in satisfaction of judgments obtained before the declaration of homestead was filed for record, and which constitute liens upon the premises," it is held that a homestead can not be sold on an execution issued on a judgment which was not a lien thereon, because not properly recorded, although the declaration of homestead was not filed until after the levy of the execution. Beaton v. Reid, 111 Cal. 484 (44 Pac. Rep. 167). A statute (Cal. Civ. Code, §.1241, subd. 4) subjecting a homestead to forced sale in satisfaction of judgments "on debts secured by mortgages on the premises executed and recorded before the declaration of homestead was filed for record," applies to such a mortgage executed by a husband to his wife. Glas v. Glas, 114 Cal. 566 (46 Pac. Rep. 667; 55 Am. St. Rep. 90). A husband and wife may by their mortgage bind the homestead to pay for improvements placed thereon. Pioneer Sav. & L. Co. v. Paschall, 12 Tex. Civ. App. 613 (34 S. W. Rep. 1001). Under Ark. Const., Art. 9, § 3, which subjects a homestead to execution sale on a judgment rendered for the purchase money thereof, it is held that lands claimed as a homestead may be sold on a judgment rendered in favor of the assignee of a note given for the purchase price thereof, although it appears that the original grantor waived any lien on the premises. Boone Co. Bank v. Henley, 62 Ark. 398 (35 S. W. Rep. 1104).

Sec. 379. Rights of surviving husband, wife and children. Homestead rights in an ancestor's estate are to be determined by the statute in force at the time of his death. Foy v. Wellborn, 112 Ala. 160 (20 So. Rep. 604); Atley v. Burnett, 134 Mo. 313 (33 S. W. Rep. 1122). Ala. Acts, 1876-77, p. 32; Code 1886, §§ 2507, 2543, construed and applied-homestead rights of widow and children upon death of husband-partition. Smalley v. Chisenhall, 108 Ala. 683 (18 So. Rep. 739). Ala. Code, § 2544, applied-mortgaged homestead-allotment of homestead to widow and minors out of other lands. Steiner v. Steiner v. McDaniel, 110 Ala. 409 (20 So. Rep. 54). Under Cal. Civ. Code, § 1474, a homestead selected from the separate property of the husband, he joining in the selection, upon his wife's death, vests absolutely in him and can be alienated by him; and under § 1265 a homestead

selected from community property, upon the death of either husband or wife, vests absolutely in the survivor. Dickey v. Gibson, 113 Cal. 26 (45 Pac. Rep. 15; 54 Am. St. Rep. 321). Where a husband dies pending the exercise of his right to invest the proceeds arising from the sale of his homestead in another homestead, under Iowa Code, §§ 2000, 2001, his wife is entitled to receive such proceeds, as against his creditors, for investment in a homestead for herself and children. Schutloffel v. Collins, 98 Ia. 576 (67 N. W. Rep. 397; 60 Am. St. Rep. 216). Construing Iowa Code, § 2007, providing that "upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law; §2008, that the setting off of the distributive share of the husband or wife in the real estate of the deceased shall be such a disposal of the homestead as is contemplated in the preceding section, but the survivor may elect to retain the homestead for life in lieu of such share in the real estate of the deceased;" and § 2444 which permits the filing of an application to have the statutory distributive share set off to the survivor any time after twenty days and within ten years from the death of decedent, it is held that a survivor's continued occupation of a homestead for a period within section 2444, without some act evincing an intention to retain it, does not bar the right to take the distributive share. Deemer and Kinne, JJ., dissenting. Stephens v. Hay, 98 Ia. 37 (66 N. W. Rep. 1048). The rights given by Ky. Stat., §§ 1707, 1708, to a surviving husband in homestead lands of his wife do not attach during her life time. Summers v. Sprigg, (35 S. W. Rep. 1033). A wife's right to a homestead for her life, under the statute of Missouri, is not affected by her subsequent marriage. Ailey v Burnett, 134 Mo. 313 (33 S. W. Rep. 1122). It is held that a woman who has been divorced absolutely from her husband has no homestead right in his land. Skinner v. Walker, 98 Ky. 729 (34 S. W. Rep. 233); Brady v. Kreuger, 8 S. Dak. 464 (66 N. W. Rep. 1083; 59 Am. St. Rep. 771). N. C. Code, §§ 502-519, appliedallotment of homestead to widow and minor children. Formeyduval v. Rockwell, 117 N. C. 320 (23 S. E. Rep. 488). Where upon the death of her husband a widow joins with his

Ky.

heirs in having a homestead set apart to them in his lands, she cannot while enjoying this homestead claim a homestead in lands set apart to her as a dower. South Carolina Con. 1868, art. 2, § 32, applied. McIver, C. J., dissenting. Lanham v. Glover, 46 S. C. 65 (24 S. E. Rep. 49). In Texas upon the death of the owner of a homestead if a constituent of the family remains, it descends and becomes vested absolutely in the heirs, and is not subject to payment of the debts of the ancestor. Stephenson v. Marsalis, 11 Tex. Civ. App. 162 (33 S. W. Rep. 383). In Wisconsin a widow takes only a life estate in the homestead. Melms v. Pabst Brewing Co., 93 Wis. 140 (66 N. W. Rep. 244).

Sec. 380. Abandonment, loss or waiver of homestead. The conveyance of a homestead and giving possession thereunder amounts to an abandonment of it, Willard v. Masterson, 160 Ill. 443 (43 N. E. Rep. 771); but the mere renting of a homestead does not necessarily constitute an abandonment, McClenaghan v. McEachern, 47 S. C. 446 (25 S. E. Rep. 296). A mortgagor who releases his right of homestead in his mortgage is not entitled to have a homestead set off in the property until he, or someone in his behalf, has paid the mortgage debt. Richardson v. Baker, N. H.

(34 Atl. Rep. 671). An owner of land who executes a mortgage thereon cannot assert a homestead right subsequently acquired therein against the purchaser thereof at a foreclosure of the mortgage. Kuhnert v. Conrad, 6 N. Dak. 215 (69 N. W. Rep. 185). A homestead is not abandoned by the removal of the owner with only a conditional intention of acquiring a residence elsewhere, so long as his intention remains conditional. Imhoff v. Lipe, 162 Ill. 282 (44 N. E. Rep. 493). One having a homestead does not lose it by going to reside elsewhere temporarily with the intention of returning to occupy the homestead as such. Reeseman v. Davenport, 96 Ia. 330 (65 N. W. Rep. 301). The voluntary separation of a husband and wife does not deprive her of her right to occupy the homestead. Folsom v. Folsom, N. H.

(34 Atl. Rep. 743). In Tennessee homestead rights of a widow and her minor children are lost when the widow acquires a domicile in another state. Carrigan v. Rowell, 96

Tenn. 185 (34 S. W. Rep. 4). It is held that a widow may waive her right to use and occupy a homestead by bringing suit for partition of the land and without claiming therein her homestead rights. Moore v. Moore, 89 Tex. 29 (33 S. W. Rep. 217). Particular facts held insufficient to show an abandonment. Imhoff v. Lipe, 162 Ill. 282 (44 N. E. Rep. 493). Particular facts held sufficient to show an abandonment of a homestead. Kuhnert v. Conrad, 6 N. Dak. 215 (69 N. W. Rep. 185).

Sec. 381. Conveyance and incumbrance of homestead. Where a conveyance of a homestead is a nullity and other lands are included the whole conveyance fails if the homestead is incapable of severance. Sammon v. Wood, 107

Mich. 506 (65 N. W. Rep. 529). It is held by a divided court that California act March 25, 1874, Stat. 1873-74, p. 582, providing for proceedings in the probate court to authorize a husband or wife to convey the homestead in case either of them shall become hopelessly insane, is constitutional. Rider v. Regan, 113 Cal. 667 (46 Pac. Rep. 820). See opinion for application of this statute to particular facts. Under Wash. Gen. Stat., § 1446, a husband may execute a valid mortgage upon a community homestead in his own name and as his wife's attorney in fact, she having given him a general power of attorney to convey or otherwise dispose of their community property. Oregon Mortg. Co. v. Hersner, 14 Wash. 515 (45 Pac. Rep. 40). A mortgage given by a husband and his wife upon their homestead, to secure the payment of new notes given by him, as collateral to old notes on which he was liable as maker was held a valid mortgage, although the mortgage would not have been binding upon her homestead interest in the property, and would therefore have been void in toto if it had been given to secure the old existing notes, without any new consideration. First Nat. Bank v. Lamont, 5 N. Dak. 393 (67 N. W. Rep. 145). When a party sells the homestead for an existing debt as the price, and immediately the purchaser transfers it back to the vendor, and takes a mortgage and vendor's lien on the property, the transaction will be viewed as one of mortgage to secure the debt,

and in violation of article 222 of the constitution of Louisiana. Stewart v. Sutton, 48 La. 1073 (20 So. Rep. 283).

Sec. 382. Conveyance and incumbrance of homestead-Necessity of joint conveyance of husband and wife. Applying Ala. Con., Art. 10, § 2, Code 1886, § 2508, which require a conveyance or incumbrance of a homestead to be executed by both husband and wife, it is held that a husband's conveyance alone of a right of way over a homestead is void. McGhee v. Wilson, 111 Ala. 615 (20 So. Rep. 619; 56 Am. St. Rep. 72). Citing, Pilcher v. Railroad Co., 38 Kan. 516 (16 Pac. Rep. 945; 5 Am. St. Rep. 770). Applying Tex. Const. 1876, Art. 16, § 50, providing "nor shall the owner, if a married man, sell the homestead without the consent of the wife, given in such manner as may be prescribed by law," it is held that a conveyance of a homestead by a husband alone is void. Stallings v. Hullum, 89 Tex. 431 (35 S. W. Rep. 2). Citing, Gleason v. Spray, 81 Cal. 217 (22 Pac. Rep. 551; 15 Am. St. Rep. 47); Phillips v. Stauch, 20 Mich. 369; Kennedy v. Stacey, 1 Baxt. 220; Cowgell v. Washington, 66 Iowa, 666 (24 N. W. Rep. 266); Morris v. Ward, 5 Kan. 239; McHugh v. Smiley, 17 Neb. 626 (20 N. W. Rep. 296; 24 N. W. Rep. 277). Applying Miss. Code, § 1983, which provides that the conveyance of a homestead "shall not be valid or binding unless signed by the wife of the owner, if he be married and living with his wife," it is held that a conveyance by a husband alone who has driven his wife from home without cause and refuses to permit her to return, is invalid. Scott v. Scott, 73 Miss. 575 (19 So. Rep. 589). Under the statute (Ia. Code, § 1990) prohibiting the incumbrance or conveyance of the homestead except by the joint act, in writing, of both husband and wife, it is held that where the right of homestead has attached in land held under a husband's contract of purchase in which the vendor retained the legal title until the purchase price was fully paid, the husband alone cannot defeat such right of homestead by an acknowledgment of forfeiture of his contract. Lessell v. Goodman, 97 Ia. 681 (66 N. W. Rep. 917; 59 Am. St. Rep. 432). Where a wife joined with her husband in a convey. ance of lands which subsequently became a homestead, to