Opinion by
Beatty, C. J., Lewis, J.,concurring.
In the month of March, 1866, appellants moved into a house which, with the land attached thereto, is now the subject of litigation. In September of the same year one Robert Woodburn brought suit against W. A. Hawthorne, and at the time of bringing suit sued out a writ of attachment and had it levied on this house and grounds. In December of the same year judgment was rendered in favor of plaintiff, and in the early part of the year 1867 execution was issued and the property previously levied on under the attachment was advertised for sale. In October, 1866, (after the attachment levied, but before judgment) the appellants filed a declaration of homestead on the property now in dispute. When the Sheriff advertised the property for sale the appellants filed their bill praying an injunction to restrain the sale, and claiming that the property was exempt under the Constitution and Homestead Act. The District Judge issued a temporary restraining order, and re*186quired the defendant, Smith, who is Sheriff of Ormsby County, to show cause at a certain day why a perpetual injunction should not be granted. At the hearing of this rule the Judge refused to grant an injunction, and discharged the restraining order. From this ruling in regard to an injunction the plaintiffs appeal.
It is admitted by respondent that the property claimed is in every respect such as might have been claimed as a homestead if the declaration of intention to so claim it had been filed in time. The question to be determined by us is, whether the levy of an attachment gave the attaching creditor such a vested interest in the property as to deprive the appellants of the right to claim it as a homestead. The thirtieth section of Article IV of the Constitution provides:
“ A homestead, as provided by law, shall be exempt from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon; provided, the provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife; and laws shall be enacted providing for the recording of such homestead within the county in which the same shall be situated.”
At the first session of the Legislature held after the adoption of the Constitution a Homestead Act was passed. The first and second sections of that Act, which are the only ones throwing any light on this subject, are as follows :■
“ The homestead, consisting of a quantity of land, together with the dwelling house thereon and its appurtenances, not exceeding in value the sum of five thousand dollars, to be selected by the husband and wife, or either of them, or other head of a family, shall not be subject to forced sale on execution, or any final process from any Court, for any debt or liability contracted or incurred after November 13th, in the year of our Lord one thousand eight hundred and sixty-one. Said selection shall be made by either the husband or wife, or both of them, or other head of a family, declaring their intention in writing to claim the same as a homestead. *187Said declaration shall state that they, or either of them, are married, or if not married, that he or she is the head of a family; that they or either of them, as the case may be, are at the time of making such declaration residing with their family, or with the persons under their care and maintenance on the premises, particularly describing said premises, and that it is their intention to use and claim the same as a homestead; which declaration shall be signed by the party making the same, and acknowledged and recorded as conveyances affecting real estate are required to be acknowledged and recorded; and from and after the filing for record of said declaration, the husband and wife shall be deemed to hold said homestead as joint tenants.”
“ Such exemption shall not extend to any mechanic’s, laborer’s or vendor’s lien, lawfully obtained ; hut no mortgage or alienation of any kind, made for the purpose of securing a loan or indebtedness upon the homestead property, shall be valid for any purpose whatsoever ; provided, that a mortgage or alienation to secure the purchase money, or pay the purchase money, shall be valid if the signature of the wife be obtained to the same, and acknowledged by her separately and apart from her husband ; nor shall said homestead property be deemed to be abandoned without a declaration thereof in writing, signed and acknowledged by both the husband and wife, or other head of a family, and recorded in the same office, and in the same manner as the declaration of claim to the same is required to be recorded, and the acknowledgment of the wife to such declaration of abandonment shall be taken separately and apart from her husband; provided, that if the wife be not a resident of this State, her signature and the acknowledgment thereof shall not be necessary to the validity of any mortgage or alienation of said homestead before it becomes the homestead of the debtor.”
The first point of discussion which arises in this case is as to what interpretation should be given to the phrase “ a homestead as provided by law,” which is found in the first line of the constitutional provision. The appellants contend that “ as provided by law” merely means of such size and value as the law may prescribe. That, as there -was already a Territorial law in existence which exempted a homestead to the value of five thousand dollars, no legis*188lation was necessary to carry the constitutional provision into effect; that no Legislature could impose restrictions or terms upon which the exemption from forced sale was to depend; that the existence of a homestead depended on occupancy and use of a house and premises as a permanent residence; that when the existence of a homestead was once established, .it became sacred under the Constitution, and the Legislature could make no law subjecting it to forced sale, however the parties occupying it might fail to comply with any law requiring a selection and recordation thereof; that the only control the Legislature has on this subject is to increase or diminish the extent and value of the homestead. On the other hand, the respondent contends that this constitutional provision only requires the Legislature to exempt the homestead from forced sale, and in effect authorizes the Legislature to make the exemption on such terms and conditions as they choose to impose.
It is difficult to determine which of these interpretations should he adopted. In this case it is perhaps not necessary to determine this question. Even taking the respondent’s interpretation, it is evident the Constitution intended that at all times the homestead of a family should be exempt from forced sale, except in a few enumerated cases. It is equally evident the Legislature intended to carry out this policy of exempting the homestead. If, then, it is the policy of the law to exempt the homestead of insolvent debtors from forced sale, certainly we should not hold that a creditor can defeat that policy by any act of his, unless the statute clearly gives that right, or clearly points out the contingency, upon the happening of which the debtor should lose the benefit of the exemption. Here the property was clearly a homestead in fact. If it lacked anything of being such a homestead as the law exempts, it was only the execution and filing for record of a declaration by the husband and wife, or either of them, that they had selected it as such. Upon the filing of such declaration the statute says it shall be exempt. It is hardly claimed by respondent that the existence of debts, or the actual insolvency of appellants at the time of filing, would have affected their right to select the homestead and claim the exemption. If, then, the prior insolvency of a party will not prevent his claiming the exemption, we see no reason why an attach*189ment should. The law declares property thus selected shall be exempt from execution. It makes no exceptions. It is no greater hardship to exempt it from an attaching creditor than any other creditor. The object of the attachment law is not to allow the creditor to seize property which is exempt from execution, but to secure that which is liable to such process. As the law is totally silent as to the time when a selection shall be made of the homestead, declares no penalty for failing to select, makes no reservation in favor of liens acquired before selection, but simply says that when selected it shall be exempt from forced sale, we are forced to the conclusion that, after the selection is made and filed for record, no levy upon, or sale of the homestead property, can be legally made, except for those classes of debts mentioned in the Constitution.
The point that the Judge, after granting the restraining order, directs the defendant to show cause why a perpetual injunction should not be granted, instead of making an order to show cause why an injunction should not be granted, is rather technical. Undoubtedly the proper practice is: first, a restraining order; second, on hearing defendant at chambers, an injunction; thirdly, a perpetual injunction on the final hearing. But a mere mistake in the wording of the restraining order is no ground for refusing the proper relief on the hearing.
Respondent contends that the Court below was right in refusing the injunction, because the complaint was defective in not stating that the plaintiffs had selected the property in controversy as a homestead, and caused the declaration of their selection to be recorded as required by law. In this respect the complaint is undoubtedly defective; and if that defect had not been cured by the answer, we would have been compelled to hold that the Court below was correct in refusing to grant an injunction on so defective a complaint. In this case the plaintiffs state distinctly all the facts necessary to entitle them to the relief sought, except the selection and recordation of the homestead claim. This fact they fail to state. Nor do they state any fact from which the Court could infer that the recordation of a claim had been made before levy of execution.
But the defendant states distinctly the date when the plaintiffs *190filed their declaration of homestead for recordation. The question then is, does this statement in the answer cure the defect in the complaint ? It is said that a complainant in a bill in equity must make out a case by his oavii bill, or he is not entitled to relief, although the answer may set out enough facts, when added to those things alleged in the bill, to entitle the complainant to relief.
This may be the correct general rule, but still the rule is not carried out in all its strictness. Both English and American Courts have frequently allowed the answer to aid the bill, so as to grant relief that they could not have granted if there had been no answer at all.
In a note to Daniels’ Chancery Practice, page 411, the editor uses this language: “ But when the facts stated in the bill are disproved, or are defectively stated, relief may be granted upon the facts stated in the answer.”
For this rule a reference is made to two Tennessee and two Kentucky cases. The Kentucky cases seem to sustain the text. The Tennessee cases we have not. In the case of Rogers v. Soutten, 2 Ken. 598; 15 Eng. Ch. R., the Court granted relief on a case made by the answer quite different from the one made in the bill. We conclude that Courts of Equity, under the old practice, would sometimes allow the answer to aid a defective bill. The seventy-first section of our Practice Act provides as follows:
“ Section 71. The Court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties; and no judgment shall be reversed or affected by reason of such error or defect.”
It is impossible to suppose the defendant could have been taken by surprise by the Court acting on a fact so distinctly stated in the answer. Nor, under the very liberal direction of our statute, do we think that there would have been any impropriety in the Court below acting on the facts as they are made to appear by the pleadings, allowing the answer to come in aid of the complaint.
The judgment of the Court below must be reversed. That Court will grant an injunction pending this action, and take such further steps as the equity of the case may require.
*191Johnson, J., having been counsel in the Court below, did not participate in this decision.