inferior to the claim of homestead. Lee v: Murphy, 119 Cal. 364 (51 Pac. Rep. 549). S. C. Rev. Stat., § 2135, applied— liability of sheriff for selling land in violation of homestead law. Corry v. Tate, 48 S. C. 548 (26 S. E. Rep. 794).

Sec. 397. Debts for which a homestead is liable. A claim of a homestead is subject to liens existing thereon at the inception of the claim. Bell v. Anniston Hardware Co., 114 Ala. 341 (21 So. Rep. 414). A homestead claimant cannot defeat a mortgage thereon given to secure a loan, to the extent the loan was used to discharge a prior vendor's lien existing against the homestead. Dixon v. National Loan & Inv. Co., Tex. Civ. App. (40 S. W. Rep. 541).

Particular case in which a wife was held not entitled to claim a homestead as against the claim of her husband's vendor for advancements made to him to aid in the erection of buildings on the land. Converse v. Barnard, 114 Mich. 622 (72 N. W. Rep. 611). Under Ala. Code 1886, § 2509, the lien for the purchase money is superior to a homestead claim. Stanley v. Johnson, 113 Ala. 344 (21 So. Rep. 823). Under Idaho Rev. Stat., § 3039, a mortgage lien cannot be defeated by a declaration of homestead made after the lien attaches. Law v. Spence, Idaho (48 Pac. Rep. 282). Where, at the time of the docketing of a first judgment it becomes a paramount lien on property of the debtor largely in excess of the limit of homestead exemption, he cannot assert a homestead right in the proceeds of the property as against such judgment, because subsequent liens in favor of which he waived such right will exhaust the property below the limit of the exemption. Strayer v. Long's Ex'r, 93 Va. 695 (26 S. E. Rep. 409).

Sec. 398. Abandonment, loss or waiver of homestead. The right to claim an exemption of lands as a home. stead is not lost by their conveyance with other lands in fraud of the claimant's creditors. Upon the setting aside of such a conveyance by creditors the homestead exemption may be claimed by the grantor and he need not make such claim until after the decision setting aside the conveyance. First Nat. Bank v. Kennedy, 113 Ala. 279 (21 So. Rep. 387), expressly

following the case of Kennedy v. First Nat. Bank, 107 Ala. 170 (18 So. Rep. 396; 36 L. R. A. 308), epitomized in Ballards' Law Real Property, Vol. IV, § 336. The case first cited above contains an exhaustive dissenting opinion by Coleman, J., discussing the question as to whether the claim of homestead in such a case should be made before or after the decision setting aside the conveyance. A subsequent declaration of abandonment of a homestead by a husband and wife, gives no validity to a void mortgage of the homestead. American Sav. & L. Ass'n v. Burchardt, 19 Mont. 323 (48 Pac. Rep. 391; 61 Am. St. Rep. 507). Citing, Gleason v. Spray, 81 Cal. 217 (22 Pac. Rep. 551). A homestead is not abandoned by a temporary removal with an intention of returning to it. Hitchcock v. Misner, 111 Mich. 180 (69 N. W. Rep. 226). Temporary absence from, or non-occupancy of, a part of a homestead, where entire dominion over the same is not surrendered, does not operate as a waiver or abandonment of the homestead right. Pitney v. Eldridge, 58 Kan. 215 (48 Pac. Rep. 854). In the case of Murphy v. Farquhar, 39 Fla. 350 (22 So. Rep. 681), the supreme court of Florida say: "While the law is well settled that a temporary absence in search of health or pleasure, or on another place for purposes of business, will not deprive the homestead claim ant of his right, unless it be apparent that there was a design of permanent abandonment, Tumlinson v. Swinney, 22 Ark. 400 (76 Am. Dec. 432); Walters v. People, 18 Ill. 194 (65 Am. Dec. 730); notes and cases cited in Taylor v. Hargous, 4 Cal. 268 (60 Am. Dec. 607, et seq); Fyffe v. Boers, 18 Ia. 4 (85 Am. Dec. 577); Franklin v. Coffee, 18 Tex. 413 (70 Am. Dec. 292); Kenley v. Hudleson, 99 Ill. 493 (39 Am. Rep. 31); yet it is equally well settled that a permanent abandonment of the homestead as a bona fide home and place of permanent abode strips it of its homestead character, and deprives the claimant of the right to exempt it from sale for his debts, Bank Wheeler's Adm'r, 20 Kan. 625; Ross v. Hellyer, 26 Fed. Rep. 413; Cotton v. Hamil, 58 Ia. 594 (12 N. W. Rep. 607); Titman v. Moore, 43 Ill. 169; Carter v. Goodman, 11 Bush 228; Lehman v. Bryan, 67 Ala. 558; Cabeen v. Mulligan, 37 Ill. 230 (87 Am. Dec. 247); Smith v. Bunn, 75 Mo. 559 ; Farvais v. Moe, 38 Wis. 440." The removal of a husband

V.

to another state to live with his daughter does not operate to abandon his homestead where his wife continues to occupy the same, it not being shown that he acquired an independent homestead elsewhere. Mich. 282 (73 N. W. Rep. 367). homestead and removed to a city farm at the expiration of the lease if he did not sell it, subsequently entered into a contract of sale, receiving part of the purchase price and thereafter claimed a voting residence in the city, it is held that he abandoned his homestead. Conway v.

Gadsby v. Monroe, 115 Where one leased his farm intending to return to the

Nichols, Ia. (71 N. W. Rep. 183). The fact that a homestead claimant votes in a precinct other than that of his homestead is not conclusive evidence of his intention to abandon it. Robinson v. Charleton, 104 Ia. 296 (73 N. W. Rep. 616). Particular evidence held to show an abandonment of a homestead. Clark v. Dewey, 71 Minn. 108 (73 N. W. Rep. 639); Boehm v. Beutler, 16 Tex. Civ. App. 380 (41 S. W. Rep. 658). Particular evidence held insufficient to show an abandonment of a homestead in a farm by removal of the owner therefrom to a town to reside. Mills v. Mills, 141 Mo. 195 (42 S. W. Rep. 799).

The leasing of a part of a homestead consisting of farm lands, for a period of years, for the purpose of establishing a nursery thereon, does not constitute an abandonment. Pitney v. Eldridge, 58 Kan. 215 (48 Pac. Rep. 854). A widow having a homestead right in lands does not abandon her claim of homestead by leasing the premises and using the income for her support while living with one of her children. Brokaw v. Ogle, 170 Ill. 115 (48 N. E. Rep. 394). A husband and wife may abandon their homestead right in lands by placing their son-in-law in possession under a parol contract by which he is to have the lands upon the performance of certain conditions. Allbright v. Hannah, 103 Ia. 98 (72 N. W. Rep. 421). A wife who occupies with her husband, land held by him under an executory contract of purchase in which they claim a homestead right, is held to have abandoned her homestead rights. therein, where he afterwards surrenders the contract and they occupy the premises under a lease from a subsequent vendee of his vendor. Anderson v. Cosman, 103 Ia. 266 (72 N. W. Rep. 523; 64 Am. St. Rep. 177). Construing Ky. Stat.

1894, § 1707, providing that "the homestead shall be for the use of the widow so long as she occupies the same, and the unmarried infant children of the husband shall be entitled to the joint occupancy with her until the youngest unmarried child arrives at full age, but the termination of the widow's occupancy shall not affect the right of the children," it is held that a conveyance of land held by a widow as a homestead under this statute, does not pass any title to the grantee, but operates as an abandonment of her homestead right. Freeman v. Mills, Ky. (39 S. W. Rep. 826). Where the homestead character of land has been established, one who seeks to sustain an execution sale thereof, on the ground that the homestead had been abandoned before the sale has the burden of proof; and if the debt for which the sale was made was contracted while the land was occupied as a homestead, more satisfactory evidence is required than if credit had been extended on the faith that it was subject to the payment of debts. Robinson v. Charleton, 104 Ia. 296 (73 N. W. Rep. 616). Under Ia. Code, § 2000, a homestead claimant upon deciding to sell his homestead and buy another home, is entitled to a reasonable time in which to accomplish such object, and until such time has elapsed he will not be held to have abandoned his homestead. What will be a reasonable time must depend upon the facts of each particular case. Robinson v. Charleton, 104 Ia. 296 (73 N. W. Rep. 616).

In Georgia it is held that until a homestead has been selected and set apart to a debtor, he has authority to waive the benefit of the homestead law. Branch v. Ford, 99 Ga. 761 (26 S. E. Rep. 759). In Illinois it is held that the right to claim of a homestead, as exempt from execution sale, is not waived merely because it is not made before the sale. Zander v. Scott, 165 Ill. 51 (46 N. E. Rep. 2). A recital in a mortgage that the mortgagors "waive all right to said land under the exemption laws of this state," operates as a relinquishment of any homestead right. Head v. Auberry, Ky. (38 S. W. Rep. 863). A widow's right to a homestead in her husband's lands is not barred by an execution sale under a judgment to which they are subject, where no deed was ever issued thereon to the purchaser; nor is her right affected by a conveyance by her husband to the pur

Gross v.

chaser, or his grantee in which she did not join. Washington, Tenn. (38 S. W. Rep. 442). The mere fact that the owner of a rural homestead plats it, or any part thereof, into lots, without dedicating the streets shown on the plat to the public, does not affect his homestead rights in any part thereof. Nor does the sale of a part of such lots affect such rights in any part of the original tract remaining unsold providing the contiguity of what remains is preserved. Phelps v. Northern Trust Co., 70 Minn. 546 (73 N. W. Rep. 842).

Sec. 399. Conveyance and incumbrance of homestead. A wife's subsequent declaration of a homestead in community property is not affected by a previous recorded mortgage executed by the husband alone which misdescribes the land. Adams v. Baker, Nev. (51 Pac. Rep. 252).

While the lands

A wife executing a mortgage covering her homestead, cannot have it set aside on account of her having been induced to sign it in ignorance of its contents, where it appears that the mortgagee acted in good faith and the officer taking her acknowledgment either read the mortgage to her, or asked her if she knew what it contained and she answered that she did. German Bank v. Muth, 96 Wis. 342 (71 N. W. Rep. 361). are occupied as a homestead, the husband's creditors cannot assail the validity of a conveyance of them by deed to his wife. Murphy v. Farquhar, 39 Fla. 350 (22 So. Rep. 681). Citing, Green v. Farrar, 53 Ia. 426 (5 N. W. Rep. 557) ; Kruger v. Le Blanc, 75 Mich. 424 (42 N. W. Rep. 853); Burkett v. Burkett, 78 Cal. 310 (20 Pac. Rep. 715; 12 Am. St. Rep. 58; 3 L. R. A. 781); McMahon v. Speilman, 15 Neb. 653 (20 N. W. Rep. 10); McHugh v. Smiley, 17 Neb. 626 (24 N. W. Rep. 277).

Sec. 400. Conveyance and incumbrance of homestead -Necessity of joint conveyance of husband and wife. The mortgage of a homestead, void because not properly executed by a husband and wife, does not become valid by a subsequent declaration of abandoment of the homestead by the husband and wife. American Sav. & L. Ass'n v. Burchardt, 19 Mont. 828 (48 Pac. Rep. 391; 61 Am. St. Rep. 507). Citing.