
    Thomas B. Bullene and others v. D. B. Hiatt.
    
    July Term, 1873.
    1. Attachment: Levy on Equitable Title. An order of attachment may be levied upon land, although the debtor holds only the equitable title thereto, and the legal title is held by some other person.
    2. Homestead: Priority of Lien. Where an order of attachment is levied upon the land of the debtor, and afterwards he moves upon the land with his family and resides thereon, and occupies the same as a homestead, he does not thereby defeat or destroy the attachment lien previously existing on the land, but it remains thereon, and is prior in right to the homestead interest.
    
    
      Error from Wyandotte district court.
    The case is stated in the opinion.
    
      Bartlett & Hale, for plaintiffs in error.
    At the time the premises in question were taken on the order of attachment (February 9, 1871) they were not Hiatt’s homestead, even not occupied by him and family, nor claimed as a homestead. It was not until on or about the first day of May, 1871, that defendant and his family moved on the premises and claimed them as a homestead.
    Under these circumstances, in order to obtain the benefits of the homestead law, it was necessary for defendant to notify the officer, according to the provisions of section 2 of the act exempting certain property from sale under execution, viz.: “Whenever any levy shall be made upon the lands and tenements of a householder, whose homestead has not been selected and set apart, such householder, his zoife, agent, or * attorney, may notify the officer in writing, at the time of making such levy, or at any time before the sale, of what he regards as his homestead, with a description thereof, and the remainder alone shall be subject to sale under such levy.” Gen. St. c. 38.
    At the time the premises were levied upon, they were not the home of the judgment debtor, and the homestead exemption did not attach to the premises in question. Crock. Sher. § 394; 6 Denio, 362; Austin v. Stanley, 46 N. H. 51; Lee v. Miller, 11 Allen, 37; Elston v. Eobinson, 21 Iowa, 531; Tourville v. Pierson, 39 111. 446; Kresin v. Mau, 15 Minn. 116, (Gil. 87;) Coolidge v. Wells, 20 Mich. 79; Hale v. Heaslip, 16 Iowa, 452.
    The lien obtained by the plaintiffs, against the premises in question, related back to the time they were attached. Crock. Sher. § 394; 6 Denio, 362; Fergus v. Woodworth, 44 111. 374; Wright v. Dunning, 46 111. 276; Austin v. Stanley, 46 N. H. 51; Tuttle v. Howe, 14 Minn. 145, (Gil. 113.)
    
      Cook & Sharp, for defendant in error.
    The constitution has exempted a homestead of a certain description. Const, art. 15, § 9. When the land used and occupied by the family of the owner as a residence and homestead is outside the limits of an incorporated town or city, and does not exceed in amount 160 acres, it is already impressed with the character and attributes of a homestead, and no further selection or notice that it is claimed as such homestead is necessary. To admit that the legislature had power to require such selection and notice would be to admit that it had power to defeat the will of the people as expressed in the constitution. Cusie v. Douglas, 3 Kan. *123; Benz v. Hines, Id. 390; Beecher v. Baldy, 7 Mich. 488; Cook v. McChristian, 4 Cal. 23; Taylor v. Hargous, Id. 268; Tumlinson v. Swinney, 22 Ark. 400.
    The homestead exemption is not a personal privilege, to be claimed by the debtor, but an absolute right, necessary to the welfare of the family, and of which it cannot be deprived without the joint consent of himself and wife. A married woman can only waive the homestead right in the manner *provided by the constitution. Dye v. Mann, 10 Mich. 291; Eing v. Bart, 17 Mich. 465; Weed v. Terry, 2 Doug. 344; Morris v. Ward, 5 Kan. *244.
    
      
       This ease again in court, and decision followed, 20 Kan. 557.
    
    
      
       At any time before property actually becomes a homestead, a lien, which could not he created on a homestead', may be created on such property the same as on any other property; and the fact that the property afterwards becomes a homestead will not destroy the lien thus previously created. Andrews v. Alcorn, 13 Kan. 360; Ashton v. Ingle, 20 Kan. 676; Howe M. Co. v. Miner, 28 Kan. 444. See Randal v. Elder, post, *257, and note.
    
   Valentine, J.

On January 6, 1871, and subsequently thereto, D. B. Hiatt was the entire equitable owner of a certain piece of land situated in Wyandotte county, and John W. McDanield held the mere naked legal title thereto. On February 8, 1871, the plaintiffs in error commenced their action against the defendant in error on an account for merchandise sold and delivered, and an order of attachment was issued therein. On the ninth of said February said order of attachment was levied on said land as the property of the defendant. On the twentieth of April following said McDanield conveyed his legal title to said land to the defendant by deed of general warranty, and on the first of May then next, said defendant with his family moved onto said land, and has since resided thereon, and occupied the same as his homestead. On March 5, 1872, the plaintiffs recovered a judgment in said action against the defendant for $1,017.52 and costs. On the twelfth of said March the court ordered the sale of said attached property to satisfy said judgment. On the nineteenth of April,*1872, in pursuance of said judgment and order, a special execution was issued and levied on said land, and on the twenty-fifth of May said land was sold on said execution. On June 3, 1872, the court set aside said sale on the ground that said larnd was the defendant’s homestead; and to reverse the order of the court below setting aside said sale the plaintiffs now bring the case to this court.

We think the court below erred. The defendant was in fact the owner of said land when said attachment was levied upon it, although McDanield may have still held the naked legal title. And land held, by an equitable title may be attached as well as land held by a legal title. Gen. St. 665, Code, § 193, and c. 104, § 1, sub. 8. But of course the attachment binds only the interest of the debtor in the land held at the time the attachment is levied. And it does *bind that interest from that time. Code, § 206. But the main question in this case seems to be whether the homestead right defeats the attachment lien. We think it does not. The attachment lien existed nearly three months before the homestead right was created. And while homestead laws are-every where to be considered favorably, yet they are not to be so construed as to destroy pre-existing rights. Of course the defendant in this case had the right to make said land his homestead, but he could do so only in subjection to the attachment lien. An attachment lien, like other liens, though not an estate in the land, (Chick v. Willetts, 2 Kan. *391,) is such a vested interest therein that it cannot be affected by any subsequent act of the debtor. A debtor could as well defeat and destroy a mortgage lien, a judgmeni lien, a mechanic’s lien, or any other lien or incumbrance upon real estate, by moving upon the land and making it his homestead, as he could by so doing defeat or destroy an attachment lien. For authorities discussing the nature and extent of attachment liens, and the nature and extent of homestead rights, and how they are affected ■when created subsequent to pre-existing liens, we would refer to authorities cited in the brief of plaintiffs in error.

The order of the court below setting aside said sheriff’s sale is reversed, and cause remanded for further proceedings in accordance with this opinion.

Kingman, C. J., concurring; Brewer, J., not sitting in the case.  