Anderson v. Culbert

• Decision Date: 14 December 1880
• Citation: 7 N.W. 508,55 Iowa 233
• Parties: ANDERSON v. CULBERT.
• Court: Iowa Supreme Court

55 Iowa 233

7 N.W. 508

ANDERSON

v.CULBERT.

Supreme Court of Iowa.

Filed December 14, 1880.

Appeal from Howard circuit court.

The plaintiff entered into a contract with the defendant whereby the defendant, in consideration of certain real estate to be conveyed to him, was to convey certain real estate to the plaintiff. The action is brought to compel the defendant to perform his contract specifically. The defendant for answer avers, among other things, that the property which he agreed to convey to the plaintiff was, at the time the agreement was made, and still is, his homestead; that he is a married man, and his wife did not join in the contract. The court dismissed the plaintiff's petition, and plaintiff appeals.Sayre & Woodward and Stoneman & Chapin, for appellant.

H. T. Reed, for appellees.

ADAMS, C. J.

The property of which the plaintiff seeks to obtain a conveyance consists of two lots and a dwelling-house thereon in the town of Cresco. It is undisputed that the defendant was residing upon the property with his family at the time the contract was made, and has resided there ever since. The plaintiff contends, however, that the property did not constitute the defendant's homestead. The evidence shows that the defendant owned a farm in Winneshiek county; that he lived upon it for 15 years, prior to the spring of 1877, when he leased it, and moved to Cresco. About that time he purchased the two lots in question in Cresco, and built a dwelling-house thereon. In September, 1877, he moved with his family into the house, and has continued to reside there since that time. Whether the farm in Winneshiek county lost its homestead character, would depend upon whether the defendant left it with the intention of abandoning it as a home, or whether his removal to Cresco was a mere temporary shift.

The direct evidence upon the point is that of the defendant, who testified that he bought the Cresco property for the purpose of a home. There is some evidence showing that, after he commenced occupying the Cresco property, he talked occasionally of going back to his farm. This could only be material in showing, if it could be deemed to have even that effect, that he never really abandoned the farm as his home; for, if he once abandoned it, the formation of an intention to return, but not acted upon, would not restore to the farm its homestead character, nor take such from the property in Cresco. In our opinion the averment of defendant that the...