Gaston v. Horn

Ladd, J. The plaintiff had purchased two lots of True, and afterwards arranged with Horn to pay True $25 on the price, and procure a deed thereof from True, and execute to him a mortgage thereon to secure the remainder of the purchase price. This was done, and, having loaned plaintiff $185 in addition thereto, defendant executed a contract to convey the lots to plaintiff upon the payment of the $185, with interest, in eighteen months, the grantee to assume the mortgage to True. The plaintiff’s wife did not join in these transactions, and in her petition of intervention alleged that the premises were the homestead of herself and family, and prayed that it be protected against the claim of defendant. "Whether it was such, and whether the contract described was forfeited, are the only issues submitted for review. 1. Homested. establishment: occupancy. I. The testimony bearing on the occupancy of the premises as a homestead is not such as to warrant interference with the decision of the trial court that it was not so occupied. Plaintiff and his sons may have siept there previously, and a trunk, some bedding, and possibly other articles, may have been taken there from the house near by where they lived; but the house was not then habitable. Only a part of the roof was on, and the windows were uncased. According to one witness, who is undisputed, the doors and windows were nailed in during the winter, and plaintiff admitted he did not sleep there when “too awful cold.” He continued to pay rent for the place where- he had resided and get his meals there, though he explained that the payment, of rent was. for his daughter and son-in-law. Merely sleeping in a roofless house is not alone sufficient occupancy of the premises to constitute them a homestead, any more than sleeping in a tent, or with only the skies above. It is entirely consistent with another pur [678] pose, as that of having a temporary place to sleep, and that it was so used is confirmed by the testimony. The design in borrowing the money was to complete the house therewith, so as to render it habitable, and the district court rightly held that he did not enter into its occupancy as a home until the spring of 1909. The case is readily distinguishable from Neal v. Coe, 35 Iowa, 407, which involved the change of homesteads, and, of course, some time was required to effect such change, and according to subsequent decisions this is a reasonable time. Robinson v. Charleton, 104 Iowa, 296; section 2981, Code. Here the inquiry is: When did the homestead character first attach? And, as said, this was long after the transactions under consideration, and when actually occupied as such. II. The notice of forfeiture described the contract, and indicated that, if plaintiff should ‘ ‘ fail to fulfill the terms of said contract, the amount of $500, due 2' ekty: contract: Charles Horn, and costs of serving of this nofeiture: suf- tice, the said Charles Horn will declare a for- flciency. feiture of said contract as provided by law. ’ ’ Counsel for appellant argue that this exacted payment of the $500 to Horn. Not so, for it merely called upon the vendee to fulfill the terms of the contract, which were that he pay the $185, with interest, and assume the payment of the $275 to True. It is said that the notice of forfeiture merely threatens to declare a forfeiture, but none is shown to have been declared. All the statute requires is that the notice “shall contain a declaration of an intention to forfeit said contract, and the reason therefor.” Defendant’s cross-petition for cancellation was sufficient declaration of forfeiture. The decree quieting title in defendant is Affirmed.