ling Co., 41 Minn. 227 (43 N. W. Rep. 52), the debtor's right was in such case affirmed, because he is merely exercising a right which the law gives him and subject to which every one gives him credit.' Michigan holds to the same effect, the court saying: 'There may be a moral wrong in thus keeping property from creditors, but, if so, it is one which the statute, on the grounds of public policy, and to prevent distressing families, has sanctioned, in allowing exemption, and therefore is not legally a fraud.' O'Donnell v. Segar, 25 Mich. 367. And in California, after one decision indicating a contrary view, it is now settled that one may apply nonexempt property to the discharge of incumbrances on a homestead, and claim the whole homestead as exempt. Randall v. Buffington, 10 Cal. 493; In re Henkle, 2 Sawy. 305 (Fed. Cas. No. 6,362). The law is thus stated by Foster, J., in Kelly v. Sparks, 54 Fed. Rep. 70: It seems to be well settled, in principle and the preponderance of authority, that an insolvent debtor, knowing himself to be insolvent, may acquire a homestead for himself and family, and hold the same exempt from his creditors, although purchased with nonexempt assets, and that fraud cannot be imputed to such an act. * Credit is

given the debtor in full view of this comprehensive exemption.' See, too, Bank v. Glass, 25 C. C. A. 151 (79 Fed. Rep. 706)."

Sec. 392. Occupancy and use necessary - Contiguous parcels. Land cannot be claimed as exempt from execution as a homestead under Utah Comp. Laws 1888, § 3429, subd. 11, where it is not being used as the residence of the debtor or his family, nor in any manner appurtenant to, or used in connection with their residence, nor selected by him for a homestead. Gammet v. Storrs, 15 Utah 336 (49 Pac. Rep. 642). In Kentucky a homestead may be claimed in lands purchased as such, against a debt subsequently created, although not occupied by the claimant until afterward. A residence on the lands claimed as a homestead by one having no other home with his wife and family, sufficiently shows that the claimant is a bona fide house holder with a family. Crouch v. Meguiar-Harris Co., Ky. (42 S. W. Rep. 91). It is not necessary for one to reside upon lands in order for him

to claim a homestead therein, but he may claim a homestead in the lands adjoining those upon which he resides. Redmon v. Citizens' Bank, Ky. (39 S. W. Rep. 432). Where a husband and wife resided upon land belonging to her, and used it and a contiguous tract belonging to him as a homestead, upon his decease she may claim a homestead in the latter tract. Buckler v. Brown, Ky. (39 S. W. Rep. 509). In Alabama it is held that a building used as a store room cannot be claimed as a homestead, although the owner thereof may have resided therein in connection with his business. Bell v. Anniston Hardware Co., 114 Ala. 341 (21 So. Rep. 414). Two tracts of land which corner with each other are contiguous and may be claimed as a homestead, where their combined area does not exceed the statutory limit. Clements v. Crawford Co. Bank, 64 Ark. 7 (40 S. W. Rep. 132; 62 Am. St. Rep. 149). See Ballards' Law of Real Prop., Vol. II, § 282. It is held that one asserting a right of homestead under Fla. Const. 1885, art. 10, § 1, is not entitled to claim as a part of his homestead a detached tract of land separated from the homestead by other parcels of land neither owned nor occupied by the owner of the homestead, though such other tract be used and cultivated as a part of the homestead and both tracts together do not exceed the constitutional limits as to quantity. Brandies v. Perry, 39 Fla. 172 (22 So. Rep. 268; 63 Am. St. Rep. 164).

Sec. 393. Amount of land claimed-Statutes construed. The outbuildings, fences and other improvements. upon land claimed as a homestead, constitute part of the homestead, unless taken together they exceed the amount exempted to the homesteader. Watterson v. E. L. Bonner Co., 19 Mont. 554 (48 Pac. Rep. 1108; 61 Am. St. Rep. 527). Citing, Greeley v. Scott, 2 Woods 657 (Fed. Cas. 5,746); Conklin v. Foster, 57 Ill. 104. Construing and applying Cal. Civ. Code, § 1237, providing that "a homestead consists of the dwelling house in which the claimant resides and the land on which the same is situated," it is held that a claim of homestead will not include an inclosed adjacent lot upon which there is a house not used by him but rented to others. In re Ligget, 117 Cal. 352 (49 Pac. Rep. 211; 59 Am. St. Rep.

190). A homestead claimant, owning more than 160 acres of land, who attempts under Kan. Gen. Stat. 1889, ch. 28, § 2, to select as his exemption 160 acres upon which he does not reside, but a portion of which is connected by contiguous Iracts with the one upon which he does reside, is not to be denied an exemption in such portion as is thus connected, merely because he omits to claim it in connection with the tract upon which he lives. Peak v. Lenora State Bank, 58 Kan. 485 (49 Pac. Rep. 613). In Arizona every head of a family whose family resides in the territory may claim as a homestead exemption real property in one compact body, not exceeding in value $2500. Laws 1899, p. 48. Idaho Rev. Stat. (Civ. Code, tit. VII, ch. 1) has been amended by adding § 3060 defining homestead and prescribing what it shall include. Laws 1899, p. 293.

Sec. 394. Amount of property claimed in city or town-Statutes construed. Under the statute of Illinois, a homestead exemption claimed in a town lot is not limited to the portion of the lot covered by the dwelling but extends to the whole lot, and for the purpose of locating it a court will take judicial notice of the subdivision of town and city property into separate blocks and lots. The homestead may include more than one lot where they are all occupied as one lot of land constituting a single residence, but it will not be extended in this manner to include lots which have residences that are leased and occupied by others. Sever v. Lyon, 170 Ill. 395 (48 N. E. Rep. 926). The mere laying out of an unincorporated town by the filing of a plat which was not accepted, does not create a town within the meaning of Sand. & H. Ark. Dig., § 3712, limiting the area of a homestead "in any city, town, or village," to one acre. Clements v. Crawford Co. Bank, 64 Ark. 7 (40 S. W. Rep. 132; 62 Am. St. Rep. 149). The term "lot" is employed in Neb. Comp. Stat. ch. 36, § 1, exempting homesteads, to heads of families, in its popular sense, and denotes a parcel of land within a city or village as surveyed and platted. Norfolk State Bank v. Schwenk, 51 Neb. 146 (70 N. W. Rep. 970). Construing and applying Minn. Gen. Stat. 1894, § 5521, it is held that whether or not one may claim as a homestead an unplatted

tract of land within the laid out and platted portion of a city having over 5,000 inhabitants, which is larger than a "lot," depends on whether it is in the rural or urban portion of the city. National Bank of the Republic v. Banholzer, 60 Minn. 24 (71 N. W. Rep. 919). For further construction of this statute, see Ford v. Clement, 68 Minn. 484 (71 N. W. Rep. 672).

Sec. 395. Selection, allotment and declaration of homestead. In Alabama it is held that a claim of exemption of land from a justice's execution as a homestead is waived and lost, unless it be interposed before an order for the sale of the land is made by the circuit court. Lackland v. Rogers, 113 Ala. 529 (21 So. Rep. 341). Cal. Code Civ. Proc., § 1465, construed and applied-procedure to set apart homestead. In re Ligget, 117 Cal. 352 (49 Pac. Rep. 211; 59 Am. St. Rep. 190). Ga. Code, § 2040, applied-selection of homestead out of larger tract-making of survey and plat. Branch v. Ford, 99 Ga. 761 (26 S. E. Rep. 759). Idaho Rev. Stat., § 3071, applied-sufficiency of declaration of homestead. Wilcox v. Deere, Idaho (51 Pac. Rep. 98). N. M. Laws 1887, pp. 75, 76, construed and applied-procedure for selecting homestead. United States v. Lesnet, N. M. (50 Pac. Rep. 321). Wash. Laws 1877, p. 72, § 346; Act March 13, 1895; Hill's Ann. Code, Vol. 2, § 481, construed and applied -selection of homestead. Anderson v. Stadlmann, 17 Wash. 433 (49 Pac. Rep. 1070). Wash. Code Proc., § 481, applied -time given for selection of homestead. Wiss v. Stewart, 16 Wash. 376 (47 Pac. Rep. 736). How. Ann. Mich. Stat., §§ 7723, 7724-declaration and selection of homestead by execution defendant-amended, Laws 1899, p. 338.

Sec. 396.

A

Exemption of homestead from debts. judgment against the owner of a homestead is not a lien on it where its value does not equal the amount allowed as exempt. Brokaw v. Ogle, 170 Ill. 115 (48 N. E. Rep. 394). Construing S. Dak. Comp. Laws, §§ 2452, 5126, 5127, Laws 1890, ch. 86, it is held that a homestead is not subject to a mechanic's lien. Fallihee v. Wittmayer, 9 S. Dak. 479 (70 N. W. Rep. 642). It is not subject to the debts of the deceased owner

unless they were contracted prior to its acquisition. In re Gardner's Estate, 103 Ia. 738 (72 N. W. Rep. 652). The case of Higgins v. Bordages, 88 Tex. 458 (reported in full in Ballards' Law of Real Property, Vol, IV. §§ 842-346), which holds a homestead exempt from sale to pay municipal assessments, is expressly reaffirmed in Storrie v. Cortes, 90 Tex. 283 (38 S. W. Rep. 154; 35 L. R. A. 666). The right to a homestead exemption to the extent of $1,000 given to a household debtor having a family, in the territory of New Mexico, by 16 U. S. Stat., 278, may be asserted by such a person against the United States. United States v. Lesnet, N. M.

(50 Pac. Rep. 321). The fact that the owner of a homestead has mortgaged it to secure a loan, does not make it subject to sale on execution for his debts. Wiss v. Stewart, 16 Wash. 376 (47 Pac. Rep. 736). The surplus arising from an execution sale of a homestead to satisfy a judgment which was a lien upon it belongs to the homestead claimant as against one holding a judgment which was not a lien on the homestead. Simpson v. Biffle, 63 Ark. 289 (38 S. W. Rep. 845). Wis. Rev. Stat., § 2983, exempting the proceeds of the sale of a homestead from liability for the debts of the owner," while held with the intention to procure another homestead therewith," applies to a surplus remaining after a foreclosure sale of the homestead and other lands, had under a mortgage covering both, where the value of the property not included in the homestead was less than the amount of the mortgage debt. Clancey v. Alme, 98 Wis. 229 (73 N. W. Rep. 1014). Construing Cal. Code, § 1241, providing that a homestead is subject to execution" on debts secured by mortgages upon the premises executed and recorded before the declaration of homestead was filed for record," it is held that a wife's claim of homestead made after the recording of a mortgage executed by her husband, which was not entitled to record on account of having a void certificate of acknowledgment, cannot be sold under such mortgage, although she had notice of it at the time she filed her declaration of homestead; that where the statutes prescribes the debts for which a homestead may be sold, it cannot be sold for any other debts; and as this statute does not include an equitable lien for the price of land, such lien is