as a family residence,108 while in other states a contrary view has been taken.104

Land owned by a partnership is, in a number of the states, not exempt from liability for the debts of a partnership because used by one of the partners as a family residence,105 though in other states it is exempt if all the partners assent to the claim of exemption.108 The right of one of the copartners to an exemption in his share of the partnership land as against an individual creditor is, it would seem, to be de cided with reference to the rule prevailing in the particular jurisdiction in regard to land owned in common, the right to such exemption being, however, contingent upon whether he has himself occupied the land with his family.

Debts to which the exemption extends.

The existence of the homestead exemption has the effect, generally, of relieving the property from liability for the debts of the owner, but the statute frequently makes exceptions in favor of certain classes of creditors. The statute in almost all the states provides in express terms that

108 McClary v. Bixby, 86 Vt. 254, 84 Am. Dec. 684; Thorn v. Thorn, 14 Iowa, 49, 81 Am. Dec. 451; Clements v. Lacy, 51 Tex. 150; Lewis v. White, 69 Miss. 352, 30 Am. St. Rep. 557; Lozo v. Sutherland, 38 Mich. 171; Giles v. Miller, 36 Neb. 346, 38 Am. St. Rep. 730.

104 Wolf v. Fleischacker, 5 Cal. Maddocks, 6 Allen (Mass.) 427; 542; West v. Ward, 26 Wis. 579; 783. 105 Trowbridge v. Cross, 117 Ill. 109; Brady v. Kreuger, 8 S. D. 464; Michigan Trust Co. v. Chapin, 106 Mich. 384, 58 Am. St. Rep. 490; Bishop v. Hubbard, 23 Cal. 514, 83 Am. Dec. 132; Ex parte Karish, 32 S. C. 437, 17 Am. St. Rep. 865; Chalfant v. Grant, 3 Lea (Tenn.) 118; Drake v. Moore, 66 Iowa, 58; Terry v. Berry, 13 Nev. 614; Short v. McGruder (C. C.) 22 Fed. 46.

244, 63 Am. Dec. 121; Thurston v. Holmes v. Winchester, 138 Mass. Ventress v. Collins, 28 La. Ann.

106 Ferguson v. Speith, 13 Mont. 487, 40 Am. St. Rep. 459; McMillan v. Williams, 109 N. C. 252; Hunnicutt v. Summey, 68 Ga. 586; Swearingen v. Bassett, 65 Tex. 267.

the exemption of the land from liability for debts shall not extend to a debt to the vendor for the purchase price,107 and, apart from any such express provision, the land would probably be regarded as liable for such a debt, either on the ground of the existence of a vendor's lien, or by the construction placed upon the statute. But the exemption has been held to extend to a claim for money borrowed to pay the purchase price, this not being within the statutory exception in favor of purchase-money claims,108 though in some cases the view is taken that, if it is understood between the purchaser and the lender that the loan shall be used in paying the purchase price, the lender may enforce his claim against the homestead.100

There is quite frequently a provision that the exemption shall not exist as against debts incurred in improving the premises.110

Taxes likewise are usually made enforceable against the homestead, either by the terms of the homestead law or the provisions in regard to sales of land for taxes.111 Generally

107 Waples, Homestead, c. 11.

108 Eyster v. Hatheway, 50 Ill. 521, 99 Am. Dec. 537; Dreese v. Myers, 52 Kan. 126, 39 Am. St. Rep. 336; Perry v. Ross, 104 Cal. 15, 43 Am. St. Rep. 66; Loftis v. Loftis, 94 Tenn. 232. See Nottes' Appeal, 45 Pa. St. 361.

109 Acruman v. Barnes, 66 Ark. 442, 74 Am. St. Rep. 104; White v. Wheelan, 71 Ga. 533; Warhmund v. Merritt, 60 Tex. 24; Nichols v. Overacker, 16 Kan. 54; Carey v. Boyle, 53 Wis. 574.

If the loan and the purchase can all be considered one transaction, then the lender is, it seems, entitled to stand in the position of the vendor. Austin v. Underwood, 37 Ill. 438, 87 Am. Dec. 254; Dreese v. Myers, 52 Kan. 126, 39 Am. St. Rep. 336.

110 See Lewton v. Hower, 18 Fla. 872; McWilliams v. Bones, 84 Ga. 203; Hurd v. Hixon, 27 Kan. 722; All v. Goodson, 33 S. C. 229; Miller v. Brown, 11 Lea (Tenn.) 155; Butler v. Davis, 15 Ky. Law Rep. 273, 23 S. W. 220.

111 Higgins v. Bordages, 88 Tex. 458; Douthett v. Winter, 108 Ill. 330; Lamar v. Sheppard, 80 Ga. 25; Shell v. Duncan, 31 S. C. 547; Waples, Homestead, 327.

speaking, however, claims of the state stand upon the same plane as the claims of private individuals as regards their enforcement against the homestead property.112

In some states the statute is construed as exempting the homestead premises only from claims based on contract, leaving them liable for claims arising from tort; this construction being placed on a provision exempting the premises from liability for "debts contracted."118 In some states the exemption is effective only as against debts incurred after the acquisition of the property, or after its occupation as a homestead, or after a formal declaration of an intention to claim the homestead rights.114

Liens which have attached to the land before its purchase, or before it acquired its homestead character, can be enforced against it.115

112 Central Kentucky Lunatic Asylum v. Craven, 98 Ky. 105, 56 Am. St. Rep. 323; Fink v. O'Neil, 106 U. S. 272; Colquitt v. Brown, 63 Ga. 440; Ren v. Driskell, 11 Lea (Tenn.) 642; State v. Pitts, 51 Mo. 133.

Accordingly, the homestead has been held to be exempt from sale under execution to satisfy a fine or judgment for costs in a criminal prosecution. Com. v. Lay, 12 Bush (Ky.) 283, 23 Am. Rep. 718; Fink v. O'Neil, 106 U. S. 272; Hollis v. State, 59 Ark. 211, 43 Am. St. Rep. 28; Loomis v. Gerson, 62 Ill. 11.

118 Whiteacre v. Rector, 29 Grat. (Va.) 714, 26 Am. Rep. 420; Nowling v. McIntosh, 89 Ind. 593; Burton v. Mill, 78 Va. 468; Lathrop v. Singer, 39 Barb. (N. Y.) 396; McLaren v. Anderson, 81 Ala. 106; Davis v. Henson, 29 Ga. 345.

114 Waples, Homestead, 282 et seq.

118 Bullene v. Hiatt, 12 Kan. 98; Meador v. Meador, 88 Ky. 217; Robinson v. Wilson, 15 Kan. 595, 22 Am. Rep. 272; Pender v. Lancaster, 14 S. C. 25, 37 Am. Rep. 720; Dye v. Cooke, 88 Tenn. 275, 17 Am. St. Rep. 882; Zander v. Scott, 165 Ill. 51; Davis Sewing Mach. Co. v. Whitney, 61 Mich. 518; Bunn v. Lindsay, 95 Mo. 250; Clements v. Lacy, 51 Tex. 150.

So in the case of mortgage liens. Mabry v. Harrison, 44 Tex. 286; Spaulding v. Crane, 46 Vt. 292; Gibson v. Mundell, 29 Ohio St. 523; Webster v. Dundee Mortgage & Trust Co., 93 Ga. 278; McCormick v. Wilcox, 25 Ill. 274.

The exemption cannot be asserted as against debts which were contracted before the adoption of the law creating or enlarging the right, and under which the right is asserted, since the law, if given such retroactive effect, would impair the obligation of contracts, in violation of the United States constitution.116

Claim and selection.

Though, usually, occupancy for residence purposes is sufficient to give to land the homestead character,117 in some states it is necessary that the owner and occupant also put on record his claim of homestead rights in the property, and the exemption is not effective as against debts incurred before this is done.118

The procedure to be adopted in order to secure the exemption in case of issuance of execution against the owner varies greatly in the different states, there usually being a provision for the presentation by the owner of his claim of exemption, and a selection by him of the amount allowed by law from the premises occupied by him.119

-Transfer of the homestead property.

The requirement which usually exists, that the wife of

116 Gunn v. Barry, 15 Wall. (U. S.) 610; Edwards v. Kearzey, 96 U. S. 595; Tillotson v. Millard, 7 Minn. 513 (Gil. 419), 82 Am. Dec. 112; Homestead Cases, 22 Grat. (Va.) 266, 12 Am. Rep. 507; Dye v. Cooke, 88 Tenn. 275, 17 Am. St. Rep. 882.

117 Taylor v. Hargous, 4 Cal. 272, 60 Am. Dec. 606; Coates v. Caldwell, 71 Tex. 19, 10 Am. St. Rep. 725; Green v. Farrar, 53 Iowa, 426; Broome v. Davis, 87 Ga. 584; Barton v. Drake, 21 Minn. 299; Imhoff v. Lipe, 162 Ill. 282; Davis v. Day, 56 Ark. 156; Riggs v. Sterling, 60 Mich. 643.

118 See Wright v. Westheimer, 2 Idaho, 962; Timothy v. Chambers, 85 Ga. 267, 21 Am. St. Rep. 163; Boreham v. Byrne, 83 Cal. 23; Goodwin v. Colorado Mortgage Inv. Co. of London, 110 U. S. 1; Drake v. Root, 2 Colo. 685; Threat v. Moody, 87 Tenn. 143.

110 See Waples, Homestead, c. 22.

120

the owner join in or consent to any transfer of the homestead property, has been previously discussed.1 Subject to this requirement, the owner has ordinarily the right to transfer the homestead to the same extent as other property;121 and creditors cannot object to such action as being fraudulent as against them, since they have no rights against the homestead property in any case.122 Likewise, the land may, in the absence of express prohibition, be mortgaged by the owner, with the joinder or consent of his wife.123 By statute, occasionally, however, there is a restriction upon the right to transfer or mortgage the homestead. In one state, for instance, it can be mortgaged only to secure the purchase money or the cost of improvements.124

120 Ante, § 214.

121 Waples, Homestead, 469, 497. See Larson v. Reynolds, 13 Iowa, 581, 81 Am. Dec. 444; Wea Gas, Coal & Oil Co. v. Franklin Land Co., 54 Kan. 533, 45 Am. St. Rep. 297; Moran v. Clark, 30 W. Va. 359, 8 Am. St. Rep. 66; Kendall v. Powers, 96 Mo. 142, 9 Am. St. Rep. 326; Fishback v. Lane, 36 Ill. 437; Greenough v. Turner, 11 Gray (Mass.) 334; Giles v. Miller, 86 Neb. 346, 38 Am. St. Rep. 730; Ketchin v. McCarley, 26 S. C. 1, 4 Am. St. Rep. 674; Barton v. Drake, 21 Minn. 299; Rogers v. Adams, 66 Ala. 600; Brame v. Craig, 12 Bush (Ky.) 404; Astugueville v. Loustaunau, 61 Tex. 233.

122 Bank of Versailles v. Guthrey, 127 Mo. 189, 48 Am. St. Rep. 621; Roberts v. Robinson, 49 Neb. 717, 59 Am. St. Rep. 567; Tong v. Eifort, 80 Ky. 152; Winter v. Ritchie, 57 Kan. 212, 57 Am. St. Rep. 331; Castle v. Palmer, 6 Allen (Mass.) 401; Smith v. Rumsey, 33 Mich, 183; Williams v. Watkins, 92 Va. 680.

128 Preiss v. Campbell, 59 Ala. 635; Low v. Anderson, 41 Iowa, 476; Jamison v. Bancroft, 20 Kan. 169; Hand v. Winn, 52 Miss. 784; Grimes v. Portman, 99 Mo. 229; Moran v. Clark, 30 W. Va. 358, 8 Am. St. Rep. 66.

124 Const. Tex. art. 16, § 50. See Equitable Mortgage Co. v. Norton, 71 Tex. 683. And in Georgia any mortgage is, it seems, invalid, while a sale is valid only if approved by the court. Planters' Loan & Sav. Bank v. Dickinson, 83 Ga. 711. The prohibitions formerly existing in Arkansas and California against the alienation of the homestead property were repealed. Peterson v. Hornblower, 83 Cal 266; Brown v. Watson, 41 Ark. 309.