Guiher v. Huffman
| Decision Date | 23 October 1906 |
| Citation | 109 N.W. 469,136 Iowa 509 |
| Parties | W. T. GUIHER v. THOMAS HUFFMAN, ELIZABETH HUFFMAN, W. E. HUFFMAN AND S. G. HUFFMAN, Administrator of the Estate of GEORGE C. HUFFMAN, deceased, Appellees; BESSIE M. HUFFMAN, EVA B. HUFFMAN, VERA L. HUFFMAN, AND BEULAH HUFFMAN, Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED, THURSDAY, DECEMBER 12, 1907.
Appeal from Madison District Court.--HON. 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 forty-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 forty-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 forty-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 forty-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 forty-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 forty-acre tract included in the mortgage belonging to Thomas Huffman be not resorted to for the satisfaction of the mortgage debt until the two forty-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 forty-acre tract conveyed to W. E. Huffman; second, the forty-acre tract conveyed to George C. Huffman; and, third, for any amount of the mortgage debt not thus satisfied, the forty-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 plaintiff, appellee, W. T. Guiher.
Wilkenson, Smith & Wilkenson and Bell & Percival, for defendants, appellees, Thomas Huffman and Elizabeth Huffman.
Leo Percival, for W. E. Huffman and S. G. Huffman, administrator of the estate of George C. Huffman, deceased, defendants, appellees.
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 forty-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 forty-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, section 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 the mortgage, and that as the property of Thomas Huffman, the...
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