Eliza McDougall et al., Appellants, vs. Louisa Meginniss et al., Appellees, 21 Fla. 362

The Chiee-Justice delivered the opinion of the court: Perez B. Brokaw owned in his lifetime and at the time of his death a tract of one hundred and sixty acres of land in the county of Leon, to wit: the NW|- of sec. 81, T. 1, N., R. 1, E. He was residing on said tract of land, with his family, at the time of his death and for ten years previous thereto. In the year 1866 Brokaw cultivated the land, since which time, with the exception of a few acres immediately around the house which was used as a residence, the land was uncultivated and not used by said Brokaw, or his family since his death.

It was a common pasture ground for the cattle of the vicinity. Brokaw left a will of which his wife was the executrix, and under a power granted to her in the will she sold to Louisa Meginniss fifteen acres of the tract of land above described. Brokaw at the time of his death left surviving him three minor children, the issue of a former marriage, Abram, Phoebe and Eliza. Abram died without issue and intestate. Phoebe was married to Alexander McDougall. She died in the year 1883, leaving three children, to wit: Eliza B., Mary and John McDougall.

This suit is brought by Eliza Brokaw, Alexander McDougall and Eliza B. Mc-Dougall, Mary McDougall and John McDougall by Alexander McDougall, their next friend, against Louisa Meginniss and Geo. H. Meginniss, her husband, for the recovery of the fifteen acres of land sold by Mrs. Brokaw, as executrix as aforesaid, to said Louisa Meginniss. On the trial in the Circuit Court the jury found a verdict for the defendants. The appellants, who were plaintiffs below, moved for a new trial, which motion was refused by the court. The appellants excepted to this ruling and prosecute their appeal to this court.

The main question in the case is whether or not, a person who is the owner of .an one hundred and sixty acre tract of land outside of an incorporated city or town, a resident of the State, the head of a family, residing with his family on said land and using the residence thereon as a homestead, can legally claim as a part of his homestead that portion of the one hundred and sixty acres of land which is not enclosed by fences and not used by the owner for any purpose.

The court, on the trial of this cause, charged the jury that the “ homestead represents the dwelling-house at which the family resides, with the usual and customary appurtenances, including out-buildings of every kind necessary or convenient for family use and lands used, for the purposes thereof.” The language of the Constitution is: “A homestead to the extent of one hundred and sixty acres of land * * * * shall be exempted from forced sale * * It is urged by the counsel for the appellees that inasmnch as the proof showed that only a small part of the one hundred and sixty acre tract was enclosed and cultivated that the remaining portion, which was waste land, could not be claimed as a part of the homestead.

The counsel has cited several cases in support of his position which we will examine. The evidence in the case showed that the residence of Brokaw was on the tract of laud described above and that the fifteen acres sold to Mrs. Meginniss by the executrix of Brokaw was a part of said tract which was not enclosed and on which there were no improvements. The first case cited by the appellee is the case of Drucker vs. Rosenstein, 19 Fla., 191.

In this case the facts were that the piece of ground had no improvements of any kind whatever upon it, that the defendant in execution had purchased it with the intention of building a house on it for a homestead and had contracted with a builder to construct a house thereon for himself and family; he had never occupied it as a homestead and the court decided that the property was not exempt from levy and sale. It has no application to the case under consideration. The next case cited by appellees is Oliver vs. Snowden, 18 Fla., 828.

The facts in this case were, that the defendant in execution resided with his family in the town of G-ainesville, and that neither lie nor his family resided on the lands lying several miles outside of the town, which he claimed as exempt under the homestead act. The court decided that land could not be claimed as exempt from the debts of the owner unless actually occupied as a residence of the owner. It has no bearing here. The ease of Fyffee vs.

Beers, 18 Iowa, 7, also cited by appellees, decides that abandonment and actual removal from the homestead with no intention of returning will forfeit the right as against purchasers. It is argued that if an abandonment of the whole of the property forfeits the right of homestead, that an abandonment of a part would operate as a forfeiture of the right to the part so abandoned.

When a party resides on the land as a homestead and the law is silent as to how much of said land, other than that occupied by his house, he shall use or cultivate, or in what manner he shall use it, or that he shall use or cultivate it all, we do uot feel at liberty to amend the Constitution of the State by the interpolation of further provisions therein regulating the manner or extent of the use of the homestead, or declaring that a non-user'of a part while he remains on the land is an abandonment of that part which takes from it the benefit of homestead exemption.

In our view the owner is only required by the Constitution to live on the land and the whole one hundred and sixty acres is exempt. Appellees cite also the case of Haitt vs. Webb & Wife, 36 New Hampshire, 158. There is a difference in our law which states the quantity of the land which can be claimed as a homestead outside of an incorporated city or town, to-wit, one hundred and sixty acres, and the New Hampshire-statute which provides for_ the exemption of the family homestead, provided such homestead does not exceed in-value five hundred dollars.

The right to the lot and the homestead thereon was not denied, but the party claimed alsp another lot which had never been occupied as a homestead and was rented to tenants. The value of the homestead lot and the lot claimed aggregated $725. The court that the exemption did not extend to property let to tenants. There was no provision as to quantity as in our law and the property was not a part of the homestead. The case cited in 36 Iowa, Reynolds vs. Hull, et al., 394, quotes the statute of the State on which the decision is based.

It provides that a tract not contiguous to the house must be “ habitually and in good faith used as a part of the homestead.” There is no such provision in our Constitution.

The case cited in 18 Ill., 194, was on the state of facts as stated by the court, “ whether a tract of timber laud a mile from the farm land and not adjoining it, yet from which supplies of fire wood, rails, &c.,' were alone derived for the use of the farm can be treated as a part of the homestead under the act of 1851.” The court said “ the language of the act seems to contemplate but one piece of land.” The court also said: “ But I conceive the intention of the Legislature in confining the exemption to the ‘ lot of ground,’ containing the dwellings and residence, designedly narrowed the protection to less than would be included in the more comprehensive terms of the homestead.” In the case cited in 21 Wallace, Gressholz vs.

Newman, 481, the facts were that the heirs of Mrs. Kirchberg claimed as part of her homestead after her death a lot sold by her husband in which sale she never joinedand which was without her consent. The lot had never been used as a homestead and was on a separate tract from the one on which the Kirchbergs lived. After selling the lot Kirchberg built a kitchen on it. It will be seen from this statement that it has no relevancy here. The next case cited by the counsel for the appellees is the case of J. C. Greeley, assignee of Joseph W. Scott, vs. Joseph W. Scott and wife et al., 2 Woods, C. C. Reports, 657.

This ease is directly in point, being a decision on our own law by Justice Bradley of the Supreme Court of the United States, holding a term in the 5th Circuit, and supports the proposition of counsel for appellee. Judge Bradley says: “ The reservation, however, is only that of a homestead and embraces no more, although the party may own more within the prescribed limit of quantity.

It is material therefore to know what is meant by and embraced in a homestead within the meaning of the Constitution of Florida; however it may he elsewhere, it certainly embraces more than a house for a shelter, for it may extend to 160 acres of land, which would never be needed for that purpose alone. As 160 acres of land is the usual quantity for a farm in this country the policy of the Constitution seems to be to allow a man such quantity of land with his house as he is accustomed to use therewith in the pursuit of his occupation.

In other words the object seems to be not only to preserve to the unfortunate debtor his house for shelter, but his usual means of employment by which to earn his livelihood and support his family.” Again, “for' the same reason, the farmer’s homestead would not include a saw-mill or a grist-mill or a carding and fulling mill, though erected on a portion of the tract of which the farm is a part.” .

Again: “ Homestead would not embrace tenant houses, though built on the farm, for these would not be a proper part of the farm homestead.” Our Constitution says: “ A homestead to the extent of 160 acres of land * * * owned by the head of a family residing in this State * * and the improvements on the real estate,” shall he exempt from levy and sale. This language in our view is too plain for elaboration or argument.

We have no authority, if the person who .claims the land for a homestead resides thereon, is a resident of the State, the head of a family, and there is no more than 160 acres in the tract, to add any other conditions than those expressed in the Constitution. To say say how the homsteader should use his land,, whether as a “farm,” or for a “saw-mill,” or a “grist-mill,” or a “ carding and fulling mill,” would be to impose a judicial condition not found in the Constitution of the State. The Constitution does not prescribe the manner in which the tract shall be used beyond residing thereon. In the case of Grigg vs.

Bostwick, 33 California, 220, the complainants filed a bill in equity to restrain a judgment creditor from selling under execution certain land claimed as a homestead. The California act, unlike our Constitution, does not prescribe the quantity of land exempted, but limits it as to value, to wit: $5,000.00. Chief-Justice Eandall in delivering the opinion of the court in Oliver vs. Snowden, 18 Fla., 823, commenting on this California statute, says : “ This extract shows the difference between the statutory regulations as to the extent of the homestead in that State and in Florida.

In this State the extent of the homestead is measured by quantity and not value.” In the case of Hancock vs. Morgan, 17 Texas, 582, cited by the appellee’s counsel, the facts were, that Hancock obtained a judgment against Morgan and his wife, and levied an execution on a house and lot in the city of Austin, which was occupied -by one Grey, under a lease from Morgan. It was proved that Morgan, shortly after his marriage, purchased the house and lot and moved into the house ; that he lived there until he built á new house on the same lot, and then moved into the new house.

The whole lot was enclosed; that after moving into the new house, he rented the old house to Grey and ran a fence •across the lot separating the old house from the new. The value of the lot and both the buildings did not exceed two thousand dollars.. The Texas statute exempted “any town •or city lot or lots, in value not to exceed two thousand dollars.” The court held that this lot and house rented to the tenant Grey, was a part of the homestead exemption, and could not be sold under execution.

The court •said: “ When a homestead is situated upon a single town -or city lot, and the said lot with all the improvements thereon does not exceed in value the sum of two thousand dallars, the whole is exempt from levy and sale, mthout regard to the uses to which part of the lot may be applied.” We think this is a correct exposition of the law, when the law itself is silent as to how the property should be used. In the case of Carter’s Administrators vs.

Carter et al., 20 Fla., 562, Chief Justice Randall said: “Exemption laws are to be liberally construed in favor of their beneficent purposes.” We think the court erred in charging the jury that “ the homestead represented the .dwelling house at which the family resides with the usual and customary appurtenances including out-buildings of every kind necessary or convenient for the family use and lands used for the purposes thereof” in limiting the quantity of land designated in the Constitution to such as was used.

It follows that the sale by the executrix of Brokaw of a part of the homestead tract to Louisa Meginniss, was invalid and inoperative as against the heirs of Brokaw or claimants under them. The judgment is reversed and a new trial granted.