Neal v. Sawyer

Warner, Chief Justice. This was a claim case which was submitted to the court below for decision on an agreed statement of facts, without the intervention of a jury. The court decided that the property was not subject to the fi. fa. levied thereon. Whereupon the plaintiff in fi. fa. excepted. It appears from the record, that the property was levied on as the property of Mrs. R. A. Sawyer, to satisfy a judgment obtained against her, and that she claimed it as a homestead exemption for herself and two minor children by Fletcher, her former husband, and one minor child by Sawyer, her present husband ; that the claimant was in possession of the property claimed at the time of the levy, the three minor children living with her, but what were their respective ages does not appear; that after her inter-marriage with Sawyer, her present husband, he obtained a homestead exemption of all his individual property under the provisions of the 2010th section of tbe Code; that after-wards, on the 18th of December, 1876, the claimant applied for and obtained her homestead exemption in the property levied on, the same being her separate property in possession before her marriage with Sawyer, and the question is whether upon the foregoing statement of facts the property was subject to the fi. fa. levied thereon. In our judgment, it was subject. The husband is recognized by law as the head of the family. If a wife having children by a former as well as by a pi'esent husband can be said to be the head of any family, most certainly it is not the head of a mixed family consisting of herself and her minor children by both husbands. She is a member of her living husband’s family, and so are the children which she bears to him. In this case the husband had secured all his own property as exempt, and in the benefits of that exemption she and her child by him were entitled and are still entitled to share. The same [354] household cannot have two separate homesteads or exemptions, one secured by the husband in his property, and the other by the wife in hers. Let the judgment of the court below be reversed.