Knorr v. Lohr

78 N.W. 904, 108 Iowa 181

• Court: Supreme Court of Iowa
• Decided: April 8, 1899
• Status: Published

Opinion

GiveN, J.

— I. Joseph Stmton, now deceased, was the owner in fee of the southwest one-fourth of section 28, and the northwest one^fourth of section 34, township 92, range 41, Plymouth county, Iowa, and had been in the use and possession thereof for many years. Prior to 1889 he and his family resided on that part" in section 34, the buildings occupied being upon the northwest one-fourth of said northwest one-fourth oí section 34. In 1889, he removed with his family to the land in section 28, the buildings on which are upon the southwest one-fourth of that quarter section. On September 15, 1893, Joseph Stinton executed a warranty deed of all of said lands to his wife Sophia, for the recited consideration of nine thousand six-hundred dollars, but in fact without any consideration. This deed was subject to.mortgages on the lands aggregating four thousand two hundred and fifty, dollars, and it was not filed for record until March 1, 1895. Joseph Stinton was largely indebted at the time he executed this deed, and evidently made it to hinder and delay his creditors, — a fact that Mrs. Stinton must have known, though she seems to have had little understanding of business matters or of this transaction. Mr.- Stinton and his fámily continued thereafter to reside upon the land in section 28, and he to use and control all of the land as before, up to the time.of his death, March 2, 1895, after which Mrs. Stinton and her family continued to occupy the home and to use all of the land, up to July 8, 1895. On that date, Mrs.' • Stinton, for the recited consideration of ten thousand dollars, but in fact for the consideration of two hundred, dollars, conveyed all of said land to the plaintiffs, warranting the title except as to incumbrances. The defendant W. N. Lohr had a judgment for.one hundred and twenty-two dollars and sixty-five cents against Joseph Stinton, upon which execution was issued, and placed in the hands of the defendant W. M. Boyle, sheriff, for service. On the twenty-sixth day of July, 1894, the sheriff levied, this execution upon all of said lands, and advertised the sanie for sale. Notice of said levy and sale was duly published, and was served on Joseph Stinton on the twenty-seventh day of July, 1894. Notice was also served on him on the fifteenth day of August, 1894, to select- his homestead right in said land, and on said day Joseph Stinton signed in writing his selection of the northwest one-fourth of the northwest one-fouith of said section 34. - On August 26, 1894, all of said land, except that selected by Mr. Stinton as a homestead, was sold to the defendant W. F. Lohr, in satisfaction of his judgment, .and a certificate of sale issued to him. At the time of these proceedings, neither of the defendants had any knowledge, actual or constructive, of said conveyance from Joseph Stinton to his wife. The district court-decreed the execution sale valid as to the land in section 34 which was sold, and invalid as to all the land in section 28. The reason for holding the sale void as to the lands in section 28 was that it embraced the homestead of Joseph Stinton, and that the sheriff had failed to set it off to him."

1 II. The conveyance from Joseph Stinton to his wife was without consideration, and to hinder and delay creditors; and it is therefore void as to the creditors, and Mrs. Stinton took nothing under it, as to them. The plaintiffs took nothing by the conveyance from Mrs. Stinton, except such rights as she, as widow, had in the land. Mrs. Stinton never had possession of the land by virtue of the deed to her; her possession was the possession of wife and widow only., Joseph Stinton being the owner of the land, was the proper person to be notified to select the homestead, and had the right, primarily, if not exclusively, to make the selection. Ehrck v. Ehrck, 106 Iowa, 614. It will be observed that the family was, and had been since 1889, residing on the land in section 28, and that Mr. Stinton’s selection was of land in section 34, upon which the buildings in that section were located. “The homestead must embrace the house used as a home by the owner thereof, and if he has two or more houses thus used by him at different times and places, he may select which he will retain as his homtstead.” Code 1813, section 1994; present Code, section 2977. Clearly, the homestead must embrace the house used as a home, and none other can be selected; but, if there are two so used either may be retained. The 2 house in section "34 had not been used as a home by Stinton or his family for five years -preceding the selection, and there is no evidence of a purpose to ever again so use it; but, on tbe contrary, tbe family continued to live In section 28 long after this selection was made. The selection was not a choice between two bouses used as a home, as but one was being so used, and it was not a selection embracing tbe bouse used as a home; therefore it was unauthorized and void. It is suggested that by so selecting, Mr. 3 Stinton abandoned the homestead in section 28; but not so; surely not, as to the homestead rights of his wife. There being no valid selection of a homestead, it is as though none were made, and the sheriff should have caused the homestead to be set apart in the lands in section 28, so as to embrace the house then used by the owner-as a home. The decree of the district court is correct, and is AFFIRMED.