Hoppe v. Goldberg

LyoN, O. J". 1. The Clintonville lot is the consideration which the plaintiff Herman Hoppe received from Gensler for his farm. Such lot is therefore the proceeds of the sale of the farm, just as effectually as the money would have been had Gensler paid for the farm in cash. Seventy acres of the farm were not a homestead,- and it is claimed that the consideration therefor, as well as for the homestead forty acres, went into the Clintonville lot, and that it is impossible to separate the proceeds of the exempt homestead from those of the non-exempt property. [664] It is argued therefrom that the statute (S. & B. Ann. Stats, see. 2983), which exempts for two years, the proceeds derived from the sale of a homestead while held with the intention to procure another homestead therewith, cannot apply to this case. There might be some force in this position were it not entirely practicable to separate the proceeds of the homestead from those of the residue of the farm, and to trace and identify the same. The seventy acres were primarily liable for the mortgage debt, for in case of foreclosure the statute requires the non-exempt land to be first sold to satisfy the debt, if the mortgagor so desires. R. S. sec. 3163. The seventy acres were worth no more than the amount of such debt. Had there been a foreclosure, there is no reasonable probability, under the testimony in the case, that they would have sold for enough to pay the judgment. Gensler purchased subject to the mortgage, and paid it. The substance of the transaction was that for the seventy acres Gensler paid the mortgage debt, and gave the lot in question for the homestead forty acres. This view is fully authorized by the judgment of this court in Binzel v. Grogan, 67 Wis. 147. It follows that the lot in question is the proceeds of the sale or (what is the same thing) the exchange of the farm homestead. The proof is conclusive that with such proceeds Hoppe, intended to obtain another homestead; indeed, that he intended the lot should be his homestead, and procured it for that purpose, Regarding the lot as proceeds merely, and not as a homested, it is exempt from the lien of B. Goldberg's judgment, and from sale on execution issued on such judgment, for two years from the date of Gensler’s conveyance to Mr. Hoppe; that is, until October 29, 1892. R. S. sec. 2983. 2. But we are of the opinion that the lot in question is the plaintiffs’ homestead, although they have not actually resided upon it, and may not do so until the expiration of [665] the lease. Sec. 2983, E. S., provides that the homestead exemption “ shall not be impaired by temporary removal with intention to reoccupy the same as a homestead.” Had the plaintiffs occupied the lot as a homestead but for a week, or even a day, and then leased the same to another for three years, and removed therefrom, hut with the bona fide intention and purpose of retaining the same as their homestead and reoccupying it as such at the termination of the lease, we cannot doubt the lot would remain their homestead, until the expiration of the lease, and would continue such if they so reoccupied at its expiration. It seems to us that no sound distinction in principle can be made between the case supposed and the present case, but that the essential qualities of the transaction are the same in both cases; and if the homestead right is preserved intact in the one case, it ought to be in the other. In Scofield v. Hopkins, 61 Wis.. 370, it was held that the homestead right may exist, even for years, in land upon which the owner never resided. The grounds of that judgment are'so clearly and fully stated and considered in the opinion by Mr. Justice Cassoday that further discussion of them here is quite unnecessary. Although the facts in the two cases are not precisely alike, we think the principle of that case is applicable here, and establishes the homestead right of plaintiffs in the lot in question. It is immaterial that plaintiffs did not assert any claim to the lot as a homestead until the commencement of this action. This is not a case in which the validity of the right claimed depends upon the assertion or giving notice thereof to any one at any particular time. The lot was acquired by Hoppe for use as his homestead, to be occupied as such as soon as the lease expired, and he did nothing evidencing any change of intention in respect thereto. Scofield v. Hopkins, 61 Wis. 370. The lot was therefore protected from the lien of a judgment against him, and from sale on exe [666] cution issued on any such judgment, and no title or interest therein passed to the purchaser under the execution sale. Because the certificate of sale is a cloud upon the plaintiffs’ title to the lot, they are entitled to the-relief demanded in the complaint. By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded to that court with directions to render judgment for the plaintiffs in accordance with this opinion.