Altman v. Schuneman

• Decision Date: 03 January 1929
• Docket Number: 1502
• Citation: 39 Wyo. 414,273 P. 173
• Parties: HENRY ALTMAN v. JOHN AND LIZZIE SCHUNEMAN [*]
• Court: Wyoming Supreme Court

273 P. 173

39 Wyo. 414

HENRY ALTMAN v. JOHN AND LIZZIE SCHUNEMAN ^[*]

No. 1502

Supreme Court of Wyoming

January 3, 1929

APPEAL from District Court, Albany County; VOLNEY J. TIDBALL, Judge.

Action by Henry Altman, against John Schuneman and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

W. L Walls, for appellant.

John Schuneman had conveyed his homestead right to his wife and could not attack the confirmation of the execution sale. Elizabeth Schuneman was not a party to the motion. Occupancy as a home is a test of homestead rights, 6028, 6029 C. S. but occupancy must be coupled with ownership; Waples on Homestead Exemption, 102; 13 R. C. L. Sec. 30. A homestead exemption is a right and not an estate in land. Poole v Gerard, 65 Am. Dec. 453. 70 Am. Dec. 344. Arp v. Jacobs, 3 Wyo. 489. Myrick v. Bill, 3 Dak. 484, 17 N.W. 258. Brown v. Keller, 32 Ill. 1511. Kitchen v. McCarley, 26 S.C. 1. 11 S.E. 1090. 18 Cyc. 1382. 29 C. J. 792. Co. v. Gilroy, (La.) 90 So. 222. 29 C. J. 787. A joint conveyance is an abandonment of homestead rights. Oaks v. Oaks, 94 Cal. 66, 29 P. 333. Slattery v. Kiefe, 201 Ill. 483. A deed becomes an executed contract when signed and delivered. 13 Cyc. 572. No subsequent act can defeat it. Parsons v. Parsons, 45 Mo. 265. Section 4616 C. S. Elizabeth and not John Schuneman is the owner of the title. Since John Schuneman cannot claim exemption as owner, Nill v. Cor., 25 Ia. 409, he is not the real party in interest. 5580 C. S. Potter v. Ritah, 39 L. R. A. 353. Schuneman cannot redeem, 6008, 6009 C. S. One person cannot have a homestead right in the property of another. Sears v. Hanks, 14 Ohio St. 298.

Kinkead and Pearson, for respondent.

The District Court had jurisdiction to hear respondents motion to vacate the confirmation of sale. Altman v. Court, (Wyo.) 254 P. 691. Schuneman being the execution defendant had the right to redeem irrespective of his ownership of the premises sold. 6008 C. S. Plaintiff having made an affidavit that the property was homestead in character and sold the same under execution, subject to such homestead rights, is estopped to deny that said premises were impressed with a homestead character. Wilkinson v. Stone, (Okla.) 200 P. 919. Miller v. Oil Co., 295 F. 31. Herbert v. Wagg, (Okla.) 117 P. 209. Even if the theory upon which a party proceeds is erroneous, he cannot proceed otherwise if his theory is acted upon by the court. State v. Schnitger, 16 Wyo. 479. Admissions in pleadings are conclusive. Nugent v. Powell, 4 Wyo. 173, 187. Pardee v. Custer, 15 Wyo. 368, 383. Ownership of a homestead is not required to support right of possession and exemption. Dreutzer v. Bell, 11 Wis. 118. Hill v. First Natl. Bank, (Fla.) 75 So. 614, 617. Pendleton v. Hooper, 87 Ga. 103. Thorn v. Thorn, 14 Ia. 39. Wilder v. Haughey, 21 Minn. 101, 106. Bell v. Wilson, 155 P. 625. Arp v. Jacobs, 27 Wyo. 800. Homestead laws are to be construed liberally. Towne v. Rumsey, (Wyo.) 35 P. 1026. The husband or wife has an interest in a homestead, even though title stands in the name of the other, and the right may be taken advantage of by either of them. Armitage v. Davenport, (Mich.) 31 N.E. 408. Rowe v. Kellog, 19 N.W. 957. Pritchett v. Davis, 101 Ga. 236. Bremseth v. Olsen, (N. D.) 112 N.W. 1056. It cannot concern the creditor whether the title is in the husband or wife. Hodson v. Van Fossen, 26 Mich. 68. Bachman v. Hurtt, 26 Wyo. 332. Plaintiff was not prejudiced by the order appealed from.

Before BLUME, C. J., KIMBALL, J., and BROWN, District Judge. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

BROWN, District Judge.

This case comes to this court on direct appeal, and by statute the parties remain as in the lower court with the words appellant and respondent, as the case may be, added. We shall refer to them as plaintiff and defendant as in the lower court.

Plaintiff secured judgment against the defendant, John Schuneman, in the District Court of Albany County, and after exhausting the available property in the county, caused execution to issue thereon directed to the sheriff of Laramie County and levied upon the residence property of defendants John Schuneman and wife, Elizabeth Schuneman, and sold the same thereunder bidding it in himself for the sum of $ 3,000. At the time of making the levy, the plaintiff filed an affidavit with the clerk of court of Albany County, setting forth the facts that the property proposed to be levied upon constituted the homestead of the defendants, and that it exceeded in value the sum of $ 2,500. See Section 6032, C. S. 1920. After the levy and before the sale Schuneman and wife conveyed this property by deed, without any consideration, to a third party who in turn at or about the same time, likewise without any consideration, transferred it to defendant, Elizabeth Schuneman. Neither at the time of the sale nor afterwards was the $ 2,500 provided by Sec. 6032 to be paid to the defendant, or owner of the homestead, in case the homestead is sold for more than $ 2,500, paid to defendants or either of them.

After the transfer of the property by mesne conveyances to the wife, the plaintiff seems to have abandoned his theory that the property was the homestead of the parties, and insisted upon the right to sell it as non-exempt property of the defendant, John Schuneman. The sale was confirmed by the court without having called to his attention the homestead character of the property, or the further fact that the $ 2,500 was not paid to the defendants as provided by the above section of the statutes. Thereafter the defendant, John Schuneman, demanded of the plaintiff the $ 2,500, which demand was refused. Schuneman and wife then tendered to plaintiff the sum of $ 527 the sum with interest for which the property sold above the $ 2,500 exemption, and demanded a certificate of redemption, which was also refused. Defendants then deposited with the County Treasurer the said sum of $ 527, and demanded a certificate of redemption. Thereafter, the defendant, John Schuneman, appeared in court by motion, asking that the confirmation of the sale be set aside, and that he be permitted to redeem the property by paying the excess over $ 2,500 with interest. The plaintiff objected to the jurisdiction of the court to hear this motion, it having been filed after the term at which confirmation was had. When the court indicated that he would hear the motion plaintiff brought an original action of prohibition in this court against the Judge of Second Judicial District to prevent him from proceeding further in the case. (36 Wyo. 290, 254 P. 691). Some of the questions involved in this controversy were settled in that case. After the alternative writ was cancelled, issue was joined on the motion of the defendant, a hearing had, and judgment rendered permitting the defendant to redeem the property. This action of the trial court is here for review, mainly on two questions:

1. Is the transfer of the property from the husband by mesne conveyances to the wife after levy an abandonment of the homestead?

The plaintiff levied upon the property in question on the theory that it was the homestead of the defendants. He complied with the requirements of the statute in reference to the levy upon and sale of the excess value in homestead property. After the defendants placed the title of the property in the wife, he seeks to abandon this theory and proceed on another theory--that the property is non-exempt property of the husband. This we think cannot be done. As a general rule a party will be required to proceed in the progress of a cause on a definite theory, and where it is permissible to proceed on one of several conflicting theories plaintiff will not be permitted to change this theory during the progress of the cause. The court in Toledo etc. R. Co. v. Levy, 127 Ind. 168, 26 N.E. 773, said:

"A complaint cannot be made elastic so as to bend to the changing views of counsel as the cause proceeds. It must proceed to the end upon the theory upon which it is constructed."

Plaintiff in his affidavit initiating the levy and sale alleged that the property was the homestead of the defendants. He will not be permitted to take a contrary position after the levy and sale. Herbert v. Wagg, 27 Okla. 674, 681, 117 P. 209, 212-213, and cases cited; Sears v. Hanks, 14 Ohio St. 298, 84 Am. Dec. 378.

By transferring title to the homestead in the wife, the husband does not thereby lose his homestead exemption therein as against his creditors. They are not injured. The property was exempt before the transfer and remains the homestead of the husband as well as the wife after the transfer to her. Homestead laws are remedial in character and should be liberally construed with a view of effecting their objects. We do not believe that a liberal construction of our constitution and the various statutes putting it in force will warrant the assumption that because the debtor and wife desire for convenience that the legal title to the homestead rest in her, that, then, neither of them is entitled to the exemption. While there is authority to the contrary the weight of authority is that the husband can claim a homestead exemption in the wife's property. 29 C. J. 852:

"The husband and wife are one in holding the homestead. Neither can have title in it adversely to the other. * * * It is a matter of indifference whether it be owned by one or the other, or by both together, or by each in parcels. * * * The transfer of the legal title from one to the other does not affect it." Waples on Homestead and Exemption, Ch. 4, Sec. 7, pp. 120-123.

The husband may claim a homestead, when rightfully in possession thereof, where the title is in the United States, mere possession being sufficient to support...