Finley v. . Saunders

Smith, C. J. The Constitution exempts from execution, and secures a homestead, not exceeding one thousand dollars in value, to every insolvent debtor who is a resident of the State (Art. 10), and the statute provides how it may be ascertained and set apart to him. The Code, §502 et seq. The exemption endures during the life-time of the debtor, and then of his widow, for her benefit, unless she be the owner of a homestead in her own right, or if there be infant children, for their benefit, until the youngest attains full age. But there is no provision for those who succeed to the prolonged exemption, except in case the owner of the land be dead. If not set apart to him when living, it may be set apart to those entitled, after his death. The Code, §514. By the removal of the debtor out of the State, with a view to a permanent residence elsewhere (as we understand the fact to be in the present case), 'although his family do not follow7 him to his new abode, he forfeits this constitutional right, as he is not within its provisions, and as he cannot claim an exemption of his land from liability from debt, *464 neither can his wife or his infant children, for their right is derived from his, and springs up after the debtor’s death. It may be that the debtor has acquired a homestead in the State to which he has gone, and the law does not contemplate a twofold homestead. If a similar law exists in Kansas, his wife and children may, by going there and making his home theirs, acquire an interest in the homestead, secured there to the husband and father. The present case may be one of hardship, as an abandonment of wife and children, whose support he is bound to provide for, to poverty and want and without a home, but still the law is such as not to meet the situation, and his property, no longer shielded, becomes exposed to the creditors’ demands. Most clearly, in our opinion, the defendant cannot claim the exemption, nor is the case bettered that it speaks of her as a “widow,” when she is not such. There is error in the ruling of the Court, and the judgment must be reversed. It has not escaped our notice, though no point is made on the fact, that the wife who is in possession is alone sued, her husband being still alive but beyond the reach of personal service. If his presence in the action were indispensable to its prosecution, it is manifest the plaintiff would be without remedy, and the tortious withholding could not be disturbed. Chancellor KeNT says that, where the husband was a foreigner, or an alien enemy and resided abroad, the wife is in some degree and from necessity restored to a feme sole, and he adds that “ though the husband be not an alien, yet if he deserts his wife and resides abroad permanently, the necessity that the wife should be competent to obtain credit and acquire and recover property and act as a feme sole, exists in full force;” and further, that the “distinction between husbands who are aliens and who are not aliens cannot long be maintained in practice, because there is no solid foundation in principle for the distinction.” 2 Kent Com., 157. *465 This opinion is sustained by the rulings in Gregory v. Paul, 15 Mass., 31; Abbot v. Bailey, 6 Pick., 89; Bran v. Morgan. 4 McCord, 148, and Chapman v. Lemon, 11 How. Prac., 235. In the last case, decided in the Supreme Court of New York, the doctrine is thus concisely stated by Harris, J.: “ In this country it has been held that where a husband absolutely deserts his wife, and renounces his marital rights and duties and leaves the State, the wife may be regarded as a feme sole.” But the question, aside from what has been said, is settled by statute in this State, which declares that “ every woman whose husband shall abandon her or shall maliciously turn her out of doors, shall be deemed a free-trader, so far as to be competent to contract and be contracted with,” &c. The Code, §1832. If liable upon contracts, so must she be in actions for her own torts, and the action will be against herself alone. Judgment reversed, and a venire de novo must be awarded in the Court below. Error.