Beranek v. Beranek

Baedebh, J.

Under our statute (sec. 2983, Stats. 1898), there can be no doubt but that a homestead may be secured in premises held under a lease. It is also true that, in so far .as leased property is susceptible of being conserved as a home, it is governed by the same rules that apply to homesteads based upon property held by more enduring titles. "Waples, Homestead & E. 113. Our law has wisely provided that no alienation by a married man of his homestead, exempt by law from execution, shall be valid or of any effect without the signature of the wife to the same. Sec. 2203. The attempt of the defendant to justify plaintiff’s removal from the premises under the proceedings for unlawful detainer alone must fail, because they were based upon a ■ written surrender made by the husband without his wife’s signature. The judgment in the unlawful detainer action is not preserved in the record, but we must presume that it followed the complaint, which was put in evidence. That document shows that the ground of defendants’ suit was “that the term created by said lease expired, and by act and contract of the parties was terminated, on the llth day of May, 1899.” This shows very clearly that defendant was seeking to enforce an attempt of the husband to alienate his homestead without his wife’s signature. It is said that notice to quit was served, *276 for failure to pay rent. Had the unlawful detainer proceedings been based upon that fact, no* doubt the judgment would have been binding on plaintiff, and the homestead interest would have been terminated. Assuming, however, that the judgment was based upon the invalid surrender of the lease, it cannot be allowed to accomplish a purpose which the husband could not accomplish because of his disability under the statute.

Another reason urged why the judgment in this case is unwarranted is that the undisputed evidence shows that the husband abandoned his homestead. Such evidence shows that in the spring of 1899 the husband was ill with consumption. He had no money or property except the small amount, he had invested in the house on the lot in question. He desired to try a change of climate. He agreed with his father to surrender the lease upon consideration that he be repaid the sum he had contributed to build the house. He rented a house in another part of the city, but the plaintiff refused to move or to allow the household goods to be taken thereto*. The intention of the husband to secure a new home, and the renting of another house for that purpose, are beyond dispute. His right to change his domicile, and to surrender and abandon his former homestead by leaving the old one and securing a new one, has been recognized and admitted in this state. This he may do in utter defiance' of his wife’s wishes or desires, and here we strike a somewhat curious anomaly in the law. The statute says that a husband cannot sell or mortgage his homestead without his wife’s signature. Speaking of the purpose and policy of the statute, this court said in the recent case of Cumps v. Kiyo, 104 Wis. 656 :

“The policy of the statute indicated is not to give the wife a mere personal right for her personal benefit, which she may waive, or be estopped by her conduct from insisting upon, but to protect the home for the benefit of the family, and every member of it, — a beneficent policy of the highest character, *277 calling for a broad, liberal application of tbe statute, so as to carry it out fully in letter and spirit.”

This was said in a case where it was attempted to enforce an estoppel against tbe wife to tbe prejudice of ber homestead rights. But with all the liberality of construction, and tbe desire to preserve tbe homestead right in its fullest fruition, there are limitations and restrictions surrounding it which are regarded quite potential for its destruction. In the first place, the homestead law creates no estate in the wife, living the husband. It only creates a disability on the part of the husband to alienate the homestead without her consent, evidenced by her signature to her alienation. This was said by Chief Justice RyaN in Godfrey v. Thornton, 46 Wis. 677 , and reiterated by Mr. Justice Wiwslow, with the approval of the court, in Town v. Gensch, 101 Wis. 445 . In the former case it was further said:

“The law has not hitherto undertaken to prohibit a husband to change his domicile without his wife’s consent, or to release the wife from her reasonable duty to accompany her husband upon his change of domicile. Gleason v. Gleason, 4 Wis. 64 . Upon such change the husband’s former place of residence ceases to be the homestead, and he may mortgage or convey it without his wife’s signature, subject to her inchoate right of dower. The husband cannot by his own act divest his wife’s right of dower, because it is an estate.' But he can by his own act free himself from his disability to mortgage or convey his homestead without the signature of his wife, 'because his disability vests no estate in her. And this is the plainer, because the husband, abandoning his homestead, and so freeing himself from his disability to alienate it, has no duty imposed upon him to acquire another to which the disability would attach."

This rule finds' support in the following authorities: Thoanp. Homestead & E. §§ 276, 483; Waples, Homestead, 582, § 7; Hand v. Winn, 52 Miss. 788 ; Brown v. Coon, 36 Ill. 243 ; Burson v. Dow, 65 Ill. 146 ; Stewart v. Mackey, 16 Tex. 56 ; Slavin v. Wheeler, 61 Tex. 654 ; Guiod v. Guiod, 14 *278 Cal. 506 . In'the case last mentioned, Chief Justice FIeed discusses the question thus:

“The statute confers upon the wife no right to the homestead independent of the husband, which she can enforce ag’ainst his consent. It affords protection to him, and only through him to the wife and children. It does not purport to interfere with the natural dependence of the latter upon the former. She is hound by her marital obligations to live with him, and when he changes his place of residence she must accompany him. There is no obligation resting upon him to permanently occupy the same place. Indeed, the highest interests of himself and family, their health and maintenance, and the proper education of his children, may require a relinquishment of the homestead. As by his act the premises were originally impressed with the character of a homestead, so by his act they may be abandoned as such. The wife, from the nature of her dependent relation to her husband, — a relation not only essential to the peace and happiness of the family itself, but to the well-being of society,— must abide the consequences of such abandonment.”

Thus it is seen that, while the husband may not alienate or incumber his homestead without his wife’s consent, he may relinquish or abandon it at will without her consent or against her wishes. This results from the dependent condition of the wife, and the giving of the husband, as the head of tire family, the right to make and select the family domicile. If it be thought there is anything amiss in this condition of things, it is for the legislature, and not the courts, to afford a remedy. Applying the law to the facts presented in this ease, we cannot escape the conclusion that the evidence shows a relinquishment and abandonment of the homestead in question by Frank Beranek in his lifetime, binding upon his wife, and fatal to the recovery herein. It is not to be understood that such homestead right can be defeated by the husband abandoning his family and leaving them to shift for themselves. Such was not this case. The husband, in apparently good faith, decided to change his home, rented an *279 other house, and sought to move his family thereto. He had an absolute right to do so, and thus relieve himself from the disability of the statute. The refusal of the wife to follow him did not preserve the status of the homestead.

The judgment in this caSe was faulty because it does not follow the statute. Subd. 7, sec. 3084, requires that the “verdict” shall specify the estate which shall have been established on the trial by the plaintiff, if rendered in his favor, whether it be in fee, dower, for life, or for a term of years; and sec. 3086 says that judgment shall be in accordance with the verdict or decision of the court. While the statute requires that the “verdict” shall specify the estate established on the trial, this must be construed to apply to findings of the court as well, where a jury has been waived. There must be a foundation for the judgment, which is only afforded by the verdict of the jury or the finding of the court. It is just as essential that the finding should specify the estate established, as that the verdict should do so. The fault here is that neither the findings nor the judgment find or adjudicate the quality or extent of the title upon which plaintiff’s right to possession depends. That this is essential has recently been determined by this court. Emerson v. Pier, 105 Wis. 161 ; Grindo v. McGee, 111 Wis. 531 . Whether an error in this respect would necessitate a reversal would depend upon an application of the rules as stated in Brown v. Griswold, 109 Wis. 275 .

Another objection to the judgment is that the amount of damages included therein is greater than the demand in the complaint. Technically, the court has no right to grant greater relief than has been demanded.

“In all actions sounding in damages the plaintiff is limited by his demand therefor in his declaration or complaint, and can recover no more than the amount specified.” 5 E-ncy. of P1. & Pr. 712.

*280 Ordinarily tbe courts will allow the demand for judgment to be amended on request. That was not done in this case, and the. entry of judgment beyond the amount claimed in the complaint was irregular and erroneous.

By the Court. — The judgment is reversed, and the cause is remanded, with direction to enter judgment for defendant pursuant to law.