Anderson v. Culbert

55 Iowa 233 | Iowa | 1880

Adams, Ch. J.

1. COKTBACT : anceoFhome band aníf" Wife The property of which the -plaintiff seeks to obtain a conveyance consists of two lots, and a dwelling-house thereon, in the town of Ci’esco. It is un- ■ disputed that the defendant was l’esiding upon Pr0Pei'ty with his family at the time the contract was made, and has resided there evér since.’ The plaintiff contends, however, that the property did not constitute the defendant’s homestead.

The evidence shows that the defendant owned a farm in Winneshiek county; that he lived upon it - for fifteen years prior to the spring of 1877, when he leased it and moved to Cresco. About that time he pui-chased the two lots in question in Cresco, and built a dwelling-house thereon. In September, 1877, he moved with his family into the house, and has continued to reside there since that time. Whether the farm in Yfinnesliiek county lost its homestead character would depend upon whether the defendant left it with the intention of abandoning it as a home, or whether his removal to Cresco was a mere temporary shift. The direct evidence upon the point is that of the defendant, who testified that he bought the Cresco property for the purpose of a home. There is some evidence showing that after he commenced occupying the Cresco propert}*- he talked occasionally .of going back to his farm. This could only be material in showing, if it could be deemed to have even that effect, that he never i*eally abandoned the farm as liis home, for if he once abandoned it the formation of an intention to return, but not. acted upon, would not restore to the farm its homestead character, nor take such from the property in Oresco. In our opinion the averment of defendant that the Oresco property was his homestead is proved. The plaintiff, however, contends that the contract to convey it is not void for the want of the signature of defendant’s wife. He relies upon evidence tending to show that she had knowledge of the trade and encouraged it. But this is insufficient. Even an agreement upon her part would not bind her unless it was a written agreement executed jointly by her and her husband. Stinson v. Richardson, 44 Iowa, 373; Garlock v. Baker, 46 Iowa, 334. The contract, then, without her signature was void.

The plaintiff claims that the defendant took possession of the real estate which was to be conveyed to him, and has enjoyed the profits, for which, if the trade is not to be carried out, he ought to be allowed. The defendant pleads a set-off. We have not gone into any inquiry upon this point. The defendant insists that we cannot properly do so, because the evidence is not all before us. The abstract does not purport to contain all the evidence, and we must presume that the ruling of the court was correct.

Affirmed.