Rosholt v. Mehus
| Decision Date | 08 January 1894 |
| Docket Number | 6731 |
| Citation | 57 N.W. 783,3 N.D. 513 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Steele County; McConnell, J.
Action by Julius Rosholt against Thea Mehus to determine adverse claims to land. There was judgment for defendant, dismissing the action, and plaintiff appeals.
F. W Ames and Carmody & Leslie, for appellant.
J. H Bosard, for respondent.
OPINION
This action was brought to determine adverse claims to a quarter section of land in Steele County. It was heard on an agreed statement of facts, from which the court made two conclusions of law: First, that plaintiff was not the owner in fee simple of the land; and, second, that defendant was entitled to the possession of the land. The judgment simply dismissed the complaint on the merits, with costs. Plaintiff appeals, and assails the conclusions as not warranted by the facts. On June 10, 1882, one Torkel Mehus, husband of the respondent, Thea Mehus, obtained a patent to said land under the federal homestead law. Torkel Mehus and respondent continued to reside on said land as their homestead until May, 1887. At that time there were living three minor children, the issue of their marriage. In May, 1887, the respondent, Thea Mehus, taking her minor children with her, left the said Torkel Mehus, and has not lived with him since that time. Torkel Mehus continued in possession of the land, and made his home thereon until the sale thereof, hereinafter mentioned. In January, 1890, the respondent, as the wife of Torkel Mehus, and in behalf of herself and her minor children, attempted to file a declaration of homestead under §§ 2458 and 2459, Comp. Laws, and the declaration was recorded in the office of the register or deeds of Steele County. In October, 1890, she brought an action of divorce against Torkel Mehus, on the ground of his adultery; and in January, 1891, the District Court granted her a decree absolute on that ground, and gave her the custody of the three children. In her complaint she prayed the allowance of a reasonable sum for maintenance of herself and children out of the property of her said husband. The decree gave her a gross sum of $ 250, and $ 20 per month for the support of herself and children. No order whatever was made relative to the homestead, nor was it mentioned in the complaint. On the 9th day of September, 1891, Torkel Mehus executed a warranty deed of said premises to the appellant, Rosholt. Appellant was a purchaser for value, with no notice of any claim of respondent upon the land, except the constructive notice given by the record of the homestead declaration and the record in the divorce proceedings. Appellant claims under the deed, and respondent claims a homestead interest in the land.
What was the condition of this land as to the homestead character at the time of the rendition of the divorce decree? We think it was the homestead of Torkel Mehus and his family, including this respondent. The legal head of the family had remained in constant occupancy of the land as his home. This preserved its homestead character. The actual presence of the wife is not required for the inception or preservation of the homestead right, so long as the husband is the head of the family. Johnston v. Turner, 29 Ark. 280; Williams v. Swetland, 10 Iowa 51; Bradford v. Loan & Trust Co., 47 Kan. 587, 28 P. 702. Without holding that a wife can forfeit her homestead interest in her husband's home, or estop herself from claiming the same by anything short of a contract, but assuming such to be the law, it is yet certain that this record shows no such forfeiture or estoppel. The record does not disclose when the adultery upon which respondent based her action for divorce occurred. If prior to her leaving home, her absence would not imperil her rights, ( Earle v. Earle, 9 Tex. 630;) but, if subsequent, yet it does not appear that she left her home and abandoned all intention to return. It does not appear that she left the jurisdiction, or attempted to establish a home elsewhere. Her effort to file a declaration of homestead would indicate an intention to return. It has grown to be familiar law that, in the absence of express statutory provisions, absence from the homestead for any reasonable time will not amount to abandonment when the animus revertendi, always exists, and no other home is created. We repeat, respondent's homestead right existed at the date of the rendition of the decree of divorce, but it so existed by virtue of the fact that she was a member of the family of Torkel Mehus, who with his family, had established his home and their home thereon, and whose occupancy had been continuous. Her rights were in no manner strengthened by the fact that she attempted to place a declaration of homestead on record. Such declaration does not create homestead rights (Cole v. Gill, 14 Iowa 527; Yost v. Devault, 9 Iowa 60;) nor do we think, although we do not find the point ruled, that it takes the place of continuous occcupancy after the inception of the homestead, except where, as in Minnesota, there is an express statutory provision to that effect. But even then, we suppose, the statute in no manner affects the question of actual abandonment, but might, in a subsequent contest, shift the burden of proof. In this state, when the head of a family owns land in excess of the amount allowed by law for a homestead, and the land is in one body, and the family resides thereon, the homestead may be selected in any form that may be desired up to the quantity allowed by law as a homestead. Recording a declaration of homestead gives notice to all purchasers, and all parties dealing with or extending credit to the owner, of the exact land claimed as a homestead. This, we think, is the main, and perhaps exclusive, reason for the provision, because a failure to make and file the declaration does not render the homestead liable in execution. It only devolves upon the officer holding the execution the duty of selecting, platting, and recording the homestead. But since respondent's homestead rights vested exclusively upon the fact that she was a member of the family of Torkel Mehus, and since the divorce effectually severed that relation, it follows that her homestead right was destroyed, unless preserved by the statute or the decree. That decree severed the family relation theretofore existing between Torkel Mehus and Thea Mehus. She was no longer a member of his family. She was neither his wife nor his widow, and could claim none of the homestead rights given by law to the wife or widow. The occupancy which created and had preserved for her a homestead right in that land ceased instantly when she ceased to be a member of the family of Torkel Mehus.
But it is claimed that, by virtue of a new relation then created the homestead right devolved upon her. It is urged that when respondent was divorced from her husband, and given the custody of the minor children, she became the head of the family, and that under such circumstances, when the wife is the meritorious cause of the divorce, she does not, by obtaining a divorce, forfeit her homestead right. The position thus broadly taken does not meet our approval. Whatever support it has in the books originated in Vanzant v. Vanzant, 23 Ill. 536. In that case the complainant was the divorced wife, who had been given the custody of the minor children. After asserting her right to the homestead as against the defendant, who was a creditor of the husband, the court say: "The spirit and policy of the homestead act seem to demand this concession, and to regard the complainant, for this purpose, as a widow and the head of a family." The court immediately adds: It is proper to add, also, that the premises, at the time of the divorce, were in the possession of a tenant, who immediately attorned to the divorced wife, and the court held that to be equivalent to actual occupancy by her. This case was followed by Bonnell v. Smith, 53 Ill. 375, where, also, the wife obtained the divorce and custody of the children, and was decreed the homestead absolutely as alimony, and the court without discussing the matter, stated: "She therefore held it in a double right,--as alimony, under the decree of the court, and as her homestead, by operation of the statute." In this state a decree of divorce which granted to the meritorious wife the homestead absolutely as alimony would forever protect her possession, except in the enumerated cases, where a homestead is liable, irrespective of any construction of the homestead law. But in Sellon v. Reed, 5 Bliss. 125, also 21 Myer's Fed. Dec. 639, and which arose in Illinois, the decree in the divorce case made no such disposition of the homestead. The fee was in the husband, or we so gather from the case. In the divorce action the meritorious wife obtained custody of the child and alimony in gross. Nothing was said about the homestead, she was in possession, and remained in possession with the child, and she was held entitled to possession, as against her divorced husband's grantee. The case is ruled on the Vanzant case. These cases have been pressed upon us with much confidence, as being a construction by able courts of a homestead law not materially...
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