161 Iowa 488 | Iowa | 1913
On the 10th day of October, 1912, plaintiff filed her petition in the district court of Lee county, claiming that on October 9, 1893, one Wilson recovered a judgment in this court against William Weisman for the sum of $1,248, with interest and costs; that said judgment was duly assigned to the plaintiff; that on or about -, 1897, said William Weisman died intestate, owning at the time of his death in fee the front 50 feet of lots 4, 5, 6, block 125, in the city of Keokuk, which property, at the time of his death, he occupied
To this petition, the defendants filed the following demurrer: (1) The facts stated in the petition do not entitle plaintiff to the relief demanded. (2) Plaintiff’s judgment is not a lien upon the real estate of defendants which plaintiff seeks to subject to the payment thereof. The lien of plaintiff’s judgment, if any be had at the time of the death of William Weisman, deceased, upon said real estate, expired on the 9th day of' October, 1903, and since said date plaintiff has had, and now has, no remedy against the said real estate.
The demurrer admits the facts pleaded. The facts are, therefore, that the appellant’s judgment was recovered October 9, 1893; that the debt for which the judgment was rendered was contracted the 19th of August, 1892; that William Weisman died in the year 1897; that at the time of his death he was the owner of the property in controversy, and occupied the same as a homestead. The question is, Do these facts entitle the plaintiff to an execution against the property described in this petition?
Section 3801 of the Code of 1897 provides: “Judgments in the Supreme or District Court of this state, or in the Circuit or District Court of the United States within the state, are liens upon the real estate owned by the defendant at the time of such rendition, and also upon all he may subsequently acquire, for the period of ten years from the date of the judgment.” It does not appear from the petition whether Weisman was the owner of this property or not at the time the
It is argued that this statute creates a special lien upon the homestead in favor of one whose debt was contracted prior to its acquisition. True, it gives him a right to the homestead which others do not have, whose debts were' contracted after the homestead was acquired. But it cannot be that it was the intention of the Legislature to create a lien upon property occupied as a homestead, for debts contracted prior to its acquisition, for a period longer than that which governs judgments obtained on other debts, which lien is limited to ten years. To hold that a judgment obtained on a debt contracted prior to the acquisition of the homestead was a lien upon the homestead for a period longer than ten years would be to place the homestead in a disadvantageous position. The judgment obtained upon such a debt is the same as any other judgment, and has the same life, and the period of the lien continues, as the lien on other judgments, as provided in section 3801, for ten years.
The judgment obtained on an indebtedness, contracted prior to the acquisition of a homestead, becomes a lien on all real estate owned by the debtor at the time of its rendition. It becomes a lien on the homestead only, because the debt was contracted prior to the acquisition of the homestead. The lien is no different except the limitation of its enforcement, to wit, after all other property has been exhausted. This statute, making a homestead liable for debts contracted prior to its acquisition, has the effect only of relieving it from
The right to issue an execution exists as long as the judgment remains unsatisfied, and not barred by the statute of limitations. But the lien of the judgment expires within ten years. The judgment lien is statutory, and expires with the statutory limitations upon its life, to wit, ten years. The judgment continues alive until barred by the statute. Section 3447, subd. 8.
It is true that in this case it does not appear that any administrator was appointed; but it does appear that more than five years have elapsed since the death of the intestate in which original administration could be appointed. Section 3305 provides: “Administration shall not be originally granted after five years from the death of the decedent, or from the time his death was known, in ease he died out of the state.” It would appear then that the plaintiff, having no lien upon any real property at the time this action was begun, stood as a general creditor having a claim, evidenced by a judgment against the estate of Weisman, which he might have enforced as a creditor by securing the appointment of an administrator within five years, and presenting his claim as the law required.
The judgment became a lien at the time of its rendition, and such lien continued for ten years. ... It could have been enforced against the land at any time before the expiration of this period, even after the death of the judgment. debtor, without filing it as a claim against the estate, and it is only necessary to so file the judgment where it is sought to obtain payment thereof out of the personal assets in the hands of the administrator. . . . The plaintiff, therefore, could have enforced his judgment against the real estate on which it was a lien at any time within ten years after its rendition unaffected by the death of the judgment creditor. But he suffered his lien to expire before issuing execution, or mating any effort to enforce the judgment. After the expiration of the lien, the plaintiff had no special claim to have his judgment satisfied out of the real estate on which it had been a lien. He could then only seek payment of his judgment from the personal assets in the hands of the administrator, in which case the real estate might, in the event of the inadequacy of the personal assets, be subject to payment thereof. . . . But, to entitle one holding a claim against an estate of a deceased person to payment ■ from the personal assets, he must pursue the method prescribed by law for that purpose, and it is enacted by section 2405 (now 3349) ‘that all claims of the fourth class (the one to which plaintiff’s claim belongs), not filed and proved within one year and a half after notice of administration is granted are forever barred, . . . ’ Unsatisfied judgments rendered prior to the death of the decedent are required to be entered in the catalogue of claims, and so much thereof allowed as the plaintiff will show by his own oath, or otherwise, is still unpaid. . . . Now, as we have seen, this is only necessary when it is sought to obtain payment from the personal assets in the hands of the administrator, and the judgment lien may be enforced against the real estate, notwithstanding more than eighteen months have elapsed since notice of the appointment of the administrator. Thus the judgment creditor has two remedies, or rather he has- recourse to two funds. He may either seek payment out of the personal assets, or he may enforce his lien on the real estate. If he adopts the latter,*496 he must do so before bis lien bas expired; be cannot do so afterwards. If be adopts the former, be must file bis claim duly approved within the time limited by the law. The plaintiff bas entirely failed to pursue either fund within the time limited, and bis claim is therefore barred.
See, also, Baldwin v. Tuttle, 23 Iowa, 66; Boyd v. Collins, 70 Iowa, 296. In Hansen Empire Fur Fact. v. Teabout, 104 Iowa, 361, we find the same doctrine affirmed by this court.
We are satisfied the court did not err in sustaining the demurrer, and the cause is therefore Affirmed.