Boot v. Brewster
| Decision Date | 06 March 1888 |
| Citation | 36 N.W. 649,75 Iowa 631 |
| Parties | BOOT v. BREWSTER et al |
| Court | Iowa Supreme Court |
Decided October, 1888
Appeal from Pottawattamie Circuit Court.
ACTION in equity to set aside the sale on execution of certain real estate, on the ground that the same was the homestead of the plaintiff. The relief asked was granted, and the defendants appeal.
AFFIRMED.
Wright Baldwin & Haldane, for appellant.
Stone & Sims, for appellee.
I.
It clearly appears from the evidence that the plaintiff obtained title to the premises in controversy in 1880, and that he occupied the same as his homestead in November of that year and so continued to occupy the same for the space of about three years thereafter. The defendant Brewster obtained, in 1882, a judgment against the plaintiff on an indebtedness contracted after the acquisition of the homestead. The material question, therefore, is whether there has been an abandonment of such homestead. The plaintiff and his family left the premises in controversy, and resided for a time at Carson, and at Kansas City, from which he returned to Carson. He did not acquire another homestead, but occupied rented property. While at Carson and Kansas City, he was engaged in business as a clerk, or some other capacity, in the employ of other persons. It clearly appears that he left his homestead for business purposes, and for the purpose of obtaining a support for himself and family. When he left the homestead he left therein some household and kitchen furniture, which has remained in the house, or at least has never been removed by the plaintiff. Such homestead has been rented and occupied by others, but it was so rented that the lessee thereof was a tenant at will. At least one person made application to the plaintiff to purchase the property, and the plaintiff named a price he would take for it. The plaintiff testified that he left the homestead for a temporary purpose, and always intended to return. While such evidence of an intention to return cannot be regarded as conclusive, yet it is admissible, and entitled to consideration; and when it appears, as it does in this case, that the homestead was left for the purpose of obtaining a support for the family, it seems to us that an intent to abandon permanently the homestead should not be inferred, but rather an intent to return should be, as such intent must, it seems to us, always exist when the removal when made was for a temporary business purpose. If a person cannot obtain a living and occupy his homestead, for the time being, at least, he must of necessity temporarily abandon it, and such abandonment should not be regarded as permanent. A homestead, when acquired, will be presumed to continue until the contrary appears; the burden in this respect being on the general creditor (First Nat. Bk. of Davenport v. Baker, 57 Iowa 197, 10 N.W. 633; Bradshaw v. Hurst, 57 Iowa 745, 11 N.W. 672), and the defendants, as we think, have failed to establish such fact. The length of time the plaintiff has been absent from the homestead is entitled to consideration, but is not conclusive. Dunton v. Woodbury, 24 Iowa 74. And...
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