Lietz v. Bogumill

28 N.W.2d 320 | Wis. | 1947

Action begun January 21, 1946, by Fred Lietz and Ida Lietz, his wife, against Peter Bogumill. Plaintiffs ask declarative relief adjudging certain premises to be the homestead of plaintiffs and free from the apparent lien of a judgment procured by defendant. From a judgment in favor of plaintiffs, the defendant appeals.

The premises were purchased by plaintiffs on a land contract February 1, 1940. The defendant's judgment against Fred Lietz was docketed March 21, 1941. It is agreed that the value of the land and buildings is less than $5,000. The premises consist of three acres. Part of the land is low and swampy. The buildings are a house, part of which is used as a residence and part as a tavern, a small barn and a chicken coop. About one quarter of an acre is cultivated as a garden. A horse, a cow, and some chickens were kept on the premises except in the cold weather when they were housed elsewhere.

In May, 1945, plaintiffs wanted to sell these premises, which the trial court found had been occupied as a homestead, to one Mielke. No transfer of title was made because the parties then learned of the existence of defendant's judgment lien. Until the title was cleared it was arranged for Mr. Mielke to move in, secure his license and operate the tavern. Plaintiffs retained rooms for their living quarters. On July 31, 1945, Mrs. Lietz took title to a parcel of land near by, and a cottage, bought by Mr. Lietz, was moved onto that newly acquired property. Mrs. Lietz took up her residence there, where she could be away from the disturbance of the tavern. Mr. Lietz retained living quarters on the tavern property and spent some of his time there and some at the cottage.

The trial court found that, "The plaintiffs intended to sell the property if they could at the time Mielke took it over . . . and to resume full possession again and retain that as their home in case the sale could not be completed." As a conclusion of law it was ruled that, "Plaintiffs are entitled to judgment declaring the said premises exempt from execution as their homestead." Judgment was accordingly entered providing that the property is the homestead of plaintiffs and as such is exempt from execution and from the lien of a judgment for $1,514.50 granted in favor of Peter Bogumill.

It was also "further declared and adjudged, that in the event of a sale of aforesaid homestead, such exemption shall and does extend to the proceeds derived from such sale to an amount not exceeding five thousand dollars ($5,000) while held, with the intention to procure another homestead therewith, for two years."

These rulings were based on sec. 272.20(1), Stats. 1945:

"Homestead exemption definition. (1) A homestead selected by a resident owner not exceeding forty acres of land, when used for agricultural purposes; and when otherwise used not exceeding one fourth of an acre and the dwelling house thereon and its appurtenances and occupied by him shall be exempt from execution, from the lien of every judgment and from liability for, the debts of such owner to the amount of five thousand dollars. . . . Such exemption shall not be impaired by temporary removal with the intention to reoccupy the premises as a homestead nor by the sale thereof, but shall extend to the proceeds derived from such sale to an amount not exceeding five thousand dollars, while held, with the intention to procure another homestead therewith, for two years. . . ." Homestead exemptions protect a resident owner against a loss of his homestead under execution, unless for the purchase price. Under the evidence referred to in the statement of facts, the findings and conclusions of the trial court are supported. The place was purchased with the bonafide intention of making it the homestead of the parties. The intention to exercise their privilege appears from their acts and the actual occupancy. All this gives the premises the character of a homestead. The owners of that homestead have not abandoned it.

The homestead-exemption law of this state, sec. 272.20, Stats., is liberal in the protection it affords for the debtor who is the resident owner of property. The law specifically provides that the exemption is not impaired by temporary removal with the intention to reoccupy the premises. Nor is the exemption impaired by the sale of the property, for the proceeds of such a sale are exempt for two years when held for the purpose of acquiring a new homestead.

The courts in enforcing the provisions of sec. 272.20, Stats., have construed them liberally. Binzel v. Grogan,67 Wis. 147, 29 N.W. 895. It has been held, for instance, that one who moves to another state, remaining there for some three years and voting there, did not necessarily thereby abandon his Wisconsin homestead. Minnesota Stoneware Co. v. McCrossen,110 Wis. 316, 85 N.W. 1019. A judgment docketed against the resident owner of a homestead does not become a lien on the property when the owner subsequently contracts to sell it and conveys his interest to a third party.Smith v. Zimmerman, 85 Wis. 542, 55 N.W. 956. Rural premises including fifteen cottages used for rental purposes and one cottage which was occupied by the owner, except during the winter months, was considered to be a homestead.Roche v. Du Bois, 223 Wis. 438, 271 N.W. 84. These cases illustrate how the homestead-exemption law of this state has been applied in the past, and they illustrate, too, the policy that must be considered in deciding the case at bar.

The plaintiffs did not intend to abandon the homestead they had established on the tavern premises. They did intend to sell those premises if they could. It is stoutly maintained that it was because of the uncertainty of a sale, developing because of defendant's judgment against Mr. Lietz, that the arrangement qualifying the property as a homestead was made and continued. Because of failing health Mrs. Lietz moved to near-by property she had acquired, and arrangements were made for the prospective purchaser to operate the tavern. While making these necessary arrangements, the plaintiffs, nevertheless, did all they could to manifest their intention still to regard the tavern premises as their homestead.

By the Court. — Judgment affirmed.