Kelly v. Baker

By the Court —

— Our statutes relating to homestead exemption are so indefinite, loose and obscure that it is difficult to put any construction upon them which is not open to criticism and objection. Under the last clause of Sec. 12, in Art. 1 of the Constitution, it is made the duty of the Legislature to provide by law for the exemption of a reasonable amount of property from seizure or sale for the payment of any debt or liability, and in this case no question is made as to the constitutionality of the law. Certainly there is nothing iu. the constitutional provision referred to which required the Legislature to impose any particular condition *156or mode of occupancy, actual possession or personal use upon the. right to hold property, real or personal, exempt from forced sale on process of law. There is nothing which forbids the exemption of real property, save upon the condition that it be wholly and exclusively occupied by the debtor as a place of abode for himself and family; and the amendatory act of 1860, by which the owner of a homestead is permitted to remove from the same, or sell and convey it without forfeiting his privilege of exemption, shows conclusively that this view has been adopted as well as acted upon by the Legislature itself. Homestead in its ordinary signification conveys the idea of the place of residence or dwelling of its owner, and in that sense it seems to have been used in the act of 3 858 now in force. Folsom vs. Carli, 5 Minn., 333; Tillotson vs. Millard, 7 Id., 318. But it includes not only the ground upon which the dwelling house rests but more ; and how much more it may include in this State for the purposes of exemption, the statute defines. And where as in the case at bar the property lies within the limits of an incorporated city, it is provided that a homestead consisting of a quantity of land not exceeding in amount one lot, <fcc., shall not be subject to levy, &c.; and the owner has the right of selection, so that provided he confines himself to a compact quantity not exceeding in amount one lot, he can exercise an option as to the shape of the land which he desires to claim as his homestead. Even if there should be any doubt as to his right to make this selection under Section 92, p. 569, Pub. Statutes, it is clearly recognized in Sections 94 and 95 of the same chapter. It is unnecessary for us to determine what constitutes a lot within the meaning of the statute, as no point is made on that question in this case. We think he has a right to select the full quantity of land for the exemption of which the law provides. For in the first place one of the elements of which a homestead is made to consist by statute, is a quantity of land not exceeding 80 acres, or one lot as the case may be, to be selected by the debtor. In the second place by Sec. 94, the householder is authorized to notify the officer making a levy “óf what he regards as his homestead, with a description thereof within the limits above described, and the *157remainder alone shall he subject to sale under such levy.” In the third place by Sec. 95 it is further provided, that if the plaintiff in execution is dissatisfied with the quantity selected by the owner, the levying officer must set off the amount specified in Sec. 92. In the fourth place by Sec. 06, after setting off said amount the officer is required to sell only the property not included in the set off, and to except the quantity set off from his deed of conveyance. And finally it is to be observed that no limitations were imposed by the Legislature upon the use which should be made of the homestead of 80 acres, or of one lot provided only it was the dwelling place of .the party claiming the exemption. As to the balance, beyond what was required for the site of his house, the claimant seems to have been left free to allow it to remain unenclosed, unimproved, vacant and idle, or to devote it to any use which he might choose. A different view of the question presented here has been taken in Casselman vs. Packard, 16 Wis., 115; but if the statute of Wisconsin be like ours, the reasoning of the Court in that case is not satisfactory to us. The amendatory act of 1860, by which a claimant was authorized to remove from or sell his homestead, was referred to on the argument of this cause, but we perceive no necessity for construing it at this time. In our view of the law the respondent was entitled to claim the whole tract described in his notice, including the part levied on, and as no objection is made to the form of his notice to the officer, we think the sale'was unauthorized.

With the justice or policy of the exemption law we have nothing to do, and if it should be thought that the statute under our construction is calculated to do injustice, there is another department of the State government which can apply a remedy.

The judgment of the District Court is affirmed,