Peebles v. Bunting

• Decision Date: 26 October 1897
• Citation: 73 N.W. 882,103 Iowa 489
• Parties: CLARK M. PEEBLES AND JULIA A. WHITE, Appellants, v. RICHARD BUNTING AND THE MCCORMICK HARVESTING MACHINE COMPANY
• Court: Iowa Supreme Court

73 N.W. 882

103 Iowa 489

CLARK M. PEEBLES AND JULIA A. WHITE, Appellants, v. RICHARD BUNTING AND THE MCCORMICK HARVESTING MACHINE COMPANY

Supreme Court of Iowa, Des Moines

October 26, 1897

Appeal from Calhoun District Court.--HON. Z. A CHURCH, Judge.

SUIT in equity to quiet the title to certain lands theretofore owned by Albert Peebles in his lifetime. The defendants are judgment creditors of Mary E. Morton (nee Peebles), and, as such, claim a lien upon the lands. The trial court dismissed the plaintiff's petition, and they appeal.

Affirmed.

M. R. & J. B. McCrary for appellants

M. E Hutchison for appellees.

OPINION

DEEMER, J.

Albert Peebles died, intestate, on the fourth day of October, 1875 seized of the land in dispute. He left, surviving him, Mary E. Peebles, now Morton (his widow), and Clark M. Peebles, and Julia A. Peebles, now White, his children. After the death of Peebles, his widow resided upon a part of the land in controversy for the term of about six months, when she removed to Lake City, at which latter place she resided until January, 1884, when she returned to the land theretofore owned by her husband, where she remained until February 1891, at which time she again removed to Lake City, and remained there until the commencement of this suit. Appellee Bunting obtained judgment against Mary E. Morton (nee Peebles), February 23, 1892, and appellee McCormick Harvesting Machine Company obtained judgment against her on February 14, 1894. These judgments were based upon debts contracted by Mrs. Morton in the year 1883. The land was sold under the McCormick judgment in December, 1894. Appellants, who are the children of Albert Peebles, deceased, bring this suit to quiet their title to the lands, claiming that they are the absolute owners thereof, subject to a homestead right in Mary E. Morton, and that appellees' judgments are not liens upon the land. Appellees contend that Mary E. Morton became the owner of an undivided one-third of the land at the death of her husband, and that their judgments are liens upon her said interest. The sole question in the case is whether or not Mary E. Morton (nee Peebles) elected to take a homestead interest in the land in controversy. If she did, then appellants are entitled to the relief asked. If not, they must fail.

The statutes relating to this issue are as follows, under the head of "Homestead," Code 1873:

"Sec. 2007. Upon the death of either husband or wife the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law.

"Sec. 2008. The setting aside of the distributive share of the husband or wife in the real estate of the deceased, shall be such a disposal of the homestead as is contemplated in the preceding section. But the survivor may elect to retain the homestead for life in lieu of such share in the real estate of the deceased. * * *"

Under the head of "Descent and Distribution:"

"Sec. 2440. One-third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage * * * shall be set apart as her (the wife's) property in fee simple if she survive him. * * *

"Sec. 2441. The distributive share of the widow shall be so set off as to include the ordinary dwelling house given by law to the homestead, or so much thereof as will be equal to the share allotted to her by the last section, unless she prefers a different arrangement. * * *

"Sec. 2443. The share thus allotted to her may be set off by the mutual consent of all the parties interested when such consent can be obtained. * * *

"Sec. 2444. The application for such admeasurement by referees may be made at any time after twenty days and within ten years after the death of the husband. * * *"

These statutes have provoked a great deal of litigation, and the court has not always agreed upon their construction. The cases are collated and the differences of opinion are shown in Stephens v. Hay, 98 Iowa 37, 66 N.W. 1048. We need not at this time express our individual views further than to say that, if appellants' contention as to the facts be correct, according to the opinion of the majority the rule announced in the Stephens-Hay Case should be adhered to, and the decree of the court affirmed. The writer and Mr. Chief Justice Kinne still adhere to the dissent as expressed in that case. Aside from this, however, we are all of opinion that plaintiffs are not entitled to a decree. In order to recover, they must show that some part of the land in controversy was the homestead of Albert Peebles at the time of his death. Sections 2007 and 2008 of the Code of 1873 contemplate the existence of homestead interests at the death of the husband. It is the homestead then existing which the wife may continue to use and occupy after the death of her husband, and which she may elect to take in lieu of her distributive share.

There is no evidence that any part of the land in dispute was occupied by Albert Peebles as a homestead. There is a showing that Mrs. Morton lived upon the land for six months after her husband's death, and some testimony to the effect that she claimed it as a homestead. But this evidence is of no avail without further...