Kent v. Lasley
| Decision Date | 07 January 1880 |
| Citation | 4 N.W. 23,48 Wis. 257 |
| Parties | KENT v. LASLEY and others, imp |
| Court | Wisconsin Supreme Court |
Argued December 17, 1879
APPEAL from the Circuit Court for Winnebago County.
Ejectment commenced September 24, 1875, for the southwest quarter of the southwest quarter of section 10, town 19, range 15, in said county.
On the 12th of June, 1849, George Cown owned and was in possession of the southwest quarter of said section 10, and also of the fractional southeast quarter of the adjoining section 9, the whole containing about two hundred acres of land lying in one body and in one enclosure, and all cultivated alike by him and with his wife, Sophia Cown, he resided on the land, and had a right of homestead therein. The house in which he lived was on the quarter-quarter section here in dispute, which was not in any way separated from the rest of the farm; and otherwise than by placing his house there he never made any selection of his homestead out of said farm. On the day above named, Cown executed a warranty deed (recorded the same day) of the whole two hundred acres to William Lasley, in which deed his wife did not join. In 1852 or 1853, said Cown and wife removed from said lands, and thereafter, until 1860 resided in Shawano county, still farming said lands by his tenants. During the years 1856 to 1860, he resided with his wife in the town of Richmond, in Shawano county, where he voted in each of said years, and where he held the office of chairman of the board of supervisors in 1859, and where he owned in fee simple forty acres of land, which constituted his homestead during all that period. On the 7th of September, 1857, he and his wife mortgaged the 200 acres first above described to one Halstead, to secure payment of his promissory note of the same date for $ 3,000; and this mortgage was recorded November 17, 1857. On the 17th of February, 1859, Cown and wife mortgaged the same 200 acres to the plaintiff, William Kent, to secure payment for such goods as Cown might thereafter purchase of Kent; and this mortgage was afterwards duly foreclosed, but neither the defendants herein nor those through whom they claim, excepting Cown and wife, nor Halstead nor any one holding his mortgage, were made defendants to that suit. At the sale on such foreclosure, plaintiff purchased the whole of the two hundred acres, and the referee's deed of the same to him was duly executed April 3, 1865, and duly recorded on the 17th of August following. On the 10th of August, 1867, an action was commenced by this plaintiff against these defendants to declare the conveyance to William Lasley to be a mortgage, and to have been paid; which action resulted in a judgment March 16, 1869, declaring such conveyance to be an absolute deed. On the 10th of January, 1874, plaintiff declared as his selection of the homestead of said Cown in said 200 acres, the quarter-quarter section here in dispute; and this declaration was duly recorded January 12, 1874, and a copy thereof was served on each of the present defendants a year before the commencement of this action. The defendants, excepting Amable Cown, are the wife and children and only heirs-at-law of William Lasley.
Upon these facts the court held, 1. That the deed from Cown to Lasley was invalid as to the homestead, and did not acquire validity in that respect by the subsequent acts of Cown in removing from the land and acquiring a homestead elsewhere, before making the Kent mortgage. 2. That Cown did not lose his right to select a homestead in said two hundred acres as against the deed to Lasley, by securing another homestead before such selection. 3. That such right of selection did not pass to Halstead by the mortgage to him, but passed to plaintiff as purchaser on foreclosure of his mortgage. 4. That plaintiff is the owner in fee and entitled to the possession of the tract here in dispute. 5. That no demand other than notice of his selection was necessary to entitle plaintiff to maintain this action.
From a judgment for the plaintiff pursuant to these conclusions, the defendants appealed.
Affirmed.
Moses Hooper, for appellants, contended, 1. That the clause of the statute restraining alienation of a homestead is a considerable impairment of common-law right, and should be strictly confined to the purpose intended, which is to enable the wife to protect her family in the possession and enjoyment of a homestead after one has been acquired by the husband. Riehl v. Bingenheimer, 28 Wis. 84; Goodell v. Blumer, 41 Wis. 436; Barker v. Dayton, 28 Wis. 367; Wochoska v. Wochoska, 45 Wis. 423. 2. That this object would be fully attained by such a construction as validates the deed of one homestead, though lacking the wife's signature, upon the acquisition of another by the husband; and the cases holding this construction are numerous, uniform and respectable. Stewart v. McKey, 16 Tex., 56; Jordan v. Godman, 19 Wis. 273; Allison v. Shilling, 27 Wis. 450; Gee v. Moore, 14 Cal., 472; McQuade v. Whaley, 31 Cal. 526; Bowman v. Norton, 16 Cal. 213; Himmelmann v. Schmidt, 23 Cal. 117; Howe v. Adams, 28 Vt., 541; Davis v. Andrews, 30 Vt. 678; Horn v. Tufts, 39 N. H., 478; Hewitt v. Templeton, 48 Ill., 367; Vasey v. Board of Trustees, 59 Ill. 188; Black v. Curran, 14 Wall., 463. 3. The deed to Lasley, by all the authorities and by the decision of this court in Kent v. Agard, 22 Wis. 150, construing the same, was valid except as against the right of selection by Cown. The latter, at the time of the conveyance to Kent, had no right of selection, because he was occupying another homestead in Shawano county. He could not hold one homestead, and at the same time have the right of selecting another; and, having no such right himself, he could convey none to Kent. 4. Again, if the mortgage to Kent carried the right of selection, what shall be said of the prior mortgage to Halstead? Has he not also the right of selection, and may he not locate this floating right on some other forty acres? It would seem that, before making selection and dispossessing the Lasleys, Kent ought to subject Halstead's prior right of selection to his will.
Gabe Bouck, for respondent, argued, in substance, 1. That the deed to Lasley, without the wife's signature, was not merely voidable, but utterly void, as to the homestead; and the fact that Cown afterward abandoned such homestead, did not change his status as owner, or make valid the void deed. Williams v. Starr, 5 Wis. 534; Phelps v. Rooney, 9 Wis. 70; Hait v. Houle, 19 Wis. 472; Amphlett v. Hibbard, 29 Mich., 298; Barnett v. Mendenhall, 42 Iowa, 296; Richards v. Greene, 73 Ill., 54. 2. That as the statute gives the right of selection to the "owner," the claim that Halstead, as first mortgagee, acquired that right, not only conflicts with the doctrine that the legal title rests in the mortgagor until sale on foreclosure, but places the latter and his subsequent grantees or mortgagees completely at the mercy of the first mortgagee, who may select to their injury or even refuse to select at all, and thereby deprive them of the benefit of the statute entirely. 3. That Kent, as purchaser at the foreclosure sale, became the owner within the meaning of the statute, and acquired thereby the right of selection, and of redeeming from the prior mortgage. Kent v. Agard, 22 Wis. 150.
This is the same controversy involved in Kent v. Agard, 22 Wis. 150. The plaintiff in that case is plaintiff here; but the defendants are different. There the defendants were tenants of the defendants here. The judgment there is, therefore, not binding here. Smith v. Pretty, 22 Wis. 655; Towle v. Smith, 27 Wis. 268. And the views on which the judgment rested in that case are not res adjudicata, in this. The soundness of that decision is therefore as far open to question in this case as if the two cases related to different premises, between different parties.
In Kent v. Agard, it was held that, where one owns and lives on more than forty acres of agricultural land, or more than a quarter of an acre in a city or village, although his dwelling-house be upon a legal subdivision of land exactly commensurate with the right of homestead given by the statute, the limits of his homestead remain undetermined until fixed by his selection. Such now appears to the court an unsound, inconvenient and dangerous construction of the statute.
So far as it bears on the question in this case, the statute in relation to homesteads has remained the same from 1848 when it was first adopted, to the present time. It has relation to a homestead not exceeding forty acres in the country, or a quarter of an acre in a city or village, to be selected by the owner; and the rule in Kent v. Agard is, that the homestead right does not attach to any particular land until the selection be made. The right is, however, limited to the land on which the dwelling-house and its appurtenances are situate; and when the dwelling-house, which is the controlling quality of the right, is situate upon a legal subdivision of land precisely equal to the statutory measure of the right, and when the owner of it, owning also adjoining land, has made no different selection, he ought to be held to a tacit selection of the legal subdivision on which his dwelling-house stands. Practically this has been the construction of the statute in all or almost all cases except Kent v. Agard; and this now appears to the court to be not only an admissible construction of the statute, but better in accord with its spirit and purpose, most convenient, and essential to the certainty of the right of homestead; for, under the construction of Kent v. Agard, when one owns in one body more than the legal extent of the right of homestead, and...
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