Bills v. Mason

Servers, Ch. J.

t 1. homestead: prior debts. I. The homestead may bé sold on execution for debts contracted prior to the purchase thereof. Revision, section 2281, Code, section 1992. It, there-j 7 ' ' f0r6j follows that the property in controversy or new homestead is liable to be sold on execution, for the reason that the debt on which the judgment was rendered was contracted prior to the purchase or acquisition of such new homestead, unless the matters mentioned in the statement of facts change this necessary result. The testimony of the plaintiffs is, that they purchased the premises in good faith, after an examination of the judgment docket, which merely disclosed the fact of the amount of the judgment and the date of its rendition, which was more than a year after Boardman had entered into possession of the premises in controversy as his homestead. It will be seen, howewer, that the date of contracting the debt is the test, and not that of the rendition of the judgment, whether or not the property was exempt from sale on an execution issued on the judgment. Besides this, an examination of the confession would have shown when the debt was contracted. This much at least the plaintiffs were required to do.

2_. uew transfer of u-ability. II. Revision, section 2289, Code, section 2001, is as follows: “ The new homestead, to the extent in value of the old, is exempt from execution in all cases where the or former homestead would have been exempt, but jn n0 0ther, nor in any greater degree.” The plaintiffs insist that the new homestead is exempt because the judgment, not being a lien on the old, cannot be on the new. To this the defendant replies that, inasmuch as the judgment was confessed on a debt contracted in the purchase of the old homestead, the new homestead is liable to the same extent the old would have been. If it was the duty of the plaintiffs to have examined the confession as has been stated, and had they done so, they would have ascertained the judgment was rendered on a debt given, or created as a part of the purchase price of the old homestead. Failing to do this they clearly have no better rights or equities than Boardman, if this action had been brought by him. As between Boardman and *333 Wescott, a lien existed on the old liomested for the unpaid purchase money. Christy v. Dyer, 14 Iowa, 438 . It is true such lien was not enforceable against the old homestead for the reason that it had been sold, and conveyed to a third party without notice. This sale, however, being a mere exchange, the liability of the old homestead is transferred by operation of law to the new. The Code so provides in express terms. The language used is, “ would have been,” that is if Boardman had retained the old homestead. If, then, he had retained the old homestead, the question is, “ would ” it have been liable, if so, then is the new? That the old homestead would have been liable to be sold on execution for this debt, if Boardman had retained it, we presume will not be seriously controverted.

3. vendor and assignment1' III. It is urged that whatever may be the rights and equities between Boardman and Westcott, yet as the defendant is the assignee of the latter a different rule must prevail. This court held in Blair & Co. v. Marsh et al., 8 Iowa, 144 , that the assignment of a note, given for the purchase of real estate, carried with it the lien of the vendor, and all the equities and remedies the latter would have had if he had never parted with the debt. And this on principle would seem to be the better rule. What reason can be given why, if the assignment of the debt carries with it the lien, any and all other equities and rights do-not necessarily follow? The principal thing is the debt, the lien is an incident and the principal one that attaches to it. If, then, the debt and the principal incident passes to the assignee, why not all other equities or rights. The fact that in Blair & Co. v. Marsh et al., supra, the vendor had not parted with the title of the real estate can make no difference for the reason that the mode of enforcing the lien, or the rights of the parties, are in no wise different from what they would have been if the title had passed to the vendee.

4 .homestead: ment. IY. It is finally urged that, inasmuch as defendant has not taken any steps to enforce the lien, but relies alone on a general judgment and execution, the piaintiffs have the better equity or superior right. Is this assumption true? The defendant, believing he had the *334 legal right to sell the premises on the execution, was proceeding to do so. Now if his general judgment or execution gave him no legal right to do so, why did the plaintiffs’ interfere? Simply, we apprehend, for the-reason, if the sale had taken place, the title of the purchaser of the premises at law would have been superior to that of the plaintiffs. Be this, however, as it may, the plaintiffs brought this action in equity to restrain such sale. And the defendant in his answer sets up and relies on his equities, and asks to have the same enforced. This is in accord with the doctrine of Lowe, J., in Rakestraw v. Hamilton, 14 Iowa, 151 , where it is stated that the lien of the vendor can only be enforced by proper proceedings for that purpose. Besides this, there was n'o such point in that case, as the controversy was solely in relation to personal property. In Christy v. Dyer, supra, however, the point was pertinent and decided by the court, that the lien as between the parties could be enforced by general execution. It is true the reason given is that as there was a mortgage in that case, which, however, had not been foreclosed, the judgment on the note, by virtue of the statute, related back so far as the lien was concerned to the date of the mortgage. This statute was repealed by the Code. In this case the lien of the judgment, however, relates back to the time of the contraction of the debt by operation of law, or rather by. an express provision of another section of the Code. The judgment of the District Court must be

Aeeikmed.