| Show homesteaders RIGHTS BIGHTS justice miner some time since delivered an opinion in the case of ellas elias S kimball and luella W kimball appellants vs 0 J salisbury and sheriff fihe riff T P lewis in which the judgment of the trial court was set aside with directions to enter a decree in conformity with the prayer of the complaint the decision is a very important hiie one affecting as it does every householder in the state it furthermore sets aside previous rulings and gives a more prope and accurate definition of the lav law W under the revised statutes action in the first instance was brought to quit title in two pieces ot land in salt lake city claimed by mr kimball to be his homestead the ground is ten rods front by nine rods deep situated on north temple street between east temple and state streets three by nine rods of this ground WM waft the piece of property in dispute it was sold under an execution issued upon a judgment against ellas S kimball in favor of defendant salisbury sallil who was also the purchaser pur chawn the sale was effected in march 1897 but before the certificate of sale ale was received by salisbury kimball dom coin fenced action to remove the cloud froin the title and also notified the defendant I 1 in writing of his intention of filing his bis declaration of homestead the complaint alleged that kimball inherited the land from his father tit n IM 1868 and that it had been used as a homestead ever since that he had no notice or knowledge knowle dige of the levy and sale that for four years prior he had been engaged as a missionary in the southern states that his wife and aud three children accompanied him in his labors that during certain portions port imil of the year he would return to sat salt tae and live in the house adjoining the mad land in dispute for one month in each year using the same as ft a homestead the defendants offered no evidence except the execution answer and return judge hiles before whom the case was waa tried found for the defendants prova arom this decree kimball appealed the court among other things found that the continued absence of the plain tiffs miffs from their residence for a year at a time does not constitute the abandonment of the homestead right when it appears that it was their bona fide intention to return and live upon the premises in order that all interested may more fully understand the extent of the decision the news presents to its readers a syllabus of the case as follows 1 homestead exemption rights waiver under section C L TT 1888 ras as amended by section 11 chapter 71 session laws 1896 p the homestead exemption is not a privilege conferred upon the head of the family but an absolute right intended to secure and protect the home against creditors as a means of support to every family in the State statland and no waiver of the homestead right could effect the interest of the wife or children composing the family 2 same homestead value limit when the homestead consists of one or more pieces of land is within the value limited by statute and is established by selection or occupancy the constitution and statute under it is a positive prohibition against a levy levy and sale thereof by creditors of the owner of the homestead 3 homestead occupation selection notice to it if the premises occupied by the debtor as a homestead is of less value than the limit fixed by the statute as exempt to the head of the family it is exempt form execution with without out any necessity on the part of the debtor to formerly select the land as a homestead and any sale thereof upon execution will wot pot effect th title thereto or deprive the actual owner thereof of his homestead right therein in such case the selection is sufficiently manifest by the ownership residence use or occupation and a sale thereof under execution may be set aside as aa a cloud upon the title 4 same sale execution selection Select lon of homestead Home sead if the selection of a homestead be made before execution levy and sale of more than the amount to in value as limited by statute or it thereafter becomes enhanced in value such homestead to is still liable for the debt of the execution creditor to the amount in baue in excess of the limit exempt by statute in such case or if the homestead kom estead consists of more than one piece of land neither of which exceeds the exemption limit it is optional with the debtor which piece he may select and retain as exempt in full or which piece or pieces may be partially or wholly sold but the homestead cannot chot be sold unless the officer making the sale receive a bid greater than the amount exempted exem pled by statute if contained in one parcel if the owner or officer making the sale cannot agree as to the value or partition thereof then appraisers axe are to be selected before sale the debtor Is not required tj ta take steps to selca an and d preserve prex erve the homestead against the invasion of a creditor before such levy and he is called upon ta make a selection of his homestead if the homestead consists of more than op olk piece of land jointly exceeding the exemption limit the selection must be milde made AS prodded by br statute in such case the debtor is entitled to notice before sall sale in order to be able ti to select his appraisers in case of disagreement between himself and the officer making the sale 6 residence Rest denice selection homestead written declaration the statute does not contemplate that the debtor shall 0 JO o JO nage land claimed by him as a homestead and within the exemption limit in value in order to secure its exemption nor was it contemplated that the head of the family should make a written declaration announcing the selection of any particular piece of land as his homestead at any time before execution levy thereon in order to protect his homestead rights therein 6 absence absence from residence by homesteader Homestead ei abandonment of home stead The continual absence of the he homesteader from his residence for a year at a time when attending to his occupation out of the state but with a bona fide intention to return thereto does not constitute an abandonment of the homestead right 7 residence upon homestead in order to claim a homestead under the statute it is not necessary that the debtor reside upon the land claimed as exempt provided the land be used for the family support and as the whole or part of the homestead unimproved 8 kimball was the owner of only two separate lots of land in salt lake city of a joint value of less than the exemption allowed by law and during his absence from the state with his family for nearly a year upon a mission the lots were sold upon execution to satisfy a judgment against him without any notice to him of the levy or proposed sale one of the lots adjoined the residence of his mother where he and his family dwelt when in the city and had no b Vall dilding ding thereon except an outhouse this lot and outhouse were used in connection with his residence as a home and means of support of his family the other lot was also used as a means of family support but was located in another part of the city held that as kimball had no opportunity of selecting or claiming his homestead until after the sale thereof on execution to the plaintiff and the officer making the sale having made no demand upon kimball to select his homestead or appoint appraisers but having sold the land without notice a court of equity should set aside the sale as EL a cloud upon the homestead of kimball chief justice zane conjured con cured in the decision justice bartch filed a dissenting opinion a 9 synopsis of which appeared in the news of july ath |
