Anderson v. Kent

The opinion of the court was delivered by Brewer, J.: [211] Abandonment of homestead, [210] Defendant in error recovered a judgment in ejectment against plaintiffs in error. It was admitted on the trial below that the title to the property in dispute had been, prior to the conveyances offered in evidence, in one Erastus Renfro. Mrs. Kent' offered in evidence a deed from said Erastus Renfro, dated June 1,8th 1872, and this was her title. Plaintiffs in error offered certain judicial proceedings against Erastus Renfro and wife, commencing with an attachment levied on said premises on June 26th 1872, and ending in a sheriff’s deed; and this was their title. There was a general finding for plaintiff, Mrs. Kent. It is claimed that the deed to Mrs. Kent was void, because it was an attempted conveyance of a homestead in which the wife did not join. Was it a homestead at the time of the conveyance? Renfro’s family consisted of himself and wife, and together they had occupied the premises as their homestead until sometime in May 1872, when the wife left, and, as appears from a long letter of hers to her mother, with the intention of not returning. The' furniture remained in the house, though sold some three weeks prior thereto to Mrs. Kent, and Renfro continued to occupy it until the day or the day before the execution of the deed. -On the 17th of June he was in Johnson county, at the home of Mrs. Kent, and together they returned to Paola, reaching the house on the morning of the 18th. On that day, in the morning, he executed the deed, and left town on the evening train. On this same morning he was asked by one of the defendants to give them a mortgage on the place to secure their debt, but he declined, saying it was his homestead, and that he thought they ought not to ask him to mortgage his homestead. It is entirely clear that when Mrs. Ren [211] fro left in May she abandoned all interest in the homestead. She not only declares in her letter 'her separation from her husband, but also adds: “ I have not taken anything with me, not even all my clothes. If I can make a living for myself he can certainly get along with the property,” etc. And it may also be reasonably inferred from the circumstances, that the abandonment by him of the homestead and the execution of the deed were contemporaneous. We do not mean to decide that he had or had not a homestead interest after the abandonment by his wife; but if he had, it ceased with the execution of the deed and his surrender of the property. It does not appear whether the key and the possession were surrendered before or after the execution of the deed. Probably under the circumstances of this case it is immaterial which. There was clearly enough testimony to support a finding of the abandonment of the homestead before 'the execution of the deed. Neither Renfro nor his wife are contesting the validity of this conveyance; and if they are satisfied with it, a subsequent judgment-creditor must make a clear case before he can ask a court to set it aside. Declaration of party, in disparagement of title. A second alleged error is in the admission of the letter from Mrs. Renfro to her mother, Mrs. Kent. The objections made to it were, that it was “incompetent and irrelevant.” The letter is quite lengthy, was written after she left her husband, and before the execution of the deed, and gives the reasons of her separation from her husband, and her in- ^ ' tentions as to the future. It is, so far as this case is concerned, a declaration by one said to have a homestead-interest in disparagement of that interest, which, by well-settled rules, is always competent. If there were objections to any particular statements in the letter they should have been pointed out, and are not covered by a general objection to the whole of the letter, some portions of which were unquestionably competent and relevant. [212] 3. Ejectment; second trial; laches. [211] It is said that the court erred in not giving a second trial. [212] No demand was made for a second trial under section 599 of the code, only a motion fora newtrial undersection c\/\r* _ ¿06. 1 his disposes ox the matter, it may also be noticed that this was really the second trial. The record shows that at a prior term a trial was had, a jury impanneled, the plaintiff’s testimony offered, a demurrer to the evidence sustained, and the jury discharged from the further consideration of the case. It fails to show the entry of a formal judgment, but it does show that plaintiff appeared and moved for another and a new trial, which motion was sustained, and the case continued to the next term. The judgment will be affirmed. All the Justices concurring.