Guiher v. Huffman

• Citation: 136 Iowa 509,109 N.W. 469
• Parties: GUIHER v. HUFFMAN ET AL.
• Decision Date: 23 October 1906
• Court: United States State Supreme Court of Iowa

136 Iowa 509

109 N.W. 469

GUIHER

v.HUFFMAN ET AL.

Supreme Court of Iowa.

Oct. 23, 1906.

Appeal from District Court, Madison County; James D. Gamble, Judge.

In April, 1899, the defendants Thomas Huffman and W. E. Huffman, and one George C. Huffman, now deceased, whose administrator is a party defendant, executed a promissory note for $2,000 to the German Savings Bank, secured by mortgage on three adjoining 40-acre tracts of land; the purpose being to secure the sum of $2,000 with which to pay the purchase price to the amount of $1,000 on each of two of said 40-acre tracts, conveyed by one Kale, the one to W. E. Huffman defendant, and the other to George C. Huffman. Thomas Huffman joined in the note as surety only for W. E. Huffman and George C. Huffman, who were his sons; and the third 40-acre tract, which belonged to him, was included in the mortgage in order to furnish additional security. This note was subsequently assigned to plaintiff, who has instituted this action for the foreclosure of the mortgage. The defendants Bessie M. Huffman, Eva B. Huffman, Vera L. Huffman, and Beulah Huffman are the widow and children of George C. Huffman, deceased, and allege that the 40-acre tract conveyed to George C. Huffman and included in the mortgage became the homestead of George C. Huffman and his wife, Bessie Huffman, at the time of the conveyance, and they ask that said 40-acre tract be sold only for the deficiency remaining after exhausting all other property covered by the mortgage, while Thomas Huffman and his wife, Elizabeth Huffman, who is also made a party defendant, ask that the 40-acre tract included in the mortgage belonging to Thomas Huffman be not resorted to for the satisfaction of the mortgage debt until the two 40-acre tracts conveyed to W. E. Huffman and George C. Huffman have been subjected to the satisfaction of such mortgage. The court entered judgment on the note against Thomas Huffman, W. E. Huffman, and the administrator of the estate of George C. Huffman, deceased, and established the lien of the judgment upon the mortgaged premises as of the date of the mortgage, and directed that the judgment be satisfied by selling: First, the 40-acre tract conveyed to W. E. Huffman; second, the 40-acre tract conveyed to George C. Huffman; and, third, for any amount of the mortgage debt not thus satisfied, the 40-acre tract belonging to Thomas Huffman. From this decree the widow and children of George C. Huffman appeal. Affirmed.W. S. Cooper, for appellants.

John A. Guiher, for appellee W. T. Guiher.

Wilkinson, Smith & Wilkinson and Bell & Percival, for appellees Thomas Huffman and Elizabeth Huffman.

Leo Percival, for appellees W. E. Huffman and S. G. Huffman.

McCLAIN, C. J.

From the foregoing statement it appears that the mortgage which is being foreclosed was given for the purpose of securing the payment of $2,000 borrowed money, with which two of the forties were purchased, the one being conveyed to W. E. Huffman, the other to George C. Huffman, and that the forty conveyed to George C. Huffman, who has since died, is claimed by his widow and heirs to be exempt from sale until the lien of the mortgage on the other two tracts has been exhausted; while it is claimed on behalf of Thomas Huffman that, as he was surety only for the borrowed money, and the 40-acre tract belonging to him was included in the mortgage only by way of additional security, his tract should not be sold until after the lien of the mortgage on the other two tracts has been exhausted. In short, the controversy is as to whether the homestead exemption is to be given preference over the right of Thomas Huffman as surety to have his 40-acre tract resorted to only after the lien of the mortgage on the other two tracts, one of them being the homestead of the widow and heirs of George C. Huffman, has been applied to its satisfaction. Counsel for appellants rely upon the provisions of Code, § 2976, that the homestead shall be sold on execution for debts contracted prior to its acquisition only “to supply any deficiency remaining after exhausting the other property of the debtor liable to execution,” and that it may be sold for debts created by written contract expressly stipulating that it is liable therefor “only for a deficiency remaining after exhausting all other property pledged by the same contract for the payment of the debt”; his contention being that the homestead of George C. Huffman became liable only by reason of...