87 Iowa 171 | Iowa | 1893
Some undisputed facts may well be stated at the outset, and we may then inquire how other facts, conceded or determined from the evidence, should affect the result. The plaintiff J. E. Painter
The appellants, in argument, as indicative of an intention to abandon the homestead, unite the time of
As to the abandonment by removing to Ottumwa, we may especially notice some of the propositions asserted by the appellants in support of it. It is very manifest that the business of the plaintiffs at Bloomfield was such that they were desirous of finding some better locality for its prosecution, and we incline to the view that, if such a place were found to their satisfaction, it would be made their home. There is little room to doubt that they went to Ottumwa as an experiment in that direction. At the commencement of this suit they had been in Ottumwa a little more than two years and a half. On going to Ottumwa, they engaged in business by the purchase of a restaurant as a result of a previous arrangement. After one year the restaurant was sold, and since that they have been running it for one half the profits. Their present employment seems to be temporary. The house at Bloomfield is unoccupied except that the mother of Mrs. Painter has been in it for a short- time, but only to care for it. The furniture of the plaintiffs is still in the house, and there used. The strongest point urged in support of the abandonment is one that Mr. Painter, since being at Ottumwa, has registered under the law for voting, and has voted there one or more times. Were he the only party in interest, we might regard such acts as conclusive against him, for they are quite, if not absolutely inconsistent with a purpose to retain his residence at Bloomfield. It appears, however, that the wife had no knowledge of these acts, and the title to the house and lot in Bloomfield is in her. This latter fact is, perhaps, of no special moment, as the husband can not, by his acts, divest the wife of her homestead rights. Lunt v. Neeley, 67 Iowa, 97. See, also, Bradshaw v. Hurst, 57 Iowa, 745.
Importance is attached to the facts that Painter
The case is not as strong in its facts in favor of the appellants as is Repenn v. Davis, 72 Iowa, 548, or Bradshaw v. Hurst, supra. The conclusion in Repenn v. Davis, is quite significant in this case. It will be seen that in that case also there was a necessity to seek another place to engage in business. There was an absence from the house as to occupancy, except a room for storing goods, for about seven years, and the significant feature is that the presumption of abandonment that would otherwise arise from the long period of absence was “overcome by the fact that they retained possession of a part of the house and lot, and kept there a part of their household goods.” It is then said: “They had not wholly abandoned the property, and their occupancy of a part of it imparted notice to the world of their right thereto.” Especial importance seems to be attached to this particular fact of a partial possession. How much stronger is the case at bar in
The judgment of the district court is in accord with our conclusion, and it is aeeirmed.