Rand Lumber Co. v. Atkins

Deemer, J. —

Plaintiffs’ judgments were rendered on contracts made by defendant C. W. Atkins between June, 1896, and December 17, 1897. At that time the property sought to be subjected to the payment.of the judgments was the homestead of C. W. Atkins and wife and co-defendant, Ida P. January 10, 1898, Atkins and wife conveyed the property to defendant Young, and on the same day Young reconveyed to. Ida P. Atkins. These conveyances were voluntary, and the one to the wife has never been recorded. Plaintiffs’ judgments were rendered in the years 1898 and 1899. In the year 1896 Atkins and wife left the property and moved to Burlington, Iowa, where they lived until some time in the year 1899, when they moved to Mt. Pleasant, in this state, where they ndw reside. Plaintiffs contend that Atkins and wife abandoned their homestead long before the conveyance to. Young, and that it thereupon became subject to the payment of the husband’s debts. The issue of abandonment is the only one in the case, and to that we will direct our attention.

Plaintiff relies on the actual removal from the property ; the fact that Atkins voted three different times in the city of Burlington, once at least “swearing in” his vote; and declarations to the effect that he (Atkins) was going to remove to Burlington, and live there, in order, that he might get contract work from the coun|ty, and that he was required to reside there in order that he might secure the work. This, of course, makes out a prima facie case of abandonment, and in the absence of other evidence would be controlling. But defendants show that Atkins voted under *244 some misapprehensions as to the law; that he thought he had the right to vote “where his washing was done;” and that he never intended to abandon his homestead in Oskaloosa, where the property in question is situated. In addition to this it is shown, without dispute, that the Atkinses retained a room at all times in the Oskaloosa property; that they left several articles of furniture there; that Mrs. Atkins went with her husband to Burlington and Mt. Pleasant, in order that she might be near him while he was at work at or near these places; that her husband had been injured about the head, and that her presence with him was required; that they rented rooms at Burlington and Mt. Pleasant by the month; that she always intended to return to Oskaloosa and resume the occupancy of the former home. Moreover, the evidence shows that at the time they left Oskaloosa it was with the express intention of returning, and not with the thought of permanently abandoning the premises. True, no time for return was fixed; but it does appear that after the removal to Burlington the wife attempted to get work for the husband at Oskaloosa, 'in order that they might return. If the intention was to return if they could at some time in the remote future obtain employment for the husband in Oskaloosa, and this intent was conditional on securing the work, doubtless the abandonment would be complete under the doctrine announced in Conway v. Nichols, 106 Iowa, 359 , and other like cases. But if the abandonment was temporary, and with the specific intent to return at some future time, the length of the period being dependent <on future conditions, then there was no abandonment. Robinson v. Charleton, 104 Iowa, 296 ; Bradshaw v. Hurst, 57 Iowa, 745 ; Repenn v. Davis, 72 Iowa, 548 ; Painter v. Steffen, 87 Iowa, 171 . The distinction lies in this: that in the one case there is an intention to return, provided «certain conditions exist, while in the other there is fixed and definite intent to return from the beginning, the period .of absence alone being conditional. The distinction is, *245 perhaps, a little refined, but it has been recognized in our former holdings, which have strongly leaned, as they should, to the protection of the homestead estate. We agree with the district court in holding that there was no abandonment, and its decree is affirmed.