Myers v. Ford

22 Wis. 139 | Wis. | 1867

Cole, J:

We think the plaintiff was entitled to the homestead exemption. The statute secures it to “ the owner,” where the prescribed'quantity is “owned and occupied by any resident of the state.” Sec. 28, chap. 134, R. S. It does not restrict the privileges of the homestead exemption to the ease where the “ owner ” is a “ married man.” The statute speaks of the “ owner,” “ resident,” “ householder,” as descriptive of the persons who are entitled to the benefit of the exemption. A man may be an “ owner,” “ resident,” and “ householder,” without being married. A single man may own property^ reside upon it, and have a family .occupying the house with him. — The next section shows most clearly that the legislature did not intend to confine the privileges of the homestead exemption to married men. Eor it declares that a mortgage or other alienation of the homestead by the owner thereof, if a married man, shall not be valid without the signature of the wife. This clearly and obviously recognizes the ease where the' owner of a homestead is not a married man. In that case the disability does not apply.

• In this case the plaintiff was a widower; his children were all married, and away from home.' But he was actually occupying the premises in dispute. It appears that he had rented them, but boarded with his tenant, and had his bed in the house, and slept there.

It is said that the evidence shows that the premises claimed as exempt exceed by some five links front, extending the depth of the lot, the amount allowed by law. The officer was notified before the sale, that the plaintiff claimed the premises as his homestead. No survey was made, but the officer proceeded and sold the entire lot and appurtenances. If the plaintiff in the execution was dissatisfied with the quantity of land claimed as a homestead, he should have caused a survey to be made, and sold the excess. But it was not the quantity claimed by the execution debtor which was contested, hut his right to have the benefit of the homestead under the circumstances.

On the whole record we think the- judgment must he affirmed.

By the Court — Judgment affirmed: