ball v. Salisbury, 19 Utah, 161, 56 Pac. 973), that the answer is wanting in facts because not containing specific averments of a declaration and selection of the real estate as a homestead. This view, too, finds support from the homestead statute itself (section 1149), where it is provided that a failure to make the declaration shall not impair the homestead right. We are of the opinion that the facts alleged, showing the defendant to be the head of the family and that the real estate is and was her homestead, are sufficient to withstand a general demurrer, especially since the demurrer does not challenge the answer for want of facts upon which the claim of exemption is made, but proceeds specifically upon the assumption that no exemption of a homestead can be asserted against plaintiff's demand.

3. This, then, brings us to the question as to whether the homestead was subject to plaintiff's lien. This depends upon. the validity of the statute, which, in terms, makes the homestead subject to execution in satisfaction of judgments obtained on debts secured by mechanics' and materialmen's liens. Mr. Boisot, in his work on Mechanics' Liens (section 30) says: "Under a constitutional direction to exempt from seizure for debt a reasonable amount of property, the legislature, after exempting homesteads from execution and sale, cannot make them subject to mechanics' liens; and where the constitution creates a homestead right, exempt from execution for debt except for payment of obligations contracted for its purchase, for taxes, for agricultural laborers' liens, and for mechanics' liens for work done on the premises, an act attempting to give materialmen a lien on homesteads is unconstitutional.”

To the same effect is Thompson on Homesteads and Exemptions, where, at section 16, the author, in substance, says that a constitutional provision which provides that the homestead shall be exempt from forced sale prohibits the legislature from subjecting it to sales for labor done or material furnished for its improvement. Where the constitution of a state provided that a reasonable amount of property shall 82 be exempt from seizure and sale for the payment of any debt or liability, it was held that an exemption law excepting from its operation debts or liabilities for laborers or mechanics was void: Tuttle v. Strout, 7 Minn. (Gil. 374) 465, 82 Am. Dec. 108; Cogel v. Mickow, 11 Minn. (Gil. 354) 475; Coleman v. Ballandi, 22 Minn. 144; Cumming v. Bloodworth, 87 N. C. 83. Involving the same principles of law, and to the same effect, are the following cases: Jossman v. Rice,

121 Mich. 270, 80 Am. St. Rep. 493, 80 N. W. 25; Donaldson v. Voltz, 19 W. Va. 156; Fallihee v. Wittmayer, 9 S. D. 479, 70 N. W. 642; Sampson v. Williamson, 6 Tex. 102, 55 Am. Dec. 762. The mandatory provisions of the constitution are that the legislature shall provide by law for the selection and exemption of a homestead from sale on execution. In the discharge of the duty imposed, the legislature may provide remedies for the protection of the homestead. rights created and secured by the constitution, and may regulate the claim of the right so that its exact limits may be known and understood, and may make supplemental legislation in particulars wherein they are not as complete as may be desirable, but all such legislation must be subordinate to the constitutional provision and in furtherance of its purpose, and must not in any particular attempt to narrow, defeat or limit the homestead right as defined and secured by the constitution: Cooley's Constitutional Limitations, p. 122. The following things may be said to have been defined and secured by our constitution: (1) The right to select by each head of a family (2) a homestead of one or more parcels of land (3) of the value of at least fifteen hundred dollars (4) exempt from sale on execution. In the exercise of the power conferred upon it, the legislature may, 'by supplemental legislation, prescribe convenient remedies. for the protection of these rights, and to adopt the necessary regulations in regard to time and mode of exercising them, which are reasonable and uniform and designed to secure and facilitate the exercise of such rights, but the legislature, among other things, may not confine the homestead to one parcel of land, nor fix the value of the homestead at less than fifteen hundred dollars, nor 83 subject the homestead to any kind of sale on execution. While the constitution has placed no inhibition to a voluntary alienation of a homestead, it has specifically exempted it, without exception, from all involuntary or execution sales. The statute providing that the homestead is subject to execution in satisfaction of judgments obtained on debts secured by mechanics' or laborers' liens for work and labor done or materials furnished for its improvement seeks to make the homestead subject to a particular kind of sale on execution, and this the legislature may not do. As before observed, the constitution has not prohibited a homestead claimant from selling or voluntarily encumbering the homestead, and he may make any kind of voluntary alienation of it, or encumber it, except as restricted by section 1155 of the homestead statute, which

we need not here consider. Now, it may be said that the defendant, the homestead claimant, having herself voluntarily made and entered into the contract for the construction of the building on the homestead, and the material having been furnished by plaintiff in pursuance of it, therefore she voluntarily encumbered the homestead the same as though she had given a mortgage upon it. That would be true if by the terms of her contract she had pledged the homestead, or had given a lien on it as by law provided. But it is not made to appear that the contract contains any stipulation giving contractors, materialmen, laborers, mechanics or anyone a lien upon the homestead, and nothing appears from which the contract can be construed into a contract for a lien. In the absence of an express contract creating it, the lien which a materialman or mechanic may become entitled to depends solely upon the statute for its existence. It is a preference which he may secure if he proceeds in a particular way and fully complies with the statutory requirements upon the subject, and not otherwise. Plaintiff's lien, so far as made to appear, has its origin alone in the statute and proceedings taken under it, and does not arise out of or upon any contract. The decree ordering the property sold in satisfaction of the judgment obtained rests alone for its authority upon the statute, and not upon any contract 84 made by the defendant, and hence the order of sale is clearly an execution sale within the meaning of the constitution. This principle of law is well illustrated in, and our views fully sustained by the following authorities: Coleman v. Ballandi, 22 Minn. 144; Moran v. Clark, 30 W. Va. 358, 8 Am. St. Rep. 66, 4 S. E. 303; Lanahan v. Sears, 102 U. S. 318, 26 L. ed. 180; Sampson v. Williamson, 6 Tex. 102, 55 Am. Dec. 762. If it is within the power of the legislature to subject the homestead to execution in satisfaction of judgments obtained on debts for work and labor done or materials furnished for improvements of the same when the constitution has not made any such exception, then, why cannot the legislature subject it to execution in satisfaction of judgments obtained on other debts? To say that the legislature may do so when the debt grows out of something done or furnished for the improvement of the homestead, but may not do so if the debt arose in some other way, is making a distinction not made by the constitution itself. It may be, upon equitable principles, that the homestead ought to be made subject to such improvements. On an examination of constitutions of different states where homeAm. St. Rep., Vol. 125-53

stead exemptions are provided for, we find in nearly all of them that the homestead, by the terms of the constitution, is made subject to improvements. In looking at the proceedings of our constitutional convention, we find the provisions of such constitutions referred to and discussed, and several amendments and substitutes proposed, subjecting the homestead to improvements made thereon, but all of them were voted down and rejected: Pro. Const. Conv., pp. 1772, 1774, 1768, 1771. Other exceptions were also proposed, but they also were rejected.

Without resorting to these proceedings, it is obvious that the constitutional provision exempts a homestead from execution sale without restriction, limitation or exception of any kind. The people in their constitution had the right to provide for any sort of a homestead, and to guard it as they pleased, to subject it to restrictions or without restrictions, as in their wisdom they saw fit. When the people, through their 85 constitution, have spoken and have thus exempted the homestead from execution sales without exceptions of any kind, neither the legislature nor the courts have power to subject it to any such sale. With the wisdom or equity of such a provision neither we nor the legislature have anything to do. Homestead rights are founded upon equity. They are founded upon public policy for the protection of the home and the prosperity of the state, carrying out the policy of republics to encourage and multiply freeholders, the natural supporters and defenders of a free government.

We are of the opinion that the statute in question is in conflict with the constitution, and is void. It therefore follows that the court erred in sustaining the demurrer. The judgment of the court below is reversed, and the court directed to overrule the demurrer and to proceed with the case in accordance with the views herein expressed, costs to appellant.

McCarty, C. J., and Frick, J., concur.

A Homestead is Ordinarily not Subject to a Mechanic's Lien; Morgan v. Beuthein, 10 S. D. 650, 66 Am. St. Rep. 733. This rule, however, has been changed in some states so that real property, impressed with a homestead claim is not exempt from a lien in favor of the mechanic, laborer or materialman who has furnished labor or material in the improvement of the premises: See the note to Mertz v. Berry, 45 Am. St. Rep. 383; Nickerson v. Crawford, 74 Minn. 366, 73 Am. St. Rep. 354. Under a constitutional provision making a wife's signature necessary to a valid alienation of a homestead, her homestead interest in land owned by herself and husband jointly cannot

be devested by a mechanic's lien acquired under a contract signed by the husband alone, although it was entered into with her knowledge and consent, and a statute provides that if improvements are made under such circumstances, the lien shall attach as though the contract were signed by the wife: Jossman v. Rice, 121 Mich. 270, 80 Am. St. Rep. 483.

EUREKA HILL MINING COMPANY v. BULLION BECK AND CHAMPION MINING COMPANY.

[32 Utah, 236, 90 Pac. 157.]

APPEAL AND ERROR.-Where there is substantial evidence to support the finding of the trial court, it will not be set aside on appeal. (p. 838.)

APPEAL AND ERROR Evidence, When will not be Considered. In an action at law, the appellate court will not consider inconsistencies in the testimony of the witnesses for the respondent, because they go on to the weight of the evidence and the credibility of the witnesses. (p. 839.)

EVIDENCE, Time-book as.-Time-books containing the names of the men, usually written in by the timekeeper, showing the number of days each employé worked in a given month, are admissible, in connection with the testimony of the employés, as bearing on the question of the accuracy of the recollection of the several witnesses, but are not evidence as to the number of days they were at work. (p. 840.)

EVIDENCE.-Memoranda in the Time-books to indicate the capacity and place in which employés work are not admissible, where the attention of the witnesses has not been directed to the memoranda and opportunity afforded them to explain or deny the same. (p. 840.) EVIDENCE, Books Kept by a Private Corporation.-Where books are kept by a private corporation solely for its own purposes and in the administration of its internal affairs, they are not admissible against third persons as evidence of isolated collateral facts in an action between the corporation and a stranger. (p. 841.)

Dickson, Ellis, Ellis & Schoulder, for the appellant.

Sutherland, Van Cott, Allison, Riter & Harkness, for the respondent.

239 MCCARTY, C. J. This is an action of trespass brought by plaintiff against defendant to recover the value of certain ores claimed to have been unlawfully extracted by the defendant from the property of the plaintiff, situate in Tintic mining district, Juab county, this state. The case was referred to C. S. Varian, a member of the bar of this court, as referee to take testimony and to make and file findings of fact and conclusions of law. As stated by the referee in his review of the case in a written opinion which he filed