Lennert v. Cross

It is not disputed that the property in question is the homestead of the plaintiff. Defendants' contention is that the indebtedness represented by the judgment antedated plaintiff's title. The land was owned by plaintiff's father, but has been in the occupancy of plaintiff as his home for more than 25 years before the trial. The undisputed evidence is that, 25 years before the trial, which was in January, 1930, the father called his children together (his wife being present), saying as his purpose, "he was going to divide his land * * *. He said he was going to give a description of each place so that they would know what they drawed. He had a description of each piece of land and he had it written on a paper and had those papers on the table, turned upside down, each separate. He directed the children to draw, from the oldest down * * *. They each drew. I know John Lennert [plaintiff] drew the piece he now has. It was then unimproved. He built a house the fall before he was married, and in the spring I think that was a year after the drawing. * * * I believe it was stated at that time what farm land was to be paid rent on as long as he needed the money for his support and the support of Mrs. Lennert, and that was to be $1 per acre."

Plaintiff's sister testified:

"He said he wanted to give the older children a home, because they were renters, at that time. * * * He just said we younger children wouldn't draw because we were at home yet."

Another sister testified:

"He just said he was going to divide up his land and that he thought that would be the best way to divide it, by each of us drawing our own. * * * John, Kate, myself and Mollie drew. The two other children were smaller. We did not draw for the land father occupied at that time. * * * John took possession right after he was married. This drawing was just a short time before he was married. I think he broke out some ground before he was married."

Plaintiff testified:

"I was married 25 years ago. * * * I have lived on this land 25 years. * * * I broke 20 acres up before I moved on it. It was then pasture land. At that time there was no improvements on it, just a fence around it. I put on a house, barn and shed, hog house, hen house, machine shed, corncrib and waterworks. I put the house on before I was married. I occupied premises ever since I was married, except one year I moved to Woodbine, so my wife could take treatments. * * * Q. Now whom did you get to consent to move on these premises? (Objection.) A. My father. I paid all the taxes on the land. Q. Did you pay rent? (Objection.) A. Yes, sir, $1 per acre when he wanted it."

It is stipulated that plaintiff acquired title to the property "by virtue of the terms of his father's will." The will has been admitted to probate, but its terms are not set out in the record. A part of the indebtedness and the earliest represented by the judgment was contracted in 1915.

[1] Defendants argue, "Parol evidence is not competent to establish a contract creating an interest in the land." Defendants were not parties to the agreement between plaintiff and his father, nor do they claim under the father. Neither the statute of frauds nor the parol-evidence rule is available to the defendants, who are entire strangers to the parol agreement and to the title. Shedenhelm v. Cafferty, 174 Iowa 195.

[2] The testimony objected to was given by those who apparently are the father's successors in interest and without objection by them. Defendants are not within the class who may raise the objection of incompetency of a witness to testify to personal transactions with a deceased person. Harrow v. Brown, 76 Iowa 179.

[3] Defendants urge that "to entitle a person to claim homestead he must have a legal, certain and immediate interest and sufficient title to justify the occupancy as a homestead," — citing Rutledge v. Wright, 186 Iowa 777, Perry v. Adams, 179 Iowa 1215,1223.

Perry v. Adams, 179 Iowa 1215, 1217, was a similar case. The court said:

"That the property in controversy was the homestead of George W. Adams at the time these actions were commenced, is not disputed. The burden, therefore, rests upon the plaintiffs to show that the homestead was acquired, and the homestead rights attached, after the debts were contracted upon which the judgments were entered."

The homestead right was sustained.

In Rutledge v. Wright, quoted in American Savings Bank v. Willenbrock, 209 Iowa 250, 254, it is said:

"``It is not essential to the acquisition of a homestead, within the meaning of the statute, that the claimant have a perfect or complete legal title. It is essential that he have a sufficient title to justify his occupancy. Occupancy under such a title will justify a claim of homestead right, subject to the limitations of the statute.'"

It was further stated in the Rutledge case:

"``The logical corollary of this holding is that, to the extent of the area permitted by the statute, a homesteader with an imperfect and incomplete title may yet acquire the homestead right within the statutory limit, and may thereafter perfect or complete his title to the homestead area. Likewise, he may improve his homestead and add to its value. The date of the acquisition of the homestead is not thereby changed.'"

On the record before us there can be no doubt that the father intended to give the land in controversy to the plaintiff, with a reservation of the right to receive $1 per acre per year towards the support of himself and his wife, both of whom are now dead, the wife having predeceased plaintiff's father. There can be no doubt that the father so declared his intention to the plaintiff and to all his children, all of whom ever since have consistently recognized this purpose and intention. There can be no doubt that pursuant to such expressed purpose the father immediately delivered to plaintiff the subject of the gift; that pursuant thereto plaintiff moved upon the property, made valuable improvements upon it, and has occupied it as his home ever since, except the one year, as to which no contention is made. The father evidently retained the legal title until his death, as he retained the right to the $1 per acre which was called rent. The rent, however, was not the rent reserved by a landlord on a demise of premises for years. The gift has now been fully consummated, not only by delivery, performance of conditions, and making of valuable improvements, but by the transmission of the full legal title. We need not pursue the inquiry into the legal rights originally of the parties to the agreement, the plaintiff and his father. The understanding has been fully performed on their part. Plaintiff did have and exercise the right to the possession and to the enjoyment of the property as his home, on the understanding that the property had been given to him as his own. His incipient title has become consummate. His title has always been recognized by the parties in interest. His present title began when he took possession under the gift. He then made the land his home. His present title is a continuation and consummation of the interest which he had at the time when he first made his home upon the land. His homestead exemption has been continuous and unbroken, and dates from the time of his original occupancy as his home. In addition to the cases above cited, see Pelan v. DeBevard, 13 Iowa 53; Foster v. Rice, 126 Iowa 190; Lessell v. Goodman, 97 Iowa 681; Livasy v. State Bank, 185 Iowa 442; Wertz v. Merritt,74 Iowa 683. — Affirmed.

WAGNER, C.J., and EVANS, KINDIG, and GRIMM, JJ., concur.

SUPPLEMENTAL OPINION.