77 Neb. 363 | Neb. | 1906
Lead Opinion
This was an action to quiet title in a quarter section of land situated in Harlan county, Nebraska. There is no disputed fact in the record. Everything that is essential to the determination of the cause is either admitted in the pleadings or was testified to, without contradiction, at the trial in the court below. The facts established by the record are that plaintiff, William Weatherington, homesteaded the land in controversy in the year 1883, and resided thereon with his wife and minor children; that later in the same year, for the purpose of transferring the legal title from himself to his wife, he conveyed the premises to one Flansburg for the express consideration of $600, and Flansburg, as a part of the same transaction, reconveyed the premises to the wife, Mrs. Eliza Weatherington; that in 1890 Mrs. Weatherington and her husband executed a mortgage on the premises to secure a loan of $770, due five years after date; that they continued to live with their family on the premises until 1891, when plaintiff Weatherington was adjudged insane by the board of insanity of Harlan county and committed to the asylum at Lincoln, where he remained until 1894, Avhen he was transferred to the asylum at Hastings, where he was confined and treated until July, 1904, when he was adjudged sane and restored to his liberty;
After plaintiff Weatherington had been discharged from the asylum he was taken to his family in Illinois, but did no act indicating an adoption of the Illinois residence as his home. He went from there- to the state of Ohio to transact some business, and then returned to Nebraska, and on the 1st day of December, 1904, instituted the case at bar, in which he asked to have the title to the land quieted in himself, and the deed from himself and wife to
Section 4, ch. 36, Comp. St. 1903, provides: “The. homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife.” The requirements of this section of the statute have been strictly adhered to in a long-line of decisions in this court. See Aultman & Taylor Co. v. Jenkins, 19 Neb. 209; Swift v. Dewey, 20 Neb. 107; Larson v. Butts, 22 Neb. 370; Whitlock v. Gosson, 35 Neb. 829; Giles v. Miller, 36 Neb. 346; Clarke v. Koenig, 36 Neb. 572; Violet v. Rose, 39 Neb. 660; Havemeyer v. Dahn, 48 Neb. 536; Teske v. Dittberner, 63 Neb. 607. The appellant Smith, while conceding the trend of these decisions, contends that, as he was a purchaser for value from his grantors, who were then in possession of the land, and as he had no actual knowledge of the state of the title, other than such as the record disclosed, he took
“Estoppel will not supply the want of power, or malte valid an act prohibited by express provisions of law.. The statute in effect declares a conveyance or incumbrance of the family homestead by the husband alone void not only as to the wife, but also as to the husband himself. Therefore neither is estopped from asserting the homestead right as against the grantee or mortgagee.”
In Blumer v. Albright, 64 Neb. 249, it is held that a departure from the homestead for pleasure, business or health, does not constitute an abandonment thereof, and that neither spouse can abandon for the other without his, or her, free consent. In the still later case of Palmer v. Sawyer, 74 Neb. 108, it is held that, where a homestead right once exists, the person entitled to it cannot be divested thereof by any act or influence beyond his own volition.
Now, while it is clear from the evidence that Mrs. Weatherington departed from Nebraska with the intention of abandoning her homestead, and had such intention at the time she executed the deed to Cross and Johnston, it is equally clear that plaintiff Weatherington, at the time of the execution of such deed, was merely absent from the homestead for treatment for his mental disorder, without the legal capacity to contemplate an abandonment of his homestead right. As the wife could not abandon for the husband without his consent, his right remained unimpaired by her attempted change of domicile. Again, if we should concede that an estoppel by record could be invoked to defeat the homestead right of either spouse under the law of this state, it is a rule universally recognized that, if a party relies upon a record to establish his. title to realty and to relieve him of
As there is no complaint concerning the items contained in the accounting by either of the litigants, this disposes of the appellant’s case; and with reference to the plaintiff’s complaint in his cross-appeal, it is sufficient to say that the evidence clearly shows that he was in full possession of his mental powers at the time he conveyed the legal title to the land through a conduit to his wife. While, in fact, no consideration passed for this conveyance, it was made for the express purpose of vesting the legal estate in the wife, and as her deed to Cross and Johnston was absolutely void, neither she nor the plaintiff can be estopped by it.
By the Court: For the reasons given in the foregoing-opinion, the judgment of the district court is
Affirmed.
Rehearing
The following opinion on rehearing was filed June 7, 1907. Judgment of affirmance adhered to:.
Homestead: Abandonment: .Conveyance. Neither the husband nor the wife can abandon the family homestead and thereafter sell and convey the same to another to the exclusion of the homestead right of an insane spouse.
Our former opinion, ante, p. 363, fully states the facts in controversy in this case. We were urged on the rehearing to reverse our former judgment, and establish the rule that under our homestead law, where the wife becomes the head of the family by reason of.the insanity of the husband, she may abandon the homestead, change the domicile, and convey the homestead to a purchaser without the knowledge or consent of the husband. Section 4, cli. 36, Comp. St. 1905, provides: “The homestead .of a married person cannot he conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife.” It has ever been the policy of this court to strictly adhere to the letter and spirit of this statute. Speaking of this act the court said, in Whitlock v. Gosson, 35 Neb. 829:
“Here .is a plain prohibition against the incumbrance of the homestead without the joint act of both husband and wife. It contains no exception with respect to an absent or insane husband or wife.”
And it was held in that case that Mrs. G-osson, who was
In Palmer v. Sawyer, 74 Neb. 108, it was said: “A homestead is a parcel, of land on which the family resides, and which is to them a home. It is constituted by the two acts of selection and residence, in compliance with the tumis of the law conferring it. When these things exist bona fide, the essential elements of the homestead right exist, of which the persons entitled to it cannot be divested by acts or influences beyond their volition.”
In the case of Way v. Scott, 118 Ia. 197, the.plaintiff claimed title to the premises in question by virtue of a sheriff’s deed based upon a mortgage executed by one Wcott, the owner of the homestead, and in the execution of which Ann Scott, his wife, did not join. At the time the mortgage was executed, the wife was confined in an insane asylum. The court said:
“We think the evidence clearly shows an abandonment, of the homestead by the father, hut the Avife was entitled to the same right therein until it Avas cut off by proper proceedings, and the fact that she was then in an insane asylum Avould not deprive her of this right.”
The authorities seem to be unanimous that the insanity of one spouse does not withdraw him or her from the protection of the homestead law, and a conAeyance of the homestead, and a conveyance by the other is'void.
We are asked, however, to hold that the domicile of an insane husband may be changed by the wife from one state to another, without his knowledge or consent and without his bodily removal. The courts have been very reluctant to assent to involuntary changes of the domicile of minors, or of persons non compos mentis, and yet this rule would put it in the power of any woman, if her Irasband should be so unfortunate as to become insane, to sell the home, which he may have acquired by years of toil, against his Avill, remove him from the state of his domicile and require
“Neither the death of the wife, nor her abandonment of her husband, nor the arrival at full age and departure from the parental roof of all the sons and daughters, would have the effect of dismantling the homestead of the protection of the exemption law.”
In the case at bar the wife apparently abandoned the husband, for she left him in the insane asylum and departed from the state of his residence. As was said in Palmer v. Sawyer, supra:
“When a homestead has been selected by the head of a family, he becomes invested with a right or an estate in said homestead, which cannot be defeated by the death or abandonment of the home by other members of the family who occupy it at the time of its selection.”
While it is possible that the homestead in question would have been lost by a foreclosure of the mortgage, which had been given thereon by both the husband and wife, if Mrs. Weatherington had not sold it, yet that contingency should not influence us in our decision of this question. If such an event had happened it would have been the result of the vqluntary action of both husband and wife, and a failure to realize a sufficient sum from
For the foregoing reasons, we are of opinion that our former judgment is right, and it is therefore adhered to.
AFFIRMED.
Dissenting Opinion
dissenting.
The facts in this case are not in dispute. They are quite fully stated in the former opinion, ante, p. 363. It appears that for about three years after Mr. Weathering-ton became insane Mrs. Weatlierington maintained herself and children upon the homestead, when she removed the family therefrom, and went to the state of Illinois and established a home there, without any intention of returning to the premises in question. The fourth paragraph of the syllabus of the former opinion is:
“Neither spouse can abandon the homestead for the other without his, or her, free consent.”
This is the principal proposition discussed in the former oiiinion, and in its support two cases are cited: Blumer v. Albright, 64 Neb. 249; Palmer v. Sawyer, 74 Neb. 108. The provision of the statute that “the homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife” (Comp. St. ch. 36, sec. 4) is quoted in the opinion, and many of the numerous decisions of his court enforcing that provision of the statute are cited. This language of
The object of the homestead law is to preserve a home for the family. Its humane purposes are for the benefit of the children, as well as for the head of the family. It may be abandoned or conveyed without the consent of the minor members of the family, because their very helplessness renders them incompetent to judge of their oAvn best interest, and not because the law is less tender of their rights or their welfare than it is of the homestead
The husband is not alAvays the head of the family. “A head of a family is one Avho controls, supervises, and manages the affairs about the house." 21 Cyc. 467. A married woman on whom a family is dependent for maintenance is the head of the family, the husband being an invalid. Schaller v. Kurtz, 25 Neb. 655. And in State v. Houck, 32 Neb. 525, Avhere the husband was a cripple,
In McKnight v. Dudley, 148 Fed. 204, the circuit court of appeals of the sixth circuit said: “It is true the husband is designated as the head of the family and given the right to choose a reasonable place of abode, but, of course, this right exists only while he is sane.. When he was placed in the asylum, his wife became the head of the family, the burden of support fell upon her and the right to choose a place of abode went with it.”
A liberal construction of our statutes for the purpose of preserving the home will consider the wife, who is supporting herself and her minor children, as the head of the family when for any reason the husband is entirely incapacitated to take that position. The head of a family whose spouse is utterly incapacitated may change the domicile of the family when circumstances beyond her control compel such action. When Mrs. Weatherington removed the family to Illinois, she changed the domicile of the family. Her husband had been incapacitated for three years. It was believed by( those most capable of judging that he would never be competent to act rationally for himself or for the family. When the homestead had been abandoned for two years, and a new home was being procured, she sold her farm and made her home in Illinois for nearly ten years longer, before any question was raised as to her right to abandon the homestead. Five years after the farm was abandoned as a homestead this plaintiff bought it in good faith, for full value, and
There are other important matters involved in the case which seem to demand a reversal of the judgment, and I cannot concur in disregarding them.