3 Iowa 287 | Iowa | 1856
The first question made, to which we will turn our attention, is, whether the defendant is entitled to a homestead exemption, against this contract, which was made in the state of Missouri, in October, 1850 ? The law under which it is claimed, is the act of 1848-9. Session Laws, 1848-9, chapter 124, 152. In point of time, the contract is covered by this act. But, it is urged that the lex loci contractus governs the case; and that as the law of Missouri gave no homestead exemption, the defendant has none under this contract.
Laws relating to contracts and to their enforcement, affect either the contract itself or the remedy. Those granting exemptions from execution, affect the remedy. The exemption of a homestead, is as truly a part of the remedy, as the exemption of a horse or other article of property; This remark is made subject to the qualifications and limitations propounded in the cases of Bronson v. Kinzie, 1 How. 811; McCracken v. Hayward, 2 How. 228; Gauntley’s Lessee v. Ewing, 2 How. 608. To hold that the laws of other states, where contracts happen to be made, govern in this matter, would introduce great confusion into our midst, and would place our citizens upon unequal ground. The court below held the same view, and there was no error therein.
Another question made, under a demurrer of the plaintiff to the defendant’s answer, is, whether the defendant should not allege, that at the time of the attachment, he claimed his right of homestead in the - land; or whether he should not allege, that he made this claim at the time of levy and sale; whether he should not allege, that the value of the property did not exceed five hundred dollars ; that it was not within a recorded town plat; and that he used and occupied the land
The homestead exemption owes its existence to statute law entirely, and we must accept of it, if at all, under just the qualifications, considerations, and circumstances, under which the law gives it. We cannot say that the law ought to have been different, and ought to have givén the right under different qualifications or fewer conditions. We construe, not make the law. It would seem, from the argument, as though counsel had their eye on a subsequent homestead law, which they esteemed a better one, and pressed the rights of the defendant, under the former act, as if they were created by the latter; or as if the former act should be interpreted by the better provisions of the latter. This we cannot do. The latter act may be a better one than the former, but the former gave what we never had before, and we must take it as given.
In respect to these qualifications defining the right, this act is likfe many others, only that in the present case, it throws that upon the defendant,' which usually falls upon a plaintiff. But this arises from the nature of the case, and is incidental only.’ When a plaintiff brings an action claiming a right, given under certain conditions or qualifications,
And this brings us to another question in the case. If the homestead claimed exceeds $500 in value, is he entitled to the exemption? We answer, that, as said above, when the quantity can be reduced so as to reach the given value, this may be done. But if, when reduced-to the smallest quantity,
By section one, the homestead “ is Jto be selected by the owner thereof.” That is, he may select which of two or more tracts of land, one being within a town, and one without, or both within, or both without, he will adopt as his home. Thisisthemeaningof these words, rather than thathe should necessarily set it out by metes and bounds.' It would seem from section three, that he may se.t it apart by metes and bounds, but there is no provision whatever, concerning recording and making such record a notice. But the case does not lead into the solution of this difficulty. It is in terms set down, that when it is not thus set apart by metes and bounds, the debtor may notify the officer at the time of making the levy, of what he regards as his homestead, &c. It would be going too far to say, that this notice could not be given at any time before the levy; but whether it could be given effectively after that, it is not necessary to determine, for the amended answer avers, a notice to the sheriff who held the writ of attachment, and to his successor. ■
In order to take a connected, and therefore, a more brief and clear view of the statute, we have passed beyond the particular point now under consideration, and have touched
A third question presented is, whether the defendant should not, in the absence of a claim to the sheriff to have the homestead set apart, allege a record of it, or a notice to the purchaser ? Sufficient has probably been said bearing upon this subject. But it is not perceived that the question is raised by any of the pleadings; and besides, it appears to the court, that there is an averment of claim and notice to the officers, and to the plaintiff, distinctly made.
The fourth question is, whether the plaintiff can recover any part of the property, if its value exceeded $500 ? The plaintiff averred it to amount to $900 in value, to which the defendant demurred, and the court overruled the demurrer. It appears the quantity of land was about thirty-five acres. It has been before suggested, that if it exceeds the proper value, and is divisible, and the quantity can be reduced so as to meet the required value, this must be done. If a claim was made, and this was not done before sale, it must be done now, by the intervention of referees, or in some of the methods of proceeding known to the law. When an end is distinctly pointed out by statute, but the mode is not prescribed, the court will find a method. The overruling the demurrer, was correct, for this does not dispose of the whole matter. There is a fact to be ascertained. If the whole land exceeds $500 in value, it is then to be found whether it can be divided, so as to leave a homestead within the statute limitation.
Another point is, whether the defendant is entitled to a
This chapter relates to the repeal of former acts; and section 81 provides, that “ this repeal of existing acts, shall not affect any act done; any right accruing, or which has accrued, or been established, &c., before the time when such repeal takes effect.” Now, under the act of 1849, a right existed in the defendant in relation to this contract, that is, a right to his homestead, if he had one, and this right is saved by the repealing chapter of the Code. The intention of the Code, adopted in 1851, was to save all rights existing under former acts, even to the extent of those yet accruing. There is no doubt in our opinion, but that the rights of the defendant under this contract, were saved by the act of repeal. On this point, therefore, the court did not err.
The remaining question is, whether Delilah Cave, wife of the defendant, should have been made a party, and should have been permitted to make defence ? We think she should not, and that herein the court erred. Under the statute of 1849, she has no right, independent of her husband. The argument urged is, that the husband (by section 2) cannot alienate the homestead without her consent'; therefore, a judicial sale cannot take it away. This does not follow, as of course. By our statute of dower preceding the present one,
But there is another view to be taken of her claim in this cause. If she has rights under the act of 1849, which she may assert separately from her husband, they cannot be such, at the best, as to exonerate her from doing that which her husband was to do — that which the law required. She must at least show, that she has done that which her husband was required to, but omitted to do. She must take the ground, that what he has omitted, she has done; or that as he refuses or neglects to make defence, she should be permitted to do so. Something like this, must be her position. There is no new, different, independent basis of right or law, for her to found her claim upon. The statute is very meagre and deficient upon the other matters above alluded to, it must be admitted; but there is room to doubt whether it intended to confer upon the wife the right here claimed, which is an independent right. The utmost that could, in any view of it, be accorded her, would be to defend, if he did not; or possibly to show that she had supplied his omission, by doing some act which he had neglected. But, if she cannot assume one or the other of these grounds, there does not appear any reason for her becoming a party. ■
We are not inclined to settle the question definitely as to her becoming a party under the above circumstances, since the cause does not demand it; but it seems apparent, that without assuming some such positions, as those above indicated, there is no call or occasion for letting her in. Of what benefit would it be? What would she gain, or what can she do ? What is her position, as she asks admission now? The husband appears and defends, and she does-not pretend the contrary. She does not claim that he has refused or neglected to do some necessary act, which
The character of the cause has led the court to pass over some matters which, upon an observance of rules, would have sent both parties out of court. But as no objection has been made on account of these irregularities, we have preferred to try to determine the questions of the cause, and to recommend both parties to a repleader. The papers are in so great confusion, and sometimes so imperfect, that it will be difficult for either the court or the counsel to proceed with intelligence.
The judgment of the District Court upon the application of Delilah Cave, to be made a party, and upon the supposed want of an averment in the answer, that the land was used- and occupied for agricultural purposes, is reversed; and the judgment upon the other questions here presented, is affirmed.