Nw. Thresher Co. v. Mccarroll

• Decision Date: 26 September 1911
• Docket Number: Case Number: 1127
• Citation: Nw. Thresher Co. v. Mccarroll, 1911 OK 311, 118 P. 352, 30 Okla. 25 (Okla. 1911)
• Parties: NORTHWEST THRESHER CO. v. MCCARROLL et ux.
• Court: Oklahoma Supreme Court

1911 OK 311

118 P. 352

30 Okla. 25

NORTHWEST THRESHER CO. v. MCCARROLL et ux.

Case Number: 1127

Supreme Court of Oklahoma

Decided: September 26, 1911

Syllabus

¶0 1. HOMESTEAD--Abandonment. A homestead is abandoned by the acquisition of another.

2. SAME--Judgment Lien--Subsequent Occupation. After a judgment lien has attached to real estate, it cannot be divested by its occupancy for homestead purposes.

Error from District Court, Grant County; W. M. Bowles, Judge.

Action by the Northwest Thresher Company against G. T. McCarroll and wife. Judgment for defendants. On motion by defendants to discharge certain property from an execution levied by the sheriff of Grant county, on the ground that the property levied on was exempt from execution because a homestead. Motion sustained, and plaintiff brings error. Reversed and remanded.

C. S. Ingersoll and F. G. Walling, for plaintiff in error

Mackey & Stephenson, for defendants in error

AMES, C.

¶1 On January 30, 1907, the Northwest Thresher Company, plaintiff in error, recovered a judgment in the district court of Grant county against G. T. McCarroll and wife. On May 11, 1909, the plaintiff caused an execution to be issued, which was levied on certain property in Medford. On May 19th, G. T. McCarroll and his wife, Sadie McCarroll, defendants in error, filed a motion to require the sheriff to release the property from the levy, because it was their homestead; and on the same day Sadie McCarroll filed a motion to release part of the property from the levy, because it was her individual property. The district court sustained the motions, and the plaintiff brings the cause here by petition in error.

¶2 Two questions are involved in the case. First, whether the property at the time of the rendition of the judgment had been abandoned as a homestead; and, second, whether its occupancy as a homestead after rendition of the judgment would divest the lien.

¶3 Upon the first question the record discloses the following facts: Of the property levied on, some of the lots are owned by McCarroll, and some by him and his wife as tenants in common. These lots at one time were the homestead. In 1904, while this was a homestead, McCarroll filed on other lands in Woods county under the homestead laws of the United States. He resided on this homestead a part of the time until about the 1st of January, 1907, and thereafter continuously until April, 1908, at which time he made his final proof. His wife never resided on the Woods county homestead, but continued to live in Medford on the property in controversy, although she visited him in Woods county, and he visited her at Medford. They continued living together as husband and wife, and neither abandoned the other. We are of the opinion that under these facts McCarroll abandoned the Medford homestead.

¶4 In Donaldson v. Lamprey, 29 Minn. 18, 11 N.W. 119, plaintiff owned a homestead in Dakota county, and went to Sibley county, with the intention of entering a soldier's homestead, which he located, and upon which he filed his declaratory statement, making the usual affidavit of intention to occupy. He afterwards made some improvements upon the place and lived on it. His wife for a part of the time remained in Dakota county and part of the time in Sibley county, and then continuously in Sibley county. He voted in Sibley county. In considering the case the court said:

"Against all this array of facts tending to show an abandonment of the former home and the selection and adoption of a new one, the only evidence offered is, that his household furniture used in the Dakota home still remains there, and that a son and a daughter still continue to occupy it, and the statement of plaintiff himself on the trial that it has never been his intention to change his residence or remove from the land in dispute, that he has always regarded it as his home, and that it had always been his intention to return to it. But it does not appear whether this son and daughter are minors, or have

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