HOMESTEAD AND EXEMPTIONS.
[Sidenote: Homestead exempt.]
Where there is no special declaration of the statute to the contrary,
the homestead of every family, whether owned by the husband or wife is
exempt from judicial sale, [§3163.] A homestead right may exist in
property purchased under a bond for a deed, if payments have been made
and the purchaser is in possession. Actual occupancy is necessary to
invest property with the homestead character, but as the exemption right
is for the benefit of the whole family and not alone of the owner, the
fact that the head of the family is absent, and may even have acquired
property and residence in another state with the intention of removing
his family there, will not divest the homestead of its exemption right,
so long as the family continues to occupy it. And the fact that the
husband has abandoned the homestead will not affect the homestead right,
so long as the wife and family remain in occupancy.
The homestead right may belong to one of several tenants in common of
undivided property, or in a leasehold interest. It may attach to
portions of a building--as where rooms or floors in a building are used
for homestead purposes and the rest of the building is not so used.
Where part of a building is owned or occupied by a family as a home, and
the other part is used for a different purpose, that part used as a home
may be exempt, while the other portion may be sold under execution. The
exemption right may be lost by the execution of a mortgage or contract
expressly making the homestead liable, in which both husband and wife
join; or it may be forfeited when the homestead is used as a saloon or
for any other purpose in violation of the prohibitory liquor law, with
the knowledge and consent of the owner, and this is true even though
such unlawful use is without the consent of the wife of the owner. In
such case it is subject to judgment obtained because of such illegal
use. [§2419.] If the homestead is sold, the proceeds are exempt only
when invested in the purchase of another homestead, but the exemption
does not follow the proceeds out of the state, and where the homestead
was sold and the proceeds invested in a homestead in another state, and
this was afterwards sold and the proceeds again invested in a homestead
in this state, it was held that the homestead exemption did not attach
to the second homestead in Iowa. Removal from the homestead without
intention of returning will be sufficient to forfeit the homestead
right, but the length of time of absence, in itself, will not constitute
abandonment, so long as the intention to return exists.
[Sidenote: Family defined.]
A widow or widower, though without children, shall be deemed a family
while continuing to occupy the house used as such at the time of the
death of the husband or wife. [§3164.]
[Sidenote: Conveyance or incumbrance.]
A conveyance or incumbrance by the owner is of no validity unless the
husband and wife, if the owner is married, concur in, and sign the joint
instrument. [§3165.] Any conveyance or contract, such as a mortgage,
lease, assignment of contract of purchase, or any act in any manner
affecting the title or right of occupancy of the homestead by either
party, will be absolutely void, unless concurred in by the other. If
the consent of the wife is fraudulently obtained by the husband, the
conveyance or incumbrance will be valid, unless it appears that the
purchaser or mortgagee had knowledge of the fraud. A mortgage given for
the purchase money will be valid though given alone by the party taking
the legal title.
[Sidenote: Liable for taxes.]
The homestead is liable for taxes accruing thereon, and if platted as
hereinafter directed, is liable only for such taxes and subject to
mechanics' liens for work, labor, or material, done or furnished
exclusively for the improvement of the same, and the whole or a
sufficient portion thereof may be sold to pay the same. [§3166.] All the
taxes against the owner of the homestead become liens thereon, unless it
is platted as directed by statute.
[Sidenote: Liable for debts.]
The homestead may be sold on execution for debts contracted prior to the
purchase thereof, but it shall not in such case be sold except to supply
the deficiency remaining after exhausting the other property of the
debtor liable to execution. [§3167.] Debts contracted after the
acquisition of the property, but before it has acquired the homestead
character by actual occupancy, may be enforced against the property. A
judgment upon a debt contracted prior to the purchase of the homestead,
although such judgment is not rendered until after the property has
acquired the homestead character, is a lien upon the homestead.
[Sidenote: Debts created by written contract.]
The homestead may be sold for debts created by written contract,
executed by the persons having the power to convey and expressly
stipulating that the homestead is liable therefor, but it shall not in
such case be sold except to supply the deficiency remaining after
exhausting the other property pledged for the payment of the debt in the
same written contract. [§3168.] Any written contract other than a
mortgage or other conveyance, will be sufficient to render the homestead
liable for debts, provided it contains the necessary stipulations, and
is signed by the proper parties.
[Sidenote: What constitutes.]
The homestead must embrace the house used as a home by the owner
thereof, and if he has two or more houses thus used by him at different
times and places, he may select which he will retain as his homestead.
[§3159.] The husband may select his homestead and make the same his home
without the consent of his wife, and the absence of the wife will not
affect its homestead character. The fact that the husband is the legal
head of the family invests him with the power of establishing his home
wherever he may choose, with or without the assent of his wife. Use is
essential to give property a homestead character, and an intention to
occupy is not sufficient in the absence of actual residence.
[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 title 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.
[Sidenote: Exemptions. To head of family.]
If a debtor is a resident of this state, and is the head of a family, he
may hold exempt from execution the following property: All wearing
apparel of himself and family kept for actual use and suitable to their
condition, and the trunks or other receptacles necessary to contain the
same; one musket or rifle and shot-gun; all private libraries, family
bibles, portraits, pictures, musical instruments, and paintings, not
kept for the purpose of sale; a seat or pew occupied by the debtor or
his family in any house of public worship; an interest in a public or
private burying ground, not exceeding one acre for any defendant; two
cows and calf; one horse, unless a horse is exempt as hereinafter
provided; fifty sheep and the wool therefrom and the materials
manufactured from such wool; six stands of bees; five hogs, and all pigs
under six months; the necessary food for all animals exempt from
execution, for six months; all flax raised by the defendant on not
exceeding one acre of ground and the manufactures therefrom; one
bedstead and the necessary bedding for every two in the family; all
cloth manufactured by the defendant, not exceeding one hundred yards in
quantity; household and kitchen furniture, not exceeding two hundred
dollars in value; all spinning-wheels and looms, one sewing machine and
other instruments of domestic labor kept for actual use; the necessary
provisions and fuel for the use of the family for six months; the proper
tools, instruments or books of the debtor, if a farmer, mechanic,
surveyor, clergyman, lawyer, physician, teacher or professor; the horse
or the team consisting of not more than two horses or mules, or two
yoke of cattle, and the wagon or other vehicle with the proper harness
or tackle, by the use of which the debtor, if a physician, public
officer, farmer, teamster, or other laborer habitually earns his living;
and to the debtor, if a printer, there shall also be exempt a printing
press and a newspaper office connected therewith, not to exceed in all
the value of twelve hundred dollars. Any person entitled to any of the
exemptions mentioned in this section does not waive his rights thereto
by failing to designate or select such exempt property or by failing to
object to a levy thereon, unless failing or refusing so to do when
required to make such designation or selection by the officers about to
levy. [§4297.] The husband and not the wife is recognized by law as the
"head of the family," but upon the death of the husband the wife becomes
the head of the family and as such is entitled to these exemptions.
[Sidenote: Life Insurance.]
All life insurance is exempt from the debts of the assured and from
those of his widow contracted prior to his death, provided such
exemption does not exceed the sum of five thousand dollars. [§1756 Sup.]
[Sidenote: Family defined.]
The word "family," as used in section 4297, does not include strangers
or boarders lodging with the family. [§4298.]
[Sidenote: Perpetual earnings.]
The earnings of such debtor for his personal services, or those of his
family, at any time within ninety days next preceding the levy, are also
exempt from execution and attachment. [§4299.]
[Sidenote: Unmarried persons. Non-residents.]
There shall be exempt to an unmarried man not the head of a family, and
to non-residents their ordinary wearing apparel and trunk necessary to
contain the same. [§4300.]
[Sidenote: Persons starting to leave the state.]
When the debtor, if the head of a family, has started to leave this
state, he shall have exempt only the ordinary wearing apparel of himself
and family, and such other property, in addition, as he may select, in
all not exceeding seventy-five dollars in value; which property shall be
selected by the debtor and appraised; but any person coming into this
state with the intention of remaining shall be considered a resident.
[§4801.]
[Sidenote: Purchase money.]
None of the exemptions prescribed in this chapter shall be allowed
against an execution issued for the purchase money of property claimed
to be exempt, and on which such execution is levied. [§4302.]
[Sidenote: Absconding debtor.]
Where a debtor absconds and leaves his family, such property shall be
exempt in the hands of the wife and children, or either of them.
[§4303.]
[Sidenote: Sewing machine.]
If the debtor is a seamstress, one sewing-machine shall be exempt from
execution and attachment. [§4304.]
[Sidenote: Pension money.]
All money received by any person, resident of the state, as a pension
from the United States government; whether the same shall be in the
actual possession of such pensioner, or deposited, loaned, or invested
by him, shall be exempt from execution or attachment, or seizure by or
under any legal process whatever, whether such pensioner shall be the
head of a family or not. [§4305.]
[Sidenote: Homestead.]
The homestead of every such pensioner, whether the head of a family or
not, purchased and paid for with any such pension money, or the proceeds
or accumulations of such pension money, shall also be exempt as is now
provided by law of this state in relation to homesteads; and such
exemption shall also apply to debts of such pensioner contracted prior
to the purchase of such homestead. [§4306.]
[Sidenote: Damages.]
Where a wrongful act produces death, and the deceased leaves a husband,
wife, child or parent, the damages shall not be liable for the payment
of debts. [§3731.]