Greenshaw v. Brown

• Decision Date: 23 October 1923
• Docket Number: Case Number: 12087
• Citation: 96 Okla. 11,1923 OK 823,219 P. 934
• Parties: GREENSHAW v. BROWN.
• Court: Oklahoma Supreme Court

1923 OK 823

219 P. 934

96 Okla. 11

GREENSHAW v. BROWN.

Case Number: 12087

Supreme Court of Oklahoma

Decided: October 23, 1923

Syllabus

¶0 Homestead--Exemption for "Family" and "Survivors." Although under the provisions of the Constitution and statutes of Oklahoma, the homestead of the family is exempt from attachment, the right to exemption cannot originate without the existence of a family--of a household consisting of more than one person--yet, when the homestead character has once attached, it may persist for the benefit of a single individual who is the sole surviving member of the family. The exemption, however, does not extend any further than to the immediate members of the family; in other words, it does not extend further than to the surviving husband or wife and their minor children.

Geo. L. Zink, for plaintiff in error.

Rummons & Hughes, for defendant in error.

MASON, J.

¶1 This action was commenced by the plaintiff in error, J. J. Greenshaw, as plaintiff, against the defendant in error, L. Brown, in the district court of Kiowa county, to recover damages for assault alleged to have been made by the defendant with a double-barreled shotgun upon the plaintiff. In aid of suit, an attachment was sued out and levied upon real estate belonging to the defendant, upon the grounds that the damages for which the action was brought were for injuries arising from the commission of a felony, or a misdemeanor. The defendant filed a motion to dissolve the attachment upon the ground that said property attached was the homestead of the defendant, and, under the law, was exempt from execution or attachment. Said motion to discharge the attachment was heard upon the following stipulation of facts:

"It is stipulated and agreed by and between counsel for the parties on motion to dissolve attachment herein, on the ground that the real estate attached is the homestead of the defendant, L. Brown, that the tract of land seized in the attachment, as to title thereof, was vested in L. Brown by patent from the United States government, he having originally filed upon the land, and proved it under the federal homestead law; that at the time that he filed upon the land he was a married man, having a family; that the real estate seized in the attachment--that the defendant and his family resided upon the real estate seized in the attachment, and that the wife of the defendant, L. Brown, died some five or six years ago; that since the death of his said wife the defendant has resided upon the land in controversy, but that he alone has resided upon the land, and that his children who formerly constituted his family, or a part of his family, are all of age and all maintain homes of their own and do not live with the defendant, L. Brown; and that said L. Brown has at all times claimed the land as his homestead, and that he has no other homestead or place of residence, and has not had since the entry of this land."

¶2 The court sustained said motion, for the reason that said lands constituted the homestead of the defendant, and dissolved the attachment, to which action of the court the plaintiff excepted. Motion for new trial was filed on the same day and overruled by the court, to which action of the court the plaintiff excepted, and has duly perfected his appeal to this court. For reversal, the plaintiff in error assigns three specifications of error, all of which are presented under the single proposition of whether or not the land seized under the attachment in this case was exempt from seizure under the homestead law of the state of Oklahoma. In other words, the sole question presented for our consideration is, "Does the right to claim as exempt from attachment or execution a tract of land as a homestead, where the title is in the debtor, depend on the existence of a family?" If so, the contention of the plaintiff is well taken and the action of the trial court should be reversed. In support of this contention, counsel for plaintiff in error cites sections 1 and 2, article 12, of the Constitution of Oklahoma, as follows:

"Section 1. The homestead of any family in this state, not within any city, town, or village, shall consist of not more than one hundred and sixty (160) acres of land, which may be in one or more parcels, to be selected by the owner. * * *

"Section 2. The homestead of the family shall be, and is hereby protected from forced sale for the payment of debts, except for the purchase money therefor or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon. * * *"

¶3 The remaining portion of this section of the Constitution prohibits the owner, if married, from selling the homestead without the consent of his or her spouse, given in a manner as prescribed by law, and contains a proviso that nothing under article 12 shall prohibit any person from mortgaging his homestead, the spouse, if any, joining therein, nor prevent a sale thereof on foreclosure to satisfy any such mortgage. He then cites section 6595 of the Comp. Okla. Stat. 1921:

"The following property shall be reserved to the head of every family residing in the estate exempt from attachment or execution and every other species of forced sale for the payment of debts, except as hereinafter provided: First: The homestead of the family, which shall consist of the home of the family, whether the title to the same shall be lodged in or owned by the husband or wife."

¶4 The remainder of the section describes other property that is so reserved exempt. He then cites section 6597, Comp. Stat. 1921, which is, in fact, a reiteration of section 1, art. 12, of the Constitution. Counsel for plaintiff in error then cites Betts et al. v. Mills, 8 Okla. 351, 58 P. 957, wherein this court held as follows:

"The declaration of section 1300 of the Statutes of 1893, concerning the 'administration of estates of decedents' by the probate court, that 'Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law,' does not support the contention that any single survivor of the family may be entitled to the possession of the property as a homestead, unless such survivor is 'the head of a family.'"

¶5 In this case the facts were very similar to those in the instant case, and it is contended that the rule therein announced, as applied to similar facts, should be followed and readopted, although it is admitted that Betts v. Mills, supra, is overruled by the case of Holmes v. Holmes, 27 Okla. 140, 111 P. 220, wherein the court held as follows:

"When a husband dies seized in fee of land occupied and used by himself and family as a homestead, his surviving wife, although without children, is entitled, by reason of section 1607, Wilson's Rev. & Ann. St. 1903, as against his heirs, to occupy and possess the whole of such homestead as long as she preserves its homestead character by maintaining a home thereon.

"Where a wife occupies as a home the homestead set apart by order of the probate court from the estate of her deceased husband for the use of herself as a home, the same is not liable to partition at a suit of the heirs of the deceased husband."

¶6 There was no question as to the right of creditor involved in this case; the only question was the right of the brothers, who were the heirs at law of Edwin M. Holmes, deceased, to enforce partition as against the wife, who possessed the lands as a homestead under section 1607, Wilson's Rev. & Ann. St., which is substantially the same as section 1224, Comp. Stat. 1921, which reads as follows:

"Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead, which shall not in any event be subject to administration proceedings, until it is otherwise disposed of according to law; and upon the death of both husband and wife the children may continue to possess and occupy the whole homestead until the youngest child becomes of age. And in addition thereto, the following property must be immediately delivered by the executor or administrator to such surviving wife or husband, and child or children, and is not to be deemed assets, namely: * * *"

¶7 It is further contended that the family relation is essential to the claim of exemption of a tract of land as a homestead, but that the family relation is not essential in order to authorize the surviving husband or wife to occupy the homestead set apart in an administration proceeding as against other heirs or their assigns having interest in the property. While the principles of law involved in the case of Holmes v. Holmes, supra, and the instant case are so similar that the opinion in the Holmes Case should at least be persuasive in this opinion, yet the facts are so different that we cannot say it controls. Counsel for plaintiff in error contends that the case of Holmes v. Holmes, supra, was based very largely on section 1607, Wilson's Rev. & Ann. St., and that said section (sec. 1224, Comp. Okla. Stat. 1921) is not applicable to the case at bar. He then insists that we pass squarely on the question of whether or not, after the homestead has once vested in the debtor, it ceases to be exempt by the death of his wife and the marriage of his children, leaving him alone in the occupancy of the property. The question is one upon which the decisions of the courts of the various states are in sharp conflict, and while we find many well-written and well-considered opinions which support the plaintiff's contention, the...