DocketNumber: File No. 6164.
Citation Numbers: 249 N.W. 913, 63 N.D. 729
Judges: BURKE, J.
Filed Date: 8/4/1933
Status: Precedential
Modified Date: 4/11/2017
On August 26, 1931, T.T. Teiten died leaving a widow, Anna Teiten and a daughter, Shirley Anne Teiten, five years old. During the course of the administration of the estate, a petition was made to have lots ten (10), eleven (11) and twelve (12) of block seven (7) of the town of Wildrose, Williams county, North Dakota set aside to the widow as a homestead. The defendant, Van Sickle, as district manager of L.R. Baird, Receiver, filed an answer to the petition, admitting the right to have two of the lots, namely: Lots eleven (11) and twelve (12) set aside as the homestead, but he resisted the right of homestead to lot ten (10).
It is agreed that the records of the county court show that Teiten, at the time of his death, resided with his family on lots ten (10), eleven (11) and twelve (12) of block seven (7) in said town of Wildrose, Williams county, North Dakota. That said lots ten (10), eleven (11) and twelve (12) are less than two acres in area and the property, with all the buildings, is valued at $2,950.
On lot eleven (11) there is located a two story frame building, 60 feet long and 25 feet wide, with a shed frame annex attached thereto at the east end of the building, 20 feet long and 12 feet wide. The first story or floor of said building at the time of the death of said T.T. Teiten and for some years prior thereto was occupied by a tenant who conducted a general retail merchandise business therein. The *Page 731 second story of said building, located on lot eleven (11) was used and occupied as a dwelling by Teiten and his family at the time of his death and for several years prior thereto and is still being occupied by his widow and minor daughter.
Teiten conducted an undertaking business in a one story building 16 x 16, with a garage in connection on lot twelve (12) of said block seven (7).
On lot ten (10) of said block seven (7) there is a one story building 25 x 48 feet with a shed annex to the east end and attached to the main building on lot eleven (11), one wall of this building is on lot eleven (11) and there is a door in the wall. At the time of Teiten's death this building on lot ten (10) was occupied by one Henry Newhouse as a tenant, who conducted a general retail hardware business therein.
The county judge granted the petition and set aside the entire tract as a homestead and on appeal to the district court the judgment was reversed and judgment was duly entered holding that lot ten (10) was not a part of the homestead. From this judgment the petitioner appeals.
There is but one question involved, namely: is the petitioner entitled to a homestead right in lot ten (10) in said block seven (7)? It is conceded that the homestead right applies to lots eleven (11) and twelve (12) but it is claimed that it does not apply to lot ten (10) for the reason that lot ten (10) and the building thereon was no part of the dwelling and was not appurtenant thereto; that the whole tract claimed as a homestead must be occupied and used as a dwelling including appurtenances necessary to the dwelling.
The homestead law is purely statutory and there are so many different statutes in the different states that the decisions of the courts relating to homestead laws are of very little help.
Section 208 of the Constitution provides: "The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws, exempting from forced sale to all heads of families a homestead, the value of which shall be limited and defined by law." This provision in the Constitution requires: first, a law exempting from forced sale to all heads of families a homestead; second, legislation limiting and defining the value of the homestead. The limitations as to value are left entirely to the discretion of the legislature. *Page 732
The homestead laws of the state, as they existed at the time of the decision, are well considered in the case of Calmer v. Calmer,
The court in this decision points out that "(prior to 1891 the homestead was limited as to area), but not as to value. The revision and amendment of 1891 was therefore necessary, and evidently the main reason for that enactment was to comply with the constitutional mandate to fix a limit of value on the homestead exemption. Section 3605 (Revised Codes of 1895) must therefore be construed, not as an attempt to define the meaning of the word homestead, but as an act recognizing the right to a homestead exemption and fixing the amount in area and value of the homestead property which could be held exempt. That such is the meaning of the section is clear from those subsequent sections of the same act which prescribe the procedure to be followed in order to ascertain and set off to the debtor's family the homestead exemption, or its equivalent in case the homestead property exceeds the statutory limits in value or area."
In other words the statute is intended to fix and does fix a limit to the homestead in area and in value. Continuing the court said: "As to area, the property is within the prescribed limit and the question is, whether it exceeds the limit as to value. The respondent contends, and the county and district courts held, that in determining the value for the purpose of ascertaining the extent of the exemption right the amount of the incumbrances should be deducted from the value of the land with the buildings and improvements thereon. Acting on this *Page 733 theory the entire premises were unconditionally set off to the respondent as her homestead, because, after deducting the amount of existing incumbrances, the value of the homestead was less than $5,000.00. . . . We think that view is erroneous. A mortgage or other lien upon the property does not diminish the value either of the property itself or of the homestead claimant's estate therein. . . . The language of the statute does not permit such a construction. The statute exempts the land not exceeding a specified area and value, if it constitutes a homestead. In a controversy as to the value between the homestead claimant and an execution creditor, the appraisers are directed . . . `to view the premises and appraise the value thereof.'" It was accordingly held that the judgment and decree should be modified so as to show, as required by statute, that the homestead exceeds the statutory limit to the extent of $2,000 and that the homestead cannot be divided without material injury.
This is a construction of the first legislative enactment after the adoption of the Constitution, as amended by § 3605 of the Revised Codes of 1895, relating to homesteads and holding that the act must be construed, not as an attempt to define the word homestead, but as an act recognizing the right to a homestead exemption and fixing the amount in area and the value of thehomestead property which would be held exempt. In other words the homestead, at that time within a town plat was limited to two acres in area and $5,000 in value.
In 1923 the legislature again amended the homestead law by adding a provision permitting the deduction of all liens and incumbrances for the purpose of determining the value of the homestead, which value was left at $5,000. Chapter 229 of the Session Laws of 1923.
The last amendment was in 1925, Chapter 146, of the Session Laws of 1925 and that part of the law which applies to homesteads within a town plat reads as follows: "The homestead of every head of a family residing in this state, and consisting of not to exceed two acres of land and the improvements thereon, if within a town plat, and not exceeding in value Eight Thousand Dollars, over and above liens and encumbrances, or both, claimed under subdivisions 1, 2 and 3 of § 5607, . . . shall be exempt, etc." This law leaves the area of the homestead *Page 734 unchanged but adds and exempts all the improvements thereon and increases the value to $8,000.
The Constitution and the statute of Kansas provides that a homestead to the extent of 160 acres of farming land or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner together with all the improvements on the same shall be exempt, etc. This does not limit the value of the homestead. The reasons given for limiting the improvements on a homestead to those which are appurtenant thereto, in the case of Ashton v. Ingle,
Under the statutes in Illinois "every householder having a family, *Page 735
shall be entitled to an estate of homestead, to the extent in value of $1,000, in the farm or lot of land and buildings thereon, owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence." The farm or the lot is limited to one farm or one lot to the extent of $1,000. The value of the homestead in Illinois is $1,000. In the case of Hubbell v. Canady,
The statute of Nevada provides a homestead consisting of a quantity of land together with the dwelling thereon and its appurtenances not exceeding in value the sum of $5,000. There is no limit as to the number of acres or the size of a lot, but the value must not exceed $5,000. In the case of Clark v. Shannon,
In all the cases relied on by respondent the value of the homestead was not fixed or limited by law and Thompson on Homesteads, Section 128, in reference to the Kansas case says: "The court were, no doubt, impelled to this conclusion by a consideration of the great amount of property which might, in the form of a town homestead, be withdrawn from creditors under the operation of a different rule." The reasoning, of course, does not apply to a statute which limits the value of the homestead, as does the statute of North Dakota.
But the Kansas court, in a later case very much like the instant case, viz.: Layson v. Grange,
So in the instant case it was only the room in the building on lot ten (10) that was leased to Newhouse and in the instant case the buildings were not detached, as in the Kansas case.
The law does not say what kind of a home or what kind of buildings shall be built upon the homestead premises. It refers to the homestead as consisting of not to exceed two acres of land and the improvements thereon, if within a town plat, and not exceeding in value $8,000. These are the only limitations in the law and the only limitations considered in the Calmer case.
In the statement of facts, in his brief, counsel for respondent states that from the testimony adduced it appears that lot eleven (11) has a frame two story building erected thereon and that the lower part thereof is used as a store building by a tenant; that sometime after the erection of the frame building on lot eleven (11), a one story brick building was erected on lot ten (10) and that in the erection of the said building on lot ten (10) aforesaid, it was built on to the frame building on lot eleven (11) and that the wall of the building on lot eleven (11) was used as one of the walls of the brick building built on lot ten (10) and that the buildings were fastened together and that the roof of the building situated on lot ten (10) is built into and fastened *Page 738 onto the side of the building on lot eleven (11). It also appears that there is a doorway between the wall connecting the lower floor of the two buildings and that the doorway has a sliding door.
Thus it appears that all of the buildings on the three lots are a part of one establishment. There is no claim that lot ten (10) is leased to Henry Newhouse. He does not live on lot ten (10), it is not his home, he only has the use of the building on lot ten (10).
Since it is conceded that the property claimed is less than two acres, that the lots are contiguous within the curtilage and less in value than $8,000, it follows that the petitioner is entitled to her homestead right in the entire tract of land and the judgment is reversed and it is ordered that judgment be entered reversing the judgment of the district court and affirming the judgment of the county court.
NUESSLE, Ch. J., and BIRDZELL, BURR and CHRISTIANSON, JJ., concur.