¶1delivered the following opinion—Norton, J. concurring:
¶2A rehearing is urged on the ground that one point presented by the appellant in bis brief was not passed upon in the former, opinion. It is contended that as the homestead declaration covers the whole property, including both lots, therefore, even though the value exceeds $5,000, the excess cannot be recovered in ejectment: that it was not liable to forced sale on execution. Several decisions of this Court are cited which sustain the principle that a judgment is no lien upon the homestead, and that the same cannot be sold on execution. (4 Cal. 23; 16 Id. 181-213; 17 Id. 403.) In another case cited, that of Gary v. Estabrook (6 Cal. 457), it was held, that where the homestead claimed by the defendant in execution had been ascertained by appraisement to exceed $5,000, a sale thereof should not be made by the Sheriff under execution until an exact appraisement of the value of the premises is obtained, so that he could sell and convey a definite undivided interest therein. That is, to illustrate, if the homestead should be found, upon appraisement, to be worth $10,000, then as the undivided one-half only would be exempt under the Homestead Law, he could then proceed to sell and convey the other undivided half not exempt. This rule properly applies to a case of a single lot or tract of land on which the dwelling of the debtor stands, but it is not necessary to take that course where the homestead covers two or more lots, on only one of which is the dwelling of the debtor. As stated in the former opinion, the debtor may include several contiguous lots in his homestead claim, provided they do not exceed in value $5,000; but if the lot on which the dwelling stands equals or exceeds in value the $5,000, the attempt to include any other lot or lots will fail. If inserted in the declaration filed, they will not in such case form any part of the homestead, any more than as though they had not been inserted therein. The law requires that the debtor act in good faith, and not under cover of a law made for his special benefit, attempt to embarrass his creditors, or hinder, or delay them in collecting their just debts. It is better for the debtor to treat the lot or lots not occupied by the dwelling as free *401from the homestead, an'd therefore liable to levy and sale on execution, like any other property not exempt from execution, than subject the debtor to the risk of the loss of the whole homestead property, on the ground that he had included an excessive quantity of value in his declaration for the purpose of hindering, delaying, and defrauding creditors. As to the objection that the value of the separate pieces of property, as reported by the referee, was taken at a date subsequent to the filing of the declaration of homestead, and that the property may have greatly improved in value in the meantime, we think it is entitled to no weight, for the reason that there was no proof or finding as to the value at the time of the filing of the declaration; in which case the presumption would be that the value would be the same, as there properly could be no presumption of either an increase or diminution of the value in the ■ intermediate time. We do not wish to be understood, however, as holding that the value at that date is to fix the extent or quantity of land exempt as a homestead for all future time, regardless of the subsequent increase of value caused by the construction of improvements or otherwise. That is a question to be determined when it is properly before the Court.
¶3The rehearing is denied.