18 Iowa 4 | Iowa | 1864
It was not lost or terminated by the acquisition of a new homestead, for during the plaintiff’s absence she lived on rented property, and acquired elsewhere no new home, no property to which the homestead exemption would attach. The attorneys of the creditor claim that it was forfeited by abandonment. The proposition is not disputed that the homestead right may be thus lost. It is difficult and dangerous,on this subject, to lay down general rules which will- apply to all cases. This may, perhaps, be safely asserted, that actual removal from the homestead with no intention to return, will waive or forfeit the right as against purchasers or creditors, even though no new homestead-may be gained.
application rnifs.neral For such cases no general rule can be enunciated ; each turns upon, and the decision of each exacts a special regard to ^ts own peculiar facts. How long an absence will forfeit the right, depends upon circumstances. If a man, for example, should lock up his homestead, or even rent it, and go to Europe on a tour of pleasure or for any other temporary purpose, clearly intending to return and resume possession of the homestead, it seems clear that even five years absence would not, certainly as respects general creditors, work a forfeiture of the homestead right. Walters v. The People, 18 Ill., 194; S. C., 21 Id., 178; Guiod v. Guiod, 14 Cal., 506. Prolonged absence would ordinarily justify the conclusion of abandonment; but this may be rebutted and explained, especially where third persons have not been actually misled. (1 Am. I* Peg. [N. S.], 712, and cases there cited.) In the case at bar, the absence from the premises claimed as a homestead, was, from October, 1856, to December, 1861, over five years.
Has this been explained so as fully to overcome the presumption of abandonment, naturally arising from an absence so protracted ? That is the question upon which the case wholly turns. It is a close one, but upon the whole evidence, and on all of the circumstances, we think
1st. She actually acquired no other home. Her statement to the agent of the defendant at the time she bought the lot in Iowa City, that “ she regretted having sold it, and wished to repurchase it as a home,” is by no means conclusive that such was really her intention, and is not inconsistent with the notion that this purchase was, as Mr. Fyffe testifies, made “ upon speculation.”
2d. It is clearly shown by the testimony that, during her whole absence, the plaintiff and her family always
3d. What is more important, the plaintiff’s acts confirm and fortify the declarations of herself and of the family. Thus she left a considerable portion of her furniture in the house, and it remained there during the whole time the plaintiff was absent. So after the removal, a large number of trees and shrubbery were, from time to time (during every season, says one witness), set out with a,view to beautify and improve the place for a home, and other kinds of work were done, “such as are usual in fixing up and making a home.” Again, it was not rented to tenants, as houses generally are which are owned and kept for rent or profit. Thus, Mr. Fairall occupied it one season as a “special favor,” paying only taxes and insurance. After-wards H. Harrington occupied it to take care of it, paying one-third of the products of the garden. The rest of the time, before plaintiff resumed possession, it was occupied by Shafer and his family, while he was employed by the plaintiff as a hired hand at the hotel in Iowa City.
4th. Advantageous offers to purchase or exchange it were refused by the plaintiff, because it was her home.
When the absence is so prolonged as in this case, the court is of opinion that the intention to return to the premises as a home, should be clear and unmistakable; but we believe this has been made to appear. These circumstances' clearly distinguish this case from that of Davis, Moody & Co. v. Kelly, 14 Iowa, 523; and satisfy us that the plaintiff never did, in fact, relinquish the intention to resume the possession of the premises in dispute as her home. We would not give a construction to the statute that would sanction frauds upon creditors.
Affirmed.