In re Pope

• Decision Date: 10 January 1900
• Citation: 98 F. 722
• Parties: In re POPE.
• Court: U.S. District Court — Southern District of Iowa

98 F. 722

In re POPE.

United States District Court, S.D. Iowa, Central Division.

January 10, 1900

Dudley & Coffin, for trustee.

James C. Hume, for bankrupt.

SHIRAS District Judge.

This case is submitted to the court upon the facts found and reported by the referee, and the question for determination is whether the referee ruled rightly in holding that the bankrupt is entitled to hold, as exempt, the premises consisting of a house and lot in Des Moines, which she claims as a homestead. It appears that the title to the property is in the bankrupt, and has been since October, 1895, and that the money used in erecting the house was furnished by the bankrupt; that the bankrupt and her husband, John M. Pope began to occupy the premises in August, 1893, as a homestead that in November, 1895, the husband and wife separated, and in April, 1896, the wife, being the bankrupt, obtained a decree of divorce from her husband, the decree being wholly silent as to the homestead rights of the parties. In March 1896, in order to make provision for the taxes accruing on the property, and to meet the interest coming due on a mortgage upon the property, the bankrupt rented the premises for one year, not intending to abandon the premises as a homestead, but with the intent to resume the occupancy thereof, leaving in the house part of her furniture; and this intent she has not changed, although she has continued to rent the premises to the original tenant. It also appears that the bankrupt has no children, but has dependent upon her her mother, whom she supports, and who at times has lived with her daughter in the premises claimed as a homestead. The referee found, as a matter of fact, that the bankrupt, in renting the premises, did not intend to abandon the premises as a home, and still has the purpose to return thereto, and therefore held that she was entitled to have the premises set apart to her as a homestead, under the provisions of the Code of Iowa (section 2971), which enacts that 'the homestead of every family, whether owned by husband or wife, is exempt from judicial sale, where there is no special declaration of statute to the contrary. ' In construing this section, it has been uniformly held by the supreme court of Iowa that a temporary removal from the homestead, and renting it to third parties, would not be deemed to be an abandonment of the homestead, if the party having the homestead right intended to return to the premises, and resume the occupancy thereof. Fyffe v. Beers, 18 Iowa, 4; Davis v. Kelley, 14 Iowa, 523; Morris v. Sargeant, 18 Iowa, 90; Bradshaw v. Hurst, 57 Iowa, 745, 11 N.W. 672; Dunton v. Woodbury, 24 Iowa, 74; Jones v. Blumenstein, 77 Iowa, 361, 42 N.W. 321; Painter v. Steffen, 87 Iowa, 171, 54 N.W. 229.

In the light of the doctrine laid down in the cases cited, and in view of the facts found by the referee which are not contested, it is clear that the referee ruled correctly in holding that the premises, having been the homestead of the husband and wife, did not cease to be homestead of...