Bunker v. Coons

• Citation: 21 Utah 164,60 P. 549
• Court: Supreme Court of Utah
• Decision Date: 08 March 1900
• Parties: ALFRED BUNKER, RESPONDENT, v. JOHN W. COONS AND CONSOLIDATED IMPLEMENT CO., APPELLANTS

60 P. 549

21 Utah 164

ALFRED BUNKER, RESPONDENT, v. JOHN W. COONS AND CONSOLIDATED IMPLEMENT CO., APPELLANTS

Supreme Court of Utah

March 8, 1900

Appeal from the Sixth District Court, Sevier County, Hon. W. M. Mc Carty, Judge.

Action to set aside a sale on execution on the ground that plaintiff at the time of the levy and sale was the head of a family with whom he resided in the vicinity of the land, and that the proceeds thereof were and had been used for the support of himself and family; that the land constituted his homestead, and was exempt from levy and sale on execution. From a judgment for plaintiff, defendants appealed.

Affirmed.

W. F Knox, Esq., and C. W. Collins, Esq., for appellants.

Statutes which contain a provision that residence upon the land claimed as a homestead is necessary to make it the homestead of the person claiming the land as such, have generally been strictly construed; and, under a statute containing such a provision, residence upon the land is absolutely necessary to give the land claimed as a homestead the qualities and characteristics of a homestead. Revised Statutes, Utah 1898 Section 1154; Gammett v. Storrs, 49 P. (Utah), 642 Kimball v. Salisbury, 53 P. (Utah), 1037; id., 56 P. (Utah), 973; Greggs v. Bostwick, 33 Cal. 228; Prescott v. Prescott, 45 Cal. 58; Babcock v. Gibbs, 52 Cal. 629; Aucker v. Mc Coy, 56 Cal. 524; Dorne v. Howe, 52 Cal. 631; Pfister v. Eascey, 68 Cal. 572; Lubbock v. Mc Maun, 82 Cal. 228; Tromans v. Mahlman, et al., 27 P. 1094.

Mere intention to occupy land as a homestead does not give the land a homestead character, unless followed by actual occupancy, within a reasonable time. Leonora State Bank v. Peak, 44 P. (Kan.), 900.

At the time he signed the obligation to pay, being a promissory note, he also signed the paragraph waiving the exemption, and the waiver is based upon the same consideration upon which rests the liability to pay, the waiver should be as binding upon him as the obligation to pay Bowman v. Smiley, 72 Am. Dec. 738.

V. Rapp, Esq. for respondent.

The constitution of the State provides for the selection of a homestead by the head of a family which may consist of one or more parcels of land, together with appurtenances and improvements amounting to $ 1,500 in value. Constitution, Art. 22, Sec. 1.

Where the value of the premises is less than the statutory limit, its character as a homestead is manifest by its use and occupation, and the statute does not contemplate that the judgment creditor should reside upon it in order to give it the character of a homestead. Kimball v. Salisbury, 53 P. 1040.

And when there is no dwelling house upon the land claimed, then the only occupancy which can be required by the law is such use thereof for the benefit of the family as is generally made by the owners of lands not occupied as dwelling places. Kimball v. Salisbury, 56 P. 976.

No waiver of the homestead right could affect the interest of the dependent members of his family therein. Kimball v. Salisbury, 53 P. 1037; Dye v. Mann, 10 Mich. 297; Beecher v. Baldy, 7 Mich. 506.

MINER, J. BASKIN, J., concurs. BARTCH, C. J., concurs in affirming the judgment.

OPINION

MINER. J.

The plaintiff, Bunker, since 1890 was the owner of 30 acres of improved land without buildings thereon located at Annabella, Sevier County, of a value of less than $ 1,000. The defendant, the Consolidated Implement Company, obtained judgment against the plaintiff upon a promissory note given in payment for a wagon in January, 1895, and an execution issued thereon, which said execution was placed in the hands of the defendant Coons, who levied the same on the land and sold said land to the defendant, the Implement Company, in July, 1898. This action was brought to set aside the sale on execution on the grounds that the plaintiff at the time of the levy and sale was the head of a family with whom he resided in the vicinity of the land, and that the proceeds thereof were and had been used for the support of himself and family; that the land constituted his homestead, and was exempt from levy and sale on execution; that he intended to build upon said land when able, and use the same as a homestead for himself and family; that this family consisted of himself and aged mother who was dependent upon him for support.

Upon a trial of the case before the court, without a jury, the court found all the issues in favor of the plaintiff, and ordered the sale set aside. The defendants appeal.

The appellants contend that the evidence was not sufficient to justify the findings, because, 1st. The plaintiff did not actually live upon the land; 2d. That plaintiff was not the head of a family; 3d. That plaintiff's mother was not dependent upon him for support; 4th. That plaintiff was not a resident of Utah; 5th. That plaintiff waived his homestead right by a clause in the note providing that he waived all right to exempt property by virtue of the homestead exemption laws, and that the court erred in refusing to admit such waiver contained in the note in evidence.

Plaintiff testified in substance, that he resided at Annabella, Sevier County, Utah and had for many years; that for about ten years prior to the levying of the execution he had hired from his brother, a house about a half mile from the land in question, for a home for himself and mother, and that they had resided there to the time of the sale; that he lived there and supported his mother, and that she was dependent upon him for support; that he had paid the rent of the house; that he had rented the land in question on shares, and all the proceeds of the farm, consisting of lucern, oats, etc., were carried to his residence aforesaid for his mother's use during those years; that the lucern and grain raised was fed to cows and used up in her support; that the farm in question was worth less than $ 1,000, and that it was all the real estate he owned; that a few years previous he had purchased lumber to build a house on the land, but owing to misfortune he was obliged to sell the lumber, but that he always intended, when able, to build a residence upon the land for himself and mother to live in as a home; that he had a team and wagon, and could make more by teaming and renting the farm on shares; that the product of the land was not sufficient to support himself and mother without additional labor on his part, so that for the last six years he had been teaming from Milford, Utah to De La Mar, Nevada, whenever he could get work to do; that when out of work he went home to Annabella, and that he had no home except at Annabella, and that he paid the taxes on the farm and his poll tax in Annabella during the previous four years; that when at home he built ditches on the land and improved it by fencing; that during the time he was away teaming in Nevada, he sent his mother small sums of money at different times for her support; that he gave her orders on a store for goods and provisions and paid her bills; that he was 28 years old; that he was away from home freighting from 1894 to 1896, between Milford and De La Mar, Nevada, but was home a month of the time when his leg was broken; that most of the time during the last three years he had been away from home freighting, but came home several times during that period; that he had never voted in Nevada, although his name was signed to a registration blank; that he never took the oath nor authorized anyone to register him; that prior to the sale of the land notice was served upon the sheriff that the land was plaintiff's homestead.

Mrs. Bunker, the mother, aged 69 years, testified in substance, that the plaintiff lived in the house where she lived; that plaintiff supported her and sent her money at different times, and gave her the proceeds of the land to live upon, as well as orders on a store. That he was away from home a great deal freighting in Utah and Nevada, but was home part of the time; that plaintiff said that he intended to keep this land for her support; that this was arranged between them.

Plaintiff's declaration of a homestead covering the land in question was recorded in Sevier County, and was received in evidence. Other evidence was given in corroboration and also in contradiction of plaintiff's testimony.

From the whole record we conclude that the testimony supported the findings and judgment. It clearly appears that the plaintiff was the head of a family and provided for the support of his aged mother from the proceeds of the land in question, and from his own labor; that such land was selected and used as a homestead and for the support of his family; that notice was served upon the sheriff before the sale that plaintiff claimed the land as a homestead, and a declaration of the selection of such land as a homestead, was duly recorded.

The temporary absence of the plaintiff from his residence for a year or two at one time, when attending to his occupation or business out of the State, in order to earn money with which to assist in providing for his family, coupled with a bona fide intention to return and reside there and to build a house upon the land, and the fact that he made visits home during such absence, did not constitute an abandonment of the homestead right.

The testimony clearly shows that plaintiff's residence was at Annabella, Utah; that when he left that place to obtain work his bona fide intention was to return there, and he did so return; that he never voted in Nevada, or gained a residence there.

Sub-divs. 1 and 4, Sec. 806 Rev. Stat. 1898.

The fact that there was no dwelling house upon the homestead, and that plaintiff's mother resided with him one-half mile therefrom did not deprive him of his homestead right, when it appears that the...