Page:North Dakota Reports (vol. 48).pdf/294

 In determining the value, for the purpose of ascertaining the extent of the exemption right, as it existed at the time of the trial, the trial court deducted the amount of prior incumbrance. which, as represented by a prior mortgage on the premises, executed and acknowledged by both husband and wife, was $2,500 plus $150 interest.

After this deduction, the value of the homestead exemption was less than $5,000, and the trial court accordingly set the whole of the homestead aside as exempt, and afforded the appellant no relief, other than a personal judgment against the defendant, which if this holding is correct. would not be a lien against the homestead, nor could the plaintiff procure an execution on the judgment and levy on a homestead, nor proceed in any manner to sell the homestead to satisfy its claim. as the exemption, after the deduction of the prior incumbrance, did not exceed $5,000.

We think the trial court's finding and conclusion in this regard is correct, for if the prior incumbrance of $2,500, instead of being a mortgage, were a judgment, there could be no controversy concerning the correctness of the trial court’s conclusion, for the prior judgment would be a lien on the value of the homestead in excess of $5,000, and it could be sold on an execution issued on the prior judgment, for the satisfaction of it, in pursuance of law in that regard, as above referred to. So, too, could the $2,500 prior mortgage be foreclosed, and the premises sold to satisfy it. In either case, there would be a sale of the premises to satisfy a lien, and, under either, when sale was made, the exemption remaining would be less than $5,000.

We realize that a different holding was made in the case of Calmer v. Calmer et al., 15 N. D. 127, 106 N. W. 684. We think, however, that the rule announced there is one which protects the creditor and not the claimants of the homestead. It is not difficult to see that. under that rule, ihe benefits intended to be preserved to homestead claimants, under our statutes providing for homestead exemptions, and under § 208 of the Constitution, could be entirely withheld from them, and the purpose thereof largely defeated.

The provision of the Constitution and of our laws creating homestead and exemption rights should be liberally construed to effect their beneficent purpose, to wit, to protect the debtor and his family in the possession, ownership, and control of a homestead of definite area and value, to which creditors cannot resort by a process of levy of execution on a judgment and forced sale, except as to the excess of value, over and above