Olsen v. Lohman

• Decision Date: 07 March 1944
• Docket Number: 46274.
• Citation: 13 N.W.2d 332,234 Iowa 580
• Parties: OLSEN v. LOHMAN et al.
• Court: Iowa Supreme Court

13 N.W.2d 332

234 Iowa 580

OLSEN v. LOHMAN et al.

No. 46274.

Supreme Court of Iowa

March 7, 1944

Joe W. Turner, of Avoca, for appellant.

Rudolph & Rudolph, of Atlantic, for appellees.

BLISS Justice.

The appeal is presented to us as one at law upon assigned errors, and will be so considered. The controversy is thus stated by appellant: "The second floor of the main building contains an apartment which is the homestead of the Lohmans, and has been during all times material to this case. There is no dispute about the homestead rights in this part of the building nor about the extension at the rear, nor about the basement, but only with reference to the first floor of the main building."

Since the facts are largely the controlling factors in the determination of the appeal a statement of them is essential. The appellees have lived in the town of Walnut (population about 1,000) for about 30 years, the last 18 of which has been in the property involved. The husband, 63 years old at the time of the trial, has been in the butcher business most of his life and was so engaged at all times in Walnut. The property in controversy is a two-story brick building, facing west on Main Street about in the middle of a business block. The lot is 20 by 150 feet and extends east to an alley. The main building is 20 feet wide and 40 feet long. There is a brick annex or lean-to, 20 X 20 feet, and not quite a full story high, attached to the east end of the main building. This annex has a cement floor, and, in connection with the basement under the main building, was apparently used for the grinding, curing and smoking of meat and as a storage room. There is no basement under it, and the only entrance to the basement, under the main building, is a stairway in the annex. The roof of the annex is used as a porch for the living rooms in the second story of the main building. The number of rooms in, or the arrangement of, the second story is not shown. There is no inside stairway to the second story. There is a covered stairway, opening on the street, on the south side of the first story, one-half of which or two and a half feet is set into the building, and the other half is set into the adjoining building on the south. It is a community stairway. It extends up and back about twenty feet and opens into a community hall which extends to the rear of the buildings. At the rear of this hall is an open back stairway to the ground. There is another open, back stairway apparently from the roof of the annex to the ground. These back stairways are both very steep and are not safely or conveniently usable when the weather is inclement or there is snow or ice. The first story of the main building has a front door on Main Street and a rear door opening into the annex.

For twelve or more years the appellees lived in the second story and conducted a retail meat market on the ground floor. They had a full equipment for the operation of such a business. In addition to retailing meats, he rendered lard, ground sausage, cured and smoked meat for farmers and other butchers.

In the depression years of 1933 to 1936 he was unable to make collections. He could not meet his obligations. He was in arrears on taxes, and in 1934 procured a loan somewhat in excess of $500 from the H.O.L.C. to pay these taxes. In 1936 he was again behind on his taxes, and the loan was increased to $764, which they are repaying in monthly sums of $7.68. Business grew worse, and the building needed many repairs. He had no money to make them. He quit the regular retail butcher business on December 15, 1937, but continued with the service to the farmers and other butchers. Mrs. Lohman testified that before 1935-"we lived downstairs on the first floor in the back room. Business got so slack he had to quit, and we lived in the back room and rented out two rooms upstairs, and we lived in one room. We did that until the light company took the office space downstairs in about 1937." The record is not clear whether they lived in a back room of the first story, during this time, or in the annex, but it fairly supports the first theory, particularly in view of the fact that the uses made of the annex rather rendered it unsuitable for living quarters. During this time they could not pay for the gas for heating or cooking purposes' and it was shut off. To pay the gas bill they sold the piano and adding machine.

Because of Mr. Lohman's age he had great difficulty in getting work. At the time of the trial and for about a year and a half previous he has been operating the meat department in a store at Atlantic. He drives between Walnut and Atlantic in a second-hand car which his employer procured for $285 and paid for out of his wages. It has been the hope and intention of the Lohmans that they might save enough to again go into a delicatessen and retail meat business in the downstairs room. They have saved most of their equipment and have it stored in the annex and basement. He testified: "I have saved about $140 and I figure I could probably have enough saved up by the time my tires give out."

About January 1, 1938, Lohman leased the first floor of the main building in writing for one year to the Iowa-Nebraska Light and Power Company, for an office and show room. The rental is $20 a month. Since the expiration of the written lease the company has continued to occupy the place as a tenant at will from month to month. Under their leasing arrangement the lessee was permitted to put a work bench and some supplies in the basement, and to use the annex for uncrating merchandise, and the Lohmans reserved the privilege and right to pass from the street through the first floor to get into the annex and basement. And the farmer patrons of Lohman who bring in their meats and take them away after they are processed have the same right of ingress and egress. Both the annex and the basement are used in this processing. Large jars in the basement are used in curing meat. Sausage is made in bulk and also cased. The meats are washed and smoked in the annex. Mrs. Lohman helps in this work. During the week she is in charge while her husband is away at work. Much of this work is done on Sundays and at night. The lessee carries the keys to the front and back door. The store is open on Wednesday and Saturday nights. This right of passage is exercised when the store is open. If passage through the front ground floor is closed the Lohmans will have to use one of the back stairs to get the annex or basement or go around the corner and half way down the block to get to the rear of the building. Some farmers do drive to the back door, but half or more of them use the front way, particularly in bad weather. Lohman testified that the use of the front room in carrying on his processing was a "life saver". The following is a part of his examination:

"Q. Well now, if the use of the front entrance were cut off from you and the approach to your business partly cut off, would not the business be handicapped? A. Yes, it would.

"Q. And the profit be removed, be cut from this business then? A. It would completely; I do not believe that I could handle it then."

The annex and the basement are also used to store household furnishings. They keep their fresh and canned vegetables, fruit, preserves, etc., in the basement. The laundry equipment is kept and used in the basement. Carrying the laundry up and down the steep back stairs, and food for their meals, would be a difficult and dangerous task for either appellee. The use of the front ground floor in connection with the annex and the basement and backyard has always been necessary, not only in the proper conduct of the ordinary business of the appellees, but in the full enjoyment of their home and homestead. They have never relinquished or abandoned this right of ingress and egress. To destroy that right by a sale on execution of the front ground floor would greatly and unreasonably impair their homestead rights in the entire property, and would probably destroy the small life-saving business which they are struggling to maintain. In Iowa a homestead is something more than a mere shelter for the family from the weather, for by statute it may be used, within a value limitation, for the prosecution of the owner's ordinary business in order to provide other family necessities, and to maintain the property. The part of the homestead used for such business purpose need not be separate from the building used as a home but it may be a part of the same building. Smith v. Quiggans, 65 Iowa 637, 639, 22 N.W. 907; Buckles v. Matson, 178 Iowa 310, 159 N.W. 1007. This has been the holding of other courts even without such a statute. As said in Gainus v. Cannon, 42 Ark. 503, 504: "It is a strange and irrational idea, sometimes advanced, that a man ought to lose his homestead as soon as he attempts to make any part of it *** helpful in family expenses." In re Irvin, 8 Cir., 120 F. 733; In re Coles, D.C.N.D.Iowa, 224 F. 170, 179.

It is the holding of this court, and of all courts, that, to secure the benevolent purposes of the homestead laws, they should be broadly and liberally construed in favor of the beneficiaries of such legislation. As said in Smith v. Quiggans, supra, 65 Iowa 637, 638, 22 N.W. 907, 908: "The exemption law should be so construed as to effectuate the very object which the legislature had in view when the statute was enacted. Regard ought to be had to the spirit of the law rather than to its strict letter." See also, Charless v. Lamberson, 1 Iowa 435, 63 Am.Dec. 457; Hunt, Hill & Betts v. Moore, 219 Iowa 451, 258 N.W. 114; Fardal v. Satre, 200 Iowa 1109, 206 N.W. 22; In re McClain's Estate, 220 Iowa 638, 262 N.W. 666; Charter v. Thomas, 228 Iowa 554, 292 N.W. 842.

Whether a...