LaRue v. Gilbert

[222] The opinion of the court was delivered by Brewer, J.: The controversy in this case grows out of the same facts as in the case of Colby v. Crocker, 17 Kas. 527, and which are fully stated in the opinion filed therein. Gilbert and Gay foreclosed their mortgage, and in the decree, with their consent, it was ordered that the property other than the homestead be first sold. To this LaRue, the administrator of the estate of the mortgagor, and holder of a judgment rendered against the. mortgagor in his lifetime, and which was a lien subsequent to the mortgage upon the property other than the homestead, objected, and insisted that the order should be for the sale of the homestead first. We held in that case that an unsecured creditor had no superior equities over the family of the deceased mortgagor, which was continuing to occupy the homestead, and that, therefore, the mortgagee would not be required to exhaust his security in the homestead before touching the other property mortgaged. Does the holder of a judgment-lien stand in any better condition-? Are his equities paramount to the homestead right? We think not. The same reasoning which led to the decision in that case, compels an affirmance of the judgment here. It is useless to restate it. The preservation of the homestead is, under the policy of our law, considered of more importance than the payment of debts. That is what a homestead means, exemption from debts. It is not so much for the debtor, as for the debtor’s family. And the family of the debtor have in this respect equities superior to the creditor. In giving a mortgage on the homestead, the debtor waives this homestead right, but only to the mortgagee, and does not thereby open the door to other creditors, or increase their equities. The case of Chapman v. Lester, 12 Kas. 595, cited by counsel for plaintiff in error, does not conflict with these views. In that we held that a mortgagee, holding a mortgage on both homestead and other property, might release the latter and still maintain his lien on the former. Both kinds of property were given as security, [223] without any express preference of the one over the other, and we held that nothing was to be interpolated into the contract, no implied agreement to treat the outside property as the primary, and the homestead as only secondary security. But this was between the mortgagee and mortgagor, and the latter by giving the mortgage had waived his homestead-rights as against the mortgagee. We closed the opinion however by a recognition of the right of a court in foreclosure proceedings to direct that the homestead be the last, property offered for •sale. The judgment will be affirmed. All the Justices concurring.