149 P. 954 | Mont. | 1915
delivered the opinion of the court.
Claim and delivery to recover possession of personal property consisting of horses, farming implements, etc., and for damages, for its detention. Prior to October 9, 1912, plaintiff ■and her husband, George D. Mennell, had been residing upon and farming a homestead in Custer county. They have two minor children of tender years. On the date mentioned, George D. Mennell abandoned his family, his whereabouts being thereafter unknown. The plaintiff continued to occupy the homestead and to farm it for the maintenance of herself and children, making use of the property in controversy herein for that purpose, having no other means of support. On November 12, 1912, Ben Levalley, the sheriff of Custer county, took possession of the property under attachment issued in an action brought by one Yan Coil against George D. Mennell in the district court of that county. On January 6, 1913, the defendant, as successor of Levalley, received from him the property and, when the present action was brought, was holding it for the satisfaction of any judgment Yan Coil might recover. On January 21, 1913, the plaintiff made demand of the defendant that he restore to her the possession of the property, claiming that, as she is the head of the family, she is entitled to hold it free from attachment or execution against her husband. Upon his refusal to comply with her demand, she brought this action. To the complaint alleging substantially the foregoing facts the court sustained a general demurrer, and, upon plaintiff’s declining to amend, rendered judgment for the defendant. Plaintiff has appealed.
While there are some allegations found in the complaint to the effect that the plaintiff is the owner of the property in con-
Sections 6824 and 6825 of the Kevised Codes declare:
“6824. The following property is exempt from execution, except as herein otherwise provided: In all cases all wearing apparel of the judgment debtor and family; also all chairs, tables, desks, and books to the value of two hundred dollars; and also all necessary household, table and kitchen furniture of the judgment debtor, including one sewing-machine, stoves, stove-pipes and stove furniture, heating apparatus, beds, bedding and bedsteads, and provisions and fuel provided for individual or family use sufficient for three months, and also one horse, saddle and bridle, two cows and their calves, four hogs and fifty domestic fowls, and feed for such animals for three months, one clock and all family pictures. An unmarried person who is not the head of a family, is not entitled to any of the exemptions herein mentioned, except that of the wearing apparel of the judgment debtor.”
“6825. In addition to the property mentioned in the preceding section, there shall be exempt to all judgment debtors who are married, or who are heads of families, the following property: 1. To a farmer: Farming utensils or implements of husbandry, not exceeding in value six hundred dollars; also, two oxen, or two horses or mules, and their harness, one cart or wagon, set of sleds, and food for such oxen, horses, cows or mules for three months; also, all seed, grain or vegetables actually provided, or on hand, for the purpose of planting or sowing the following spring, not exceeding in value the sum of two hundred dollars.”
In Ohio a statute which exempted to the head of a family, not the owner of a homestead, personal property not exceeding $500 in value, in addition to other chattel exemptions, to be selected by him, his agent, or attorney, at any time before the sale, was held to enable the wife to assert the claim when the husband failed to do so. In an action brought by the wife and husband to recover damages for the' refusal of a constable to release property as exempt, on demand of the wife, the court construed the statute as enacted to protect the family, and held that the wife might make the demand for herself and for the
In Frazier v. Syas, 10 Neb. 115, 35 Am. Rep. 466, 4 N. W. 934, the supreme court of Nebraska held that a wife abandoned by her husband, and continuing to reside in the state, became the head of the family for the time, and was entitled to the exemptions made to a head of a family residing in the state, saying: “The law is for the benefit of the family of the debtor, and its benefits may be claimed by the actual head of such family then residing in the state, although the husband may have absconded.” The following authorities are directly in point to the same effect: Linmider v. Longstaff, 7 S. D. 157, 63 S. W. 775; Freehling v. Bresnahan, 61 Mich. 540, 1 Am. St. Rep. 617, 28 N. W. 531; First International Bank v. Lee, 25 N. D. 197, 141 N. W. 716; McCarthy's Appeal, 68 Pa. 217;
It is true the husband is ordinarily the head of the family and has the right to select the home. (Rev. Codes, see. 3652.) The expression “head of the family,” as defined in the title of the Revised Codes relating to homesteads, clearly includes the abandoned wife, because it includes, besides the husband, every person occupying property to which the homestead right attaches who has the care of dependents residing with him thereon. (Rev. Codes, sec. 4718.) So, also, when the husband becomes unable to support himself, the duty of support devolves upon the wife (sec. 3726), and when the husband fails to select a homestead, the wife may select it (sec. 4719). The husband cannot abandon his homestead merely by the desertion of his wife and family. (Watterson v. Bonner Co., 19 Mont. 554, 61 Am. St. Rep. 527, 48 Pac. 1108.) The same rule must of necessity apply to the exemptions of personal property.
If the allegations of her complaint are established by the evidence, plaintiff has a clear right to recover. The court was therefore in error in holding it insufficient. The judgment is reversed, with directions to overrule the demurrer.
Reversed and remanded.