Dawley v. Ayers

Crocker, J.

delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.

This is an action to recover the possession of a tract of land, claimed by the plaintiffs as a homestead, and which the husband had sold and conveyed to the defendant. Judgment was rendered for the plaintiffs in the Court below, from which the defendant appeals.

It appears from the record that the plaintiffs own a tract of land in Missouri, incumbered .by a mortgage, and that it has been their intention, after making some money here—sufficient at least to pay off the mortgage—to return to that State to reside, and the appellant contends that they are not citizens of this State, or bona fide residents, and therefore are not entitled to the benefits of the homestead law. In this he is mistaken. The homestead law is not limited in its operation to any class, but is universal in its application; and all classes of persons are entitled to its benefits, without any distinction as to citizenship, or capability of becoming citizens. So long as the parties actually reside in the State, and use the property as a home, they cannot be denied the benefits secured by the law.

On the trial, the Court permitted the plaintiffs, husband and wife, to testify on their own behalf, under notice given in accordance with the provisions of the amendment of 1861 to Sec. 422 of the Practice Act; and this the appellant assigns as error. This objection is well taken. Sec. 395, before it was amended in 1863, expressly provided that the “ husband shall not be a witness for or against his wife, nor a wife a witness for or against her husband.” Although Sec. 422 provided that a party to an action might be *111 examined as a witness in his own behalf, the same as any other witness, it was necessarily qualified by the provisions of Sec. 395, which virtually prohibits such examination where the parties are husband and wife. This construction is necessary, in order that both sections may stand and have effect. Any other view would operate as a virtual repeal of Sec. 395, which evidently was not intended by the Legislature. It is no valid answer to say that each one testified on his and her own behalf, and not on behalf of the other; because they were, to all intents and purposes, testifying for each other. The Court, therefore, erred in permitting them to testify.

The judgment is therefore reversed and the cause remanded.