Linscott v. Lamart

Rothrook, J.

1. homeoutíon/ judi'oiai saie. I. It appears from the evidence that Ash, with his family, occupied the premises as a homestead from about 1867 to 1871. He was thus in possession when he and his wife executed the mortgage to Lamart in 1869. He did not at any time make selection of any particular part of the land as a homestead and cause it to be recorded as provided by law. Both these parties, however, seem to concede that the homestead was the north part of the tract inasmuch, we suppose, as the dwelling house is situated on that part. The plaintiff caused the south half to be levied upon and sold in satisfaction of his judgment. The whole tract is described as containing 71 and 8-100 acres. The sale of the south half of the tract left less than forty acres as a homestead.

The failure of the owner to select, plat, mark out and record does not leave the homestead liable. Code, Sec. 1998. Ash and his wife had the right to sell and convey the homestead to Lamart, and he has the right to hold it exempt from judicial sale on plaintiff’s judgment.

Without determining the location of the homestead, we think as the plaintiff sold more land than was liable to be sold in satisfaction of his judgment, the sale was void.

2. mortgage: merger. II. The mortgage from Ash and wife to Lamart covered the whole 71 acres. It is insisted by counsel for appellant that the conveyance afterward made by *315 Ash and wife to Lamart extinguished the mortgage lien upon the whole of the land and left it liable to be sold in payment of the judgment.

In the case of Wickersham v. Reeves & Miller, 1 Iowa, 413 , it was claimed that the mortgage had been extinguished by the conveyance of the legal title, and Isbell, J., in delivering the opinion of the court, says: “We think this view is not sustainable. The evidence clearly shows that this was not the intent of the parties to the sale of the legal title to petitioner, nor was it for the interest of the petitioner. We, therefore, conclude that this mortgage continued to exist as a lien on the premises.” The same rule was followed in Wilhelmi v. Leonard, 13 Iowa, 330 .

The evidence in the case at bar shows that when Lamart took his conveyance, he did not surrender or cancel the mortgage, but held it, because, as he says: “there was too much incumbrance against the land.” It is true that sometime after the conveyance to him he surrendered the notes secured by the mortgage, but all the evidence show's that on account of other liens upon the land he intended- to and did hold the mortgage to protect him against their enforcement. We are of opinion that the mortgage was not merged and extinguished by the conveyance of the legal title.

3 _. homestead: junior liens, III. What then are the rights of the parties? If Ash had not conveyed to Lamart, upon foreclosure of the mortgage, the homestead could only “ be sold to supply the deficiency remaining after exhausting the other property ” included in the mortgage. Lamart paid Ash some $1400 for the whole tract, being more than twice the amount of the mortgage. No fraud is charged or shown, and as he had the right to purchase the homestead and hold it as against plaintiff’s judgment, he should now have the right to have the proceeds of the land, aside from the homestead, applied in payment of his mortgage, to the exclusion of junior liens. In other words, it would be inequitable to put him in a worse position than he would be if he had not taken the title from Ash. The plaintiff, by this rule, is left in precisely the same position he would now occupy if *316 Ash were still holding his homestead, and Lamart his mortgage.

IY. The evidence does not show that Lamart redeemed from plaintiff’s foreclosure sale as a lien-holder or creditor of Ash. He paid his money in satisfaction of the judgment and must bo regarded as redeeming as owner of the land. This sum, however, is a material addition to the amount agreed to be paid by Lamart for the land.

• Y. The decree of the District Court dismissing plaintiff'’s petition will be affirmed because of the unauthorized sale of part of the homestead. The decree quieting title in defendant will be so far modified as to permit plaintiff to take out execution, ascertain the land not embraced in the homestead and levy and sell it subject to the defendant’s mortgage.

Affirmed.