Liebetrau v. Goodsell

Berry, J. In Kresin v. Mau, 15 Minn. 116, it was held that “to sustain the claim of the owner of land to hold the same as a homestead exempt from forced sale, his residence or dwelling-house must be, or must have been, situated thereon.” This rule was followed and applied in Kelly v. Dill, 23 Minn. 435. In the latter case it apjieared that one Gilmore purchased a piece of land for a homestead, and intending to make it such; that neither at the date of purchase, nor afterwards, did he own any other land or homestead, and that he had begun to make arrangements for moving upon the land, and living thereon as his homestead. Before, however, he had taken up a residence upon the land, an attachment was issued thereon. This court held that the land was not his homestead at the time when the attachment was levied; that it was not exempted until it became such homestead, and was so occupied; and that, until that time, it stood as any other property, and was subject to seizure upon attachment for the owner’s debts. It was further held that the owner could not defeat the lien of an attachment previously levied upon the land, by moving upon it, and making it his homestead, but that the attaching creditor, having, by his seizure, secured a lien which was a vested right, might lawfully proceed to sell the land upon a judgment recovered, and an execution issued, in the action in which the attachment was made, notwithstanding the fact that, in the interim between the levying of the attachment and the recovery of the judgment, the owner of the land had moved upon the same, and, with his family, had gone into occupation of it as a homestead. We perceive no ground upon which the case at bar can be distinguished from Kelly v. Dill. Judgment reversed.