Axtell v. Warden

Gantt, Oh. J.

Upon a judgment lie obtained against the plaintiff in error, in the district court of the county, the defendant in error caused an execution to be issued, by virtue of which the sheriff levied on personal property of the plaintiff, on the 26th of June, 1876, and afterwards sold the same.

By an agreed statement of facts, it is admitted that the plaintiff is the head of a family, and that he filed an inventory of his personal property, as required by law, for the purpose of availing himself of the exemptions under section 521 of the civil code. It is also admitted that at the time the judgment was rendered, the plaintiff was the owner of two hundred and forty acres of lands in the county; that of these lands one piece of forty acres has been sold for taxes, and there was a lien on the same against Thomas Axtell, from whom he purchased the same; that pursuant to a verbal agreement previously made, he deeded one hundred and sixty acres of these lands, being the north-west quarter of section twenty-two, in township three north, of range two east, to his son. It is further admitted that, on the 28th of October, 1869, the plaintiff, under the act of congress, entered the north-west quarter of section twenty-one, in the township and range aforesaid, as a homestead, and has since that date continuously resided thereon, and did in all respects comply with the requirements of the homestead laws. Under this state of facts, the plaintiff in error insists that he was entitled to personal property exempt from forced sale on execution to the value of five hundred dollars; and brought this action in the district court to recover damages for selling the property so levied and sold nipón the execution.

Section 521 of the code provides that “ all heads of families, who have neither lands, town lots, or houses *185 subject to exemption as a homestead, under thé laws of this state, shall have exempt from sale on execution the sum of five hundred dollars in personal property.”

Now, according to the facts admitted, exclusive of the forty acres sold for taxes and the land deeded to his son, the plaintiff owned two hundred acres of lands, and resided on one hundred and sixty acres of these lands as his homestead. ¥e think this fact is decisive of the case. The proposition that a person having secured a homestead under the acts of congress, by complying in all respects with the requirements of the- laws, is entitled to have exempt from sale on execution personal property to the value of five hundred dollars, unless he owns other lands, lots, or houses also, as a homestead, cannot receive the sanction of the law. The law provides one homestead only for the head of a family, and while he resides upon and enjoys all the rights and privileges of such homestead, he cannot receive the benefits of the exemptions provided by section 521; these exemptions are designed for those only who own neither lands, town lots, or houses as a homestead. A.nd it is matter of no importance whether the lands so occupied as a homestead have been entered under the homestead or preemption laws of congress, or under the law permitting the purchase of lands known as “ offered lands.”

The plaintiff in this case has continuously resided on his homestead over six years, and it is held in Bellinger v. White, 5 Neb., 401 , that “by residing upon and cultivating the land for more than five years, he could complete his title at any time by making final proof and paying the fees required by law. The United States did not own the lands, but held them simply as a trustee, having no interest therein except a mere special interest for the amount of unpaid fees. The plaintiff was the real owner, and could not be deprived of the title except through his own neglect.” And in Cheney v. White, *186 Ibid, 261, it is held that “ the mere delay of the officers of the government, in such case, in issuing the evidence of the title — the patent — could not be held to deprive him of the right to make such disposition of the land, either by deed or mortgage, as he might desire.”

Therefore, the plaintiff being the owner of the one hundred and sixty acres of land, upon which he resided as his homestead, he was not entitled to the benefits of the exemptions provided by section 521. He was, however, entitled to the benefits of the exemptions provided for in section 530, and for aught that appears in the record, he may have availed himself of the benefit of such exemptions.

Finding no error in the judgment of the court below, the same is affirmed.

Judgment affirmed.