13 Nev. 65 | Nev. | 1878
By the Court,
On the twenty-eighth day of October, 1875, one William Rogan recovered judgment in the third judicial district
As conclusions of law, the court found that no part of the premises described in plaintiff’s complaint was subject to sale under his execution, for the reason that they were all homestead property of said Boisot and wife, the grantors of defendants’ lessor; that plaintiff was not entitled to recover either possession or rents.
The only question for our consideration is as to the extent of Boisot’s homestead. Counsel for appellant claim that it only embraced the dwelling-house and the out-buildings and appurtenances used immediately in connection therewith, together with the land upon which they stand; while respondents’ counsel contend that it included the whole property described in Boisot’s declaration of homestead, which is the same as that described in the sheriff’s deed and in the complaint in this action.
Counsel for appellant admit the correctness of the decision in the case of Clark v. Shannon (1 Nev. 569), under the statute of 1861, but urge that under the statute of 1861-5 a different rule must prevail. We shall examine that case in connection with both statutes, with the view of ascertaining whether or not there is such a difference between the two statutes as to work the radical change claimed by counsel for appellant. Homestead exemptions as to extent and character, depend entirely upon the constitution and statutes. They'were unknown under the common law. The constitutions and statutes of the different states being unlike ours, as a rule, the decisions of other courts upon the subject in hand furnish few authorities that can be followed here.
The case of Gregg v. Bostwick, 33 Cal. 225, referred to and greatly relied on by counsel for appellant, was rendered when the'‘statute of that state in relation to homestead exemptions Avas like ours. We shall examine that case hereafter.
It is said by counsel for appellant in their brief, “that all the sections of the act of 1861, upon which Clark v. Shannon was decided, are left out of the act of 186J-5,” and hence it is claimed that the case referred to is not an authority in this case. If the premises assumed by counsel are correct, their conclusions certainly follow; because respondents’ rights depend upon the last named statute, and that decision Avas based upon the statute of 1861, although Clark v. Shannon, and Goldman v. Clark (1 Nev. 607), Avere
It is also said by counsel for appellant, that the legislature of 1864-5 left out certain provisions of the act of 1861 for the purpose of avoiding the construction adopted in Clark v. Shannon, If such are the facts, it is the duty of this court to so declare. A comparison of the two statutes will best show the intention of the legislature. It may be well to notice preliminarily, however, that at the session of the legislature of 1864-5 the constitution of this state was in force, and that section 80, article iv, required laws to be enacted providing for the recording of homesteads within the county in which the same should be situated. Such provision was made in section 1, statute of 1864-5. In the same law nearly all the provisions of the old law were reenacted; but those seeming to allow the execution debtor to claim at least one acre, although of greater value than five thousand dollars, were left out of the new law, and with good reason. They were inconsistent with section 1. They made an important and oftentimes unnecessary distinction between one person owning an acre and another owning more, although the property of each was worth more than five thousand dollars. The estate of the latter could be divided so as to deprive the owner of a greater portion of his last acre, if the balance was worth five thousand dollars, while the former could hold a full acre, except in case of sale of the whole. If a homestead, exceeded one acre, and the land and dwelling-house and appurtenances thereon were worth more than five thousand dollars, a portion less than an acre in compact form might have been set off as the homestead, if that portion, with the dwelling-house, etc., was worth five thousand dollars; but if a homestead did not exceed an acre, although that acre, with the dwelling-house, etc., was of greater value than five thousand dollars, the portion representing the excess of five thousand dollars in value could not be sold, and the only remedy of the plaintiff was to sell the whole, and take the balance of the proceeds of the sale, after paying the defendant five thousand dollars. Thus it will be seen that the statute of 1861 made a useless,
So the only practical difference between sections 1 and 3 of the old law and section 1 of the new is, that the latter requires a declaration in writing containing the facts therein mentioned, to be acknowledged and recorded in the proper office sometime before sale, and the former do not contain this requirement.
Section 2 of each statute does not affect the question under consideration.
Sections 4 and 5 of the old law are embodied, substantially, in section 3 of the new, with the exception of the “ one acre ” provisions already referred to. In the present statute there is a new provision, “that when the execution is against the husband whose wife is living, the judge may,
An impartial examination of the two statutes has convinced us that the legislature did not intend to change the policy of the former law in relation to the character and extent of homestead exemptions, and that is the principal question in this case, if not the, only one.
In Clark v. Shannon, the defendant was residing upon lot four in a certain block in Washoe city, and @n lot three in the same block, and immediately adjoining, he had a livery stable. The two lots made a square of one hundred feet.' He executed a promissory note to plaintiff Clark for eight hundred dollars, and at the same time executed a mortgage, to him on lot three, to secure its payment. Shannon was conducting his livery business on lot three, and his wife was living with him on lot four. Soon after the execution of the mortgage, Shannon filed in the proper office his declaration of homestead, including in the premises described both lots three and four; and after the passage of the present law providing for the registration of homestead claims, he had his declaration recorded. Clark filed his bill to foreclose his mortgage on lot three, and Shannon resisted the decree, on the ground that when he executed the mortgage the stable lot constituted a part of the homestead property, and was not bound by a mortgage in which his wife did not join.The only question raised in the court below, and the controlling 'one in this court, was, whether, under the circumstances of the case, the stable lot constituted a part of the homestead property. The court below held that the homestead was confined to the lot’ on which the dwelling-house was situated, and did not include a separate lot which was devoted to business purposes. This court, on appeal, held that the stable lot was a part of the homestead, and was exempt from execution, and also from the operation of the mortgage executed without the concurrence of the wife. Counsel for appellant say that “the old statute seemed to
In Clark v. Shannon, after stating the substance of sections 1 and 3, the court say; “If the owner sets apart property worth more than five thousand dollars, steps may be taken by the plaintiff in execution to appraise the property, and either sell a portion thereof or sell the whole, reserving five thousand dollars of the proceeds for the debtor. It is also provided that no division of the homestead property shall be made without the assent of the owner, where it consists of one acre or less. ‘Here, then, is the privilege to the debtor of selecting any land included in the homestead tract, provided it does not exceed five thousand dollars in value. There is no qualification as to the uses to which it may be applied.’ ”
It is difficult to see how the conclusion of the court expressed in the sentence quoted by us was at all dependent
The most that can be said of the “one acre” provision is, that if a homestead happened to contain no more than one acre, and was worth more than five thousand dollars, the quantity in excess of five thousand dollars in value could' not be sold, and the creditor was ' compelled to sell the whole. But we fail to see how the elimination of those useless, unjust provisions in any manner influenced the court in arriving at their conclusions upon the general policy of the law.
The court says, further: “Had the lots been levied on, can there be any doubt but that the defendant, Shannon,' might have notified the sheriff that he claimed them as a homestead ? If he had done so, it appears to us they could not have been divided. It is admitted both together are of less value than five thousand dollars. Both together contain less than an acre.”
Why could it not have been divided? Because it was a part of the homestead, as well as because there was less than an acre, and in either case because it was worth less than five thousand dollars. If it was a part of the homestead, being of less value than five thousand dollars, no part could have been sold if the “ one acre ” provisions had not been in the law; and if it was not a portion of the homestead it could have been sold, because the homestead law did not apply to it. The fact is the court treated the stable lot as a part of the homestead, and having done so, the conclusion was irresistible that the mortgage could not become an incumbrance upon the property without the joint action of the wife, as required by law. We agree with counsel for appellant that property which does not possess
Having treated the stable lot as a part of the homestead, the court stated as an additional reason for its decision against the plaintiff, that the defendant had the right to claim at least an acre, if the wdrole was of less value than five thousand dollars, and therefore the property could not be divided. We think the decision of the court did not in any manner necessarily depend upon the “ one acre ” provisions of the statute of 1861. -The present statute, in all essentials showing the policy of the legislature, is the same as that of 1861. Section 1, in stating what, a homestead shall consist of, is precisely the same in both laws, and the provisions requiring five thousand dollars to be paid to the debtor in case of sale of the homestead property, is the same in both. In the present statute, the claimant is required to insert in his declaration, among other things, that “ it is his intention to use and claim the same as a homestead;” but how he shall use it “ as a homestead,” depends upon the statutory definition of that word, the uses required by the act, and the property that can be held as such. The
Counsel for appellant assert that the language of section 1 of the present law clearly shows that no building can be claimed as a homestead, except the residence and its appurtenances, for the reason that the legislature has expressed the dwelling-house as exempt, and such expression excludes all other buildings.
When counsel brought this action they described the land claimed by plaintiff by metes and bounds, but they did nob describe or mention any of the buildings thereon, for the reason that a judgment for the land Avould carry the buildings. So, in the statute, an exemption of a “quantity of laud” would exempt the buildings thereon also; but the legislature did not intend to exempt any lands except those that are impressed with the homestead character, that is to say, those upon which the dwelling-house is situated. We think the reason why the dwelling-house was mentioned, was for the purpose of fixing the locus and extent of the exempted property, including the dwelling, etc., and that in mentioning that building the legislature did not intend to exclude others, except for the reason that they are not a part of the homestead.
Counsel refer us to Gregg v. Bostwick, 33 Cal. 220, and other cases from that state which follow the decision named. Our present homestead act is like the one in force there,
The judgment of the court below is affirmed.