Davis, Moody & Co. v. Kelley

Wright, J.

The general rule is, that to entitle a party to the homestead exemption, he must actually occupy and be in possession of the premises as a home. And under the Statute, a deduction from this general rule is, that if the husband executes a mortgage upon premises not thus actually used and occupied, it is good as against him, whereas, if it was upon that which constituted the homestead, it would be invalid as to both, if the wife did not join therein. But when the general rule is thus stated, it is not' to be understood that the property loses its homestead character, if left for a mere temporary purpose. For this is in no just sense an abandonment of it. Under such circumstances the occupation, in legal contemplation, is not regarded as less actual than if the premises had not been left. If, however, there has been an actual and clear abandonment of the premises, then they stand like any other property, and may be incumbered by a like instrument.

And it may be remarked that stronger and clearer proof of an intention to abandon and relinquish the homestead should be adduced when the lien set up is claimed to have attached during its actual occupancy, than where it arises or is created at a time when the parties are not in actual, visible possession. Not that in either case a mere temporary absence, not designed as an abandonment, would defeat the exception, but what is meant is that the intention to relinquish should be stronger in the one case than the other. And this for the reason, that where there is no actual visible possession the rights of the creditor intervene, under circumstances which may justify the conclusion that the premises do not constitute the homestead, and therefore, to prevent fraud, the intention to relinquish need not-be so conclusively shown. When, however, the lien claimed originated when there was actual possession, the intention arises after intervening rights have attached, and by no fair reason: ing can it be said that there was fraud or a chance for it at *526 the time of entering into the contract. And therefore, while loose and indefinite proof will not be sufficient in the case of a prior apparent abandonment, it by* no means follows that the interim shall appear beyond all reasonable ground of dispute. In such a case the creditor has certain rights, he in good faith may rightfully be governed by the condition of things as he finds them. For if there was at the time of taking his mortgage an abandonment, his rights then intervene and a subsequent change of intention and resumption of the possession cannot avail to defeat the lien.

In view of these principles, and others to be hereafter stated, it seems to us that the court below erred in refusing to recognize the validity of complainant’s mortgage as against the husband. It is indisputably true that at the time of its execution the premises were not “used as a home.” The husband had left the premises and removed with his family to his farm. He had not gone there for pleasure, nor to accomplish mere temporary business purposes, but to make it his home. True, he swears that at the time he regarded the premises mortgaged as his homestead. But this is not the test.

The question is, whether he did not by his act abandon the old and acquire a new homestead. If so the former right was thereby terminated, for he could have but one homestead at the same time. It is not as though he had left in search of another home, which he never acquired. For he was at the time settled upon his farm, and this to him then had all the essential legal attributes of a homestead, his search was at an end. He had removed from his former residence, and gained a new home or homestead, and it seems to us that such circumstances clearly prove an intention to abandon and relinquish the old onesuch intention may exist when a new homestead is not gained, and when a new settlement has been made, when other premises are used and occupied by the -family as their home, the *527 intention to abandon tbe former homestead is quite clearly and conclusively established. In the absence of some explanatory circumstances, we think the creditor could equitably and justly conclude that there had been a change and that the exemption no longer attached to the premises formerly occupied. Yost v. Devault, 3 Iowa, 345 ; Kurz v. Brusch, 13 Iowa, 371 .

Reversed.