Dissentino Opinion.
Spencer, J.I can not concur in the conclusions of the majority of the court in this case.
The homestead act being exceptional in its character, in derogation of common rights, and restrictive of commerce, ought not to be extended beyond the scope of its plain and manifest terms. The law declares that the property of the debtor is the common pledge of his creditors; that real estate may be mortgaged; that contracts not forbid by law or morals are laws between the parties. Laws taking property out of commerce, and out of the operation of these great, universal, and elementary principles can not be extended by construction or intendment. The homestead act does not forbid the sale of the property subject to it, and therefore the debtor may sell it. It does not more forbid the mortgaging of it, and therefore it may be mortgaged. It only says that it shall be exempt from seizure and sale when “ owned by the debtor,” and “ occupied by him as a residence,” and when he “ has persons depending upon him for support.” All of these conditions must co-exist and concur to give exemption from seizure. As long as these conditions exist the property can not be seized.
That is the full extent of the law. It goes no further, and we can not extend it. It follows that if these conditions do not exist, or, if having existed they cease, the exemption is gone with them. A man can not acquire a vested right to a homestead. The -repeal of the law creating it, even after he has had it adjudged to him, will extinguish it. So a change of state in the owner may have the same effect. Thus a widow marrying again, or a married man losing his wife and children depending on him, can not claim the exemption. If the owner, whether before or after having claimed and had adjudged to him a homestéad, abandons it as a place of residence, it ceases to be exempt. The law exempts the implements of one’s trade by which he gains a living. The books of a lawyer are exempt, but only while they are the implements of his trade. *333If lie change his profession or cease to practice, they again enter into commerce, and become subject to the ordinary rules of property. Had the debtor in this case at bar sold the property in controversy before claiming the homestead, there is no doubt it would have passed subject to the plaintiff’s mortgage and could have been seized and sold to pay ";it. How can a subsequent sale have a greater effect ? How can the decree of this court divest that property of plaintiff’s mortgage ? Judgments are not creative, but declarative of rights, and assist in their execution.
In my opinion the judgment of the court should stop where the law stops.- It should declare the property exempt from seizure and sale under plaintiff’s mortgage upon the same conditions that the law declares it exempt, to wit: while bona fide owned by the debtor and occupied as a-residence, he having persons dependent upon him for support, etc. When these conditions cease to exist, the exemption should cease — ratione cessante cessat ipsa lex. A repeal of the homestead law, or what is the same thing, the cessation of the conditions of its operation, extinguishes the rights under it.
I therefore conclude that plaintiff should have judgment for the amount of his debt, with recognition of the mortgage claimed, .but suspending the execution of it upon the property as long as the conditions required by law for establishing a homestead exist.