Delavan v. Pratt

Cole, J. I. It is nowhere stated in the pleadings at what time the decedent, George E. Delavan, commenced the occupation of the premises as a homestead; nor that they were not so occupied at the time of the erection of the brick house by Jones and Shepherd; nor is there any fact stated, whereby the judgment in favor of Pratt, which was rendered three years after the judgment in favor of Jones and Shepherd, is a lien upon the homestead, while the latter is not. Upon the ground of demurrer, as to the forfeiture of the homestead right by the widow and children, on account of their abandonment of it, we need only remark, that the disposition made of the other points in the case renders it unnecessary to enter upon the protracted discussion and extended extracts from the statutes requisite to a satisfactory exposition of our views. The merits of the real matters in controversy are sufficiently determined in the points following. otbab: 3u<ifSfnt II. The second ground of demurrer is, that the facts stated in the answer do not show that the j.udgment of Jones and Shepherd is, or ever has been, a lien upon said property. [432] It is averred, in the answer, that the debt upon which the j udgmeut was recovered was contracted for the erection of the wall of a large building, built of brick, on said premises. But it is not averred that said premises were not then occupied as a homestead; nor is the mere fact that a brick dwelling was being erected, necessarily inconsistent with its then occupancy as a homestead. The answer lacks this averment, which is essential to bring it within the rule laid down by a majority of this court in the case of Hale v. Heaslip et al., 16 Iowa, 451, and in the case following it, by same majority, of Page v. Ewbank, 18 Iowa, 580. The fact that the judgment was for work and materials upon the homestead would not make it liable to sale therefor, except as for a mechanic’s lien, enforced as such, in the manner provided by statute. But the answer “denies that the debt for which the judgment was rendered was not contracted prior to the purchase of said property as a homestead, or its acquu sition.” This denial is objected to as not sufficient, since it is but a traverse of a negative averment. Technically, this objection may have some basis, but whether or not it is really well founded we need not now determine, for immediately following this denial it is averred, “ that the said debt was contracted prior thereto.” 2. — evidones aliunde, It is urged in 'argument, however, that since the judgment does not upon its face, or by the pleadings and record connected with the cause wherein it was rendered, show that it is a lien upon the homestead, that it is not competent to show that fact aliunde, and hence not competent to plead it. It may be true, that as between the judgment creditor and third persons acquiring an interest in ignorance of such fact, it would not be competent for the judgment creditor to extend the lien of his judgment by proof of the fact, aliunde. Redfield v. Hart, 12 Iowa, 355 ; Christy v. Dyer. 14 Iowa, 438. But [433] as between the parties to the judgment and their heirs, the rule is certainly different, and it is competent for the judgment creditor to show that his judgment attaches as a lien, although it may not so appear by the record. Christy v. Dyer, supra ; Patterson v. Linder, 14 Iowa, 414. This holding does not conflict, nor in the least infringe upon the rule that a judgment is conclusive between the parties. It only authorizes the inquiry, as to the right of the parties under the judgment, and according to its full force and effect. 3. — juagagainst, III. The third and last ground of demurrer is, that the facts do not' show the defendant, Pratt, has now or ever had any interest in said judgment. The answer shows affirmatively that the judgment was rendered against Delavan and Pratt, and that Pratt was only the surety for Delavan. In such ease the property of the principal is primarily liable. Eevision, §§ 3258, .3259. The surety, in such cases, has such an interest in the subject matter as entitles him to be heard, and to show the property of the principal and to hold the same subject to the judgment, so as to exempt his own property. The answer is very inartificially drawn, and is an improper commingling of denials and averments. These objections to it, however, must be taken advantage of by motion, and cannot be reached by demurrer. Since the answer contains some matters of defense sufficiently pleaded, as herein shown, the court did not err in overruling the demurrer, and the judgment of the District Court is Affirmed.