19 Fla. 191 | Fla. | 1882
delivered the opinion of the court.
In the month of April, 1882, the appellant, Drucker, filed a creditor’s bill in the Circuit Court of the Eirst Judi
The bill alleges that on the 12th day of March, A. I). 1882, the complainant recovered a judgment in the Circuit Court in said county against the defendant for the sum of two hundred and twenty dollars damages and five dollars and seventy-one cents costs; that on the 24th of March, 1882, execution was issued upon said judgment to the sheriff of said county, who by virtue thereof levied upon a lot in the city of Pensacola described as “ the S. 51 feet of lot 187 in block 27, fronting on Barcelona street 51 feet, more or less, and having a depth at right angles to Barcelona street of one hundred feet and house sills;” that the defendant claims to hold the lot so levied upon as a homestead and therefore exempt from forced sale under the Constitution and laws of this State; that the execution so issued as aforesaid was returned unsatisfied, and that the defendant has no other property out of which the judgment can be satisfied. The complainant, therefore, prays that a decree may be entered subjecting the said real estate to sale for the satisfaction of such judgment. He further charges that defendant purchased said real estate on the 16th February, 1882; that the defendant was then insolvent and largely indebted to complainant and others for goods and merchandise which he sold, and as complainant is informed and believes invested a portion of the proceeds of said sale in the said real estate; that defendant subsequent to the purchase of said real estate filed his statement in the office of the County Judge of said county declaring that such real estate was his homestead; that at the time of his filing such statement the real estate was and now is a vacant and unoccupied lot and has not been occupied by defendant as a residence, and that it is not exempt as a homestead within the intent and meaning of the Constitution and laws of this State.
From this decree the complainant brings his appeal.
In that case the lot claimed as a homestead had upon it a dwelling house occupied by a tenant and requiring repairs before Hewlett and his family could move into it, but he proposed to make those necessary repairs as soon as he was able so to do, and then occupy it with his family. In this case the lot when purchased was vacant and unoccupied.
In the case of Oliver vs. Snowden, 18 Fla., this court held that the selection and the recording of the designation of a homestead under the law of 1869 did not make it a homestead in fact, so as to exempt the property from sale, without actual occupancy as a residence, “ or perhaps when it is manifestly intended to be used as the home of the family, as was said by the Chief-Justice in 21 Wall., 486, the manifest intention being shown by proof of preparations made to occupy immediately as a home.”
The appellee alleges in his answer that he would “ have proceeded to have the said dwelling house erected immediately, but was prevented by the levy of said execution.”'
Is this a sufficient occupation of the premises as a homestead to render them exempt from forced sale ?
The almost uniform current of decisions is that actual occupation of property as a home of the family is necessary to impress upon it the character of a homestead. Givans vs. Dewey, 47 Iowa, 414; Gregg vs. Bostwick, 33 Cal., 220 ; Lee vs. Miller, 11 Allen, 37; Coolidge vs. Wells, 20 Michigan, 79 ; McConnaughy vs. Baxter, 55 Ala., 379; Philleo vs. Smalley, 23 Texas, 498 ; Thompson on Homesteads, §§244, 246 ; Austin vs. Stanley, 46 N. H., 51; Bugbee vs. Bemis, 50 Vt., 216.
It has been held that temporary absence from the premises upon which a dwelling house had been occupied as a home, with the intent to return to it, would not be a relinquishment of the homestead right. In the case of McConnaughy vs. Baxter, supra, the court say: “ Temporary absence, the intent to return and occupy existing,, might not work an abandonment of the right, as it would not of domicile. The actual occupancy having existed, its-cessation being temporary, the animus revertendi would, in legal contemplation, continue it as to the home, the dwelling place. Premises, the immediate occupation of which as a homestead is contemplated, but which is deferred from necessity or convenience only for a reasonable time, would probably be entitled to protection during the interval of delay in actual occupancy, but a lot never occupied as
He purchased the place on the 1st of April, and the repairs were finished and he actually commenced living in the house about the last of June. The plaintiff had knowledge of the condition of the defendant and the character of the occupation of the premises during the whole time. The court held the premises exempt from liability for the plaintiff’s judgment. The court say, “ while intention is not alone sufficient to impress the homestead character, yet it may be considered in connection with the circumstances. Sometime usually intervenes after the purchase of property before it can be actually occupied. Even after the process of moving it frequently takes days before the furniture can be arranged, and the house placed in comfortable condition for actual occupancy. Under such circumstances great inconvenience might arise if the homestead character was made to depend upon the actual personal presence of the members of the family. Law is entitled to and can command respect only when it is reasonable and adapted to the ordinary conduct of human affairs.” In the case of Barnes vs.
While the object of the homestead provisions of the Constitution and law is to protect the debtor and his family in the enjoyment of a home against creditors whose claims were not embraced in the exceptions, as for purchase-money, &c., yet the property must, when claimed as exempt, be stamped with the character of a home by some circumstance other than the intention to make it so. A bare lot unoccupied cannot be a homestead. Lumber placed upon it for the purpose of building is not such occupancy, even though there fnay be a contract made for building. The whole claim is based upon the bare declared intention to build a house upon the lot, and the presence of pieces of timber which may be so used when the defendant can find the means to complete it. This debtor, should he enjoin a levy and sale on the ground that he intended to make a homestead on the lot, might do nothing further toward building a house until another levy is made and thereby placing a few more sticks of timber on the lot again claim the homestead exemption on the ground that he was still
It may be said that under the law, as we understand it, a poof man may never be able to obtain a homestead. This may be a defect in the law, but we cannot make laws to supply such defects, if they exist. To hold that this lot is exempt as a homestead, because the defendant intended to make it so at some future time might be defended as an act of mercy, but that is rather the office of the Legislature. It would be difficult to draw the line where exemption begins to attach to unoccupied land if this claim of immunity is allowed.
If we declaim this lot exempt as a homestead, where would the exemption cease to operate if the house was not built or completed ?
Many of the eases decided in other States go far toward protecting property from sale for debts under the homestead laws, but none of them go so far as we would be required to go in this case to exempt this property from sale. It is not a homestead, though the intention may be to make it one at some future time. We believe that the provisions of the homestead laws should be carried out in the liberal and benefieient spirit in which they were enacted, but care should be taken at the same time to prevent them from becoming the instruments of fraud.
We are of the opinion that the dismissal of the bill by the Chancellor was error, and the decree is reversed and the cause remanded.