Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
Display paragraphs in this book containing:
First Pub. Date
New York: Maynard, Merrill, and Co.
Pub. Date
Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
547 of 1105



HOMESTEAD AND EXEMPTION LAWS. The homestead may be defined as the house and land connected therewith, which forms the immediate residence of a family. The provisions of law by which homesteads are secured beyond reach of creditors or legal liabilities on the part of their owners, are wholly of modern growth. Fifty years ago no such exemption existed in any state. By the common law of England, frequently held judicially to govern this country, not only could all the property, real and personal, of a debtor be seized to satisfy creditors, but the legal monstrosity which merged the wife in the husband, seized the homestead belonging to the wife, though bought by her own money, and sold the roof from over her head to satisfy claims caused by the folly or improvidence of her husband. The distress and hardship widely consequent upon this stripping of families of all their possessions for debt, and reducing to penury wives innocent of any wrong, together with the steady growth of principles of legal reform, led to the enactment of the first homestead laws. These laws enacted by some states antedated by more than twenty years the homestead law of the United States (May 20, 1862), securing to actual settlers on the public lands 160 acres each.


—This free homestead law of the United States has proved one of the most beneficent as well as successful measures ever adopted in any country. It has opened to immediate settlement millions of acres of the public domain which would otherwise have remained a wilderness for years. It has drawn to America millions of wealth-producing citizens, who without the attraction of free land would never have emigrated, and it has greatly enhanced the value of the remaining public lands, thus directly enriching the treasury of the government. The free homestead law, though long agitated and several times passed by the house of representatives, was not finally enacted till the second year of the civil war. (Rev. Stat., secs. 2289-2317.) By its provisions any citizen, or applicant for citizenship, over twenty-one years of age, may enter upon 160 acres of any unappropriated public lands graded at $1.25 per acre, or 80 acres of such lands valued at $2.50 per acre by the government, on payment of the nominal fee of $5 to $10. After five years' actual residence on the land, a patent therefor is issued to the settler by the general land office at Washington. This patent is a valid title from the United States. If the settler wishes to complete his title before the five years, with a view to sell or remove, he can do so only by payment to the United States of the valuation price of the land. No individual is permitted to acquire more than 160 acres under the homestead act, but there is no limit to the quantity which may be purchased by individuals. There is a proviso in the law (modeled upon the exemption laws of the states), that no lands acquired under the provisions of the homestead act shall be liable for any debts of the settler contracted before the issuing of the patent for his homestead—The principle upon which homestead exemption laws rest, is claimed to be the dictate of enlightened public policy. Their intent is to secure to every householder the possession of a permanent home. Although in most of the states their immunities are limited to the heads of families, there is no uniform provision to that effect. The spirit of most of the laws aims at guarding the home from alienation through the improvidence or misfortune of the head of the family, and it is held to be the interest of the state, as a matter of public policy, to secure to each citizen so much of independence as is involved in the possession of a homestead. Said Senator Benton: "The freeholder is the natural supporter of a free government. Tenantry is unfavorable to freedom. The tenant has in fact no country, no hearth, no domestic altar, no household god. It should be the policy of republics to multiply their freeholders." The republic of Texas, in 1839, enacted the first American homestead law. In 1849 Vermont passed a homestead act, and thereafter this provision rapidly became the policy of nearly all the states. In fifteen states homestead exemption is a part of the constitution; in others it is provided for by legal enactment. The only states which have no exemption of the homestead from execution for debt, are Connecticut, Delaware, Maryland, Oregon, and Rhode Island. In Pennsylvania, however, the only exemption from liability is of property, either real or personal, to the value of $300. In states which have homestead exemptions, the variations are very great as to the value of the real estate exempted, running from a minimum of $500 in Maine, New Hampshire and Vermont up to $5,000 in California and Nevada. In other states, again, there is no limit fixed to the value of the homestead, which may embrace 40 to 200 acres in the country (the former in Michigan, the latter in Texas), or from one-fourth of an acre to one acre, with improvements thereon, in a city or village.


—In the thirty-three states which protect the homestead from forced sale for payment of debts, there is usually a proviso excepting contracts made for the purchase of the homestead, or mechanics' liens thereon, or taxes, or debts due for the personal property itself which is the subject of exemption. These minor exemptions of personal property from sale or execution for debt are found in the statute book of every state and territory in the Union. They also vary greatly in the amount and value of property exempted, from $100 to $1,000 money value, while some states protect the means of living of the debtor's family by exempting from seizure not only clothing and necessary furniture, but tools, farming utensils, sewing machines, domestic animals, professional libraries and instruments, provisions, and even stock in trade.


—The beneficent object of homestead exemption laws, like that of many other liberal social or legal provisions, has been much perverted in some states by loose legislation and by still looser judicial construction. It results that in some cases not only the needful shelter and immediate provision for family wants have been exempted, but nearly all the property of the debtor has been sequestered from liability for his debts. In Iowa or Wisconsin a rich debtor might legally reserve a private palace worth hundreds of thousands of dollars, if located in a city, claiming it to be exempt from forced sale as his homestead. Some state laws go the length even of prohibiting the alienation or mortgage of the homestead by the head of the family, unless the wife joins in the deed. These restraints upon alienation have produced a plentiful crop of frauds, and have led to much litigation. In Illinois the legislature enacted that no release of the homestead should be valid unless subscribed by the householder and his wife, if he had one. After this much money was loaned on homesteads upon mortgages, in the ordinary form, signed by husband and wife, with the usual full covenant of warranty. But the supreme court of Illinois decided that these mortgages were invalid, because the right of homestead had not been expressly mentioned in them, although conveying in terms every claim, interest and estate, whether at law or in equity. Thus the fraudulent debtor was allowed to keep both the money and the homestead upon which it was borrowed; and the same doctrine has been judicially declared in Massachusetts and in Tennessee. In several states the courts have held that a widow takes a homestead in addition to her dower. The supreme court of Louisiana has held that a mortgage upon a homestead can not be enforced because the law declares it exempt from seizure and sale. It results that the owner of such property may sell it free from the mortgage he has imposed upon it. This judicial construction goes on the principle which has led some courts to hold that the engagement of a debtor, in contracting a debt, not to avail himself of the benefit of the exemption laws, is void as against public policy, upon the same principle which avoids a usurious contract.


—Among the many discordant decisions of judicial tribunals, it is evident that those dealing with property interests can not be too careful in guarding against contingencies which may arise to affect their rights. The table below summarizes the legal or constitutional provisions in force in 1882, exempting real and personal property from liability for debt, in all the states and territories.



Table.  Click to enlarge in new window.

Table.  Click to enlarge in new window.

547 of 1105

Return to top