exceed $1,000 in value, under Ky. Gen. Stat., ch. 38, art. 13, §§ 9, 10, undervalue the land set apart, a subsequent creditor, not a party to the former proceeding, may have such valuation corrected and the excess subjected to his debt. Louden et al. v. Yeager, 91 Ky. 57 (14 S. W. Rep. 966). Where the extent of the homestead depends on whether or not the premises so claimed are within "the laid-out or platted portion of an incorporated town, city, or village," (Minn. Gen. Stat. 1878, ch. 68, § 1) it is held that such provision refers only to that part which is laid out and platted for city or urban purposes and not to land divided into large out or farm lots for rural or agricultural purposes. Smith's Estate v. Schubert, 51 Minn. 316 (53 N. W. Rep. 711). Substantially the same is held by the Supreme Court of Iowa in construing Iowa Code, § 1996. Frost v. Rainbow, 85 Ia. 289 (52 N. W. Rep. 198). S. C. Gen. Stat., §§ 1994, 1998, construed -assignment of homestead-duty of sheriff. Bradford v. Buchanan, 39 S. C. 237 (17 S. E. Rep. 501). Tex. Rev. Stat., arts. 1993, 2000, construed. Fossett v. McMahan et al., 86 Tex. 652 (26 S. W. Rep. 979).

Sec. 400. Miscellaneous notes. As to whether or not a piece of realty is a homestead is a question of fact. Little v. Baker, Tex. (25 S. W. Rep. 143). A homestead right is to be determined by the law in force at the time of the creation of the debt to which it is sought to be subjected. Trimmier v. Winsmith, S. C.

(19 S. E. Rep. 283). The extent of a homestead is not to be determined from the fee simple value of the land, but from the value of the homestead claimant's interest therein. Hoy v. Anderson, 39 Neb. 386 (58 N. W. Rep. 125). Where a debtor has for many years occupied a lot as a homestead he cannot, after voluntarily creating liens thereon, shift his claim of homestead to another lot in which he had never claimed a homestead, after he has created other debts and after the commencement of actions to recover judgment thereon. Ky. Gen. Stat., ch. 38, art. 13, § 10, applied. Tohermes v. Beiser et al., 93 Ky. 415 (20 S. W. Rep. 379). Where the estate of homestead has been acquired in land of greater value than the limit of the homestead exemption, and

the surplus has been alienated by a sale or transfer according to law, the owner of the residue may maintain a right of entry to recover the land subject to the right of homestead. Copeland v. Sturtevant, 156 Mass. 114 (30 N. E. Rep. 475). A contract executed by the husband alone providing for a purchase of fruit trees and the payment thereof by giving a portion of the crop of fruit to be grown in the future does not interfere with the homestead right so as to render it void because not signed by the wife. Dickey et al. v. Waldo, 97 Mich. 255 (56 N. W. Rep. 608; 23 L. R. A. 449). "In divorce proceedings, it is competent for the court to assign the homestead to the innocent party, either absolutely or for a limited period; but, where the decree in the divorce proceedings is silent upon the question, the homestead will, upon the dissolution of the marriage, remain in the possession of the party holding the legal title thereto, discharged from the homestead rights or claims of the other party." Rosholt v. Mehus, 3 N. Dak. 513 (57 N. W. Rep. 783; 23 L. R. A. 239). A purchase-money mortgage is paramount to homestead rights. Moses et al. v. Home B. & L. A., Ala.

(14 So. Rep. 412). Where the debt secured by a mortgage on a homestead is also secured by collaterals of various kinds, upon a foreclosure of the mortgage, the mortgagors have a right to require that the collaterals be first exhausted in order to preserve the homestead. Des Moines Nat. Bank v. Harding, 86 Ia. 153 (53 N. W. Rep. 99). A non-resident may have the benefit of a statute (Ia. Code, § 2008), providing for the descent of homestead exempt from debts. Maguire v. Kennedy, Ia. (59 N. W. Rep. 36). Where a deed conveying land subject to homestead is set aside as fraudulent at the suit of a creditor, a provision in the decree that the sale shall be in accordance with the homestead law does not cause the homestead to revert to the grantor, but simply confirms the grantee's title thereto. Quinn et al. v. People, 146 Ill. 275 (34 N. E. Rep. 148). Where the surviving widow and minor heirs are occupying the homestead under the statute, adult heirs cannot insist upon the foreclosure of a mortgage thereon given for purchase money when the mortgagee does not desire to foreclose. Hannah et al. v. Hannah et al., 109 Mo. 236 (19 S. W. Rep. 87).

HUSBAND AND WIFE.

EPITOME OF CASES.

Sec. 401. Marriage settlements. Parties to an antenuptial contract occupy a confidential relation to each other, and where in such a contract the provision secured for the intended wife is disproportionate to the means of the intended husband, it raises the presumption of designed concealment and the burden of proof that the wife had full knowledge of all the material facts affecting the agreement is thrown upon those claiming in the right of the husband. Taylor et al. v. Taylor, 144 Ill. 436 (33 N. E. Rep. 532); Spurlock v. Brown, 91 Tenn. 241 (18 S. W. Rep. 868); Simpson v. Simpson, 94 Ky. 586 (23 S. W. Rep. 361). An ante-nuptial agreement, by which a certain sum is settled upon the wife to be paid at the death of the husband, creates no lien on any property except that held by him at his death. Cox v. Hazelip, Ky. (21 S. W. Rep. 1048). Case in which a particular marriage contract is construed. Biggi v. Biggi, 98 Cal. 35 (32 Pac. Rep. 803; 35 Am. St. Rep. 141). Particular facts held sufficient to set aside an ante-nuptial contract by which the wife released all her dower interest without any adequate consideration. Rep. 722).

Sec. 402.

Graham v. Graham, 143 N. Y. 573 (38 N. E.

Deed by husband direct to wife. In Missouri it is held that where a husband purchased lands with the wife's money and took the title in his own name and then executed a deed direct to her, such deed gave her the equitable title only; and, as against a judgment creditor who purchased the land on execution sale, against the husband and wife, could not maintain ejectment on her equitable title. Crawford v. Whitmore, 120 Mo. 144 (25 S. W. Rep. 365). The court

say: "Although the property may have been paid for with the funds of the wife, the legal title thereto vested in her husband, under the deed from Janes to him, and passed to defendants Whitmore by the sheriff's sale and deed to them; and, even though the plaintiff, Mrs. Crawford, may have had the equitable title, she could not recover in ejectment on such title against the legal title. She must first proceed to have the legal title to the lot vested in herself, before bringing ejectment for the recovery of its possession. The deed from the husband to the wife being void in law, as held in Turner v. Shaw, 96 Mo. 22 (8 S. W. Rep. 897), she only acquired the equitable title by that deed. If, however, he had conveyed the lot to his wife through some other person, and that person had conveyed to the wife, she would, by reason of such conveyances, become vested with the title in fee, (Payne v. Twyman, 68 Mo. 339,) thus doing indirectly what he could not do directly. We are aware that it was held in Bangert v. Bangert, 13 Mo. App. 144, and Cooper v. Standley, 40 Mo. App. 138, that when the husband purchases property with the funds of his wife, and takes the title in his own name, he may by deed convey the property directly to her, and thus pass the legal title; but those cases are in conflict with the decisions of this court, are not supported by authority, and should not be followed. A husband could not, at common law, convey by deed direct to his wife, so as to pass the legal title, nor is he authorized to do so by statute." In Illinois, North Carolina and New Jersey it is held that a husband may convey directly to his wife. Fort ct al. v. Allen et al., 110 N. C. 183 (14 S. E. Rep. 685); Vought's Ex'rs v. Vought et al., 50 N. J. Eq. 177 (27 Atl. Rep. 489); Walker v. Long, 109 N. C. 510 (14 S. E. Rep. 299); Barrows v. Barrows, 138 Ill. 649 (28 N. E. Rep. 983). In Michigan and Alabama the husband may convey to his wife his interest in the homestead. Lynch v. Doran, 95 Mich. 395 (54 N. W. Rep. 882); Turner et al. v. Bernheimer, 95 Ala. 241 (10 So. Rep. 750). A deed of conveyance from husband directly to wife, and having a nominal consideration, passes an equitable estate in fee, the holder of which is entitled to have the legal title from the heirs of the husband Sipley v. Wass et al., 49 N. J. Eq. 463 (24 Atl. Rep. 233).

Conveyance by wife to husband.

Where

Sec. 403. the statute requires her husband to join her in a conveyance of her property, a wife cannot make a valid deed directly to her husband, although he joins in the deed as grantor, Rico et al. v. Brandenstein et al., 98 Cal. 465 (33 Pac. Rep. 480; 35 Am. St. Rep. 192; 20 L. R. A. 702); but in Texas, it is held that a wife, her husband joining, may convey her separate land as a gift to him by a deed to a third person, and causing such third person to convey to the husband, Riley v. Wilson et al., 86 Tex. 240 (24 S. W. Rep. 394). Citing, Scarborough v. Watkins, 9 B. Mon. 546; Todd's Heirs v. Wickliffe, 18 B. Mon. 866; Jackson v. Stevens, 16 Johns. 109; Dempsey v. Tylee, 3 Duer, 95; Shepperson v. Shopperson, 2 Grat. 501; Mc Cartee v. Society, 9 Cow. 463; Meriam v. Harsen, 2 Barb. Ch. 265; Id., 4 Edw. Ch. 81; Gebb v. Rose, 40 Md. 392; Grove v. Jeager, 50 Ill. 249; Thatcher v. Omans, 3 Pick. 521; Durant v. Ritchie, 4 Mason, 45; Garvin v. Ingram, 10 Rich. Eq. 130. 1 Bish. Mar. Wom., 604, 712, 713; Kelly, Cont. Mar. Wom. 131; 1 Cord. Mar. Wom. 428; Har. Cont. Mar. Wom. 582, 583; Wells, Mar. Wom., § 582. In Kentucky it is held that a conveyance of land by a wife to her husband, which is void because not properly executed, is no defense to an action in equity, by the heirs of the wife, to recover the land from the husband's grantee, where the consideration for such conveyance was not paid; and, a parol contract by the wife to convey to her husband land taken in her name to secure the payment of money advanced by her will not, after twenty-eight years, be enforced against the wife's heirs by the grantee of the husband after the death of the wife, where it does not clearly appear that the husband's contract to repay the money so advanced has been performed. Bohannon v. Travis, 94 Ky. 59 (21 S. W. Rep. 354).

Sec. 404. Deed to husband and wife-Joint tenancies. In Illinois the statute, Rev. St. 1893, Ch. 30., § 5, declares that no estate in joint tenancy shall be held unless the land shall be expressly declared to pass, not in tenancy in common, but in joint tenancy; and Rev. St. 1893, Ch. 76, § 1, declares that if partition be not made between joint tenants the shares of those who die first shall not accrue to the