64 Neb. 249 | Neb. | 1902
This is a suit brought in the district court for Dodge county by Kate Blumer against Edwin Albright and Lizzie Albright, his wife, and E. F. Blumer, husband of plaintiff, for the purpose of procuring the cancelation of a deed of conveyance alleged to have been executed by Kate Blumer and her husband to Edwin Albright, defendant, upon certain lots in the village of Scribner, in Dodge county. Plaintiff alleged in her petition that she was a married woman, that her husband, E. F. Blumer, was made a defendant in the action because he refused to join with her as plaintiff; that they are the owners of lots 1 and 2 in block 5 in the village of Scribner, county of Dodge, and
Appellant contends, first, that the property in question is not the homestead of appellee and of her husband; second, that the description of the property in the deed is sufficient; and third, that the execution of the' deed by appellee was not obtained by fraud or duress. In the view we take of the case, it will only be necessary to consider the first and third contentions of appellant.
It is disclosed by the record that appellee and her husband, with their two children, resided in their home on the lots in question for a number of years prior to 1890 or 1891; that about that time appellant Albright, who was a brother-in-law of appellee’s husband, E. F. Blumer, induced the latter to remove to the town of Beemer and go into partnership with him in the grain, coal and live-stock business. About the time this arrangement was entered into, appellee, with her husband and children, removed to Beemer, and resided in that village up to the time of the trial, some six or eight years. Whthe there they occupied a house, the property of the partnership of Blumer & Al-bright, the rent for which was charged against-Blumer on the fii*m books. The testimony is undisputed that during all this time appellee claimed the property in Scribner, which they rented to other parties, as her homestead. She refused to sell it on that account, and always expressed the expectation of going back to it to live; that she did not
It is contended with much earnestness and ability by counsel for appellant that the husband, being the head of the family, has the right to determine and control the domicthe of the family, if he acts in good faith and not fraudulently; that by removing from the homestead, and faking up his abode elsewhere, he can divest both himself and his wife of their homestead right; especially is this true, it is contended, where the wife and family accompany the husband to the new abode. Many cases from other states than our own are cited in support of this doctrine. We are unable to adopt this view. It seems very clear from an examination of the provisions of our statute relating to homesteads that the purpose of the legislature was to secure a home, not for the benefit of the husband alone, or of the wife, but for the family as an entirety; and it is accordingly provided that no conveyance of the homestead can be made except by a deed in the execution of which both husband and wife have freely and voluntarily joined. Thus the husband is wholly deprived of his power of alienation unless with the free consent of his wife. To sustain the contention of appellant would result in permitting a dissolute and worthless husband, whose sense of responsibility for the preservation of the family had been blunted by vice and dissipation, to deprive his wife and family of the benefits of the homestead law by simply abandoning it and taking his family with him elsewhere, without regard
The next question requiring consideration is whether the execution of the deed in question by the wife was procured by fraud and duress. The testimony shows that for some two or three years before the date of the signing of the deed the l«isband of appellee, E. F. Blumer, was for a considerable portion of his time in a state of intoxication; that on the day the deed was executed he was drunk, and came to the house in that condition, asking appellee whether she was ready to sign away her home, saying that he had been threatened with the penitentiary, to which she replied that she would not sign away her home, that it was the last thing they had, and that she would not give .her consent to its going. Later in the day he returned, still intoxicated, in company with appellant Albright, his brother-in-law and partner, to whom the deed for the homestead was made, the attempted transfer appearing to have been undertaken in settlement of an indebtedness from Blumer to him growing out of the dissolution of the partnership. It seems that appellee and her two daughters were greatly excited, and were crying in consequence of the brutal conduct of the husband. The appellant Albright advanced toward appellee with clenched fist, saying, “Sign it, Kate, sign it, or you will sign it for the sheriff to-morrow,” or words to that effect. Appellee asked Albright for what purpose she was asked to sign away her home, to which he replied that it was his business. The undisputed testimony discloses that the husband abused and scolded his wife, and that after he and appellant had been there for some time, the wife was finally brought to sign the deed, declaring, however, that she would never acknowledge it. In the evening the husband came with a justice of the peace to taire the acknowledgment. They found appellee much excited, and still weeping, and when the justice of the peace asked her if she acknowledged the deed to be her voluntary act and deed, she promptly told him that she did not, and that she never would. It seems that two deeds
It seems very clear from the evidence in this case that the property in controversy is the homestead of appellee, and that she never voluntarily conveyed it. The findings and judgment of the trial court are right, and it is therefore recommended that the same be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the findings and judgment of the trial court are
Affirmed.