Phelps v. Rooney , 9 Wis. 70 ( 1859 )

By the Court,

Cole, J.

The only question we have to consider in this case is, whether the south one-third of lot 4, in block 5, with the building and appurtenances thereon situated, and which premises are generally decribed in the evidence in this cause, as “store No. 107, East Water street,” really constituted a homestead within the meaning and intent of § § 51 and 52 of chap. 102, R. S., 1849.

Those sections read as follows:

“ § 51. A homestead consisting of any quantity of land not exceeding forty acres used for agricultural purposes, and the dwelling house thereon, and its appurtenances, to be selected by the owner thereof, and not included in any town plot, or 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 recorded town plot, or city, or village, and the dwelling house thereon, and its appurtenances, owned and occupied by any resident of the state, shall not be subject to forced sale on execution, or any other final process from, a court, for any debt or liability contracted after the first day of January, in the year one thousand eight hundred and forty-nine.”

“§ 52. Such exemption shall not affect any laborer’s or mechanic’s lien, or extend to any mortgage thereon, lawfully obtained; but such mortgage, or other alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same.”

The material facts of this case which present the questions involved, and call for a construction of the above provisions of our statute, may be briefly stated as follows: The respondent, Rooney, some six or seven years since, erected a building upon the portion of lot 4, first above mentioned, which is three stories high in front, and four stories on the river Milwaukee. The style of the building, externally, is that of a store, it is situated in a compact block, on one of the principal business streets of the city of Milwaukee. The basement of the building, and the first story, consisting of a room twenty feet front, by one hundred and fifty feet deep, have been leased by Rooney, and occupied by tenants under him, as a wholesale and retail store. But with the exception of one room in the second story above the main store, which was used as a room for storing goods, it appears that the second and third stories have been' occupied since the house was built, and are still occupied by Rooney and his wife and family as a dwelling, and constitutes the only habitation or dwelling which they have. It further appears, that the property would be much more valuable on account of its situation for business than as a place of residence; and that the rooms leased for a store would command a rent of fifteen hundred dollars a year; while the rooms above, used for the purpose of a dwelling, would not rent for more than two hundred and fifty, or three hundred dollars a year. And although Rooney had leased the rooms used for a store, before the giving of the mortgage, there is nothing in the case tending to show that he was not in possession of, and occupying the upper stories with his family, in entire good faith, as a dwelling house, when he executed the mortgage sought to be foreclosed. But the mortgage was not signed by the wife, and therefore the circuit court, considering that the premises constituted a homestead, within the meaning of the statute, held that the same was invalid, as to those premises, for want of the signature of the wife. The correctness of this ruling is the only matter, as before stated, we have to consider upon this appeal. A majority of this court concur in the view taken of the case by the circuit court, and are of the opinion that the appellant cannot hold the premises under the mortgage.

Upon an examination of the homestead exemption law, it will readily be seen that the latter clause of the fifty-first section, expressly declares that “ a homestead, consisting of a quantity of land, not exceeding in amount one-fourth of an acre, being within a recorded town plot, or city, or village, and the dwelling thereon, and its appurtenances, owned and occupied by any resident of the state,” should be exempt from forced sale on execution; while the fifty-second section clearly provides that every mortgage upon such land, given by a married man, shall be invalid, unless signed and executed likewise by his wife. This language of the statute appears to be plain and positive, and the intention of the legislature is manifest, to deprive the husband of the power, either by a confession of judgment, or by mortgage, of incumbering the homestead, or of alienating it in the latter manner without the consent and co-operation of the wife. That is, the law positively inhibits the husband without the concurrence of the wife, from giving a valid mortgage upon his homestead,which in a city may consist of a quantity of land not exceeding one-fourth of an acre, with the dwelling house thereon, owned and occupied by him, being a resident of the state.

The language of the statute is so clear, precise, and unambiguous, that there can be but little difficulty in arriving at its real meaning. The counsel for the appellant in the very able argument which he addressed to the court upon this case, asked what was to be understood as a “ homestead,” in the ordinary familiar and popular sense of that word ? I think I can substantially adopt the definition which he gave, and which I think the word must have, as used in this statute, that is, a homestead is the land in a city, not exceeding the prescribed amount, upon which is the “ dwelling house,” or “ residence,” or “ habitation,” or “ abode” of the owner thereof and of his family. Evidently the statute does not contemplate that this "dwelling house,” or “habitation,” or “abode” thereon, shall be constructed in any particular style, or built in any prescribed manner. But it is to be in good faith, and truly the dwelling house, or residence, or abode of the owner and his family, in order to be exempt.

Whether this is a wise provision of law, and one which ought to be made, is not a question for the courts to determine. The policy of exempting a reasonable amount of property from sale, under an execution, underwent a very thorough discussion at an early day in this state, and it was declared in the 17th section of the Bill of Rights, that “the privilege of the debtor to enjoy the necessary comforts of life, shall be recognized by wholesome laws.” In obedience to this duty enjoined upon it by the constitution, the legislature passed our present exemption law. Few candid persons would contend that this law was not defective, and that the grossest abuses do not find sanction under its provisions in many cases every day. Instead of securing to the debtor a reasonable amount of property, and a dwelling house for himself and family, of limited value, which shall be exempt from seizure, or sale, or even of placing it beyond the power of the debtor to alienate his dwelling without the consent of the wife; we have a statute which exempts a homestead, consisting of forty acres of land, with the dwelling house and appurtenances thereon situated, and which may not be included in any town plot or village; or a quantity of land not exceeding in amount one-fourth of an acre, in a city or village, with the dwelling house thereon, and its appurtenances, and which exempted property, we all know may be, and frequently is, worth ten, twenty, thirty, or forty thousand dollars. And the whole policy of the legislation of the state has been to extend rather than restrict the privileges of the exemption laws.

The courts, whatever they may think of the general policy of this legislation, and whatever hardships may arise in particular cases in consequence of it, can only construe and interpret the statute as they find it. When the law is on its face sufficiently intelligible, and when a case clearly falls within the operations of its provisions, I feel it my duty rigidly to enforce it, whatever may be my notions of its policy or equity. So, in the present case, while it may be a hardship, that the respondent should enjoy, free from all compulsory power of the courts to subject it to the payment of his just debts, a property, (a homestead as I think it is,) a portion of Avhich he can rent for twelve or fifteen hundred dollars a year; yet, if the statute exempts it, we must so declare.

It is insisted that the statute, when fairly construed, does not apply to a case like the one at bar. But it will not admit of doubt under the evidence, that Rooney occupied with his family the premises as a dwelling house. Neither will it-be denied that the building is his “ home,” his “ residence,” his abode;” and the only “home,” or “residence,” or “abode,” which he has. It appears he occupied the upper stories of the building with his family when the mortgage was executed in May, 1856. Can it then be said, that it is not his homestead, including the habitation or residence in which he dwells; and the property which the law declares he shall not alienate by mortgage, without the consent of his wife ? It is undeniable, that Rooney has occupied the building with his family as a dwelling, since its erection to the present time; and we therefore cannot see why, to all intents and purposes, it is not his homestead within the meaning of our statute. If Rooney had occupied the entire building with his family as a dwelling house, there could be no doubt, but the benefit of the exemption would apply.

The circumstance that the dwelling was situated on one of the principal business streets of the city, or the fact that its external appearance, or internal arrangement, was like a wholesale or retail store, or because it would be vastly more valuable as a place of business, than as a residence, could not alfect the question. The case rests upon the fact as to whether the building was really and truly occupied as a dwelling house for himself and family; if so, they are secured in the enjoyment and use of it as such. This we think constitutes a homestead under the statute. Had Rooney seen fit not to use the first story at all, or had he converted it into a dining hall, or sleeping apartments for boarders, occupying, in the meantime, the remainder of the building for his dwelling house, it would probably not be insisted that his omission to use a part in the one case, or appropriating a portion to the comfort of his boarders in the other, changed the character and condition of the house and took it out of the operations of the statute.

But it is contended that by the clearest and strongest implication, the language of the statute excludes the idea that the building thus exempt from forced sale, or which cannot be mortgaged by the husband without the signature of the wife, is to be used and kept exclusively for a residence. The law, it is said, is analagous to statutes exempting certain species of property from taxation, like the cases in 19 Ohio, 110; 3 M. H. & Yerdon, 344; 17 E. C. L., 804; 70 id., 817; or that it is in derogation of the common law, and imposes restraints upon the rights of any married man to dispose of his property as he thinks proper, and should, according to well established rules of construction, be strictly construed, as was done in 3 Mich., (Gibbs,) 486.

After what has already been said as to the signification of the word homestead, as used in our statute, and the expression of our opinion that it included the limited amount of land in the city upon which is situated the dwelling house, or habitation, or abode, of the owner and his family, it is only necessary further to remark, that this court cannot restrain the operation of the statute within narrower limits than its words import.

Further, I have examined the case in 3 Mich. Rep., and think there is nothing in it that really conflicts with the principles laid down in the one under consideration. The property in that case was land used for agricultural purposes, and the court held that the debtor must select his homestead before the exemption attached. From Rooney’s living in these premises, a single building, for six or seven years with his family, he has clearly shown that he had selected it for his homestead or residence.

Our attention was likewise called to the case of Rhodes et al. vs. McCormick, 4 Clarke R., (Iowa) 368, where the court of that state held, in a case much like the present in its facts and circumstances, that if a person should use a particular building as a home, the whole of such building, in case of controversy, would be presumed to constitute and be a part of the homestead, until it was shown that some specific portion was not used by the family, but for some other purpose; and when this fact was made to appear, the part not used by the family, would not be considered exempt. It is not my purpose to enter upon any extended examination of this case, I only observe, that I dissent entirely from the conclusion at which the court in that case arrived. And if I could concur in the reasoning and soundness of the decision there rendered, I should find insurmountable difficulty in applying the principle of that case to the one under review. I should rather come to the conclusion that a person, by neglecting to use and occupy a portion of his dwelling house, or residence, with his family, or by appropriating some portion to some other use, thereby forfeited and lost the benefit of the exemption law entirely; and it really seems to me, that this is the natural, legitimate result of the argument pressed upon us by the appellant’s counsel. But I do not so understand the law of this state. I cannot believe, in view of the legislation upon this subject, that the legislature intended that a person should lose and forfeit the benefit of the homestead exemption, by omitting to use a portion of his dwelling house or residence, with his family, or by deserting such portion to some other use. It appears to me that this would be a most unauthorized interpretation of the acts and intent of the legislature of this state.

It was suggested that this view of the statute would lead to great mischief, and enable dishonest debtors to perpetrate gross frauds in holding, for instance, a large mill, or manufactory, or hotel, as a homestead, by occupying some small portion of them with his family. Extreme cases furnish a very unsatisfactory means of determining the true construction of a statute. We do not think the statute could be held to apply to such cases, and exempt them; but if it could, and the supposed consequences should follow from a fair construction of the law, the remedy would rest with the legislature and not with the courts.

It follows from the views expressed, that the judgment of the circuit court must be affirmed.