81 Neb. 198 | Neb. | 1908
The appellant, Hugh A. Allen, brought this action in the district court for Holt county against the county of Holt and the state of Nebraska to quiet his title to a tract of land adjacent ‘to the village of Atkinson, Nebraska, to cancel a sheriff’s deed conveying the premises in controversy to Holt county, and to have certain judgments declared not liens upon the premises. The plaintiff claimed ownership by virtue of a deed from Joseph 8. Bartley and wife, executed on the 27th day of January, 1904. The defendant Holt county answered, claiming title to the premises by( virtue of a sheriff’s deed, executed on the 11th day of February, 1898, and asked to have its title quieted as against the plaintiff. The state of Nebraska admitted certain formal allegations in the petition, and denied plaintiff’s title. Upon a trial of the issues joined the district court found against the plaintiff, dismissing his action, and found in favor of the defendant Holt county, and entered a decree quieting and confirming its title to the lands. From this judgment of the district court the plaintiff has appealed.
The facts disclosed by the record, as far as they are material to the determination of the questions herein involved, are as follows: Joseph S. Bartley on the 10th day of December, 1885, became the owner in fee of the premises in controversy, and resided thereon with his family. The land in controversy constituted his homestead, and the evidence shows that at no time has the property been worth more than |2,000. In November, 1892, Bartley was elected
In June of the same year he Avas tried, convicted, and sentenced to a term of 20 years in the state penitentiary. Pending a review of his trial in the supreme court he remained in the Douglas county jail, and after the judgment was affirmed he was confined in the penitentiary until he was pardoned in the year 1902, and he has ever since resided in the Lincoln home. During the time that Bartley was state treasurer he claimed his home at Atkinson, frequently returned there, and voted there at each general election, and has never voted elsewhere. He did not rent the premises in controversy, and never sold or removed his household goods and agricultural implements and tools that he left thereon. He purchased the property in Lincoln Avith a view of its occupancy during the term of his office, and with the intention and expectation of selling the same at the end thereof, and it was also his expectation and intention to return at the end of his term of office to his homestead in Holt county.
In December, 1894, Holt county recovered a judgment, for $5,863 and costs in the district court for that county against Barrett Scott, as principal, and Joseph S. Bartley and others, as sureties, and on the 4th day of January, 1898, caused execution to be issued on said judgment and levied upon the premises in controversy: On February 23,
The first question for determination is: Was the land in controversy the homestead of Joseph S. Bartley at the time of the sale thereof under the execution? And did the county of Holt acquire title to the lands by virtue of the sheriff’s deed? That the land in controversy constituted tlie homestead of Bartley up to the time of his removal to Lincoln to assume his official duties as state treasurer is not questioned; but it is contended by the appellees that by virtue of Bartley’s removal from the home in Holt county to the city of Lincoln and the purchase of a new home there, in which he installed his family, he had abandoned his old homestead. Ordinarily, where the owner of a homestead removes therefrom with his family and to another home, of which he is the owner, it will be presumed that lie has abandoned the first home and thereby the homestead right in it. But this, like other presumptions, may be rebutted by evidence to the contrary, and the real question to determine is whether or not in leaving the home in Holt county to go to Lincoln there was an intention to abandon, or, after having removed therefrom, an intention was formed to remain away from it. If Bartley’s intention, when he removed from Holt county to Lincoln, was not to return, then, of course, he abandoned the homestead; or if, after his removal to Lincoln,! e formed the intention while there to remain in Lincoln, or of not returning to Holt county, then there would be an abandonment of the homestead. But, from the record, it is apparent that his only purpose in removing to Lincoln was to perform his
Appellees contend that, even if the property was the homestead at the time, he has waived the homestead right. It is true that this court has held that the homestead right is a personal privilege and may be waived. But the cases in which that has been held were those wherein the homestead quality of the property was an issue in the case, or wherein the homestead claimant had the opportunity of asserting and establishing his homestead right in the action. See Brownell & Co. v. Stoddard, 42 Neb. 177; Curtis v. Osborne & Co., 63 Neb. 837; Gilbert v. Provident L. & T. Co., 1 Neb. (Unof.) 282. In the action whereby Holt county obtained a judgment against Scott and Bartley the homestead character of Bartley’s property was not and could not have been put in issue. The only opportunity, therefore, that Bartley could have had to interpose the homestead character of his property was by way of objections to the confirmation of the sale. But this court lias held that the homestead character of the property cannot be properly determined upon objections to the confirmation of the sale, and that, even if such objections were made, they are not binding upon the homestead claimant, who may thereafter bring an action to cancel the sheriff’s
There still remains for consideration the question as to whether the realty in controversy was the homestead of Bartley at the time of the sale to the appellant on the 27th day of January, 1904, and whether the conveyance from Bartley and wife to appellant vested a good title in the grantee divested of the judgment liens of Holt county and the state of Nebraska. Bartley was pardoned and released from the state penitentiary in the early part of the year 1902, and has ever since continued to reside in the home in Lincoln, and has never made any attempt to remove to the Holt county homestead. Two years had elapsed from the time of his release before the sale of the property to the appellant. The only reason or excuse offered for his continued absence was that Bartley was interested in litigation which rendered necessary his presence in Lincoln, rvhere he might have easy and free access to the books and records of the treasurer’s office. The evidence upon this question appears to be a mere conclusion. There are no facts shoAvn in the record AAdiich Avould indicate that it was necessary for Bartley to remain in Lincoln or to be near the treasurer’s office, and it does not appear that, in fact, he ever visited the treasurer’s office or examined the books and records thereof. The record does disclose that there AArere two actions pending in the district court for Douglas county in AAdiich Bartley Avas interested; but there is nothing to disclose that they required his attendance in Lincoln or required his absence from his Holt county residence. We think a fair inference to be draAvn from the record is that Bartley, before the sale of the property to Allen, abandoned his intention to return to Holt county. We are inclined to the view that he was entitled to a reasonable time after his pardon and release from the peni
We therefore recommend that the judgment of the district court be reversed and the cause be remanded, with directions to enter a decree in conformity with this opinion.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is reversed and the cause remanded, with directions to enter a decree in conformity with this opinion.
Reversed.