Cowgell v. Warrington

• Decision Date: 22 July 1885
• Citation: 66 Iowa 666,24 N.W. 266
• Parties: COWGELL v. WARRINGTON.
• Court: Iowa Supreme Court

66 Iowa 666

24 N.W. 266

COWGELL

v.WARRINGTON.

Supreme Court of Iowa.

Filed July 22, 1885.

Appeal from Montgomery district court.

Action in chancery to enforce the specific performance of a contract to convey land, and for other relief. A decree for specific performance was denied, but a judgment for damages in the sum of $1,300 was rendered against defendant. Other facts of the case appear in the opinion. Both parties appealed; the plaintiff, first.A. M. Walters and Smith McPherson, for plaintiff.

F. P. Greenlee, W. S. Straun, and M. W. Morsman, for defendant.

BECK, C. J.

1. The petition alleges that defendant entered into a written contract with plaintiff for the sale of a certain house and lot. The terms of the contract need not be set out. It is also alleged that, by the agreement of the parties, defendant was to execute a mortgage to secure certain notes connected with the transaction, but, through oversight or mistake, this agreement was not written in the contract. Plaintiff prays that the contract be reformed to accord with the agreement of the parties. The defendant admits the execution of the contract, but, as a defense to the action, alleges that the house and lot is his homestead, and that, his wife not having concurred in and executed the contract, it is void. The facts established without conflict in the evidence are substantially as follows: The defendant was the owner of a farm of 320 acres, upon which he, with his wife and family, had for many years resided. He sold his farm in June, 1883, for $11,000, receiving but a part of the purchase money, $4,000, prior to the execution of the contract with plaintiff. He gave possession of the farm to the purchaser, February 13th, having, on the eighth day of the same month, executed to him a deed. After the sale of his farm, he proceeded to select another home, and on the eighteenth of January purchased the property in question. It was his purpose to reside upon this property, and to make it his home, but he had not moved into the house in question when the contract with plaintiff was made. He commenced the actual occupancy of the property with his family as a home on the fifteenth of February. Plaintiff's wife did not concur in and sign the contract with plaintiff.

2. Under the statutes of the state, plaintiff and his wife held a homestead in the 40 acres of the farm upon which his dwelling-house was situated. Code, § 1990, provides that “a conveyance or incumbrance [of the homestead] by the owner is of no validity, unless the husband and wife, if the owner is married, concur in and sign the same joint instrument.” If the property in controversy was the homestead of defendant and his wife at the time of the execution of the contract with plaintiff, it is of no validity. Was the property involved in this action plaintiff's homestead when the contract was executed? Plaintiff had determined to change his place of residence,--to sell his old homestead and acquire a new one. This the statute authorized him to do. See Code, § 2000. The law would secure to him a reasonable time in which to make the change, to purchase the new homestead, and move into it. The acts of purchasing the new homestead and moving into it could not be simultaneous. After the purchase he would be allowed a reasonable time to make the change, and remove his family to his new home. It is plain that during the time intervening between the purchase of the new house and the moment of its actual occupation by plaintiff, it was his homestead. He had parted with his old home and bought a new one. If the homestead rights did not attach upon the purchase, and creditors or others could, upon contract of the husband, wrest it from the wife and family, it would be impossible for a change in the homestead to be made without the wife exposing to hazard her homestead rights. But this the law will not permit, for the statute which authorizes the change of homestead does not contemplate that, by attempting to exercise the rights conferred by it, the homestead itself may be lost. In support of these views, see Robb v. McBride, 28 Iowa, 386;Benham v. Chamberlain, 39 Iowa, 358;Neal v. Coe, 35...