Williams v. Moody

28 N.W. 510, 35 Minn. 280, 1886 Minn. LEXIS 116

• Court: Supreme Court of Minnesota
• Decided: June 1, 1886
• Status: Published

Opinion

Beeby, J.

Mathews, owning the land in controversy, and no other, ■and together with his wife residing upon and occupying the same as •a homestead, removed therefrom with his wife prior to May 25,1881. At the time of removal he had no intention of returning to reside upon -the land and never afterwards resided thereon, although he and his wife continued to cultivate it, or a portion of it, during 1881,1882, and 1883. On May 25, 1881, he alone executed a mortgage of the land to defendant Moody. The question is whether, on the foregoing facts, the mortgage is valid as against any homestead right of Mathews and his wife. Although a married man cannot make a valid conveyance -of his homestead unless his wife join, (Coles v. Yorks, 28 Minn. 464, 10 N. W. Rep. 775,) there may, without any writing, be an abandonment of it which will terminate its existence as a homestead, and therefore its exemption. Donaldson v. Lamprey, 29 Minn. 18, (11 N. W. Rep. 119;) Fyffe v. Beers, 18 Iowa, 4; Titman v. Moore, 43 Ill. 169; Guiod v. Guiod, 14 Cal. 506, (76 Am. Dec. 441;) McMillan v. Warner, 38 Tex. 410.

An actual removal from the homestead, without any intent to return to it as a home or place of abode, constitutes such abandonment; for it is equivalent to a surrender of all claim to the premises. as a homestead. Donaldson v. Lamprey, supra; McMillan v. Warner, supra; Titman v. Moore, supra; Campbell v. Adair, 45 Miss. 170.

As head of the family, it is for the husband to determine and fix the domicile of the family, including that of the wife. His domicile' is therefore her domicile; so that when he and his wife remove from a homestead, he having no intention of returning, that fixes the character of the removal as an abandonment, for the intent of the husband as head of the family controls, and he has the right to determine whether there shall be a return or not. Titman v. Moore, supra; Guiod v. Guiod, supra; Phillips v. City of Springfield, 39 Ill. 83; Johnston v. Turner, 29 Ark. 280; Brennan v. Wallace, 25 Cal. 108.

Whether any different rule would prevail in ease ,the wife should, be induced to remove from the homestead by some fraudulent practice, we need not, in this instance, inquire. And it is, of course, to. be added that what we have said has no application to the cases of. absconding or desertion, mentioned in the first section of the homestead law.

It follows from the foregoing that at the time when the mortgage-was executed to Moody the land had ceased to be Mathews’s homestead, and that, therefore, as respects any homestead right, the mortgage is valid.

Judgment affirmed.