Guy v. Downs
| Decision Date | 05 April 1882 |
| Citation | 12 N.W. 8,12 Neb. 532 |
| Parties | GEORGE H. GUY, PLAINTIFF IN ERROR, v. C. H. DOWNS, ET AL., DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before SAVAGE, J.
AFFIRMED.
W. J Connell, for plaintiff in error.
John D Howe, for defendant in error.
This was an action in equity brought by the defendant in error against the plaintiff in error, who was the sheriff of Douglas county, and others, to enjoin the sale of certain premises claimed to be exempt as a part of the homestead of the plaintiffs in said action, and which had been levied upon and advertised for sale by the said sheriff, to satisfy an execution against the said plaintiffs. On the trial the district court found the issues for the plaintiffs, and the injunction was made perpetual by final decree. The cause is brought to this court on error.
The only error assigned is, that said judgment is against law, and not sustained by the evidence.
The testimony is to the effect that C. H. Downs and Cornelia C. Downs, husband and wife, together with their family, for many years owned and occupied lots one and two, in block eighty-seven, in the city of Omaha, as their homestead. These lots were improved by a large two story house, situated about the center of the two lots, with the usual outbuildings, and a horse barn, situated west of the house, and extending nearly to the west line of the west lot. This barn had been built by C. H. Downs for domestic use, and was occupied by him for stabling his family horses and cow, storing hay, etc. About the year 1876, C. H. Downs, having been unfortunate in financial transactions and being reduced in circumstances, temporarily left Omaha, and went to some part of the mining country and engaged in prospecting for mines, leaving his family, consisting of his wife and two daughters, together with his wife's father, in the occupancy of the homestead. Some time after the departure of C. H. Downs, the family, no longer keeping horses, had but little present use for the barn, and rented the same out for one year to parties for the purpose of a livery or boarding stable, reserving however "the right of necessary room in the loft for the use of storing a few stoves, also reserving the right of way about the said premises to care for one cow, and room for hay for said cow." After the lessee had taken possession of the barn under said lease, the twenty-two feet of the lot on which the said barn stands was levied on, and advertised for sale, by the plaintiff in error.
The only question in the case is whether the leasing of the barn as above stated amounted to an abandonment of the right of exemption in the property levied upon. It is not claimed, nor could it be, in view of the whole current of authorities that the going away of C. H. Downs, in the manner and for the purpose above stated, amounted to an abandonment of his homestead right. This being the case, it may be pertinent to consider whether the doing of any act in his absence, by his wife, or any other person, without his authority, could have the effect to deprive him of this important right...
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