135 Iowa 440 | Iowa | 1907
The appellants were brought from the
East in 1888 and were then taken into the home of the defendants to be raised and cared for as their own children until they became of age. Henry was at the time four or five years of age, and Harvey was one year his junior. The agreement under which they were taken by the defendants was made with an agent of the benevolent institution from which they came. Harvey Reilly remained with the defendants until January, 1902, and Henry remained until December, 1903. At the time they became members of the family, the .defendants were living on a farm containing one hundred and twenty acres of land, all of which they supposed they owned. In 1897 or 1898, they lost eighty acres of the one hundred and twenty, and soon thereafter the remaining forty acres was improved and the defendants have since that time occupied it as their homestead. In their petition the appellants allege that in 1894 or 1895, when they were about twelve years of age, the appellees voluntarily entered into a verbal contract with them, whereby they agreed that, if the plaintiffs would remain with them and work the farm, they should have it; the defendants reserving to themselves the right to use and occupy forty acres thereof during their lifetime. It is further alleged that, after the loss of the eighty acres, a further agreement was made by the terms of which the appellants were to remain with the defendants and work for them until a certain mortgage on the forty was paid off, and in return for such service they were to have the forty after the defendants “ were through with it.” The petition alleges performance on the part of the plaintiffs, and that the defendants now repudiate their contract, and threaten to make other disposition of the remaining interest in the land.
But the trouble with the appellees’ position is that the . contract under which the appellants claim was not a contract agreeing to convey the homestead of the defendants, but one expressly reserving to them, and to the survivor, its full use and enjoyment through life. The homestead right is purely statutory and for the benefit of the family, and it may be waived or abandoned. The right of occupancy as a homestead in no way affects the legal title to the land, and, when such right ceases, it descends to the issue of either husband or wife according to the rules of descent, unless otherwise directed by will. Code, section 2985; Mahaffy v. Mahaffy, 63 Iowa, 55. In the case last cited it is said: “The right of the wife to continue in possession and occupancy of the homestead, after the death of the husband, is not a right or interest in his estate which she takes by inheritance, but is entirely distinct from the interests which she takes by virtue of that right. It is a mere personal right to occupy and possess the premises, but is unaccompanied by any title or property interest therein.” See, also, Cotton v. Wood,
The logic of our own cases points to a broader rule than it is necessary to establish in the instant case, for here there was an express reservation of the homestead estate, so there can be no question that an enforcement of the contract will in no manner impair such estate. Following the rule of these eases, we think the contract must be held valid. Such is the direct holding in Wisconsin, Ferguson v. Mason, 60 Wis. 377 (19 N. W. 420), which was approved in Town v. Gensch et al., 101 Wis. 445 (76 N. W. 1096, 77 N. W. 893) and in North Carolina, Jenkins v. Bobbitt, 77 N. C. 385. The principle has been recognized in New Hampshire. Atkinson v. Atkinson, 37 N. H. 434. See also, Smith v. Brown, 4 Allen, 516; Doyle v. Coburn, 6 Allen, 71; Silloway v. Brown, 12 Allen, 32; 15 Am. and Eng. Enc. of Law, 676. In Albright v. Hannah, 103 Iowa, 98, the rule was referred to, but, as it was not necessary, no definite pronouncement was made thereon.
The holding therein in no way involves the question of the wife’s statutory interest in the deceased husband’s estate, and we need give it no further attention. We hold, simply, that a contract to convey the reversion where the homestead estate is expressly reserved is valid without the con
. The appellants are entitled to a conveyance of the forty acres in controversy, subject to the homestead rights of the defendants, who are without issue and have no family other than themselves. The judgment is therefore reversed, and the case remanded for a decree in accordance herewith.— Reversed.