19 Mont. 554 | Mont. | 1897
The first question to be determined is as to whether a person may claim a homestead which is situated on public land of the United States.
This question has been decided by the supreme court of the state of California in a number of cases. In Spencer v. Geissman, 37 Cal. 96, Chief Justice Sawyer, speaking for the court, says:
“The statute does not specify the kind of title a party shall have in order to enable him to secure a homestead. It says nothing about title. The homestead right given by the statute is impressed on the land to the extent of the interest of the claimant in it, not on the title merely. The actual
In Gaylord v. Place, 98 Cal. 472, 33 Pac. 484, it is held that “mineral land of the United States located and chiefly used by the owners as a placer mining claim, but also used as a place of residence for himself and family, and to some extent for pasturing stock and raising vegetables, is subject to selection as a homestead. A homestead right does not depend upon the character of the title held or which may be acquired by the party claiming it; but it is impressed on the land to the extent of the interest of the claimant in it, who has actual and rightful possession of the premises at the time of selection, and not on the title merely, which, as between the claimant and his creditors, is a false quantity, to be excluded from consideration.” Brooks v. Hyde, 37 Cal. 366.
We are of the opinion that the question of the claimant’s title to the land upon which a homestead exemption is claimed is immaterial. Whether the title to the land be good or bad is not a matter that concerns the creditor.
It this case the appellant concedes that the plaintiff is entitled to the house in which she and her children live under her claim of homestead, but insists that the homestead claim should not extend to the outhouses, fences, and other improvements included in the chattel mortgage executed by J. A. Watterson.
This question is discussed ht length in Greeley v. Scott, 2 Woods, 657, Fed. Cas. No. 5,746, and in Conklin v. Foster, 57 Ill. 104. According to these authorities, the outbuildings, fences, and other improvements constitute part of the homestead, and cannot be sold under legal process, unless, taken all together, they exceed the .amount exempted to the homesteader.
The authorities are so numerous to the effect that the abandoned wife may claim the homestead exemption that we do not think it necessary to discuss the question here. See Frazier v. Syas (Neb.) 1 N. W. 934, 35 Am. Rep. 466; Collier v. Lattimer, 35 Am. Rep. 711; and Kenley v. Hudelson, 39 Am. Rep. 31.
We are of the opinion that the premises described in the pleadings constituted the homestead of the plaintiff at the beginning of this suit, and prior thereto.
It appearing, therefore, that she did not sign or otherwise Join her husband in the execution .of the chattel mortgage conveying the same to the defendant the E. L. Bonner Company, the mortgage was for that reason absolutely void, as was held by this court in American L. & S. Association v. Burghardt, recently decided, and reported in 18 Pac. 391.
We think the foregoing treatment determines all the material questions presented by this appeal. The judgment and order appealed from are affirmed.
Affirmed.