Alton Mercantile Co. v. Spindel
| Decision Date | 12 May 1914 |
| Docket Number | 3536. |
| Citation | 140 P. 1168,42 Okla. 210,1914 OK 209 |
| Parties | ALTON MERCANTILE CO. v. SPINDEL ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The homestead of a family, whether title to the same shall be lodged in or owned by the husband or wife, shall be reserved to every family in the state, exempt from attachment or execution, and every other specie of forced sale for the payment of debts.
Under section 1, art. 12, of the Constitution, and section 3346, Comp. Laws 1909, the homestead of a family, not in a city town or village, may consist of 160 acres of land, and may be owned by either husband or wife, or by both jointly.
When property has once been impressed with the homestead character, no act or omission on the part of the husband without the consent of his spouse, can result in an abandonment of the homestead by the family. The homestead is for the benefit of the entire family, and such joint interest is to be regarded as paramount to the rights of any individual member thereof.
An insane spouse is incapable of giving her free consent to an abandonment of the homestead, although confined in an insane asylum in another state.
Commissioners' Opinion, Division No. 1. Error from District Court Kingfisher County; James B. Cullison, Judge.
Action by the Alton Mercantile Company against George Spindel and Everet Spindel, partners as Spindel Bros. Judgment for defendant George Spindel, and plaintiff brings error. Affirmed.
F. L Boynton, of Kingfisher, and McKeever & Walker, of Enid, for plaintiff in error.
D. K Cunningham, of Kingfisher, for defendant in error.
RITTENHOUSE, C. (after stating the facts as above).
There are no disputed facts in this record. The only witness offered was the defendant George Spindel; and the sole question necessary for a complete determination of this case is whether the husband, who has an insane wife in another state, can by his own acts so conduct himself as to constitute an abandonment of the homestead without the consent of his wife.
Section 3346, Comp. Laws 1909, reserves to every family residing in the state a homestead, which shall consist of the home of the family, whether the title to the same shall be lodged in or owned by the husband or wife, and said section exempts such homestead from attachment or execution or any other specie of forced sale for the payment of a debt.
Section 3347, Comp. Laws 1909, defines a homestead of a family, not in a city or town, to consist of not more than 160 acres of land.
Sections 1 and 2, art. 12, of the Constitution, and the foregoing sections of the statute provide for the exemption of 160 acres of land not within a city or town, as a homestead for the family, which cannot be alienated or incumbered unless the instrument be subscribed by both husband and wife. The requirement of a joint act on the part of the husband and wife to affect the homestead is a provision for the protection of the children as well as for either parent, and the only exception to the rule is provided by section 3352, Comp. Laws 1909, where the husband and wife became hopelessly insane, a sale could be made by application to and upon order from the proper court.
The contention that George Spindel and his children occupied the premises as their homestead from the spring of 1905 until some time during the year 1907 is not disputed, nor is the fact that his wife was insane and confined in an asylum in Jacksonville, Ill., disputed. When George Spindel and his minor children moved upon this land in the spring of 1905, with the intention of making it their home, the premises became impressed with the homestead character, and no act or omission on the part of George Spindel, without the consent of his spouse, could result in an abandonment of the homestead by the family. The homestead is for the benefit of the entire family, and such joint interest is to be regarded as paramount to the rights of any individual member thereof. It was held in Morris v. Ward, 5 Kan. 239, that:
"No alienation of the homestead by the husband alone, in whatever way it may be effected, is...
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