Citation Numbers: 60 Iowa 117
Judges: Adhered, Beck, Day, Expressed, Seevers
Filed Date: 12/13/1882
Status: Precedential
Modified Date: 10/18/2024
dessenting. — I. The controlling facts of the case, as established by the evidence, I find to be as follows:
1. Thomas E. Palmer and wife executed the mortgage to plaintiff in August, 1873, when the husband owned all the lands covered by it.
2. In September of the same year, T. E. Palmer caused the west forty to be platted, and conveyed by deed of warranty, in which his wife joined, the east “forty” and lot 1 of the west “forty,” to Charles H. Palmer; lot 3 he conveyed in the same manner to Anna L. Palmer.
3. The defendant, Gear, acquired title to the property claimed by him under a mortgage executed by both T. E. & C. H. Palmer and their wives.
A The Eirst National Bank of Chariton acquired title to lot 3 under a judgment, against both Anna L. and Ann Palmer.
5. In the view I take of the case, it is not necessary to determine whether the plat of the west “forty” was recorded with the authority or assent of Palmer and wife.
6. The evidence shows that it was not the purpose of these parties to abandon their homestead claim and right to lot 2 by platting the land, nor to cause it to be regarded as within the city.
7. They continued to occupy lot 2 as a homestead. While they were not farmers, the land was used by them for meadow, pasture, orchard, and purposes connected with its occupancy as a homestead.
8. Mrs. Palmer contracted to sell small portions off of lot 2. The purchasers abandoned the property, and its possession reverted to her. No deed was made to the parties contracting to purchase it,
9. In September, 1877, the limits of the city of Chariton were extended so far as to include all the land in controversy.
Other facts of the case, as they do not in my judgment have a controlling influence upon the determination of the case, need not here be recited.
“The homestead may be sold for debts created by written contracts, executed by the persons having the power to Gonvey, and expressly stipulating that the homestead is liable therefor, but it shall not in such case be sold except to supply the deficiency remaining after exhausting the other property pleged for the payment of the debt in the same written contract.”
Under'this provision the homestead cannot be sold upon a mortgage until all other property covered by the instrument has been soldi The meaning and purpose of the statute cannot be made plainer by paraphrase or comment. Nor is it possible to change its meaning without interpolating words not found in it; and this, in effect, must be done, in order to support the construction adopted by the majority of this court. They msist that the property to be first exhausted before the homestead is sold must be owned by the mortgagor when the foreclosure is had. There is not one word in the provision to support this construction; to authorize it, these words must be added to the section, “and owned by the pledgor when the pledge is enforced.” We cannot change the meaning of the.statutes in this manner.
III. But it is urged in the opinion of the majority that the law cannot contemplate the sale of another man’s property for the debt of the mortgagor. It surely does contemplate just such a thing if the ownership of the property is changed. The pledge or mortgage attaches to the property, and is not af
IY. But it is said that the statute is made for the protection of the owner of the homestead, only in case he retains ownership of property other than the homestead, and that the law does not permit him to sell this property, and then insist that it shall first be appropriated to the payment of the mortgage debt, for the reason that this would be against equity. When we remember that the purchaser of such property acquires it with notice of the mortgage and subject thereto, and, if he be possessed of ordinary prudence, is controlled as to the price he pays by the existence of the mortgage, the argument based upon equity fails. This case fairly illustrates this observation. Gear’s mortgage is to secure more than $6,000; he bid in the land claimed by him upon the foreclosure sale for $500. The land is shown to be worth from $2,600 to $2,800. The Palmers were shown to be insolvent. The homestead is worth $8,000. The bank bid in lot 3 for $190; it is shown to be worth from $800 to $1,000. Its judgment was for about $1,000. Surely the defendants, Gear and the Bank, were controlled in their purchases of the respective tracts of land for less than one-fifth of their value of one tract, and about one-half the value of the other, by the consideration that the mortgage was a subsisting lien thereon. Claiming the lands upon purchases for considerations so inadequate, they do not occupy positions from which they may assail the Palmers on the ground that their claim is inequitable. The Palmers are claiming to hold their homestead free
Y. It is insisted that T. E. Palmer and wife, having conveyed the lands now held by Gear and the Bank by deed of warranty, are estopped now from setting up their homestead rights. The claim is that the homestead is made liable on account of warranty deeds of other lands; that the doctrine of estoppel operates to subject the homestead to debts from which it would otherwise be exempt. This position is in direct opposition to the statute. It must be remembered that the homestead is created by statute, and can he made subject to debts only in the manner prescribed by statute. It may be conveyed by the owner, his wife joining in the deed, and may be taken for the payment of debts created by written contracts executed by the owner and his wife, expressly stipulating therefor. Code, §§ 1990, 1993. The statute provides no other way for alienating it. Now, the warranty deeds executed by Palmer do not convey the homestead, and do not stipulate that it shall be bound for any debt; they have no"relation to, or effect upon, the homestead. If the doctrine of estoppel may be involved in a proper case to defeat a homestead right, it is not applicable to the case before us.
A mortgagor may lawfully convey his lands, and warrant against incumbrances. lie does not, by the conveyance, proclaim that the lands are free from incumbrances. The purchasers take the title subject to the incumbrances, and must look to the warranty for pi’otection. I think the position under consideration has no support in principle, and we are referred to no authorities supporting it.
YI. I will now proceed to inquire into the extent of the homestead of defendants. If it is not within a town plat, it may be forty acres or less. Defendants claim that lot 2 containing 26^-^ acres constitutes their homestead. There can be no doubt that prior to the extension of the city limits all
This point of the case is within the rule twice recognized by this court; namely, that more than one-half acre of agricultural land occupied as a homestead, which has been platted into streets, alleys, and lots, retains its homestead character after it has been included within the city limits. Finley v. Dietrick et al., 12 Iowa, 516; McDaniel et al. v. Mace et al., 47 Id., 509.
It is said thatjthe homestead tract was platted in order to make sales of three small lots referred to in the statement of the facts. There was, in fact, no plat of that tract ever made by defendants. A -map of the city was published, which showed certain lots, eight in number, along the south side of the tract, and a street along the west side, but it was done without defendant’s knowledge or procurement. Surely defendant’s property and rights are not affected by the unauthorized act of another. If the title of lands and their-division lines may be affected by published maps, unauthorized by the owners, great injustice would be done to property holders.
If it be conceded that defendants sold the three small lots, the question arises whether, having been a part of the homestead, they should not be subject to sale in the manner prescribed for the sale of the homestead. But this point I need not decide. I think that, as the lots were not con
I reach the conclusion that the east “forty,” and lots one and three of the west “forty,” ought to be first exhausted before lot two, the homestead of the mortgagors, is sold. In my opinion the decree of foreclosure should so provide that the lands claimed separately by defendants; Gear and the Bank, should contribute ratably,-in proportion to their respective values, to the payment of plaintiff’s mortgage, in case they are sold for a sum in excess of the amount found to be due upon plaintiff’s mortgage. See Bates v. Ruddick, 2 Iowa, 423; Griffith v. Lovell, 26 Id., 226; Barney v. Myers et al., 28 Id., 472; Massie v. Wilson et al., 16 Id., 390. It is my opinion that the judgment of the District Court ought to be reversed.