153 N.W. 392 | N.D. | 1915
The only question in this case is whether the plaintiff,
Ida B. Healy, had, at the time of the levy of the execution, a homestead interest in a certain house and lot in the city of Bismarck.'
Q. Now, where have you.been or resided during the last two years, or such part of the time as you have been away from Bismarck ?
A. I visited with my mother for three or four months in Nova Scotia, and since that time I have been nearly all of the time with my daughter, Mrs. Bittgers, at Jamestown, going back and forth to Bismarck. There was about six months after I came back from Nova Scotia that I was right here in Bismarck, and was in my room most of the time.
Q. Has your residence with your daughter at Jamestown been in the shape of visits or otherwise ?
A. I was visiting most of the time. It was not my intention at any time to abandon my home in Bismarck. I have not at any time
Q. Bo you know whether it was for the purchase price of the lots or not?
A. I do not know whether it was or not.
Q. Mrs. Healy, don’t you know what these notes were given for ?
A. No, I can’t say. I don’t know what they were given for.
Q. Do you know the date of the notes?
A. I don’t. I occupied the house on lot 8 until about two years ago. I did some private boarding there. I stored my furniture in the northwest room usptairs. The room is about 8 or 10 by 11 or 12. I have dressers, rugs, chairs, tables, beds, just about what I had in my house. Nearly all, excepting a .few pieces that I sold out of my parlor. I would think there were probably three beds. I would not be just sure. None of them are set up at the present time. I have a dining room table, and then I have a kitchen table, and about three small tables, just little tea stands that I had in the bedrooms for the boarders. There are three dressers. I would not know how many chairs, because I had some kitchen chairs and some dining room chairs. Perhaps all together there would be eleven or twelve. I had no reason for counting them. I just kept getting them as I had to, and couldn’t say for certain. Some rocking chairs, I couldn’t say just how many. Just a few common dishes, perhaps half a dozen ordinary books. I have three rugs there. No carpets. I have one of those little gasolene stoves in my room. The room is pretty well occupied with the furniture that is stored there. Pretty well filled up. None of the furniture is packed up ready for shipment and never has been. None is crated. I have some bedding just thrown loosely on some chairs. I have cooking-utensils in the room. I have all the little things to put on the stove and so on. In fact, I have most everything of my cooking utensils in that room that I had in my kitchen, because I took them out of Mrs. Staley’s way. They are the things I used while I was keeping the premises. I
Q. Where did you reside while you were in Bismarck?
A. Ernest had a couple of rooms. He was working for H. L. Keade, of the Union Mercantile 'Company. He was working for the Union Mercantile Company while I was here. His rooms were in the little building near the Union Mercantile, — I think about five or six blocks south of the premises I formerly lived in.
Q. And you stayed in those rooms during those six months that you were in Bismarck ?
A. No, about three months. Then I went to Jamestown with my daughter, Mrs. Harry Bittgers. Mrs. Bittgers has been married about two years. She lived with me until she was married two years ago, and helped me keeping the boarders, a very little, as she was always in school. She was married before. She was first married in the year 1906, and then she married the second time in 1911. She made her home with me until she was first married in 1906.
Q. Now, isn’t it a fact, Mrs. ITealy, that you have, since you have been in Jamestown, spent some of your time keeping house with Ernest ? '
A. I have in rooms that were furnished — Mr. and Mrs. Kittgers’s rooms — while they were at Grand Forks. Ernest and I kept house. I cooked his meals for him in their rooms. Ernest has been employed at Jamestown for sometime. He is not married. He is twenty-nine years old. I was in Bismarck probably a little more than three months during the last two years. I was in Nova Scotia about between three and four months, beginning two years ago this last June. I then returned to Bismarck. I was here a little more than three months. That was the time I occupied the rooms that Ernest had. I went to Jamestown shortly after that when I got my arrangements made. I have been there since, off and on. I am here in Bismarck about every two months. When I am here I stay sometimes three to four days and have been here a week. I come down here to visit friends and to look after my home and so on, — collect my rents here and look after repairs. I
Q. At those times you have stayed in a room furnished by Mr. Staley ?
A. Not always. I stayed in my room most of the time until last winter, when it was not heated, and I stayed there and slept in a room downstairs because they did not want me to go up there in the cold. I have not a couch nor a cot in my room. I have not at any time during the past two years had a cot or a couch in there. I had a small bed. Mr. Staley pays $30 a month. When I went to Jamestown and kept house for Ernest I did not take any of my furniture with me. I did not take any bedding or articles of furniture. I did not purchase the lots from the Bank of Bismarck. I did not borrow any money from the Bismarck Bank for which these notes were given. It was not a debt of mine. I know that the lots were paid for at the time I built the house. Mr. Bhud built the house and he furnished the lumber. Grambs Brothers furnished the plumbing. None of the material in connection with the building was furnished by the Bismarck Bank and none of the labor. It is certainly my intention to continue to reside in Bismarck and on these premises.
Q. You say, Mrs. Ilealy, .that you once in a while have stayed in this room in this house ?
A. Yes.
Q. These different times since have been since this suit was started, haven’t they, Mrs. ITealy, last spring ?
A. No, I would not think so because-that would be during last winter.
Q. How often have you stayed there?
A. When I came back from Nova Scotia I was there, and then two different times since. .One of these times is not my present trip here. I am not staying there now because I do not think it would be very comfortable or convenient for my daughter. I am with a friend. I can get the different dates as to the other two times if it is necessary. I will look it up. In 1907, when I conveyed lot 7 to Ernest, he was working at the Union Mercantile Company, paying his way. At that time my daughter was married and lived with her husband. It has never at any time been my intention to abandon my home in Bismarck and make my home at any other place.
Section 8123, Compiled Laws of 1913, provides: “Upon the death of either husband or wife the survivor, so long as he or she do not again marry, may continue to possess and occupy the whole homestead, and upon the death of both husband and wife the children may continue to possess and occupy the same until otherwise disposed of. according to law. Such homestead, as defined in § 5605 of the Civil Code, must be ascertained and set apart as hereinafter prescribed upon the selection of the person or persons entitled to possession thereof, and shall not be subject to the payment of any debt or liability contracted by or existing against the husband or wife or either of them previous to or at the time of the death of such husband or wife.”
It seems quite clear from these statutes that the homestead laws were made for the protection of the widow whether she has children to support or not, and that if the property was once a homestead, such widow will not lose her interest therein merely because her children have grown up, or she does not happen to have any. It also seems to be immaterial whether the fee to the homestead during the lifetime of the husband and wife was in the husband or in the wife. In construing these identical statutes, the supreme court of South Dakota in the case of Wells v. Sweeney, 16 S. D. 489, 102 Am. St. Rep. 713, 94 N. W. 394, said: “So far as the rights of the surviving husband, wife, or minor children to occupy the property as a homestead are concerned, it is not material in which party the legal title is vested, and hence, if there are heirs of the party holding the legal title, they will not be entitled to a partition of the property during the lifetime of the surviving husband or wife or minor children v'ho actually possess and occupy the premises as a homestead.”
In the case of Dieter v. Fraine, 20 N. D. 484, 128 N. W. 684, we held that the homestead provisions of this state should be liberally construed, and that the exemption which is declared in favor of the head of the family is in a representative capacity, and is intended not for the benefit of the individual, but for the protection and the preservation of the home, and for the benefit of the family as a whole, and that such exemption is not presumed to be waived by a failure to expressly claim it. In the case of Calmer v. Calmer, 15 N. D. 120, 106 N. W. 684, we
There can be no question that the property in controversy was the homestead of Mr. and Mrs. Ilealy during the life of the husband, and it is immaterial whether the title was in her name or not. The statute expressly provides that such homestead can be selected from the separate estate of the wife. Section 5606. The evidence, too, seems to show that though the title to the property was taken in the name of the wife, it was paid for out of the savings of both parties. The house at any rate was the only home of the husband and wife, and has been the plaintiff’s only home since the death of her husband. It was their homestead at the time the debt to the bank was incurred. After the death of her husband, in 1901, the wife occupied and lived in the house with her children for at least ten years, and did not even rent a portion of it until within two years of the time of the trial, and then only upon a month to month lease which reserved to her a room for her own use. During a portion of these ten years, she kept boarders in the house and supported her daughter while the latter was going to school. Section 8723, Compiled Laws of 1913, which provides that upon the death of either husband or wife, the survivor, so long as not again married, may continue to possess and occupy the whole homestead, and upon the death of both husband and wife, the children may continue to possess and occupy the same “until otherwise disposed of according to law,” makes it clear that it was the intention of the law that the protection should be fur
There can be no doubt that if the title had been in the husband the-interests of the wife would have been protected. “Why,” says the supreme court of Kentucky, “should not the original owner have a right equal to the survivor, and why should not the law favor the latter equally at least with the former ? Is the party to be worsted because he owns-the property ? Can any reason be given why the same right should not exist as to his own property as is given to him in his wife’s property-after her death?” Stults v. Sale, 92 Ky. 5, 13 L.R.A. 743, 36 Am. St.. Rep. 575, 17 S. W. 148. If this is true where the title is in the husband, how much more should it be true where the title is in the wife. It could never have been the policy of the legislature and of the law that the homestead of the wife shall be protected during the life of her husband and that when he dies that protection shall be taken away. “It would turn into mockery the constitutional provision prepared against, the days of her adversity, to say that her husband’s creditors may entelas soon as the hearse has left the door.” Cross v. Benson, 68 Kan. 495, 64 L.R.A. 560, 75 Pac. 558. “The beneficent purpose of both statutes,”' says the supreme court of Oklahoma, “is to preserve and protect the-home in the possession and enjoyment of not only the head of the family but all the members thereof. ... It seems to us that it would be-a construction strained and foreign to the spirit of the statute, to hold that it was intended, so long as the husband, who may by labor support his wife, to protect the wife against the misfortune of being deprived of her home to satisfy the debts of the husband, who has perhaps suffered a business failure or financial loss; but when the hour of death comes,, with its sorrow and the expenses that sickness and death entail upon the family, the law will then withdraw from her the shield that protected her in her home while her husband lived, and let the accumulated misfortunes or improvidences of the husband that the law has withheld until the dark hour of his death be then visited upon her. This would indeed be converting that which was intended for a shield into a sword.”' Holmes v. Holmes, 27 Okla. 140, 30 L.R.A.(N.S.) 920, 111 Pac. 220, overruling Betts v. Mills, 8 Okla. 351, 58 Pac. 957.
Nor do we believe that the fact that the children of the plaintiff have-now grown up, and perhaps no longer need her support and no longer-
We hold, in short, with the supreme court of Kansas, that after the homestead estate has once been acquired under the statute, it continues in the original owner so long as he occupies the homestead premises, although he may have ceased to be a housekeeper for a family, and will only become extinct in some of the modes mentioned in the statute, of which ceasing to be a housekeeper for a family is not one. Weaver v. First Nat. Bank, 76 Kan. 540, 16 L.R.A.(N.S.) 110, 123 Am. St. Rep. 155, 94 Pac. 273; Ellinger v. Thomas, 64 Kan. 180, 67 Pac. 529; Beckmann v. Meyer, 75 Mo. 333.
We think, too, there is no merit in respondent’s contention that the homestead has been abandoned. The plaintiff never at any time relinquished the control of the house. She merely rented it month by month. She reserved a room in the house, even though it was occupied as a whole by tenants. She was simply doing what nine out of ten widows whose children have grown up would do, that is, reserving the central homestead and the right to return thereto as a shelter against adversity and as a permanent home, but, relieving the monotony and loneliness of life by visiting her children and friends as occasion offered. Such acts do not constitute an abandonment of a homestead. See Rosenberger v. Hawker, 127 Iowa, 521, 103 N. W. 781.
Although the judgment of the district court should, in all material essentials, be affirmed, the injunction which was issued should be modified so that, instead of being perpetual, it should be limited to the time dui’ing which the premises continue to be a homestead.
With the modification suggested the judgment of the District Court is affirmed. The costs and expenses of this appeal, however, will be borne by the appellant.