Power v. Burd , 18 Mont. 22 ( 1896 )

PembertoN, C. J.

The mistake in the description of the land in the deed from Turner to Samuel Burd is admitted. It is conceded that Samuel Burd held the land in trust for Julian F. Burd. Both parties to this appeal ask that the deed be reformed. The plaintiffs ask that after the reformation of the deed the title thereto be decreed to be in them, while the defendant Julian F. Burd asks that he be decreed the title thereto as a homestead.

We think the only question of any materiality or merit involved in this appeal is as to whether defendant Julian F. Burd is entitled to have the land in controversy adjudged to him as a homestead. Although the defendant Julian F. Burd claims in his answer to have occupied the land in controversy since June 5, 1886, as a homestead, still, on the tidal of the case, as shown by the record, he admitted that neither he nor his family ever resided on or occupied the land, or any part thereof. It is further shown that defendant Burd, on the 20th day of May, 1887, made a homestead entry of public land under the laws of the United States. It is conclusively shown that the defendant Burd never made any kind of improvement on the land in controversy, and that neither he nor his family ever occupied any part of it in any manner or for any purpose whatever.

The statute of this state in relation to homesteads (Code Civil Procedure) under which this case was tried is as follows:

“Sec. 322. A homestead consisting of any quantity of land not exceeding one hundred and sixty acres used for agricultural purposes, and the dwelling house thereon, and its appurtenances, to be selected by the owner thereof, and not included in the town plot, city, or village; or, instead thereof, at the option of the owner, a quantity of land not exceeding in amount one-fourth of an acre, being within a town plot, city, or village, and the dwelling house thereon, and its appurtenances, owned and occupied by any resident of this territory, shall not be subject to forced sale on execution or any other final process from a court: provided, such homestead' shall not exceed in value the sum of two thousand five hundred dollars. ’ ’

Our statute is exactly the same as that of Minnesota. The courts of that state hold that actual occupancy is necessary to constitute a homestead in land. (Quehl v. Peterson, 47 Minn. 13, 49 N. W. 390; Tillotson v. Millard, 7 Minn. 513 (Gil. 419); Sumner v. Sawtelle, 8 Minn. 309 (Gil. 272); Kelly v. Baker, 10 Minn. 124 (Gil. 154); Kresin v. Mau, 15 Minn. 116; Kelly v. Dill 23 Minn. 435.)

Under a similar statute to ours the supreme court of California, in many decisions, holds that actual occupancy is necessary to acquire a homestead in land. (Gregg v. Bostwick, 33 Cal. 220; Villa v. Pico, 41 Cal. 469; Babcock v. Gibbs, 52 Cal. 629; Lubbock v. McMann, 82 Cal. 226, 22 Pac. 1145; Tromans v. Mahlman (Cal.) 27 Pac. 1094. See, also, Tillar v. Bass (Ark.) 21 S. W. 34; Hotchkiss v. Brooks, 93 Ill. 386; Thompson on Homesteads and Exemptions, §§ 100-105; Waples on Homesteads and Exemptions, pp. 176-186.)

In Bonner v. Minnier, 13 Mont. 269, 34 Pac. 30, the authorities are collated on this subject. While in this case there was a dissenting opinion, there was no difference of opinion that under our statute occupancy was necessary to acquiring a homestead in land. The authorities are too numerous to cite which hold that an intention to claim and occupy land as a homestead is not sufficient to constitute a homestead.

Counsel for appellant rely upon Reske v. Reske, 51 Mich. 541, 16 N. W. 895, in which case actual occupancy was not required. But in Reske v. Reske.the claimants had fenced the lot which was procured for a home. They were proceeding to improve and occupy it to the extent of their means; they had their domestic animals omit; they came to live in the immediate vicinity of the lot; they dug a well; they put up outbuildings. Everything but building the dwelling was done before levy. Here something more had been done and was being done by the claimants than merely declaring their intention to claim and occupy the land in question as a homestead. So in the other cases cited by appellant. In the case at bar appellant had done, at the time of levy, nothing, except to declare his intention to claim and occupy the land in controversy as a homestead, nor does it appear that he has done anything since towards improving or occupying the land as a homestead. AVe think it may be said that, according to the great weight of authority under statutes like ours, the mere declaration of an intention to claim land as a homestead is insufficient to constitute the land a homestead.

The appellant, during the trial objected to the introduction in evidence of the papers constituting the judgment roll in the suit to foreclose the mortgage mentioned in the statement, and assigns their admission as error. It was competent to introduce these papers to show the indebtedness of defendant Julian E. Burd to the plaintiffs as alleged in the complaint. Counsel for appellant contends that, as Julian F. Burd’s wife was a party to the suit to foreclose the mortgage, she "should also have been a party to this suit. AVe do not think so. Since we have seen that the claim of homestead in the lands in controversy made by defendant Burd cannot be sustained, his wife has no interest in this suit which renders her a necessary party. It is not contended that the judgment in the mortgage suit, spoken of '"above, is void, or that any of the proceedings to carry said judgment into effect were void. The judgment and proceedings in that case cannot, therefore, be collaterally attacked in this case.

The judgment roll in the mortgage case was admitted in evidence in this case to establish the indebtedness of defendant Julian F. Burd to plaintiffs. For that purpose it was competent.

The homestead filing on public lands by defendant Burd, made in 1887, was properly admitted in evidence, as tending to show whether or not appellant’s claim of homestead in the lands in controversy was made in good faith.

We are of the opinion that this case was fairly tried, and the proper result reached. The judgment appealed from is aifirmed.

Affirmed.

De Witt and Hunt, JJ., concur.