Christiancy J.:
Eight questions are reserved in this case for our opinion. These questions all relate to the exemption of a homestead from forced sale on execution. The debt due to the execution creditor accrued in April, 1857, since the adoption of the present Constitution; and these questions Involve the construction of the sixteenth article of the ■Constitution, exempting a homestead, and the act of March -25th, 1848, upon the same subject. These questions may be more satisfactorily answered by taking a general view of the statute and the Constitution, and the extent to [498]*498which the former has been repealed or modified by the latter.
So far as the Constitution, in any of its provisions, is repugnant to the statute, the latter is repealed by it, as to all oases where the debt was contracted after the adoption of the Constitution. But, so far as the provisions of the statute may operate in subordination to the Constitution, and as a mode of carrying into effect the Constitutional exemption of a homestead, without conflicting in any way with the constitutional right to the same, the statute is still in force.
Such I understand to be the rule expressly declared by the first section of the schedule to the Constitution, and such, I think, must have been the rule without such express provision.
First. As to the Icind or description of a homestead to be exempted. The statute and the Constitution substantially agree in the description of the property to be exempt as a homestead, with the single exception of its value. Under the statute, the property described was exempt without reference to its value, and under it the debtor might withhold from his creditors, property worth a hundred thousand dollars or more, while by this means his . creditors might be utterly ruined; while many of them might bo poor without a homestead of their own, and who would thus be deprived of the means of obtaining onej and others who relied upon the money due from him to pay for homesteads which they' had purchased, might be turned homeless into the street, the debtor in the meantime being allowed to occupy and appropriate to himself a princely mansion, with expensive out buildings and improvements; sufficient, if sold, to purchase a comfortable homestead for himself and for each of these creditors. Injustice so glaring, inequality so gross, could not long be tolerated in any government making any pretensions to an enlightened and impartial administration of justice.
[499]*499To remedy this injustice, and at the same time to secure a homestead for the necessary comfort of a family, the Constitution, which was framed only two years after this statute, while it exempted a home'stead of the same description, in other respects, as that mentioned in the statute, at the same time limited this constitutional exemption to homesteads '•‘■not exceeding in value fifteen hundred dollars.” I speak now only of such homestead as the Constitution of its own force exempts, ev nomine, without the aid of legislation.
It is contended by complainant’s counsel, that the phrase “not exceeding fifteen hundred dollars,” is not to be construed as a limitation upon the power of the Legislature, but that the intention of the Constitution is only to require that a homestead to that amount, at least, shall be exempt at all events, leaving the Legislature to exempt to a greater amount if they should see fit; and hence, that it is not ■repugnant to the law of 1848, and that both may stand together. This construction would be unreasonable in itself, and contrary to the natural import of the language. To support such a construction, the Constitution should read, '■'•not less than” (instead of “not exceeding”) “fifteen hundred dollars.”
We are all agreed that the sum mentioned in the Constitution is a limitation; that no homestead can be exempt as an entirety which, at the time it is first claimed as a homestead, is worth a greater amount; and that, therefore, the Constitution is thus far repugnant to the statute, and to this extent repeals it.
It is also clear that if a homestead is within the constitutional quantity, but exceeds the value of fifteen hundred dollars, it may be reduced in quantity so as to bring it within the required amount; provided it can be so reduced by division as to leave a homestead within the specified value,. without cutting off any part of that which in fact goes to constitute it a homestead; in other words, [500]*500so as to leave the dwelling house, necessary out buildings, and appurtenances. And, in such case, the homestead, when so reduced, would be exempt, while the balance might be sold on execution. The mode of selecting and defining the homestead, in such a case, will be discussed when we come to that branch of the case.;
But if, when reduced as far as divisible within the principles above expressed, it still exceed the value of fifteen hundred dollars, can it, under the Constitution alone, without further legislation, be further divided; or can the courts in any way secure to the debtor a benefit equal to the fifteen hundred dollars? We think not. This question has been so expressly decided in Iowa, under a statute which, so far as the present case is involved, is a copy of our statute of 1848, except that the value of the homestead is limited to five hundred dollars: thus presenting the question substantially as it is presented by our Constitution. — See Helfenstein v. Cave, 3 Iowa, 281.
We fully admit that the constitutional provision is an express prohibition against a forced sale on execution, of the homestead which it describes; and, as such prohibition that it needs no legislation to give it effect. And if the tract out of which a homestead is claimed consist of a greater quantity, or be of greater value than allowed by the Constitution, yet if it be one which includes a constitutional homestead, and from which the right of selection is given, though further legislation might be necessary in order to enable the debtor to make a valid selection, it would be the duty of the court to protect the right, till such necessary legislation should be had; to see that the prohibition of the Constitution was not violated, and that no sale should be made under execution which would take away this constitutional right of selection. The neglect of the Legislature, in such case, to perform its duty, Would not authorize the courts to neglect theirs.
But the Constitution has only exempted a homestead as [501]*501an entirety; not a part of, or an undivided interest in, a homestead; and no latitude of construction can convert or pervert the language into an exemption of fifteen hundred dollars in money, in lieu or compensation of a homestead. It is the land, including the dwelling house and appurtenances, and constituting a homestead in fact, owned and occupied by the debtor, and nothing- else, which the Constitution exempts. And to bring it within the designation of a homestead, which the Constitution, of its own force, exempts, it must possess all the descriptive features of the homestead described in the Constitution as exempt. These are as follows: 1st. It must contain the dwelling house and its appurtenances, without which it could not be a homestead in fact, under any definition. 2d. It must not exceed the quantity limited by the Constitution. 3d. It must be owned by the party claiming it. 4th. It must be occupied by him as a homestead; and 5th, it must not exceed in value fifteen hundred dollars. The last requisite is just as much matter of description as either of the others. If it be said that, being a limitation it is not therefore descriptive, then, by the same reasoning, the limitation as to quantity is not descriptive; and the exemption would be unlimited. There can be no more reason for treating the quantity, the ownership, or the occupancy, as descriptive, than the value.
If, then, when reduced in quantity as far as divisible, without cutting off any part of what is essential to constitute it a homestead — of what is necessary to its ordinary use as such — it still exceeds the specified value, it is not one of the homesteads, the forced sale of which is prohibited by the Constitution; and can not, therefore, be exempt by the operation of that instrument alone. The Constitution has exempted a homestead of a certain description. Where the homestead does not answer this description, it is competent for the Legislature to exempt something out of it, or in lieu of it, as an equivalent in value. [502]*502This would not be contrary to the Constitution, but in analogy to it. But what this equivalent should be, whether a part of the premises, their use for a certain time, or so much cash, as part of the proceeds of a sale, is matter for legislative, not for judicial, discretion. It is not for the courts to remedy all the inequalities, real or imaginary, of the Constitution or the statutes.
The premises claimed as a homestead in this case are stated in the bill to be worth five thousand dollars. This takes them out of the description of a homestead exempt by the Constitution. The only ground on which complainant could claim a homestead out of these premises at all, was by showing that they were divisible, in such manner as to leave a homestead, including the dwelling house and appurtenances, within the prescribed value. The bill alleges nothing of this kind; but from the description in the bill, it is quite evident they were not thus divisible. At all events, this being a right existing only by force of the Constitution, it was for the complainant, by his allegations, to bring himself within the Constitution; and not having alleged the premises to be divisible, they must, as the bill now stands, be considered indivisible, and therefore not exempt either wholly or in part. — See Helfenstein v. Cave, ub. supra, and same case, 6 Clark (Iowa), 374. This answers the second, third, fourth and fifth questions submitted for our opinion, and in fact disposes of the present case. But as other questions have been submitted, and the whole subject has been fully discussed by counsel, and is one of great practical importance, and especially since the opinion we have above expressed may be misapprehended without the discussion of other collateral questions; we depart in this instance from our usual course, and express our opinions upon several questions not necessary to the decision of the present case; and shall attempt to show how far, and in what manner, we think the constitutional provision exempting a homestead may be carried into effect without further legislation.
[503]*503Having already shown what description of homestead is exempt by the Constitution, we proceed to, Second, the .question of its selection. In what cases is any actual selection necessary, except that which is evinced by ownership and occupancy as a homestead, in order to bring it within the constitutional exemption?
To answer this, we must first settle the meaning of the phrase “to be selected,,” as used'in the Constitution. Now, whether we look to its derivation or its universal use, the term, “to select, ” signifies to choose, or take some particular part or number from a greater; to take1 by preference from among others; to pick out; to cull. The term selection has never, we think, been used to express merely an election or option, whether to take anything or nothing/ to insist upon, or to waive a right. The purpose for which a' selection of a homestead is required, is exactly in accordance with this universal signification of the term. . The obvious purpose for which the selection is required, is only to identify and define the property to which the exemption applies, so as to distinguish that which is exempt from that which may be sold at the instance of creditors.' The selection in question, therefore, necessarily implies a larger tract or a greater •amount of real estate from which the selection is to be made, and it is only for such cases that the statute of 1848 has provided a mode of selection. Both that and the Constitution are silent as to the election to claim a homestead at all, or to waive it altogether.
Hence in the case, 1st, where the tract claimed by the debtor is all that he owns and occupies as a homestead, does not constitute part of a larger tract so owned and occupied, and is not capable of being reduced by division without cutting off part of what is essential to constitute it a homestead, it is obvious that no selection is possible, either under the statute of 1848, or the Constitution, if we are to understand the selection^ to be made from the debtor’s own property. There is nothing to se[504]*504lect from; the question is the entire thing or nothing. In such a case no selection, in any sense of the term, is, we think, required either by the Constitution or the law. But, if any selection in such case is required, it must be in some sense of the term which renders it possible. It can only be possible in such case, by using the terms in the sense of choosing out or selecting a place of residence from the great mass of property in the state, without, reference to the ownership of any, except the particular tract; in other words, that the party has chosen to obtain and occupy this particular place as a homestead, instead of purchasing and residing elsewhere in the state. Now . the best, if not the only practicable evidence of such a selection is to be found in the mere facts of ownership and occupancy of the property as a homestead in fact. And as no other selection in such case is possible, if the tract be within the quantity limited by the statute, it will be exempt by the statute; and if within the quantity and value- limited by the Constitution, it will be exempt by the latter, without any other selection. It is a homestead in fact; and as neither the Constitution nor the law has provided any particular mode of making known the dedication of it as a homestead, every man must take notice of the character of the occupant’s claim. — See Taylor v. Hargous, 4 Cal. 268; and Cook v. McChristian, Ibid 23, cited in 18 U. S. Dig., Title Homestead.
But take, 2d, the case where the tract is dearly within ■ the quantity limited by the Constitution, and admitted to be also within the constitutional limitation as to value, not constituting part of a larger tract owned by the debtor, but. CAPABLE OP DIVISION SO AS TO LEAVE A IIOHESTEAD OE LESS value, is any actual or formal selection necessary; or will its ownership and occupancy by the debtor, as a homestead in fact, exempt it as a homestead under the Constitution? We think it will, and that no other selection is necessary. All the reasons given for dispensing with any [505]*505other or formal selection, in the last preceding case mentioned, apply, we think, substantially, to the case here supposed, except that of the impossibility of the selection, which applies only to the former.
Under the statute of 1848, when the homestead was only limited in quantity, without reference to value, and which, as we have already seen, might be made an instrument of the grossest injustice, there may have been good reason for holding, as was suggested in People v. Plumsted (2 Mich. 469, 470) that a selection should be required in all cases, where the property would be divisible so as to leave a homestead entire, though of less dimensions than limited by the statute; in other words, the law might not, perhaps, in such case, presume the acceptance by the debtor of the benefit conferred by the statute, to the full amount of the exemption; since, as the court in that case seemed to think, this would in many cases be presuming dishonesty: though the court seem to have overlooked the obvious distinction between an election to claim any homestead at all, and the selection of it, which could only take place after this election had been made. But whether that case can be supported as a true construction of the statute with reference to the selection, we do not propose here to determine; as the case before us does not call for it, and as the statute, so far as it applies to the description of a homestead to be exempt, is in force only as to cases where the indebtedness accrued before the Constitution.
But under the Constitution the question, as respects the point we are now discussing, stands upon very different grounds. The Constitution limits. the value of the homestead which it exempts, to fifteen hundred dollars. This exemption is not capable of the abuses to which the statute exemption was liable. The value is reasonable, and the exemption may be claimed to the full extent, as necessary to the comfort of a family, without any ground [506]*506for the imputation, of dishonesty. We think, therefore, that where the whole tract owned and occupied by the debtor does not exceed the quantity mentioned in the Constitution, and is admitted to be loithin the prescribed value, the law, in the absence of any proof, must presume the acceptance by the debtor of the benefit conferred by the Constitution, to the full amount of the constitutional exemption; and this upon the same ground that the acceptance of a grant is presumed; that the Constitution only contemplates a selection when it is necessary to bring the homestead within the limitation, as to quantity and value, specified in the instrument, and as a means of separating it from a tract of larger amount, or greater value, and defining its boundaries.
Doubtless the debtor may consent to waive his right to a part or the whole of a homestead exempt by the Constitution; but it lies upon the party asserting such waiver to show it by affirmative proof. And when the householder is a married man, he can not probably, by any waiver, consent to a sale on execution, so as to render such sale valid without the consent of the wife. For, in such case, the validity of the sale would rest upon his consent in the same manner as if he had conveyed by deed: and if deeded by him under the like circumstances, the deed would be void, even as to him, without the signature of the wife. Such, we think, is the effect of the express provision of the Constitution. — See Williams v. Starr, 5 Wis. 534. The object of the exemption was quite as much to protect the wife and family, as the husband.
If, in either of the two classes of cases just mentioned, the value should be disputed, or, in other words, if the creditor claims that the tract, though within the quantity limited by the Constitution, exceeds the specified value, how is the value to be ascertained? In the first class of cases (where the tract is indivisible) no selection could be made; in the second, a selection might be required to bring [507]*507a tract of the prescribed quantity within the limitation as to value. The Constitution is entirely silent as to any mode of ascertaining the value, looking, doubtless, to legislation to provide the mode. There has been no such legislation under the Constitution, and the statute of 1848 provides only the mode of ascertaining the quantity, when that is disputed by the creditor, and for a selection so far as the quantity is in question. There being no other practicable mode of settling the question before sale, we are inclined to the opinion that, whenever the creditor has proceeded so far as to make a levy, either party, the creditor or the householder, may file a bill in equity, setting forth the nature of - the case, asking that a selection may be made by the householder, should the property be found to be divisible, and that the value may be ascertained by the court, whether divisible or not. The value might then be ascertained, either by directing an issue to a jury for that purpose, or by reference to a commissioner to take proof and report: and, in this manner the rights o'f both parties might, by the decree of the Court, be secured, according to the nature of each particular case.
But, unless this be done, or unless the householder clearly waives all right to a homestead; if the creditor proceeds to sell, the purchaser, in such case, must take upon himself the risk of being able to show, when he claims the property under the sale, that it was not exempt by reason of its excessive value, and that it was not divisible in such manner as to leave a homestead within the prescribed value, which the Constitution secures the right to select: for the debtor, in such case, would, we think, be entitled to set up his rights, and the question of value might be determined, in an action brought to recover the property. — See Helfenstein v. Cave, above cited. But courts of law, as constituted in this state, have no process or mode of practice by which such questions can be deter[508]*508mined, as a preliminary to a sale, or a selection and ap-\ praisal made in the suit for the recovery of the land by the purchaser.
When the tract is within the quantity, but exceeds the value fixed by the Constitution, and is divisible so as to leave a homestead within that value, the householder can-, not be considered in default, nor held to waive his right by not selecting, when neither the Constitution nor the law has provided any mode by which he could complete a valid selection.
Having disposed of the cases in which no formal selec-. tion by the debtor is necessary to protect the homestead from forced sale, we come;
Third: To the cases in which he must make a selection, so far as any mode is provided, to entitle him to, the exemption.
Whenever the tract including the homestead exceeds the quantity limited by the Constitution, a selection by the debt- or becomes necessary to distinguish that which is exempt from that which may be sold at the instance of creditors.
And the debtor, to entitle himself to the exemption of any part of it, must proceed to select it, so far as the law has provided a mode of selection; and the fact that no mode has been provided by which he can make the select tion, as relates to the value, will not excuse him from proceeding with the selection, so far as the mode has been provided by law. The statute of 1848 makes full and ade-. quate provision for the selection, so far as the question, of quantity is concerned, as well as for ascertaining and defining the boundaries. Of this law he must avail hirm self to bring the homestead within the quantity limited by the Constitution. But when he has proceeded thus far, he has exhausted the remedy given by the law; and the quantity so selected, if within that limited by the Constitution, will all remain exempt, though it may exceed the value limited by the Constitution, until the value shall be [509]*509ascertained, and the selection with reference to the value perfected, in a court of equity, in the manner already suggested for other cases involving the question of value only.
As regards this proceeding for the. selection of quantity, the third section of the act of 1848 provides that, “whenever a levy shall be made upon the lands or tenements of a householder, whose homestead has not been selected and set apart by metes and bounds, such householder may notify the officer at the time of making such levy, of what he regards as his homestead, with a description thereof, within the limits above prescribed, and the remainder alone shall be subject to sale under such levy.” The next section provides for a survey, if the plaintiff is dissatisfied with the quantity selected.
Now, in reference, we suppose, to the words “whose homestead has not been selected and set apart by metes and bounds,” we are asked by the first question propounded by the circuit court, as we understand that question, whether a homestead can be regarded as having been selected by the owner and occupant, “ so as to enable him to hold it exempt from execution, without a selection in writing, executed, acknowledged and recorded in the manner provided for the execution, acknowledgment and recording of deeds of real estate.”
We have already sufficiently indicated our opinion of what may be regarded as a selection under this clause, as one already made, viz.: the selection may be considered as already made and sufficiently defined in all those cases where, as already shown, ownership and occupancy as a homestead in fact, is to be regarded as a selection: or, in other words, where the Constitution does not contemplate selection as a means of bringing- it within the limitation, as to quantity and value. The Constitution is entirely silent as to such previous selection, and the statute is silent as to any mode by which it is to be effected. It ’does not require it to be in writing: it does not authorize [510]*510any instrument in evidence of it, to be acknowledged or recorded: and very clearly, if- recorded, the record could have no legal effect. — Cook v. McChristian, 4 Cal. 23. We think, therefore, no writing is necessary as evidence of-such previous selection.
A similar answer may be made to the question, (tth,) whether the notice by the debtor to the officer is required to be in writing. No notice in writing is required.. It may be in any form which indicates to the officer, with reasonable certainty, the land claimed as a homestead.
The sixth question submitted is, whether the notification to the officer must be made at the time of the levy, or whether it may be made within a reasonable time after the debtor has notice of such levy? We are inclined to the opin-_ ion that, even if this question rested upon the statute alone, the notification to the officer might be made within a reasonable time after the debtor was notified of the levy. The statute clearly contemplates action on the part of the debtor, in consequence of, and founded upon, the levy; and it could not have contemplated that such action founded upon the levy, could have been taken by the debtor, until he was aware the levy had been made. But if this were not so under the statute alone, before the Constitution, then the Constitution has modified the statute, to this extent, at least, if not to the extent of allowing the debtor- to select at any time before the sale, or so as not unduly to delay a sale. The Constitution gives the right of selection as an absolute right; it fixes no time within which it is j to be made,* though from the nature of the case it must contemplate the exercise of the right, so as, not unduly to interfere with a sale of the excess. And there may be this difference between the statute and the. Constitution: When the statute was passed, there was no, constitutional provision on the subject of a homestead, and it was competent for the Legislature to give the exemp-. tion on just such terms and conditions as they saw fit. [511]*511to prescribe. But the absolute right of selection, given by the Constitution, cannot be materially narrowed or abridged by the Legislature.
• It will be seen from the foregoing opinion, that further legislation is necessary to secure any benefit of a homestead exemption to a debtor, whose homestead exceeds -the value of $1500, and is indivisible, as well as to avoid the expense and delay of a chancery suit to effect a selection of a homestead, where the question is one of value. "With this view, and because we deem such legislation essential to secure equality of benefit under the constitutional exemption, we have deemed it our duty to enter upon a more extensive exposition of the present state of the law, than we should have felt justified in doing under other circumstances, in a case like the present.
Martin Cn. J. and Campbell J. concurred.