Rosholt v. Mehus

¶1(concurring.) The respondent, in effect, claims that she had the right, after she had ceased to be the wife of the owner of the property used by them both as a homestead, to eject her former husband therefrom, notwithstanding the fact that he owned the fee. A homestead right is not property which can be sold. It possesses no value independent of the right to posses-ion. If the respondent has a homestead right in the property in question, she has a right to occupy the premises, and she has no other or different right. She can occupy them during the-balance of her life. Her right of possession is inconsistent with the husband's right of occupancy. They are divorced. The family tie is broken. Unless they remarry, it is contrary to public policy that .they should live together as formerly under the same roof. The divorce was granted because the court decided that they ought not to inhabit the same home. The homestead right survives the divorce. Doyle v. Coburn, 6 Allen, 71; Biffle v. Pullman, (Mo. Sup.) 21 S. W. 450. In whom is it vested? It cannot belong to both parties. While the family was a unit, it belonged to the family; but, after the union of the family had been destroyed, the homestead right must then have vested exclusively in either the husband or the wife. How can it be claimed that the decree of divorce vested it exclusively in the former wife? That decree, so far from transferring the right from the husband to the wife, struck from under her the very foundation of her claim to a homestead right. This right was given to her as a wife, and after his death she might enjoy it as.a widow. After the divorce, she was not his wife, and could never be his widow. The right was given to her because of the duty of the husband to provide her with a home. After the divorce the husband, as such, owed her no such duty. He thereafter owed her no duty whatever as husband. He has ceased to be her husband. Whatever a wife can claim from her former husband after divorce is not as his wife, *521but under the terms of the decree of divorce itself. If this gives her the homestead, she can have it. If this gives her alimony, she can have'it. But she can have no more. If the decree gives her neither the homestead nor alimony, she is entitled to nothing. Her former husband is no longer bound to furnish her a home. But the decree of divorce in .this case did in fact require the husband to pay the respondent monthly alimony for her support. The word “support” embraces not only food, fuel, and rainment; it also includes shelter, — a home to live in. The husband is ordered by the court not to provide her a home, much less to surrender up to her his own home. He is directed to furnish her with a certain amount of funds, with which she is to procure ahorne for herself. Must the husband, in addition, yield up to her his own home? The mere granting of a divorce cannot work a destruction of the husband’s rights, and vest them exclusively in the former wife. Nor is it material that the divorce was for the husband’s guilt.' There is no statute which in the remotest manner warrants the rule that the husband’s guilt should of itself, when followed by a divorce, work the destruction of his homestead right in favor of his former wife. His guilt is a circumstance which will weigh heavily with the chancellor in regulating, by his decree, the future duty of the guilty husband to the women he has wronged. It will lead the chancellor to give the wife the amplest possible support out of the husband’s estate and earnings. Frequently it will constrain the court to award to her the homestead, especially when, as in this case, the wife is given the custody of the children. Our statute expressly authorizes the court to do this: “The court in rendering a decree of divorce, may assign the homestead to the innocent party, either absolutely or for a limited period, according to the facts in the case, and in consonance with the law relating to homestead.” Section 2585, Comp. Laws. This statute is conclusive against the theory of respondent that the mere fact of a granting of a divorce assigns the homestead right to the innocent party. The statute declares that this assignment must be embodied in the decree itself. The *522best possible time to settle all such matters is when all the facts and circumstances are before the court granting the divorce, — the number, age, and sex of the children; the value of the estate of the husband; his capacity to earn money; the degree of his guilt; the position' of the parties in society; and such facts as bear ■ upon the questions who should have the custody of the children, and whether it will be better to allow the wife to live on the homestead, or be supported by the husband elsewhere. There is no danger that denying to the mere granting of a decree of divorce for the husband’s guilt the effect to assign the homestead right to the wife will work her any injustice. She can and will be fully protected in and by the decree. There is nothing in the fact that the decree awarded to the respondent the custody of the children. When, in such a case, the decree is silent on the point, the father is bound to support the minor children in the wife’s custody the same as before divorce. They are still his minor children. The divorce in this case recognized this duty. It required the husband to pay the- wife alimony for the support, not only of .herself, but of the children intrusted to her care. She was to be paid money by the father to provide a home for them, as well as for herself. So far as the children themselves are concerned, it is clear that their rights depend upon the will of their parents, or the one who is entitled to the homestead. The consent of a child is not necessary to the alienation or abandonment of the homestead. The father having conveyed the fee to another, and thereby destroyed his homestead right, the derivative right of the children was by this conveyance destroyed; the consent of the mother to the conveyance being no longer necessary, she having ceased to be the father’s wife. The statute gives the wife or widow the homestead right in her husband’s real estate used by them as a home. When there is neither a wife nor a widow to claim a joint right with a husband he is the'sole owner of such homestead right when he is the owner of the property itself. This is true of the wife, also, as to property owned by her. *523Her husband’s homestead rights in such property cease when he ceases to be her husband, unless continued in him by the decree of some court of competent jurisdiction.