Cope, J. concurring.
The complaint alleges that the plaintiff, Edward Harper, аcquired the premises in controversy by purchase previous to 1854, and occupied the same with his wife as a homеstead many months during the years 1853 and 1854; that he conveyed the same in July, 1854, to Edward Parrish, who went into possession; and under whom the dеfendants claim; that his wife never joined in the conveyance, or otherwise relinquished her claim to the homesteаd, and concludes with a prayer for a decree adjudging that the plaintiffs are entitled to the premises as a hоmestead, and that the defendants surrender the possession to the wife and account for the rents and profits. The dеmurrer to the complaint was sustained, with leave to the рlaintiffs to amend. No amendment having been made within the time рrescribed by the order of the Court, final judgment was rendered from which the appeal is taken. The complaint was еvidently intended as a bill in equity, and not as the first pleading in an action of ejectment. It is immaterial, for the purposes of the appeal, in which light the complaint is regarded, as there is a fatal defect in its allegations in either resрect. It contains no averment that the premises werе occupied as a homestead at the date of the husband’s conveyance, or that they had not been рreviously abandoned.
Occupancy of premises by the husband with his family, is presump
What circumstances will be sufficient to rebut the presumption of abandonment, may often be a matter of much difficulty to determine. It is sufficient to say that it must appear that the removal was temporary in its nature, made fоr a specific purpose, with the intention of reoccupying the premises. The necessities of the family, their mаintenance, their health, or the education of the сhildren, may often require a temporary change of rеsidence. In such cases the premises will still retain .their original character as a homestead.
In the present сase the complaint shows a removal from the premises; it alleges that the grantee entered into the possession under the conveyance of the husband, and that parties claiming under the grantee are still in actual pоssession. It discloses, therefore, a prima facie case of abаndonment, which is not negatived by any averments. It is quite possible that the premises may have been occupied as а homestead many months in 1853 and 1854, and yet have been absolutely abandoned at the date of the conveyance.
Judgment affirmed.