Sheeby v. Scott

• Decision Date: 18 October 1905
• Citation: 128 Iowa 551,104 N.W. 1139
• Parties: SHEEBY v. SCOTT (DE CAMP ET AL., INTERVENERS).
• Court: Iowa Supreme Court

128 Iowa 551

104 N.W. 1139

SHEEBY

v.SCOTT (DE CAMP ET AL., INTERVENERS).^*

Supreme Court of Iowa.

Oct. 18, 1905.

Appeal from District Court, Muscatine County; James W. Bollinger, Judge.

Mary A. Scott, a widow, died intestate May 13, 1903, seised of the folowing real estate: Lot 9 in block 71, in the city of Muscatine; also lot 8 and the east half of lot 9 in block 106, and lot 8 in block 107. Ten children survived her, one of whom, George E. Scott, was indebted to the plaintiff on a promissory note of $1,500, dated February 14, 1898, with interest at 6 per cent. per annum, on which this action was begun June 2, 1903, aided by writ of attachment, which was levied on Scott's interest in the above real estate June 20, 1903. He answered by admitting the indebtedness and alleging that lot 9 in block 71 was the homestead of deceased, and for that reason exempt from the levy. John F. De Camp intervened, and in his petition alleged the purchase of the east half of lot 9 and lot 8 from Mary A. Scott January 3, 1903; that George E. Scott had conveyed his interest therein to him, and he had taken possession, all prior to the levy, which he prayed to have vacated. The reply put in issue the allegations of the answer and petition of intervention. On hearing judgment was entered against George E. Scott as prayed. Lot 9 in block 71 was adjudged to be exempt as the homestead of deceased. Emma De Camp was substituted as intervener, and her petition dismissed, and the property other than the homestead ordered to be sold and the proceeds applied on the judgment. The plaintiff and intervener both appeal; that of the former being first perfected. Affirmed.Jayne & Hoffman, for plaintiff.

J. R. Hanley & Son, for defendant.

Richman & Richman, for interveners.

LADD, J.

The husband of Mary A. Scott died in 1898. From that time until April, 1903, she operated the Scott House, a hotel in Muscatine. In April, 1902, she purchased lot 9 in block 71, but did not move into the house thereon until April 7, 1903. Shortly afterwards she was taken sick, and died May 13th of the same year. The contention of the plaintiff is that this lot was not her homestead at the time of her death, and therefore the interest of George E. Scott, one of her ten surviving children, therein should be subjected to the lien of her judgment. Our statute provides that the homestead is exempt from the precedent debts of the heirs of the owner. All of Mary A. Scott's children had attained their majority. One son, Frank E. Scott, and a daughter, Mrs. Fahey, and the latter's daughter, had been living in the house with her for over a month, when she died. It was her home, and the controversy is whether her relations with these children were such that she and they, or either of them, constituted a family; for in this state the exemption of the homestead is to the family. A single person is not a family, and therefore cannot claim a homestead, unless continuing in possession as surviving spouse. Fullerton v. Sherrill, 114 Iowa, 511, 87 N. W. 419;Emerson v. Leonard, 96 Iowa, 311, 65 N. W. 153, 59 Am. St. Rep. 372. “Family” has been defined as a collective body of persons who live in one house under one head or manager. Tyson v. Reynolds, 52 Iowa, 431, 3 N. W. 469;Parsons v. Livingston, 11 Iowa, 104, 77 Am. Dec. 135. But this is not accurate, for strangers might thus band themselves together and live under the direction of a leader. To constitute one or more persons, with another, living together in the same house, a family, it must appear that they are being supported by that other in whole or in part, and are dependent on him therefor, and, further, that he is under a natural or moral obligation to render such support. Fox v. Ralston (Iowa) 102 N. W. 424.

Does the evidence indicate that such a relation existed between Mrs. Scott and those who lived with her? The record has convinced us that Frank E. Scott, though over 40 years old, was dependent on the deceased for his support. He had been married, but was divorced. He was lazy, addicted to the excessive use of intoxicating liquors and morphine, and was reputed a gambler. He had kept a butcher shop, but, upon his father's death in 1898, returned to the Scott House, where he lived until his mother's removal to the premises in controversy. For several years one Weaver had charge of the hotel office, and Frank did chores about the hotel. After Weaver left he took charge of the office, kept the books, and received money, but one Kline was allowed part of his board for sleeping in the office and caring for him when disabled by the use of alcohol or morphine. That during this time his mother supplied him with money is doubtless true, and he may have construed that received as wages. Indeed, he testified that she had paid him “different prices at different times--about $10 a week and my board”; that “mother always paid all of her children wages; that mother paid me wages up to her death, and I know she paid my sister Mrs. Fahey every Saturday night.” Nowhere does he undertake to state that any agreement was had as to what he was to receive, or what was in fact paid or when; and, aside from his designation of what she gave him as wages, his testimony is not inconsistent with the thought that she merely gave him enough to supply his wants, which may have been more or less than wages. During the six weeks prior to his mother's death, he did nothing but chores about the house, and since then he had continued in that occupation for his board with his sister. Of course, he always has been intending to leave, but, through the persuasion of mother and sister, remained “until he got ready to settle.” He admits that he threatened the defendant that he would “swear to a lie,” rather than allow him to succeed, and this, with his appearance on the stand, doubtless led the district court to reject the story of having been merely an employé of his mother, and adopt the more reasonable conclusion, deducible from the record, that, through excesses, he had become practically incapable of caring for himself, and was being maintained by his mother, because of the natural obligation to her child. The relation of Mrs. Fahey was not shown to have been that of a dependent, though she lived with her. But the two were enough to, and did, constitute a family, within the meaning of the law. Fox v. Ralston, supra, and cases cited.

Rulings on objections to questions propounded to different witnesses, and also the taxation of costs, are assigned as errors, but not argued, and for this reason not decided. The proof, independent of such evidence, however, was sufficient to show that deceased, who was 79 years of age, was occupying the premises as her home; and as she, with her dependent son, constituted a family, the court rightly decided that the property was exempt as a homestead.

2. In January preceding her death Mrs. Scott had entered into a contract for the sale of the east half of lot 9 and lot 8 in block 106 to John F. De Camp. The sum of $50 had been paid, but possession was not given, nor thing said concerning possession. The agreement recited that: “I have sold to John F. De Camp * * * my brick building and lot * * * for the sum of $3,000, and have received as purchase price thereof the sum of $50, to be forfeited, providing the purchase price, $2,950, is not paid on or before the 1st day of July, 1903. And, upon...