In re Emerson's Homestead

Tue peculiar features of this case make it novel, but we are of the opinion that the questions presented are foreclosed by former decisions of the court.

1. That a tenant holding a leasehold interest for a term of years, can acquire a homestead right in the property ought not to be questioned, nor do we understand that appellant’s counsel claim to the contrary. In Kaser v. Haas, 27 Minn. 406, (7 N. W. 824,) it was said, when speaking of the homestead exemption, that the character of the ownership, or of the estate or interest owned, is not material, so that it gives the right of occupancy, — so that there is a concurrence of ownership and occupancy, the former sustaining the latter. The question was whether the ownership by the occupant of an undivided interest in land occupied as a homestead was sufficient to sustain the exemption. In an earlier case, where an equitable owner —a person occupying under a contract for purchase — claimed the exemption, it was observed that the less the estate and interest the more important its preservation to the claimant and his family, and the greater the necessity for surrounding it with the defenses of the statute. Wilder v. Haughey, 21 Minn. 101. We do not suppose if this petitioner had held a leasehold interest for a term of years in a modest house and lot occupied as a family residence, that his claim to its exemption as a homestead would have been opposed, for the benefits of a homestead law are not confined to an ownership in fee, but attach to the house and lot to which the debtor has such a term as may be sold on execution. A tenant for years is as clearly within the reason of the statute as the owner of a larger estate. Conklin v. Foster, 57 Ill. 104; Pelan v. De Bevard, 13 Iowa, 53; Hogan v. Manners, 23 Kan. 551; Johnson v. Richardson, 33 Miss. 462.

2. It is urged by counsel for appellant that the petitioner could not acquire a homestead interest in the leased premises because of' certain clauses in the lease. It was recited in this instrument that the building was “to be used for hotel purposes, and operated as *454such;” and 1:1 le lessee stipulated, “as a further condition of his occupancy of said premises, * * * to conduct or operate thereon or thereat a public inn” during his term. There was no covenant in the lease that the premises should be used for hotel purposes exclusively, nor was there a forfeiture clause, with the right of re-entry on the part of the lessor corporation, in case they should not be so used. So that the latter’s right, in case the tenant had disregarded the recital and stipulation, would not have been the right to re-enter, but probably its remedy would have been by injunction to restrain the tenant. However, we need not determine the lessor’s remedy, nor how the tenant’s interests might be affected by the result, for the clauses in question would not, in any event, inure to the benefit of the lessee’s creditors, whom, in so far as the homestead claim is concerned, the receiver represents; his interest being no greater than theirs, for of course the receiver has no greater or other rights, as against the insolvent lessee, than a judgment creditor could obtain.

3. With reference to appellant’s claim that there was error in the order because it was not shown affirmatively that the rooms set apart as a homestead are all on the same lot, it may be said that we must presume that they are. If there was error in this respect, it should have been made to appear.

4 The suggestion made in the oral argument that, if the petitioner has a homestead interest in the premises, it is subject to the payment of a just proportion of the rent paid by the receiver for the use of the whole, we have not considered. That question 4s not before us.

Order affirmed.

(Opinion published 60 N. W. 23.)