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The remedy of the execution creditor is against that portion of the premises included within the homestead declaration, which has ceased to be part of the homestead. It may be a difficult question to determine how the property which does not belong to the homestead should be described, but the fact that such a difficulty exists does not excuse a levy upon the homestead itself. If there are any natural or artificial boundaries between the dwelling-house of the homestead claimant and that of his tenants, it will be easy to make a proper description of the property subject to sale, or it might be described as that portion of the premises described in the declaration not actually used by the family as a homestead. It is claimed by respondent that, inasmuch as the dwelling-house now occupied by the tenant was placed upon the land subsequent to the filing of the declaration of the homestead, and because the entire property is now under the value of $5,000, no portion of the premises described in the declaration of homestead is subject to execution or forced sale. There is no merit in this contention. The constitution provides that 'the legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families.' Article 17, § 1. Acting upon this provision, the legislature has provided that 'the homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated.' Section 1237, Civil Code. The homestead is exempt from execution or forced sale, except as in this title provided.' Section 1240. The question before us is not one of abandonment or vitiation of the homestead in its entirety, but a question of exemption. What property is exempt from execution or forced sale? 'It [the homestead] represents the dwelling-house in which the family resides, with the usual and customary appurtenances, including outbuildings, of every kind, necessary or convenient for family use, and lands used for the purposes thereof. The only tests are use and value. The former is both abstract and statutory; the latter statutory alone.' Gregg v. Bostwick, 33 Cal. 228. The mere filing of a declaration of homestead does not of itself constitute the premises embraced within it the homestead of the declarant. The use of the property is an important element to be considered.' Laughlin v. Wright, 63 Cal. 116. Referring to Gregg v. Bostwick, Mr. Thompson, in his work on Homesteads and Exemptions, says: This last case very clearly conducts us to the rule that houses built for the purpose of being rented to tenants. thus yielding the debtor a revenue separate from any use immediately connected with his dwelling, form no part of his homestead.' Section 130. In Ashton v. Ingle it was held that, in order to be exempt, the property claimed as a homestead must be occupied as a residence by the family of the owner. Any portion of his real estate not so used and so occupied will not be exempt, whatever may be the extent or value of such real estate, great or Where houses and lots are rented for a money rent to tenants, who

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are not servants or employes of the owner, with the intention that such houses and lots shall become the homes and residences of such tenants and their families, and they actually do become the homes and resi dences of such tenants and their families, the owner, certainly, cannot then clain that such houses and lots are a part of his own home and residence, although they may adjoin the same.' 20 Kan. 670. See also, Austin v. Stanley, 46 N. H.51; Kurz v. Brusch, 13 Iowa, 371; Casselman v. Packard, 16 Wis. 114. "

On September 27, 1889, the following order was filed by the court in bank:

"PER CURIAM. The parties to this cause having filed their stipulation in writing, by which the respondent waives the point upon which the judgment was affirmed, and the appellants waive all errors by them assigned which are not involved in the single question whether or not the second house mentioned in the record is exempt from execution, and having jointly petitioned for a reconsideration of the cause upon that point alone, it is ordered that the judgment of affirmance heretof re rendered be, and the same is, hereby vacated and set aside, and the cause ordered resubmitted in bank as of this date, upon briefs on file. BEATTY, C. J.; Works, J.; PATERSON, J.; Fox, J.

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Frank M. Stone, for appellants. Geo. D. Collins, (Sawyer & Burnett, of counsel,) for respondent.

Fox, J. Judgment was rendered in this case, in department 1 of this court, September 9, 1889, affirming the orders appealed from. Reference is made to the opinion filed at that time for a statement of the case, and for the rulings then made upon the points considered, which rulings are still adhered to. The parties have since, by stipulation, waived all controversy upon the points then discussed; but an orderly and intelligible disposition of the case requires that rulings should be had upon those points, and, after a careful reconsideration of the case in bank, we see no reason to change the decision then made, so far as it goes. Upon the express stipulation, and at the request of counsel on both sides, the case was resubmitted in bank, for the purpose of having a direct opinion of the court upon the single question of whether or not, the second house mentioned in the former opinion-the house built on the rear of the lot since the filing of the homestead declaration-was and is exempt from execution; whether it was and is impressed with the character of homestead to the extent of being exempt from execution on that account. And, to avoid future litigation between the parties, it is stipulated that the orders of the court below, from which the appeal was t..ken, shall be affirmed or reversed according as we shall now decide this question in the affirmative or negative.

There can be and is no question but that this entire lot was fully impressed with the character of homestead before and at the time this second house was built upon it. The building of the second house did not increase the value of the entire property, including both houses, to an amount

which is in excess of that which is by law, and as incident to homestead, made exempt from execution as such. No part of the tract has ever been abandoned, or the homestead claim thereon released, in the manner provided by law. How, then, if at all, is it made subject to sale on execution? The strict language of the question submitted confines it to the house. Is the house exempt? It certainly is, if the land upon which it stands is exempt; for it has become a part of the realty, and can only be separated from the land with the consent of the owner. But we do not understand the intent to be to limit the question to the house alone, as distinguished from the land upon which it stands.

The constitutional provision is that "the legislature shall protect by law, from forced sale, a certain portion of the homestead and other property of all heads of families. Article 17, § 1. Here there is no limit to the value of the property thus to be protected. It is left to the legislature to determine what portion, to what limit, and by what means, it shall be protected. Exemption is a constitutional right incident to homestead, (Ham v. Bank, 62 Cal. 138;) but the extent of such exemption, and the means by which it shall be secured, are made by the constitution the subject of legislative enactment. Legislating for the purpose of giving effect to this constitutional provision, it has been in the Codes provided that "the homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated, selected as in this title provided." Civil Code, § 1237. Following this, and in the same title, which extends to and includes section 1269, will be found the provisions as to the mode and manner of selection in order to avail of the exemption; the limitation of such exemption; the mode and manner of abandonment or release; the exceptions to the rule of exemption; and the course to be pursued when the homestead exceeds in value the limit of the exemption. Actual occupation, as a place of residence, at the time of filing the declaration, is necessary in order to impress upon the premises the character of homestead. Section 1263; Prescott v. Prescott, 45 Cal. 58; Babcock v. Gibbs, 52 Cal. 629; Dorn v. Howe, Id. 630; Aucker v. McCoy, 56 Cal. 524. Use at the time of selection, and selection by the making and recording of the proper declaration, are both essential elements in the creation of the homestead character. Neither is sufiicient for that purpose without the other. Laughlin v. Wright, 63 Cal. 113; Maloney v. Hefer, 75 Cal. 424, 17 Pac. Rep. 539; In re Allen, 78 Cal. 294, 20 Pac. Rep. 679. If at the time of filing the declaration for record, the two houses now standing upon

is lot had been standing as they now do, and occupied as they now are, only the one occupied as the dwelling of the plaintiff, with that portion of the lot used in connection therewith, would have been impressed with the homestead character. As to the other house, and the land used in connection with it, the attempt to dedicate it as a homestead would have been inoperative. Tiernan v. His Creditors, 62 Cal. 286; Maloney v. Hefer, supra ; In re Al

| len, supra. But it has never been held, under our statute, that the subsequent erection of a second house, for whatever purpose such second house was used, operated to relieve the property pro tanto, or any separate part of it, of the homestead character which had already attached, so as to make it liable to seizure and sa under execution. On the contrary, the statute expressly provides that the homestead can only be conveyed or incumbered as provided in section 1242, and only be abandoned as provided in section 1243, Civil Code; also, that it is subject to execution only in the cases provided in section 1241, of which this is not one. Even a removal from the homestead, followed by long-continued residence and the acquirement of citizenship in another state, has been held not to operate as an abandonment of a homestead. Porter v. Chapman, 65 Cal. 367. 4 Pac. Rep. 237. See, also, Tipton v. Martin, 71 Cal. 325, 12 Pac. Rep. 244. The whole lot being adapted to use as a homestead, and actually used as such at the time of dedication, it then became, as an entirety, affected with the homestead character. And this is so without regard to the value of the lot, either at the time of its dedication or at any subsequent period. There is no statutory limit as to the value of the property which may be selected, and upon which the character may be impressed. When the attributes of residence and selection according to law exist so as to express its essence, the homestead becomes an estate in the premises selected, exempted by law from forced sale. They may be of greater or less value than the interest in them exempted by law. The excess, if there be one, in value, though it may be homestead in fact, is subject to the jus disponendi of the owner and the claims of his creditors. Ham v. Bank, 62 Cal. 139. But it does not follow that the excess in value is subject to seizure and sale at the instance of an execution creditor. If the property so impressed with the character of homestead is worth more than the homestead exemption, and the creditor desires to avail himself of that excess, the proceedings provided by the Code (sections 1245-1259, Civil Code,) must be taken for the admeasurement and application of such excess. Waggle v. Worthy, 74 Cal. 268, 15 Pac. Rep. 831. A judgment creates no lien upon property thus affected; and a levy gives no right, except to inaugurate the proceedings for the admeasurement of such excess. Barrett v. Sims, 59 Cal. 615. It follows that a sale, unless made under order of court, and for purposes of segregation of the excess as provided in the sections referred to, would convey no title. But though the sale of a homestead under execution conveys no title, it may create a cloud, and involve the homestead claimant in litigation, and will therefore be enjoined. Culver v. Rogers, 28 Cal. 520; Eby v. Foster, 61 Cal. 287.

So far as we have been able to discover, no case has before arisen under our statutes where the precise question now submitted has been presented. In every case where it has been held that a second tenement, used for purposes other than the residence of the family, has operated to pre

vent the homestead character from attach- | ing to such second tenement, and the land used in connection therewith, such second tenement existed at the time of the attempted homestead selection, and was not one constructed after the homestead character had attached to the land. Here the homestead character had attached before the second building was constructed; and, reasoning from the analogy of the statutes and of the cases cited, the construction of such building was not an act which relieved it of such homestead character, and rendered the land subject to direct seizure and sale under execution. If the construction of this second building had increased the value of the tract claimed as a homestead to an amount in excess of the homestead exemption, or if, for any other cause, it had become or was of greater value than the amount of such exemption, the plaintiff would have been entitled to make the levy, as he has done in this case, not for the purpose of proceeding to sale under the execution, but as a basis of application to the proper court for proceedings under the statute for the admeasurement of such excess in value, and then for partition or sale under the order of the court, as in the statute provided. But no provision for such a proceeding has been made, unless there is such an excess in value. And while it is true that, under the rule of | law heretofore established, this second house, with the land upon which it stands, would not have taken on the homestead character if it had been there at the time of homestead selection, but that the homestead would then, by reason thereof, have been so limited in extent as to exclude this house and its grounds, it may very well be that the legislature did not intend that the homestead should thereafter be limited in extent by reason of future improvements, even if such improvements were used for purposes of revenue rather than residence, so long as they did not increase the value beyond the limit of exemption. Whether this be so or not, we are compelled to hold that, under the facts of this case, the statute, and the authorities cited, this whole lot is so affected with the homestead character as to be exempt from sale under execution, and there is no authority in this proceeding, or in the case in which the execution was issued, to segregate any part of the lot, and relieve it from such exemption. Whether there is such authority anywhere, we are not now called upon to decide; but, without further legislative action, it would seem to be exceedingly doubtful. The judgment and order appealed from must be affirmed, and it is so ordered.

We concur: BEATTY, C. J.; WORKS, J.; SHARPSTEIN, J.; THORNTON, J.; MCFARLAND, J.

PATERSON, J., (dissenting.) I am unable to concur in the prevailing opinion, or in the judgment. It is immaterial, in my opinion, whether the second house was placed on the land before or after the filing of the declaration of homestead. The stipulation of counsel reduces the question before us to the simple inquiry whether or not the

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house built on the rear of the lot is exempt from execution. The question is purely one of exemption. The question is not whether the whole property, including both houses, is so impressed with the homestead character that it would go to the survivor on the death of one of the spouses. Property selected and improved as a homestead may retain its homestead character for certain purposes, and yet a portion of it be not exempt from execution. This is plain from the provisions of the constitution and the statute bearing upon the subject. The constitution provides that "the legislature shall protect by law, from forced sale, a certain portion of the homestead and other property of all heads of families.” Article 17, § 1. Acting upon this provision, the legislature has provided that "the homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated." Section 1237, Civil Code. Section 1240, Civil Code, provides that "the homestead is exempt from execution or forced sale, except as in this title provided." This court has decided that the homestead "represents the dwelling-house in which the family resides, with the usual and customary appurtenances, including outbuildings of every kind necessary or convenient for family use; * the only tests are use and value,' (Gregg v. Bostwick, 33 Cal. 228;) that the use of the property is an important element to be considered, (McLaughlin v. Wright, 63 Cal. 116.) Referring to Gregg v. Bostwick, supra, Thomp. Homest. & Ex. says: "This last case very clearly conducts us to the rule that houses built for the purpose of being rented to tenants, thus yielding the debtor a revenue separate from any use immediately connected with his dwelling, form no part of his homestead." Section 130. It has been held uniformly that, in order to be exempt from execution, the property claimed as a homestead must be actually occupied as a residence by the family of the owner,-temporary absences excepted, of course; and that any portion of his real estate not so used is not exempt from execution, whatever may be its extent or value; and that, where houses and lots are rented for money rent to tenants who are not servants or employes of the owner, the latter cannot claim them as a part of his own home and residence, although they may adjoin the same. Ashton v. Ingle, 20 Kan. 670; Austin v. Stanley, 46 N. H. 51; Kurz v. Brusch, 12 Iowa, 371; Casselman v. Packard, 16 Wis. 114. As all other questions are waived by the stipulation of counsel, I think that the rear house, and the land upon which it stands, should be subjected to the satisfaction of the judgment.

(9 Mont. 182)

LANDSMAN et al. v. THOMPSON. (Supreme Court of Montana. Jan. 24, 1890.) DAMAGES-EVIDENCE-NEW TRIAL.

In an action for injuries to a stock of goods, where plaintiff's witnesses, who have had experi ence with such goods, and took a general survey of the stock after the injury, estimate the damages at from $15,000 to $22,500, and defendant's expert witness estimates them at from $1,500 to $3,000, and the only estimate below $1,500 is that of defendant

LANDSMAN v. THOMPSON.

Limself, who places them at $25, but who saw the
goods a few minutes only, it is no abuse of discre-
tion for the trial court to set aside a verdict for
$100 for plaintiffs, and grant them a new trial.

Appeal from district court, Lewis and
Clarke county; N. W. MCCONNELL, Judge.
McConnell, Carter & Clayberg, for appel-
lant. Wade, Toole & Wallace and Turner
& Burleigh, for respondents.

DE WITT, J. The complaint alleges that the plaintiffs were in possession of a building of defendant, which they were occupying as a store, in which they had a stock of goods of the value of $30,000. They were tenants of defendant under a written lease. That, during said occupation, der the lease, defendant undertook some extensive repairs upon the building, involving a change in the front and the roof. It was, however, with plaintiffs' consent that the repairs were made. That in the prosecution of the repairs a portio of the roof and front were removed. That this was done so carelessly that, by reason of a severe storm of rain then occurring, the stock of goods were damaged to the amount of $15,000. The answer denies the negligence, and alleges due care in the prosecution of the repairs, and that there was no more damage to plaintiffs than was incident to the difficulties of the work; that the damage from the storm mentioned was not as much as $100. The case was tried by a jury, and a verdict rendered for the plaintiffs for $100. The plaintiffs gave notice of motion for a new trial, specifying several grounds therefor. On the hearing of the motion, however, it appears that the parties agreed that the instructions of the court were correct, and that there was no error of law in any particular. It was further agreed that the only question that should arise was the sufficiency of the damages, and that all other grounds for the motion should be, and were, specifically abandoned. Under these conditions, the assignment of error on which the motion was heard is as follows: "The verdict is unsustained by the evidence in this, towit: That the jury have found that the plaintiffs were entitled to recover by reason of the negligence of the defendant, and the evidence being clear and unquestioned that the damages of the plaintiffs greatly exceeded the sum found, to-wit, one hundred dollars, and that there was no evidence to justify the finding of one hundred dollars damages only by the jury; because, if the plaintiffs were entitled to any damages at all, the strong preponderance of the evidence clearly shows that they were entitled to damages greatly in excess of the sum found by the jury." The motion for new trial was heard and granted by a judge other than the one before whom the case was tried. The defendant appeals from the order granting the motion.

It becomes necessary to examine the evidence adduced on the trial on the subject of damages. It appears that the value of the stock of goods was from $25,000 to $30,000 before the damage occurred. The majority of the witnesses, in estimating the damages, figure by a percentage of the value. The plaintiffs, Landsman & Cohen, describe the catastrophe in detail. They

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cach testify as to a long experience in the handling and dealing in such stocks. They were on the premises early in the morning of the day of the storm, the rain having place the damage at from 50 to 75 per cent. come into the store in the night. They of the value. Then follows the testimony of 11 witnesses on the part of the plaintiffs, whom it is unnecessary to name. They were all persons engaged in, or ha g been engaged in, the business of handing plaintiffs, for periods of time ranging from stocks of goods similar to the stock of 3 to 34 years, with an average of about 9 years. They respectively figure the damage to the goods from a minimum of 50 per cent to a maximum of 75 per cent. of the value, with an average of at least 60 per cent. These witnesses were on the premises in the morning after the night of the disaster. None of them went through the whole stock, but they remained there from 15 minutes to 3 hours, and took a general survey of the situation. On the quesfendant was as follows: tion of damages the testimony of the deThe defendant

in person testified: "Mr. Landsman asked me to go over to the store. Told me he had a big flood of rain over there, or something of that kind. I went over there; in fact, I did not expect anything else from the severity of the storm; and he referred to the fact of the damage to his goods, and the rain that had come down all store, of course; and he said to me, 'I want through there, and I looked through the you to get appraisers.' 'Well,' I said, ‘I curred, but it is one of those unaccountable am sorry, Mr. Landsman, that this octhings that I cannot help.' Then I told him I would not make any charge for this month's rent, in consideration of the damsustained a damage may be of $25, but I age that he had sustained. I allowed he concluded to give him a month's rent; and he says, 'No; you must get appraisers;' and I stepped out of his store. I have had goods and gents' furnishing goods. I was considerable experience in handling dry in his store that morning about five minutes. From my observation there, I would state that the extent of the damage was defendant, that he was an insurance adabout $25." J. W. Kinsely testified, for juster. Had had 22 years' experience in adjusting losses on clothing and furnishing goods injured by water thrown on at fires. justing, and the basis of computing losses, He testified fully as to his methods of adand fully qualified himself as an expert. It appears that a hypothetical question must have been propounded by counsel, to which the witness testified that he would estimate the loss and damage at from 5 to 10 per cent. of the value. It is observed, by the testimony, that plaintiffs' witnesses place the damages from $15,000 to $22,500. $1,500 to $3.000. Defendant himself estiThe defendant's expert places it at from mates it at $25. The verdict was for $100. The only testimony that places the loss at below $1,500 is the statement of defendant. He was in the building five minutes. Said he had expected a big flood of rain, store, from the severity of the storm. He or something of the kind, in Landsman's looked through the store, exchanged a few

curt words, declined to participate in an appraisement of damages, and stepped out. Then he testifies that, in his judgment, the effect of a big flood of rain upon clothing and gentlemen's furnishing goods was to damage the same in the sum of $25. His | testimony is about of the same character as if he had said, "The goods are not hurt twenty-five cents." From his whole testimony, it appears that his estimate of damages was more an ejaculation of contempt than an actual expression of his opinion.

Such is a résumé of the evidence upon the amount of damages. None of the other testimony is material to this inquiry. Upon this state of facts the court below granted the plaintiff and respondent a new trial. Such action is the alleged error. This court, in ruling upon an appeal from an order of the district court granting a new trial, has said, (BACH, J.:) "There was much conflict in the testimony upon this point, and the granting of a motion for a new trial was within the discretion of the judge of the court below, when based upon this ground, [that is, a conflict in the evidence,] and will not be disturbed where there is such conflict." Chauvin v. Valiton, 7 Mont. 584, 19 Pac. Rep. 215. affirm the rule as there announced; and, if it appeared that there was much conflict in the evidence on the trial of the case at bar, we would on the authority of the above case, were it not for one other point discussed infra, affirm the order granting the motion, without further consideration. It should be affirmed, unless there were an abuse of discretion by the judge granting the motion. To determine whether there were such abuse, it is necessary to examine the evidence.

We

The rule above cited is based upon the ground that the judge below has heard the oral testimony, has observed the demeanor of witnesses, and had the benefit of living, speaking testimony, which in the supreme court is reduced to a lifeless printed record; for which reason it is presumed that the trial judge was in a better position to exercise a sound discretion than is the appellate court, and, if it does not appear that he has abused such discretion, his action will not be disturbed. In the case at bar the judge who granted the motion was other than the one who presided at the trial. The court has not, therefore, the benefit of the judgment of the trial judge, based upon his view of the animate witnesses. We occupy the same point of view as the judge passing upon the motion in this case, as far as the advantage of judging testimony is concerned. This court has, as the judge below had, nothing but printed testimony. Neither has any light save from the inanimate type, and to that we must refer to decide whether the judge abused a discretion. Counsel for appellant confront us with an array of authorities to the effect that, if there be a conflict in the evidence, the verdiet of a jury will not be disturbed, and urges for that reason that it was error in the judge below to set aside the verdict. But that rule is, further, that such conflict, to avail for the purposes urged, must be a substantial, and not a shad

owy, one. It is perfectly apparent that the judge below disregarded the evidence of the defendant Thompson as to the damages being $25, and that evidence only. With this evidence out, there was not a scintilla of evidence to sustain the verdict. This court will not usurp the province of the jury to pass upon the credibility of witnesses, and to determine the weight to be given to their evidence; but, if an alleged conflict be utterly unsubstantial and trivial, it may be considered that there was none, and the setting aside of a verdict unsustained by evidence is not an abuse of discretion. "We do not understand that the credulity of a court must necessarily correspond with the vigor and positiveness with which a witness swears. A court may reject the most positive testimony, though the witness be not discredited by direct testimony impeaching him or contradicting his statements. The inherent improbability of a statement may deny to it all claims to belief." Blankman v. Vallejo, 15 Cal. 646. We are of opinion that the judge below, when he disregarded the testimony of defendant personally as to damages, was not guilty of any abuse of discretion, and that the order granting the motion for a new trial should be sustained, and it is so ordered.

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1. Rev. St. Wyo. § 1470, provides that "any ranchman, farmer, agister, or herder, whom any horses, mules, asses, cattle, or sheep shall be intrusted, for the purpose of feeding, herding, pasturing, or ranching, shall have a lien upon said horses, mules, asses, cattle, or sheep for the amount that may be due for such feeding, herding, pasturing, or ranching, and shall be authorized to retain possession of such horses, mules, asses, cattle, or sheep until the said amount is paid." Held, that wagons, ox yokes, and chains, not belonging to either of the classes of property named in the statute, cannot be the subject of an agister's lien.

2. Where an agister causes property subject to his lien to be taken in execution at his own suit, and assents to the officer's taking possession thereof, he thereby surrenders his lien.

Error to district court, Albany county. W. H. Fishback, for plaintiff in error. Brown, Blake & Arnold, for defendant in

error.

VAN DEVANTER, C. J. This was an action of replevin in the court below, brought by the plaintiff in error against the defendant in error, to recover the possession of certain cattle, wagons, ox yokes, and chains. In his petition the plaintiff claimed to have a special ownership in the property, and to be entitled to its possession, by reason of having an agister's lien thereon. Upon a trial by the court, the following facts appeared: On April 19, 1887, George L. Stokes, the owner of the property in

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