Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-07-30

] winch was 1ne following HE mark signed by
/ the clerk of the district court, Mcleod county.
| Ito whom the transcript was sent) viz: ..Filed
May 9th. 1862 He also offered in evidence
| the judgment docket of said district court
in which the entry made upon the fling OF
| such transcript in the column headed ssDate of
Docketing two dates appeared, viz: MAY
5, 1862, and February 1S, 1892 the latter
date being cancelled. To this docket entry de
| PENDANT objected, upon the ground that It an
peared upon its face to have BET altered. The
1 objection was promptly overruled respective
of the presumption that the change of date was
maze in the proper discharge of the cle-k's
| duty; the alteration was sufficiently exnlained
by tue file mark mentioned and by the evident
fact that the date (Feb. 1S) which as the tran
script showed, was the date Of the original
docketing of the judgment was by mere mad
vertance copied into the Judgment docket of
fered in evidence. The plaintiff introduced
the judgment book of the district court of Car
yer county containing the judgment invalid in
! this action. The judgment bore date Feb. 18
1862, and was signed by the proper clerk. He also
| introduced the judgment docket of said court
In which said Judgment was docketed, the date
| of the judgment being entered therein as Feb
fuary IL, 1862. The defendant offered to show by
| oral testimony that the judgment introduced
IN evidence was not In fact entered until after
June LIST, 1868. BE also offered to show by like
| testimony that the only entry relating to said
judgment, made in tie docket Judgment of
Mcleod county before March 9Th, 1872 was
one showing The date of the docketing ia said
! county, 70 be February Is, 1862 Both Of these
offers We're properly registered. The entries
introduced by the plaintiff are parts of the
records of the district courts of Carver and
Mcleod counties. So long as they stand as
such records they impart uncomfortable verify.
Ii they are erroneous the error must be cor
lected III an application for that purpose and
the coura OF which they are records They
cannot be imreached collaterall.y Anv other
doctrine would make the records os our district
courts lementably uncertain and unreliable.
Among other things the court in substance
Instructed the jury that in order to preserl
his homestead exemption execution defend
ant must notify the officer who is about to levy
upon his homes tead that he claims the same as a
home tead and must give the officer description
OF 1T unless he is excused from SO doing, or it
is rendered unnecessary for him to do so by the
acts or declarations of the officer at the time of
making the levy. This is wrong for at least
two reasons. In the first place the statute
making The right to it dependant upon any af-
bimat1ve action upon the part of the person
claiming it towards an officer levying or about
TO levy upon it, In the second place the ex-
emption is not provided for the sole benefit of
the owner Of the land, if he be married man.
In such case the homestead law is a family
measure.
Whether if the owner of homestead were a
single man he could effectualIy waive his e:s-
emption otherwise than by conveyance. or
whether II he were married man he and his
wife could together effectually waive the same
without such conveyance, this case does not
call upon us to determine. Certain it is that
where the owner of homestead has wife it is
not competent for him alone in any way to eff
tectually waive the exemption. To permit hi n
to do SO would be to thwart the manifest pol
icy OF the statute aud to fritter away the whole
some and beneficial protection and privilege
which it was designed to secure to the family.
What the policy and design of the statute in
this respect are is clearly indicated in the sec
ond section OF the homestead act, CHI. 6S Gen.
Stat, which provides that no mortgage or other
attenuation of a homestead by the owner there
OF II a married man shall be valid without the
signature OF his wife to the same, unless the
mortgage be given to secure the whole or part
OF the purchase money.
We are not to be understood, however,
as holding that where debtor being
possessed Of a tract of land.
part only of which he is entitled to claim as
an exempt homestead, refuses to select such
part that the whole tract is thereby kept out of
the reach OF execution. For such case there
must be some remedy. Perhaps one might
properly be afforded by permitting the officer
nololng the execution to make selection of a
homestead fer the debtor, with reasonable
regard 20 The debtors interest
Inc COUNSEL Tor the plaintiff insists that
there is no evidence that the defendant was a
married man at the time of the levy which this
action relates. We think there is testimony in
the case fairly tending to show that he was
The defendant testified that he had a wife and
children in 1858, when he went into possession
OF the lard in question, and in the absence of
a showing to the contrary the Jury might pre-
sumo the continuance of that state of things.
For the erroneous instruction given to the Jury
there must be new trial. and the order of the
court below refusing the same is accordingly
reversed. BERRY. j.