Cook v. Higley

• Decision Date: 28 June 1894
• Docket Number: 472
• Citation: 37 P. 336,10 Utah 228
• Court: Utah Supreme Court
• Parties: PHYLLIS M. COOK, APPELLANT, v. GEORGE HIGLEY, JR., AND ANOTHER, RESPONDENTS

37 P. 336

10 Utah 228

PHYLLIS M. COOK, APPELLANT, v. GEORGE HIGLEY, JR., AND ANOTHER, RESPONDENTS

No. 472

Supreme Court of Utah

June 28, 1894

APPEAL from the District Court of the Fourth Judicial District. Hon James A. Miner, Judge.

Action by Phyllis M. Cook against George Higley, Jr., and another to recover possession of a homestead. The court sustained defendants' demurrer, and plaintiff electing to stand by her complaint, judgment was entered, from which she appeals.

Affirmed.

Mr. A R. Heywood, for appellant.

Messrs Evans & Rogers, for respondents.

BARTCH, J. MERRITT, C. J., and SMITH, J., concur.

OPINION

BARTCH, J.

The court below sustained a demurrer to the complaint in this case on the ground that it does not state facts sufficient to constitute a cause of action. The plaintiff elected to stand by her complaint, which was thereupon dismissed, and the costs taxed against her. The only material question raised in the record by this appeal is whether, in a case where the husband conveys, by deed, premises occupied by himself and family as a homestead, without being joined in the conveyance by the wife,--the same being against her will,--the wife is entitled to the possession of, and to occupy as a home for herself and family, the premises thus conveyed, during the term of her life, as against the rights of the grantee of the husband.

There are no homestead estates at common law. Such estates are created, and can exist only by statute. In this territory there is no separate and independent homestead law. The only statutory provision creating homestead rights, and which is decisive of the rights of the plaintiff, is found in section 3429, subd. 11, Comp. Laws Utah 1888, and reads as follows: "If the debtor be the head of a family, there shall be a further exemption of a homestead, to be selected by the debtor, consisting of lands, together with the appurtenances and improvements thereon, not exceeding in value the sum of one thousand dollars, for the judgment debtor, and the further sum of five hundred dollars for his wife, and two hundred and fifty dollars for each other member of his family. If the homestead selected by the debtor, is of greater value than is exempted under this section, it shall be optional with the judgment debtor to permit the same to be partitioned or to be sold, and to receive in money the value of the homestead, as provided in this section. If the debtor so elect, the homestead may be sold, as other lands are sold, on execution, and, after paying the debtor the value of the homestead, the balance of the money shall be applied upon the judgment,"--and then provides how the sale may be effected under the execution, and for the disposition of the money, etc.

An examination of this statute reveals no intent on the part of the legislature to restrain the debtor from alienating the homestead. It merely provides that if he be the head of a family this homestead shall be protected by exemption from execution, to the extent therein set forth. This right of the debtor thus to preserve a home for his family is inviolate and absolute. If, however, he chooses to sell and abandon it there appears to be no provision of law which will prevent him from so doing, even if the wife refuse to join him in the conveyance. The statute law of this territory expressly provides that all property acquired and owned by either husband or wife may be held, managed, controlled, and in any manner disposed of by the one so owning or acquiring, without...