Kipp v. Bullard

• Decision Date: 16 December 1882
• Citation: 14 N.W. 364,30 Minn. 84
• Parties: KIPP v BULLARD AND ANOTHER.
• Court: Minnesota Supreme Court

30 Minn. 84

14 N.W. 364

KIPPvBULLARD AND ANOTHER.

Supreme Court of Minnesota.

Filed December 16, 1882.

Appeal from order of district court, county of Sibley.

S. & O. Kipp, for appellant.

G. D. Emery and O'Brien & Wilson, for respondents.

GILFILLAN, C. J.

The action is in ejectment. The complaint alleges title and right to possession in plaintiff, without disclosing the source of his title. The answer denies plaintiff's title, and alleges title in the defendant Carl Bullard. On the trial plaintiff attempted to make out title through an execution sale under a judgment against Gottlieb Bullard, the husband of defendant Caroline and father of defendant Carl. The land sold consisted of 160 acres, on which Gottlieb lived with his family as their homestead at the date of docketing the judgment against him, and to and at the date of his death, and Caroline, his widow, continued to occupy it with her family from the death of Gottlieb to the time of the trial. No selection of any part of the land for a homestead was made by the widow or any of the family, and none was set off to them by the sheriff, but the whole 160 acres was sold as one tract.

At the trial plaintiff objected to defendants proving the fact of homestead on the ground that it was not pleaded in the answer, which objection was overruled and the proof admitted. This is now alleged as error, and it is insisted that where a homestead right is relied on to defeat a plaintiff's claim of title in an action of ejectment, the defendant must set it up in his answer. This would be the true where the complaint alleged an execution sale as the means through which plaintiff claimed title. But it is not true where the complaint merely alleges plaintiff's title generally, without disclosing by what means he acquired it. The defendant in such case is not bound to anticipate what the plaintiff will rely upon to establish his allegation of title, but when plaintiff's proofs are in may disprove, or show that for any cause the plaintiff did not by means of the facts so proved acquire the title.

As decided by this court in Ferguson v. Kumler, 25 Minn. 183; 27 Minn. 156, [S. C.6 N. W. REP. 618,] the omission of defendants to select 80 acres for a homestead did not affect the homestead right. That right still existed. The judgment was not a lien on the homestead. Section 1, c. 95, Laws 1860; section 8, c. 68, Gen. St. 1878. And although, where the quantity of land exempt is included in a larger...