Kimball v. Wilson

• Decision Date: 20 October 1882
• Parties: KIMBALL v. WILSON.
• Court: Iowa Supreme Court

59 Iowa 638

13 N.W. 748

KIMBALL

v.WILSON.

Supreme Court of Iowa.

Filed October 20, 1882.

Appeal from Warren circuit court.

Action to quiet title to part of the N. W. 1/4 of the S. W. 1/4 of section 26, township 74, range 25 W. The plaintiff avers that he is the owner of the same by virtue of an execution sale and sheriff's deed. The defendant, W. M. Wilson, avers that he is the owner by purchase and conveyance from one N. E. Wilson. There was a decree for the plaintiff. The defendant appeals.Todhunter & Hartman and W. M. Wilson, for appellant.

H. W. Maxwell and A. L. Kimball, for appellee.

ADAMS, J.

Both parties claim through N. E. Wilson. The execution sale to the plaintiff was made upon a judgment against N. E. Wilson rendered by a justice of the peace, but a transcript of which was filed in the circuit court before the debtor sold and conveyed the land to the defendant. It follows that the plaintiff's title must prevail, unless the fact is, as the defendant claims, that the premises at the time of the execution sale were exempt from execution. It is undisputed that from a time prior to the rendition of the judgment until after the execution sale, the premises constituted the execution debtor's homestead. The plaintiff insists, however, that the premises were not exempt for the reason that the debt upon which the execution sale was made was contracted prior to the time when the homestead character attached. The fact appears to be that the debt was for a part of the purchase money. The plaintiff's position, then, must be sustained unless there was a partial exemption by reason of the fact that the premises were purchased in part with the proceeds of a former homestead. The defendant contends that they were. We come, then, to the determination of this question of fact. It is shown clearly enough that the premises were purchased in part with the proceeds of a farm of 40 acres, which was at one time the execution debtor's homestead, and was such at the time of its sale, unless at that time it had been abandoned as a homestead. The farm is in Warren county, and was occupied by the debtor and his family until May, 1873, when he and his family moved to Indianola, the county seat of Warren county, where he entered upon the practice of the law. The sale of the farm was effected about a month later. The removal constituted an abandonment, unless it was designed to be temporary. As to what the design was, we have the testimony of the debtor himself. He says: “I came to town to follow my profession as a lawyer, and made an engagement with H. McNeil. I do not think that I arrived at any conclusion as to whether I would return to the farm or not. I intended to go back to the farm if I could not make a living here.” From this it is abundantly evident that his purpose was to reside in town and pursue his profession permanently if he was able to make a living by it. We find, then, an intention to abandon, qualified by a contingency. But the contingency was one which the debtor intended to avoid. The removal with such intention, we think, constituted an abandonment. The new homestead then being liable for the plaintiff's debt, the judgment...