SECTION II.

HOMESTEAD RIGHTS.

Introductory.-At common law, the real property of a debtor could not be seized on execution, but such right has been given by statute in all of the United States. Public policy, therefore, demanded that the home of indigent debtors and their families be declared exempt from sale on execution to satisfy claims of creditors. In compliance with the provisions in the state constitution that "the privileges of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure and sale for the payment of any debt or liability", our legislature has passed liberal homestead laws. Such laws are to be liberally construed to effect the object of their design. The whole spirit of them is to secure a homestead to the debtor and his family. "The legislature intended to exempt to every debtor in the state the homestead which he owns and occupies, with a specified quantity of land appurtenant thereto, without regard to the use to which he puts such land or the business he pursues upon it. All that is required is that it be his homestead, and the statute was intended to protect the owner in the enjoyment of it. The fisherman may build his home upon the barren beach, using his land only for the spreading of his nets and the mooring of his vessels, or the hunter may build his home in the forest, and make no use whatever of his land appurtenant to his dwelling except to pass over it; yet we entertain no doubt whatever that the legislature intended...... to protect these men by exempting their homesteads from seizure for debt."

The statute.-Our homestead statute reads as follows: "A homestead to be selected by the owner thereof consisting, when not included in any city or village, of any quantity of land, not exceeding forty acres, used for agricultural purposes, and when included in any city or village, of any quantity of land not exceeding one-fourth of an acre and the dwelling house thereon and its appurtenances owned and occupied by any resident of this state, shall be exempt from seizure or sale on execution, from the lien of every judgment and from liability in any form for the debts of such owner to the amount in value of five thousand dollars, except laborers', mechanics'

and purchase money liens and mortgages lawfully executed, and taxes lawfully assessed and except as otherwise provided in these statutes, and such exemption shall not be impaired by temporary removal with the intention to re-occupy the same as a homestead nor by the sale thereof, but shall extend to the proceeds derived from such sale to an amount not exceeding five thousand dollars, while held with the intention to procure another homestead therewith, for a period not exceeding two years. Such exemption shall extend to land not exceeding altogether the amount and value aforesaid, owned by a husband and wife jointly or in common and to the interest therein of a tenant in common or two or more tenants in common, having a homestead thereon, with the consent, express or implied, of the co-tenants, and to any estate less than a fee held by any person by lease, contract or otherwise."

What constitutes a homestead.-A homestead is the place where one dwells, including the land upon which the dwelling-house, residence, habitation or abode is situated, not exceeding in amount and value the limits prescribed in the statute, regardless of the manner or style of building thereon. A "homestead" implies occupancy and possession. One may have several residences but he can have but one homestead. Mere intention will not make a place one's homestead. It must be the bona fide residence and domicile of the person claiming it. The owner may use part of the building for a different use than a dwelling, as for a store or hotel, and it will not thereby lose its character as a homestead. Where there are two distinct buildings on the land allowed by the statute, in one of which the owner lives, the other which is not so occupied cannot be claimed as exempt. Nor can a homestead be claimed in two disconnected tracts of land containing in all less than the amount allowed by the statute upon one of which is situated the residence of the debtor, notwithstanding they are so situated that the parcel on which the debtor does not live is necessory for the beneficial use of the part upon which is the residence, and this would be so if the parcels were but a few rods apart. The homestead must consist of but one body or tract of land. But our supreme court has held that the mere taking of an easement across the homestead, by right of eminent domain, does not divide the homestead into two separate and detached parcels. The

absolute title in fee to the whole would remain in the original owner and this would be so even though such owner voluntarily granted an easement across his premises. In figuring the area of the land exempt, the land occupied by a street or alley adjoining the land is not to be included. One cannot live in one place and then claim another house not occupied by him as his homestead. The bona fide intention of acquiring the premises for a homestead, without defrauding anyone, evidenced by overt acts in fitting them to become such, followed by actual occupancy within a reasonable time, has been held to give to the premises answering the description described in the statute, the character of a homestead, and the homestead exemption thus secured covers not only the land, but such materials so used thereon and relates back to the time of purchase with such intent to make the premises a homestead. The exemption applies to materials actually on the premises to be used in repairing a building erected or designed to be used in constructing a building thereon. The term "used for agricultural purposes", under the decisions of our supreme court, has no particular meaning in the statute. The use to which the land is put or the business of the person occupying the same is immaterial so long as it is occupied as a homestead. Where the debtor sells his homestead, the exemption extends to the proceeds to an amount not exceeding five thousand dollars for two years, provided it is his intention to secure another homestead therewith. Using a portion of the proceeds to maintain the debtor and his family, does not deprive the debtor of the right to the exemption in the balance, if he is otherwise entitled thereto.

Who entitled to the benefit of homestead laws.-The exemption given by the homestead law extends not only to the owner during his lifetime. but to the devisees, widow or heirs after his death. After the death of the husband, the widow takes the homestead free from all debts, provided it is not valued at over five thousand dollars, except laborers', mechanics' and purchase money liens and mortgages lawfully executed and taxes lawfully assessed and except as otherwise provided in the statutes, and if it ceases to be the family homestead, it will not thereby become liable for the debts of the deceased husband. Our statutes provide that a homestead shall descend as follows: "When the owner of any homestead shall die, not having lawfully devised the same,

such homestead shall descend, free from all judgment and claims against such deceased owner or his estate, except mortgages lawfully executed thereon and laborers' and mechanics' liens, in the manner following:

1. If he shall have no lawful issue, to his widow.

2. If he shall leave a widow and issue, to his widow during her widowhood, and upon her marriage or death, to his heirs. (According to the laws of descent.)

3. If he shall leave issue and no widow, to such issue. (According to the laws of descent.)

4. If he shall leave no issue or widow, such homestead shall descend according to the laws of descent, subject to lawful liens thereon; provided, however, if there be no widow or minor child of such deceased owner of any homestead living at the time of his death such homestead shall be subject to and charged with the expense of his last sickness and of his funeral and of the costs and charges of administration; and provided further, that if there be no widow and no child and no child of any deceased child of such deceased owner of any homestead, such homestead shall be subject to all the debts and liabilities of such deceased owner."

The statute exempts any homestead "owned and occupied by any resident of this state." A single person may be entitled to a homestead and where a widower whose children were all away from home occupied certain premises and he had rented the premises but boarded and lived with the tenant, it was held to be his homestead. A person in possession under a lease for a term of years or for life, or under a land contract, may claim the premises as his homestead. An equitable estate is sufficient to uphold a claim that the premises are a homestead; there need not be legal ownership.

How homestead right is lost.-A homestead right may be lost by abandonment, that is, by removing from the premises, but a temporary removal will not be an abandonment. Where a person removes from his homestead without any temporary reason or temporary purpose, and goes to another state with his family, and there takes up his abode, with no certain and abiding intention of returning and re-occupying the premises, this would be an abandonment, even though he vaguely contemplated the possibility of returning. A "temporary removal" means a removal for a fixed and temporary

purpose or for temporary reason. An actual removal with no present intention of returning is necessary. When one removes from a homestead, the presumption is that he did so with no intention of returning, but the contrary may be shown by positive evidence. In order to prevent an abandonment by a removal, it must be made with certain and abiding intention of returning to the premises and residing thereon as a homestead. A person cannot have two homesteads at the same time and such a removal as gains a new home, is an abandonment of the old one. The presumption is that a person is at home where he is found living, but this presumption may be rebutted by showing his abode to be temporary and his home elsewhere. Temporary removal from the premises, as in the case of fire, for procuring better educational facilities for children, etc., is not an abandonment. When a wife is forced to leave the premises owing to the husband's cruelty, this does not affect her homestead right. The intention of the party is always a material question in testing the matter of residence. But a person having already a fixed place of abode, cannot change it by intention merely. The mere mental resolution of the party to change, or an assertion that he has changed, his residence will not have the effect to change it if there has been no actual removal and the party continues in the use and occupation of the former place of abode with all the indicia of continued residence therein. The use of a homestead for illegal purposes, such as a house of prostitution or the committing of crime thereon, does not render it subject to sale or seizure on execution.

In order to effect a complete conveyance of the homestead and bar the homestead right, it is necessary that the wife join in the deed. Our statute provides: that "no mortgage or other alienation by a married man of his homestead, exempt by law from execution, shall be valid or of any effect as to such homestead without the signature of his wife to the same.' This statute vests no estate in the homestead in the wife, but only operates as a disability upon the husband to alienate the homestead during the life of the wife without her consent. A deed of the homestead made by the husband alone which reserved to the grantor "the sole, free and absolute use and control" thereof as long as the grantor and his wife, or either of them, should live, is a valid conveyance of the reversion of the estate after the termination of all homestead rights. In