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Oregon Mortgage Co. v. Dunbar

Supreme Court of Montana
Jun 24, 1930
289 P. 559 (Mont. 1930)


No. 6,655.

Submitted June 11, 1930.

Decided June 24, 1930.

Homesteads — Liberal Construction of Act in Favor of Debtor Required — Agricultural Homestead — Cornering Parcels of Land Held "Contiguous" — Owner may Select Land as Homestead Though Held by Tenant — When Inclusion of Too Much Land in Declaration Immaterial. Homesteads — Exemption Laws to be Liberally Construed in Favor of Debtor. 1. Homestead exemption laws were enacted for the benefit of the debtor and should be liberally construed in his favor. Same — Agricultural Homestead — Declaration Showing Two Tracts of Land Cornering With Each Other Held Sufficient as Against Contention That They were not "Contiguous." 2. Conceding, without deciding, that where an agricultural homestead consists of more than one parcel of land, the parcels selected must be contiguous (sec. 6968, Revised Codes 1921, defining such a homestead being silent on the subject), where two tracts cornered with each other and were used as one farm, they were contiguous, and the declaration of homestead attacked as void on the ground of noncontiguity by the purchaser of the land in an action to quiet title, was not open to the objection urged. Same — Fact That Land Held by Tenant No Bar to Owner's Right to Select It as Homestead. 3. Where the owner of two contiguous tracts of agricultural land upon each of which there was a dwelling-house, worked the land as a unit through a tenant, the owner sometimes residing in the one house and sometimes in the other according to whether the one or the other was occupied by the tenant, the fact of such tenancy did not bar the owner of the right to select the lands as a homestead. Same — Validity of Declaration of Homestead Unaffected by Inclusion in Tract of 160 Acres of 10 Acres not Owned by Him. 4. The validity of a homestead declaration was not affected by the fact that declarant included ten acres of farm land in the total of 160 acres selected, which he did not own; not having exceeded the limitation prescribed by statute, the declaration was good as to the remaining 150 acres.

Contiguous, 13 C.J., p. 112, n. 69. Homesteads, 29 C.J., sec. 15, p. 787, n. 82; sec. 106, p. 829, n. 17; sec. 414, p. 966, n. 72.

Appeal from District Court, Ravalli County; James M. Self, Judge.

Mr. Elmer E. Hershey, for Appellant, submitted a brief and argued the cause orally.

Messrs. O'Hara, Madeen Grant, for Respondents, submitted a brief; Mr. Robert A. O'Hara argued the cause orally.

The statutory requirement (sec. 6945, Rev. Codes 1921) is that the homestead must consist of the dwelling-house in which the claimant resides and the land on which the same is situated, and under these decisions we contend that a homestead declaration is ineffective to exempt the property claimed where the claimant includes in his homestead declaration two tracts of land situated as the declaration of homestead shows this land to have been and as the evidence given by the defendant himself discloses the facts to be. ( McCarthy v. Kelley, 63 Mont. 233, 206 P. 782; Cabler v. Alexander, 111 Or. 257, 224 P. 1076.)

In Linn County Bank v. Hopkins, 47 Kan. 580, 27 Am. St. Rep. 309, 28 P. 606, the court held: "Two tracts of land mutually touching only at a common corner — a mere point — cannot according to any ordinary or authorized use of language, be spoken of as constituting one body or tract of land." (See, also, Anvil Hydraulic Drainage Co. v. Code, 182 Fed. 205, 105 C.C.A. 45.)

Citing on the above point: Brixius v. Reimringer, 101 Minn. 347, 118 Am. St. Rep. 629, 112 N.W. 273; Clements v. Crawford County Bank, 64 Ark. 7, 62 Am. St. Rep. 149, 40 S.W. 132; Morse v. Morris, 57 Wn. 43, 135 Am. St. Rep. 968, 106 P. 468; In re Armstrong's Estate, 80 Cal. 71, 22 P. 79.

Plaintiff, a foreign corporation doing business in this state, commenced this action to quiet title to 150 acres of land situated in Ravalli county. The complaint is in the usual form. The land is described by legal subdivisions and consists of a compact tract containing 110 acres, and another tract of forty acres cornering the 110 acres. Defendant Dunbar by answer alleges ownership of the land and the filing by him of a declaration of homestead on December 31, 1927, covering the entire 150 acres, together with an additional ten acres adjoining the 110-acre tract. The cause was tried to the court without a jury.

The evidence introduced shows that plaintiff obtained a sheriff's deed to the 150 acres on March 28, 1929, issued pursuant to an execution sale based upon a judgment obtained by plaintiff against defendant Dunbar. A house and outbuildings are situated on each tract. Defendant sometimes lived in one house and sometimes in the other, and his tenant lived in the house which he himself did not occupy. The whole of the two tracts described in the complaint has always been rented, occupied and worked as a unit for agricultural purposes. Whether defendant owns any other land does not appear. It is conceded that he does not own the additional ten-acre tract embraced in the declaration of homestead. Over objection, the declaration of homestead, recorded prior to the judgment, was admitted in evidence.

Findings of fact, conclusions of law, and judgment were in favor of defendant, and plaintiff appealed. The several assignments of error, variously stated, question the validity of the declaration of homestead on the ground that the two tracts of land which corner may not be embraced in a declaration of homestead.

Our homestead exemption laws were enacted pursuant to the command of section 4, article XIX of the Constitution, in which it is declared that "the legislative assembly shall enact liberal homestead and exemption laws."

By section 6945, Revised Codes 1921, it is provided that: "The homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated, selected as in this chapter provided." Section 6968 provides: "Homesteads may be selected and claimed: 1. Consisting of any quantity of land not exceeding one hundred and sixty acres used for agricultural purposes, and the dwelling-house thereon and its appurtenances, and not included in any town plot, city, or village. * * * Such homestead * * * shall not exceed in value the sum of two thousand five hundred dollars."

These statutes should be liberally construed in favor of the [1] debtor for whose benefit they were enacted. ( Ferguson v. Speith, 13 Mont. 487, 40 Am. St. Rep. 459, 34 P. 1020; Dayton v. Ewart, 28 Mont. 153, 98 Am. St. Rep. 549, 72 P. 420; Yerrick v. Higgins, 22 Mont. 502, 57 P. 95.)

The precise question here involved has never before been passed upon by this court. In McCarthy v. Kelley, 63 Mont. 233, 206 P. 782, it was held that "an undivided one-half (1/2) interest and equity" in 240 acres was void because the area exceeded that authorized by the statute. In that case this court, in distinguishing a Texas case, Jenkins v. Volz, 54 Tex. 636, said: "It is evident that the statute construed in the Texas case is not similar to our Homestead Act, as there is no provision in our law providing that the homestead may be in one or more parcels." The laws of Texas expressly provide that the homestead may consist of one or more parcels. Our statutes are silent on that subject, and hence the statement in the Kelley Case is fully warranted, and yet does not decide the precise point here presented.

Under our statutes, the only limitations upon the quantity and value of lands that may be selected as a homestead not included in any town plot, city or village, are that they shall not exceed 160 acres in area or $2,500 in value. There is the further limitation that they shall be used for agricultural purposes. The declaration of the defendant is within the statutory limitations.

It is contended by plaintiff that the lands which may be [2] selected as a homestead must be contiguous. Conceding, without deciding, that contiguity is an essential element entering into our statutory definition of a homestead, it does not follow that the declaration in question is invalid.

The New Century Dictionary defines "contiguous" as follows: "Touching, being in contact, adjoining, immediately successive." The word "contiguous," according to Funk Wagnalls' New Standard Dictionary, means: "Touching or adjoining at the edge or boundary." Webster's New International Dictionary defines "contiguous" as "in actual contact, touching."

Where two tracts of land corner with each other, as here, they are contiguous ( Clements v. Crawford County, 64 Ark. 7, 62 Am. St. Rep. 149, 40 S.W. 132, and, when used as one farm, may be selected as a homestead ( Brixius v. Reimringer, 101 Minn. 347, 118 Am. St. Rep. 629, 112 N.W. 273). The fact that the land [3] is worked by a tenant does not bar the owner of the right to select it as a homestead when he resides in the dwelling-house situated thereon. ( Perkins v. Quigley, 62 Mo. 498; Haggard v. Haggard, (Mo. Sup.) 233 S.W. 18.)

In Linn County Bank v. Hopkins, 47 Kan. 580, 27 Am. St. Rep. 309, 28 P. 606, under a constitutional provision similar to our statute (sec. 6968), it was held that two tracts of land cornering may not be exempted as a homestead. The case was based largely upon the Minnesota case of Kresin v. Mau, 15 Minn. (Gil. 87) 116, which was virtually overruled in the later case of Brixius v. Reimringer, supra. In neither the Kresin nor the Hopkins Case does it appear that the cornering tracts were occupied and used as one farm, and for this reason the Minnesota court in the Brixius Case refused to follow them.

The case of Cabler v. Alexander, 111 Or. 257, 224 P. 1076, is relied upon by plaintiff. But in that case the tracts were not cornering on each other as here.

Defendant's declaration of homestead is not open to the objection contended for by plaintiff. It being valid, the property was exempt from execution sale (sec. 6948, Rev. Codes 1921), and plaintiff acquired no interest therein by virtue of the attempted sale.

The fact that defendant's declaration embraced ten acres which [4] he did not own does not affect its validity as to the remaining 150 acres. The area or value of the land embraced in the declaration did not exceed the limitations prescribed by statute. To the extent of the ten acres not owned by defendant, it, of course, is subject to attack, and the court properly found that neither plaintiff nor defendant has any interest therein.

The judgment of the district court to the effect that defendant is the owner of the 150 acres by virtue of his declaration of homestead was proper and is affirmed.


Summaries of

Oregon Mortgage Co. v. Dunbar

Supreme Court of Montana
Jun 24, 1930
289 P. 559 (Mont. 1930)
Case details for

Oregon Mortgage Co. v. Dunbar

Case Details


Court:Supreme Court of Montana

Date published: Jun 24, 1930


289 P. 559 (Mont. 1930)
289 P. 559

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