The plaintiff brings this action to qniet his title to a house and lot, which is No. 705, Sixth street, Bismarck. In August, 1919, the plaintiff purchased the lot from Ida B. Healy, against whom there were two judgments docketed, a judgment docketed in February, 1904, for $486.78, on which execution had been issued and levied on the property; a judgment docketed in August, 1911, for $150.40. The complaint avers that when the judgments were obtained and when the property was conveyed to the plaintiff it was the actual homestead of Ida B. Healy. Defendants appeal from a judgment quieting title.
The case is governed by the statute on homesteads. To the head of a family residing in this state there is exempt from judgments and sale on executions a limited tract of land with the dwelling house in which the homestead claimant resides. Comp. Laws, § 5605. The homestead claimant may file for record with the proper register of deeds a declaration of homestead, which must contain a statement showing the person making it is the head of a family and that he resides on the premises. Section 5623. Then it is provided the head of a family may be either the husband or wife and any person who has residing on the premises with him and under his care and maintenance his or her child, a minor brother or sister, a father or mother, and other dependents. Section 5626.
*643Thus it appears the homestead claimant must be the head of a family and he must have a dwelling house and he must reside in it.
In 1896 the title to the property in question was in Ida 13. Healy. She put a house on it, in which she resided with her husband and children. In 1901 the husband died, and, in time, the children, a son and a daughter, grew up and made their homes in Jamestown. Then Mrs. Healy rented the house to one Staley at $30 a month. He occupied it for four years. Then she rented it to Taylor, who occupied it for two years; then to Parsons who has occupied it since October 1, 1918. The house consists of six rooms and a bathroom. In renting it Mrs. Healy reserved one small room on the second floor, in which she stored all her household furniture, beds, and bedding. Her claim is that during the renting period she has maintained a residence in the house by making occasional visits to the room reserved and stored with the furniture.
Soon after the first renting of the lot the defendants levied an execution on the same. Then Mrs. Healy commenced an action to restrain the levy and sale, and this court held that the levy should be enjoined during such time as the premises continued to be a homestead. 30 N. D. 629, 153 N. W. 392. In that case it does not appear that any witnesses were sworn other than Mrs. Healy. Her testimony is quoted in the opinion and it covers three pages. It was not contradicted. In this case it is very different. While Mrs. Healy deposes that, she has been making monthly trips from Jamestown to Bismarck and living there one or two days at a time in the dismal room filled with furniture, her testimony is highly improbable and it is flatly contradicted. People do not keep up a residence in that way for six, for seven, or eight years. Then there is no claim that the judgments do not represent an honest debt which Mrs. Healy never purposes to pay, and that goes to her credibility. For truth and honesty are kindred virtues. They go together. A person who is not honest, neither is he truthful. Since October 1, 1918, Mrs. Jennie Parsons has occupied the house continuously every day without interruption. She testifies that during that time she has seen Mrs. Healy only twice and that she stayed at the house only half or three quarters of an hour. She says Mrs. Healy could not have lived in the room without her knowing it.
*644■Q. What is the condition of the room ?
A. Well, back from the door along the wall was chairs, dressers, commodes, pictures, and those were covered with bed sheets. There was an iron bed made up with clothes spread on it and pillows, and no mattress; and the window was closed, that is, with the furniture. She could not use the window; she could not get to it; there was too much furniture and it was piled up against the window and right in front of it. The room was 8 x 10 or a little larger.
The testimony, the facts and the circumstances show beyond doubt that when the property was sold to the plaintiff in August, 1919, it was not a homestead. Mrs ITealy did not reside in the house; she had not resided in it for years; she was not the head of a family. The city of Bismarck was not her postoffice address.
Now the statutes do also provide for a homestead by inheritance, which is - entirely different from the homestead in question. Section 5627. “Upon the death of a person in whom the title to real property constituting a homestead is vested, a homestead estate shall survive and descend in the order following: (1) To the surviving husband or wife for life. (2) To the testator’s minor child or children until the youngest attains majority. (3) In case of a surviving husband or wife dying before the majority of the youngest child, then to the decedent’s minor child or children until the youngest attains majority.”
Section 8723. “Upon the death of either husband or wife the survivor, so long as he or she does not again marry, may continue to possess and occupy the whole homestead.”
That section refers to the homestead by inheritance. If the title to the property in question .had been in the husband at the time of his death then the widow, that is, Mrs. Healy, would have taken an estate for life or so long as she did not again marry, but as such widow she would not have inherited the title. But when, as in this case, the surviving wife is the owner in fee of the homestead, her title and interest is not in any manner affected by the death of her husband. The probate court had no jurisdiction to set off or in any manner interfere with her homestead. She continues to hold the same under § 5605, and not otherwise. Thus it is apparent there are two classes of homesteads, and some courts have fallen into error by failing to note the distinction *645between the title to real property with a homestead exemption, and a homestead by inheritance for a limited time without any fee title.
In Healy v. Bismarck Bank, 30 N. D. 628, 153 N. W. 392, ex Chief Justice Bruce cites Comp. Laws, §§ 5627 and 8793, which relate to an inheritance or probate homestead. Then he says: It seems quite clear from those statutes that the homestead laws are made for the protection of the widow, whether she has children to support or not, and she will not lose her interest because her children have grown up or she does not happen to have any (p. 637). And that is true of a homestead by inheritance or a probate homestead, but in this case the. fact that the plaintiff is a widow has nothing whatever to do with her homestead rights, which is nothing only an exemption from sale on>. execution. The exemption is a family right rather than a personal right. First International Bank v. Lee, 25 N. D. 197, 141 N. W. 716. In Healy v. Bismarck Bank, supra, page 639, Justice Bruce writes: “There can be no doubt that if the title had been in the husband the interest of the wife would have been protected. “Why,” says the supreme court of Kentucky “should not the original owner have a right equal to the survivor, and why should not the law favor the latter equally with the former ? Is the party to be worsted because he owns the prop* erty ?”
Now, so far as such questions apply, it is for the legislature "to answer them, and not the courts. When a widow applies to the probate court for an interest in her husband’s land she takes just what the statute gives her and no more. But when the widow owns the fee title to a tract of land which she claims as a homestead her claim in no manner depends on her widowhood or the allowance of a probate court. It depends wholly on the statute which defines and limits a homestead right to the head of a family residing in a dwelling house on the land claimed as a homestead. Section 5605. Clearly at the time of the conveyance to plaintiff Mrs. Healy did not reside on the property in question and it was not her homestead. It was not exempt from sale on execution. The evidence in the record is sufficient to show an abandonment of the premises as a homestead. Accordingly the judgment should be modified by decreeing a lien in favor of the defendant thereon, for the amount of his judgments.