Davis v. Kelly

• Decision Date: 01 October 1901
• Citation: 87 N.W. 347,62 Neb. 642
• Parties: DAVIS v. KELLY ET AL.
• Court: Nebraska Supreme Court

62 Neb. 642

87 N.W. 347

DAVIS

v.KELLY ET AL.

Supreme Court of Nebraska.

Oct. 1, 1901.

Syllabus by the Court.

1. Where property not occupied by the claimant and his family is claimed as a homestead, such claimant must show either a constructive occupancy, as in the case of temporary absence without abandonment, or a bona fide present intention and preparation to occupy, followed by actual occupancy within a reasonable time.

2. Bare intention to occupy such property as a homestead at some future time is not of itself sufficient to impress it with the character of a homestead while it remains unoccupied. There must be a present intention so to occupy the property as soon as circumstances reasonably permit, evidenced by acts of preparation indicating such intention.

3. No one can have two homesteads at the same time. Hence, where the claimant and his family are actually occupying property belonging to him as a home, intending to remain for the present, an intention to remove to some other tract owned by him, and occupy the latter as a home at some indefinite future period, will not enable him to claim it as a homestead.

4. A certificate of acknowledgment in proper form may be impeached only by clear and convincing evidence of its falsity.

Error to district court, Douglas county; Scott, Judge.

Action by Leonard A. Davis against Allen R. Kelly and others. Judgment for defendants, and plaintiff brings error. Reversed.Montgomery & Hall, for plaintiff in error.

Sutton & Lambert, for defendants in error.

POUND, C.

In June, 1892, the defendant Allen R. Kelly borrowed $1,500 of the plaintiff, and as security for such loan executed a mortgage upon the property in controversy. At that time the property was wholly vacant and unoccupied. The money was used in erecting a house upon it, but, proving insufficient for that purpose, Kelly obtained of the plaintiff the further sum of $500, and in October, 1892, executed a new mortgage for $2,000, the old one being released. Mrs. Kelly's name appeared to be signed to this mortgage, and there is a certificate of a notary that she duly acknowledged it before him as her voluntary act and deed. The house was completed in the fall of 1892, and was rented to tenants for the next four years. It was not occupied by Kelly and his wife until October, 1896. When the mortgage was executed, they lived in a house upon an adjoining lot, which we think the evidence fairly shows belonged to Kelly. This lot was sold about that time, but, instead of moving into the property in controversy, they occupied another house in a different block, which he owned also. This suit was brought to foreclose the mortgage last executed. The defendants Kelly answered separately, alleging that the property was their homestead at the time the mortgage was executed, and that Mrs. Kelly neither signed nor acknowledged the instrument. On the trial it appeared and was admitted that she signed it, and we think it was made reasonably to appear that she did so knowingly and understandingly. But she testified that she did not acknowledge the instrument, and the lower court, holding the certificate of acknowledgment sufficiently impeached, and that the property had been shown to have been a homestead at the date of the mortgage, rendered a decree for the defendants, and dismissed the suit.

We think the trial judge was clearly wrong upon both points. It is true that actual occupancy is not absolutely required in every case where a homestead is claimed. Nevertheless, occupancy is the test established by the statute, and it is only through liberal construction, to meet the beneficent ends of the statute, that certain substitutes therefor have been permitted. The most usual is what has been called “constructive occupancy,” as, for example, where property occupied as a homestead has been temporarily vacated without abandonment, and with a bona fide and subsisting intention to return. Another has been permitted in case of vacant and unimproved property in present process of preparation for a home, and in other cases where property purchased for use as a homestead is for some temporary reason not available as such, but is preparing as fast as may reasonably be expected. In such cases, where there is a bona fide present intention and preparation to occupy the property as a homestead, followed by actual occupancy within a reasonable time, it is entirely within the bounds of legitimate construction to hold the property as a homestead. Hanlon v. Pollard, 17 Neb. 368, 22 N. W. 767;Swaney v. Hutchins, 13 Neb. 266, 13 N. W. 282. But it does not follow that a bare intention to occupy such property at some future time will, of itself, suffice to impress the property with the character of a homestead while it remains unoccupied. Much less, where an unreasonably long period intervenes, during which tenants are placed in possession, and the claimant and his family actually live upon other land belonging to him, should such a vague and general intention suffice to make the belated...