Behrend v. Buchmann

Siebecker, J. It is contended that the court erred in finding that the land lying west of the line locatéd and agreed upon by plaintiffs and defendant Fred Buchmann on November 12, 1914, as the correct division line between their properties, did not constitute a part of defendants’ homestead and [245] that plaintiffs had been in actual possession and occupancy of these lands lying west of such line since 1896. It cannot be-said that these findings are against the clear preponderance of the evidence, and hence they must be approved. The claim is made that the agreement of defendant Fred Buchmann, the husband of Lena Buchmann, by which he and the plaintiffs established the division line between their respective properties in November, 1914, has no validity in law because it conveyed part of defendants’ homestead without consent of Lena, then the wife of Fred Buchmann. This claim is not well founded, because: first, the fact is established that the land west of the line is not a part of the premises defendants acquired under their deed and it is established that plaintiffs have been in actual occupancy and possession thereof since 1896; and secondly, since the land occupied by defendants on which their home is located is east of the division line agreed upon in November, 1914, and exceeds in area one quarter of an acre, it was legally competent for Fred Buchmann, the husband, and owner of the property, to select it as their homestead. Fred Buchmann’s agreement with the plaintiffs, by which they established the designated division line, constituted a selection of what area was his homestead, and the homestead rights of his wife, Lena, attached to the area he so selected. From this it follows that no part of their homestead was affected by the agreement fixing the division line between the property of plaintiffs and defendants. The court found that defendants have repeatedly trespassed upon plaintiffs’ premises and threatened to continue to do so. It is manifest that under the facts and circumstances of the case this equitable remedy restraining defendants from continuing these threatened wrongs is an appropriate and the only adequate remedy to protect the plaintiffs against the invasion of their legal rights to the property in question. We find no reversible error in the record. By the Court. — The judgment is affirmed.