218 N.W. 864 | N.D. | 1928
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *615 This is an action to determine adverse claims to an eighty acre tract of land in Stutsman county. The plaintiffs claim to be the absolute owners in fee by virtue of a warranty deed from Frank Squire and Anna Squire, executed and delivered on or about March 15, 1927. The defendant admits that plaintiffs are the owners of the land, but asserts that defendant has a lien thereon by virtue of a judgment for $328.50 entered in the district court of Cass county, North Dakota, November 29, 1926 and transcripted to and docketed in the office of the clerk of the district court of Stutsman county on November 30, 1926. The plaintiffs admit the rendition and docketing of the judgment but claim, that it is not a lien upon the premises for the reason that at the time of the rendition of the judgment and for a long period of time prior thereto and up to the time of the sale and conveyance thereof to the plaintiffs, the premises were the homestead of said Frank Squire and Anna Squire and that consequently said judgment *616 did not and does not constitute a lien upon the premises. The trial resulted in a judgment quieting title in the plaintiffs, and decreeing that the said defendant has no right, title or interest in or to said land or lien thereon. The defendant has appealed from the judgment.
The complaint contains all the usual averments in a statutory action to determine claims. Comp. Laws 1913, § 8147. It further alleges that the plaintiff on or about March 15, 1927 acquired title to the premises described in the complaint by purchase from Frank Squire and Anna Squire; that at the said time and for some years prior thereto, the said Frank Squire and Anna Squire, husband and wife, actually lived upon and occupied said premises as a home, and that the same constituted their homestead, and as such was absolutely exempt from any judgment, lien or levy, was so at the time of purchase by the plaintiffs and has been so ever since. The complaint further alleges that the defendant appears to have a judgment against the said Frank Squire and Anna Squire dated November 29, 1926 and docketed in the office of the clerk of the district court in Stutsman county on November 30, 1926; and that such judgment appears as a cloud upon plaintiffs' title. The defendant demurred to the complaint on the grounds: (1) That the plaintiff has no legal capacity to sue; (2) that there is a defect of parties plaintiff; and (3) that the complaint does not state facts sufficient to constitute a cause of action.
The demurrer was overruled with leave to answer. The defendant interposed an answer wherein it admitted the existence of the judgment but denied that the land described in the complaint constituted a homestead as limited and defined by law, or had ever been selected as such. The answer further averred that the action was premature; that said Frank Squire and Anna Squire, at the time of the alleged sale of the premises in controversy, were, and for a long time prior thereto had been, the record owners of two hundred and forty acres of land adjacent to the eighty acres in controversy, making in all a compact tract of three hundred and twenty acres, and exceeding in value $16,000. The action was tried upon the issues framed by these pleadings.
The trial court found that on "March 15th, 1927 and for fifteen years prior thereto Anna Squire and Frank Squire, wife and husband, together with their children have lived upon and occupied the following *617 described land situated in the county of Stutsman in the state of North Dakota, to-wit:
The west half (W 1/2) of the southwest quarter (SW 1/4) of section twenty-six (26), township one hundred forty (140), range sixty-two (62), containing eighty (80) acres more or less according to the United States Government survey thereof
and that on said March 15, 1927 and at all times since December 5, 1924 the said Anna Squire was the owner and the record title owner and the legal owner of said land, and that the same was occupied by her and the said Frank Squire at all times from said date and for more than fifteen years last past as their home. That on the 15th day of March, 1927 the said Anna Squire and Frank Squire, her husband, who were then living on and occupying the said land as their home and homestead, sold said land to the plaintiffs, and that the plaintiffs then and there became the owners thereof by purchase of said land, and that said Anna Squire and Frank Squire continued to occupy the same until the said plaintiffs moved in the said premises on or about the 18th day of March, 1927 and that as plaintiffs furniture and possessions were moved into the house and dwelling place, the said Anna Squire and Frank Squire removed their household goods from the same. That the same at said time of sale actually constituted the home and homestead of said Anna Squire and Frank Squire, and that the same was their homestead, was actually sold and deeded to said plaintiffs by warranty deed dated March 15, 1927, which deed was recorded on or about the 16th day of March, 1927 in the office of the register of deeds in and for Stutsman county, North Dakota, and that the plaintiffs thereupon became the owners of said land by deed of purchase. . . .
That said land was at the time of the purchase by the said plaintiffs of the reasonable and fair value of four thousand and five hundred and 00/100 ($4,500.00) dollars, which however was subject to a mortgage in the sum of sixteen hundred and 00/100 ($1,600.00) dollars to the Bank of North Dakota, which has been assigned to the state treasurer of North Dakota and upon which there was more than the sum of fifteen hundred and 00/100 ($1,500.00) dollars still due, and that such mortgage in the purchase of said land was assumed by the said plaintiffs as a part of the purchase price thereof, so that the equity and estate in favor of the said Anna Squire and Frank Squire was of the actual *618 reasonable value of approximately three thousand and 00/100 ($3,000.00) dollars, and not in excess thereof. . . ." These findings are in accord with the undisputed evidence.
The undisputed evidence further shows that the warranty deed executed and delivered by Anna Squire and Frank Squire to the plaintiffs in this action contained the following recital: "This land has been lived upon and occupied by the parties of the first part as their home and homestead for the past fifteen years or more and is so occupied and held at the time of giving of this deed." The undisputed evidence was, also, to the effect that the eighty acre tract in suit was the only land owned by Anna Squire. There was, however, evidence to the effect that her husband, Frank Squire, owned a 160 acre tract adjoining it on the north and an 80 acre tract adjoining it on the west.
The contentions of the appellant are:
(1) That the complaint fails to state facts sufficient to constitute a cause of action in favor of the plaintiffs.
(2) That the premises in question were not the homestead of Anna Squire and Frank Squire, and, hence, are not exempt from the lien of defendant's judgment for the reasons:
(a) That no declaration of homestead had been filed;
(b) That the premises being the property of Anna Squire could not be selected as a homestead without her express consent;
(c) That the 80 acre tract was a part of a 320 acre tract and that consequently it was essential that the parties select a portion of such tract by filing of a declaration of homestead.
(3) That in any event the trial court erred in permanently enjoining the judgment creditor from enforcing the judgment as a lien against the premises. These contentions will be considered in the order stated.
(1) The contention that the complaint fails to state a cause of action in favor of the plaintiffs is so obviously without merit as to require no extended discussion. The complaint contains all the averments prescribed by law in a statutory action to determine adverse claims. Comp. Laws 1913, § 8147. The fact that the complaint further contains certain averments as regards the source of plaintiffs' title and a description of the particular lien claimed by the defendant, and appearing as a cloud upon plaintiffs' title, and the alleged reasons why such lien is null and void as against the plaintiffs' title, does not render the *619
complaint demurrable. Blakemore v. Roberts,
In such action it is not an essential prerequisite to plaintiffs' recovery that he prove that the defendant, in fact, asserts some estate, or interest in, or lien or incumbrance upon, the real property in controversy. Plaintiff's cause of action is established by showing plaintiff's title, the homestead right and the existence of the judgment. Klemmens v. First Nat. Bank, supra.
(2) The right to have and claim a homestead exemption has been recognized and safe-guarded by constitutional and statutory provisions throughout the entire history of the state. Const. N.D. § 208; Comp. Laws 1913, §§ 5605, 7730. See also Roesler v. Taylor,
It is the use to which the property is put, which furnishes the test in determining whether or not property is subject to dedication as a homestead, that is, whether it is a homestead in fact. Its use must be primarily as a home for the family. 13 Cal. Jur. p. 465, § 38. Unless it is used, or intended for use, as a home no right of homestead exists. Thompson, Homesteads
Exemptions, § 102; Calmer v. Calmer, supra; Tromsdahl v. Nass,
"Respondent's homestead right existed at the date of the rendition of the decree of divorce, but it so existed by virtue of the fact that she was a member of the family of Torkel Mehus, who with his family, had established his home and their home thereon, and whose occupancy had been continuous. Her rights were in no manner strengthened by the *621
fact that she attempted to place a declaration of homestead on record. Such declaration does not create homestead rights. . . . In this state, when the head of a family owns land in excess of the amount allowed by law for a homestead, and the land is in one body, and the family resides thereon, the homestead may be selected in any form that may be desired up to the quantity allowed by law as a homestead. Recording a declaration of homestead gives notice to all purchasers, and all parties dealing with or extending credit to the owner, of the exact land claimed as a homestead. This, we think, is the main, and perhaps exclusive, reason for the provision, because a failure to make and file the declaration does not render the homestead liable in execution? See also Foogman v. Patterson,
This language and reasoning is directly applicable here. The evidence in this case shows beyond question that the eighty acre tract in controversy had been the family home of Frank and Anna Squire and their children for some fifteen years immediately preceding the rendition of the judgment, and that it continued to be such home until it was sold and conveyed to the plaintiffs. The evidence further shows that such home did not exceed in area or value the limits of a homestead as fixed by the laws of this state. In such case the law presumes that the premises have been selected and are claimed to be exempt as a homestead. 29 C.J. p. 812; Foogman v. Patterson,
(3) A homestead right is not defeated because the title to the property is in the wife. Section 5606, Comp. Laws 1913, provides:
"If the homestead claimant is married, the homestead may be selected from the separate property of the husband, or with the consent of the wife, from her separate property."
This statutory provision is for the benefit of the wife. Under it, the husband may not, without the consent of the wife, select her separate property as the family homestead. But there is no requirement that the wife's consent be manifested in any particular mode. The selection of a family homestead is generally evidenced by the acts of the parties. Ownership, occupancy and use may be, and frequently are unmistakable evidence of selection and this is especially true when the property is within the extent and value limited by law for a homestead. 29 C.J. p. 812. And where a place owned by either the husband or *622
wife, or by both, has been occupied and used by them as the family home for a long period of time, and has become distinctly impressed with the character of a family homestead, the selection has been made. In such case the consent of the wife has been given; and after the homestead has been so selected and established she has no more right to waive or forfeit the homestead rights of her spouse and family than has the husband to waive or forfeit similar rights in real property belonging to him. If the premises are in fact the family home, that is, the homestead of the husband and wife, the exemption may be claimed by either and the homestead right may neither be waived nor forfeited by the other. Helgebye v. Dammen,
(4) It is, also, contended that the 80 acre tract in controversy was a part of a 320 acre tract and that, consequently, under the rule announced by this court in Foogman v. Patterson,
"(5) It is next contended that in any event the trial court erred in quieting title in the plaintiffs and in permanently enjoining the judgment creditor from asserting any lien upon the premises under its judgment. In support of this contention appellant cites Klemmens v. First Nat. Bank,
Judgment affirmed.
NUESSLE, Ch. J., and BIRDZELL, BURKE, and BURR, JJ., concur.
