Crow v. Brown , 81 Iowa 344 ( 1890 )

Rotiirock, C. J.

I. ■ In the month of October, 1875, the defendant Brown recovered a judgment against the plaintiff for the sum of four hundred dollars and •costs. At that time the plaintiff was insolvent. The plaintiff was a soldier in the war of the rebellion, and in the month of October, 1886, he received a pension from the United States on account of physical disability incurred while in the military service. He was allowed .and paid the sum of fourteen hundred and'forty dollars •as arrears of pension. Upon receiving the said sum of money he bought one hundred and twenty acres of land, for which he paid out of said pension money the sum ■of five dollars an acre. He built a house on said land into which he moved his wife and family, and has since occupied the premises as a homestead. On the eighteenth day of May, 1889, the defendant Brown •caused an execution to be issued on said judgment, and levied on the land, and by this action the plaintiff seeks to restrain the defendant Pomroy, who is sheriff, from celling the land in satisfaction of the judgment.

In the case of Webb v. Holt, 57 Iowa, 712, it was held that pension money was exempt from the payment •of the debts of the pensioner while it was in course of transmission to him, but not after it came into his possession. This construction of section 4747 of the Revised Statutes of the United States was adopted by a majority •of this court. The same principle has since been adhered to in the cases of Triplett v. Graham, 58 Iowa, 135; Baugh v. Barrett, 69 Iowa, 495; Farmer v. Turner, 64 Iowa, 690, and in Foster v. Byrne, 76 Iowa, 295. In the first and last of the cited cases Mr. Justice Beck and the writer hereof dissented from the opinion of the majority. No formal dissent was entered in the other cases. Since the final opinion was filed on rehearing in the case of Foster v. Byrne the personnel of this court has been changed, and upon a full examination of the question a majority of the court are of the opinion that the property purchased with pension money is exempt from execution or attachment under the act of congress above cited. The reasons for such holding are fully set out in the dissenting opinions above referred to, and need not be repeated here. It is sufficient to say that if force and effect is to be given to that clause of the act of congress which provides that pension money “shall inure wholly to the benefit of the pensioner,” to the exclusion of his creditors, there appears to us to be no escape from the conclusion that the property purchased with pension money is exempt. Any other construction of the law would permit creditors to subject the money as soon as it reaches the hands of the pensioner.

It is correct as claimed by counsel for appellees that the weight of authority is contrary to our present holding. But courts are not always controlled by the weight of authority. If they were, the duties of courts of last resort would be simply to ascertain the number of cases involving the question, and follow the majority. There is the other important consideration that the weight of authority should commend itself to the judgment and conscience of the court having before it the question for determinati on.

If the rule adopted by this court heretofore were such as that rights may have accrued by reason of the rule, whereby the law as declared has become what is known in the law as a rule of property, we might well hesitate to overrule the cases above cited. But no such a result will follow our present holding. The relation of the creditor of the veteran pensioned soldier has •been in no sense changed by the decisions of this court. The defendant in this action has not extended credit to the plaintiff by reason of the former decisions of this eourt.

The decree of the district court is reversed.