132 Wis. 392 | Wis. | 1907
The only questions for determination upom this appeal are: (1) Whether George Bartle, deceased, occupied the Hotel Grand as his homestead. (2) If he did, did' he ever forfeit his homestead rights? (3) Has the plaintiff" a purchase-money lien on defendant’s portion of the proceeds, of the hotel property, or is she entitled to subject such proceeds to the claims of creditors ?
“The law might very reasonably provide that in such case the undivided interest should be exempt. So it might also very reasonably provide that a homestead might be claimed in any undivided interest, establishing at the same time some mode by which it should be set apart and ascertained. Perhaps such provisions would be no more than the spirit of the constitutional provision upon this subject fairly requires. But the legislature has done neither, and the courts cannot supply the defect, if it is one. The law as made provides only for a homestead to be set apart by metes and bounds out of that which is owned and occupied in severalty.”
After this decision the legislature sought to remedy the defect pointed out in West v. Ward, and we find in sec. 2983, R. S. 1878, the provision that “such exemption shall extend to land, not exceeding, altogether, the amount aforesaid, owned by a husband and wife jointly, or in common, and to the interest therein of a tenant in common or two or more tenants in common having a homestead thereon, with the consent, expressed or implied, of the cotenants, and to any estate less than a fee held by any person by lease or otherwise.” This provision was continued in sec. 2983, Stats. (1898), and substantially in ch. 269, Laws of 1901, the latter amendment limiting the value of the homestead to .$5,000. Before this amendment the cotenant was entitled to the undivided interest for a home'stead with the consent of his cotenant, regardless of its value, and in case of sale the proceeds were ex
But it is insisted that the findings to the effect that George Bartle had a homestead in the hotel are not supported by the evidence. It is too well settled to admit of discussion or citation of authorities that this court cannot disturb the findings below unless against the clear preponderance of the evidence. Treseder v. Burgor, 130 Wis. 201, 109 N. W. 957; Philip Meyer Co. v. Sheboygan C. Co. 102 Wis. 535, 78 N. W. 1119; Crawford v. Christian, 102 Wis. 51, 78 N. W. 406; Guetzhow Bros. Co. v. A. H. Andrews & Co. 92 Wis. 214, 66 N. W. 119. It is insisted that the evidence is conclusive that the hotel was built to. rent. But the acts and declarations of George Bartle do not support this contention. As the court below found, he occupied the hotel as his dwelling and left it because of ill health; that at the time he so occupied it he had no other homestead, and had no other up to the time of his death. There is evidence that he sold the homestead he owned and put the proceeds into the hotel building; that he intended to keep the hotel as his homestead, and return to and reoccupy it as his homestead when able. There is direct evidence that the hotel was not built to rent;
But it is argued there was no consent, express or implied, on the part of J. L. Bartle. Exemption laws should be liberally construed to carry out the legislative purpose, and it is quite clear from the language used in the statute, “expressed or-implied” consent, that the legislature intended to 'make acquiescence on the part of the cotenant, under such circumstances as raise a presumption of consent, sufficient without further proof. The word “consent” is sometimes "treated as synonymous with “assent,” “acquiescence,” and '“concurrence.” 2 Words & Phrases, 1439. And the word “consent” has been defined to be an agreement of the inind to what is proposed or stated by another. Plummer v. Comm. 1 Bush, 76. It has also been defined as “the accord of minds,” “to think alike,” “approval,” “approbation.” 8 Cyc. 584. “Implied consent” is defined to- be “that manifested by signs, actions, or facts, or by inaction or silence, which raise a presumption that the consent has been given.” Black, Law Dict. 254; Bouv. Law Dict. 400. It is manifest that the use of the words “expressed or implied” consent in the statute was for the purpose of obviating the necessity of proof of consent directly given either viva voce or in writing. White v. People, 81 Ill. 333, 337; State v. Millain, 3 Rev. 409; Eldridge v. Adams, 54 Barb. 417, 421; Bouv. Law Dict. 400.
2. The court below found that George Bartle moved out of the hotel because of ill health, and intended to return and reoccupy the same as a homestead when his health would permit, and that he reserved rooms therein, kept the key, and stored household furniture therein, and did not forfeit his homestead rights. We shall not review the evidence upon
3. It is further insisted that plaintiff has a purchase-money lien. This claim is based upon the fact that the money of plaintiff was furnished to construct the hotel and was actually nsed for that purpose. We have been cited to no case, and have found none, where a lien has been enforced independent of statute upon facts similar to those in the case before us. If upon equitable principles a lien can be enforced against real estate merely because the creditor’s money has gone into buildings situate thereon, no reason is perceived why such lien should not be enforced in equity on account of building material furnished and attached to the realty independent of compliance with mechanic’s lien statute. It is very clear, therefore, that where money is loaned, as in this case, upon a promissory note, the mere fact that it was understood it should be used and was in fact used in the construction of buildings upon real estate gives the creditor no lien upon such real estate. The cases cited by plaintiff are purchase-money lien cases, and rest upon entirely different principles. Tobey v. McAllister, 9 Wis. 463, was where this court enforced a lien on real estate for the purchase money, when the
4. It is further insisted by appellant that if she cannot maintain her claim for a lien, still the proceeds can be reached
We therefore hold that the findings are supported by the evidence; that the interest of George Bartle in the Hotel Grand property was his homestead, and that the conveyance thereof to defendant was valid; that plaintiff had no lien upon the hotel property or the assets in the hands of defendant derived therefrom. It follows, therefore, that the judgment must be affirmed.
By the Qowrt. — The judgment of the court below is affirmed.