Walters v. People ( 1856 )

Scates, C. J.

Two questions arise, whether a tract of timber, a mile from the farm land, and not adjoining, yet from which supplies of timber, rails, firewood, etc., were alone derived for the support of the farm, can be treated as part of the homestead under the act of 1851, where both tracts do not exceed the amount fixed in the act; and whether the widow, having leased the farm and dwelling for a year after the death of her husband, and resided six or eight miles from it, with her father, until her recovery from a confinement, thereby lost her homestead rights, by abandonment, though she did not intend to abandon the premises as a homestead when she left.

The language of the act seems to contemplate but one piece of land. The exemption is confined to “ the lot of ground and the buildings thereon, occupied as a residence, and owned by the debtor, being a householder, and having a family, to the value of one thousand dollars.” Acts of 1851, p. 25, Sec. 1.

There is no provision in this act to make up the value of the homestead to one thousand dollars, by other property, when it falls short in value. Under the act in relation to judgments and executions (Rev. Stat. of 1845, p. 306, Sec. 33), certain values are exempted, and debtor may select property to the value of sixty dollars, and it may be for the fuel and provisions for the family for three months and for the stock. But this homestead act contains no provision to make up a deficiency in the value of the homestead below one thousand dollars, nor is there any intimation of such an intention in any provision of the act. The contrary is strongly inferable from the act, for the exemption is “to the value of one thousand dollars” in the “lot of ground and the buildings thereon, occupied as a residence.”

In the event of the lot and buildings exceeding that value, provision is made to divide the premises, if divisible, leaving the dwelling and so much of the lot as, together, are worth one thousand dollars—but if indivisible, then for a sale of the whole—and for the payment of one thousand dollars to the debtor, which is exempted from levy and sale, for one year. Acts of 1851, p. 26, Secs. 3, 4 and 5. The protection for one year may enable the debtor to reinvest the amount in another homestead. Two or more adjoining lots might be occupied, and used as one lot, for a homestead, and might be so essentially so as to be indivisible. I am not. able, however, to construe the act as including distinct and separate lots or tracts, not adjoining or contiguous, not even for the purpose of securing so essential an article as fuel. I am, therefore, of opinion that the timber tract in this case cannot be claimed and exempted as a part of “the lot of ground” upon which the dwellings and homestead exist. The objects and provisions of the act are much more circumscribed than the “ act to define the extent of possession in cases of settlement on the public lands,” under which the case of Gleason et al. v. Edmunds, 2 Scam. R. 448, was decided. There, the court gave great latitude to the settler to include more or less land within the boundaries of his settlement claim. But here, it is confined to the “lot of ground ” occupied by the dwellings and home, or actual residence of the housekeeper. This lot of ground may be but a few feet square, while the debtor owns thousands of acres, in many other tracts. It may again contain thousands of acres in one compact body, embracing many surveys or legal subdivisions. It is, doubtless, a question of fact, whether particular adjoining and contiguous tracts, forming one compact body, is or not parcel of the homestead. So might separate, disconnected parcels, fall under the more general idea of parcel of the homestead place. But I conceive the intention of the legislature in confining the exemption to “thelot of ground” containing the dwellings and residence, designedly narrowed the protection to less than would be included in the more comprehensive terms of the “homestead,” as known under the dower act, and in general parlance.

The exemption of personal property from sale under execution, gives absolute ownership of the property to the debtor, while covered by that protection, and he may sell or mortgage the same without losing that protection either to himself or mortgagee. Vaughn v. Thompson, 17 Ill. R. 78. See also Cook v. Scott, 1 Gil. R. 333 ; McCluskey v. McNeely, 3 ibid. 578; Cassell v. Williams, 12 Ill. R. 387.

Whatever may be the effect of the act under consideration, in this view, with respect to the debtor himself—which I do not propose to discuss or decide here—though the act would seem to contemplate occupancy as a residence, yet the estate preserved to the widow and children is, until the youngest arrives of age, which may be, in case of a posthumous birth, twenty-one years and nine months, and in case of the widow sm’viving the nonage of the youngest child, she has a life estate. Thus upon the contingency of thus surviving, a freehold is created in the widow. But all, unquestionably, take upon condition of continuing occupancy by “ some or one” of them, widow or child. It is contended here that the homestead was abandoned and lost, by the widow having rented out the premises for some ten months, during which time she resided with her father, some six or eight miles distant, where her bad health and approaching confinement required her to find that attention and care, that she could not obtain by remaining in the dwelling house of the homestead. What is the meaning of “ occupy,” or “ continuing to occupy,” within the intention of the legislature? In common parlance and in reference to housekeeping, we at once attach the idea of actual residence, dwelling, abiding on, the place of bed, board and washing, three acts of constant recurrence, to supply the necessaries of life and renew the physical man. This is the second .sense given it by Webster, but it is used also in the sense of possess, generally, and Webster also uses the word possess, in the same variety of senses in the main as is given to occupy or occupancy. Turn to 2 Bouvier’s Law Diet. 240, “ occupancy;” 336, “possession,” and we find the words used and understood in the same great variety of senses. If a man go abroad, amimo revertendi, and reside for temporary purposes of trade or other business, he will not lose his domicil; and yet we know that the party’s domicil follows his actual residence. So it is with foreign ministers and diplomatic agents. In contemplation of law, they continue to occupy their mansions or dwellings in their own country, though actuaEy resident abroad for years. A person may have a constructive possession or occupancy, and he' may have a possessio pedis by tenants, or actual enclosures, and in contemplation and within the meaning of law, he may have acimal possession, actual occupation, without residence. Such is the difference between the statutes of limitation of 1835 and 1839. The object of a temporary absence here was the preservation of health, it maj be also of life. The farm is made productive in the meantime, by renting, thus contributing to the end designed in a homestead-—-the support, in part, of the family. There was no intention of abandonment, as a constant anxiety was shown and expressed to do nothing to lose the right to the homestead, as such. We shall put no such harsh and narrow construction upon the language and intention of the legislature, as to take away the estate, when it becomes impolitic, or impracticable to continue to occupy by actual residence for a season—-the possession—the occupation being preserved for the benefit of the family in the meantime, by a tenant, or by the storage of the household furniture, etc., until the' family can return. The best intention of the legislature will, doubtless, be promoted, by allowing that continuing occupation of some of the family in the form and upon the terms best calculated to aid them in providing for their wants, whether by themselves or by their tenants. For it may be, at times, that food and clothing are paramount wants to shelter. At least for the purposes of this ease, we find no forfeiture or abandonment, in the acts of the widow in proof here.

Decree reversed, and cause remanded to enter decree to apply for order of sale of the timbered tract only.

Decree reversed.