Bradshaw v. Remick

GrBANGEB, C. J. We do not think that it is necessary to- consider the claim of appellants as to the platting and sale of the land, for we are agreed that there was, after the sale, an abandonment of the homestead right, without which there, was no legal basis to set aside the sale and grant the relief prayed. There is no room for serious contention but that, as to the husband, there was an abandonment, because of his leasing the premises for four years and occupying them under a lease to his son for another year after the deed to the defendant. The parties continued their occupancy of the premises for the full period of their statutory rights, and when the sheriff’s deed was made, which gave to the purchaser the right of possession, Bradshaw acquired the right to further occupy them just as any stranger would naturally and legally have acquired such a right, — by contract with the owner. He gave unmistakable evidence of an intentional change in the character of his occupancy from that of owner to that of lessee. His occupancy as lessee was absolutely inconsistent with a claim of homestead right. The character of the leases he signed was, in every particular, in plain contradiction of a homestead claim or right. Aner Bradshaw, the wife, was not a party to the leases, but the situation is little less conclusive as to her. She 412 knew of the sheriff’s deed to Bemick; she knew that, in consequence of the sale, her husband intended to, and did afterward, lease the land, and of his continuous occupancy as a lessee. So far as a wife could, she ■acquiesced both as to his understanding of the situation and purposes of occupancy. There was not a word of protest, dissent, or disapproval. We may say that it was then manifest to both of them that the title had passed by the foreclosure sale, and they were occupying “the land by contract with the owner. She nowhere says that -she then thought she was occupying it as a homestead. Some “straws” are afloat at which appellants are now grasping, but the facts are no less conclusive on this point than they would be if, after the sheriff’s deed was made, they had moved from the premises without an intention to return, and then, after nearly,five years, had set up a homestead right. The legal conclusion is that they ■concurred in the sale as made, and it is now too late to retrace their steps. Considerable stress is placed on the fact that Mrs. Bradshaw did not sign the leases, or any of them, by ■applying that fact to the law requiring the husband and wife to concur in and sign the same joint instrument in order to pass the homestead right or the title on which it rests. The statute has no application. The ■conveyance of the homestead was when she joined with her husband in the execution of the mortgage under which the sale took place. The leases but indicate the purposes or character of the occupancy after the deed was made. The leases, of themselves, took from her tlo right. It was the relation she voluntarily assumed “under the leases, showing a voluntary surrender of the homestead claim. Numerous authorities are cited wherein are announced rules favoring homestead protection, as that the homestead is for the benefit of the family, and an abandonment by the husband will not 413 affect the right of the wife so long as she remains in possession; that in such a case a purchaser from the husband will be required to account to the wife for the rents, etc. Particular stress is placed on the case of Morris v. Sargent, 18 Iowa, 90, wherein it is held that the mere fact of a husband’s becoming a lessee of' property claimed as a homestead, although it may recognize the title in another, will not affect the rights of' the wife in the homestead. Our holding in this case is-no infringement on the rule there stated. We do not in any way bind the wife because of the acts of the-husband, but because of her own acts, after the leases were made and her long course of acquiescence in a. situation known to her, indicating her intention during that period. The cases are in no important sense-alike. No case cited is against our conclusion. Appellants’ claim that defendant took the title-under an agreement to reconvey,-upon payment to him of purchase price and other liens, is not supported by the evidence. There was, before the land was purchased by defendant, some talk that Bradshaw might, have the land back for what defendant “had in it.” That it amounted to a valid agreement, at the time, is, because of the meagerness of its details, quite doubtful. It is certain that Bradshaw did not assume any obligation in the matter whatever. There was merely a talk that if he paid what defendant “had in it”' he could have the land back, and it appears that defendant regarded that as his agreement. But, in a later-conversation, he says that Bradshaw “acknowledged that he could not get the money at that time, and that settled it.” The entire course of business between the-parties for five years, nearly, in regard to the land is against an understanding that the title was in defendant only in trust, but it is in harmony with the fact of absolute ownership by defendant. Their contracts from time to time fully recognized such ownership, and. 414 far outweigh, the effect to be given to loose and random talks in regard to so important a matter, wherein no' time for performance was fixed, nor any other detail, not even making the obligation mutual. Such evidence is too weak to set aside a conveyance of. land. These considerations dispose of the case. The judgment in each case will stand affirmed.