McMann

Judgment was rendered in this case in Department One of this court September 9, 1889, affirming the orders appealed from. Reference is made to the opinion filed at that time for a statement of the case, and for the rulings then made upon the points considered, which rulings are still adhered to. The parties have since, by stipulation, waived all controversy upon the points then discussed, but an orderly and intelligible disposition of the case requires that rulings should be had upon those points, and after a careful reconsideration of the case in Bank, we see no reason to change the decision then made, so far as it goes.

Upon the express stipulation, and at the request of counsel on both sides, the case was resubmitted in Bank, for the purpose of having a direct opinion of the court upon the single question of whether or not the second house mentioned in the former opinion—the house built on the rear of the lot since the filing of the homestead declaration — was and is exempt from execution; whether it was and is impressed with the character of homestead to the extent of being exempt from execution on that account. And to avoid future litigation between the parties, it is…

I am unable to concur in the prevailing opinion, or in the -judgment. It is immaterial, in my opinion, whether the second house was placed on the land before or after the filing of the declaration of homestead. The stipulation of counsel reduces the question before us to the simple inquiry whether or not the house built on the rear of the lot is exempt from execution. The question is purely one of exemption. The question is not whether the whole property, including both houses, is so impressed with the homestead character that it would go to the survivor on the death of one of the spouses. Property selected and improved as a homestead may retain its homestead character for certain purposes, and yet a portion of it be not exempt from execution. This is plain from the provisions of the constitution and the statute bearing upon the subject. The constitution provides that “ the legislature shall protect by law from forced sale a certain portion of the homestead, and other property of all heads of families.” (Art. 17, sec. 1.) Acting upon this provision, the legislature has provided that “ the homestead *233 consists of the dwelling-house in which the claimant resides, and the land on…