96 Neb. 94 | Neb. | 1914
This is an action to enjoin the sheriff of Richardson county from selling, under execution, lots 7 and 8, in block 180, in the city of Palls City. It is alleged in the petition that plaintiffs are the legal owners of one-fourth interest in the lots, two-fourths being owned by certain minor children, relatives of Mrs. Doman, and who have constituted a part of her family since the decease of Mrs. Doman’s sister-in-law, the mother of said children, some five years before the commencement of the suit; that the other one-
Mary E. Kentner, the judgment plaintiff, was substituted as defendant, and filed an answer to the petition, in which it is alleged that on the 14th day of September, 1911, she recovered a judgment against Isabel McPherson (now Isabel Doman, plaintiff) before a justice of the-peace for the sum of $100 and $2.50 costs; that a transcript was taken of said judgment and filed in the office of the clerk of the district court for said county on the-16th day of September, 1911; that Isabel 'McPherson, now Doman, first acquired title to the one-fourth interest in said property by a deed on the 12th day of September, 1910, which was filed for record October 4, 1910; that the deed from Isabel Doman to Thomas J. Doman, her hus
It is insisted that the suit was prematurely brought, as it was not alleged that any act had been committed by the sheriff or defendant Kentner in the way of seizing or levying upon the property. Strictly speaking, this is perhaps true, especially since the general denial should, we think, in strictness, be held to deny that defendant intended to levy upon the property, or that such a levy was threatened, but, as we have often held, this court will not depart from the theories and issues actually adopted and tried by the parties; and, instead of following the technical issues as presented by the pleadings, we will treat the case on its merits as though the levy was in reality made. It must be conceded that the cause was not as carefully and thoroughly tried as is usually done by the bar of Richardson county, and some features of the case were not brought out by the evidence as fully as they should have been.
It appears to be sufficiently proved that some five years before the trial the sister-in-law of Mrs. McPherson, now Mrs. Doman, died leaving minor children. Those children had before that time been cared for and maintained by Mrs. McPherson, but after the decease of their mother it was agreed by their older brother, who was .of lawful age, and Mrs. McPherson that she should take the children into her family, care for and maintain them, and for which the brother, who owned one-fourth interest in the property, was to convey his interest to her upon such terms as might be agreed upon. Under this arrangement she took possession of the property with the minor children as one"
In Giles v. Miller, 36 Neb. 346, we held that “an undivided interest in real estate, accompanied by the exclusive occupancy of the premises by the owner of such interest and his family as a home, is sufficient to support a homestead exemption.” It is provided in section 3090, Rev. St. 1913 (Comp, St. 1911, ch. 36, sec. 15) that the family may consist of “the minor child of a deceased brother or sister.” As the children maintained by Mrs. McPherson were the children of ,her deceased sister-in-law, they fall within the protection of the statute, and, with Mrs. McPherson, constituted the family.
Proof of abandonment of the homestead is wanting. It is shown by the testimony of Mrs. Doman, formerly Mrs. McPherson, that when she left the home on the lots in dispute, it was with the fixed purpose and determination to return, and with no intention of a permanent abandonment of her homestead right. A portion of her household furniture was left and still remains in the house, which is temporarily occupied by a tenant, the rent being paid
The decree of the district court is reversed and the cause remanded to that court, with directions to reinstate the restraining order and grant a perpetual injunction against the defendants as prayed for in the petition.
Reversed.