This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
28. Macke v. Byrd, 131 Mo. 682, 52 Am. St. Rep. 649, 33 S. W. 448; Watson v. Saxer, 102 III. 585; Smith v. Gore, 23 Kan. 488, 33 Am. Rep. 188; Cooper v. Arnett, 95 Ky. 603, 26 S. W. 811.
The same effect frequently follows when there is a direct exchange of the old homestead for a new one. Creath v. Dale, 84 Mo. 349; Mann v. Corrington, 93 Iowa, 108, 57 Am. St. Rep. 256, 61 N. W. 409; Schneider v. Bray, 59 Tex. 668.
29. Smith v. Gore, 23 Kan. 488, 33 Am. Rep. 188; Schuttloffel v. Collins, 98 Iowa, 575, 60 Am. St. Rep. 216, 67 N. W. 397; Hewett v. Allen, 54 Wis. 583, 12 N. W. 45; Prugh v. Portsmouth Sav. Bank, 48 Neb. 414, 67 N. W. 309.
30. Swandale v. Swandale, 25 S. C. 389; Keyes v. Rines, 37 Vt. 260, 86 Am. Dec. 707; Jackson v. Reid, 32 Ohio St. 443; Simpson v. Biffle, 63 Ark. 289, 38 S. W. 345.
31. Culbertson v. Cox, 29 Minn. 309, 43 Am. Rep 204, 13 N. W. 177; Cameron v Fay, 55 Tex. 58; Houghton v. Lee, 50 Cal. 101. Contra, Smith v. Ratcliff, 66 Miss 683, 14 Am. St. Rep. 606, 6 So. 460; Wooster v. Page, 54 N. H. 125, 20 Am. Rep. 128.
-Loss of rights by abandonment. The right to the homestead exemption in particular land is lost by the abandonment of the land as a place of residence.33 But to constitute an abandonment, the removal from the property must be permanent, without an intention to return.34 An abandonment is not necessarily shown by the fact that the owner leases the homestead property to a tenant, provided the owner's absence therefrom is but temporary.35
- Waiver of rights. The right to hold land exempt from forced sale for debts may, as before stated, be in effect waived as to a debt secured by mortgage on the land. Under the statutes or decisions of a number of courts, moreover, the owner of land may, by agreement, waive the right of exemption as regards a particular debt, provided, usually, the waiver be in writing, and the wife join therein.36 In some states, however,
32. Waples, Homestead, c. 14.
33. Cabeen v. Mulligan, 37 III. 230, 87 Am. Dec. 247; Fyffe v. Beers, 18 Iowa, 4, 85 Am. Dec. 577; Kaes v. Gross, 92 Mo. 647, 1 Am. St. Rep. 767, 3 S. W. 840; Shepherd v. Cassiday, 20 Tex. 26, 70 Am. Dec. 372; Foster v. Leland, 141 Mass. 187, G N. E. 859; Niehaus v. Faul, 43 Ohio St. 63, 1 N. E. 87.
34. Tumlinson v. Swinney, 22 Ark. 400, 76 Am. Dec. 432; Kenley v. Hudelson, 99 III 493, 39 Am. Rep. 31; Boot v. Brewster, 75 Iowa, 631, 9 Am. St. Rep. 515, 36 N. W. 649; Central Kentucky Lunatic Asylum v. Craven, 98 Ky. 105. 56 Am. St. Rep. 323. 32 S. W. 291; Kaes v. Gross 92
Mo. 647, 1 Am. St. Rep. 767, 3 S. W. 840; Edwards v Reid, 39 Neb. 645, 42 Am. St. Rep. 607, 59 N. W. 202; Taylor v. Boul-ware, 17 Tex. 74, 67 Am. Dec. 642; McDermott v. Kernan. 72 Wis. 268, 7 Am. St. Rep. 864, 39 N. W. 537.
35. Wiggins v. Chance, 54 III. 175; Stewart v. Brand, 23 Iowa, 477; Dulanty v. Pynchon. 6 Alien (Mass.) 510; Earll v. Earll, 60 Mich. 30, 26 N. W. 822; Wetz v. Beard, 12 Ohio St. 431; Herrick v. Graves, 16 Wis. 163.
36. Crum v. Sawyer, 132 III. 443, 24 N. E. 956; Foley v. Cooper, 43 Iowa, 376; Littlejohn v. Egerton, 76 N. C. 468; Crout v. Sauter, 13 Bush (Ky.) 442
3 R. P. - 3 one cannot agree not to assert the right as against a particular debt.37 Whether the owner impliedly waives his right of exemption by failure to assert it at the time of an attempted sale of the land at the instance of creditors is a question on which the decisions are in direct conflict.38
Federal homestead exemption. The acquisition of public lands by individuals under the United States homestead law has been before referred to. The purpose of this law is primarily entirely different from the state homestead exemption laws, though they bear similar names. There is, however, one point of resemblance, in that the statute providing for the acquisition of public land by one establishing a home thereon declares that the land so acquired shall be exempt from liability to forced sale for debts incurred previous to the issuance of a patent therefor.39
Sec. 592. Restraints in creation of estate.(a)
Fee simple estate. A condition, a special limitation, or an executory limitation, terminating an estate in fee simple, or making it terminable, upon the making of a transfer by the owner thereof, is invalid,40 as is a provision imposing a penalty to be charged on the land,
Dye v. Mann, 10 Mich. 291; Ferguson v. Kumler, 25 Minn. 183.
37. Terrell v. Hurst, 76 Ala. 588; Tanner v. Mutual Benefit Building Ass'n, 95 Ga. 528, 20 S. E. 499.
38. Waples, Homestead, 729.
39. Rev. St. U. S. Sec. 2296.
40. Litt. Sec. 360; Co. Litt. 233a; 2 Jarman, Wills, 855; In re Rosher, 26 Ch. Div. 801; In re Dugdale, 38 Ch. Div. 176; Potter v. Couch, 141 U. S. 296, 35 L. Ed. 721; Freeman v. Phillips, 113 Ga. 589, 38 S. E. 943; In re creation of the estate, be compelled to retain the property against his will.46 The invalidity of such a provision may be regarded as based, not only on its tendency to withdraw the property from commerce, but also on the fact that the statutes fully recognize the right of the tenant to dispose of his property by transfer inter vivos or by will, and a provision of the character referred to would operate in contravention of such statutes. Moreover a mere prohibition of alienation is invalid, it seems, by reason of the fact that there is no person intended to benefit in case of its breach and consequently no person entitled to enforce it.46 a
Ogle's Estate, 146 Iowa, 33, 124 N. W. 758; Winsor v. Mills, 157 Mass. 362, 32 N. E. 352; Mutual Benefit Life Ins. Co. v. Rector, etc., of Grace Church, 53 N. J. Eq. 413, 32 Atl. 691; Hardy v. Galloway, 111 N. C. 519. 32 Am. St. Rep. 828, 15 S. E. 890; Turley v. Massengill, 7 Lea (Tenn.) 353; Diamond v. Rotan, 58 Tex. Civ. App. 263, 124 S. W. 196 But a limitation over in case of an alienation by a tenant in fee simple was regarded as valid in Camp v. Cleary, 76 Va. 140, and the rule referred to in case of a transfer.41 Such an indirect restriction upon the alienation of an estate in fee simple is frequently said to be repugnanl to the nature of the estate, but it is so repugnant merely because the courts have so regarded it. Before the statute Quid. Emptores.42 it appears to have been regarded as possible for a feoffor to provide against alienation by the feoffee,43 and as has been remarked by a writer of high authority,44 "the conception of a condition against alienation attach ed to a legal fee simple estate presents no logical difficulties." The real basis of the rule prohibiting a provision of the character mentioned which, by divesting, or giving power to divest, the estate created in case of its voluntary transfer, operates to prevent such transfer, is to be found in considerations of public policy, adverse to the withdrawal of property from commerce, and the check upon its improvement and development which must result therefrom; and in the case of an estate in fee simple, since the abolition of subinfeudation by the statute referred to, there is no interest remaining in the grantor to be benefitted by such a restriction,45 and consequently no reason why these considerations of public policy should be denied their full effect.