American State Reports - Vol. 102 - Abandonment of Homestead
American State Reports – Vol. 102
ABANDONMENT OF HOMESTEAD.
I. Introductory, 389.
II. Essential Requisites of an Abandonment.
a. Necessity for Actual Relinquishment of Possession, 391.
III. Necessity for Intent to Abandon, 392.
c. Time When Intention Must be Formed, 392.
d. Requirements Where Statute Prescribes Methods of
m. Who may Effectuate an Abandonment, 393.
IV. Acts Indicating Intent to Abandon.
a. Conveyances, Leases and Contracts Relating to the Property.
1. Conveyances and Contracts, 394.
A. For Whole Property, 396.
B. For Part of Property, 398.
b. Change in Character or Use of the Property, 398.
c. Acquisition of New Homestead, 399.
d. Removal from the Property.
1. In General, 400.
2. For Business Seasons, 401.
3. On Account of Election or Appointment to Office, 403-
4. On Account of Health or Old Age, 404.
5. For Better Care or Education of Children, 405.
6. With Contingent Intent to Return, 405.
e. Effect of Various Acts After Removal.
1. Offering to Sell the Property, 407.
2. Registering or Voting at New Domicile, 408,
3. Removal to Another State, 410.
f. Effect of Length of Time of Absence, 411.
In our consideration of this subject we shall not advert to those
cases -which relate to the termination of a homestead by means
other than abandonment, such as by waiver, estoppel or other acts
of the owners while still occupying the premises. The effect of the separation of husband and wife and of conveyances or encumbrances
by either of them was treated in the monographic note to Jerdee v. Furbush, 95 Am. St. Reports.
A homestead has been defined as the permanent place of residence of a party claiming the benefit of the homestead act: See Tumlinson v. Swinney, 22 Ark.400, 76 Am. Dec. 432; Gregg v. Bostwick, 33 Cal. 220, 91 Am. Dec.
637; Galligher v. Smiley, 28 Neb. 189, 26 Am. St. Eep. 819, 44 N.W. 187.
In Perry v. Ross, 104 Cal. 15, 43 Am. St. Eep. 66, S'7 Pac. 757, it was held that that which is covered by the exemption is the land and not any particular claim of the title to it. "In a majority of the states the fact that premises are occupied as a homestead is all that is necessary to render them exempt from execution. But in the other states a declaration of homestead must be made and filed for record, or some other kind of record notice must be given, showing the world that the occupants intend to insist upon their exemption rights": Freeman on Executions, sec. 241.
And in another portion of the same section, in referring to the creation of
homesteads, the rule deducible from the decisions is stated as follows:
"The first thing to be done to impress the homestead exemption on property is to make it a home. The law does not exempt future homesteads. It throws its protection around only that which is already consecrated by being the residence of the claimant as the home of himself and his family.
The declaration which the claimant may be required to file and record does not create a homestead. It is merely legal notice that one already exists, and that the claimant desires that it shall not be longer subject to forced
sale under execution. The homestead exemption cannot exist upon
property upon which the claimant and his family have never resided.
The fact that there is a homestead must precede the declaration of its existence. The declaration is not only false; it is also invalid if it precedes this fact. Where the law requires a declaration to be filed, the filing is of no consequence, unless it can be' shown that the premises were then occupied as a homestead. It is not sufficient that they had been so occupied here fore, or that they are so occupied after the filing." Sometimes the statutes of a state have provisions regarding homesteads which are different from those in the majority of states. Thus it was held in Utah that it was not necessary that a claimant of a homestead reside thereon if the land is used for the support of his family: Kimball v. Salisbury, 17 Utah,
381, 53 Pac. 1037.
While in South Carolina it was held that the right of a debtor to claim land as a homestead was not in any way dependent upon his previous use of it as such: Swansdale v. Swansdale, 25 S. C. 389. As a general rule, it is immaterial whether the estate of the homestead claimant be an estate in fee simple, an equitable title or a mere possessory interest, as long as he occupies the property for homestead purposes: Freeman on Executions, sec. 243. The question of whether a homestead claimant has abandoned
his homestead being mostly* one of fact, no general rules can be enunciated, and the question whether an abandonment has taken place must depend upon the peculiar facts of each case: Fyffe v. Beers, 18 Iowa, 4, 85 Am. Dec. 577; Kaes v. Gross, 92 Mo. 647, 1 Am. St. Rep. 767, 3 S. W. 840.
The facts most frequently relied upon as evidence of an abandonment are either the acquisition of a new homestead or a mere removal from the property claimed as a homestead. Consequently the question is mostly one of intent. However, it seems clearly settled that a homestead owner may, for purposes of health, pleasure, or any cause deemed sufficient by him, temporarily absent himself from his homestead without thereby abandoning it: Metcalf v. Smith, 106 Ala. 301, 17 South. 537; Tumlinson v. Swinney, 221 Ark. 400, 76 Am. Dec. 432; Taylor v. Hargous, 4 Cal. 268, 60 Am. Dec. 60&; Pierson v. Truax, 15 Colo. 223, 25 Pac. 183; Dearing v. Thomas, 25 Ga. 223; Fyffe v. Beers, 18 Iowa, 4, 85 Am. Dec. 577; Keeseman v. Davenport, 96 Iowa, 330, 67 N. W. 301; Moline etc. Co. v. Vanderhoof, 36 111. App. 26; Hixon v. George, 18 Kan. 253; Central etc. Asylum v. Craven, 98 Ky. 105, 56 Am. St. Eep. 323, 32 S. W. 291; Pratt v. Pratt, 161 Mass. 276, 57 N. E. 435; Kam v. Nielson, 59 Mich. 380, 26 N. W. 666; Campbell v, Adair, 45 Miss. 170.; Edwards v. Reid, 39 Neb. 645, 42 Am. St. Rep. 607, 58 N. W. 202; Corey v. Schuster, 44 Neb. 269, 62 N. W. 470; Austin V. Stanley, 46 N. H. 51; Fulton v. Roberts, 113 N. C. 421, 18 S. E.
510; Wetz v. Beard, 12 Ohio St. 431; Bowman v. Watson, 66 Tex. 295, 1 S. W. 273; Lindsay v. Murphy, 76 Vt. 428; Phillips v. Eoot, 68 Wis. 128 31 N. W. 712.
Another proposition which seems to be settled is that two homesteads cannot be held by the same person at the same time: Waggle v. Worthy, 74 Cal. 266, 5 Am. St. Rep. 440, 15 Pac. 831; Wright v. Dunning, 46 111. 271, 92 Am. Dec. 257; Sarahas v. Fenlon, 5 Kan. 592; Kaes v. Gross, 92 Mo. 647, 1 Am. St. Rep. 767, 3 S. W. 840; Eouse v. Caton, 168 Mo. 288, 90 Am, St. Rep. 456, 67 S. W. 578; Gerrish v. Hill, 66 N. H. 171, 19 Atl. 1001;
Ness V. Jones, 10 N. Dak. 587, 88 Am. St. Eep. 755, 88 N. W. 706.
[Dec. 1902.] Burkhart v. Walker & Son. 391
II. Essential Requisites of an Abandonment.
a. Necessity for Actual Relinquishment of Possession.—It seems
to be recognized as an essential requisite of an abandonment of a
homestead that there must be an actual abandonment of the premises,
coupled with an intention to abandon: Pardo v. Bittorf, 48 Mich. 275, 12 N. W. 164; Edwards v. Reid, 39 Neb. 645, 42 Am. St. Rep. 607, 58 N, W. 202; National Bank of Commerce v. Chamberlain (Neb.), 100 N. W. 943; Little v. Baker (Tex.), 11 S. W. 549.
The same principle has been recognized in many other cases. Thus,
in Lee v. Hughes, 25 Ky. Law Rep. 1201, 77 S. W. 386, it was held
that an intention on the part of a homestead owner to remove from
the state without a completion of the act would not constitute an
And in McDannell v. Eagsdale, 71 Tex. 23, 10 Am. St. Rep. 729, 8 S. W. 625, a homestead was held not abandoned by the desire of the owner to sell it, or by his desire to abandon it in the future, as long as he actually occupied it. So, also, the fact that parties claiming under a parol agreement to convey, the statute requiring the wife to join in a conveyance of the homestead, went into possession of the premises was held not to show an abandonment, where the old owners continued to live on the place and as fierted control in many ways, making improvements, keeping stock on the premises and taking a share of the proceeds of the farm: Alois V. Alois (Iowa), 99 N. W. 166.
And in Smith v. Pearce, 85 Ala. 264, 7 Am. St. Rep. 44, 4 South. 616, the court held that a verbal agreement by the husband to sell the homestead, he receiving part of the purchase money and allowing the vendee entrance to part of the dwelling-house, would not constitute an abandonment by the husband of his wife's homestead right nor enable him to sell without her signature or consent, where he with his family continued to occupy some rooms under an agreement to pay rent for them to the vendee. So, also, in Levingston v. Davis, 24 Tex. Civ. 497, 59 S. W. 942, it was held that the owner of two tracts (aggregating less than two hundred acres), who designates them as his homestead, and recorded his designation, does not abandon his homestead by moving from one tract to the other. And likewise in Cross V. Everts, 28 Tex. 52S, the mere promise of a husband and wife to exchange their homestead for other land, even though the transaction
was accompanied by a surrender of part of the place, was held not to constitute an abandonment, where the homestead claimants had never ceased to reside on the place.
And it is also held that the removal of a husband or wife from the homestead by reason of deserting his or her spouse does not constitute an abandonment, where the deserted spouse remains in possession of the homestead: Hall v, Roulston, 70 Ark. 343, 68 S. W. 24; White v. Clark, 36 111. 285; People v. Stitt, 7 HI. App. 294; Rogers v. Day, 115 Mich. 664, 69 Am. St. Rep. 593, 74 N, W. 190; Gardner v. Gardner, 123 Mich. 673, 82 N. W. 522; Blandy v. Asher, 72 Mo. 27; Morrill v. Skinner, 37 Neb. 164, 77 N. W. 375. Though 392 American State Reports, Vol. 102. [Mich.] Although a contrary view was held in Finley v. Saunders, 98 N. C. 462, 4
S. E. 516.
b. Necessity for Intent to Abandon.—In order for acts on the part of the owner of a homestead to constitute an abandonment of the homestead, there must be an intent on the part of such owner to abandon the use of the property as a homestead: Gates v. Steele, 48 Ark. 539, 4 S. W. 53; Stanton v. Hitchcock, 64 Mich. 316, 8 Am. St. Rep, 821, 31 N. W. 395; Edwards v. Reid, 39 Neb. 645, 42 Am. St. Rep. 607, 58 N. W. 202; Blumer v. Allbright, 64 Neb. 249, 89 N. W. 809; McMillan v. Warner, 38 Tex. 410; Scheuber v. Ballou, 64 Tex. 166.
But the duration of the intention to abandon after once formed is immaterial: Cline v. Upton, 56 Tex. 319. The necessity for an intention to abandon the homestead is illustrated by many of the cases. Thus, in Lynn v. Sentel, 183 111. 382, 75 Am. St. Rep, 110, 35 N, E, 808, it was held that a wife does not lose her homestead by a temporary absence when she leaves part of her household goods in the house on the homestead premises with an intention of returning. And in Blumer v. Allbright, 64 Neb. 249, 89 N. W. 809, the court held that a wife was not deprived of her homestead rights because her husband left the homestead without an intention to return unless she participated in his intention.
So, also, it is held that a wife loses none of her homestead rights by being driven from the homestead through the cruelty of her husband: Rogers v. Day, 115 Mich. 664, 69 Am. St. Rep. 593, 74 N. W, 190. And the detention of a husband or wife in a lunatic asylum is held not such an absence as indicates an intention to abandon the homestead: Way V, Scott, 118 Iowa, 197, 91 N. W. 1034; National etc. Assn. V. Maloney, 22 Ky. Law Rep. 1094, 60 S. W. 12; Holburn v. Pfanmilier's Admr., 24 Ky. Law Rep. 1613, 71 S. W. 940; Flynn v. Hancock (Tex. Civ.), 80 S. W, 245. And in this connection it was held in Central etc. Asylum v. Craven, 98 Ky. 105, 56 Am, St, Rep. 323, 32 S, W. 291, that if a man's wife is adjudged a lunatic while the family is occupying and claiming the property as a homestead, the fact that the husband, after her confinement m an asylum, slept at his father's house part of the time and took his meals there all the time does not show an abandonment of the homestead. And in Anderson v. Stadlmann, 17 Wash, 433, 49 Pac, 1070, the neglect of an insane wife to make a homestead selection under a new law, changing the manner of selecting homesteads, was held not an abandonment of a homestead previously selected by her.
In Gassoway v. White, 70 Tex, 475, 8 S. W. 117, the occupation of a business homestead of an insolvent by his assignee was held not to work an abandonment, if, as soon as the assignee discharges his trust by disposing of the goods contained in the business homestead, the owner resumes possession for business purposes.
c. Time When Intention Must be Formed.—To establish abandonment of a homestead the evidence must show not only removal from the homestead, but that it was done with the intention of not returning, or that after such removal the intention of remaining away was formed: Edwards v. Reid, 39 Neb. 645, 42 Am. St. Rep. 607, 58 N. W. 202. [Dec. 1902.] Burkhardt v. Walker & Son, 393.
But where the homestead is once abandoned, an intention to return can have no influence in restoring the lost homestead rights unless accompanied by an actual resumption of occupancy, but such resumption of occupancy can have no force against the rights of third persons acquired in the interim, between the abandonment and the resumption of occupancy: Kaes v. Gross, 92 Mo, 647, 1 Am. St. Rep. 767, 3 S. W. 840; Carter v. Goodman, 11 Bush, 228.
In Shepherd v. Cassiday, 20 Tex. 24, 70 Am. Dee. 372, it was said that the intention to abandon a homestead could be changed at any time before a new one is acquired, and that it was immaterial how the change was made known or ascertained, though it was intimated a resumption of homestead rights would not be allowed as against vested rights acquired after the abandonment. And Justice Dillon, in Fyffe v. Beers, 18 Iowa, 4, So Am. Dec. 577, said: "If the intention to abandon existed, we would not allow it to be resumed to the prejudice of intervening rights."
d. Requirements Where Statute Prescribes Methods of Abandonment.—
In some of the states, such as in California and Idaho, the method of abandoning a homestead is expressly prescribed by statute. Thus, in Idaho a homestead can only be abandoned by a declaration of abandonment or by a conveyance, acknowledged and executed by the husband and wife, if the claimant is married: Mellen v. McMannis (Idaho), 75 Pac. 98.
In McQuade v. Whaley, 31 Cal. 526, the court held that a homestead claimed under the act of 1851 was abandoned where the declaration of intention to continue, required by the act of 1861, was not filed within the time limited by that act. In Simonson v. Burr, 121 Cal. 582, 54 Pac. 87, the court held that a homestead once lawfully created could only be abandoned in the manner pointed out in the code, which provided that a homestead can be abandoned only by a declaration of abandonment or a grant thereof, and that such abandonment is only effectual from the time of its filing.
Hence, it is not abandoned by the claimants ceasing to reside upon the premises nor by a lease thereof and the purchase of other property upon which they have erected another home in which they are residing. In Estate of Winslow, 121 Cal. 92, 53 Pac. 362, the court, in construing an instrument to have the effect of abandoning the homestead rights of the parties, said that the law has prescribed no form of words for the abandonment of a homestead, and that the meaning of an instrument intended to have that effect is to be determined by the rules which control the interpretation of other contracts.
m. Who may Effectuate an Abandonment.
In Titan v. Moore, 4S 111. 174, the court said: "The husband, being the head of the family, has the right to determine and control their residence. And where he intentionally removes from and. (394 American State Reports, Vol. 103. [Mich.]) abandons the homestead, and his family accompanies him, neither he nor they have any power to resume it, so as to cut off intervening liens which have attached during such abandonment."
And in Farmers' etc. Loan Assn. v. Jones, 68 Ark. 76, 82 Am. St. Rep.
280, 56 S. W. 1062, the husband in applying for a loan on the property made affidavit that it was not used as a homestead; the court, in passing on his right to abandon the property, said: "While the act of March 18, 1887, is a limitation upon the right of the husband to convey his homestead except by the consent of his wife, it does not in any manner affect or restrict his right of abandonment.
This right he has by virtue of his marital and parental authority, and when he has chosen to exercise it, as he did here, he renders the property which had formerly been his homestead the proper subject of alienation without his wife's concurrence: Thompson on Homesteads and Exemptions, sees. 42, 276, 483; Titman v. Moore, 43 111. 169; Guiod v. Guiod, 14 Cal. 506, 76 Am. Dec. 440; Thorms v. Thorms, 45 Miss. 263; Story on Conflict of Laws; Williams v. Swetland, 10 Iowa, 51. See, also, Wilmoth v. Gossett, 71 Ark. 594, 76 S. W. 1073.
The Minnesota supreme court in Kramer v. Lamb, 84 Minn, 468, 87 N. W. 1024, stated the rule as follows: "It is claimed that the acts and intentions of the husband do not necessarily control the legal status of the wife. If, during his absence, the wife and family had remained at the homestead, a different question would be presented. But it has been decided in this state (Williams v. Moody, 35 Minn. 280, 28 N. W. 510), that as head of the family it is for the husband to determine and fix the domicile of the family, including that of the wife, so that when he and his wife remove from the homestead his intention fixes the character of the removal as an abandonment."
In Wright V. Dunning, 46 111. 271, 92 Am. Dec. 257, it was held that a homestead may be abandoned by a widow in the same manner as a husband could. And it is also held that the abandonment of a homestead by a mother who is a widow terminates her children's rights in the homestead property: Kloss v. Wylezalek, 207 111. 328, 99 Am. St. Rep. 220, 69 N. E, 863; Shepard v. Brewer, 65 111. S83. And in Kaes V. Gross, 92 Mo. 647, 1 Am. St. Eep. 767, 3 S. W. 840, the court held that a widow residing upon her homestead, who remarries and immediately removes with her children and household goods to the home of her new husband without expressing an intention of returning to her old homestead, must be considered as abandoning the old homestead, notwithstanding that otherwise as between herself and children, the homestead was indivisible and not alienable until her youngest child became of age.
IV. Acts Indicating Intent to Abandon,
a. Conveyances, Leases and Contracts Relating to the Property.
1. Conveyances and Contracts.—It does not seem disputed that a conveyance by the husband and wife purporting to grant the
([Dec. 1902.] Burkhardt v. Walker & Son. 395) land comprising the homestead in present to the grantee will operate as an abandonment of the homestead: Security Loan etc. Co. v. Kauffman, 108 Cal. 214, 41 Pac. 467; McDonald v. Crandal, 43 111. 231, 92 Am. Dec. 112.
In Garibaldi v. Jones, 48 Ark. 230, 2 S. W. 844, the court, after remarking on the objects of the homestead exemption provided by the Arkansas constitution, and the rights of the minor children therein, said: "It follows, then, the widow cannot alienate the homestead of her deceased husband.
But she is not bound to accept and enjoy the beneficent provisions made for her by the constitution. Being under no disability, she can abandon the homestead and renounce the benefit of the rents and profits thereof, and thereby surrender and forfeit all claims to it. She can do so by any act which evinces such to be her purpose.
If she sells and conveys it, she most unquestionably evinces such intention, and thereby forfeits her homestead rights: Wright v. Dunning, 46 111. 271; Orman v. Orman, 26 Iowa, 361; Phipps v. Acton, 12 Bush, 375; Whittle v. Samuels, 54 Ga. 548; Locke v. Powell, 47 N. H. 46. When the widow of Anderson conveyed the lands in question to appellees and abandoned them, they became assets in the hands of the administrator for the payment of the debts against the estate."
In the principal case (Burkhardt v. Walker) it was held that a conveyance of a homestead by the husband and wife to a third party, who at once reconveyed to the wife, did not constitute an abandonment. In Hugunin v. Dewey, 20 Iowa, S68, such a transfer to a third person to be held in trust for the wife was held not to operate as an abandonment. A ruling similar to that in the principal case was also made in McHugh v. Smiley, 17 Neb. 626, 24 N. Y. 277. In Jones v. Currier, 5 Iowa, 633, 22 N. W. 663, the court held that where the husband conveys his homestead to a third person, who reconveys to the wife, he will be considered to have abandoned it in the absence of proof that his object was merely to vest the title in her.
And In Re Lamb's Estate, 95 Cal. 397, 30 Pac. 568, an agreement between a husband and wife for the division of a homestead and deeds executed in
pursuance to that agreement, but which were not recorded, was held not to operate as an abandonment under the California code. In Sanford v. Finkle, 112 111. 146, the husband, after having received a deed for certain land from his wife's parents, surrendered the deed to them for the purpose of having them convey the land to his wife; his deed was destroyed and a new one made to his wife.
The court held that the transaction was not an abandonment of his homestead rights. In Nichol v. Davidson County, 76 Tenn. (8 Lea) 389, it was held under the act of 1868, providing for a homestead to a housekeeper or head of a family, such right was not lost by a transfer from husband to wife. In Murphy v. Farquhar, 39 Pla. S. 50, 20 South. 681, it was held that an attempt to transfer the legal title to the wife and removing with the family to a place several miles distant, where the claimant and his family resided [396 American State Reports, Vol. 102. [Mich.]] for five years, visiting the homestead only as one would look to a piece of property located so near at hand, was sufficient to justify a finding of abandonment.
In Thomas v. Smith, 8 Kan. App. 855, 54 Pac. 695, a wife, after being deserted by the husband, quitclaimed the homestead and moved away; she sued her husband for divorce but failing to get jurisdiction, dismissed the suit. Pending the proceedings, the husband conveyed to her grantee and she subsequently joined in the deed. The court held that the facts constituted an abandonment. Leaving the homestead after an invalid execution sale and failing to return or to in any way question the sale for more than five years was held in Newman v. Franklin, 69 Iowa, 244, 28 N. W. 579, sufficient to justify a finding of an abandonment. In Dortch v. Benton, 98 N. C. 190, 2 Am. St. Rep. 331, 3 S. E. 638, it was held that the claimant of a homestead does not forfeit his homestead rights by making a conveyance thereof with intent to defraud his creditors. And in Anderson v.
Cosman, 103 Iowa, 266, 64 Am. St. Rep. 177, 72 N, W. 523, a wife was held to have abandoned her homestead rights in lands held by her husband under a contract of purchase reserving title in the vendor, where her husband, with her knowledge and consent, surrenders said contract to the vendor who, under an agreement between the parties, conveys the land to a purchaser from the husband, and the husband and wife thereafter remain on the land as tenants.
It was held in Bunker v. Coons, 21 Utah, 164, 81 Am. St. Rep. 680, 60 Pac. 549 that a homestead right, when vested in the head of a family, cannot be waived by a contract, in advance of its assertion, since contracts of that nature are against public policy. And in Zachmann v. Zachmann, 201 111. 380, 94 Am. St. Rep. 180, 66 N. E. 256, an antenuptial agreement to waive homestead rights in the husband's estate was held against public policy. In Allbright v. Hannah, 103 Iowa, 98, 72 N. W. 421, a daughter's parents promised their son in law that if he would erect a house on land belonging, to them, clear the land and put it into cultivation, that he could have it when they were done with it. The son in law did so. It does not distinctly appear whether the contract was verbal or in writing. The court held that the parents abandoned their homestead rights in the property. Oral contracts for the sale of homesteads, followed by possession by the grantee were held to constitute an abandonment of the grantor's homestead rights in Drake v. Painter, 77 Iowa, 731, 42 N. W. 526, and Winkleman v. Winkleman 79 Iowa, 319, 44 N. W. 566.
A. For Whole Property.—The fact that an owner rents his homestead during an absence therefrom is a circumstance tending to show an abandonment, but is not necessarily inconsistent with an intention to return to the property: Wapello County v. Brady, 118 Iowa, 482, Herrick v. Graves, 16 Wis. 157. Ordinarily a lease of a homestead for life is conclusive evidence of an abandonment of it, but where the lease reserves to the lessor the right to return to it and it is his intention to return there is no abandonment: Gates v. Steele, 48 Ark. 539, 4 S. W. 53.
Occupation of a homestead by a tenant by sufferance, without payment of rent, is an occupation by the owner and tends to show an intention of returning: Macavenny v. Ralph, 107 111. App. 542. In Palmer v.
Riddle, 197 111. 45, 64 N. E. 263, it was held that where the owner rented his homestead for three years on a verbal understanding that the lessee would surrender the premises if the owner desired to return to the state before the expiration of the lease, there was no abandonment. In that case the departure was for the benefit of the health of the owner's husband. It is quite generally held that the temporary renting of the homestead does not constitute an abandonment of it: Tumlinson v. Swinney, 22 Ark. 400, 76 Am. Dec. 432; Dallemand v. Mannon, 4 Colo. App. 262, 35 Pac. 679; Hixon
v. George, 18 Kan. 253; Dulanty v. Pynchon, 6 Allen, 510; Earll v. Earll, 60 Mich. 30, 26 N. W. 822; Spratt v. Early, 169 Mo. 357, 69 S. W. 13; Locke v. Rowell, 47 N. H. 46; Wetz v. Beard, 12 Ohio St. 431; Pryor v. Stone, 19 Tex. 371, 70 Am. Dec. 341.
But where the premises are permanently rented without intention of returning, the homestead rights therein are abandoned: In re Vincent, 115
Ped. 236. See, also, in this connection, Pitney v. Eldridge, 58 Kan. 215, 48 Pac. 854; MeClenaghan v. McEachem, 47 S. C. 446, 25 S.E. 296; Williams v. Cleveland, 18 Tex. Civ. App. 153, 44 S. W. 689. In Wurzbach v. Menger, 27 Tex. Civ. 290, 63 S. W. 679, the fact that the owner had been renting his houses for over ten years, and that the rent is necessary for the support of his family, was held conclusive evidence that the premises were permanently set apart as tenant houses.
In Warren v. Kohr, 26 Tex. Civ. 331, 64 S. W. 62, an eight year lease which required the lessee to erect certain cattle-pens on the premises, thereby unfitting it for homestead purposes, and which gave the lessee an option to a renewal, was held sufficient to support a finding of abandonment. In
Peebles v. Bunting, 103 Iowa, 489, 73 N. W. 882, a widow after the death of her husband removed to another place, where she remained for about nine years; she then returned to the farm for a period of seven years; then she removed to another place for three or four years, making arrangements with her children, who cultivated the farm, to receive rent from them. The court held that she could not claim homestead rights in the farm.
In Bland v. Putman, 132 Ala. 13, 32 South 616, an owner was held to have abandoned his homestead, where he rented it for a series of years and moved away without reserving any part of the dwelling for use as his residence and without filing the claim of homestead provided for by the
Alabama code. And in Gist v. Lucas, 122 Ala. 557, 25 South. 41, the removal from the state for four years, together with the rental [398 American State Reports, Vol. 102. [Mich.]] of the homestead during such period with only occasional visits of inspection, and a failure to reoccupy the premises upon return to the state, was held to constitute an abandonment.
B. For Part of Property.—In the principal case the temporary rental of a homestead from month to month, reserving only the use of a back room for the purpose of storing furniture, with the intention of speedily returning, was held to constitute no abandonment.
In Simpson v. Biffle, 63 Ark. 289, 38 S. W. 345, the renting of some of the rooms of a residence for a hotel was held not to abandon the homestead rights. In Heathman v. Holmes, 94 Cal. 295, 29 Pac. 404, the court, in holding that the renting of part of a building does not deprive the owner of his exemption of the building as his homestead, if it continues to be the bona fide residence of the family, said: "It would be strange, indeed, if the occupants of a house could not use part of it for family revenue, no matter how favorable the opportunity might be to do so, without forfeiting the home itself. There is nothing in the homestead laws which prohibits such use, and it has been settled here that 'the homestead statute is a remedial measure and should be liberally construed.' "
In Farmer v. Hale, 14 Tex. Civ. 73, S7 S. W. 164, the owner of a small tract of land near a village rented it from year to year, but reserved the use of a pasture. There was evidence showing intention to return to the residence thereon. The court held that there was no abandonment. And in Billings v. Matlage (Tex. Civ.), 82 S. W. 805, the rental of a business homestead under a lease which gave the lessor the right to terminate it upon sixty days' notice, and which reserved a portion of the premises for the use of the lessor, was held insufficient to show an abandonment, there being, however, evidence showing an intention to resume the former mercantile business therein.
In Metcalf v. Smith, 106 Ala. 301, 17 South. 537, the renting of the cultivable part of an agricultural homestead and the permitting of the father of the tenant to occupy a room in the house without payment of rent, was held insufficient to show an abandonment.
b. Change in Character or Use of the Property.—Where part of a residence homestead is fitted for a store and rented for such purposes, it loses its character as a residence homestead: King v. C.M. Hapgood Shoe Co., 21 Tex. Civ. 217, 51 S. W. 532. So, also, where the owner of a residence homestead converts a portion of it into a business homestead by the erection of a saloon, which he leases, it shows an abandonment: Warren v. Kohr, 26 Tex. Civ. 331, 64 S.W. 62. But the temporary possession by a tenant whose rights and use of the property are not inconsistent with the homestead rights of the owner will not deprive the premises of their homestead character: Upton v. Coxen, 60 Kan. 1, 72 Am. St. Rep. S41, 55 Pac. 284. Nor will a homestead be deemed abandoned from the fact that the owner neglects to use a portion of his dwelling-house, or that he appropriates a portion of it to some other use: Phelps v. Rooney, 9 Wis. 70, 76 Am. Dec. 244.
In Anderson v. Sessions, 93 Tex. 279, 51 S. W. 874, the fact that a lot, which was purchased for residential purposes, is used for raising vegetables for the owner's family was held not to show an abandonment, where the owner still intended to build on the lot when able. In Shook v. Shook, 21 Tex. Civ. 177, 50 S. W. 731, it was held that where a person buys a city lot for residential purposes, builds a residence in the middle of the lot, then builds a fence separating a cottage, which was on the premises, from his residence, and rents the cottage, there is no abandonment of any part of the premises if no intent to segregate the premises existed.
In Drew v. Wooten, 27 Tex. Civ. 456, 66 S.W. 331, a married man, who owned a block containing twelve lots, built a house on a comer lot and resided therein; he sold one of the lots without his wife joining in the conveyance. But prior to the execution of the deed he allowed the grantee to place the lumber which was subsequently used in building a house, on the lot. The court, in holding that the lot sold was abandoned for a residence homestead, said: "It has been several times held in this state to be within the power of the husband acting in good faith, without the concurrence of the wife, to contract the homestead area by abandonment, he being the head of the family. There must, however, be an actual abandonment, mere intention to abandon, as evidenced by his deed and the like, not being sufficient where the homestead use continues. But where, prior to or contemporaneous with the delivery of the deed and surrender of actual possession of a part of the homestead premises, there is both the good faith intention on the part of the husband, who makes the deed, to abandon and an actual cessation of the occupancy and use of the part so conveyed as a part of the homestead, such conveyance by him alone is not within the constitutional inhibition."
But in Clements v. Crawford County Bank, 64 Ark. 7, 62 Am. St. Rep. 149, 40 S. W. 132, the platting of part of a homestead into lots, naming it a village, filing the plat, and selling part of the lots so platted, was held not to create a town or village so as to limit the homestead to a village homestead nor to constitute an abandonment of the unsold part so platted. In O'Brien v. Woeltz, 94 Tex. 148, 86 Am. St. Rep. 829, 58 S. W. 943, 59 S. W. 535, the act of setting part of the owner's land apart as a business house and executing a mortgage thereon to build the business structure was held an abandonment as a residence homestead.
c. Acquisition of New Homestead.—Inasmuch as one person cannot hold two homesteads at the same time (see subdivision I), the removal from one homestead coupled with the acquisition of a new homestead elsewhere is conclusive proof of abandonment of the former homestead: Wolf v. Hawkins, 60 Ark. 262, 29 S. W. 892; Titman v. Moore, 43 111. 169; Davis v. Kelley, 14 Iowa, 523; Woodbury v. Luddy, 14 Allen, 1, 92 Am. Dec. 731; Donaldson v. Lamphrey, 400 American State Reports Vol. 103. [Mich.]
29 Minn. 18, 11 N, W. 119; Kaes v. Gross, 92 Mo. 647, 1 Am. St. Rep. 767, 3 S. W. 840; Carrigan v. Eowell, 96 Tenn. 185, 34 S. W. 4; Allison v. Shilling, 27 Tex. 450, 86i Am. Dec. 622; Weaver v. Nugent, 72 Tex. 272, 13 Am. St. Kep. 792, 10 S. W. 458.
In Rouse T. Caton, 168 Mo. 288, 90 Am. St. Rep. 456, 67 S. W. 578, it was declared that a homestead may be abandoned by the owner moving
elsewhere with his family and occupying other land which he declares to be his homestead. And in Kloss v. Wylezalek, 207 111. 328, 99 Am. St. Rep. 220, 69 N. E. 863, it was held that a widow who has a homestead abandons it when she removes to her husband's homestead on her remarriage. See, also, Ghent v. Boyd, 18 Tex. Civ. 88, 43 S. W. 891, to the same effect.
d. Removal from the Property.
1. In General.—It may be stated as a general rule that temporary absence from a homestead with the intention on the part of the owner to return will not constitute an abandonment of the homestead: Tumlinson v. Swinney, 22 Ark. 400, 76 Am. Dee. 432; Gray v. Patterson, 65 Ark. 373, 46 S. W. 730; Guiod v. Guiod, 14 Cal. 506, 76 Am. Dec. 440; Lynn v. Sentel, 183 111. 382, 75 Am. St. Rep. 110, 55 N. E. 838; Davis v. Kelley, 14 Iowa, 523; Hixon v. George, 18 Kan. 253; Moses v. White (Kan. App.), 51 Pac. 622;
Campbell v. Potter, 16 Ky. Law Rep. 535, 29 S. W. 139; Lyons v. Andry, 106 La. 356, 87 Am. St. Eep. 299, 31 South. 38, 55 L. E. A. 724; Dulanty v. Pynchon, 6 Allen, 510; Kalding v. Joachimsthol, 98 Mich. 78, 56 N. W. 1101; Campbell v. Adair, 45 Miss. 170; Duffey v. Willis, 99 Mo. 132, 12 S. W. 520; Pryor v. Stone, 19 Tex. 371, 70 Am. Dec. S41; West Eiver Bank v. Gale, 42 Vt. 27; In re Phelan's Estate, 16 Wis. 76; Phillips v. Root, 68 Wis. 128, 31 N. W. 712.
But an actual removal from the homestead with no intention to return constitutes an abandonment: Fyffe v. Beers, 18 Iowa, 4, So Am. Dec.
577; Maguire v. Hanson, 105 Iowa, 215, 74 N, W. 776; Smith v. Kidd, 123 Mich, 193, 81 N. W. 1092. In Lyons v. Andry, 106 La. 356, 87 Am. St. Rep. 299, 31 South. 38, 55 L, E. A. 724, it was said that a change of residence from a homestead to an adjoining place, if the result of calamity and not a voluntary act, is not proof of an abandonment. And in Anderson v, Davis, 18 Utah, 200, 55 Pac. 363, it was held to be no abandonment where the owner, when leaving the homestead temporarily, left many personal effects on the place.
But in Porter v. Harrison, 124 Ala. 296, 27 South. 302, it was held under quite similar facts that such a removal was an abandonment. In Edmonson v. White, 8 N. Dak. 72, 76 N. W. 986, it was held that a tract of land did not cease to be a homestead because at a particular time there was no habitable house on it, where the owner, though living elsewhere fully intended to return and reside on the property. In Leake v. King, 85 Mo. 413, a claim to a homestead was sustained on the ground that the owner's family left the state because of the disturbed condition of Missouri at
[Dec. 1902.] Burkhardt v. Walker & Son. 401] the close of the Civil War. In Black v. Black's Admr., 11 Ky. Law Rep. 147, 12 S. W. 147, it was held that there was no abandonment. In that case the owner moved from his village homestead to a farm in which his wife had an interest; he had frequently stated that the removal was temporary, and he had left some personal property at the village homestead. He died while on the farm, but his widow testified that he would shortly have returned to the village homestead.
In Collins v. Boyett, 87 Tenn. 334, 10 S. W. 512, it was held that the removal of a wife and husband, after a conveyance by the husband to which she had verbally assented, was not an abandonment of her homestead rights, though a contrary ruling had been made in Levison v. Abrahams, 82 Tenn. (14 Lea) 336. In Farmers' etc. Loan Assn. v. Jones, 68 Ark. 76, 82 Am. St. Rep. 280, 56 S. W. 1062, it was held that an owner who removes from his homestead and makes application for and procures a loan thereon by declaring in writing that the land is not his homestead, thereby abandons. And in Blackman v. Moore-Handley etc. Co., 106 Ala. 458, 17 South. 629, it was held that where a person leaves his homestead because it is too small for his own and his second wife's family, and afterward rents it, the facts show an abandonment.
In Wilmoth V. Gossett, 71 Ark. 594, 76 S. W. 1073, it was held that a widow would not be precluded from claiming a homestead in her deceased husband's lands which her husband and herself had occupied for many years preceding and up to his death, merely because she also owned lands of her own upon which they had formerly lived. The court, in making its decision, said: "The husband's home must be the wife's; she must follow him, and not the reverse, is the legal status. He is the controlling spirit in this legal unity, and has a right to select and also to abandon the home at his will."
2. For Business Reasons.—A temporary removal from the homestead for the purpose of more conveniently conducting business or for the purpose of being better able to earn a living for the family of the homestead owner, is not generally deemed an abandonment of the homestead where the homestead owner has a bona fide intention to return to the homestead: See Brown v. Watson, 41 Ark. S09; Kobinson v. Swearingin, 55 Ark. 55, 17 S. W. 365; Robson V. Hough, 56 Ark. 621, 20 S. W. 523; Wilks v. Vaughan (Ark.), 83 S. W. 913; Painter v. Steffen, 87 Iowa, 171, 54 N. W. 229; Mc
Farland v. Washington, 12 Ky. Law Rep. 376, 14 S. W. 354; Ragsale etc, Co. v. Watkins, 25 Ky. Law Rep. 506, 76 S. W. 45; Walton v. Walton, 76 Miss. 662, 71 Am. St. Rep. 540, 25 South. 166; Eckman v. Scott, 34 Neb. 817, 52 N. W. 822; Quigley v. McEvony, 41 Neb. 73, 59 N. W. 767; Lindsay v. Murphy, 76 Va. 428.
In Omaha Brewing Assn. v. Zeller (Neb.), 93 N. W. 762, it was held that the fact that a homestead owner resided for business reasons nearly six years elsewhere and was registered as a voter in an adjoining city did not conclusively show an abandonment. And temporary removal to another state for a year or two at a time, attending to [Am. St. Rep., Vol. 10