MOREY v. JAMES

MOREY v. JAMES
1926 OK 621
248 P. 594
118 Okla. 277
Case Number: 16743
Decided: 07/13/1926
Supreme Court of Oklahoma

MOREY et al.
v.
JAMES.

Syllabus

¶0 1. Homestead -- Selection of Rural Homestead out of Excessive Acreage. Where the family residence is on a tract of land in excess of 160 acres owned by the husband, and he also owns additional land one and one-half miles from the tract on which the family resides, and all of such lands are used and cultivated for the benefit of the family, the homestead may be selected, by legal subdivisions, from any of such lands, contiguous or otherwise, but must include the family residence.
2. Same -- Time for Selection -- Rights of Creditors. In such case the homestead may be selected by the owner, as exempt, at any time prior to levy, having due regard for the rights of judgment creditors.
3. Same--Evidence of Selection Prior to Levy of Execution. Where the issue is whether the land is subject to sale under execution, or exempt as a part of the homestead of the family, evidence is admissible to show that prior to the levy the owner caused the judgment creditor and the officer levying the execution to be notified that the land was claimed as a part of the homestead, to be considered by the court or jury, together with all other evidence, in determining whether the land had been in good faith selected as a part of the homestead.

D. P. Parker, for plaintiffs in error.
Mauntel & Spellman and Loofbourrow & Loofbourrow, for defendant in error.

RAY, C.

¶1 This appeal is from an order confirming a sheriff's sale under execution of a 40-acre tract of land owned by the judgment debtor, S. T. Morey, claimed by him and his wife, Adda R. Morey, as a part of their homestead and exempt from forced sale. There is no claim that the judgment was for the purchase money, taxes due, or for work or materials used in constructing improvements. At the conclusion of the evidence the court discharged the jury and confirmed the sale. The vital question, as we view the law, arises upon the exclusion of the evidence tendered by the judgment debtor and his wife, to prove that prior to the levy they caused their attorney to notify the sheriff and the attorney for the judgment creditor that the particular land levied upon was claimed by them as a part of their homestead. There is no conflict of evidence. In 1907 Morey bought 120 acres of land adjoining the town of May, together with two adjoining blocks in the town, all enclosed under one fence. He, with his family, established residence on the town property and farmed the adjoining land for a number of years until he platted, as an addition to the town of May, a portion of the land intervening between his residence and the 40-acre tract here involved. In 1920 Morey moved the house in which he and his family had been living, and other buildings in the town of May, to a 320-acre tract about one and one-half miles from May, for which he held a certificate of purchase from the School Land Department. He and his family established their residence on the 320-acre tract in 1920, and continued to reside there until the time of the trial. There was evidence that Morey had continuously farmed the 40-acre tract involved from the time he bought it in 1907, but had never at any time resided on it.

¶2 The improvements on the 40-acre tract, sold under execution, consisted of a combination granary and hog house, a well, an orchard, and vineyard. Mrs. Morey had planted a garden and some flowers the spring before the judgment was recovered. Morey and his wife testified that they claimed 120 acres of the land where they resided, particularly described by them, including their residence, and the 40 acres levied on, one and one-half miles from their residence, as their homestead. They testified that the improvements placed upon the 40 acres were made with the intention of establishing their residence thereon, and that they had at all times had such intention. There was no evidence that they had ever disclosed such intention to others, except the tendered proof that notice had been given to the sheriff and judgment creditor prior to the levy. Section 1, art. 12, of the Constitution provides:

"The homestead of any family in this state, not within any city, town, or village, shall consist of not more than 160 acres of land, which may be in one or more parcels, to be selected by the owner."