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:Laws 1879, § 1, p. 57; R.S.1913, § 3076; C.S.1922, § 2816; C.S.1929, § 40-101; R.S.1943, § 40-101; Laws 1957, c. 153, § 3, p. 498; Laws 1973, LB 15, § 1; Laws 1980, LB 940, § 3; Laws 1986, LB 999, § 2; Laws 1997, LB 372, § 4; Laws 2007, LB237, § 1.

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).

40-102. Homestead; selection of property.

(1) If the claimant is married, the homestead may be selected from the separate property of the claimant or, with the consent of the claimant's spouse, from the separate property of the claimant's spouse.

(2) If the claimant is not married, the homestead may be selected from any of his or her property.

Source:Laws 1879, § 2, p. 58; R.S.1913, § 3077; C.S.1922, § 2817; C.S.1929, § 40-102; R.S.1943, § 40-102; Laws 2010, LB907, § 1; Laws 2014, LB964, § 1.

Annotations

1. Selection

2. Property available

1. Selection

Homestead may be selected from property held as tenants in common. Ehlers v. Campbell, 159 Neb. 328, 66 N.W.2d 585 (1954).

Homestead may be selected from property held in joint ownership by husband and wife. Edgerton v. Hamilton County, 150 Neb. 821, 36 N.W.2d 258 (1949).

Formal declaration of selection of land as homestead is not necessary. Meyer v. Platt, 137 Neb. 714, 291 N.W. 86 (1940).

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).

Pleading was sufficient to set forth selection of homestead from wife's separate property. Williams v. Williams, 106 Neb. 584, 184 N.W. 114 (1921).

2. Property available

While a homestead cannot be claimed in two separate properties at the same time, a homestead claimant who is about to lose his homestead as the result of foreclosure proceeding may abandon it and establish a new homestead in other property. Hawley v. Arnold, 137 Neb. 238, 288 N.W. 823 (1939).

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

Homestead right in wife's separate property is dependent upon her consent thereto. Zeng v. Jacobs, 101 Neb. 645, 164 N.W. 656 (1917); Klamp v. Klamp, 58 Neb. 748, 79 N.W. 735 (1899).

Widow living alone cannot acquire homestead that will descend to her heirs as against creditors. Brusha v. Phipps, 86 Neb. 822, 126 N.W. 856 (1910).

Where husband deserts his family, wife is entitled to his homestead exemption. First Nat. Bank of Tekamah v. McClanahan, 83 Neb. 706, 120 N.W. 185 (1909).

40-103. Homestead; exemption; when inoperative.

The homestead is subject to execution or forced sale in satisfaction of judgments obtained (1) on debts secured by mechanics', laborers', or vendors' liens upon the premises and (2) on debts secured by mortgages or trust deeds upon the premises executed and acknowledged by both husband and wife, or an unmarried claimant.

Source:Laws 1879, § 3, p. 58; R.S.1913, § 3078; C.S.1922, § 2818; C.S.1929, § 40-103; R.S.1943, § 40-103; Laws 1997, LB 372, § 5.

Annotations

1. Lien

2. Exceptions

3. Constitutionality

1. Lien

Lack of statutory acknowledgment to an improvement mortgage on homestead does not preclude enforcement of mortgage. Miles Homes, Inc. v. Muhs, 184 Neb. 617, 169 N.W.2d 691 (1969).

Homestead is subject to debts specified in this section. Schroeder v. Ely, 161 Neb. 262, 73 N.W.2d 172 (1955).

Fine and costs imposed for criminal offense create lien on homestead of convict and homestead is subject to sale under execution issued on such judgment for fine and cost. Mancuso v. State, 123 Neb. 204, 242 N.W. 430 (1932).

Married man informing lender that he intended to use borrowed money to pay for homestead is not sufficient to entitle lender to lien. Engaard v. Schmidt, 103 Neb. 369, 171 N.W. 905 (1919).

Purchase money mortgage is valid as against homestead claim. Peterson v. Fisher, 85 Neb. 745, 124 N.W. 145 (1910).

Judgment for alimony is lien on homestead, title whereof is in husband. Best v. Zutavern, 53 Neb. 604, 74 N.W. 64 (1898).

Homestead is subject to sale on mechanics' lien. Phelps & Bigelow Windmill Co. v. Shay, 32 Neb. 19, 48 N.W. 896 (1891).

2. Exceptions

A vendor's lien is one of the exceptions to homestead statute. Corn Belt Products Co. v. Mullins, 172 Neb. 561, 110 N.W.2d 845 (1961).

Exceptions are set forth which permit sale of homestead. Ehlers v. Campbell, 159 Neb. 328, 66 N.W.2d 585 (1954).

Exceptions referred to in section 40-117 are mechanics', laborers', and vendors' liens, and mortgages duly executed. Judson v. Creighton, 88 Neb. 37, 128 N.W. 651 (1910).

Provisions of civil code relating to exemptions have no application to property exempt as a homestead. Fox v. McClay, 48 Neb. 820, 67 N.W. 888 (1896).

As in the case of a mortgage, there is no homestead exemption for debts secured by a trust deed, foreclosed in the same manner as a mortgage, and executed and acknowledged by both husband and wife. Travelers Ins. Co. v. Nelson, 4 Neb. App. 551, 546 N.W.2d 333 (1996).

3. Constitutionality

This section neither contravenes 11 U.S.C. sec. 522(f)(1) nor violates Neb. Const., art. I, sec. 3, or art. III, sec. 18. Federal Land Bank of Omaha v. Blankemeyer, 228 Neb. 249, 422 N.W.2d 81 (1988).

40-104. Homestead; how conveyed or encumbered; assertion of claim of invalidity of conveyance.

Except as otherwise provided in this section, the homestead of a married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both spouses. The interest of either or both spouses may be conveyed or encumbered by a conservator acting in accordance with the provisions of the Nebraska Probate Code and may also be conveyed or encumbered by an attorney in fact appointed by and acting on behalf of either spouse under any power of attorney which grants the power to sell and convey real property. Any claim of invalidity of a deed of conveyance of homestead property because of failure to comply with the provisions of this section must be asserted within the time provided in sections 76-288 to 76-298.

A purchase agreement or contract for sale of homestead property signed by both spouses does not require acknowledgment to be enforceable.

Source:Laws 1879, § 4, p. 58; R.S.1913, § 3079; C.S.1922, § 2819; C.S.1929, § 40-104; Laws 1935, c. 91, § 1, p. 312; C.S.Supp.,1941, § 40-104; R.S.1943, § 40-104; Laws 1947, c. 243, § 13, p. 767; Laws 2006, LB 409, § 1; Laws 2015, LB253, § 1.

Cross References

For provisions as to mortgaging interest in homestead of incompetent spouse, see sections 42-501 to 42-503.

Nebraska Probate Code, see section 30-2201.

Annotations

1. Signature to instrument

2. Acknowledgment

3. Conveyance or encumbrance

4. Oral contract to convey

5. Ratification and estoppel

6. Miscellaneous

1. Signature to instrument

Any interest defendant might have had under the homestead law became merged in her new title as surviving joint tenant, and this section was not applicable to the option to sell. David v. Tucker, 196 Neb. 575, 244 N.W.2d 197 (1976).

Deed to convey homestead is void if not executed by both husband and wife. Krueger v. Callies, 190 Neb. 376, 208 N.W.2d 685 (1973).

Where the wife of an insane husband did not join with the guardian, who had been duly authorized by the court, in the execution of a mortgage upon the homestead property, such mortgage was not enforceable as a lien against the homestead. Evans v. First Nat. Bank, 138 Neb. 727, 295 N.W. 381 (1940).

Execution of joint will by husband and wife does not operate as a conveyance of homestead. Abboud v. Boock, 137 Neb. 652, 290 N.W. 713 (1940).

Mortgage on homestead to which signature of wife is forged is void, although executed and acknowledged by husband. Bacon v. Western Securities Co., 125 Neb. 812, 252 N.W. 317 (1934).

Contract for sale of homestead not signed by vendor's wife is unenforceable. Storrs v. Bollinger, 111 Neb. 307, 196 N.W. 512 (1923).

Homestead may be conveyed by surviving spouse. Hill v. Naylor, 99 Neb. 791, 157 N.W. 922 (1916).

Consort need not sign purchase money mortgage on homestead. Jackson v. Phillips, 57 Neb. 189, 77 N.W. 683 (1898); Prout v. Burke, 51 Neb. 24, 70 N.W. 512 (1897); Irwin v. Gay, 3 Neb. Unof. 153, 91 N.W. 197 (1902).

Deed from husband to wife need not be signed by wife. Furrow v. Athey, 21 Neb. 671, 33 N.W. 208 (1887).

2. Acknowledgment

A valid acknowledgment of both spouses must appear on the face of an instrument purporting to convey or encumber the homestead of a married person or the instrument is void. Mutual of Omaha Bank v. Watson, 297 Neb. 479, 900 N.W.2d 545 (2017).

An acknowledgment is essential when conveying a homestead. An instrument purporting to convey or encumber the homestead of a married person is void if it is not executed and acknowledged by both the husband and the wife. Mutual of Omaha Bank v. Watson, 297 Neb. 479, 900 N.W.2d 545 (2017).

A contract to convey the homestead of a married person is absolutely void and unenforceable unless validly executed and acknowledged by both husband and wife. Christensen v. Arant, 218 Neb. 625, 358 N.W.2d 200 (1984).

Where a contract for the sale of real estate includes both homestead and nonhomestead property, but is not duly executed and acknowledged, specific performance may be obtained of the nonhomestead land only if the contract is clearly severable as to the homestead and nonhomestead property. Struempler v. Peterson, 203 Neb. 173, 277 N.W.2d 691 (1979).

An option to purchase land constituting a homestead, or covering nonseverable homestead and other land, is void when not executed and acknowledged by both husband and wife. Struempler v. Peterson, 190 Neb. 133, 206 N.W.2d 629 (1973).

Lack of statutory acknowledgment to an improvement mortgage on homestead does not preclude enforcement of mortgage. Miles Homes, Inc. v. Muhs, 184 Neb. 617, 169 N.W.2d 691 (1969).

Requirement that wife join in execution and acknowledgment of conveyance applies to easement across homestead property. Martin v. Norris Public Power Dist., 175 Neb. 815, 124 N.W.2d 221 (1963).

A contract to sell land constituting the homestead is void where wife does not appear before notary and acknowledge the execution thereof. Trowbridge v. Bisson, 153 Neb. 389, 44 N.W.2d 810 (1950).

Instrument, purporting to encumber homestead and falsely certifying that wife acknowledged same, was void. Storz v. Clarke, 117 Neb. 488, 221 N.W. 101 (1928).

Mortgage on homestead, acknowledged before stockholder of bank beneficially interested, was void. Anderson v. Cusack, 115 Neb. 643, 214 N.W. 73 (1927).

Alteration of mortgage covering homestead property by raising the amount at request of husband alone rendered mortgage void, since mortgage as altered was not acknowledged by wife. David City Building & Loan Assn. v. Fast, 114 Neb. 621, 208 N.W. 964 (1926).

Officer and stockholder of mortgagee corporation was disqualified to take acknowledgment of mortgage on homestead. Trevett, Mattis & Baker Co. v. Reagor, 112 Neb. 470, 200 N.W. 449 (1924).

A contract for the sale of homestead property signed by both husband and wife, though not acknowledged, when made at the same time with a warranty deed to the property, which deed is executed and duly acknowledged by both, and which is delivered in escrow, is a valid contract. Farmers Investment Co. v. O'Brien, 109 Neb. 19, 189 N.W. 291 (1922).

Contract signed by husband and wife, but wife's acknowledgment certified without inquiry as to whether it was her voluntary act, coercion being indicated, is void. Ambler v. Jones, 102 Neb. 40, 165 N.W. 886 (1917).

Contract to convey signed by husband and wife, but not acknowledged, is void. Anderson v. Schertz, 94 Neb. 390, 143 N.W. 238 (1913).

Conveyance of homestead is void if not signed and acknowledged by both husband and wife. Kimmerly v. McMichael, 83 Neb. 789, 120 N.W. 487 (1909); Thompson v. Foken, 81 Neb. 261, 115 N.W. 770 (1908); Weatherington v. Smith, 77 Neb. 369, 112 N.W. 566 (1906); Interstate S. & L. Assn. v. Strine, 58 Neb. 133, 78 N.W. 377 (1899); Havemeyer v. Dahn, 48 Neb. 536, 67 N.W. 489 (1896); Horbach v. Tyrrell, 48 Neb. 514, 67 N.W. 485 (1896); Hedbloom v. Pierson, 2 Neb. Unof. 799, 90 N.W. 218 (1902).

Contract for sale of homestead, not acknowledged by vendors, applies to whole tract, regardless of value, and cannot be enforced. Lichty v. Beale, 75 Neb. 770, 106 N.W. 1018 (1906); Solt v. Anderson, 63 Neb. 734, 89 N.W. 306 (1902); Clarke v. Koenig, 36 Neb. 572, 54 N.W. 842 (1893).

Fact of acknowledgment should appear from certificate of officer. Solt v. Anderson, 71 Neb. 826, 99 N.W. 678 (1904).

A party who has a direct pecuniary interest in the transaction is disqualified to take an acknowledgment. Watkins v. Youll, 70 Neb. 81, 96 N.W. 1042 (1903); Wilson v. Griess, 64 Neb. 792, 90 N.W. 866 (1902).

Nonperformance of such contract not acknowledged will not afford a cause of action for damages. Meek v. Lange, 65 Neb. 783, 91 N.W. 695 (1902).

The acknowledgment of a wife to a deed conveying the homestead is essential to its validity. Blumer v. Albright, 64 Neb. 249, 89 N.W. 809 (1902).

The certificate of acknowledgment of an officer having authority to take acknowledgments cannot be impeached by showing that the officer irregularly performed his duty. Council Bluffs Savings Bank v. Smith, 59 Neb. 90, 80 N.W. 270 (1899); Phillips v. Bishop, 35 Neb. 487, 53 N.W. 375 (1892).

Instrument purporting to convey homestead may be invalid for want of mental capacity of one of parties to make acknowledgment. Dewey v. Allgire, 37 Neb. 6, 55 N.W. 276 (1893).

Conveyance of homestead from one spouse to other does not require that both execute and acknowledge instrument. Troyer v. Mundy, 60 F.2d 818 (8th Cir. 1932).

Presumption arising from notary's certificate, that acknowledgment of husband and wife to mortgage on homestead was taken as certified, was not overcome by evidence. Hamling v. Aetna Life Insurance Co., 34 F.2d 112 (8th Cir. 1929).

3. Conveyance or encumbrance

Transfer on death deeds are not subject to the requirements of this section, because they are not encumbrances or conveyances of the homestead by a married person. Chambers v. Brinkenberg, 309 Neb. 888, 963 N.W.2d 37 (2021).

Purchase agreement for sale of real property was not void as unacknowledged encumbrance of homestead. Overman v. Brown, 220 Neb. 788, 372 N.W.2d 102 (1985).

Even though mortgage was not properly acknowledged, it was valid as to land other than the homestead. Mazanec v. Lincoln Bonding & Ins. Co., 169 Neb. 629, 100 N.W.2d 881 (1960).

Lease for right-of-way across homestead for road is void unless executed and acknowledged by both husband and wife. Eng v. Olsen, 99 Neb. 183, 155 N.W. 796 (1915).

Lease of homestead for five years is conveyance and void unless executed and acknowledged by both husband and wife. Kloke v. Wolff, 78 Neb. 504, 111 N.W. 134 (1907).

Power of attorney to convey homestead, signed by husband alone, is void. Norbury v. Harper, 70 Neb. 389, 97 N.W. 438 (1903).

Where a mortgage on the homestead is paid and husband takes assignment of security, a reassignment of the security for a new debt constitutes an encumbrance and is not enforceable. Downing v. Hartshorn, 69 Neb. 364, 95 N.W. 801 (1903).

Contract of purchase of premises occupied as homestead cannot be assigned, unless signed and acknowledged by husband and wife. Rawles v. Reichenbach, 65 Neb. 29, 90 N.W. 943 (1902).

An amendment to restrictive covenants on land is not an encumbrance on the homestead within the meaning of this section. Countryside Developers, Inc. v. Peterson, 9 Neb. App. 798, 620 N.W.2d 124 (2000).

4. Oral contract to convey

That premises were parents' homestead does not make void an oral contract to give them to son for care during parents' lifetime. Denesia v. Denesia, 116 Neb. 789, 219 N.W. 142 (1928), overruling Teske v. Dittberner, 70 Neb. 544, 98 N.W. 57 (1903).

Oral contract to leave all of property at death to another in consideration of services rendered during lifetime of promisor is not void as to homestead property. Moline v. Carlson, 92 Neb. 419, 138 N.W. 721 (1912).

5. Ratification and estoppel

Where deed is executed and acknowledged by both husband and wife covering homestead property, conveyance is valid even though contract for exchange for other property is not signed by wife. Johnson v. Kelley, 112 Neb. 60, 198 N.W. 567 (1924).

Where wife voluntarily joins in conveyance of homestead, she is thereafter estopped to assert any right or title therein. Laughlin v. Gardiner, 104 Neb. 237, 176 N.W. 727 (1920).

Estoppel cannot supply statutory requirements. Davis v. Thomas, 66 Neb. 26, 92 N.W. 187 (1902); France v. Bell, 52 Neb. 57, 71 N.W. 984 (1897).

6. Miscellaneous

Issue preclusion and judicial estoppel may supply the statutory requirements set forth in this section for encumbrances of a homestead. Jordan v. LSF8 Master Participation Trust, 300 Neb. 523, 915 N.W.2d 399 (2018).

In cases where a contract of sale, deed of conveyance, or encumbrance of a homestead was found void for failing to comply with execution requirements, the homestead right already existed. But when a purchaser must obtain a purchase-money mortgage to acquire real property, the purchaser cannot show a present right of occupancy or possession until after he or she gives the lender the security interest. Accordingly, it is the general rule that restrictions on the encumbrance of a homestead without a spouse's consent or signature do not invalidate a security interest in the property that a purchaser concurrently gives for its purchase price. Mutual of Omaha Bank v. Watson, 297 Neb. 479, 900 N.W.2d 545 (2017).

This section applies to contracts for sale as well as to conveyances or encumbrances. The classification made in this section, that is, the line drawn between married and nonmarried property owners, is one rationally related to a legitimate governmental end. Landon v. Pettijohn, 231 Neb. 837, 438 N.W.2d 757 (1989).

Issue of homestead was not raised in trial court and hence could not be raised on appeal. Meyer v. Meyer, 180 Neb. 379, 142 N.W.2d 922 (1966).

Where husband was a minor and rescinded contract, mortgage on homestead property was void. Smith v. Wade, 169 Neb. 710, 100 N.W.2d 770 (1960).

Married man cannot by his own act or neglect deprive wife of homestead right. Sanne v. Sanne, 167 Neb. 683, 94 N.W.2d 367 (1959).

Homestead may be waived by abandonment, even though conveyance thereof was not acknowledged by both husband and wife. Phifer v. Miller, 153 Neb. 748, 45 N.W.2d 907 (1951).

A homestead, once established, is presumed to continue as such. The burden of proving waiver, loss, or abandonment rests on the party asserting same. Karls v. Nichols, 148 Neb. 712, 28 N.W.2d 595 (1947).

Nonresident alien wife is not required to join in conveyance of property resided on by husband alone. Engen v. Union State Bank of Harvard, 121 Neb. 257, 236 N.W. 741 (1931).

Married woman, joining husband in note and mortgage for his preexisting debt, under agreement that sole purpose was to bind her dower and homestead rights, is not personally liable on note. People's State Bank v. Smith, 120 Neb. 29, 231 N.W. 141 (1930).

Under former law, mortgage on homestead property to the extent of two thousand dollars was valid as against claim of preference under federal bankruptcy act. Herring v. Whitford, 119 Neb. 733, 232 N.W. 581 (1930); 119 Neb. 725, 230 N.W. 665 (1930).

Wife's homestead right, in husband's land occupied by family, is real estate. Mead v. Polly, 119 Neb. 206, 228 N.W. 369 (1929).

Wife cannot withdraw from homestead selected from her separate property and sue husband in ejectment. Williams v. Williams, 106 Neb. 584, 184 N.W. 114 (1921).

Fact that husband and wife are not living together, or insanity of one, does not affect rule. In re Estate of Robertson, Holyoke v. Bishop, 86 Neb. 490, 125 N.W. 1093 (1910); France v. Bell, 52 Neb. 57, 71 N.W. 984 (1897); Whitlock v. Gosson, 35 Neb. 829, 53 N.W. 980 (1892).

Mortgage upon homestead executed by both husband and wife is valid, notwithstanding it was delivered by wife without compliance with instructions given by husband where mortgagee was not aware of conditions. McLanahan v. Chamberlain, 85 Neb. 850, 124 N.W. 684 (1910).

Homestead rights cannot be divested by acts of husband or wife alone. Miller v. Paustian, 79 Neb. 196, 112 N.W. 342 (1907); Nat. Bank of Commerce of Kansas City, Mo. v. Chamberlain, 72 Neb. 469, 100 N.W. 943 (1904); Van Doren v. Wiedeman, 68 Neb. 243, 94 N.W. 124 (1903); Morrill v. Skinner, 57 Neb. 164, 77 N.W. 375 (1898); Silk v. McDonald, 4 Neb. Unof. 34, 93 N.W. 212 (1903).

One who fraudulently puts in currency a mortgage on homestead without procuring wife to join cannot gain an advantage to himself. Pitman v. Mann, 71 Neb. 257, 98 N.W. 821 (1904).

Statutory provision for conveyance or encumbrance of homestead is exclusive. Buettgenbach v. Gerbig, 2 Neb. Unof. 889, 90 N.W. 654 (1902).

Provision requiring acknowledgment of conveyance by both husband and wife is not repugnant to treaty rights with Norway. 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).

Occupancy for purposes of a home is an imperative condition of homestead. United States v. Thurston County, 54 F.Supp. 201 (D. Neb. 1944).

40-105. Homestead; selection; procedure.

When an execution for the enforcement of a judgment obtained in a case not within the classes enumerated in section 40-103 is levied upon the lands or tenements of a claimant, the claimant may at any time prior to confirmation of sale apply to the district court in the county in which the homestead is situated for an order to determine whether or not such lands or tenements, or any part thereof, are exempt as a homestead and, if so, the value thereof.

Source:Laws 1879, § 5, p. 58; R.S.1913, § 3080; C.S.1922, § 2820; C.S.1929, § 40-105; R.S.1943, § 40-105; Laws 1947, c. 153, § 1, p. 420; Laws 2010, LB907, § 2; Laws 2014, LB964, § 2.

Annotations

Application for determination of homestead exemption was properly made. Sanne v. Sanne, 167 Neb. 683, 94 N.W.2d 367 (1959); Schroeder v. Ely, 161 Neb. 262, 73 N.W.2d 172 (1955).

Homestead exemption is not a proper subject for consideration upon confirmation of judicial sale. Enquist v. Enquist, 146 Neb. 708, 21 N.W.2d 404 (1946).

Where husband and wife reside upon homestead and wife dies, homestead character of the land continues, and, although husband may have no children or dependents, he may still claim the benefit of the homestead laws. Bartels v. Seefus, 132 Neb. 841, 273 N.W. 485 (1937).

Objection to confirmation of execution sale of homestead is no bar to action to remove cloud of sheriff's deed, or other appropriate remedy. Kaley v. Eselin, 108 Neb. 544, 188 N.W. 254 (1922).

Administrator's sale of homestead is not void, after confirmation, for failure to segregate homestead interest and to order it preserved. Pohlenz v. Panko, 106 Neb. 156, 182 N.W. 972 (1921).

There is no provision for setting off of the homestead except when it is sought to be taken on execution. Sanford v. Anderson, 69 Neb. 249, 95 N.W. 632 (1903).

The homestead character of real estate upon which an attachment has been levied is not a proper question to be heard and determined upon motion to discharge attachment. Quigley v. McEvony, 41 Neb. 73, 59 N.W. 767 (1894).

40-106. Homestead; selection; application; contents.

The application must show (1) the fact that an execution has been levied upon property which is claimed as a homestead, (2) the name of the judgment creditor, (3) the facts which give rise to a homestead exemption, and (4) the value of the homestead.

Source:Laws 1879, § 6, p. 59; R.S.1913, § 3081; C.S.1922, § 2821; C.S.1929, § 40-106; R.S.1943, § 40-106; Laws 1947, c. 153, § 2, p. 420.

Annotations

Procedure for selection of homestead was in conformity with statute. Sanne v. Sanne, 167 Neb. 683, 94 N.W.2d 367 (1959).

40-107. Homestead; selection; application; filing; service.

The application must be filed with the clerk of the district court, and a copy thereof, with notice of the time and place of hearing, be served upon the judgment creditor or his attorney of record and the officer making the levy at least ten days before the hearing. The hearing may be had before or at the hearing on confirmation of sale.

Source:Laws 1879, § 7, p. 59; R.S.1913, § 3082; C.S.1922, § 2822; C.S.1929, § 40-107; R.S.1943, § 40-107; Laws 1947, c. 153, § 3, p. 421.

Annotations

Procedure for selection of homestead was in conformity with statute. Sanne v. Sanne, 167 Neb. 683, 94 N.W.2d 367 (1959).

40-108. Homestead; selection; hearing.

At the hearing the court, upon proof of the service of such application and notice, shall determine whether or not such land is subject to the homestead exemption. If it is not, the court shall dismiss the application. If it is, the court shall further determine: (1) The extent and value of the homestead; and (2) if of greater value than the homestead exemption, whether or not the land claimed as a homestead can be divided without material injury. In the event the land which is determined by the court to be subject to the homestead exemption has already been sold on execution by the sheriff, the sale shall be set aside and the judgment creditor shall be assessed the costs of the sale and of the hearing, unless such land was sold for more than the homestead exemption.

Source:Laws 1879, § 8, p. 59; R.S.1913, § 3083; C.S.1922, § 2823; C.S.1929, § 40-108; R.S.1943, § 40-108; Laws 1947, c. 153, § 4, p. 421.

Annotations

Procedure for selection of homestead was in conformity with statute. Sanne v. Sanne, 167 Neb. 683, 94 N.W.2d 367 (1959).

Hearing and determination of homestead was had under this section. Schroeder v. Ely, 161 Neb. 262, 73 N.W.2d 172 (1955).

40-109. Repealed. Laws 1947, c. 153, § 7.

40-110. Homestead; when set off; selection of other lands.

If from the evidence it appears that the land upon which the execution has been levied can be divided without material injury, the court shall, by an order, set off to the claimant so much of the land, including the residence, not exceeding the quantity prescribed in section 40-101, as will amount in value to the homestead exemption, and the execution may be enforced against the remainder of the land, except that if the residence and the ground on which it is situated, with five acres surrounding the same, amount in value to more than the homestead exemption, other lands may be selected on which no building or residence stands as the homestead for the debtor and his or her family.

Source:Laws 1879, § 10, p. 59; R.S.1913, § 3085; C.S.1922, § 2825; Laws 1927, c. 111, § 1, p. 315; C.S.1929, § 40-110; R.S.1943, § 40-110; Laws 1947, c. 153, § 5, p. 421; Laws 1986, LB 999, § 3.

Annotations

If property is not capable of division, exemption should be granted from proceeds of sale. Schroeder v. Ely, 161 Neb. 262, 73 N.W.2d 172 (1955).

40-111. Indivisible homestead; sale; conditions.

If from the evidence it appears that the land upon which the execution has been levied cannot be divided, the court shall, unless a sale has already been held, make an order directing the sale of the land under the execution; but at such sale no bid must be received unless it exceeds the amount of the homestead exemption. Where a sale has already been held, the proceeds of sale to an amount equaling the homestead exemption shall be set off to the judgment debtor as exempt, and the balance distributed as provided by order of the court.

Source:Laws 1879, § 11, p. 60; R.S.1913, § 3086; C.S.1922, § 2826; C.S.1929, § 40-111; R.S.1943, § 40-111; Laws 1947, c. 153, § 6, p. 422.

Annotations

Bid cannot be received unless it exceeds amount of homestead exemption and other existing valid liens. Sanne v. Sanne, 167 Neb. 683, 94 N.W.2d 367 (1959).

40-112. Indivisible homestead; sale; proceeds; disposition.

If the sale is made, the proceeds thereof, to the amount of the homestead exemption, must be paid to the claimant, and the balance applied to the satisfaction of the execution.

Source:Laws 1879, § 12, p. 60; R.S.1913, § 3087; C.S.1922, § 2827; C.S.1929, § 40-112; R.S.1943, § 40-112.

Annotations

Sheriff's deed on execution sale of homestead passes title to purchaser, where homestead interest is extinguished by mortgage thereof. Hess v. Eselin, 110 Neb. 590, 194 N.W. 469 (1923).

40-113. Indivisible homestead; sale; surplus proceeds; protection.

The money paid to the claimant is entitled, for the period of six months thereafter, to the same protection against legal process and the voluntary disposition of the claimant which the law gives to the homestead.

Source:Laws 1879, § 13, p. 60; R.S.1913, § 3088; C.S.1922, § 2828; C.S.1929, § 40-113; R.S.1943, § 40-113.

Annotations

Sheriff's deed on execution sale of homestead passes title to purchaser, where homestead interest is extinguished by mortgage thereof. Hess v. Eselin, 110 Neb. 590, 194 N.W. 469 (1923).

40-114. Repealed. Laws 1947, c. 153, § 7.

40-115. Repealed. Laws 2014, LB 964, § 4.

40-116. Homestead; protection of surplus after execution sale.

If the homestead be conveyed by the claimant, or sold for the satisfaction of any lien mentioned in section 40-103, the proceeds of such sale, beyond the amount necessary to the satisfaction of such lien, and not exceeding the amount of the homestead exemption, shall be entitled, for the period of six months thereafter, to the same protection against legal process and the voluntary disposition of the claimant which the law gives to the homestead. The sale and disposition of one homestead shall not be held to prevent the selection or purchase of another, as provided in sections 40-101 to 40-116.

Source:Laws 1879, § 16, p. 61; R.S.1913, § 3091; C.S.1922, § 2831; C.S.1929, § 40-116; R.S.1943, § 40-116.

Annotations

Protection accorded to the proceeds of the sale of a homestead applies to property received in exchange for the homestead, not exceeding in value the amount of the exemption. Meyer v. Platt, 137 Neb. 714, 291 N.W. 86 (1940).

Under former law, proceeds arising from sale of homestead, not exceeding two thousand dollars, was protected for period of six months, to same extent as homestead. Corey v. Plummer, 48 Neb. 481, 67 N.W. 445 (1896); Prugh v. Portsmouth Savings Bank, 48 Neb. 414, 67 N.W. 309 (1896); Scheel v. Lackner, 4 Neb. Unof. 221, 93 N.W. 741 (1903).

40-117. Repealed. Laws 1974, LB 354, § 316.

40-118. Transferred to section 61-105.