23 Neb. 360 | Neb. | 1888
This was an action in the nature of a creditor’s bill. It is alleged in the petition that, on the 9th day of August, 1882, plaintiff obtained a judgment against defendant, Eeonhart Hoffman, in the county court of Burt county, for the sum of $307 and costs; that on the 14th of January, 1885, an execution was issued upon said judgment, and returned unsatisfied. On the 6th day of November^ 1885, a transcript of the judgment was filed in the office of the clerk of the district court of Burt county; that an
The two tracts taken together describe a part of lot five in block one hundred and forty-six, in Tekamah, forty feet by ninety-five feet in size.
The answer of defendant, Leonhart Hoffman, consists of a number of paragraphs, which, may be briefly stated as admissions: First, That he is the brother of Peter Hoffman. Second, That the legal title to the property in ques
“Ninth — Defendant, Leonhart Hoffman, says that all! he time since the obtaining of said judgment by plaintiff' against him, he has been the head of a family, and that the place of his residence, from long prior to the obtaining-of said judgment and up to the time of the commencement of this suit, was upon the land in question, to-wit: Part off lot 5 in block 145, in the city of Tekamah, aforesaid; that the value of said property is, and was during all said time, less than $2,000, and said defendant says that said real estate was in fact the property of Peter Ploffman., Defendant says that, prior to the purchase of said first mentioned tract, February, 1882, he was insolvent, and had been ever since. Defendant further says that, in case-the court finds from the testimony that the premises in question should in equity or law be held and considered as the property of defendant, Leonhart ‘ Hoffman, then in-that case defendant claims said property as his homestead,,
Peter Hoffman answered, admitting the judgment, the issuance of executions thereon, the insolvency of Leonhart, and alleged that the property was purchased with his own means, and for his own benefit, and denies the allegations of the petition. After the filing of the answer of Leonhart Hoffman, plaintiffs filed their motion to strike from the answer the fourth and ninth paragraphs thereof, excepting certain designated words in the ninth paragraph. The motion was sustained, so far as the fourth paragraph of the answer was attacked, but overruled as to the ninth. To this ruling defendant excepted.
As. we are unable to discover the purpose of the fourth paragraph in the answer, we cannot see that the court erred in striking it out. It refers to a deed not referred to in the petition, and, so far as we can see, has no relevancy, or connection, with anything therein alleged.
Plaintiff then moved the court to require defendant, Leonhart Hoffman, to elect, in his answer, which defense he would rely upon, viz.: “ That the property in question belongs to said defendant, or that it belongs to the defendant, Peter Ploffman.” This motion was sustained. To which defendant excepted.
A trial was had, which resulted in a finding and decree in favor of plaintiff. The case is brought to this court by appeal. There is no bill of exceptions, and it is stipulated that the matter to be decided is, whether the judgment is sustained by the pleadings. No brief has been filed upon either side, and the cause is submitted by plaintiff, under rule sixth of this court, without argument. The stipulation is filed, Avith the record of the motions referred to, the ruling of the court thereon, and the exceptions of plaintiff to such ruling.
It is very difficult to understand the purpose of defendant in bringing the cause to this court Avith the record and
It is the unanimous opinion of the members of the ■court that, in making this order, the district court erred. The'prayer of the answer, or rather what we suppose was intended as a part of the prayer, is, that in case the court finds from the testimony that the premises in question ■should, in equity or law, be held and considered as the property of defendant, Leonhart Hoffman, then that it be -held to be exempt as a .homestead and not capable of fraudulent alienation or subject to execution. The date of the accruing of the indebtedness is not given by the petition. It is alleged in the answer that, from long prior to the rendition of the judgment, and up to the time of the ■commencement of this suit, defendant was the head of a -family, and resided upon the property. It does not appear •by the pleadings whether the indebtedness was contracted prior to the occupancy of the property or not. If not, Whatever interest or title defendant had in the property Would be exempt to him under a homestead right. This ■right may be based upon either a legal or an equitable -interest (Sears v. Hanks, 14 Ohio St., 298), and therefore it was competent for defendant, notwithstanding the admitted legal title in his brother, to assert his homestead right to the property; and he had the right to present that defense in connection with his effort to protect whatever rights Peter might have had in the premises.
The judgment of the district court is therefore reversed, and the cause remanded for further proceedings according to law.
Reversed and remanded.