Johnson County Savings Bank v. Carroll

Waterman, J. Tbe facts material to an understanding of tbis case, admitted by tbe parties or established by tbe evidence, are substantially as follows: In tbe year 1869 Moreau Carroll married tbe intervener. At tbat time sbe was tbe owner of one hundred and twenty acres of land in Cedar county. They improved tbe land, and occupied it as a borne for four years. Carroll purchased an equal quantity of land near by, and tbe two were occupied and farmed as one for two1 or three years. Carroll was then elected county auditor, and tbe family moved to Tipton. In tbe year 1879 tbe farm was sold, — tbe part owned by Mrs. Carroll, and probably all of it,- — for thirty-five dollars an acre; and in December of tbat year Carroll purchased three hundred and fifty-five acres of land, known as tbe “MeGrosky Farm,” near Tipton, for twelve thousand seven hundred dollars. He occupied it with bis family until tbe year 1883, when it was sold for fifty dollars per acre, and tbe Bond farm, containing more than nine hundred acres, in Johnson county, was: purchased by Carroll; and be moved bis family upon it, and continued to reside upon a portion of it until tbe year' 1892, when be moved with bis family to Iowa City. Parts of tbe Bond farm were sold to different persons. In tbe year 1884 Carroll conveyed an undivided one-third of tbe land be owned to two brothers of bis wife, named Alexander and George Grace, and for some time thereafter Carroll and tbe Grace brothers carried on tbe farm as partners. Carroll bad been interested in a grange store in Cedar county, and, on account of bis connection with it, bad become responsible for tbe payment of considerable sums of money; and in tbe year 1886, to protect tbe Grace brothers, to1 whom be was owing about six thousand dollars, be executed to them a conveyance of his remaining interest in tbe Bond farm. It appears, bow567 ever, that there was no change in the occupation of the farm, and he continued to. be regarded by the parties concerned as the owner of an interest in it until the year 1892, when a settlement was effected, and he moved to Iowa Oity, as stated. When the settlement was made, ten thousand dollars was found to be due him; and five thousand seven hundred dollars in money, and four thousand three hundred dollars in notes made by one Earl G. Cotter, and secured by a mortgage, were delivered to him as payment of the amount found to be due. Carroll moved to Iowa City in February, 1892. On the 27th day of June of that year he entered into an agreement in writing for the purchase of the premises in controversy from Andrew Beermaker and Amanda, his wife, for the agreed price of three thousand seven hundred and fifty dollars, of which two hundred and fifty dollars were paid on the day the agreement was made, and the remainder was to- be paid “on or before August 1, 1892, on possession being given of said premises as herein stipulated for.” The agreement also contained the following: “On the payment of said sum, three thousand five hundred dollars, being the balance of the purchase price of said premises, the said Andrew Beermaker and Amanda Beermaker agree that \hr-v will, on or before the first day of August, 1892, execute to said Moreau Carroll a good and sufficient warranty deed for said premised, and' show good title, alack free from incum-brance, 1 and deliver possession of said premises to said Carroll under said deed on or before the first day of August, 1892. It is further agreed that said Beer-maker and his family may occupy, free of rent, from the time of the making of said deed to August 31, 1892, the front room below, the front room above, and the- room above immediately in the rear thereof, in said dwelling house.” Payment of the two hundred and fifty dollars by Carroll on the contract the day it was entered into was made by a check drawn on plaintiff bank. On the next day a deed for 568 tbe lot was drawn, and in dne time signed and acknowledged by Beermaker and bis wife, wbicb purported to convey tbe lot in question to' Carroll; but it was not delivered to bim until tbe 27 th of July, 1892. Two days before that time be commenced to move into tbe bouse, and completed moving on tbe 26th, and since that time it has been occupied as tbe borne of bis family, although for about two weeks after tbe family moved into it tbe Beermakers continued to occupy a part of it. Carroll lived with bis family until tbe 17th of May, 1895, when be absconded, and since that time bis .family has not known anything of bim. On tbe day tbe deed was delivered to Carroll, be borrowed of tbe plaintiff tbe sum of three thousand eight hundred dollars, wbicb was placed to bis credit on tbe books of tbe bank; and tbe payment of three thousand five hundred was made by means of a check, drawn against tbe credit of four thousand two hundred and eighty-eight dollars and twenty-two cents, which Carroll then bad. Bor tbe loan Carroll gave bis note as security, deposited the Cotter notes and mortgage, and when his note matured it was taken up, and a new note given therefor; and that process of renewal was continued until tbe note in suit was given. Tbe decree of tbe district court subjects the premises in controversy to the payment of three thousand five hundred dollars of tbe debt of Carroll, with interest thereon from the date on which it was contracted. I. It is claimed that the premises in question were pur' chased with money which belonged to the intervener, and also that it was purchased with the proceeds of a former homestead. We do not think either claim is sustained by tbe evidence. It satisfactorily appears that the intervener at one time owned one hundred and twenty acres of land which was sold in the year 1819 for thirty-five dollars per acre; but it also appears that tbe land was then incumbered for an amount not shown, and that the incumbrance was paid from tbe purchase money. It is probable that a part of 569 tbe proceeds of that sale was paid on tbe purchase of the MeCrosky farm, but the amount of money paid on account of that farm is not shoYm. A few weeks after the contract therefor was made, MeCrosky acknowledged the receipt of three hundred and eighty-six dollars on the contract. That contract provided, the land should be conveyed to Carroll free from all liens, excepting such as he should assume. What incumbrances he assumed, if any, are not shown; but in January, 1881, he and his wife executed a mortgage on the farm to secure the payment of three thousand dollars, and that mortgage recited that it was subject to a mortgage for six thousand dollars. What money, if any, received from the sale of the MeCrosky farm was used in the purchase of the Bond farm is not shown. The only direct evidence which tends to show that Mrs. Carroll had any interest in the farm last named, or the proceeds of the sale, is furnished by an attorney who drew the deed which Carroll executed to his brothers-in-law in the year 1886. That attorney testifies that at the time the. deed was executed a contract was drawn up by which the Grace brothers assumed certain indebtedness on the Bond farm, and agreed to pay Mrs. Carroll either two thousand five hundred dollars or three thousand five hundred dollars, which Carroll stated was the amount he had received from the sale of her place in Cedar county. Although both the intervener and Alexander Grace testify, it is not shown whether the money was paid to her as provided by the contract or not; and, so far as the record shows, she may have received the money, or her brothers may yet be under obligations to pay it to her. If it be conceded, however, that the settlement made in 1892 superseded that of 1886, it does not appear that any money which belonged to the intervener was used in purchasing the premises in controversy. Although Carroll received five thousand seven hundred dollars in money from his settlement with the Grace brothers, his balance in bank on the 16th day of June, 1892, was less than fifty dollars, and his balance 570 against whieb bis check for two hundred; and fifty dollars was drawn for the first payment on the lot was about five hundred dollars, and he is not shown to have had any other money. Before the last payment was made he had deposited in the bank the further sum of about three hundred and fourteen dollar’s; and on the day the last payment was made he had to his credit in the bank, exclusive of the proceeds of the loan the plaintiff made him, the sum of four hundred and eighty-two dollars and twenty-two cents. Therefore, of necessity, all of the last payment, except the sum last specified, must have been derived from the loan made by the plaintiff on the day the payment was made; and although an aggregate of seven hundred and thirty-eight dollars and twenty-two> cents was paid on the lot, which-might have been received from the Grace brothers, yet there is no evidence whatever that any of it belonged to the intervener. It is evident, also, from the facts we have set out, that, of the payments made, not more than the sum last specified could have been derived from the sale of a homestead. But the source from which Carroll obtained the deposits he made, and which made that sum, is not shown. Alexander Grace states that all which was found to be due Carroll on their .settlement was paid to him on the first of March, 1892; hence the deposits made after June 16th do not appear to have been from the Bond farm. The sum allowed Carroll for the- homesfe^d is not . ho-'.fn. The amount received on the settlement included what was due Carroll, if anything was due, for his share of what the farm produced for eight years, and possibly the price of the personal property; and the most that can be said in favor of the claim of the plaintiff is that about fifty dollars of the money paid for the place in controversy, and possibly about seven hundred dollars in addition, may have 2 been obtained from thei Bond farm. But the burden was on the intervener to show what money, if any, which was derived from the sale of the homestead in the Bond farm, was used for paying for the homestead in 571 question. She says that she always thought the proceeds of the homestead in the Bond farm went into the homestead in controversy, butt it is clear she had no personal knowledge of the matter. We conclude she has not shown, with the necessary certainty, that the home she is occupying, or any interest therein, is exempt because the money used in its purchase was obtained from the sale of a former homestead. II. It is claimed that, even if it be true that no exemption can be claimed on the grounds already considered, the homestead character attached to the premises when the contract for their purchase was entered into', and the payment of two hundred and fifty dollars| made; and especially when the premises were occupied by Carroll as a home for himself 3 and his family two days before the debt due to the plaintiff was contracted. It is well settled that the homestead right does not depend upon a title in fee simple, but that it may attach to property held under a lease (Pelan v. De Bevard, 13 Iowa, 53), or under a bond or contract for a deed (Stinson v. Richardson, 44 Iowa, 373; Lessell v. Goodman, 97 Iowa, 681). In this case the contract provided that Carroll was not to be entitled to possession of the premises until final payment should be made. But this was a provision that could be waived by the parties, and if they did •waive it, and Carroll took possession under such contract of purchase, his homestead right would attach at the time such possession was taken, against all except then existing creditors. At the time the contract was made, Beermaker was in California. When the instrument was executed there were present, besides Carroll, Mrs. Beermaker and one Stouffer, who, as agent for Beermaker, negotiated the sale. It is important to know who took part in making the sale, as bearing upon the question of waiver, for Beermaker was not .in Iowa City when the Carrolls went into possession of the property. As stated heretofore, Carroll made a cash payment at the time the contract was executed. By the terms 572 of .this agreement the balance was to be paid on or before 4 August 1, 1892, “on possession being given of said premises.” The undisputed testimony shows that Carroll and his family moved into the Beermaker house, with the consent of Mrs. Beermaker, and without objection from any person, on July 25, 1892. The furniture and household goods of the Beermakers had been largely moved out at this time, though the family retained two rooms for occupancy, and boarded with ithe Carrolls for about a week thereafter, when they finally vacated the premises. The possession so taken by Carroll on the 25th of July was under the contract. He had no other right or claim to the property. Thart he did not enter under mere sufferance on the part of the Beermakers is shown by the fact that they requested the privilege of occupying the rooms they after-wards held, until they should leave for the West. The fact that Mrs. Beermaker looked after the execution of the contract in her husband’s absence shows that she was endowed with some authority in relation to the sale, and it is not questioned on the part of the vendors that Carroll’s possession under the contract began when he moved in. This was two days before the indebtedness to plaintiff was incurred. It is true that negotiations for. a loan had been pending for some time, but nothing was done which was binding upon either party in this respect until July 27th. At this time we think Carroll’s homestead right had attached, and therefore plaintiff has no> claim upon the property in suit. — Reversed.