Johnson v. Harrison, 41 Wis. 381

Johnson v. Harrison

41 Wis. 381 | Wis. | 1877

Cole, J.

The only question to be considered in this case is, whether the surplus arising from the foreclosure sale of the thirty-five acres should be applied to the payment of the claim of the appellant, or should go to the heirs of the deceased. In the most favorable view of the rights of the appellant, she must stand on the same ground in respect to that fund as any creditor at large of the estate. Certainly her equities upon this fund are no stronger or higher than such a creditor’s would be.

An examination of the statutes in regard to homestead exemption will show that the circuit court- was correct in its view of the law. It is not deemed essential to recite at large the various provisions bearing upon this question, but it will be seen that they expressly declare that the proceeds of the homestead, when it becomes necessary to sell the same to satisfy any mortgage or lien upon it, shall, after the discharge of such mortgage or lien, be distributed according to law, if the deceased dies intestate without a family. And it is enacted that “ in no case whatever shall such proceeds be liable for the debts of the deceased, other than the mortgage debt or lien on such homestead.” (See ch. 88, Laws of 1863; ch. 270, Laws of 1864; ch. Ill, Laws of 1873.) The spirit and policy of all the legislation upon the subject plainly are, to exempt the homestead and its proceeds absolutely from the mere personal debts of the owner. If the owner disposes of it by will, it descends to the devisee free from the incumbrance of all judgments and claims against the testator; and if he dies intestate, it descends to his widow or heirs. Oh. 270, supra. Where there is a subsisting lien or mortgage on the homestead, and the other estate of the deceased is insufficient to discharge the same, the power is given to the county court to grant a license *386for the sale of the homestead; but in that case the proceeds of the sale, after the payment of the mortgage or other lien, and the expenses of administration, are required to be invested under the direction of the county judge for the benefit of the family; or to be used for the purchase of another homestead, which shall stand in the place of the original homestead. Cli. 111. It seems difficult for any language to make more clear the intention of the legislature to exempt absolutely the homestead and its proceeds from the payment of all debts of the owner excejff a mortgage or other lien chargeable upon it. Nor do we see any reason for applying a different rule when the homestead is sold on foreclosure of a mortgage upon it, than would obtain when sold by an executor or administrator under a license granted by the county court. In both cases the proceeds are only subject to the discharge of the liens upon the homestead, and cannot be devoted to the payment of the general debts against the estate. This is plainly the humane spirit and intent of the various provisions of the statute, j

But it is suggested, because the owner, Philip 'Wood; devised the five acres which included his dwelling-house, and the appurtenances, that thereby the remaining thirty-five acres ceased to be, or lost the character of, a homestead, fell into the mass of his estate, and became liable for the payment of his debts. We are unable to perceive upon what principle or rule of law any such consequences can be said to follow. Suppose Wood, in his lifetime, had sold and conveyed these five acres, would he have forfeited his right to claim the remainder of the forty for a homestead? Would he not jhave been permitted to erect another dwelling upon the thirty-five acres, and to occupy it and preserve his home? The exemption, doubtless, applies tolthe homestead; the homestead ordinarily implies a dwelling-house, residence or abode where the owner resides. But suppose the dwelling-house is destroyed by fire: is the exemption as to the land gone? Cannot the owner still claim and have the benefit of the statute in respect *387to the land? Most certainly lie can. The character of a homestead which the law gives to the land is not lost, though the dwelling is destroyed. The owner may rebuild again; he may reside for a time in a tent on the land, or even in an emigrant wagon placed upon it, until another house is erected; and the premises would retain continuously the character of a homestead. The statute exempts the homestead, consisting of any quantity of land not exceeding forty acres used for agricultural purposes, and the dwelling-house thereon. Sec. 23, ch. 134, R. S. These and other considerations which might be adduced, have led our minds to the conclusion that the exemption as to the tliirty-five acres which constituted a part of the homestead, was not lost in consequence of the devise of the five acres including the dwelling, by the testator. We see no reason for attaching such a result to that act. This court lias time and again said that the exemption statute must be liberally construed, so as to carry out the beneficent object of its enactment. That view is elaborately dwelt upon in Jarvais v. Moe, 38 Wis., 440, and Watkins v. Blatschinski, 40 id., 347, to which reference is made.

It follows from these remarks that the judgment of the circuit court must be affirmed, and the cause remanded for further proceedings.

By the Oourt. — So ordered.