Mcclure v. Braniff

75 Iowa 38 | Iowa | 1888

Robinson, J.

— We are satisfied by the evidence that the interest of Collins in the premises in controversy is that of a mortgagee acquired during the pendency of the suit, and that intervenor and her husband have a homestead right in the premises. The business carried on by the husband was that of ■ a grocer and restaurant keeper, but the evidence shows clearly that he kept and sold in two rooms of the •building in question intoxicating liquors, contrary to law, and that intervenor had knowledge of that fact. 'The building is about sixteen feet wide, forty feet long, and one and one-half stories in height. The first story is divided into three rooms and a stairway. The front room was used exclusively for the business of the husband; the middle room was used chiefly for this business, but was also used in part for family purposes ; the back room was used as a kitchen and living room ; and the upper story was used exclusively for family purposes. A walk along the outside of the building leads from the street in front to two doors, one of which opens into the kitchen, and the other to the stairway which leads to the second story.

i homestead : deed toaseoui-0 money only, I. The appellant contends that, by reason of the conveyance to Collins, Braniff and wife lost- their homestead right in the premises conveyed ; but, as we have stated, the conveyance was designed to be a mortgage. Hence the homestead rights of the husband and wife were not thereby affected. The legal title of the premises was in Barney Braniff prior to the conveyance to Collins, and in law he is still the owner.

_.forfeit- ’ ^la^Tfui®¿le ofmtoxíc.tins II. The next question which we need to determine is the liability of the premises, or of any part thereof, for the payment of the judgment for attor'Bey’s fees and costs. It is well settled that a paiq 0f a building may be subjected to the payment of a judgment against the owner, while the remainder would be exempt as a homestead. See Arnold v. Gotshall, 71 Iowa, 572, and cases therein •cited. In our opinion, the front and middle rooms were so far devoted to business purposes as to lose the homestead character, except as they are to be deemed appurtenant to the homestead, within the meaning of section 1997 of the Code. Smith v. Quiggans, 65 Iowa, 637. In Arnold v. Gotshall, it was held that the homestead used for the sale of intoxicating liquors contrary to law, with the knowledge and consent of the wife, who was the owner of the property, was subject to the payment of a judgment recovered by reason of such illegal sale. But it is claimed, on the part of the appellees, that it is shown that intervenor did not consent to the illegal acts in this case; that she was opposed to them; and, in one instance, caused the arrest of her husband on account of them; and therefore that the rule of the case last cited does not apply. It is further urged, in this connection, that the homestead of the family is exempt, and that the husband cannot, by acts to which the wife is opposed, subject the homestead to the payment of debts ; that to so hold would authorize a violation of the law, designed for the protection of the family, by indirect means. Section 1988 of the Codeis as follows : “ Where there is no special declaration of the statute to the contrary, the homestead of every family, whether owned by the husband or wife, is exempt from judicial sale.” Section 1558 provides that, “for all fines and costs assessed or judgments rendered, of any kind, against any person,” for any violation of the provision of the chapter in regard to the sale of intoxicating liquors, “ the personal and real property, except the homestead as now provided by law, of such person, as well as the premises and property, personal or real, occupied and used for that purpose, with the consent and knowledge of the owner thereof, * * * shall be liable; and all such fines, costs, or judgments shall be a lien on such real estate until paid.” This provision was held, in Arnold v. Gotshall, to be a special declaration of the statute, within the meaning of section 1988. The homestead is made liable by reason of the illegal occupation or use, which is “ with the consent and knowledge of the owner.” In this case the owner is the husband. Burns v. Keas, 21 Iowa, 257. The consent by the wife is not required when the husband is the owner. It may be that this consideration of the law will in some cases cause a loss of homestead rights, and lead to hardships ; but, if so, it is beyond our control. We must interpret the law as we find it. The general assembly may have thought it better to make the homestead liable in such cases than to permit the homestead right to operate as a shield for the protection of the offender against the consequences of his wrongful acts.

8 _. title wife’srisRtto protect. III. It is contended by appellant that, since the husband has not claimed the property in controversy as exempt under the homestead law, the wife cannot maintain her petition of intervention; especially as she does not allege therein that the husband refuses to assert the exemption. But in this view we do not concur. The interest of the wife in the homestead is an existing, and not merely a contingent, right. Adams v. Beale, 19 Iowa, 66. It has been held that, after the right is once acquired, the husband cannot defeat it by abandonment, so long as the wife continues to occupy it as a homestead. Lunt v. Neeley, 67 Iowa, 100. The wife may protect her homestead right by redeeming from a tax sale of the homestead. Adams v. Beale, supra. Her right being actual and existing, she is entitled to protect it through the means adopted in this case.

4 Intoxicating liquors: unlawful sale: estate* safe* after action Regun: notice: priority. IY. Appellant claims that, the interest of Collins having been acquired during the pendency of this action, it is subject to the judgment against 1 '* ° w Braniff. Collins claims that a sale of the . „ , , , premises, or of any part of them, must be made subject to his interests; and in sup- ■' ' x port of his claim cites the case of Bonesteel v. Downs, 73 Iowa, 685. What we decided in that case was that the statute gave no lien prior to the rendition of the judgments, and hence that, according to a settled rule of law, an injunction would not lie to restrain the alienation of property used in the illegal traffic. No attempt was made to overrule the case of O’ Brien v. Putney, 55 Iowa, 292, where this court, in effect, held that, while the lien does not attach until judgment is rendered, yet the right to a lien cannot be defeated by a conveyance of the property pending litigation to enforce it. The statute provides that the property occupied or used for the illegal purpose shall be liable for the payment of judgments. The right to the lien is created by the unlawful act, and it is enforced by means of a judgment. Collins obtained his conveyance to the property in controversy a month after the filing of the petition in this case, and is therefore chargeable with notice of plaintiff’s right to a lien for any judgment he might obtain in the further prosecution of the causé. The claim that he is entitled to be subrogated to the rights of the holder of the mortgage, which was paid by the money he furnished, is not sustained by the evidence, and we do not understand his counsel to urge that it is.

p _ ofnooourtduío order abateraent. V. Appellant complains of the refusal of the district court to provide in the decree for the abatement of the nuisance. The decree should have so provided. Laws 1886, p. 82: Drake v. Jordan, 73 Iowa, 707: McLane v. Bonn, 70 Iowa, 753. A decree will be entered in harmony with the views we have expressed.

Modified and Affikmed.