Corey v. Plummer, Perry & Co., 48 Neb. 481

Corey v. Plummer, Perry & Co.

48 Neb. 481 | Neb. | 1896

Norval, J.

Tbis was an action by Enos Corey against Plummer,. Perry & Co. to bave a judgment decreed not to be a lien upon eighty acres of land owned'by tbe plaintiff, by reason of tbe same being a homestead. There was a decree for plaintiff, and defendants appeal.

Upon tbe facts there is no dispute. Alonzo A. Corey, on tbe 5th day of July, 1886, by a patent from tbe United States acquired title to the south half of tbe southwest quarter, and the south half of the southeast quarter of section 24, township 8 north, of range 5 west, under and by virtue of the act of congress “to secure homesteads to actual settlers on the public domain,” approved May 20, 1862. Prom the date of said patent, continuously, until the 13th day of March, 1888, said Alonzo A. Corey, together with his wife and "children, resided upon and occupied said tract as a homestead. On the date last aforesaid said Alonzo A. Corey and his wife sold the said south half of the southwest quarter to their son, Enos Corey, the plaintiff herein, for the agreed consideration of $1,300, payable as follows: One hundred dollars cash, four hundred dollars March 1, 1889, four hundred dollars March 1,1891, and four hundred dollars on March 1, 1893, with interest on all deferred payments. The contract, after being-reduced to writing, was duly executed and acknowledged by all parties, and was recorded in the office of the county clerk of Clay county on the 17th day of May, 1888. In March, 1891, plaintiff paid in full the unpaid purchase price, and the vendors thereupon executed to him a deed of general warranty for said eighty *483acres as in said contract provided, which was duly recorded in Clay county on the 16th day of March, 1891.. The value of the entire quarter section did not exceed the sura of $2,000 over and above the mortgage liens, thereon at the time the sale was made to the plaintiff. The defendants Plummer, Perry & Co., on the 7th day of June, 188S, obtained a judgment against said Alonzo A. Corey, in the county court of York county, for the sum of $286, besides costs, upon a debt due for merchandise sold and delivered, which judgment was transcripted to the district court of Clay county, and entered upon the execution docket of said court, so that the same was apparently a lien on the premises in controversy, inasmuch as the legal title of record to the property at that time appeared to be in said Alonzo A. Corey, although as a matter of fact the land had theretofore been sold to the' plaintiff, who was in possession of the premises when the-judgment was obtained. Plaintiff had no knowledge of' the existence of said judgment until long after he paid the remainder of the consideration for the land. Under-the foregoing undisputed facts, it is obvious that the said judgment of the defendants was not a lien upon any portion of the 160 acres so long as the same was owned by plaintiff’s grantors. (Hoy v. Anderson, 39 Neb., 386; Corey v. Schuster, 44 Neb., 269.) Where a judgment debtor sells, and conveys his homestead of less value than $2,000, the purchaser takes it unaffected by any judgment against the vendor obtained during the existence of the homestead right, unless based upon a debt secured by a mortgage, mechanic’s, or vendor’s lien. (Corey v. Schuster, 44 Neb., 269.) Where the contract of sale to this plaintiff was made, the premises in question constituted the homestead of his grantors, and defendants’ judgment was not then in existence. The legal title remained in Alonzo A. Corey until the deed was executed, and he had a vendor’s lien upon the land by virtue of said contract until the purchase money was paid. The judgment having been obtained, and the transcript filed between the date of *484tbe sale and tbe delivery of tbe deed, tbe defendants insist tbat tbe judgment became a lien upon tbe land to the extent of tbe purchase money then unpaid, and to support tbe proposition tbe following cases are relied upon: Courtnay v. Parker, 16 Neb., 311, 21 Neb., 582; Olander v. Tighe, 43 Neb., 344. Those decisions, it is true, bold tbat a judgment recovered in tbe district court against a vendor of real estate who bad not executed a deed therefor and bad not received tbe entire consideration is a lien upon tbe interest of tbe vendor for tbe unpaid purchase price; but those cases are not in point here, and are clearly distinguishable from tbe case at bar. In every one of tbe authorities relied upon as precedents an execution bad been levied upon tbe land, and tbe real estate at tbe time of tbe contract of sale was entered into was not tbe homestead of tbe vendor, while in this case no execution has ever been issued upon tbe judgment, and tbe premises, at tbe time of tbe purchase, were occupied by Alonzo A. Corey as a homestead, and tbe same was not subject to forced sale on execution issued against him. Tbe land being exempt as a homestead, tbe purchase money was likewise exempt, for the period of six months after tbe receipt thereof, under section 16, chapter 36, Compiled Statutes, which provides: “If tbe homestead be conveved by tbe claimant, * if * the proceeds of tbe sale, * * not exceeding tbe amount of the homestead exemption, shall be entitled, for tbe period of six months thereafter, to the same protection against legal process and tbe voluntary disposition of tbe claimant which tbe law gives to tbe homestead.” The same construction was recently placed upon tbe foregoing provision, in Prugh v. Portsmouth Savings Bank, 48 Neb., 414. Tbe statute exempts tbe proceeds of tbe sale of the homestead for six months without imposing a single condition, not even tbat they should be held for the purpose of investing in another homestead. Whether such proceeds are received in cash, notes, or property, they are alike within tbe protection of tbe statute for the *485period specified. Only a small portion of the purchase-money was paid at the time of the sale of the homestead, and the remainder was not received until March, 1891,, long after the filing of the transcript of the judgment.. It was exempt for six months, not from the date of the sale, but from the time it was paid.. To hold otherwise would not only violate the liberal rule of construction of exemption laws in favor of the debtor which has always obtained in this state, but would be a violation of the letter and spirit of the statute. Plaintiff’s grantor had no interest in the lands or the proceeds arising from their sale to which the lien of the judgment could attach. (Schribar v. Platt, 19 Neb., 625.) The decree is clearly right, and it is accordingly

Affirmed.