Swift v. Dewey

• Decision Date: 15 September 1886
• Citation: 29 N.W. 254,20 Neb. 107
• Parties: BARNABAS E. SWIFT ET AL., APPELLEES, v. CHARLES H. DEWEY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

29 N.W. 254

20 Neb. 107

BARNABAS E. SWIFT ET AL., APPELLEES, v. CHARLES H. DEWEY ET AL., APPELLANTS

Supreme Court of Nebraska

September 15, 1886

APPEAL from the district court of Adams county. Heard below before MORRIS, J.

REVERSED AND REMANDED.

John L Webster and B. F. Smith, for appellants.

John M Ragan (Angus McDonald and O. P. Shallenberger with him), for appellees.

OPINION

COBB J.

It appears from the abstract that on the 4th day of June, 1879, Barnabas E. Swift, one of the appellees, was the owner of the quarter section of land described in the pleadings. That the same having been acquired by him under the homestead laws of the United States, although he was not then actually residing thereon with his family, yet not having legally abandoned the same as his homestead, both he and his wife and co-appellee were entitled to an exempt homestead therein. It further appears that on the day above mentioned the said Barnabas E. Swift executed to Dewey & Stone, the appellants, a mortgage upon the north half of said quarter section of land to secure the sum of $ 819.22. That on the 13th day of December, 1880, a suit having been commenced for the foreclosure of said mortgage, such proceedings were had, that a judgment and decree was duly rendered and entered in the proper district court for the foreclosure of said mortgage, and the sale of the land therein described. That on the 29th day of September, 1884, an order of sale was issued on the said judgment and decree, and placed in the hands of the appellant David L. Barlass, as sheriff of Adams county, who advertised the said lands for sale on the 1st day of November next ensuing, to satisfy the said judgment and costs, etc. That thereupon the appellees commenced their action in the district court of Adams county for an injunction and general relief against the appellants.

The appellants Dewey & Stone answered, denying that the said quarter section of land was the exempt homestead of the said plaintiffs at the time of the commencement of their said action, and alleging that the same was of greater value than two thousand dollars, to-wit, of the value of four thousand dollars, and praying the court to enquire into the value of said quarter section of land, and if the same should prove to be of greater value than two thousand dollars, that the same be sold and the overplus of two thousand dollars be applied to the payment of the said judgment of the said Dewey & Stone, etc.

There was no reply.

There was a trial to the court which found for the plaintiffs and rendered a judgment and decree perpetually enjoining the said defendants from proceeding further in the sale of said premises, or taking any steps, proceedings, or process whatever, based on said pretended judgment of foreclosure, etc. The defendants bring the cause to this court by appeal.

Section 3 of the homestead act of 1877, provides that: "A conveyance or encumbrance by the owner is of no validity unless the husband and wife, if the owner is married, concur in and sign the same joint instrument." Laws 1877, 34.

I do not understand this provision to go to the extent of invalidating a mortgage executed by the husband without the concurrence of the wife, and embracing an exempt homestead, for all purposes, but only for the purpose and to the extent of rendering it powerless to dismember or to any extent disturb the homestead. Certainly such a mortgage, if executed for an adequate and lawful consideration, would be enforceable against the person executing it, according to its terms, upon any property which it might contain other than the exempt homestead. This proposition seems to me too plain to admit of argument.

The act of 1877 provides that a homestead shall in no event exceed in value the sum of two thousand dollars. The previous act of 1875 and the subsequent one of 1879 [Comp. Stat., Ch. 36.] both contain provisions of similar import. Under this provision, and conceding that under the evidence in the case, the appellees have an exempt homestead in the quarter section of land described, it by no means follows that the whole quarter section is exempt. Where, as in this case, the homestead in question consists of a farm, that which may be claimed as exempt is as clearly limited to two thousand dollars in value, as it is to one hundred and...