Kimball v. Salisbury

• Decision Date: 30 June 1898
• Docket Number: 938
• Citation: 17 Utah 381,53 P. 1037
• Court: Utah Supreme Court
• Parties: ELIAS KIMBALL AND LUELLA KIMBALL, APPELLANTS, v. ORANGE J. SALISBURY AND THOMAS P. LEWIS, RESPONDENTS

53 P. 1037

17 Utah 381

ELIAS KIMBALL AND LUELLA KIMBALL, APPELLANTS, v. ORANGE J. SALISBURY AND THOMAS P. LEWIS, RESPONDENTS

No. 938

Supreme Court of Utah

June 30, 1898

Appeal from district court, Salt Lake county; Ogden Hiles, Judge.

Action by Elias S. Kimball and Luella W. Kimball against Orange J Salisbury and Thomas P. Lewis. From a decree for defendants plaintiffs appeal. Reversed.

Reversed and remanded.

Young &amp Moyle, for appellants:

It is not necessary that the exemptionist own the land in which he actually resides to make land used in connection with his residence a part of the homestead. He may rent lands; he may rent a house and use his own land in connection with it and his land is a part of his homestead and is exempt; or he may live on his wife's land, and his lands used in connection with the residence makes a part of his homestead and is exempt. Bennett v. Baird, 81 Ky. 554; Summers v. Spriggs, (Ky.) 35 W. Rep. 1033; McClemagham v. McEachern, 25 E. 296; Rogers v. Savings Bank, 63 N.H. 428; Waples on Homestead and Exemptions, p. 186; King v. Sturges, 56 Miss. 606; Allen v. Chase, 58 N.H. 419; Cole v. Bank, 59 N.H. 53, 321.

Temporary absence is no abandonment and loses the exemptionist no right. Abandonment is a question of intention. And the claimant's uncontradictory statement of intention is conclusive. McMillan v. Warner, 38 Texas 410; Thompson on Homestead and Exemptions, sec. 272; Robinson v. Swearington, 17 S.W. 356; Karding v. Joachinsthal, 89 Mich. 78; Benbow v. Boyer, (Ia.) 56 N.W. R. 544.

In order for land to be a part of a homestead and exempt, it is not necessary that the house should be situated immediately upon it; it is enough if it is used as a part of the homestead, for out-houses or yard or garden, if it comes within the amount in value exempted. Compiled Laws of Utah 1898, sec. 3429 subd. 11; Thompson on Homesteads and Exemptions, sec. 100; Gregg v. Bostwick, 33 Cal. 227; Clark v. Shannon, 1 Nev. 477; Wilburn Wagon Co. v. Kennedy, 75 Tex. 212; King v. Sturger, 56 Miss. 606; Waples on Homesteads and Exemptions, p. 185, sec. 6 and p. 149.

The judgment creditor is presumed to desire his homestead exempt, and need make no claim to the sheriff or to any one else for it. The law casts it upon him, and the sheriff must takenotice of the existence of the debtor's homestead and protect it. Such has been held by the courts of Missouri, Wisconsin, New Hampshire, North Carolina, Iowa, Illinois, Arkansas, Nevada, Texas and Massachusetts. Folger v. Montgomery, 54 Mo. 584; Scofield v. Hopkins, 61 Wis. 372; Willis v. Matthews, 46 Tex. 483; Selegson v. Collins, 64 Tex. 314; Barney v. Leeds, 51 N.H. 293; Abbott v. Cromartie, 72 N.C. 292; Lambert v. Kinney, 74 N.C. 350; Lute v. Reilly, 65 N.C. 20; Taylor v. Rhyne, 65 N.C. 531; Vannoy v. Haymore, 71 N.C. 128; Helfenstein, v. Cave, 6 Iowa 677; Hoskins v. Litchfield, 31 Ill. 137; Pardie v. Lindley, 31 Ill. 187; Moore v. Titman, 33 Ill. 368; Hughes v. Watt, 26 Ark. 228; Goldman v. Clark, 1 Nev. 611; Hubbell et al. v. Canady, 58 Ill. 425; Swan v. Stevens, 99 Mass. 7; see Grosholz v. Newman, 21 Wallace 486.

Wherein the supreme court of the United States says that the place "must be actually used or manifestly intended to be used as a part of the home."

In Hanlon v. Pollard, 17 Neb. 368: "Where the statute provides for the exemption of the homestead in which the claimant resides," it is held exempt if the claimant has the "bona fide intention of presently residing upon it or residing upon it as soon as some temporary obstacle to it can be removed or some necessary preparation for residence can be made."

To the same effect are the following cases: Dobkins v. Kuykendahl, 16 S.W. 743; Schofield v. Hopkins, 61 Wis. 370, 372; Deville v. Widoe, 64 Mich. 593; Robinson v. Swearington, 17 S.W. 365; Resky v. Resky, 51 Mich. 541; Van Rutcliff v. Call, 72 Texas 491.

A garden or pasture, or even a farm not contiguous to the actual residence, may be a part of the homestead if it comes within the exempted value. Buxton v. Derrborn, 46 N.H. 43; Hubbell v. Canady, 58 Ill. 425; Hastie v. Kelly, 57 Vt. 291, 294; Aldrich v. Thurston, 71 Ill. 324; Stevens v. Hollingsworth et al., 74 Ill. 207; Houston v. Winter, 44 Tex. 597; West River Bann v. Jail, 42 Vt. 27.

The homestead claimant can either set aside an attempted sale of his homestead or may defend against an action of ejectment when brought. Green v. Marks, 25 Ill. 204; Barrett et al. v. Wilson, 102 Ill. 302; Conklin v. Foster, 57 Ill. 104; Goldman v. Clark, 1 Nev. 516; Herrington v. Ullerbeck, 57 Mo. 519; Deffiliz v. Piro, 46 Cal. 289; Waples on Homestead and Exemptions, p. 740; Thompson on Homesteads and Exemptions, sec. 686; Gallacker v. Keller, (Tex.) 30 S.W. R. 248.

W. C. Hall, for respondent.

This action was brought to quiet title in two certain pieces of land in Salt Lake City, claimed by plaintiffs to be their homestead, which was levied upon and sold under execution issued upon a judgment against Elias S. Kimball, in favor of defendant Salisbury. The judgment was obtained upon a promissory note upon which Elias S. Kimball was indorser, in November, 1896, and the sale was made thereon on the 8th day of March, 1897. Defendant Salisbury was the purchaser, and received a certificate of sale. Before the deed thereof was delivered, this proceeding was commenced, to enjoin the making or delivery of the deed upon such sale, and to remove the cloud from the title. The property consists of two separate pieces of land in Salt Lake City. One of them is a vacant piece of ground 10 rods by 55 feet, located on lot 5, block 39, plat A, of the value of $ 1,000; the other, a vacant piece of ground on lot 4, block 138, plat A, Salt Lake City, of the value of $ 1,200, mortgaged in the sum of $ 500. The plaintiff alleges, and the testimony tends to show, that plaintiffs were and had been at the time and for eight years prior to said judgment, execution, levy, and sale, husband and wife, and that they resided during all that time in Salt Lake City, Utah, and occupied said land first described as a homestead; that they had three children under the age of seven years; that the wife and children were dependent upon said Kimball for their support; that the said Kimball inherited said two pieces of land from his father, with other lands in June, 1868, and that said land had been used by said Kimball as a homestead by himself and family since that time, and as a garden and orchard and for outhouse purposes in connection with his homestead, as a part thereof, ever since he acquired it; that he had no notice or knowledge of said levy or attempted sale until after it was made, and not until September, 1897; that during the last four years he had been engaged as a missionary in the Southern states, and that his wife and children accompanied him in his labors when away from Utah; that during said period he would return to Salt Lake, and live in the house adjoining said land one month of each of said years, using said land as a homestead during said period; that the first piece of land named consisted of 9 rods by 55 feet, and was part of a larger piece of land, consisting of 9 by 10 rods, owned by his father, which descended to himself and brother; that in 1880 plaintiff and his brother constructed a house upon a portion of this 9 by 10 rods, covering 3 by 10 rods on the east, as a home for their mother and themselves, and that all the parties lived therein as their dwelling until their mother's death, two years before the commencement of this suit; that this 3 by 10 rods of ground where the house was built was conveyed to the mother prior to her death; that since the mother's death, when in Salt Lake, plaintiffs continued to live in the same house, and occupy the land in question, with and as part of his homestead, and in connection with the residence, as a garden, orchard, and outhouses for family purposes and support, and that he owned no other residence or home since his marriage; that the 9 by 10 rods was all the time surrounded by a fence, and was not divided or apportioned off from the house; that the plaintiff owned 3 by 10 rods of the remaining 6 rods, his brother owning the balance of the lot; that plaintiff always intended the 3 by 10 rods for a homestead, and intended to build a house upon it and live thereon when able to do so; that he had no other home; that the other piece was used for the production of vegetables, and as a garden for the use and benefit of the family; that in October, 1896, plaintiff left Salt Lake City with his family, and went on his mission to the Southern states; that, prior to the execution and delivery of the deed by the sheriff, plaintiff notified the parties in writing that he claimed the property as a homestead, and also notified the defendants, in writing, of his claim, and forbade the execution and delivery of the deed; that in January, 1898, plaintiff filed his declaration of homestead with the recorder of deeds, claiming said property as a homestead. The defendants offered no evidence except the execution, answer, and return. Thereupon the court found the facts in favor of the defendants, and made its decree accordingly. From this decree, this appeal is taken.

MINER, J. ZANE, C. J., concurs. BARTCH, J., dissenting.

OPINION

MINER, J. (after stating the facts):

Section 3429, Comp. Laws Utah 1888, as amended by section 11, c. 71, p. 215, Sess. Laws 1896, provides: "If the debtor be the head of a family, there shall be a further exemption of a homestead, to be selected by the judgment debtor, consisting of lands and appurtenances, which lands may be in one or more pieces in different localities of the same county in which the judgment debtor resides, or in different counties of the state,...