Lear v. Heffner

Howell, J. Plaintiff enjoins the sale of property seized, claiming it'to be his homestead. The defendant, plaintiff in the execution, contends 'that, under the law, the property is not exempt, because it is shown that her judgment is for money furnished by her to pay the price at which ■plaintiff purchased it. It is true that the money with which the cash portion of the price and the note for the balance thereof were paid, was obtained at different times from the defendant, which was afterward secured by special mortgage. But this did not make her the vendor or give her the rights of the vendor, in whose favor the exception in the ■homestead law invoked was made. The exception reads: “ Sec. 1692. No property shall, by virtue of this act, be exempt from sale 'for non-payment of taxes or assessments levied pursuant to law, nor for debt contracted for the purchase price of said exempted property, nor for money due for rents, bearing a privilege on said property under existing laws.” Revised Statutes of 1870. The debt in favor of defendant was not contracted for the purchase price of the property in question, but for a loan, or loans, made by her to the purchaser. The fact that he used the money loaned to him hi [830] paying the installments of the price, did not make the loans the price. The lender was not the vendor, nor did she acquire her rights from the vend- or. Her construction of the law would make a debt, not secured by any privilege from its nature superior to all privileges and mortgages. This is not admissible. It is therefore ordered that the judgment appealed from be reversed, and that the injunction herein be perpetuated, with costs in both courts.