Woodward v. Till

By the Court, Sutherland, J. -Ownership and occupancy are - all that is required in such a case to secure a right of homestead, and the defendant acquired such a right in this lot before the fire. 7 Mich., 488. The absence of the defendant from the lot, and want of actual occupancy since the fire, are explained by that accident; and it appearing that no other homestead has been selected, that there has been an intention all along to rebuild on and occupy these premises, and to claim them as a homestead, the temporary interruption of the occupancy caused by the accidental necessity was not in fact, nor in law, an abandonment. He is entitled to be regarded as occupying in such sense as to presume the right of exemption. 16 Mich., 76; Id., 157; Davis vs. Kelley, 14 Iowa, 524; 12 Ohio St., 431. The circumstance that the defendant proposes to use, or is using, a part of his house for a' store, will not necessarily prevent the building being treated as his dwelling, and the lot as his homestead. If the facts essential to a homestead exist, they will establish the right. There is here the quantity, without selection or separation from other lands : the lot is within the constitutional limitations in respect to value, and the ownership and occupancy upon it as a place of residence. If consistently with these facts a portion of the premises, not separable from the rest, is used for a store, the exemption will embrace that portion, and such use will be no prejudice to the right of homestead. Prior vs. Stone, 19 Texas, 371; 18 Ill., 19; 21 Id., 40, 178; Dyson vs. Sheley et al., 11 Mich., 527. As to the power of the Court to stay execution, see 16 John., 4; 15 Id., 395; 18 Id., 505; 6 Hill, 247. Motion granted.