First Trust Co. of Lincoln v. Bauer

Citation260 N.W. 194,128 Neb. 725
Decision Date11 April 1935
Docket NumberNo. 29243.,29243.
CourtSupreme Court of Nebraska

128 Neb. 725
260 N.W. 194


No. 29243.

Supreme Court of Nebraska.

April 11, 1935.

Syllabus by the Court.

1. “Ordinarily, a receiver will not be appointed in a foreclosure suit, when the mortgaged property is the homestead of the mortgagor.” Laune v. Hauser, 58 Neb. 663, 79 N. W. 555.

2. An apartment house on a lot contiguous to the one on which the mortgagor dwells in a house containing several apartments which are leased to tenants is not a part of mortgagor's homestead as contemplated by section 40-101, Comp. St. 1929.

3. As between mortgagor and mortgagee, the homestead means the actual home of the family including the lands and buildings constituting the same.

Appeal from District Court, Lancaster County; Chappell, Judge.

Mortgage foreclosure suit by the First Trust Company of Lincoln against Mary Bauer and others. From an order appointing a receiver, the defendants appeal.


Herman Ginsburg, of Lincoln, for appellants.

Stewart, Stewart & Whitworth, of Lincoln, for appellee.

Heard before GOSS, C. J., ROSE, GOOD, DAY, and CARTER, JJ., and LIGHTNER and HASTINGS, District Judges.

DAY, Justice.

This is an appeal from an order appointing a receiver in a mortgage foreclosure suit. The suit to foreclose the mortgage was commenced December 12, 1931, and a decree was entered November 20, 1933. The petition for the appointment of a receiver was filed January 8, 1934, and the appointment was made March 9, 1934.

The evidence justifies the appointment of a receiver. The affidavits as to the value of the property are in conflict. The amount due on decree and taxes was $19,396.41 when the receiver was appointed. From a consideration of the appraisals made by the witnesses, we conclude that the property would not sell for a sum sufficient to satisfy the judgment and the taxes.

[1] Appellants contend that the property was a homestead and that the court should not have appointed a receiver for this reason. “The remedy of appointment of a receiver to take charge of the property, in certain contingencies, in an action of foreclosure of a real estate mortgage, is not applicable where the mortgaged property is the homestead of the mortgagor, direct defendant in the suit.” Chadron Loan & Bldg. Ass'n v. Smith, 58 Neb. 469, 78 N. W. 938, 76 Am. St. Rep. 108. “Ordinarily a receiver will not be appointed in a foreclosure suit when the mortgaged property is the homestead of the mortgagor.” Laune v. Hauser, 58 Neb. 663, 79 N. W. 555.

[2] The mortgagor, John Bauer, now deceased, at the time of his death occupied with his family a house on lot 5. In this house were several apartments which were and now are rented to tenants. Lot 5 is a part of the mortgaged premises. On a contiguous lot, number 6, was a separate building containing a number of apartments which were always rented to tenants. It does not appear that there was any connection between the use of lot 5 and lot 6. The receiver was appointed to take charge of lot 6. None of the family of the deceased mortgagor lived in the apartment house on lot 6.

Section 40-101, Comp. St. 1929, is as follows: “A homestead not exceeding in value

[260 N.W. 195]

two thousand dollars, consisting of the dwelling house in which the claimant resides, and its appurtenances, and the land on which the same is situated, not exceeding one hundred and sixty acres of land, to be selected by the owner thereof, and not in any incorporated city or village, instead thereof, at the option of the claimant, a quantity of contiguous...

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