Dunton v. Woodbury

24 Iowa 74 | Iowa | 1867

Cole, J.

1. Homestead : abandonment. The sole question presented in this case is as to the abandonment of the homestead. That the property in Controversy was once the homestea(j 0f piaintiff is not denied. That the

indebtedness for the payment of which it is sought to be subjected was contracted while the plaintiff was not in actual possession of the property, is also admitted. It has been held by this court that it requires stronger and clearer proof of abandonment when the lien set up is claimed to have attached during actual occupancy, than where it arises when the party claiming the exemption was not in actual possession. Davis, Moody & Co. v. Kelley, 14 Iowa, 523.

z_ienKtb cLebd?stiuguished. The plaintiff left the property, rented it to tenants and was out of the actual occupation of it for about three years. During this time she had no item personal property upon the premises, nor ske s]10Wn to have been upon them in person, or exercised any care thereof. In these particulars the case is different from Fyffe v. Beers, 18 Iowa, 4. While the length of the time of absence from a homestead is not conclusive upon the question of abandonment, yet, where there are no circumstances or acts of the party, manifesting a purpose to return and occupy it as a homestead, the length of time becomes an important fact in determining the question of intention to return.

It is proved by two witnesses beside the defendant Woodbury, that the plaintiff made efforts to trade or sell the property, and expressed her purpose not to return and occupy it, giving as a reason therefor that Marshall-town was not a good place to raise her boys, and that she desired and intended to live and keep them on a farm. It is, however, probable that a desire, though often expressed, to sell or trade the property, would not be, of itself, proof of an abandonment. Nor would the expression of a purpose not to return to the occupation of the property, made in the course of a negotiation for its sale, be conclusive evidence of abandonment.

hold sufficient to sbow abandonment. facts But in this case there are facts sufficient to render the ant s claim, property liable to the payment of the defend-These facts may be briefly stated as follows:

The absence from the homestead for about three years, without there being manifested, by a single circumstance or act, any purpose to return and occupy it again* as a homestead. The repeated offers to sell or trade the property for a farm, and the frequent expression of her purpose not to return to the property — one of these being made to the defendant Woodbury at the time he took the note which became the basis of the judgment and execution thereon sought to be enjoined by this action. The giving of the agreement to defendant Woodbury, authorizing him to collect the rent sufficient to pay the note, thereby indicating that defendant might look to this property for the payment of his claim. These facts, when taken in connection with the further one, that the debt was created while the plaintiff was not in the actual possession of the property, make such a case as, in our opinion, renders the property liable to the execution.

Whether these facts would make it liable, if the debt had been contracted while plaintiff was in the actual occupancy of her homestead, we need not now determine.

Reversed.