Hawley v. Arnold
| Decision Date | 28 November 1939 |
| Docket Number | 30677. |
| Citation | 288 N.W. 823,137 Neb. 238 |
| Parties | HAWLEY ET AL. v. ARNOLD. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. While a homestead cannot be claimed in two separate properties at the same time, a homestead claimant who is about to lose his homestead as result of foreclosure proceedings may abandon the same and establish a new homestead in other property.
2. A building consisting of a single structure and under one roof though divided into two parts by a solid wall, is a " dwelling-house" within the meaning of the homestead statute. Comp.St.1929, § 40-101 et seq.
3. Finding of trial court that there was no equity in property over and above encumbrances and homestead exemption held sustained by the record.
4. " The extent of a homestead is not to be determined from the fee-simple value of the land, but from the value of the homestead claimant's interest therein." Hoy v. Anderson, 39 Neb. 386, 58 N.W 125, 42 Am. St.Rep. 591.
Appeal from District Court, Lincoln County; Nisley, Judge.
Action in equity by Mary Irene Hawley and William Hawley, wife and husband, against Mertie M. Arnold to have a judgment in favor of Mertie M. Arnold declared not to be a lien on certain premises claimed as the plaintiffs' homestead. From a judgment granting plaintiffs substantially the relief prayed for, the defendant appeals.
Judgment affirmed.
Hoagland, Carr & Hoagland, of North Platte, for appellant.
E. H. Evans and Urban Simon, both of North Platte, for appellees.
Heard before SIMMONS, C. J., EBERLY, PAINE, MESSMORE, and JOHNSEN, JJ., and KROGER and ELLIS, District Judges.
This is an action in equity brought by Mary Irene Hawley and William Hawley, wife and husband, to have a judgment in favor of Mertie M. Arnold declared not to be a lien upon certain premises claimed as a homestead. From a decree granting plaintiffs substantially the relief prayed for, this appeal is prosecuted by the defendant.
The record discloses that Mary Irene Hawley is the owner of lot 12 and the east one-half of lot 11, block 8, North Platte Town Lot Company's Addition to North Platte, Lincoln county, Nebraska, and since December 31, 1933, plaintiffs have occupied said premises as their homestead; that on the 15th day of January, 1934, Mary Irene Hawley, and her husband, mortgaged said premises to the Occidental Building & Loan Association to secure a loan of $5,000; on the 3d day of February, 1934, a deficiency judgment was entered against Mary Irene Hawley and William Hawley in favor of Mertie M. Arnold in the sum of $1,500; on February 16, 1938, this action was instituted against Mertie M. Arnold to have the title to said premises quieted in plaintiffs and the judgment of the defendant canceled, set aside and decreed not to operate as a lien or to cloud the title to plaintiffs' homestead property; issues were joined on this petition and decree entered, finding generally in favor of the plaintiffs and against the defendant, finding that the premises in question constituted the homestead of the plaintiffs, and that, at the time of the entry of the decree, there was no equity over and above the mortgage and homestead exemption upon which the judgment lien could operate, and decreeing that the apparent lien of the judgment should be removed and adjudged not to operate as a lien on said premises, " without determining that such may not become a lien in the future, depending upon future events."
It is the contention of appellant that appellees had at one time claimed lots 1 and 2 in block 24 of North Platte Town Lot Company's Addition to North Platte as their homestead, and were claiming it as such when the decree of foreclosure was entered, out of which decree the deficiency judgment of $1,500 arose, and that they are now estopped from claiming a homestead in other property; that even if they are entitled to a homestead in the premises in controversy, all of the improvements cannot be claimed as exempt, for the reason that the improvements are a duplex, consisting of separate six-room houses, separated by a solid wall, and one of which units has never been occupied by the plaintiffs, but has been leased to tenants as revenue producing property; that the value of said premises is more than the encumbrances and the homestead exemption; and that the judgment lien attaches to any interest in the property above the homestead exemption, notwithstanding prior encumbrances on the property.
As to appellant's...
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