Smith v. De Kock

Given, J. *’ deed-'execu-homestead: m ’ I. The plaintiffs are husband and wife, and were the owners of a certain forty-acre tract of land upon which the dwelling of the family was situated. They also owned fifteen acres adjoining, the entire fifty-five acres being used and occupied together as the homestead of the family. At the time of the sheriff’s sale, John Smith was insane, and detained in the hospital at 536 Mt. Pleasant. The defendant bad execution upon a judgment against John Smith, rendered upon an indebtedness which antedated the occupancy of the land as a homestead, which execution was levied upon the fifty-five acres. Mrs. Smith caused notice to be served upon the sheriff, claiming the forty-acre tract as the homestead of the family. The sheriff’s return shows that he proceeded to sell said real estate “by offering the same in separate parcels, receiving no bid for either the forty-acre tract or the fifteen-acre tract, and thereafter John De Kock then and there bid for the above-mentioned real estate as follows, to-wit, the sum of four hundred and twenty-nine dollars,” etc. This being the highest and best bid, the entire fifty-five acres were returned as sold to appellee, and upon this sale the deed in question is based. The grounds of objection to the deed are that the sale was made without platting the homestead, and without first offering the fifteen acres. Plaintiffs were entitled to have their homestead designated, and to have the other lands first offered for sale. A platting of the homestead would simply have been a platting of the forty-acre tract. By the notice from Mrs. Smith, the selection was, under the law, as definite as a platting would have made it. The law does not require .useless things, and certainly the deed will not be set aside for an omission to do this useless thing, if the sale was otherwise regular. return of execution: evidence. II. It will be observed that the sheriff’s return shows that the land was offered in separate parcels, but does not show which parcel was offered first. On the trial the sheriff was asked which tract he first offered, and the answer taken subject to plaintiffs’ objection. The answer was not to vary or contradict the return, but to show a fact that did not appear therein, and was, therefore, competent. The sheriff answered that, to the best of his knowledge, the fifteen-acre tract was offered first. In this he is corroborated by the presumption that he did his duty, and it was clearly his duty to first offer the 537 land other than the homestead. He is farther corroborated by the testimony of Mr. Bosquet, who was present at the sale, and testifies that the fifteen acres were first offered. The defendant’s judgment being a lien upon all the lands for a debt incurred prior to the occupancy of the land as a homestead, the defendant had a right to subject the entire fifty-five acres to sale, if necessary, to satisfy his judgment. Plaintiffs had the right to designate their homestead, or have the same designated, and to have the lands other than the homestead first offered for sale. In the sale the law was observed in all these respects, except that the designation of the homestead was not done by platting the same. The omission, if it may be called such under the circumstances, was without prejudice to the rights of the plaintiffs. Aside from the consideration already mentioned, it is evident that the fifteen acres would have been insufficient to satisfy the execution, which was for four hundred and twenty-nine dollars, and the sale of the homestead would have followed as a necessary consequence. The decree of the district court must be affirmed.