Oregon Mortg. Co. v. Dunbar
| Decision Date | 24 June 1930 |
| Docket Number | 6655. |
| Citation | 289 P. 559,87 Mont. 603 |
| Parties | OREGON MORTG. CO., Limited, v. DUNBAR et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Ravalli County; James M. Self, Judge.
Action to quiet title by the Oregon Mortgage Company, Limited, a corporation of Great Britain and Ireland, against John Dunbar and others. From a judgment for defendants, plaintiff appeals.
Affirmed.
Elmer E. Hershey, of Missoula, for appellant.
O'Hara Madeen & Grant, of Hamilton, for respondents.
Plaintiff a foreign corporation doing business in this state, commenced this action to quiet title to 150 acres of land situated in Ravalli county. The complaint is in the usual form. The land is described by legal subdivisions and consists of a compact tract containing 110 acres, and another tract of 40 acres cornering the 110 acres. Defendant Dunbar by answer alleges ownership of the land and the filing by him of a declaration of homestead on December 31, 1927, covering the entire 150 acres, together with an additional ten acres adjoining the 110-acre tract. The cause was tried to the court without a jury.
The evidence introduced shows that plaintiff obtained a sheriff's deed to the 150 acres on March 28, 1929, issued pursuant to an execution sale based upon a judgment obtained by plaintiff against defendant Dunbar. A house and outbuildings are situated on each tract. Defendant sometimes lived in one house and sometimes in the other, and his tenant lived in the house which he himself did not occupy. The whole of the two tracts described in the complaint has always been rented, occupied, and worked as a unit for agricultural purposes. Whether defendant owns any other land does not appear. It is conceded that he does not own the additional 10-acre tract embraced in the declaration of homestead. Over objection, the declaration of homestead, recorded prior to the judgment, was admitted in evidence.
Findings of fact, conclusions of law, and judgment were in favor of defendant, and plaintiff appealed. The several assignments of error, variously stated, question the validity of the declaration of homestead on the ground that the two tracts of land which corner may not be embraced in a declaration of homestead.
Our homestead exemption laws were enacted pursuant to the command of section 4, article 19 of the Constitution, in which it is declared that "the legislative assembly shall enact liberal homestead and exemption laws."
By section 6945, Revised Codes 1921, it is provided that "The homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated, selected as in this chapter provided." Section 6968 provides:
These statutes should be liberally construed in favor of the debtor for whose benefit they were enacted. Ferguson v. Speith, 13 Mont. 487, 34 P. 1020, 40 Am. St. Rep. 459; Dayton v. Ewart, 28 Mont. 153, 72 P. 420, 98 Am. St. Rep. 549; Yerrick v. Higgins, 22 Mont. 502, 57 P. 95.
The precise question here involved has never before been passed upon by this court. In McCarthy v. Kelley, 63 Mont. 233, 206 P. 782, it was held that "an undivided one-half (1/2) interest and equity" in 240 acres was void because the area exceeded that authorized by the statute. In that case this court, in distinguishing a Texas case, Jenkins v. Volz, 54 Tex. 636, said: "It is evident that the statute construed in the Texas Case is not similar to our Homestead Act, as there is no provision in our law providing that the homestead may be in one or more parcels." The laws of Texas expressly provide that the homestead may consist of one or more parcels. Our statutes are silent on that subject, and hence the statement in the Kelley Case is fully warranted, and yet does not decide the precise point here presented.
Under our statutes, the only limitations upon the quantity and value of lands that may be selected as a homestead not included in any town plot, city, or village, are that they shall not exceed 160 acres in area or $2,500 in value. There is the further limitation that they shall be used for agricultural purposes. The declaration of the defendant is within the statutory...
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