Darling v. West

• Citation: 51 Iowa 259,1 N.W. 531
• Parties: A. W. DARLING, APPELLANT, v. GEORGE WEST AND SUSAN WEST, APPELLEES.
• Decision Date: 05 June 1879
• Court: Iowa Supreme Court

51 Iowa 259

1 N.W. 531

A. W. DARLING, APPELLANT,

v.GEORGE WEST AND SUSAN WEST, APPELLEES.

Supreme Court of Iowa.

Filed June 5, 1879.

Appeal from Pottawattamie circuit court.

The plaintiff claims title to a certain forty acres of land, in virtue of a sheriff's deed executed August 8, 1877, and prays judgment for the immediate possession thereof. The defendants for answer allege that the defendant George West is, and for fifteen years has been, the head of a family, and the defendant Susan West for the time mentioned has been the wife of George West; that the real property described in the petition is, and for eight years last past has been, the defendants' homestead; that for six years prior to the purchase of said real estate as a homestead, defendants were the owners of a homestead on which they resided in Harrison County; that in the year 1868 defendants sold their homestead in Harrison County, and, with the identical money received from said sale, about the month of July, 1869, they purchased the homestead on which they have ever since resided; that during the past fifteen years they have neither owned nor occupied any other homestead, except the one in Harrison County and their present homestead; that on the first of August, 1876, the defendant George West selected as his homestead the real estate described in plaintiff's petition, and caused the same to be marked out, platted and recorded as required by §§ 1998 and 1999 of the Code. Plaintiff for reply alleges, that the premises in controversy were purchased by plaintiff at an execution sale, August 7, 1876; that the indebtedness, for the satisfaction of which said execution sale was had, was contracted by the defendant George West on or about the first day of April, 1869, at which time the defendant George West did not own any homestead, but his assets consisted of money, notes, mortgages, choses in action, and personal property to a large amount, and that credit was given to him, and said indebtedness was contracted by him on the strength of his ownershhip of such assets, all subject to execution, the persons extending such credit believing and relying upon the fact that the defendants could have no homestead exemption as against said indebtedness; that the defendants prior to and at the time of said execution sale, represented to plaintiff, his agents and attorneys, and knowingly caused and permitted them to believe, that the defendants had and were entitled to no homestead exemption as against said indebtedness, and that their homestead right accrued in August, 1869, and the plaintiff relying upon said representations and belief, bid and paid for said property the sum of fifteen hundred dollars. The cause was tried to a jury. The defendants introduced evidence tending to sustain all the allegations of their answer. The jury returned a general verdict for the defendant, and the following special findings:

1. Did the defendant George West, with his family, prior to the purchase and occupancy of the homestead in dispute, own and occupy a homestead in Harrison County, this state? Answer. Yes.

2. When did defendant sell his homestead in Harrison County? Answer. In September, 1868.

3. Did he sell the homestead in Harrison County with the intention of investing the proceeds, or a part thereof, in a new homestead? Answer. Yes.

4. Did the defendant actually purchase the new homestead and the one now in dispute with the proceeds of the sale of the former one in Harrison County? Answer. Yes; with a part thereof.

5. Did the defendant West pay for the premises in controversy, together with other lands, out of the proceeds of a sale of about 600 acres of land sold by him at a gross sale in 1868, for about $15,000? Answer. Yes.

6. Did the defendant George West, after the sale of said land referred to in the last question, use the proceeds derived therefrom, or a part thereof, for the purpose of speculation? Answer. Yes; a part thereof.

7. Was any portion of the $15,000 derived by West from the sale of land in September, 1868, set and kept apart as a separate fund for the purchase of a new homestead? Answer. Yes.

8. Did the defendants own or occupy any homestead at the date when the indebtedness for the satisfaction of which the premises in controversy were sold, was contracted by the defendant George West? Answer. No. 9. When did defendants begin to occupy the real estate in controversy as a homestead? Answer. July, 1869.

10. When did the defendant contract the debt upon which judgment was obtained, and upon which execution issued, and his homestead was sold to the plaintiff? Answer. In April, 1869.

11. Did the defendant acquire credit from the plaintiffs in execution on any representation made by him that he had abandoned his homestead, or that he did not intend to claim any homestead? Answer. No.

12. Did H. E. Harper and F. A. Darling & Co. have any knowledge when the indebtedness to them was contracted, that it was the intention of the defendant George West to invest any portion of his means in a homestead? Answer. We do not know.

13. Did the defendant, by means of the homestead selection which has been introduced in evidence, executed by defendant George West under date of August 1, 1876, and recorded in the records of this county, and by means of other...