Gregg v. Bostwick

By the Court, Sanderson, J.: The Act in relation to homesteads provides that: “ The homestead, consisting of a quantity of land, together with the dwelling house thereon and its appurtenances, not exceeding in value the sum of five thousand dollars, to be selected by the husband and wife, or either of them, or other head of a family, shall not be subject to forced sale on execution, or any final process from any Court, for any debt or liability contracted or incurred after the passage of the Act to which this is amendatory. Said selection shall be made by either the husband or wife, or both of them, or other head of a family, declaring their intention in writing to claim the same as a homestead. Said declaration shall state that they or either of them are married, or if not married, that he or she is the head of a family; that they or either of them, as the case may be, are, at the time of making such declaration, residing with their family, or with the person under their care aud maintenance, on the premises, and that it is their intention to use and claim the same as a homestead,” etc. The primary object of all legislation upon the subject of homestead exemption is not, as claimed by counsel for the appellants, to exempt from forced sale a certain amount of — 226 — the real estate of the head of a family, including the homestead, whether estimated by quantity or value, but to exempt the homestead, including quantity or value, within the limits specified. In some States the exemption does not exceed a certain quantity of land, while in others, as here, the exemption is limited to a certain value. But in neither case is quantity or value the primary object. They come into the account merely as restrictions or limitations upon the privilege. Where quantity is made the limit, the homestead may consist of the whole quantity named or less, at the election of the party who claims the benefit of the exemption. So where value is made the limit, the homestead may reach in value the figure named, or it may stop short. Hence, neither quantity nor value can be taken into account as tests as to what the homestead is in fact in a given case; for they, in no just sense, enter into the definition of a homestead, either in the abstract or within the meaning of the statute. They do not come into action until after the homestead has been ascertained by other tests, and then they operate only as limitations. If the homestead when ascertained exceeds the quantity named, where the limitation is by quantity, it must be reduced by cutting off the excess; or if it exceeds the value named, where the limitation is by value, as in this State, it must be divided, if it can be done without material injury to the homestead, or if not, it must be sold and the proceeds to the value named taken in lieu thereof. (Sec. 3.) If we assume, as claimed by counsel for appellants, “that the primary object of the Legislature was the exemption from sale of a quantity of land not exceeding in value five thousand dollars, including the dwelling house and its appurtenances,” the conclusion for which they contend follows as a matter of course, and the argument ends where it commenced. But counsel cannot be allowed to* read a statute backwards, wheré its language is not obscure, for the purpose of ascertaining what was the intent of the Legislature, what its primary and what its secondary object. The statute does not provide that “ a quantity of land, not exceeding in value — 227 — five thousand dollars, including within its boundaries the dwelling house and its appurtenances, shall be exempt from forced sale.” On the contrary, the language is, that “ the homestead, consisting of a quantity of land, together with the dwelling house thereon and its appurtenances, not exceeding in value the sum of five thousand dollars, shall he exempt,” etc. The difference between the two forms of expression is too obvious for explanation. The former makes the exemption of five thousand dollars worth of land the primary object, and the homestead merely a necessary incident. The latter makes the homestead the primary and the sole object of the exemption, with a limitation as to value. In this difference lies the vice of the appellants’ argument. The incident is mistaken for the principal thing. Such being the object of the statute, in all cases like the present, two questions only are presented: First—"What is the debtor’s homestead as a matter of fact? or, in other words, how much of the land in question has he actually occupied and used as a homestead ? and, Second—What is its value ? Whatever, in fact, constitutes his homestead at the time of making the declaration and does not exceed five thousand dollars in value, must be declared exempt. Both are questions of fact, except so 'far as the first may rest on legal definition. Both in the Constitution and in the statute the word “ homestead ” is used in its ordinary or popular sense—or, in other words, its legal sense is also its popular sense. It represents the dwelling house, at which the family resides, with the usual and customary appurtenances, including outbuildings of every kind necessary or convenient for family use and lands used for the purposes thereof. If situated in the country it may include a garden or farm. If situated in a city or town it may include one or more lots, or one or more blocks. In either case it is unlimited by extent merely. It need not be in a compact body; on the contrary, it may be intersected by highways, streets or alleys. hTeither is it circumscribed by fences merely. In respect to quantity by — 228 — itself considered it is unlimited, whether in town or country. In short, the only tests are use and value. The former is both abstract and statutory—the latter statutory only. Whatever is used—being either necessary or convenient—as a place of residence for the family as contradistinguished from a place of business, constitutes the homestead, subject to the statutory limit as to value. If, however, it is also used as a place - of business by the family, which frequently happens, it may not therefore cease to he a homestead, if it would be uecessary or convenient for family use independent of the business. If what is actually used as a homestead is of greater value than five thousand dollars the excess is not homestead, under the statute, though so in fact. In such a case the statute prescribes the course to he pursued (Sec. 3.) Further than this, in the way of general definition, it is difficult to go, if not impossible. Whatever lies beyond must find its demonstration in the jieculiar facts of the case. The homestead for which the statute provides is not one in name merely, but one in fact. It must be resided upon and used as such at the time the declaration is made (Sec. 1). That this is so is plain from the declared and understood policy of the Act, independent of its mere verbiage. The Act is founded upon the idea that it is good for the general welfare that every family should have a home, a place to abide in, a castle, where it can find shelter from financial disasters and protection against the pursuit of creditors who have given credit with the full knowledge that they cannot cross its threshold. But it is not founded upon the idea that every family ought, for the sake of the general good, to he allowed to hold five thousand dollars worth of land free from the touch of honest creditors provided they reside upon and use some portion of it as a homestead. How much of Block Eighteen was actually used by the plaintiffs as a homestead at any time prior to 1857 the Court does not find, and it does not follow that they used the entire block for that purpose merely from the fact that they resided upon a part of it, with no fence except upon its exterior — 229 — lines; for, as we have already stated, the homestead is not measured by fences merely. As fences alone cannot limit the extent of the homestead, neither can they enlarge it. Its extent is measured by use and occupation as such, and not by imaginary or artificial lines. From aught that appears from the findings, much the larger portion of the block may never have been appropriated to the purposes of a home prior to 1857. Since then, the findings show that no part of the block, except, first, the northeast corner of Lot Three, and second, the northwest corner of Lot Three, has been used as a home. In short, no act of the plaintiffs from the commencement to the end is found which shows that they have ever at any time appropriated the entire block to homestead use, except the making and recording of their declaration in March, 1862, at which date the Court finds that they were using only the parallelogram upon which they now reside. This silence on the part of the record as to how much of the block may have been actually used as a homestead at different times, is doubtless due to the idea which seems to have been entertained by counsel, that the declaration of homestead, for which the statute provides, ex progrio vigore, and not use, impresses upon the land the quality of homestead; but, as already suggested, the written declaration for which the statute provides does not of itself alone impress upon the land the quality of homestead. It was not intended for any such purpose, but merely for the purpose of a public record of what is in fact the homestead, and as a public declaration of the intention of the parties to secure the benefits of the statute. The premises to be described in the declaration are such and only such as the parties are residing upon and using as a homestead at the time their declaration is made. If more is included, it will not for that reason become a part of the homestead, and therefore exempt from execution, notwithstanding the whole may be less than five thousand dollars in value. If at any time prior to the mating of their declaration the plaintiffs had used more than the parallelogram upon which they were then residing, the — 230 — case shows that they have also abandoned it by non-use, which, under the law as it then stood, they could do. Judgment and order denying a new trial affirmed. Mr. Chief Justice Cürrey did not express an opinion.