Wapello County v. Brady
| Decision Date | 17 December 1902 |
| Parties | WAPELLO COUNTY v. PATRICK BRADY AND KATE BRADY Appellants |
| Court | Iowa Supreme Court |
Appeal from Wapello District Court.--HON. ROBERT SLOAN, Judge.
ACTION to subject property to the payment of a judgment. The facts are disclosed in the opinion. Both parties appeal, that of defendant being first perfected.
Affirmed.
McNett & Tinsdale and Steck & Smith for appellants.
D. H Emery, County Attorney, W. A. Work and A. W. Enoch for appellee.
In January, 1885, Patrick Brady was appointed by the board of supervisors of Wapello county overseer of the poor in the city of Ottumwa, and continued such until January, 1894. His salary was $ 5 per month, and, among other things, he was authorized to furnish temporary relief to transient persons without means and transportation, to enable them to reach their legal settlements, that they might not become charges on the county. During the nine years of his incumbency he drew from the county for these purposes $ 7,953.41. The disparity between the amounts requisite to effect these purposes by his successor and those drawn from the county by Brady aroused suspicion, and this action to recover a large portion of that paid him, because of having been fraudulently obtained, was begun February 24, 1894. The suit was aided by a writ of attachment, levied on the real estate in controversy. Judgment was rendered against him July 13, 1896 for $ 2,250 and costs. See, also, State v. Brady, 100 Iowa 191, 69 N.W. 290.
The issues with respect to subjecting the real estate to the payment of this judgment were not tried until August, 1900. All claim against the property of the son, John F. Brady, was withdrawn, and the court found the evidence insufficient to trace any of the money wrongfully obtained from the county into the land owned by defendant's wife, Catherine Brady. It will be unnecessary to consider the correctness of this conclusion, as counsel concede the land in the judgment defendant's name ample to satisfy the debt. The court decreed that "the west end of outlot twenty-eight in the city of Ottumwa, Iowa extending from Timber street, on the west end of said lot, to Washington street extended from the extension of Court north across the outlot," in the name of Patrick Brady, was subject to the lien of the judgment. This lot had been purchased by Brady in 1869. A one-story house, of five rooms, was constructed thereon in 1872, into which the family moved. Between 1875 and 1878 they lived elsewhere, but returned during the latter year, and remained until May, 1892. Some time previous Mrs. Brady had acquired lot six of outlot 25, across Timber street. On this lot was a house of eight rooms and a basement, and at the time mentioned the Bradys moved into it. The family was then composed of eight children all of whom were at home with the defendants; and the main reason for the change, as they agree, was to obtain more room. The old house was rented, but the barn and half the lot, on which Mrs. Brady kept her cows, was retained; also a couple of old stoves were left in the cellar. They moved back to the old house in November, 1894, because of the claim now asserted against the premises. The homestead character up to 1892 is conceded, and the only question to be determined is whether it ceased at any time prior to their return, in November, 1894. They frankly admit that their object in moving back was to protect their claim to the property as a homestead, and, of course, the inference necessarily follows that but for this they would have remained longer on lot six.
Whether absence from a homestead shall be deemed an abandonment, or to have been with animus revertendi, depends on the facts of each particular case. Brady rented the house continually during the absence. This is a circumstance tending to show abandonment (Painter v. Steffen, 87 Iowa 171, and Fyffe v. Beers, 18 Iowa 4,) but is not necessarily inconsistent with an intention to return (Zwick v. Johns, 89 Iowa 550, 56 N.W. 665; Boot v. Brewster, 75 Iowa 631, 36 N.W. 649). Again considerable significance is given to the retention of a room or leaving furniture in the house in many of the decisions. Repenn v. Davis, 72 Iowa 548, 34 N.W. 326; Shirland v. Bank, 65 Iowa 96, 21 N.W. 200; Benbow v. Boyer, 89 Iowa 494, 56 N.W. 544; Reeseman v. Davenport, 96 Iowa 330, 65 N.W. 301; Robinson v. Charleton, 104 Iowa 296, 73 N.W. 616; Lumber Co. v. Atkins, 116 Iowa 242, 89 N.W. 1104. In all these, however, the owner was so situated as that such retention tended to show a purpose of making use of the whole again. But the defendants occupied the barn and part of the lot in controversy in connection with the premises immediately across the thirty-five foot alley or street on which they lived, and not in a way different from what would have been likely of any property not claimed as a homestead owned by either of them. Such occupancy harmonizes quite as well with an intention to retain lot six as a home as with that of returning to the old one. While offers for sale indicate a purpose of abandonment (Dunton v. Woodbury, 24 Iowa 74), they cannot always be regarded as conclusive.
But the inference from such evidence, as bearing on the question of intent, is much stronger than declining proposals to purchase, for the latter are entirely consistent with a purpose to keep with some other object in view than occupancy as a home. See Fyffe v. Beers, supra, and Robinson v. Charleton, supra The bare refusals of the Bradys to negotiate for the disposal of the property was of no significance, as the evidence shows without dispute that it was yielding a fair rental, that Mrs. Brady had been acquiring property as an investment, and that their situation was such as to render its retention for purposes other than a home desirable. Every act relating to this house and lot in controversy subsequent to removal therefrom in 1892 is absolutely consistent with the claim that it was abandoned, and also with the occupancy of lot six as a homestead. Lot six was in the name of Mrs. Brady, and might be treated as the homestead of the family. Section 2972 of the Code. Occupancy of other property which could be claimed as a homestead was said in Ayres v. Grill, 85 Iowa 720, 51 N.W. 14, to be "a strong circumstance tending to show an abandonment of the homestead in land." There, though the claimant had bought a house in Dewitt, in which he resided six months, he had paid nothing on it; and the evidence showed, by a clear preponderance, an intention not to abandon the homestead.
In Davis v. Kelley, 14 Iowa 523, the defendant occupied a house in Waterloo as his homestead until the summer of 1858, and then moved to his farm, twelve miles distant, where he remained until March, 1860, when he went to Dubuque, and came back to Waterloo in June of the same year, but not into his house, as it was rented, until September. After his removal to the farm, Kelley executed a mortgage on the house in which his wife did not join, and, in defense to an action of foreclosure thereon, set up this fact, and that the property was the homestead of the family, as invalidating the mortgage. In holding that he had abandoned the house as a homestead, the court said:
In several cases, that property suited for a home has not been acquired is mentioned as of controlling importance. Fyffe v. Beers, 18 Iowa 4; Robinson v. Charleton, 104 Iowa...
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