Webster v. Dundee Mortgage & Trust Co.

Judgment affirmed. A mortgage fi. fa. in favor of the Dundee Mortgage •& Trust Company against T. C. Webster and Mrs. M. A. Webster, was levied upon land which, was claimed by Mrs. M. A. Webster as the homestead property of herself and her five minor children. This claim was dismissed on motion of claimant’s counsel. A claim was again interposed by Mrs. Webster for herself and minor children, alleging that the property was their homestead property; and there was a verdict finding the property subject. Afterwards claim was interposed by G. W. Webster, husband of Mrs. M. A. Webster, as next friend of the same minor children, alleging that the property was homestead property set apart to Mrs. Webster and said minors. Bpon the trial of this claim the property was found subject, and claimant’s motion for new trial was overruled. The motion alleges that the verdict was -contrary to law, evidence, etc.; and that the court erred [280] in ruling that the cause was res ad judicata; and in admitting in evidence the fi. fa., in the absence of the necessary affidavit to subject homestead property. Plaintiff introduced the mortgage, which was dated February 13,1882, and was given by T. C. Webster and his Avife and Mrs. M. A. Webster and her husband to plaintiff, and covered the land in question. Also, the fi.fa., the first claim and order dismissing the same, and the second claim and verdict upon the same. Claimant testified, that when the levy was made Mrs. Webster interposed her claim which was afterwards withdrawn by consent; that afterwards, when the sheriff Avas proceeding to sell, she interposed another claim, and by consent of counsel a verdict was rendered against her, she not being present; that the consent whereby the verdict Avas obtained was not to enforce any judgment within four years; that afterwards he learned from counsel that claimant Avas only to have two years; that Mrs. Webster was in possession at the date of the mortgage; that the original homestead property has been sold for $1,000, and $800 of it was paid for the tract levied on and claimed, the balance of the money going to improve the place. Counsel for claimant in the second claim testified, that when the verdict was given in that case, over tAvo years before, the merits of the case were not entered into, but the verdict was by consent Avithout testimony; and that plaintiff’s counsel agreed to stay execution for some time, but for how long he did not remember. It further appeared, that Mrs. Webster, as the head of a family composed of herself and three minor children, applied for a homestead and exemption, attaching to her petition schedules of Avhat she alleged to be the property she desired set apart, being certain land and personalty, and the homestead was granted in June, 1869. Afterwards, upon petition of herself .and her husband to the judge of the superior court, appointment [281] of guardian ad litem, for the children, answer by him, etc., an order was passed in January, 1880, allowing sale by them of the homestead property, and reinvestment in the property levied upon. In December, 1892, Mrs. Webster, by her petition to the ordinary, alleged that she previously obtained a homestead and exemption; that her application therefor was incorrect as it stated that she was the head of a family, she being at the time a married woman; that her application was also defective because it failed to show that her husband had refused to apply for the homestead and exemption, and did not state that the property out of which the homestead and exemption was sought was his property; that both of these omissions were the truth of the case and should have been so stated. She prayed, that her original petition he so corrected and amended as to conform to law arid the facts; that her amended petition, when allowed, should be in the place of her original petition, and be taken and allowed as a part of the proceedings to obtain the homestead and exemption set apart to her by the ordinary in June, 1869; and that the usual notice might issue and be published as required by law. Upon this petition the ordinary ordered that citation issue and he published as required by law, which was done; the form of notice being, that Mrs. Webster had applied to amend her original petition and the ordinary would pass upon the same on a day named. Upon the petition was indorsed, “Approved and ordered to record January 28, 1893,” signed by the ordinary. For the plaintiff its attorney testified: He did not consent to the withdrawal of the first claim, and objected to the withdrawal of the second claim. Claimants were not present at the tidal of the second claim, and witness was ready with proof to condemn the property. Claimants’ counsel proposed to witness to take verdict condemning the property, provided witness [282] would give two years to pay the debt. Witness consented, verdict was taken, and witness waited the two years before proceeding. J. N. Gilmore and Jordan & Tyson, by brief, for plaintiff in error. Evans & Evans and ITines, Shubricic & .Felder, contra.