
    Case 42 — PETITION EQUITY
    Dec. 7.
    Franks v. Lucas.
    APPEAL FROM OWEN CIRCUIT COURT.
    1. The homestead exemption right embraces two adjoining tracts of land, when the dwelling-house of the debtor is situated on ohe of them and the fee-simple value of both does not exceed $1,000.
    
      If the homestead right embraces land in which the debtor holds a life-estate the fee-simple value is estimated in setting the same apart.
    2. If the owner of a homestead right, embracing two tracts of LAND, EXECUTES A MORTGAGE ON THAT TRACT ON WHICH HIS DWELLING-HOUSE is situated, he does not thereby waive his homestead right in the other, and the latter can not be subjected by a creditor while the debtor occupies the former as his homestead.
    J. W. PERRY and O. B. HALLAM for appellant.
    The homestead law exempts so much land, including the dwelling-house and appurtenances, as shall not exceed $1,000 in value. (Gen. Stat., sec. 9, art. 13, chap. 38.) This does not limit the right to one tract or to a fee-simple title. It embraces any title or estate less than a fee-simple. (See Gardner v. Smith, &c., 10 Bush, 245.)
    STROTHER & ORR for appellee.
    1. The homestead right is limited to the tract on which the actual dwelling-house is situated. (Miles, &c. v. Hall, &c., 12 Bush, 105; Jarboe, &c. v. Colvin, &c., 4 Bush, 73.)
    2. When the owner of a homestead right mortgages the land on which, his dwelling is situated, and the mortgage is enforced, leaving no surplus, he is thereby precluded from claiming any homestead right in an adjoining tract.
   JUDGE COEER

delivered the opinion of the court.

The debtor Franks owns a life-estate in fifty acres of land, on which is situated his dwelling, occupied by himself and family, and he owns, in fee, an adjoining tract containing thirty-three acres. The aggregate value of a fee-simple in both does not exeed $1,000.

He and his wife united in mortgaging his interest in the fifty acres to Green to secure a debt of less than $300. The appellee sought to subject the thirty-three acre tract to the payment of a debt due to him by Franks, and the circuit court having adjudged against Franks, he has appealed.

Counsel for the appellee cite Jarboe v. Colvin, 4 Bush, 70, Miles v. Hall, 12 Bush, 105, in support of the judgment.

In the former case it appears that Jarboe owned three contiguous tracts of land. His dwelling-house was situated on the middle tract, and he mortgaged that tract so as to waive the homestead exemption, and then claimed a homestead in one of the other tracts, and this court adjudged against him.

That decision does not, however, as counsel seem to suppose, rest on the ground that Jarboe’s land consisted of three tracts derived from different vendors. The ground of the decision is this:

By the terms of the statute “so much land, including the dwelling-house and appurtenances, ... as shall not exceed in value $1,000,” is exempted. The statute does not allow a homestead out of the tract or body of land owned by the debtor, and leave to the debtor or the court or officer to assign it out of any part of the tract or of several adjacent tracts, but provides that it shall be out of that part on which the dwelling-house and appurtenances are situated. The statute having declared that the exemption shall be of $1,000 worth of land, including the dwelling, when the debtor makes a mortgage of that part of his land on which the dwelling and appurtenances are situated, and the land embraced in the mortgage is worth $1,000 or more, whether his land consists of one tract or of several contiguous tracts, the exemption is gone, because it has been waived as to the only land to which the statute applies. (Hansford v. Holdam, ante p. 210.)

The land mortgaged by Jarboe sold for $1,781.84, just enough to satisfy the mortgage-debt,, thus showing that the mortgage embraced the entire homestead.

But in this case the two tracts being contiguous, constituting one farm, and being worth in the aggregate not exceeding $1,000, the mortgage to Green only embraced a part of the homestead. Before the mortgage was executed it is clear that the appellee could not have subjected any part of either tract to sale to satisfy his debt, and it is not perceived how any part of either can have become subject on account of its execution. It was not made for his benefit, and as long as Franks continues to reside on the fifty acres and to be a housekeeper with a family both tracts are exempt from coercive sale by any creditor, except Green, and he can only subject the tract embraced in his mortgage.

In Miles v. Hall we decided that the homestead could not be extended over on to a tract adjoining that on which the dwelling was situated, not, however, because it was a different tract, but because the tract including the dwelling was of the value of $1,000.

So much of the judgment as directs the sale of the land not embraced by Green’s mortgage, to satisfy appellee’s debt, is reversed, and the cause is remanded with directions to dismiss so much of the petition as seeks to subject it.  