Elliott v. Bond

23 Citing cases

  1. In re Shields

    85 B.R. 582 (Bankr. N.D. Okla. 1988)   Cited 7 times

    Regardless of acreage, rural land may be exempt only to the extent that it is impressed with the homestead character, i.e., is used for debtor's rural domestic purposes. In Elliott v. Bond, 72 Okla. 3, 176 P. 242 (Okla. 1918), it was held that, where one owning 180 acres not within any city, town, or village and whose family home was on some part of that land, "impressed" such land "with the homestead character," the owner may exempt up to 160 acres of it as homestead "whenever the necessity for making such selection might arise, provided such selection included the residence or home of the family and was not manifestly made in disregard of the rights of others," id., 72 Okla. at p. 5, 176 P. 242. This double rule, of "homestead character . . . not manifestly made in disregard of the rights of others," may be regarded as basic.

  2. Williams v. Watkins

    93 Okla. 112 (Okla. 1923)   Cited 8 times
    In Williams v. Watkins, 93 Okla. 112, 219 P. 643, it was held that "the gist of the requirement under the Constitution to impress a homestead is in the word "selected.

    The present and last enactment materially changed the preceding enactments in the following particulars; There may be more than one tract and these tracts could be selected by the owner, a privilege which, in our judgment, is of great benefit to the party claiming this right, which right may be asserted by the owner, husband or wife, and selected where the owner may desire — a constitutional privilege to be respected by all and at all times respected by the court. Herbert v. Wagg et al., 27 Okla. 675, 117 P. 209; Hedgpath v. Hudson et al., 61 Okla. 121, 160 P. 604; Elliott v. Bond, 72 Oklahoma, 176 P. 242. 2.

  3. In re Helmuth

    92 B.R. 494 (Bankr. N.D. Okla. 1988)   Cited 9 times

    For almost a century, Oklahoma statutory law exempted "[a]ll implements of husbandry used upon the homestead" and "[a]ll tools, apparatus . . . used in any trade or profession" of debtor, 31 O.S.A. (1981) § 1(A)(5), (6). Although the statutory language seems unqualified and absolute, it should be given a reasonable construction and application, 12 O.S.A. (1981) § 2, 25 O.S.A. (1981) § 29, In re Captain's Estate, 191 Okla. 463, 130 P.2d 1002 (1942), Nelson v. Fightmaster, 4 Okla. 38, 44 P. 213 (1896) citing In re Baldwin, 71 Cal. 74, 12 P. 44 (1886); and Oklahoma case law has construed and applied exemptions in a reasonably limited manner. Regarding "all implements of husbandry used upon the homestead," it appears that the rural homestead itself is limited to only such land (up to a maximum of 160 acres) as constitutes the rural home's curtilage, Elliott v. Bond, 72 Okla. 3, 176 P. 242 (1918), Kerns v. Warden, 88 Okla. 297, 213 P. 70 (1923), Harris v. Watts, 102 Okla. 36, 226 P. 40 (1924), Orwig v. Cloud, 109 Okla. 299, 233 P. 1085 (1925), Hickok v. Kennedy, 177 Okla. 334, 58 P.2d 1236 (1936), Powell v. Powell, 189 Okla. 255, 116 P.2d 889 (1941), and see In re Shields, 85 B.R. 582 "Order Granting In Part and Denying In Part Trustee's Objection to Claimed Exemptions," B.C., N.D.Okla. (1988), Black's Law Dictionary (5th ed. 1979) "curtilage" p. 346; that the value, size, complexity, and business use of implements are factors bearing on their exemptability, Nelson v. Fightmaster, supra, citing In re Baldwin, supra; and that, accordingly, only those implements of husbandry should be exempt which are reasonably necessary and appropriate for use upon the curtilage. Regarding "all tools, apparatus . . . used in any trade or profession," it appears that exemption was intended to reach inexpensive items, hand-held or reasonably limited in bulk, complexity and artificial power, used

  4. In re Grey

    45 B.R. 437 (Bankr. D. Kan. 1984)

    The Oklahoma Supreme Court kept the rights of creditors in mind when it stated that the owner had the right to select 160 acres of his land as a homestead, "provided such selection included the residence or home of the family and was not manifestly made in disregard of the rights of others." Elliot v. Bond, 72 Okla. 3, 176 P. 242, 243 (1918), citing Jaffrey (et al) v. McGough, 88 Ala. 648, 7 So. 333 (1890); Sparks v. Day, 61 Ark. 570, 33 S.W. 1073 (1896).          The parcel selected by the debtors in this case is not a permissible homestead exemption in Kansas under the rule of the Peak cases.

  5. Alexander v. Love County Nat. Bank of Marietta

    223 P.2d 363 (Okla. 1950)   Cited 6 times

    It is contended by Alexander that the court erred in the construction of the law, the evaluation of the evidence and in holding that he had abandoned his homestead. In support of this contention, he cites American State Bank v. LeForce, 95 Okla. 88, 218 P. 1073; Elliott v. Bond, 72 Okla. 3, 176 P. 242; First National Bank of Cleveland v. Coates, 65 Okla. 94, 163 P. 714; Lane v. Amis Bros., supra; McCammon v. Jenkins et al., 44 Okla. 612, 145 P. 1163; Russell v. Key, 195 Okla. 49, 155 P.2d 238; White Investment Co. v. Stupart, 152 Okla. 144, 4 P.2d 77. We have carefully examined these cases cited and find the facts distinguishable from the facts presented in the case here.

  6. Cooper v. Kiester

    185 P.2d 458 (Okla. 1947)   Cited 3 times

    " German State Bank v. Ptachek, 67 Okla. 176, 169 P. 1094." See, also, McCammon v. Jenkins, 44 Okla. 612, 145 P. 1163; Brattain v. Hite, 101 Okla. 174, 224 P. 501; and Elliott v. Bond, 72 Okla. 3, 176 P. 242. Defendant contends that twelve years' unexplained absence from the homestead (assuming a homestead had been established in the two tracts of land) raises the presumption of abandonment.

  7. In re Carothers' Estate

    196 Okla. 640 (Okla. 1946)   Cited 20 times

    It has many times been held that any attempted alienation or encumbrance by the owner of land comprising the homestead, without the consent of the other spouse, is void. Cherokee Natl. Bank v. Riley, 56 Okla. 133, 155 P. 1140; Davis v. First State Bank, 65 Okla. 211, 166 P. 92; Elliott v. Bond, 72 Okla. 8, 176 P. 242; Pettis v. Johnston, 78 Okla. 277, 190 P. 681; Shanks v. Norton, 79 Okla. 93, 191 P. 170; Sannon v. Potter, 83 Okla. 66, 200 P. 860; Francen v. Oklahoma Star Oil Co., 80 Okla. 103, 194 P. 193; Hawkins v. Corbit, 83 Okla. 275, 201 P. 649; Long v. Talley, 84 Okla. 38, 201 P. 990; Baker v. Grayson, 83 Okla. 159, 207 P. 301; Fletcher v. Popejoy, 87 Okla. 185, 209 P. 746; Fetterman v. Franklin, 88 Okla. 1, 211 P. 403; Armstrong v. Independent Oil Gas Co., 93 Okla. 231, 219 P. 353; Thomason v. Martin, 97 Okla. 17, 222 P. 511; Lehman v. Tucker, 176 Okla. 286, 55 P.2d 62; Standard Sav. Loan Ass'n v. Acton, 178 Okla. 400, 63 P.2d 15; Montgomery v. Wise, 179 Okla. 247, 62 P.2d 647. It is a contradiction in terms to say that the owner of the homestead may not convey by deed and then to say he may convey by will.

  8. Glaze v. Drawver

    189 Okla. 402 (Okla. 1941)   Cited 13 times

    en established for some 17 years prior thereto, and which was not abandoned or disposed of until some two months prior to the death of Thomas Gilchrist, which occurred April 15, 1930. The evidence further shows that said Lillian R. Gilchrist and her husband never claimed any homestead in the property here involved and never at any time expressed intention of abandoning or repudiating the homestead which they had theretofore established in the town of Hydro. It is fundamental that a person cannot have two homesteads at the same time (Cooper v. Long, 93 Okla. 239, 220 P. 610); and it is also well settled that where a homestead character has once been impressed on a tract of land, it continues to possess such character until there has been a definite repudiation or abandonment of such homestead by the persons entitled to claim the same (Brunhoeber v. Davis, 167 Okla. 484, 30 P.2d 669; Lane v. Amis Bros., 171 Okla. 593, 43 P.2d 73; American State Bank v. Leforce, 95 Okla. 88, 218 P. 1073; Elliott v. Bond, 72 Okla. 3, 176 P. 242, 991); and that the purpose of constitutional and statutory provisions relative to homestead is to afford protection to the family and never to enable one to escape just liabilities or to perpetrate a fraud or injustice. Hensley v. Maxwell, 172 Okla. 21, 44 P.2d 60; Hensley v. Fletcher, 172 Okla. 19, 44 P.2d 63. Assuming, without deciding, that the defendant was entitled to raise the question of whether homestead character had ever been impressed upon the lots purchased by Lillian R. Gilchrist, we are of the opinion, and hold, that there was no evidence to show that such had ever been in fact accomplished.

  9. Exchange Nat. Bank of Tulsa v. Rose

    187 Okla. 481 (Okla. 1940)   Cited 3 times
    In Exchange National Bank v. Rose, 103 P.2d 496 (Okla. 1940), the defendant husband and wife sought to discharge, on homestead exemption grounds, a levy made on a tract of rural property associated (though, unlike here, not even continuous) with a nearby parcel on which they resided.

    The right of selection is in the owner (Morey v. James, 118 Okla. 277, 248 P. 594). This right may be exercised at any time the necessity for making such selection arises (Elliott v. Bond, 72 Okla. 3, 176 P. 242); and the question as to whether a tract or tracts have been selected and impressed with the homestead character is a question for the court or jury to determine under the facts and circumstances of the particular case (Orwig v. Cloud, 109 Okla. 299, 233 P. 1085; Kerns v. Warden, 88 Okla. 297, 213 P. 70). As said in the case of Williams, Sheriff, v. Watkins, 93 Okla. 112, 219 P. 643:

  10. Marathon Oil Co. v. Western Oil Drilling Co.

    89 P.2d 939 (Okla. 1939)   Cited 4 times

    This land contained the home and all improvements. That much of the 165.10 acres, without question, was impressed with the homestead character regardless of whether the 160-acre homestead was definitely set apart. Elliot v. Bond, 72 Okla. 3, 176 P. 242. The Hathaways never designated the particular 160 acres, neither did the lessee under whom the defendant claims, nor did the defendant ever request that the homestead be defined.