Fink v. O'Neil,
106 U.S. 272 (1882)

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U.S. Supreme Court

Fink v. O'Neil, 106 U.S. 272 (1882)

Fink v. O'Neil

Decided December 11, 1882

106 U.S. 272


The homestead of a defendant is not subject to seizure and sale by virtue of an execution sued out on a judgment recovered by the United States in a civil action if, had a private party been the plaintiff, it would be exempt therefrom, by the law of the state where it is situate.

This is a bill in equity filed by O'Neil praying for a perpetual injunction to restrain Fink, the then Marshal of the United States for the Eastern District of Wisconsin, from further proceeding under a fi. fa. issued upon a judgment rendered in favor of the United States in the district court for that district against the complainant and others, and which had been levied on real estate alleged to be his homestead, and exempt under the laws of that state from sale on execution. The premises levied on are forty acres, with a dwelling house and appurtenances thereon which he occupied as a residence for himself and family consisting of his wife and seven children, the same being used for agricultural purposes, not included in any town, city, or village plot, and alleged to be of the value of $6,000 and upwards, and it is averred that the cause of action upon which the judgment was rendered was not for any debt or liability contracted prior to Jan. 1, 1849.

To this bill there was filed a general demurrer for want of equity which, being overruled and Fink declining to answer or plead, a decree was rendered granting the relief prayed for, from which he prosecutes this appeal.

The provision of the statute of Wisconsin on the subject of homestead exemptions, the benefit of which was secured to the appellee by the decree, is as follows:

"A homestead to be selected by the owner thereof, consisting, when not included in any village or city, of any quantity of land, not exceeding forty acres, used for agricultural purposes, and when included in any city or village, of a quantity of land not exceeding one-fourth of an acre, and the dwelling house thereon and its appurtenances, owned and occupied by any resident of this state, shall be exempt from seizure or sale on execution from the lien of every

Page 106 U. S. 273

judgment and from liability in any form for the debts of such owner, except laborers', mechanics', and purchase money liens, and mortgages lawfully executed, and taxes lawfully assessed, and except as otherwise specially provided in these statutes,"

&c. Rev.Stat. Wisconsin 1878 783, c. 130 sec. 2983.

Page 106 U. S. 275

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