Chap. 157.—An ACT to Prescribe in What Manner and on What Conditions .
a Householder or Head of a Family shall Set Apart and Hold a Home-
stead and Personal Property, for Benefit of Himself and Family, Exempt
from Sale for Debt.

Approved June 27, 1870.

1. Be it enacted by the general assembly of Virginia, That
every householder or head of a family shall, as provided for by
the constitution, be entitled, in addition to the articles exempt
from levy or distress tor rent by statute on the day the present
constitution of Virginia went into effect, to hold exempt from
levy, seizure, garnisheeing, or sale, under any execution. order,
or other process, issued on any demand for any debt hereto-
fore or hereafter contracted, his real and personal property, or
either, including money and debts due him, whether heretofore
or hereafter acquired or contracted, to the value of not ex-

ceeding two thousand dollars, to be selected by him: provided,
that such exemption shall not extend to any execution, order,
or other process, issued on any demand, in the following cases:

first, for the purchase price of said property, or any part there-

of; second, for services rendered by a laboring person or a.
mechanic; third, for liabilities incurred by any public officer,
or officer of a court, or any fiduciary, or any attorney at law,
for money collected; fourth, for a lawful claim for any taxes,
levies, or assessments &ccruing after the first day of June, one

thousand eight hundred and sixty-six; fifth, for rent hereafter

accruing; sixth, for the legal or taxable fees of any public offi-

cer, or officers of a court, hereafter accruing.

2. The foregoing section shall not be construed as subject-
ing the property hereby exempted, or any portion thereof, to
any lien by reason of any execution levied on property which
has been subsequently restored to the defendant, or judgment
rendered or docketed on and after the seventeenth day of
April, one thousand eight hundred and sixty-one, and before
the second day of March, one thousand eight hundred and
sixty-seven, for any debts contracted previous to the fourth
day of April, one thousand eight hundred and sixty-five, ex-
‘cept debts of the character mentioned in either of the above
first three exceptions. __

3. Nothing contained in this act shall be construed to inter-
fere with the sale of the property aforesaid, or any portion
thereof, by virtue of any mortgage, deed of trust, pledge, or
other security thereon. In all cases where a debtor or con-
tractor shall declare in the body of the bond, note, or other
evidence of the debt or contract, that he waives, as to such
debt or contract, the exemption from liability of the property
which he may be entitled to hold exempt under the provisions
of this act, the said property, whether previously set apart or
not, shall then be liable to be subjected for such debt or con-
tract, under legal process, in like manner and to the same ex-
tent as other estate of the said debtor or contractor: provided,
that when such debtor or contractor is possessed of other
estate than that which he may be entitled to hold exempt from
liability, in the county in which suit is brought against him, or
the property set apart under the provisions of this act may
be, then such other estate shall be subjected and exhausted be-
fore that which the said debtor or contractor may be entitled
to hold exempt is sold: and provided further, that no waiver
under this section shall apply to any property exempt from
levy or distress for rent under any statute in force at the time
of the adoption of the existing constitution, and not abro-
gated by it.

The following, or equivalent words, shall be sufficient to
operate as the waiver provided for in the previous section: “I
{or we) hereby waive the benefit of my (or our) homestead
exemption as to this debt, obligation, or contract,” as the case
may be.
4. To be entitled to the full benefit of a homestead, exempt
from levy, seizure, garnisheeing, or sale, said householder or
head of a family shall declare, by deed duly recorded in the
deed-book of the county in which such homestead, or the

reater part thereof, is situated, his intention to claim such
Fomestead, with a description of the property so claimed as
such homestead; or if it 1s intended to claim such homestead
in property of greater value than is specified in the first sec-
tion of this act, or in property held in joint tenancy, coparce-
nary, Or in common, a reasonable cergain description of the
property out of which such homestead is intended to be
claimed: provided, that in case such intent shall be expressed
in the deed or will conveying such property, it shall not be ne-
cessary for the householder or head ot a tamily to execute a
deed declaring such intent. A homestead may be claimed in
equitable as well as legal estates. |

). Property subject to mortgages, deeds of trust, or other
liens, shall be subject to the claim of homestead upon the pay-
ment or discharge of such liens; but said property, so far as the
liens mentioned in the second section are concerned, shall be
subject to the claim of homestead without the payment or dis-
charge of such last named liens. If partition is necessary in
any case in order to ascertain the homestead, the same may be
had as now prescribed by law, and the commissioners appointed
to make partition, shall, after the partition is made, report also
to the court appointing them, by metes and bounds, the home-
stead chosen by the party entitled thereto; which report, when
confirmed by said court, shall be recorded.

6. Whenever it is proposed to sell, extend, or rent by de-
cree or other legal process, the real estate of any householder
or head of a family, and the homestead shall not have been laid
off as prescribed by law, such householder or head of a family
may thereupon make selection of a homestead by deed as pre-
scribed in section four of this act; but should such home-
stead, or any homestead selected under this act, be charged
to be excessive, the court by whose order the same is dirested
to be sold, extended, or rented, shall appoint three disinte-
rested commissioners, being freeholders, not connected with
any of the parties, who, after being duly sworn, shall examine
the premises, and set apart therein a homestead for the debtor
and his family, and return a written description of the same to
the court, in order that the same may be recorded as the home-
stead. When the real estate proposed to be sold, extended,
or rented is of greater value than the said householder or head
of a family may be entitled to as a homestead, and is so situ-
ated that a homestead cannot be set apart therein, the said
commissioners shall report the facts to the court under whose
order they are acting; whereupon, the court shall order a sale
of the whole tract, and out of the proceeds of the sale shall
order to be invested such amount as the said householder or
head of a family may be entitled to as a homestead, in the
purchase, under his direction, of a homestead for him and his
family, and the surplus to be applied to the payment of the
debt for satisfaction of which the land was sold. For good
cauge shown the court may, upon the return of the assignment
or appraisement aforesaid, appoint new commissioners, and or-
der a re-assignment or re-appraisement of the property claimed
as a homestead, and.the said commissioners shall return their
proceedings to said court for its confirmation or rejection.

ut in every case where such commissioners shall make an as-
signment of homestead under this section, they shall make it
out of such part of the property from which it is to be taken
as may be selected by the party entitled thereto, and the home-
stead so purchased or assigned as aforesaid, shall be duly re-
corded as aforesaid.

7. A homestead so set apart or purchased shall not be mort-
gaged, encumbered, or aliened by the owner, if a married man,
except by the joint deed of himself and wife, executed and ac-
knowledged after the manner of conveyances of lands of a
married woman; but the husband may, without the consent of
his wife, mortgage such homestead tor the purchase money
thereof, or for buildings erected thereon. A homestead may
be sold by the joint act of the husband and wife, or by the act
of the householder, if unmarried, and the proceeds invested in
another homestead; but in no case shall the purchaser be re-

uired to see to the application of the purchase money. But
the acquisition of a new estate of homestead shall determine
any prior or other estate of homestead, and unless, upon the
face of the deed under which it is held, it is expressed to be
such homestead, it shall be so declared, by deed duly recorded
in “h manner as in the case of an original selection of home-
stead.

8. The homestead provided in this act, shall continue, after
his death, for the benefit of the widow and children of the de-
ceased until her death or marriage, and after her death or mar-
riage, for the exclusive benefit of his minor children, until the
youngest child becomes twenty-one years of age; after which
period it shall pass, according to the law of descents, as other
real estate, or as may be devised by said householder, not
being subject to dower, yet subject to all the debts of the said
householder or head of a family.

9. If the wife obtain a divorce from the husband on account
of his fault or misconduct, the title to the homestead shall be
decreed to the wife and minor children as if he were dead.

10. If any such householder or head of a family shall have
departed this life since the adoption of the present constitu-
tion, leaving a widow or infant children, and such homestead
shall not have been selected or assigned in the lifetime of said
householder, she, if remaining unmarried, or they, if she marry
or die before such selection, shall be entitled to claim the same;
and the court shall appoint commissioners to assign the same
in the same manner that commissioners are appointed to as-
sign dower; and the homestead so assigned, shall be held by
the widow and children to the extent and on the same condi-
tions prescribed in section eight of this act; and it shall be

lawful, when the homestead becomes vested in a widow and
minor children, or any of them, for the circuit court ofs the
county or city in which such homestead lies, upon petition
filed for that purpose by the widow, or infants by their next
friend, to order a sale of the homestead, and the investment
of the proceeds thereof in another homestead, or otherwise,
when it appears to the court that it is for the benefit of the
parties interested that the same shall be done. All homesteads
under this section shall be duly recorded as aforesaid.

11. If in any case the homestead selected under the preced-

‘ing section is not of the value of two thousand dollars, such

householder or head of a family, in addition to the articles ex-
empt from levy or distress for rent by statute on the day the
a ial constitution went into effect, may select, set apart, and
old, exempt from levy, seizure, garnisheeing, or sale, so much
of his personal property, including money and debts due him,
as added to the value of such homestead, will make the sum
of two thousand dollars, and if such householder or head of a
family has not selected and does not claim a homestead under
this act, he may, in addition to the articles exempt from levy
or distress for rent on the day the present constitution went
into effect, select, set apart, and hold, exempt from levy, sei-
zure, garnisheeing, or sale, so much of his personal property,
including money and debts due him, as will not exceed in value
two thousand dollars; and he shall, in either case, in writing,
designate the personal property so selected by him, and eac
article thereof, affixing thereto his cash valuation of each arti-
cle, and shall return such writing to the clerk of the county
court wherein he resides, to be recorded. |
12. The personal property selected under the next preced-
ing section shall be held in the same manner, under the same
limitations, and subject to the same conditions, as to incum-
brance and sale, and in all other respects as provided for by this
act in the case of the homestead to be set apart under it, and in
case no such selection shall have been made, and the householder
be dead, leaving a widow or infant children, she may, if unmar-
ried, make such selection, or if she be dead or married, the infant
children may, by their guardian, or their next friend, make the
same, and the same shall be recorded and held and distributed

as provided for in the case of a homestead so set apart.

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13. When there shall be a sale and re-investment of the per-
sonal property selected under the eleventh and twelfth sections
of this act, a designation thereof shall, in like manner, as pro-
vided by said eleventh section, be returned to the clerk of the
county court of the county in which the householder or head
of a family resides, to be recorded.

14. If the plaintiff, in an execution, distress warrant, or at-
tachment, shall be dissatisfied with the valuation of the prop-
erty selected as provided for in the eleventh and twelfth sec-
tions of this act, upon application, the judge of the county
court in which the property is, shall appoint three disinterested
freeholders, who shall assess the value of such property upon
oath, and if found to exceed the amount to which the house-
holder, head of a family, widow, or minor children may be en-
titled, the surplus shall be liable to the execution, warrant, or
attachment.

15. Provided, that the homestead and property selected and
set apart as aforesaid, under the provisions of this act, shall
not be exempt from levy, seizure, garnishee, or sale, upon any
execution, order, or other process, issued on any demand, in
the following cases:

First—For the purchase price of said property, or any part
thereof.

Second—For services rendered by a laboring person or a
mechanic.

Third—For liabilities incurred by any public officer, or off-
cers of a court, or any fiduciary, or any attorney at law, for
money collected.

Fourth—For a lawful claim for any taxes, levies, or assess-
ments accruing after the first day of June, eighteen hundred
and sixty-six.

Fifth—For rent hereafter accruing.

Sixth—For the legal or taxable fees of any public officer, or
officers of a court, hereafter accruing.

Seventh—For any debt or contract as to which the debtor
or contractor has waived, as hereinbefore provided, the exemp-
tion to which he is entitled under this act.

16. Any householder or head of a family who shall have
failed to select and set apart a homestead and personal pro-
perty which he claims to hold as exempt from levy or sale, ac-
cording to the provisions of the foregoing sections, and who de-
sires to avail himself of the benefit of the exemptions provided
for in this act against a creditor proceeding to enforce the lien of
his jadgment or execution, must file an inventory, under oath, in
the court where the judgment, decree, or order is obtained, or
with the officer holding the execution, of the whole of the real
and personal property owned by him at any time before the
sale of the property; and it shall be the duty of the commis-
sioner acting under such order or decree, or the officer to
whom the execution is directed, to apply forthwith to the
judge of the county court in which such property is, either in
term time or vacation, who shall appoint three disinterested
freeholders of the county or city, which freeholders, after being
duly sworn by said offiver, shall appraise said property at its
cash value.

17. Upon such inventory and appraisement being completed,
the said householder or head of a family claiming the benefit
of such exemption, or his authorized agent, may select from
such inventory an amount of such property, not exceeding,
according to such appraisement, the amount or value herein
exempted, and the said officer or creditor may proceed to en-
force the lien of said judgment or execution upon the residue
of the said property, free from such claim for exemption.

- 18. This act shall be in force from its passage.