Page:North Dakota Reports (vol. 48).pdf/295

 $5,000, and not then unless the homestead is divisible and the excess not theretofore conveyed by a conveyance executed and acknowledged by husband and wife or claimant.

The writer is of the opinion that justice and protection to homestead claimants require that the rule announced in Calmer v. Calmer, supra, be overruled, in so far as it holds that, in determining the value of the homestead exemption, existing incumbrances should not be deducted.

The appellant’s mortgage being entirely null and void, for the reasons above set forth, the trial court properly ordered its satisfaction, discharge, and cancellation of record. It was unnecessary for respondent to make selection or file declaration of homestead exemption. His homestead consisted of a single tract of land. It was not necessary for him to file declaration of his homestead, or claim his homestead exemption, until his right thereto was in some way challenged.

The judgment appealed from should be affirmed.

ANDREW GERRARD, Respondent, v. LESTER KELLER, Appellant.

Elections—appeal will be dismissed where appellant in contest complied with judgment and received benefits thereunder.

This is an appeal from a judgment in a case of an election contest. The appellant has both complied with the judgment and received benefits under it. Hence the appeal is dismissed.

Appeal from the District Court of Towner County; Kneeshaw, J.

Appeal dismissed.

Verret & Stormon, for appellant.