Robertson v. Sullivan

Berry, J. For ten years prior to June 5, 1882, one Garrison owned a lot in the city of St. Cloud containing less than one-quarter of an acre, together with the dwelling-house and out-buildmgs thereon. During all that time he (except as hereinafter stated) and his wife (the two comprising the whole family) continuously resided thereon. In May, 1881, under the United States homestead law, he selected, and made application for the entry of, a quarter-section of land in Crow Wing county, and at the time of entry made the usual affidavit that he took said homestead for the purpose of actual settlement and cultivation. In September following he began to make improvements, on the land, and in March, 1882, moved his office furniture and a bed into a house he had erected thereon, and, except for temporary absences, remained there up to the time of the trial of this action, in April, 1883. Mrs. Garrison was never upon the Crow Wing county land until after June 5, 1882, always refusing to remove thereto or off of the St. Cloud property until after that date, and both she and her husband, during the entire ten years before mentioned, claimed that property as their homestead. None of the furniture of Garrison or his wife, except the office furniture and bed before mentioned,, was removed from the St. Cloud house until after June 5,1882. On that day Garrison and wife conveyed the lot to plaintiff. The question is whether, upon the foregoing facts, the St. Cloud homestead was abandoned on or before the 5th day of June, 1882, so as to become subject to the liens of judgments docketed against Garrison be.fore the conveyance to plaintiff. The court below thought not, and we agree with it. That the St. Cloud property was the legal homestead of the Garrisons is indisputable. If it was abandoned, it was because it was so removed from that it ceased to be the family home or dwelling-place. This would be the ease if there were a removal in fact, with the intention, either [200] •actual or implied by law, not to hold it as the family home or dwelling-place longer. There was no such removal in this instance. Notwithstanding Garrison’s absence upon the Crow Wing county land, ■the St. Cloud property continued to be the family home and dwelling-place, — the furniture remaining there, and the wife remaining there, ■with a constant claim of both Garrison and wife that there was the homestead. This proposition is not affected by the fact (if it be one) that the federal government may have cause of complaint on account of the use made of the United States homestead law. It is, nevertheless, true that the St. Cloud property was all the while the actual family home and dwelling-place, and so claimed to be, and therefore •our statutory homestead. Savings Bank of Decorah v. Kennedy, 58 Iowa, 454; and see Leonard v. Ingraham, Id. 406. Donaldson v. Lamprey, 29 Minn. 18, is readily distinguished from the case at bar by its facts. This case suggests interesting questions as to whether a husband can abandon a homestead without the co-operation of his wife, and as to what would be the result if, he having selected a new domicile upon land which he might hold as a homestead, she should refuse to remove from the old one and take up her residence with him; (see Drury v. Batchelder, 11 Gray, 214;) but we are relieved from their consideration by the fact that here the husband made no attempt to abandon the St. Cloud homestead, and the further fact that the wife remained upon it with his active consent, as inferable from the fact that he as well as she continued to claim it as a homestead; that is to say, as the family home or dwelling-place. Judgment affirmed.