Opinion of the Court--Beatty, J.

implication. This view, if we are correct in attributing it to the district judge, was, we think, a mistake. Repeals by implication are not favored, and are only held to have occurred in cases of irreconcilable repugnancy between the later and the former enactment, when the two cannot stand together, (Thorpe v. Schooling, 7 Nevada, 17) and there is no such repugnancy between these two acts. Each may stand and have its full operation without coming in conflict with any provision of the other. They are entirely independent, and, in fact, contemplate different objects. Each is intended to exempt the homestead from certain liabilities; but the one, the homestead act, exempts it from liability for the debts of the owner, so long, at least, as he continues to be the head of the family, no matter at what time, after November 13, 1861, the debts may have been contracted-whether before or after the family relation commenced, or before or after the homestead was dedicated. The other, the probate act, has a more limited, but at the same time, an independent operation. It merely exempts the homestead in favor of the widow or minor child or children of a deceased person, from the payment of the general debts contracted by him in his lifetime, and from debts accruing in the course of administration. A homestead, set apart under the probate act, simply becomes not subject to administration, that is, not subject to the claims of general creditors of the estate, but it remains subject, in the hands of the widow, to the payment of her debts, whether contracted before or after it was so set apart. To make it a homestead, within the meaning of the homestead act, so as to be exempt from the payment of her debts, as well as those of her deceased husband, she would have to claim it under the homestead law; and, in order to do that, she would be obliged to show that she was the head of the family, which the appellant in this case has not done. It does not follow, however, that because she cannot avail herself of the privileges of the homestead act and secure a homestead that will be exempt from liability for her own debts, that she must therefore be denied the benefit of an act which was designed to secure to a widow, whether childless

Opinion of the Court--Beatty, J.

or not, a homestead exempt from liability for the debts of her deceased husband. It would indeed be a strange anomaly in our laws if they really bore this construction: that a man and his wife, or either of them, may, at any time before his death, exempt their homestead from all liability for the debts of either, whether contracted before or after the declaration of homestead; but that, if the husband dies before such declaration is made, his widow, if she happens to be childless, must be turned out of doors in order to pay the expenses of administration-that the very bereavement that makes the exemption of a homestead more necessary, utterly deprives her of the right. In this case, there can be no doubt that at any time before the death of David Walley, he or his wife, either, might have secured this homestead from liability for his debts by filing the declaration provided for in the homestead act. Since his death, she has lost the right to proceed under that act, because she is "unmarried" and is not the "head of a family," and if her rights were not otherwise secured, it might follow that her husband's creditors could take from her what they could not have taken from him in his lifetime. But her rights are otherwise secured. They are secured by the provisions of the probate act above quoted, which have never been repealed by implication or otherwise.

in

It is in section four of the homestead act (C. L. 189), if any, that the repugnant matter is to be found. That section is an enlargement and adaptation of section 9 of the homestead act of 1861, of which the whole act is simply a re-enactment with some trifling alterations, and the addition of provisions for recording homesteads and declarations of abandonment, made, no doubt, for the purpose of carrying out the apparent purpose of the framers of the constitution to make registration of the homestead a condition precedent to its exemption, and to the disability of the owner to alienate or incumber it. It is true that the terms in which the law was enacted defeated the intention of its framers (Hawthorne v. Smith, 3 Nev. 182;) but still it is apparent that it was passed with no other object than the one supposed, and, least of all, with the object of taking away

Opinion of the Court-Beatty, J.

the existing rights of widows and minor children. Section 4 of the act is as follows: "The homestead and other property exempt from forced sales shall, upon the death of either husband or wife, be set apart by the court for the benefit of the surviving husband or wife, and his or her legitimate children; and in the event of there being no survivor or legitimate children, then the property shall be subject to the payment of their debts; provided, that the exemption provided for in this act shall not extend to unmarried persons, except when they have the care and maintenance of minor brothers or sisters, or both, or brothers' or sisters' minor children, or a father or mother, or both, or grandparents or unmarried sisters living in the house with them." This section, down to the proviso, is not only consistent with the provisions of the probate act upon which the appellant relies, but enlarges their operation. It enables the probate court to do for a childless widower what the probate act only authorizes to be done for a widow. It protects the homestead in his hands against her debts as the former act protected it in her hands against his debts. If it does not mean this it means nothing. The proviso does not conflict with this construction. It seems to have been added, like most provisos, out of abundant caution. Apparently, it was feared that without the qualification contained in the proviso the section might be construed to mean that a surviving husband or wife, though childless and without dependent relatives, would take the homestead, and hold it, not only exempt from claims against the deceased, but also from the debts of the survivor, which is the "exemption provided for in this act," and which, therefore, is the only exemption excluded by the proviso. The other exemption in favor of the survivor against the debts of the deceased is not excluded by it, and this is the only exemption which the appellant claims.

Another point remaining to be noticed is the effect of the declaration of abandonment of homestead made by the appellant and her deceased husband. As to this point it is to be observed that the law does not make the filing of a declaration of abandonment of a homestead constitute in itself

Opinion of Hawley, C. J., concurring.

an abandonment. There can be no abandonment without the filing of such a declaration, but it does not necessarily follow that an abandonment takes place whenever such a declaration is filed. It may be that it is also necessary for the parties to cease to reside on the premises. But in the view we entertain of the case, it will not be necessary to decide this question. Supposing there was an abandonment, the only effect of it was to invest the husband with the power to alienate the premises or subject them to some specific lien during the continuance of the abandonment. There was nothing to prevent the parties from again declaring a claim of homestead in the same premises, the effect of which would have been to exempt them from liability for any debt contracted subsequent to Nov. 13, 1861, and not secured by specific lien. (Com. L. 186; Hawthorne v. Smith, supra.) Still less was there anything to prevent the district judge from setting apart the actual homestead for the use of the widow. "The homestead as designated by the general homestead law," which he is commanded to set apart for her use, is not a homestead that has already been secured by that law, but a homestead of the character and value prescribed by that law.

For these reasons the order of the district court must be reversed, and the cause remanded for further proceedings to be had in accordance with the views herein expressed. The homestead claimed by the appellant in this case being appraised at more than five thousand dollars, and being subject to the payment of the mortgage of Virgin, may have to be sold, but in case of a sale the right of the widow to five thousand dollars of the proceeds, if that much remains after payment of the mortgage and expenses of foreclosure, must be secured. All of which is so ordered.

HAWLEY, C. J., concurring:

I concur in the opinion of the court, that it was the duty of the district judge, under the provisions of the statutes cited to set apart the property for the use of the petitioner; but I have doubts whether the property, when so set apart, would be subject to the payment of her debts; and as this

Points decided.

question is not, in my judgment, necessarily involved in the decision of this case, I do not express any opinion in regard to it.

[No. 760.]

N. D. CHAMBERLAIN AND J. P. WINNIE, RESPOND. ENTS, v. L. STERN, APPELLANT.

POSSESSION OF PERSONAL PROPERTY.-Where certain personal property was sold on the twenty-first of November, and the testimony shows a delivery at that time, and a change of possession until April 1, but after that date and before the levy of a third party, the possession was restored to the grantor, who was in actual possession at the time of the levy as bailee: Held, that the court erred in finding that the change of possession continued after April 1, and in finding that the defendant took the property from the grantees.

IDEM. Whether the change of possession that did take place was sufficiently open, unequivocal and continuous, to satisfy the statute of frauds, is a question of fact for the court or jury to determine.

CONSIDERATION OF SALE.-Where the bill of sale offered in evidence recited

a consideration of $1,600, and the grantor and grantee both testified that money was paid: Held, that it was error to refuse to allow the defendant to ask these witnesses how much money was paid as the consideration of the alleged sale.

PLEADINGS ALLEGING FRAUD.-Where personal property is found in the possession of the execution debtor, and, after levy, is claimed by a stranger, the officer is not bound to surmise that there may have been a sale, and so attack it for fraud in his answer.

IDEM. The officer is not bound to assail the transaction till it is brought to his knowledge, and if it makes its first appearance at the trial, he may meet it there with proof of the fraud.

FRAUD, HOW ESTABLISHED BURDEN OF PROOF.-Proof of fraud was part of the defendant's case, but proof of the consideration was part of the plaintiff's case; to prove the amount of the consideration was not to prove fraud. Inadequacy of consideration is an element of fraud in some cases, and the burden of proving it in this case was on the defendant, but he had a right to know what the amount of the consideration was before offering proof that it was inadequate.

APPEAL from the District Court of the Second Judicial District, Ormsby County.

The facts are stated in the opinion.