(dissenting.) As to whether or not Mrs. Annie Simpson, by her conduct, -was estopped from denying that the two lots in controversy were held by herself and her husband, J. S. Simpson, in entireties, I do not desire to discuss, as that may possibly be for future consideration, as the case now stands. But assuming, for the sake of disposing of other questions at once, that the husband and wife were joint owners, and held by entireties, I proceed directly to discuss the husband’s homestead and exemption rights and the proceedings by which he has been deprived of their benefits. In Thompson on Homestead, section 165, after naming various kinds of estates in lands out of which a homestead may be carved, that author says: “These questions have all, under various phases, addressed themselves to the courts. It would seem, upon principle, that they are questions with which the creditor can have nothing to do. If the debtor’s estate is such as, under general law, would be vendible under execution, it does not lie in , his (the creditor’s) mouth to say that it will not support a homestead.” If, in other words, the husband’s estate in these lots was subject to execution, when not claimed as homestead (which these creditors are estopped from denying), then the estate of the husband in them is such as will support the claim of homestead, if so dedicated, and these creditors will not be heard to controvert that right where it is properly asserted.
According to the uniform rulings of this court, at least wherever its rulings have been called for, almost any interest in land, carrying with it possessory rights, may be the subject of homestead exemptions. See also, Deere v. Chapman, 25 Ill. 612; Conklin v. Foster, 57 Ill. 107; Bartholomew v. West, 2 Dill. 293; Randal v. Elder, 12 Kas. 261; Vogler v. Montgomery, 54 Mo. 584; Sears v. Hanks, 14 Ohio St. 301; Watts v. Gordon, 65 Ala. 546; Tyler v. Jewett, 82 Ala. 93; Rockafellow v. Peay, 40 Ark. 69. In the last named case this court said: “An equitable estate was enough. Indeed, it is probable that the homestead exemption withdraws from the demands of creditors whatever interest the claimant has in the prop-ter ty dedicated to that use.”
■The homestead is a right, under the act of March 18, 1887, especially, and like almost any other right may be waived (Snider v. Martin, 55 Ark. 139), but it has not been waived in this instance.
In Draffin v. Smith, ante, p. 83, this court held, in regard to personal property exemptions, that the proceeds of the exempted property, sold by order of the court in vacation, in an attachment proceeding, belonged to the defendant, and could not be set-off by the judgment debt of the plaintiff in the proceeding, after the attachment had been dissolved, and suit for damages against plaintiff and in favor of defendant had been sustained. This was on the ground that the proceeds of the sale of the exempted property partake still of the character of the property itself, and like it are also exempted.
It is not controverted, so far as I can ascertain, that the excess for which the lots were sold under the Peters Shoe Company execution belonged to Simpson, and that the same was not subject to the execution issued on the judgment of J. W. Scuddar & Co.
The first of these suits, that is to say, case No. 3049, is a bill in equity by appellant J. S. Simpson against R. L. Hancock as sheriff, B. B. Biffle as clerk of the circuit court, and J. W. Scuddar & Co.- (of which firm H. H. Downman was a member), to redeem the lots in question from the sale under the execution of the Peters Shoe Company, calling for $600 interest and costs; and the record shows that he had made a tender of this amount to the clerk aforesaid, and also to J. W. Scuddar & Co., and also offered to pay this amount into court for the purpose of redeeming' from said sale, and that the money was refused by the clerk, and also, by J. W. Scud--dar & Co., and it seems that his offer to deposit in court was not accepted by any of the parties. He then instituted his suit to redeem.
It appears that the two judgments were controlled, by the same attorney, and just immediately before and on the same day the sale was made under the first— the Peters Company judgment — execution was caused to be issued on the second judgment, which was in favor of J. W. Scuddar & Co. The sale under the first execution was made on the 17th of February, 1894, and the lots bid in by J. W. Scuddar & Co. for the sum of $2,000, an amount sufficient to cover both judgments and probable costs. Immediately, as stated, the second execution, having been issued, was put in the hands of the sheriff, and asked to be levied upon the surplus of the proceeds of the sale aforesaid, over and above the amount required to satisfy the first judgment, interest and costs; said surplus to be applied to the satisfaction of the second execution calling for the sum of $1,300 interest and costs. The sheriff demanded an indemnifying bond, which was given, and the levy on the fund in hand was made, and the fund immediately paid over to J. W. Scuddar & Co., to be applied towards the satisfaction of their judgment.
It appears that, at the instance of the purchaser, J. W. Scuddar & Co., the sheriff made his deed to H. H. Downman, one of the members of that firm, and upon that deed he instituted the second of these suits, that is to say, case No. 3269, against Simpson et al. Other facts will be stated in this opinion, as they become necessary.
It appears that execution on the Peters Shoe Company judgment had been stayed by defendant in October, 1892, and that and the judgment had been reinstated after being- destroyed by fire. This fact somewhat affects the action of the sheriff in making the sale and his return of the executions.
The sheriff, in regard to the disposition of the proceeds of the sale, was, or should have been, governed by the provisions of sec. 3103 of Sandels & Hill’s Digest, and accordingly, if the defendant had a right to stay the execution, and had not exercised the right, the sale should have been on a credit of three months, and the excess over an amount sufficient to satisfy the Peters Shoe Company should have been covered by a bond from the purchaser to the defendant, payable in three months, and if a stay of execution was not allowable, or had been already had, then the sale might have been for cash, but the excess should have been paid over at once to the defendant, unless it was subject to the levy of the second execution, the one in favor of J. W. Scuddar & Co.
So the controlling question at last is whether or not the excess in the hands of the sheriff was subject to the second execution, and I think it was not any more SO' than was the homestead before the sale; and if this excess was not subject to be taken under that execution, it was the duty of the sheriff to pay it over to Simpson at once, and this duty is none the less a duty because J. W. Scuddar & Co. indemnified the sheriff. That is a matter between them which Simpson can make use of or not in asserting; his rights against both of them.
The clerk and the plaintiff in execution, and apparently the sheriff, all contest Simpson’s right of redemption, because he did not tender'the full amount for which the lots sold, namely $2,000, in redemption of the property, and their refusal to accept the amount due on the Peters Shoe Company judgment is sustained, in effect, by the majority of the court. In other words, the sheriff having at once paid over to J. W. Scuddar & Co. the excess, and they, having received it (that is to say, having- appropriated to their own use a fund belonging- to defendant), now resist his application to redeem, unless he tenders the same amount to them over ag"ain. The question is, what becomes of Simpson’s homestead rights? Whatever may be the theory of it, practically, J. W. Scuddar & Co. as plaintiffs in an execution, which is confessedly no lien upon the homestead, will have collected their debt out of the homestead nevertheless, for it does not appear just how Simpson could ever get his money back had he tendered and paid this excess over to J. W. Scuddar & Co. The simple truth is, by preventing the sheriff from paying the excess over to Simpson, they have deprived Simpson of the right, or the privilege, and perhaps the ability, to make such a tender as all these parties have demanded of him, and Downman is one of them.
There is no way pointed out by statute for a defendant in execution to protect himself in this peculiar situation. The fund is not personal property, because it still partakes of the character of the homestead; and it is not real estate, so as to be dealt with as real estate in every particular. If it be considered as personal property, the excess is more than the personal exemption, and that theory would fail. My opinion is that Simpson has adopted the true and only course for asserting his rights which one could under the circumstances, and the decree of the lower court should have been reversed, and the decree entered here for him.
I have not considered the question whether or not Simpson fraudulently deprived himself of means to pay his debts by expending them all upon the improvement of his homestead. In a proper case I should consider that as a very important question, but it is not involved here.
This view would settle the case No. 3269, as the parties thereto were affected with notice of the right of defendant and his suit from the beginning.