Weatherington v. Smith

• Decision Date: 07 June 1907
• Docket Number: 14,590
• Citation: 112 N.W. 566,77 Neb. 369
• Parties: WILLIAM WEATHERINGTON, APPELLANT, v. ARTHUR B. SMITH ET AL., APPELLEES
• Court: Nebraska Supreme Court

112 N.W. 566

77 Neb. 369

WILLIAM WEATHERINGTON, APPELLANT, v. ARTHUR B. SMITH ET AL., APPELLEES

NO. 14,590

Supreme Court of Nebraska

June 7, 1907

AFFIRMED.

BARNES J. SEDGWICK, C. J., dissenting.

OPINION

BARNES, J.

Our former opinion, ante, p. 363, fully states the facts in controversy in this case. We were urged on the rehearing to reverse our former judgment, and establish the rule that under our homestead law, where the wife becomes the head of the family by reason of the insanity of the husband, she may abandon the homestead, change the domicile, and convey the homestead to a purchaser without the knowledge or consent of the husband. Section 4, ch. 36, Comp. St. 1905, provides: "The homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife." It has ever been the policy of this court to strictly adhere to the letter and spirit of this statute. Speaking of this act the court said, in Whitlock v. Gosson, 35 Neb. 829, 53 N.W. 980:

"Here is a plain prohibition against the incumbrance of the homestead without the joint act of both husband and wife. It contains no exception with respect to an absent or insane husband or wife."

And it was held in that case that Mrs. Gosson, who was confined in an asylum for the insane at Kankakee, in the state of Illinois, and had never been a resident of the state of Nebraska, was entitled to an interest in the husband's homestead, which he could neither incumber nor convey.

In Palmer v. Sawyer, 74 Neb. 108, 103 N.W. 1088, it was said: "A homestead is a parcel of land on which the family resides, and which is to them a home. It is constituted by the two acts of selection and residence, in compliance with the terms of the law conferring it. When these things exist bona fide, the essential elements of the homestead right exist, of which the persons entitled to it cannot be divested by acts or influences beyond their volition."

In the case of Way v. Scott, 118 Iowa 197, 91 N.W. 1034, the plaintiff claimed title to the premises in question by virtue of a sheriff's deed based upon a mortgage executed by one Scott, the owner of the homestead, and in the execution of which Ann Scott, his wife, did not join. At the time the mortgage was executed, the wife was confined in an insane asylum. The court said:

"We think the evidence clearly shows an abandonment of the homestead by the father, but the wife was entitled to the same right therein until it was cut off by proper proceedings, and the fact that she was then in an insane asylum would not deprive her of this right."

The authorities seem to be unanimous that the insanity of one spouse does not withdraw him or her from the protection of the homestead law, and a conveyance of the homestead, and a conveyance by the other is void.

We are asked, however, to hold that the domicile of an insane husband may be changed by the wife from one state to another, without his knowledge or consent and without his bodily removal. The courts have been very reluctant to assent to involuntary changes of the domicile of minors, or of persons non compos mentis, and yet this rule would put it in the power of any woman, if her husband should be so unfortunate as to become insane, to sell the home, which he may have acquired by years of toil, against his will, remove him from the state of his domicile and require him to spend his life among strangers in such place as she might select. If this is the law, the misfortune of the husband, or wife, as the case may be, would become the means of perpetrating a grave wrong and injustice upon such unfortunate. We are inclined to think that a greater evil is liable to result from a weakening of the barriers against the alienation of the home by the homestead act than could accrue to purchasers of real estate who have not sufficiently investigated the title thereto before their purchase. Indeed, such a rule would furnish an ingenious and convenient method of avoiding the effect of the homestead act, and would enable a husband, or a wife, to deprive an insane spouse of valuable property rights. We do not think a case can be found which supports the rule which we are asked to establish. It is said in Dorrington v. Myers, 11 Neb. 388, 9 N.W. 555:

"Neither the death of the wife, nor her abandonment of her husband, nor the arrival at full age and departure from the parental roof of all the sons and daughters, would have the effect of dismantling the homestead of the protection of the exemption law."

In the case at bar the wife apparently abandoned the husband, for she left him in the insane asylum and departed from the state of his residence. As was said in Palmer v. Sawyer, supra:

"When a homestead has been selected by the head of a family, he becomes invested with a right or an estate in said homestead, which cannot be defeated by the death or abandonment of the home by other members of the family who occupy it at the time of its selection."

While it is possible that the homestead in question would have been lost by a foreclosure of the mortgage, which had been given thereon by both the husband and wife, if Mrs. Weatherington had not sold it, yet that contingency should not influence us in our decision of this question. If such an event had happened it would have been the result of the voluntary action of both husband and wife, and a failure to realize a sufficient sum from the foreclosure sale, over and above the mortgage and taxes, to afford them their homestead exemption would have been one of the usual incidents connected with the fluctuations of property values. Again, it appears, that at the time Mrs. Weatherington sold the homestead to Cross and Johnston, and when they sold it to Smith, she had acquired no other homestead, and there is no evidence that she then had any such intention. So the only homestead Weatherington could assert any right to was the original one, which he had selected and established upon the land in question.

For the foregoing reasons, we are of opinion that our former judgment is right, and it is therefore adhered to.

AFFIRMED.

DISSENT BY: SEDGWICK

SEDGWICK C. J., dissenting.

The facts in this case are not in dispute. They are quite fully stated in the former opinion, ante, p. 363. It appears that for about three years after Mr. Weatherington became insane Mrs. Weatherington maintained herself and children upon the homestead, when she removed the family therefrom, and went to the state of Illinois and established a home there, without any intention of returning to the premises in question. The fourth paragraph of the syllabus of the former opinion is:

"Neither spouse can abandon the homestead for the other without his, or her, free consent."

This is the principal proposition discussed in the former opinion and in its support two cases are cited: Blumer v. Allbright, 64 Neb. 249, 89 N.W. 809; Palmer v. Sawyer, 74 Neb. 108, 103 N.W. 1088. The provision of the statute that "the homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife" (Comp. St. ch. 36, sec. 4) is quoted in the opinion, and many of the numerous...