Kunauntubbee v. Greer
| Decision Date | 25 March 1958 |
| Docket Number | No. 36970,36970 |
| Citation | 323 P.2d 725,1958 OK 76 |
| Parties | Joseph KUNAUNTUBBEE and Malinda Kunauntubbee, Plaintiffs in Error, v. M. S. GREER, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. A homestead, once established, retains its constitutional exemption until the owner voluntarily changes its character either by disposing of the property, with the concurrence of his wife or by their leaving it with the intention, or forming the intention after leaving, of not returning and occupying it as a homestead.
2. On the question of abandonment of homestead, the intention to abandon is the controlling fact to be determined, and whether a homestead has been abandoned is a question of fact, ascertainable from the circumstances surrounding the particular transaction, to be established in each case by clear and convincing evidence; and, abandonment having been once established, the homestead can only be re-established by acts showing a present intent to reoccupy the property as a home.
3. In a case of purely equitable cognizance, this court on appeal will review and weigh the evidence, but will not reverse the judgment unless it can be said that it is clearly against the weight thereof.
4. Record examined and judgment found not to be against the clear weight of the evidence.
Appeal from the District Court of Murray County; W. J. Monroe, Judge.
Action to quiet title. Judgment for defendant. Plaintiffs appeal. Affirmed.
T. H. Ottesen, Sulphur, for plaintiffs in error.
Harold Springer, Ardmore, for defendant in error.
Plaintiffs in error, Joseph Kunauntubbee et ux., appeal from a judgment of the District Court of Murray County, Oklahoma, in a quiet title action (which action was filed March 9, 1953), wherein the court found that the lands involved did not constitute the homestead of the plaintiffs therein and held valid deeds executed by Joseph Kunauntubbee, as sole owner and sole grantor, in which he, without being joined by his wife, conveyed the fee-simple title to one hundred acres of land to the defendant in error, M. S. Greer. It was contended in the trial court and is contended herein, among other things, that the deeds were void because the lands so conveyed constituted the homestead of plaintiffs and required the signature of Mrs. Kunauntubbee. The defendant in error denied that the lands constituted the homestead of plaintiffs in error, and alleged that if said property ever constituted their homestead that same had been abandoned before the execution of the deeds to the defendant in error.
No one questions the invalidity of the deeds if the lands thereby conveyed constituted the homestead of plaintiffs in error. On the other hand, the validity of the conveyances was clearly established if the property, when conveyed, was not a homestead.
The record discloses that the property involved was the homestead allotment of Joseph Kunauntubbee, a full-blood Chickasaw Indian, and that his wife was a white woman.
The record further discloses that plaintiffs were married in 1910; that they built a home on the one hundred acres in controversy, approximately two miles east of Davis, Oklahoma, and established their residence there in 1911. Four of their five children were born there prior to 1919, when they moved to the home of Joseph's mother adjacent to Davis. The farm was then rented. In 1927 the renter left the farm, and the plaintiffs returned. Joseph's mother died in 1928, and he thereupon became the owner of her home place, sixty acres near Davis, to which the family again moved in 1929. Their last child was born at this residence. The allotment was again rented. They resided at this home until 1944 when they moved to Texarkana, Texas, where Joseph worked at the Red River Arsenal. The plaintiffs lived in an apartment during this two years. In 1945 they returned to Davis and lived in the home inherited from his mother until December 1946, when they decided to return to Texarkana, Texas. Having already sold parts of his inherited land, they then sold the remainder of the inherited home place and moved to Texarkana, Texas, where they jointly purchased a home. Soon after purchasing this new home they made major improvements on it, consisting of a new room, a front porch and shrubbery and lawn work. They lived there until December, 1950, when they also sold this home and thereafter lived with their children.
In July, 1946, Joseph executed a five-year agricultural lease on his allotment (1947-1951) to one McBride, who thereafter assigned his interest to the defendant. In June, 1950, the defendant paid Joseph $1,000 for an agreement to execute an additional five-year lease upon the expiration of the existing one. This agreement recited that the lessor needed 'immediate funds with which to make a purchase of a home.' Joseph initiated action, and on September 25, 1951, secured a removal of restrictions on this land, which was effective thirty days thereafter. On October 9, 1951, Joseph executed an unapproved five-year lease to the defendant. On October 26, 1951, Joseph executed a warranty deed purporting to convey this property to the defendant. On November 8, 1951, he executed a second warranty deed conveying this property to the defendant. Joseph admittedly received a total of $4,000 for these deeds but never offered to refund any of it to the purchaser. These instruments were not signed by his wife. This in substance constitutes a chronological statement of the undisputed facts.
The plaintiffs testified that their move nearer Davis was to make it easier for their children to attend school. The also testified that their second move to Texarkana was for employment, and that they never at any time intended to abandon the farm as their homestead. It appears that Joseph's work in and around Texarkana after the second move there was not constant. He was not employed at the Arsenal, but worked as a common laborer or as a woodcutter. The person from whom they purchased their Texas home testified that on separate occasions they individually stated that they 'wasn't going back to Oklahoma.' Mrs. Kunauntubbee was quoted as saying 'they wasn't going back to Oklahoma.' Her reason seemed to be that 'there was too much drinking up there in Oklahoma.' She said if she had to sell the home in Texarkana, Texas, that they were going to move to Dallas. This intention to sell the property and move to Dallas (and not return to Oklahoma) is shown by the letter plaintiffs adduced in evidence from Joseph, Jr., to Joseph, Sr., at a time when he was having difficulty in making the payments on the place, and before they sold the place to Tommie Whiseant and his wife, Jaunita Whiseant.
The testimony of the assistant county assessors of Bowie County Texas, and the assessments in exhibit for 1949 and 1950 show that homestead tax exemptions were claimed on the Texas property by the plaintiffs, Joseph making the claim one year (1949) and his wife for another (1950). One deputy tax assessor testified in substance that he knew Mrs. Joseph (Malinda) Kunauntubbee, and that he went to their house as deputy tax assessor and found her there; that he asked her if they wanted to designate their property as the homestead; that he remembered talking to her, and that he asked her about the homestead and if she wanted to claim it as a homestead, and she answered and said she did. He further stated that he explained to her (as they always did when they assessed real property) that she could not have a homestead elsewhere, and that she said she understood that, and that she stated to him that she did not have any other homestead.
Joseph Kunauntubbee signed under oath the same form of tax assessment in 1949 as was signed and sworn to by his wife for 1950, and both assessments included the same property, but he claims that he was assessing the property for his son, Joseph, Jr. However, he executed an affidavit attached to his tax assessment on which he swore that it was his property. The inventory or assessment and affidavit admittedly signed by Joseph, Sr., reads as follows:
'Defendant's Exhibit 'D-1'
Inventory of Property Owner Joseph Cunningtubby Jr.
Address Rt 6 Bx 836 Texa and rendered for assessment of Taxes for the year 1949 by _____ to W. N. McDuffie, Assessor and Collector of Bowie County, State of Texas.
State of Texas
County of Bowie
I, Joseph Cunningtubby, do solemnly swear (or affirm) that this inventory rendered by me contains a full, true and complete list of all taxable property owned or held by me in my name for ________ in this county, and personal property not in this county subject to taxation in this county by the laws of this State, on the first day of January, A. D. 1949, and that I have true answers made to all questions propounded to me touching on same, so help me God.
Sign Here--Joseph Cunningtubby Sr
Subscribed and sworn to before me this 5 day of March, 1949.
W. N. McDuffie,
Assessor and Collector, Bowie County.
By WCS, Deputy (Initialed)
Homestead Oath
State of Texas...
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FDIC v. Hinch, 94-C-728-K.
...is an issue of fact, depending upon overt acts and the intention of the owner to claim the land as a homestead. Kunauntubbee v. Greer, 323 P.2d 725, 731 (Okla.1958); Lifemark Corp. v. Merritt, 655 S.W.2d 310, 314 While the initial burden of establishing the homestead character of a property......
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Jones, Givens, Gotcher & Bogan v. Berger
...his right to the exemption. Alexander v. Love Co. Nat'l Bank of Marietta, 1950 OK 221, 223 P.2d 363, 365; Kunauntubbee v. Greer, 1958 OK 76, 323 P.2d 725, 730-31; In the Matter of Wallace's Estate, 648 P.2d at 832. Accordingly, once a property owner demonstrates that homestead character att......
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Hixson v. Cook
...citing Alexander v. Love County National Bank, 203 Okl. 402, 223 P.2d 363; Russell v. Key, 195 Okl. 49, 155 P.2d 238; and Kunauntubbee v. Greer, Okl., 323 P.2d 725. Plaintiffs do not deny that the court should have so instructed. They agree that the defendants objected and excepted to the i......
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In re Lewis, Bankruptcy No. 97-01668-R.
...and occupying it as a homestead. First National Bank of Sentinel, 240 P.2d at 1069 (emphasis added); see also Kunauntubbee v. Greer, 323 P.2d 725, 730-31 (Okla. 1958). Circumstances, among others, that indicate abandonment of homestead include the purchase of a new homestead (Wallace v. Wal......