13 Nev. 303 | Nev. | 1878
Lead Opinion
By the Court,
The complaint in this action shows that all the plaintiffs are the legitimate minor children of Timothy G. Smith, deceased, and Harriet M. Smith, his wife; that Timothy G. died on or about December 17, 1867, at which time he was the owner, in the possession and entitled to the possession, of the property described in the complaint, an undivided one half of which is the subject of controversy; that during the life-time of said Timothy G., to wit: March 10, 1866, he selected as and for a homestead, all of said property except that portion thereof described as the south twenty-five feet of lots three and four, in block eighteen, and duly filed with the county recorder of Ormsby county, wherein said property is situated, his declaration of homestead, signed and acknowledged by him as required by law, stating all the facts requisite in such cases, which declaration was duly recorded; that during his life-time and until his death, said Timothy'G. continued to reside with his family upon said premises, and to claim and use the same as a homestead; that during the settlement of said estate and while Charles Smith, brother of deceased, was administrator, to wit: June 12, 1868, upon proper and legal proceedings had and taken in the district court of said county, the property described in the declaration of homestead was, by decree of said court, set apart for the benefit of said Harriet M. and her legitimate children, the plaintiffs herein; that thereafter, upon the petition of said Harriet M., said decree, on the twenty-sixth day of February, 1870, was so amended as to include in the description of the property so set apart, the said south twenty-five feet of lots three and four, in block eighteen; that said decree, as amended, has never been reversed or modified, and has remained, and still continues, in force; that no administration was ever had or attempted to be had upon or concerning said premises, other than said decree, and the amendment
Plaintiffs allege that by reason of the facts stated they became, and now are, the owners, and entitled to the possession, of an undivided one half of all the premises set apart by the district court, together with the dwelling-house thereon and the appurtenances; that on or about Junel, 1877, defendants wrongfully entered into and upon said portion of said premises and ousted and ejected plaintiffs therefrom, and now unlawfully withhold the possession of the same from plaintiffs, to their damage in the sum of one thousand dollars; that the value of the use of said property is one hundred and twenty-five dollars per month.
Judgment is asked for the possession of the interest claimed, together with one thousand dollars damages, one hundred and twenty-five dollars per month for use and occupation, and costs of suit.
To the complaint the defendants interposed a demurrer upon two grounds: “1. That there is a defect of parties plaintiff in this, to wit: Said Harriet M. Smith is a necessary party plaintiff, without whose presence there cannot be a complete determination of the controversy in this action; 2. That said complaint does not state facts sufficient to constitute a cause of action against defendants, or either of them, in this, to wit: It appears from said complaint that the said plaintiffs, nor either of them, are the owners of said property or any part thereof. It appears from said complaint that said Harriet M. Smith is the owner of said property, and is entitled to the possession of the same.”
The court below sustained the demurrer upon both grounds stated. Plaintiffs refused to amend their complaint within the time allowed therefor by the court, and judgment of dismissal and for defendants’ costs was thereupon entered. Plaintiffs appeal from that judgment. We will first consider the second and most important ground of demurrer.
There is no allegation that the property described in the complaint was the separate property of the father, and the presumption is that the premises described in the declaration of homestead, prior to the filing thereof, as well as those not included therein, were common property. (Smith v. Smith, 12 Cal. 224.) The questions presented require a construction of a part of our homestead and probate laws. And, first, it is proper to state certain facts shown bjr the statutes and decisions of California. In 1851 a homestead law was passed in that state, in all particulars essential to this case, like the one passed by our Legislature in 1861. (Wood’s Dig. 1860, p. 850; Nevada Stats. 1861, p. 24.) It did not declare in terms the nature of the estate held therein by the husband and wife, or either of them. It provided that the homestead, * * * to be selected by the owner thereof, should not be subject to forced sale; and that the homestead and other property exempt from forced sale, upon the death of the head of the family, should be set apart by the probate court for the benefit of the surviving wife and his own legitimate children. Under that statute, until 1859, the supreme court decided that the homestead was held in a sort of joint tenancy by the husband and wife, with the right of survivorship. (Taylor v. Hargous, 4 Cal. 272; Poole v. Gerrard, 6 Cal. 73; Estate of Tompkins, 12 Cal. 114.) In 1859, in Gee v. Moore, 14 Cal. 472, the same court held that the doctrine announced in the previous cases cited, had never met the approbation of the profession, and said: “The wife, if surviving her husband, takes the property, not by virtue of any right of survivorship arising from the alleged joint tenancy, but as property set apart by
In McQuade v. Whaley, 31 Cal. 527, decided in 1867, the court took the same view. In that case one Casement and his wife occupied the lot in question as a homestead, from 1852 until 1861, when he died. The wife conveyed the lot to plaintiff, who claimed the whole on the ground that his grantor, upon the death of her husband, held the entire property as surviving joint tenant under the homestead' statute of 1860.
“The amendments contained in the act of 1860 must be considered together and in pari materia with the provisions of the act of 1851, in order to ascertain what rights and interests were brought into being by force of these acts of the legislature acting upon given conditions precedent to their possible operation. The first section of the act of 1860 provides, that all homesteads heretofore appropriated and acquired by husband and wife under the act of 1851, shall be deemed to be held by such husband wife in joint tenancy. Had the act stopped with this provision, it might well be said, first assuming that the legislature had the power thus to create a particular estate, that by this language a joint tenancy was created in respect to all homesteads then acquired and existing under the act of 1851; but it does not stop here. The fifth section provides that those entitled to homesteads under the act of 1851, shall be entitled to the benefits of the act of 1860, and that such homesteads shall be protected to the same extent and in the same manner, as if acquired under the provisions of the act of 1860; that is, by making a declaration of intention to claim the premises selected as a homestead, and signing, acknowledging and recording such declaration; provided, however, that if any person thus claiming a homestead under the act of 1851 makes no such declaration in the mode and within the term prescribed, the homestead which he or she had under the act of 1851, shall be deemed to have been abandoned.”
The court decided against plaintiff, on the ground that Casement and wife had not filed their declaration, and hence, that the homestead was not held by them in joint tenancy. The opinion closes in these words: “It is argued on behalf of the plaintiff that as the husband died after the passage of the act of 1860, and before the time had elapsed
We have quoted liberally from this case for the purpose of showing, that although it went off upon a point not presented here, still the opinion shows that questions which are involved in this case were well considered in that; and we do not hesitate to express our belief that the decision would have been in favor of plaintiff had it appeared that a declaration was filed according to law. There is no intimation that the fourth section, of which, that section in our statute is a copy, tends even to modify the first; and the fifth section, which declared an abandonment if the homestead declaration ivas not filed in time, is not contained in our statute.
As we have seen, counsel for plaintiff in that suit based his entire case upon the claim that Casement and wife held the homestead as joint tenants, with the right of survivor-ship under the statute of 1860. The court did not say to him, or in any manner intimate, that such joint tenancy would not have been created had the requirements of the law been followed, which would have been a complete answer to his argument; but it did say in substance: “Admitting that the legislature had the power to create a particular estate, you could have maintained your action had a declaration been filed in the time and manner provided; but Casement and wife having failed to perform the act necessary to create a joint tenancy, you cannot recover.”
In 1862, the first section of the California statute of 1860 was allowed to remain without change, while the fourth was
To our minds, the amended section just quoted is but an amplification of the words contained in the first section of the statute of 1860, to wit: “From and after the filing for record of said declaration, the husband and wife shall be deemed to hold said homestead as joint tenants.” In the Estate of James, the court said in 1863, two years before its adoption here: “It would seem from the statute of 1860 that it was the intention of the legislature that the homestead should vest in the surviving husband or wife absolutely, and not descend to the heirs of either.” Surely no more is declared by the amended section.
The amended section was more easily comprehended by persons uneducated in the law; but to others, the use of the words “joint tenants,” as they appeared in the statute of 1860, was only a short method of expressing all that is conveyed by the use of their most elaborate definition. At the time of the amendment in 1862, so far as we know, there had been no expression of opinion by the supreme court in relation to the statute of 1860. Under such cir-.
Our legislature has recognized their common definition in the statute now in force concerning conveyances (Stat. 1861, p. 17, sec. 41): “Every interest in real estate granted or devised to two or more persons, other than executors or trustees, as such, shall be a tenancy in common, unless expressly declared in the grant or devise to be a joint tenancy.”
As was said by the court in Barber v. Babel, 36 Cal. 17, we think “the legislature did not adopt the provision that the ‘ husband and wife shall be deemed to hold the homestead as joint tenants ’ without some object. * * * They did not intend to use a meaningless phrase, to be attended by no consequences.” The words “joint tenants ” have as certain, definite meaning in law as “mortgage,” “lease,” or “promissory note.” Their use in our statute of 1865 constituted a radical difference between the old law and the new, if it appears from the whole statute that the legislature intended to use them according to their unvarying definition.
In no instance, except in the case of homesteads appropriated and selected according to the law in question, has the legislature declared that property shall be held by
It is not claimed that the unmistakable meaning of section 1, when considered alone, is at all limited or modified, unless by section 4. Succinctly stated, these sections provide as follows:
Sec. 1. Upon the filing of a declaration, as herein provided, the husband and wife shall be deemed to hold said homestead as joint tenants.
Sec. 4. The homestead and other property exempted from forced sale, shall, upon the death of either husband or wife, be set apart by the court for the benefit of the surviving husband or wife and his or her legitimate children; and in the event of there being no survivor or legitimate children of either husband or wife, then the property shall be subject to the payment of their debts. ■
“If technical words are used in a statute, they are to be taken in a technical sense, unless it appears that they were intended to be applied differently from their ordinary or legal acceptation. (1 Kent’s Com. 462.) And it may, I think, be stated, as a corollary from these principles, that when a word, by common usage, has acquired a popular signification, it shall be understood in that sense, unless its meaning is controlled by the context in which it is found, or the circumstances under which it is used.” (Clark v. City of Utica, 18 Barb. 453.)
In 3 Wash. (C. C. R.), 209, Mr. Justice Washington said: “ If a statute of the United States uses a technical term which is known, and its meaning fully ascertained by the common or civil law, from one or the other of which it is obviously borrowed, no doubt can exist that it is necessary
In the case of Ormsby County v. The State of Nevada, 6 Nev. 286, the court said: “It is possible that the statute in question, upon close investigation, might fall within the general rule as quoted; but that rule, although supported by the highest authority, is, as experience has proved, of dangerous application. The cases where a court should exercise the right given under it, should be of the clearest; as when a court takes one step outside the literal wording of a statute, to declare what otherwise or otherwhere appears, there arises at once the possibility, if not the probability, of an assumption of power — judicial legislation — a thing to be most cautiously avoided under the true theory of our government, national and state. There is, though, always this distinction to be observed in settling the meaning of technical words, or words having a peculiar legal signification when they occur in a statute. Such words when used with reference to a particular subject as to which they have a special meaning, should receive that and no other; but if used generally, the natural conclusion is, that the popular meaning is the one intended.”
It cannot be doubted that the words, “joint tenants,” are used in the statute in question, “ with reference to the particular subject as to which they have a special meaning.” In fact it may be said that when properly used as designating the owners of property, real or personal, they have no other than a special meaning. This is not denied, but it is said that the legislature did not, in fact, intend to use them in that sense.
What is there, then, in section 4, which shows, clearly or otherwise, that in section 1 the legislature said one thing but meant another ? It will not do to answer this question according to our ideas of the justice or injustice of allowing a homestead to be held by the husband and wife in joint tenancy, with the right of survivorship; because just and wise men have differed and will continue to differ upon this question. The statutes of different states show that there is great diversity of opinion as to what the statute should
In Rich v. Tubbs, cited by counsel for appellants, the declaration was executed and filed by both husband and wife under the California statute of 1860, upon the separate property of the wife.
The court first concludes that the effect of the order of the probate court setting apart the homestead for the use of the family of the deceased husband, “was not to change or transmit the title; that it did not adjudicate the question of
The court then adds: “In whom did' the title vest upon the death of the husband? The homestead act of 1860 declares that the husband and wife shall hold the homestead property as joint tenants; but that provision is to be read in connection with the fourth section of the act, which provides that, upon the death of the husband or wife, the homestead shall be set apart by the probate court for the benefit of the survivor and his or her legitimate children. Although they are denominated joint tenants, they are not such in the full sense of the common law definition of that term. The legitimate children are entitled to take an interest, upon the death of either husband or wife. It is unnecessary, in this case, to define the nature of the interest which descends to the children; but it is clear that under the fourth section of the act of 1860, they take some interest by inheritance from their deceased father or mother. The homestead act of 1862 contains no such provision as is found in section four of the act of 1860. After providing that the husband and wife shall be joint tenants, it provides that, on the death of either, the homestead shall vest absolutely in the survivor. No provision is made therein for the inheritance of any interest in the homestead property by the children of the deceased. As the defendants (the children of the deceased husband) took nothing by inheritance, unless the law in force at the time of the decease of their father so provided, the question on which the case turns is, at what time did he die? It is found that he died in 1862, the precise time not being stated. The order of the probate court was made July 7, 1862. The homestead act of 1862 •was passed and took effect May 12, 1862. It is incumbent on the defendants alleging error, in other words, claiming that they acquired interest in the homestead property by inheritance, to show that the deceased died before their
Section 4, to Avhich the court referred, only commanded the doing of what was already required by section 121 of the probate act, the effect of Avhich, Avhen done, was, as before stated; and in the Estate of Wixom, 35 Cal. 324, the court held that section 121, as amended subsequent to the amendment of the homestead law of 1862, did not direct or regulate the course of the title to the homestead, although it contained the Avords “for the use of the family.” How then could those words regulate or affect the title when used
We find nothing in section 4 which indicates an intention to transmit to the children, any portion of the title to a homestead appropriated and selected according to that statute. Every act done to preserve the homestead is “for the benefit” of the children as well as the parents, both before and after the death of- the father or mother. While the parents are living, and when the title is undoubtedly in them, the property is exempted from forced sale as much for the benefit of the minor children as it is for the father or mother; and when the father dies it is still exempted, and is kept from administration for their benefit, as well as the mother’s, because during their minority it is the parents’ duty to provide them with a home, and the law presumes they will share its blessings with her. In our opinion, the privilege of sharing the homestead with the survivor, so long as it is retained as such, is the benefit intended to be secured to the children. If it is true that the benefit referred to is the right of the children, upon the death of the father, to take and use in their own name and as their own property, one half of the homestead premises, then the grand object of the law is defeated; then the children can convey their interest to a stranger, and thus destroy the home, not only as to themselves, but the survivor also. Such a result could not have been intended. And, too, if one half vests in the children, subject only to the right of the survivor to enjoy the whole as a homestead, then the estate is no more valuable to the latter than it was under the old law. Yet, in Barber v. Babel, 36 Cal. 18, the court says: “The express provision that the husband and wife shall be deemed to hold said homestead as joint ten- '
The case of the Estate of Wixom, 35 Cal. 324, decided in 1868, is also referred to by counsel for appellants as sus
It will be noticed that it was a matter of no consequence when the change took place, if it was subsequent to the date of the probate law, and the statute embodying the change ■was in force at the time of Wixom’s death; both of which facts were true as to the law of 1862. The statute of 1860 was not in force at either date, and could not affect the case. The court therefore, naturally and necessarily, referred to the existing statute as the controlling law. The statute of 1860 was a dead letter, and it would have been strange, indeed, if the court had mentioned that, which did not affect
Our opinion is, that upon the death of their father, plaintiffs did not inherit one half or any portion of the homestead described in the declaration, and that, as to such property the complaint does not state a cause of action, regardless of section 127 of the probate law, the homestead statute being the last expressed will of the legislature. (Estate of Wixom, supra.)
But' the south twenty-five feet of lots 3 and 4, in block 18, described in the complaint, were not included in the declaration, and a joint tenancy therein was not created between plaintiffs’ father and mother under the first section of the homestead law. (McQuade v. Whalley, supra; C. L., sec. 186.)
It was set apart by order of the district court for the benefit of the widow and children, but, as we have seen, such order did not change or transmit the title. Its only object and effect was to relieve it from payment of the‘general debts contracted by the husband during his life-time, and from debts accruing in the course of administration. (Rich v. Tubbs, supra; Estate of David Walley, 11 Nev. 264-5.) Under the eleventh section of the statute defining the rights of husband and wife, which was in force at the time of the death of T. G. Smith (Stat. 164-5, p. 240), if this was common property, one half vested in Harriet M. Smith and the other half in plaintiffs, who were tenants in common therein with their mother. (Broad v. Broad, 40 Cal. 496; Broad v. Murray, 44 Id. 228.) True, they took their inherited interest subject to the mother’s rights therein, whatever they
We think, also, that upon the facts stated in the complaint • plaintiffs would be entitled to judgment for possession of their half of the same, without making their mother one of the parties plaintiff. (Updegraff v. Trask, 18 Cal. 458; C. L., 1077.)
Should it be necessary, upon the filing of an answer, or at any time during the progress of the trial, to bring in the mother, the court has full power to so order. At present we cannot say that, as to this property, she is a necessary party.
The judgment is reversed and the cause remanded. The district court will enter an order overruling defendants’ demurrer, with leave to file answer.
Dissenting Opinion
dissenting:
I concur in so much of the opinion of the court as holds that the plaintiffs inherited an interest in that portion of the demanded premises which was not included in the declaration of homestead, and I concur in the conclusion that the judgment of the district court should be reversed. But upon the more important question which is so largely discussed by Justice Leonard, I dissent from the views of my associates.
In my opinion, our homestead law of 1865, considered without reference to the circumstances under which it was borrowed from the state of California, does not sustain the construction which is placed upon it. The first section, it is true, provides that the homestead shall be held by the husband and wife as joint tenants, and if that section stood alone there would be no reason to suppose that the legislature meant anything different from what they said, though even then it would not necessarily follow that the right of
If the circumstances under which our homestead law was adopted are considered, I think that, far from weakening, they add very greatly to the force of these conclusions. There is no room for doubt that the occasion for enacting a new homestead law in 1865 was the requirement of the constitution then newly adopted (art. iv, sec. 30) that laws should be passed providing for the recording of homesteads in the counties wherein they were situated. In compliance with this injunction of the constitution the California law of 1860 was copied. An attempt is made in the opinion of the court to show that when we borrowed the California act it had already received the construction here placed upon it, but I think the California decisions referred to by the court may be safely challenged to show that not only had the act of 1860 never been so construed before we adopted it, but it has never been so construed to this day. On the contrary it has been construed otherwise. The expression let fall by Judge Crocker in the case in 23 Cal. (Estate of James), was as loose a dictum as can be found in the reports of that state, upon a point the decision of which was expressly avoided, and has never been referred to in any
Much more importance, I think, is attributable to the fact that when we adopted our homestead law and resorted to California for a model, we had their act of 1860 as originally adopted and as amended in 1862 to choose between. The language of the amendment of 1862 is quoted in the foregoing opinion, and no one can doubt that it was intended to add the incident of survivorship to the estate created by the act of 1860. We chose the act of 1860 and rejected the act of 1862. The inference is that we did not desire the law of 1862.
The California cases involving a construction of their various homestead laws are extensively quoted in the opinion of the court, and an attempt is made to show that they sustain its conclusions; but those who may have the curiosity to examine the cases in the reports will find, if I am not mistaken, that they are all consistent with the conclusion that it was not until the act of 1862 that the right of survivorship attached to the homestead. The very opinion of Judge Sawyer from which such extensive quotations are made (see Barber v. Babel, 36 Cal. at page 17) says: “And since the amendment of 1862 the right of survivorship, the grand incident of joint tenancy is added,” showing plainly that he did not mean what it is assumed he meant by other portions of his opinion. It is not worth while, however, to pursue this subject, as my only desire is to record my dissent from a decision which, henceforth, becomes a rule of property in this state-and involves the consequence of disinheriting a man’s children in favor of those of another. In my opinion this is a much more serious consequence than those which are depicted in the opinion of the court; and those consequences by no means follow from my construction of the laiv. There is no difficulty in holding that a child may inherit an interest in the homestead from its deceased parent without being driven to the conclusion that
Rehearing
RESPONSE TO PETITION EOR REHEARING.
By the Court,
We are asked by appellants to grant a rehearing in this case, mainly upon the ground stated in the petition, that if the legislature contemplated that the husband and wife should hold the homestead strictly as joint tenants, it necessarily follows that either tenant may convey his or her interest to a co-tenant or even to a stranger, and thus destroy the homestead. We do not think that under the constitution and statute, a homestead is held by the husband and wife strictly as joint tenants. The constitution provides that “a homestead * * * shall not be alienated without the joint consent of husband and wife, when that relation exists;” and by statute it is enacted that homestead property shall not be deemed to be abandoned without a declaration thereof in writing, signed and acknowledged by both husband and wife according to law. But we do think the husband and wife hold the homestead as joint tenants, except so far as the usual rights of such tenants have been limited or modified by the constitution and the statutes. In the opinion of the court filed in this case, we had no occasion to consider whether any other elements of a strict joint tenancy than that of survivorship were or were not retained by the statute. We said: “If there is nothing in other sections plainly indicating that the legislature did not intend what is definitely and prominently stated in the first section, upon the question of survivorship, ‘ the great distinctive characteristic of joint tenancy,’ it seems to us there is little room for construction, and we must uphold the statute as it is written.” The power of alienation by either husband or wrife, without the consent and joint act of the other, solemnly evidenced by deed duly acknowledged, is prohibited by the constitution and statute; but there is
We do not deem it necessary to do more than to refer to the opinion filed in answer to the other grounds urged in support of appellants’ petition. To our minds the statute is plain, and the intention of the legislature unmistakable. If the policy of the present law is unsatisfactory to the people, a change must be wrought by legislative action.
Rehearing denied.
Dissenting Opinion
dissenting:
I dissent.