Hanlon v. Pollard
| Decision Date | 17 March 1885 |
| Citation | 22 N.W. 767,17 Neb. 368 |
| Parties | MARY C. HANLON ET AL., PLAINTIFFS IN ERROR, v. CATHERINE POLLARD, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before SAVAGE, J.
AFFIRMED.
Thurston & Hall, for plaintiffs in error.
Charles H. Brown and J. J. O'Conner, for defendant in error.
An order to pay a deficiency on a sale of mortgaged premises was entered in the district court in favor of the plaintiff in error, Hanlon and against the defendant in error. Execution was issued thereon, and placed in the hands of the plaintiff in error Guy, the sheriff of the county, who proceeded to levy the same on certain real estate as the property of the defendant in error, and to advertise the same for sale. The defendant in error claimed the said real estate as her exempt homestead, and commenced an action against the plaintiffs in error, and enjoined the sale of said real estate.
Upon the trial there was a finding for the plaintiff in said action, and a judgment making said injunction perpetual; and the defendants bring the cause to this court on error.
The sole error alleged is, that "the judgment in said cause should have been for the defendants and not for the plaintiff upon the pleadings and testimony."
There are two distinct propositions discussed in the briefs. The first, as to the legality of the deficiency order against the defendant in error, upon which the execution issued; and the second, as to whether the land in question was exempt as the homestead of the defendant in error from the lien and levy of the said execution. It is deemed necessary to discuss the second question only.
It appears from the bill of exceptions that in the fall of 1879 the defendant in error was a divorced woman with a family of children, the homestead on which she had resided up to that time having been mortgaged by herself and former husband. The mortgage was foreclosed, the property sold, the sale confirmed, and she ordered to pay a deficiency; and it was upon such deficiency order that her subsequently acquired homestead was sought to be sold.
This deficiency order was entered at the February term of said court, 1880.
It further appears that in the month of October previous, the defendant in error finding herself without a home for herself and family, purchased and received a deed therefor from one John Byrnes and wife, the eighty acre tract of land in question, on which there was a dwelling-house. The land and dwelling-house at the time she purchased it was occupied by a tenant whose lease would not expire until the first day of March following. This purchase was made for the purpose and with the intent on the part of the defendant in error to make it her home, and to occupy it as a homestead for herself and her family as soon as she could obtain the possession of it which she intended and expected to do immediately upon the termination of the said tenant's lease. The manner in which she obtained the money to pay for the land, together with a consideration of her circumstances and condition of life, leave no room for doubt on that subject even were the direct testimony to that effect not satisfactory. The tenant vacated the premises on the 23d day of February, 1880, and the defendant in error immediately moved into the house, and has occupied the same with her family ever since. But on the 9th day of the same month, fourteen days before the actual occupancy of the homestead by the defendant in error, the said deficiency order was entered against her, an execution issued thereon, placed in the hands of the sheriff, and the same levied on the said property.
The question then for our consideration is, whether under these facts plaintiffs in error were rightly enjoined from selling the homestead on execution. The first section of the homestead law then and now in force is as follows:
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