Meisner v. Hill

138 N.W. 583, 92 Neb. 435, 1912 Neb. LEXIS 48

• Court: Nebraska Supreme Court
• Decided: November 13, 1912
• Docket: No. 16,611
• Status: Published

Opinions

Sedgwick, J.

George Meisner died intestate. The plaintiff is his widow and the defendants are his children by a former wife. Fourteen years before his death he had selected the northwest quarter of a section of land in Buffalo county as his family homestead, which at the time of his death was worth about $100 an acre, and built a residence thereon of about the value of $9,000. At the time of his death he owned other land adjoining the said quarter section, and other property of the value of more than a half million dollars. The plaintiff and the defendants. by agreement made a division of the real estate, except the said quarter section of land. The plaintiff contended that she was entitled to the quarter section of land selected as their home and dwelling-house and improvements thereon during her life. The defendants contended that, as the home property was of greater’ value than $2,000, they were entitled to have it sold and the proceeds in excess of $2,000 divided among the heirs of the deceased. The parties then entered into an agreement to submit this question to the district court. The terms of their agreement were set out in writing at full length and signed by the parties, but afterwards, for some reason, the defendants declined to voluntarily submit the matter to the district court, insisting that the county court, and not the district court, had jurisdiction thereof, and the plaintiff then brought this action in the district court asking that court to determine that the said quarter section of land “descended to this plaintiff for and during the term of her natural life,” and asking for general equitable relief. The answer admitted the facts as above stated, denied the jurisdiction of the district court, and alleged “that the property descended to the defendants subject to the homestead right of the plaintiff to the extent of $2,000 for life.” The court decreed that the plaintiff's interest in the premises “be limited to the right to the use of $2,000 for and during her natural life, the present value of which is the said sum of $1,464; and that she be forever barred and restrained from claiming any further or greater homestead interest therein.” The plaintiff appealed.

Considering the importance and necessary discussion of the principal question involved, we conclude that the district court was the proper forum without discussion. This conclusion is justified, we think, by our former decisions.

What is a homestead? Is it the present worth of the exemption which the statute allows against the claims of creditors, or is it the family home? Section 6 of the. present homestead law (Comp. St. 1911, ch. 36) requires a creditor, when he seeks to subject a homestead to the payment of his claim, to take an oath “that the value of the homestead exceeds the amount of the homestead exemption.” This is a legislative declaration that the homestead is something more than, and different from, the $2,000 exemption against the claims of creditors. This distinction plainly runs, through all of our legislation. It is emphatically presented in substantially the same words in sections S and 11 of the act.

The first territorial legislature adopted laws from the state of Iowa that fill about 100 pages of the published laws of that session. Among other subjects, it included the subject of execution and exemptions of property. After exempting public property from sale upon execution, section 478 (1 Complete Session Laws, p. 36) specifies certain articles of personal property exempt to private individuals, and section 479 provided: 1 “If the debtor is the head of a family there is further exempt— his homestead as provided by law.” That is all that is said about the homestead, and then follows specifications of other articles of personal property that shall be exempt. There was no attempt to define “homestead.” The word was used in its general acceptation — the home of the family, the common law castle of the citizen. The question of value did not enter into its description. The poor and the rich were treated alike; no one was to be deprived of his home. At the same session of the territorial legislature an independent act was passed providing that the property of married women, owned by them before marriage, should be exempt from their husband’s debts. 1 Complete Session Laws, p. 83. The next session of the territorial legislature enacted a general law “respecting practice and proceedings in courts of justice.” This law embraces the subject of executions and exemption from sale thereon. 1 Complete Session Laws, p. 341. It contains the same language in regard to the homestead as the former act, exempting it without regard to value. It was not' neeessary to define it; evidently the commonly accepted definition was adopted. “Homestead” was well defined at the common law. Webster’s New International Dictionary defines it as “the land and buildings thereon occupied by the owner as a home for himself and his family, if any, and more or less protected by law from the claims of creditors.” Bouvier’s Law Dictionary adopts the definition from the supreme court of New Hampshire: “The home place — the place where the home is. It is the home; the house and the adjoining land; where the head of the family dwells; the home farm.” If a tract of land is purchased by the parties for a home, and is transferred to one of them accordingly, and is by them in good faith occupied as their home residence, the land so transferred to them, and dwelling-house and other improvements placed thereon, become their homestead. The Revised Statutes of 1866 treated the subject of homestead and exemption under that title. Section 525 provides: “A homestead, consisting of any quantity of land not exceeding 160 acres, and the dwelling-house thereon and its appurtenances, to be selected by the owner thereof, and not included in any incorporated town, city or village, or, instead thereof, at the option of the owner, a quantity of contiguous land, not exceeding in amount two lots, being within an incorporated town, city or village, and the dwelling-house thereon and its appurtenances, owned and occupied by any resident of the territory, being the head of a family, shall not be subject to attachment, levy or sale, upon execution or any other process issuing out of any court within this territory, so long as the same shall be owned and occupied by the debtor as such homestead,” with the proviso that the “homestead mansion,” and 20 acres of land whereon the mansion is situated, and not in any corporate town, city, or village, shall be exempt, and land adjoining the mansion not exceeding $500 should also be exempt, thus defining the homestead and exempting it absolutely. The next session of the legislature’ amended the act so as to exempt the homestead “so long as the same shall be owned and occupied by the debtor as such homestead.” 2 Complete Session Laws, p. 376. By the act of 1873 the homestead was made liable to sale upon the foreclosure of a mortgage “duly executed by the head or heads of the family.” 2 Complete Session Laws, p. 711.

By the act of 1875 the exemption of the homestead was continued, with a proviso that the homestead and appurtenances so exempted from forced sale “shall not exceed $2,000 in value” (laws 1875, p. 45, sec. 1), and providing in the sixth section of the act that, if the homestead consists of a house and lot which will not bear division without manifest injury, and the “fair and reasonable rent for the same” will be more than $300 annually, such excess of rental must be paid by the debtor annually until the debt is paid. Section 19 of the act of February 19, 1877, provides: “Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law.” Laws 1877, p. 37. This is a very suggestive section. That part of the homestead which the creditor might take is clearly not considered the whole homestead, and when one spouse dies the other might occupy the whole homestead, unless the creditors interfere. This is the first provision for the descent of the homestead upon the death of the spouse who holds the legal title. It specifies clearly the homestead that so descends, and it is the “whole homestead,” and not merely the value exempted from the claims of creditors.

In 1879 our present statute was enacted. Laws 1879, p. 57. The first section of this act provides that a homestead not exceeding in value $2,000, including the dwelling-house in which the claimant resides, etc., shall be exempt from judgment liens and from execution or forced sale. This section does not attempt to define what a homestead shall be. Its object is to continue the exemption from the claims of creditors and limit that exemption. Section 17 of the act continues the provision for the descent of the homestead. It enlarges the brief provision of section 19 of the previous act. The survivor now takes the title and possession for life, instead of the mere right of occupancy. The heirs of the deceased are declared to inherit the homestead, subject to the life estate of the surviving spouse, just as they would inherit other property of the deceased. The life estate of the surviving spouse and the inheritance of the heirs of the deceased are protected against “any debt or liability contracted by or existing against” the deceased spouse prior to his or her death, “except such as exists or has been created under the provisions of this chapter.” This last clause, of course, refers to mechanic’s lien, mortgages, and the claims of creditors. It is still the “Avhole homestead” that descends. Taxes, liens, mortgages, and claims of creditors, if they exist, may interfere with the enjoyment of it, but it is not measured by such claims. The distinction between the homestead and the amount of the homestead exemption is preserved all through the statute, though in some few instances the language is indefinite. This distinction, as already stated, is especially made manifest in our present statute. We could not consistently require a citizen to swear that the value of the homestead exceeds the homestead exemption if the two are identical. If the homestead in which the surviving spouse is to have a life estate is the present worth of the amount exempted from the claims of creditors, then it could not be true that the homestead exceeds the exemption.

The Avhole body of our legislation upon the subject of homestead so manifestly shows what it is intended shall be the home that descends to the surviving spouse for life that repetition may be justifiable in considering the course of the legislation. Our first legislation upon the subject recognized the existence and importance of the home as it was then identified, and preserved it for the family against all claims of creditors. The same action was taken in the next legislation upon the subject. The next legislation describes the homestead as the “homestead mansion” and 20 acres of land whereon the mansion is situated, together with adjoining land of the value of $500. The homestead thus defined was absolutely exempt. The next legislation limited the exemption “so long as the same shall be owned and occupied by the debtor as such homestead.” The next legislation allowed the homestead to be incumbered by a mortgage “duly executed by the head or heads of a family,” and made it liable to sale upon the foreclosure of such security, but otherwise left it absolutely exempt so long as owned or occupied as a home. And, then, in the act of 1875, the $2,000 limitation on the exemption was introduced into the law of the state, but the legislature was careful to preserve the identity of the homestead as the family home, and provided a way by which the family might keep and occupy the home against any claims of creditors. There is reason for preventing the investment of-all one has in an excessively valuable homestead for the purpose of defrauding creditors. The same reasons do not exist for taking the home away from the surviving spouse for the benefit of adult heirs, still less in the interests of minor heirs who are ordinarily more benefited by preserving the family home intact. The statute provides an elaborate method for creditors in the former case, but provides no means of dividing the homestead between the heirs and the surviving spouse. This fact of itself strongly indicates that the legislature never contemplated such a division. This $2,000 limitation of the exemption against the creditors lias since that time been continued in our legislation, but no statute has ever declared that the limitation in favor of creditors is the full measure of the home that the surviving spouse may occupy for life, or that the present value of the use of $2,000 for the. life of the surviving spouse shall bé equivalent to a home.

Next comes the act of 1877, by which the surviving spouse i-s given the “whole homestead” for life, unless “otherwise disposed of according to law;” that is, unless sold for taxes or for mortgage foreclosure or affected by the statute in regard to claims of creditors. This provision of the act of 1877 is continued in the seventeenth section of the act of the next legislature, which is our present law, as already suggested.

When the Avhole history of our legislation upon the subject is considered, there is no ground for supposing that the legislature intended that, when there were no debts, mortgages or other liens, anything less than the “Avhole homestead” should vest in the surviving spouse for life. There has never been any legislation that would justify the conclusion that, when the husband and wife had established a home and occupied it for years, and the one in- Avhose name the legal title was placed should die, and the home should be of greater value than the present worth of the use of $2,000 for the life of the survivor, the home must he sold and the proceeds divided among the heirs, and the surviving spouse must seek another home. Such legislation would be monstrous, and our lawmakers cannot be charged with it. Indeed, the present act itself repels such a conclusion. The first section does not define the homestead; it merely declares how much of it shall be exempt from the claims of creditors. The sixth section declares that creditors shall not interfere with the homestead without first swearing that it exceeds in value the homestead exemption, and the seventeenth section declares that the homestead shall vest in the survivor for life, subject only to specified liens.

It is said that the husband holding the legal title may incumber the homestead by confessing judgment, and so compel its sale. And, also, that, when husband and wife have joined in such a conveyance, the proceeds are at the disposal of the owner of the homestead title, and only $2,000 of the proceeds is exempt from levy by creditors; but a court of equity would enjoin the sale upon a judgment fraudulently confessed, and there can be no sale of a homestead without the consent of both husband and wife, which might depend upon the proposed disposition of the proceeds. In Tyson v. Tyson, 71 Neb. 438, it is decided that, “in a contest between the widow and the heirs at law as to the extent of her homestead in suburban lands, she is entitled to a homestead not exceeding 160 acres in area and $2,000 in value.” And in Teske v. Dittberner, 70 Neb. 544, Meek v. Lange, 65 Neb. 783, and Wardell v. Wardell, 71 Neb. 774, and other cases, in some of which perhaps the precise point was not involved, similar expressions have been used. The legal profession and the people of the state are entitled to know the construction that this court intends to put upon important statutes of this nature. It is with exceeding reluctance that we refuse to follow the earlier decisions. This is particularly true when the rule announced in such earlier decisions has become the rule of property. Indeed, it is generally considered that in such cases it is better to abide by a wrong construction, and leave tlie remedy with the legislature, than to confuse the decisions of the court upon important questions. The decision in Tyson v. Tyson, supra, however, has not become a rule of property in the full meaning of that expression.. The homestead estate which vests in the surviving spouse for life is an ephemeral estate. It dies with the holder of it, and in most cases its life is short. At the end of the life estate in the homestead, the heirs of the deceased holder of the legal title take the property precisely as they do any real estate not of a homestead character, with the exception that it is not, in their hands, liable, for debts of their ancestor, for which it could not have' been liable in his or her lifetime. Therefore no permanent real estate title depends upon the homestead of the surviving spouse. The case of Teske v. Dittberner, supra, was three times considered by this court, and was very much discussed. The question in the. case was whether the holder of the legal title could “make a testamentary disposition of the property in question, subject to the inchoate life estate therein of his wife,” and it was held, after much discussion, as stated in the opinion (65 Neb. 167), that the right to so dispose of the property “is expressly preserved to him by the statute.” We have no fault to find with this conclusion. The question as to what constitutes “the inchoate life estate therein of his wife” was not discussed in any of the opinions, but was assumed, and we are now convinced erroneously, to be only that portion of the homestead which the law exempts as against the claims of creditors. Upon this vital question, then, the case is not to be deemed authoritative. In Meek v. Lange, 65 Neb. 783, the question presented, as stated in the opinion, was “whether or not damages for loss of the bargain can be recovered against one. who, without the assent of his wife, makes an executory contract for the sale of his family homestead, which the wife subsequently refuses to carry out.” It was held that no recovery could be had “for the loss of the bargain.” It was said: “Possibly the plaintiff is entitled to nominal damages for the absolute refusal to convey any of the premises, as they were found to be worth more than $4,000. The homestead right evidently does not protect defendant as to more than $2,000 worth.” In this case, also, the character and quality of the family homestead as determining the life estate of the surviving spouse were not necessarily involved in the point decided, and were not necessary to the disposition of the case. The decisions of this court as affecting directly or indirectly the question here presented have not been exactly uniform. In Teske v. Dittberner, 70 Neb. 544, 556, it was said: “In so far as this court has heretofore expressed itself regarding the scope and effect of our homestead statute, its decisions have generally been favorable to a liberal construction of the act, such as would grant the fullest measure of protection to the rights and interests of the homestead claimants. * * * ‘The law proceeds upon the theory that both husband and wife ar'e entitled to the benefit of the homestead act, and this right, cannot be waived except by the consent of both.’ Bonorden & Ranck v. Kriz, 13 Neb. 121; Aultman & Taylor Co. v. Jenkins, 19 Neb. 209. It is held in Swift v. Dewey, 20 Neb. 107, that a mortgage of a tract of land including a homestead, executed by a married man without the concurrence and signature of the wife, is invalid for the purpose of impairing, dismembering, or in any manner affecting such homestead or its appurtenances. To the same effect is McCreery v. Schaffer, 26 Neb. 173.” Many other decisions of this court, more or less inconsistent with the present contentions of the defendants, are quoted from with approval. In Clarke v. Koenig, 36 Neb. 572, Larson v. Butts, 22 Neb. 370, and subsequent cases, it is held that a contract for the sale of a homestead will not be specifically enforced unless executed by both husband and wife, and when the purchaser is willing to accept that part of the real estate which exceeds $2,000 in value as a compliance with his contract, and this without regard to the value of the homestead.

Commenting upon the various decisions of this court upon the subject of homestead, the brief of appellant well says.: “If it be true that the lands and tenements comprising the homestead, in so far as they exceed the pecuniary value of $2,000, are not intended to be afforded any protection or privilege by the homestead act, upon vvliat ground, then, can the court justify its previous holdings that a sale or conveyance of such lands and tenements, when not signed and acknowledged by both husband and wife, is absolutely void, without regard to the circumstance that the value greatly exceeds $2,000? How, then, may the court justify its holdings that the executor or administrator, upon whom the right of possession of all real ('state devolves by a specific provision of the decedent act, cannot dispossess the surviving husband or wife of the land previously occupied as the homestead? How, then, may the court justify its previous holdings that the sale of the homestead property under an ordinary execution is absolutely void, notwithstanding the most formal order of approval and confirmation by the district court? If the term ‘homestead,’ used in the act, implies in every instance a limitation of pecuniary value' of $2,000, then, necessarily, the excess value of the land and tenements beyond that limitation cannot be afforded any measure of protection. Under such interpretation, a conveyance by deed or mortgage of the lands and tenements comprising the family abode, which are of the admitted value of $10,000, would not, in so far as it operated upon the excess valuation of $8,000, affect in any manner the statutory homestead. In such case, the mortgage of the owner, in which the spouse did not join, would necessarily be valid as to $8,000, and, if the amount of the mortgage covered no more than the overplus or excess value, it would be valid and enforceable in its entirety.”

We conclude therefore that the decision in Tyson v. Tyson, supra, and similar expressions affecting rights between the surviving spouse and the heirs in Teske v. Dittberner, 70 Neb. 544, Meek v. Lange, 65 Neb. 783, and Wardell v. Wardell, 71 Neb. 774, and other cases, ought to be overruled. This decision does not affect former holdings of this court in regard to the rights of creditors against homestead property.

The judgment of the district court is reversed and the cause remanded, with instruction to enter a decree in harmony with the views expressed in this opinion.

Reversed.