King v. Sturges

Chalmers, J., delivered the opinion of the court. Plaintiff in error (defendant below) claims that the locus in quo constitutes his exempt homestead. The tract owned by him consists of forty acres. It is low and sickly. There is no house on it, but he dwells in a house built on high land belonging to the railroad company, immediately adjoining it; and this house is distant from his own line less than three hundred yards. This was the .condition of affairs when he purchased, and his vendor had built the house and so occupied it and the land for several years previous to his purchase. He is a man of family, owns no other land than this, and cultivates and derives his subsistence from it. ( Is it exempt ? Eighty acres are by law exempt, provided they are actually occupied as a homestead. In this instance, if we connect with his own tract the railroad land occupied by him, he will still have less than eighty acres. What the nature of his tenure of the railroad land is, does not appear, nor is it, perhaps, material, since any right'in land actually occupied as a homestead will support a claim to exemption. In this instance the occupancy seems to have continued for several [608] years, and to have been acquired with the title to the forty-acre tract. We must conclude that it is permissive on the part of the railroad company, and constitutes at least a tenancy at will; so that plaintiff in error may be regarded as- actually occupying as a homestead a tract in sólido of eighty acres or .less, as to a portion of which he is owner in fee, and as to the remainder, a tenant at will, or perhaps from year to year. Inasmuch as any interest or tenure, save that of a mere wrongful intruder or trespasser, will support a right of exemption, we conclude that plaintiff in error was, within the meaning of the statute, in such actual possession of the locus in quo as to constitute it his homestead. Judounent reversed and cause remanded.