Hoy v. Anderson

• Decision Date: 20 February 1894
• Citation: 58 N.W. 125,39 Neb. 386
• Parties: HOY v. ANDERSON.
• Court: Nebraska Supreme Court

39 Neb. 386

58 N.W. 125

HOY

v.ANDERSON.

Supreme Court of Nebraska.

Feb. 20, 1894.

Syllabus by the Court.

1. 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.

2. A. owns 160 acres of land in this state, of the value of $2,800, upon which he resides with his family as a homestead. There is a valid mortgage upon the premises to secure the payment of $1,200, no part of which sum has been paid. Subsequent to the giving of the mortgage, but while the land was occupied as a homestead, two judgments were obtained against A., transcripts of which were duly filed in the district court of the county in which the real estate is situated. Held, that the judgments are not liens upon said premises.

Error to district court, Polk county; Miller, Judge.

Action by Lewis Anderson against M. D. Hoy and another to remove cloud from title. There was decree for plaintiff, and defendant Hoy brings error. Affirmed.Albert & Reeder, for plaintiff in error.

J. L. Makeever and E. L. King, for defendant in error.

NORVAL, C. J.

Defendant in error commenced an action in the court below against Samuel Maxwell and M. D. Hoy for the purpose of having two judgments declared not to be liens upon certain premises claimed as a homestead. Defendant in error, Lewis Anderson, is now, and has been for ten years last past, a married man, and the head of a family, residing in Polk county, this state. For three years prior to the instituting of this action he has owned and occupied as a homestead the following real estate, to wit, the N. W. 1/4 of section 1, township 15, range 3 W., containing 160 acres, and no more, which premises do not exceed in value $2,800. There is now, and has been for three years past, a mortgage on said real estate amounting to $1,200, leaving the equity of Anderson in said quarter section not to exceed the value of $1,600. Subsequent to the recording of the mortgage, Samuel Maxwell recovered a judgment against Anderson and others, in the county court of Merrick county, for $163.16, and $11.50 costs, and on the 15th day of December, 1888, a transcript of said judgment was filed in the office of the clerk of the district court of Polk county. One M. D. Hoy obtained a judgment in the county court of Platte county against said Anderson and others in the sum of $605.08, and $31.50 costs, and on the 17th day of September, 1889, said judgment was duly transcripted to the district court of Polk county. Each of the above-mentioned judgments was rendered upon an ordinary debt, and not upon any claim whatsoever which would bind the homestead. Anderson filed his petition in the district court, setting up the foregoing facts. The defendants appeared, and filed separate demurrers to the petition, which were overruled, and, defendants failing and refusing to answer, the cause was heard upon the petition and evidence, and a decree rendered in favor of plaintiff. Defendant Hoy brings the case to this court for review on error.

The sole question in this case is whether the extent of a homestead in this state is to be determined from the fee-simple value of the land, or from the value of the homestead claimant's interest therein above the mortgages and other valid liens. The question presented is a new one in this court, and calls for a construction of the provisions of our homestead law. Section 1, c. 36, of the Compiled Statutes, declares that “a homestead not exceeding in value $2,000, consisting of the dwelling house in which the claimant resides, and its appurtenances, and the land on which the same is situated, not exceeding 160 acres of land, to be selected by the owner thereof, and not in any incorporated city or village, or instead thereof, at the option of the claimant, a quantity of contiguous land not exceeding two lots within any incorporated city or village, shall be exempt from judgment liens and from execution or forced sale, except as in this chapter provided.” Section 2 provides that, if the claimant be married, the homestead may be selected from the property of the husband, or from the separate property of the wife, with her consent. Section 3 reads as follows: “The homestead is subject to execution or...