57 Neb. 660 | Neb. | 1899
In this case there were two defendants in the district court of Hamilton county. A demurrer to the petition filed by each of them was sustained, and accordingly there was a judgment in their favor, from which, plaintiff has appealed. This involves a consideration of the averments of the petition, which we shall now undertake.
Jerome H. Smith, the plaintiff, alleged in his petition that on October 23, 1894, and for more than five years prior to that date, Tobias Votli was the owner in fee simple of five separately described governmental subdivisions of land in Hamilton county, of which the aggregate area ivas 320 acres; that during all of said five years Votli, the head of a family, lived on said land and tilled it as a single farm; that while Votli was the owner and in the possession of said land he and his wife mortgaged it as an entirety to secure the payment of $3,500 to one person, to secure the payment of $900 to another, and the' payment of $388.60 to plaintiff, in addition to which mortgages said Votlis made another mortgage on the same property to secure the sum of $2,000 to still another person; that in September, 1894, default having been made in the payment of these mortgages, proceedings were begun for the foreclosure of the $3,500 mortgage, in which with said Votlis the said Smith was made a defendant, and that at said time there ivas due on all the mortgages the aggregate sum of $7,000. It was further alleged in the petition that the value of said land never exceeded $7,300, and that Votli in said land had an interest outside the mortgages of not to exceed $300; that there was at said time a lien on the land of $54.40 for taxes, and that Voth and his wife, for the purpose of ending the foreclosure proceedings and procuring the liens io be .satisfied on said land, on October 23, 1894, sold the same to plaintiff for the agreed consideration of $7,300, the full fair value of the same, and on the day thereafter, to-wif, October 24, 1S[)4, conveyed ¡said land to plaintiff
There is in argument a considerable stress laid upon the proposition that one eig'hty-acre tract was not contiguous, for the reason that, with the nearest tract, it had but one point, the center of a section, in common. We shall not specially consider this feature, for the reason that there were in all 320 acres, and as the statute exempts but 360 acres as a homestead, there was one 3.60-acre tract -which was not homestead in character. A consideration of the eigldy-acre tract not contiguous,
By the petition it was shown that Yoth had a float exemption right to the extent of 160 acres in a tract of 320 acres. Under the provisions of chapter 36, Compiled Statutes, he was entitled to have set off to him as a homestead 160 acres, equal in value, above incumbrances, to $2,000. As there were incumbrances of the sum of $7,000, he could require that the 160 acres which he had not procured to be segregated as a homestead should be first sold in satisfaction of the $7,000 incumbrances resting on the entire tract. Tested by the averments of the petition, this would leave unpaid such an amount of mortgages that, to satisfy them and the taxes, there would be absorbed the entire value of the homestead quarter-section, lacking $267.10 in value. It is not material that to arrive at this result it is- necessary to take into consideration the steps we have indicated, first, that the debtor had the right to have first sold the quarter-section which he did not select as his homestead, and second, the status of his homestead quarter-section as affected by the balance of mortgages and taxes not paid by the sale of the non-exempt quarter. When in the above order of procedure we reach the point at which the debtor has but 160 acres in which he claims homestead rights as above indicated, he has the same rights of homestead exemption with reference to it that he would have had if he had never been the owner of more than that particular quarter-section. We ar.e not determining that the judgments, ordinarily, would not be liens on a portion of his 320-acre tract, for, under the averments of the petition, that question is not involved. Under the facts admitted by the demurrer other considerations have been eliminated from the case, and our concern is alone with the value of Yotli’s homestead right, which was equal
Reversed and remanded.