Brokken v. Baumann
| Decision Date | 14 November 1901 |
| Citation | 88 N.W. 84,10 N.D. 453 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland County; Lauder, J.
Action by Tallak Brokken against Henry J. and Nellie V. Baumann. Judgment for defendants, and plaintiff appeals. Reversed.
Judgment reversed, and decree ordered a foreclosure pursuant to the demand of the complaint.
A. J Bessie and L. B. Everdell, for appellant.
Abandonment is a mixed question of intention and fact. Kuhnert v Conrad, 6 N.D. 215, 69 N.W. 185. Abandonment of realty will be presumed where the party leaves no property or improvement to indicate his intention to return and resume the occupancy of the land. Burke v. Hammond, 79 Pa 172. It is the use with intent combined which impresses the homestead stamp upon real estate. Clark v. Evans, 60 N.W. 862; Waple's Homesteads, 190; Leonard v. Ingraham, 10 N.W. 804. The homestead which the statute exempts is the land with the dwelling house thereon and its appurtenances owned and occupied by a resident of the state. To call the premises the homestead of the debtor and his family, when the debtor resides elsewhere and leaves the premises vacant, would be a misnomer. Tillotson v. Millard, 7 Minn. 424; Folsom v. Carli, 5 Minn. 333; Kelly v. Baker, 10 Minn. 124; Grange v. Gough, 4 P. 1177; Koons v. Rittenhause, 28 Kas. 258. A mere vague intention to return some time in the future, which may be entirely consistent with the fact of having gained a new homestead, will not be sufficient to preserve the homestead right. Donaldson v. Lamprey, 11 N.W. 121; Savings Bank v. Kennedy, 12 N.W. 479; Schoffen v. Landauer, 19 N.W. 95.
J. A. Dwyer and Charles E. Wolfe, for respondents.
Homestead statutes are to be construed liberally in favor of the exemption. Kingman v. O'Callaghan, 4 S.D. 628. Five months before the making of the mortgage in question the land was proved up as a homestead by Henry Baumann, such proof showed actual residence upon the tract for five years preceeding proof. § 2299 Rev. St. U. S. The fact of the establishment of the homestead of the defendants on the land was found by the officers of the land department in a proceeding properly before them. Such finding will not be disturbed. Parsons v. Venske, 4 N.D. 451 and 469; St. Louis Smelting Co. v. Kemp, 104 U.S. 657; Minter v. Crommelin, 18 How. 87; Bangnell v. Broderick, 13 Pet. 448. The fact that the wife does not reside on the place is immaterial. Rosholt v. Mehus, 3 N.D. 513, Griffen v. Nichols, 17 N.W. 63. If the wife, by reason of cruelty of the husband, leaves him and the homestead, she forfeits none of her rights to the homestead thereby. Barker v. Dayton, 28 Wis. 367; Keyes v. Scanlan, 63 Wis. 345; Rosholt v. Mehus, 3 N.D. 513; 9 Am. & Eng. Enc. L. 487. A tract of land does not cease to be a homestead, within the meaning of the law, simply because, at a particular time, there is no house upon it fit to live in. Edmonson v. White, 8 N.D. 72. The homestead right cannot be waived by the husband alone. Beecher v. Baldy, 7 Mich. 488; Dye v. Mann, 10 Mich. 291; King v. Moore, 10 Mich. 538; Comstock v. Comstock, 43 Mich. 515. The acts of Henry Baumann, claimed by plaintiff to be evidence of abandonment, were done after his desertion of Nellie Baumann, and after they had ceased to live together by reason of his neglect, cruelty and desertion, her right was not thereby forfeited. Phillips v. Stauch, 20 Mich. 369; Bruner v. Bateman, 66 Ia. 488; Lies v. DeDiabler, 12 Cal. 329. Defendant's abandonment of the homestead was temporary merely with intention to return, manifested by his voting in the township, claiming it as his residence, in November, 1900. Clark v. Evans, 60 N.W. 862; Holden v. Pinney, 6 Cal. 234; Dunn v. Tozier, 10 Cal. 171; Bradshaw v. Hunt, 57 Ia. 745; Griffen v. Nichols, 17 N.W. 63; Reske v. Reske, 16 N.W. 895.
This is an action to foreclose a mortgage on real estate. The facts material to the issues are as follows: Some time in the year 1892 the defendant Henry J. Baumann made an entry of the land involved, being 160 acres, under and by virtue of the homestead laws of the United States, at the United States land office at Fargo. He was then a single man, but on January 21, 1896, he and the defendant Nellie V. Baumann intermarried, and commenced living together as husband and wife, but not on the land on which he had made homestead entry. They first went to living at her mother's, but for how long does not appear. After that they lived at his father's for six weeks. She then moved back to her mother's, and lived there. Later he followed her to her mother's, but how long he remained there does not appear. Her mother lived about 12 miles from the husband's homestead claim. He had a shanty on such claim, 14x16, of rough boards, not sided, but tar-papered. The furniture kept in this shanty was a stove, some chairs and a bed. The husband had some personal property besides, consisting of two horses, a colt, and a buggy, but it does not appear that such personal property was kept on his homestead claim. The wife never actually lived on this homestead claim, nor was she ever on the land, either before or after the proof. She gave birth to two children after their marriage, only one of them being now alive. The wife has been in poor health at times since their marriage, and unable to do any work for months at a time. The husband is a cripple, having lost one leg, and is not able to do any kind of work on the farm that requires walking. He did not support his wife, but gave her some money at times. She was supported by her mother to a great extent. Their married life was not a happy one, he being cross and disagreeable to her. Some part of this land was under cultivation, and was put into crop each year by one of the neighbors, the husband getting one-fourth share of such crop, until the year 1899. In 1900 and 1901 the land was rented by the defendant Nellie V. Baumann to a tenant, and she received a share of the crops. On September 4, 1897, he received a final receiver's receipt for this land from the Fargo United States land office, after having submitted testimony as to residence on, and cultivation of, the land for five years. Very soon after submitting such final proof he moved the shanty from this land to her mother's place, and fixed it up as a granary. In the fall of 1897, or during the winter of 1898, the husband commenced negotiating for a loan on the land in question from the plaintiff. The loan was made, and the mortgage executed and delivered on February 3, 1898. The note and mortgage in suit purport to have been signed by both defendants, the husband and wife. The wife did not sign the note or mortgage nor acknowledge the execution of the mortgage. Her name attached to these instruments were forgeries. Both the plaintiff and his agents acted without any knowledge or intimation of such forgery. The mortgage was duly recorded in the office of the register of deeds of Richland county. Upon the mortgage was indorsed a certificate by a notary public of the facts, sworn to by a person purporting to have witnessed the signature of the defendant Nellie V. Baumann, as provided by § 3580, Rev. Codes. The affidavit made by such person as such subscribing witness is conceded by the plaintiff to have been wholly false, and nothing is claimed as based on such certificate. The wife was requested to sign such mortgage by persons representing her husband, but she refused to so do, saying that the homestead was hers, and that she wanted it, or at least some of the money they were going to get on the loan. The husband never lived on the land after submitting his testimony to the land office upon his final proof. The date of the receiver's receipt was September 4, 1897. Some time in the fall of 1897 or the winter of 1898 he went into the hotel and restaurant business at Sisseton, S.D. After leaving Sisseton he engaged in selling medicines as a peddler in various localities. The wife received none of the money that was received by him from the loan made of the plaintiff. About September 18, 1900, the defendant Nellie V. Baumann commenced an action for a divorce against the defendant Henry J. Baumann, alleging his failure to support her, willful desertion, and extreme cruelty. The defendant appeared in such action by his attorneys, but such appearance was withdrawn on February 25, 1901, and on February 26, 1901, the court ordered a decree of divorce to be entered. In this action the court assigned the land in question to the wife and awarded her the custody of the infant child. In such findings the land involved in this case, and which was assigned to the wife, was found to have been "the legal and actual homestead of the plaintiff and defendant." Since this divorce was granted and this land assigned to her the plaintiff has not resided thereon but has leased the same to another, she to receive one-fourth of the crop raised on the tillable land, and the same proportion of the hay cut therefrom. The person to whom this land was leased by her did not reside on the land. The defendant Henry J. Baumann did not appear at all in this action. The defendant Nellie V. Baumann appeared and answered by way of general denial, and further answered that at the date of the mortgage attempted to be foreclosed she was the wife of the defendant Henry J. Baumann, and that the land described in such mortgage was then the actual homestead of herself and husband, and that she has never conveyed and waived her rights to, or interest in, the same. The trial court found in her favor upon all the issues involved, and dismissed the action. The plaintiff appeals from such judgment of dismissal, and requests a trial anew of all the issues involved.
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