131 Mo. App. 346 | Mo. Ct. App. | 1908
This is a proceeding to quash the levy of an execution. The question in issue is whether defendant Copple, against whom plaintiff recovered a judgment of $371 on May 12, 1903, abandoned his homestead right in a certain residence property in the town of Dawn, Livingston county, before execution was issued and levied thereon. The trial court heard the evidence, held there had been no abandonment, and rendered judgment accordingly. An appeal was granted to the Supreme Court but that tribunal transferred the cause to this court on the ground that we alone had jurisdiction over it. [Snodgrass v. Copple, 203 Mo. 480.]
Copple is the head of a family consisting of himself, his wife and three minor children. In 1887, he purchased the property in controversy and occupied it as a residence. He was engaged in banking business and, for a time, was judge of the county court of Livingston county. But misfortune overtook him, stripped him of everything but his homestead and household belongings and forced him to rely on day labor for means to support his family. Finding that his home town afforded but a meagre and precarious opportunity to make a living, he first went to Ohillicothe and thence to Kansas City in the hope of bettering his condition. He arrived in Kansas City about November 1, 1901, and found work for which he was paid $7 per week. Four weeks later, he rented a house and moved his family from Dawn. He procured a tenant from month to month for his residence property and left some of his household goods on the premises. He voted in Kansas City at the spring election of 1903. An attempt was made by plaintiff to show that his personal property
We shall not burden this statement with a recital of all the facts adduced by defendants, deeming it sufficient to say that from the testimony of Copple, from declarations he made to others from time to time and from all the facts and circumstances disclosed, it appears quite clearly that he considered his residence in Kansas City as temporary, that he had not secured suitable or satisfactory employment in that city, and that from the time he left his homestead until he sold it, he regarded it as his home to which he intended to return.
The removal of the family from the homestead is prima-facie evidence of abandonment, but it is not conclusive, and may be overcome by evidence showing that the removal was temporary and accompanied by an intention to return after the accomplishment of the specific purpose which prompted it. A mere vague and indefinite intention to return at some time and under certain possible contingencies will not suffice to prevent the removal from constituting an abandonment. But, on the other hand, where the family for some special reason — such as pecuniary stress — is compelled to leave the homestead until the special reason shall exist no longer, and intends all the time to return, the fact that the length of such enforced absence cannot accurately be forecasted should not alter the effect to be given the “animus revertencli ” “The intention to return is usually the controlling element in the determination of the whole question.” [Waples on Homestead & Exemptions, p. 564.] And where it appears to have been well
The sale of the homestead for the purpose of reinvesting the proceeds in another homestead did not constitute an abandonment. “The homestead law allows the sale of the homestead and the investing of proceeds in another and permits the carrying of the exemption of the first into the second.” [Banking Co. v. Brown, 165 Mo. 32.] The law allows the owner of the homestead to let it to a tenant during the period of his temporary absence. [King v. King, 155 Mo. 406.] Such facts have a strong evidentiary bearing on the question of abandonment, but they are merely evidence and, therefore, should not be considered as conclusive, nor is the fact that defendant Ciopple voted in Kansas City conclusive of an intention to abandon his homestead. We adopt what was said on this subject by the Court of Appeals of Kentucky in Campbell v. Potter, 29 S. W. 139: “This act of appellee is not conclusive of the question but is simply a fact in connection with the other facts proven to aid the court to determine whether or not the removal of the appellee from the premises was permanent or temporary. The court holds that the acts of registration and voting are not sufficient to overcome the weight of the testimony Avhich conduces to prove that the removal was temporary. This court has held that the homestead right is never forfeited where there has been an occupancy and then a temporary removal with an intention to return and make the premises a home.” [Warehouse v. Thompson, 49 S. W. 446; Imhoff v. Lipe, 44 N. E. 493; Corey v. Schuster, 62 N. W. 470; Robinson v. Charleton, 104 Ia. 298; Stoneware Co. v. McCrossan, 85 N. W. 1019; Settlemoyer v. Mears, 80 S. W. 1047.]
The judgment is affirmed.
