McCreery v. Schaffer

• Court: Supreme Court of Nebraska
• Writing for the Court: REESE, CH. J.
• Citation: 41 N.W. 996,26 Neb. 173
• Parties: WILLIAM H. MCCREERY, APPELLANT, v. JACOB SCHAFFER, JULIA SCHAFFER, LUTHERAN ZION CHURCH, BENJAMIN FREDENBERG, J. M. IRVIN, JOHN H. POHLMAN, RUSSELL & HOLMES, ADAM WAGNER, JULIUS GRUBE, HENRY L. YOUNG, JOHN SCHNEIDER, JOHN S. STULL, CARSON BANK, FIRST NATIONAL BANK OF BROWNVILLE, NEBRASKA, W. C. JOLLY, L. G. SWAN, J. S. DEW, J. H. HARDING, THOMAS J. ALEXANDER, DAVID CAMPBELL, AND PHENIX INSURANCE CO., APPELLEES
• Decision Date: 20 March 1889

41 N.W. 996

26 Neb. 173

WILLIAM H. MCCREERY, APPELLANT,
v.
JACOB SCHAFFER, JULIA SCHAFFER, LUTHERAN ZION CHURCH, BENJAMIN FREDENBERG, J. M. IRVIN, JOHN H. POHLMAN, RUSSELL & HOLMES, ADAM WAGNER, JULIUS GRUBE, HENRY L. YOUNG, JOHN SCHNEIDER, JOHN S. STULL, CARSON BANK, FIRST NATIONAL BANK OF BROWNVILLE, NEBRASKA, W. C. JOLLY, L. G. SWAN, J. S. DEW, J. H. HARDING, THOMAS J. ALEXANDER, DAVID CAMPBELL, AND PHENIX INSURANCE CO., APPELLEES

Supreme Court of Nebraska

March 20, 1889

APPEAL from the district court of Nemaha county. Heard below before APPELGET, J.

Affirmed.

W. H. Kelligar, and Stull & Edwards, for appellants, cited: Chapman v. Lester, 12 Kas. 592; Searl v. Chapman, 121 Mass. 19, cited in "Thompson on Homesteads;" Green v. Ramage, 51 Am. Dec. 458, (18 Ohio 469;) "Relative Rights of Lienors," Cheesebrough v. Millard, 7 Am. Dec. 494; Rector v. Rotton, 3 Neb. 176; McHugh v. Smiley, 17 Id. 626; Searl v. Chapman, 121 Mass. 19; "Thompson on Homesteads and Exemptions," sec. 657, p. 658; Swift v. Dewey et al., 20 Neb. 109.

E. W. Thomas, and G. W. Cornell, for appellees, cited: McHugh v. Smiley, 17 Neb. 623; Bonorden v. Kriz, 13 Id. 122; Showers v. Robinson, 43 Mich. 502; Riggs v. Sterling, (Mich.,) 27 N. W. R. 708; Sherrid v. Southwick, 43 Mich. 515; Riggs v. Sterling, (Mich.,) 27 N. W. R. 705; McClure v. Braniff, (Iowa,) 39 Id. 172-3; Eagle Insurance Company v. Pell, 2 Edw. Ch. 631; Schoenheit v. Nelson, 16 Neb. 237; Lee v. Gregory, 12 Id. 284; Colby v. Crocker, 17 Kas. 527; LaRue v. Gilbert, 18 Id. 220; Sproul v. Atchison Nat. Bk., 22 Id. 336; Thompson on Homestead, sec. 663; Larson v. Butts, 22 Neb. 370; Aultman v. Jenkins, 19 Id. 211; Swift v. Dewey, 20 Id. 107.

OPINION

[26 Neb. 174] REESE, CH. J.

Stated in the order of their occurrence, the facts which have given rise to this litigation are as follows:

[26 Neb. 175] On the 4th day of September, 1876, Jacob Schaffer was the owner of the south half of section one, township five north, of range twelve, in Nemaha county; was the head of a family and resided on the south half of the southwest quarter of said section. On that day he executed a mortgage to John Schneider, upon the southwest quarter of the section named, to secure the sum of $ 552, due two years thereafter. This mortgage was not signed by Julia Schaffer, his wife. On the 30th of August, 1880, Schaffer and wife joined in the execution of a mortgage upon the whole tract of land, to one Luther Hoadley, to secure the sum of $ 600, due in five years thereafter. On the 17th day of January, 1884, Schaffer and wife executed a mortgage upon the same property to Benjamin Fredenburg, to secure the sum of $ 800, due in two years. During that year and prior to the execution of the mortgages hereinafter referred to, Julia Schaffer became insane, and was confined in the insane hospital, where she now remains. On May 5th, 1884, plaintiff bought the whole of the real estate at tax sale, for the delinquent taxes of 1882, and paid the subsequent taxes, for which he seeks a foreclosure in connection with the foreclosure of his mortgage. On the first day of November, 1884, Schaffer, alone, executed a mortgage on the whole of the property in question, to Russell & Holmes, to secure the sum of $ 500, due in one year. On the 2d day of October, 1885, he executed another mortgage, to John H. Pohlman, to secure the sum of $ 500, due in one year. On the 8th day of May, 1886, he executed a mortgage on the southwest quarter of the section named, to Henry L. Young, to secure the sum of $ 150, due in one year.

Plaintiff is the assignee of the Hoadley mortgage, and instituted this suit for its foreclosure, together with that of his tax lien. Defendants Stull, Alexander, Campbell, Carson National Bank, First National Bank of Brownville, Phenix Insurance Company, and Costello, judgment creditors [26 Neb. 176] of Schaffer, are made parties to the action, for the purpose of foreclosing their liens.

The defendants holding liens upon the real estate, whether by mortgages or judgments, filed their answers, in which their several claims were presented. To plaintiff's amended petition, and the various cross-petitions filed by defendants, Schaffer [41 N.W. 997] answered that he was a married man, the head of a family, a resident of Nemaha county, and that for seventeen years prior to the commencement of the action he had occupied the southwest quarter of the section referred to as his homestead, and that the same was exempt to him and to his family, as such homestead, as against all the judgments and the mortgages unexecuted by his wife, Julia Schaffer; and asking that the same be declared to be exempt. It was alleged that the mortgages executed by himself alone, in so far as the family homestead was concerned, were void, and the judgments pleaded by a part of the defendants created no lien thereon.

An answer was also filed by the guardian ad litem of Julia Schaffer, presenting substantially the same issues.

It is not thought necessary to refer at greater length to the pleadings in the case.

Upon a trial being had, the district court found that plaintiff was entitled to substantially the relief prayed for in his...