Blumer v. Albright
| Decision Date | 19 March 1902 |
| Docket Number | 10,640 |
| Citation | 89 N.W. 809,64 Neb. 249 |
| Parties | KATE BLUMER, APPELLEE, v. EDWIN ALBRIGHT ET AL. APPELLANTS, ET AL. APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dodge county. Heard below before ALBERT, J. Affirmed.
AFFIRMED.
Brome & Burnett and A. G. Ellick, for appellants.
Frank Dolezal, contra.
KIRKPATRICK C. HASTINGS and DAY, CC. concur.
This is a suit brought in the district court for Dodge county by Kate Blumer against Edwin Albright and Lizzie Albright, his wife and E. F. Blumer, husband of plaintiff, for the purpose of procuring the cancelation of a deed of conveyance alleged to have been executed by Kate Blumer and her husband to Edwin Albright, defendant, upon certain lots in the village of Scribner, in Dodge county. Plaintiff alleged in her petition that she was a married woman, that her husband, E. F. Blumer, was made a defendant in the action because he refused to join with her as plaintiff; that they are the owners of lots 1 and 2 in block 5 in the village of Scribner, county of Dodge, and that the same constitute the homestead of herself and husband; that they have two children; and that on or about the 28th day of December, 1897, the defendant Edwin Albright procured the deed in controversy from her by duress and fraud; and that the description of the property in the deed was so fatally defective that it was ineffectual to convey the title. Edwin Albright, appellant herein, filed an answer, which was in effect a general denial. Trial was had, which resulted in a finding and judgment for Kate Blumer, canceling the deed of conveyance, and quieting the title to the premises in her and her husband. From this judgment defendant Albright prosecutes appeal to this court.
Appellant contends, first, that the property in question is not the homestead of appellee and of her husband; second, that the description of the property in the deed is sufficient; and third, that the execution of the deed by appellee was not obtained by fraud or duress. In the view we take of the case, it will only be necessary to consider the first and third contentions of appellant.
It is disclosed by the record that appellee and her husband, with their two children, resided in their home on the lots in question for a number of years prior to 1890 or 1891; that about that time appellant Albright, who was a brother-in-law of appellee's husband, E. F. Blumer, induced the latter to remove to the town of Beemer and go into partnership with him in the grain, coal and live-stock business. About the time this arrangement was entered into, appellee, with her husband and children, removed to Beemer, and resided in that village up to the time of the trial, some six or eight years. While there they occupied a house, the property of the partnership of Blumer & Albright, the rent for which was charged against Blumer on the firm books. The testimony is undisputed that during all this time appellee claimed the property in Scribner, which they rented to other parties, as her homestead. She refused to sell it on that account, and always expressed the expectation of going back to it to live; that she did not expect to remain in Beemer more than five years. There can be no doubt from the evidence that appellee always regarded this property as her homestead, and at no time entertained an intention of abandoning it as such. The rule is well settled in this state that removing from the homestead and residing elsewhere for the purposes of business, health or pleasure, does not work an abandonment of the homestead unless coupled with such removal is the intention not to return. Dennis v. Omaha Nat. Bank, 19 Neb. 675, 28 N.W. 512; Edwards v. Reid, 39 Neb. 645, 58 N.W. 202; Quigley v. McEvony, 41 Neb. 73, 85, 59 N.W. 767; Mallard v. First Nat. Bank, 40 Neb. 784, 789, 59 N.W. 511.
It is contended with much earnestness and ability by counsel for appellant that the husband, being the head of the family, has the right to determine and control the domicile of the family, if he acts in good faith and not fraudulently; that by removing from the homestead, and taking up his abode elsewhere, he can divest both himself and his wife of their homestead right; especially is this true, it is contended where the wife and family accompany the husband to the new abode. Many cases from other states than our own are cited in support of this doctrine. We are unable to adopt this view. It seems very clear from an examination of the provisions of our statute relating to homesteads that the purpose of the legislature was to secure a home, not for the benefit of the husband alone, or of the wife, but for the family as an entirety; and it is accordingly provided that no conveyance of the homestead can be made except by a deed in the execution of which both husband and wife have freely and voluntarily joined. Thus the husband is wholly deprived of his power of alienation unless with the free consent of his wife. To sustain the contention of appellant would result in permitting a dissolute and worthless husband, whose sense of responsibility for the preservation of the family had been blunted by vice and dissipation, to deprive his wife and family of the benefits of the homestead law by simply abandoning it and taking his family with him elsewhere, without regard to the wife's wishes, rights or intentions; the husband thus being empowered to accomplish by indirection what the legislature has sought, by express provision, to prevent him from doing directly. It is not an uncommon thing that the wife, particularly in matters affecting the conservation of the home and the protection of offspring, is more prudent, alert and circumspect, and even tactful, than the husband. In view of the rule that after departure from the homestead, the burden is upon those claiming homestead rights to show that the departure was not coupled with the intention not to return (Conway v. Nichols, 106 Iowa 358, 76 N.W. 681; Newman v. Franklin, 69 Iowa 244, 28 N.W. 579), it is not difficult to conceive how the most grievous injustice might result in confining the inquiry as to intention wholly to the conduct and statements of the husband during the time the family lived elsewhere. The injustice of such a rule could not be better illustrated than in the case at bar. Ed Blumer, the dissipated husband, had grown careless and negligent in his marital obligations, and it is not unlikely that, if he at one time shared in the intention to return to the homestead at Scribner, he had lost all interest in that aspiration; while the wife, on the other hand, would naturally have had her intention in that respect...
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