Part 9 (1/2)

[Sidenote: Embraces what.]

It may contain one or more lots or tracts of land with the buildings thereon and other appurtenances, subject to the limitations contained in the next section, but must in no case embrace different lots or tracts, unless they are contiguous, or unless they are habitually and in good faith used as a part of the same homestead. [--3170.]

[Sidenote: Extent.]

If within a town plat it must not exceed one-half an acre in extent, and if not within a town plat, it must not embrace in the aggregate more than forty acres. But if, when thus limited, in either case, its value is less than five hundred dollars, it may be enlarged until it reaches that amount. [--3171.]

[Sidenote: Dwelling appurtenances.]

It must not embrace more than one dwelling house, or any other buildings except as such are properly appurtenant to the homestead; but a shop or other building situated thereon, and really used and occupied by the owner in the prosecution of his own ordinary business, and not exceeding three hundred dollars in value, may be deemed appurtenant to such homestead. [--3172.]

[Sidenote: Selecting. Platting.]

The owner or the husband or wife, may select the homestead and cause it to be marked out, platted, and recorded as provided in the next section.

A failure in this respect does not leave the homestead liable, but the officer having an execution against the property of such defendant, may cause the homestead to be marked off, platted and recorded and may add the expense thence arising to the amount embraced in the execution.

[--3173.]

[Sidenote: Description. Recording.]

The homestead shall be marked off by fixed and visible monuments, and in giving the description thereof, the direction and distance of the starting point from some corner of the dwelling-house shall be stated.

The description and plat shall then be recorded by the recorder in a book to be called the ”homestead book,” which shall be provided with a proper index. [--3174.]

[Sidenote: Changes.]

The owner may from time to time change the limits of the homestead by changing the metes and bounds, as well as the record of the plat and description, or may change it entirely, but such changes shall not prejudice conveyances or liens made or created previously thereto, and no change of the entire homestead made without the concurrence of the husband or wife, shall affect his or her right or those of the children.

[--3175.]

[Sidenote: New homestead exempt.]

The new homestead, to the extent in value of the old, is exempt from execution in all cases where the old or former homestead would have been exempt, but in no other, nor in any greater degree. [--3176.]

[Sidenote: Survivor to occupy.]

Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead until it is disposed of according to law. [--3182.] The survivor may elect to retain the homestead in lieu of his or her distributive stare of the estate, but in such case the interest is not one which confers any t.i.tle to the property which can be conveyed or which will descend to heirs or be subject to the lieu of a judgment, but it is merely a life interest which may be terminated whenever the survivor ceases to use and occupy the homestead as such.

Whenever the survivor elects to retain the homestead during life in lieu of dower, it cannot be changed for another homestead, and the right will be lost by abandonment.

[Sidenote: Election to retain. Descent. Exemption.]

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; but if there be no such survivor, the homestead descends to the issue of either husband or wife according to the rules of descent, unless otherwise directed by will, and is to be held by such issue exempt from any antecedent debts of their parents or their own.

[--3183.]

[Sidenote: When sold.]

If there is no such survivor or issue the homestead is liable to be sold for the payment of any debts to which it might at that time be subjected, if it had never been held as a homestead. [--3184.]

[Sidenote: Devise.]

Subject to the rights of the surviving husband or wife, as declared by law, the homestead may be devised like other real estate of the testator. [--3185.] The homestead will remain exempt in the hands of the heirs because of the homestead right of the ancestors, although the property is not occupied as a homestead by such heirs.