Galligher v. Smiley

• Decision Date: 17 December 1889
• Parties: ELIZABETH GALLIGHER v. JOHN A. SMILEY
• Court: Nebraska Supreme Court

44 N.W. 187

28 Neb. 189

ELIZABETH GALLIGHER v. JOHN A. SMILEY

Supreme Court of Nebraska

December 17, 1889

ERROR to the district court for Douglas county. Tried below before GROFF, J.

AFFIRMED.

Gregory Day & Day, for plaintiff in error, cited: De Witt v Sewing Machine Co., 17 Neb. 533; Turner v. Althaus 6 Id., 54; Horbach v. Miller, 4 Id., 32; Bull v. Conroe, 13 Wis. 233; Weeks v. Milwaukee, 10 Wis. 242; Sarahas v. Fenton, 5 Kan. 593. The holding in Dorrington v. Myers, 11 Neb. 388, that the homestead is a vested right, is probably to be interpreted as meaning that the right is alienable only by sale or abandonment. Barber v. Rorabeck, 36 Mich. 399, is not well considered, and in both Michigan and Texas the homestead right is recognized in the constitution.

Savage, Morris & Davis, contra, cited: Dorrington v. Myers, 11 Neb. 388; De Witt v. Sewing Machine Co., 17 Id., 533; McHugh v. Smiley, Id., 620; Bassett v. Messner, 30 Tex. 604; Nolan v. Reed, 38 Id., 425; Barber v. Rorabeck, 36 Mich. 399; Ham v. Bank, 62 Cal. 125. Sarahas v. Fenton, 5 Kan. 593, is not in point.

OPINION

REESE, CH. J.

This was a proceeding in aid of execution.

Plaintiff in error filed her petition in the district court in which she alleged in substance that she was the owner of certain judgments which had been rendered by the district court of Douglas county against defendants in error, to-wit: one in favor of the Omaha National Bank for $ 1,225.52, rendered at the October term, 1874; one in favor of John McCormick & Co., for $ 429.94, and one for $ 207.35 in favor of Joseph Sheeley and others, rendered at the March term, 1872; that said judgments had been revived and were in full force as liens against the lands of defendant; that upon the 18th day of July, 1887, execution was issued and levied upon the west half of the southeast quarter of section 3, township 15, range 13 east, in the said county, and which land was claimed as a homestead by defendant, but it was alleged that said premises consisted of more than seventy acres of land after deducting the portion thereof which had from time to time been appropriated by the several railroads crossing over it as right of way; that it was all under improvements, with dwellings and other houses and buildings located thereon, that it was within the corporate limits of the city of Omaha, and of more than $ 200,000 value, and exceeded in quantity by at least fifty acres what defendant had a right to hold as a homestead by virtue of any law at any time enacted under which said homestead could have been acquired.

The prayer of the petition was for an order setting off to defendant his homestead of not to exceed twenty acres in quantity, that the same be admeasured as the law directs, and the remainder declared subject to sale for the satisfaction of the judgments.

Defendant in error answered admitting the rendition of the judgments, but alleging that the lands described in the petition had been owned by him for thirty years and that it had been occupied by him as a dwelling and homestead for himself and family during that time--he being the head of a family; that it did not exceed seventy acres, and until about the 1st day of May, 1887, was not included in any incorporated city, town, or village, when it was included within the corporate limits of the city of Omaha without his consent; that at the time the indebtedness was incurred and the judgment rendered--which was subsequent to the passage of the act approved June 22, 1867, relating to homesteads--the land was exempt from execution by reason of its homestead character. It was also alleged that the question presented had been adjudicated in the district and supreme courts of the state in the case of McHugh v. Smiley. The latter allegation was denied by the reply.

A trial was had to the court, which resulted in the following findings:

"This cause having been heard and submitted upon the issue joined and the proofs and arguments of counsel, the court finds the facts of the case to be as follows:

"1. Each of the judgments mentioned in plaintiff's petition were duly rendered as herein alleged against the defendant. That said judgments have been revived and are now in full force against the defendant.

"2. That said judgments have been duly assigned of record to the plaintiff.

"3. That executions were duly issued and levied upon the west half of the southeast quarter of section 3, township 15, range 13 east of the 6th P. M., substantially as alleged in plaintiff's petition. That said tract of land embraced at least seventy acres.

"4. That said land has been owned by the defendant about thirty years, and during all of said time the defendant has lived, and now lives, thereon with his family as a dwelling place and homestead; that during all of said time defendant has been (and now is) the head of a family and a resident and citizen of the territory and state of Nebraska.

"5. That until about the first day of May, 1887, said land was not included within the limits of any incorporated town, city, or village. That about the 1st day of May, 1887, the incorporated limits of the city of Omaha were by its city council extended under the act relating to metropolitan cities, approved March 30, 1887, and such extended limits embraced the land of defendant and was so included within the limits of said city at the time of the levy of the execution in the petition mentioned. That said extension was made without the consent of the defendant. That said land is of the value of the sum of two hundred thousand dollars.

"6. That the indebtedness for which said judgments were rendered was contracted subsequent to the passage of the act, approved June 22, 1867, relating to homesteads.

"The court finds, as conclusions of law:

"1. That at the time said indebtedness was contracted, and at the time said judgments were rendered, the said land was exempt from sale on execution on said judgments by reason of the defendant's homestead rights in said land.

"2. That at the time said indebtedness was contracted and said judgments were rendered there was no law by which said land could be brought within the limits of any incorporated town, city, or village, without the consent of the defendant.

"3. That the homestead rights of the defendant, so far as concerns the judgments in question, are to be governed by the law in force at the time the indebtedness was contracted.

"4. That the passage of the act approved March 30, 1887, and the extension of the city limits thereunder, did not affect the homestead exemption of the defendant so far as concerns these judgments, nor subject said land to sale under said judgment executions, so long as the defendant continues in the occupancy of said land as a homestead.

"Wherefore the court doth order that the petition of the plaintiff be dismissed."

A motion for a new trial was filed, alleging in substance that the...