6 Dakota 289 | Supreme Court Of The Territory Of Dakota | 1889
The appellants, being judgment creditors of respondents, commenced an action in the district court of Cass county, for the purpose of subjecting the property hereinafter mentioned to the lien of their judgment. The respondents claimed the same as a homestead. The trial court found that respondent Frank B. McCauley owned an undivided half of lots 2 and 3 in block 2 of Keeny & Devitt’s addition to the city of Fargo; that respondent Benjamin P. Reynolds owned an undivided one-half of said lot 3, but had no interest in said lot 2; that McCauley had occupied with his family the second story of the buildings on lots 2 and 3 as a place of residence for more than three years, using the first floor thereof as a place of business; that respondent Reynolds owned and occupied lot 4 in block 2 of said addition as a place of residence for himself and family, and occupied the ground floor of said lot 3 as a place of business, lot 3 being contiguous to lot 4; that Reynolds and wife had filed their certificate of homestead for lot 4, and the half interest in lot 3, as required by law; that McCauley and wife had filed their certificate of homestead for their half interest in lots 2 and 3; that each of said lots was twenty-five by one hundred and forty feet, and that the whole of the three lots were less than one acre in extent. The trial court held the premises to be the homesteads, respectively, of Frank B. McCauley and Benjamin P. Reynolds, and not subject to the lien of the judgment of appellants.
Wé believe the true test to be that if the homestead, if not exempt, could be sold on execution, then it is property in which a homestead can be claimed as against a creditor. Take the case at bar. If these appellants should purchase at execution sale the interest of these respondents in the premises described, would they have any difficulty in obtaining partition ? Still they say to these respondents : “You can claim no homestead in these premises, because you cannot carve out a homestead from them.” We think that by virtue of section 14, chapter 38, of the Political Code, the court is authorized at all times to ascertain and define the homestead. In this case, however, the appellants are not in a position to urge the matter of difficulty in carving out the respondents’ homesteads, as the premises are within a town plat, and do not exceed one acre in extent. We are aware that the decisions are not uniform on the question of whether a homestead can be claimed in an undivided interest in land — Vermont, Iowa, Texas, Kansas, New Hampshire and Arkansas holding in the affirmative, and Massachusetts, California, Minnesota, Wisconsin and Michigan in the negative. As the statute of this territory