THE OKLAHOMA LAW JOURNAL EDITED AND PUBLISHED MONTHLY BY D. H. FERNANDES, GUTHRIE, Oklahoma. VOL. 10. February, 1912. No. 8 IN THE DISTRICT COURT OF THE UNITED In the matter of MILTON G. BENJAMIN, Bankrupt. In Bankruptcy. No. 200. OPINION on Review. By the last petition for review in this proceeding, complaint is made of an orden of J. M. Van Winkle, referee, allowing as a homestead exemption a certain tract of land in Custer County, in this state. In the first instance, referee Lyle refused this exemption, and on review of his action on July 16, 1910, this court refused a re-hearing upon grounds then urged. but set aside his decision on the merits and directed a hearing for the purpose of permitting the wife of bankrupt to intervene and give her testimony, and of determining the matter of exemption upon the record containing such additional testimony. This entire proceeding was also at the time transferred to Mr. Van Winkle, as referee. A subsequent order followed, of July 22, 1910, permitting rebuttal testimony. She has testified fully, other witnesses were called in rebuttal and documentary evidence was also received. The referee found that the land involved was on December 17, 1908, the date of the adjudication, also the date the voluntary petition was filed,the homestead of the bankrupt and his wife and exempt under the laws of Oklahoma, and should be set apart as such under the provisions of the bankruptcy act; and he ordered it set apart accordingly. Counsel for the trustees and creditors applied to the referee for an order vacating his findings and order, which was denied. On the same day and in due time, they filed their petition for review, assailing both the findings of fact and conclusions of law as made by the referee. Two questions are presented, first, whether by laws of the state residence is requisite to authorize this exemption, and second, whether the land involved has been abandoned as a homestead. 1. By section 6 of the bankruptcy act, bankrupts are allowed such exemptions as are prescribed by the state laws in force at the time of the filing of the petition in the state where they have had their domicile for six months or a greater portion thereof immediately preceding the filing of the petition. The domicile of the bankrupt and his family being concededly in Oklahoma during the period mentioned, the exemption is to be governed by the laws of this state. These laws are found in Snyder's Statutes of 1909, sections 3346 and 3347, and sections I and II of article XII of the state constitution, which, so far as here applicable, provide: Section 3346, Snyder's Statutes: "The following property shall be reserved to every family residing in the state exempt from attachment or execution and every other species of forced payment for the payment of debts, except as hereinafter provided: First, the homestead of the family, which shall consist of the home of the family, whether the title to the same shall be lodged in or owned by the husband or wife... Section 3347, Snyder's Statutes: "The homestead of a family not in a town or city shall consist of not more than one hundred and sixty acres of land, which shall be in one tract or parcel with the improvements thereon, Provided, the Homestead in a city, town or village, consisting of a lot or lots, not to exceed one acre with the improvements thereon: of a Provided, That the same shall be used for the purpose home for the family; Provided, also, that any temporary renting of the homestead shall not change the character of the same when no other homestead has been acquire............ Sec. 1, Article XII, Constitution: "The homestead of any family in this state, not within any city, town or village, shall consist of not more than one hundred and sixty acres of land, which may be in one or more parcels, to be selected by the owner. The homestead within any city, town or village, owned and occupied as a residence only, shall consist of not exceeding one acre of land, to be selected by the owner; Provided, That the same shall not exceed in value the sum of five thousand dollars, and in no event shall the homestead be reduced to less than one-quarter of an acre, without regard to value.. And Provided Further, That any temporary renting of the homestead shall not change the character of the same when no other homestead has been acquired." II. Sec. 11. "The homestead of the family shall be and is hereby protected from forced sale, for the payment of debts.. ; nor shall the owner, if married, sell the homestead without the consent of his or her spouse." A The statutes pertaining to exemption have not been repealed in terms by the constitution. By section 2 of the Schedule, the laws of Oklahoma Territory, not repugnant to the Constitution, are continued in force in the state. material difference between the statutes and the constitution is that by the latter, the homestead "may be in one or more parcels to be selected by the owner." But there is no provision in the constitution dispensing with the requirement that the property to be exempted shall be the home of the family, and the repitition of the clause in the constitution that a temporary renting of the homestead shall not change its character when no other homestead has been acquired renders it certain that it is essential to the exemption. The only reasonable construction is that the same policy was adhered to as declared by former laws, except that the homestead right might extend to several parcels from which the owner might select up to the limit of 160 acres. Residence might not be actual and physical as to all tracts, but they should be used as a part of or in connection with the home. The statutes and the constitution should be construed together, the latter, of course, prevailing in case of conflict. This could only be done by taking them to mean the land should be held for the purposes of a home, whether in one tract or several. Such view is confirmed by section 3, of article XII, of the constitution, which declares certain portions of the statutes to be inoperative, and by the second proviso of section 1, which limits the value of the homestead interest, where the property is used "for both residence and business purposes." According to section 3346 of the statutes, it is immaterial whether the title to the exempt property is vested, lodged in or owned by the husband or wife, but it is necessary that the property shall be the home of the family. 2. In 1899 the land involved was entered by the bankrupt as a homestead under the public land laws, and in 1905 he made final proof and received a patent from the government. The proof was required by those laws to show continuous residence and cultivation in good faith, and when it was approved and the title obtained upon it, the land was necessarily a homestead, as defined by the territorial laws. Being thus exempt, it so remained unless it was subsequently abandoned as a homestead; and this is the issue to be determined. It appears that the bankrupt, in 1899, took charge of the schools at Arapahoe, four miles from this land, that his wife also taught school at Arapaho while they kept up their residence on the land, that in 1902 he das elected Superintendent of the Custer county schools, and that he held the office until November 16, 1907. His duties called him to Arapaho, and they staid there a considerable portion of the time. For about a year she did not teach but helped him there in the abstract business, and she was also assistant superintendent. She first acquired a two-room house in Arapaho in 1902, for their use in winter, but it was sold after they occupied it about three months. The next year he bought other property there-a lot improved by a house of three rooms, already furnished. He conveyed this to his wife as a present in December, 1904. It was used by them for residence purposes until June, 1908. When final proof was made in 1905, the bankrupt leased the land to tenants, and thereafter it appears that neither the bankrupt nor his wife ever actually maintained a residence on the land, but they left the household furniture, some effects, and the agriculturel implements there, reserved a room in the farm dwelling for their use, and also reserved pasture for stock, and they went to the land at various times, looking after their interests. On returning from office in November, 1907, the bankrupt went to Clinton, five or six miles from the land, and engaged in the meat business, but they did not remove to Clinton at the time. She remained at Arapaho to complete her school term, which ended in May, 1908, occupying her dwelling there and letting rooms to other teachers. In the following month, she left Arapaho and joined him at Clinton. They staid at a hotel at the latter place until August, when they wented and furnished a room. The house in Arapaho was leased and most of the furniture disposed of, only a part of it being taken to Clinton. Later, the Arapaho property was sold for $500, and in September she bought two lots in Clinton with $400 of the proceeds, built upon them, at a cost of $200, a two-room house, without ceiling or plastering, and they furnished and occupied it for residence purposes. She also obtained employment as a teacher at Clinton. That fall the gankrupt became largely indebted, his property was attached, and in December he was adjudged bankrupt on his voluntary petition. In May, he had bought for his wife four other lots in Clinton, at a cost of $202.75, the greater part of the consideration being furnished by her. The following year, she built a larger dwelling house on the two lots at a cost of $1375.00. They were mortgaged for $800.00. She leased this house for a time, but the rental being inadequate, they later occupied one of the rooms, and let the remainder to others, and boarded elsewhere. The bankrupt and his wife claim at all times the intention to reserve and maintain the land as their home. It means, and her testimony is that she was after final proof appears that in the first place, the relinquishment of another |