McDaniel v. Westberry

Jackson, Chief Justice. [R. D. Westberry foreclosed a mortgage against C. J. McDaniel and wife. The rule nisi, the rule absolute, and [381] the execution issued thereon, each contained the statement that the debt'was for the purchase money of the mortgaged property. The mortgagewas levied on this property, and subsequently the plaintiff filed an affidavit that such property was subject to his debt. McDaniel filed an affidavit of illegality on two grounds: (1.) That the property had been regularly set apart to him as a homestead, and that no affidavit had been made by the plaintiff, as required by law, before a levy was made thereon, and that the affidavit, whiqh was subsequently filed, was defective, because it did not set forth that the defendant had no other property except the homestead, and did not state facts which would subject the homestead. (2.) That the debt was not for purchase money, as alleged in plaintiff’s affidavit. On demurrer, the court struck the first ground of illegality. The jury found the property .subject. Defendant moved for a new trial, because the court struck the first ground of the affidavit of illegality, and because the court charged that it was res adjudieata that the debt was for purchase money. The motion was overruled, and defendant excepted.]