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The Homestead Act

Author johnbsims3
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#1 | Posted: 23 Oct 2006 15:57 | Edited by: johnbsims3 
HOMESTEAD AND EXEMPTION LAWS are laws (principally in the United States) designed primarily either to aid the head of a family to acquire title to a place of residence or to protect the owner against loss of that title through seizure for debt. These laws have all been enacted in America since about the middle of the 19th century, and owe their origin to the demand for a population of the right sort in a new country, to the conviction that the freeholder rather than the tenant is the natural supporter of popular government, to the effort to prevent insolvent debtors from becoming useless members of society, and to the belief that such laws encourage the stability of the family.

By the cessions of several of the older states, and by various treaties with foreign countries, public lands have been acquired for the United States in every state and territory of the Union except the original thirteen, and Maine, Vermont, Kentucky, Tennessee and Texas. For a time they were regarded chiefly as a source of revenue, but about 1820, as the need of revenue for the payment of the national debt decreased and the inhabitants of an increasing number of new states became eager to have tile vacant lands within their bounds occupied, the demand that the public lands should be disposed of more in the interest of the settler became increasingly strong, and the homestead idea originated. Until the advent of railways, however, the older states of the North were opposed to promoting the development of the West in this manner, and soon afterwards the Southern representatives in Congress opposed the general homestead bills in the interests of slavery, so that except in isolated cases where settlers were desired to protect some frontier, as in Florida and Oregon, and to a limited extent in the case of the Pre-emption Act of 1841, the homestead principle was not applied by tile national government until the Civil War had begun.

A general homestead bill was passed by Congress in 1860, but this was vetoed by President James Buchanan. Two years later, however, a similar bill became law. The act of 1862 originally provided that any Citizen of the United States, or applicant for citizenship, who was the head of a family, or twenty-one years of age, or if younger, had served not less than fourteen days in the army or navy of the United States during an actual war, might apply for 160 acres or less of unappropriated public lands, and might acquire title to this amount of land by residing upon and cultivating it for five years immediately following, and paying such fees as were necessary to cover the cost of administration.

A homestead acquired in this manner was exempted from seizure for any debt contracted prior to the date of issuing the patent. A commutation clause of this act permitted title to be acquired after only six months of residence by paying $1.25 per acre, as provided in the Pre-emption Act of 1841. Act of 1872, amended in 1901, allows any soldier or seaman, who has served at least ninety days in the army or navy of the United States during the Civil War, the Spanish-American War or in the suppression of the insurrection in the Philippines, and was honorably discharged, to apply for a homestead, and permits the deduction of the time of such service, or if discharged on account of wounds or other disability incurred in the line of duty, the full term of his enlistment, from the five years otherwise required for perfecting title, except that in any case he shall have resided upon and cultivated the land at least one year before the passing of title. Since 1866 mineral lands have been for the most part excluded from entry as homesteads.

In accordance with the provisions of the homestead law, 718,930 homesteads, containing 96,495,414 acres, were established in forty-two years, and besides this principal act, Congress has passed several minor laws of a like nature, that is, acts designed to benefit the actual settler who improves the land. Thus the Pre-emption Act of 1841 gave to any head of a family or any single person over twenty-one years of age, who was a citizen of the United States or had declared his intention to become one, permission to purchase not to exceed 160 acres of public lands after he had resided upon and improved the same for six months; the Timber-Culture Act of 1873 allowed title to 160 acres of public prairie-land to be given to any one who should plant upon it 40 acres of timber, and keep the same in good growing condition for ten years; and the Desert-Land Act of 1877 gave to any citizen of the United States, or to any person who had declared his intention to become one, the privilege of acquiring title to 640 acres of such public land as was not included in mineral or timberlands, and would not without irrigation produce an agricultural crop, by paying twenty-five cents an acre and creating for the tract an artificial water-supply.

These several land acts, however, invited fraud to such an extent that in time they promoted the establishment of large land holdings by ranchmen and others quite as much as they encouraged settlement and cultivation, and so great was this evil that in 1891 the Timber-Culture and Pre-emption Acts were repealed, the total amount of land that could be acquired by any one person under the several land laws was limited to 320 acres, the Desert-Land Act was so amended as to require an expenditure of at least three dollars an acre for irrigation, and the original Homestead Act was so amended as to disqualify any person who was already proprietor of more than 160 acres in any state or Territory of the Union for acquiring any more land under its provisions; and in 1896 a residence of fourteen months was required before permitting commutation or the purchase of title.

But even these measures were inadequate to prevent fraud. In 1894 Congress, in what is known as the Carey Act, donated to California, Oregon, Nevada, Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico and the Dakotas so much as 5 million acres each of desert-lands as each should cause to be irrigated, reclaimed and occupied within ten years, not less than 20 acres of each 160 acres to be cultivated by actual settlers; and in several of these states and territories' irrigating companies have been formed and land offered to settlers in amounts not exceeding 160 acres to each, on terms requiring the settler to purchase ample and perpetual water-rights. In 1902, Congress appropriated the proceeds of the sales of public lands in these states and territories to form a reclamation fund to be used for In 1901 it was provided that the ten years should date from the segregation of the lands from the public domain.

The construction and maintenance of irrigation works, and lands reclaimed by this means are open to homestead entries, the entry man being required to pay for the cost of reclamation in ten equal annual installments without interest. When Texas was admitted to the Union the disposal of its public lands was reserved to the state, and under its laws every person who is the head of a family and without a homestead may acquire title to 160 acres of land by residing upon and improving it for three years; every unmarried man eighteen years of age or over may acquire title to 80 acres in the same way.

A short time before the National Homestead Act for aiding citizens to acquire homesteads went into operation, some of the state legislatures had passed homestead and exemption laws designed to protect homesteads or a certain amount of property against loss to the owners in case they should become insolvent debtors, and by the close of the century the legislature of nearly every state in the Union had passed a law of this nature. These laws vary greatly. In most states the exemption of a homestead or other property from liability for debts can be claimed only by the head of a family, but in Georgia it may be claimed by any aged or infirm person, by any trustee of a family of minor children, or by any person on whom any woman or girls are dependent for support; and in California, although the head of a family may claim exemption for a homestead valued at $5000, any other person may claim exemption for a homestead valued at $1000. In some states exemptions may be claimed either for a farm limited to 40, 50, 160 or 200 acres, or for a house and one or more lots, usually limited in size, in a town, village or city; in other states the homestead for which exemption may be claimed is limited in value, and this value varies from $500 to $5000.

With the homestead are usually included the appurtenances thereto, and the courts invariably interpret the law liberally; but many states also exempt a specified amount of personal property, including wearing apparel, furniture, provisions, tools, libraries and in some cases domestic animals and stock in trade. A few states exempt no homestead and only a small amount of personal property. Maryland, for example, exempts only $100 worth of property besides money payable in the nature of insurance, or for relief, in the event of sickness, injury or death. To some debts the exemption does not usually apply; the most common of these are taxes, purchase money, a debt secured by mortgage on the homestead and debts contracted in making improvements upon it; in Maryland the only exception is a judgment for breach of promise to marry or in case of seduction. If the homestead belongs to a married person, the consent of both husband and wife is usually required to mortgage it.

Finally, some states require that the homestead for which exemption is to be claimed shall be previously entered upon record, others require only occupancy, and still others permit the homestead to be designated whenever a claim is presented.

Following the example of either the United States Congress or the state legislatures, the governments of several British colonial states and provinces have passed homestead laws. In Quebec every settler on public lands is allowed, after receiving a patent, an exemption of not to exceed 200 acres from that of his widow, of his, her or their children and descendants in the direct line. In Ontario an applicant for a homestead may have not to exceed 200 acres of unappropriated public land for farming purposes by building a house thereon, occupying it for five years, and bringing at least fifteen acres under cultivation; the exemption of such a homestead from liability to seizure for debts is, however, limited to twenty years from the date of application for the land, and does not extend even during that period to rates or taxes. Manitoba, British Columbia, Queensland, New South Wales, South Australia, West Australia and New Zealand also have liberal homestead and exemption laws.

--See J, B. Sanborn, Some Political Aspects of Homestead Legislation, in The American historical Review (1900); Edward Manson, The Homestead Acts, in the Journal of the Society of Comparative Legislation (London, I899)~ S. I). Thompson, A Treatise on Homesteads and Exemptions (San Francisco, 1886); P. Bureau, Le Homestead... (Paris, 1894), and L. Vacher, Le Homestead aux Etats-Unis (Paris, 1899). (N. D. M.)


The purpose of the homestead exemption is to protect a debtor and his or her family in a home from forced sale on execution or attachment. See Fisher v. Kellogg, 128 Neb. 248, 258 N.W. 404 (1935). Any interest in real estate, either legal or equitable, that gives a present right of occupancy or possession, followed by exclusive occupancy, is sufficient to support a homestead right therein. Mainelli v. Neuhaus, 157 Neb. 392, 59 N.W.2d 607 (1953). See, also, Fisher v. Kellogg, supra. It is not necessary that the ownership be of an estate in fee simple, but any interest, either legal or equitable, that gives a present right of occupancy or possession, followed by exclusive occupancy, is sufficient to support a homestead right therein. Id.

Synopsis: The Homestead Act of 1862

Homestead Act

1862, passed by the U.S. Congress. It provided for the transfer of 160 acres (65 hectares) of unoccupied public land to each homesteader on payment of a nominal fee after five years of residence; land could also be acquired after six months of residence at $1.25 an acre. The government had previously sold land to settlers in the West for revenue purposes. As the West became politically stronger, however, pressure was increased upon Congress to guarantee free land to settlers. Several bills providing for free distribution of land were defeated in Congress; in 1860 a bill was passed in Congress but was vetoed by President Buchanan. With the ascendancy of the Republican party (which had committed itself to homestead legislation) and with the secession of the South (which had opposed free distribution of land), the Homestead Act, sponsored by Galusha A. Grow, became law. In 1976 it expired in all the states but Alaska, where it ended in 1986.

The original Homestead Act was passed by Congress May 20, 1862, and took effect January 1, 1863 (the same day that the Emancipation Proclamation took effect). The benefits of the Act were not available to residents of Florida until after the Civil War. The first homestead grants in Florida were made on January 6, 1873. On that day, 12 were granted in West Florida, 2 in Leon County and 10 in Gadsden County. It was not until June 24, 1878 when the first homestead patents were granted west of the Apalachicola River. On that day, 7 were granted. One was to the Rev. John Newton, the former school master of the Walton County Knox Hill Academy. His grant was for the land surrounding his sea side cottage on the narrows of Santa Rosa Sound, where he had moved 7 years before with his daughters, Mary and Esther.

Over the years, there were many changes to the Homestead Act. The following summary applies only to the original act.

ELIGIBILITY: To be eligible, a person had to be 21 years of age, or the head of a family, or have met certain military requirements. He or she also had to be a U.S. citizen or have filed a declaration of intention to become one. And the final requirement was that he or she must not have borne arms against the U.S. or given aid and comfort to its enemies (a significant restriction at the time of enactment with the Civil War well underway).

RIGHTS GRANTED: The act permitted an eligible person to enter (move onto) unappropriated public land upon which the applicant already had preemption rights, or which was subject to preemption rights, after filing an application with the register of the Land Office, along with an affidavit and a $10 fee. The affidavit attested to the above requirements, plus the requirement that the land was being entered for the exclusive use of the applicant and for settlement and cultivation.

AMOUNT OF LAND: The maximum quantity of land which could be entered was one quarter Section (160 acres) of land if it was the type having a minimum price of $1.25/acre or less (almost always the case in West Florida), or 80 acres of land if it was the type having a minimum price of $2.50/acre. The entire quantity of land had to be in one body and not spread around. For those who already owned land which they resided on, they could homestead land contiguous to their land, so long as the total of their previously owned land and the contiguous land being homesteaded did not exceed 160 acres.

5 YEAR REQUIREMENT: A patent certificate could be obtained by the homesteader after continuously residing on and cultivating the land for 5 years. To obtain the patent, the homesteader had to file another affidavit attesting to the original requirements, plus having met the 5 year requirement and a statement that no part of the land had been sold, given away or otherwise alienated. Affidavits from two witnesses to the above effect were also required. And, of course, an additional fee was required. If the homesteader was not a U.S. citizen at the time of his original application, he must have become one before being issued a Homestead Patent. The patent certificate must have been applied for within 2 years of completing the 5 year residency and cultivation requirement.

HOMESTEAD COULD NOT BE SOLD OR SUBJECT TO DEBTS: During the period from initial entry and application until final issuance of the patent, no part of the homesteaded land could be sold or taken for debts of the homesteader. Even after the issuance of the patent, the homesteaded land could not be taken for debts which were contracted before the issuance of the patent. (This was probably intended to prevent sales of the land hidden behind sham loans.)

SHORTCUTTING THE PROCESS: At any time during the 5 year settlement and cultivation period the Homesteader could short-cut the process by paying the minimum price established for the land.

RIGHTS OF HEIRS: The Act provided extensive protection for heirs in the event the homesteader died before completing the process.
The entire text of the original act is reprinted below.

Text of Original Homestead Act

37th Congress Session II 1862

Chapter LXXV. - An Act to secure Homesteads to actual Settlers on the Public Domain.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person who is the head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the United States, or who shall have filed his declaration of intention to become such, as required by the naturalization laws of the United States, and who has never borne arms against the United States Government or given aid and comfort to its enemies, shall, from and after the first January, eighteen hundred and sixty-three, be entitled to enter one quarter section or a less quantity of unappropriated public lands, upon which said person may have filed a preemption claim, or which may, at the time the application is made, be subject to preemption at one dollar and twenty-five cents, or less, per acre; or eighty acres or less of such unappropriated lands, at two dollars and fifty cents per acre, to be located in a body, in conformity to the legal subdivisions of the public lands, and after the same shall have been surveyed: Provided, That any person owning and residing on land may, under the provisions of this act, enter other land lying contiguous to his or her said land, which shall not, with the land so already owned and occupied, exceed in the aggregate one hundred and sixty acres.

Sec. 2. And be it further enacted, That the person applying for the benefit of this act shall, upon application to the register of the land office in which he or she is about to make such entry, make affidavit before the said register or receiver that he or she is the head of a family, or is twenty-one years or more of age, or shall have performed service in the army or navy of the United States, and that he has never borne arms against the Government of the United States or given aid and comfort to its enemies, and that such application is made for his or her exclusive use and benefit, and that said entry is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use of benefit of any other person or persons whomsoever; and upon filing the said affidavit with the register or receiver, and on payment of ten dollars, he or she shall thereupon be permitted to enter the quantity of land specified: Provided, however, That no certificate shall be given or patent issued therefor until the expiration of five years from the date of such entry; and if, at the expiration of such time, or at any time within two years thereafter, the person making such entry; or, if he be dead, his widow; or in case of her death, his heirs or devisee; or in case of a widow making such entry, her heirs or devisee, in case of her death; shall prove by two credible witnesses that he, she, or they have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit aforesaid, and shall make affidavit that no part of said land has been alienated, and that he has borne true allegiance to the Government of the United States; then, in such case, he, she, or they, if at that time a citizen of the United States, shall be entitled to a patent, as in other cases provided for by law: And provided, further, That in case of the death of both father and mother, leaving an infant child, or children, under twenty-one years of age, the right and fee shall enure to the benefit of said infant child or children; and the executor, administrator, or guardian may, at any time within two years after the death of the surviving parent, and in accordance with the laws of the State in which such children for the time being have their domicil, sell said land for the benefit of said infants, but for no other purpose; and the purchaser shall acquire the absolute title by the purchase, and be entitled to a patent from the United States, on payment of the office fees and sum of money herein specified.

Sec. 3. And be it further enacted, That the register of the land office shall note all such applications on the tract books and plats of his office, and keep a register of all such entries, and make return thereof to the General Land Office, together with the proof upon which they have been founded.

Sec. 4. And be it further enacted, That no lands acquired under the provisions of this act shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor.

Sec. 5. And be if further enacted, That if, at any time after the filing of the affidavit, as required in the second section of this act, and before the expiration of the five years aforesaid, it shall be proven after due notice to the settler, to the satisfaction of the register of the land office, that the person having filed such affidavit shall have actually changed his or her residence, or abandoned the said land for more than six months at any time, then and in that event the land so entered shall revert to the government.

Sec. 6. And be it further enacted, That no individual shall be permitted to acquire title to more than one quarter section under the provisions of this act; and that the Commissioner of the General Land Office is hereby required to prepare and issue such rules and regulations, consistent with this act, as shall be necessary and proper to carry its provisions into effect; and that the registers and receivers of the several land offices shall be entitled to receive the same compensation for any lands entered under the provisions of this act that they are now entitled to receive when the same quantity of land is entered with money, one half to be paid by the person making the application at the time of so doing, and the other half on the issue of the certificate by the person to whom it may be issued; but this shall not be construed to enlarge the maximum of compensation now prescribed by law for any register or receiver: Provided, That nothing contained in this act shall be so construed as to impair or interfere in any manner whatever with existing preemption rights; And provided, further, That all persons who may have filed their application for a preemption right prior to the passage of this act, shall be entitled to all privileges of this act: Provided, further, That no person who has served, or may hereafter serve, for a period of not less than fourteen days in the army or navy of the United States, either regular or volunteers under the laws thereof, during the existence of an actual war, domestic or foreign, shall be deprived of the benefits of this act on account of not having attained the age of twenty-one years.

Sec. 7. And be it further enacted, That the fifth section of the act entitled "An act in addition to an act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes," approved the third of March, in the year eighteen hundred and fifty-seven, shall extend to all oaths, affirmations, and affidavits, required or authorized by this act.

Sec. 8. And be it further enacted, That nothing in this act shall be so construed as to prevent any person who has availed him or herself of the benefits of the first section of this act, from paying the minimum price, or the price to which the same may have graduated, for the quantity of land so entered at any time before the expiration of the five years, and obtaining a patent therefor from the government, as in other cases provided by law, on making proof of settlement and cultivation as provided by existing laws granting preemption rights.

APPROVED, May 20, 1862.

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