Cooper Wagon & Buggy Company v. Irvin

• Decision Date: 20 March 1909
• Docket Number: 15,584
• Parties: COOPER WAGON AND BUGGY COMPANY, APPELLANT, v. JOHN W. IRVIN ET AL., APPELLEES
• Court: Nebraska Supreme Court

120 N.W. 430

83 Neb. 832

COOPER WAGON AND BUGGY COMPANY, APPELLANT, v. JOHN W. IRVIN ET AL., APPELLEES

No. 15,584

Supreme Court of Nebraska

March 20, 1909

APPEAL from the district court for Franklin county: ED L. ADAMS JUDGE. Affirmed.

AFFIRMED.

Dorsey & McGrew, for appellant.

Albert R. Peck and H. W. Short, contra.

DUFFIE C. EPPERSON, GOOD and CALKINS, CC., concur.

OPINION

DUFFIE, C.

John W Irvin and his wife, Ida, made a mortgage to the defendant Cummings covering their homestead, to which the wife held the legal title, and certain other lots in the village of Franklin, the fee title to which was owned by the husband. Afterwards Irvin and wife made to the Cooper Wagon & Buggy Company a second mortgage which covered only the lots owned by the husband. It will thus be seen that the first mortgage to Cummings covered the homestead of the Irvins, together with other real estate, while the second mortgage covered the real estate not included in the homestead. On foreclosure of these mortgages, the district court entered a decree giving Cummings the first lien upon the property covered by his mortgage, but directing that the lots other than the homestead property be first sold, and the surplus, if any, paid to the appellant on its lien. The Cooper Wagon & Buggy Company appeals from this decree, and insists that it is erroneous in not providing for a sale of all the property covered by Cummings' mortgage, which would, of course, leave a greater surplus to be applied in discharge of its lien. The appellees insist that the homestead right of the defendants Irvin is superior to the claim of the appellant, and that their homestead should not be sold unless necessary to satisfy the mortgage lien of Cummings.

The question presented was before this court in a slightly different form in McCreery v. Schaffer, 26 Neb. 173, 41 N.W. 996. The facts in that case and the law applicable are fully stated in the second paragraph of the syllabus, which is as follows: "If the husband and wife own a tract of land, a part of which is claimed as a homestead, and both execute a mortgage on the whole tract to secure a debt, and the husband afterwards executes a mortgage upon the part not covered by the homestead, to secure his debt, and judgments are rendered or filed in the district court against the husband, and the first mortgagee forecloses, making the other mortgagees and judgment creditors parties, the second...