71 N.W. 769 | N.D. | 1897
In this case a demurrer to the complaint was overruled, and, the defendants declining to plead further, judgment was entered in conformity to the prayer of the complaint, and the defendants appeal. It is conceded by both parties that but a single question is involved in the case: Could a single man who never had wife or child, and who had no one living with him, dependent upon him for support, claim the benefit of a homestead exemption under the laws of Dakota Territory as they existed in 1888? An affirmative answer to this question affirms the judgment below, while a negative answer must reverse it,
Section 2449: “The homestead of every family resident in this territory, as hereinafter defined, whether such homestead be owned by the husband or wife, so long as it continues to possess the character of a homestead, shall be exempt from judicial sale, from judgment lien, and from all mesne or final process issued from any court.”
Section 2450: “A widow or widower, though without children, shall be deemed a family while continuing to occupy the house used as such at the time of the death of the husband or wife.”
Section 2451: “A conveyance or incumbrance by the owner of such homestead shall be of no validity unless the husband and wife, if the owner is married and both husband and wife are residents of the territory, concur in and sign the same joint instrument.”
Section 2458: “The owner or the husband or wife may select the homestead, and cause it to be marked out and platted and recorded as provided in the next section.”
Section 2463: “Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law; and upon the death of both husband and wife the children may continue to possess and occupy the whole homestead until the youngest child becomes of age.”
Section 2467: “Every family, whether consisting of one or more persons, in actual occupancy of a homestead as defined in this chapter, shall be deemed and held to be a family within the meaning of this chapter,”
We must notice the claim that other portions of the statute support respondent’s contention. It is urged that the provision in § 2451, which declares that a conveyance of the homestead by the owner shall be of no validity unless both husband and wife, “if the owner is married,” concur in and sign the same joint instrument, clearly contemplates that an unmarried person may own a homestead. Certainly, this is correct. The preceding section had specified an exceptional case where a surviving husband or wife might own a homestead. Had not § 2451 contained that limitation, it would have been clearly and palpably inconsistent with the preceding section. Again, § 2458 says, “The owner or the husband or wife may select the homestead,” etc. This language.is construed to mean that the owner need not be either the husband or wife. It will not admit of this construction. How could a husband or wife select a homestead unless one or the other were the owner? The statute simply means that the owner, or the husband or wife of such owner, may select, etc. Where the husband owns the land, and fails to select the homestead, the wife may do so, or in reversed positions, the husband may select. Any other construction makes the section an aggregation of meaningless words. We have the same thought in § 5133, Comp. Laws, in reference to exemptions of personal property. We find nothing in the statute that will sustain the construction placed upon it by the trial court. That court based its ruling upon certain language used by the learned Supreme Court of South Dakota in discussing the same statute in Hesnard v. Plunkett, 6 S. D. 73, 60 N. W. Rep. 159. That case was decided upon another point.
We concede that, as we construe the statute, there existed no clear necessity for the enactment of § 2467. But the legislature, departing from the original purposes of the homestead exemp
Reversed.