Excerpt from The American State Reports, Vol. 72: Containing the Cases of General Value and Authority Subsequent to Those Contained in the "American Decisions" And the "American Reports," Decided in the Courts of Last Resort of the Several States; Selected, Reported, and Annotated
It will thus be observed, from a consideration of the case cited, that the precise question involved in the controversy now here was not ruled upon in that case. It is also contended by coun sel that the homestead exemption is a personal privilege, to be exercised by the claimant or not at his will and at any time before sale. As a general rule, the lien of a judgment only attaches to property which there is a present power to sell, and the question must be solved by the statutes relating to home stated exemptions. The state constitution imposes its mandate upon the legislature to protect the homestead from forced sale: Const., art. 19, sec. 1. The statute in force at the time of the rendition of appellant's original judgment against respondents, in 1891, was 2 Hill's Code, section 481, in which a homestead not exceeding in value one thousand dollars was exempted from execution or attachment. By section 482, the homestead passed to the widow surviving the husband, or to the minor children, and the creditor could not have an execution as of course against such homestead: 2 Hill's Code, sec. 484. When the homestead was sold, a subsequent homestead acquired with the proceeds thereof was exempt, and section 485 of 2 Hill's Code (ballinger's Code, sec. Provided: In case of the sale of said homestead, any subsequent 8 homestead acquired by the proceeds thereof shall also be exempt from attachment and execution; nor shall any judgment or other claim against the owner of such homestead be a lien against the same in the hands of a bona fide purchaser for a valuable consideration.
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