Quigley v. McEvony
| Decision Date | 06 June 1894 |
| Docket Number | 5489 |
| Citation | 59 N.W. 767,41 Neb. 73 |
| Parties | SARAH A. QUIGLEY ET AL., APPELLEES, v. H. C. MCEVONY, SHERIFF, ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Holt county. Heard below before BARTOW, J.
AFFIRMED.
H. M Uttley, for appellants:
The testimony shows that appellees were not, at the time of levying the attachment, actually residing upon the property claimed to be a homestead, and had not been so residing thereon for more than four months previous to that time. Actual occupancy is necessary in order to make the homestead exemption available to a claimant. The appellees cannot make the property the homestead after the levy of the attachment thereon so as to defeat the lien created thereby. (Kelly v. Dill, 23 Minn. 438; Larimer v. Kelley, 10 Kan. 299; Galligher v. Smiley, 28 Neb. 194; Jackson v. Creighton, 29 Neb. 319; Rector v Rotton, 3 Neb. 171; Brandon v. Moore, 7 S.W. [Ark.], 36; Baker v. Leggett, 4 S.E. [N. Car.] 37; Finley v. Saunders, 4 S.E. [N. Car.], 516; Morgan v. Nunes, 54 Miss. 308; Hanson v. Graham, 23 P. [Cal.], 56; Keller v. Carr, 42 N.W. [Minn.], 292; Dennis v. Gayle, 4 So. Rep. [La.], 6; Colbert v. Henley, 1 So. Rep. [Miss.], 631; Fitzgerald v. Fernandez, 12 P. [Cal.], 562; Nance v. Hill, 1 S.E. [S. Car.], 897; King v. Goetz, 11 P. [Cal.], 656; Myrick v. Bill, 37 N.W. [Dak.], 369; Binzel v. Grogon, 29 N.W. [Wis.], 895.)
The husband, being the head of the family, has the right to determine and control their residence; and, when he intentionally removes from and abandons the homestead, and his family accompanies him, neither he nor they have any power to resume it, so as to cut off intervening liens which have attached during such abandonment. (Titman v. Moore, 43 Ill. 169; Galligher v. Smiley, 28 Neb. 194; Spaulding v. Crane, 46 Vt. 292; Garrett v. Jones, 10 So. Rep. [Ala.], 702; Philleo v. Smalley, 23 Tex. 498.)
On the question of res adjudicata, see Brigham v. McDowell, 19 Neb. 413; Nelson v. Bevins, 19 Neb. 716; Helphrey v. Redick, 21 Neb. 83.
E. H. Benedict, contra:
The fact of removal, coupled with an intention never to return to the homestead, constitutes an abandonment, and nothing else does. (Cline v. Upton, 56 Tex. 319; Fyffe v. Beers, 18 Iowa 4; Dunton v. Woodbury, 24 Iowa 76; Lindsay v. Murphy, 76 Va. 428.)
Leaving or renting a homestead, after the claimant has by his occupancy impressed upon it the character of a homestead, is not evidence of abandonment. (Guy v. Downs, 12 Neb. 532; Thompson, Homestead & Exemptions, sec. 273; Tumlinson v. Swinney, 22 Ark. 400; Dunn v. Tozer, 10 Cal. 167; Stewart v. Brand, 23 Iowa 477; Campbell v. Adair, 45 Miss. 170; Wetz v. Beard, 12 O. St., 431; Herrick v. Graves, 16 Wis. 157*; Myers v. Ford, 22 Wis. 139; McDermot v. Kernan, 7 Am. St. Rep. [Wis.], 864.)
The homestead once established is presumed to continue, and the burden is upon the general creditor, who seeks to appropriate it to the satisfaction of his claim, to show by a preponderance of clear and decisive proof that it has been abandoned by the claimant. (Boot v. Brewster, 75 Iowa 631; McMillan v. Warner, 38 Tex. 414; Riggs v. Sterling, 1 Am. St. Rep. [Mich.], 554.)
The owner of a life estate is the owner of the property, and may use the same so as to make it exempt as a homestead. (Thompson, Homestead, sec. 220; Kendall v. Powers, 96 Mo. 142; Pryor v. Stone, 70 Am. Dec. [Tex.], 344; Spencer v. Geissman, 37 Cal. 96.)
The notice served on the sheriff was sufficient. (McPhee v. O'Rourk, 10 Col. 301.)
The homestead question was not adjudicated. (Gayer v. Parker, 24 Neb. 643; Uppfalt v. Woermann, 30 Neb. 189.)
See opinion for statement of the case.
On the 24th day of February, 1890, the appellees filed a petition in the district court of Holt county, alleging that H. C McEvony, of appellants, was sheriff of Holt county, Nebraska; the Holt County Bank, a corporation doing business at O'Neill, Nebraska; that on or about June 10, 1890, the bank commenced an action against Sarah A. Quigley in the district court of Holt county, and procured an order of attachment to be issued therein, which was delivered to the sheriff, McEvony, who, on the 11th day of June, 1890, levied the writ on lots 6, 7, and 8, in block 26, O'Neill, Nebraska; that subsequently judgment was rendered in the action, in favor of the bank, in the sum of $ 950, and on the day of , A. D. 1890, an order of sale was issued and delivered to the sheriff to sell the above described premises for the satisfaction of the judgment; that the petitioners are now, and have been, husband and wife since the day of , A. D. 188 , and that Sarah A. Quigley has been for eight years, and now is, owner of a life estate in said premises worth not to exceed $ 2,000; that on lots Nos. 7 and 8 was a dwelling house and other buildings, and the same have been used and occupied by her as a home and homestead for eight years last passed, and she and her husband have so occupied them since their marriage; that prior to the date of the levy of the attachment they had removed a part of their household goods therefrom and were temporarily absent, but with the intention of returning thereto, and that they did so return and continued to occupy and use said premises as a home; that Sarah A. Quigley served a notice in writing on the sheriff that she claimed said premises as a homestead; that the sheriff refused and refuses to call appraisers to ascertain the value of the premises or to discharge the levy thereon, and is about to offer the property for sale and thus deprive petitioners of their homestead, and cause them irreparable injury. The prayer of the petition was for a decree declaring lots 7 and 8, block 26, to be the homestead of the petitioners, and enjoining the sheriff from further proceeding with the sale as to these two lots. Appellants filed an answer to the petition, admitting that McEvony was sheriff, and the corporate character of the bank, its place of doing business, the action of the bank, the issuance of the attachment therein, and its levy upon the property, the obtaining of the judgment, the order of sale, and that the sheriff was proceeding under it to make the sale; admitted further the life estate of Sarah A. Quigley in the premises, but denied the allegation of value; admitted that there was and is a dwelling and other buildings on lots 7 and 8, but denied the allegation of their homestead character or use as such, and further denied each and every other allegation of the petition, and for further answer alleged, in substance, that the Quigleys filed a motion in the original action for a dissolution of the attachment therein, setting forth as one of the grounds for the dissolution and discharge of the attachment their claim of the homestead character of the premises and their exemption as a homestead; that by this motion they submitted the question of whether the premises constituted their homestead to the consideration and decision of the court, and that the court determined such issue against them, and such adjudication was and is a bar to the present suit. To this portion of the answer of appellants which set up new matter the appellees filed a reply, which was in effect a general denial. A trial of the issues to the court resulted in special findings on the points in the case, in favor of appellees, and a decree in accordance with such findings and the prayer of the petition, from which determination of the cause the appellants have duly effected an appeal to this court.
We will first notice the contention of appellants, that the proceeding by motion to dissolve the attachment and the matters therein decided were such as to constitute an adjudication of the homestead rights of the Quigleys in the premises in controversy, and consequently a bar to the bringing of this suit. The motion to dissolve the attachment was made on the grounds that the order of attachment was wrongfully sued out, want of jurisdiction of the court to grant the writ, the untruth or falsity of the allegation of non-residence of Sarah A. Quigley, the defendant in the attachment suit, and that the property levied upon was the homestead of the defendants in the case. The main propositions to be decided at such a hearing are, first, the sufficiency of the affidavit; second, the falsity of the charge in the affidavit filed to obtain the issuance of the writ of attachment. Whatever matters may be in some cases necessarily or properly heard and determined, we do not think it is competent or proper practice, where the writ is levied upon real estate belonging to the debtor, to allow the homestead character of the property to be drawn in question as one of the grounds for the motion to discharge the attachment. The hearing is upon affidavits more or less skillfully drawn, according to the ability or lack of the same in this particular branch of the party who frames them, or his artistic skill, or want of it, in the affidavit line. We think it is unquestionable that the question of whether the premises constitute a homestead should be determined in proceedings instituted in the manner directed by our statutory law, and if there is any disagreement, then the same can be determined in a proper action in court, in which issues can be regularly joined and the matter tried in the manner prescribed for the trial of issues of law and fact, and that the ends of justice will be better subserved by this latter course of proceedings than by determination of the homestead question in the course of a hearing on a motion to discharge an attachment. In Langdon v. Conklin, 10 Ohio St. 439, it was held: "It is not competent for a defendant in attachment to move the court to discharge the attachment on the ground that the...
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