66

that he actually dwell on the land; it may be claimed in lands "actually and conveniently used" in connection with the house where the claimant resides and which are necessary to the convenient enjoyment of the house" as a home. Libbey v. Davis, N. H. (34 Atl. Rep. 744). In Kentucky, a mere intention of a householder to occupy lands as a homestead does not give him a homestead therein. Levy v. Rubarts,

Ky. (34 S. W. Rep. 1078). Actual occupancy of the land claimed as a homestead is not an essential condition to its exemption as such, and where there are several contiguous tracts or parcels of land, or several tracts or parcels not contiguous, but conveniently situated so that they may be and are actually used as one farm or place of residence, the actual residence being on one of the tracts or parcels, they must be regarded as the homestead of the debtor claiming exemption, and the exemption extends to all of them to the extent of the statutory limitation. Summers v. Sprigg, Ky. (35

S. W. Rep. 1033). Substantially the same rule prevails in Tennessee. Tenn. Act 1879, ch. 171, applied. First Nat. Bank v. Meachem, Tenn. (36 S. W. Rep. 724); Moses v. Groner,

Tenn. (37 S. W. Rep. 1031); and

in the last case it is held that a homestead may be asserted in non-contiguous unoccupied town lots when they are near enough together to permit two or more of them to be used as one lot for the purpose of a home. In Kansas, occupancy of the land by the claimant and his family within a reasonable time after it is acquired is necessary to give it a homestead character. Edgerton v. Connelly, 3 Kan. App. 618 (44 Pac. Rep. 22); Lenora State Bank v. Peak, 3 Kan. App. 698 (44 Pac. Rep. 900); Dobson v. Shoup, 3 Kan. App. 468 (43 Pac. Rep. 817). Under Mont. Code Civ. Proc., § 322, occupancy is necessary to acquiring a homestead in land, a mere declaration of an intention to claim land as such being insufficient. Power v. Burd, 18 Mont. 22 (43 Pac. Rep. 1094). The declarations of one claiming a homestead exemption in lands as to his intentions in regard to the occupancy thereof are not conclusive. Tromans v. Mahlman, 111 Cal. 646 (44 Pac. Rep. 327). Particular facts held to show such occupancy of land as to give the owner a right of homestead therein. Shaw

v. Kirby, 93 Wis. 397 (67 N. W. Rep. 700; 57 Am. St. Rep. 927).

Where two tracts of land lying contiguous are used and cultivated as one farm by a husband and wife he may claim a homestead in a portion of such land owned by him although the residence was located on a portion of such land owned by the wife. Mason v. Columbia Finance & Trust Co., 97 Ky. 117 (35 S. W. Rep. 115; 59 Am. St. Rep. 451). Under a statute (S. C. Const. 1868, Art. 2, § 32), which defines a family homestead as a "dwellinghouse, outbuildings and land appurtenant," it is held that it cannot be said, as a matter of law, that a tract of land which belonged to the head of the family, and was not separated from, but was used in connection with the "family homestead," could not be appurtenant thereto within the meaning of the statute, even though the dwelling house might be situated on an adjoining tract belonging to the wife of the head of the family. Whether or not such lands are appurtenant is a question of fact for the jury. McIver, C. J., dissenting. McClenaghan v. McEachern, 47 S. C. 446 (25 S. E. Rep. 296).

Sec. 374. Amount of land claimed-Rural and urban homesteads. In determining whether or not a homestead comes within the statutory limit, the value of the claimant's interest in the premises, and not the value of the fee simple, governs. Mundt v. Hagedorn, 49 Neb. 409 (68 N. W. Rep. 610). Where the homestead is incumbered the claimant is entitled to an exemption equal to the statutory amount over and above the incumbrance. Prugh v. Portsmouth Sav. Bank, 48 Neb. 414 (67 N. W. Rep. 309). Construing and applying Ark... Const. 1874, Art. 9, § 5, limiting a homestead "in any city, town, or village" to not exceeding one acre of land providing the same does not exceed in value $2,500, it is held that where land claimed as a homestead is within a town more than one acre cannot be claimed although the land is used for farm purposes only and has not been divided into lots. First Nat. Bank v. Wilson, 62 Ark. 140 (34 S. W. Rep. 544). Construing and applying Tex. Const. 1876, Art. 16, § 51, providing that a "homestead in a city, town or village, shall consist of lot or lots. not to exceed in value $5,000, at the

time of their designation as the homestead, without reference to the value of any improvements thereon; provided that the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family," it is held that a lot in a city used by a gardener for the production of produce may be claimed as a homestead although separated from his dwelling by a street. Waggener

v. Haskell, 89 Tex. 435 (35 S. W. Rep. 1). Where a homestead has been acquired in rural lands an act of the legislature extending the limits of the city so as to include the homestead, while it retains all its characteristics as such, will not operate to reduce or diminish the right of the owner of the homestead unless it becomes in fact urban property; and the fact that the premises are wholly or partly surrounded by laidout and platted land does not affect its homestead character, so long as the land itself is not laid out and platted, and is not urban in its character. Kiewert v. Anderson, 65 Minn. 491 (67 N. W. Rep. 1031; 60 Am. St. Rep. 487).

Sec. 375. Selection and allotment of homestead. One authorized to select, declare, and record a homestead with a quantitive limitation cannot be permitted to carve it out of his land in such a form as to leave the remainder worthless, or to impair its value, so that creditors shall be injured. Sparks v. Day, 61 Ark. 570 (33 S. W. Rep. 1073; 54 Am. St. Rep 279). Citing, Jaffrey v. McGough, 88 Ala. 648 (7 So. Rep. 333); Wap. Homest. & Ex., pp. 158-160. In Kansas, when the owner and his family occupy as a residence a body of farming land greater than is exempt as a homestead, the selection of the homestead must include the dwelling house and such other land as is contiguous thereto. Such selection cannot be made of 160 acres which are entirely separated from the legal subdivision of land upon which the dwelling house is situated, even though the intervening land belongs to the same owner. Lenora State Bank v. Peak, 3 Kan. App. 698 (44 Pac. Rep. 900). Miss. Code 1892, §§ 1972, 1975, 1976, construed and applied-allotment of homestead-practice. Wiseman v. Parker, 73 Miss. 378 (19 So. Rep. 102). Particular fact case as to the necessary and proper parties to an action to set aside a judgment setting apart a homestead under

the statute of Georgia. Tarver v. New England Mort. Sec. Co., 96 Ga. 536 (23 S. E. Rep. 507). The mode of setting off a homestead provided for by S. C. Rev. Stat. 1893, §§ 2126, 2134, is exclusive. Peoples' Bank v. Brice, 47 S. C. 134 (24 S. E. Rep. 1038).

Sec. 376. Sale or exchange of homestead-Exemption of proceeds. Where a statute (Mo. Rev. Stat. 1889, § 5435, 5436, 5442) provides a method for the appraisement and allotment of a homestead to an execution debtor, making the property so allotted exempt from execution after its allotment, and also provides that the owner of a homestead may exchange it for another which will be protected by the same exemption, it is held that where a homestead to the amount allotted by the statute is appraised and set off under the statute to an execution debtor, he may sell the same and invest the proceeds in another homestead, and where he realizes from such sale an amount in excess of the homestead allowed by statute no lien can be enforced against his vendee on account of such surplus, nor against him until there has been a reappraisement of the new homestead in the manner provided for by the statute. Macke v. Byrd, 131 Mo. 682 (33 S.W. Rep. 448; 52 Am. St. Rep. 649). Iowa Code, §§ 2000, 2001, construed and applied-sale of homestead-investment of proceeds in another homestead. Schuttloffel v. Collins, 98 Ia. 576 (67 N. W. Rep. 397; 60 Am. St. Rep. 216). Under Neb. Comp. Stat., ch. 36, § 16, the proceeds of a sale of the homestead, to the amount of the statutory homestead exemption, are exempt from execution the same as the homestead for a period of six months. Prugh v. Portsmouth Sav. Bank, 48 Neb. 414 (67 N. W. Rep. 309); Corey v. Plummer, 48 Neb. 481 (67 N. W. Rep. 415). The exemption given by this statute applies whether such proceeds are received in cash, notes, or property, and dates not from the time of the sale but from the date of their payment. Corey v. Plummer, 48 Neb. 481 (67 N. W. Rep. 445).

Sec. 377. Exemption of homestead from debts. The law in force at the time of the creation of a debt from which exemption is claimed determines the right to such

exemption. McClenaghan v. McEachern, 47 S. C. 446 (25 S. E. Rep. 296). The rights of a judgment debtor to claim lands exempt as a homestead are determined by the status of the lands at the time the judgment was rendered. Edgerton v. Connelly, 3 Kan. App. 618 (44 Pac. Rep. 22); Lonora State Bank v. Peak, 3 Kan. App. 698 (44 Pac. Rep. 900). One who purchases at an execution sale homestead property sold for a debt for which it is not liable acquires no title. Cal. Civ. Code, § 1265, applied. City Store v. Cofer, 111 Cal. 482 (44 Pac. Rep. 168); Ratliff v. Graves, 132 Mo. 76 (33 S. W. Rep. 450). Although a mechanic's lien may be enforced against a homestead under Tex. Const., Art. 16, § 50, a homestead cannot be subject to a lien for money loaned to the owner of it for the purpose of placing improvements upon it. Campbell v. Mc Campbell, Tex. Civ. App. (34 S. W. Rep. 970). It is subject to mechanic's liens. McAnally v. Hawkins Lumber Co., 109 Ala. 397 (19 So. Rep. 417). In Nebraska the homestead, to the extent of the statutory exemption, is not subject to any judgment against the owner thereof, obtained subsequent to its acquisition, unless based upon a debt secured by a mortgage, or a mechanic's, laborer's, or vendor's lien. Corey v. Plummer, 48 Neb. 481 (67 N. W. Rep. 445); Fox v. Mc Clay, 48 Neb. 820 (67 N. W. Rep. 888). In the last case it is held that so far as the provisions of Neb. Civ. Code, § 531, conflict with this rule it is repealed. Where a wife's homestead is mortgaged to secure the debt of her husband in no way connected with the homestead, his payment of that debt does not entitle his other creditors to take the place of the mortgagee. Wells v. Anderson, 97 Ia. 201 (66 N. W. Rep. 102; 59 Am. St. Rep. 409). Ill. Rev. Stat., ch. 52, §§ 1, 10, construed and applied-exemption of homestead -execution sale. Bach v. May, 163 Ill. 547 (45 N. E. Rep. 248).

Sec. 378. Debts for which a homestead is liable. The claim of homestead in land is subject to existing liens thereon. Spalti v. Blumer, 63 Minn. 269 (65 N. W. Rep. 454); Willard v. Masterson, 160 Ill. 443 (43 N. E. Rep. 771). Construing and applying Cal. Civ. Code, § 1241, which makes a "homestead subject to execution or forced sale