Smith v. Bunn

• Decision Date: 30 April 1882
• Citation: 75 Mo. 559
• Parties: SMITH, Appellant, v. BUNN.
• Court: Missouri Supreme Court

75 Mo. 559

SMITH, Appellant,

v.BUNN.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Cape Girardeau Court of Common Pleas.--HON. HAMILTON G. WILSON, Judge.

REVERSED.

R. Burrett Oliver for appellant.

Wilson Cramer for respondent.

HENRY, J.

This is an action of ejectment for eighty acres of land. The plaintiff is sole heir of Isaac Smith, deceased, who it is admitted, died seized of the land, and defendants derive their title from the same source, claiming under a deed executed after the death of Isaac Smith by his second wife, who claimed the land as a homestead. Smith purchased the land in 1858, and lived on it until the death of his first wife, mother of plaintiff, which occurred in 1861 or 1862, as plaintiff's witnesses testified, or in 1864 or 1865, as Mrs. Noble, the second wife, testified, when he broke up housekeeping, moved his household goods from the premises and leased them to one Masterson, who was still occupying the premises when Smith died, which occurred three or five years after the death of his first wife, and within three weeks after his second marriage. He never resided on or occupied the premises after the lease to Masterson, but lived a part of the time with his father-in-law, and a part of the time with Jack Hitt, and, at his death, with David Smith. After his second marriage he was making preparations to move to the premises in question. There is no evidence that he said or did anything indicating, either an intention to abandon his homestead or return to it, when he leased to Masterson, except what may be inferred from the above facts, and the question presented is, did his conduct amount to an abandonment of the homestead? If it did, the judgment must be reversed, otherwise the judgment was for the right party.

In most of the cases in which it has been held that ceasing to occupy the premises was not an abandonment of the homestead, there was evidence of an intention of the occupant to return, either consisting of his declarations to that effect, made at the time of his removal, ( Wiggins v. Chance, 54 Ill. 175,) or of the retention of apartments in the dwelling-house and storing household goods therein. Potts v. Davenport, 79 Ill. 455. Some of the cases go further and hold that, until another homestead is acquired, the old one is not abandoned, and this was adjudged in Mills v. Von Boskirk, 32 Texas 360, although the claimants left the county in 1865, being dissatisfied with it, declaring that they did not know that they would ever return, and the premises were attached in 1867, claimants not having yet returned.

But in Davis v. Andrews, 30 Vt. 679, the claimants of a homestead left the premises in October, 1858, and were living in another house, a mile and a half distant from the premises claimed. The plaintiff, Davis, had leased the latter for five years from the 1st of April following, and contemplating a sale of the premises, reserved the right to terminate the lease at the end of one year, in case he should sell within that time. Judge Poland, delivering the opinion of the court, said: “It is not true, that every temporary absence from home, would authorize creditors to take a man's homestead, or authorize him to convey it, to bar the right of his wife, but an abandonment of it as a home, and setting up another, we think, would have that effect. It may frequently become a nice question whether the absence is of such a temporary character and purpose that the...