74 Neb. 108 | Neb. | 1905
This was an action to enjoin the sale under an execution of a tract of land containing about twelve and a half acres, situated in Saline county, Nebraska, the plaintiffs claiming the land to be exempt as a homestead. The prayer for injunction was granted in the court below, and to reverse this judgment defendants appeal to this court.
The material facts underlying this controversy are that the plaintiff, Albert Palmer, purchased the land in controversy, in the year 1898; that at the time of the purchase plaintiff was a widower, with three minor children living with him, and that, with such children, he moved upon the premises, and has occupied the same ever since, claiming it as a homestead; that in the year 1901, one of the minor children died, another attained her majority, married and removed to the state of Iowa, and the other son also arrived at his majority and left the home, leaving the father alone in the possession and occupancy of the premises; that the year following, the judgment plaintiff in the court below, who was the administrator of the estate of Orazamus Palmer, deceased, procured a judgment against the plaintiff before a justice of the peace, in Saline county, for $162,85; that a transcript of
The question to be determined is whether or not plaintiff was entitled to claim this property as his homestead at the time the indebtedness accrued on which judgment was entered. It appears from the facts above stated that, when the action on -which the judgment was procured was instituted in the justice’s court, plaintiff was living alone upon the lands, with no dependent relatives under his care. It also appears equally clear that, when the lands were purchased, he was the “head of a family” within the meaning of section 15, chapter 36, Compiled Statutes, 1903 (Ann. St. 6214), so that the question to be determined is whether or not a homestead once acquired by the head of a family can be divested by any act other than the voluntary alienation, abandonment or waiver of the right by the party entitled to the exemption. Both sides of this question find strong support in the adjudications of the courts of last resort of the different states, as we shall presently point out. It is well to begin with an examination of our own statute, and the trend of our own opinions which interpret it.
Sections 1 and 2 provide as follows:
Section 1. “A homestead not exceeding in value; $2,000, consisting of the dwelling house in which the claimant resides, and its appurtenances, and the huid on which the same is situated, not exceeding 160 acres of land, to be selected by the owner thereof, and not in any incorporated city or village, or instead thereof, at the option of the claimant, a quantity of contiguous land not exceeding two lots within any incorporated city or village shall be exempt from judgment liens and from execution or forced sale, except as in this chapter provided.”
Section 2. “If the claimant be married, the homestead
Section 3 provides for the liability of a homestead to sale on debts secured by merchants’, laborers’, or vendors’ liens, or for debts secured by mortgages on the premises, executed either by both husband and wife or by the unmarried claimant.
Section 5 makes provision for setting off exemption when execution is levied on land claimed as a homestead.
Section 15 defines the “head of a family” to include:
“Second. Every person Avho has residing on the premises with him or her, and under his care and maintenance, either: (1) His or her minor child, or the minor child of his or her deceased wife or husband.”
Section 17 contains the following provision:
“If the homestead was selected from the separate property of either husband or wife it vests, on the death of the person from whose property it was selected, in the survivor for life and afterwards in his or her heirs forever, subject to the power of the decedent to dispose of the same except the life estate of the survivor by will. In either case it is not subject to the payment of any • debt or liability contracted by or existing against the husband and wife or either of them previous to or at the time of the death of such husband^ or wife, except such as exists or has been created under the provisions of this chapter.”
It will be noticed that the provisions of these statutes reserve the homestead right to every person who is the head of a family as defined in section 15, Avliether married or unmarried at the time of the acquisition. When the homestead right is acquired by a married person, it cannot be conveyed or incumbered, unless the instrument by Avhich it is conveyed or incumbered is executed and acknov»Tedged by both husband and wife, under section 4.
‘‘While placing my vieAvs of this case upon the above ground, I by no means Avish it understood that the plaintiff’s right to homestead exemption depends upon the fact of his ability to provide for his son and daughters-in-law, and to hire servant girls. When as the head of a family he entered into possession of this homestead, he became vested, so to speak, of a homestead estate therein, which Avas alienable only by sale or abandonment. Neither the death of the wife, nor her abandonment of her husband, nor the arrival at full. age and departure from the parental roof of all the sons and daughters, would have the*113 effect of dismaní ling tlie homestead of the protection of the exemption law.”
This opinion was rendered under the homestead law of 1867, which has been broadened and extended by the enactment of 1879. The question Avas subsequently adverted to in the opinion in Hyde v. Hyde, 60 Neb. 503, but the decision there turned on another question, and no expression of opinion on the point uoav in controversy Avas given.
In Galligher v. Smiley, 28 Neb. 189, Reese, C. J., in rendering the opinion, said:
“In its inception a homestead is a parcel of land on Avhich the family resides, and Avhich is to them a home. It is constituted by the two acts of selection and residence, in compliance with the terms of the law conferring it. When these things exist tona fide, the essential elements of the homestead right exist, of which the persons entitled to it cannot be divested by acts or'influences beyond their volition.”
This opinion Avas rendered in a case in which the family still resided on the original homestead Avhich, when selected, Avas farm land, but which was subsequently incorporated into the city of Omaha, Avithout the consent of the OAvner. It was contended that the incorporation of the lands by the ordinance of the city council, extending its area, operated to diminish the area of the homestead to the limits prescribed for a homestead in city and village lots. And in determining the question, the language above quoted was used. While the facts differ from those now in issue, yet the principle announced, that, Avhere a homestead is selected, it cannot be divested by acts or influences beyond the volition of the party claiming it, is clearly in point in the determination of the instant case.
Turning uoav to the decisions of the courts of last resort in other states on statutes of somewhat similar construction to our own, we find an irreconcilable conflict in the various conclusions reached. This conflict in some instances is traceable to the different provisions of the
In the case of Stults v. Sale, supra, an opinion was rendered under a statute very similar in its provisions to our own, in that it provided for the descent of the homestead
“In this case * * * the property belongs to the husband, who is the debtor and is claiming it as exempt to him as a homestead. Undoubtedly the having of a family Avas necessary to the creation of the right in him, but is it necessary to the continuance of it? * * * The statute makes no express mention in this respect. We must, therefore, look to its general scope and spirit for guidance, the right being the creature of it. * * * Can it well lie supposed that the legislature intended that in the event of the death of the Avife owning the homestead, the benefit of it should continue to the husband during his occupancy, although he has no family,^and yet that if he be the owner of it, and his wife or children die, or the latter marry and leave him, his right • to the exemption ceases? If so, it is a singular state of case; and if so, it is equally true of the wife, Avhere.she owns the homestead. * * * Why should not the original OAvner have a right equal to the suivivor, and why should not the law favor the latter equally at least with the former? Is the party to be worsted because he oavus the property? Can any reason be given why the same right should not exist as to his own property as is given to him in his wife’s property after her death?”
We have quoted somewhat at length from the decision of the case last cited, because of the similarity of the statute construed to our own, as well as for the cogency of the reasons assigned in support of the conclusions reached. While the case decided (Stults v. Sale, supra) differs from the one at bar in that the husband selected
We therefore recommend that the judgment of the district court be affirmed.
By the Court: For the reasons given in the above opinion, the judgment of the district court is
Affirmed.