Grace v. Grace

• Decision Date: 24 November 1905
• Citation: 96 Minn. 294,104 N.W. 969
• Parties: GRACE v. GRACE
• Court: Minnesota Supreme Court

96 Minn. 294

104 N.W. 969

GRACE

v.GRACE

Supreme Court of Minnesota.

Nov. 24, 1905.

Appeal from District Court, Ramsey County; Wm. Louis Kelly, Judge.

Action by Elizabeth Grace against John Grace. Judgment directed for defendant, and plaintiff appeals. Affirmed.

Syllabus by the Court

A husband and wife had for many years occupied as a homestead premises which from their nature were not capable of partition by allotment in kind. As a part of settlement in divorce proceedings, the husband deeded through a third person an undivided half interest therein to his wife, and the wife continued for some time to live with him on the premises as a homestead. Held, the wife cannot, upon leaving him for alleged valid justification, acquire the right to partition the premises still occupied by him as a homestead.

Neither husband nor wife can dispose by sale or conveyance of a homestead right without the express consent of the other. What meither is able to do directly, neither will be permitted to do indirectly by sale on partition. S. E. Day, S. C. Olmstead, and C. E. & J. C. Otis, for appellant.

Durment & Moore, for respondent.

JAGGARD, J.

Substantially in the language of appellant, the issues and facts in this case are as follows: The action is one for partition of premises described in the complaint by a sale thereof, for the reason that they could not from their nature be partitioned by allotment in kind. The parties to the action are, and have been for 30 years past, husband and wife. For many years prior to the fall of 1903, they lived together therein and occupied the same as the homestead of the defendant, in whom title stood. In the fall of that year, the plaintiff commenced an action against the defendant for a legal separation on the ground of cruel and inhuman treatment. Pursuant to an amicable arrangement, the defendant made over of her certain personal property of the value of $2,500, and through a third person caused to be conveyed to her title to an undivided half interest in the homestead, and the plaintiff took up her abode with her husband on the premises in October, 1903. She there lived with him as his wife until the following August, but left the defendant and abandoned the premises as her home for the alleged reason that the defendant renewed his improper conduct towards her, in November of the same year plaintiff brought this action. After issue joined both parties moved for judgment on the pleadings. The court directed judgment for the defendant. From that order and other proceedings this appeal was taken.

The contention of the plaintiff is that the wife's undivided half interest was held by her free from any present vested and completed right of her husband; that the husband's right in an undivided part of the premises is not paramount, but is subordinate, to the legal title in the plaintiff, owning the other undivided interest; that the wife, having abandoned the premises for homestead purpose, may compel partition in the same manner as a stranger might; that the husband's homestead right is of necessity subject to the rights of the co-tenant; and that where a tenant in common has homestead rights, and partition in kind between him and a co-tenant is impracticable, a sale of the whole may be had, but the homestead attaches to and protects the proceeds. To that end he cites Swandale v. Swandale, 25 S. C. 389;Jenkins v. Volz, 54 Tex 636. It is true that this court has held that ‘the right initiate and inchoate which a husband or wife has in a statutory homestead owned by his or her spouse is not usually distinguishable from the right held by him or her in the real property belonging to the other and occupied by a homestead. The homestead right and interest is conditional. * * * The interest of a husband in his wife's homestead, while she is living, seems to be less than the right of the wife in his homestead. She may abandon it at will. If she should remove therefrom, we are not advised of any statute which would give the husband the right to remain thereon or to assert any claim to the same as a homestead. He would then be compelled to secure a homestead for himself or to go without. The rights of the wife in her husband's homestead are recognized by section 5521, Gen. St. 1894, by which homestead rights are fixed in this state; but the rights of the husband during the life of his wife in her homestead are not referred to. They seem to be wholly ignored. * * *’ Hamilton v. Village of Detroit, 85 Minn. 83, 88 N. W. 419. It is also true that in many cases it has been held by this court that ‘the clearly declared policy of the statute in respect to the relation of husband and wife is that the latter can, in her own name in any form of action, sue the former to enforce any right affecting her property, the same as if he were a stranger.’ Gillespie v. Gillespie, 64 Minn. 381, 67 N. W. 206;Frankel v. Frankel, 73 Am. St. Rep. 275, note; Spencer v. St. Paul & S. C. Ry. Co., 22 Minn. 29. It may be conceded for the purposes of this case, but for such purposes only, that a wife owning real estate, as tenant in common with her husband, can maintain partition against him. Moore v. Moore, 47 N. Y. 467, 7 AM. Rep. 466. But see, contra, Howe v. Blanden, 21 Vt. 315.

The law and the reason of the law, however, deny the ability of a wife by leaving her husband to acquire the right to compel partition of her husband's homestead, in which she has an undivided half interest and which she occupied with him as a homestead. A homestead can be owned and occupied by husband and wife as tenants in common, Lozo v. Sutherland, 38 Mich. 68. There may be a homestead right in an undivided interest in premises. Kaser v. Haas, 27 Minn. 406, 7 N. W. 824; 25 Cent. Dig. § 121, cols. 2245, 2246. In this case, accordingly, defendant had at least a homestead interest in his undivided half of the premises (Riggs v. Sterling, 60 Mich. 643, 650, 27 N. W. 705,1 Am. St. Rep. 554), although it may well be doubted whether the homestead rights of the husband are limited to that interest Ehrck...