Trower v. Wetmore , 123 Okla. 81 ( 1926 )

Both parties in their briefs state:

"The question for decision is whether or not the property was the homestead of William Gottman and his wife, Susie Gottman, at the time of his death."

This agreement of the parties as to the determinative issue involved in this proceeding renders unnecessary a consideration of the assignments of error seriatim.

A careful reading of the testimony preserved in the record of the trial discloses that, some eight or ten years prior to the trial, marital troubles arose between Gottman and his wife, resulting in her obtaining a divorce, and in her removal to the home of her daughter at Idabel, in McCurtain county. At one place in her testimony she stated that she obtained the divorce in Wagoner county before leaving Coweta for Idabel. At another place she testified that the divorce was obtained in McCurtain county, after her removal to her daughter's. There were no minor children.

Regardless of which statement is correct concerning the forum of the divorce proceeding, it is indubitable that during the remaining months or years after the divorce, during which Gottman occupied the premises in controversy, his occupancy was that of a single man and not as head of a family. The decree of divorce operated as an abandonment of the homestead, and withdrew from him the benefits of the homestead exemption laws of the state (Const., art. 12; Comp. Stat. 1921, section 6595): conferring upon him merely the exemptions of a single man. (Comp. Stat. 1921, section 6599.) He could at any time thereafter convey or mortgage the premises in controversy without the consent of his former wife. Goldsborough et al. v. Hewitt, 23 Okla. 66, 99 P. 907.

It is undisputed that Gottman left the premises in controversy March 22, 1918. The tenant who rented the premises from Gottman, and to whom Gottman delivered possession, fixed the date of his entry positively. He further testified:

"A. He told me he was leaving. Q. Tell the court substantially what the — what he said? A. He told me he was leaving Coweta and hunting a better place, and I asked him if he was coming back sometime, and he said, 'No, I am going away for good.' Q. Did he ever come back after that? A. Twice after that for a short time. Q. Did he ever live in this place after that? A. No, sir. Q. Did he say anything about coming back on a visit? A. No, he told me he would probably come back on a visit sometime, he might come back on a visit. Q. Leaving for good? A. Yes, sir. Q. Do you know Mr. Gottman, — did you know him when he lived at Coweta? A. Yes, sir. Q. You know when he left there? A. Well, I believe in 1918 when he left there at that time. Q. His family, anybody else besides himself? A. No, just himself. Q. Do you know his wife? A. Yes, sir. Q. When did you see her prior, there, prior to that time, the time you moved in the house? A. It had been a year or more before that. Q. Where was that? A. There at the place. Q. Has she been back since then? A. Not that I know of."

It is further disclosed by the testimony of this witness that he paid the rent to Charlie Walcott by direction of Gottman. Walcott testified:

"Q. Was there any interruption in your collection of the rents? No, sir. Q. Did they remain away all the time? A. Never was back there to live after they put it in my hands. Q. You continued to collect the rents from that time on? A. Until he died. Q. You are quite positive of that? A. Yes, sir."

After Gottman rented the premises to Brassear, and told him he was leaving for good, he went to McCurtain county. At some uncertain date thereafter he and Mrs. Gottman became reconciled and were remarried at Hugo. The new family thus created never at any time occupied the premises in controversy as a home.

Plaintiff, testifying in his own behalf, stated that he had lived in Coweta eight or ten years preceding the trial; that he had known William Gottman about a year before he moved away; "got well acquainted with him"; that Gottman lived on the premises in controversy up to the time he moved away; that he knew of no one living with him; that he never knew Mrs. Gottman until he took the deed from her; that if Gottman ever lived in Coweta after moving away he never knew it.

It is clearly evident from the testimony of Brassear, Walcott, and the plaintiff that the homestead character was never impressed upon this property by actual occupancy after the family created by the second marriage of Gottman was established. This being town property, actual occupancy is necessary to impress upon it the homestead character (Const., art. 12, see. 1; Comp. Stat. 1921, section 6597), or there must exist an intention to make it a home for the family evidenced by overt acts of preparation for a reasonably delayed occupancy. Kelly v. Mosby, 34 Okla. 218, 124 P. 984; Laurie v. Crouch, 41 Okla. 589, 139 P. 304; Watson v. Manning,56 Okla. 295, 155 P. 184; Illinois Ins. Co. v. Rogers,61 Okla. 43, 160 P. 56. Bouse et al. v. Stone et al., 65 Okla. 5,162 P. 479; Foster et al. v. Vickery et al., 111 Okla. 231,239 P. 141. During the five or six years intervening between the remarriage of these people and the death of Gottman, they never occupied these premises as a home, nor was any overt act performed evidencing an intention on the part of William Gottman to make of it such a home. One or the other was necessary. This court, in the case of Tiger et al. v. Ward et al., 60 Okla. 36, 158 P. 941, in the second paragraph of the syllabus, said:

"Where husband and wife are living together, and the homestead status of the land in question has never been established, the wife has no power without the direction or consent of the husband to impress his lands with the homestead character."

There being no homestead character impressed on this property at the date of William Gottman's death, his widow took only as heir subject to the right of the administrator to dispose of it under orders of the court for the payment of debts of the estate. (Comp. Stat. 1921, secs. 11300, 11318, 1256, and 1354.) Plaintiff took no greater rights under his deed than his grantor had, nor is he commended to the equitable consideration of a court as a victim of undisclosed facts. He and Mrs. Gottman both testified that she told him her deceased husband's estate was being administered by the county court of Okmulgee county, and that she had qualified and was acting as administratrix. He is charged with presumptive full knowledge that, under the law, she could not convey, as an individual, assets of the estate of which she was administratrix free from the claims of the estate's creditors.

For the reasons herein stated, the order and decree of the trial court are clearly against the weight of the evidence and contrary to law. The decree of the trial court is therefore vacated, and this cause is remanded, with directions to the trial court to dismiss plaintiff's action for want of equity.

By the Court: It is so ordered.