Palmer v. Hawes

• Decision Date: 17 November 1891
• Parties: PALMER v. HAWES ET AL.
• Court: Wisconsin Supreme Court

80 Wis. 474

50 N.W. 341

PALMER

v.HAWES ET AL.

Supreme Court of Wisconsin.

Nov. 17, 1891.

Appeal from circuit court, Rock county; JOHN R. BENNETT, Judge.

Action of attachment, by Henry Palmer against Cornelia J. Hawes and another. The affidavit for attachment charged fraud, which was denied by the answer. From an order dissolving the attachment, and a return of the property with costs, plaintiff appeals. Affirmed.Geo. G. Sutherland and Winans & Hyzer, for appellant.

Fethers, Jeffris & Fifield, for respondents.

COLE, C. J.

There is no room to doubt that Mrs. Hawes had the right to abandon the house and lot in the Third ward, where she and her husband had lived for many years, and occupy the brick store on Milwaukee street as and for a homestead. The law would permit her to make that change, and creditors could not object to it, though it might be unfavorable to their interests. True, it appeared that the first floor of this building had been used and occupied as a store, and the third floor as a photograph gallery, but the second floor had been occupied as a residence. The occupation and construction of the building show that it might well have the character of a homestead impressed upon it, and the proof is abundant that Mrs. Hawes had selected and intended to occupy it as her homestead. Since the case of Phelps v. Rooney, 9 Wis. 71, it has been held that the building need not be devoted exclusively to the use of a home for the family in order to retain the character of a homestead, but parts of it might be used for business purposes. Harriman v. Insurance Co., 49 Wis. 71, 5 N. W. Rep. 12. So the fact that portions of the brick store were used for other purposes than as a residence for the family would not deprive it of its homestead character, nor prevent Mrs. Hawes from acquiring homestead rights therein. Of course, when she selected and occupied the store for her homestead, she necessarily abandoned or lost her rights in her former home. A person can have but one home at a time. “He may have several houses at once, but only one can be his home at a time.” Jarvais v. Moe, 38 Wis. 440. It seems to us equally clear that Mrs. Hawes might have sold her home in the Third ward and applied the proceeds of the sale to the payment of a mortgage on the brick block which B. F. Rexford held, and no creditor could justly complain of such an application of the money. As her counsel says, she had a perfect legal right to prefer one creditor over another, and to pay one just debt in preference to another. Now, suppose Rexford, instead of taking a second mortgage on the Third ward property, had purchased the equity of redemption in...