Arispe Bank v. Werner

• Decision Date: 09 March 1926
• Docket Number: No. 37138.,37138.
• Citation: 207 N.W. 578,201 Iowa 484
• Parties: ARISPE BANK v. WERNER ET AL.
• Court: Iowa Supreme Court

201 Iowa 484

207 N.W. 578

ARISPE BANK

v.WERNER ET AL.

No. 37138.

Supreme Court of Iowa.

March 9, 1926.

Appeal from District Court, Union County; A. R. Maxwell, Judge.

Action aided by attachment. The opinion states the facts. From a decree awarding part of the relief prayed, the plaintiff appeals. Modified and affirmed.Winter & Davenport, of Creston, for appellant.

VERMILION, J.

This is an action in equity for the foreclosure of a real estate mortgage securing a note of the defendant Bertha Griep and others dated March 1, 1920. Bertha Griep was a nonresident of the state. As against her a writ of attachment was also sued out, and levied on her interest in 120 acres of land. This appeal is concerned only with the decree as respects the rights of the parties under the attachment.

It was stipulated that the allegations of fact in the answer of Bertha Griep not denied in the reply, were true, and that the allegations of the reply were true.

It thus appears: That, prior to their death, S. and Maria Werner were husband and wife, and were the owners as tenants in common of the 120 acres in question. That they lived on the land, which consisted of adjoining 40-acre tracts, the dwelling house being upon the middle 40. S. Werner died testate in 1917, leaving his widow, Maria Werner, and nine children, of whom the appellee Bertha Griep was one, surviving him. By his will, the widow was given a life estate in the land, with remainder to the nine children, share and share alike. After the death of S. Werner, his widow continued to reside upon the land until her death intestate in 1922, leaving the nine children, including appellee, as her only heirs at law. It was also stipulated that Maria Werner elected to take under the will in lieu of any further interest she might have had in the estate of her husband. The homestead had never been platted during the lifetime of either S. Werner or his wife.

It is apparent that the appellee became the owner in reversion, after the life estate of her mother, of an undivided one-ninth of an undivided one-half, or an undivided one-eighteenth, of the land under the will of S. Werner, and of a like interest as an heir at law of Maria Werner.

The lower court, with the consent of appellee and her co-owners, selected and established the homestead of S. and Maria Werner as the 40-acre tract upon which the dwelling house was situated, and decreed that the appellant had no lien by virtue of its attachment upon such 40 acres, and confirmed the lien of the attachment upon the interest of the appellee in the remaining 80 acres.

The appellant complains that the court erred in holding (1) that appellee was entitled to any exemption right in respect to the interest in the land acquired by the devise of S. Werner, her father, and (2) in limiting appellant's lien to the interest of appellee in 80 acres only, and in denying a lien upon her interest in the 40 acres selected by the court as the homestead. We do not have the benefit of an argument on behalf of appellee.

[1] I. Assuming that S. Werner was entitled to a homestead in the undivided half of the tract owned by him, we think it is plain the interest therein that passed to appellee under his will was subject to appellant's attachment. Under the will, Maria Werner took a life estate in such undivided one-half, and appellee took a remainder of an undivided one-ninth thereof. The situation is controlled by section 2985, Code of 1897, as construed and applied in Rice v. Burkhart, 107 N. W. 308, 130 Iowa, 520, and Voris v. West, 162 N. W. 836, 180 Iowa, 138. Under the construction of the statute found in these cases, it is a complete answer to the contention that appellee held the interest received from the father exempt from her own antecedent debts, to say that she took such interest, not by descent, but by devise, and that there was a widow surviving. The present corresponding statutory provision is section 10153, Code of 1924. Moreover, the appellant's claim was not, so far as appears, a debt of the appellee antecedent to the vesting in her of the interest derived...