Windle v. Brandt

7 N.W. 517, 55 Iowa 221

• Court: Supreme Court of Iowa
• Decided: December 14, 1880
• Status: Published

Opinion

Servers, J.

— Geo. W. Jones owned and occupied as his homestead in 186J and thereafter a parcel of land about ■ninety-nine feet front by one hundred and seventy-one feet deep in the city of Des Moines.

On the 28th day of May, 18T8, he executed a conveyance whereby he conveyed what may be well designated as the west sixty feet to McClain. The house occupied by Jones as a home was situated on the parcel so conveyed.

The conveyance was made in pursuance of an exchange of other real estate owned by McClain, on which was situated a dwelling-house, and three hundred dollars paid Jones. McClain declined to complete the transaction until certain supposed liens were removed. Therefore, the deeds of the respective parties were deposited as escrows until this could _ be accomplished. The liens were removed on or before June 10th, 1878, when'deeds were delivered, and that to McClain filed for record; and the latter moved into the house and took possession of the real estate conveyed to him by Jones on the 21th day of June. Jones also remained in the house with McClain until July 3d. No reservation was made of the possession of the premises by Jones for any length of time.

On July 1st, 1878', Jones conveyed the east thirty-nine feet of what had been the homestead tract to the plaintiff. If the portion of said premises conveyed to the plaintiff was not the homestead of Jones at the time it was so conveyed the defendant is the owner thereof under the sheriff’s sale and deed. As to this question we have to say:—

i. home-of^art'^io®! of homestead character. I. The statute provides that “ 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 homestead.” Code, <5 1991.

It is clear, we think, that to constitute a homestead there must be a bouse situated on real estate which is used as a home.

When Jones voluntarily conveyed to McClain the west sixty feet, on which was situated the house required to constitute a homestead, he parted with his homestead right unless he intended to retain the residue of said premises and thereon erect a house which he intended to use as a home, and thus constitute and make it his homestead. There is'no evidence tending to show such intent, but the contrary, we think, fairly appears.

It is true, we think, that a person may sell and convey his homestead in parcels and at different times, and the purchaser will obtain a good title, notwithstanding there may be judgments against the owner of the homestead. But in making a sale and conveyance of a part care must be taken that it does not operate as an abandonment of the whole, or that the homestead character has not been destroyed. "When Jones conveyed to McClain, the other portion of the premises became segregated therefrom, and incapable of use as a homestead unless there was an intent to so use and occupy it. Givans v. Dewey, 47 Iowa, 414.

2. —:--: termination of occupancy, It is true Jones was in one sense in possession of the house which he had used as a home at the time he conveyed to the plaintiff. But he was a mere tenant at will. This ... . . . „ being so he was not m jiossession by virtue oí a homestead right. A tenancy at the will of another, under the circumstances, is less than and antagonistic to the possession required to constitute a homestead. "When the conveyance was made to McClain, and the latter conveyed to Jones, the premises so conveyed to the latter became his homestead, although he had not taken actual possession thereof, if such was his intent, which was consummated by the actual occupation thereof as a home, and the premises conveyed to McClain became his homestead. It follows that said premises could not be the homestead of both Jones and McClain at the same time.

"When a person sells and conveys his homestead, and at the same time acquires another, the latter is exempt.from execution to the extent of the former. A person, under the statute, may have two homesteads at the same time, but there must be houses thereon which are used as homes. Both are ' not exempt from execution. lie, however, may choose which he will so hold.

In support of their view counsel for the appellant have cited Brown v. Coon, 36 Ill., 243; Fishback v. Lane, Id., 437; Redfern v. Redfern, 38 Id., 512; Shephard v. Cassiday, 20 Texas, 24; Gouhenant v. Cockrell, Id., 96; Wells v. Van Boskirk, 32 Id., 360.

A careful examination of these authorities satisfies us they are not applicable. ,

3. judicial nh'usé ’bVexeration tietondant. II. The judgment and execution under which the defendant claims were against Jones, the defendant and another. The sale under the execution was on November 22d, 1878, at which time the defendant purchased ... . _ , „ , , the premises m controversy. On the 3d day oí December thereafter the portion of the judgment unsatisfied by the sale was assigned to A. W. Brandt, a son of the defendant.

Conceding this assignment to have been in fact made to the plaintiff, or for his use and benefit, as is claimed, we do not see how such fact can affect the validity of the sale and purchase, which had occurred some days previous thereto. The defendant had the right, we think, to purchase the property of Jones at the execution sale, although he was a party to the judgment and execution.

Affirmed.