Kimball v. Salisbury

• Decision Date: 28 March 1899
• Court: Utah Supreme Court
• Parties: J. GOLDEN KIMBALL AND JENNIE S. KIMBALL, PLAINTIFFS AND APPELLANTS, v. ORANGE J. SALISBURY, AND THOMAS P. LEWIS, DEFENDANTS AND RESPONDENTS

56 P. 973

19 Utah 161

J. GOLDEN KIMBALL AND JENNIE S. KIMBALL, PLAINTIFFS AND APPELLANTS, v. ORANGE J. SALISBURY, AND THOMAS P. LEWIS, DEFENDANTS AND RESPONDENTS

Supreme Court of Utah

March 28, 1899

Appeal from the Third District Court, Salt Lake County, Hon. Ogden Hiles, Judge.

Action to quiet title to three pieces of real property separately described in the complaint.

From a judgment quieting and confirming the title of plaintiffs in one of the three pieces and directing a deed to defendant Salisbury for the other two, plaintiff appeals.

Reversed and remanded.

Messrs Young and Moyle, for appellant.

If this first North Street property is a part of or even used in connection with the home of the appellants, then their residence upon it and ownership and use of it was all the selection that was necessary, and all that could be done under any circumstances; for the statute made no other requirement, and certainly courts can not legislate and make any other requirements. Kimball v. Salisbury, 53 P 1037; Riggs v. Sterling, 60 Mich. 643, 650; Beecher v. Baldy, 7 Mich. 487, 503, 504; Thomas v. Dodge, 8 Mich. 51; Scofield v. Hopkins, 61 Wis. 370; Green v. Marks, 25 Ill. 205; Conklin v Foster, 57 Ill. 104.

There can be no selection of a homestead when all the property that the homestead claimant has is within his exemption, as in the case at issue. Beecher v. Baldy, 7 Mich. 504; Cols. v. Green, 21 Ill. 103; Thompson on Homestead and Exemption, Sec. 652; Scofield v. Hopkins, 61 Wis. 370. All the cases uphold and urge a construction of the statute favorable to the homestead claimant. White v. Rowley, 46 Iowa 680; Thompson on Homestead and Exemptions, Secs. 4, 7, 731; Haskins v. Litchfield and wife, 31 Ill. 137; Riggs v. Sterling, 60 Mich. 649; Waples on Homestead and Exemptions, p. 30.

W. C. Hall, Esq., for respondent.

The respondents contend that both the constitution and statute provide for a homestead to be selected by the head of the family. Sec. 1, Art. 22, of the constitution. Chap. 71, Subd. 2, p. 215, Session Laws of 1896.

The Revised Statutes of 1898 provide the manner of selection, and the respondents insist that prior to the Revised Statutes the same general formalities obtained.

Where, however, as in this case, the land is separate, vacant, and apart from any homestead that has a house or home in which the judgment debtor resided, especially as to the second parcel of land, the law should be as we contend; and if in such case, where the owner or claimant of the homestead stands by and permits the creditor to sell the property, he waives his right to claim it as a homestead. Elias S. Kimball et al. v. Salisbury, et al., 53 P. 1038; Thomas v. Dodge, 8 Mich. 51; Riggs v. Sterling, 60 Mich. 643; Scofield v. Hopkins, 61 Wis. 370; Green v. Marks, 25 Ill. 204; Conklin v. Foster, 57 Ill. 104; Knudsen v. Hamburg, 8 Utah 203.

Under the constitutional provision above quoted, we deny the power of the legislature to exempt real property, as a homestead, which is vacant and in no way connected or used with the home place. Waples on Homestead and Exemptions. Sec. 1, p. 1; Thompson on Homestead and Exemptions, Sec. 100; Gammet v. Storrs, 15 Utah 336.

A finding that all the allegations of the complaint are true, and all the allegations of the answer untrue, is sufficient. Carey v. Brown, 58 Cal. 180; Lewis v. Adams, 70 Cal. 403; San Diaga v. Seifert, 97 Cal. 594.

BASKIN, J. MINER, J., concurring in the judgments. BARTCH, C. J., dissents.

OPINION

BASKIN, J.

This is an action to quiet the title to three pieces of real property severally described in the complaint as follows:

1. Commencing fifty-two and one-half feet east from the southwest corner of lot one, block forty-three, plat "A," Salt Lake City Survey, and running thence east forty-one and one-half feet; thence north ten rods; thence west forty-one and one-half feet; thence south ten rods to the place of beginning.

2. Commencing at a point thirteen and one-third rods east of the northwest corner of lot five, block ninety-three, plat "A," Salt Lake City Survey, running thence east fifty-five feet; thence south nine rods; thence west fifty-five feet; thence north nine rods to the place of beginning.

3. Also an undivided one-half interest in lot four, block one hundred and thirty-eight, plat "A," Salt Lake County, State of Utah.

The defendant having recovered a judgment against the plaintiffs, Z. T. Stewart, and Elias S. Kimball, caused an execution which was issued on said judgment, to be levied on said real estate. The sheriff sold the two pieces of said real property last described in the complaint, and the other piece was being advertised for sale by said sheriff when this suit was instituted. The defendant at the sale of the said pieces purchased the same, but has not yet received deeds of the same from the sheriff. The sale of the other piece was postponed after the institution of this suit. The sale was made on the 8th day of March, 1897. The plaintiffs claim that the real property so sold, and which was being so advertised for sale by the sheriff, constituted their homestead, and was therefore exempt from levy and sale on execution. The court below ordered and adjudged that the first-described piece of real estate constitutes the homestead of plaintiffs, and that the title of plaintiffs thereto be quieted and confirmed, and that the sheriff forthwith execute and deliver to the defendants a deed for the balance of said real property, so that the only question now to be determined is whether the last two described pieces constitute a part of plaintiffs' homestead.

The following facts are supported by testimony which is not disputed, and are embraced in the findings of fact by the court below; to wit: That plaintiffs are and were at and before said levies and sales, husband and wife, the said J. Golden Kimball being the head of the family, consisting of himself, wife, and five children. That the value of said real estate was at and before the date of said levies and sale worth less than $ 3,250. The testimony also discloses the facts that the title to a lot nine by ten rods, was acquired by the plaintiff, J. Golden Kimball, and his brother, Elias S. Kimball, in 1868, by inheritance from their father; that in 1880 these brothers built a residence on the east side of said lot for their mother and themselves to live in; these brothers held said lot as tenants in common until about the year 1890, when they deeded to their mother three and one-third rods by nine rods on the east side of said lot, and severed their interests in the residue, the said Elias S. Kimball deeding to his brother three and one-third rods by nine rods immediately adjoining and west of the portion deeded to his mother, and the said J. Golden Kimball deeding to his brother the residue of said lot. The piece deeded to the mother embraced said residence, but did not include the outhouses connected therewith. These were on the piece deeded to the said J. Golden Kimball; that the whole of said lot was within one inclosure, and no partition fences have ever been built thereon. How long the mother and sons occupied said dwelling house does not appear, but the said Elias S. Kimball, after his marriage, when he was in the city, resided with his mother until the time of her death, which occurred early in the year 1896. A short time before her death the said J. Golden Kimball with his family moved into said dwelling house and temporarily resided there until the 20th day of November, 1897, at which date he removed to the premises which were afterward awarded to him by the lower court, and on which he was living at the date of the trial; that on the three and one-third rods deeded to the said J. Golden Kimball there was an orchard, and during the lifetime of the mother the products of the same, and the outhouses thereon, were used by her and her family for the benefit of her family; that while the said J. Golden Kimball continued to occupy the said dwelling house, after the death of his mother, said outhouses, orchard, and garden were in like manner used by him and his family. The other parcel, which is the third one before described, was also held in common by said brothers, and was inherited from their father; that this parcel was used by said brothers for the production of vegetable and garden products for their families. Some of the time it was used for pasturage, and was sometimes leased for gardening purposes. The three parcels claimed as a homestead by the plaintiffs was the only real estate owned by the said J. Golden Kimball, and there were no houses on either of the two pieces last described, except the outhouses before mentioned, but there was a dwelling house on the first parcel described, and during the time that the said J. Golden Kimball and his family occupied his deceased mother's house, it was in the possession of his lessee. In regard to his occupancy of his mother's house the said J. Golden Kimball, when testifying in the case, was asked by his attorney "whether or not your residence with her was permanent or temporary," and objection to the question being made by the opposing counsel, the judge said, "The question is as to his intention at that time, whether his residence was his permanent residence at that time, or whether it was merely temporary; he can answer the question." The witness answered, "It was merely temporary." The witness in this connection further testified that he had no other intention than to live on the premises first described as soon as he could leave his temporary residence.

No evidence in rebuttal of these statements by said witness, or any of the facts before stated, was introduced, so that there is no contention in regard to the same....