Kimball v. Wilson

Adams, J.

*639

i. homestead: abandonment of: faetseonstitutmg.

*638 Both parties claim through N. E. Wilson. Tbe execution sale to tbe plaintiff was made upon a judgment *639 against N. E. Wilson, rendered by a justice of tlie peace, but a transcript of which was filed in the Circuit Court before the debtor sold and conveyed the land to the defendant. It follows that the plaintiff's title must prevail, unless the fact is as the defendant claims, that the premises at the time of the execution sale were exempt from execution. It is undisputed that, from a time prior to the rendition of the judgment until after the executon sale, the premises constituted the execution debt- or’s homestead. The plaintiff insists, however, that the premises were not exempt for the reason that the debt upon which the execution sale was made was contracted prior to the time when the homestead character attached. The fact appears to be that the debt was for a part of the purchase money. The plaintiff’s position, then, must be sustained, unless there was a partial exemption by reason of the fact that the premises were purchased in part with the proceeds of a former homestead. The defendant contends that they were. We come then to the determination of this question of fact. It is shown clearly enough that the premises were pur- . . r „ „ chased m part with the proceeds oí a íarm oí forty r jr •! acres, which was at one time the execution debt- or’s homestead, and was such at the time of its sale, unless at that time it had been abandoned as a homestead. The farm is in Warren county, and was occupied by the debtor and his family until May, 1873, when he and his family moved to Indianola, the county seat of Warren county, where he entered upon the practice of law. The sale of the farm was effected about a month later. The removal constituted an abandonment unless it was designed to be temporary. As to what the design was, we have the testimony of the debtor himself. He says: “ I came to town to follow my profession as a lawyer, and made an engagement with II. McNeil. I do not think that I arrived at any conclusion as to whether I would return to the farm or not. I intended to go back to the farm if I could not make a living here.” From this it is abundantly evident that his purpose was to reside in town *640 and pursue his profession permanently if he was able to make a living by it. We find then, an intention to abandon qualified by a contingency. But the contingency was one which the debtor intended to1 avoid. The removal with such intention, we think, constituted an abandonment.

The new homestead, then, being liable for the plaintiffs debt, the judgment thereon became a lien from the time the transcript was filed in the Circuit Court. Hale v. Heaslip, 16 Iowa, 451 ; Bills v. Mason, 42 Iowa, 330 ; Phelps v. Finn, 45 Iowa, 447 . The defendant took his conveyance after such lien attached. He took it then subject to a lien. He could protect himself only by redeeming. But his right to redeem expired in a year from the time of the execution sale. The plaintiffs title then became absolute.

2. Pbactice in supreme eouri: aeiecofevidenc^* íníaYOTof011 trial court. One question remains to be considered. The defendant contends that there is a defect in the plaintiff’s proof. He says that the sheriff’s return upon execution shows x a gale of land in the SE. -4 of section 25, in- «= ’ iQ the SW. ¿, in which is the land *a question* To this we have to say that we are unable to discover from the evidence what the return shows. The abstract does not purport to contain a copy of the return as introduced in evidence. It contains a mere statement that there was introduced in evidence, “Execution and return, Exhibit 0, being execution on judgment of Hilliard v. N. E. Wilson.” Now it may be that the return shows what the defendant claims it does, but we a,re not allowed to take his statement for it. We must presume that it sustained the decision.

In this connection we ought, perhaps, to say that we find in the abstract what purports to be a copy of the return showing what the defendant claims it does. But this appears to be a mere copy attached to an amendment to the defendant’s answer. Such copy is not evidence.

It is true that the return fails to show a sale of the land in dispute, and in support of the averment sets out what the *641 defendant claims is a copy of the return, and the amendment does not appear to be replied to. "We do not think, however, that the averment can be considered as admitted. The plaintiff had averred in his petition that the land in question was sold to him upon execution. This was sufficient without denying that it was not sold. The defendant should simply have taken issue upon the plaintiff’s averment. He could not, by an averment as to what the return shows and what it does not show, make a reply necessary. In our opinion, the decree of the Circuit Court must be

Affirmed.