stove-pipe and stove-furniture, wearing apparel, beds, bedding and bedsteads, and provisions actually provided for individual or family use, sufficient for one month. 3. The farming utensils or implements of husbandry of the judgment debtor, also, two oxen, or two horses, or two mules, and their harness, two cows, and one cart or wagon, and food for such oxen, horses, cows or mules for one month. 4. The tools and implements of a mechanic, necessary to carry on his trade, the instruments and chests of a surgeon, physician, surveyor and dentist, necessary to the exercise of their profession, with the professional library and the law libraries of an attorney or counsellor. 5. The tent and furniture, including a table, camp-stools, and bed and bedding of a miner; also, his rocker, shovels, spades, wheelbarrows, pumps, and other instruments used in mining, with provisions necessary for his support for one month. 6. Two oxen, or two horses, or two mules, and their harness, and one cart or wagon, by the use of which a cartman, teamster or other laborer habitually earns his living, and food for such oxen, horses or mules for one month; and a horse, harness and vehicle used by a physician or surgeon in making his professional visits. 7. All fire-engines, with the carts, buckets, hose and apparatus thereto appertaining, of any fire company or department, organized under any law of this state. 8. All arms and accoutrements required by law to be kept by any person; but no article mentioned in this section shall be exempt from execution issued on a judgment recovered for its price, or upon a mortgage thereon. 9. All court-houses, jails, public offices and buildings, lots, grounds and personal property, belonging to any county of this state, and all cemeteries, public squares, parks and places, public buildings, town halls, markets, buildings appertaining to the fire departments, and the lots and grounds thereunto belonging and appertaining, owned or held by any town or incorporated city, or dedicated by such town or city to health, ornament or public use.

The following sections of the Probate Act make provision for the family'-and are found also in the statutes of Oregon and Washington:

SECTION 120. When a person shall die, leaving a widow or a

1 Wood's Dig. art. 2280-2283.

Laws Oreg. p. 355; Laws Wash. p. 279.

minor child or children, the widow, child, or children, shall, until letters have been granted, and the inventory has been returned, be entitled to remain in possession of the homestead and of all the wearing apparel of the family, and of all the household furniture of the deceased, and shall also be entitled to a reasonable provision for their support, to be allowed by the probate judge.

SEC. 121. Upon the return of the inventory, the court shall set apart, for the use of the widow or minor child or children, all property which is by law exempt from execution, or so much of such property as may have belonged to the deceased.

SEC. 122. If the whole property exempt by law be not included in the inventory, and if the amount set apart be insufficient for the support of the widow and child or children, the probate court shall make such reasonable allowance out of the estate as shall be necessary for the maintenance of the family, according to their circumstances, during the progress of the settlement of the estate; which, in case of an insolvent estate, shall not be longer than one year after granting letters of administration.

SEC. 123. Any allowance made by the court, in accordance with the provisions of the preceding section, shall be paid by the administrator in preference to all other charges, except funeral charges, and expenses of administration.

SEC. 125. When property shall have been set apart for the use of the family in accordance with the provisions of this chapter, if the deceased shall have left a widow and no minor child, such property shall be the property of the widow. If he shall have left also a minor child or children, the one-half of such property shall belong to the widow, and the remainder to the child, or in equal shares to the children, if there be more than one. If there be no widow, the whole shall belong to the minor child or children.

SEC. 126. If, on the return of the inventory of any intestate estate, it shall appear that the value of the whole estate does not exceed the sum of five hundred dollars, the Probate Court shall, by a decree for that purpose, assign for the use and support of the widow and minor children of the intestate, or for the support of the minor child or children, if there be no widow, the whole of the estate after the payment of the funeral charges and expenses of the administration, and there shall be no further pro

ceedings in the administration, unless further estate be discovered.

SEC. 127. If the widow has a maintenance derived from her own property equal to the portion set apart to her by the one hundred and twenty-fifth and one hundred and twenty-sixth sections of this act, the whole property so set apart shall go to the minor child or children.

The Revenue Act of April 29, 1857, provides, that the property of widows, or orphan children, to the amount of $1,000, shall not be subject to taxation.'

JUDICIAL DECISIONS.

The Homestead Act does not apply to and affect property acquired previous to its passage.'

The "homestead" is the dwelling place of the family, where they permanently reside; and, by common law, such residence raises the presumption, that the premises so held are the homestead, and every one is bound to take notice of the character of the occupant's claim.'

Occupancy by the family is presumptive evidence of the appropriation of a place as a homestead, and is consequently notice to all the world."

The removal of husband and wife from a homestead thus selected, after and in consequence of a sale and conveyance by the husband, in which the wife did not join, furnishes no evidence of an abandonment of the homestead by her, but seems to be the very case against which the statute intended to provide.'

As soon as a place acquires the character of a homestead, it is immaterial how the title to the property originated, whether it was the separate property of the husband, or wife, or the common property of both. It becomes a sort of joint tenancy, with the right of survivorship, as between husband and wife, and this estate cannot be altered or destroyed, except by the concurrence of both in the manner provided by law, unless it be in favor of an innocent purchaser, without notice."

In the case of the successive occupancy of several places as

1 Laws 1857, p. 326, § 2, sub. 7.

4 Cal. 28; 10 Cal. 296.

4 id. 268; 6 id. 284; 10 id. 296.

residences, the recovery of any one of them by the wife, as a homestead, would bar her recovery of any other as such.'

Premises never assume the character of a homestead until actual residence thereon by the family."

Where the wife, at the date of the execution of a mortgage thereon, was not a resident of the state, the homestead right cannot be sustained."

The phrase "resident of this state," used in the second section of the Homestead Act, means an actual and not a constructive presence.'

To make a valid sale of the homestead requires a joint deed of the husband and wife. Separate deeds of the husband and wife are both invalid."

A wife cannot sue alone to recover the homestead; it is a joint estate, with right of survivorship, and both husband and wife must join in the action."

The statute does not contemplate that homesteads should be carved out of land held in joint tenancy, or by tenancy in common, because it has provided no mode for their separation and ascertainment."

The plaintiff is entitled to make out of the lot claimed as a homestead, only the actual amount of the purchase money and interest remaining due, and for the excess over the purchase money, he must proceed on his other security, or against the party, but not against the homestead."

A sale or alienation of the homestead property, without the signature of the wife, is void only as to the homestead value. Any excess over five thousand dollars is subject to the control of the husband, and may be disposed of in any manner by him."

Where an action is brought to foreclose a mortgage upon property claimed as a homestead, the wife of the mortgagor is a necessary party to a full adjustment of the controversy, and should be allowed to intervene."

A sale by a sheriff, under execution, of a house claimed as a homestead by the defendant in execution, and ascertained by

appraisement to be worth over five thousand dollars, should not be made until an exact appraisement of the value of the premises is obtained, so that the sheriff can convey a definite fractional undivided interest therein.'

As a husband and wife may by joining in a conveyance, destroy a homestead right already acquired, by selling the whole, so they may equally destroy it by selling an undivided portion of it.'

The constitution is inoperative in itself, and looks to legislation to determine how far and in what manner the homestead should be protected from forced sale.'

The separate property of the husband acquired before marriage, may become the homestead, as well as the common property of husband and wife."

A mortgage of a homestead, signed by the husband alone, is absolutely void where its value does not exceed five thousand dollars. When a husband ceases to be the head of a family, the right to a homestead also ceases.*

A mortgage, void because it was upon a homestead, will not become valid, by reason of the homestead right being lost by the death of the wife of the mortgagor without children; the debt which the mortgage was intended to secure, is not impaired, but it is placed on the same level with the other debts of the mortgagor, and must be enforced in the same manner.‘

Any individual, whether married or not, may be the head of a family, and as such, entitled to a homestead right. But when this relation ceases, the right also ceases.*

Where A., who is a married man, is occupying premises as the tenant of B., and concludes to purchase the same, and to do so borrows the whole of the purchase money from C., and to secure the payment thereof to C., mortgages the premises to him, but the wife does not sign the mortgage: held, that the homestead right was subject to the mortgage. The deed and mortgage being simultaneous, were but parts of the same transaction. It would seem, under the circumstances, that neither the husband nor his wife had either legal or equitable right to the premises.*

16 Cal. 457.

10 id. 563.

6 id. 625.

48 id. 66; 10 id. 296.

• 8 id. 271.