State Bank of Waupun v. Storm

Rosenberry, J. Sec. 2983, Stats., provides as follows: “A homestead to be selected by the owner thereof . . . and the dwelling house thereon and its appurtenances owned and occupied by any resident of this state shall be exempt from seizure or sale on execution, from the lien of every judgment and from liability in any form for the debts of such owner to the amount in value of five thousand dollars.” ' The section further provides that the exemption shall not be impaired by temporary removal nor by sale, but shall extend to the proceeds derived from such sale while it is held with the intention of procuring another homestead, and contains certain other provisions not material here. Adjacent to the brewery at Waupun there was a house which was occupied by the defendant. Prior to July 1, 1916, the saloon and residence at Burnett were leased to [297] various tenants. On July 1, 1916, the defendant took out a license in his own name and engaged a barkeeper to run the saloon. Meantime a mortgage upon the brewery property at Waupun had been foreclosed, although the period of redemption had not fully expired. The defendant testified: “After we-sold the beer [referring to the last sale at Wau-pun] I went into my property at Burnett in the saloon business and intended to move my family down there too, but the youngest child, two years of age, had pneumonia, and being very sick we could not move him. At that time, March 27th, I had a bartender and I discharged him and ran the business myself. I couldn’t move my family on account of sickness.” The men who ran the business lived in the premises with their families, those who had families. The question is whether or not, under the facts and circumstances, the land became the homestead of the defendant in a legal sense before the lien attached. In order to bring the property within the exemption there must, of course, have existed on the part of the defendant an intention in good faith to occupy the premises as a homestead; such intention must have existed prior to the time when the lien attached, and it must have been evidenced by some overt act indicating a purpose to make the premises a homestead. Scofield v. Hopkins, 61 Wis. 370, 21 N. W. 259; The defendant had no other homestead. It is argued that there is no overt act which evidences an intention on the part of the defendant to make the property in question his homestead. We think the discharge of the bartender, which required him to move his family from the premises so that they could be occupied by the defendant, together with the taking over of the business by the defendant, is sufficient evidence of his intention, and under all the circumstances an overt act within the meaning of the law. It is also argued that the fact that the defendant took charge of the saloon is not significant, because he may have intended to run the business until the license expired, and [298] that the act is as consistent with one course as with the other. The fact that in July of the previous year he took out the license in his own name should be given some weight. In Shaw v. Kirby, 93 Wis. 379, 67 N. W. 700, up to the time of entering the judgment there was no overt act which was not as consistent with an intent to improve and sell the farm as with the intent to improve and occupy it; nevertheless the homestead claim was upheld. In that case there was subsequent actual occupancy; here it was rendered impossible. In that case the intent may have been formed after entry of judgment; here the taking out of the license, the closing out of the business at Waupun, the discharge of the bartender, his vacation of the premises, the occupancy by the defendant as far as his circumstances permitted, together with his declared intention, are circumstances sufficient to establish the character of the premises as a homestead. By the Court. — Order affirmed. Eschweiler and Owen, JJ., dissent.