Ferguson v. Kumler

• Decision Date: 13 September 1880
• Citation: 27 Minn. 156,6 N.W. 618
• Parties: FERGUSON v KUMLER.
• Court: Minnesota Supreme Court

27 Minn. 156

6 N.W. 618

FERGUSONvKUMLER.

Supreme Court of Minnesota.

Filed September 13, 1880.

Appeal from judgment of McLeod county.

H. J. Peck and Bigelow, Flandrau & Clark, for appellant.

L. M. Brown, for respondent.

CORNELL, J.

In the special findings returned by the jury it is stated that, at the time of the levy, the respondent notified the sheriff that he claimed a homestead in the land whereon he resided with his family, but that he did not in any manner designate to the officer any particular part of the premises which he claimed as a homestead. There is no specific finding, however, in respect to the allegations of the answer, “that he, the said respondent, there and then notified the sheriff that he regarded and claimed 80 acres of said premises as his homestead, and did then and there demand of said officer that he be allowed to select such homestead therefrom, as provided by law; and that said 80 acres so selected be excepted from such levy, seizure, and sale; and that said officer then and there refused to allow said defendant to select such homestead, and then and there notified him that he should and would sell the whole of said premises under said execution.

In determining, therefore, respondent's motion for judgment, the truth of these allegations must be taken as established by the general verdict in favor of the appellant upon all the issues involved in the findings. Upon this state of facts the question presented for adjudication is whether the sale which was made upon the execution, in pursuance of the levy on the entire premises,-which the respondent, a married man, then occupied as an owner, claiming a homestead right therein, and on which he resided with his family in a dwelling-house situated thereon,-in total disregard of the existence of any homestead, was a valid sale, sufficient to transfer the title, and enable the appellant to recover the possession of said premises, or any part thereof, in this action.

In the consideration of this case on a former appeal, (25 Minn. 183-188,) it was held that it was not necessary for an execution debtor, in order to preserve his homestead exemption, to give to an officer about to make a levy a description of the premises claimed by him as a homestead, together with a notice that he was claiming them as such. In stating the reason for this ruling the court then said: “The statute gives the exemption absolutely, and without making the right to it dependent upon any affirmative action upon the part of the person claiming it towards an officer levying, or about to levy, upon it. In the second place, the exemption is not provided for the sole benefit of the owner of the land, if he be a married man. In such case the homesteadlaw is a family measure, * * and it is not competent for the husband alone, in any way, to effectually waive the exemption.”

If the positions thus taken are good, and the ruling there made is to stand, they are decisive of the question under consideration, and this the counsel for appellant seems to concede, for he asks us to review that decision as erroneous. His contention, in brief, is this: that the statute makes no provision for securing a homestead against forced sale on execution when the debtor is residing upon and occupying as a homestead a greater quantity of land than 80 acres, except upon the condition that he makes a selection, and defines by metes and bounds, within the prescribed limits, the particular tract which he regards as his homestead. Until this is done he has no homestead exempt from seizure and sale on execution. In other words, this fact of a selection by the debtor, and setting apart by metes and bounds, of the specific lands claimed as a homestead, is one of the tests and elements essential to the creation and existence of an exempt homestead under the statute.

This construction, in our opinion, is at variance with the manifest policy of the homestead law and its leading purpose, as evidenced by the language of the statute. The law originated in the wise and humane policy of securing to the citizen against all the misfortunes and uncertainties of life the benefits of a home not in the interest of himself, or, if a married man, of himself and family alone, but likewise in the interest of the state, whose welfare and prosperity so largely depend upon the growth and cultivation among its citizens of...