France v. Hohnbaum

Letton, G. This is an error proceeding brought to review a judgment of the district court for York county refusing to appoint appraisers to set off the homestead of defendant in [71] error. The facts are as follows: On May 10, 1888, plaintiff in error recovered a judgment against defendant in error in the county court of York county, a transcript of which was filed in the office of the clerk of the district court for that county on the 12th of the same month. Executions were issued upon this judgment from time to time, hut no levy made on account of no property being found, and the judgment was thus kept from becoming dormant. On August 6, 1903, an execution was issued on the judgment and was levied upon a 62-acre tract of land upon which the defendant in error resided as, his homestead. Plaintiff in error then filed his petition in the district court under the provisions of section 6 of the homestead act (Oh. 36, Comp. St. 1903, Ann. St. 6205), praying for the appointment of appraisers to set aside the homestead interest of the execution debtor. Notice Avas duly giAren of the time and place of the hearing, and before the hearing defendant in error filed an answer to the petition. A motion was made to strike the answer from the files on the grounds that no anSAver is authorized in this proceeding, and that no trial should be had at this time, but the motion Aras overruled and exception taken. It appears that before the judgment of plaintiff in error Avas obtained 22 acres of the 62-acre tract which Avas claimed as a homestead, had been mortgaged to one Holt, and that the remaining 10 acres had been mortgaged to one Marvel. For convenience we aauII consider the 22-acre tract and the 40-acre tract separately, though in fact they are contiguous and form one body of land on AA'hich defendant in error resides. On December 12, 1890, the Holt mortgage was foreclosed, plaintiff in error being a party to the proceedings; the court found due on the mortgage the sum of $925, with interest and costs; found the 22 acres to be of less value than $1,000; that it Avas a homestead, and that plaintiff in error’s judgment was not a lien on the same. Soon after this decree was rendered this tract Avas conveyed to one Miltner by defendant in error. Miltner on the 19th day of September, 1891, ex [72] ecuted a mortgage to one Bowen, who lived in Illinois, for the sum of $1,000, and then reconveyed the premises to defendant in error. The money thus borrowed from Bowen was used to pay off the Holt decree on September 28.1891. On January 9, 1900, defendant in error together with his son, who owned a small tract of land adjoining this, borrowed $1,800 from one Hummell, who also resided in Illinois, giving a mortgage covering the 22 acres and the son’s land also. This mortgage was recorded on January 11, 1900. A release of the mortgage given to Bowen was executed in Illinois on December 30, 1899, but the testimony shows it was not delivered until the debt was paid with part of the money derived from the Hummell loan of $1,800, defendant in error testifying that it took $1,100 of that money to pay off the Bowen mortgage. The $1,800 mortgage to Hummell, of which defendant in error owed $1,100, was found to be a lien on the land by the district court, and we do not see how any other conclusion was possible. As to the 40-acre tract, in 1884, a mortgage loan was made to one Marvel by defendant in error on this part of the land. On June 4, 1896, this mortgage was foreclosed in an action-to which plaintiff in error was a party, and the decree found due the plaintiff the sum of $800, with interest and costs; found premises to be a homestead of less value than $2,000, and found that plaintiff in error’s judgment was not a lien on the sanie. On December 31, 1897, $550 was borrowed by defendant in error from Mr. Hummell, and this was used in paying off and satisfying the decree, Avhich Aims satisfied of record January 8, 1898. A mortgage Avas given at the time of the loan to secure the payment of the debt, which was still unpaid at the time of the hearing. From this statement it Avill be seen that at the time of the hearing there Avere valid liens existing against the land amounting to at least $1,660. A number of witnesses were examined as to the value of the premises. The trial court found the total value to be $3,100, and this finding [73] seems to be fair and just from the testimony. It is evident therefore that unless the making of a new mortgage to pay off a prior one divested the defendant in error of his homestead rights, no ground existed for the appointment of appraisers. It appears however that at no time were the premises free from a mortgage lien. A new one was created before the old was released. There was no time in which the lien of the judgment could interpose, if such a thing were possible at all, which we do not decide. The interest of the defendant in error has always been less than $2,000 in the premises, and there was nothing in existence upon which the plaintiff could levy his execution. The action of the court in refusing to appoint appraisers therefore was proper. As to the assignment that the court erred in not striking the answer from the files and in trying the issue as to homestead before the appointment of appraisers, the statute requires the application to be made on a verified petition shoAving: (1) The fact that an execution has been levied on property Avhich had been claimed as a homestead; (2) the name of the claimant; (3) that the value of the homestead exceeds the amount of the homestead exemption. A notice of the time and place of hearing is required to be served upon the claimant at least ten days befoi*e the hearing. At the hearing, upon proof of service and of the facts stated in the petition, the court shall appoint appraisers. It is necessary therefore for the creditor to prove at the hearing that the value of the homestead exceeds the amount of the homestead exemption. We see no reason Avhy the claimant cannot contest the proof offered by the creditor, Avhether an ansAver is filed or not. While there is no provision made in the statute for the filing of an ansAver, the manner of procedure is within the discretion of the district court, and unless an abuse of this discretion is shown a re-' viewing court Avill not interfere. If appraisers had been appointed who had reported their finding to the court, there is no doubt that the homestead claimant might [74] have filed objections to their report and had a hearing upon the same before it Avas confirmed. But he Avas not obliged to wait until the report came in, unless he so desired, if the court was willing to grant him a liearingbefore the appraisers Avere sent out. The action of the court in this instance seems to have been fair and proper, and designed to save the unnecessary expense of making an appraisement. Homestead: Liens: Piuoeities. AVhere the extent of the homestead and the value of the claimant’s interest therein are less than that allowed him by law, a mortgage placed thereon after the rendition of a judgment against such claimant, for the purpose of paying off a prior mortgage, will not be affected by such judgment. We recommend that the judgment of the district court be affirmed. Ames and Oldham, CC., concur. By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is Affirmed.