Quinn v. Quinn , 27 Nev. 156 ( 1903 )

The facts sufficiently appear in the opinion. This is an appeal from an order of the Second Judicial District Court, which, after stating that the matter came on regularly to be heard in the presence of the parties and their attorneys, recites: "It appearing to the satisfaction of the court that said premises, at the time of the death of said decedent, were, and for a long time had been, the home and residence of said decedent and his family; that petitioner is the widow of said deceased, and that the family of said deceased consists of said petitioner, and Ray L. Quinn, aged 10 years, and Ruth Quinn, aged 4 years, minor children of said decedent and said petitioner, and now residing with said petitioner; and it further appearing that said property consists of said lot, with a two-story brick building thereon, and that said property is of a value in excess of the amount of five thousand dollars, and has been inventoried and appraised, by the appraisers duly appointed in said estate, as of the value of seven thousand five hundred dollars ($7,500); the court having fully considered the premises and the objections of said executor thereto: Therefore, in consideration of the premises and the law in such case made and provided, it is by the court ordered, adjudged, and decreed that the above-described property and the estate and title therein, save and except so much thereof as exceeds the sum and value of five thousand dollars ($5,000), be, and the same hereby is, set apart to the said Mrs. Abbie W. Quinn and said minor children, Ray L. Quinn and Ruth Quinn, as a homestead."

On behalf of respondent motion is made to dismiss the appeal on different grounds. The appellant specifies in the notice of appeal, and contends here, that the district court had no jurisdiction or power to set apart a homestead from the real estate, because it was the separate property of the deceased, owned by him before his marriage, and that on his death the homestead declared by him and his wife ceased to exist by express provision of law.

There is no statement on appeal, no bill of exceptions, and no specification or assignment of error except as suggested by appellant's brief, by the notice of appeal, and by the certified copy of the court minute found in the record, stating: "In the matter of setting aside a homestead in the above-entitled estate the court at this time rendered its decision. Ordered, that the application for setting aside homestead be allowed as prayed for in the petition. Thomas E. Haydon, Esq., attorney for other heirs, excepted to the decision of the court. And the court ordered the exception noted."

The probate act, sec. 255 (Comp. Laws, sec. 3041), directs that any person interested in, affected or aggrieved by, an order or decree relating to the estates of deceased persons, wherein the amount in controversy equals or exceeds one thousand dollars, exclusive of costs, may appeal to this court, to be governed in all respects as an appeal from a final decision and judgment in an action at law.

Under the provisions of the practice act, secs. 332-337 (Comp. Laws, secs. 3427-3432), regulating and providing for the filing, serving, amending, settling, and certifying of statements, this court, following the rule in other code states, has often held that, where there is no statement properly authenticated, only errors appearing on the face of the judgment roll can be considered on the appeal. (McCausland v. Lamb, 7 Nev. 238; State v. Manhattan S. M. Co., 4 Nev. 318; Thompson v. Bank,19 Nev. 293, 9 P. 883; Corbett v. Job, 5 Nev. 201;Hanson v. Chiatovich, 13 Nev. 395; Allison v. Hagan, 12 Nev. 38; White v. White, 6 Nev. 20;Klein v. Allenbach, 6 Nev. 159; Mining Co. v. Dodds,6 Nev. 261; Flannery v. Anderson, 4 Nev. 437; Fleeson v. Mining Co.,3 Nev. 157; Bryant v. Lumbering Co., 3 Nev. 313, 93 Am. Dec. 403; Mitchell v. Bromberger, 2 Nev. 345, 90 Am. Dee. 550; Nesbitt v. Chisholm, 16 Nev. 39;Sherman v. Shaw, 9 Nev. 148; Irwin v. Samson,10 Nev. 282; Boynton v. Longley, 19 Nev. 69, 6 P. 437, 3 Am. St. Rep. 781: Earles v. Gilham, 20 Nev. 49,14 P. 588; Streeter v. Johnson, 23 Nev. 199, 44 P. 819;Peers v. Reed, 23 Nev. 404, 48 P. 897; Becker v. Becker, 24 Nev. 477, 56 P. 243.)

Any fact necessary to support the order is presumed to have been proven in the absence of an affirmative showing to the contrary. (Kelly v. Kelly, 18 Nev. 49, 1 P. 194, 51 Am. Rep. 732; Lang worthy v. Coleman, 18 Nev. 440,5 P. 65; McNabb v. Wixom, 7 Nev. 165; Libby v. Dalton,9 Nev. 23; Lonkey v. Wells, 16 Nev. 271; McLeod v. Lee, 17 Nev. 103, 28 P. 124; Caples v. RailroadCo., 6 Nev. 265; Greeley v. Holland, 14 Nev. 320;Sherwood v. Sissa, 5 Nev. 349; Terry v. Berry,13 Nev. 514; In re Winkleman, 9 Nev. 303; Woerner on Admin., 2d ed. sec. 145.)

By analogy, we may consider the petition for the order setting apart a homestead as a complaint, the reply thereto as an answer, and the order as a judgment, and regard them as constituting a judgment roll. In the absence of a statement, only errors appearing on the face of the order are properly before us for determination. It does not indicate that the homestead was directed to be set out of the separate property, nor whether the court heard or refused to hear testimony regarding the character of this real estate, nor, if taken, whether it was conflicting, nor whether pertinent evidence was offered and rejected and exception taken to the refusal of the court to hear and consider it.

In short, it does not appear from the order, and is not shown by any statement on appeal, nor in any other method as required, that the premises set apart are not community property, and as such properly decreed to the widow and children as a homestead, regardless of appellant's main contention that the district court had no power to set aside the separate estate of the deceased. If the court minute were properly in the record, it does not specify any reason for the exception there noted, and it does not indicate that it was taken on the ground that the premises were the separate property of the deceased. In Greeley v. Holland,14 Nev. 323, the court minutes were stricken from the record because not embodied in a statement on appeal.

The objection that the order is void for uncertainty in not setting over any definite portion of the premises can be considered and determined in the absence of a statement, because the matter to which it relates is inherent and is shown by the language of the order. In the statute relating to exemptions (Comp. Laws, sec. 552), provision is made for the appointment of appraisers, on the application and affidavit of a judgment creditor after issuance of execution, to report whether the value of the property is more than the $5,000 allowed to be reserved, and if it is, for a division if practicable, but otherwise for its sale. Our probate act does not provide for any similar procedure when a homestead is ordered out of the estate of a deceased person. We see no impropriety in setting apart the homestead to the value of $5,000, without defining the boundary or extent necessary to reach that sum and without ascertaining whether the premises can be divided. The necessity for this division or termination may never arise, and it is better that the trouble and expense incident be avoided until the time arrives, if ever, when the occupants of the homestead and the owner of the excess cannot agree, and then the tenant in common who is dissatisfied can proceed under the general statute allowing and regulating suits for partition.

We quote from Thompson on Homesteads and Exemptions: "Sec. 630. Where land is sold subject to the homestead right, or under such circumstances that the sale will be valid except as to the homestead, so that the purchaser will get a good title to the residue after the homestead is set off — as where the land is greater in value or in area than the exemption of the statute — what are the legal relations of the owner of the homestead and the purchaser? Several cases answer that they are tenants in common — not of the homestead, but of the whole property.

"Sec. 631. Such being the relation of the parties, either one would, it is thought, in most of the states, either by force of statute or under the general principles of equity, be entitled to a partition as in case of an ordinary estate in common."

It is said in the opinion in Barney v. Leeds,51 N. H. 282: "The extent in quantity of that share could only be determined by assignment under the statute, or by partition. It was not necessarily five-sixths, or any other aliquot part of the premises, although at the time of the levy such was deemed his fair proportion of the whole by the appraisers; but it was so much, whether five-sixths, one-sixth, or any other proportion, as was worth $500. The policy of the law gave the creditor all the rest. When the creditor, at the date and by means of the extent, takes from the debtor all but a certain interest, the share taken and the share left are fixed by law. The estate of the creditor and the estate of the debtor are then determined. That of the debtor is such a quantity of land as is then of the value of $500; that of the creditor is the residue. The precise quantity of the estate of each is fixed by law, and is ascertainable at the option and upon the application of either tenant in common of the entire estate, for a partition of it."

Other similar cases are: Barney v. Leeds, 54 N. H. 128;Ferguson v. Reed, 45 Tex. 574; Badger v. Holmes, 6 Gray, 118; Sisson v. Tate, 114 Mass. 501; Silloway v. Brown, 12 Alien, 30; Freeman on Coten. and Par. 2d ed. sec. 60.

Regarding the contention that a homestead cannot be ordered out of separate property, the appeal may be considered dismissed.

As to the other objection, the order of the district court is sufficiently definite, and is affirmed, with costs, in favor of the respondent.

BELKNAP, C. J.: I concur.