Fink v. O'Neil

This is a bill in equity filed by the appellee praying for a perpetual injunction to restrain the appellant, then United States marshal for the district, from further proceeding under a ''fi. fa''., issued upon a judgment rendered in favor of the United States in the district court for the eastern district of Wisconsin, against the appellee and others, and which had been levied on real estate alleged to be the homestead of the appellee, and exempt under the laws of that state from sale on execution. The premises levied on are described in the bill as 40 acres of land, with a dwelling-house and appurtenances thereon, occupied by the appellee as a residence for himself and family, consisting of his wife and seven children, the same being used for agricultural purposes, not included in any town, city, or village plat, and alleged to be of the value of $6,000 and upwards; and it is averred that the cause of action upon which the judgment was rendered was not for any debt or liability contracted prior to January 1, 1849. To this bill there was filed a general demurrer, for want of equity, which being overruled, and the appellant declining to answer or plead, a decree was rendered granting the relief prayed for, from which this appeal is prosecuted. The provision of the statute of Wisconsin on the subject of homestead exemptions, the benefit of which was secured to the appellee by the decree appealed from, is as follows:

'A homestead to be selected by the owner thereof, consisting     when not included in any village or city, of any quantity of      land, not exceeding 40 acres, used for agricultural purposes,      and when included in any city or village, of a quantity of      land not exceeding one-fourth of an acre, and the      dwelling-house thereon and its appurtenances, owned and      occupied by any resident of this state, shall be exempt from      seizure or sale on execution, from the lien of every judgment, and from liability in any form for the debts of      such owner, except laborers', mechanics', and purchase-money      liens, and mortgages lawfully executed, and taxes lawfully      assessed, and except as otherwise specially provided in these      statutes,' etc. Rev. St. Wis. 1878, p. 783, c. 130, § 2983.

Asst. Atty. Gen. Maury, for appellant.

No counsel for appellee.

[Argument of Counsel from pages 273-274 intentionally omitted]

MATTHEWS, J.