45 Iowa 37 | Iowa | 1876
The facts of this case are substantially as follows: In February, 1873, plaintiffs owned a farm in Illinois, which they sold for $1,500. The forty on which they resided, with the improvements thereon, was valued at $3,000. At this time one J. H. Winspear resided upon and had a pre-emption claim to the southwest quarter of section 12, township 99,
Shuck procured W. D. Lathrop and John Blake, on the 12th of February, 1874, to prove up, under homestead claims, the said quarter section of land. Blake proved up the north half and Lathrop the south half of said land, and on 'the next day each conveyed his interest to D. M. Shuck and Charles DeLand. The consideration paid Blake and Lathrop, which was about $300, was paid by Shuck out of the firm money and charged to DeLand. On the 7th day of April, 1875,
On the 13th day of July, 1873, the defendants commenced selling lumber to the firm of Shuck & DeLand. This firm, at the time that plaintiffs moved upon and commenced occupying the premises in question, owed the defendants for lumber pmchased the sum of $29.65. On the 26th day of February, 1871, Shuck and DeLand executed their notes to defendants for the sum of $1,000, and secured them by a mortgage on the whole of the said southwest quarter of section twelve.
The defendants brought an action upon these notes, and to foreclose the mortgage. Shuck and DeLand answered that the notes and mortgage had been procured by fraud, and asked that they be canceled. The court set aside the notes and mortgage, and rendered a judgment against Shuck and DeLand, upon the original indebtedness, for the sum of $1,290. Execution issued upon this judgment, and was levied upon the whole of said quarter section. On the 21th day of July, 1875, the southeast quarter of said quarter section, upon which plaintiffs reside, was sold at sheriff’s sale to defendants for the sum of fifteen hundred dollars, the remainder of said quarter section having been before sold on execution to other parties.
To set aside this sale, and to quiet plaintiffs’ title to said foi’ty acres, this action is brought. The court found that the property in question is plaintiffs’ homestead, and that it is liable for the payment of so much of tlie judgment only as is based upon the indebtedness existing before the premises were occupied as a homestead.
The legal title to the property in question was not acquired until after the debt was contracted,- upon which defendant’s judgment was rendered. If, then, plaintiffs can hold the property as their homestead, discharged from the judgment, their right to' do so must be based upon some interest which they held in the property at the time their actual occupancy commenced.
He could transfer no greater interest than he possessed. The plaintiffs, then, acquired Winspear’s improvements, which the evidence shows were worth about $350, and the right to go into possession of the premises, and file a pre-emption claim, and ultimately to acquire the title by paying the government therefor.
DeLand could not have expected the entry to be made1 in his own name, and if he expected Shnck to make it in his name for plaintiffs’ use, he intended Shuck to make a false oath and perpetrate a fraud. In such case he is within the principle of Oaks v. Heaton, 44 Iowa, 116.
There are other circumstances which cast suspicion upon the bona fides of plaintiff’s claim. Notwithstanding the fact that Shuck and DeLand were in possession of the property, they procured Lathrop and Blake to obtain title thereto under homestead claims, and then to convey to Shuck and DeLand. In order to accomplish this purpose it was necessary that Lathrop and Blake each should make oath that the application was made for his exclusive use and benefit, and that his entry was made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person. Lathrop and Blake upon making their entry conveyed to Shuck and DeLand. In the answer which Shuck and DeLand interposed in the suit upon the notes, and to foreclose the mortgage, they alleged that a part of the real estate mortgaged was the homestead of all of the defendants to that suit. This answer is altogether inconsistent with the present claim that the property in controversy was, when the debt was contracted, the homestead of plaintiffs.
The plaintiffs cannot hold the property in controversy upon the ground that the homestead in Illinois was exchanged for it. As we have seen, DeLand acquired no equitable .interest in the land for the $1,800 which he advanced to Shuck. There is no proof that any more of the consideration of the sale of the Illinois homestead went into the property in controversy.
We are of opinion that the court below erred in discharging the property in controversy from the debt in question.
Reversed.