Magel v. Hunt

• Decision Date: 13 February 1936
• Docket Number: 43021.
• Citation: 265 N.W. 119,221 Iowa 199
• Parties: MAGEL v. HUNT, Sheriff, et al.
• Court: Iowa Supreme Court

265 N.W. 119

221 Iowa 199

MAGEL v. HUNT, Sheriff, et al.

No. 43021.

Supreme Court of Iowa.

February 13, 1936

Appeal from District Court, Des Moines County; James D. Smyth Judge.

Action to enjoin sheriff and judgment creditor from selling property claimed as homestead. The opinion states the facts. From a decree in favor of the plaintiff, the defendants appeal.

Affirmed.

Mohland, Kuhlemeier, Fischer & Cray and H. F. Kuhlemeier, all of Burlington, and Edw. L. O'Connor, Atty. Gen., for appellants.

La Monte Cowles, of Burlington, for appellee.

DONEGAN, Chief Justice.

In the year 1902, Peter Magel became the owner of lot 220 Smith's addition to the city of Burlington, Iowa, and a short time thereafter he and his wife moved upon said premises and established a homestead in which they lived until his death in 1923. In 1921, Magel purchased 10 shares of stock in the Iowa State Savings Bank of Burlington, Iowa. Some time thereafter, and before the death of Magel, said bank was consolidated with the First National Bank of Burlington, and, in exchange for his 10 shares of stock in the Iowa State Savings Bank, Magel received 15 shares of stock in the consolidated bank known as the First Iowa State Trust & Savings Bank. Magel died on April 8, 1923, leaving a will under the terms of which the said homestead and 15 shares of stock in the First Iowa State Trust & Savings Bank were given his widow, Alice E. Magel, the plaintiff in this action, who was also appointed executrix. In February, 1925 the final report in said estate, showing that all debts and claims against the said estate had been paid in full, was filed and approved. On March 12, 1925, Alice E. Magel sold the homestead for $6,750, and on March 16, 1925, she purchased lot 165, Starr & Foster's subdivision of the city of Burlington, Iowa, and erected thereon a new home with the proceeds derived from the sale of her former homestead. Upon the completion of the new home in 1925, Alice Magel moved into it and has continued to reside therein until the present time. The 15 shares of bank stock which had been bequeathed to Alice E. Magel were turned over to her in the settlement of said estate. At that time the bank appeared to be in a flourishing condition and continued to pay dividends until 1932, when it passed into the hands of D. W. Bates, superintendent of banking of the state of Iowa, as receiver.

In July, 1933, Bates, as receiver of said bank, obtained a judgment for $1,500 against Alice E. Magel in a suit on the assessment of the bank stock held by her. Execution issued on this judgment and, in October, 1934, the sheriff of Des Moines county, Iowa, levied such execution upon lot 165, Starr & Foster's subdivision of the city of Burlington, being the lot purchased and the house erected by Alice E. Magel thereon, with the proceeds derived from the sale of her former homestead. Following the levy of this execution, Alice E. Magel caused notice to be served on the sheriff and the receiver, notifying them that the property levied on was her homestead and not subject to sale on execution for the satisfaction of the judgment obtained against her. The sheriff and the receiver disregarded this notice, and Alice E. Magel brought an action in equity to enjoin the sale. The case was tried to the court, and a decree was entered finding that the property levied upon was the homestead of the plaintiff, Alice E. Magel, and that it was not subject to sale on the execution, and a permanent injunction was issued. From this decree the defendants appeal.

At the time the bank stock was turned over to and became the property of Alice E. Magel, she was occupying and entitled to a homestead exemption in the property which had been owned by her husband and used as a home by both of them at the time of his death. Code, § 10151. Her homestead right in that property, therefore, antedated her liability on the bank stock, and there is no claim that her husband had purchased or became liable on the bank stock before he had established this home and acquired his right of homestead therein. It is contended by the appellants, however, that Alice E. Magel, having no children or other dependents or family living with her in her said home left to her by her husband, was entitled to a homestead exemption in that property while she continued to occupy it, and no longer. Appellee, on the other hand, contends that the lot and house erected thereon and now occupied by her as a home, having been purchased and paid for with the proceeds of the former homestead, are now clothed with the same homestead exemption as was her former home. The statutes, so far as applicable to the question here presented, are sections 10150, 10151, and 10154, Codes 1924 to 1935, and are as follows:

" 10150. Exemption-divorced spouse . The homestead of every family, whether owned by the husband or wife, is exempt from judicial sale, where there is no special declaration of statute to the contrary, and such right shall continue in favor of the party to whom it is adjudged by divorce decree

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