148 Iowa 594 | Iowa | 1910
From • the foregoing statement, which recites only such facts as áre deemed essential to an understanding of the question of law raised' on this appeal, it is apparent that appellants, holding liens under foreclosure on two of the three tracts, such liens being subordinate to other liens under foreclosure on the three tracts, are seeking to take advantage of the conveyance by Mrs. Engelson to Lasell of the homestead tract, by having the burden of the two prior liens thrown primarily on that tract in order that the surplus in the proceeds from the other two tracts may be saved to them; their theory being that by'the sale of the forty-acre tract Mrs. Engelson lost her homestead right therein, and that the tract thereupon became equally liable with the other two tracts to the satisfaction of the senior liens, and' that for the protection of appellants’ junior liens which were upon the two tracts only the forty-acre tract should be first applied to the satisfaction of the superior liens.
It is practically conceded by counsel for appellees that if the forty-acre tract had not been the homestead of Mrs.'Engelson at the time the original decree was entered, that decree should have provided for the subjection of the property to the various liens in the method now contended for by appellants; that is, the forty-acre tract should have been subjected first to the satisfaction of the superior liens
No authorities have been presented by counsel on either side directly involving the question now submitted. Counsel for appellants rely upon the cases of Barker v. Rollins, 30 Iowa, 412; Kemerer v. Bournes, 53 Iowa, 172, and Dilger v. Palmer, 60 Iowa, 117, as by implication sustaining their position. But an examination of these cases will show that they fall far short' of sustaining the position contended for. In Barker v. Rollins, the sole question seems to have been whether Coggeshall, who purchased the mortgaged premises, was entitled by virtue of his homestead right in a portion thereof on cross-petition to have the mortgagee required to resort to other property of the mortgagor not exempt from execution before resorting to the homestead in satisfaction of his mortgage, and it is to be noticed in passing that Coggeshall claimed a homestead right in the entire mortgaged premises. The court held that Coggeshall’s homestead right could not be set up as a basis for requiring the mortgagee to resort to other property of the mortgagor before subjecting the mortgaged property in which Coggeshall’s homestead was
Before these appellants acquired their mortgage liens on the two tracts, the mortgagor holding the forty-acre tract as a homestead was entitled to insist that on foreclosure of the two existing mortgages each covering the homestead tract with the other property, such other property be first exhausted before resorting to the homestead tract. Under this situation the appellants were not entitled to insist that for their protection the burden of the two prior mortgages be first thrown upon the homestead.
As between these appellants and Mrs. Engelson, the appellants were creditors only so far as the homestead tract was concerned, and she might convey the homestead free from any claims of such creditors. Richards v. Orr, 118 Iowa, 724; Citizens' Sav. Bk. v. Glick, 134 Iowa, 323; Lutz v. Ristine, 136 Iowa, 684. We are unable to see, therefore, how appellants can have any better right by reason of the conveyance of the homestead by Mrs. Engelson to Lasell to require the satisfaction of the prior mortgages first out of the homestead than they would have had while the homestead belonged to Mrs. Engelson. In one sense the homestead right is personal, and of course Mrs. Engelson could not transfer her homestead right to Lasell. But we think she could transfer the homestead forty as to which appellants had no claim whatever to Lasell without subjecting it in his hands to any greater liability than that to which it was subjected in her own hands.
There is another consideration in support of our conclusion which seems to us quite controlling. Before the conveyance of the homestead forty by Mrs. Engelson to Lasell, the measure of liability of that tract had been fixed by the decree of which appellants made no complaint. We think it would be most inequitable to subject that forty in the hands of Lasell holding under the conveyance from Mrs. Engelson to a greater charge than that imposed upon it by the decree. That decree fixed the liability of the different tracts, and we think Lasell had a right to rely upon it as the measure of the obligation which he assumed in purchasing it subject to the mortgages standing against
We are satisfied with the decree of the trial court, and it is affirmed.