99 Mo. 132 | Mo. | 1889
The question here is whether the defendant lost, by abandonment, his right to have a house and lot in Carrollton, Carroll county, set off as a homestead.
The plaintiffs recovered a judgment against defendant for $228.80, in March, 1885, for goods sold in that year. Execution was issued in November, 1885, and levied upon the house and lot. The appraisers appointed
The defendant owned, and, with his family, resided in the property at and prior to the spring of 1882. At that time, he moved to Springfield; in another county in this state, and remained there from six to twelve months. He then returned to Carroll county, and began a mercantile business in a small way at a place called Clione. Prom there, he moved his goods and family to Hale, a small village in the same locality. In May, 1885, which was after the date of the judgment, and before the execution was issued thereon, he closed out his business and moved back to the property in question at Carrollton. The agreed facts filed with the first motion state that it was his intention, when he went to Hale, “to live and do business there indefinitely.” In his affidavit filed in support of the second motion, defendant says: — “I returned from the Southwest in a few months without having made any effort to get a home there, or without trying to purchase any property. I did business during the years 1883 and 1884 in Clione and Hale, in this county, about eighteen months, but I have never owned or claimed any homestead except my home in Carrollton. I went into business in Clione and Hale because I thought I could make some money there, and thus better my condition. I moved back to Carrollton into this property some time in May, 1885, and have occupied it with my family ever since. I have never at any time, since the purchase of said
The property was rented out from 1882, to May, 1885. The defendant’s agent says it was. rented from month to month only; that in July, 1884, and before the date of plaintiffs’ judgment he terminated the lease and got possession of the property, because defendant wanted to move back at that date. The agent goes on to say : “Mr. Willis never gave up the property as his home, but, from what he said and wrote to me, he always intended to move back to it.”
In Smith v. Bunn, 75 Mo. 559, Isaac Smith lived on the premises until the death of his first wife, when he broke up housekeeping, moved his household goods, and leased the premises for three or five years. He then married, and within a few weeks died, having made some preparations to move back to the premises. His widow claimed the property as her homestead, but it was held these facts made out a prima facie case of abandonment.-
In Kaes v. Gross, 92 Mo. 648, the plaintiff and her first husband had acquired a homestead, he died, and she married again and moved to the home of her second husband in another county, and had resided at her last home for nearly four years. It was held she had abandoned her former homestead.
The present case, it will be readily seen, differs from those just cited in this, that there is here evidence of an intention to return on the part of defendant. It was also worthy of note that the defendant acquired no new home upon which the homestead right could attach. This case is more like that of Potts v. Davenport, 79 Ill. 456, where the homestead claimant rented his farm for one year, reserving two rooms, and moved to Chicago, expressing an intention to return, if the climate and
The cases before cited from this court assert or rec■ognize these principles, that when a homestead has been acquired, the question of abandonment is one of fact, and each case must, in a great measure, rest upon its own particular facts; that the right of a homestead exemption ceases to exist when the occupant leaves the premises with a view of acquiring a residence elsewhere, and with no intention to return; and that the intention to return must be formed at the time of the removal from the premises, in order to preserve and continue the homestead exemption.
The defendant’s residence at Springfield is without any great significance; but his residence at Clione and Hale, and doing business at those places, make a prima facie case of abandonment of the Carrollton homestead. On the other hand, it appears the Carrollton property was rented from month to month only. It was vacated by the tenant in July, 1884, the defendant then intending to move back, but his business prevented him from so doing. The evidence of the agent tends to show that defendant never gave up his Carrollton home, and that his residence elsewhere was temporary. The letters to the agent, and a detailed statement of the conversations, would be more satisfactory evidence, but we must take the case as we find it. Taking the agreed statement, and the evidence as a whole, we are of the opinion the trial court did not err in holding that the defendant had not, at any time, abandoned his Carrollton homestead. At all events, the finding of the circuit court is not against the evidence, but is supported by it.
The judgment is therefore affirmed.
