Dougherty v. White
| Decision Date | 20 November 1924 |
| Docket Number | 22922 |
| Citation | 200 N.W. 884,112 Neb. 675 |
| Parties | CATHERINE DOUGHERTY ET AL., APPELLANTS, v. A. L. WHITE, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dakota county: GUY T. GRAVES JUDGE. Reversed, with directions.
REVERSED.
Kingsbury & Hendrickson, for appellants.
Heard before MORRISSEY, C. J., ROSE, DEAN, GOOD and THOMPSON, JJ.
This is an action to quiet title to a quarter section of land in Dakota county and for an accounting for rents and profits.
Plaintiffs are the children of Bernard Mahon, who died intestate in 1903, owning the land in question. The land was sold in January, 1904, under an execution on a judgment obtained against Mahon in his lifetime, and which after his death was revived as against his administrator before the execution issued. Defendant claims to be the owner of the land by mesne conveyances from the purchaser at the execution sale. Plaintiffs claim that the execution sale was void, first, because the judgment was never revived against them as the heirs of Mahon; second, because the judgment was dormant, no execution having been issued for more than five years after its rendition; and, third, because the land was a homestead and not subject to sale on execution. Defendant asserts that the revival of the judgment against the administrator was all that the law required, and that, the execution having been issued within five years after the revivor as against the administrator, the judgment was not dormant, and charges that Mahon in his lifetime had abandoned his homestead and that the sale under the execution vested a good title in the purchaser. A trial of the issues resulted in a decree for defendant. Plaintiffs appeal.
We will first consider whether the land was, in fact, a homestead at the time the execution issued. The record discloses that Mahon, with his wife and children, had resided upon the farm as their homestead for many years. In 1903 Mahon's wife obtained a divorce and was awarded the custody of the children and a judgment for $ 2,800 alimony. Prior to the decree she, with her children, had left the home and was residing with her parents. After the decree was entered Mahon continued to reside on the land for some time, when he became ill and went to the home of a neighbor, where he died some three or four months later. Previous to his removal, he had rented a part of the farm, but retained the buildings and lived thereon. When he went to the neighbor's home because of his illness, he left in the house and on the farm his personalty, and, some time after he left, the personal property, or at least the live stock and some of the other personal property, was removed from the premises; by whom or at whose direction is not disclosed. There is nothing in the record to indicate whether Mahon, when he went to the neighbor's home while ill, intended to abandon the homestead, or whether he intended to return. We have the bare fact that he was ill and perhaps knew that he was in a critical condition and was not likely to live long, and while in this condition he went to the neighbor's home where he could have proper care and attention.
Do these facts show an abandonment of the homestead? It has always been the policy of this court, as well as of courts generally, to give a liberal construction to the homestead law for the purpose of protecting and preserving the home for those who would be benefited by its provisions. The law is settled that, where a husband and wife reside upon a homestead and the wife dies, the homestead character of the land continues and the surviving husband, although he may have no children or dependents residing with him, may still retain the homestead as such. Palmer v. Sawyer, 74 Neb. 108, 103 N.W. 1088; Dorrington v. Myers, 11 Neb. 388, 9 N.W. 555; Galligher v. Smiley, 28 Neb. 189, 44 N.W. 187. The same rule obtains where the marriage relation has been dissolved by decree of court.
In this case, although the marital relation was dissolved, the husband was still liable for the support of his minor children. He was still, in law, the head of a family and was entitled to claim a homestead right, and that right continued until his death unless, by his voluntary act, he abandoned the homestead. Mahon had no other real estate which he could claim as his home. There is nothing in the record to indicate that it was his purpose to abandon his homestead. The fact that, when ill and with no one to care for him at his home, Mahon sought another place where he could have care does not evince a purpose to abandon the homestead. Suppose that Mahon, instead of going to a neighbor, had gone to a hospital for medical care and treatment. Would it be seriously urged that such an act on his part would work an abandonment of his homestead? It would certainly be a very harsh rule that would so hold and would not be in keeping with the legislative purpose as interpreted by judicial opinion. In our opinion, he did not abandon his homestead. Our statute provides:
"If the homestead was selected from the separate property of either husband or wife, it vests on the death of the person from whose property it was selected, in the survivor, for life, and afterwards in decedent's heirs forever, subject to the power of the decedent to dispose of the same, except the life estate of the survivor, by will." Comp. St. 1922, sec. 2832.
The trial court seems to have adopted the view that because, at his death, Mahon left no spouse surviving, therefore the heirs could not take the homestead divested of any liens for the debts of the decedent. In this we think the court erred. It would be a strange rule that where the husband died, leaving a wife surviving, she could take the property for her lifetime and then his heirs would take it, absolutely free from debt, and, because he left no spouse surviving, they would be cut off from any right to the homestead. Such is not the intention of the statute. The children of Bernard Mahon, on his death, succeeded to his homestead right in the premises.
It appears from the record that the judgment on which the execution sale was had was rendered on July 21, 1898, before a justice of the peace, and on March 1, 1899, a transcript thereof was filed in the office of the clerk of the district court. On November 10, 1903, the judgment was revived as against the administrator of Mahon, and notice of the revivor proceedings was not given to the plaintiffs, who are the children and heirs of Mahon.
Section 8981, Comp. St. 1922, provides: "If either or both the parties die after judgment, and before satisfaction thereof, their representatives, real or personal, or both, as the case may require, may be made parties to the same, in the same manner as is prescribed for reviving actions before judgment; and such judgment may be rendered and execution awarded as might or ought to be given or awarded against the representatives real or personal, or both, of such deceased party."
Section 8973, Comp. St. 1922, relating to the revival of actions before judgment, provides: "Upon the death of a defendant in an action, wherein the right, or any part thereof, survives against his personal representative, the revivor shall be against him; and it may also be against the heirs or devisees of the defendant, or both, when the right of action, or any part thereof, survives against them."
The precise question here involved seems not to have been heretofore determined by this court, but there have been actions before this court in which there...
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