Zimmer v. Pauley

51 Wis. 282 | Wis. | 1881

Cassoday, J.

The law, as it stood prior to the revision and while the plaintiffs lived upon the brewery lots at Augusta, was such that they could not acquire' a homestead right therein which would be exempt, for the reason that Philip was only a tenant in common with Kramer, and did not hold in severalty. West v. Ward, 26 Wis., 579; Russell v. Lennon, 39 Wis., 570. This, therefore, is. not a case of a choice between two homesteads. It is admitted that the plaintiffs had no homestead to which the exemption laws could apply at Augusta, and the only question is whether they had such homestead at Humbird. In Jarvais v. Moe, 38 Wis., 440, relied upon by counsel, the question was, which of two separate buildings was exempt; and Ryan, O. J., speaking of the amendment of 1858, said “ that it was the legislative policy to save their homes to judgment debtors and their families” (page 444); and that “ the obvious design of the legislature in the act of 1858 was to so change the rule of Hoyt v. Ilowe, as it was then understood, as to leave judgment debtors as free asmther persons to change their homes by sale, and to be absent for temporary convenience, without forfeiture of the exemption.” Page 445. In Watkins v. Blatschinski, 40 Wis., 347, it was held that “ moneys due a judgment debtor from the purchaser of his homestead, as a part of the consideration therefor, and which the debtor designs in good faith to apply to the purchase of another homestead, are not liable to garnishment under our statutes.” So in Johnson v. Harrison, 41 Wis., 381, under the law as it stood prior to the revision, it was held that “it is the policy of the law of this state to exempt the homestead and its proceeds from liability for the mere personal debts of its owner, not only during his lifetime, but after his decease.” This was in a case where the portion of the forty acres, constituting the homestead, upon which the dwelling-house and its appurtenances stood, was sold; and it was held that such sale did not divest the remainder of the premises of its character of a homestead. So in Krueger v. Pierce, 37 Wis., 269, lath, shingles and lumber obtained by the debtor for the purpose of repairing the dwelling-house occupied by him as a homestead, and actually deposited upon land included in the homestead, were held exempt. The present chief justice, in giving the opinion of the court in that case, said: “ It is a cardinal rule, which this court has frequently recognized and affirmed, that exemption laws are to be liberally construed. The whole policy and spirit of the law so far as homesteads are concerned are to secure them to the debtor and his family.” Page 271. Certainly nothing further need be said as to the purpose of the statute. Assuming that the plaintiffs actually lost their residence in Humbird, and actually gained a residence in Eau Claire county, then a mere resolution or determination to change his residence balk to Humbird might be properly held to be “ insufficient where there was no actual removal, or where the party continued in the use and occupation of the same house and home, with all the indicia and circumstances of continued residence.” It was so held in Carter v. Sommermeyer, 27 Wis., 665. But here there was something more done. The purposes for which the plaintiffs went to Augusta had failed. The contract of purchase of the brewery property had been surrendered and given up nearly three months before the judgment, with the purpose of returning to Humbird and again occupying his dwelling-house there. In July, arrangements were made with the tenant then occupying the same to obtain another house. Some two weeks prior to the judgment, a load of household furniture was taken by Mrs. Zimmer and placed within one of the rooms of the dwelling-house at Humbird, where she and her child remained for two or three days. With some doubt on my part, but yielding to the convictions of my brethren, we hold that these things constituted a resumption of the homestead, even if it had been abandoned. In Brettun v. Fox, 100 Mass., 234, it was held that storing furniture in a room of the dwelling-house was a sufficient occupancy within the meaning of their statute to retain the right of exemption. In Phipps v. Acton, 12 Bush, 375, it was held that “ so long as the widow is in possession of the premises by herself, her agents or tenants, her right to the homestead will continue.” But this court have so often expressed their opinion on the exemption law, that no citations from other states seem to be necessary.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment in favor of the plaintiffs for the relief demanded in the complaint.