Jones v. Blumenstein

Given, C. J. 1. appbax,- ' amount‘myolved.: mterestíureal lateral'eon-I. The motion to dismiss the appeal must be overruled. The case “involves an interest in real estate.” The plaintiff and defendant Blumenstein each claim title to the property . . n . m question, and each asks to be quieted m that title. The controversy as to the defendants Singleman and Reisman is incident to the main issue, and must follow the appeal. 2. a homestead • ' ¿entrevidenoe. II. On the hearing, objections were made by plaintiff to certain parts of the testimony of defendants Blumenstein and Singleman, wherein they stated what other persons had said as to plaintiff’s not intending to return to the property at the time she went to North English, and as to what Blumenstein believed about it when he purchased. These statements did not purport to have been made by the plaintiff to third persons, and were therefore inadmissible, and the objections were well taken. 3. T pfSntiff-o£ estoppei. III. Singleman testified, subject to objection, that $16.12 of his judgment against the plaintiff was on his individual account, and $18.89 on account was ^ue esfca^e Voss. If, as índicated in the record, Singleman took judgments in his own name on both accounts, the objection should be sustained ; for he will not now be permitted to question the judgment for the purpose of avoiding personal liability for the money received, and, if he took separate judgments, they are the best evidence of their respective amounts. [365] 4. Homestead : meant1°whatis not. 5. tob¿head's ifnot: what IV. The right of plaintiff to be quieted in her title and possession depends entirely upon whether it was ker homestead at the time of the sale to Blumenstein. It appears from the testimony that the plaintiff purchased the property about the tenth of February, 1871, and resided there with her husband until his death, March 8, 1871; that she continued to reside thereon up to August, 1885, — her son-in-law and daughter residing with her for some time prior to August, 1885, they living together as one family ; that in August, 1885, Mr. Nettifee, the son-in-law, having found employment at North English, moved to that place, the plaintiff going with them, to be with her daughter during confinement; that they remained there about eight months, when she and her daughter returned to the property in question. At the time that plaintiff left for North English, she rented the property to one Schauff, leaving part of her furniture in the house, and taking such articles along as she would need. The plaintiff testifies that it was her intention to make a visit as long as she wanted, and return home when she pleased. Nettifee testified that he did not move to North English to stay, but took his wife there so he could look after her during her sickness. There is an entire absence of any testimony showing that the plaintiff ever expressed any other intention than to return to the property in question. It is claimed that, by taking the family of her son-in-law to reside in the premises, he, and not she, was the family. Had she continued to reside there alone after her husband’s death, her right to hold it as a homestead, under section 1989, would not be questioned. We hold that receiving the family of her daughter into the home, and living as they did, was not an abandonment of the plaintiff’s homestead right. It is claimed that her removal to North English was an abandonment of her homestead. As already stated, there is an entire absence of any testimony showing that the plaintiff ever expressed any intention to abandon the homestead, and [366] there is nothing in the tacts and circumstances oí her absence to show such an intention, but, on the contrary, they indicate an intention to return and dwell in the property. See Fyffe v. Beers, 18 Iowa, 4; Morris v. Sargent, 18 Iowa, 90; Davis v. Kelley, 14 Iowa, 523; Robb v. McBride, 28 Iowa, 386; Shirland v. Bank, 65 Iowa, 96. 6. sterns sale-caveat amp- ' V. It is also claimed that as due notice was given of the sale, and the defendant Blumenstein purchased in good faith without knowledge of the ’s claim, she is estopped from asserting the claim to the homestead. The doctrine ox caveat empior applies to parchasing at sheriff’s sales. Hamsmith v. Espy, 19 Iowa, 444; Holtzinger v. Edwards, 51 Iowa, 384. Blumenstein shows in his testimony that he knew that the plaintiff had resided in the property for eleven years previous, and that she had left some articles there when she went to North English. We fail to see anything in the acts of the plaintiff to justify the belief that she had abandoned the homestead, or was in any wise consenting to the sale thereof, or the disposition of the proceeds. 7. tíonsale vaca^sl^Rtaa8" cuüon^redIt0IS' VI. We are unable to discover upon what theory the court decreed that the judgments not belonging to Blumenstein should be assigned to him. Having set aside the sale, it was proper to set aside the satisfaction of the judgments, so far as the same had been made by applying the purchase money. If the judgments were not a lien upon the property in question because of its being a homestead, and that fact was unknown to Blumenstein, he has a right to have Singleman and Reisman refund the purchase money received by them, under the provisions of section 3090 of the Code. The decree of the district court is affirmed in all respects, except in so far as it orders an assignment of the judgments to Blumenstein; and, as there was no finding as to the amount of purchase money received by Reisman and by Siugleman, the case will be remanded [367] for further hearing as to said amounts, and for judgments against Reisman and against Singleman in favor of the defendant Blumenstein, for the amounts which it may he found they respectively received, with six per cent, interest and increased costs ; the defendant Blumenstein to pav the costs of this appeal. Modified and Affirmed.