The daily intelligencer. [volume] (Seattle, Wash. Territory [i.e. Wash.]) 1876-1881, 1879-06-01
DISTRICT COURT DECISIONS.

Territory of Washington. Third Judicial
District, SIN the District Court,
terms a. Seattle Of the January term,
1879
oPISIos.
Moore %. Waters d F.chsi1asr Motion
to strike from complaint.
The paragraphs which this motion
would strike out are certain ones in
which the plaintiff. married woman,
living apart from her husband and so
suirg apart from him, endeavoys to set
up sn exemption from execution Of
certain land which she says is hers.
The exemption is claimed under section
SIG Of the Civil Practice Act of 1877,
which provides for the exemption Of
houesteads.
The section grants exemption OF q
homestead TO every householder. be-
ing the head Of family" so long as
the homestead is occupied as su,h by
the owner thereof or his or her family"
The complaint, however, contains no
allegation that plaintiff is household
er. nor that she is the head of family,
Gee VS. Moore. Il Cal. 412 nor that
she, being owner, is occupying the
premises as homestead. These three
things should appear. If any one of
them is uHapparent, any mention Of
homestead in the pleading is imperfect,
Insignificant and irrelevant.
Defendan. contends that, to plead a
homestead, it is further necessary to
show, on the face of the pleading, that
the husband joins in claiming the ex-
emption. ard that the property to be
exempted is either his. or common
property. Fr.
As to these two points, am disposed
to hold as follows:
LIST. That the living husband is the
head of the family, and, as the statute
gives the exemption to the head of the
family only, tho wife cannot claim it by
herself alone.
I'd. That inasmuch as the statute is a
bcnefcent one, intended to work for the
good Of the children as we'll as the wife,
and is therefore to be literally con-
strued. and no intention is expressed to
limit its operation to the husbands and
the common property, it should be so
applied as to allow protection to the
wife's lands. See. 8 Cal. &C; % Cal.
63S; % Cal. "A. And with this agrees
section 347, which says that when any
person dies sized of homestead, leav-
ing a widow. or husband, or minor chill
dren. the survivors shall be entitled to
the homestead" Mere occupancy is
not seizin. Wife's occupancy of hus.
bands land is husbands seizin.
According to the view that seems to
me sound, the husband can by himself
claim exemption Of homestead owned
by himself but he and wife must Join,
if the property be common and wife
and he must join if the property be
hers. These seem to be the logical
consequences flowing from the double
nature of the defence Of exemption
when interposed to defeat levy or
attachment. In such case an assault
is made both upon the property and the
family. If either property or family
were not involved, the right of exemp
ton would not exist. Therefore, as to
the family, It's lead must speak as to
the property, the owner of it.
One, not the mead Of the family, can.
not locate its home /; nor can one not
the owner of land say it shall be appro-
priated to the uses Of his family.
The husband cannot tie up the wife's
land by claiming exemption of it for
his children, nor is she to be deprived
of a homestead for her husband, her
children and herself, merely because he
has no title in the land
The husband can claim with the wife
exemption Of the wife's land, provided
she is residing upon it as homestead,
and he is the head of the family aud
household. but she cannot clsim it by
herself alone.
Let the motion be sustained.
GREENE, ].