Sargent v. Chubbuck

| Iowa | Jun 15, 1865

Dillon, J.

iekangeot The evidence shows that on the 3d day of April, 1858 (which was prior to the creation 0f the debt of the decedent to Sargent & Wilcox, but subsequent to the creation of the debt to Kelsey), the _ decedent, D. J. Chubbuck, purchased a farm which at once became the homestead of himself and family, and remained so until the sale thereof, April 25, 1860.

Upon the sale of this farm, Chubbuck and his family “ moved directly ” to the house and lot nowin dispute. Before the removal from the farm, “ Chubbuck,” so testifies Colin, the vendor, “ talked to me about the purchase of the lot.”

“ This lot,” says the widow in her testimony, “ was purchased for a homestead at the time we sold (left) the farm.” The first payment of $50 was made to Colin, Aug. 28,1860, about which time Chubbuck and family took possession. This house and lot were paid for from the proceeds of the farm, and certain other property of the husband, and $50, proceeds of rent of the house which the widow at one time rented out. The value of the house is from $350 to $400. There' is yet a small balance due the vendor. The vendor made the deed June 26, 1861, directly to the wife (now widow) of D. J. Chubbuck.

The debt of Sargent and Wilcox could not have been enforced against the homestead in the farm; that of Kelsey mould. Rev., § 2281. The statute allows a change of homestead,” but not to the prejudice of previous liens and conveyances.

The statute in this regard was before us in the quite recent case of Pearson v. Minturn, 18 Iowa, 38, and we need not enlarge upon its meaning and purpose as there expounded. Rev., §§ 2288, 2289.

The evidence in the cause now before us clearly shows that the house and lot in question is the “new homestead,” within the meaning of the statute (Rev., § 2289), and, therefore, by the statute, “to the extent in value of the old, it is exempt from execution in all cases where the old or former homestead would have been exempt, but in no' other, nor in any greater degree.” By the statute the neglect to plat and record the homestead does not render it liable. Bev., § 2286.

The decree of his honor, the late Judge Isbell, of the District Court, should be modified, so far as it directs the "house and lot in question to be sold for the payment of the debt of Sargent & Wilcox, and it should also be modified even as respects the debt of Kelsey, so as not to conclude the right of the widow to dower.

That these modifications may be made in the decree, the cause will be remanded.

It results from the foregoing that we are of opinion, upon the evidence, that the conveyance to the wife was voluntary, and not sustainable against existing creditors; and were it not for the homestead right the property would be liable to the debt of Sargent & Wilcox, as well as that of Kelsey. W

Appellees to pay costs of appeal equally.