73 Iowa 610 | Iowa | 1887
I. The plaintiff’s petition shows that he is the owner of eighty acres of land, which he acquired under the statute of the United States securing homesteads to actual settlers on the public domain. One of the defendants obtained a judgment against him. upon an indebtedness contracted before the patent for the land was issued to plaintiff by the United States government. An execution was issued upon the judgment, and was placed in the hands of another defendant, the sheriff of the county, who had levied upon the laud,
The defendants, in their answer, admit the allegations of the petition reciting the foregoing matters, but in avoidance thereof allege that, after the patent for the land was issued, the plaintiff conveyed by warranty deed one-half of it, described according to the government survey, to Johannah Bouscher, and afterwards conveyed the other half of the land in the same manner to the same person, who, to secure a part of the purchase-money, executed to plaintiff a mortgage upon all of the land. Afterwards plaintiff’s grantee reconveyed the whole tract to him, and he entered satisfaction of the mortgage upon the record. Upon these facts, defendants claim that the exemption under the United States statute became extinguished, and the forty acres of land not actually occupied as a homestead by plaintiff is subject to the judgment. They admit that the forty acres so occupied are not subject to sale on the execution, and make no claim to the contrary.
To the answer, plaintiff filed a reply in the following language: “The plaintiff, for reply to defendants’ answer, states that the conveyance of said land, copies of which are attached to defendants’ answer, were made by plaintiff to Johannah Bouscher, but avers that the said Johannah Bouscher, named in said deed, is the wife of plaintiff, and has been such since the month of August, 1870; that plaintiff’ and-said Johannah took possession of said land in the month of June, 1872, under the act of congress approved May 20, 1862, and entitled ‘ An act to secure homesteads to actual settlers on the public domain,’ built a house thereon, and have had .a continuous residence on the same from the month of June, 1872, and now reside on said land; that the said Johannah is a very nervous woman, and a person given to finding fault with plaintiff’s management of his business affairs, and at various times prior to the execution of said instruments— cooies of which are attached to the defendants’ answer — ■
To this reply defendants interpose a general demurrer, which was overruled, and, standing on their pleadings, a
II. The statute of the United States secures to every person who is the head of a family, or is over twenty-one years of age, and is a citizen of the United States, or has declared his intention to become a citizen, the right to enter not more than 160 acres of the public land upon the payment of nothing more than certain fees prescribed by the act, and to receive a patent therefor, upon the condition of actual residence thereon, and cultivation thereof, for the period of five years. Upon the death of the person making the entry before the patent is issued, his widow, heirs or devisees shall be entitled to receive the patent. It is provided that no lands acquired under the provisions of the act “ shall in any event become liable to .the satisfaction of any debt contracted prior to the issuing of the patent therefor.” (See Rev. St. U. S., §§ 2289-2296.) Counsel for defendant, in effect, admits that, if plaintiff had not conveyed the land to his wife, it would have been exempt from the judgment involved in the case, under the United States statute; but insists that the conveyance by her had the effect to remove the exemption provided by that statute, and subject the land, except that part exempt under the homestead laws of this state, to defendants’ judgment, lie bases this position upon Butler v. Nelson, 72 Iowa, 732, which holds that the conveyance of the homestead without consideration, and in fraud of creditors, and the reconveyance, remove the exemption in favor of the homestead provided by the statute of the state, and the land becomes subject to the execution for debts existing before the reconveyance. If our own statute'is alone to be considered, the case is not applicable to the facts before us. In that case, the conveyance of the homestead was to a stranger, to defraud creditors. In this case, the conveyance was not fraudulent; was made to the wife of plaintiff to preserve and protect the homestead, as she, and probably plaintiff, believed; and was reconveyed to plaintiff for the same purpose. The wife, as
Nothing of the hind appeared in the other case, but defendants, in effect, admit that, under our statute, plaintiff, by the conveyance and the reconveyance, did not forfeit his homestead right to forty acres occupied as a homestead, the quantity limiting a homestead under the laws of Iowa; for they expressly aver that they make no claim to or attempt to enfoi’ce the judgment against that part of the land. But they insist that the homestead right under the statute of the United States is defeated by the conveyance and reconveyance. In our opinion these acts have no such effect. If we are correct in this position, — of which we entertain no doubt,- — the whole of-the eighty acres is exempt. Our conclusion on this point is based upon these grounds': The statute of the United States which we have under consideration is intended to secure homesteads to the citizens. The title of the original act declares that purpose, and the lands acquired under it are designated as homesteads. (See Rev. St. U. S., §§ 2288-2294.) A homestead is “thehome or seat of a family.” An unmarried man may have a home and a homestead under this statute; but homes commonly are occupied by a family, consisting of at least a husband and wife. The purpose of the statute clearly is to secure the home to such a family; not, of course, exclusively, but such a family is surely within the contemplation of the statute. It is secured for the benefit of the wife as well as of the husband. It cannot be doubted that the wife may enter a homestead and receive a patent therefor. The provisions of the statute, which we have above stated, securing the homestead to the widow, heirs, and devisees of the person entering it, unmistakably show that the purpose of congress was by the enactment to secure to the husband, wife, children, and even devisees, of the citizen entering the land, the right to occupy
Affirmed.