provided, however, that neither this repealing clause nor any other provision of this act shall be so construed as to deprive the railroad commission of Nevada, or any public service commission of this state now existing or hereafter created, of full power to regulate and control, as prescribed by law, the service, practices, regulations and charges subject to the maximum charges fixed by the board of county commissioners upon granting the franchise, and subject also to the provisions of section 7 of this act, of all public utilities receiving franchises as herein provided. 2141. Certain act not repealed. SEC. 13. This act shall not be construed in any way to repeal any portion of an act entitled "An act concerning franchises for furnishing electric light, heat, and power," approved March 20, 1909. HOMESTEADS An Act to exempt the homestead and other property from forced sale in certain cases. Approved March 6, 1865, 225 2142. Amount exempt - Except purchase money Mortgages - Selection of property-Held as joint tenants. 2143. Exemption not extend to liens-Abandonment. 2144. Appraisement when value exceeds amount exempt-Excess to be soldEntire premises to be sold, when. 2145. To revert in case of death-ProvisoExemption and descent to heirsLitigation. 2146. How to convey when wife is insane. 2147. Idem-Court may make special order. 2148. Idem-Appeal allowed. 2149. Property not exempt from sale for taxes. 2150. Regarded as gold coin. 2142. Amount exempt-Except purchase money-Mortgages-Selection of property-Held as joint tenants. SECTION 1. The homestead, consisting of a quantity of land, together with the dwelling-house thereon and its appurtenances, not exceeding in value five thousand dollars, to be selected by the husband and wife, or either of them, or other head of a family, shall not be subject to forced sale on execution, or any final process from any court, for any debt or liability contracted or incurred after November thirteenth, in the year of our Lord one thousand eight hundred and sixty-one, except process to enforce the payment of the purchase money for such premises, or for improvements made thereon, or for legal taxes imposed thereon, or for the payment of any mortgage thereon, executed and given by both husband and wife, when that relation exists. Said selection shall be made by either the husband or wife or both of them, or other head of a family, declaring their intention in writing to claim the same as a homestead. Said declaration shall state when made by a married person or persons that they or either of them are married, or if not married, that he or she is the head of a family, and they or either of them, as the case may be, are, at the time of making such declaration, residing with their family, or with the person or persons under their care and maintenance, on the premises, particularly describing said premises, and that it is their intention to use and claim the same as a homestead, which declaration shall be signed by the party or parties making the same, and acknowledged and recorded as conveyances affecting real estate are required to be acknowledged and recorded; and from and after the filing for record of said declaration, the husband and wife shall be deemed to hold said homestead as joint tenants; provided, that if the property declared upon as a homestead be the separate property of either spouse, both must join in the execution and acknowledgment of the declaration; and if such property shall retain its character of separate property until the death of one or the other of such spouses, then and in that event the homestead right shall cease in and upon said property, and the same belong to the party (or his or her heirs) to whom it belonged when filed upon as a homestead; and, provided further, that tenants in common may declare for homestead rights upon their respective estates in lands, and the improvements thereon; and hold and enjoy homestead rights and privileges therein, subject to the rights of their cotenants, to enforce partition of such common property as in other cases of tenants in As amended, Stats. 1879, 140. common. For constitutional provisions, see sec. 288, ante. Upon death of husband, widow or children entitled to remain in possession of homestead and have same set apart for them. See secs. 5956, 5957. The homestead right is purely statutory, not existing at common law. If a declaration of homestead is filed on community property by either spouse, the homestead vests in the survivor on the death of either, and the court must set aside the homestead in community property, even though it was not declared during the life of a deceased spouse; the property being exempt from debts of the surviving spouse or sale under execution. Stats. 1861, c. 55, regulating the settlement of estates, provided in sec. 123 for the setting aside of the homestead to the widow and minor children, and sec. 126 provided that if there was no law in force exempting property from execution certain property should be set aside, including the homestead, as defined in that section. The homestead act of 1865 (Stats. 1864-65, c. 72), sec. 1, as amended in 1879 (Stats. 1879, c. 131) provided that if the property declared a homestead be separate property both must join in the declaration, and if it remain separate property until the death of one spouse homestead rights therein shall cease, and it shall belong to the party or his heirs to whom it belonged when filed upon; and sec. 4 of the act of 1879 (Stats. 1879, c. 131) provided that no exemption to the surviving spouse should be allowed, where the homestead declaration had been filed upon the separate property of either spouse, as provided in sec. 1. Section 101 of the act of 1897 (Stats. 1897, c. 106) authorizes the court, upon the return of the inventory, to set apart for the use of decedent's family the homestead as designated by the general homestead law "now in force," whether designated as required by said law or not; and further provides that if the property declared upon to be separate property both spouses must join in the declaration, and if it remain separate property until the death of one the homestead rights shall cease, and it shall belong to the party to whom it belonged when filed upon. Sec. 126 of the act of 1861 was omitted from the act of 1897, and sec. 123, corresponding to sec. 101 of the latter act, was modified. Held, under sec. 101, construed with the other statutes, that a widow cannot have set apart to her as a homestead land which was her husband's separate property at his death, and had not been declared on as a homestead; there being other heirs. In re Cook, 33 Nev. - (117 P. 27). Under former act (Stats. 1861, 24) the following decision was rendered: Erecting a house and residing therein with one's family dedicates that building as a homestead. It makes no difference that the house erected is large or suitable for a lodging-house and used for such purpose. Being once dedicated as a homestead, it can only be divested of that character by the joint deed of husband and wife. A married woman can only convey by following prescribed forms. No conveyance by the husband alone, and no lease made by him, could divest the property of its character as a homestead. The statute which requires the owner of the property to make his claim of homestead is merely directory, and if the husband does not make such claim and point out the homestead property to the officers when it was levied on, the wife may do so. Goldman v. Clarke, 1 Nev. 607-611. Cited, In re Cooke, 33 Nev. — (117 P. 30). The law exempts from forced sale a tract of land on which the homestead is located to the extent of $5,000 in value. It does not limit or prescribe the other uses to which the land may be put if one use it for a homestead. It makes no difference that the land is divided by imaginary lines. The entire tract of land, if not exceeding above value, is protected. When the homestead tract does not exceed above value, the husband cannot execute a mortgage on any portion thereof without the concurrence of the wife. Clarke v. Sharon, 1 Nev. 568-572. See Hawthorne v. Smith, 3 Nev. 182 (93 A. D. 397), under sec. 288, ante. See Hopper v. Parkinson, 5 Nev. 238, under sec. 288, ante. A decree ordering the sale of property claimed by one of the partners as a homestead, will not be set aside where the evidence shows the partnership is insolvent; that the partner claiming the homestead is largely indebted to it; that partnership funds were used to considerable extent in building the house claimed as a homestead and there is some evidence that the land was purchased and improvements made with money derived from that source alone. Rhodes v. Williams, 12 Nev. 21. Repeals by implication are not favored, and are only held to have occurred in case of irreconcilable repugnancy between the latter and former enactments, where the two cannot stand together and there is no such repugnancy between probate act and the homestead act. Under this act the homestead is exempted from liability for the debts of the owner, so long, at least, as he continues the head of the family, no matter whether the debts were contracted before or after the family relation commenced or before or after the homestead was dedicated. The only effect of a written abandonment of a homestead 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. Estate of Walley, 11 Nev. 260, 263. See, Smith v. Stewart, 13 Nev. 69, 74-76, under sec. 288, ante. When a declaration of homestead is filed, the property is held by husband and wife as joint tenants, and upon the death of either the homestead property vests absolutely in the survivor. (Beatty, J., dissenting.) Smith v. Shrieves, 13 Nev. 303, 309, 315-318, 327. See, Roberts v. Greer, 22 Nev. 318, 332, under sec. 288, ante. A homestead cannot be carved out of land held and claimed by parties as copartners. Terry v. Berry, 13 Nev. 515. A tenant in common cannot acquire a right of homestead to government land of which he is in possession for himself and his cotenants. Reinhart v. Bradshaw, 19 Nev. 255 (9 P. 245). No person is entitled to the benefit of the homestead law without filing a written declaration claiming the premises as a homestead. Lachman v. Walker, 15 Nev. 422-424. A homestead in fact, in the absence of a recorded declaration that it has been selected as such, can be mortgaged by the husband alone, without the consent of his wife. Child v. Singleton, 15 Nev. 461, 463, 464. A wife who has filed a declaration of homestead on community property is not affected with notice of a prior recorded mortgage executed by her husband which misdescribes the property. Adams v. Baker, 24 Nev. 162, 169 (77 A. S. 799, 51 P. 252). Cited, State ex rel. N. T. G. & T. Co. v. Grimes, 29 Nev. 29. The issue as to whether property sought to be set aside to a widow of a homestead is separate or community property, is raised by a petition showing that the husband was in possession when he died; the presumption being in favor of the community in such case. State ex rel. Cook v. Langan, 32 Nev. 176, 105 P. 568. 2143. Exemption not to extend to liens-Abandonment. SEC. 2. Such exemption shall not extend to any mechanic's, laborer's, or vendor's lien lawfully obtained; but no mortgage or alienation of any kind, made for the purpose of securing a loan or indebtedness upon the homestead property, shall be valid for any purpose whatsoever; provided, that a mortgage or alienation to secure the purchase money, or pay the purchase money, shall be valid if the signature of the wife be obtained to the same, and acknowledged by her separately and apart from her husband; nor shall said homestead property be deemed to be abandoned without a declaration thereof in writing, signed and acknowledged by both husband and wife, or other head of a family, and recorded in the same office and in the same manner as the declaration of claim to the same is required to be recorded, and the acknowledgment of the wife to such declaration of abandonment shall be taken separately and apart from her husband; provided, that if the wife be not a resident of this state, her signature and the acknowledgment thereof shall not be necessary to the validity of any mortgage or alienation of said homestead before it becomes the homestead of the debtor. That portion of above act, in so far as it provides that no valid mortgage for the purpose of securing a loan or indebtedness can be made by husband or wife upon their homestead, is unconstitutional. Dunker v. Chedic, 4 Nev. 378. (ante, 288), expressly prohibits the legislature from exempting the homestead from forced sale upon a lien created by husband and wife for a loan or indebtedness. Idem. See Hawthorne v. Smith, Dunker v. Chedic, Hopper v. Parkinson, under preceding section and ante, 288. The provisions of art. 4 of Const. sec. 30 2144. Appraisement when value exceeds amount exempt-Excess to be sold-Entire premises to be sold, when. SEC. 3. Whenever execution has been issued against the property of a party claiming said property as a homestead, and the creditor in such judgment shall make oath before the judge of the district court of the county in which such premises are situated, that the cash value of such premises exceeds, to the best of the creditor's information and belief, the sum of five thousand dollars, it shall be the duty of such judge, upon notice to the debtor, to appoint three disinterested and competent persons as appraisers to estimate and report as to the value of such premises, and if the same exceeds said sum, whether they can be divided so as to leave the premises amounting to the homestead exemption without material injury. If it appear, upon such report, to the satisfaction of the judge, that the premises can be thus divided, he shall order the excess to be sold under execution. If it appear that the premises cannot be thus divided, and the value thereof exceeds the exemption allowed by this act, he shall order the entire premises to be sold, and out of the proceeds the sum of five thousand dollars to be paid to the defendant in execution, and the excess to be applied to the satisfaction on the execution; provided, that no bid shall be received by the officer making the sale under five thousand dollars; and provided, further, that when the execution is against the husband, whose wife is living, the judge may, in his discretion, direct the five thousand dollars to be deposited in court, to be paid out only upon the joint receipt of the husband and wife, and it shall possess all the protection against legal process and voluntary disposition of the husband as were the original homestead premises. 2145. To revert in case of death-Proviso-Exemption and descent to heirs-Litigation. SEC. 4. The homestead and all other property exempt by law from sale under execution, shall, upon the death of either spouse, be set apart by the court as the sole property of the surviving spouse, for his or her benefit and that of his or her legitimate child or children; and in the event of there being no surviving spouse, or legitimate child or children of either, then the property shall be subject to administration and to the payment of his or her debts and liabilities; provided, that the exemption made by this act and the act of which it is amendatory shall not extend to unmarried persons, except when they have the care and maintenance of minor brothers or sisters, or both, or of a brother's or sister's minor children, or of a father or mother, or of grandparents, or unmarried sisters living in the house with them; and in all such cases the exemption shall cease upon the cessation of the terms upon which it is granted; and upon the death of such unmarried person, the property shall descend to his or her heirs, as in other cases, unless disposed of by will, subject to administration and the payment of debts and liabilities; and, provided further, that no exemption to the surviving spouse shall be allowed in cases where the homestead declaration has been filed upon the separate property of either husband or wife, as provided in section 1 of this act; provided, nothing in this act shall be held or construed to in any manner affect existing rights or pending litigation; but all such rights and litigation shall be determined by the act before in force, and of which this act is amendatory, As amended, Stats. 1879, 141. In construing the homestead law of this state: Held, that when a declaration of homestead is filed, the property is held by the husband and wife as joint tenants, and that upon the death of either the homestead property vests absolutely in the survivor. Smith v. Shrieves, 13 Nev. 303. When no declaration has been filed upon the homestead property, no joint tenancy is created; in such case, if it was common property, one-half vested in the wife upon the death of the husband, and the other half vested in the minor children of said deceased and his wife. Idem. The words "set apart" in this act and the probate law are used in the sense that property set apart should belong absolutely to the persons for whose benefit the statute made provision. Powell v. Campbell, 20 Nev. 240 (19 A. S. 350, 2 L. R. A. 615, 20 P. 156). See Roberts v. Greer, 22 Nev. 327, under sec. 288, ante. It is no objection to the allowance to a widow and minor children of a $5,000 homestead out of property valued at $7,500, that the order fails to define the boundary or extent of the premises necessary to reach the sum allowed, and fails to find whether they can be divided. Quinn v. Quinn, 27 Nev. 176 (74 P. 5). 2146. How to convey when wife is insane. SEC. 5. If the wife of any owner of a homestead shall be insane, and such owner shall desire to convey such homestead, or any interest therein, he may petition the district court in which such homestead may be situated for license to convey the same, and such court, upon reasonable and not less than twenty days' notice of such petition to the kindred of such insane wife, residing in this state (which notice may be personal or by publication in some newspaper in the county, or directed by the court), may hear and determine such petition, and may license such owner to convey such homestead, or any interest therein, by his sole deed; which license shall be recorded in the office. where such homestead is recorded, and thereupon such sole deed shall have the same operation as if such wife had been sane and joined in such deed. 2147. Idem-Court may make special order. SEC. 6. On granting such license, such court may make such special order as to the investment or disposition of the funds derived from conveyance, as a court of chancery could do in the case of the funds of married women. 2148. Idem-Appeal allowed. SEC. 7. On the hearing of such petition for license, any of such kindred may appear and be heard in the premises, and may appeal from any order made on the subject in the same manner provided for other appeals from decrees of the district court. 2149. Property not exempt from sale for taxes. SEC. 8. Nothing in this act shall be so construed as exempting any real or personal property from sale for taxes. 2150. Regarded as gold coin. SEC. 9. In all cases wherein an amount or sum is stated in this act the same shall be held and regarded as so much money in gold coin. HOTELS AND LODGING-HOUSES An Act for the protection of proprietors of hotels and lodging-houses. 2151. Proprietor may sell baggage. 2152. Proceeds, how disposed of. Approved March 2, 1867, 69 2153. Sales, how made. 2154. Baggage heretofore left may be sold. 2151. Proprietor may sell baggage. SECTION 1. Whenever any person shall leave a hotel or lodging-house, indebted to the proprietor or proprietors thereof, and shall remain absent for the period of six months, it shall be lawful for such proprietor or proprietors to sell, or cause to be sold, at public auction, any baggage or property of such person so indebted, or so much thereof as may be necessary to pay such indebtedness, expenses and charges of sale, which may have been left at such hotel or lodging-house by such person. 2152. Proceeds, how disposed of. SEC. 2. All baggage or property, of whatever description, left at a hotel or lodging-house for the period of twelve months, may be sold at public auction by the proprietor or proprietors thereof, and the proceeds arising from such sale, after deducting the expenses and charges of sale and storage, shall be paid over to the county treasurer of the county in which such baggage or |