Brandies v. Perry

Cakteu, J.: The bill fails to show whether the two tracts of land mentioned, or either of them, are located within the limits of an incorporated town, but assuming that they .are not, the question arises, can the head of a family residing in this State claim as a part of his homestead n detached tract of land, used and cultivated as a part [175] •of the home farm, where both tracts do not exceed in tlie aggregate the limit of one hundred and sixty acres. Mr. Thompson says the weight of authority is against such claim. Thompson on Homesteads and Exemptions, sec. 145. See also Linn County Bank vs. Hopkins, 47 Kan. 580, 28 Pac. Rep. 606; McCrosky vs. Walker, 55 Ark. 303, 18 S. W. Rep. 169; Waples on Homestead and Exemption, page 153. It is apparent, however, that the question must largely depend upon the language of the statute or Constitution giving the right of hotnestead exemption, and this language varies in the different States. The right is given in this State by sec. 1, Art. X, Constitution of 1885, which, in so far as it applies to homesteads outside of incorporated cities or towns, provides as follows: “A homestead to the extent of one hundred and sixty acres of land, * * * owned by the head of a family residing in this State, * * * and the improvements on the real estate, shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists.” This language is practically the same as used in the Constitution of 1868; and it had been several times construed by this court prior to its incorporation into the present Constitution of 1885. Thus, in Baker vs. State, 17 Fla. 406, it was held that the actual ownership of real estate and its occupation by the head of the family and his family, impressed it with the homestead character. In Solary vs. Hewlett, 18 Fla. 756, and Drucker vs. Rosenstein, 19 Fla. 191, it was held that actual occupation of real estate as a home of the family was necessary to constitute such land a home- ■ stead, exempt from forced sale under process against [176] the head of such family. In the case of Oliver vs. Snowden, 18 Fla. 823, it was held that a party resid ■ ing in an incorporated town or city with his family, and owning land several miles from the town can not. claim the latter as exempt from forced sale as a homestead, it having never been occupied by him as a residence. In that case the question here involved, viz: whether two separate tracts of land outside of a city or town, may be treated as a homestead, the residence being upon one of them, and the other used as a part of the same farm, was stated, but not decided. It was there held, however, that the homestead meant by our Constitution was the home place; the place where the home is; the house and adjoining land where the head of the family dwells; the home farm; the land where-is situated the dwelling of the owner and his family. It was therein stated that “if the homestead, the place of residence of the debtor and his family, is in the town or city, the claim of exemption of rural lands, can not be allowed. It is only the ‘place of the home’ of the debtor and family that can be exempt from, sale for debts.” From this definition of a homestead, it is evident that the framers of our Constitution had in mind, not an exemption of a given quantity of land for the benefit of a debtor, but, the protection from forced sale of the family home for the benefit of the-debtor and his family. This view is emphasized by the language “a homestead, to the extent of one hundred and sixty acres of land,” meaning a family home-place to the limit, size or bulk of one hundred and sixty acres. This being the plain meaning of the language used, it is clear that a separate tract of land never occupied by the family and its head as a home can not be exempt from forced sale, unless it can be [177] inferred that by reason of its use as a part of the same farm with the actual home place, it becomes a part thereof for homestead purposes. There is no language in the Constitution to warrant such an inference. We said in McDougall vs. Meginniss, 21 Fla. 362, text 369: ‘‘When a party resides on the land as a homestead, and the law is silent as to how much of said land, other than that occupied by his house, he shall use or cultivate, or in what manner he shall use it, or that he shall use or cultivate it at all, we do not feel at liberty to amend the Constitution of the State by the interpolation of further provisions therein, regulating the manner or extent of the use of the homestead, or declaring that a non-user of a part while he remains on the land is an abandonment of that part which, takes from it the benefit of the homestead exemption. In our view the owner is only required by the Constitution to live on the land, and the whole one hundred and sixty acres is exempt.” The use of land for homestead purposes, other than an actual bona fide residence thereon as a home for the occupant and his family, is no test by which to ascertain if it is exempt, becaiise it is not made such by the Constitution; neither can its use in connection with, make it a part of, the tract upon which the home is located, where the two tracts are entirely separate and distinct. According to the allegations of the bill the appellee did not with his family reside upon the tract of land levied upon; but upon a different tract separated from the one levied upon by other tracts of land neither owned nor occupied by appellee. There was no equity in the bill, and the injunction should have been dissolved. [178] The decree of the court below is reversed, with directions to dissolve the injunction, and, unless appellee desires to amend, to dismiss the bill of complaint.