Kent v. Lasley

Ryajst, O. J. This is the same controversy involved in Kent v. Agard, 22 Wis., 150. The plaintiff in that case is plaintiff here; but the defendants are different. There the defendants were tenants of the defendants here. The judgment there is, therefore, not binding here. Smith v. Pretty, 22 Wis., 655; Towle v. Smith, 27 Wis., 268. And the views on whie-h the judgment rested in that case are not res adjudi-eata in this. The soundness of that decision is therefore as far open to question in this case as if the two cases related to different premises, between different parties. In Kent v. Agard, it -was held that, where one owns and lives on more than forty acres of agricultural land, or more than a quarter of an acre in a city or village, although'his dwelling-house be upon a legal subdivision" of land exactly commensurate with the right of homestead given by the statute, the limits of his homestead remain^ undetermined until fixed by his selection. Such now appears to the court an unsound, inconvenient and dangerous construction of the statute. So far as it bears on the question in this case, the statute in relation to homesteads has remained the same from 1848, when it was first adopted, to the present time. It has relation to a homestead not exceeding forty acres in the country, or a quarter of an acre in a city or village, to be selected by the owner; and the rule in Kent v. Agard is, that the homestead right does not attach to any particular land until the selection be made. The right is, however, limited to the land on which the dwelling-house and its appurtenances are situate; - and when the dwelling-house, which is the controlling quality of the right, is situate upon a legal subdivision of land precisely equal to the statutory measure of the right, and when the [262] owner of it, owning also adjoining land, has made no different selection, lie ought to he held to a tacit selection of the legal subdivision on which his dwelling-house stands. Practically this has been the construction of tile statute in all or almost all cases except Kent v. Agao-d; and this now appears to the court to be not only an admissible construction of the statute, but better in accord with its spirit and purpose, most convenient, and essential to the certainty of the right of homestead; for, under the construction of Kent v. Agard, when one owns in one body more than the legal extent of the right of homestead, and fails to make a selection, he might, in many contingencies, be held to have waived and lost the right itself. Doubtless, when the owner’s estate exceeds the statutory limit, there is a right of selection given by the statute, beyond the limits of the legal subdivision on which the dwelling-house stands. Put this right must be held waived by failure to fexercise it, except, perhaps, in the particular case expressly provided for in the statute. It might not, perhaps, be a forced construction of the statute to limit the right of selection to that particular case. But this court has uniformly held that the statute should receive a liberal construction in favor of the right of homestead; and it is safer and better to hold the right of selection to be general. The one case for which the statute expressly provides, is the levy of an execution upon a body of la-nd greater than the right, within which the owner has not selected his homestead. The effect of that provision is not involved in this case, and need not be considered. The terms of the statute, “ to be selected by the owner,” apply equally to all homesteads, whether the owner’s seizin of land in one body, including the dwelling-house, be greater or less than the statutory limit of the right, or precisely equal to it. And if, by the terms of the statute, selection be necessary to determine the precise limits of the homestead in any case, it is equally necessary in all cases. Though the selection, if [263] selection be essential, cannot exceed the statutory limit, it may be less. People v. Plumsted, 2 Mich., 465. And if selection be essential, courts cannot recognize the limits of any homestead without it. This court has, in a great number of cases, recognized the extent of the right, without selection, where the dwelling-house stood upon a legal subdivision of land not exceeding the statutory limit. Williams v. Starr, 5 Wis., 534; Phelps v. Rooney, 9 Wis., 70; Dreutzer v. Bell, 11 Wis., 114; Green v. Lyndes, 12 Wis., 404; Platto v. Cady, id., 461; Bull v. Conroe, 13 Wis., 233; McCabe v. Mazzuchelli, id., 478; Simmons v. Johnson, 14 Wis., 523; Bunker v. Locke, 15 Wis., 635; Spencer v. Fredendall, id., 666; Re Phelan, 16 Wis., 76; Casselman v. Packard, id., 114; Trustees v. Schell, 17 Wis., 308; Jones v. Dow, 18 Wis., 241; Borrman v. Schober, id., 437; Bennett v. Child, 19 Wis., 362; Myers v. Ford, 22 Wis., 139; Murphy v. Crouch, 24 Wis., 365; Howe v. McGivern, 25 Wis., 525; Campbell v. Babcock, 27 Wis., 512; Anderson v. Coburn, id., 558; Riehl v. Bingenheimer, 28 Wis., 84; Hibben v. Soyer, 33 Wis., 319; Hanson v. Edgar, 34 Wis., 653; Bridge v. Ward, 35 Wis., 687; Weisbrod v. Daenicke, 36 Wis., 73; Krueger v. Pierce, 37 Wis., 269; Massing v. Ames, id., 645; Jarvais v. Moe, 38 Wis., 440; Watkins v. Blatschinski, 40 Wis., 347; Johnson v. Harrison, 41 Wis., 381; Goodell v. Blumer, id., 436; Wochoska v. Wochoska, 45 Wis., 423; Godfrey v. Thornton, 46 Wis., 677. So where tire sheriff levied, and the owner made no selection as provided in the statute. Herrick v. Graves, 16 Wis., 157; Smith v. Omans, 17 Wis., 395. So, even, where the owner owned adjoining land in excess of the statutory limit, and had made no selection. Hait v. Houle, 19 Wis., 472; Pike v. Miles, 23 Wis., 164; Lloyd v. Frank, 30 Wis., 306 — cases expressly sanctioning the rule now adopted. The judgment of the court in all these cases is inconsistent with the rule in Kent v. Agard. No other case is found to [264] support the latter, and dieta sanctioning it in very few cases. Hoyt v. Howe, 3 Wis., 752; White v. Polleys, 20 Wis., 503. It is quite true that the statute applies the homestead right to the land on which the dwelling-house and its appurtenances are situated; and the late Mr. Justice PaiNE, in Kent v. Agard,, illustrates his position by instancing the case of the dwelling-house on one 40-acre lot, and the barns, outhouses, gardens, etc., on another; and he remarks that it was the design of the statute, in such a case, to. allow the owner to select any 40 acres, in reasonable shape, that would include the dwelling-house. Of this there can be no doubt; but it was not the intention of the statute to force the owner to make such selection. The right rests primarily on the dwelling-house, not on its appurtenances; and if the owner fail to make the statutory selection, so as to include the appurtenances of the dwelling-house, he must be held to limit his homestead to the legal subdivision, corresponding with the statutory limit, on which his dwelling-house stands. It is his business to make the selection, when he considers it necessary to his right; and it is not the business of courts to make'it for him, or to force him to make it, or to aid his defect of right arising by his own laches. It is held in Kent v. Agard that the husband’s conveyance, without the signature of the wife, is invalid to the extent of the unselected homestead; that js to say, is valid as to an uncertain part of the grant, and invalid as to another uncertain part; and that the husband’s conveyance, with the wife’s signature, operative to convey the unselected homestead, vests in the grantee the right of selection, after the right itself of the grantor has ceased. Such a rule appears to work a solecism in the law of conveyancing, making valid grants without certainty of the thing granted, and to be productive of great and needless confusion. The rule adopted on the present appeal appears to avoid all this, and to rest more securely on well-settled principles. The result to the parties here is precisely [265] the same as if the court had followed the rule of1 Kent v. Agard; and the court, the profession and the public gain a certain and uniform rule, already sanctioned by so great a number of adjudications. The truth is that Kent v. Agard is an exceptional case, not resting on sound principle, and Ought to be overruled, as it is, for the sake of uniformity of decision. The dwelling-house of Oown, the common grantor of the parties, stood on the 40-acre lot for which this action is' brought; and, in the absence of other selection, constituted his homestead when his conveyances were executed. The respondent claims under a conveyance executed by Oown and his wife; the appellants under a conveyance executed by Oown only, without the signature of his wife. The conveyance under which the appellants claim, without the wife’s signature, was inoperative to convey the homestead; and the respondent’s title to the lot on which Oown’s dwelling-house stood must therefore prevail. By the Court. — The judgment of the court below is affirmed.