McHugh v. Smiley

• Decision Date: 20 August 1884
• Citation: 20 N.W. 296,17 Neb. 620
• Parties: WILLIAM MCHUGH, APPELLANT, v. JOHN A. SMILEY ET AL., APPELLANTS, AND ELLEN P. FORBES ET AL., APPELLEES
• Court: Nebraska Supreme Court

20 N.W. 296

17 Neb. 620

WILLIAM MCHUGH, APPELLANT, v. JOHN A. SMILEY ET AL., APPELLANTS, AND ELLEN P. FORBES ET AL., APPELLEES

Supreme Court of Nebraska

August 20, 1884

APPEAL from Douglas county. Heard below before NEVILLE, J.

Decree reversed and set aside.

George M. O'Brien, for appellants.

H. D Estabrook, George W. Doane, and James W. Savage, for appellees.

OPINION

MAXWELL, J.

The principal question involved in this case is, whether or not John A. Smiley had sold and abandoned his homestead and thereby rendered operative certain judgment liens existing against the same. There are also several minor questions which will be considered in their order. The court below found that Smiley had abandoned his homestead, and rendered judgment accordingly. McHugh and the Smileys appeal.

It appears from the record that John A. Smiley in the year 1872 and from thence continuously until the 22d of October, 1877, was the owner of the west half of the southeast quarter of section three, in township fifteen north, range thirteen east, in Douglas county, which during all that time was occupied as a homestead, and is now claimed as such.

In 1872 Alfred Burley and James H. Barlow recovered a judgment against Smiley for the sum of $ 294.83 and costs.

In October, 1874, the Omaha National Bank recovered a judgment against Smiley for the sum of $ 1,247.00.

In 1874 a judgment was rendered in the county court of Douglas county in favor of Littleton Waldron and against John A. Smiley for the sum of $ 300, a transcript of which was duly filed in the district court.

In October, 1877, Smiley and wife executed a quit-claim deed of said premises to the plaintiff. The consideration named in said deed is the sum of $ 1,873.38.

The plaintiff, in 1879, also purchased the interest of one Bryant, acquired by tax deed of said premises, the alleged consideration being the sum of $ 1,940.00. He also paid other debts which need not be referred to. The Smileys continued to occupy the land in controversy after the execution of the deed, but the judgment creditors named, alleging that they considered the execution of the deed to McHugh as a sale and abandonment of the homestead by Smiley and wife, caused executions to be issued on their judgments and levied upon portions of said real estate. Sales took place under the several levies, which were thereafter without actual notice confirmed by the court and deeds executed, the entire proceedings being ex parte. Afterwards a bond of defeasance from McHugh to the wife of Smiley was duly recorded.

In July, 1881, the plaintiff filed his petition in the district court of Douglas county to foreclose the alleged mortgage. Smiley and wife and the purchasers under the execution sales were made defendants. Issues were joined, and on the trial of the cause the court found "that the deed in the amended petition mentioned and described, executed by the said defendants, John M. Smiley and Anna M. J. Smiley, to the said plaintiff, of the eighty acres of land in said amended petition described, was given as security for the repayment of money to be advanced by the said plaintiff for the benefit of the said defendants, John A. Smiley and Anna M. J. Smiley, and that said deed was intended by the parties thereto to have the effect of a mortgage only, and the court therefore finds that the said deed was a mortgage only, and so intended by the parties; and that said plaintiff is entitled to an account of the amount due him from the said John A. Smiley and Anna M. J. Smiley, for and on account of the said moneys so advanced and paid out by him to them and for their benefit. And the court further finds that there is due to the said plaintiff from the said John A. Smiley and Anna M. J. Smiley, on account of said advances, including interest thereon up to the first day of this term of the court, the sum of $ 8,045.00, to all of which findings the said defendants, Alfred Burley, Ellen P. Forbes, and James F. Morton, by their attorneys, respectively except."

The court then found in favor of Forbes, Burley, and Morton, and sustained their titles and rendered a decree of foreclosure. Neither of these parties appeal. This court, therefore, without considering the character of the deed from Smiley and wife to the plaintiff, will accept as conclusive in this case the finding of the court as above indicated, that the deed from Smiley and wife to McHugh was a mortgage.

It is claimed on behalf of the execution purchasers that a mortgage is a conveyance. In some of the states it is so held, but the common law rule has never prevailed in this state, it being held that a mortgage is a mere security creating a lien upon the mortgaged property, but conferring no title and vesting no estate. Kyger v. Ryley, 2 Neb. 20. Webb v. Hoselton, 4 Neb. 308. Tootle v. White, 4 Neb. 401. Hurley v. Estes, 6 Neb. 386. Gregory v Hartley, 6 Neb. 356. Simmons Hardware Co. v. Brokaw, 7 Neb. 405. Buel v. Farwell, 8 Neb. 224. Merriam v. Hyde, 9 Neb. 113. Union Mutual Ins. Co. v. Lovitt, 10 Neb. 301. Davidson v. Cox, 11 Neb. 250, 9 N.W. 95. Blanchard v. Jamison, 14 Neb. 244. Forgy v. Merryman, 14 Neb. 513. A mortgage in this state, therefore, is not a conveyance, and as it is not claimed that Smiley and wife removed from the land there was no abandonment. The homestead law in force when the contracts were made with the judgment creditors is the law to be applied in this case. Dorrington v. Meyers, 11 Neb. 388, 9 N.W. 555. But as the date of the contracts does not appear, the law as it existed at the time the judgments were recovered will be applied.

Section 525 of the code as it existed at that time was as follows "A homestead consisting of any quantity of land not exceeding one hundred and sixty acres, and the dwelling-house thereon, and its appurtenances, to be selected by the owner thereof, and not included in any incorporated city or village, or instead thereof, at the option of the owner, a quantity of contiguous land not exceeding two lots, being within an incorporated town, city, or village, and according to the recorded plat of such incorporated town, city, or village; or in lieu of the above, a lot or parcel of contiguous land not exceeding twenty acres, being within the limits of...