95 Neb. 288 | Neb. | 1914
Plaintiff brought suit in the district court for Douglas county, to restrain defendant from selling lots 6 and 7, in block 1', in Lake Yiew Addition, in the city of Omaha, or from levying execution thereon.for that purpose, and to quiet plaintiff’s title against any and all claims of defendant bank against the property described, by virtue of a certain judgment which it had obtained against plaintiff’s grantor. The district court entered a decree as prayed, and defendant bank appeals.
The petition alleges that plaintiff purchased the lots in controversy August 6, 1908, from one Henry A. Wilson; that at the time of such purchase Wilson and his wife .and family were occupying the premises as their homestead; that the gross value of the property was $2,700, upon which there was a mortgage of $1,200; that
The evidence is undisputed that at the time the bank obtained its judgment Wilson, with his family, was occupying the property in controversy, consisting of two lots, as a homestead; that he did not own any other contiguous property; that the value of the property over and above the mortgage was less than $2,000; that he continued to occupy it as a home and was so occupying it at
But, it is contended in effect, the deed from Wilson and wife to plaintiff did not convey or assume to convey the homestead. The deed recites that the property described is sold “together with all tenements, hereditaments and appurtenances to the same belonging, and all the estate, title, dower, claim or demand whatsoever of the said Henry A. Wilson and Mary A. Wilson of, in or to the same, or any part thereof.” Then follow the usual covenants of warranty. This deed conveyed all interest of every kind which the grantors or either of them had in the property conveyed. Comp. St. 1907, ch. 73, sec. 50. The contention that Wilson was the only party who could make the claim of homestead is not sound. All the plaintiff is asserting is, that at the time he bought the property from Wilson the bank’s judgment was not a lien upon the property because of the fact that at that time and at the time the judgment was obtained Wilson had himself impressed the homestead character upon it. What Wilson may have done after selling the property
The next contention is that plaintiff is estopped from claiming that the property was the homestead of Wilson at the time of plaintiff’s purchase. This estoppel is sought to be based upon the fact that, after plaintiff had purchased the property and had gone into possession of the same, a collector for the bank called upon plaintiff, told him that he represented the bank, and asked what was done about the judgment at the time plaintiff bought the place “or what was said about it;” that plaintiff said he knew nothing of the judgment, that the representative of the loan association that held the mortgage told him that the title to the place was clear, and said to defendant’s collector that he would not have bought the property had the fact of the judgment been brought to his attention. It is said by counsel that, after this statement by plaintiff, defendant, relying upon what plaintiff had said, “altered its position, incurred the cost of issuing execution, making the levy, advertising the sale, and employing attorneys to protect its interests;” and it is argued that these facts bring the case within the rule, oft repeated by this court, that, “where a party gives a reason' for his decision and conduct touching anything involved in a controversy, he is estopped, after litigation has begun, from changing his ground and putting his conduct on another and different consideration.” Frerner v. Dufrene, 58 Neb. 432. We cannot agree with counsel that this rule has any application to the facts here. What plaintiff said, when approached by the bank’s collector, falls far short of being a recognition of the validity of the judgment or a waiver of his right to dispute such validity. It amounts to no more than a declaration that if he had known of the judgment he would have avoided the possibility of his becoming involved in litigation, by refusing to purchase the property. The rule invoked does not apply.
Finding no error in the record, the judgment of the district court is Affirmed.