Koen v. BrillKoen v. Brill
delivered the opinion of the court.
The appellants obtained, in the court of a justice of the peace of Warren county, а judgment against the appellee for §196.95, and leviеd the execution issued thereon upon the homestead of the appellee, a residenсe and lot in the city of Vicksburg, of the value of §6,000. Appellee enjoined the sale of the premisеs, under the execution, on the alleged grounds that thе homestead was incumbered by debts, with equitable liens to the amount of §4,400, and that the sole effect of a sale of the premises, under the judgment, would be to “ cast a cloud upon her title and destroy all her rights оf homestead, and do her irreparable inj ury. ’ ’ The аppellants demurred to the bill, and, the chancery court overruling their demurrer, they appeal to this •court. The question is whether the homestead is subjeсt to sale under the circumstances stated and аdmitted in this case. Our statutes forbid the sale, under exeсution or attachment, of the exempt homestеad, unless by its sale something could be realized for thе substantial benefit of the execution creditor. Undеr the admitted facts of this case, it would be impossiblе for a
We cannot think that the rule of marshaling sеcurities applies to homestead exemрtions. Securities will not be marshaled, says Story, in his Equity Jurisprudence, sec. 642, where injustice will be suffered by the common debtor, and certainly it would be a gross injustice to thе owner to allow the homestead to be diminished оr possibly swept away entirely, because the owner has created some lien upon it.
The prinсiples of law governing such cases are justly stated by Maxwell, J., in Mitchelson v. Smith, 28 Neb., where he said: “The homestead law is remedial in its character, and is to receive a liberal construction to carry into effect its beneficent provisions. No burdens will be placed on the homestead, therefore, not creatеd by the parties themselves or by the law, as for taxes, nor will a mortgagee of real estate, a рart of which constitutes the homestead, be pеrmitted or required to resort to the hoipesteаd alone for the satisfaction of his lien, to the exclusion of the other real estate owned by thе mortgagor, nor is the case one in which the securities can be marshaled.”
Similar principles are announced in Dickson v. Chorn,
Affirmed.