157 P. 972 | Ariz. | 1916
The Miami Mercantile Company, a partnership composed of R. L. Tadich, M. L. Tadich and Sam Wuicich, was sued by appellee, who caused to be issued and levied upon the property hereinafter described a writ of attachment to secure the payment of any judgment that might be obtained. The property so levied upon was lots numbered 422 and 424, block 16, of the original town site of Miami, upon which lots was situate a two-story concrete building, the first floor of which is divided into two rooms intended for business purposes; the second floor being intended for a rooming house or hotel. After the attachment was levied, appellant Wuicich in due form filed a homestead declaration upon said lots 422 and 424, and in his declaration for homestead stated that the value thereof was $4,000, and that the same was community property of himself and wife. The regularity
The contention of the appellee is: First, that under our homestead law the head of a family is only entitled to claim that land as his homestead upon which is situated his dwelling-house and in which he resides; second, that the head of a family cannot claim a homestead in real estate or land held in tenancy in common. Homesteads are purely creatures of the statute, and we must therefore look to our own statutes to find out what that term or designation means. If the language is plain, it is the duty of the court to give it effect by following it; if its meaning be doubtful, we may look to the reasoning of other courts upon similar statutes, if there be any, to aid us in the construction of our statute. Our statute is unique in at least two respects: First, it has no prototype, so far as we can find; and, second, it is without ambiguity — its meaning is plain and easily understood. Those entitled to a homestead are named, and the homestead defined, by paragraph 3288 of the Civil Code of 1913. This paragraph reads:
“Every person who is the head of a family, and whose family resides within this state, may hold as a homestead, exempt from attachment, execution and forced sale, real property to be selected by him or her, which homestead shall be in one compact body, not to exceed in value the sum of four thousand dollars, and shall consist of the dwelling-house in which the claimant resides and the land on which the same is situated or of land that the claimant shall designate, provided the same is in one compact body. ’ ’
It will be noted that the exemption is of “real property,” and this real property may consist, first, of the dwelling-house in which the claimant resides and the land on which the same is situated; or, second, this real property may consist
We cannot follow the appellee’s course of reasoning, wherein it undertakes to say that the homestead in this state can only be of “a dwelling-house in which the claimant resides and the land on which the same is situated.” Our statute is not, as appellee contends, the same as the California statute, and it would be a perversion of its language and its meaning to restrict the homestead as contended for. The California statute reads:
“The homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated, selected as in this title provided.” Civ. Code, § 1237.
True, some of this language is used in our statute; but the words “real property,” preceding it, and the language following it, and, indeed, the whole context, combine to refute and deny the applicability of the California decisions as to what is exempt as a homestead under our statute. The territorial act of March 21, 1907 (Acts 1907, c. 79), was exactly the same as paragraph 3288 of the Civil Code of 1913, except the value of the homestead was- limited to $2,500. In re Forbes, 186 Fed. 79, 108 C. C. A. 191, Justice MORROW
“Under Arizona Territorial Act March 21, 1907 (Acts 1907, e. 79), paragraph 1, providing that a homestead shall consist of a dwelling-house in which the claimant resides and the land on which the same is situated, or land that the claimant shall designate, providing it is in one compact body, not to exceed $2,500 in value, a homestead exemption may be a dwelling-house and the land on which it is situated, or real property in a compact body, provided the exemption in either case does not exceed $2,500 in value.”
It is suggested by the appellee that the Forbes case did not call for a construction of the homestead law, and that Justice MORROW’S decision thereon was purely obiter dictum. However, we cannot agree with this statement. The facts were that Forbes, a bankrupt, claimed his homestead exemption by filing “a homestead declaration upon lot 43, alleging that he was the head of a family and that he and his family resided at the town of Clifton, county of Graham, in the territory of Arizona. ’ ’ There was no allegation that he resided on lot 43, or that it was occupied as a dwelling-house. The clear inference is that it was business property, and not residential property. The question as to whether such a piece of property was exempt under the homestead law was squarely before the court, and called for a decision. The determination of the question by that court meets with our approval.
It was suggested in the argument that this decision of the circuit court of appeals was not called to the attention of the learned judge who tried the case; that neither counsel nor the court was aware of its existence. We recite this fact to show that the court was not furnished for his guidance in making up his judgment the only decision that had been rendered at that time construing our homestead law.
Upon the second proposition presented by appellee, to the effect that the homestead cannot be selected from property held jointly or in common, the authorities are not in agreement. 21 Cyc. 504, says, on this point: “There is a sharp conflict of authority.” The courts sustaining the right to select a homestead from such property are more numerous and better reasoned than those holding to the contrary. Homestead statutes are enacted as a matter of public policy
“If the claimant be married the homestead may be selected from the community property, or from the separate property of the husband, or from that of the wife, but in the latter case the wife must join with the husband in making the claim.”
The property here claimed as a homestead is the community property, according to the homestead declaration. The accumulation of their joint efforts during coverture was invested in the piece of business property jointly with another; they owning one-half of the property. The community property did not lose its identity or characteristics by reason of this investment; it was distinctly “real property” and community property, such as is mentioned in the statute as subject to a claim of homestead. The first court to announce the rule that “a homestead could not be carved out of land held in joint tenancy or by tenants in common” was the California court in Wolf v. Fleischacker, 5 Cal. 244, 63 Am. Dec. 121. This rule has been adhered to by that court, and followed by a few other courts; but in Swan v: Walden, 156 Cal. 195, 134 Am. St. Rep. 118, 20 Ann. Cas. 194, 103 Pac. 931, the California court, speaking through Justice HENSHAW, said:
“Saving, however, in the cases mentioned, this court, which was the first to declare that a homestead could not be impressed upon land held in cotenancy, has, though somewhat reluctantly, felt impelled to adhere to its decisions as a rule of property under the doctrine of stare decisis, and such uniformly have been its decisions.”
It seems to us that, if the purpose of the homestead law is to be subserved, the heads of families should be permitted
The judgment of the lower court is reversed and the cause remanded, with directions that the judgment foreclosing the lien against appellant’s property he vacated and held for naught.
FRANKLIN and CUNNINGHAM, JJ., concur.