By judgment rendered by the Court of First Instance of Camarines  Sur  (Civil Case No.  1836), duly affirmed by the  Court of Appeals (CA-G.  R. No.  10026-R), herein appellant Ponciana de la Cruz  was  sentenced to pay  appellee Maxima Felipe "P50  as damages for the year 1951, and to deliver  to her  thereafter five  cavanes  of  palay every year,  until  the land  is fully  restored."  To satisfy the  judgment, the Sheriff  levied upon appellant's  four parcels of  rice  land and advertised  the same  for  sale. Appellant petitioned  the Court  to  declare   three of  the parcels, covered by Tax Declarations No.  1836,  1226, and 2233, with a  total assessed value of P290, to be exempt from execution as  debtor's homestead,  under  Rule  39, section  12, paragraph (a).  The Court below denied  the exemption, the parcels were sold, and Ponciana de la Cruz appealed to this Court.

In her  brief  (pp.  5-6),  appellant admits that she has no homestead or residence in  the controverted land; but avers that as  her house was in the very land that, under the judgement, she must  deliver to appellee herein; she is entitled to substitute the three parcels above mentioned Hin lieu of her homestead."  Appellee avers, on the other hand, that as appellant does not actually occupy any of the parcels claimed, they do not become exempt from execution.

In our opinion, this theory of  substitution cannot be maintained.  It is to be observed that the rules on execution do in fact contemplate the  possibility that property, otherwise exempt  (like a  homestead),  may nevertheless be  subject to  execution  under specified circumstances and  yet  no substitution  provided for.  Thus,  the last paragraph of  section 12 of Rule 39, is to the effect that  

"But no  article or species of property mentioned shall be exempt from execution issued upon a judgment recovered for the price or upon a judgment of foreclosure of a mortgage thereon."

The right to exemption from execution  is purely statutory and  as a matter of fact, Rule 39,  section 12, ia but a reproduction of section 445  of Act 190, as amended by Act  No. 3862.  Wherefore, the Courts have no power to extend, modify or  restrict the exemption fixed by  the Legislature, since such exemption is substantive and not procedural in character.  The Legislature not having 'provided for a substitute homestead in case the home of the debtor is levied upon, courts are  powerless  to institute the replacement of such homestead  with another property of the debtor.

Another argument  against the  stand of appellant  is that by "debtor's homestead" the law means nothing else than the  house in which the debtor resides.  Interpreting the original provision of section 445 of Act 190 (the old Code of Civil Procedure), this Court has ruled in Young vs. Olivares,  41 Phil., 391, to that effect. 

"* *  *    The word 'homestead,' as used in English, usually imports not only the residential  house occupied  as a  home but also the adjacent land necessarily used in connection  therewith; and yet the word is sometimes used for  either  house  or land separately. (See New  Standard Dictionary, s. v. homestead.)  Now, in drafting the provision under consideration, the authors of the Code of Civil Procedure, out of abundant precaution  and in order  to  avoid a narrow, interpretation of the word 'homestead,' added the expression and land  necessarily  used  in connection therewith.'  By giving independent expression to this element in the  signification of the word, the  codifiers thereby narrowed the necessary import.of the word 'homestead with the result that, as it stands here, it means nothing more than house"(Cas. Cit. pp. 393-394).

Since  it is not contended that  three  lots  involved in the appeal contain any house, the "homestead" exemption can not apply to them.   While the debtor may  now have the intention of transferring her dwelling to one of said lots, mere intent can not support the claim for exemption. The rule  is  well  established  that, unless  otherwise  expressly provided, actual occupancy  is necessary to acquire a homestead  exemption (40 C.J.S., 458;  Klots vs. Rhodes 240 Mo. 449, 144  SW 791), and the homestead character can  not be impressed upon  the property only after its levy and  seizure  (Ann. Cas.  1913B,  1147-1151).   This rule is recognized in  the words  of our  law, declaring as exempt only  

"The debtor's homestead,  in which he resides, and land necessarily used in connection therewith."

If not  as homestead, may  the lots in  question be held exempt from execution as  'land necessarily used in connection therewith"?  The construction adopted  in  Young  vs. Olivares, supra, strongly indicates that^ since the term  "homestead" is limited to the house, "and necessarily used in connection" with it must refer to the land upon which the  house stands, and  the adjacent lot needed  for  its dependencies  (gardens, orchards, garages driveways, etc.) (29 C.J.  830; 40 C.J.S. 503). It does not  seem  cogent that  "land necessarily  used"  should be  made  to apply to any land  devoted to  produce food for the support of the  debtor, considering that  the law  already  exempts, by  express provisions, his means of livelihood,  such as the tools  and implements  required for the debtor's trade and employment,  his  work  animals, clothing and household utensils, besides  provisions for him and his family "sufficient for three  months"  only  and  not  indefinitely (Act 190; Rule 39, section 12).  Were the "land necessarily  used in connection therewith" intended to  designate  land required for the support of  the  debtor,  as appellant  contends, surely the law would have mentioned it either jointly with,  or as an alternative to, the  exemption of his means of earning a living (instruments, tools, etc.), but not in connection with his homestead.

But granting that "land necessarily used in connection" with the debtor's homestead includes the  non-adjacent land upon which the  debtors  food is grown, there is on record no evidence that the lots  here involved were devoted ty such purpose  before the levy was made; and the  burden of proof lay upon  the appellant as claimant of the  exemption to show such use (Agatep vs. Taguinod, 36 Phil. 435). And considering the finding of the Court below, that appellant owned nine (9) parcels of land in all (R. A. p. 10), we  find no reason to consider that  the appealed order, denying the  exemption  of the three  lots here involved, constituted reversible  error.

The order appealed from is  affirmed.  Without costs.

Paras,  C.  J., Padilla, Montemayor,  Bautista  Angelo, Labrador, Concepcion,  Endencia, and Felix, JJ., concur.