Corn v. Hyde

26 N.M. 36 | N.M. | 1920

OPINION OP THE COURT.

MBCHEM, M. C.,

District Judge. E. S. Corn brought this action to restrain Hyde, as sheriff, and Farnsworth, as judgment creditor of Henry M. Corn, from selling certain real estate situated in Lincoln county, under an execution issued out of the district court of Chaves county; E. S. Corn’s claim was that he was a bona fide purchaser of the property, and that, at the time he bought it, it was the homestead of Henry M. Corn.

[1-3] The questions of law presented by this appeal are of first impression as far as reported cases in this court are concerned. They are not novel, however, having occupied the attention of many - courts of last resort in the United States, and the statements of law hereafter made; the concrete result of the current of authority, are too well settled to admit of controversy or to require any attempted argument on our part for their support. If the property was exempt as the homestead of Henry M. Corn, he could sell it clear and free from the lien of the Farnsworth judgment. 21 Cyc. 553. Injunction in this case is the proper remedy. 21 Cyc. 634; 13 ,B. C. L. 620. The district court of Lincoln county had jurisdiction to enjoin a sale of exempt real estate situated in Lincoln county, under the authority of an execution issued out of the district court of Chaves eotuxty. 15 Corpus Juris, 1143.

[4-6] As to whether the property was the home-stead of Henry M. Corn, the undisputed evidence was that Henry M. Corn acquired the land, which is town property in Carrizozo on which there is a dwelling, in 1912; that shortly thereafter he moved on it with his family; that until the spring of 1914 he worked at various places in Lincoln county, taking his family with him, but returning for short stays to his homestead; that in the spring of 1914 he rented a store building at Rabenton, Lincoln county, where he was living with his family October 5, 1916, when he sold the homestead to the plaintiff; that while living in Reventón Henry M. Corn ran a store, registered as a voter, and voted at the fall election of 1914 in the Reventón precinct; and that during his stay in Reventón he rented his homestead for a few months and never returned to occupy it. He testified that he never intended to abandon the Carrizozo property as his homestead, and that he intended to return to it, a] id had never in the meantime acquired another homestead.

Counsel for defendants insists that the fact that Henry M. Corn voted in Reventón in 1914 is conclusive evidence of abandonment, but the great weight of authority is against this contention. 21 Cyc. 607; Osage Mer. Co. v. Blanc, 79 Kan. 356, 99 Pac. 601; McCammon v. Jenkins et al., 44 Old. 612, 145 Pac. 1163. These cases hold that, while the exercise of the right of suffrage in another place than that in which the homestead is situated is very pursuasi’ve evidence of abandonment, yet it is not conclusive. In a recent ease the United States Circuit Court of Appeals of the Fifth Circuit said:

“It is to be kept in mind always that, whenever land shall have impressed upon it the homestead character, its abandonment as homestead must be beyond doubt before the homestead protection will be refused. There must be an unequivocal and absolute intention to abandon; and in most cases the inference of abandonment will not be indulged in the absence of the acquistion of a new homestead.” Woodward v. Sanger Bros., 246 Fed. 777, 169 C. C. A. 79.

Until the homestead claimant shall have acquired a new homestead, the fact that • he has moved with his family to another place in the same county to conduct a business, and there exercised the right of suffrage, does not evince on his part, an unequivocal and absolute intention to abandon his homestead. In doing all these acts he may have always intended to return and make his home on the Cairrizozo property.

[7] Our homestead exemption statute (section 2321, Code 1915) provides:

“Husband and wife * * * may hold exempt from sale, or judgment, or order, a family homestead,” etc.

Defendants’ counsel argues that the word “hold” signifies actual possession and negatives the idea of temporary absence from the homestead. But the word “hold” as thus used was not designed to measure the character of possession, and in seeking its meataing it must be looked at in connection with the words that follow. The entire statement .is ‘ ‘ may hold exempt from sale, or judgment, or order,” etc., and as thus used “hold” means may keep or retain or preserve exempt' from sale, etc.

There being no error in the record, the judgment of the district court is affirmed; and it is so'ordered.

ParKer, C. J., and Roberts, J., concur. •