106 N.W. 684 | N.D. | 1906
This is an appeal from a judgment of the district court affirming a decree of the county court setting apart to the respondent her homestead and personal property exemptions out of the estate of Charles J. Calmer, deceased. The appellants are the two sons of said deceased. The respondent is the widow.
The facts are unclisputel. Charles J. Calmer died intestate April 9, 1904, leaving surviving him a widow and three children; two sons and a daughter. The two sons are now over 21 years of age, the younger having attained his majority in December, 1905, after this appeal was heard. The daughter is about three years old. The deceased died seised in fee of the real property in question. He had owned it, and occupied it as a family residence for several years, and he and his family were residing thereon at the time of his death. The property consisted of a lot in the city of Fargo less than two acres in area, upon which there was a two-story brick building; the upper of story of yrhich was used as the family dwelling, and the lower as a store. The building was mainly used as a family residence; its use in part as a place of business was only incidental. The property is worth $7,000, is mortgaged for about $2,800, and cannot be divided without material injury. The appellants assert that under these circumstances the widow has no homestead estate in the premises. The respondent contends that ithe entire premises are unconditionally exempt to her as a homestead, because, for the purpose of determining the value of the
We shall take up appellant’s proposition first, as that presents the question whether the respondent has a homestead right in the premises in question. The state Constitution directs that (section 208): “The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws, exempting from forced sale to all heads of families a homestead, the value of which shall be limited and defined by law, and a reasonable amount of personal property; the kind and value shall be fixed by law. This section shall not be construed to prevent liens against the homestead for labor done and materials furished in the improvement thereof, in such manner as may be prescribed by law.” Previous to 1891, the homestead was limited as to area but not as to value. Comp. Laws 1887, section 2449, et seq. The present law with relation to the exemption and descent of the homestead is found in chapter 39 of the Civil Code. Sections 3605-3638, Revised Codes, 1899. Section 3605, Rev. Codes 1899, provides: “The homestead of every head of a family residing in this state, not exceeding in value five thousand dollars, and if within a town plat, not exceeding two acres in extent, and if not within a town plat, not exceeding in the aggregate more than one hundred and sixty acres, and consisting of a dwelling house in which the homestead claimant resides, and all its appurtenances and the land on which the same is situated shall be exempt from judgment lien and from execution or forced sale except as provided in this chapter.” Subsequent sections (3610-3618) prescribe the method of determining the value of the homestead and the procedure by an execution creditor who has levied thereon and desires to reach the nonexempt part of the property, in case “the value of the homestead exceeds the amount of the homestead exemption.” Section 3611, Rev. Codes 1899. These sections, among other things, in substance provide that if the value of the property claimed as a homestead exceeds $5,000, and cannot be divided without material injury, the whole shall be offered for sale, and if it can be sold for more than $5,000, then that said sum shall be paid to the homestead claimant, and the remainder of the proceeds of the sale may be applied on the execution. Sections 3626-3631 relate to the disposition of the homestead after the owner’s death. Upon the
In cases where the homestead property can be divided without material injury, and exceeds the amount exempted in area or value, the exempt part is set off by metes and bounds in substantially the same manner as that prescribed in case of an execution
It is plain that the homestead referred to in the Constitution means the real property in or upon which the home is located, and which is devoted to a use appropriate and usual to a home place. It may be a small lot and building in town or a section or more of farm land with its buildings and it includes a palace as well as a hovel. Gregg v. Bostwick, 33 Cal. 220, 91 Am. Dec. 637; Ferguson v. Kumler, 27 Minn. 156, 6 N. W. 618. The Constitution guarantees to every head of a family a homestead exemption, but requires the legislature to limit the amount of this exemption as to value. It is self-evident that the legislature cannot change the meaning of the constitutional guaranty, neither can it deprive the head of a family of the right to a homestead
Appellant, however, further contends that even though the property was subject to the exemption right in the lifetime of the deceased, yet no homestead estate can he awarded therein to the surviving family under the circumstances of this case. This argument proceeds on the theory that the homestead estate is a creature of the statute, and unless the statute has provided the means and procedure for ascertaining and awarding it, the rights thereto does not exist. In other words, reversing the maxim, counsel insists that where there is no remedy there is no right.
As to area, the property is within the prescribed limit and the question is, whether it exceeds the limit as to value. The respondent contends, and the county and district courts held, that in determining the value for the purpose of ascertaining the extent of the exemption right the amount of the 'incumbrances should be deducted from the value of the land with the buildings and improvements thereon. Acting on this theory the entire premises were unconditionally set off to the respondent as her
Again, in section 3628, in prescribing how the homestead estate shall be ascertained in the county court after the owner’s death, this proviso appears: “Provided, however, that the real property, which is subjected to the homestead estate by the county court, and in which such estate is ascertained and set off by such court, must not exceed in value and area the value and area prescribed in section 3605.” Here is a specific direction that the value of the property itself is the measure of the extent of the exemption. Even if the term “property” could be construed to mean the claimant’s estate in the property, and as to that we express no opinion, there is no warrant for deducting the amount of incumbrances from such value. As before stated, the incumbrances do not diminish the owner’s estate. We think the weight
In this case the creditors, if there are any besides the mortgagee, are making no claim, and in view of the amount of the mortgage on the homestead it is not likely that there will be any occasion for such a demand. It is clear that these appellants have no cause for complaint even though the judgment appealed from is technically erroneous. The judgment and decree should be modified so as to show, as required by section 6392, that the homestead assigned to the respondent exceeds the statutory limit to the extent of $2,000, and that the homestead cannot be divided without material injury.
As thus modified the judgment is affirmed.
N. B. — See note on homestead to Helgebye v. Dammen, 13 N D. 176.