Ball v. Houston

• Decision Date: 04 September 1901
• Citation: 66 P. 358,11 Okla. 233,1901 OK 54
• Parties: WILLIAM T. BALL et al. v. A. C. HOUSTON et al.
• Court: Oklahoma Supreme Court

1901 OK 54

66 P. 358

11 Okla. 233

WILLIAM T. BALL et al. v. A. C. HOUSTON et al.

Supreme Court of Oklahoma

Decided: September 4, 1901

Error from the District Court of Logan County; before Jno. H. Burford, Trial Judge.

Syllabus

¶0 HOMESTEAD EXEMPTION-- Occupancy is Essential to the existence of the Homestead Right. For the purpose of its creation or inception the occupancy must be actual, but when the premises have become invested with the homestead character, and the homestead has been once acquired, a constructive occupancy may be sufficient to retain it, and it will not be lost by a temporary absence with no intention of abandonment. The statute exempts only the homestead in fact, the place of the home; it does not undertake to exempt a contemplated future homestead, and therefore the mere intention to occupy the premises at some future time as a home, without actual occupancy, is insufficient to impress upon them the homestead character.

Cotteral & Hornor, for plaintiffs in error.

Dale & Bierer and Geo. S. Green, for defendants in error.

The material facts in this case are as follows: In June, 1899, the plaintiff in error, defendant in the court below, being the head of a family, bought certain unimproved real estate, being the same involved in this action, situated in the city of Guthrie, Oklahoma territory, for the purpose, as he alleges, of making thereon a home for himself and family. In the same month he employed his co-defendant, Brickner, to build thereon a house; Brickner bought the materials therefor from the defendant in error, Houston; the gross amount of such material was five hundred and seventy-six and 9-100 dollars ($ 576.09), of which all was paid except a balance of ninety and 21-100 dollars ($ 90.21), which remained unpaid at the commencement of this suit.

The case was tried in the district court of Logan county, Oklahoma, and a judgment rendered in favor of the plaintiff, and a decree giving a lien for the amount against the real estate described in the petition. Motion for a new trial was made and overruled, exceptions saved, and the case is brought here for review.

IRWIN, J.:

¶1 The first error assigned and urged for a reversal of this case is, that the evidence fails to show any contract with the owner of the real estate or his agent by the plaintiffs claiming the lien, and consequently the lien should have been disallowed. In support of this, counsel for plaintiff in error cite the case of Lumber Company v. Lobsitz, 4 Okla. 355; but we think an examination of the case at bar and the case cited will show a great difference in the facts of the two cases.

¶2 In the case at bar it is alleged, and not denied, that Ball entered into a contract with Brickner to build a house on the premises described, and that Houston by his agent entered into a sub-contract with Brickner to furnish the material for said house, which, we think, brings the case strictly within the terms of the statute.

¶3 In the case cited the party seeking the lien is alleged to be a joint party with one Perkins, who contracted in writing to build the house for the owner of the premises and furnish the material, and to do the work in a workmanlike manner, and to warrant the material. The party claiming the lien furnished the materials to their joint partner in the contract; afterward the party claiming the lien repudiated and denied the authority of their agent to make the contract, and the court held that as the authority of the agent was repudiated by his principal, then there was no contract between the parties seeking the lien, and the party owning the premises, and for whom the house was built, and consequently no lien attached, and in this the case differs materially from the case at bar, and consequently is not authority to be followed in this case.

¶4 The second and only remaining assignment of error is, that as the defendant, Ball, had purchased the premises in question for the purpose, and with the intention, of making a home thereon for himself and family, it was exempt as a homestead, notwithstanding the fact that he had not actually occupied the same, and some very respectable authorities are cited in support of this position, but under the peculiar language of our statute we think the weight of reasoning and authority is against this position.

¶5 The language of our statute is, "that the same shall be used as a home for the family."

¶6 Webster defines the word "use" to mean: "The act of employing anything, or of applying it to one's service; the state of being so employed or applied; application; employment; conversion to some purpose; to make use; to put to use; to employ; to derive service from; to use; to avail one's self of; to put to a purpose."

¶7 There seems to be a distinction between the word "use" and the word "occupy." "Occupy" means "to take or hold possession of; to hold or keep for use; to possess; to use; to hold possession; to be an occupant."

¶8 We are aware that the popular idea of a homestead is uniformly associated with that of the occupancy of the place so designated either in the past, the present or the future. The nature of the occupancy by which land may be impressed by the homestead character should always be carefully distinguished from the possession such as may be sufficient to serve as evidence of notice of title in the owner. The latter may be constructive, while the former must in every instance be actual in the sense that it should not depend upon paper evidence, the mere erection of improvements, the payment of taxes, or the exercise of personal control over the property to be affected.

¶9 Mr. Thompson in his work on homestead exemptions, section 245, says:

"The chief reason why actual occupancy is insisted upon as a condition to the exemption of the homestead, is, that it may serve to notify the world that it is the place claimed by the owner as exempt; that such owner may not obtain credit upon the strength of his ownership of lands subject to the exemption, and so, by concealing its real character, pervert the beneficent provisions of the statute into an adjunct to the practice of fraud and deceit upon those persons who are disposed to give him credit relying upon his apparent solvency."

¶10 In the case of Christie v. Dyer, 14 Iowa 438, Judge Wright, in pronouncing the opinion of the court, says:

"Until such occupancy, the proposed creditor cannot know what it

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