Scofield v. Hopkins

• Decision Date: 06 November 1884
• Citation: 61 Wis. 370,21 N.W. 259
• Parties: SCOFIELD v. HOPKINS AND OTHERS.
• Court: Wisconsin Supreme Court

61 Wis. 370

21 N.W. 259

SCOFIELD

v.HOPKINS AND OTHERS.

Supreme Court of Wisconsin.

Filed November 6, 1884.

Appeal from circuit court, Rock county.

This is an action to vacate and set aside the levy, sale, and certificate of sale of the lands in question, and to enjoin the execution of a deed thereon, on the grounds that the lands were the plaintiff's homestead, and exempt from such levy and sale. The defendants admit that the plaintiff acquired title to the land, November 4, 1881, but deny that it was a homestead, and justify the levy and sale under a judgment, transcript, and execution. On the trial the court found in effect, as matters of fact, that the plaintiff had such title; that he purchased the land with a part of the proceeds derived from the sale of a homestead in Iowa, May 1, 1881, then owned by his wife, and occupied by them as such homestead; that the plaintiff had been a resident of Rock county ever since November 4, 1881; that the premises in question consisted of 10 acres of land used for agricultural purposes, and not included in any city or village; that prior to the commencement of the action in which the execution was issued, the plaintiff cleared and prepared one and a quarter acres of the land in question for a residence and garden site, dug and curbed a well upon the same, and quarried upon adjacent land, and had upon said premises the stone for the foundations for the dwelling-house and other buildings to be erected upon said premises; that prior to the sale or execution the plaintiff had also planted fruit-trees and hedges upon said premises, and dug the cellar for his dwelling-house and laid the stone foundations thereof; that the premises were so purchased by the plaintiff for the purpose of a homestead, and the labor so done upon the same was for the purpose of erecting a dwelling-house thereon, and for the purpose of using and occupying the same as and for his homestead; but that there was no dwelling-house upon said premises at the time of sale, and the plaintiff had not lived thereon prior to the levy and sale; that prior to the sale the plaintiff forbade the defendants from selling the premises, and notified them that the same were his homestead, and that he claimed them as such; and as conclusions of law the court found, in effect, that the premises were the plaintiff's homestead, and that he was, therefore, entitled to the relief demanded in the complaint. In addition the undisputed evidence showed that after the sale the plaintiff raised crops upon the land, and built a dwelling-house and tobacco-house thereon. From the judgment entered thereon this appeal is brought.Horace McElroy, for respondent.

B. F. Dunwiddie, for appellants.

CASSODAY, J.

All the findings of fact seem to be sustained by the evidence except one. There is no evidence that prior to the sale the plaintiff notified the defendants, or any of them, that he claimed the premises as his homestead. There is a class of cases holding that a failure to make such claim at or prior to the sale on execution of certain kinds of personal property is a waiver of the exemption. Zielke v. Morgan, 50 Wis. 560;S. C. 7 N. W. REP. 651;Wicker v. Comstock, 52 Wis. 315;S. C. 9 N. W. REP. 25;Moffitt v. Adams, (Iowa,) 14 N. W. REP. 88. That class of cases is not applicable here. There is nothing indicating that the plaintiff was present at or knew of the sale. The purchasers were the execution creditors, and of course neither advanced nor paid any purchase money on the sale. The plaintiff had no other land. There was no such thing as selection or setting apart requisite. The purchasers were presumed to know, at the time their judgment was docketed and at the time of the sale, what the plaintiff had done, and was then doing, on the land indicating his intention of making it his homestead. What was so done by the plaintiff evinced a clear intention of making the premises his homestead, as he testified. In such case no forbidding of sale and public proclamation of claim for exemption seem to be necessary. Bennett v. Child, 19 Wis. 366;Manseau v. Mueller, 45 Wis. 436;Kent v. Lasley, 48 Wis. 257;S. C. 4 N. W. REP. 23. In Bennett v. Child, supra, 80 acres, owned by the husband and wife jointly, were sold, but there was no specific claim for exemption prior to the sale. It was very strongly intimated, however, if not held, that such part as might be exempt as a homestead was improperly sold. In Manseau v. Mueller, supra, the probability was asserted that the selection of the 10 acres, claimed as exempt, might have been made for the first time in the trial court, but not in this court. In Kent v. Lasley, supra, the homestead was a part of 200 acres of land, and there was no selection; yet it was held that the owner must be deemed to have selected the 40 by government survey on which the dwelling-house stood. A large number of cases in this court are there cited, recognizing the right to the homestead “without selection.” The premises in question were not included in any city or village. They did not exceed 40 acres. They were used for agricultural purposes. They were owned and...