Barton v. Drake

• Citation: 21 Minn. 299
• Parties: THOMAS BARTON & wife <I>vs.</I> ELIAS F. DRAKE.
• Decision Date: 11 January 1875
• Court: Minnesota Supreme Court

21 Minn. 299

THOMAS BARTON & wife vs. ELIAS F. DRAKE.

Supreme Court of Minnesota.

January 11, 1875.

On February 10, 1870, the plaintiff Thomas Barton was the owner of the southeast quarter, southwest quarter, section 11, T. 28, R. 23, containing forty acres, and also of five and one-half acres in section 14, adjoining the former tract on the west. For five years prior to that date, Barton, with his wife (co-plaintiff in this action) and family, had resided on this land, and continue so to reside. Barton also owned nineteen lots in Cottage Lots Addition to St. Paul, according to the recorded plat, comprising about five acres, and enclosed with a portion of the forty acres within one fence. During all this time, Barton had no other residence, and owned no other land in this state.

On February 10, 1870, Barton, through an agent appointed in writing, entered into a written contract with Drake for the sale and conveyance of all the lands above mentioned; but his wife had no part in the transaction, and did not sign the written authority to the agent. Barton having refused to perform the contract, Drake brought suit against him in the court of common pleas for Ramsey county for a specific performance, Mrs. Barton not being made a party to the suit. The only fact in controversy in that action was the agent's authority to make the contract, and on November 2, 1871, Drake had judgment that Barton convey the premises to him, within thirty days after service of a copy of the judgment, and upon compliance by Drake with the directions of the judgment, as to payments, etc. The judgment further provided that, upon such compliance by Drake, he should be entitled to possession, and to the process of the court to obtain it; that unless Barton should, within thirty days after service of a copy of the judgment upon him, stand ready and willing to convey, he should be deemed to be in default, and to have refused to comply with the judgment; and that in case of such default or refusal on Barton's part, the judgment should be a lien on the premises, until he should comply with its provisions, or until the further order of the court.

On February 29, 1872, the limits of the city of St. Paul were so extended as to include all the land above described, except the five and one-half acres.

In March, 1873, Barton and wife brought this action in the same court, alleging that the written authorization to the agent, the contract, and the judgment are void, for the reason that the land was Barton's homestead, and his wife did not sign either the contract or the authorization; that all of them — and particularly the judgment — form a cloud on their title to the land, and impair its value; and that Drake threatens to institute proceedings under the judgment to disturb their possession. Judgment is demanded that the two written instruments and the judgment be adjudged to be void, and to form no lien on the lands, and for general relief. The action was tried before Hall, J., who found the facts as above stated, and ordered judgment in accordance with the prayer of the complaint, except as to the nineteen lots. Judgment was entered accordingly, and defendant appealed.

E. C. Palmer, for appellant.

Lyman C. Dayton and Gilman, Clough & Lane, for respondents.

YOUNG, J.

It is contended that at the time of the making of the contract with Drake, for the specific performance of which the suit of Drake v. Barton was brought, and at the time of the rendition of the judgment in that action, the 45 1-2 acres, as to which it is now sought to set aside that judgment, and discharge its lien, were not the homestead of the plaintiff Barton, within the meaning of Gen. Stat., ch. 68, § 1, for the reason that no specific property had been selected by him as a homestead. But this tract was within the statutory limit (80 acres) of the quantity of land which may be held as a homestead, and Barton, with his family, had for many years actually resided, and then resided upon it; and during all this time, he had no other residence in this state. By occupying this land as his homestead, i. e., as his dwelling-place, (Kelly v. Baker, 10 Minn. 154,) Barton made the only selection he could make, or could under the statute be required to make, in a case where the tract occupied as a residence, and claimed as a homestead, is less than the amount allowed by statute. Beecher v. Baldy, 7 Mich. 488, decided under a constitutional provision in this respect identical with our statute, is direct authority, (if authority were needed,) in support of this conclusion. And see Thomas v. Dodge, 8 Mich. 51.

It is further insisted that the homestead law itself is unconstitutional, and several grounds are stated by the defendant's counsel in support of this proposition. The learned counsel has doubtless taken this position in good faith, relying on the soundness of the arguments by which he seeks to sustain it. Were this a new question, we should, in accordance with our usual custom, state the reasons which lead us to the conclusion that the position is wholly untenable, and the arguments radically unsound. But this statute was originally enacted at the first session of the state legislature, (Laws 1858, ch. 35,) in obedience to an express mandate of the constitution, art. 1, § 12. It has stood unchanged upon the statute book during almost the entire period of the existence of Minnesota as a state. Its validity has been tacitly assumed in repeated decisions of this court and was expressly affirmed, after argument and consideration, in the case of Cogel v. Mickow, 11 Minn. 475. It is true that some of the grounds of objection now urged do not seem to have been presented to the court in that case; but even if we had any doubt of the validity of the law, as against these objections, we should refuse to entertain a question, which, since the judgment in Cogel v. Mickow, ought to be considered as laid at rest forever. To treat this question as open, and decide it as res integra, would be to admit the possibility of a future overruling, not only of Cogel v. Mickow, but of other cases in which statutes embodying the settled policy of the state, in matters of great public concern affecting the entire community, have been solemnly adjudged to be valid; decisions which have been acquiesced in and acted upon for many years, and have become rules of property, to question which is to throw a cloud on innumerable titles. Such decisions are and ought to be absolutely final.

The second section of the Homestead Act, (Gen. Stat., ch. 68,) provides that any "mortgage or other alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same," etc. It is objected that this section is not germane to the subject of the act, which is, to provide for the exemption of a homestead from seizure and sale on execution or other process; and that, in respect of this section, the act is repugnant to § 27, art. 4, of the constitution, which provides that "no law shall embrace more than one subject, which shall be expressed in its title." But ch. 68, Gen. Stat., is identical with the law of 1858 before referred to, except that the original act contained additional provisions relating to the exemption of personal property, and in Tuttle v. Strout, 7 Minn. 465, the act of 1858 was held to be not open to objection on this ground. And we think it clear that it is entirely competent for the legislature, (in the absence of any constitutional restriction,) to prohibit the alienation of a homestead by a husband, without the wife's signature to the deed, (Barker v. Dayton, 28 Wis. 367,) and that such a restriction upon the alienation of the homestead finds its natural and appropriate place in the statute entitled "Homestead Exemption," which authorizes the exemption of a homestead, and regulates the mode in which such homestead may be acquired and enjoyed.

The act of March 10, 1860, (Laws 1860, ch....