Upman v. Second Ward Bank , 15 Wis. 449 ( 1862 )

By the Court,

Cole, J.

We fully concur in the conclusion of the circuit court, that the appellant cannot claim the property mentioned in the pleadings, as exempt from sale on the executions upon the ground that it was his homestead. When the judgments were obtained, upon which the executions were issued, he was not a resident of the state, but lived with his family in Minnesota. Executions were issued upon those judgments, and owing to some uncertainty as to the precise nature of his interest in this property, it was not levied on and sold, but the executions were returned unsatisfied. Then supplemental proceedings were instituted, and an order obtained requiring him to appear before the county judge of Milwaukee county, and answer concerning his property. Although this order was personally served upon him, he disregarded it and went home. Subsequently an order was made in the supplemental proceedings, appointing a receiver, and ordering the receiver to sell the plaintiff’s interest in this real estate. After all this had taken place, the plaintiff removed to this state, induced his tenant to give up possession of the premises, and went into actual possession himself, with his family, and claimed them as his homestead. The premises consist of a lot of ground of less than a quar-of an acre, with a large building erected thereon, which wag ¿esigned, and is in fact used and occupied, for a hotel and stores. The plaintiff now keeps the hotel, but he and his family only occupy exclusively one parlor and two bedrooms therein. The rest of the building is devoted to the use of guests and the purposes of a hotel. I do not deem it a material circumstance, but I deem it proper to add, in order to make the statement complete, that the order appointing the1 receiver and directing him to sell the plaintiff’s interest in the property, was appealed to this court, and reversed after he went into possession. This court held that there was no necessity for appointing a receiver to sell the property, but that it might be levied on and sold upon execution. How laying out of view, for the time being, all considerations in’regard to the character, nature and use of this property— the fact that it was originally designed and built for a hotel and stores and not for a dwelling house, — or the question whether it would all be exempt from sale on an execution, providing the plaintiff had occupied it with his family in the same manner he did, at the commencement of this suit— and we still think, under the circumstances, he cannot claim it as exempt against judgments which became a lien upon it while he was residing in Minnesota.

Under the statutes of this state, a judgment of a court of record becomes a lien upon the debtor’s real estate, situated in the county where the judgment roll or transcript of the judgment is filed. Sec. 36, chap. 132, R. S. 1858. In Hoyt vs. Howe, 3 Wis., 752, this court held that the judgment became a lien even upon the homestead, but that the lien could not be enforced by a sale upon execution until the debtor, by his voluntary act, ceased to occupy the premises as a homestead, or alienated them.

This decision undoubtedly induced the legislature to interfere, and extend still further the privilege of the. homestead exemption law. Eor in 1858, chapter 137 was enacted, which declared that the owner of a homestead might remove therefrom, or sell and convey the same, without rendering such homestead subject or liable to forced sale on execution or other final process. Now it is claimed to be the legitimate result of this legislation and decision, that it is a cumstance of no importance whatever, whether the debtor is in the occupancy and possession of the property, enjoying it as a homestead, when the judgments are obtained, but that it is sufficient if he is in such actual possession and occupancy at the time of sale.

We deem this an erroneous view of the subject. The statute makes it a material condition to the exemption of the property, that it is “ owned and occupied by a resident of this state” for a homestead. The word homestead itself means a place of residence, which again implies occupancy, possession. If the property is not a homestead when the judgment is obtained, it is a lien upon it. The property not being a homestead, in other words not being exempt, when the judgment is obtained,"the judgment creditor has the right to levy on the same to the exclusion of other adverse interests subsequent to the judgment; and when the levy is made, the title of the creditor relates back to the judgment, so as to cut off intermediate incumbrances. Now while the judgment creditor is following up the steps of the law to make his general lien effectual, by selling real estate not exempt from sale on execution, can the judgment debtor interfere, and annul and destroy this right, by claiming the property as a homestead ? It appears to us not, and that the legislature could never have contemplated any such result. For if the judgment debtor could defeat the creditor under such circumstances, and destroy his right to sell the property, we are unable to see why a party might not, upon the same principle, buy real estate subject to sale under prior existing liens, and then utterly defeat those liens by claiming the property for a homestead. Hence we are of opinion, if at the time the judgment is rendered, the property is not exempt, that then the creditor may proceed and consummate his title by levy and sale under the judgment, and that it is not in the power of the debtor to defeat this right.

It was claimed that this case comes within the principle of Phelps vs. Rooney, 9 Wis. R., 70, but we think it is clearly distinguishable from it. In Phelps vs. Rooney, it satisfactorily appeared that Rooney was in possession of and occu pying tlie premises with his family, as a dwelling house, when the mortgage was executed. It is not like the case at bar, where the plaintiff, by a removal to this state and occupation of the property subsequent to the rendition of the judgment, attempts to defeat the lien of the judgment, or prevent its enforcement, by claiming the property as his homestead. *

Erom the view we have taken, it becomes unnecessary to consider whether, if the plaintiff had been in the actual possession of the hotel, with his family, at the time the judgments were rendered, in the same manner he was at the commencement of this suit, he could have claimed the whole or any portion of the building as a homestead, under the exemption law. This is an important question, and one eminently practical, but it would be improper to express an opinion upon it before it is fairly presented to us on the record.

The judgment of the circuit court, dismissing the appellant’s complaint, is affirmed, with costs.