Charter v. Thomas
| Decision Date | 18 June 1940 |
| Docket Number | 45209. |
| Citation | 292 N.W. 842,228 Iowa 554 |
| Parties | CHARTER v. THOMAS et al. (THOMAS, Intervenor). |
| Court | Iowa Supreme Court |
Appeal from District Court, Linn County; C. J. Haas, Judge.
Suit to enjoin the sale upon execution of property claimed to be a homestead. From decree for plaintiff, defendants appeal.
Affirmed.
R. S Milner, and John D. Randall, both of Cedar Rapids, for appellants.
Carl F. Jordan, of Cedar Rapids, for appellee.
This action was instituted in 1936, to enjoin the sale under general execution of real estate claimed to be the homestead of the judgment debtor. The judgment grew out of an automobile accident in 1935. It was originally for $7,175 and was later reduced by payment of $5,000 thereon. The property levied upon was a house and city lot belonging to plaintiff. The house is a one and one-half story building, 22 feet wide and 40 feet deep, with a basement and with rooms on the first and second floors.
It is conceded by defendants that for many years all of said property had constituted plaintiff's homestead and as such was exempt from execution. However, defendants contend the character of the use and occupancy of a portion of said premises was changed in 1934 by the creation and renting to third parties of a four-room apartment on the second floor of said house. Defendants say these acts constituted an abandonment of this portion of the property as plaintiff's homestead and that said four rooms were thereafter not exempt.
The material facts are not in substantial controversy. Repairs upon the house had become necessary and plaintiff had mortgaged the property to secure funds to make them. Plaintiff testified that in 1934, for the purpose of paying said mortgage, he decided to rent temporarily some of the rooms.
The four rooms on the second floor were prepared for rental as an apartment. Partitions made of beaverboard, which plaintiff testified were temporary, were erected to separate these rooms from the remainder of the house. Separate entrances were made by removing a window in the front and a window in the rear of the house and replacing them with doors. These windows were preserved that they might be later replaced. A beaverboard partition was erected beside the front stairway and a rear stairway was constructed. Plaintiff and his wife continued to occupy the remainder of the house including a room on the second floor, walled off with beaverboard and the several rooms on the first floor, some of which plaintiff partitioned with beaverboard. The house was heated with one furnace and there was only one water meter but separate gas and electric meters were installed. The tenants occupying the rooms on the second floor had no lease.
Plaintiff testified that when his three children were at home he needed the entire house; that he didn't know when some of them might return and want a place to live and that the alterations were temporary in character.
The decree enjoined the enforcement of the judgment against any part of the premises. Defendants have...
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