Hornbeck v. Brown & Nichols

• Decision Date: 22 May 1894
• Citation: 59 N.W. 33,91 Iowa 316
• Parties: C. S. HORNBECK v. BROWN & NICHOLS et al., Appellants
• Court: Iowa Supreme Court

59 N.W. 33

91 Iowa 316

C. S. HORNBECK v. BROWN & NICHOLS et al., Appellants

Supreme Court of Iowa, Des Moines

May 22, 1894

Appeal from Hardin District Court.--HON. S. M. WEAVER, Judge.

ACTION in equity to enjoin the sale of real estate. An answer to the petition was filed, a demurrer thereto was sustained, and the defendants refusing to plead further, a decree was rendered in favor of the plaintiff. The defendants appeal.

Reversed.

F. M Williams for appellants.

Thomas H. Milner for appellee.

OPINION

ROBINSON, J.

The petition alleges that the wife of plaintiff died in December 1889, seized in fee simple of a homestead of two lots in the town of Iowa Falls; that the homestead was acquired about the year 1877, and was continuously occupied as a homestead by the decedent from the time it was acquired until her death; that the defendants Brown & Nichols are copartners under that name; that in May, 1891, they recovered a judgment in the district court of Hardin county against the plaintiff for the sum of two hundred dollars and costs; that the debt upon which the judgment was rendered was not contracted until about the year 1882; that the plaintiff has an interest in the homestead as surviving husband of the decedent; that said creditors have caused an execution to be issued and levied upon the plaintiff's undivided one third of the homestead; that the part levied upon has been advertised for sale, and will be sold by the defendant Meador as sheriff, unless he is restrained from so doing; that the plaintiff has never had his distributive share set apart to him, and the property levied upon is not subject to sale under the execution. An amendment to the petition alleges that decedent left surviving her a son, who was a minor at the time of her death, but who has since attained his majority, and is the sole surviving heir of his mother; that the son has not lived on the premises, but that since the death of his mother they have been occupied by tenants of the plaintiff. The plaintiff asks that the defendants be restrained from selling the premises or any interest of plaintiff therein, that the judgment be declared to be not a lien thereon, and for general equitable relief. The answer alleges that, two or three years before the death of his wife, the plaintiff abandoned her, and went to Minnesota, where he has since resided; that upon her death he immediately mortgaged his interest in the property, and commenced an action, which is still pending, to have his share set apart in fee simple; that he has not occupied the property since the death of his wife, but has abandoned it, and the defendants have caused his undivided interest therein to be sold by virtue of their execution; that, after this action was commenced, the plaintiff sold the property at private sale, and the purchaser has been garnished for a portion of the judgment, which is unsatisfied; that defendants have caused their claim to be allowed against the estate of decedent, but nothing has been paid thereon, and there are no funds in the hands of the administrator with which to pay it. The defendants ask that the sale made be approved, and for general equitable relief. A demurrer to the answer was sustained. Before the decree was rendered, leave was given to the plaintiff to supply a supplemental petition, which he did. It was alleged therein that, since the sustaining of the demurrer, the defendants Brown & Nichols had assigned their sheriff's certificate of purchase to Fred S. Brown, one of the members of the firm, and that Brown had procured of the sheriff a deed which purported to convey an undivided one third of the premises, and had been recorded. The plaintiff asked that the deed be decreed to be void, that it be set aside, and for general equitable relief. A motion to strike the supplemental petition was overruled, and, the defendant refusing to plead further, a hearing was had, and a decree rendered, which set aside the sheriff's sale and deed, and enjoined the sheriff and his successors in office from executing a deed for the premises, or any interest therein.

I. "Where there is no special declaration to the contrary, the homestead of every family, whether owned by the husband or wife, is exempt from judicial sale." Code, section 1988. Section 2007 provides that "upon the death of either husband or wife the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law." Section 2008 contains the following: "The setting off of the distributive share of the husband or wife in the real estate of the deceased shall be such a disposal of the homestead as is contemplated in the preceding section. But the survivor may elect to retain the homestead for life in lieu of such share in the real estate of the deceased."

It was said in Burdick v. Kent, 52 Iowa 583, 3 N.W. 643 that the meaning and intent of the statute is that, when the distributive share is set off, the homestead right becomes extinct; but the mere election to have such share set off is not sufficient to extinguish the homestead right; nor will proceedings...