Oliver v. Snowden

| Fla. | Jan 15, 1882

The Chief-Justice

delivered the opinion of the court.

The material question is whether a debtor and his family residing in a town may claim a homestead in lands out of town which are cultivated but not actually occupied by them.

The word “ homestead,” as used in the Constitution and Statutes of California, is thus defined by the courts of that State: “ It represents the dwelling-house at which the family resides, with the usual and customary appurtenances, including out buildings of every kind necessary or convenient for family use, and lands used for the purposes thereof. If situated in the country it may include a garden or farm. If situated in a city or town it may include one or more lots, or one or more blocks. In either case it is unlimited by extent merely. It need not be in a compact body ; on the contrary, it may be intersected by highways, streets or alleys. * * The only tests are use and value. * * Whatever is used being either necessary or convenient as a place of residence for the family, as contradistinguished from a place of business, constitutes the homestead, subject to the statutory limit as to value.” Gregg vs. Bostwick, 33 Cal., 220" court="Cal." date_filed="1867-10-15" href="https://app.midpage.ai/document/gregg-v-bostwick-5436420?utm_source=webapp" opinion_id="5436420">33 Cal., 220, 227.

This extract shows the difference between the statutory regulations as to the extent of the homestead in that State and in Florida, In this State the extent of the homestead is measured by quantity and not value. Our Constitution exempts from forced sale “ a homestead to the extent of one hundred and sixty acres of land or the half .of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this State,” &c.

Appellant has his domicile with his family in the town of Gainesville upon a lot, the title to which is to be made in the name of his wife “ when paid-for;” and neither he nor his family have resided upon the lands lying several miles outside the town, which latter has been levied upon by the sheriff'.

In Baker vs. The State, 17 Fla., 406" court="Fla." date_filed="1879-06-15" href="https://app.midpage.ai/document/baker-v-state-4913515?utm_source=webapp" opinion_id="4913515">17 Fla., 406, this court said that one who has owned and occupied with his family the limited amount of land and improvements mentioned has “ enjoyed ” it as exempt from forced sale, * * because the enjoyment of a homestead consists in the usé and occupation of it with his family, according to the clear intent and purpose of the provision.

Thompson on Homestead Exemptions gives the following : “ The homestead means the home place, the place where the home is, and such is its legal acceptation at the present day. It is the home — the house and the adjoining land where the head of the family dwells — the home farm.” (36 N. H., 136.) “It is the land where is situated the dwelling of the owner and his family.” (16 Wis., 638.) “ A homestead necessarily includes the idea of a residence.” (24 Tex., 224" court="Tex." date_filed="1859-07-01" href="https://app.midpage.ai/document/stanley-v-greenwood-4889590?utm_source=webapp" opinion_id="4889590">24 Texas, 224.) It must be the owner’s place of residence, the place where he lives. (23 Texas, 502; 10 Minn., 156; 5 Minn., 333" court="Minn." date_filed="1861-07-15" href="https://app.midpage.ai/document/folsom-v-carli-6640850?utm_source=webapp" opinion_id="6640850">5 Minn., 333; 7 Minn., 518; 42 Texas, 443.) It must appear that the lands were actually used, or manifestly intended to be used, as a part of the home of the family, 21 Wall., 486, Waite, C. J.

Our Constitution, speaking of a homestead and failing to define the word, leaves its definition to the ordinary rule of construction, which is that it is to be taken and applied according to the common and popular apprehension of its meaning, which is clearly given in the foregoing citations. It is scarcely possible that it can be misunderstood.

By our Constitution it may extend to one half acre and its “ improvements ” and appurtenances in a town or city, including the dwelling-house and place of business. (Whether this may • consist of two or more separated or hon-contiguous parts is not in question here.) Or it may extend to 160 acres of land and improvements not in a town or city. It cannot be more than either of these quantities. If the homestead, the place of residence of the debtor and his family, is in the town or city, the claim of exemption of rural lands cannot be allowed. It is only the “ place of the home ” of the debtor and family that can be exempt from sale for debts.

In this case the homestead is not upon the lands levied upon, or any part of them. Nor does the selection and the recording of the designation of a “ homestead ” under the law of 1869 make it a homestead in fact, so as to exempt the property from sale, without actual occupancy as a residence, or, perhaps, where it is “ manifestly intended ” to be used as the home of the family, as was said by the Chief-Justice in 21 Wall., 486, the manifest intention being shown by proof of preparations made to occupy it immediately as a home.

The case of Boring vs. Wittich, referred to by appellant’s. counsel, treated only of the exemption of personal property, and had no reference to the homestead.

Whether two separate portions of land, outside of a city or town, may be traeted as a homestead, the residence being upon one of them and the other used as a part of the same farm, is not here involed. But the home of the debtor and his family being in the town, the exemption of real property out of town cannot be' sustained under the Constitution of this State.

The decree is affirmed.