De Haven & Son Hardware Co. v. Schultz

In Banc.

AFFIRMED. Plaintiff, as judgment creditor, levied upon 120 acres of land owned by the defendant. Upon motion to confirm the sale, the defendant objected, asserting that the property was exempt from sale upon execution by reason of its being his homestead. The matter was submitted upon affidavits and counter-affidavits and the trial court set aside the sale in accordance with the petition of defendant. Plaintiff appeals.

It appears from the affidavit of defendant that, for a period of about 12 years prior to the time that this property was levied upon, he and his wife lived continuously upon the same as their homestead. He avers that he was obliged, on account of the serious illness of his wife, who was afflicted with cancer, to leave the farm in order to obtain medical services, but that it was always his intention to return and occupy it as his homestead, "as soon as circumstances would permit." This removal occurred about two years before the land was levied upon. The farm was leased from year to year for a period of two years. Shortly before this proceeding was instituted, defendant's wife died. He says that, on account of his poverty, he was obliged to sell his "last team and cow to get the money with which to pay his debts." Having no farming implements or stock with which to operate his home place, he states that he was obliged to rent another farm for a period of one year "in order to get a start." This was corroborated by the affidavit of J.A. Sharp and his wife from whom defendant rented. It is also stated in their affidavit that, when defendant was asked to lease their farm, he refused to do so for a longer time than one year, giving as his reason "that he was going back to his own place as soon as he could get a start in team and cows." These affiants further aver that they furnished defendant with everything with which to farm "for the reason that he had neither team or stock, having sold everything to pay his debts."

It is conceded that defendant at various times offered his old home for sale.

The question is presented: Has defendant abandoned his homestead? Section 221, Or.L., provides:

"* * The homestead must be the actual abode of and occupied by the owner, his or her spouse, * * and such exemption shall not be impaired by temporary removal or absence with the intention to reoccupy the same as a homestead, not by the sale thereof, but shall extend to the proceeds derived from such sale to an amount not exceeding three thousand dollars ($3,000), while held, with the intention to procure another homestead therewith, for a period not exceeding one year."

This statute is remedial in character and should be liberally construed: Watson v. Hurlburt, 87 Or. 297 (170 P. 541). The legislature no doubt deemed it a wise governmental policy to surround the family home with certain protection against the demands of urgent creditors. A forfeiture of a homestead estate is, for such reason, not favored in law: 13 R.C.L. 656. After the existence of a homestead has been established, as has been done in the instant case, it is incumbent upon the judgment creditor, if it is sought to subject the property to execution, to establish by clear and convincing proof that there has been a relinquishment of the homestead right. A condition once shown to exist is presumed to continue and he who would assert a change in the nature or character of the estate has the burden of proof: 29 C.J. 961. There are authorities to the contrary but the above rule meets with our approval: American State Bank v. Leforce, 95 Okla. 88 (218 P. 1073); 13 R.C.L. 694.

It is well established that a temporary absence or removal will not constitute an abandonment of a homestead if there is a constant and abiding intention to return and occupy the same as a home: McDermott v. Kernan, 72 Wis. 268 (39 N.W. 537, 7 Am. St. Rep. 864); Boot v. Brewster, 75 Iowa, 631 (36 N.W. 649, 9 Am. St. Rep. 515); Kansas T. Coal Co. v. Judd,6 Kan. App. 487 (50 P. 943); Reilly v. Reilly, 139 Ill. 180 (28 N.E. 960); Id., (26 N.E. 604); Rigdon v. Bogan, 160 La. 551 (107 So. 403); 13 R.C.L. 648; 29 C.J. 941; Thompson on Real Property, § 935. The duration of the absence is a matter for consideration but is not conclusive. Abandonment is a matter of intention and is to be determined in the light of all the facts and circumstances.

Did the defendant intend permanently to give up his farm as a home, or was he compelled by necessity to leave it temporarily on account of the condition of his wife's health? If his absence was due to a situation over which he had no control, it would, indeed, be a harsh doctrine to announce that such would constitute an abandonment. The fact that the farm was leased from year to year is not inconsistent with an intention to return and occupy it as his homestead: Deweese v. Deweese, 121 Ky. 747 (90 S.W. 256); 29 C.J. 939. Neither is defendant's claim of exemption weakened by reason of the fact that he offered such property for sale. Indeed, under the statute, he could have actually sold the property and kept the proceeds exempt from execution for a period of one year if it was his intention to invest the same in a home.

In the light of the affidavits submitted we are not prepared to say that the trial court erred in its finding of fact. Plaintiff has failed to establish its cause. It follows that the decree of the trial court in setting aside the sale on the ground that the property is exempt from sale upon execution is affirmed.

AFFIRMED.