Berry v. Ewing

Sherwood, J. The plaintiff obtained a temporary injunction against Ewing and the sheriff restrained them from selling under fi. fa. a certain eighty acres of land towned by plaintiff. On final hearing the injunction was pade perpetual. The facts on which the action of the [397] trial court is bottomed, as shown by the agreed statement, are as follows : Berry was the guardian and curator of his nephew, L. C. Isom ; gave bond as such in 1860, with Ewing as surety. In 1882, Isom having obtained judgment against Berry, and Ewing on the curator’s bond, the latter was;-compeEed to pay the sum of one thousand dollars, and thereupon brought suit and recovered judgment, and caused execution to be levied on the land in question, on which Berry has resided since 1857, and now claims to-be exempt as a homestead; and on this theory the injunction was made perpetual. The deeds under which Berry claims were made in 1855 and 1859, but were not put to record till 1871. The only question presented by the record is, whether the claim of Ewing, as surety,, antedated the-claim of Berry to the land, as a homestead, for if it did, then the former claim must prevail. At the time Ewing became a surety on Berry’s bond, there was no homestead law in force in this state ; nor was there such a law for several years thereafter. And when Ewing signed the bond this act of his created an existing cause-of action, contingent upon Berry’s default. An implied contract was then raised by the law between Berry, the principal, and Ewing, the surety, that the former should indemnify the latter ; and this implied contract took effect from the date of the surety’s signing the bond, and not merely from the time he paid the money; the payment in such case relating to the inception of the implied liability. Thus, where such a liability was created by reason of a surety’s signing as aforesaid, and after-wards a homestead act was passed, and the surety, after the passage of the act, paid the debt, it was ruled that the demand of the surety was superior to the claim of homestead exemption. Thompson on Homesteads, sec. 315; Rice v. Southgate, 16 Gray, 142; Appleton v. Bascom, 3 Met. [Mass.] 169. And when Ewing, as surety, [398] signed Berry’s bond, the implied contract of indemnity took immediate effect and became a vested right, arising on a contract which subsequent legislation could not divest, even if so intended, for this would amount to impairing the obligation of a contract — a contract implied by the law. Thompson on Homesteads, secs. 10, 15; Gunn v. Barry, 15 Wall. 610. By the terms of the constitution, in force when the implied contract with the surety was made, the legislature was forbidden to pass any law impairing the oblk gation of contracts, etc. The homestead exemption of Berry, therefore, could not prevail, even if authorized by the legislature, for this would have been in contravention of both the state and of the federal constitutions. Harvey v. Wickham, S3 Mo. 112. But under the terms of the statute, the homestead is subject to levy of execution on all causes of action existing at the time of acquiring such homestead. R. S. 1879, sec. 2695. As already seen, the cause of action in this case existed long anterior to Berry’s acquisition of the homestead. Consequently, Ewing had the right to levy upon it, just as he would upon any other land; his remedy at law being adequate and ample, so that no manner of necessity existed for him to go into a court of equity in order to assert his right. For these reasons the judgment should be reversed and the petition be dismissed. All concur.