Tipton v. Martin

McKee, J. It appears from the record in this case that defendant Martin, as the sheriff of Tehama County, had levied on a parcel of land as the property of the plaintiff John C. Tipton, by an execution issued upon a judgment against said Tipton in favor of V. P. Baker, one of the defendants herein, and being about to sell the land under said execution, the plaintiffs commenced the action in hand to enjoin the sale on the ground that the premises constituted their homestead, and were exempt from execution.

The defendants contend that the land, although selected by the plaintiffs as their homestead, was not exempt from execution, because the plaintiffs had relinquished their homestead right thereon by abandonment.

This contention was made upon the following facts alleged by the defendants in their answer to show abandonment:—

“ That in the month of-,1878, the plaintiffs removed from said premises and from this state, and freely [326]and voluntarily moved into the territory of Montana, with the intention of remaining there and residing there, permanently, and without any intention of returning again.to this state, or upon said premises, and have since said month of-, 1878, continuously resided in said territory of Montana, and do. now reside therein, and since they moved into said territory of Montana the said John C. Tipton has taken the initiatory steps to acquire title therein to United States land under and by virtue of the United States homestead laws, and the said application for said land under said United States homestead laws is still pending.”

The plaintiffs demurred to the sufficiency of the facts as thus, pleaded. The demurrer was sustained by the court. Defendants declined to amend their answer, and judgment final was entered against them, from, which they have appealed; and the only question arising on the appeal is, whether the facts as set forth in the answer are. sufficient, in law to- constitute an. abandonment of the homestead.

Under the homestead law of 1851, a homestead right was founded upon occupancy of the homestead premises by the family. Such an occupancy constituted presumptive evidence of the appropriation of the premises as a homestead (Cook v. McChristian, 4 Cal. 26); and as it was founded upon occupation cessation of the occupancy constituted an abandonment. Hence removal from the premises was considered as presumptive evidence of abandonment. (Taylor v. Hargous, 4 Cal. 268.) Under that law therefore abandonment was a question of act and intent ascertainable and determinable from evidence like any other fact in a proceeding. If removal was only for a temporary purpose and there was no intent to remain away permanently it would not constitute abandonment but if the act of removal was coupled with an intent never to return abandonment was considered as complete. (Bennedict v. Bunnell, 7