Kelly v. Dill

Gileillan, C. J. This court decided, in Kresin v. Mau, 15 Minn. 116, that, to constitute a homestead, the residence or dwelling of the party claiming it must be, or must have been, situated on the land claimed. In this case Gilmore’s residence or dwelling had, ¿it the time of levying the attachment, never been situated on the land. He had merely intended to make the land his homestead, and had purchased it for that purpose. It was, therefore, not his homestead when the attachment was levied. [438] The only question remaining is, can the owner defeat the lien ot an attachment previously levied, by moving upon the land and making it his homestead? To sustain the affirmative the plaintiff relies on Const. art. 1, § 12; Gen. St. c. 68, and Laws 1865, c. 58. Section 12, art. 1, of the constitution provides that “a reasonable amount of property shall be exempt from seizure or sale for the payment of any debt or liability; the amount of such exemption shall be determined bylaw.” This does not determine the amount or character of the property to be exempted, nor how it shall be ascertained or designated. No property could be claimed as exempt under it until the legislature should determine to what property, and to what amount, the exemption should extend. When determined by law, the exemption comes under the constitutional protection. Gen. St. c. 68, § 1, provides that “a homestead, consisting of any quautity of land not exceeding eighty acres, and the dwelling-house thereon, and its appurtenances, to be selected by the owner thereof, and not included in any incorporated town, city, or village; or, instead thereof, at the option of the owner, a quantity of land not exceeding in amount one lot, being within an incorporated town, city, or village, and the dwelling-house thereon, with its appurtenances, owned and occupied by any resident of this state, shall not be subject to attachment, levy, or sale upon execution, or any other process issuing out. of any court within this state.” The act of 1860, (Laws 1860, c. 95; Gen. St. p. 499,) as amended by the act of 1868, (Laws 1868, c. 58,) merely enables the owner to remove from his homestead without losing the benefit of his exemption. By this section of the general statutes the legislature, pursuant to the constitutional provision, points out one particular kind of property, and the amount of it, that is to be exempt from seizure or sale. This kind is a homestead, consisting of land not exceeding the prescribed amount, with the dwelling-house thereon, owned and occupied by the debtor. [439] There is no exemption until it is such homestead, and is so occupied. Until that time it stands as any other property, and may be seized for the debts of the owner. The proposition that property may be seized, attached, or levied upon, to answer the debts of the owners, includes the further proposition that such seizure, attachment, or levy may be made effectual by a sale, or any subsequent acts necessary for that purpose. The liability to seizure implies the liability to sale. The right to sell is fixed by the seizure. Such right is, from the time the lien attaches by the seizure, a vested right and property. In this respect there is no difference between a lion secured by a levy of an attachment and one secured by the docketing of a judgment, or the levy of an execution, except that it, may be defeated by dissolution of the attachment, or failure to obtain judgment. There is no reason to suppose from the language, either of the constitution or of the statute, that it was intended to give to the debtor the power, by his own acts, to deprive others of rights previously obtained in his property. They could be deprived of such rights only by due process of law. Tuttle v. Howe, 14 Minn. 145. Judgment affirmed.