Towne v. Rumsey

• Decision Date: 14 March 1894
• Parties: TOWNE ET AL. v. RUMSEY
• Court: Wyoming Supreme Court

35 P. 1025

5 Wyo. 11

TOWNE ET AL. v. RUMSEY

Supreme Court of Wyoming

March 14, 1894

Commenced in District Court July 18, 1891.

ERROR to District Court for Carbon County. HON. JESSE KNIGHT Judge.

Action by James M. Rumsey, Jr., against Marcus M. Towne, John H Symons and Frank A. Hadsell, sheriff, to enjoin the sale upon execution of certain real estate levied upon as the property of William L. Ash. Judgment for plaintiff. Defendants prosecute error. All the material facts are stated in the opinion.

Judgment affirmed.

John H. Symons, for plaintiffs in error.

Under the laws of Wyoming the homestead right is a privilege which depends upon the family relation not only for its origin, but for its continued existence; and the death of the wife, there being no children, puts an end to the family relation, and also the homestead right. (Rev. Stat., Secs. 2780-81; Thompson on H'd Exemp., Sec. 70; Waples on H'd & Exempt., p. 98; Black on Judg., Sec. 425; 1 Freeman on Ex. (2nd ed.), Sec. 240; Revalk v. Kraemer, 8 Cal. 66; Cooper v. Cooper, 24 O. St., 488; Gee v. Moore, 14 Cal. 472; Stewart on Husb. & Wf., 322; Hill v. Franklin, 54 Miss. 632; Calhoun v. Williams, 32 Gratt., 18; Hurt v. Evans, 80 Ga. 330; Hone v. McNeill, 79 Ga. 121; Dismuke v. Eddy, 80 Ga. , 289; 1 High on Inj., 378, 440; 1 Woerner on Adm., 195.) The principle of subrogation does not apply as the mortgage debt was extinguished; in the absence of all fraud. (Boone on Real Prop., 136, 140; 4 Waits Act. & Def., 547; Deering v. Earl, &c., 1 Lead. Cas. Eq., 154.)

McMicken & Blydenburgh, and Lacey & Van Devanter, for defendant in error.

Homestead being once acquired can only be divested by alienation, either voluntary or involuntary--abandonment, or death of each member of the family. For definition of homestead (Waples H'd & Exp., 1; Am. & Eng. Ency. L., Vol. 9, p. 424). How acquired (R. S., Secs. 2780-81). Proceeds of sale exempt (R. S., Sec. 2786). No judgment lien attaches (Black on Judg., 425; Grimes v. Portman, 99 Mo. 229; Ackley v. Chamberlain, 16 Cal. 181). The death of the wife did not destroy it (13 Am. St. R., 116; Bank v. Shelton, 87 Tenn. 393; Taylor v. Bulware, 17 Tex. 575; Wood v. Wheeler, 7 id., 13; Pryor v. Stone, 9 id., 374; Blum v. Gaines, 57 id., 110; Kesler v. Drub, 51 id., 575; Silloway v. Brown, 12 Allen, 30; Barney v. Leeds, 51 N.H. 253; Smith on H'ds, 151, 152; Kimbrel v. Willis, 97 Ill. 495; Beckman v. Meyer, 75 Mo. 333; Meyer v. Ford, 22 Wis. 134; Stanley v. Snyder, 43 Ark. 429; Pierce v. Kusic, 56 Vt. 418; Stultz v. Sale, 92 Ky. 5; Webb v. Cowley, 5 Lea, 722; Pardo v. Bittorf, 48 Mich. 275; Doyle v. Coburn, 6 Allen, 71; Moore v. Parker, 13 S.C. 486; Bradley v. Rodersperger 3 Rich., 226.) Renting a part of a homestead will not be deemed a waiver or abandonment (Bank v. Davenport, 57 Ia. 197; Bradshaw v. Hurt id., 745; Davis v. Kelly, 14 id., 523; Lubbock v. McMann, 16 Am. St., 108; Thompson, 273; Tumlinson v. Swinney, 22 Ark. 400; 43 Ark. 429; Stewart v. Brand, 23 Ia. 386; Dunn v. Tozer, 10 Cal. 167; 56 Vt. 418; 12 Neb. 532; 45 Miss. 170; 16 Wis. 157; 12 O. St., 431; 22 Wis. 135; 97 Ill. 495; Griffon v. Nichols, 51 Mich. 575; Earll v. Earll, 60 id., 30; Pardo v. Bittorf, supra; Brown v. Brown, 68 Mo. 388). Rumsey was a bona fide purchaser (Spicers v. Waters, 65 Barb., 227; 12 id., 605; 3 Ill. 499; 76 id., 261). He was entitled to subrogation (Proward v. Hoeg, 15 Fla. 372; 11 Ia. 174; Pierce v. Faunce, 47 Me. 507; Curtis v. Leavitt, 15 N.Y. 9, 195; Ledyard v. Butler, 9 Paige, 132; Murphy v. Briggs, 89 N.Y. 446; Neilson v. Churchill, 16 O. St., 557; Craythorne v. Swinbourne, 14 Ves., 162; Bank v. Winston, 2 Brock, 252; id., 159; Perkins v. Kershaw, 1 Hills Eq., 351; Wiggin v. Dorr, 3 Sumn., 410; Putnam on Prin. & Sur., 113; Cullum v. Emanuel, 1 Ala. 23; 9 id., 463; Bank v. Dixon, 24 Am. Dec., 640; Hayes v. Ward, 8 id., 554; Lowndes v. Chisholm, 16 id., 667; Smith v. Tunno, id., 617; Bunting v. Ricks, 32 id., 699).

GROESBECK CHIEF JUSTICE.

OPINION

GROESBECK, CHIEF JUSTICE.

The facts disclosed by the record are substantially as follows: In 1883 William L. Ash, a married man, became the owner of the premises in question and continued in the ownership thereof until November 19, 1889, when he sold the same to Rumsey, the defendant in error.

Ash was a bona fide resident of Rawlins, Wyoming, the town in which the premises are situate, and, together with his wife, occupied the premises as a home from 1883 until June 22, 1885, when his wife died. After her death, Ash, who had no children then living, continued to live upon the premises until after his sale of the same to Rumsey. During this time he habitually ate and slept at this place, treated it as his home and had no other place of abode. After his wife's death he employed a servant and kept house for some time, then a niece kept house for him, and thereafter other people lived in a portion of the house, under an oral agreement, occupying a part of the house and using a portion of the furniture and household utensils belonging to Ash, paid him a small rental and boarded him, while he at the same time occupied the remaining part of the house. The value of the house and lot did not exceed $ 1,500. In May, 1887, Ash mortgaged the property for $ 1,100, and November 19, 1889, he sold it to Rumsey for $ 1,500, receiving the excess over the mortgage debt, Rumsey agreeing to discharge the mortgage as a part of the consideration, and paying to the mortgagee the full amount thereof, the mortgage being discharged of record. The conveyance of Ash to Rumsey was by sufficient deed with full covenants of warranty and was properly recorded. In May, 1888, Towne and Symons obtained a judgment against Ash in the district court for Carbon county for $ 631.28, and at the commencement of the suit of Rumsey the case at bar, were proceeding to sell, and were about to sell the premises in question upon an execution, then in the hands of the sheriff issued on the judgment. Rumsey had no actual knowledge of the judgment until the issuance of the execution thereon in June, 1891, and purchased the property and paid the mortgage and made permanent improvements on the property in actual ignorance of the judgment. The trial court held that the property was the homestead of Ash and was exempt from sale upon execution for his debts, and that Ash, having continued to reside thereon until after the sale to Rumsey, the property had not lost its homestead character by the death of the wife, and that Rumsey took the same free from any lien by reason of the judgment against Ash, and a decree was entered perpetually enjoining the sale. The trial court further held that even if the judgment were a lien upon the premises, Rumsey would be entitled as against the defendants to be subrogated to the rights of the mortgagee against the property. The defendant's motion for a new trial on the ground that the findings of fact were not sustained by the evidence and that the court erred in its conclusions of law was overruled and they institute proceedings in error in this court.

A homestead is acquired under the provisions of Sec. 2780 of the Revised Statutes: "Every householder * * * * being the head of a family, shall be entitled to a homestead, not exceeding in value the sum of fifteen hundred dollars, exempt from execution and attachment arising from any debt, contract or civil obligation entered into or incurred." The duration of this exemption is covered by Sec. 2781: "Such homestead shall only be exempt, as provided in the last preceding section, while occupied as such by the owner thereof or the person entitled thereto or his or her family." The status of the homestead upon the death of the owner is regulated by Sec. 2782, which reads: "When any person dies seized of a homestead, leaving a widow or husband or minor children, such widow or husband or minor children shall be entitled to the homestead, but in case there is neither widow, husband or minor children, the homestead shall be liable for the debts of the deceased." The right to alienate the homestead is limited by Sec. 2784: "Every owner or occupant of a homestead as established herein, may voluntarily sell, mortgage or otherwise dispose of or incumber the same; Provided, That every such sale, mortgage, disposal or incumbrance shall be absolutely void, unless the wife of the owner or occupant of such homestead, if he have any, shall, separate and apart from her said husband, freely and voluntarily sign and acknowledge the instrument of writing, conveying, mortgaging, disposing of, or incumbering such homestead, and the officer taking such acknowledgment shall fully apprise her of her right and the effect of signing and acknowledging such instrument." The proceeds arising from the sale of a homestead not exceeding fifteen hundred dollars are exempt, and any subsequent homestead acquired by such proceeds is also exempt and no judgment or other claim against the owner of the homestead is a lien against the same in the hands of a bona fide purchaser for a valuable consideration. Sec. 2786, Rev. St.

These statutory provisions relating to the acquisition, duration disposal and alienation of a homestead plainly point to the legislative intent that the exemption is not only for the protection of the family but for the benefit of the debtor. The right can only be acquired by the head of a family, and the continuance of the right is dependent upon the occupancy of the homestead by the owner thereof or the person entitled thereto, or his other family. The continuance of the homestead exemption does not rest under our statute upon the occupancy of the homestead by the owner and his family jointly, but the conditions imposed by the law as an immunity from seizure and sale under legal...