Thompson v. Rogers, Richardson & Co. , 51 Iowa 333 ( 1879 )

Day, J.

i. homestead: isting deiits. — From the agreed statement of facts, standing alone, the conclusion would be reached that the whole of the south half of lot 3, in half block 4, was sold at sheriff’s sale, and is now in controversy in this action. The petition, however, alleges that a writ of attachment was levied on the real estate described as the undivided one-half of the south half of lot 3, in half block 4, in the town of Sabula, and the sheriff sold said premises under a special execution to the defendants for one hundred and sixty-seven dollars and fifty-one cents. Only the undivided half of the south half of said lot 3 is in controversy in this action. It is conceded by appellant that the undivided half of said lot 3, sold to John McElroy, and afterward traded for by the plaintiffs, is not subject to the judgment in question. It is. conceded that on the 1st day of June, 1875, the plaintiffs acquired a homestead in lots 4 and 13, of block 21, in Sabula, which was not liable for the debt in question. The plaintiffs, however, with one hundred dollars of the price received for the Preston homestead, and one hundred dollars additional, bought the south half of lot 3, in half block 4. Shortly thereafter the plaintiff Horatio Thompson built on said lot a two-story frame building, suitable for a shop in the front room, below, and for a dwelling-house in the back rooms and rooms, above. This property was not the homestead of the plaintiffs, and it was liable to be subjected to the debt in question.

On the 29tli day of November, 1875, the plaintiffs conveyed an undivided one-half of this property to John MeElroy for five hundred dollars. The plaintiffs then held their homestead, in lots 4 and 13, of block 21, exempt from liability for this debt, and the undivided one-half of lot 3, in block 4, subject to be made liable therefor.

On the 4th day of August, 1876, the plaintiffs exchanged their homestead in block 21 for the undivided half of lot 3, in half block 4, sold to John McElroy, he assuming the'mortgage on the .property in block 21. The plaintiffs immediately thereafter moved into said premises in block 4, and occupied them as their homestead at the time the judgment in question was recovered and the sale was made. The appellants concede that, by the exchange in question, the plaintiffs acquired a homestead in the undivided half of lot 3, in block 4, which they received in exchange for their homestead from McElroy, which is not liable for the judgment in question. See Thorn v. Thorn, 14 Iowa, 49. Appellants insist, however, that the other undivided half of lot 3, which before the exchange was liable for the debt, was not, by the exchange, released from liability. The Code provides: “The’ owner may, from time to time, change the limits of the homestead by changing the metes and bounds, * * * or may change it entirely. * * * * The new homestead, to the extent in value of the old, 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.” Sections 2000, 2001. See, also, Pearson v. Minturn, 18 Iowa, 36. If the plaintiffs had simply selected a new, without disposing of the old, homestead, it is clear that the new, to the extent in value of the old, would be exempt from liability for debts, for, under such circumstances, the act which would exempt one piece of property would render another, of equal valuej liable. It is plain, also, that where the old homestead is sold, and the proceeds are invested in a new one, or where the old homestead is traded off and a new one acquired in exchange, that the new homestead, to the extent in value of the old, should be exempt from liability for existing debts, because the debtor’s exemption is not thereby increased.

The plaintiffs in this case must have regarded the undivided half of lot 3 as equal in value to their homestead in block 21, or they would not have accepted the undivided half of lot 3 in exchange for the property in block 21. The property thus received in exchange the plaintiffs may hold exempt from th'e debt in question. Their creditors will thereby sustain no damage. But in addition to the property received in exchange the plaintiffs claim the right to hold other property exempt, to-wit: the other undivided half of lot 3. If this can be done it is clear that, through the exchange, the plaintiffs will acquire a greater exemption than they held before, to the extent of the value of the undivided half of lot 3. In other words, the plaintiffs will be enabled to exempt the one-half of the purchase price of lot 3, and the one-half of the sum expended in the erection of a two-story building thereon, in addition to the old homestead, or, which is the same thing, jnoperty its equivalent in value. We think the plaintiffs cannot, in such manner, so prejudice the rights of creditors. The undivided half of the south half of lot 3 in question is liable to the defendants’ judgment, and was properly sold therefor. The court erred in setting the sale aside.

Beversed.