
    Chamberlain Banking House, appellant, v. George C. Zutavern et al., appellees.
    Filed February 9, 1900.
    No. 9,143.
    1. Homestead: Exemption. A homestead of less value than $3,000 is exempt from forced sale on execution issued on an ordinary judgment.
    2. --: Widow: Head oe Family. A widow with whom resides her children and grandchildren, who are under her care and maintenance, is the “head of a family,” and is entitled to the benefits of the law exempting homesteads from sale on execution.
    3. -: Levy oe Execution: Action oe Debtor: Duty oe Creditor. Where a debtor takes the necessary steps after the levying of an execution upon7his lands to have his homestead interest therein determined, it is the duty of the creditor to make application as provided by law for the appraisal of the premises, and his failure so to do will be sufficient ground for vacating the sale of the homestead.
    Error from the district court of Johnson connty. Tried below before Stull, J.
    
      Affirmed.
    
    
      M. B. O. True and Boscoe Pound, for appellant.
    W. B. GomstocJc, contra.
    
   Norval, C. J.

This is an appeal from an order of. the district court refusing to confirm a sheriff’s sale of real estate made upon execution, and vacating such sale.

The objections interposed to the sale were:

1. That the property was exempt to the defendant Wood as a homestead.

2. That, after the levy of the execution and before the sale, said defendant served a written notice upon the sheriff holding the writ that she claimed the real estate as a homestead, and that the same was, therefore, exempt from sale on execution, and that the judgment creditor failed to have her homestead right determined.

As to whether the property was the homestead of the defendant, the evidence adduced on the hearing in the court below was conflicting. That introduced by the defendant tended to show that she is a widow, sixty-nine years old, a resident of the state; that she resided upon the land in question as a home, with her servants; and that, during a greater portion of the time, certain of her children and grandchildren resided with her and were under her care and maintenance, and that the land was of less value than $2,000. The evidence was sufficient to establish that the real estate was not subject to forced sale on execution. See Dorrington v. Myers, 11 Nebr., 388. Moreover, the judgment creditor failed to have the homestead right of the defendant in the property determined. See Quigley v. McEvony, 41 Nebr., 73.

The sale was properly vacated, and the order appealed from is

Affirmed.

Rehearing denied.  