Holcomb v. Holcomb

• Decision Date: 18 March 1909
• Court: North Dakota Supreme Court

120 N.W. 547

18 N.D. 561

LUCY A. HOLCOMB, GUARDIAN OF EMRA J. HOLCOMB, MINOR, v. EDWARD J. HOLCOMB, ADELIA BUTTON, BESSIE HOLCOMB AND EMRA J. HOLCOMB, AND EDWARD J. HOLCOMB, ADMINISTRATOR OF THE ESTATE OF ALANSON L. HOLCOMB, DECEASED

Supreme Court of North Dakota

March 18, 1909

Appeal from District Court, Barnes county; Burke, J.

Emra J Holcomb, a minor, through his guardian, Lucy A. Holcomb petitioned the county court to set apart to himself premises as the homestead of Alanson L. Holcomb, deceased. The petition was granted by the county court, and Edward J Holcomb and others appeared to the district court, where such order was reversed, and Emra J. Holcomb appeals.

Affirmed.

Page & Englert, for appellant.

Right of homestead survives a divorce and remains with the holder of the record title. Biffle v. Pullman, 21 S.W. 450; Blandy v. Asher, 72 Mo. 27. Redfern v. Redfern, 38 Ill. 509; Stahl v. Stahl, 2 N.E. 160; Roberts v. Moudy, 46 N.W. 1013, 27 Am. St. Rep. 426; Zapp v. Strohmeyer, 13 S.W. 9; Hall v. Fields, 17 S.W. 82; Byers v. Byers, 21 Ia. 268; Woods v. Davis, 34 Ia. 264; Doyle v. Coburn, 6 Allen, 71; 21 Cyc. 598; 9 Enc. Law (2d Ed.) 859; 15 Enc. Law (2d Ed.) 556.

Divorced wife has no interest in homestead of divorced husband. Rosholt v. Mehus, 3 N.D. 513; 57 N.W. 783, 23 L. R. A. 239; Brady v. Kreuger, 66 N.W. 1083; Heaton v. Sawyer, 60 Vt. 495, 15 A. 166; Wiggen v. Buzzell, 58 N.H. 329; Stahl v. Stahl, 2 N.E. 160.

Children of a divorced parent inherit. Walker v. Walker, 54 N.E. 956.

Granting of divorce and custody of children does not affect the status of head of family. Byers v. Byers, 21 Ia. 268; Woods v. Davis, 34 Ia. 264; Zappas v. Strohmeyer, 13 S.W. 9; Hall v. Fields 17 S.W. 82; Blandy v. Asher, 72 Mo. 27; Philbrick v. Andrews, 35 P. 358; Biffle v. Pullman, 21 S.W. 450; Roberts v. Moudy, 46 N.W. 1013, 27 Am. St. Rep. 426; Fore v. Fore, 2 N.D. 260, 50 N.W. 712.

Homestead once acquired is not lost by death, absence or desertion, without husband's fault, of wife and children. Palmer v. Sawyer, 103 N.W. 1088; Silloway v. Bronen, 12 Allen 30; Stults v. Sale, 92 Ky. 5, 17 S.W. 148, 36 Am. St. Rep. 575, 13 L. R. A. 743.

Divorce does not affect child's rights of homestead. Woods v. Davis, 34 Ia. 264.

Herman Winterer and D. S. Ritchie for respondents.

Residence together as a family and occupancy of homestead are essential to vest a homestead right. Givens v. Hudson, 64 Tex. 471; Keyes v. Hill, 30 Vt. 759; Petty v. Barrett, 37 Tex. 84; Burns v. Jones, 37 Tex. 50; Roco v. Green, 50 Tex. 483; Hoffman v. Neuhaus, 98 Am. Dec. 492; Barbee v. Hayatt, 31 P. 694; Dayton v. Donart, 22 Kan. 184; Gatton v. Tolley, 22 Kan. 472; Stratton v. McCandliss, 4 P. 1018; Hafer v. Hafer, 6 P. 537; Hafer v. Hafer, 13 P. 821; Vining v. Willis, 20 P. 232; Vandiver v. Vandiver, 20 Kan. 501; Turner v. Turner, 54 Am. St. Rep. 110; Tillar v. Bass, 57 Ark, 179; Aucker v. McCoy, 56 Cal. 524; Pfister v. Dascet, 10 P. 117; Tromans v. Mahlman, 27 P. 1094; Oliver v. Snowden 43 Am. Rep. 338; Gwans v. Dewey, 47 Iowa 414; First Nat. Bank v. Hollingsworth, 43 N.W. 536; Maguire v. Hanson, 74 N.W. 776; Lee v. Miller, 11 Allen 37; Tillotson v. Millard, 82 Am. Dec. 112; Kelley v. Dill, 23 Minn. 23; Finnegan v. Prindeville, 83 Mo. 517; Power v. Burd, 43 P. 1094; Currier v. Woodward, 62 N.H. 63; White v. Danforth, 98 N.W. 136; Kramer v. Lamb, 87 N.W. 1024.

It must be family occupancy, not of owner alone. Waples on Homesteads and Exemptions, 181; Hiatt v. Bullene, 20 Kan. 557; Tarrant v. Swain, 15 Kan. 146; Farlan v. Sook, 26 Kan. 397; Ashton v. Ingle, 20 Kan. 670; Koons v. Rittenhouse, 28 Kan. 359; Goodloe v. Dean, 81 Ala. 479; Currier v. Sutherland, 54 N.H. 475.

Divorce determines homestead rights. Rosholt v. Mehus, 3 N.D. 513; Heaton v. Sawyer, 60 Vt. 495, 15 A. 166; Stahl v. Stahl, 2 N.E. 160; Wiggin v. Buzzell, 58 N.H. 329; Gilley v. Gilley, 79 Me. 292.

Homestead laws are to guarantee the home against necessity, improvidence and importunity of creditors. In re Fath's Estate, 64 P. 995; Keyes v. Cyrus, 34 P. 722; In re Ruckingham, 102 F. 972; Moran v. King, 49 C. C. A. 578; In re Stone, 116 F. 35; White v. Swann, 82 Am. St. Rep. 282; In re Adams' Estate, 57 P. 569; Zachman v. Zachman, 66 N.E. 256; Fullerton v. Sherrill, 87 N.W. 419; Koster v. Gellen, 82 N.W. 823; Brown v. Hughes, 94 N.W. 438; Blumer v. Albright, 89 N.W. 809; Loessin v. Washington, 23 Tex. Civ. App. 515.

FISK, J. MORGAN, C. J., and CARMODY, J., concur. SPALDING, J., took no part in the decision. ELLSWORTH, J., (dissenting).

OPINION

FISK, J.

This is an appeal from a judgment of the district court of Barnes county, and comes here for trial de novo under the provisions of section 7229, Rev. Codes 1905.

The facts are not in dispute, and are briefly as follows: Alanson L. Holcomb, deceased, and Lucy A. Holcomb, were husband and wife. Emra J. Holcomb is the lawful issue of such marriage. In the fall of 1898 the said Alanson L. Holcomb and his wife, Lucy, together with their minor son Emra, went to reside upon the N.W. 1/4 of section 10, township 142 N. of range 57 W., in Barnes county, which real property was owned by the husband. Said real property was the only real property owned by Alanson L. Holcomb, and the same was the homestead of himself and said family. In the spring of 1905 the mother, with the consent of her husband, took her said child of Oklahoma, where she was advised to go for her health, and remained until January 1906. During their absence, the husband and father remained in possession of the homestead. Upon her return from Oklahoma, and for reasons which it is unnecessary to mention, Lucy A. Holcomb commenced divorce proceedings against her husband, which resulted on April 10, 1906, in a judgment in her favor divorcing her from her said husband and by such judgment she was awarded the custody of such minor child, and Alanson L. Holcomb, the defendant therein, was adjudged to pay the sum of $ 100 per annum for the support and education of said minor child, which allowance was made a lien upon said land. A few days after the judgment aforesaid was entered, Alanson L. Holcomb died intestate. At the time of his death he was the fee owner and in possession of said premises. In the course of the administration of his estate, and on June 16, 1906, Emra J. Holcomb, through his legally appointed guardian Lucy A. Holcomb, petitioned the county court to set apart said premises as the homestead of the deceased to Emra J. Holcomb, such minor child. Such petition was by the county court granted, and an order made accordingly. From this order an appeal was prosecuted to the district court, where such order was reversed, and it is from the judgment reversing such order that this appeal was taken.

Claims aggregating a large amount were filed against said estate by creditors, and the sole question involved relates to the respective rights of such creditors and certain legal heirs other than Emra J. Holcomb and the homestead claim of such minor child. The latter's rights are wholly dependent for their validity upon the question whether Alanson L. Holcomb at the time of his death possessed a homestead right in said premises. It is a self-evident proposition that, if the father at the time of his death had no homestead right in the premises, the child can have none after his father's death. The son, in other words, could acquire no rights not vested in his father at the time of his death. The pertinent inquiry, therefore, is: Did Alanson L. Holcomb, after the entry of the judgment of divorce, continue to possess his homestead right in said premises? If not, the judgment appealed from was clearly correct. By section 208 of the Constitution the legislative assembly is commanded to recognize the right of the debtor to enjoy the comforts and necessaries of life by wholesome laws exempting from forced sale to all heads of families a homestead. Pursuant to this mandate, the Legislature, by the enactment of Section 5049, Rev. Codes 1905, has exempted the homestead of every head of a family not exceeding in value $ 5,000, and by section 5070, Rev. Codes 1905, the phrase "head of a family" is defined as including "(1) the husband or wife when the claimant is a married person; but in no case are both husband and wife entitled each to a homestead under the provisions of this chapter. (2) Every person who has residing on the premises with him or her and under his or her care and maintenance, either: (a) His or her child or a child of his or her deceased wife or husband whether by birth or adoption; (b) a minor brother or sister or the minor child of a deceased brother or sister; (c) a father, mother, grandfather or grandmother. (d) the father or mother, grandfather or grandmother of a deceased husband or wife; (e) an unmarried sister of any other of the relatives mentioned in this section who have attained the age of majority and are unable to take care of or support themselves."

It will thus be seen that, to be entitled to the homestead right or exemption, the person must be the "head of a family," and, where such person is unmarried, he or she must have residing on the premises with him or her and under his or her care and maintenance one or more of the persons enumerated in subdivision 2, § 5070, Rev. Codes 1905 supra. By section 5071 it is provided that, "upon the death of a person in whom the title to real property constituting a homestead as defined in this chapter is vested, a homestead estate in such real property shall survive, descend, and be distributed to the persons and in the order following: (1) To the surviving husband or wife for life; or (2) there being no surviving husband or wife to the decedent's minor child or children until the youngest attains majority; or (3)...