Page:North Dakota Reports (vol. 48).pdf/288

 “It is the homestead as created, defined and limited by law that is absolutely exempt. We have already seen what that means. A mere floating homestead right, unattached to any land in a manner that can identify the land as a homestead, cannot create an absolute exemption in land that may subsequently be designated and identified as a homestead.” Foogman v. Patterson, 9 N. D. 254; Severtson v. Peoples, 28 N. D. 372.

“In determining the value of the homestead for the purpose of ascertaining and selecting therefrom the homestead exemption or estate, the amount of existing mortgages or liens thereon cannot be deducted from the value of the property.” Brown v. Starr, 21 Pac. 973, (Cal.); Estate of Herbert, 122 Cal. 329; Yates v. McKibbin, 23 N. W. 752, (Ia.); Arnold v. Jones, 77 Tenn. 545; Norris v. Moulton, 34 N. D. 392.

R. F. Rinker, for respondent.

In this case the court found that the value of the homestead was only $7200.00 even applying the ruling of the court in Severtson v. Peoples, there would be no interest in said land for appellant’s mortgage to attach; its mortgage not being signed or acknowledged by the wife, under § 5808 it would be void as to the homestead interest. Foogman v. Patterson, 9 N. D. 254; Helgebye v. Dammen, 13 N. D. 167.

“Where the extent and value of the homestead does not exceed that fixed by law there is no necessity for selection or declaration of homestead exemption.” Farmers Bank v. Knife River Lumber and Grain Co. 37 N. D. 371.

, J. This is an action to foreclose a real estate mortgage. The record discloses the following:

The defendant is the owner of 160 acres of farm land in Eddy county. He is a married man with a family of six children. For many years he has occupied this land as his homestead. In 1915 the defendant together with his wife gave a mortgage upon the land to the Minneapolis Loan & Trust Company to secure a note for $2,500 and interest. There is now unpaid upon this mortgage with interest $2,650. There are also unpaid taxes for 1919 and 1920 amounting to $213. In 1916 the defendant alone gave a mortgage to the plaintiff upon this land to secure $1,675 and interest. There is due and unpaid upon this mortgage including interest