Power v. Burd

• Decision Date: 09 March 1896
• Parties: POWER et al. v. BURD et al.
• Court: Montana Supreme Court

43 P. 1094

18 Mont. 22

POWER et al. v. BURD et al.

Supreme Court of Montana

March 9, 1896

Appeal from district court, Teton county; Dudley Du Bose, Judge.

Action by Thomas C. Power and others against Julian F. Burd and others. There was a judgment for plaintiffs, and defendant Burd appeals. Affirmed.

This is an action to reform a conveyance to certain real estate. From the record it appears that on the 20th day of May, 1890, a judgment was entered in the district court of Choteau county in favor of these plaintiffs and against defendant Julian F Burd and others foreclosing a mortgage executed theretofore by Julian F. Burd and wife on certain real estate for the sum of $4,547.40, and the lands described in said mortgage were ordered sold to satisfy the mortgage debt. In and by said judgment it was also adjudged and decreed that, if the moneys arising from the sale of said land were insufficient to pay the amount of the judgment, interest, and costs, the plaintiffs should have a deficiency judgment for the balance certified by the sheriff. There was a deficiency of $2,797.44, as shown by the return of the sheriff. Execution was issued on the deficiency judgment, and levied on the real estate in controversy, which was sold to the plaintiffs by the sheriff on the 13th day of October, 1890. The defendant Julian F. Burd having failed to redeem the real estate, on the 1st day of July, 1891, the sheriff executed his deed thereto to the plaintiffs. About the time the sheriff levied the execution on the land in controversy to satisfy the deficiency judgment the defendant Julian F. Burd served a written notice on him that he claimed the same to be exempt from execution as his homestead. It seems that defendant Julian F. Burd purchased the real estate in controversy from defendant William Turner, and that Turner executed a deed thereto to Samuel Burd, as trustee for Julian F. Burd. This deed was executed June 5, 1886. The deed, by mistake described the land as the S.E. 1/4 of S.E. 1/4 of section 9 township 28 N., range 7 W.; whereas the land should have been described as the S.E. 1/4 of said section 9. The case was tried to the court without a jury. The court entered judgment reforming the deed from Turner to Samuel Burd, and decreeing title to the land in controversy in the plaintiffs, and that defendant Julian F. Burd and those claiming under him have no title whatever in or to said land. From the judgment defendant Julian F. Burd appeals.

James Donovan, for appellant.

Walsh & Newman, for respondents.

PEMBERTON C.J. (after stating the facts).

The mistake in the description of the land in the deed from Turner to Samuel Burd is admitted. It is conceded that Samuel Burd held the land in trust for Julian F. Burd. Both parties to this appeal ask that the deed be reformed. The plaintiffs ask that after the reformation of the deed the title thereto be decreed to be in them, while the defendant Julian F. Burd asks that he be decreed the title thereto as a homestead. We think the only question of any materiality or merit involved in this appeal is as to whether defendant Julian F. Burd is entitled to have the land in controversy adjudged to him as a homestead. Although the defendant Julian F. Burd claims in his answer to have occupied the land in controversy since June 5, 1886, as a homestead, still, on the trial of the case, as shown by the record, he admitted that neither he nor his family ever resided on or occupied the land, or any part thereof. It is further shown that defendant Burd, on the 20th day of May, 1887, made a homestead entry of public land under the laws of the United States. It is conclusively shown that the defendant Burd never made any kind of improvement on the land in controversy, and that neither he nor his family ever occupied any part of it in any manner or for any purpose whatever. The statute of this state in relation to homesteads (Code Civ Proc.) under which this case was tried is as follows: "Sec. 322. A homestead consisting of any quantity of land not exceeding one hundred and sixty acres used for agricultural purposes, and the dwelling house thereon, and its appurtenances, to be selected by the owner thereof, and not included in any town plot, city, or village; or, instead thereof, at the option of the owner, a quantity of land not exceeding in amount one fourth of an acre, being within a town plot, city, or village, and the dwelling house thereon, and its appurtenances, owned and occupied by any resident of this territory, shall not be subject to forced sale on execution or any other final process from a court: provided, such homestead shall not exceed in value the sum of two thousand five hundred dollars." Our statute is exactly the same as that of Minnesota. The courts of that state hold that actual occupancy is necessary to constitute a homestead in land. Quehl v. Peterson, 47 Minn. 13, 49 N.W. 390; Tillotson v. Millard, 6 Minn. 513 (Gil. 419); Sumner v. Sawtelle, 8 Minn. 309 (Gil.272); Kelly v. Baker, 10 Minn. 124 (Gil. 154); Kresin v. Mau, 15 Minn. 87 (Gil. 116); Kelly v. Dill, 23 Minn. 435. Under a similar statute to ours the...