Elliott v. Till
| Decision Date | 05 March 1935 |
| Docket Number | 42797. |
| Citation | 259 N.W. 460,219 Iowa 649 |
| Parties | ELLIOTT v. TILL et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; Allan A. Herrick, Judge.
Suit by plaintiff to enjoin sale under execution of claimed homestead. Decree of the court sustaining the plaintiff except awarding the defendant Till a lien on the property in the sum of $753.43.
Affirmed.
Kelly Shuttleworth & McManus, and Judson E. Piper, all of Des Moines, for appellants.
E. S Tesdell and Harris M. Coggeshall, both of Des Moines, for appellee.
Plaintiff in her petition claimed a homestead in lot 49 Chamberlain's addition to the city of Des Moines, and brought suit to enjoin the sale under an execution by defendant Keeling, sheriff, and against the defendant Till, the holder of the judgment against the plaintiff and others. The defendant Till claimed his judgment was a lien on the premises, and that the property was not the homestead of the plaintiff, and that the judgment was prior to the time the property became a homestead. In an amendment to the petition it was claimed the judgment was entered in 1930. The undisputed facts as shown by the abstract are that in 1913 the plaintiff and her husband built a home in Knoxville, Marion county, Iowa, and occupied it as a home until the fall of 1915, when they rented the home and removed to Des Moines on account of the condition of the parents of plaintiff. The husband was a traveling man and away from home a great deal. The mother and father of plaintiff were old and in ill health.
On moving to Des Moines, two rooms were reserved in the Knoxville home by the Elliotts, plaintiff and her husband, in which they stored their household goods left there. They attempted to sell the home in 1918, and later in that year did sell the same, for $5,250. There was a small mortgage of $1,400 on the place, and the sale was on time, and all the money that came in from the sale was left in a bank at Knoxville, in which one Wright was the cashier, to be invested for the Elliotts. The mother and father of plaintiff died in the fall of 1923. Whenever the Elliotts talked about getting a home, the mother would say: " We won't be here long; you just must not leave us."
The Des Moines home stood in the name of the plaintiff and was at 924 Forty-Third street, which is lot 49 of Chamberlain's addition. The Elliotts were looking for a home prior to 1920; they bought the lot at 924 Forty-Third street and commenced building May 1, 1924, and completed it in July, 1925, and the contract price for the building was $12,600, $7,000 being borrowed of a building and loan association, which money went into the home. Till's judgment was entered November 18, 1930. The note on which it was based was dated January 1, 1925. Judgment was for $8,767.19 and costs, with 8 per cent. interest. Till bought in the property foreclosed on for $5,000. These are the record facts as shown by the practically undisputed testimony.
The first question arising in this case is: Was there an abandonment by the Elliotts of their homestead at Knoxville? If it is shown there was none, the second question arising is: Did the Elliotts in buying the lot at 924 Forty-Third street acquire a homestead right therein?
Mrs. Elliott testified that when they removed to Des Moines it was a temporary arrangement, and that was the reason they stored their household goods; that they attempted to sell the homestead in Knoxville in 1918, and did sell it that fall. It was always in their mind that they would re-invest the money in a home; that as the money came in from the sale of the home it was put in a savings account with instructions that it be re-invested, and that these arrangements were made with Wright, cashier of the bank. The plaintiff's husband testified to the same arrangements, and that when they moved away from Knoxville they looked around for a home, thought maybe they might buy one if they saw something that suited them. That they got an attractive proposition for and sold the Knoxville home, and put the money from that sale in the hands of Wright to re-invest as they were going to establish a home with it; that it was fixed that at any time they wanted the money Wright would take their loan off their hands, and let them have the money for it. That when they wanted the money it had grown from the sale price to seven or eight thousand dollars. That they always had it in mind to use the Knoxville nest egg to build a home, and that soon after the death of the parents of plaintiff they used some of it to buy the lot, and borrowed from the building and loan association to build a home, and that in 1925 the home was finished.
The testimony of Mr. Wright and the correspondence fully corroborates the evidence of the Elliotts in reference to the keeping of the money, the investing of it by Wright, and the purpose they had in mind. In other words, the testimony sustains the claim of the Elliotts that it was their intention to sell the Knoxville home to get proceeds for a new home, and that the Knoxville proceeds were kept intact for that purpose. The evidence also shows that with these proceeds the lot for the new home was bought shortly after the death of the wife's parents, and it also shows all these proceeds went into the new home, along with the money borrowed from the loan company for that purpose.
The plaintiff testified in regard to her arrangements with Mr. Wright: ’ She also testified: " Mr. Wright understood that we might decide at any time to buy or build and that we might need our money, and the understanding was (which you have letters to show) that if at any time we needed the money he would advance the money and take over our paper." She also testified that the proceeds of the homestead sale were left intact until she bought the lot in Des Moines, and again testified: " As soon as we knew we were going to buy, when we knew definitely we were going to buy, Mr. Wright sent us the money; he began to withdraw the papers just as fast as he could, turning over the money." As to the payment of the amounts on the new home in Des Moines, Mrs. Elliott testified that the $5,537 paid on or about December 1, 1924, was all paid from the money which they had been gathering in from the loans which they had made with their homestead money.
Mr. Elliott, husband of plaintiff, testified as to making up their minds to sell the house at Knoxville: He also testified that the amount of money obtained from Knoxville was between $7,500 and $8,000, and that the fund in the Knoxville bank was established in the first place for the purpose of putting it into a home. So could it be said, in the face of the facts and the undisputed testimony, that the Elliotts ever abandoned their homestead rights in the Knoxville home, and especially could it be said bearing in mind the rights that the owner of a homestead has under section 10154 of the Code?
Southwick v. Strong, 255 N.W. 523, a late Iowa case, holds that the homestead character of a farm on which head of household had lived until four or five years before his death was not lost by the fact that he moved to town with his wife to be nearer physicians treating him, where he left his live stock and implements on the farm in care of a son, to whom he rented land, and intended to return as soon as he recovered, and never abandoned such intention.
Rand Lumber Co. v. Atkins, 116 Iowa, 242, 89 N.W. 1104.In this case Atkins owned a homestead in Oskaloosa, Iowa, and in 1896 left the property and moved to Burlington, Iowa, where they lived until some time in 1899, then moved to Mt Pleasant, where they then resided. Atkins voted three different times in Burlington, once " swearing in" his vote. He had said he was going to move to Burlington and live there in order that he might secure work, and was required to reside there in order to get the work. Atkins retained a room in his Oskaloosa home and left several articles of furniture there. His wife went with him to Burlington and to Mt. Pleasant. That he left Oskaloosa not with any thought of permanently abandoning the premises, although no time was fixed for returning. His wife did try to get work for him in Oskaloosa afterwards. In this case it was held that...
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