Reeves & Co. v. Saxton

129 N.W. 784, 145 Wis. 10, 1911 Wisc. LEXIS 3

• Court: Wisconsin Supreme Court
• Decided: January 31, 1911
• Status: Published

Opinion

KeewiN, J.

Tbe court is of opinion that tbis case is ruled by Cornish v. Frees, 74 Wis. 490, 43 N. W. 507. It is considered that there must be a present right of occupancy by title in the person claiming the homestead, and that in the present case the right of occupancy and title is in Catherine Saxton, mother of defendant Frastus Wilber Saxton, and the demndant Frastus Wilber Saxton, having only a remainder or reversion after the termination of the life estate, has no present right of occupancy sufficient to carry with it the privileges ■of homestead rights during the life estate in his mother, even though permitted to live with her on the premises. Appellant relies upon the following authorities: Tiedeman, Real Prop. § 212; 21 Cyc. 503; Cornish v. Frees, 74 Wis. 490, 43 N. W. 507; Brokaw v. Ogle, 170 Ill. 115, 48 N. E. 394; Murchison v. Plyler, 87 N. C. 79; Merrifield v. Merrifield’s Assignee, 82 Ky. 527; In re Sale, 143 Fed. 310; Hampton v. Gilliland, 23 Tex. Civ. App. 87, 56 S. W. 572; Roach v. Dance, 26 Ky. Law Rep. 157, 80 S. W. 1097.

The respondent relies upon sec. 2983, Stats. (1898), as amended (Supp. 1906: Laws of 1901, ch. 269, see. 1), and especially upon the following portion:

“Such exemption shall extend to land not exceeding altogether the amount and value aforesaid, owned by a husband and wife jointly or in common and to the interest therein of a tenant in common or two or more tenants in common, having a homestead thereon, with the consent, expressed or implied, of the cotenants, and to any estate less than a fee held by any person by lease, contract or otherwise.”

Also sec. 2984a, Stats. (Supp. 1906': Laws of 1901, ch. 269, sec. 3), which reads:

“Wherever the word homestead is used in the statutes of 1898 or in any law of this state or in this act, it shall be de-finesrto be the estate or interest in land as defined and set forth in sec. 1 of this act.”

Stress is specially placed on the language of the statute, “to any estate less than a fee held by any person by lease, contract or otherwise,” and it is contended that tbe occupancy by the •defendant Erastus Wilber Saxton through his mother brought .him within the language and spirit of the statute under the liberal rule in favor of homestead rights. Respondents rely -on the provisions of the statutes before cited and the following -authorities: In re Kaufmann, 142 Fed. 898; 1 Washb. Real Prop. (3d ed.) 562; Elsner v. Dorn, 136 Wis. 73, 116 N. W. 768; Bartle v. Bartle, 132 Wis. 392, 112 N. W. 471; Murphy v. Crouch, 24 Wis. 365. In addition to the authorities cited by counsel we have examined several others, notably Bartholomew v. West, 2 Dill. 290, 2 Fed. Cas. 963; Lozo v. Sutherland, 38 Mich. 168; In re Swearinger, 5 Sawy. 52, 23 Fed. Cas. 527; Wright v. Bond, 127 N. C. 39, 37 S. E. 65 ; Hampton v. Gilliland, 23 Tex. Civ. App. 87, 80 S. W. 1097; Davis v. Brown (Term. Ch. App.) 62 S. W. 381; Roach v. Dance, 26 Ky. Law Rep. 157, 80 S. W. 1097. Decisions from other ■states, however, are not very helpful, since they are based upon statutes quite different from ours.

The question is not free from difficulty, especially in view •of the changes made in our statutes on the subject-since the decision in this court in West v. Ward, 26 Wis. 579; but the court is of opinion that the defendant Erastus Wilber Saxton had no homestead rights in the premises, therefore the order must be reversed.

By the Court. — The order appealed from is reversed.