Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1903-11-04

appearing on the race OF the OfQof are
properly before us for determination.
It does not indicate that the homestead
was directed to be set out of the seper-
ate property, nor whether the court
heard, or refused to hear, testimony
regarding the character Of this real
estate, nor, IL taken whether It was
conflicting, nor whether pertinent evil
dence was offered and rejected and ex-
ception taken to the refusal Of the
court to hear and consider It. In
short. it does not appear from the or.
der and il not shown by any state
ment on appealsnor in any other me-
thod as requiral,s that the premises
set apart are not community proper
ty and al such proper..yg aecreed to
the widow and children as a home
stead, regardless of appellants main
contention that the District Court
had no power to set aside the separate
estate Of the deceased. If the court
minute were properly in the record
it does not specify any reason for the
exception there noted and 1t does not
indicate that it was taken on the
ground that the premises were the
separate property of the deceased, In
Greedy v. Holland, IA New, ga. the
court minutes were strickea from the
record because not eraoodied IA
statement on appeal,
The obJectlcr that the order is void
iol unce eainty in not setting over any
w Unite portion of the premises can
be considered and determined in the
absence Of a statement because the
matter to which it relates is inherent
and is shown by the language OF the
order. In the statute relating to ex-
emptions, Comp. Laws, Sec, $50, pro-
vision is made for the appointment OF
appraisers on the application and, afi-
davit of "a judgment creditor after
issuance of execution, to report whe-
Their the value of the property is more
than the IS 100000 allowed to be re-
served, and if it is for division if
practicable, but otherwise for its sale.
Our Probate Act does not provide for
any similar procedure when home
stead is ordered out of the estate OF
a deceased person. We see no impro-
priety in setting apart the homestead
to the value of 100000 without defin-
ing the bounary or extent necessary to
reach the sum, and without ascertain
ing whether the premises can be diyld-
ed. The necessity for this division; or
determination may never arise and it
is better that the trouble and expense
incident be avoided until the time ar
rives, if ever, when the occupants OF
the homestead and. the owner of the
excess cannot agree, and then the ten
ant in common who is dissatisfied car
proceed under the general statute al
lowing and regulating suits for par
tition. se4 slN 10
We quote from Thompson on Home
steads and Exemptions:
Gee. 500. Where land is sold
subject to the homestead right, 81
under such circumstances that the sale
will be valid except as to the home
stead, so that the purchaser will get g
good title to the residue after the
homestead is set off-as where the
land is greater in value or in area
than the exemption of the statute
what are the legal relations of thu
owner of the homestead and the pun
chaser? Several cases answer tina
they are tenants in ccmmon-not q
the homestead, but of the whole prop
erty."
(Sec. 631). "Such being the rels
ton of the parties either one would
it is thought, in most of the States
either by force of statute or under tn
general principles of equity. be er
titled to partition, as in case OF a
ordinary estate in common"
1t is said in the opinion in Barne
v. Leeds. 81 N. H.. 2S2.
fhe extent, in quantity, of lha
share could only be determined by a:
signment under the statute, or by pa
tition. 1t was not necessarily fiv'
sixths or any other aliquot part of tn
premises, although at the time of tb
levy such was deemed his fair pr
portion Of the whole by the appraisers
but it was not so much, whether fiv'
sixths, one-sixth, or any other propo
ton, as was worth Five Hundred Dc
lars. The policy of the law gave til
EDITOR all the rest
When the creditor, at the date an
by means of the extent, takes from tn
debtor all but a certain interest, tf
share taken and the share left al
fixed by law The estate of the creditt
and the estate of the debtor are the
determined. That of the debtor
such a quantity of land as is then
the value of Five Hundred Dollars
that of the creditor is the residue. tt
precise quantity of the estate of eat
is fixed by law, and is ascertainab
DIT the OpIiOH anu upon the dppllCdtit
of either tenant in common of the e
tire estate, for partition of it"
Other similar cases are:
Barney v. Leeds, "a N. H., 1913.
Ferguson v. Reed, XIV Tex, 81
Badger v. Holmes, 6 Gray, lis.
Sisson " Tate, ia. Mass, sol.
Silloway v. Brown, IL Allen,
Freeman on cOten and par, Sec
cd Ed
Regarding the contention that
homestead cannot be ordered out
separate property the appeal may
considered dismissed AS to the 9th
objection the order of the Distri
Court is sufficiently definite and is
frmed with costs in favor of the F
spondent
Talbot, J.
concur:
Belknap, G. J.
Av- ~ MoA