De Fontenay v. Childs

• Decision Date: 25 February 1933
• Docket Number: 6995.
• Citation: 19 P.2d 650,93 Mont. 480
• Parties: DE FONTENAY v. CHILDS et al.
• Court: Montana Supreme Court

19 P.2d 650

93 Mont. 480

DE FONTENAY v. CHILDS et al.

No. 6995.

Supreme Court of Montana

February 25, 1933

Appeal from District Court, Lewis and Clark County: W. H. Poorman Judge.

Suit to quiet title by Thille De Fontenay against Eversley Childs and others. From the judgment for plaintiff, named defendant appeals.

Affirmed.

Hall & McCabe, of Great Falls, for appellant.

J. R Wine, of Helena, for respondent.

ANGSTMAN Justice.

This is a suit to quiet title to a tract of land in Lewis and Clark county. The cause was tried to the court sitting without a jury, resulting in judgment for the plaintiff. Defendant Childs has appealed from the judgment.

The facts of the case are these: On April 27, 1929, plaintiff purchased the land from Alford E. Burtch. At the time of the purchase plaintiff was a married man living with his wife and three minor children. After the purchase plaintiff built houses and cabins upon the land for the purpose of operating it as a dude ranch. In September, 1929, Childs brought an action in the district court of Cascade county aganst De Fontenay to recover upon a loan made by him to De Fontenay evidenced by promissory notes, and on September 19 levied a writ of attachment on the property involved. On March 3 1930, judgment in the sum of $20,000 and costs was entered in that action in favor of Childs and against De Fontenay. On October 25, 1929, De Fontenay filed in the office of the county clerk of Lewis and Clark county a declaration of homestead on the property. On March 5, 1930, Childs filed a transcript of his judgment in the office of the clerk of the district court of Lewis and Clark county and caused execution to be levied upon the property. When the declaration of homestead was filed, plaintiff was living on the property with his second wife and three minor children of his first wife. His first wife had obtained a decree of divorce on March 21, 1929. On July 17, 1931, his second wife died. Testifying regarding his occupation he said: "I worked around a little bit; rented out a few horses; served a few meals over there and camped a few people around there and grazed a little stock, horses."

The evidence shows that, when the declaration of homestead was filed, he had thirteen head of horses grazing on the property, but at the time of the trial he had but three head. The evidence also shows that adjoining the land here involved was a 160-acre government homestead which plaintiff had filed upon, and on which his horses also grazed, but as to this he said: "I have no claim there now; the time was up."

The defendant Monarch Lumber Company, after the declaration of homestead was filed, foreclosed a mechanic's lien on part of the property covered by the declaration, and defendant Winifred Arnald became the holder of the certificate of title to that part of the property, and as to it there is no controversy here.

The only issue presented by the appeal is whether plaintiff's declaration of homestead takes precedence over the judgment of defendant Childs. At the outset it should be said that the filing of the declaration of homestead after the writ of attachment had been levied does not preclude plaintiff from claiming the homestead as exempt, if otherwise entitled to do so. Wall v. Duggan, 76 Mont. 239, 245 P. 953.

On behalf of defendant Childs, it is contended that plaintiff is not entitled to claim the property as a homestead because the land is not "used for agricultural purposes."

Section 6945, Revised Codes 1921, provides that "the homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated, selected as in this chapter provided."

Section 6968 in part provides that "homesteads may be selected and claimed: 1. Consisting of any quantity of land not exceeding one hundred and sixty acres used for agricultural purposes, and the dwelling-house thereon and its appurtenances, and not included in any town plot, city, or village. *** Such homestead, in either case, shall not exceed in value the sum of two thousand five hundred dollars."

By chapter 126, Laws of 1931, section 6968 was amended to embrace 320 acres used for agricultural purposes.

These statutes were enacted pursuant to the command of section 4, article 19, of the state Constitution, which provides that "the legislative assembly shall enact liberal homestead and exemption laws." They should be liberally construed for the benefit of the homestead claimant. Oregon Mortgage Co. v. Dunbar, 87 Mont. 603, 289 P. 559, 73 A. L. R. 113, and cases there cited; Lindley v. Davis, 7 Mont. 206, 14 P. 717.

The term "agriculture" includes in its definition the raising and care of live stock. 2 C.J. 988; Davis v. Industrial Commission of Utah, 59 Utah, 607, 206 P. 267. The Supreme Court of Wisconsin in Binzel v. Grogan, 67 Wis. 147, 29 N.W. 895, 897, had before it a statute practically identical with ours. Like ours, the Wisconsin statute there considered required that the land selected should be "used for agricultural purposes." In that case the only suggestion that the land was used for agricultural purposes was that the owner kept and fed his horse on the land. The court, in holding that this was sufficient to show that the land was used for at least one "agricultural" purpose, said: "This brings us to the question, do the words 'used for agricultural purposes,' as employed in the statute, exclude the appellant from the benefit of the homestead exemption therein given? To ascertain the literal meaning of the words 'agricultural purposes' resort must be had to the lexicons for definitions of 'agriculture.' Webster tells us (accurately enough, no doubt) that it is 'the art or science of cultivating the ground, especially in fields or in large quantities, including the preparation of the soil, the planting of seeds, the raising and harvesting of crops, and the rearing, feeding, and management of live-stock; tillage; husbandry; farming.' The defendant did none of these things on his Sullivan land, unless, perhaps, he kept and fed his horse there; and, if the literal construction of the statute prevails, he had no homestead rights in the property, unless the same were saved by the keeping and feeding of the horse on the premises. If that was one of the purposes for which he used the premises, it must be conceded, we think, that they were used for one 'agricultural purpose,' at least."

Following the rule of liberal construction, we hold that plaintiff was...