128 N.W. 684 | N.D. | 1910
The action out of which this appeal arises was brought by appellant to determine adverse claims to real property. The particular purpose of the action, as alleged in the complaint, is to set aside as null and void a sale upon execution, made at the instance of respondent, of two lots in the city of Grafton, and a sheriff’s ■certificate of sale of the premises issued to respondent as purchaser, on March 18, 190Y.
The record here consists only of the judgment roll. The evidence and exhibits offered were not brought up, and are not before us. The facts necessary to the determination of the appeal must, therefore, be taken from the findings of the court. From these it appears that appellant was the owner in fee of the lots in question, and for a period of about eleven years last past has continually owned and resided upon the premises with her husband and family, consisting of a daughter twenty-five years of age. The husband of plaintiff is alive, and is not in any manner mentally or physically incapacitated from earing, and providing for his family, consisting of his wife and daughter, as aforesaid. On the other hand, he is physically able and competent to do so. He has not abandoned or deserted the plaintiff, or.in any way relinquished his right to the headship of the family. He has been temporarily away from appellant off and on for two years last past, and out of the state of North Dakota most of the time, but during all of said time has been able-bodied, free from infirmity or sickness, and able and willing to support or assist in supporting his wife and family. Prior to the commencement of this action, he took up a claim of 160 acres of land in the state of Washington, under the desert land laws of the United States, and still holds and claims the same.
It further appears, from admissions of the pleadings and the findings of the court, that respondent is the holder of a judgment, obtained in an action against appellant and her husband upon a claim for services as an attorney in conducting the defense of a criminal prosecution of the husband; that respondent caused execution to issue on this judgment, and to be levied upon the premises occupied by appellant, and the same to be sold at execution sale; that at said sale he became the purchaser, and is now the owner of a sheriff’s certificate ■of sale of the premises in controversy, dated March 16th, 190 Y, which ■certificate of sale has been filed for record in the office of the regis
The court finds as its conclusion of law that the husband of appellant has not, constructively or otherwise, been deposed from his prima facie headship of the family, and that plaintiff is not the head of a family within the meaning of the law providing for homestead exemption; that appellant is not entitled to claim the premises as a homestead, for the reason that she is not the head of a family within the meaning of "the laws of this state; that the sheriff’s certificate held by' respondent is valid and sufficient, and conveys to him title to the lots in question subject only to a redemption by appellant as provided by law.
The district court, upon these findings and conclusions, ordered that judgment be entered in favor of the defendant, declaring that the sheriff’s certificate mentioned in the pleadings operates to convey title in the premises to respondent, and that appellant is without claim thereto, which was done accordingly. The plaintiff appeals to this court, demanding a review and new trial of the entire case. Owing to the record presented here, however, we can only review the findings of fact, for the purpose of determining whether they support the conclusions of law and the decree entered by the trial court.
What is known as the homestead right is in this state provided by means of laws, “exempting from forced sale to all heads of families a homestead, the value of which shall be limited and defined by law/’ Constitution, § 208. The statute adopted in furtherance of this constitutional policy provides in broad terms that the homestead defined by law “shall be exempt from judgment lien, and from execution or forced sale, except as provided in this chapter.” Eev. Codes, 1905, § 5049. The only exceptions in the chapter referred to are in favor of debts secured by mechanics’ or laborers’ liens for work or labor
It is settled, beyond all cavil, ’by previous holdings of this court, that the constitutional and statutory provisions of homestead right are wholesome and salutary regulations in furtherance of a wise, generous, and humane public policy, encouraging the establishment and maintenance of homes; that statutes providing for homestead exemptions are remedial in character, and should be liberally construed with a view of carrying into effect the obvious purpose of their enactment; and that the object sought by the adoption of this constitutional provision, and the enactment of statutes in furtherance thereof,, “was to protect and preserve the home, not for the benefit of the head of the family, but for the benefit of the family as a whole. . . .
It is apparent, therefore, that the homestead right is declared to ■exist, and the homestead exemptions are made, by both constitutional and statutory provisions, to the head of the family, not as an individual, but in' representative capacity. The right is extended to the family in its entirety, and not to the individual who for the time being .stands at its head. This purpose is indicated not only by the general policy of the law, but by the fact that the husband, though the nominal head of the family, is prohibited from conveying or encumbrancing this right by his individual act. Rev. Codes, 1905, § 5052.
Respondent contends, and the trial court held, that no homestead ■exemption existed in the case at bar by reason of the fact that it was not claimed by the husband, who was to be regarded as the sole head ■of the family. The fact that the premises were the family domicil •seems to be conceded. This brings us to the consideration of the point •of whether or not the homestead exemption is to be regarded as a personal privilege of the head of the family that may be considered :as waived by his failure, refusal, or neglect to assert it.
It may be conceded that a personal exemption, or these exemptions which are known under the statute as “additional” or “specific alternative,” may be waived by a failure of the proper party to claim them within a specified time after seizure. This court has specifically so held, and its ruling is consistent with standard authority on that subject. Ness v. Jones, 10 N. D. 587, 88 Am. St. Rep. 755, 88 N. W. 708. Does it follow that this principle also applies to the absolute •exemptions provided by § 7115 ? If such is the case the holding of the trial court that appellant was not entitled to the assertion of a homestead right in this case is correct.
It is apparent, however, from an examination of § 7115 and the following sections' treating of the subject of exemption, that there is a ■clear and broad distinction to be drawn between those exemptions classified as absolute and those termed “additional” or “specific alternative” by the statute. As said by the supreme court of South Dakota
The foregoing excerpt, we believe supplies a sound construction of § 7115, and § 7116 of the [Revised Codes of 1905. It seems apparent that the legislature, in view of the important character of the homestead right, did not see fit to leave its assertion to the caprice of any individual member of a family. It lodged this right in the family itself by making the homestead absolutely exempt from execution, and declaring in pointed and express phrase that it was not the subject of levy and sale under any final process issued from any court. Upon the exclusive and emphatic terms of this inhibition, we can place no other meaning than that any attempt to proceed against the homestead right by means of attachment, execution, or other process of any character involving seizure, levy, and sale, is absolutely prohibited, and if resorted to is wholly inoperative for any of the purposes ordinarily accomplished by such process, and null and void.
In the case at bar there seems to be no question but that the property levied upon and sold was the residence of a family, and well' within the limits of area and value defined by law as constituting a homestead. The temporary absence of the husband is not even slight evidence of an abandonment. The fact that the family was living there must have been known to the sheriff making the levy and sale. Aside from the fact that notice was served upon him that the property was a homestead, he would be required to take notice that the premises-were absolutely exempt from execution, and not the subject of levy and sale. The fact that he proceeded to make a levy, and go through-the form of a sale on execution under a judgment that was not a lien upon the property, did not operate to convey any title or interest to respondent, who was the purchaser at the sale. The sheriffs certificate issued to him was wholly unauthorized, and it is at most a cloud upon appellant’s title. While, under the conditions, she might not have been qualified to claim an exemption in personal property, it was not necessary, in order to assert the homestead right, that she should make this claim.
It is apparent, therefore, that the findings of the District Court do-not afford support for its conclusions, or authorize a decree of the character of that entered. It is accordingly ordered that the judgment of the District Court be reversed, and that it enter a judgment in appellant’s favor declaring the sheriff’s certificate issued to respondent to be null and void, and quieting title in appellant against any claim of respondent.
Note. — See note to Helgebye v. Dammen, 13 N. D. 167, 100 N. W. 245. Execution sale conveys no title to homestead; and officer’s liability, if any, is only for cost of clearing title. Johnson v. Twichell, 13 N. D. 426, 101 N. W. 318. Definition of homestead exemption. Calmer v. Calmer, 15 N. D. 120, 106 N. W. 684. Surviving wife and children are entitled to homestead, although it exceeds statutory value. Ibid. Excess may be applied on decedent’s debts, after other property is exhausted. Ibid. Liens not deducted in determining value. Ibid. Where homestead exceeding 5,000 in value is decreed by county court, its decree must show the excess and indivisibility. Ibid. Husband’s contract to sell homestead without wife’s joining is void, and he is not liable for damages for its breach. Silander v. Gronna,