40-101. Homestead, defined; exempted.

A homestead not exceeding sixty thousand dollars in value shall consist of the dwelling house in which the claimant resides, its appurtenances, and the land on which the same is situated, not exceeding one hundred and sixty acres of land, to be selected by the owner, and not in any incorporated city or village, or, at the option of the claimant, a quantity of contiguous land not exceeding two lots within any incorporated city or village, and shall be exempt from judgment liens and from execution or forced sale, except as provided in sections 40-101 to 40-116.

Source

Annotations

1. Occupancy required

2. Dwelling house and premises

3. Interest necessary to support claim

4. Value above exemption

5. Area and extent

6. Rights of surviving spouse

7. Liability for debts

8. Fraudulent alienation

9. Priority of liens

10. Sale on execution

11. Equitable relief

12. Waiver and abandonment

13. Miscellaneous

1. Occupancy required

In order to qualify real estate as a homestead, a homestead claimant and his family must reside in habitation on the premises. A person cannot have two homesteads, nor can he have two places either of which at his election he may claim as a homestead. Travelers Indemnity Co. v. Heim, 218 Neb. 326, 352 N.W.2d 921 (1984).

All that law requires is that homestead claimant and family reside in habitation on premises. Schroeder v. Ely, 161 Neb. 262, 73 N.W.2d 172 (1955).

Homestead selected from property of wife must be with her consent, but consent may be presumed from occupancy of property as a family home. In re Estate of Nielsen, 135 Neb. 110, 280 N.W. 246 (1938).

Nonresident alien, who never lived on land claimed as a homestead, is not entitled to benefit of homestead laws. Engen v. Union State Bank of Harvard, 121 Neb. 257, 236 N.W. 741 (1931).

Where wife and children of married man resided in New York and never lived on premises claimed as homestead, a homestead was not acquired. Cunningham v. Marshall, 94 Neb. 302, 143 N.W. 197 (1913).

Actual or constructive occupancy, or bona fide intention and preparation to occupy, followed by actual occupancy within reasonable time is necessary to exempt property as homestead. Davis v. Kelly, 62 Neb. 642, 87 N.W. 347 (1901); Clement, Bane & Co. v. Kopietz, 2 Neb. Unof. 18, 95 N.W. 1126 (1901).

Where land is purchased by head of family with bona fide intention of residing thereon, but occupancy is temporarily prevented by unexpired term of tenant residing thereon, homestead rights attach at time of purchase. Hanlon v. Pollard, 17 Neb. 368, 22 N.W. 767 (1885).

2. Dwelling house and premises

Where two tracts of land corner on each other, they are contiguous and may be allowed as homestead. Thomas v. Sternhagen, 178 Neb. 578, 134 N.W.2d 237 (1965).

Homestead means house and land where the family dwells. Horn v. Gates, 155 Neb. 667, 53 N.W.2d 84 (1952).

A building consisting of a single structure and under one roof, though divided into two parts by a solid wall, is a dwelling house within the meaning of this section. Hawley v. Arnold, 137 Neb. 238, 288 N.W. 823 (1939).

Apartment house on lot contiguous to lot on which mortgagor dwells in another apartment house cannot be claimed as part of homestead. First Trust Co. of Lincoln v. Bauer, 128 Neb. 725, 260 N.W. 194 (1935).

A person cannot at the same time have two homesteads, nor can he have two places either of which at his election he may claim as a homestead. Berggren v. Bliss, 122 Neb. 801, 241 N.W. 544 (1932); Hair v. Davenport, 74 Neb. 117, 103 N.W. 1042 (1905).

Building occupied as residence, although used for hotel, constitutes homestead. Foltz v. Maxwell, 100 Neb. 713, 161 N.W. 254 (1916).

Dwelling house in which the claimant resides is an essential part of the homestead. City Savings Bank v. Thompson, 91 Neb. 628, 136 N.W. 992 (1912).

A homestead may be composed of contiguous parts of different subdivisions. Tindall v. Peterson, 71 Neb. 160, 98 N.W. 688 (1904), 99 N.W. 659 (1904).

Exemption of adjoining land depends upon homestead right to premises on which debtor resides. Howard v. Raymers, 64 Neb. 213, 89 N.W. 1004 (1902).

The term lot denotes parcel of land as surveyed and platted within limits of city or village. Norfolk State Bank v. Schwenk, 51 Neb. 146, 70 N.W. 970 (1897).

The word dwelling house does not contemplate any particular kind of house, and the requirement of this section is satisfied if the claimant and his family reside in the habitation, whatever be its character. Corey v. Schuster, 44 Neb. 269, 62 N.W. 470 (1895).

3. Interest necessary to support claim

Any interest in real estate, either legal or equitable, that gives a present right of occupancy or possession, followed by exclusive occupancy, is sufficient to support a homestead right therein. Blankenau v. Landess, 261 Neb. 906, 626 N.W.2d 588 (2001).

Estate in remainder, whether vested or contingent, will not support claim of homestead exemption until termination of prior estate. Fisher v. Kellogg, 128 Neb. 248, 258 N.W. 404 (1935).

A homestead may be claimed in lands held in joint tenancy or tenancy in common. Doman v. Fenton, 96 Neb. 94, 147 N.W. 209 (1914).

If property is owned by husband and wife equally as tenants in common, and is of the value of the homestead exemption, neither can claim other property as exempt. Valparaiso State Bank v. Schwartz, 92 Neb. 575, 138 N.W. 757 (1912), 42 L.R.A.N.S. 1213 (1912).

Life estate in land, if occupied as home, is homestead. Downing v. Hartshorn, 69 Neb. 364, 95 N.W. 801 (1903).

Joint tenancy, occupied exclusively by owner of interest and family, as a home, will support homestead exemption. Giles v. Miller, 36 Neb. 346, 54 N.W. 551 (1893).

Tenant in common is not entitled to homestead as against right and interest of other claimant. Lynch v. Lynch, 18 Neb. 586, 26 N.W. 390 (1886).

Not essential to homestead that occupant shall possess legal title. State ex rel. Hilton v. Townsend, 17 Neb. 530, 23 N.W. 509 (1885).

4. Value above exemption

Where husband transferred homestead to wife and subsequently placed thereon improvements increasing the value of the property beyond the amount of homestead exemption, court of equity could subject property in excess of exemption to debts of husband. Van Steenberg v. Nelson, 147 Neb. 88, 22 N.W.2d 414 (1946).

Under former law, statutory homestead, as between mortgagors and mortgagees, was not limited to a value of two thousand dollars, but covers the value of the entire one hundred sixty acres. Evans v. First Nat. Bank of Fairbury, 138 Neb. 727, 297 N.W. 154 (1940).

Where husband and wife each owned undivided one-half interest in property occupied as homestead, and mortgage encumbrance and homestead exemption exceeded value of husband's undivided interest, judgment against husband did not become a lien, in absence of wife's consent to selection of homestead from her separate property. Connor v. McDonald, 120 Neb. 503, 233 N.W. 894 (1931).

Under former law, if homestead was of less value than two thousand dollars, it could not be disposed of at administrator's sale. Brandon v. Jensen, 74 Neb. 569, 104 N.W. 1054 (1905); Bixby v. Jewell, 72 Neb. 755, 101 N.W. 1026 (1904); Tindall v. Peterson, 71 Neb. 160, 98 N.W. 688 (1904), 99 N.W. 659 (1904).

Under former law, where homestead was worth more than two thousand dollars and could not be divided, court could order sale and invest two thousand dollars of proceeds for benefit of widow. Wardell v. Wardell, 71 Neb. 774, 99 N.W. 674 (1904).

Under former law, judgment was not lien on lands occupied as homestead when debtor's interest did not exceed two thousand dollars. Farmers L. & T. Co. v. Schwenk, 54 Neb. 657, 74 N.W. 1063 (1898).

Under former law, judgment was lien only on excess above two thousand dollars. Horbach v. Smiley, 54 Neb. 217, 74 N.W. 623 (1898).

Value of homestead of decedent, above exemption, is liable for claims allowed against estate. W. J. Perry Live Stock Commission Co. v. Biggs, 4 Neb. Unof. 440, 94 N.W. 712 (1903).

5. Area and extent

A one hundred and sixty acre tract cannot be occupied by two families so that each will have a homestead right thereto. Luenenborg v. Luenenborg, 128 Neb. 624, 259 N.W. 649 (1935).

Homestead is limited to one hundred sixty acres in size. Clare v. Fricke, 102 Neb. 486, 167 N.W. 727 (1918).

Extent of homestead is determined by claimant's interest in land, not by fee simple value of premises. Morrill v. Skinner, 57 Neb. 164, 77 N.W. 375 (1898); Corey v. Plummer, 48 Neb. 481, 67 N.W. 445 (1896); Hoy v. Anderson, 39 Neb. 386, 58 N.W. 125 (1894).

6. Rights of surviving spouse

Homestead right of surviving spouse was exempt from judgment lien based on debt contracted after death of the spouse for necessaries of life. Ehlers v. Campbell, 159 Neb. 328, 66 N.W.2d 585 (1954).

Under former law, rights of survivor on death of owner were not limited to two thousand dollars in value where there were no debts. Meisner v. Hill, 92 Neb. 435, 138 N.W. 583 (1912); In re Jurgens' Estate, 87 Neb. 571, 127 N.W. 885 (1910).

7. Liability for debts

Judgment at law for double the amount of money embezzled is not excepted from homestead exemption. Canada v. State, 148 Neb. 115, 26 N.W.2d 509 (1947).

Judgment against surety on bond is a debt within meaning of law. Leman v. Chipman, 82 Neb. 392, 117 N.W. 885 (1908).

Under former law, a homestead of less than two thousand dollars in value could not be disposed of at administrator's sale, either for the discharge of encumbrances thereon, or for the payment of debts against the estate of the decedent. Holmes v. Mason, 80 Neb. 448, 114 N.W. 606 (1908).

Land acquired under federal homestead laws are not liable for debts of patentee contracted before issuance of patent. Jackett v. Bower, 62 Neb. 232, 86 N.W. 1075 (1901); Brandhoefer v. Bain, 45 Neb. 781, 64 N.W. 213 (1895).

Exemption does not extend to debts of subsequent owner. Duell v. Potter, 51 Neb. 241, 70 N.W. 932 (1897).

8. Fraudulent alienation

Conveyance of real estate to daughter and held by daughter as homestead should be set aside in its entirety when conveyed by mother to daughter in fraud of creditors. Reifenrath v. Dover, 132 Neb. 801, 273 N.W. 205 (1937).

Under former law, homestead worth less than two thousand dollars, was not the subject of fraudulent alienation. Cowles v. Cowles, 89 Neb. 327, 131 N.W. 738 (1911).

Homestead is not susceptible of fraudulent alienation. Brown v. Campbell, 68 Neb. 103, 93 N.W. 1007 (1903); Plummer, Perry & Co. v. Rohman, 61 Neb. 61, 84 N.W. 600 (1900); Roberts v. Robinson, 49 Neb. 717, 68 N.W. 1035 (1896); Mundt v. Hagedorn, 49 Neb. 409, 68 N.W. 610 (1896).

Right to claim homestead is not affected by fraudulent intent with which it is conveyed. Munson v. Carter, 40 Neb. 417, 58 N.W. 931 (1894).

9. Priority of liens

Where mortgage on homestead is paid with proceeds of a new loan, new mortgage has prior lien to judgment filed when old mortgage was in force. Goble v. Brenneman, 75 Neb. 309, 106 N.W. 440 (1905); France v. Hohnbaum, 73 Neb. 70, 102 N.W. 75 (1905), 104 N.W. 865 (1905).

Judgment lien is superior to subsequent mortgage lien on anything above debtor's homestead interest. Beach v. Reed, 55 Neb. 605, 76 N.W. 22 (1898).

10. Sale on execution

The purpose of the homestead exemption under this section is to protect a debtor and his or her family in a home from forced sale on execution or attachment. Blankenau v. Landess, 261 Neb. 906, 626 N.W.2d 588 (2001).

Sale on ordinary execution of debtor's homestead, actually occupied as such, will not divest him of title. Van Doren v. Wiedeman, 68 Neb. 243, 94 N.W. 124 (1903); Baumann v. Franse, 37 Neb. 807, 56 N.W. 395 (1893).

11. Equitable relief

Filing objections to confirmation of execution sale of homestead is no bar to subsequent action to remove cloud of sheriff's deed. Kaley v. Eselin, 108 Neb. 544, 188 N.W. 254 (1922).

Equitable relief may be granted to remove apparent lien from homestead. Smith v. Neufeld, 57 Neb. 660, 78 N.W. 278 (1899).

Owner may maintain action to remove cloud from title. Best v. Grist, 1 Neb. Unof. 812, 95 N.W. 836 (1901).

12. Waiver and abandonment

Homestead is defined, but held to have been abandoned. Phifer v. Miller, 153 Neb. 748, 45 N.W.2d 907 (1951).

Right to claim homestead interest was not waived because claimant did not claim interest prior to sale by sheriff in mortgage foreclosure proceedings. J. H. Melville Lumber Co. v. Maroney, 145 Neb. 374, 16 N.W.2d 527 (1944).

Where owner of homestead is elected to state office, and removes to capital city with intention of returning, he has reasonable time after expiration of term to return and occupy homestead without being charged with abandonment thereof. Allen v. Holt County, 81 Neb. 198, 115 N.W. 775 (1908).

A debtor who has acquired a homestead does not lose his right to exemption, where he continues to occupy the property as a home, though by death and the removal of family, he has no one living with him. Palmer v. Sawyer, 74 Neb. 108, 103 N.W. 1088 (1905).

Attempt by wife, after husband has absconded, to negotiate a sale of the homestead does not work an abandonment thereof. National Bank of Commerce v. Chamberlain, 72 Neb. 469, 100 N.W. 943 (1904).

A departure from the homestead for purposes of business, pleasure or health does not constitute an abandonment thereof. Blumer v. Albright, 64 Neb. 249, 89 N.W. 809 (1902).

Right of homestead is personal privilege and will be deemed waived unless asserted before sale, where there has been opportunity to assert right. Curtis v. D. M. Osborne & Co., 63 Neb. 837, 89 N.W. 420 (1902); Brownell & Co. v. Stoddard, 42 Neb. 177, 60 N.W. 380 (1894); Gilbert v. Provident L. & T. Co., 1 Neb. Unof. 282, 95 N.W. 488 (1901).

Where premises had been occupied as homestead, burden is on creditor to show removal and intention to abandon. Union Stock Yards Nat. Bank v. Smout, 62 Neb. 227, 87 N.W. 14 (1901).

Homestead, transferred to wife, does not become liable for debts of husband after losing its homestead character. Bank of Bladen v. David, 53 Neb. 608, 74 N.W. 42 (1898).

Two things must occur to show an abandonment of a homestead, namely, an intent to abandon and actual abandonment. Quigley v. McEvony, 41 Neb. 73, 59 N.W. 767 (1894); Mallard v. First Nat. Bank of North Platte, 40 Neb. 784, 59 N.W. 511 (1894); Omaha Brewing Assn. v. Zeller, 4 Neb. Unof. 198, 93 N.W. 762 (1903).

If occupancy as home by debtor and family continues, transfer of title from husband to wife is not abandonment of homestead right. McHugh v. Smiley, 17 Neb. 626, 24 N.W. 277 (1885).

13. Miscellaneous

Where contract for sale of real estate including homestead is not acknowledged by husband and wife, and is not severable as to homestead and nonhomestead, specific performance will not be required. McIntosh v. Borchers, 196 Neb. 109, 241 N.W.2d 534 (1976).

Notice to sheriff signed by both husband and wife that they claim a homestead in the property levied upon is sufficient to require sheriff to take statutory steps for an ascertainment of the homestead. Bliss v. White, 132 Neb. 651, 272 N.W. 769 (1937).

Homestead interest of surviving spouse of titleholder terminates at death. Lewis v. McAdams, 130 Neb. 62, 263 N.W. 480 (1935), vacating on rehearing, 129 Neb. 490, 262 N.W. 7 (1935).

A fine and costs imposed for a criminal offense create a lien on homestead of convict. Mancuso v. State, 123 Neb. 204, 242 N.W. 430 (1932).

Possession of homestead by widow may be tacked to that of husband to raise bar of statute of limitation. Larson v. Anderson, 74 Neb. 361, 104 N.W. 925 (1905).

Release of homestead right is consideration sufficient to support contract between husband and wife. Racek v. First Nat. Bank of North Bend, 62 Neb. 669, 87 N.W. 542 (1901).

As against heirs, mortgage executed before full compliance with law is void. Marley v. Sturkert, 62 Neb. 163, 86 N.W. 1056 (1901).

Right of exemption depends upon situation at time judgment is recovered and not when debt was created. Paxton v. Sutton, 53 Neb. 81, 73 N.W. 221 (1897).

General principles of equity govern claimants of homestead. Walsh v. Walsh, 4 Neb. Unof. 683, 95 N.W. 1025 (1903).

Provisions of this chapter restraining alienation of homestead are not repugnant to treaty with Norway and inoperative. Todok v. Union State Bank, 281 U.S. 449 (1930), reversing Engen v. Union State Bank of Harvard, 118 Neb. 105, 223 N.W. 664 (1929).

Definition of homestead under this section is not applicable to allotments made to Indians under federal laws. United States v. Thurston County, 54 F.Supp. 201 (D. Neb. 1944).