63 Neb. 837 | Neb. | 1902
The plaintiff below, defendant in error, brought an action in ejectment to recover possession of certain real estate, making plaintiffs in error defendants in the action. A trial to the court after issues were formed, without the intervention of a jury, resulted in findings favorable to the plaintiff, on which, after the overruling of a motion for a new trial, judgment was duly rendered. The defendants prosecute error.
The plaintiff claims title to the real estate by virtue of a purchase thereof at execution sale, the execution being issued on a judgment in its favor and against one Gibbs, who, prior to the sale under the execution, had been the owner of said land. It is disclosed by the record that plaintiff’s judgment was obtained in 1893 before a justice of the peace, a transcript of which was duly filed in the office of the clerk of the district court, and thereby apparently became a lien on the real estate of the judgment debtor. The judgment debtor and owner of said land executed two mortgages on the real estate in controversy to the plaintiff in error Halstead, one of which, because of a default being made in its terms, was foreclosed by the mortgagee. In the foreclosure proceedings the defendant in error, Osborne & Go., in whose favor the judgment was rendered, was not made a party. After obtaining a decree in the foreclosure
Herein, as we view the record, lies the only controversy of a substantial character existing between the parties. If Halstead acquired title to the land by virtue of the sale thereof under his decree of foreclosure, wherein, by the acts and acquiescence of all parties in interest the lien of the judgment of Osborne & Co. was given priority, and the land sold subject thereto, neither the purchaser, Hal-stead, nor Ms grantee, Curtis, can now be heard to question the validity of the prior lien so found to exist thereon, and which the property was sold subject to. While it is entirely clear that the land, prior to its sale under the decree of foreclosure, was the homestead of the mortgagor and judgment debtor and exempt from the lien of the judgment while owned and occupied by Gibbs, it does not necessarily follow that others can be heard to assert its exempt character, and especially those purchasing subject to the lien, as did the plaintiff in error Halstead, as well as Curtis, who succeeded to his title as his grantee. “The right of homestead is a personal privilege and will be deemed waived unless asserted before a sale of the premises, where those entitled to claim the right have been parties to the proceeding resulting in the sale, where those proceedings have been adversary in their character, and where there has been an opportunity to assert the right of homestead.” Brownell v. Stoddard, 42 Nebr., 177. To the same effect is Rector v. Rotton, 3 Nebr., 171 and McHugh v. Smiley, 17 Nebr., 620. Treating the two plaintiffs in error, who are complaining of the judgment. below, as having derived title to the land in controversy through and by virtue of the foreclosure proceedings instituted by Halstead, wherein the. sale of the property was made subject to the lien of the judgment creditor, it is quite obvious that neither he nor his grantee can now be heard to question the
The case of Farmers’ Loan & Trust Co. v. Schwenk, reported in 54 Nebr., 657, is quite analogous to the one at bar. A number of prior decisions are therein referred to and quoted from, and it is there held that: “Where, under a decree foreclosing one of two mortgages of equal priority given to plaintiff in one transaction and covering the same lands, the appraisers erroneously deducted from the value of the premises the amount of a judgment as a senior lien, the plaintiff, being the purchaser at the foreclosure sale, can not be heard, in a subsequent action by him to foreclose the other mortgage, to assert that such judgment was the junior lien.” Applying the doctrine deducible from the above case and the many others therein cited, the conclusion -is irresistible that where one having a mortgage lien on real estate exempt as the homestead of the mortgagor, and against whom a certain judgment exists which would he a lien on the real estate except its exempt character is seasonably asserted, and who procures the sale of the property to he made subject to the judgment lien, which is treated as prior to the mortgage lien, and the property purchased by the mortgagee at the judicial sale made in pursuance of the decree in the proceedings, and subject to such judgment lien, can not afterwards, nor can his grantees, he heard to assert that such lien was and is invalid because of the homestead character of the premises in the hands of, and while occupied by, the mortgagor and judgment debtor.
Having disposed of the above branch of the case to our satisfaction, we next consider what force and effect, if any, should be given to the warranty deed executed by the mortgagors, Gibbs, on their homestead to the wife of the mortgagee, after the sale of the property, but before the confirmation of the sale. Curtis, the grantee of Halstead,
In any view of the record, which may properly be taken, the finding of the trial court is supported by the evidence, which is practically undisputed, and the judgment rendered thereon is a necessary conclusion by a correct application of the principles of law heretofore adverted to. The judgment therefore should be, and accordingly is, in all things
Affirmed.