53 Neb. 81 | Neb. | 1897
Jonathan J. Sutton was engaged in the mercantile business at Aurora, in Hamilton county. On February 21, 1893, he was indebted to the plaintiffs in divers amounts for goods sold to him to replenish his stock. On that day he exchanged his stock of goods for 160 acres of land in Chase county. The title to 80 acres was taken in himself and to the remaining 80 in his wife. On March 6, 1893, he removed upon the land and has since been occupying it as a homestead. The plaintiffs very promptly reduced their claims to judgment, and on March 6 filed transcripts of their several judgments in the office of the clerk of the district court of Chase county. They then caused executions to be levied upon the land and afterwards filed the petition in this case, alleging that by reason of the conveyance to Mrs. Sutton and the claim of homestead the land could not be sold to advantage, and praying that their levies be declared valid and the land subjected to the payment of the judgments. The pleadings and admissions made on the trial left, so far as the homestead was concerned, really no contested issue except whether the purpose of Sutton in
In this state the homestead exemption may be claimed as well against debts existing when the homestead was acquired as against those created thereafter. (Hanlon v. Pollard, 17 Neb. 368.) The statute makes no distinction between the two classes of debts and the courts cannot create any. The right here depends upon the situation when judgment is recovered and not when the debt is created. (Bowker v. Collins, 4 Neb. 494; Hanlon v. Pollard, supra.) The homestead exemption cannot be claimed as against a judgment recovered before the land became a homestead, because in that case the lien of the judgment had attached, and the acquisition of a homestead character does not displace existing liens. And the law generally is so where the statute does not, as many statutes do, except pre-existing debts from the operation of the exemption. It follows that it is the legal right of a debtor to acquire a homestead, and in order to do so he must usually devote to that purpose money or property that is not exempt. Credit is ex tended or should be extended with a view to that right. If such be the debtor’s absolute right then it would seem that his motive is immaterial. As in the case of the alienation of exempt property, it is held that such alienation cannot be set aside as fraudulent, because it cannot operate as a fraud; so here, if the right exists to pur
A few cases are opposed to the views we have expressed, — notably Pratt v. Burr, 5 Biss. [U. S. C. C.] 36. The reasoning of that case would, however, defeat the exemption as against any pre-existing debt, and is based, as in other cases taking a similar view, on the injustice and apparent immorality of a claim of exemption under such circumstances. Such cases neglect the fundamental principle that the courts cannot set aside valid legislative acts or engraft amendments upon them merely because the judges deem the. legislation unwise or even unjust. In all cases of exemptions the creditor suffers because the legislature has deemed the importance of protecting the family in its home and sustenance to be greater than that of enforcing the payment of debts.
In the view we have taken of the question discussed it follows that all the land would have been exempt if title had been taken in Sutton. He therefore had the right as against creditors to convey or cause to be conveyed a portion thereof to his wife, as the homestead can be claimed from the property of either. (Compiled Statutes, ch. 36, sec. 2.) It is unnecessary, therefore, to consider the special attack and special defense with reference to her right.
Affirmed.