Kelly v. Baker

• Decision Date: 01 January 1865
• Parties: LEWIS H. KELLY vs. GEORGE W. BAKER et al.
• Court: Minnesota Supreme Court

10 Minn. 124

LEWIS H. KELLY vs. GEORGE W. BAKER et al.

Supreme Court of Minnesota.

Appeal from judgment of district court, Olmsted County.

The action was to set aside and cancel an execution sale of real estate and the certificate issued thereon. The plaintiff owned a lot in the City of Rochester, on which he had erected a two story brick building. The rear part of this building he used as his dwelling, the front part of the building was used for business purposes, part of it being rented. Upon execution under judgments against plaintiff, the part of the lot upon which the front part of the building used for business purposes was sold, and a certificate issued. At the time of the sale the plaintiff notified the sheriff that he claimed the whole as his homestead.

Plaintiff had judgment below.

Charles C. Willson, for appellants.

J. A. Leonard, for respondent.

BERRY, J.

Our statutes relating to homestead exemption are so indefinite, loose and obscure, that it is difficult to put any construction upon them which is not open to criticism and objection. Under the last clause of § 12, art. 1, of the Constitution, it is made the duty of the legislature to provide by law for the exemption of a reasonable amount of property from seizure or sale for the payment of any debt or liability, and in this case no question is made as to the constitutionality of the law. Certainly there is nothing in the constitutional provision referred to which required the legislature to impose any particular condition or mode of occupancy, actual possession or personal use, upon the right to hold property, real or personal, exempt from forced sale on process of law. There is nothing which forbids the exemption of real property, save upon the condition that it be wholly and exclusively occupied by the debtor as a place of abode for himself and family; and the amendatory act of 1860, by which the owner of a homestead is permitted to remove from the same, or sell and convey it without forfeiting his privilege of exemption, shows conclusively that this view has been adopted as well as acted upon by the legislature itself. Homestead in its ordinary signification conveys the idea of the place of residence or dwelling of its owner, and in that sense it seems to have been used in the act of 1858 now in force. Folsom v. Carli, 5 Minn. [333]; Tillotson v. Millard, 7 Minn. [513]. But it includes not only the ground upon which the dwelling-house rests, but more; and how much more it may include in this state for the purposes of exemption, the statute defines. And where, as in the case at bar, the property lies within the limits of an incorporated city, it is provided that a homestead consisting of a quantity of land not exceeding in amount one lot, etc., shall not be subject to levy, etc.; and the owner has the right of selection, so that provided he confines himself to a compact quantity not exceeding in amount one lot, he...