Windle v. Brandt
| Citation | 7 N.W. 517,55 Iowa 221 |
| Parties | WINDLE v. BRANDT |
| Decision Date | 14 December 1880 |
| Court | United States State Supreme Court of Iowa |
Appeal from Polk Circuit Court.
ACTION in equity to determine the title to certain real estate. Both parties claim under Geo. W. Jones. The plaintiff under a conveyance from him, and the defendant under a sheriff's deed made in pursuance of a sale under an execution against Jones.
Judgment for the defendant and the plaintiff appeals.
AFFIRMED.
H. W Maxwell and Nourse, Kauffman & Jackson, for appellant.
Phillips Goode & Phillips, for appellee.
Geo. W. Jones owned and occupied as his homestead in 1864 and thereafter a parcel of land about ninety-nine feet front by one hundred and seventy-one feet deep in the city of Des Moines.
On the 28th day of May, 1878, he executed a conveyance whereby he conveyed what may be well designated as the west sixty feet to McClain. The house occupied by Jones as a home was situated on the parcel so conveyed.
The conveyance was made in pursuance of an exchange of other real estate owned by McClain, on which was situated a dwelling-house, and three hundred dollars paid Jones. McClain declined to complete the transaction until certain supposed liens were removed. Therefore, the deeds of the respective parties were deposited as escrows until this could be accomplished. The liens were removed on or before June 10th, 1878, when deeds were delivered, and that to McClain filed for record, and the latter moved into the house and took possession of the real estate conveyed to him by Jones on the 24th day of June. Jones also remained in the house with McClain until July 3d. No reservation was made of the possession of the premises by Jones for any length of time.
On July 1st, 1878, Jones conveyed the east thirty-nine feet of what had been the homestead tract to the plaintiff. If the portion of said premises conveyed to the plaintiff was not the homestead of Jones at the time it was so conveyed the defendant is the owner thereof under the sheriff's sale and deed. As to this question we have to say:--
I. The statute provides that "the homestead must embrace the house used as a home by the owner thereof, and if he has two or more houses thus used by him at different times and places he may select which he will retain as his homestead." Code, § 1994. It is clear, we think, that to constitute a homestead there must be a house situated on real estate which is used as a home.
When Jones voluntarily conveyed to McClain the west sixty feet, on which was situated the house required to constitute a homestead, he parted with his homestead right unless he intended to retain the residue of said premises and thereon erect a house which he intended to use as a home, and thus constitute and make it his homestead. There is no evidence tending to show such intent, but the contrary, we think, fairly appears.
It is true, we think, that a person may sell and convey his homestead in parcels and at different times, and the purchaser will obtain a good title, notwithstanding there may be judgments against the owner of the homestead. But in making a sale and conveyance of a part care must be taken that it does not operate as an abandonment of the whole, or that the homestead character has not been destroyed. When Jones conveyed to McClain, the other portion of the premises became segregated therefrom, and incapable of use as a homestead unless there was an intent to so use and occupy it. Givans v. Dewey, 47 Iowa 414.
It is true Jones was in one sense in possession of the...
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