Hale v. Heaslip

Dillon, J. Notwithstanding Heaslip purchased the property in June, 1857, yet it did not become impressed with the character of a homestead or become exempt as such, until actual occupation, which was in March, 1859. The necessity of actual occupation in such cases was decided in Charless & Blow v. Lamberson, 1 Iowa, 435. See, also, to same effect, Holden v. Pinney, 6 Cal, 285, 625; Norris v. Moulton, 34 N. H., 392; Benedict v. Bunnell, 7 Cal., 245; Wisner v. Farnham, 2 Mich., 472; Williams v. Sweatland, 10 Iowa, 51; Philleo v. Smalley, 23 Texas, 498; Horn v. Tufts, 39 N. H., 478; True v. Morrill, 28 Vt., 672; Davis v. Andrews, 30 Id., 688; Prior v. Stone, 19 Texas, 371; 17 Id., 593 ; 9 Id., 630; Kitchell v. Burgwin, 21 Ill., 45 ; Walters v. The People, Id., 178; Amer. Law Reg., vol. I (N. S.), 650. And also recent cases of Christy v. Dyer, 14 Iowa, 438; Cole v. Gill, Id., 527. Before the property became a homestead by actual use and occupation as such, Heaslip contracted the debt, on which Frank & Sons recovered their judgment. It is [453] true that, at the date of the rendition of this judgment, Heaslip and family occupied the premises as a homestead, but yet, under the express declaration of the statute, the premises were liable to be sold to pay the debt of Frank & Sons, which was a debt created prior to the time when the homestead right attached. Rev., § 2281. As against antecedent debts, or debts created -for the purchase-money, the homestead exemption does not apply, and judgments founded upon such debts would be held to be liens upon the property, certainly as against persons chargeable with notice of the character of the debt. This works no hardship upon the plaintiff At the date of his mortgage the record's showed an unsatisfied judgment in favor of Frank & Sons, against Heaslip; and showed that this judgment was rendered upon .a note made and dated on the 7th day of September, 1857. The appellant argues that a third party taking a mortgage is not bound to go back of the record of the judgment and inquire, first, the date'of the contract upon which judgment was rendered, and if he finds that judgment was obtained upon a promissory note dated since the acquisition of the homestead, then inquire further, whether that note had not been given in renewal of another note dated before the right of homestead accrued. It is sufficient to say that such is not this case. If, in addition to the right which a mortgage would ordinarily give, the plaintiff claimed by virtue of his mortgage the benefit of the homestead rights of his mortgagors, he was, of course, bound to ascertain when those rights began, which was in March, 1859. The records of the court in which Frank & Sons obtained their judgment would have disclosed the fact, if examined, that this judgment was founded upon a debt contracted prior to the acquisition of the homestead right. This view is entirely consistent with the case of Lamb v. Shays. 14 Iowa, 567. That case simply holds that a judg [454] ment is not a lien upon a homestead, and that the vendee of the homestead owners holds the premises clear of a judgment, rendered while the premises were actually occupied as a homestead. But that was not a case where the judgment was rendered upon a contract made before the homestead right attached, and herein consists the essential difference between it and the case at bar. It is true, that under our statute, Frank & Sons could not sell the homestead, “ except to supply the deficiency remaining after exhausting the other property of the debtor subject to execution.” Rev., §2281. The appellant contends that it was the duty of Frank & Sons, to allege and show that Heaslip had no other property subject to execution. We cannot acquiesce in the correctness of this view. In Stephens v. Myers, 11 Iowa, 183, this Court held, that a sale of a homestead, under a valid deed of trust, would not be enjoined, on the ground that the other property of the owners had not been exhausted, where it is not alleged or shown that the debtor had other property. It was considered to be the duty of the debtor to point out or show such other property. So here. The premises are prima fade liable to Frank & Son’s judgment. If the plaintiff claims that they are not liable, because their debtor has other property subject to execution, which has not been exhausted, it is his duty to make that fact appear. Decree affirmed.