72 [11] D. Official Acts. As in the case of other transactions the validity vel non of official acts performed on a legal holiday depends on the terms of the statute. The mere designation of a day as a holiday does not invalidate a sheriff's sale,7 or a sale for taxes, or an order adjourning the sale made on such day." .74 Indeed statutes having for their object the suspension of official, transactions on holidays will be construed as prohibiting only such acts as are in express terms or by clear implica N. Y.-Cohn v. Townsend, 48 Misc. 47, 94 NYS 817. insufficient to show that sentence | Miss. 1, 58 S 781, 782 [cit Cyc]. 72. Ga-Lumpkin v. Cureton, 119 Ga. 64, 45 SE 729. N. J.-White v. Zust, 28 N. J. Eq. 107. N. Y.-King v. Platt, 37 N. Y. 155. Okl.-McLaughlin v. Houston-Hudson Lumber Co., 31 Okl. 182, 120 P 659, 38 LRANS 248. Pa-Kauffeld v. Tinstman, 54 Pa. Super. 158. But see Rice v. Gable, 1 Pa. Co. 567 (holding a sheriff's sale made on a legal holiday, although not void, will be set aside on exceptions being filed thereto); Monroe v. Durkin, 5 Luz Leg Reg 99 (where a sheriff's sale made on Decoration Day was set aside on the application of a party in interest who alleged that he did not attend the sale because he supposed it would be adjourned to another day and also announced his willingness to pay a much larger price for the property than that realized at the sale). Tex.-Crabtree v. Whiteselle, 65 Tex. 111. [a] A sheriff's sale is not a judicial act within the meaning of a statute prol.ibiting the transaction of business by the courts on legal holidays. King v. Platt, 37 N. Y. 155. 73. Young v. Patterson, 9 Cal. A. 469, 99 P 552; Hadley v. Musselman, 104 Ind. 459, 3 NE 122. 74. White v. Zust, 28 N. J. Eq. 107. 75. Cal-Peo. V. Loyalton, 147 Cal. 774, 82 P 620. Kan-Canaday v. Hull, 104 Kan. 785. 181 P 121, 122 [cit Cyc]. Ky. Boone v. Gleason, 5 KyL 169, 4 KyL 1001. Minn.-St. Paul v. Robinson, 129 Minn. 383, 152 NW 777, AnnCas191CE 845. Miss-Griffith V. Vicksburg, 192 845. 14 CO. Carr v. Wakonda Independent Cons. School Dist. No. 1, (S. D.) 182 NW 626. 1. Brilliant Coal Co. v. Barton, 203 Ala. 38, 81 S 828, 829 [cit Worcester D]. 2. Webster Int. D. Okl.-McLaughlin v. Houston-Hul son Lumber Co, 31 Okl. 182, 186, 20 3. Strausky v. Erhardt, 52 Fed. P 659, 38 LRANS 248 [cit Cyc]. 808, 809. "Statute commanding the suspen4. Pulsifer v. D'Estimauville, 86 sion of official business upon holidays Me. 96, 29 A 945. See Delaval Sepshould be construed so as to prohibarator Co. v. Jones, 117 Me. 95, 98, only such acts as are in express 102 A 968. ("A Holmes note is an terms or by clear implication witan agreement to sell, and conveys the purview of the act." Tully v title"). Grand Island Tel. Co., supra [quot 5. Escriche Diccionario. McLaughlin v. Houston-Hudson Lum- Holograph post this page. ber Co., supra, and cit Cyc]. Anderson L. D. [a] Illustrations.-(1) An election to determine whether a proposed municipal corporation shall be created may be held on a legal holiday named in Pol. Code § 10 although Code Civ. Proc. § 134 prohibits the transaction of "judicial business" on holidays; for, on holidays, transactions not within the statutory prohibition may be carried on as on other days. Peo. v. Loyalton, 147 Cal. 774, 82 P 620. (2) The prohibition of service of notice in court proceedings on a legal holiday does not extend to the notice which the city engineer must give of the time and place when he will examine and receive street improvements. Boone v. Gleason, 5 KyL 169, 4 KyL 1001. (3) An ordinance of a city, adopted on a day made a legal holiday by Code (1906) § 4011 is not void. Griffith v. Vicksburg, 102 Miss. 1, 58 S 781, 782 [cit Cvel. (4) Under the state statute and the ordinance of the city of Buffalo fixing office hours in all departments of the city government the board of school examiners could continue an examination for the position of school teacher after the noon hour on Saturday. Cohn V. Townsend, 48 Misc. 47, 94 NYS 817. 76. Lord v. Gifford, 67 N. J. L. 193, 50 A 903; Mueller v. Egg Harbor City, 55 N. J. L. 245, 26 A 89; Re Schumacher, 21 Ont. L. 522, 16 Ont WR 641. 77. Canaday v. Hull, 104 Kan. 785, 181 P 121. 78. Lord v. Gifford, 67 N. J. L. 193. 50 A 903. 79. State v. Bertrand, 122 La. 856. 48 S 302; St. Paul v. Robinson, 129 Minn. 383, 152 NW 777, AnnCas1916E 6. 7. 8. 9. no See See Wills [40 Cyc 996, 1129]. Wharton L. Lex. Wharton L. Lex. 10. A maxim meaning "Homage cannot be done by proxy, nor by letters, but must be paid and received in the proper person, as well of lord as the tenant." Wharton L. Lex. [cit Coke Litt. p 68]. 11. A maxim meaning "Homage repels perquisition." Peloubet Leg. Max. [cit Gilbert p 152]. 12. Escriche Diccionario. [a] Hombre bueno.-The regular judge of the locality. Escriche Diccionario. 13. Home: Defense of see Assault and Battery §§ 25, 232; Homicide [21 Cyc 828]. In indictment for burglary see Burglary § 67 note 48 [d]. 14. In re Craignish, [1892] 3 Ch. 180, 191 ("An Englishman permanently settled in one of the English colonies may without impropriety speak of going home when he is paying a visit to England. If asked to explain himself, he would probably say that he used the term in reference to the mother country from which he and his brother colonists emigrated or originally sprung, and that his own true home was in the colony. So in familiar conversation or in familiar letters the term may be used in a sense (varying more or less according to the accuracy of the speaker or writer from the ordinary popular sense) of the place where a man has his abode or is settled. When a traveller speaks of returning home he uses the term in the ordinary popular sense"). [a] Distinguished from "settle *BY JUAN D. MIRANDA (Hollo-Homestall inclusive except the Spanish words and phrases). 21 often necessarily depend on the intent as determined by the context.15 It has been defined as meaning a dwelling house; 16 a dwelling place;17 domicile; 18 residence; 19 some permanent abode or residence where the person residing intends to remain;20 the house or place in which one resides;2 the place of abode; 22 the place of constant 23 or permanent residence; 24 the place where a person turns for social life, where his family, if he has one, usually dwells, and to which his mind turns when away, and where he has the present purpose of return and remaining;25 the place where one and his family habitually dwell, which they may leave for temporary purposes, and to which they ment."-Phillips v. Kingfield, 19 Me. 375, 381, 36 AmD 760; Jefferson v. Washington, 19 Me. 293, 300; Exeter v. Brighton, 15 Me. 58, 60. 15. Day v. Towns, 76 N. H. 200. 81 A 405. 406 [quot Hill v. Carr, 78 N. H. 458. 101 A 525, 526]. return when the occasion for absence no longer exists; 26 the place where one keeps his effects, his chest, etc.;27 the place where one permanently resides, and to which he intends to return when away from it. 28 Home factor. A factor residing in the same state or country with his principal.29 Home missions.30 A term with a well accepted meaning in church parlance; 31 and wherever used the term is associated with the notion of a benevolent service for others; 32 a branch of endeavor,35 having a distinct meaning among adherents to the baptist church.34 Home port.35 Any place or port where the owner see Wills [40 Cyc 1633]. 16. Webster D. [quot Coit V. Comstock, 51 Conn. 352, 382. 50 AmR 29; Shuttleworth V. Shuttleworth, 34 W. Va. 17, 23, 11 SE 714]. [a] As the whole house. "The home is not confined to the particular [a] "The word 'home' suggests bed-room in which the master of the relations differing in breadth and house sleeps; for it may include his strength, though not in kind, when rooms for guests and apartments he applied, on the one hand, to a farm- never enters. So too it may properly er who has resided since his birth, embrace a school-room, for he may and expects to reside until his death, teach in his parlor, where many on the same spot, and on the other physicians and dentists practice hand, to the clergyman, whose home their professions." Hoope's App., 1 may change in two years, or to the Brewst. (Pa.) 462, 464, 100 AmD railroad laborer, whose home may 562. change in two months." Langham- [b] Distinguished from "house." mer v. Munter, 80 Md. 518, 525, 31-Matter of Henderson, 21 Hawaii A 300, 27 LRA 330. house" defined see 19 [b] As meaning "home port" of a ship and not the private domestic abode of a seaman see In re Ah Tie, 13 Fed. 291, 293, 7 Sawy. 542. [c] A.S meaning "household."Manning v. Woff, 22 N. C. 11, 12. 104, 112. "Dwelling place" defined see 19 18. See Domicile § 1 text and note 4. 69 "It may be a palace or a cot." [b] Distinguished from "resi- mean the house wherein one resides). 22. Sight's Pet. 7 Pa. Co. 49, 50; Fowler v. Mosher, 85 Va. 421, 7 SE 542 (construing Code [1887] § 3207). See Stiles v. Cummings, 122 Ga. 635, 50 SE 484, 486; Welch v. Whelpley, 62 Mich. 15, 28 NW 744, 4 AmSR 810 (within the meaning of a contract, one of the provisons of which was that one of the contracting parties should make his home in a certain place, "home" means the place where a person abides, not for any fixed period, but with the intention of remaining until some event not yet in view shall make it desirable or necessary to give it up). [a] Distinguished from porary abode."-Tyler v. Murray, 57 Md. 418, 441; Thayer v. Boston, 124 Mass. 132, 147, 26 AmR 650. "tem [b] "A man's home is his abiding place a place of which, out of necessity, he is possessed." Birmingham R., etc., Co. v. Abbott, 6 Ala. A. 643, 648, 60 S 970. 23. Webster D [quot Shuttleworth v. Shutleworth, 34 W. Va. 17, 23, 11 SE 714]. 24. Nelson v. Nelson, 19 Oh. 282, 284; Kennedy's App. 81* Pa. 163, 165; Sight's Pet. 7 Pa. Co. 49, 50. 25. Tyler v. Murray, 57 Md. 418, 441. 26. Thomas v. Warner, 83 Md. 14, 34 A 830. [a] Right to be.-"Home, or domicile, is a place where the person has a right to be. The idea of a right to be and remain at a particular place is inseparable from the conception of home or domicile." Berlin Worcester, 50 Vt. 23, 26 [quot Jericho v. Burlington, 66 Vt. 529, 533, 29 A 801]. V. 27. Barton v. Irasburgh, 33 Vt. 159, 162. 28. Frey's Election Case, 71 Pa. 302, 307, 10 AmR 698 [quot Com. v. Devine, 14 Pa. Dist. 1, 3, 31 Pa. Co. 108]. 29. Ruffner v. Hewitt, 7 W. Va. 585, 604, 605. See generally Factors 25 C. J. p 337. [d] As implying maintenance and support.-(1) Generally. Tibbetts v. Tibbetts, 113 Me. 201, 204, 93 A 178; Willett v. Carroll, 13 Md. 459, 468; Hill v. Carr, 78 N. H. 458, 101 A 525; Clough v. Clough, 71 N. H. 412, 52 A 449; Lyon v. Lyon, 65 N. Y. 339. 340; Nelson v. Nelson, 19. Webster D. [quot Coit v. Com19 Oh. 282. 284: Kennedy's App. stock, 51 Conn. 352, 382, 50 AmR 29]; 81* Pa. 163. 165: Augustine North Yarmouth v. V. West Gardiner, Schrier, 18 Ont. 192, 194; Re Mc-58 Me. 207, 210, 4 AmR 279; Warren Millan, 3 OntWR 418, 419. (2) v. Thomaston, 43 Me. 406, 418. "The term 'home' is not an arAmD 69; Phillips v. Kingfield, 19 bitrary one. It may mean one thing Me. 375, 381, 36 AmD 760; Barney v. under certain conditons and another Leeds, 51 N. H. 253, 265; Lehman v. under different circumstances. McBride, 15 Oh. St. 573, 601; State Whether it is to be limited to simply v. Aldrich, 14 R. I. 171. a domicile or abidng place or whether it embraces not only shelter but food, clothing, education and medical attendance in case of sickness, must all be determined by the circumstances existing at the time of the execution of the will." Matter of Burr, 83 Misc. 240, 241, 144 NYS 926. (3) "The word 'home,' not only in its true etymology, but in its ordinary acceptation, means something more genial than a mere privilege to perambulate a dreary room.' Willett v. Carroll, 13 Md. 459, 468 [quot Matter of Burr, supra]. (4) "The word 'home,' when made the subject of a devise, is ambiguous, and may mean merely the use of sufficient room. or it may include a support." Denfield's I t. 156 Mass. 265, 266, 30 NE 1018. (5) A provision that beneficiaries should be provided with a "home" while they lived included everything necessary to maintain the home, such as paying of taxes and keeping it in proper re- 21. Webster D [quot Coit V. pair, but not the purchasing of sup- Comstock, 51 Conn. 352, 382, 50 AmR plies. Long v. Maves, 94 Miss. 735, 29; Shuttleworth v. Shuttleworth, 34 48 S 523, 530. (6) A mortgagor's W. Va. 17, 23, 11 SE 714]. To like covenant to furnish a "home" upon effect Coker v. State. 12 Ga. A. 425, the premises for a named person 426, 76 SE 103, 991 (holding that the will be construed, according to a words "home or place of business." practical construction given by the as used in the Act of Aug. 12, 1910 parties, as requiring the grantee to [Acts (1910) p 134], prohibiting one furnish board and lodging, the bene- without a license from carrying a ficiary contributing such service as pistol outside of his home or place she can, and bearing the expense of of business, are broad enough to inher own clothing and doctor's bills. clude any portion of a farm or Day v. Towns, 76 N. H. 200, 81 A plantation where one employs his 405. 406. (7) Provisions for sup- time and makes his living. although port and maintenance under a will technically the word "home" may 58-61. [c] "Residence" synonymous.- 1647]. 30. See generally Religious Societies [34 Cyc 11121. Gift for home missions see Charities § 30. "Foreign missions" defined see Foreign 26 C J. p 889 text and note 20. Warren v. Thomaston, 43 Me. 52. 406, 418. 69 AmD 69; Jefferson V. 31. Hitchcock V. Presbyterian Washington, 19 Me. 293. See Brent-Church Bd. of Home Missions, 259 wood School Dist. No. 2 v. Pollard, Ill. 288, 295, 102 NE 741, AnnCas 55 N. H. 503, 505 [cit Webster D.] ("A person's home may be his own house, or his hired lodgings"). 1915B 1. 32. Hitchcock V. Presbyterian Church Bd. of Home Missions, 259 Ill. 288, 295, 102 NE 741, AnnCas 1915B 1. 33. Bruere v. Cook, 63 N. J. Eq. 624, 630, 52 A 1001. See Hitchcock v. Presbyterian Church Bd. of Home Missions, 259 Ill. 288, 295, 102 NE 741, AnnCas1915B 1. 34. Bruere v. Cook, 63 N. J. Eq. 624, 630, 52 A 1001. 35. "Port" defined see [31 Cyc 916]. Port of registry or enrollment see Shipping [36 Cyc 17]. "Foreign port" defined see Foreign 26 C. J. p 889 text and notes HOME FACTOR."7 HOMEMADE. manufacture. 58 happens to be with his vessel; nearest to which the owner of a vessel, if there is 36 the port at or but one, or, if more than one, the managing owner usually resides; 37 the port where the vessel is enrolled.s 38 Home ranch. As used in the range country, the headquarters of the range.39 #1 Home rule." 40 A term with a well-defined meaning, which as descriptive of a policy is significant and appropriate, but as descriptive of a right is indefinite, for it is coextensive with the right of local regulation or control and its extent must be always tested by the constitution.12 "'dwell Other phrases: "A home on the lands, '943 ing place or home," "dwells and has his home, ''45 "home and maintenance, ing natural life,''47 "home market, ''48 home of a durcorporation, ''49 "home people, 1950 66 "home place, plantation, ''52 home range, "'home 66 1953 9951 "home station, 7954 "my home place where I now live,''55 "passage home. ''56 St. 36. The Wheat, (U. S.) 409, 417, 6 L. ed. 122; Jago de Cuba, 9 LRA 884. Case v. Woolley, 6 Dana (Ky.) 17, 32 AmD 54. But see Com. v. Aver, etc., Tie Co., 77 SW 686, 688, 25 KyL 1068. 37. White's Bank 38. The Favorite, 8 F. Cas. No. return State v. Shaw, 21 Nev. 222, 229, 29 P 321 ("It is the place from which the riders start rounds to rodeo and brand the stock, upon their and to which they through; for the time being it is their when home. But this does not necessarily make it the home of the cattle. gathered and herded and cared for If there regularly each year, it would doubtless become such"). comb v. Keliher, 5 S. D. 438, 441, 59 See HolNW 227. 40. "Home rule" 357 notes 37-39. constitutional provisions see Constitutional 86 P 233, 238. Law [b] "Home rule for means home rule affairs." cities 143, 159, 160, 86 P 233. (1) in strictly city Peo. v. Johnson, 34 Colo. (2) tion of citizens with their local govrule means that, as to the affairs of "Home a municipality which affect the relaState ernment, they shall be freed from control; that the system of public improvements, the building of streets interference, regulation and and alleys, the appointment of offand how they shall be performed cers, the designation of their duties and all other matters purely of local interest, advantage and convenience shall be left to the people for their Own determination." To like effect Peo. v. Johnson, supra. Lemaire Crockett, 116 Me. 263, 266, 101 A 302. OntWN 205. 43. Wilkinson V. Wilkinson, 19 44. Guilford v. Gilmantown, 1 N. H. 194, 195. 45. Turner v. Buckfield, 3 Me. 229, 231. V. tended, by the use of the expression, [a] Defined.-"The legislature indwells and has his home,' to desigdence with an intention to remain, nate some permanent abode, a resiremoval, something more or at least without an intention of habits and life of a wanderer, who than the has no place where he has a right to continue, and call it and claim it as his rightful home." Turner V. 41. Peo. v. Johnson, 34 Colo. 143, Buckfield, 3 Me. 229, 231. 42. Atty.-Gen. Mich. 639, 92 NW 289. [a] History. "The principle of home rule, or the right of self-government as to local affairs, existed before we had a constitution. prior to Magna Charta, some cities, boroughs and towns had various customs and liberties, which had been granted by the crown or had subsisted through long user, and among them was the right to elect certain local officers from their own citizens and, with some restrictions, to manage their own purely local affairs." Peo. v. State Tax Comrs., 174 N. Y. 417, 431, 67 NE 69, 105 AmSR 674, 63 Ex p. Schollenberger, 96 U. S. 369, 376, 24 L. ed. 853. 50. Fishburne v. Ferguson, 84 Va. 87. 112, 4 SE 575 (meaning "blood relations"). H. 557, 78 A 623, 624; Austin v. Aus51. McLaughlin v. Collins, 75 N. tin, 160 N. C. 367, 369. 76 SE 272: (where the issue was whether a cerWaggoner v. Ball, 95 N. C. 323, 327 tain tract of land in dispute was in tended by a testator to pass under a device of his "home place," it was held that evidence that he had given parcels of land to certain of his sons, before his death, See also Wills [40 Cyc 1531 text and was irrelevant). note 51]. 140, 142. "Foreign place" defined see Foreign 26 C. J. p 888 text and note 53. 52. Hampton v. Cowles, 20 N. C. 438, 441, 59 NW 227. 53. Holcomb v. Keliher, 5 S. D. 438, 441, 59 NW 227. 54. Holcomb v. Keliher, 5 S. D. 55. McKeough v. McKeough, 69 Vt. 34, 41, 37 A 275. Edwards v. Steel. [1997] 2 Q. B. 327, 331 [dism app [1897] 1 Q. B. 712, 717]. icians and Surgeons [30 Cyc 1544]. 62. Statutory definition see PhysDiploma from homeopathic society authorizing use of title of doctor see 1562]. Physicians and Surgeons [30 Сус 63. Webster Int. D. 64. Humphrey's Specific Homeopathic Medicine Co. v. Wenz, 14 Fed. 250, 253 (the words standing alone cannot be appropriated as a tion with serial numbers). trademark, but can when used in connec 65. See Home ante p 767 text and notes 35-38. 66. notes 47-42. See Home ante p 767 text and note 39. 67. See Home ante p 767 text and (Tenn.) 515, 521 [cit Bouvier L. D.]. 68. Dickinson v. Mayer, 11 Heisk. [29 C. J.-49] HOMESTEADS BY WILLIAM A. MARTIN [Matters not. in this Title, treated elsewhere in this Work, see Cross References infra p 781] I. DEFINITION [sub-analysis p 770] ANALYSIS II. NATURE, ACQUISITION, AND EXTENT [sub-analysis p 770] III. LIABILITIES ENFORCEABLE AGAINST HOMESTEAD [sub-analysis p 774] IV. TRANSFER OR ENCUMBRANCE [sub-analysis p 775] V. DEVISE OR TESTAMENTARY DISPOSITION [sub-analysis p 777] VI. ABANDONMENT, WAIVER, OR FORFEITURE OF HOMSTEAD RIGHTS [sub-analysis p 777] VII. PROTECTION AND ENFORCEMENT OF HOMESTEAD RIGHTS [sub-analysis p 778] SUB-ANALYSIS I. DEFINITION [1] p 781 II. NATURE, ACQUISITION, AND EXTENT [§§ 2-191] p 782 A. Nature, Creation, and Duration of Estate or Right in General [§§ 2-25] p 782 1. Origin of Homestead Right and Purpose of Homestead Laws [§ 2] p 782 2. Nature of Interest Created [§§ 3-7] p 783 a. In General [§ 3] p 783 b. Effect on Title to Property [§ 4] p 784 c. Whether an Estate or a Mere Exemption [§ 5] p 784 d. Whether a Right or a Mere Privilege [§ 6] p 784 e. Interest of Wife or Children during Life of Person Acquiring Homestead [§ 7] p 785 3. Constitutional and Statutory Provisions [§§ 8-19] p 785 a. Character of Legislation Permissible under Organic Law [§§ 8-13] p 786 (2) Persons Entitled to Exemption [§ 9] p 786 (3) Amount of Exemption [§ 10] p 786 (4) Debts as to Which Exemption Operates [§ 11] p 786 (5) Alienation of Homestead [§ 12] p 787 (6) Allowing Waiver of Exemption [§ 13] p 787 b. Construction of Homestead Laws [§§ 14-17] p 787 (1) In General [§ 14] p 787 (2) Liberal or Strict Construction [§§ 15-16] p 787 (a) In General [§ 15] p 787 (b) Construction of Provisos and Exceptions [§ 16] p 788 (3) Construction of Statutes Together [§ 17] p 788 c. Self-Executing Provisions [§ 18] p 788 d. Change or Repeal of Homestead Exemption [§ 19] p 789 4. What Law Governs Right [§ 20] p_789 5. Right as Affected by Change in Form of Debt or New Promise [§ 21] p 789 6. Right as Affected by Ownership of Other Property [§ 22] p 790 7. Existence of More than One Homestead [§ 23] p 790 8. Separate Homesteads in Same Tract [§ 24] p 791 9. Duration and Termination [§ 25] p 791 |