17 Wyo. 468 | Wyo. | 1909
At the suit of defendant in error the plaintiffs in error, their agents, successors and assigns were perpetually enjoined from interfering with the defendant in error in the peaceable use and enjoyment of a private right of way over and across plaintiffs in error’s premises and was awarded a judgment for damages in the sum of $70. The case was tried without the intervention of a jury to assess the damages and the court made and entered its special findings of fact and the case is brought here on error.
The findings of fact are as follows:
“1st. That the defendant Martin T. Jones is the owner of a certain piece of land as described in the petition of the plaintiff.
“2nd. That on the 13th day of June, 1905, the defendant, Martin I,. Jones, by deed granted to the plaintiff a right of way over and across said land.
“3rd. That at some time more than two years previous to the granting of the right of way to said Kepford, the said Martin L. Jones and Mattie K. Jones had resided upon the tract of land through which the said right of way was granted, with their, family but not for more than two years previous to June 13th, 1905.
“4th. That Martin L. Jones is the husband of Mattie K. Jones and both of them have resided in the State of Wyoming during all times mentioned in the petition and answer..
“4th. That at the date of said instrument the defendants had abandoned their residence on the land described, and had not resided upon said land for a period of over two years, and had maintained residence elsewhere in the State of Wyoming for themselves and family during all of that time; and that said land was not a homestead of defendants at the date of said instrument.
“5th. That both of said defendants have wrongfully inter-ferred with the plaintiff in his peaceful enjoyment of said right of way, to the plaintiff’s damage in the sum of $70.00.
*472 “6th. The court further finds as a matter of law: that the instrument in question, dated June 13 th, is a good and sufficient grant of a right of way over and across the land in question. The court, being fully advised in the law and the premises, it is
“Therefore ordered, adjudged, and decreed that the injunction herein prayed for, be, and the same is, hereby made permanent; that the plaintiff be awarded judgment against the defendant herein in the sum of $70.00, and said judgment is hereby awarded, and that plaintiff have and recover from the defendants herein his costs herein expended, assessed at the sum of $., for which costs and damage execution will issue.”
It is urged that the second part of the 4th and the 5th finding of fact are each unsupported by the evidence and that the court erred ifi its 6th finding as a conclusion of law.
It was claimed by the plaintiffs in error that the premises over and across which the defendant in error claims the right of a private way was their homestead at the time of the execution of the deed by Martin L. Jones and that that instrument was void owing to the fact that Mattie K. Jones, his wife, did not join in its execution. The defendant in error rests his right under the deed on the claim that at the time of the execution of the deed the plaintiffs in error had abandoned their right of homestead. This is the theory upon1 which the case was presented, both in the court below and here, and excludes from -our consideration all questions other than that of abandonment, for it seems to be conceded both in theory and in argument that if the right of homestead existed at the time of the execution of the deed then the latter was void because of the -absence of the signature of the wife.
The word abandoned as used in the 4th finding of fact with reference to the abandonment of a homestead has a well defined meaning. It requires a union of the act of removing from a homestead and an intention to not further retain it as a homestead, or the formation of an intention
The evidence shows that the premises were owned by the plaintiffs in error and that the land had been occupied by them as a homestead. This fact was known to the defendant in error and the burden rested with him to overcome the presumption that the premises continued to be a homestead by showing its abandonment as such.
The evidence as a whole tended to show that the plaintiffs in error rented a tract of land which was in the same enclosure as the homestead, though not adjoining it, and which was cultivated in connection with it and a desert entry of the husband which lay between the homestead and the tract so rented. On the latter tract was a dwelling house and the wife being postmistress, moved into this house where she kept the postcffice and took with her a part of the household furniture, bedding, &c., leaving the balance in their house on the homestead. The homestead was never sold or rented but at all times remained in their possession. That they lived in the house on the rented premises something over two years and that late in August or early in September, 1905, they moved back into the house on the homestead where they have lived ever since. The wife further testified that she at no time signed a waiver, nor did she at any time abandon or relinquish her right of homestead.
The loss or-relinquishment of a homestead exemption is not favored by the law nor does the evidence in this case show a clear and unequivocal intention to relinquish or abandon such right. Unless such intention is shown and accompanied or preceded by a removal from the homestead, then there is no abandonment, (Barrett v. Nelson, 102 Ill. 302); nor will absence from a homestead for the purpose
AVhile there is no direct evidence of intention not to abandon their homestead, yet such intention is disclosed from the evidence taken as a whole. The claim that it was their homestead is entirely consistent with the facts proven. They were in its exclusive possession and occupancy all the
The foregoing cases are in point as construing the word “abandoned” as applied to a homestead when the question arises between an attaching or judgment creditor and his debtor, and so construed is applicable to the case at bar. The right of a statutory homestead which accrues to a husband inures to the benefit of his wife and continues as a vested right until abandoned or relinquished or until ex
The judgment will be reversed and the case remanded for a new trial. Reversed.