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stead, with a description thereof, and the remainder alone shall he subject to sale under such levy.
Sec. 4. If the plaintiff in execution shall be dissatisfied with the lands and tenements selected and set apart as aforesaid, the matter shall be submitted to two appraisers, one to be selected by the plaintiff and the other by the defendant, who shall determine whether such land and tenements exceed in value the sum of five thousand dollars. If the appraisers so chosen cannot agree, they shall appoint a third person to decide between them. If they cannot agree in the choice of a third person, he shall be named by the officer.
Sec. 5. If the land selected as a homestead consist of a lot containing twenty-five hundred square yards or less, and the appraisers shall certify to the officer that such lot exceeds in value the sum of five thousand dollars, the said officer may proceed to sell such excess, or the whole, at the option of the defendant in execution, in the manner provided in other cases for the sale of real property under execution. In case the excess only is sold, then such proceeds shall be applied to the satisfaction of the execution; and in case the whole amount of the property is sold, five thousand dollars of the proceeds of such sale shall be paid to the defendant in execution, and the excess shall be applied to the satisfaction of the execution; -provided, that no bid shall be received for a less sum than five thousand dollars.
Sec. 6. In any case where the land selected and claimed as a home shall exceed in extent twenty-five hundred square yards, and if the appraisers be of opinion that such land, together with the dwelling-house and its appurtenances, exceed in value the sum of five thousand dollars, they shall set apart a portion thereof, in a compact form, including the dwelling-house, if possible, as the homestead; such homestead shall be, as near as may be, of the value of five thousand dollars, and the said appraisers shall cause the same to he surveyed. The expenses of such survey shall be chargeable on the execution and collected thereon.
Sec. 7. After the survey shall have been made, the officer making the levy may sell the property levied upon and not included in the survey, as in cases of other sales of real estate under execution; and in giving a deed for the same he may describe it according to his original levy, excepting therefrom, by metes and bounds, according to the certificate of survey, the quantity set apart as aforesaid.ceedings in the administration, unless further estate be discovered.
Sec. 8. The defendant in execution, at the time of making any levy, may also designate to the officer any article of personal property as being exempt from forced sale as specified in the act to regulate proceeds in the courts of justice in this state; provided, however, that nothing in this section shall be so construed as to exempt over and above that provided for in title seven, chapter one, of "An Act to regulate Proceedings in Civil Cases- in Courts of Justice in this State."
Sec. 9. Before proceeding to act, the appraisers mentioned in the act shall be sworn by the officer to do justice between the parties. Their decision shall be delivered to the officer, shall be returned by him with the execution, and shall be conclusive between the parties and for the protection of -the officer against all liability. If the value of the real estate or personal property, as the case may be, do not exceed the amount made exempt by this act, the cost of the proceedings shall be paid by the plaintin0 in execution; otherwise by the defendant.
Sec. 10. The homestead and other property exempt from forced sale, upon the death of the head of the family, shall be set apart by the Probate Court for the benefit of the surviving wife and his own legitimate children, and in case of no surviving wife or his own legitimate children, for the next heirs at law; provided, that the exemption as provided in this section shall not extend to unmarried persons, except when they have charge of minor brothers or sisters, or both, or brothers' or sisters' minor children, or a mother, or unmarried sisters living in the house with them.
Sec. 11. Nothing in this act shall be so construed as exempting any real or personal property from sale for taxes.
Property exempt from seizure on execution is defined by statute as follows
The following property shall be exempt from execution, except as herein otherwise specially provided: 1. Chairs, tables, desks and books, to the value of one hundred dollars, belonging to the judgment debtor. 2. Necessary household, table and kitchen furniture, belonging to the judgment debtor, including stove,
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 family1—and are found also in the statutes of Oregon and Washington:'
Section 120. When a person shall die, leaving a widow or a
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.'
The Homestead Act does not apply to and affect property acquired prcmous 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