Phelps v. Rooney

9 Wis. 70 | Wis. | 1859

Lead Opinion

By the Court,

Cole, J.

The only question we have to consider in this case is, whether the south one-third of lot 4, in block 5, with the building and appurtenances thereon situated, and which premises are generally decribed in the evidence in this cause, as “store No. 107, East Water street,” really constituted a homestead within the meaning and intent of § § 51 and 52 of chap. 102, R. S., 1849.

Those sections read as follows:

“ § 51. A homestead consisting of any quantity of land not exceeding forty acres used for agricultural purposes, and the dwelling house thereon, and its appurtenances, to be selected by the owner thereof, and not included in any town plot, or city, or village; or instead thereof, at the option of the owner, a quantity of land not exceeding in amount one-fourth of an acre, being within a recorded town plot, or city, or village, and the dwelling house thereon, and its appurtenances, owned and occupied by any resident of the state, shall not be subject to forced sale on execution, or any other final process from, a court, for any debt or liability contracted after the first day of January, in the year one thousand eight hundred and forty-nine.”

“§ 52. Such exemption shall not affect any laborer’s or mechanic’s lien, or extend to any mortgage thereon, lawfully obtained; but such mortgage, or other alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same.”

The material facts of this case which present the questions involved, and call for a construction of the above provisions of our statute, may be briefly stated as follows: The respondent, Rooney, some six or seven years since, erected a building upon the portion of lot 4, first above mentioned, which is three stories high in front, and four stories on the river Milwaukee. The style of the building, externally, is that of a store, it is situated in a compact block, on one of the principal business streets of the city of Milwaukee. The basement of the building, and the first story, consisting of a room twenty feet front, by one hundred and fifty feet deep, have been leased by Rooney, and occupied by tenants under him, as a wholesale and retail store. But with the exception of one room in the second story above the main store, which was used as a room for storing goods, it appears that the second and third stories have been' occupied since the house was built, and are still occupied by Rooney and his wife and family as a dwelling, and constitutes the only habitation or dwelling which they have. It further appears, that the property would be much more valuable on account of its situation for business than as a place of residence; and that the rooms leased for a store would command a rent of fifteen hundred dollars a year; while the rooms above, used for the purpose of a dwelling, would not rent for more than two hundred and fifty, or three hundred dollars a year. And although Rooney had leased the rooms used for a store, before the giving of the mortgage, there is nothing in the case tending to show that he was not in possession of, and occupying the upper stories with his family, in entire good faith, as a dwelling house, when he executed the mortgage sought to be foreclosed. But the mortgage was not signed by the wife, and therefore the circuit court, considering that the premises constituted a homestead, within the meaning of the statute, held that the same was invalid, as to those premises, for want of the signature of the wife. The correctness of this ruling is the only matter, as before stated, we have to consider upon this appeal. A majority of this court concur in the view taken of the case by the circuit court, and are of the opinion that the appellant cannot hold the premises under the mortgage.

Upon an examination of the homestead exemption law, it will readily be seen that the latter clause of the fifty-first section, expressly declares that “ a homestead, consisting of a quantity of land, not exceeding in amount one-fourth of an acre, being within a recorded town plot, or city, or village, and the dwelling thereon, and its appurtenances, owned and occupied by any resident of the state,” should be exempt from forced sale on execution; while the fifty-second section clearly provides that every mortgage upon such land, given by a married man, shall be invalid, unless signed and executed likewise by his wife. This language of the statute appears to be plain and positive, and the intention of the legislature is manifest, to deprive the husband of the power, either by a confession of judgment, or by mortgage, of incumbering the homestead, or of alienating it in the latter manner without the consent and co-operation of the wife. That is, the law positively inhibits the husband without the concurrence of the wife, from giving a valid mortgage upon his homestead,which in a city may consist of a quantity of land not exceeding one-fourth of an acre, with the dwelling house thereon, owned and occupied by him, being a resident of the state.

The language of the statute is so clear, precise, and unambiguous, that there can be but little difficulty in arriving at its real meaning. The counsel for the appellant in the very able argument which he addressed to the court upon this case, asked what was to be understood as a “ homestead,” in the ordinary familiar and popular sense of that word ? I think I can substantially adopt the definition which he gave, and which I think the word must have, as used in this statute, that is, a homestead is the land in a city, not exceeding the prescribed amount, upon which is the “ dwelling house,” or “ residence,” or “ habitation,” or “ abode” of the owner thereof and of his family. Evidently the statute does not contemplate that this "dwelling house,” or “habitation,” or “abode” thereon, shall be constructed in any particular style, or built in any prescribed manner. But it is to be in good faith, and truly the dwelling house, or residence, or abode of the owner and his family, in order to be exempt.

Whether this is a wise provision of law, and one which ought to be made, is not a question for the courts to determine. The policy of exempting a reasonable amount of property from sale, under an execution, underwent a very thorough discussion at an early day in this state, and it was declared in the 17th section of the Bill of Rights, that “the privilege of the debtor to enjoy the necessary comforts of life, shall be recognized by wholesome laws.” In obedience to this duty enjoined upon it by the constitution, the legislature passed our present exemption law. Few candid persons would contend that this law was not defective, and that the grossest abuses do not find sanction under its provisions in many cases every day. Instead of securing to the debtor a reasonable amount of property, and a dwelling house for himself and family, of limited value, which shall be exempt from seizure, or sale, or even of placing it beyond the power of the debtor to alienate his dwelling without the consent of the wife; we have a statute which exempts a homestead, consisting of forty acres of land, with the dwelling house and appurtenances thereon situated, and which may not be included in any town plot or village; or a quantity of land not exceeding in amount one-fourth of an acre, in a city or village, with the dwelling house thereon, and its appurtenances, and which exempted property, we all know may be, and frequently is, worth ten, twenty, thirty, or forty thousand dollars. And the whole policy of the legislation of the state has been to extend rather than restrict the privileges of the exemption laws.

The courts, whatever they may think of the general policy of this legislation, and whatever hardships may arise in particular cases in consequence of it, can only construe and interpret the statute as they find it. When the law is on its face sufficiently intelligible, and when a case clearly falls within the operations of its provisions, I feel it my duty rigidly to enforce it, whatever may be my notions of its policy or equity. So, in the present case, while it may be a hardship, that the respondent should enjoy, free from all compulsory power of the courts to subject it to the payment of his just debts, a property, (a homestead as I think it is,) a portion of Avhich he can rent for twelve or fifteen hundred dollars a year; yet, if the statute exempts it, we must so declare.

It is insisted that the statute, when fairly construed, does not apply to a case like the one at bar. But it will not admit of doubt under the evidence, that Rooney occupied with his family the premises as a dwelling house. Neither will it-be denied that the building is his “ home,” his “ residence,” his abode;” and the only “home,” or “residence,” or “abode,” which he has. It appears he occupied the upper stories of the building with his family when the mortgage was executed in May, 1856. Can it then be said, that it is not his homestead, including the habitation or residence in which he dwells; and the property which the law declares he shall not alienate by mortgage, without the consent of his wife ? It is undeniable, that Rooney has occupied the building with his family as a dwelling, since its erection to the present time; and we therefore cannot see why, to all intents and purposes, it is not his homestead within the meaning of our statute. If Rooney had occupied the entire building with his family as a dwelling house, there could be no doubt, but the benefit of the exemption would apply.

The circumstance that the dwelling was situated on one of the principal business streets of the city, or the fact that its external appearance, or internal arrangement, was like a wholesale or retail store, or because it would be vastly more valuable as a place of business, than as a residence, could not alfect the question. The case rests upon the fact as to whether the building was really and truly occupied as a dwelling house for himself and family; if so, they are secured in the enjoyment and use of it as such. This we think constitutes a homestead under the statute. Had Rooney seen fit not to use the first story at all, or had he converted it into a dining hall, or sleeping apartments for boarders, occupying, in the meantime, the remainder of the building for his dwelling house, it would probably not be insisted that his omission to use a part in the one case, or appropriating a portion to the comfort of his boarders in the other, changed the character and condition of the house and took it out of the operations of the statute.

But it is contended that by the clearest and strongest implication, the language of the statute excludes the idea that the building thus exempt from forced sale, or which cannot be mortgaged by the husband without the signature of the wife, is to be used and kept exclusively for a residence. The law, it is said, is analagous to statutes exempting certain species of property from taxation, like the cases in 19 Ohio, 110; 3 M. H. & Yerdon, 344; 17 E. C. L., 804; 70 id., 817; or that it is in derogation of the common law, and imposes restraints upon the rights of any married man to dispose of his property as he thinks proper, and should, according to well established rules of construction, be strictly construed, as was done in 3 Mich., (Gibbs,) 486.

After what has already been said as to the signification of the word homestead, as used in our statute, and the expression of our opinion that it included the limited amount of land in the city upon which is situated the dwelling house, or habitation, or abode, of the owner and his family, it is only necessary further to remark, that this court cannot restrain the operation of the statute within narrower limits than its words import.

Further, I have examined the case in 3 Mich. Rep., and think there is nothing in it that really conflicts with the principles laid down in the one under consideration. The property in that case was land used for agricultural purposes, and the court held that the debtor must select his homestead before the exemption attached. From Rooney’s living in these premises, a single building, for six or seven years with his family, he has clearly shown that he had selected it for his homestead or residence.

Our attention was likewise called to the case of Rhodes et al. vs. McCormick, 4 Clarke R., (Iowa) 368, where the court of that state held, in a case much like the present in its facts and circumstances, that if a person should use a particular building as a home, the whole of such building, in case of controversy, would be presumed to constitute and be a part of the homestead, until it was shown that some specific portion was not used by the family, but for some other purpose; and when this fact was made to appear, the part not used by the family, would not be considered exempt. It is not my purpose to enter upon any extended examination of this case, I only observe, that I dissent entirely from the conclusion at which the court in that case arrived. And if I could concur in the reasoning and soundness of the decision there rendered, I should find insurmountable difficulty in applying the principle of that case to the one under review. I should rather come to the conclusion that a person, by neglecting to use and occupy a portion of his dwelling house, or residence, with his family, or by appropriating some portion to some other use, thereby forfeited and lost the benefit of the exemption law entirely; and it really seems to me, that this is the natural, legitimate result of the argument pressed upon us by the appellant’s counsel. But I do not so understand the law of this state. I cannot believe, in view of the legislation upon this subject, that the legislature intended that a person should lose and forfeit the benefit of the homestead exemption, by omitting to use a portion of his dwelling house or residence, with his family, or by deserting such portion to some other use. It appears to me that this would be a most unauthorized interpretation of the acts and intent of the legislature of this state.

It was suggested that this view of the statute would lead to great mischief, and enable dishonest debtors to perpetrate gross frauds in holding, for instance, a large mill, or manufactory, or hotel, as a homestead, by occupying some small portion of them with his family. Extreme cases furnish a very unsatisfactory means of determining the true construction of a statute. We do not think the statute could be held to apply to such cases, and exempt them; but if it could, and the supposed consequences should follow from a fair construction of the law, the remedy would rest with the legislature and not with the courts.

It follows from the views expressed, that the judgment of the circuit court must be affirmed.

---

Dissenting Opinion

Dixon, C. J.

Dissenting. The question involved in this case is of very great importance, not only to the parties in interest, but as establishing the proper construction of the statute under consideration. It is one affecting the general interest of society as much, or more perhaps, than any other single question which could arise at this time; and disagreeing, as I do, entirely in the conclusions to which the majority of the court have arrived, I feel it my duty to state some of the reasons for my so doing. The facts in • the case are stated as fully in the opinion of the court as I would desire, excepting in two or three particulars ; but believing that the report of the case will contain a full statement of them, as well as the very able argument and points made by the appellant’s counsel, I will not here attempt to supply them.

In my opinion the question is not so much one of doubt or ambiguity as to the general scope or purport of the statute, as one regarding the meaning to be attached to the word “homestead,” and “dwelling house.” These are words ot very frequent and familiar use, and in ordinary language have, or ought to have, a fixed and definite meaning, which would convey nearly the same ideas to the mind of every person reading them, or hearing them spoken. For myself, I have no doubt that they have such meaning, and for the purpose'of my argument, I shall assume that they have ; that being a proposition which I cannot discuss. Common sense will readily teach every man whether I am right or wrong in this assumption. Upon its correctness the truth or falsity of my conclusions will in a measure depend.

Whatever abstruse or technical rules may heretofore have been laid down and followed for the purpose of giving construction to statutes or other instruments; I understand that it has now become the settled and universal rule, sanctioned by the highest authority, that whenever words of a general nature occur in a statute, or other instrument, that they are to be understood according to their natural and obvious import, unless such meaning is clearly repugnant to the intention of the framers, or would lead to great inconvenience or absurdity.

In Jones vs. Harrison, 6 Exch. R., 327, Parke B., says : “The rale which the courts have constantly acted on of late years, in construing acts of Parliament, or other instruments, is to take the words in their ordinary grammatical sense, unless such construction would be obviously repugnant to the intention of the framers of the instrument, or would lead to some other inconvenience or absurdity.”

“ The current of authority at the present day,” says Bronson, J., in Waller vs. Harris, 20 Wend., 555, “ is in favor of reading'statutes according to the natural and most obvious import of the language, without resorting to subtle and forced constructions for the purpose of either limiting or extending their operation. Courts cannot correct what they may deem either excesses or omissions in legislation, nor relieve against the occasionally harsh operation of statutory provisions, without the danger of doing vastly more mischief than good.”

“ The fundamental reason of the rule,” says Sedgwick,” (Sedgwick on Statutory Law, page 261), “ is that unless the courts, as a general thing, construe language in the same sense in which it was used by the legislature, that is, according to its ordinary and natural import; it would be in vain to attempt to preserve any harmony between these two great co-ordinate branches of government; and the contrary doctrine would open the door to intolerable looseness of construction.”

It is for the purpose of applying these principles that I assume as the legislature did, and as every one must, that the words in question have a natural and generally accepted signification. Lexicographers agree in defining the word homestead, primarily and naturally to mean, the place of the house, the inclosure or ground immediately connected with the house or mansion; not the house or dwelling itself, but the place of, or for it; the ground or land on which it stands, and which is directly connected with it. It is therefore necessary to the existence of a homestead that it should be a piece of land designed or used as the place of the house. Although the word is sometimes used in an enlarged sense so as to include both the house and the land, yet such I apprehend is not its usual signification, or that in which it was used by the legislature. That they used it in its primary sense appears plainly from their language, “ a homestead consisting of any quantity of land,” &c.

I am thus particular in endeavoring to ascertain the true and primary meaning of this word, because I think the the majority of the court, both in their reasoning and opinion in this case, have confounded this natural and obvious signification of the word with that of the words “ abode,” “ dwelling house,” “ home,” “residence,” and the like, which do not necessarily mean the same thing. I can better illustrate by putting a case which is very likely to happen. Suppose the house of a debtor having a house and homestead, that is the quantity of land exempt by statute, should, by some accident, such as fire or storm, be destroyed, and the debtor and his family be thereby obliged to seek shelter and protection elsewhere, would the homestead be thereby subjected to seizure and sale, to satisfy the demand of some merciless creditor, whilst the unfortunate debtor was in good faith gathering the means and endeavoring to rebuild ? I confess that in view of the benevolent spirit which actuated our exemption laws, and with my understanding of the word “homestead,” I could never sanction such a proceeding and thus double his misfortunes. If, however, the word “homestead” means abode, residence, or bouse, he would lose it, for it would not then, by reason of his misfortune, be his abode, residence, or house. But if the word is construed in its ordinary sense, it might well be construed to be within the language of the statute; as it certainly would be within its spirit. Johnson gives an instance of the distinctive use and sense of the words “ house ” and “ homestead,” in the following lines from Dryden:

“ Both house and homestead into seas are borne, And rocks are from their own foundation torn.”

In ordinary conversation, or in giving a construction to written instruments, I imagine that few people would disagree as to the meaning of the words “ dwelling house,” when used. If, when taken together, they have not a fixed and definite signification, then I know of no words in our language that have. Webster defines the two words taken together, as “ the house in which a man lives.” The word “ house,” he says appropriately, signifies “ a building or edifice for the habitation of man; a dwelling place, mansion, or abode, for any of the human species;” that is, a building or edifice, or place, designed or constructed for the habitation of man, as distinguished from those other buildings, edifices, &c., constructed by man for other purposes. This I believe to be the ordinary and obvious import of the words, and to be the sense in which they were used by the legislature. It need not, it is true, be built of any particular materials, or in any particular style of architecture or workmanship, but it must be constructed and used for a dwelling for man, and not for other purposes.

The building in question is, by its location and external and internal construction, designed for a store, or place of business, and ever since its erection has been used by the defendant, and tenants holding under him principally for that purpose. It seems to me that the error lies in misinterpreting the words “dwelling house.” It is assumed that they are synonymous with “ habitation,” “ residence,” “ home,” or “ abode.” A dwelling house may be either of these, but it does not follow, therefore, that the words are convertible. The statute exempts a dwelling house, eo nomine. If the legislature had by name exempted every man’s residence or habitation, there might be some propriety in extending the provision of the act to a case like the present; but even then I do not think it would be within its spirit. Man may take up his residence in any place which will aiford him shelter or protection. Suppose a family were to reside in a steamboat (which very often happens), would that make the steamboat a dwelling house within the ordinary meaning of that word? It is true that the boat might not, owing to its being personal property, be exempt within the meaning of our' statute, yet I think the illustration a fair one, for the purpose of showing the absurdity of calling every thing which may be used as a place of abode, a dwelling house. Yet such seems to be the reasoning of the court; and the same magical power of construction which can convert what is essentially a store, contracted, known, and used as such, into a dwelling house, in the ordinary or grammatical sense of the words, because some members of the human family happened to take up their abode therein, could, and if consistent, would be bound, under the same state of facts, to convert into dwelling houses churches, warehouses, depots, barns, mills, manufactories, boats, vessels, and every other structure or edifice, though still occupied for the purposes for which they were designed. Thus, what is to day a mill or factory, known and called such in ordinary language, would to-morrow become a dwelling house, upon some person making a residence of some remote nook or comer of it. When this loose rule of construction is once established, where is it to end ? All the witnesses concur in saying that the building is principally designed and used as a store, and that its use as a residence is merely incidental.

The proof shows that at the time of the execution of the mortgage in question, and long before and after, the main portion of the building was leased by Rooney to tenants, who occupied it as a wholesale and retail clothing store, at an annual rent of $1500, and that the annual value of the portion occupied as a residence was $250. Thus, it appears, not only that the building is by construction a store, but that six-sevenths of its value and use is devoted to that purpose. Now, if one-seventh of a building being used as a residence converts \tall into a dwelling house, it is important that the court should define what lesser fraction would not. This is a calculation into which I confess my utter inability to enter; but as it is an important question, in which all the citizens of the state, and many out of it, have a deep interest, I insist that the court, which has adopted such a construction, should define, by some means, arithmetical or otherwise, just how far this system of transmutation may be carried. I mention this because it is intimated in the opinion of the court that a case might happen of a party occupying a part of a hotel or a mill, where they would not feel bound to consider it within the rule. It seems to me that such an, intimation when compared with the principles established by the decision in this case is irrational, and that there can be no consistent limit except that fixed territorially by the statute.

The defendant’s lot is 20 by 150 feet. He might own, on either side of him in the same block, two, and two-thirds more stores, and still be within the statute limit. He might also very conveniently occupy the whole of the third or fourth stories for the various purposes of a kitchen, bedrooms, parlors, &c. If such were the case, he would, at the same rate, be in the ^enjoyment of an annual income of $5,500. Would the court interfere in behalf of a creditor in such a case ? If so, how and upon what principle ?

I think it an utter perversion of language to call this building a dwelling house. It is not, in any fair sense of the word. No one knows it as such; no one calls it such. A circumstance worthy of note here, and which appears from the case, is, that neither the defendant, nor any of the witnesses called to testify, not even those called by him to prove that it was his dwelling house, call it by that name. No one ever seems to have imagined that it was a dwelling house. It seems to have been left lor the courts to make that discovery. The defendant, in his mortgage, called it “ Store No. 107 East Water street,” and every witness spoke of it in that way, or as “ the Rooney Store.” If the defendant had possessed a water power upon the premises, which he had improved by the erection of a mill or a factory, in some part of which he resided, the result must have been the same.

We are told in history that Diogones, the celebrated cynic philosopher, at one time took up his abode in a tub belonging to the temple of Cybele ; I suppose the tub became ipso facto a dwelling house in the ordinary sense of that word, and that hereafter strict propriety of language will require us to say that he lived in a dwelling house belonging to the temple instead of a tub. Nay, more, I suppose the moment the philosopher got into the tub, the whole temple instantly became a dwelling house, and that he might, had he been so inclined, have claimed it as exempt under the operation of a statute like ours.

If to-morrow a man in Madison should sell to another a lot in the city of Milwaukee, which the purchaser had never seen, and should represent to the purchaser that it had a dwelling house upon it, and should convey it as a house and lot, and the next day the purchaser should go to Milwaukee to see his property, I sincerely believe, if he had never heard of the decision in this case, that he would be surprised to find himself the owner of a lot with a shot tower upon it. If afterwards he should return to the seller and complain of fraud and misrepresentation, I suppose the justification of the seller would be that the courts had decided that whatever building a man lives in, is a dwelling house; that at the time he sold, his family resided in the tower, and therefore the purchaser had got what he bargained for. I mention these things for no other purpose than to show what appears to me to be the absurdity of the meaning attached to the words dwelling house, and how totally variant it is from our common understanding of them.

A reason strongly urged for the construction given by the court, is that any other construction would operate harshly on a large class of small tradesmen, artizans, and shopkeepers in some of our large towns, such as seamstresses, shoemakers, and others of kindred occupations,who, it is said, are often times under the necessity, to a limited extent, of combining business and residence in the same building. My answer to this is, first, that if such would be the result, which I by no means admit, it furnishes no reason for the violation of well settled rules of statutory construction; and, secondly, that that question is not at all involved in this case. When a case arises where a residence is the principal, and business the incidental use of a building, I will be prepared to discuss that question; but I do not feel called upon now to do so. The design of the legislature was to give to the debtor a home, and not to create in his favor a source of revenue. In this respect, I think, the construction given is not only a violation of the letter, but of the spirit of the statute. By pursuing the obvious import of the language, every object intended would be attained with no substantial inconvenience. But by the coustruction given, the fraud and injustice which dishonest debtors will be enabled to practice upon their creditors, is beyond calculation. The door to them is opened beyond the power of the courts to remedy.

It is suggested by the court, that the law is defective in allowing debtors to build large and expensive houses, and to hold them against their creditors. How much is the evil remedied by the decision in this case ? It is laid down as a rule in construing statutes, that courts are to presume that the legislature intends only what is just and equitable. But here, because the law has some defects, (as what law has not ?) it seems to be presumed that the legislature intended to peipe-trate all the iniquity in their power. If debtors have heretofore taken advantage of this defect in the statute, by building large and expensive houses, instead of devoting their means to the payment of honest debts, when it has been universally understood that they could use their houses for no other purposes than as residences for themselves, how much more will they do so now, when it is declared by this court, that they can make them a source of revenue by converting the greater portion into places of business to be occupied by others. By this unjust construction, the evil is enhanced one hundred fold ,and that too, it seems to me, without the slightest shadow of sanction by any language used by the legislature.

In addition to the decision being contrary to public policy, and public justice in general, it is in direct violation of the rights of the plaintiff in, this case. He advanced several thousand dollars on the security of this property. It was described and in actual use as a store. His own senses told him it was a store. It does not appear whether he knew that the defendant’s family lived in it or not. That fact might have been concealed from him. At all events, there was nothing to put him on inquiry. If he had known it, however, and had sought advice, I very much doubt whether any one would have advised him that the signature of Mrs. Rooney was necessary to the validity of the mortgage. The defendant intended and supposed he had given the plaintiff security. The plaintiff believed he had it, and courts will not annihilate contracts and destroy the rights of parties except in clear cases. They will rather adopt such a construction as will promote the end of justice and equity.

Although I am in favor of a fair, I might say liberal construction of the statute in question, in aid of the intention of the legislature, yet as the 52d section, under which the defense in this action is made, is a disabling act, it should be, in this case, strictly construed. This rule of construction is well settled. In Smith vs. Spooner, 3 Pick. R., 230, Chief Justice Parker says: “ Every man of full age and sound mind is at liberty to make contracts, and if made upon good consideration and without fraud, he must be bound by them, unless by statute provision, he is disabled. And disabling statutes of that nature should be strictly construed, for, though founded in policy and just regard to the. public welfare, they are in derogation of private rights.”

In Short vs. Hubbard et al, 2 Bing., 349; 9 Com. Law R., 429, it was held that there was no impropriety in giving a strict construction to one clause and a liberal construction to another clause of the same statute.

In this view of the case, the question here presented is very different from what it would be were the plaintiff seeking to subject the property to the payment of his debt, by the ordinary process of law, against the will of Rooney, the owner, who, by executing the mortgage, has signified his wish and willingness to have it so appropriated. It was the exercise of a right on his part as the owner, with which no one could, by the common law, interfere. A liberal construction of this, section may, at times, prove very inconvenient to some of these princely debtors, which it seems to be the design of the court to foster and protect.

Thus far, I think, upon principle, that the construction given is erroneous; that the legislature never intended it. My sense of justice to that branch of the government will never permit me to sanction it. So far as there are any authorities bearing directly upon the question, I think I am fully sustained in the views I have taken.

The case of Rhodes et al. vs. McCormick, 4 Iowa Rep., 358, which arose under a statute like our own, is like the one under consideration in almost every circumstance, except that there the plaintiffs Avere seeking to satisfy an execution against McCormick, by a sale of the premises. In that case the building was situated on a half lot in the city of Mus-catine. The cellar and first story were rented by McCormick, and used as a store, whilst he occupied the second and third" stories as a place of residence. The court held that the cellar and first story were liable to sale on the execution, whilst the debtor would remain the owner of the soil and the second and third stories.

In commenting upon the case, Wright, C. J., says: “A defendant cannot, by calling a house his homestead, make it such. He cannot, by occupying or using one room in a building containing forty, exempt the entire premises. Neither can he, by using all the rooms of the second and third stories, as a homestead, exempt from liability the store rooms that may be below, but which have no kind of connection with the homestead as such. * * * * While, as a general rule, it may be true, that- the term ‘ house’ includes an entire building, yet, within the meaning of this chapter, it is to be so construed as to carry out the object and purpose of the laws, so as to give the claimant his homestead, and not stores, shops and rooms, which are never used by the family, or for a home, or any part of it. In our opinion, it was never the intention of the law-making power to exempt from execution an entire building or house, for whatever used, because some portions of it was used by the owner as his homestead. * * * * The object of the law is to protect the home and preserve it for the family, and not shops, stores, rooms, hotels and office rooms, which are rented and occupied by other persons. This construction attains the object of the code in exempting a homestead, and prevents the abuse of a law which was designed to discourage and not to encourage fraud.”

Although I do not concur with the court in that case, that a building should be divided by horizontal lines, or by rooms, as the case might be, which might be productive of great mischief and inconvenience, being of the opinion that the converting of it principally to other purposes, ought to operate as a waiver of the right to claim it as exempt, I cannot but admire the strong sense of justice which pervaded the minds of the court.

In the case of the People vs. Plumstead et al., 2 Gibbs Rep., (Mich.), 465, the court held that the owner of premises which had not previously been selected as a homestead, could convey them without the signature of his wife, notwithstanding the provisions of the statute are identical with our own, our statute having been copied from that of Michigan. The decision was made upon the ground that no selection of the owner was proved, though the previous occupancy, as a homestead, was ful ly established. In the present case no proof of selection by Rooney was made or offered.

These are the only authorities to be found having any direct bearing on the question.

I think the judgment should be reversed.