Brumbaugh v. Shoemaker

51 Iowa 148 | Iowa | 1879

Rothrocic, J.

, e“hau2tinge: other property. — I. The counsel for appellant in their argument say: “No claim is made that the homestead was ever platted or recorded by the sheriff. The fact that the sheriff offered the one -hundred and sixty acre tract in foj-ties, ending with' that on which Brumbaugh lived, and received no bid, is claimed to have been a substantial compliance with the statute.”

In answer to this proposition counsel cite us to Linscott v. Lamart, 46 Iowa, 312, and White v. Rowley, Id., 680. These cases are not analogous to the case at bar. In Linscott v. Lamart it was held that the sale was void because the sheriff sold a part of the homestead in satisfaction of an execution for which the homestead was not in any event liable. In this case the homestead was liable after exhausting the other land embraced in the decree of foreclosure.

In White v. Rowley the execution was for a debt contracted - after the homestead right accrued. The homestead was in no event liable for the debt. There was a dispute as to the boundaries of the homestead. The plaintiff attempted to make a selection different from the government subdivisions, and claimed that the sheriff levied upon and sold part of the homestead. Under these circumstances it was held that it was the duty of the sheriff to have caused the homestead to be platted. It will be observed that the plaintiff in that ease supposed that the selection he had made was valid, and there was a dispute as to what constituted the homestead. In the case at bar there was no dispute. The plaintiff avers that' a certain quarter of the quarter section was his homestead, and that defendant knew it when he made the purchase. It| is not a case where the boundaries of the homestead were in dispute. The precise question presented in this case was determined in Burmeister v. Dewey, 27 Iowa, 468, where it was held that a sheriff’s sale in foreclosure of a mortgage should not be set aside where the sheriff first offered the land in forty-acre tracts, according to the government subdivisions, and receiving no bids then offered and sold the whole of the lands, including the homestead. It was there held that offering the lands other than the homestead in separate tracts, and endeavoring thus to sell before offering and selling in a body, was exhausting the other property, within the meaning of section 2281 of the Bevision. The same rule was followed in Eggers v. Redwood, 50 Iowa, 289. We are content with the reasoning and the conclusion reached in those cases, and are not disposed to overrule them.

What we hold is that the sale is not void, and cannot be set aside upon the averments made in this petition. Whether the sheriff would be liable in a proper- proceeding for a misapplication of a part of the purchase money we do not determine, because he is not a party to this action, and no relief is asked against him.

Ahfirmed.