Van Doren v. Wiedeman

• Decision Date: 18 March 1903
• Docket Number: 12,391
• Citation: 94 N.W. 124,68 Neb. 243
• Parties: SARAH E. VAN DOREN ET AL. v. GUST H. WIEDEMAN ET AL., REVIVED IN THE NAME OF JOHN E. WIEDEMAN, ADMINISTRATOR OF THE ESTATE OF GUST H. WIEDEMAN, DECEASED, ET AL
• Court: Nebraska Supreme Court

94 N.W. 124

68 Neb. 243

SARAH E. VAN DOREN ET AL. v. GUST H. WIEDEMAN ET AL., REVIVED IN THE NAME OF JOHN E. WIEDEMAN, ADMINISTRATOR OF THE ESTATE OF GUST H. WIEDEMAN, DECEASED, ET AL

No. 12,391

Supreme Court of Nebraska

March 18, 1903

ERROR to the district court for Cass county: PAUL JESSEN, DISTRICT JUDGE. Reversed.

Reversed and remanded.

Byron Clark and C. A. Rawls, for plaintiffs in error.

Carey S. Polk, contra.

KIRKPATRICK C. HASTINGS and LOBINGIER, CC., concur.

OPINION

KIRKPATRICK, C.

This is an error proceeding prosecuted from a judgment of the district court for Cass county in an action of ejectment brought by Gust H. Wiedeman, now deceased, the action having been revived in the name of his administrator and heirs at law, defendants in error, against Sarah E. Van Doren and Aaron L. Van Doren, plaintiffs in error. There was judgment for plaintiff below. The petition filed in the district court alleges, "that plaintiff is the owner and is entitled to the possession of the northwest quarter of section seventeen (17) in township twelve (12) north, range nine (9) east of the sixth principal meridian, in said county of Cass, and that said defendants and each of them since the 18th day of April, 1899, have unlawfully kept and still keep the plaintiff out of possession thereof. Wherefore the plaintiff prays judgment for the delivery of possession of said premises to him and for his costs herein expended." Separate answers by the Van Dorens consisted of general denials.

The court found that the Van Dorens were husband and wife, and as such were living upon the premises; that on April 2, 1898, Aultman, Miller & Co. recovered a judgment against A. L. Van Doren for $ 154.70, a transcript of which was filed in the office of the clerk of the district court April 4, 1898; that on November 11, 1898, A. L. Van Doren transferred the title to the premises to his wife, the deed being recorded on March 11, 1899; that execution was issued on the judgment February 7, 1899, and levied upon the premises; that no proceedings have been taken by the creditors, either to set aside the conveyance, or to have the homestead interest of the Van Dorens appraised; that the land was sold under the execution on March 31, 1899, the sum realized being $ 2,725; and after the deduction of the costs and judgment, there remained in the hands of the sheriff $ 2,449.08; that the sale was confirmed April 10, 1899, a sheriff's deed issuing to G. H. Wiedeman, the purchaser that up to May 1, 1899, Sarah E. Van Doren had not been a party to the proceedings; that on that day she filed a motion in the case of Aultman, Miller & Co. v. A. L. Van Doren, her husband, asking the court to direct the sheriff to turn over the surplus of $ 2,449.08 to her (the fund arising from the sale of the premises), claiming to be the owner thereof; that the district court granted this motion, directing the surplus to be paid to her; that the husband joined with his wife in demanding of and receipting to the sheriff for such surplus; that subsequent to the confirmation of the sale, and on April 22, 1899, G. H. Wiedeman asked the court to set aside the sale and relieve him of his bid, for the reason that he could not obtain possession of the land; that the Van Dorens made no appearance on the hearing of such motion, neither of them having any actual notice of the motion to confirm the sale; that Wiedeman's motion to set aside the sale, and Sarah E. Van Doren's motion asking that the surplus be paid to her, were submitted and passed upon the same day, June 21, 1899, the former being overruled, the latter sustained.

Upon these findings of fact the court held, first, that the ownership and occupancy of the premises by the Van Dorens was a sufficient selection of the premises as a homestead, and that all persons, including the plaintiff G. H. Wiedeman, were charged with notice of the homestead character of the premises, and that such character continued in said land up to and including the sale under execution; second, that when Sarah E. Van Doren appeared in the case of Aultman, Miller & Co. against A. L. Van Doren, filing a motion asking that the surplus of the sale be paid to her, she waived antecedent irregularities, and waived the right to claim the land as a homestead; that A. L. Van Doren and Sarah E. Van Doren are now estopped to deny the validity of the sale and to claim the land as a homestead. Thereupon judgment was rendered for plaintiff below, which was superseded, plaintiffs in error being still in possession of the premises.

The findings of fact by the trial court are in the main supported by the evidence, with the exception that the record fails to show that A. L. Van Doren took any part in securing the payment of the surplus to his wife further than that he made an affidavit, which his wife filed with her motion, and that he, apparently at the instance of the sheriff, who by the court was ordered to pay the money to Mrs. Van Doren, joined with his wife in receipting for the money. In addition to matters found by the court, it appears that the land was appraised by the sheriff in gross at $ 6,400, which sum, after the deduction of a prior incumbrance of $ 2,000 and certain unpaid taxes, was reduced to $ 4,081.63. It was twelve days after confirmation of the sale, and on April 22, 1899, that Wiedeman, the purchaser, desiring to be relieved from his bid, filed a motion assigning the following reasons why the sale should be set aside:

"First, for the reason of mistake and irregularity in said sale; second, for the reason that said property was appraised as the property of said A. L. Van Doren, and sold as such to this plaintiff, when in truth and in fact the said A. L. Van Doren was not the owner thereof; third, for the reason that the said G. H. Wiedeman is unable to get or secure title thereto."

The motion of Mrs. Van Doren referred to, and filed May 1, 1899, is as follows:

"Now comes Sarah E. Van Doren, owner of the real estate sold in the above cause to the purchaser, G. H. Wiedeman, and moves the court to order the sheriff to pay the surplus arising from sale to this owner, Sarah E. Van Doren."

Neither of plaintiffs in error were parties to the motion of Wiedeman to be relieved from his bid, apparently having no knowledge thereof, although Mrs. Van Doren was present in court on June 21, 1899, by attorney, urging her own motion. However, both motions appear to have been ruled upon at the same time, the journal entry being as follows: "Now on this day this cause came on for decision, having been heretofore argued and submitted, on the motion to set aside sale under execution and confirmation thereof, on consideration whereof the court doth overrule the same, and the sheriff is ordered to pay over money to Mrs. Van Doren"; to which order it appears Wiedeman took an exception.

Upon paying the money on the same day, the sheriff made a condition of such payment the requirement that the husband sign with Mrs. Van Doren. Wiedeman resided near the land in controversy, was well acquainted with plaintiffs in error, and knew they occupied the premises as a homestead. He was the notary who took the acknowledgment to the deed conveying the premises to Mrs. Van Doren.

It is contended by plaintiffs in error that the rule of caveat emptor applies to the purchaser at this sale; that by the confirmation of the sale the homestead was in no manner affected; that the record discloses nothing to estop plaintiffs in error to assert their homestead right herein; that the parties being without power to alienate or incumber their homestead except in the manner prescribed by statute, no estoppel can be invoked, as estoppel can not supply the want of power; that judgment against the husband was no lien against the homestead; that sale on such judgment did not devest title; that the homestead interest embraced the entire tract, and that no appraisement of the property and severance of the homestead interest was had in pursuance to the statute, this in itself being a complete defense in the action of ejectment.

On the part of defendants in error it is contended that by accepting the proceeds of the sale in the hands of the sheriff, plaintiffs in error estopped themselves from questioning the validity of the sale; that, by so accepting the surplus, they ratified any irregularity in the proceedings theretofore had; that they actively affirmed the sale by seeking to procure the surplus; and, further, that all such matters could be shown in ejectment, although not specially pleaded.

The question thus presented is whether Mrs. Van Doren, by filing her motion asking for the payment of the surplus of the sale to her, a fund created by the sale of the premises, and thus appearing in the action after sale and confirmation thereof, has placed it beyond the power of herself and husband to assert a right to the homestead exemption. Section 1 of chapter 36, Compiled Statutes (Annotated Statutes, 6200), limits the value of the homestead; section 3 designates the instances in which the homestead will be liable to forced sale; section 4 provides that both spouses must join in a conveyance. We think it is in entire accord with judicial construction of exemption laws to regard the sections referred to as exclusive of all other modes of conveying or incumbering the homestead, or rendering it liable to forced sale, unless, as hereinafter considered, the claimants, while in possession, may waive their right, and whether plaintiffs in error did so waive it.

Other sections of the same chapter contain authority for creditors to satisfy their claims out of the property of homestead claimants when the homestead is so intertwined with other property that the latter, which is liable upon execution,...