Whinery v. McLeod

Ladd, J. The defendant E. L. Whinery obtained a judgment against Arthur and Lizzie Whinery November 9, 1894, for $234.15 and costs. At that time the judgment defendants were occupying lot 7, block 16, in Ida Grove, as a homestead, and on the 7th day of December following conveyed it to the plaintiff, in consideration of certain evidences of debt held by her. Execution issued on said judgment October 3, 1902, and to enjoin a sale thereunder on the ground that the lot was exempt from said execution as 12 the homestead of defendants is the object of bis suit. That the indebtedness antedated the acquisition of the property was not specifically pleaded in the answer, but the issue as to whether the judgment was a lien was raised not only by an averment in the petition that it was not, but in the answer that it had attached as such to the property. This necessarily involved the question as to when the debt was incurred, and a more specific statement, in the absence of motion therefor, was not essential. The petition on which the judgment was based, and which was admissible in evidence as part of the record in the case, shows that the indebtedness was evidenced by three promissory notes of Arthur Whinery, the last of which was executed March 13, 1888, and that, because these were given for family necessaries, judgment was also rendered against his wife, Lizzie Whinery. This was none the less her debt because liability was fixed therefor by statute. See section 3165, Code. Some time subsequent to the last-mentioned date, Arthur Whinery exchanged a pair of mules, which he had obtained for a span of horses bought with pension money, to one Fouts, for a contract of sale of the lot with the Iowa Railroad Land Company to his wife, Mary E., commonly known as Lizzie Whinery, as all parties understood. She testified that they moved on the' premises “ in a short time,” and on August 30, 1889, she procured a deed from the company. If anything was subsequently paid, it was received by him from the government as a pension, so that there is no-doubt but that the property and money invested were exempt to him. But it does not follow that the proceeds thereof in the hands of another continued to be exempt. As both the mules and the money were exempt, he might give them away, or direct that the contract received therefor be assigned to another. This he seems to have done, for there is nothing in the record even tending to indicate a purpose on his part of retaining any interest in the lot. Ilis wife became the owner of it prior to its occupancy as a homestead. 13 See Butler v. Nelson, 72 Iowa, 732; Marquardt v. Mason, 87 Iowa, 136. It is not perceived on wbat theory either of them may invoke the aid of section 4010 of the Code, providing that “ the homestead of every such pensioner, whether the head of the family or not, purchased and paid for with any such pension money or the proceeds or accumulations thereof, shall also be exempt; and such exemption shall apply to debts of such pensioner contracted prior to the purchase o£ the homestead.” These premises never belonged to the pensioner, and this statute contains no provision shielding them from the antecedent indebtedness of his wife. Section 2976 of the Code expressly declares the homestead liable for debts of the owner created at any time prior to its occupancy as such, and we are unable to discover any ground for denying the defendants the right to enforce such liability. Thé temporary writ of injunction should have been dissolved, and the petition dismissed. — Reversed.