Blackburn v. Lake Shore Traffic Co., 90 Wis. 362

Blackburn v. Lake Shore Traffic Co.

90 Wis. 362 | Wis. | 1895

Winslow, J.

It is contended by the defendant that when the minor son of the plaintiff, R. D. Blackburn, acquired title to lot 8, block 6, in November, 1884, he held it as trustee for his father, the plaintiff, who paid the consideration therefor; and consequently that the defendant’s judgment immediately became a lien thereon, under R. S. sec. 2992. This contention cannot be maintained, because the trust in such case is a trust in favor of the creditors of, the person paying the consideration, and not in favor of such person himself. ' R. S. sec. 2078. The person paying the consideration acquires no title to which a judgment lien can attach. This has been expressly decided by this court very recently. Miner v. Lane, 87 Wis. 348.

When the plaintiff actually acquired title to the property, in November, 1886, he was residing upon it with his family, presumptively with the intention of making it his homestead, and it would seem quite clear that the lien of the judgment did not attach during the time of his residence there under such circumstances. The question, therefore, upon which the case depends is whether he abandoned his homestead either when he moved away from it in May, 1887, *366or subsequently. The homestead exemption is not impaired, b'y “ temporary removal with the intention to reoccupy the same as a homestead.” R. S. sec. 2983. It has been held that the words “temporary removal,” as here used, mean “a removal for a fixed and temporary purpose or for a temporary reason; ” also, that, “in order to prevent an abandonment by such removal, it must be made with the certain and abiding intention of returning to the premises and residing thereon as a' home stead.” Moore v. Smead, 89 Wis. 558. “ A vague intention to return perhaps at some future day and reside there again, will not preserve the homestead.” Jarvais v. Moe, 38 Wis. 440.

The plaintiff testifies now that he intended to return at the end of six months. This intention he evidently abandoned, because he did not return then, but left it either rented or vacant for nearly six years. He also testifies now that his intention has always been to go back to that homestead. In this connection the remarks of Ryan, C. J., in Jarvais v. Moe, supra, are very pertinent: “ When he made the removal, the presumption was that he did so animo mcmendi. 1 Kent, Comm. 76. The presumption might be rebutted by circumstances and conditions surrounding the removal, or declarations accompanying it, manifesting a temporary purpose and an intention to return; but not satisfactorily by ex post faeto professions, after intervening occurrences had made return advantageous. The intention which is sufficient to rebut the presumption must be positive and certain, not conditional or indefinite.” Examining the testimony in this case, we see no circumstances or declarations which accompanied or immediately followed the plaintiff’s removal which tend to rebut the presumption that such removal was made animo mcmendi. On the contrary, all such circumstances tend to confirm the presumption. He leaves the place with the definite purpose (as he testifies) to return in, six months. On the contrary, he remains away nearly six *367years. He builds another bouse, suited for bis own use, and -which he in fact uses, on property for which, he himself pays, so far as it is paid for at all. He witnesses and records a contract for this second lot, in which it is described as his “ homestead.” He now declares that his only purpose in removing from the property in question was to secure the rent therefrom, but when it becomes vacant and so remains for months he does not return to it. In fact, the only evidence tending to rebut the presumption that his removal was made animo manendi is his ex post facto professions made at the time of the trial, when circumstances had rendered his return advantageous. "We do not regard these professions as in any respect sufficient to rebut the presumption, strengthened as it is by contemporary circumstances and conditions. The evidence shows very clearly to our minds that when the plaintiff removed from the premises in question he had no positive or certain intention to return, and that he consequently abandoned it as a homestead.

By the Gowrt.— Judgment reversed, and action remanded with directions to render judgment for the defendant.