Platto v. Cady , 12 Wis. 461 ( 1860 )

By the Court,

Paine, J.

One Herring was the owner of a dwelling house upon a lot of which he had a lease. He was a married man, and occupied this dwelling house as his homestead. He sold the house to Platto, executing a bill of sale, and also assigned to him the lease, the wife not signing either the bill of sale or the assignment. He afterwards sold both the house and lease to Cady, the wife joining in the conveyances. This is a contest between Cady and Platto for the property, and it depends entirely on the question, whether the transfer to Platto was within the disability against alienating the homestead without the signature of the wife, imposed by the law now found in sec. 24, chap. 134, R. S., 1858. It was argued here by counsel on both sides, as though this turned upon the question whether the property could be considered as a homestead, and as exempt under the act. If it turned upon that, it would clearly be within the disability, for sec. 28, which was not referred to by either counsel, expressly provides that any person owning and occupying a house on land of which he is rightfully in possession by lease or otherwise, shall be entitled to the exemption. "Whatever question might be raised as to whether such a property could be held exempt as a homestead, if this section had not been enacted, there is certainly no room for question on that point in view of its provisions.

But we do not think that the question presented on this appeal depends upon the other. Although it is conceded that this property might have been held as exempt from forced sale, by virtue of sec. 28, it does not follow that it was within the disability imposed upon the husband by sec. 24, as to alienation without the signature of the wife. It may be observed at the outset, that the principal object of the exemption laws is, to protect the debtor and his family from the seizure and forced sale of Ms property by Ms creditors. This is all that is included in the constitutional quirement on the subject. But it was undoubtedly competent for the legislature, in pursuance of what it deemed to be a sound public policy, to further protect the family of the debtor, by imposing upon Mm a disability even voluntarily to alienate the land owned by him and occupied as a homestead. But they need not necessarily impose it as to all homesteads. On the contrary, they might deem it wise to establish such a disability only in respect to homesteads where the interest of the occupier'in the land was of a permanent character, without including all which were exempted from forced sale. And on a careful examination of the provisions of the statute, it seems to us that this is precisely what they have done.

Sec. 23 exempts a homestead consisting of a certain quantity of land '■'■owned, and occupied by any resident,” &c. Sec. 24 provides that the 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.

Now we do not undertake to say that these provisions intend only the absolute owners of the fee. On the contrary, we think they may well be held to include owners of a less interest. But we do not think they extend to the owners of such an interest as is mentioned in sec. 28. Eor the words of the statute seem expressly to exclude that idea. Its language is, that any person owning and occupying a dwelling house “ on land not Ms own," may be entitled to hold the house exempt. Thus it will be seen that the disability imposed by sec. 24, relates to the alienation of land by the owner thereof, and the exemption privilege conferred by sec. 28, relates to a house owned by a man upon land not his own. The legislature evidently supposed that the case provided for in sec. 28, was not included in the previous sections relating to a homestead. They then enact it, giving the privilege of the exemption, but do not extend to the owner of such a house on land not Ms own, the disability which had been imposed upon the owners of lands used as homesteads in the previous section. It seems clear that there is no language employed indicating any intention to extend the disability to cases provided for in sec. 28. And it being a familiar rule, that disabling statutes are not to be extended, by construction, to cases not clearly within their provisions, we should not feel at liberty to extend it to such a case, even though we might think the same reason existed for it in the one case as in the other.

But there may be good reason for a distinction between the two. Sec. 28 evidently relates to cases where the only interest of the party in the land is merely of a possessory character, and where no permanent ownership is contemplated. The house is treated, in that section, as the principal object of the exemption. And while the legislature might desire to protect such a temporary home from a forced sale, they might, at the same time, think it not necessary or wise to extend to it the same disability against alienation, which they had established in respect to those where the interest in the land was of a more permanent character.

Eor these reasons the judgment of the court below must be affirmed, with costs.