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Homestead and Exemption Laws

1911 Encyclopedia Britannica

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Laws (principally in the United States) designed primarily either to aid the head of a family to acquire title to a place of residence or to protect. the owner against loss of that title through seizure for debt. These laws have all been enacted in America since about the middle of the 19th century, and owe their origin to the demand for a population of the right sort in a new country, to the conviction that the freeholder rather than the tenant is the natural supporter of popular government, to the effort to prevent insolvent debtors from becoming useless members of society, and to the belief that such laws encourage the stability of the family.

By the cessions of several of the older states, and by various treaties with foreign countries, public lands have been acquired for the United States in every state and territory of the Union except the original thirteen, and Maine, Vermont, Kentucky, Tennessee and Texas. For a time they were regarded chiefly as a source of revenue, but about 1820, as the need of revenue for the payment of the national debt decreased and the inhabitants of an increasing number of new states became eager to have the vacant lands within their bounds occupied, the demand that the public lands should be disposed of more in the interest of the settler became increasingly strong, and the homestead idea originated. Until the advent of railways, however, the older states of the North were opposed to promoting the development of the West in this manner, and soon afterwards the Southern representatives in Congress opposed the general homestead bills in the interests of slavery, so that except in isolated cases where settlers were desired to protect some frontier, as in Florida and Oregon, and to a limited extent in the case of the Pre-emption Act of 1841 (see below), the homestead principle was not applied by the national government until the Civil War had begun. A general homestead bill was passed by Congress in 1860, but this was vetoed by President James Buchanan; two years later, however, a similar bill became a law. The act. of 1862 originally provided that any citizen of the United States, or applicant for citizenship, who was the head of a family, or twenty-one years of age, or, if younger, had served not less than fourteen days in the army or navy of the United States during an actual war, might apply for 160 acres or less of unappropriated public lands, and might acquire title to this amount of land by residing upon and cultivating it for five years immediately following, and paying such fees as were necessary to cover the cost of administration; a homestead acquired in this manner was exempted from seizure for any debt contracted prior to the date of issuing the patent. A commutation clause of this act permitted title to be acquired after only six months of residence by paying $1.25 per acre, as provided in the Pre-emption Act of 1841. Act of 1872, amended in 1901, allows any soldier or seaman, who has served at least ninety days in the army or navy of the United States during the Civil War, the Spanish-American War or in the suppression of the insurrection in the Philippines, and was honourably discharged, to apply for a homestead, and permits the deduction of the time of such service, or, if discharged on account of wounds or other disability incurred in the line of duty, the full term of his enlistment, from the five years otherwise required for perfecting title, except that in any case he shall have resided upon and cultivated the land at least one year before the passing of title. Since 1866 mineral lands have been for the most part excluded from entry as homesteads.

In accordance with the provisions of the homestead law, 718,930 homesteads, containing 96,495,414 acres, were established in forty-two years, and besides this principal act, Congress has passed several minor ones of a like nature, that is, acts designed to benefit the actual settler who improves the land. Thus the Pre-emption Act of 1841 gave to any head of a family or any single person over twenty-one years of age, who was a citizen of the United States or had declared his intention to become one, permission to purchase not to exceed 160 acres of public lands after he had resided upon and improved the same for six months; the Timber-Culture Act of 1873 allowed title to 160 acres of public prairie-land to be given to any one who should plant upon it 40 acres of timber, and keep the same in good growing condition for ten years; and the Desert-Land Act of 1877 gave to any citizen of the United States, or to any person who had declared his intention to become one, the privilege of acquiring title to 640 acres of such public land as was not included in mineral or timber lands, and would not without irrigation produce an agricultural crop, by paying twenty-five cents an acre and creating for the tract an artificial water-supply. These several land acts, however, invited fraud to such an extent that in time they promoted the establishment of large land holdings by ranchmen and others quite as much as they encouraged settlement and cultivation, and so great was this evil that in 1891 the Timber-Culture and Pre-emption Acts were repealed, the total amount of land that could be acquired by any one person under the several land laws was limited to 320 acres, the Desert-Land Act was so amended as to require an expenditure of at least three dollars an acre for irrigation, and the original Homestead Act was so amended as to disqualify any person who was already proprietor of more than 160 acres in any state or Territory of the Union for acquiring any more land under its provisions; and in 1896 a residence of fourteen months was required before permitting commutation or the purchase of title. But even these measures were inadequate to prevent fraud. In 1894 Congress, in what is known as the Carey Act, donated to California, Oregon, Nevada, Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico and the Dakotas so much of 1,000,000 acres each of desert-lands as each should cause to be irrigated, reclaimed and occupied within ten years,' not less than 20 acres of each 160 acres to be cultivated by actual settlers; and in several of these states and territories irrigating companies have been formed and land offered to settlers in amounts not exceeding 160 acres to each, on terms requiring the settler to purchase ample and perpetual water-rights. In 1902, Congress appropriated the proceeds of the sales of public lands in these states and territories to form a reclamation fund to be used for ' In 1901 it was provided that the ten years should date from the segregation of the lands from the public domain.

the construction and maintenance of irrigation works, and lands reclaimed by this means are open to homestead entries, the entryman being required to pay for the cost of reclamation i " ten equal annual instalments without interest. When Texas was admitted to the Union the disposal of its public lands was reserved to the state, and under its laws every person who is the head of a family and without a homestead may acquire title to 160 acres of land by residing upon and improving it for three years; every unmarried man eighteen years of age or over may acquire title to 80 acres in the same way.

A short time before the National Homestead Act for aiding citizens to acquire homesteads went into operation, some of the state legislatures had passed homestead and exemption laws designed to protect homesteads or a certain amount of property against loss to the owners in case they should become insolvent debtors, and by the close of the century the legislature of nearly every state in the Union had passed a law of this nature. These laws vary greatly. In most states the exemption of a homestead or other property from liability for debts can be claimed only by the head of a family, but in Georgia in may be claimed by any aged or infirm person, by any trustee of a family of minor children, or by any person on whom any woman or girls are dependent for support; and in California, although the head of a family may claim exemption for a homestead valued at $5000, any other person may claim exemption for a homestead valued at $1000. In some states exemptions may be claimed either for a farm limited to 40, 80, 160 or 200 acres, or for a house and one or more lots, usually limited in size, in a town, village or city; in other states the homestead for which exemption may be claimed is limited in value, and this value varies from $50o to $5000. With the homestead are usually included the appurtenances thereto, and the courts invariably interpret the law liberally; but many states also exempt a specified amount of personal property, including wearing apparel, furniture, provisions, tools, libraries and in some cases domestic animals and stock in trade. A few states exempt no homestead and only a small amount of personal property; Maryland, for example, exempts only $ioo worth of property besides money payable in the nature of insurance, or for relief, in the event of sickness, injury or death. To some debts the exemption does not usually apply; the most common of these are taxes, purchase money, a debt secured by mortgage on the homestead and debts contracted in making improvements upon it; in Maryland the only exception is a judgment for breach of promise to marry or in case of seduction. If the homestead belongs to a married person, the consent of both husband and wife is usually required to mortgage it. Finally, some states require that the homestead for which exemption is to be claimed shall be previously entered upon record, others require only occupancy, and still others permit the homestead to be designated whenever a claim is presented.

Following the example of either the United States Congress or the state legislatures, the governments of several British colonial states and provinces have passed homestead laws. In Quebec every settler on public lands is allowed, after receiving a patent, an exemption of not to exceed 200 acres from that of his widow, of his, her or their children and descendants in the direct line. In Ontario an applicant for a homestead may have not to exceed 200 acres of unappropriated public land for farming purposes by building a house thereon, occupying it for five years, and bringing at least fifteen acres under cultivation; the exemption of such a homestead from liability to seizure for debts is, however, limited to twenty years from the date of application for the land, and does not extend even during that period to rates or taxes. Manitoba, British Columbia, Queensland, New South Wales, South Australia, West Australia and New Zealand also have liberal homestead and exemption laws.

See J. B. Sanborn, " Some Political Aspects of Homestead Legislation," in The American Historical Review (1900); Edward Manson, " The Homestead Acts," in the Journal of the Society of Comparative Legislation (London, 1899): S. D. Thompson, A Treatise on Homesteads and Exemptions (San Francisco, 1886); P. Bureau, Le Homestead ou l'Insaisissabilite de la petite propriete fonciere (Paris, 1894), and L. Vacher, Le Homestead aux EtatsUnis (Paris, 18 99). (N. D. M.)