Herren v. Herren , 152 Okla. 281 ( 1931 )

William H. Herren, now deceased, married Rebecca Herren on April 22, 1912. Sixteen days prior thereto he executed a deed, attempting to convey the remainder interest in the farm in controversy to his three sons of his first marriage. By the majority opinion this deed is held to be testamentary in character for it conveys no interest in presenti. I have some doubt as to the correctness of that holding. I am firmly convinced as to the error of the majority view upon the invalidity of a second deed between the same parties and as to the same land, which second deed was executed more than ten years subsequently. Contained within the provisions of the first deed there was a clause:

"The said party of the first part hereby and herein reserves to himself * * * a life estate in said land. * * *"

That reservation is an idle gesture unless an interest was intended to be granted by the words that preceded and followed it, for, at the time, but for a grant of an interest, the whole of the title was in the grantor. The parties, grantor and grantees by the act of executing that deed, must have intended to do something with the interest in this farm. It is plain that the intention of the owner and grantor, William H. Herren, was to grant and convey unto his three sons the remainder and reserve unto himself a life estate in the land.

The question involved in connection with the first deed is whether grantor, William H. Herren, performed that which he intended — is there contained in the deed a grant? Did an interest in the land by the terms of the deed pass in presenti? If not, that instrument is testamentary in character, and being so it is not a deed.

In Ramey v. Stephney, 70 Okla. 87, 173 P. 72, this court held:

"Another cardinal rule of construction is that the grant must be construed to effect the plain intention of the grantor, and if that intention is plain, it controls, regardless of inconsistent clauses which are to be reconciled by the intent deduced from the entire instrument."

It was so held in Smart v. Bassler, 101 Okla. 39,223 P. 352. However, such rule is dependent upon a grant. The only way I can spell an unmodified grant out of this first deed is through the reservation clause. Due to the fact that such a grant is adduced by construction, I am frank to say that I am not without doubt as to the sufficiency thereof. For the result in this case, that matter is immaterial. Be the decision upon that point as it is, I maintain the conclusion of the majority is in error as to the second deed executed on March 21, 1923, between the same parties and to the same land, held to be void for the reason that the farm in question constituted a homestead requiring the joint grant of the wife, Rebecca Herren. My reasons are:

(1) This second deed (of the year 1923) recites therein, "none of the aforesaid premises being the homestead of the grantor herein."

(2) William H. Herren and Rebecca Herren did not reside upon this farm after the summer of 1914, which was nine years before the date of the second deed.

In Perkins v. Cissell, 32 Okla. 827, 124 P. 7, this court held in paragraph 4, of the syllabus:

"Where all the proof shows that a person owning lands removes therefrom and continuously lives on other lands in the county for five years, and then executes a deed to the lands, held, that such facts make a prima facie case of abandonment of the lands as a homestead."

In the body of the opinion, this court said:

"A removal from land upon which a party has been living, and a continuous absence therefrom for five or six years, and a conveyance of the land, would surely make a prima facie case of abandonment, and would require proof of an animus revertendi."

As stated, in the case at bar, the continuous absence from the farm in question is nine years.

(3) The grantor, William H. Herren, and Rebecca Herren lived in the city of Cherokee in a rented house until the year 1917, when they left this state and went to Idaho. They later returned from Idaho, purchased a home in Cherokee and lived therein; later they traded this residence for a farm, not the one in controversy, and thereafter purchased another home in Cherokee where they lived until the death of William H. Herren.

(4) While living in Cherokee, William H. Herren ran for the office of sheriff, voted, and Rebecca Herren voted, as citizens and residents of Cherokee. In the meantime the land in controversy was occupied by defendant Edgar Herren.

It is true that Rebecca Herren, her son and daughter of a former marriage, testified that William H. Herren, during his lifetime, expressed intention of returning to the land in controversy, to live, when the son of Rebecca Herren grew old enough to till the soil. In my opinion, the type of these intentions was insufficient to sustain the homestead character of the land, but they destroy it. These intentions were "dependent on a contingency." In order to sustain the homestead character of this farm, it was necessary that intention to return accompany the abandonment and remain intact.

In Carter v. Pickett, 39 Okla. 144, 134 P. 440 this court held:

"Where the removal from the homestead is unaccompanied by a present intention, existing at the time of the removal, to return thereto, but instead by a mere probable future purpose to so do, dependent on a contingency which might never happen, the homestead exemption is thereby abandoned."

Here the testimony is that when and if a boy grows old enough to farm, the owner will return. That evidence shows the absence of animus revertendi by the presence of a possibility of a future change in purpose. Moreover, the boy was 20 years of age at the time of trial — quite old enough when the second deed was executed to farm, and, therefore, this evidence shows on abandonment of intention to return by failure to perform upon the occurrence of the contingency as stated. The expressed probable future purpose to return to the farm annihilates the idea of a fixed and existing intention, which must be continuous in order to maintain the homestead character of* property not occupied.

Fixed intention, evidenced by overt acts of preparation, may impress lands with a homestead character, without actual occupancy, when and only where actual occupancy, or attempt to occupy, follows the intention without unreasonable delay. Sharpe v. Wright, 88 Okla. 16, 211 P. 70; Osman v. Payton,98 Okla. 194, 223 P. 382; Storm v. Garnett, 99 Okla. 284,227 P. 417; Davis v. First State Bank, 65 Okla. 211, 166 P. 92; Hyde v. Ishmael, 42 Okla. 279, 143 P. 1044; Greenwood v. Wilkinson, 124 Okla. 300, 256 P. 46.

In First Nat. Bank of Allen v. Burnett, 122 Okla. 255,254 P. 95, this court said:

"Abandonment of a homestead is a question of fact in which the intent of the parties is controlling."

In Elliott v. Bond, 72 Okla. 3, 176 P. 242, this court held:

"When a homestead character once attaches to property, it will continue to be the homestead until the owner voluntarily changes its character by going away from it, with the family, with the fixed and definite intention of not returning and occupying it as a home, or forms such fixed and definite intention after leaving it."

With these rules in mind, let us look to the facts and circumstances of this case. Had William H. Herren, in 1912, performed that which he plainly intended to do by the deed of that year, i. e., grant and convey, in presenti, a remainder interest in this farm unto his sons and reserve unto himself a life estate, there would now be no homestead right to this farm in Rebecca Herren, for, upon Mr. Herren's death, the title would be in the sons. By virtue of that solemn and now testamentary document, William H. Herren prevented this farm from being impressed with a homestead right in his then intended bride, now widow. Eleven years thereafter, and when approaching the brink of eternity (one year, four months before his death) he granted and conveyed this property of his estate, by warranty deed, to his sons, and acknowledged the same as his free and voluntary deed, and incorporated therein these words:

"None of the aforesaid premises being the homestead of the grantor herein."

I am of the opinion that Rebecca Herren, as widow of William H. Herren, had no homestead right in and to this farm, but that her homestead right existed in and to the city residence, where for many years she and her husband made their home, and where William H. Herren departed this life.

Assuming that this farm was impressed with the homestead character and a homestead right in Rebecca Herren, then, in weighing the animus revertendi, it appears to me that the contemporaneous acts of the parties speak so loud that their voiced intention cannot be heard.

Note. — See under (2) anno. 13 Rawle C. L. 647; R. C. L. Perm. Supp. p. 3398.