69 Iowa 244 | Iowa | 1886
The petition states that on the first day of April, 1876, David and Margaret Phillips were the owners of the real estate in controversy, consisting of eighty acres; that they were husband and wife, resided on said land, and occupied the same as their homestead from the time above stated up to and long after the eighth day of December, 1879; “ that during said time their occupancy was uninterrupted,” and that they, “ during said time, did not abandon their said homestead, or any of their rights thereto;” that about April 1, 1876, they executed a mortgage on the premises in controversy to the defendant Davenport, to secure an indebtedness due him. In October, 1879, the mortgage was foreclosed, and an execution issued on the decree; and, after offering said premises for sale in forty-acre tracts, the whole tract was sold together to the defendant Davenport. The said David and Margaret Phillips were at that time residing on the land in controversy as their homestead; and their homestead at the time of said sale had not been selected, platted or recorded by them, and the sheriff who made the sale failed to do so. On the twenty-first day of December, 1880, the sheriff conveyed the premises to said Davenport, who then entered into the actual possession thereof, and he or his grantees have been in possession of said premises since that time, and have received the rents and profits of said real estate. In March, 1884, Davenport conveyed the premises in controversy to the defendant Eranldin. It is stated in the
I. It is insisted by the appellant that this case is squarely within the rule established in White v. Rowley, 46 Iowa, 680; Owens v. Hart, 62 Id., 620; and Goodrich v. Brown, 63 Id., 247, — for the reason that, as it appears that Phillips did not select his homestead, and as the sheriff failed to do so, the sale and conveyance to Davenport are absolutely void; or, if this be not so, the same is voidable; and that he lias a right to pay off and satisfy the mortgage upon the terms asked. On the other hand, the appellees contend, with equal earnestness, that this case comes within the rule established in Burmeister v. Dewey, 27 Iowa, 468; Eggers v. Redwood, 50 Id., 289; Brumbaugh v. Shoemaher, 51 Id., 148. That there is an apparent conflict in these cases may be conceded, but we think there is not in fact any real conflict as to the question actually determined. The only conflict, we think, is dictum. We deem it unnecessary, in this case, to take the time required to state at length our reasons, because there is a point made by the appellee which we think is decisive of this case.
Conceding that the commencement of this action should be regarded as evincing an intent on the part of Phillips to return and occupy the homestead, nearly five years had elapsed from the time he left, and Davenport had entered into possession thereof, and in the mean time the real estate had been conveyed to the defendant Franklin, who should be presumed to be a purchaser for value, and in good faith, without notice, in the absence of any showing to the contrary.
For the reasons stated, we think that the homestead was abandoned by Phillips, and that the plaintiff is not entitled to the relief demanded.
Affirmed.