Blumer v. Allbright

• Decision Date: 19 March 1902
• Citation: 89 N.W. 809,64 Neb. 249
• Parties: BLUMER v. ALLBRIGHT ET AL.
• Court: Nebraska Supreme Court

64 Neb. 249

89 N.W. 809

BLUMER

v.ALLBRIGHT ET AL.

Supreme Court of Nebraska.

March 19, 1902.

Syllabus by the Court.

1. A departure from the homestead for the purposes of business, pleasure, or health does not constitute an abandonment thereof, unless coupled with such departure is the intention not to return; and the wife cannot be deprived of her homestead right unless she participated in the intention not to return.

2. Under the laws of this state, the acknowledgment of the wife to a deed conveying the homestead is essential to its validity.

3. Evidence examined, and held to sustain the findings of the trial court that the premises in controversy were the homestead of appellee, and that she did not voluntarily execute the deed of conveyance.

Commissioners' opinion. Department No. 1. Appeal from district court, Dodge county; Albert, Judge.

Action by Kate Blumer against Edwin Allbright and others. Judgment for plaintiff, and certain defendants appeal. Affirmed.Brome & Burnett, for appellants.

Dolezal, Cook & Cook, for appellee.

KIRKPATRICK, C.

This is a suit brought in the district court of Dodge county by Kate Blumer against Edwin Allbright and Lizzie Allbright, his wife, and E. F. Blumer, husband of plaintiff, for the purpose of procuring the cancellation of a deed of conveyance alleged to have been executed by Kate Blumer and her husband to Edwin Allbright, 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 Allbright 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 Allbright, 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 Allbright 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 Allbright, 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 & Allbright, 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.” Edwards v. Reid, 39 Neb. 645, 58 N. W. 202, 42 Am. St. Rep. 607;Quigley v. McEvony, 41 Neb. 85, 59 N. W. 767;Mallard v. Bank, 40 Neb. 789, 59 N. W. 511;Dennis v. Bank, 19 Neb. 675, 28 N. W. 512. 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 devest 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 being thus 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 [Iowa] 76 N. W. 681;Newman v. Franklin [Iowa] 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 conductand statements of the husband during the time the family...