Anderson v. Patterson

Granger, PJ. [268] It is provided by section 1990 of the Code of 1873, as to homesteads, that “a conveyance or incumbrance by the owner is of no validity unless the husband and wife, if the owner is. married, concur in and sign the same joint instrument” Plaintiff bases [269] her right to relief on the fact of a homestead right in the premises, and the provision of the Code above quoted. There can be no question but that a homestead right may exist in land leased, or sold under contract, where the legal title remains in the vendor. Pelan v. De Bevard, 13 Iowa, 53; Stinson v. Richardson, 44 Iowa, 373; Belden v. Younger, 76 Iowa, 567. And it may be conceded that the plaintiff and her ■husband had a homestead right in the land in controversy, modified by the terms of the lease, which gave all the right plaintiff or her husband possessed. It may also be conceded that, had the husband desired to convey the land, in a legal sense, it could not have been done except by the concurrence of the wife in the way provided by law. There was never any election on the part of Patterson to forfeit the contract, but, on the contrary, he seemed disposed to extend to Anderson further time to meet his payments and save the land. It was only when Anderson came to Patterson, and desired him to convey the land to Gosman, that there was a talk of canceling the contract. At that time, however, the agreement was made to surrender and cancel the contract, because Patterson refused to make any conveyance to Gosman while the contract was outstanding. At the time of the sale of the land by Patterson to Gosman, and of the surrender of the contract of sale by Anderson, he (Anderson), in writing, leased the land of Gosman from May 15, 1894, to March 1, 1895, at a rental of one-third of the crop grown on the land; and he occupied the land in pursuance of the lease, and paid the rental agreed upon. As to Anderson, it is not to be doubted that he intended to and did abandon all interest he had in the land, including homestead occupancy. It is said there'was also an' abandonment by the plaintiff, and the conclusion is sustained by the record. She knew that her husband [270] was not paying for the place as the contract required; that he was trying to dispose of the land; that his title was only by contract requiring payment to. secure a title. She had the contract in her possession, or at least it was in a drawer to which she, most of the time, held the key; and, when Anderson called for the contract to be taken to Patterson, she got it for him, knowing what was to be done; and when her husband returned, the .same day, he told her what had been done, so that she had knowledge of the surrender of the contract, the conveyance by Patterson to Cosman, and the lease from Cosman. to Anderson. She nowhere pretends that she •made any objection, and the only reasonable inference is that she acquiesced in what wag then thought to be best, because of her husband’s inability to. pay for the land. After the transaction they occupied the land under the lease (that is, Anderson did), paying the rent, with her actual knowledge of such payments, and under circumstances entirely inconsistent with any claim, of right in the land except that of lessee. The rents had been assigned by Cosman to one Way, who. collected, them; and it is to. be said that, if she was not in accord with what had been done, and living on the land only, as the wife of a lessee, she was practicing a deceit, for she well knew that the land was held adversely to any other claim, and in good faith. She must have known' that her husband had abandoned any homestead right and she knew equally well that it was supposed shs claimed no such right. Deceit is not fairly to be imputed to her. Her acquiescence and participation in the abandonment of ail interests in the land except under the lease was in a way not unusual for a wife. It is true that Anderson says she said to him, when he came home with the lease, that she did not want to pay-rent, but his testimony is discredited to an extent that it should not be given force in this particular. Again, [271] it is not made to appear wbat was meant by tbe expression. It does not appear that sbe did not want to pay rent because sbe bad or claimed any right in tbe land. It appears almost conclusively that Anderson could not pay for tbe land, and any homestead right in it must be lost. This fact, known to. her, may well be considered as largely accounting for wbat appears to have been a mutual understanding between Anderson and bis wife that their occupancy after tbe sale to Cosman was only by virtue of the lease. Tbe case is quite like that of Bradshaw v. Remick, 90 Iowa, 409, in which we held there was an abandonment of tbe homestead by tbe wife by virtue of an occupancy under a lease. We think tbe decree of tbe district court is right, and it is AFFIRMED.