Pearson v. Minturn

Cole, J. 1. New trial: finding of facts. I. The appellant’s counsel assigns as the first error that the court erred in its finding of facts. A find-ing of facts by the court is regarded in the same light by an appellate tribunal as the verdict of a jury, and will only be disturbed where it is clearly and palpably against the weight of evidence. We do not think the finding in this ease is so clearly against the weight of evidence on any point as to justify us in disturbing it. The particular fact found, of which appellant’s counsel complains, is that the defendant bought the property in controversy in 1855 or 1856. In the view which we take of the main question in this case, it is entirely immaterial whether it was bought at the time found by the court, or at the date of the deed; and therefore it becomes unnecessary to enter into a re-examination of the testimony, since the same result must follow, whether that fact be as found by the court or as insisted upon by the appellant’s counsel. 2. Homestead: change of. II. But the main question involved in the case is, as to the -right of the defendant to change his homestead and save the new one exempt from sale under the circumstances disclosed in this case. The [38] question is a new one in this State, and involves the construction of our homestead statute. Our law provides, that the homestead of every head of a family is exempt from, judicial sale (Rev., § 2277), but it may be sold for debts contracted prior to the purchase of such homestead (§ 2281). It also provides (§ 2288) that “ the owner may, from time to time, at his pleasure, change the limits of his homestead by changing the metes and bounds, as well as the record of the plat and description, or he may change the homestead entirely; but such changes shall not prejudice conveyances or liens made or created previously thereto” (§ 2289). The new homestead, to the extent in value of the old, is exempt from execution in all cases where the old or former homestead would have been exempt, but in no other, nor in'any greater degree. It will be seen by the facts found by the court, that the first homestead was acquired before the debt to plaintiff was contracted, but that the new homestead was acquired after. It is clear, then, that the first homestead, if it had not been sold, but had been retained by the defendant, would not have been liable to sale for the satisfaction of plaintiff’s judgment. And it is equally clear, that unless the defendant could change bis homestead, and transfer to the new homestead the rights which pertained to the old, it would be liable to sale under the execution issued upon plaintiff’s judgment. There was no lien upon the new homestead by judgment or otherwise, created or acquired by plaintiff previously to the change. Under the letter of the statute, then, the defendant had the right to change his homestead, and to hold the new exempt from execution to the same extent as the old, and such right is clearly within the spirit of the statute which should receive a liberal construction, with a view to effectuate the purpose of its enactment. The sale of the new homestead, therefore, under the plaintiff’s exe [39] cution, it being exempt from judicial sale, passed no title whatever to plaintiff as against the homestead right, and cannot be made the basis of a recovery from the defendant. Affirmed.