| Show THE HABEAS CORPUS JUSTICE ZANE MAKES AN IMPORTANT RULING RELATIVE TO TC THE HOMESTEAD HOME HOMB STEAD the hearing on the writ of habeas corpus before judge zane ane for tire discharge corpus c arge of okUe kars lee pe p e ar and an d ball came cabie u up at 4 yesterday afternoon eg X of sta at 3 the pour set irwill it will be remembered that commissioner mckay refused to permit either of the three applicants to take the oath entitling them to a discharge the case of WM H LICE of tooele thoele was first taken up the petitioner was sworn and on examination testified that he lived in tooele thoele he owned a house and lot worth about 1000 on which there was a mortgage he also had a farm ot of 22 acres worth with a mortgage on it for chiw his indebtedness in addition to the mortgages amounted to about 1000 he considered his farm as part of the homestead it was the custom of people who lived in settlements tle ments ashe did to hd have ve their homes in the town and their farms some distance away this custom had originated in early days when the settlers gal gathered hered together for protection from indians james H moyle for the petitioner mape made ao an argument showing that under the law mr lees town lot and farm should be con considered as one homestead it was not necessary tua the land should be in one piece but where rethe the circumstances and customs were as chown to be in the present pid sent case ca sethe the lot on which tile the family dwelling was could be separated from the farm if the latter was used for the sustenance of the family he therefore moved that the petitioner be ol 01 discharged charged at the conc conclusion lusto of mr moyles argument the jurt curt c urt adjourned till 10 am aeto today to day this morning ur CS Varlan opposed the cation for the discharge of mr lee arguing that the homestead could not include separate parate bf parcels of land to the amount of the exemption but must he be confined to the i ebia ence or home of the debtor in the present instance the applicant resided on a town lot A mile milb away was his of 22 acres which was not occupied and used by his family and could not be included in homas tead it was no argument to aay it was a hardship to the applicant the only test teat was whether or not the firm farm was used as a residence under the circumstances mr varian believed the commissioner wag was in refusing to di discharge w the applicant arf S richards Ric follow ed he maintained was the intent of the lee to provide not only a home for the family but a means for their sustenance te nance the utah statute differed hom all others in this respect it was not necessary that the homestead be one lot or even contiguous lots but could consist of separate pieces of land the statute clearly implied that in itne ithe consisting of lands not exceeding a certain value the california statute stute st which had bad been quoted by mr varian had no similarity to the utah law on the face ol 01 the latter lands used for the support of the family were exempted a as 8 a ham homestead estead the object was to prevent the dependence depend ende of the family tie the land didiot need to be in a compact body the only were tile the use and value of the property the distinction linc tion made by the utah legislature had reference to the condition of the country cou atty in its settlement the inhabitants had bad lived in towns for safety and had bad their farms near by byi it was the intention of the legislature to provide for just such stich epa cases seis in all the decisions quoted by mr varian as ap against dinst the applicant a lipsut not one was based on coudle conditions trl ps similar tp those the intent of the legislature was 66 so clearly lap applicable to ao mr lees case chatan that an extended argument me seemed but a raoof wast of time this intent was to provided pr ovidea home and protection of the family from dependence depend epee and wanti want to the amount of the exemption this intention w was i ap shown by the use use of the word 1 I landson lands fan sin ln the statute without re reference va apy taw dwellings or houses thereon the court in jrp rendering liering i a decision said it appeared from the evidence that the petitioner had bad served so 80 claya b solely because he wits was unable to pay the fine imposed that he had no personal property pr erty exempt from execution tiong KI he alad had two tracts of land on one of which he resided the value of ta the place of residence did not exceed 1000 the other was vs a tract ot of acres a mile distant disant used for cultivation and pasture and valued at under these circum circumstances the petitioner asked to be discharged on the ground that he be had bad not 20 worth of property 0 p erty exempt from execution the vh e only question was w whether the 22 acres was part bythe of the homestead the statutes exempted em lands with the imar improvements certaro sted and appurtenances to i a certain amount the court considered that the proper construction of the statute should in the interest of humanity be liberal the authorities read by counsel on either side had bad not been in harmony as to the tests to be applied the goular popular meaning of homestead homestad was the welling dwelling occupied by a family is as a h homland home and ordinarily referred to a compart piece of land in the light of the reasons for the territorial law the question arose whether the lands comprising ithe the homestead should shou ld be contiguous the object of the law was to provide not only for the head of the house but for the family pro lection from creditors it was not only to furnish f a home but the use of the lauds lands used iu in connection with the home by the family as a means ot of support it would be useless to give them a dwelling and provide them nothing to eat the object of the exemption 1 on waa wa the protection of the fam family pi 1 y in this instance the petitioner was waa using the tram frain for the maintenance and support of his bis family to protect them from hunger and want and tl i would be difficult to draw a distinction because the tract of land was not net conti contiguous gugus to the house Creditor could see eee from observation thit that the fa family u ay were using the land as a homestead e the evidence showed that both tracts of the land be considered in the homestead the petitioner was therefore ordered discharged the case of H J 0 was next taken up mr foulger wils was sworn and testified that his real estate was valued at about 1500 1 aw his family consisted ol of his bis wife and four chi children idren entitled to the exemption on examination by mr varian the applicant stated that he be had disposed of other property to his wives they had asked that they be provided with homes for themselves aud and he had divided his bis property between them he retained no future interest in any of his bla property before his bis arrest he sold to his bis wives real estate valued at about 2000 and notes and mortgages morte ages to the amount of about A certificate of deposit in Z 0 M 1 I for was also transferred to mrs foul foulger fouler I 1 er this latter transaction was alter his is arrest he had no intention to avoid the payment of any of his liabilities he was a carpenter but bat for three years he had bad been being employed on a salary he was in debt at present to the ward operative cooperative co but did not know knew how much at I 1 the he time ot of the transfer he be was not in fear of arrest though he knew he be was liable he had not made the transfer with any i reference efe rence to the arrest or with in any y idea of fraud his wife owned the furniture which was worth about tu to the house was at second street mr moyle asked for the discharge of the petitioner on the ground that he had no property exempt from execl tion it ii had been shown that all the trans actions action shad had been made inwood in good faith there was not the slightest in fraud there was no reason why he beti hould not make the disposition of his property that he did mr varlan commenced to speak but the court interrupted him and said it was not necessary to argue the case as he be did not feel disposed to discharge the petitioner he could pa pay y the tine fine if he wanted to even if the th transfers were all made an good laith faith the amount of mr Fou Foul leers gerIg line fine and the cost of the trial was paid and he was set at liberty JOHN P BALL was next called cal I 1 ed he testified that he lived in the ad ward his wives owned the homes homestead te adworth worth about 1500 There was one house divided for two families his store was on the same premises the stock worth wo was covered coy by A mortgage to that amount tie he owed over in addition to this he bad six children under age kati had outstanding credits credi ts to the amount of to the greater portion had been bee ii over two years borne of the debtors had bad moved elved away most of the amounts anoints due him were small and were owing from poor people who had no property exempt from execution he ud nad no notes for any of the indebted indebtedness ness on cross examination by mr varian he did not vary from the above statement he had bad had no other property 0 dispose spose of the court took a recess until this afternoon atter noon when W 8 burton assessor assel of salt lake lake county was called as a courty witness and testified ad that tha treal real estate in inthe the county was assessed at two thirds third to three fourths of its value two wot wo thirds t birdp was the general rule in some Ws instances it went as low as one half the county court fixed a rate for the business portion of town af a about one half the value when he was assessing assess assessing he usually assessed at two tards of 0 market value was acquainted quain ted with mr bills bails prop property efty it was asses sedat 1600 1500 three years ago mr ball thought it was too much but witness witnessed dd not net the property was now worth about 92 2000 property had greatly depreciated during the last three years yours in answer to mr varian mr bill ball said his house bouse was not insured mr varian asked that the pet petitioner be held in custody pus tody mr moyle said that it was evident that the petitioner was a poor man and hadnot had not the required amount or of property he had no means to pay the tine fine and the only way it could be done was for to his wives wives to mortgage their home this should not be required mr varian aid it was simply a question stion of law whether it was a hardship to the petitioner and his family or not had bad nothing to do with it it if the law contemplated providing for polygamous amous children the property would won ng d be e exempt but if not it would not this question he would not argue at present it further appeared that the debtor had property in his store and had various amounts owing to him mr varian thought the statute ute did not permit the court to discharge the applicant the petitioner must show that thai he be has not property to the amount of 20 in excess of that exempt from execution mr richards Kic hards said it was necessary to lave some rule by which to be governed in reference to these cases the section referring to the discharge of the prisoner provided that if he was unable to pay the fine and had not the requisite amount of property he should be discharged this provision was waa mide so that men could i not be kept in primon for a fin floe p which they could not pay iu in anyway any way this did not prevent the government from collecting the fine if the man had the property the government had the right to garnishee gara ishee the debts and collect them it if it could this case clearly came under the statute and the petitioner tit ioner was entitled to a discharge the court ruled that the nominal value of the accounts may be con sid erable but the actual value was the question at issue the statute included credits due the party in this instance the court could not find that the e accounts were worth more than 10 lo the petitioner was evidently a poor man and should therefore be discharged |
