. See Addenda. 
 
 rights on sale of homestead by husband, 5 456. 
 
 not estopped by fraudulent acts of husband, §§ 470, 472. 
 
 of absconding debtor, rights of, § 487. 
 
 right of exemption waived by husband, 5 542. 
 Win — homestead not subject to disposition by last, J 364. 
 Wisconsin — homestea'd not carved out of lands held in common, § 27. 
 
 removal from, or sale, not to prejudice homestead right, J 35. 
 
 what property exempt under homestead law, § 76. 
 
 rented buildings not exempt, § 76. 
 
 rural homestead, how affected by extension of town, $ 94. 
 
 homestead right, to what property may attach, § 111. 
 
 may attach to leasehold interest, 5 117. 
 
 not to attach to lots held in joint tenancy, J 120. 
 
 not to attach to lands held in common, § 125. 
 
INDEX. 467 
 
 ■Wisconsin — Continued. 
 
 may consist of adjoining lots, $ 138. 
 
 intersection of highway not to defeat claim, J 138. 
 
 death of ■wife not to defeat homestead right, § 152. 
 
 no formal acts necessary to acqnisition of homestead, § 168. - 
 
 ownership and occupation sufficient, § 169. 
 
 homestead, when affected by lien of judgment, § 183. 
 
 judgment lien on homestead, when enforceable, J 191. 
 
 exemption of homestead from judgment in action of tort, 5 201, 
 
 conveyance by husband of interest in joint estate valid, § 248 . 
 
 foreclosure sale, validity of, § 276. 
 
 what deemed an abandonment of, § 283. 
 
 dower and homestead allowed to widow, § 393. 
 
 property to be exhausted before sale of homestead on execution, ^ iH. 
 
 rights of wife on sale of homestead by husband, J 456. 
 ■Woman — unmarried, when may claim homestead right, § 154. 
 ■Work-cart — what included under exemption law, ^ 523, 
 ■Work-horse — defined, § 576. 
 ■Working tools — defined, 5 564. 
 ■Writ of error — when it lies, § 45. 
 ■Written instrument — object of rules of interpretation, % 51, 52. 
 
 ambiguities in, how construed, § 52. 
 ■Wyoming — ^no formal acts necessary to acquisition of homestead, J 168 . , 
 
 no selection of homestead requisite, 5 169. 
 
 Y. 
 
 ■yoke of oxen — exempt from execution, ^ 580.