First Nat. Bank of Davenport v. Baker

• Decision Date: 06 December 1881
• Citation: 57 Iowa 197,10 N.W. 633
• Parties: FIRST NAT. BANK OF DAVENPORT v. BAKER AND OTHERS.
• Court: Iowa Supreme Court

57 Iowa 197

10 N.W. 633

FIRST NAT. BANK OF DAVENPORT

v.BAKER AND OTHERS.

Supreme Court of Iowa.

Filed December 6, 1881.

Appeal from Jasper circuit court.

This action was brought by the plaintiff, as execution creditor of the defendant George W. Baker, to subject to the payment of the judgment certain premises occupied by the defendant George W. Baker, and his wife, the defendant Hannah Baker, as a homestead. The petition admits the homestead character of the premises, but avers that they are liable to execution upon the judgment because they were purchased by the defendants subsequently to the contraction of the debt upon which the judgment was rendered. The defendants deny that the premises are liable to execution upon the judgment. They admit that they were purchased subsequently to the contraction of the debt, but they aver that the purchase was made with the proceeds of a former homestead, which they owned and occupied as such prior to the contraction of the debt. The case was submitted upon the pleadings, and the plaintiff's petition was dismissed. The plaintiff appeals.Geo. E. Gould, L. M. Fisher, and S. S. Patterson, for appellant.

Ryan Bros., for appellees.

ADAMS, C. J.

The only question presented in this case is as to whether the plaintiff had the burden of proving that the premises in question were not purchased with the proceeds of a former homestead, or whether the defendants had the burden of proving that they were. The defendants contend that the burden was on the plaintiff, because, the present homestead character being admitted, the premises were exempt unless they were purchased subsequently to the contraction of the debt, and were not purchased with the proceeds of a former homestead, which, if it had been retained, would have been exempt. If the defendants' position is correct, then, strictly, the plaintiff should have averred the negative fact that the premises were not purchased with the proceeds of a former homestead which would have been exempt if retained; and inasmuch as such negative fact was not averred, the petition should, upon their theory, be regarded as demurrable. But, in our opinion, the defendants' position cannot be maintained. They do not, indeed, seem to have taken that view themselves in the outset. They not only did not demur to the petition for want of averment of the negative fact, but they averred in their answer the affirmative fact that the premises were purchased with the proceeds of a former homestead, which would have been exempt if retained.

There was, it is true, a practice in equity of introducing into the bill what was called the charging part, wherein the plaintiff would set out the defences which he anticipated that the defendant would make, and deny the truth of the supposed matters, or set up facts in avoidance. Story's Eq. Pl. § 31. That was never, however, the correct practice at law, (1 Chit. Pl. 222,) and, under Code practice,...