Chopin v. Runte

Cole, C. J. We are quite clear that the homestead right attached to the premises which the plaintiff John Chopin purchased of Edwards. He took'possession of these premises, built a house upon them, which he occupied with his family for years, and, if he did consent to their being leased for a period, this was for a temporary purpose and the exemption was not impaired by that act. It is said b}^ the learned counsel for the respondents that Chopin did not acquire such an interest in the premises under the contract as would constitute them a homestead. This position -we deem clearly untenable. The exemption extends to any estate less than a fee held by a person, by the express lan — 367 — guage of the statute. Sec. 2983, R. S. The disability of John Chopin to alienate or in any way incumber the premises without the consent of his wife is clear and undoubted; for the disability attaches to a homestead which is exempt by law. Sec. 2203. The law in this regard has been changed since Platto v. Cady, 12 Wis. 461, was decided. It is further insisted by the same counsel that the evidence shows that the. wife was the real owner of the premises, and that, being her separate estate, she had the absolute right to dispose of them or incumber them as though unmarried. There is certainly testimony to sustain that view; but still we think the established facts show that- the husband purchased the premises from Edwards for himself; that he had the equitable interest, under the contract, and was the real‘vendee. It is probable that the wife furnished the money to make the first payment on the contract. She so testified. But the contract was not in her name, nor do-we think she was the real purchaser. The husband must be deemed the owner of whatever interest was acquired under the Edwards contract, and the case will be considered in that view. Now, upon that assumption, what must be paid the respondent to entitle the appellant to a conveyance from him of the premises? The circuit court held that, under the arrangement which the evidence showed the parties had made, the respondent held the premises as mortgagee for the amount of $876.85, which the plaintiff must pay in order to be entitled to a conveyance. This sum is made up of the amount due on the contract, and what John Chopin owed Edwards when the latter conveyed the premises to the respondent, and what the respondent paid material-men and for some improvements on the house and barn, together with some taxes, and interest on these various items of indebtedness. So far as the homestead right is concerned, the respondent stands in substantially the place — 368 — of Edwards. I cannot see any fact or circumstance in the case which gives him a greater right or more superior equity than Edwards would have had, had he retained the property and paid the same debts to the others which the respondent paid. All that Edwards could have exacted in that case would have been the purchase money due on the contract, and interest, and the taxes he has paid. It is said the evidence shows that Edwards, at the request of John Ohopin, advanced the latter various sums, which were used in paying for labor and materials in the construction of the house on the premises, and which were necessary therefor, and which advances it was agreed should be paid, with the balance due on the contract, before he should be entitled to a deed. We assume, for the purposes of this case, that there was such a parol agreement made bjT the husband with Edwards that all the advances should'be paid before the latter should convejr the premises; but that could not affect the homestead right of the wife. The statute provides that no mortgage of the homestead shall be valid, or of any effect as such, without the signature of the wife to the same. The agreement made by the husband that the advances should give Edwards the right to withhold the deed, until they were paid, was an attempt to subject the premises to a lien in his favor. To give validity to such an agreement would in effect annul the statute, which declares that no lien upon the homestead shall be created without the signature of the wife to the instrument creating it. To hold otherwise would enable the husband, by his parol agreement, to defeat the homestead right of the wife entirely. If the husband had given a mortgage of the land to secure the advances, the instrument would have had no validity as against the homestead right. A fortiori, a parol agreement would create no lien. The reason for this conclusion is founded on the statute itself, which secures to the wife and children the home — 369 — stead, unless the wife consents, and joins in the instrument creating the lien. The policy of this statute to restrain the alienation of the homestead, without the wife's joining in the conveyance, has been commented upon and upheld repeatedly in the cases which have come before the court. The whole policy and spirit of the law are tó secure the homestead to the debtor and his family, in obedience to the express declaration of the bill of rights in the constitution ; and it is a cardinal rule, which the court invariably acts upon, that exemption laws are to be liberally construed. Zimmer v. Pauley, 51 Wis. 282. From time to-time since the organization of the government the legislature has extended and fortified the homestead rights of the -wife and debtor; and we should be remiss in our duty if we failed to give full effect to this legislation. We must therefore hold that the parol agreement to make the advances a lien upon the premises, without the concurrence of the wife, can have no validhy. It is said that, as to the materials and labor furnished and rendered for the construction of buildings upon the premises, there is a paramount equity that they should not be subject to the homestead exemption but should be a lien upon the property. But that point was directly ruled the other way in Spear v. Evans, 51 Wis. 42. There, by an agreement between A. and B., A. advanced moneys to enable B. to purchase and improve land, and took the legal title from the government as security for such advances. B. always claimed to hold the land under this contract, and made a payment as late as 1875, and acknowledged and promised to pay the indebtedness in 1878. ITe afterwards married. In the opinion it is said: “It seems that Evans intermarried with Caroline, one of the respondents, in May, 1853, before the final payment on the land in December of that year, and- a very large part of the money which went into improvements was evidently furnished after that time. — 370 — Whatever dower interest Caroline Evans acquired in the lands, and whatever homestead right there might be, are subject to the payment of the purchase money on the lands; but they would not be subject to the payment of the money expended for improvements, and this seems to be conceded.” See, also, Campbell v. Babcock, 27 Wis. 512. It is true the statute does not extend the exemption of the homestead to the laborers’, mechanics’, and purchase-money liens; but we do not understand that any such liens had been acquired in this case. The court below found that Edwards advanced to the husband various sums of money, to be used in paying laborers, and for materials used in the construction of the house, and that for this indebtedness mechanics’liens existed on the premises. There has been no proof .that any lien was perfected under the statute. Quite prob..ably liens might have been enforced for some of these •debts. As no steps were taken to perfect the liens, they really never became such, and when these debts were paid they stood upon the same footing as other debts which the ■husband owed. In respect to the taxes which were paid, they were a lien by statute. Sec. 1153. Our conclusion, •therefore, is that the respondent can hold the premises for •only the amount due on the Edwards contract, and the .taxes paid by him. We are inclined to hold that all rent ■received from Dobkins should be applied on the general indebtedness of the husband to the respondent; but, in respect .to all other debts — -except the amount due on the contract .and the taxes — the homestead right of the wife is paramount, and the respondent cannot -hold the property as security for their payment. We do not see anything in the case which should estop the wife from insisting upon her right to the homestead. She may be benefited by the improvements made upon the premises; so the wife was in Spear v. Evans, but this fact did not affect her right to insist on the exemption. Because debts were paid for labor — 371 — and materials which went to improve the premises, this does not give such debts any preference over other debts, so far as the homestead right is concerned. By the Court.— The judgment of the circuit court is reversed, and the case is remanded with direction to enter judgment in accordance with this opinion.