20 Neb. 107 | Neb. | 1886
It appears from the abstract that on the 4th day of June, 1879, Barnabas E. Swift, one of the appellees, was the owner of the quarter section of land described in the pleadings. That the same having been acquired by him under the homestead laws of the United States, although he was not then actually residing thereon with his family, yet not having legally abandoned the same as his homestead, both he and his wife and co-appellee were entitled to an exempt homestead therein. It further appears that on the day above mentioned the said Barnabas E. Swift executed to Dewey & Stone, the appellants, a mortgage upon the north half of said quarter section of land to secure the sum of $819.22. That on the 13th day of December, 1880, a
The appellants Dewey & Stone answered, denying that the said quarter section of land was the exempt homestead cf the said plaintiffs at the time of the commencement of their said action, and alleging that the same was of greater value than two thousand dollars, to-wit, of the value of four thousand dollars, and praying the court to enquire into the value of said quarter section off land, and if the same should prove to be of greater value than two thousand dollars, that the same be sold and the overplus of two thousand dollars be applied to the payment of the said judgment of the said Dewey & Stone, etc.
There was no reply.
There was a trial to the court which found for the plaintiffs and rendered a judgment and decree perpetually enjoining the said defendants from proceeding further in the sale of said premises, or taking any steps, proceedings,'or process whatever, based on said pretended judgment of foreclosure, etc. The defendants bring the cause to this court by appeal.
Section 3 of the homestead act of 1877, provides that: "A conveyance or encumbrance by the owner is of no validity unless the husband and wife, if the owner is married, concur in and sign the same joint instrument.” Laws 1877, 34.
The act of 1877 provides that a homestead shall in no event exceed in value the sum of two thousand dollars.. The previous act of 1875 and the subsequent one of 1879 [Comp. Stat., Ch. 30.], both contain provisions of similar import. Under this provision, and conceding that under the evidence in the case, the appellees have an exempt homestead in the quarter section of land described, it by no means follows that the whole quarter section is exempt. Where, as in this case, the homestead in question consists of a farm, that which may be claimed as exempt is as clearly limited to two thousand dollars in value, as it is to one hundred and sixty acres in quantity. It should be borne in mind, in considering this case, that it nowhere appears,, either in the pleadings or evidence, that the dwelling house and its appurtenances, or either of them, is situated upon the eighty acre tract of land covered by the mortgage, nor does it anywhere appear that the eighty acres of said quarter section of land not covered by the mortgage does not'embrace the dwelling house and all of its appurtenances, nor that it is not worth the full amount of two thousand dollars; On the other hand, while it is not alleged in the answer that the eighty acres covered by the mortgage does not embrace the dwelling house and its appurtenances, it is alleged therein that the quarter section of land is of greater value than two thousand dollars, and that it is worth four thou
The right of the defendants Dewey & Stone to proceed against the property of the plaintiff, Barnabas E. Swift, were the same as those of a judgment creditor, neither greater or less. Section 14, of the act of 1877, provides as follows: “ When a disagreement takes place between the owner and any person adversely interested as to whether any land or buildings are properly a part of the homestead, the sheriff shall, at the request of either party, summon nine disinterested persons having the qualifications of jurors; the parties then, commencing with the owner of the homestead, shall in turn strike off one juror each, and shall continue to do so until only three of the number remain. These shall then proceed as referees to examine and ascertain all of the facts of the case, and shall report the same, with their opinion thereon, to the next term of the court from which the execution or other process may have issued.” The following three sections point out the duties of the court upon the coming in of the report of such arbitrators, etc.
Plaintiffs in their brief contend that the above quoted section “provides a plain way in which any one adversely interested may have any question as to the quantity or value of any homestead decided, and have the excess (if any) set off so that it may be reached by judicial process.” And that “ where such a statutory remedy is provided no other method can be resorted to, to determine that question,” etc.
“ It has been laid down in the courts of New York on more than one occasion as a settled rule, that when' the court of chancery has gained jurisdiction of a cause for one purpose, it may retain it generally for relief.” See 1 Story Eq. Jur., § 7T, and cases there cited. This I think may be now regarded as the settled law. It tends to shorten litigation and save costs, while it denies the rights of no one.
The findings and decree of the district court are reversed and the cause remanded for further proceedings in accordance with law.
Reversed and remanded.