By the Court,
Cole, J.Notwithstanding the numerous exceptions taken to the ruling of the court on the trial of this cause, we can discover no error which we deem material, or which could have prejudiced the appellant, except, perhaps, the one involved in the charge to the jury, which will be c on-sidered in another place.
The complaint'is full, and most unquestionably states a geod cause of action for the recovery of real estate.
If there were any variances between the allegations in the complaint and the proof offered, or between the judgments, executions and recitals of the sheriff’s deed, they were immaterial. It is not pretended, nor can it be assumed, that any one was misled by these variances, and they certainly were of such a character that the court might properly disregard them.
Some stress is laid upon the objection that the execution on the judgment against Graves and Smith was issued against Graves alone. , But there was no irregularity in this, under the circumstances. Smith was merely surety on the appeal from the justice, and as no execution was issued on the judgment within thirty days after the rendition thereof, he was discharged by the express language of the statute. Sec. 246, ch. 88, R. S., 1849. There surely could be no sense in requiring the execution to be issued against Smith, when he had been released from all liability on the judgment, and his property was not subject to leyy and sale on the writ.
And without stopping to notice specifically all the other exceptions taken to the ruling of the court as to the admission or *165exclusion of testimony, we will merely say that we regard them equally untenable as the objection just disposed of.
The respondent derived title to the lands in controversy, under a sale on executions and a sheriff’s deed. The appellant claims that the greater portion of the lands were exempt from such sale, because they constituted bis homestead. One of the judgments upon which an execution was issued, was filed and docketed in April, 1857. The question is, was any portion of these lands, at that time exempt ?
There was testimony offered on the trial which tended to show that the appellant, in 1849, went into possession of a tract of an hundred acres, including the land in question, in the south part of the south-west quarter of section thirty-five, town eleven, range fifteen, in Dodge county, which he occupied and cultivated as a farm. In the spring of 1850, he rented this farm to a tenant, and removed .with his family to Hor-icon, where he purchased lots and erected a house for a tavern, which he kept as such for five or six years. In May, 1856, he rented his tavern stand, and moved back upon his farm. Where he remained until the last of February, or sometime in March, 1857, when he again rented the farm and removed back to Horicon, and, with his family, boarded at the tavern owned by him, until after the premises had been levied on under the execution.
Under this state of facts it became a legitimate and proper matter for the jury to consider, whether the appellant could claim any portion of the farm for a homestead. In other words, it was for them to say, upon all the evidence; whether he had only removed from the farm for a temporary purpose, intending, as soon as circumstances would allow, to return and occupy it as and for a homestead; or whether, he had in fact removed from the farm without any such intent of returning to it, but had taken up his residence in Horicon, with a view of keeping a public house at that place. If he had left the farm with the latter intention, then it is quite obvious that he *166could not claim forty acres of his farm for a homestead. For in the ease supposed, be would really have taken up bis residence in Horicon, and would there have bis homestead. For the statute makes occupancy and possession by the owner an essential feature or characteristic of a homestead; and it would be a solecism to say that a man’s homestead was in one place, when, in truth and fact, he resided elsewhere. From this it must not be assumed that a party would lose his homstead when he ceased to actually live upon it with his family. This, we think, is too narrow a construction of the statute. And, hence, we have held, in a ease decided at this term, that a party would not forfeit the exemption on being absent from home a season, travelling with his family, even though he should rent the premises to a tenant in the mean time, or should be prevented, by some temporary necessity, from occupying his homestead for a time with his' family. In the matter of the application of Knox, administrator, for license to sell real estate, ante p 76. In these cases a party is only absent from home on pleasure or business, or is unable to actually occupy it from some temporary causé, and cannot be said to have abandoned the homestead with the intention of acquiring another elsewhere.
Now, in case the jury had been satisfied from the evidence, that the appellant had only temporarily removed from his farm, and intended to return and make it his homestead, we are unable to see why forty acres of land, including the dwelling house, might not be claimed as such.
It appears that the appellant, when notified, by the officer that a levy had been made upon the south half of the one hundred acre tract, claimed his homestead from that land. He says in his testimony, that he claimed forty acres off the west part of the south half of the tract. We presume this was intended to, (if it did not actually) embrace his dwelling house. It further appears, however, that the dwelling house did not stand upon the south fifty acres. And in view of *167these facts, the court charged the jury, in substance, that a party could not have a homestead without a house upon it, and that if the house did not stand wholly upon the forty acres claimed, the premises were not exempt. Now, as already observed, if the appellant was entitled to claim forty acres of the farm for his homestead at all, we think he ought not to be held to have forfeited the exemption because he designated the particular land claimed, in the way he did. He claimed a certain portion of the tract for his homestead. He designated forty acres off the west part of the south half of the tract. Whether the forty acres thus laid off would embrace the entire site of the dwelling house or not, we do not deem very material He undoubtedly intended by this designation to include the dwelling house and its appurtenances. And when he notified the officer of the selection made, if the creditor was dissatisfied with it, the officer might have caused a survey to have been made under the statute, setting off the forty acres in a compact form on that part of the tract designated, including the dwelling house and its appurtenances. This is what the statute requires to be done in such a case. Section 54, chap. 102, R. S., 1849. But we are not disposed to hold that' the appellant lost the benefit of the exemption, because, by the strict literal meaning of the language used by him, the forty acre tract named by him did not include the entire site of the dwelling house. The designation was sufficient to identify and define with reasonable certainty the property which he claimed for a homestead. And it was but fair to presume that he intended by his selection to embrace the dwelling house and its appurtenances. The statute, it is true,. declares that the house-holder may notify the officer, at the time levy is made, of what he. regards as his homestead, and may give him a description by metes and bounds. But it does not provide that he shall forfeit the privilege unless he does this. The obvious intent of the statute is, to secure the debtor and *168bis family a borne; and this humane purpose ought not to be defeated on slight grounds. It would hardly be consistent with this manifest intention, to say that a party must, at his peril, designate with absolm e precision and accuracy the very forty acre tract including his dwelling house and its appurtenances, or forfeit the exemption altogether. This would be a most unreasonable construction of the law. And therefore when, as in this case, a person claims from a larger tract, forty acres as his homestead, it si iould be assumed that he intended the land should be laid off where he designated in such a manner as to include his dw elling house and its appurtenances. It is not to be presumed that he had reference to any particular government subdivision, or any rectilinear lines. But the land, including such dwelling, should belaid off where claimed, in as compact form as possible. The court held that if the claim made, turned out to be of land upon which the dwell ing house is not wholly or the greater part situated, the exemption would not apply. And again, the jury was instructed, that if the appellant claimed a homestead when he notified the sheriff, but did not specify his claim by a particular description, the claim would be bad. This instruction, we think, was calculated to prejudice the appellant, provided, under the' circumstances, the jury should be satisfied that he could claim any portion of the farm for a homestead. The main object of any selection of a homestead, is to identify and define the property to which the exemption applies, so as to distinguish it from that which may be sold by creditors. And when a debtor states with reasonable certainty what he regards as his homestead, it is sufficient. If the creditor is not satisfied with this designation, he can cause-the officer to make out a survey according to the provisions of the statute.
It follows from this view that the judgment of the circuit court must be reversed, and new trial ordered.