(concurring).
For the reasons stated by Mr. Justice FRICK, I am clearly of the opinion that the motion to dismiss should be overruled. I am equally confirmed in my opinion that the district court erred in holding that the $850 paid by the garnishee to the judgment debtor (appellant herein) before the levy was made should be considered and treated as proceeds of sale of his homestead and as part of his homestead exemption.
At the time this $850 payment was made neither the judgment debtor nor his wife, had made any declaration, selection or claim of their homestead exemption. Immediately, however, after the levy of garnishment was made, the judgment debtor, appellant, for the first time claimed his homestead exemption. He served notice in writing on the garnishee and the officers making the levy that he claimed as exempt from garnishment and execution the unpaid balance ($1,600) of the purchase price of the land he had sold to the garnishee as proceeds of sale of his homestead. He also served notice on the officers that he claimed all of a piece of land situated in Tremonton, Utah, valued at $200, and all of his equity, valued at $700, in another piece of ground to which he held the legal title, and which was covered by a mortgage, as a part of his exemption under the homestead law.
His family consisted of his wife and three minor children. The amount of the homestead exemption to which he was entitled was $2,750. The total value of the property and interests thus claimed by him was $250 less than the homestead exemption to which he was entitled under the provisions of the statute hereinafter mentioned.
Section 1 of Article 22 of the Constitution of this state provides that.:
“The Legislature shall provide by law, for the selection by *217eaeb head of a family, an exemption of a homestead, which may consist of one or more parcels of land, together with the appurtenances and improvements thereon of the value of at least fifteen hundred dollars from sale on execution. ’ ’
The Legislature, in compliance with this provision of the Constitution, passed an act (title 32, p. 502, C. L. 1907) providing for a homestead exemption not exceeding in value— “the sum of fifteen hundred dollars for the head of the family, and the further sum of five hundred dollars for his wife, and two hundred and fifty for each other member of his family.”
Section 1149 of the act provides that:
“.Any person who is the head of a family may make, a declaration of homestead in the manner provided in the next two sections, but a failure to make such declaration shall not impair the homestead right.” (Italics mine.)
Section 1150 provides for the recording of the declaration when properly executed and acknowledged in the office of the county recorder of the county or counties in which the land is situated. Section 1152 is as follows:
“It shall be the privilege of either the husband or the wife to claim and select a homestead to the full extent prescribed in this title,” etc. (Italics mine.)
It will be observed that this section of the statute gives to either spouse the right “to claim and select” as exempt a homestead not exceeding in value the amount fixed by statute at the time the levy of garnishment or execution is made. The word “select” has a defined and well-recognized meaning. Webster defines it to mean “to choose and take from a number; to take by preference from among others; to pick out; to cull. ’ ’ See, also, volume 7, Words and Phrases, 6401, and volume 4, Second Series, 507; Kimball v. Salisbury, 19 Utah 161, 56 Pac. 973.
The claim and selection of the homestead in this case was timely made. Bunker v. Goons, 21 Utah 164, 60 Pac. 549, 81 Am. St. Rep. 680; Hansen v. Mauss, 40 Utah 361, 121. Pac. 605. The judgment debtor having, in pursuance of, and in compliance with, the provisions referred to of the statute, claimed — selected—certain property and property rights be*218longing to Mm, as Ms homestead exemption, the court could not, without violating both the letter and spirit of the homestead exemption law, substitute property of the judgment debtor not claimed by him as exempt for any portion of the property designated in, or covered by, his claim of exemption. Nor co.uld the court, without doing violence to the provisions of the Constitution and statutes referred to, add to or include in the exemption property of the judgment debtor not claimed and designated by Mm as exempt.
That the trial court misconceived and misapplied the law in holding that the $850 paid by the garnishee to the judgment debtor before the levy of garnishment was made, was proceeds of the sale of his homestead and should be regarded and treated as a part of the homestead exemption, and thereby subjecting to levy and execution a portion of the property claimed and designated by the judgment debtor as exempt, in my opinion, is too plain to admit of serious discussion. There is just as much foundation in law and in reason for the court to hold, should its action he invoked, that the $1,400 received by the judgment debtor, if he did receive or get the benefit of it, was proceeds of sale of his homestead, and that he must consider and treat it as a part of Ms homestead exemption, and thereby subject $1,400 more of the property claimed and selected by him as exempt to levy and execution, as there is for the ruling of the court now under consideration.
To illustrate: Suppose the judgment debtor had, when he received the $850 as part of the purchase price of the land he sold to the garnishee, immediately purchased other lands with the money, but had omitted to claim and select it as a part of Ms homestead exemption; would it be seriously contended that the court under such circumstances could lawfully have set it apart as a portion of the homestead exemption, and thereby subject a portion of the property selected and claimed by the judgment debtor as exempt to levy and execution? I think not. And yet there would be just as much legal basis for an order of tMs kind, under the circumstances suggested, as there is for the ruling and order under consideration.
*219To further illustrate: Suppose appellant had declined and failed to claim and select any part or portion of the property and property interests mentioned as exempt under the homestead law, and his wife, under and in pursuance of Comp. Laws 1907, Section 1152, herein set forth, had selected and claimed the identical property selected by appellant, and that only; would it be seriously contended that the $850 received by her husband on the purchase price of the land sold to the garnishee herein, before the levy was made, by operation of law, automatically became a part of the funds claimed and selected as proceeds of sale subjecting to levy and execution a portion of the property actually selected and claimed by her as exempt ? I think not.
In my opinion, the affirmance of this judgment would go far toward defeating the very purpose for which the homestead law was enacted — a law which I regard as one of the mose wholesome and munificent enactments to be found in our statutes. To illustrate: A man with a family consisting of his wife and, say, four minor children depending upon him for a livelihood, and whose property consists of a home only, which is of the market value of, say, $6,000, and who, for purposes of raising money with which to educate his children, pay doctor bills and other necessary family expenses — the highest use to which money can be put — sells his home for its market value ($6,000) and receives $3,000 on the purchase price, the balance to be paid at some future time. He has the option, if the law under consideration means what ,it says and says what it means — and I submit that it does — to claim as exempt, as proceeds of the sale of his homestead, the money paid him or the unpaid balance of the purchase price, or to select a part of each fund as his exemption. If, however, the judgment were permitted to stand, then, in a case such as I have suggested, notwithstanding the judgment debtor may have paid out for the purposes thus mentioned the money received by him as part of the purchase price and claims as exempt the unpaid balance as proceeds of sale of his homestead, the court may, nevertheless, subject to a levy of garnishment and execution the unpaid balance or so much thereof as may be necessary to satisfy the claims of the judg*220ment creditors, and thereby partially, if not wholly, deprive him of his right to his homestead exemption.
For the reasons stated, I concur in the reversal of the judgment.