Dieter v. Fraine
| Decision Date | 12 October 1910 |
| Citation | 128 N.W. 684,20 N.D. 484 |
| Court | North Dakota Supreme Court |
Rehearing denied November, 30, 1910.
Appeal from District Court, Walsh county; Honorable W. J. Kneeshaw J.
Action by plaintiff to determine adverse claims to real property. From a decree in favor of defendant, plaintiff appeals.
Judgment reversed, and the district court directed to enter judgment in plaintiff's favor.
Judgment reversed, and judgment entered in appellant's favor.
E. R Sinkler, for appellant.
Execution sale of homestead passes no title. Johnson v. Twichell, 13 N.D. 426, 101 N.W. 318; N.D. Rev. Codes 1905, § 5049; 2 Freeman, Executions, P 315; Thompson, Homestead & Exemption, 625; Kingman v. O'Callaghan, 4 S.D. 628, 57 N.W. 912.
In the absence of statutory or constitutional provisions, selection is unnecessary; occupancy is enough. Cook v. McChristian, 4 Cal. 26; Riggs v. Sterling, 60 Mich. 643, 1 Am. St. Rep. 554, 27 N.W. 705; Thomas v. Dodge, 8 Mich. 51; Kimball v. Salisbury, 17 Utah 381, 53 P. 1037; Anderson v. Stadlman, 17 Wash. 433, 49 P. 1070; Beecher v. Baldy, 7 Mich. 488.
Absence of head of family from the home still occupied by family is not abandonment. Meader v. Place, 43 N.H. 307; Chitty v. Chitty, 118 N.C. 647, 32 L. R. A. 394, 24 S.E. 517; Edwards v. Reid, 39 Neb. 645, 42 Am. St. Rep. 607, 58 N.W. 202; Quigley v. McEvony, 41 Neb. 73, 59 N.W. 767; Lindsay v. Murphy, 76 Va. 428; Phelan's Estate, 16 Wis. 77.
Even desertion of head of family, who remain on homestead, is not abandonment. White v. Clark, 36 Ill. 285; People v. Stitt, 7 Ill.App. 294; 15 Am. & Eng. Enc. Law, p. 658 and notes; Dearing v. Thomas, 25 Ga. 223; Warren v. Block, 1 Ky. L. Rep. 121; Drury v. Bachelder, 11 Gray, 214; Blandy v. Asher, 72 Mo. 27; Morrill v. Skinner, 57 Neb. 164, 77 N.W. 375.
Neither spouse can affect homestead rights of the other. Bremseth v. Olson, 16 N.D. 242, 13 L. R. A. (N. S.) 1170, 112 N.W. 1056, 14 A. & E. Ann. Cas. 1155; Morrill v. Skinner, 57 Neb. 164, 77 N.W. 375; Riggs v. Sterling, 60 Mich. 643, 1 Am. St. Rep. 554, 27 N.W. 705; Ring v. Burt, 17 Mich. 465, 97 Am. Dec. 200; First Nat. Bank v. Jacobs, 50 Mich. 340, 15 N.W. 500; Showers v. Robinson, 43 Mich. 502, 5 N.W. 988; Griffin v. Johnson, 37 Mich. 87; Ives v. Mills, 37 Ill. 73, 87 Am. Dec. 238; Walt v. Walt, 113 Tenn. 189, 81 S.W. 228; 3 Current Law, 1639; Mathewson v. Kilburn, 183 Mo. 110, 81 S.W. 1096.
Wife may maintain action to preserve the homestead. Adams v. Beale, 19 Iowa 61; Eve v. Cross, 76 Ga. 695; Mauldin v. Cox. 67 Cal. 390, 7 P. 804; Prey v. Stanley, 110 Cal. 423, 42 P. 908; Boling v. Clark, 83 Iowa 481, 50 N.W. 57; McKee v. Wilcox, 11 Mich. 358, 83 Am. Dec. 743; Andrews v. Melton, 51 Ala. 400; Rev. Codes 1905, § 5052; Comstock v. Comstock, 27 Mich. 97; 21 Cyc Law & Proc. 635; Ness v. Jones, 10 N.D. 587, 88 Am. St. Rep. 755, 88 N.W. 706; Linander v. Longstaff, 7 S.D. 157, 63 N.W. 775; McClure v. Braniff, 75 Iowa 38, 39 N.W. 171.
John H. Fraine and Gordon Christie, for respondent.
Unless head of the family, wife cannot assert the right of exemptions. Ness v. Jones, 10 N.D. 581, 88 Am. St. Rep. 755, 88 N.W. 708; Linander v. Longstaff, 7 S.D. 157, 63 N.W. 775.
The action out of which this appeal arises was brought by appellant to determine adverse claims to real property. The particular purpose of the action, as alleged in the complaint, is to set aside as null and void a sale upon execution, made at the instance of respondent, of two lots in the city of Grafton, and a sheriff's certificate of sale of the premises issued to respondent as purchaser, on March 18, 1907.
The record here consists only of the judgment roll. The evidence and exhibits offered were not brought up, and are not before us. The facts necessary to the determination of the appeal must, therefore, be taken from the findings of the court. From these it appears that appellant was the owner in fee of the lots in question, and for a period of about eleven years last past has continually owned and resided upon the premises with her husband and family, consisting of a daughter twenty-five years of age. The husband of plaintiff is alive, and is not in any manner mentally or physically incapacitated from caring and providing for his family, consisting of his wife and daughter, as aforesaid. On the other hand, he is physically able and competent to do so. He has not abandoned or deserted the plaintiff, or in any way relinquished his right to the headship of the family. He has been temporarily away from appellant off and on for two years last past, and out of the state of North Dakota most of the time, but during all of said time has been able-bodied, free from infirmity or sickness, and able and willing to support or assist in supporting his wife and family. Prior to the commencement of this action, he took up a claim of 160 acres of land in the state of Washington, under the desert land laws of the United States, and still holds and claims the same.
It further appears, from admissions of the pleadings and the findings of the court, that respondent is the holder of a judgment, obtained in an action against appellant and her husband upon a claim for services as an attorney in conducting the defense of a criminal prosecution of the husband; that respondent caused execution to issue on this judgment, and to be levied upon the premises occupied by appellant, and the same to be sold at execution sale; that at said sale he became the purchaser, and is now the owner of a sheriff's certificate of sale of the premises in controversy, dated March 16th, 1907, which certificate of sale has been filed for record in the office of the register of deeds in Walsh county and duly recorded; that the proceedings under the execution sale culminating in the certificate of purchase held by respondent are regular in form, and on their face convey to respondent title to the premises in question, subject only to appellant's right of redemption. Prior to the date of sale evidenced by this certificate, appellant made the claim in writing that the premises were exempt to her under the homestead laws of the state of North Dakota. Her husband did not join in this claim, nor has he at any time made a similar claim on his own behalf as head of a family.
The court finds as its conclusion of law that the husband of appellant has not, constructively or otherwise, been deposed from his prima facie headship of the family, and that plaintiff is not the head of a family within the meaning of the law providing for homestead exemption; that appellant is not entitled to claim the premises as a homestead, for the reason that she is not the head of a family within the meaning of the laws of this state; that the sheriff's certificate held by respondent is valid and sufficient, and conveys to him title to the lots in question subject only to a redemption by appellant as provided by law.
The district court, upon these findings and conclusions, ordered that judgment be entered in favor of the defendant, declaring that the sheriff's certificate mentioned in the pleadings operates to convey title in the premises to respondent, and that appellant is without claim thereto, which was done accordingly. The plaintiff appeals to this court, demanding a review and new trial of the entire case. Owing to the record presented here, however, we can only review the findings of fact, for the purpose of determining whether they support the conclusions of law and the decree entered by the trial court.
What is known as the homestead right is in this state provided by means of laws, "exempting from forced sale to all heads of families a homestead, the value of which shall be limited and defined by law." Constitution, § 208. The statute adopted in furtherance of this constitutional policy provides in broad terms that the homestead defined by law "shall be exempt from judgment lien, and from execution or forced sale, except as provided in this chapter." Rev. Codes, 1905, § 5049. The only exceptions in the chapter referred to are in favor of debts secured by mechanics' or laborers' liens for work or labor done, or material furnished, exclusively for the improvement of the same; debts secured by mortgage on the premises, executed and acknowledged by both husband and wife; debts created for the purchase thereof; and taxes accruing and levied thereon. Rev. Codes, 1905, § 5051. As against all other debts, not only the homestead, but the proceeds thereof in case of sale, are absolutely exempt from levy or seizure by a creditor. An execution for the enforcement of a judgment obtained upon a debt not within the classes enumerated may be levied upon the homestead only in case it appears, after due application to the court and an appraisement had, that the property claimed as a homestead exceeds in value the amount of the homestead exemption. Rev. Codes, 1905, §§ 5055-5064. The provisions of the Code of Civil Procedure relating to exemptions reiterated, in even stronger language, the declaration of unqualified exemption of the homestead from levy and sale for all debts not of exceptional character, in the following language: "Except as hereinafter provided, the property mentioned in this chapter is exempt to the head of a family . . . from attachment or mesne process, and from levy and sale upon execution, and from any other final process issued from any court." Then follows a classification of property declared to be absolutely exempt, including, in express language, "the homestead as created and defined and limited by law." Rev. Codes, 1905, § 7115- 7116. The only exception mentioned in this chapter to a claim of absolute exemption is to the effect that "no property shall be exempt from...
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