Harper v. Forbes

Field, C. J. delivered the opinion of the Court Cope, J. concurring.

The complaint alleges that the plaintiff, Edward Harper, acquired the premises in controversy by purchase previous to 1854, and occupied the same with his wife as a homestead many months during the years 1853 and 1854; that he conveyed the same in July, 1854, to Edward Parrish, who went into possession; and under whom the defendants claim; that his wife never joined in the conveyance, or otherwise relinquished her claim to the homestead, and concludes with a prayer for a decree adjudging that the plaintiffs are entitled to the premises as a homestead, and that the defendants surrender the possession to the wife and account for the rents and profits. The demurrer to the complaint was sustained, with leave to the plaintiffs to amend. No amendment having been made within the time prescribed by the order of the Court, final judgment was rendered from which the appeal is taken. The complaint was evidently intended as a bill in equity, and not as the first pleading in an action of ejectment. It is immaterial, for the purposes of the appeal, in which light the complaint is regarded, as there is a fatal defect in its allegations in either respect. It contains no averment that the premises were occupied as a homestead at the date of the husband’s conveyance, or that they had not been previously abandoned.

Occupancy of premises by the husband with his family, is presump[204]tive evidence of their appropriation as a homestead. It was so held in Cook et al. v. McChristian, (4 Cal. 25) and we think correctly. Removal from premises thus appropriated by the husband with his family, is in like manner presumptive evidence of their abandonment as a homestead. In both cases, the presumption must be rebutted by parties who assert a claim to the premises in the face of such occupancy or removal.

What circumstances will be sufficient to rebut the presumption of abandonment, may often be a matter of much difficulty to determine. It is sufficient to say that it must appear that the removal was temporary in its nature, made for a specific purpose, with the intention of reoccupying the premises. The necessities of the family, their maintenance, their health, or the education of the children, may often require a temporary change of residence. In such cases the premises will still retain .their original character as a homestead.

In the present case the complaint shows a removal from the premises; it alleges that the grantee entered into the possession under the conveyance of the husband, and that parties claiming under the grantee are still in actual possession. It discloses, therefore, a prima facie case of abandonment, which is not negatived by any averments. It is quite possible that the premises may have been occupied as a homestead many months in 1853 and 1854, and yet have been absolutely abandoned at the date of the conveyance.