Mansfield v. Hill

Mr. Justice Eakin

delivered the opinion of the court.

1. The. first question for consideration is whether the said 160 acres of land constitute the homestead of Claude H. Mansfield under the homestead exemption statute of this State. Sections 221-226, B. & C. Comp. This law is only a statute of exemption, and contains no other elements. It does not create a homestead in which the wife or children have any right or title other than the right of owner thereof, or the wife, husband, agent, or attorney of such owner, to claim it exempt from attachment, levy, or sale on execution, and this right to claim such exemption continues after the death of the owner.

2. There is no provision against a conveyance or incumbrance by the owner, except that it shall be exempt from execution or sale upon any mortgage in which the husband and wife did not join. It provides that such homestead must be the actual abode of, and owned by, such family or some member thereof. Notice by the husband or wife that he or she claims the exemption must be given to the officer who levies upon it. There is no provision by which it may be selected, set off, or registered so as to make it exempt ipso facto or creating an estate therein in favor of the spouse or children of the owner, but the exemption must be claimed as in the case of personal property.

3. Section 226, B. & C. Comp., provides that “the homestead aforesaid shall be exempt from sale on any judicial process after the death of the person entitled thereto for the collection of any debts for which the same could not have been sold during his lifetime, but such homestead shall descend as if death did not exist.” The *406 use of the word “death” in the last clause seems to render it meaningless. It undoubtedly was used inadvertently instead of “exemption,” and the effect of the law without that clause is that it will descend to the heirs if not devised or conveyed, for the reason that there is no inhibition against any disposition of the homestead that the owner may see fit to make. Its only effect is to make it exempt from execution-if duly claimed by either spouse, against every character of execution except one issued upon foreclosure of a mortgage in which the husband and wife joined. Therefore it is subject to devise or conveyance by the owner, or descends to the 'heirs under the statute. Waples, Homestead and Exemption, cited by plaintiffs’ counsel is not in point upon our statute. The statutes upon which he based his statement of the law are very different from the Oregon homestead exemption law. The Illinois statute (Starr & C. Ann. St. p. 910, § 1) creates a homestead which shall be exempt from the law of conveyance, descent, or devise, and section 2 provides that such exemption shall continue after the death of the owner so long as the other spouse lives, and until the child becomes 21 years of age. Iñ Texas the, homestead is created by the constitution (Article 16, §§ 51-52), which cannot be conveyed, nor can a lien be created thereon, by the husband without the consent of the wife, and on the death of the owner it shall descend to the heirs at law, subject to the homestead in favor of the other spouse. In Iowa the homestead is exempt, not only from execution but from contract, conveyance, or incumbrance. It must be selected and recorded, and descends to the heirs subject to the homestead. The statutes of many other states are to the same effect.

4. A homestead is purely statutory, and therefore gives no greater right nor estate than the statute creates. 21 Cyc. 460; Wright v. Whittick, 18 Colo. 54 (31 Pac. 490). *407 And if the statute contains no prohibition against a conveyance or devise, then none exists. 21 Cyc. 527.

5. The title to this enactment (Laws 1893, p. 93) is, “to exempt homesteads from attachment and judicial sale.” The word “homestead” is not the designation of a particular estate, but signifies the place where the family dwells, and the whole purpose of this act is to create an exemption from execution sales. Therefore the facts alleged here disclose no rights in favor of plaintiffs, arising out of the homestead exemption law.

6. The evidence, offered to show the mental incapacity of Claude H. Mansfield, on October 24, 1904, to execute the deed to J. L. Hill, relates principally to his use of opiates and acetanilides, and but little is disclosed as to his language or demeanor, indicating insanity or mental incapacity, and nothing whatever showing incapacity at the time of the execution of the deed. Many of his acquaintances testified that at about the time of the execution of the deed, and before and after, he was of sound mind. The evidence tends strongly to establish that, although he was in poor health, he was in his usual mental vigor, and understood well the nature of the business and the effect of it: Carnegie v. Diven, 31 Or. 366 (49 Pac. 891; Dean v. Dean, 42 Or. 290 (70 Pac. 1039); Reeder v. Reeder, 50 Or. 206 (91 Pac. 1075).

7. It is further contended that the deed, although absolute in form, was in fact intended as a mortgage, but we find nothing in the evidence to sustain such a contention. The deed was delivered to J. L. Hill as a payment, and not as a security. Claude H. Mansfield was largely indebted to J. L. Hill for money advanced in securing, improving, and acquiring title to the homestead and he had no other property, and when he delivered the deed he said: “I want to give you this; I want you to take this for what I owe you.” And again: “I can never pay you all you advanced. If you will take this, if I ever get able to, I will pay you *408 the rest.” There was no reservation in favor of, or right of, redemption in the grantor.

8. Plaintiffs seek in this suit to have the will of Claude H. Mansfield canceled on the ground that the testator lacked the mental capacity to make it at the time of its execution, but the probate of the will in the county court is conclusive upon plaintiffs in this suit, which is a collateral attack: Morrill v. Morrill, 20 Or. 96 (25 Pac. 362: 11 L. R. A. 155: 23 Am. St. Rep. 95). The constitution gives to the county court jurisdiction pertaining' to probate. Article VII, § 12, and Section 911, B. & C. Comp., provide:

“The county court has the exclusive jurisdiction, in the first instance, pertaining to a court of probate; that is — (1) to take proof of wills; (2) to grant and revoke letters testamentary of administration and of guardianship.”

Whenever a will is probated in common form, as was done in this case, it may thereafter be contested in that court by a direct proceeding for that purpose. And the decree of the county court is conclusive until vacated by appeal or impeached by a direct proceeding: Jones v. Dove, 6 Or. 188; Hubbard v. Hubbard, 7 Or. 42; Brown v. Brown, 7 Or. 285; Clark v. Ellis, 9 Or. 128. In 1893 the legislature made provision that “when a will has been admitted to probate any person interested may, at any time within one year, after such probate, contest the same or the validity of such will; * * and all proceedings for such contests or for probating wills must be begun within the time herein specified.” Section 1108, B. & C. Comp. Hence the decree of the county court is conclusive in this case upon the validity of the will.

9. The provision of the divorce decree for future monthly payments by defendant until the further order of the court, being for an indefinite time and amount not yet accrued, is not a definite liability or a judgment for a *409 specific sum which may become a lien upon his property. The very idea of a lien upon property involves certainty as to the amount, so that persons dealing with defendant, as well as defendant himself, may know how much is involved; otherwise he would be precluded from dealing with his property at all, since it would be impossible for him to pay the lien. Freeman, Judgments, § 340, says: “There can be no lien except upon such judgments as the plaintiff is entitled to satisfy by levy upon the lands of the debtor. * * The judgment must be for a specified sum.” To the same effect is Black, Judgments, § 407.

10. That part of the decree in the divorce suit is a personal liability of defendant, but did not terminate at his death, as held by the lower court. It is a continuing liability against his estate. The statute (Section 513 B. & C. Comp.), relating to divorce proceedings, provides:

“(2) For the recovery of the party in fault and not allowed the care and custody of such children, such amount of money in gross or in installments, as may be just and proper for such party to contribute toward the nurture and educátion thereof.”

This statute contemplates that the provision shall be such as will provide for the children according to their station in life as long as they may need it, if defendant is of sufficient financial ability to do so, and the effect of such an order as was made in this case does not necessarily terminate with the death of the defendant, but may be enforced against his estate. It is so held in Miller v. Miller, 64 Me. 484, and in Creyts v. Creyts, 143 Mich. 375 (106 N. W. 1111: 114 Am. St. Rep. 656). In the latter case it is held:

“In the absence of a statute the court could do no more than to enforce the decree * * by proceedings to which the representative should be made a party if it could do anything in the premises; it being suggested that in that case the wife would be on the same footing with any other claimant, and be obliged to obtain and be satisfied with allowance and payment through the probate court.”

*410 In that state, however, the statute makes such a .decree a lien upon the real estate of the defendant, and provides for its enforcement.

This is a suit for partition, and it is alleged and seems to be conceded, that the land cannot be divided equitably. The court is asked to direct a sale thereof for the purpose of partition, which will be granted. And it is adjudged that Hattie E. Mansfield, J. L. Hill, and Addie M. Thompson are each the owner of an undivided one-third of the land, subject to the lien of said mortgage and the interest of Áddie M. Thompson is subject to the payments herein provided for and to the payment of the debts and expenses of the estate of Claude H. Mansfield, deceased.

It is therefore adjudged and decreed that said land be sold in the manner provided by law for the purpose of partition; that the proceeds of such sale be disbursed as follows: First, to the satisfaction of the mortgage debt, due Frank Reiner, of the sum of $340.85, with interest thereon from October 24, 1904, at 6 per cent per annum, total $449.92; second, to the costs to both plaintiffs and defendants in this and in the circuit court; third, that one-third' of the remainder be paid to defendant J. L. Hill, and one-third to Hattie E. Mansfield; fourth, to the payment of the monthly allowance for the maintenance and education of. the children, $15 per month from May 23, 1905, to this, time, being 57 months, and equaling $855, with interest thereon at the rate of 6 per cent per annum, which is $121.80, total, $976.80; and, fifth, that there be paid to Hattie E. Mansfield the said $50 attorney’s fees and $419.85 costs, with interest thereon from the 23d day of September, 1905, at 6 per cent per annum, total, $594, and the remainder of said purchase price, if any, be paid over to J. L. Hill as executor of the will of Claude H. Mansfield, subject to administration o± said estate, and that the cause be remanded to the lower court for the purpose of carrying out the provisions of this degree. Modified : Remanded.