Rand Lumber Co. v. Atkins

• Decision Date: 10 April 1902
• Citation: 89 N.W. 1104,116 Iowa 242
• Parties: RAND LUMBER COMPANY et al., Appellants, v. C. W. ATKINS, IDA F. ATKINS AND THOMAS C. YOUNG, Appellees
• Court: Iowa Supreme Court

89 N.W. 1104

116 Iowa 242

RAND LUMBER COMPANY et al., Appellants, v. C. W. ATKINS, IDA F. ATKINS AND THOMAS C. YOUNG, Appellees

Supreme Court of Iowa, Des Moines

April 10, 1902

Appeal from Mahaska District Court.--HON. A. R. DEWEY, Judge.

CREDITORS' bills to subject certain real estate, title to which is in the defendant, Ida F. Atkins, to the payment of judgments held by plaintiffs against C. W. Atkins. The trial court dismissed the petition, and plaintiffs appeal.--Affirmed.

Decree AFFIRMED.

Burrell & Devitt and W. L. Cooper for appellee.

Dan Davis and A. C. Steck for appellees.

OPINION

DEEMER, J.

Plaintiffs ' judgments were rendered on contracts made by defendant C. W. Atkins between June, 1896, and December 17, 1897. At that time the property sought to be subjected to the payment of the judgments was the homestead of C. W. Atkins and wife and co-defendant, Ida F. January 10, 1898, Atkins and wife conveyed the property to defendant Young, and on the same day Young reconveyed to Ida F. Atkins. These conveyances were voluntary, and the one to the wife has never been recorded. Plaintiffs' judgments were rendered in the years 1898 and 1899. In the year 1896 Atkins and wife left the property and moved to Burlington, Iowa, where they lived until some time in the year 1899, when they moved to Mt. Pleasant, in this state, where they now reside. Plaintiffs contend that Atkins and wife abandoned their homestead long before the conveyance to Young, and that it thereupon became subject to the payment of the husband's debts. The issue of abandonment is the only one in the case, and to that we will direct our attention.

Plaintiff relies on the actual removal from the property; the fact that Atkins voted three different times in the city of Burlington once at least "swearing in" his vote; and declarations to the effect that he (Atkins) was going to remove to Burlington, and live there, in order, that he might get contract work from the county, and that he was required to reside there in order that he might secure the work. This of course, makes out a prima facie case of abandonment, and in the absence of other evidence would be controlling. But defendants show that Atkins voted under some misapprehensions as to the law; that he thought he had the right to vote "where his washing was done;" and that he never intended to abandon his homestead in Oskaloosa, where the property in question is situated. In addition to this it is shown, without dispute that the Atkinses retained a room at all times in the Oskaloosa property; that they left several articles of furniture there; that Mrs. Atkins went with her husband to...