In re E. P. Emerson's Homestead
| Decision Date | 16 August 1894 |
| Docket Number | 8880 |
| Citation | 60 N.W. 23,58 Minn. 450 |
| Parties | In re E. P. Emerson's Homestead |
| Court | Minnesota Supreme Court |
Argued June 27, 1894
Appeal by William B. Silvey, receiver of the property and estate of E. P. Emerson, insolvent, from an order of the District Court of St. Louis County, Samuel H. Moer, J., made January 30 1894, assigning to the insolvent four rooms in the Spalding House as his homestead.
On March 12, 1889, E. P. Emerson leased of the Spalding Hotel Company, a corporation, the hotel situated on the southeast corner of Fifth avenue and Superior street in Duluth known as the Spalding House for the term of ten years. He was to pay no rent the first year, but was to pay $ 7,500 a year for the second, third and fourth years, $ 10,000 for the fifth year and $ 12,000 a year for the last five years. He further agreed as a condition of his occupancy of the demised premises to keep a first class inn thereon and exert his best efforts for the successful management and good reputation of the hotel. Emerson took possession and he and wife thereafter occupied rooms 100, 102 and 103 on the third floor in the hotel as their private residence.
On September 9, 1893, Emerson was on the petition of creditors adjudged insolvent by the District Court of St. Louis County under Laws 1881, ch. 148, as amended, and William B. Silvey appointed receiver of his property. Silvey took possession of the hotel and of all the furniture and supplies and has since carried on the hotel business under the lease. He notified Emerson to vacate his rooms above mentioned. Thereupon Emerson presented his petition to the court claiming the rooms as his homestead, under 1878 G. S. ch. 67, and asking that they be assigned to him as such. The court granted the application and the receiver appeals. The trial court said:
The homestead right is given for the protection of the debtor and his family, and it must be wholly immaterial to the creditor whether the homestead tenure is slight or of the highest character. If the petitioner owned the premises in fee simple it needs no argument to reach the conclusion that he would be entitled to homestead rights therein. If the petitioner owned the property in question under a conveyance expressly stipulating that the property should be used for hotel purposes only, it could not reasonably be claimed that such express covenant would prevent his claiming homestead rights therein. Residing thereon is not inconsistent with keeping hotel there. The parties to the lease must have contemplated that Emerson and his wife would occupy rooms there to watch and manage the business.
Order affirmed.
Henry F. Greene, for appellant.
The use of the Spalding House or any part thereof as a residence for the Emerson family, being contrary to the terms of his lease was as a matter of fact not the principal use to which such property was put, but a purely subordinate use, and hence conferred no homestead rights. Laughlin v. Wright, 63 Cal. 113; McDowell v. His Creditors, 103 Cal 264; Philleo v. Smalley, 23 Tex. 498.
A case which is directly in point and which it is submitted must be disapproved if the decision of the lower court is to stand is that of Green v. Pierce, 60 Wis. 372. See also Garrett v. Jones, 95 Ala. 96.
In the case of a partnership interest the unanimous concurrence of authorities is that a partnership title will not support a homestead exemption. Drake v. Moore, 66 Ia. 58; Hoyt v. Hoyt, 69 Ia. 174; Terry v. Berry, 13 Nev. 514; Kingsley v. Kingsley, 39 Cal. 665.
The insolvent whose only right in the premises is derived from the lease should not be allowed to keep a part of the property for a use impliedly prohibited therein. Sumner v. Sawtelle, 8 Minn. 309; Rogers v. McCauley, 22 Minn. 384.
A. A. Harris, and Henry E. Harris, for respondent.
The true test of a homestead estate seems to be whether the interest in which it is claimed, may be sold on execution. In this instance it is clear, both upon principle and authority, that this may be done. Bartholomew v. West, 2 Dill. 290; Conklin v. Foster, 57 Ill. 104; Pelan v. De Bevard, 13 Ia. 53; Reynolds v. Fleming, 43 Minn. 513; Wilder v. Haughey, 21 Minn. 101; Kaser v. Haas, 27 Minn. 406; Hogan v. Manners, 23 Kan. 551.
The fact that the greater portion of the building known as the Spalding Hotel is used for hotel purposes does not prevent Emerson from claiming that portion of it which he and his family have occupied for over five years past as their homestead. Hogan v. Manners, 23 Kan. 551; Kelly v. Baker, 10 Minn. 154; Umland v. Holcombe, 26 Minn. 286; In re Tertelling, 2 Dill. 339; Phelps v. Rooney, 9 Wis. 70; Rhodes v. McCormick, 4 Ia. 368.
Collins, J. Buck, J., absent, sick, took no part.
The peculiar features of this case make it novel, but we are of the opinion that the questions presented are foreclosed by former decisions of the court.
1. That a tenant holding a leasehold interest for a term of years can acquire a homestead right in the property ought not to be questioned, nor do we understand that appellant's counsel claim to the contrary. In Kaser v. Haas, 27 Minn. 406, (7 N.W. 824,) it was said, when speaking of the homestead exemption, that the character of the ownership, or of the estate or interest owned, is not material, so that it gives the right of occupancy, -- so that there is a concurrence of ownership and occupancy, the former sustaining the latter. The question was...
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