Farr v. Reilly
| Decision Date | 06 June 1882 |
| Parties | FARR v. REILLY ET AL |
| Court | Iowa Supreme Court |
Appeal from Hancock Circuit Court.
THE plaintiff holding a mortgage upon 160 acres of land in Hancock county, executed by the defendant Reilly and one Nugent, brought this action to foreclose his mortgage and obtained a judgment and decree against both the mortgagees and a special execution was issued, and the mortgaged land was sold to the plaintiff. Afterward, the defendant, Reilly moved to set aside the sale upon the ground that he was the head of a family, and that the premises had constituted his homestead from a time antecedent to the rendition of the decree, and that his homestead had never been set off. Affidavits were filed in support of the motion. Counter-affidavits were also filed. Upon the hearing of the motion it was sustained in part. An order was entered setting aside the sale as to an undivided half interest, as being the interest of Reilly in the property. The order also directed that one-half of the judgment be reinstated and a special execution issue for the sale of so much of Reilly's undivided half as should not be embraced in his homestead and that his homestead should be sold only for the satisfaction of any balance that might remain after the property should be exhausted. The order also directed that the sheriff should set off to Reilly as his homestead an undivided one-half of forty acres, and to set off the same so as to include his dwelling-house. From this order the defendant Reilly appeals.
AFFIRMED.
A. C. Ripley and O. K. Hoyt, for appellant.
Brockway & Elder and H. H. Bush, for appellee.
The defendant complains of the order because it did not set aside the entire sale, and because, also, it limited the homestead to an undivided half of forty acres.
It does not appear to have been expressly found by the court that the defendant Reilly had a homestead in the premises, but the order must have been based upon the theory that such was the fact.
Now, if Reilly had been the sole owner of the quarter-section, and was occupying the same' as the head of a family, it would seem clear, under the ruling in White v. Rowley, 46 Iowa 680, that the sheriff before proceeding to sell should have set off the homestead; and, having failed to do so, that the sale should have been set aside, and that too in regard to the whole premises. But it is not shown that Reilly owned the whole premises. They were not sold as belonging wholly to him, but in pursuance of the foreclosure of a mortgage executed by him and Nugent. He makes no affirmative claim to the entire ownership of the premises, and we do not think that we should be justified in reversing upon the theory that he was such owner.
We come then to the second question raised, and that is, whether the court erred in directing the sheriff to set off to Reilly, as his homestead, an undivided half interest in only forty acres.
In determining this question we do not feel called upon to express any opinion as to whether an undivided interest in real estate, may not, under some circumstances, be held exempt as a homestead. Possibly it may, and if the property is not within a town plat, it is possible that the exemption should not be limited to the undivided interest in forty acres. But we have a case where the validity of the sale is attacked, not on the ground that the whole interest of the...
To continue reading
Request your trial