Rodgers v. McCune

Hill, J. Where an equitable petition was brought by one who purchased a lot of land, during the existence of a homestead thereon, at a sheriff’s sale under the levy of a fl. fa. against the surviving beneficiaries of the homestead estate, alleging that the legal title was in the plaintiff, that the homestead estate had terminated by reason of the fact that the head of the family was dead, that his alleged widow (who in reality was never his legal wife) had abandoned the property, that the children were of legal age, that the homestead property was unoccupied and the houses thereon were falling into decay, and that the defendants were attempting to sell the property, — and praying that the homestead be declared at an end, that the title to the land and the right of possession be decreed to. be in the plaintiff, that he be put in possession, and that the defendants be enjoined from taking possession of or selling or attempting to sell the land in controversy; and where the petition showed that in a former suit against him a decree had been rendered, enjoining [658] the plaintiff from taking possession of the property in question until the termination of the homestead, “and then the injunction be dissolved,” and where the recitals in the petition were not sufficient to show that the homestead had terminated, and only collaterally sought to attack its validity, it was not error to dismiss such petition on motion. July 3, 1915. Equitable petition. Before Judge Pendleton. Eulton superior court. April 29, 1914. Robert L. Rodgers, for plaintiff. Judgment affirmed. All the Justices concur.