Smith v. Eaton

Rothrock, J. I. H. H. Eaton, the mortgagor, was the •only witness examined upon the trial in the court below. It appears from his testimony that after the death of his wife, and until the conveyance to Zuckmeyer, he did not intend to •abandon his homestead right in the premises. His acts were consistent with such intention. He occupied a part of the ■dwelling-house until after he madeihe conveyance. Although [490] he leased part of the premises, yet he retained one room and occupied the barn up to the last of October, 1876. Although in cross-examination, in answer to specific questions, he stated that he claimed the property as heir of his wife, still, we-think, taking all his testimony with the claim in the mortgage describing the property as his homestead, a finding that-he abandoned the homestead at any time before he made the conveyance would not be supported by the evidence. i. homestead: mortgage.* II. The judgment in favor of the bank was prior in time to the execution of the mortgage. The judgment was not a lien upon the homestead right of the defendant, The mortgage, being merely upon the homestead right, was inoperative as a lien. It could not be a lien upon his distributive share or dower interest because he was occupying the property as a homestead, and could not enjoy both rights at the same time in the same property. Meyer v. Meyer, 23 Iowa, 359. His right of occupancy and possession under his homestead rights conferred no title to the property, and. he could not execute a valid mortgage thereon. Butterfield v. Wicks, 44 Iowa, 310. These considerations dispose of the lien claimed for the-mortgage. It was invalid and created no lien. III. We will now examine the question as to whether the-bank had any substantial rights which were prejudiced by the decree. If it had no lien by virtue of its judgment it is not prejudiced. It must be remembered that neither of the alleged lien holders claim by their pleadings that Eaton had any other interest in the property excepting his homestead, or his right to his distributive share or dower as the survivor of his wife. This being the state of the record we think that-the judgment was not a lien. The question as to whether the judgment was a lien upon that interest of the husband which he held as the heir of his wife, aside from his dower or distributive share, she having no children, is not presented in the record, and we do not determine it. What we do determine is that neither the mortgage nor judgment was a lien* [491] because tbe plaintiff claims that Eaton was holding the property as a homestead, and the bank claims that the homestead was abandoned, and based its lien upon that ground. Finding that there was no abandonment, no right of the defendant is prejudiced by the decree, however erroneous it may be. Wile v. Wright, 32 Iowa, 451. Aeeirmed.