Meisner v. Hill

• Decision Date: 13 November 1912
• Docket Number: 16,611
• Parties: NELLIE F. MEISNER, APPELLANT, v. DORA HILL ET AL., APPELLEES
• Court: Nebraska Supreme Court

138 N.W. 583

92 Neb. 435

NELLIE F. MEISNER, APPELLANT, v. DORA HILL ET AL., APPELLEES

No. 16,611

Supreme Court of Nebraska

November 13, 1912

APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Reversed with directions.

REVERSED.

E. C Calkins and H. F. Rose, for appellant.

John J Sullivan and Fred W. Ashton, contra.

SEDGWICK, J. HAMER, J., concurring. FAWCETT, J., BARNES and LETTON, JJ., dissenting.

OPINION

SEDGWICK, J.

George Meisner died intestate. The plaintiff is his widow and the defendants are his children by a former wife. Fourteen years before his death he had selected the northwest quarter of a section of land in Buffalo county as his family homestead, which at the time of his death was worth about $ 100 an acre, and built a residence thereon of about the value of $ 9,000. At the time of his death he owned other land adjoining the said quarter section, and other property of the value of more than a half million dollars. The plaintiff and the defendants by agreement made a division of the real estate, except the said quarter section of land. The plaintiff contended that she was entitled to the quarter section of land selected as their home and dwelling-house and improvements thereon during her life. The defendants contended that, as the home property was of greater value than $ 2,000, they were entitled to have it sold and the proceeds in excess of $ 2,000 divided among the heirs of the deceased. The parties then entered into an agreement to submit this question to the district court. The terms of their agreement were set out in writing at full length and signed by the parties, but afterwards, for some reason, the defendants declined to voluntarily submit the matter to the district court, insisting that the county court, and not the district court, had jurisdiction thereof, and the plaintiff then brought this action in the district court asking that court to determine that the said quarter section of land "descended to this plaintiff for and during the term of her natural life," and asking for general equitable relief. The answer admitted the facts as above stated, denied the jurisdiction of the district court, and alleged "that the property descended to the defendants subject to the homestead right of the plaintiff to the extent of $ 2,000 for life." The court decreed that the plaintiff's interest in the premises "be limited to the right to the use of $ 2,000 for and during her natural life, the present value of which is the said sum of $ 1,464; and that she be forever barred and restrained from claiming any further or greater homestead interest therein." The plaintiff appealed.

Considering the importance and necessary discussion of the principal question involved, we conclude that the district court was the proper forum without discussion. This conclusion is justified, we think, by our former decisions.

What is a homestead? Is it the present worth of the exemption which the statute allows against the claims of creditors, or is it the family home? Section 6 of the present homestead law (Comp. St. 1911, ch. 36) requires a creditor, when he seeks to subject a homestead to the payment of his claim, to take an oath "that the value of the homestead exceeds the amount of the homestead exemption." This is a legislative declaration that the homestead is something more than, and different from, the $ 2,000 exemption against the claims of creditors. This distinction plainly runs through all of our legislation. It is emphatically presented in substantially the same words in sections 8 and 11 of the act.

The first territorial legislature adopted laws from the state of Iowa that fill about 100 pages of the published laws of that session. Among other subjects, it included the subject of execution and exemptions of property. After exempting public property from sale upon execution, section 478 (1 Complete Session Laws, p. 36) specifies certain articles of personal property exempt to private individuals, and section 479 provided: "If the debtor is the head of a family there is further exempt-- his homestead as provided by law." That is all that is said about the homestead, and then follows specifications of other articles of personal property that shall be exempt. There was no attempt to define "homestead." The word was used in its general acceptation--the home of the family, the common law castle of the citizen. The question of value did not enter into its description. The poor and the rich were treated alike; no one was to be deprived of his home. At the same session of the territorial legislature an independent act was passed providing that the property of married women, owned by them before marriage, should be exempt from their husband's debts. 1 Complete Session Laws, p. 83. The next session of the territorial legislature enacted a general law "respecting practice and proceedings in courts of justice." This law embraces the subject of executions and exemption from sale thereon. 1 Complete Session Laws, p. 341. It contains the same language in regard to the homestead as the former act, exempting it without regard to value. It was not necessary to define it; evidently the commonly accepted definition was adopted. "Homestead" was well defined at the common law. Webster's New International Dictionary defines it as "the land and buildings thereon occupied by the owner as a home for himself and his family, if any, and more or less protected by law from the claims of creditors." Bouvier's Law Dictionary adopts the definition from the supreme court of New Hampshire: "The home place--the place where the home is. It is the home; the house and the adjoining land; where the head of the family dwells; the home farm." If a tract of land is purchased by the parties for a home, and is transferred to one of them accordingly, and is by them in good faith occupied as their home residence, the land so transferred to them, and dwelling-house and other improvements placed thereon, become their homestead. The Revised Statutes of 1866 treated the subject of homestead and exemption under that title. Section 525 provides: "A homestead, consisting of any quantity of land not exceeding 160 acres, and the dwelling-house thereon and its appurtenances, to be selected by the owner thereof, and not included in any incorporated town, city or village, or, instead thereof, at the option of the owner, a quantity of contiguous land, not exceeding in amount two lots, being within an incorporated town, city or village, and the dwelling-house thereon and its appurtenances, owned and occupied by any resident of the territory, being the head of a family, shall not be subject to attachment, levy or sale, upon execution or any other process issuing out of any court within this territory, so long as the same shall be owned and occupied by the debtor as such homestead," with the proviso that the "homestead mansion," and 20 acres of land whereon the mansion is situated, and not in any corporate town, city, or village, shall be exempt, and land adjoining the mansion not exceeding $ 500 should also be exempt, thus defining the homestead and exempting it absolutely. The next session of the legislature amended the act so as to exempt the homestead "so long as the same shall be owned and occupied by the debtor as such homestead." 2 Complete Session Laws, p. 376. By the act of 1873 the homestead was made liable to sale upon the foreclosure of a mortgage "duly executed by the head or heads of the family." 2 Complete Session Laws, p. 711.

By the act of 1875 the exemption of the homestead was continued, with a proviso that the homestead and appurtenances so exempted from forced sale "shall not exceed $ 2,000 in value" (laws 1875, p. 45, sec. 1), and providing in the sixth section of the act that, if the homestead consists of a house and lot which will not bear division without manifest injury, and the "fair and reasonable rent for the same" will be more than $ 300 annually, such excess of rental must be paid by the debtor annually until the debt is paid. Section 19 of the act of February 19, 1877, provides: "Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law." Laws 1877, p. 37. This is a very suggestive section. That part of the homestead which the creditor might take is clearly not considered the whole homestead, and when one spouse dies the other might occupy the whole homestead, unless the creditors interfere. This is the first provision for the descent of the homestead upon the death of the spouse who holds the legal title. It specifies clearly the homestead that so descends, and it is the "whole homestead," and not merely the value exempted from the claims of creditors.

In 1879 our present statute was enacted. Laws 1879, p. 57. The first section of this act provides that a homestead not exceeding in value $ 2,000, including the dwelling-house in which the claimant resides, etc., shall be exempt from judgment liens and from execution or forced sale. This section does not attempt to define what a homestead shall be. Its object is to continue the exemption from the claims of creditors and limit that exemption. Section 17 of the act continues the provision for the descent of the homestead. It enlarges the brief provision of section 19 of the previous act. The survivor now takes the title and possession for life, instead of the mere right of occupancy. The heirs of the deceased are declared to inherit the homestead, subject to the life estate of the surviving spouse, just as they would inherit other property of the deceased. The life estate of the surviving spouse and the inheritance of the heirs of the deceased are protected...