Hall v. Holland , 138 Minn. 403 ( 1917 )

Quinn, J.

Action to restrain defendant Nom proceeding with an execution sale of plaintiff’s homestead. At the conclusion of the trial, the district court dissolved the temporary writ and denied the relief asked for. From an order denying her motion for a new trial plaintiff appealed.

In May, 1911, plaintiff purchased a house and lot at 104 Snelling avenue, in the city of St. Paul, which she, with her two minor sons, occupied as a homestead until April, 1915, when she went to keep house for her sons on Cook street, one of the sons having engaged in business near that place. The plaintiff rented her home on Snelling avenue, retaining a key to the dwelling and reserving the third floor thereof in which she left some of her household effects. She kept house for the boys and helped about the store until June, 1916, when she undertook nursing about the city. According to her own testimony she did not return to her place on Snelling avenue to remain over night or to occupy the same, otherwise than to leave her few belongings in the room on the third floor, until in September, 1916, when she and one of the boys returned 'and slept there a portion of the time, and she was living there at the time of the execution levy thereon, which is here in question. No notice of plaintiff’s claim of her homestead rights was ever filed in the office of the register of deeds of the county, as permitted by section 6963, G. S. 1913.

The defendant held a judgment in the sum of $184.65 and accrued interest, against the plaintiff and her deceased husband, and on October 31, 1916, caused execution to issue thereon. The sheriff of the county levied upon the premises to satisfy such execution, and the temporary injunction issued herein was served on December 18, 1916.

Upon the trial the plaintiff offered to show her financial condition, and that it was her intention during all the times subsequent to her leaving the premises in May, 1915, to return to and retain the same as her homestead. Upon objection this testimony was excluded.

The trial court, in its decision, found that plaintiff w'as entitled to no relief; that defendant’s judgment against plaintiff was a lien upon the property; that the property may be sold to satisfy the lien, and that the temporary injunction be dissolved.

The plaintiff was unfortunate, if she wished to retain the premises as her homestead, not to have filed a notice claiming the same as her homestead, as required by the statute. Section 6963, G. S. 1913, provides, in part, as follows:

“But if he shall cease to occupy such homestead for more than six consecutive months he shill be deemed to have abandoned the same unless, within such period, he shall file with the register of deeds of the county in which it is situated a notice, executed, witnessed, and acknowledged as in the ease of a deed, describing the premises and claiming the same 'as his homestead. * * *”

The result of the failure to file such notice is inevitable. Plaintiff had ceased to occupy the premises from April, 1915, to September, 1916, a period of about 16 months.

The judgment became a lien against the property upon the lapse of 6 months from the time plaintiff ceased to occupy the same, and the fact that she returned and made it her home after an absence of 16 months, but before the levy under the execution, does not defeat the lien. Where there has been a loss of exemption of a homestead by abandonment, a resumption of occupancy as a home does not have a retroactive effect, but merely gives a new right as of the date of the resumption. Clark v. Dewey, 71 Minn. 108, 73 N. W. 639.

While it is proper, speaking generally, to allow proof of a homestead claimant’s intention to return and retain the premises as a homestead, yet in this case the plaintiff’s own testimony was conclusive against her, and, the exclusion of the proof of her intention was without prejudice to her rights.

Affirmed.