Finley v. Dietrick ( 1861 )

BALDWIN, J.

The defendant Dietrick obtained a judgment against the complainant upon a contract dated July, 1857, and upon which judgment an execution had been issued and the defendant Summers was about to proceed as marshal, to levy upon and sell certain real estate which the complainant claimed as his homestead, and as exempt from judicial sale. The complainant commenced to occupy the premises claimed as exempt in April, 1857; previous to the date of the contract upon which the judgment of Dietrick was obtained. The property claimed contains about six acres, and was located outside of the original town plat of the city of Du-buque. The whole of the tract of land, however, is at this time within the limits of said city, under the provisions of an act of the legislature, passed January 22d, 1853, extending such corporate limits. There appears to be no doubt as to the right of complainant to hold as exempt from sale for the satisfaction of these debts the house and a portion of the land connected therewith, as the complainant w'as living thereon with his family prior to the date of the contract upon which the judgment was obtained. The only question is, as to the amount of land the complainant can hold as exempt.

The homestead must embrace the house used as a home by the ‘owner thereof, &c. It may contain one or more lots or tracts of land, with the buildings thereon; but if within a town plat it must not exceed one half an acre in extent, and if not within a town plat it must not embrace in the aggregate more than forty acres. See Code §§ 1250-1 and 2. If the homestead claimed is within a town plat, it exceeds the amount exempt from judicial sale, if not within a town plat, it does not contain as much as is by law made exempt.

Towns, according to our statute, include cities as well as incorporated villages; and a village or town plat is a tract of land laid out into lots, streets and alleys, duly platted and recorded as provided for by chapter 41 of the Code. The property claimed as exempt-never was, by the complainant or any other person, so platted. The legislature, by the act extending the corporate limits of Dubuque, brought the property in controversy into the city limits. Prior to this act the complainant was entitled to bis land as bis homestead, and did this act alone change the right ? We think not.

The owner of a homestead, his wife concurring, may dispose of the same in any manner that may seem proper, but the homestead right having once legally attached, it cannot be taken away without the consent of the owner. The owner has a right to plat his homestead, and divide it into lots for town or city purposes; and when so platted and the plats acknowledged and recorded, he can not claim the homestead in acres, but an incorporated city or legislature'can. not compel him to so sub-divide his property.

The value of the homestead can not change the right of the owner to its exemption. The law confers this bounty upon both the rich and poor. The creditor gives credit with the full knowledge of the law, and if the whole of the debtors wealth is in his homestead, it is free from the reach of the creditors.

The court below did not err in making the injunction perpetual.