Patrick v. Rembert

| Miss. | Oct 15, 1877

Campbell," J.,

delivered the opinion of the court.

The judgment in favor of Francis M. Rembert against the ■plaintiff in error was rendered in an action upon the note ex-•écuted by him for the purchase-money of the land sued for in this action. As against an execution issued upon that judgment, the plaintiff in error was not entitled to a homestead •exemption in that land. Code," sec. 2142 ; Code 1857, p. 530, art. 284.

The dissolution of the injunction obtained by the plaintiff against the execution of that judgment, as to $2,100 "of it, left the judgment as to the $2,100 in full force, and operative as a lien upon the whole interest of the plaintiff in error in the land, and he is not entitled to a homestead exemption in-that land as against the execution of the judgment for the sum due ■upon it, as ascertained by the decree dissolving the injunction yoro.tanto. Whatever were the rights of the plaintiff in error as against the judgment above mentioned, he accepted as final a decree'in his chancery suit to enjoin the judgment by which the right of the judgment-creditor to enforce it as to $2,100 was declared, and he cannot successfully'object to the execution of the judgment for this sum, in the same manner that it would have been executed if he had not interposed his bill for injunction. The decree relieved him from all of the judgment in excess of $2,100, and left that amount to be enforced in the same way as the whole could have been if there had not been a suit in chancery.

It is certainly true,’ as counsel contends, that merely consenting to a judgment does noi waive homestead exemption, and involve consent to sell anything and everything that the defendant has; but consenting to a judgment which is valid "but for the party’s objection, removes all difficulty from the way of its execution, and where that judgment is founded on a debt for the purchase-money, •“ in whole or in part,” of the thing sold under execution, the purchaser under execution acquires it free from a claim that it is exempt. Code, sec. 2142.

Affirmed.