Reeves & Co. v. Saxton

• Decision Date: 31 January 1911
• Citation: 145 Wis. 10,129 N.W. 784
• Court: Wisconsin Supreme Court
• Parties: REEVES & CO. v. SAXTON ET AL.

145 Wis. 10

129 N.W. 784

REEVES & CO.

v.SAXTON ET AL.

Supreme Court of Wisconsin.

Jan. 31, 1911.

Appeal from Circuit Court, Winnebago County; George W. Burnell, Judge.

Action by Reeves & Co. against Wilber Saxton, or Erastus Wilber Saxton, and another. From an order enjoining a sale of property to satisfy a judgment obtained by plaintiff, he appeals. Reversed.

This is an appeal from an order enjoining the sale of the property described in the complaint on the ground that it was the homestead of the defendant Erastus Wilber Saxton. The property belonged to Catherine Saxton, mother of Erastus Wilber Saxton, and in the year 1905 she deeded it to her son, Erastus Wilber Saxton, but reserved “the use and occupancy during her natural life.” At the time this action was commenced, said Erastus was occupying said property as his homestead with the consent and approval of his mother, which said property does not exceed in value $5,000, and does not exceed in extent more than a quarter of an acre, and is located within the corporate limits of the city of Appleton, Wis. Judgment was obtained against the defendants, and an execution issued, and the proceeding resulting in the injunctional order made grew out of the claim of defendant Erastus Wilber Saxton.Gerrit T. Thorn, for appellant.

A. M. Spencer and Henry D. Ryan, for respondents.

KERWIN, J. (after stating the facts as above).

The court is of opinion that this case is ruled by Cornish v. Frees, 74 Wis. 490, 43 N. W. 507. It is considered that there must be a present right of occupancy by title in the person claiming the homestead, and that in the present case the right of occupancy and title is in Catherine Saxton, mother of defendant Erastus Wilber Saxton, and the defendant Erastus Wilber Saxton, having only a remainder or reversion after the termination of the life estate, has no present right of occupancy sufficient to carry with it the privileges of homestead rights during the life estate in his mother, even though permitted to live with her on the premises. Appellant relies upon the following authorities: Tiedeman on Real Property, § 212; 21 Cyc. 503; Cornish v. Prees, 74 Wis. 490, 43 N. W. 507;Brokaw v. Ogle, 170 Ill. 115, 48 N. E. 394;Murchison v. Plyler, 87 N. C. 79;Merrifield, etc., v. Merrifield's Assignee, etc., 82 Ky. 527;In re Sale, 143 Fed. 310, 74 C. C. A. 448;Hampton et al. v. Gilliland et al., 23 Tex. Civ. App. 87, 56 S. W. 572;Roach v. Dance et al. (Ky.) 80 S. W. 1097.

The respondent relies upon section 2983, St., as amended (section 2983, Sanborn's St. Supp. 1906), and especially upon the following portion: “Such exemption shall extend to land not exceeding altogether the amount and value aforesaid, owned by husband and wife jointly or in common and to the interest therein of a tenant in common or two or more tenants in common, having a homestead thereon, with the consent, expressed or implied, of the co-tenants, and to any estate less than a fee held by any person by lease, contract or otherwise.” Also section 2984a, Sanborn's St. Supp. 1906, which reads: “Wherever the word ‘homestead’ is used in the statutes of 1898 or in any law of this state or in this act, it shall be defined to be the estate or interest in land as defined and set forth in section 1 of this act.”

Stress is specially placed on the language of the statute “to any estate less than a fee held by any person by lease, contract or otherwise,” and it is contended that the occupancy by the defendant Erastus Wilber Saxton through his mother brought him within the language and spirit...