THOMAS B. SMITH, APPELLANT,

v.

GUCKENHEIMER & SONS, APPELLEES

Third. The granting of the decree dated May 20th, 1895.

Fourth. The rendition of the final decree dated June 15 th, 1895.

The first and second of these assignments will have to be treated as abandoned, since the appellant in preparing his abstract of the record has failed to-give the material substance of the defendants’ cross-bill that was demurred to, and has failed also to give the material substance of the exceptions filed by him to the answer of the defendant, and has failed also to give the material substance of such answer, all of which, in the language of Rule 20 of this court, “have a necessary and material bearing on the questions presented by” these two assignments of error, and were vitally necessary to “a full, fair and clear presentation thereof” for adjudication. The third and fourth assignments of error involve a construction of the provisions of section 1 of Article X of our constitution, in so far as it affects the homestead exemption within the limits of incorporated cities and towns. This section reads as follows: “A homestead to the extent of 'one hundred and sixty acres of land, or the half 'of one acre within the limits of any incorporated city or town, owned by the head of a family residing-in this State, together with one thousand dollars’ worth of personal property, and the improvements on the real estate, shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists. But no' property shall be exempt from sale for taxes or assessments, or for the payment of obligations contracted for the purchase of said property, or for the erection or repair of improvements on the real estate exempted, or for house, field, or other labor performed on the same. The exemption herein provided for in a city or town shall not extend to more improvements or buildings than the residence and business house of the owner; and no judgment or decree or execution shall be a lien upon exempted property except as provided in this article.”

It must be observed in the outset that this provis io-n of our organic law differs-materially from the homestead pro-visions of all the other States; and that, therefore, but little, if any, light for its proper construction can be derived from the diverse decisions of our sister States upon their varying provisions of law on the same subject. The case in hand calls for a solution of the intent, meaning and effect of the following limitation of the urban homestead: “The exemption herein provided for in a city or town shall not extend to more improvements or buildings than the residence and business house of the o-wner.” This clause, it-will be observed, follows after the pro-visions for the exemption of a homestead in a city or town, and what is it that is thus previously exempted in a city or town? “The half of one acre.” Of what? Land, of course, since nothing but land is designated, in our tongue, by the word acre. The “exemption,” then, that is limited and curtailed by the presence thereon of other improvements or buildings than the residence and business house .of the owner necessarily means the land within the prior prescribed area that is dedicated to the support of such other improvements or buildings than the residence and business house of the owner. In other words, if such urban resident confines his improvements and building's to his own residence and business house, then, no-matter what may be the design, size or value of such buildings, they, together with the half acre of ground upon which they stand, are exempt to him from his debts; but when he puts other buildings or improvements upon the half acre than his residence and business house, he thereby dedicates those portions of the exempted half acre devoted to the support and uses of such-other improvements or buildings, to-other uses than those of the leg'ally tolerated residence and business purposes of-himself, and thereby abandons such portions of the half acre, and by such abandonment forfeits his right to exempt them from his debts. This provision of the constitution does not undertake to-dictate or prescribe the design, size or value of the residence or business house that it includes in the exemption. Plow, then, is the exempted residence and business house to be recognized and distinguished ? Only by their actual tise as such by the party asserting the exemption thereof. On the other hand, .how are the other non-exempt improvements and buildings to be recognized and distinguished when present?' Likewise, by the uses to which they are actually and permanently devoted; aided, perhaps, by their architectural design, and, in some cases, by their .bare presence without being used at all for any purpose. Illustratio: The ex-empto-r^ besides the house that he actually resides in, erects upon his half acre lot another separate house designed for residence purposes, that with its necessary outbuilding appurtenances, well, etc., is partitioned off by fencing to itself, but is not used for any purpose by the owner, nor does he rent the same, simply lets it stand there unoccupied and unused. Such extra house and the land it occupies with its appurtenant outbuildings, well and ground separately enclosed with it, would not be exempt, but would be treated as abandoned. On the other hand, the exemptor, besides his residence house, has a business house that he uses in conducting his own profession, business or employment; besides this, he erects on his half acre lot still another separate building designed for a business house, separates it by an enclosure from the rest of his lot, but does-not use it himself, nor does he let others use it; simply lets it stand there unoccupied and unused, such extra business house with the land upon which it rests, together with the land separately enclosed around it, would not be exempt, but should be treated as abandoned. The quoted limitation of our constitution, then, in short, confines the improvements and building's upon the urban homestead to such only as constitute the actual residence and business house of the ozvner, and withholds the quality of exemption from debts from all other improvements or buildings with those portions of the limited half acre devoted separately to them as do not constitute such residence -and bzisiness house. The case under consideration presents the complication of a single indivisible building-that combines within itself the residence and business house of the owner, besides other rooms on the ground floor permanently leased to tenants. These rooms thus permanently leased to tenants, did they constitute a separate building to itself on another part of the owner’s half acre away from his residence, would, undoubtedly, together with the land that they occupied or that wás separately devoted.to them, not be exempt. Does the fact that they are made part of the indivisible building that constitutes the residence of the owner include them within the exemption that attaches to the residence and business house, when the constitution expressly excludes them from the exemption as being “more improvements than the residence and business housé of the owner?” The answer must be in the negative; otherwise the skill of the architect can be utilized to annul or successfully evade the plain provision of the organic law, and the exemptor by its use, with a single building under one roof, with its many stories piled skyward, could not only fulfill the purpose of this law in supplying himself and family with a residence and business house, but, besides, could supply a score of other families with residences and business houses, to the great pecuniary advantage of himself, but to the great wrong and injury of his creditors. To prevent such a condition of affairs was the evident purpose of the quoted limitation of the constitution upon the urban homestead when it declares, in effect, that the exemption provided for in cities and towns shall not include improvements and buildings that are not the residence and business house of the owner, and it can make no difference in principle whether the excluded improvement be a separate building occupying a different piece of the half acre of ground, or whether it is built into and forms part of the house in which the owner resides. The difficulty presented in the latter class of cases, where the excluded improvement forms part of the building that comprises the residence of the ex-emptor, is to arrive at the correct rule for severing the exempted part of the building from that which is not exempt, particularly where such building is incapable of division without destruction. . We have seen that where the non-exempt improvement or building occupies a separate part of the half acre, that the ground upon-which it rests and that is separately devoted to' its use loses its feature of exemption and becomes subject to debts. Why should not the same result follow the inhibited improvement when mixed in with the building that comprises the residence and business house? It may be answered that the application of the same rule in the case of a mixed building might deprive, the owner in some eases of his entire homestead, when in point of fact he actually occupies and uses the same ground with the residence part of his building-that is likewise occupied by those parts thereof that are not in any sense his residence or business place. The repfy to this is that a man cannot by any act of his impart the legal quality of immunity' from debts to-property that the law says shall not be exempt when certain conditions exist. The constitution says, in effect, that the improvements and buildings on the urban half acre together'with the ground that they occupy, that are not the residence and business house of the owner, shall not be exempt. Can the owner by adding' an additional story to-such non-exempt improvement or building, and utilizing it as his residence, impart to it and the ground it occupies the quality of exemption? Most assuredly not.

In order to be exempt, the property must have all the qualities necessary under the constitution to-exemption, but it must have nothing more. It must not exceed the half of one acre in the incorporated town, it m-ust be resided upon by the owner, and in addition to his residence he can have for himself a business house thereo-n. These are the qualities that necessarily stamp it as exempt, but it must not have upon it other improvements or buildings than such residence and busi-.ness house with' their appropriate appurtenances; if so, the part o-r parts thereof devoted to such other uses and purposes than those of the residing place and business place of the owner lose their quality of exemption. When a man undertakes to assert the status of ex-empto-r towards a given house, the legal use of such house that will support such status is that of residence for himself; permanent occupancy by others for pur: poses of revenue to himself is not a legal use that can be invoked to maintain the status of exemptor. And if such house is devoted to-both the legal and the illegal use, the latter will nullify the former and the exemption must fail. And, in order to preserve unim paired the principles and rights’that govern the ownership of real estate, the forfeiture of the right of exemption that follows upon the presence on the urban half acre of other improvements or buildings than the residence and business house must be visited upon and regulated by the soil covered or occupied by such inhibited improvements or buildings or separately devoted to their use. The result of the discussion is, in short, that in cases of separate or detached buildings upon the urban half acre, that are not the residence or business house of the owner, nor necessary outbuildings used in connection therewith, such separate or detached buildings, together with the ground that they occupy and the ground around them separately devoted to their use, are not exempt. In those cases where the nonexempt improvement or building' is combined in a single structure that likewise constitutes the residence or business house of the owner, the soil perpendicularly under .1and covered by' any such non-exempt improvement is improperly dedicated to other uses than are consistent with the constitutional right of exemption thereof, and is, therefore, not exempt, and this whether such nonexempt improvement be situated upon the first, second, third, fourth or tenth floor of a many storied building, and notwithstanding the fact that the space perpendicularly above or below such non-exempt improvement may be properly utilized by the owner for legitimate residence or business purposes; and the loss by such soil of the quality of exemption carries with it, under the maxim, cujus est solum ejus est usque ad coelum, the loss of the quality of exemption to everything perpendicularly above such soil. It may be that in the application of this rule the whole of the residence or business house exemption may be taken away and defeated, but, in such case, the blame must fall upon the exemptor who thus devotes the same soil to the two inconsistent uses, the one legally sufficient to support the exemption contended for, the other legally sufficient to defeat or destroy it.

Under this construction, according' to-my view, the court below erred in its order extending to' the appellant the right to select the part of the building that he desired to fix upon as his residence and business place, since by doing so he may have by his own act of selection imparted the quality of exemption to s.ome portion of the soil that had lost such quality by the presence on it or over it of non-exempt improvements, but, as the appellant failed to avail himself of the right of selection thus extended, this error is cured by the subsequent final decree that singles out the land or soil covered by the.south thirty-nine feet of the building together with all the vacant portions of said lot and adjudges it to be exempt as the homestead of the appellant, and adjudges the residue of the lot to be' subject to sale.

This disposition of the property made by the final decree takes in a part only of the soil that has been devoted to other uses than those recognized by the constitution in conformity with the views above expressed; its only vice is that it does not condemn all of the ground covered by the inhibited improvements, but as the judgment creditor expressly agreed to the propriety of the decree in the matter of the extent to which it went, there is no one who has any right to complain of the fact that it has not gone as far as it could with propriety have g'one, and my view, therefore, is that the decree of the court below should be affirmed. The decree of the court below is hereby affirmed.

Carter, J.:

The court decides this case upon the facts set forth in the statement prepared by Mr. Justice Mabry in connection with his opinion. That statement is substantially a copy of appellant's abstract of record, adding thereto two. of the decrees in full rendered by the court below. The abstract does not truly present the pleadings, issues and facts of the case as represented by the transcript of the record, and in deciding the case upon the abstract we are not passing upon the precise case presented to. and decided by the lower court, as I shall presently show. Under the laws of this State prior to September, 1895, it was uniformly held that this court “must not be expected to decide moot questions such as may be presented upon stipulations of counsel, for such course is liable to result in great abuse of public justice and may be unjust and prejudicial to a Circuit Judge, if it should happen that the counsel have presented a case and obtained a reversal or affirmance of supposed rulings which would surprise the judge when brought to his notice.” City of Jacksonville v. Lawson, 16 Fla. 321. And in many cases where the parties voluntarily agreed upon the evidence used in the court below, this court refused to consider it because it was not authenticated by the signature of the judge. Robinson v. Matthews, 16 Fla. 319; Richardson v. State, 28 Fla. 349, 9 South. Rep. 704; Pickett v. Bryan, 34 Fla. 38, 15 South. Rep. 681; Florida Central and Peninsular R. R. Co. v. St. Clair-Abrams, 35 Fla. 514, 17 South. Rep. 639. In the present case there is not even an agreement of the parties, that the abstract upon which it is decided correctly states the case as shown by the transcript of the record. The abstract may constitute an agreement on the part of appellant that such is the fact, but it does not so operate as to appellees. The facts are that appellant filed the! abstract, and appellees failed to except to its correctness. If the rule is valid appellees may be estopped from denying its correctness by their failure to except, but I do not think they can be said to have agreed to its correctness. It would seem from the decision now made that the court must henceforth ¡disregard the unanswerable argument quoted above, and that the very, thing that the parties could not formerly do voluntarily the court must now compel them to do, even though the consequences may “result in great abuse of public justice,” and may “surprise” the Circuit Judge when brought to his notice. The decision is based upon the provisions of Rule 20, adopted by this court September 16, 1895, and if that portion of the rule applied in this case has been properly construed, and is valid, then I admit that the decision is correct. The rule referred to requires that in every writ of error or appeal in civil causes brought to this court, the attorney for plaintiff in error or appellant shall prepare a concise abstract or statement of the transcript in the manner therein designated showing the pleadings, the rulings of the court, the issues and the facts on which the issues were determined, four copies of which must be filed in this court and one copy served upon defendant in error, or appellee or his attorney on or before the day to whiph the cause is returnable. It provides “that the cause may be tried upon such abstract or statement without reference to the transcript unless” the defendant in error or appellee shall question the correctness thereof, which he is authorized to do by filing a statement of his exceptions to its correctness in the manner therein pointed out, in which event the court will determine as between the opposing' statements by reference to the transcript. It then provides that “the cause may be dismissed on motion of defendant in error or appellee” for the failure of plaintiff in error or appellant to .comply with its requirements, and reserves to the court power to allow further time to comply with its provisions upon such terms as it may deem just. It contains a clause to the effect that its provisions shall apply to all civil causes made returnable to the January term, 1896, and that “the court may of its own motion dismiss the cause for failure to' comply with the requirements of this rule.” 35 Fla., p. 9, Rule 20. If the word “may” as used in the clauses relating to the trial of the cause upon the abstract, and to dismissal for failure to-file abstracts, is mandatory and the clauses are valid, then we must enforce them because a valid rule -is binding upon the court and the parties (Merchants’ Nat. Bank of Jacksonville v. Grunthal, 39 Fla. 388, 22 South. Rep. 685); and it seems that the parties will not even be permitted to waive the requirements of the rule by consenting-that abstracts be not filed. Anderson Pressed-Brick Co. v. Dubois, 10 Utah 60, 37 Pac. Rep. 90; Long v. Long, 96 Mo. 180, 8 S. W. Rep. 766; Spain v. Thomas, 49 Ill. App. 249; Spencer v. McMaster, 3 Wyo. 105, 3 Pac. Rep. 798. According to my construction, the language used is permissive, not imperative, and under the circumstances I do not think we should dispose of this case upon an abstract which does not truly present the case as shown by the transcript of the record. In justice to the Circuit Judge, whose official action we are review ing, and who has had no opportunity to inform us that we are asked to reverse a judgment rendered by him under his oath of office upon an abstract presenting only a part of the pleadings and a part of the evidence upon which his judgment was based, it would seem more appropriate to dismiss the cause for failure to present such an abstract as the rule in letter and spirit requires, even though the opposite party has neglected to file exceptions to' the abstract. I would not be understood as reflecting in the slightest degree upon the able counsel who prepared the abstract. I feel quite sure that he prepared it in good faith and that he inserted everything that in his opinion was material as shown by the transcript, but it is a fact that parts of the pleading's and parts of the evidence shown by the transcript are omitted, as I shall show further on. The abstracts are intended for our benefit and convenience, to aid us in disposing of the identical case before the court below, and were never intended to enable or permit the parties to agree upon or present a different case for our review in this court. They are designed as mediums for presentation in the smallest possible compass of those portions of the transcript material and necessary to be understood by us in order to determine the questions involved, and to eliminate from our consideration all superfluous or unnecessary matter, of which more or less is always found in the transcript. Four copies are required to be filed in order that each member of the court when considering the case may have before him in convenient form the substance of all material portions of the transcript, and that each may consider the case at the same time, which it is impracticable to do without the abstracts, as only one copy of the transcript is required to be filed. In this case the transcript contains only thirty typewritten pages, and the court can readily dispose of the case upon its merits upon this short transcript without inconvenience and practically as easily as if correct abstracts had been filed. But if my construction of the rule is incorrect, then I hold that this court had no power to bind itself to dispose of the case upon an incorrect abstract, or to attach as a penalty for violation of the rule, the dismissal of a cause without consideration of the merits. I know the court has in a few instances dismissed cases for failure to file abstracts under this rule, but it has never yet, so far as I know, undertaken to reverse a judgment upon an abstract that failed to present the case as it appeared in the record; in fact, this is one of the first cases reached in regular order upon the docket to which the abstract rule applies. But notwithstanding the fact that the validity of that rule is not questioned in this case,- and that the court has to some extent been" enforcing it in the past, I feel impelled by a sense of duty to dissent from the express ruling now made that certain provisions of Rule 20 are valid', and as we shall from henceforth be compelled to dismiss or affirm many cases where no or insufficient abstracts are filed, and to decide cases from the abstract, though the case there made be different from that shown by the record, I shall proceed to be affirmed.

Mabry, J.

(After stating the facts):

The lower court’s ruling on the demurrer to the cross-bill and the exceptions of appellant to the answer of appellees are assigned as errors, but the only question argued by appelant is “can the court subject any part of the premises to the judgment of the defendants either by a sale of the premises-or any part thereof?”

The abstract has not been excepted to by appellees and no question is raised by either party as to the validity of the abstract rule made by this court, and in obedience to it and previous repeated decisions of this court we must be governed by it. Allen v. Lewis, 38 Fla. 115, 20 South. Rep. 821. I entertain no doubt as to the power of this court to require a fair abstract of the transcript of the record in the case upon which errors are assigned and designed to be presented to this court, and when the parties agree upon the correctness of the abstract presented, there is no difficulty in disposing of the case thereon under a rule of court providing for the same. The construction heretofore placed upon the original abstract rule adopted by this court at its June term, 1895, does not preclude us from looking to the judgments and decrees of the lower court certified in the transcript, and while the abstract in this case gives the substance of the court’s decrees, we set them out in full in order that due consideration may be given to-the conclusions of the court as to-questions of fact.

The agreed statement of facts shows that the appellant, Smith, was the head of a family residing in this State at the time of the levy of the attachment-in the case, and since, in a house as his home on a lot of land less than one-half acre in an incorporated city, and that the house was a frame building that could not be divided without destroying' it. The particular rooms in the building occupied by Smith and his family are undertaken to be represented by a diagram alleged to be attached to the accompanying agreed statement, but no such diagram is exhibited, but it does affirmatively appear that Smith bona fidd resided in the house on the lot as his home, and had no other, and that certain rooms upstairs were occasionally occupied by lodgers, and rooms dowmstairs were occupied by tenants. The court finds that the appellant occupied the building on the lot less than a half acre in extent as his home and was in fact entitled to a homestead exemption therein under the constitution, but it is also found that the house was so constructed as to give him more improvements than a residence and business house, and the finding establishes how this was done, vis: that five store rooms were on the ground floor, and the second floor was devoted to bed rooms occupied by Smith and his family, except one room that was vacant, and that four of the ground floor rooms were rented to' tenants. It also appears from the court’s finding that one of the ground-floor rooms was occupied by Smith.

If it is clear that the final decree of the court is wrong' in point of law, conceding' the correctness of the finding as to facts that might have been shown by the missing diagram independent of the express stip ulation of the parties, then it should not be allowed to stand, and I think the pleadings, stipulation of the parties and finding of the court exhibited by the abstract, sufficiently present the only question argued by both parties here vis: whether under our laws an urban homestead residence that is indivisible, or that cannot be divided without destroying it, can be cut up and divided by order of court, though some of the rooms in the building are used as store rooms by third parties under rent contracts.

The constitution (Art. X, Sec. 1) provides that “a homestead to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this State, together with one thousand dollars’ worth of personal property, and the improvements on the real estate, shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife when that relation exists; but no property shall be exempt from sale for taxes, or assessments, or for the payment of obligations contracted for the purchase of said property, or for the erection or repair of improvements on the real estate exempted, or for house, field or other labor performed on the same. The exemption herein provided for in a city or town shall not extend to more improvements or buildings than the residence and business house of the owner, and no-judgment or decree or execution shall be a lien upon the exempted property except as provided in this article.”

In Kansas the provision as to urban homesteads was that a homestead of “one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improve ments on the same, shall be exempt from forced sale under any process of law, and shall not be alienable without the joint consent of the husband and wife when that relation exists.” It was held that the word “homestead” represented the dwelling' house where the family resides, and its tests were use and quality; that the question of whether a building was a residence did not depend upon the style in which it was built, or that it would be more valuable as a place of business than a dwelling house, but upon the fact whether it was actually used as a residence of the family; that the fact that a part of the building was leased to-another who carries on-a mercantile business in the part leased would not destroy its homestead character when the owner reserves the right of using it as the means of going to and coming' from the part used as his home, and that where a small addition is built against the residence, and was used a part of the time as a butcher shop by the owner, and was sometimes leased as an office, such addition being a part of the homestead was exempt from forced sale. Bebb v. Crowe, 39 Kansas 342, 18 Pac. Rep. 223. See, also, Hogan v. Manners, 23 Kansas 551, S. C. 33 Am. Rep. 199; Rush v. Gordon, 38 Kansas, 535, 16 Pac. Rep. 700; Layson v. Grange, 48 Kansas 440, 29 Pac. Rep. 585. Though it was held in 20 Kansas 670, that where a lot (or part of a lot) with a house thereon was rented for a money rent to a tenant who was not a servant or an employe of the owner, with intention that such house and lot should become the home and residence of the tenant and his family, and they actually did become the home and residence of the tenant, such house and lot were not exempt, although the lot adjoined the homestead of the owner. The homestead statutes of Wisconsin and Oklahoma provided as follows:

WISCONSIN.

“A homestead consisting of any quantity of land not exceeding forty acres used for agricultural purposes, and the dwelling house thereon, and its appurtenances, to be selected by the owner thereof, and not included in any town plot, or city, or village, or instead thereof, at the option of the owner, a quantity of lands not exceeding-in amount one-fourth of an acre, being within a recorded town plot, or city, or village and the dwelling house thereon, and its appurtenances, owned and occupied by any resident of the State, shall not be subject to forced sale on execution, or any other final process from a court, for any debt or liability contracted” after a given date.

OKLAHOMA

“The homestead of a family not in a town or city shall consist of not more than one hundred and sixty acres of land, which shall be in one tract or parcel with the improvements thereon. The homestead in a city, town or village, consisting of a lot or lots, not to exceed one acre, with the improvements thereon; provided, that the same shall be used for the purpose of a home for the family; provided, also, that any temporary renting-of the homestead shall not change the character of the same when no other homestead has been acquired.”

It was held under these statutes that a house built apparently for business purposes, but as claimed by the o-wner as a building to live in and a part of it to rent, in which he actually resided with his family as a home was entirely exempt from forced sale. The view taken was that the homestead meant the land not exceeding the prescribed amount, upon which the dwelling house, residence, habitation o-r abode of the owner and his family was situated, without regard to the prescribed manner or style of the building thereon, and was restricted only by the amount of the land mentioned in the act, and not by the value or use thereof, if in fact it be used as the dwelling house. Phelps v. Rooney, 9 Wis. 70, S. C. 76 Am. Dec. 244; Harriman v. Queen Insurance Co. of London and Liverpool, 49 Wis. 71, 5 N. W. Rep. 12; Binzel v. Grogan, 67 Wis. 147, 29 N. W. Rep. 895. Casselman v. Packard, 16 Wis. 114, S. C. 82 Am. Dec. 710, is not considered as conflicting. DeFord v. Painter, 3 Oklahoma 80, 41 Pac. Rep. 96.

Decisions in Minnesota, Nevada, Arkansas, Michigan and Illinois, on their respective homestead exemption laws, tend to strengthen the view taken by the courts in Kansas, Wisconsin and Oklahoma. Kelly v. Baker, 10 Minn. 154; Umland v. Holcombe, 26 Ibid. 286, 3 N. W. Rep. 341; Jacoby v. Parkland Distilling Co., 41 Minn. 227, 43 N. W. Rep. 52; Clark v. Shannon, 1 Nev. 568; Goldman v. Clark, Ibid. 607; Gainus v. Cannon, 42 Ark. 503; Simpson v. Biffle, 63 Ark. 289, 38 S. W. Rep. 345; Orr v. Shraft, 22 Mich. 260; King v. Welborn, 83 Ibid. 195, 47 N. W. Rep. 106. But it was held in Dyson v. Sheley, 7 Mich. 527, that where the owner of a city lot built a double house upon it in such a way as to sho-w that he designed it for the use of two families, and not for one, and leased one part, occupying the other himself, the whole was not exempt. Hubbell v. Canady, 58 Ill. 425; Stevens v. Hollingsworth, 74 Ill. 202.

In Iowa a different view prevails, but it seems that no other court has followed it. There it is held that it was not the intention of the law-making power to exempt an entire building or house for whatever used, because some portion of it is used by the owner as the homestead, and that if under the same roof with the homestead there shall be a floor or floor room or rooms, which are not used by the family as a home, they are no more exempt than if under another roof, or on another and different portion of the lot. Rhodes v. McCormick, 4 Iowa 368, S. C. 68 Am. Dec. 663; Mayfield v. Maasden, 59 Iowa 517, 13 N. W. Rep. 652; Smith v. Quiggans, 65 Iowa 637, 22 N. W. Rep. 907; Johnson v. Moser, 66 Iowa 536, 24 N. W. Rep. 32; Arnold v. Gotshall, 71 Iowa 572, 32 N. W. Rep. 508.

The Alabama court has been regarded .as holding that the test of exemption is. the principal use to which the property is devoted. It is said in one opinion that “where the trade adaptation and use of a building is incidental or secondary only to its habitation as a dwelling — where the chief use of the structure is that of a home for the owner, and some part only not essential to this end is.fitted up and used as a shop, an office or salesroom — it is a homestead; but when this state of facts is reversed, and the residence feature is only auxiliary to the business use — where only a relatively small part of the building is devoted to the uses, of habitation, and the chief adaptation and use are those of business — the building is not a homestead, even though the occupant have no other home, and uses this for all the purposes of living.” Garrett v. Jones, 95 Ala. 96, 10 South. Rep. 702; Turner v. Turner, 107 Ala. 465, 18 South Rep 210. This view finds support in much that is said in some decisions in California in construing homestead statutes there. Ackley v. Chamberlain, 16 Cal. 181, S. C. 76 Am. Dec. 516; Gregg v. Bostwick, 33 Cal. 220, S. C. 91 Am. Dec. 637; Tiernan v. His Creditors, 62 Cal. 286; Laughlin v. Wright, 63 Ibid. 113. But in later cases that court clearly holds that the use of a building partly, or 'even chiefly, for business purposes, or ¿he renting of part of it, does not deprive the owner of the benefit of his exemption of the building as a homestead, if the building is and continues to be bona fide the residence of the family. Heathman v. Holmes, 94 Cal. 291, 29 Pac. Rep. 404; Lubbock v. McMann, 82 Cal. 226, 22 Pac. Rep. 1145, S. C. 16 Am. St. Rep. 108.

In Texas they have an express constitutional limitation in reference to urban homesteads, that they shall be used for the purposes of a home, or as a place of business to exercise the calling or business of the head of the family. The provision reads: “The homestead in a city, town or village shall consist of lot or lots not to exceed in value $5,000 at the time of their designation as a homestead, without reference to the value of any improvements thereon; provided, that the same shall be used for the purposes of a home, or as a place of business to exercise the calling or business of the head of the family.” It has been carefully considered in several cases brought before the courts of that State; among them are the following: Shyrock — Rowland v. Latimer, 57 Texas 674; Keith v. Hyndman, Ibid. 425; Wynne v. Hudson, 66 Texas 1, 17 S. W. Rep. 110; Bowman v. Watson, 66 Texas 295, 1 S. W. Rep. 273; Malone v. Kornrumpf, 84 Texas 454, 19 S. W. Rep. 607; Forsgard v. Ford, 87 Texas 185, 27 S. W. Rep. 57. In the last case cited it appeared that a two-story house eighty-five feet long and twenty-five feet in width was built upon a lot used as homestead; that the cellar, upper-story, and over two-thirds of the first floor were in use in homestead purposes, but the front part of first floor, divided into two small rooms, was leased to tenants. It was held that the two small rooms could not become subject to execution and thus become detached from the home and that the whole was exempt. The court holds that the exemption is upon the land and that whatever is attached to it so as to become part thereof must partake of the character of the realty. The view taken by the Wisconsin court in Phelps v. Rooney is approved and that entertained in Iowa is rejected.

In construing our constitution in reference to-a rural homestead this court said, in McDougall v. Meginniss, 21 Fla. 362, that “when a party resides on the land as a homestead, and the law is silent as to’ how much of said land, other than that occupied by his house, he shall use or cultivate, or in what manner he shall use it, or that he shall use or cultivate it all, we do’ not feel at liberty to amend the 'constitution of the State by the .interpolation of further provisions therein regulating the manner or extent of the use of the homestead, or declaring that a non-user of a part while he remains on the land is an abandonment of that part which takes from it the benefit of homestead exemption. In our view the owner is only required by the constitution to live on the land, and the whole one hundred and sixty acres is exempt.” A different view announced by Judge Bradley in Greeley, Assignee, v. Scott, 2 Woods, C. C. Rep. 657, construing the same constitution, was disapproved.

As I understand the decisions similar to' those cited from Wisconsin and Oklahoma, the leading principle is that the courts are not authorized to incorporate into the constitution or statute by construction any other conditions than those expressly declared therein. The conditions of occupancy and residence, included in the popular meaning of a term homestead, and being a citizen and the head of a family usually required, must be shown in order to put one in the condition to avail himself of the homestead exemption, but beyond those prescribed in the law the court should not go. If there were no other limitations expressed in our constitution as to urban homesteads than those applicable to-rural dwellings, we would have to hold, consistently with our decision in McDougall v. Meginniss, and a great many others herein cited, that an actual residence by the head of a family upon the half acre in any incorporated city or town would secure its exemption as a homestead without reference to other uses to-which it might be devoted or the improvements placed thereon. But it is clear that there are limitations applicable to homesteads provided for in cities and towns that do not apply to those in the country, or out of incorporated cities and towns. This limitation is in the clause which provides that “the exemption herein provided for in a city or town shall not extend to-more improvements or buildings than the residence and business house of the owner.” This clause should be considered in the nature of a proviso, and as such it should be so construed as to take nothing out of the section that is not clearly and fairly within the terms of the proviso. State ex rel. McQuaid v. Commissioners of Duval County, 23 Fla. 483, 3 South. Rep. 193. As applicable to this case, the first part of the section provides that a homestead to the extent of the half of one acre within the limits of any incorporated city or town, owned by the head of a fam ily residing in this State and the improvements on the real estate, shall be exempt from forced sale under process of any court. The exemption applies to the land and the improvements thereon, without regard to value. The limitations in this part of the section are as to quantity, the half of one acre, and that it shall be the homestead of the owner, a resident of this State and the head of a family. Under the further limitation in the nature of a proviso-the exemption does not extend to more improvements or buildings than the residence and business house of the owner, but it does unquestionably extend to the improvements or buildings constituting the residence and business house, and the clear mandate of the constitution is that the homesteader shall not be deprived of them under process of any court. In furtherance of‘the humane objects and policy of this homestead exemption this court, in harmony with practically all others, has declared that a liberal construction shall obtain. Patterson v. Taylor, 15 Fla. 336; McDougall v. Meginniss, 21 Fla. 362. The homestead within the meaning of the exemption clauses of our constitution and statutes is the place of actual residence of the homesteader and his family, and when a person is otherwise entitled to avail himself of the exemption, it is actual residence as a home that imparts to a building the character of a homestead residence. The homestead section does not, nor any limitation in it, contain any requirement as to the cost, style or architectural plan of the residence, or how a building that is entire and really used as a homestead shall be otherwise used. The Texas court has lately rather strictly applied the express limitation in their constitution as to the uses of a homestead residence and business house, but when confronted with the proposition to cut up an indivisible house, a nega tive answer was given. Forsgard v. Ford, supra; Weidemeyer v. Bryan (Texas), 53 S. W. Rep. 353. As I understand the Texas decisions the principal use will determine the character of a homestead, and this excludes the notion of dividing' up a building that is entire. Where there is an entire indivisible building used in fact as a homestead, residence, no court has undertaken to cut it up because some rooms in it have been rented out, except in Iowa, and when questions arose there as to homestead rights in a joint stairway, or how the joint owners should maintain the building, or who should be responsible for damages resulting from neglect in respect to the same, regrets were expressed that such a doctrine had been established. It is certain that the Iowa view has not impressed itself upon any other court in this country that has spoken on the subj ect. It seems to me that the difficulties confronting any court in the act of plunging into the cutting doctrine are enough to induce the belief that the framers of our constitution never contemplated such a result.

It is clear to my mind that our statutes providing for the setting apart of homesteads (sections 1998, 1999, 2000 and and 2001 Revised Statutes) do not contemplate the cutting up and division of an entire indivisible building situated on exempt real estate, nor has such power been conferred by statute upon courts of chancery. I think that when a homesteader places upon the exempt half acre improvements or buildings detached from and other than the residence and business .house, or when improvements are so placed that they constitute separate improvements from the residence or business house, they, together with the land supporting them, become subject to execution sales, but such is not the case before us. The result of the decision in this case must be regretted, on account of the uncertainty that has been brought about in the homestead law in this State. As it is impossible for me to accept as correct the conclusions of either of the other members of the court, I can only state what I deem the corr.ect legal view. In my judgment the decree should be reversed.