Robinson v. Charleton

73 N.W. 616, 104 Iowa 296

• Court: Supreme Court of Iowa
• Decided: December 18, 1897
• Status: Published

Opinion

Ladd, J.

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5 Execution was issued November 25,1893, on a judgment for twenty-two dollars and sixty cents, with costs and interest, against James W. Robinson, and levied on eighty acres of land in Pocahontas county, This land was sold as an entirety for fifty dollars and five cents, December 29, 1893, and a sheriff’s deed executed therefor a year later to Oharleton, the judgment plaintiff. There was a mortgage which, with interest and taxes, amounted to nearly eight hundred dollars, constituting a prior lien. At the time of the sale the land was worth twenty-seven dollars and fifty cents per acre. Robinson did not learn of the levy and sale till several days after tlie execution of the sheriff’s deed. This action is brought to set aside the sale and deed because the land sold contained the homestead of the plaintiffs, which was not in any way platted or set apart to them. The defendant answered that the plaintiffs had abandoned their homestead interest in the land. Other issues are raised by the pleadings, but, owing to the view we take of the case, need not be considered. Robinson purchased the land in 1887, and occupied it, with his family, as a home, from 'April, 1888, till December 10, 1890. The homestead character of the land having been thus established, the burden of proof was on the defendant to show its abandonment. Bank v. Baker, 57 Iowa, 197; Bradshaw v. Hurst, 57 Iowa, 745; Boot v. Brewster, 75 Iowa, 631. And, as the debt was contracted while the land was occupied as a homestead, more satisfactory evidence of its abandonment is required than if credit had been extended on the faith that it was subject to the payment of debts. Davis v. Kelley, 14 Iowa, 523. The period of absence is important, but not con-elusive. Dunton v. Woodbury, 24 Iowa, 74. The evidence shows that the plaintiffs moved to Humboldt for the purpose of educating their children, and intended, as soon as this was accomplished, to return to the farm. The stock was sold, but the implements were retained for some time, and finally disposed of because nothing could be obtained for their use. A harrow, corn cultivator, and plow were kept and the last repaired in the summer of 1893, with a view of using it the following spring. Robinson repeatedly refused to sell or exchange the land, giving as a reason that he expected to move on it again. He declined to rent it for more than one year, because he expected to return. The family arranged to do so in the spring of 1894, when the son was to perforin the farm work, and Robinson continue in his employment as traveling salesman. No other home was purchased. Both Robinson and his wife testify to their intention of moving back to the farm, and that this was their abiding purpose from the time they went to Humboldt, in 1890,, to the date of their son’s death, in September, 1893, is. fully established by the evidence. The testimony of alleged statements and admissions either relate to a time subsequent to the sale, or else is discredited or overcome by the weight of evidence. That Robinson talked about exchange of property with those proposing a trade, or said he was not built for farming, or stated what he considered the land worth, if true, does not establish Ms purpose of abandoning it, when considered in the light of the surrounding circumstances. He voted in Humboldt in 1891 and this is a very strong circumstance tending to show a permanent change of residence. He explains it, however, by saying he supposed one might vote “where he resided temporarily and got his washing done.” This erroneous impression is quite common, and we cannot regard the mere fact of voting in a precinct other than that of the homestead conclusive of an intention to abandon it. The point was not decided in Painter v. Steffen, 87 Iowa, 171, and was not regarded controlling in Conway v. Nichols

* (Iowa) (71 N. W. Rep. 183). While, as a general rule, a man will be •presumed to reside where he exercises the right of suffrage, this is subject to such explanations as will show the real intention of the party in removing from the former residence, whether animo revertendi'. See Dennis v. Bank, 19 Neb. 675 (28 N. W. Rep. 512). After the son’s death Mrs. Robinson went to the eastern part of the state, where she remained over two months, and not until her return was the purpose of moving

back to this land ever questioned in the family. It was then thought desirable to have a home near Humboldt, though the evidence leaves it in doubt whether this conclusinon was reached before or after the sale under the execution. The purpose was to sell, and invest the proceeds in another home; and they not only had the fight to do* this, but were entitled to a reasonable time within which to accomplish their object. Code, section 2000; Benham v. Chamberlain, 39 Iowa, 858; Cowgell v. Warrington, 66 Iowa, 666; Mann v. Corrington, 93 Iowa, 109; Schuttloffel v. Collins, 98 Iowa, 576. What will be a reasonable time must depend on the facts of each particular case. If it be conceded that Robinson had concluded to sell and buy another home, the time to which he was entitled, in order to do so> had not elapsed. When the sale occurred, the land included the homestead of the plaintiffs, and must be adjudged void; Linscott v. Lamart, 46 Iowa, 312; Goodrich v. Brown, 63 Iowa, 247; Visek v. Doolittle, 69 Iowa, 602; and, being void, the intention of the plaintiffs thereafter is not material. — Rbvkusbd.

Decided May 14,1897, and Reid out on rehearing. —Reporter.