Coleman v. Bosworth

• Decision Date: 22 September 1917
• Docket Number: 31321
• Citation: 164 N.W. 238,180 Iowa 975
• Parties: N. R. COLEMAN, Appellee, v. MARY BOSWORTH et al., Appellees, JOHN M. BLAINE, Appellant
• Court: Iowa Supreme Court

164 N.W. 238

180 Iowa 975

N. R. COLEMAN, Appellee, v. MARY BOSWORTH et al., Appellees, JOHN M. BLAINE, Appellant

No. 31321

Supreme Court of Iowa, Des Moines

September 22, 1917

Appeal from Linn District Court.--JOHN T. MOFFIT, Judge.

ADELIA COLEMAN, in January, 1904, died seized of a tract of 116 acres of land in Linn County, Iowa, survived by N. R Coleman, her husband, and several sons and daughters. Judgment was entered against N. R. Coleman, October 2, 1913 in favor of John M. Blaine, appellant herein, and execution was levied upon the interest of N. R. Coleman in her estate and the same advertised for sale to satisfy the judgment in favor of appellant; whereupon, Mary Bosworth and the remaining heirs at law of Adelia Coleman brought suit in which a writ temporarily restraining execution sale thereof was issued. Plaintiffs alleged that they were the absolute owners of all of said real estate, subject only to the homestead right of N. R. Coleman. The defendant Blaine, in answer, denied plaintiffs' ownership, and alleged that N R. Coleman had elected to take his distributive share in the estate of his deceased wife in lieu of homestead, and that the judgment above referred to was in fact a lien upon his undivided interest in said real estate, and prayed for general equitable relief. The cause was tried upon the merits, resulting in the dismissal of plaintiffs' petition, upon the ground that N. R. Coleman had elected to take his distributive share in the estate of his deceased wife, and that plaintiffs had not such interest in the subject matter as that they could maintain said suit; and decreeing said judgment a lien upon said real estate. Upon appeal, the judgment was affirmed. Bosworth v. Blaine, 170 Iowa 296. Thereafter, N. R. Coleman, appellee herein, brought this suit against appellant to quiet title to said real estate against the pretended lien of the Blaine judgment, and against the heirs at law of his deceased wife to have his distributive share set off to him. 30 acres of the 116-acre tract were accordingly set off to appellee out of the homestead 40, so as to include the dwelling house and other improvements thereon, and decree rendered quieting title thereto in plaintiff against the lien of said judgment.

Affirmed.

Randall, Courtney & Harding, for appellant.

Deacon, Good, Sargent & Spangler and Lewis Heins, for appellee.

STEVENS, J. GAYNOR, C. J., LADD, WEAVER and PRESTON, JJ., concur.

OPINION

STEVENS, J.

I.

Appellant contends: (a) That the setting off to plaintiff of his distributive share is, under the statute, a disposal of the homestead, and that the tract set apart to him is not exempt from execution, but subject thereto; and (b) that plaintiff, though not a party of record, was privy to the judgment in Bosworth v. Blaine, supra, and bound thereby, and is therefore estopped to deny the lien of said judgment.

Plaintiff and his deceased wife, for years prior to her death, occupied the premises in question as their homestead, and plaintiff has continuously since the death of his wife resided thereon. Shortly after the death of Adelia Coleman, a new house was erected near the old one, plaintiff and his family occupying the former, and Leslie Coleman, a married son, the latter. Some of the children have at all times resided with plaintiff, and at the time of the trial, a daughter kept house for him. Leslie Coleman had charge of the farm, paying plaintiff some grain rent therefor.

We will first dispose of appellant's contention that the distributive share set off to appellee is subject to execution. In Briggs v. Briggs, 45 Iowa 318, the distributive share of the surviving widow was set off to include the buildings and part of the original homestead. The court, in discussing the question of its exemption from execution, said:

"Before that, she had the right to possess and occupy and enjoy the rents and profits of 40 acres. After that, her estate was extended as to duration, but was circumscribed as to territorial extent. She acquired a right in fee, but it was limited in extent to 26 2/3 acres. The 26 2/3 acres, however, continued to be her homestead, and so continue as long as she occupies it as such with her family. * * * The Singer Manufacturing Company have in no way been prejudiced by this act. She had a right to possess the entire 40 acres, during her life, as a homestead. If she had done so, she could not have had any portion of the 80 acres set off to her in fee, because she would have been in possession of more than one third of its value. If, then, she had continued to occupy the 40 as a homestead, she would have had no interest in the 80 which could have been subjected to the judgment of the manufacturing company. They are placed in no worse condition than they were in before, if their right to this lien is denied. And we are of the opinion that, as the dwelling house and 26 2/3 acres, set apart to plaintiff, have never been divested of their homestead character, no good reason can be given for permitting the judgment in question to become a lien upon them."

In Nye v. Walliker, 46 Iowa 306, the wife's dower was set off so as to include a portion of her husband's estate occupied by her as a homestead before and after his death. The court held that a judgment recovered against the wife after the death of the husband was not a lien thereon.

In Knox v. Hanlon, 48 Iowa 252, the court said:

"But even if it should be conceded that the whole of the debt to defendant was contracted prior to the setting apart of this property to Catherine Hanlon as her distributive share, it did not, upon being so set apart, become liable for this debt. The property in question was the homestead of Catherine Hanlon and her husband. Upon the death of her husband, the homestead became hers. The same property that constituted the homestead was afterwards set apart to her as her distributive share, in fee simple. In Briggs v. Briggs, 45 Iowa 318, we held that, where a wife had her distributive share in her husband's estate assigned to her in fee, including a part of the homestead, it did not become liable for a judgment existing against her at the time."

As bearing upon the question above discussed, see Wilson v. Hardesty, 48 Iowa 515, and In re Estate of Lund, 107 Iowa 264, 77 N.W. 1048.

In Hornbeck v. Brown, 91 Iowa 316, 59 N.W. 33, in which the interest of the survivor was held liable to execution, it appeared that the surviving spouse, who was the judgment debtor, had not and did not intend to occupy his former homestead, but had abandoned the same.

Peebles v. Bunting, 103 Iowa 489, 73 N.W. 882, was a suit brought by the heirs of the deceased husband of the judgment debtor to quiet title to certain lands against the purported liens of judgments rendered against the surviving widow. The widow did not occupy the premises at the time of the commencement of the suit, and had not for about two years, and did not live thereon for a period of seven years at another time. The court held that she had not elected to take the homestead in lieu of dower, and that her distributive share was subject to execution. The court, however, said:

"There is no claim that the land is exempt under the provision of Section 2441 of the Code [1873."] (This section corresponds to Section 3367, Code of 1897.)

In Benjamin & Askwith v. Doerscher, 105 Iowa 391, 75 N.W. 330, the court said:

"It appears conclusively from this answer that there is no purpose to further occupy the homestead left by the husband, but it clearly appears that appellant's intention is to take her distributive share in her husband's estate, and with it make a new home. There is no purpose to preserve the homestead right, instead of taking a distributive share, but the intention is to take the distributive share, which, of itself, defeats the homestead right; and then the claim is that she takes her share of the proceeds of the homestead exempt from liability for her prior debts, because it is her purpose to use that, with the remainder of her distributive share of the estate, to make a new home. The law gives to the surviving wife or husband no such right. No such a claim could be reasonably urged, except on the basis of an existing homestead right. The taking of the distributive share in the estate divests the homestead right. Code, 1873, Sections 2007, 2008; Whitehead v. Conklin, 48 Iowa 478; Butterfield v. Wicks, 44 Iowa 310; Meyer v. Meyer, 23 Iowa 359. It is not made to appear that her distributive share will include the homestead lot or lots, so that, if it could be done, the rule could be made to apply that, where the homestead is set apart as the distributive share of the widow, she takes it exempt from debt contracted prior to that time. See, for such rule, Code, 1873, Section 2441; Knox v. Hanlon, 48 Iowa 252; Briggs v. Briggs, 45 Iowa 318. It is there held that, if the homestead is set apart to the widow as her distributive share, she takes it exempt from debts of hers contracted prior to that time. As we understand the facts of this case, the widow purposes to take her distributive share exempt from liability for her debts, and invest it in a new home. No authority cited sustains such a right."

Edinger v. Bain, 125 Iowa 391, 98 N.W. 568, is apparently in conflict with the holding in Briggs v. Briggs and Knox v. Hanlon, supra; but, as the court cites Benjamin v. Doerscher, 105 Iowa 391, 75 N.W. 330, and Hornbeck v. Brown, 91 Iowa 316, 59 N.W. 33, the decision in each of which rests upon the fact of the abandonment by the surviving spouse of the homestead before the levy, and as, in Edinger v. Bain, supra, the...