McCreery v. Schaffer
| Decision Date | 20 March 1889 |
| 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 |
| Court | Nebraska Supreme Court |
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.
Stated in the order of their occurrence, the facts which have given rise to this litigation are as follows:
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 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 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 petition, and that he had a first lien on each quarter section for the taxes paid, and on which he was entitled to interest at the rate of ten per cent per annum; that defendant John Schneider, who held the mortgage executed by Schaffer alone on the southwest quarter of the section, and bearing date September 4, 1876, was entitled to a second lien upon the north half of the said southwest quarter; that plaintiff was entitled to a second lien on the southeast quarter, and a third lien on the north half of the southwest quarter; the south half of the southwest quarter being found to be worth two thousand dollars, and to be the homestead of defendant Schaffer. The mortgages signed by Schaffer alone, and the judgments against him, were declared liens upon all of the land except the south half of the southwest quarter, (the homestead,) and their priorities stated. It was ordered that the mortgages which are liens upon the homestead, should be satisfied, if possible, out of the land included therein but not subject to the homestead exemption; and in case such satisfaction could be made, the homestead should be protected; otherwise it should be sold only for the purpose of satisfying the deficiency.
The defendants holding mortgages signed by Schaffer alone, being dissatisfied with this part of the decree, appeal therefrom. Plaintiff being dissatisfied with that portion of the decree which gives him but ten per cent interest upon the taxes paid, appealed therefrom. Defendant Schaffer makes no objection to the decree, and there is no objection offered by any one to the decree so far as it relates to the Schneider mortgage.
The contention on the part of the appealing defendants seems to be that since Schaffer and wife have legally incumbered their homestead by the mortgages to Hoadley and Fredenburg, the homestead property should be made to bear its equitable portion of the indebtedness secured by such mortgages, and that the decree of the court requiring the other mortgaged property to be exhausted before the homestead could be sold, was erroneous as against the lien holders, who could maintain no right as against the homestead.
The principal question here presented is whether or not the homestead right is such an interest as will entitle its owner to require a mortgagee to exhaust other mortgaged property before subjecting it to the payment of any portion of the debt secured by the mortgage as against the rights of subsequent encumbrancers having no claim upon the homestead property.
By section 17 of chapter 36 of the Compiled Statutes, the homestead right is made such an interest in the real estate as upon the death of the...
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