Elston & Green v. Robinson

Weight, J.

However correct the instruction asked may have been, in view of the only real issue in the case, it was still subject to the objection, that, thereunder, plaintiffs were entitled to recover without proof of title in themselves. In other words, it based their right to the property upon one single fact, a fact of no weight or significance, having no place in the case, until they had shown, at least, a jjrima faeie right to recover. Their title was denied generally and in detail, and they had no right, therefore, to ask the court to.assume that the only question was the one indicated by the instruction asked.

Upon plaintiffs’ assumption as to the true state of the title, the instruction was correct, and should have been given. And thus viewing it, we now proceed to examine the instruction given.

homestead: character: iiadebts.0 pnor The undisputed facts are, that the debt was contracted long prior to the occupation of the premises as a homestead, and before any -improvements were commenced thereon. The title was acquired before contracting the debt, and, at that time, *211 the property was apparently as liable as any other, not exempt, to discharge the same. It was not then invested with the homestead character. Nor did it have this character until after the judgment was rendered. That is to say, the fact that the-owner commenced a building in - May or June prior to the rendition of the judgment (in September, 1858), upon a lot owned before the debt was contracted, but which, by no act of the owner, had been otherwise impressed with the homestead character, would not make the same exempt. Under our statute, there is an unbroken series of decisions, that occupancy, the use of the house by the family as a homestead, are essential 'requirements to impress the property with the character of a homestead. A mere intention to occupy it, though subsequently carried .out, is not sufficient. Christy v. Dyer, 14 Iowa, 438 ; Cole v. Gill, Id. 527 ; Williams v. Swetland, 10 Id. 51; Charless & Blow v. Lamberson, 1 Id. 435. This last case is the leading one on'this subject in this State, and has been uniformly followed. And, according to the rule there recognized, this property was, beyond question, liable to the judgment.

Then, again, the case upon other facts, is quite as strong if not stronger for plaintiffs, than in the case of Hale v. Heaslip ( 16 Iowa, 457 ) followed in Page v. Ewbank (18 Id. 580 ). There the debt'was contracted in September, 1857j. the property bought in J une of the same year, occupied as a homestead in March, 1859, and the judgment rendered in the next June. Here the title was acquired in October, the debt contraetéd in November, 1856, the judgment rendered in September, 1858, and the occupancy commenced in July, 1859. So that we have here, in fact a stronger case, inasmuch as the judgment was rendered before occupancy. And I remark that Cole, J., who dissented in the former, while he does not concede to this difference the full force claimed for it by *212 the majority of the court, admits its weight, and concurs in the conclusion reached upon the whole record, that the ' judgment below should be reversed. '

■One or two other matters maybe mentioned tending to the same result. The instruction given speaks .of improvements made prior to the time' the debt was contracted, and of the occupancy of the premises, before the rendition of the judgment, for all which there was no warrant whatever in the testimony, and the effect could only have been to mislead and confuse the jury.

Beversed.