Corey v. Schuster

• Decision Date: 05 March 1895
• Citation: 62 N.W. 470,44 Neb. 269
• Parties: COREY ET AL. v. SCHUSTER ET AL.
• Court: Nebraska Supreme Court

44 Neb. 269

62 N.W. 470

COREY ET AL.

v.SCHUSTER ET AL.

Supreme Court of Nebraska.

March 5, 1895.

Syllabus by the Court.

1. The appellee owned a lot, and building situate thereon, in McCool Junction, York county. The total value of the premises was less than $2,000. Appellee, with his family, occupied these premises as a homestead. Appellants recovered judgments against appellee, which were of record in the office of the clerk of the district court of said county. The judgments were not based on debts secured by a mortgage, mechanic's or vendor's lien, nor for laborer's, clerk's or servant's wages. Held:

(1) That such judgments were apparent liens upon appellee's homestead, and constituted a cloud upon his title thereto, which a court of equity had jurisdiction to remove at the suit of the appellee.

(2) That it was not an essential prerequisite to the maintenance of the action that the judgment creditors were threatening to cause executions to be issued and levied upon the homestead.

(3) That the judgments might be used injuriously and vexatiously to harass the homestead owner, and injure and depreciate his title to the property, was sufficient to authorize the interposition of a court of equity.

2. Appellee's building on said premises was a two-story frame. He used the first floor for mercantile purposes, and resided with his family on the second floor. Held:

(1) Such building was a “dwelling house,” within the meaning of section 1, c. 36, Comp. St. 1893, entitled “Homesteads.”

(2) This statute, by the words “dwelling house,” does not contemplate any particular kind of house. This requirement of the law is satisfied if the homestead claimant and his family reside in the habitation, whatever may be its character, on the premises claimed as a homestead.

3. The rule is that, to establish abandonment of a homestead, the evidence must show not only that the party removed from the homestead, but that he did so with the intention of not returning, or, after such removal, he formed the intention of remaining away. Mallard v. Bank, 59 N. W. 511, 40 Neb. 784, and cases there cited, followed.

4. One of the issues tried in this case was whether appellee had abandoned his homestead. The evidence was that appellee, prior to the bringing of this action, leased the premises at McCool Junction for a year, the rent, by the terms of the lease, being applied to discharge a mortgage on the premises; removed, with his family, to a town in an adjoining county, for the purpose of sending his older children to a college located there; left a part of his household goods in the building on the lot at McCool Junction; rented a house in the town removed to, in which he and his family resided; that when he removed from his homestead he intended returning there; that he had not since changed that intention; that while he resided in the adjoining county he voted once therein at a general election. The district court found that appellee had not abandoned his homestead. Held:

(1) That whether appellee, at the time he removed from McCool Junction, did so with the intention of returning, and whether appellee, after settling in the adjoining county, formed the intention of remaining away from his former homestead, were questions of fact for the trial court.

(2) That by voting in the adjoining county appellee may have violated the law,--may have committed a crime,--but whether he did so was not the issue tried in this case.

(3) Appellee's voting in the adjoining county was evidence tending to show that when he removed from McCool Junction he did so with the intention of not returning; or that, after settling in the adjoining county, he had formed the intention of remaining away from his former homestead. But such act of appellee was not conclusive evidence of such intention.

(4) That the district court was not bound to disregard all the other facts and circumstances in the case in favor of the contention of appellee,and find that, because he had exercised the right of suffrage in the adjoining county, such fact was conclusive evidence that he had abandoned his former homestead.

(5) That the evidence supported the finding of the district court. Dennis v. Bank, 28 N. W. 512, 19 Neb. 675.

(6) That the decree of the district court, perpetually enjoining the appellants from attempting to satisfy their judgments by judicial sale of said homestead premises, should be so modified as to permit appellants at any time to move the court for a vacation of such injunction on showing that the appellee, still owning the legal title to said premises, had permanently abandoned the premises as a homestead, or that said premises had appreciated in value so that the interest of the appellee therein had become of a greater value than $2,000.

Appeal from district court, York county; Bates, Judge.

Action by Alfred G. Corey and Mary C. Corey against Schuster, Hingston & Co. and Plummer, Perry & Co. Judgment for plaintiffs, and defendants appeal. Modified.

A. G. Greenlee and Geo. B. France, for appellants.

Sedgwick & Power, for appellees.

RAGAN, C.

On the 25th day of November, 1892, Alfred G. Corey and Mary C. Corey brought this action to the district court of York county, making Schuster, Hingston & Co. and Plummer, Perry & Co. defendants thereto. The Coreys, in their petition, alleged that they were husband and wife, residents and citizens of the state of Nebraska; had a family of five children; that they were the owners in fee simple of lot 23 in block 48 in the town of McCool Junction, in said York county; that said real estate consisted of one lot and a dwelling house and outbuildings thereon, all of the value of not to exceed $800; that they had occupied said premises as their homestead since June, 1885, until within about four months of the time of filing the petition, during which four months they had been living temporarily in Clay county, Neb., where they were educating their children, the older children being in attendance upon a college in said Clay county; that neither of them had any other homestead than the above-described real estate, and that neither of them had any other real estate whatever; that the parties, made defendants to the action, in the year 1891, recovered certain judgments against the said Alfred G. Corey, which judgments are of record in the office of the clerk of the district court of said York county, and are wholly unpaid; that said judgments were not based on debts secured by mechanics', laborers', or vendors' liens, nor on debts secured by mortgage on said premises, but that they cast a cloud upon the title of plaintiffs to said premises, and caused persons not learned in the law, and not fully informed of the facts, to question the title of plaintiffs to said premises as against said judgments, to the annoyance, injury, and damage of the plaintiffs; that said premises were incumbered by a mortgage of $300; that plaintiffs had but little means, and were desirous of selling said premises for the purpose of investing the proceeds in a cheaper homestead, and one not incumbered. The prayer was that said judgments, and each of them, might be decreed to be not liens upon the premises; that the cloud cast thereby upon the title to said premises might be removed; and the parties made defendants perpetually enjoined from asserting or claiming a lien on said premises by virtue of said judgments. The parties made defendants to the action appeared, and answered the petition. The district court found all the issues in favor of Corey and wife, and entered a decree as follows: “It is hereby ordered and adjudged by the court that such judgments be, and they hereby are, declared no liens on said real estate, and said defendants are hereby enjoined from setting up any claim to or claiming any lien on said premises by reason of their said judgments.” From this decree Schuster, Hingston & Co. and Plummer, Perry & Co. have appealed.

1. The first contention is that the petition does not state facts sufficient to constitute a cause of action. The argument is that these judgments do not constitute clouds upon their title to the homestead. By the provisions of our statute, a homestead not exceeding in value $2,000, consisting of a dwelling house in which the claimant resides, and the land on which the same is situate, not exceeding two contiguous lots within any incorporated city or village, is exempt from judgment liens and from execution or forced sale, unless the judgment against the owner of the homestead shall be based on certain debts not material here. Chapter 36, Comp. St. 1893, entitled “Homesteads.” By section 477 of the Code of Civil Procedure it is provided that “the lands and tenements of the debtor within the county where the judgment is entered, shall be bound for the satisfaction thereof, from the first day of the term at which...