Tison v. Taniehill

Ludeling, C. J. The Aaintiff mortgaged a tract of land with all the [794] improvements thereon to J. H. Hadnot, in May, 1872. On this land was situated a steam saw and grist mill. In 1874 the legal representative of J. H. Hadnot, deceased, obtained judgment on the notes executed by plaintiff, with recognition of the mortgage. Execution was issued under this judgment and the saw and grist mill was attempted to be seized, separately from the land, and was advertised for sale. This execution was enjoined on the grounds— First — That the mill formed a part of the realty, and coulcl not be seized separately from, the land; and Second — That the land and improvements thereon were exempt from seizure and sale under the homestead exemption law, as it was her home, and was not worth more than two thousand dollars. The evidence shows that the tract of land contains about one hundred and sixty acres, and that the plaintiff is a widow, with children dependent upon her for support, and that she has no other property except this land, with the improvements thereon, etc., which is worth less than two thousand dollars, and that she cultivates a few acres of the land as a farm and resides thereon. This land, with the improvements thereon, is clearly exempt from ■seizure, under the exemption law. Can the creditor be allowed to sever from the land the mills, in order to seize and sell them? We think not. The mills and machinery are attached to the realty. One of the witnesses states that the boiler “ is incased in rock and mortar, having its foundation in the soil.” It is therefore ordered, adjudged, and decreed that the judgment of tthe lower court be reversed, and that there be judgment in favor of the plaintiff, perpetuating the injunction, with costs of both courts.