Orman v. Orman , 26 Iowa 361 ( 1868 )

Beck, J.•

1. Homestead: abandonment. — -Upon the-death of John H. Orman his widow could have continued in the possession and occuPancy of ttie property as her homestead. Pev. g 2295. If} however, she abandoned its occupancy as a homestead, it ceased to have that character and she will be deemed to have waived or forfeited her right thereto as a homestead. Such abandonment in order to forfeit the homestead right must be permanent; not a mere temporary absence, with an intention of returning to the occupancy of the property as a home. Fyffe v. Beers, 18 Iowa, 4; Stewart v. Brand, 23 id. 478.

Upon the abandonment of the property as a homestead by defendant, she became a tenant in common with plaintiff, with equal rights to the profits thereof. Eev. §§ 2495-6; 1 Wash. E. P., 436. If she received the rents she is liable to plaintiff for the one-half that came into her hands.

2. __ prima facie abandonment. Does the petition sufficiently show such an abandonment of the property as to forfeit defendant’s homestead right therein ? It is averred, that, after the p-QgPgj^ gpe no£ 0Ccupy the property as a homestead, and that she is a non-resident of the State and a resident of Illinois. Under a liberal construction of the petition authorized by Eevision, section 2951, this must beheld a sufficient averment of facts showingprima, facie abandonment of the homestead. Probably defendant could have resided out of the State for the time shown in the petition, yet, on account of an amimus revertendi would not have forfeited the right of homestead. It is not necessary, however, that the cmim/ws revertendi should be denied in the petition; if it existed it should have been averred by answer. The objections to the petition raised by the demurrer, that it does not sufficiently show plaintiff’s interest in the property and negative defendant’s homestead Ught therein are not well taken.

3. Demurrer cause. So far as the demurrer is aimed at the relief asked for by the appointment of a receiver, it should have been overruled. Such an objection is not among the enumerated causes of demurrer as contained in section 2876 of the Eevision.

Eeversed.