Rutt v. Howell

1. Homestead: verbal agreement. Tlie liomestead cannot be subjected to liability for debt upon a mere verbal agreement. 2. -: -: confession of judgment. An agreement in a confession of judgment to waive tbo protection of exemption laws, and to permit execution to issue against any property of the judgment debtor, homestead included, is not such a written contract as will subject the homestead to liability.

Appeal from Hamilton District Court. An opinion was heretofore filed in this case, and the cause is now before us upon rehearing. The petition in substance alleges that the assignor of plaintiff, one Snow, advanced to the defendant the sum of seven hundred and thirty-eight dol-, lars and sixty-six cents, to pay a debt to one Browning, with| the express understanding and verbal agreement with the. defendants, who are husband and wife, that the defendant William Howell should execute his promissory note for the amount, which should be secured by a lien on lots 5 and 6, in block 7, in the village of Webster City, occupied by defendants as a homestead, and the defendants promised and agreed that the papers should be executed at once, pledging the said property for the payment of said debt; that on the 25th day of July, 1869, the defendant William Howell executed a promissory note to said Snow, in pursuance of said agreement, for the amount of said loan; that in further pursuance of said agreement the defendants, on the 29th day of July, 1869, gave a confession of judgment and stipulation in writing, signed by them, agreeing and expressly stipulating that the homestead should be liable for said judgment; that the notary or person who drew the confession of judgment neglected to state fully that said defendants stipulated that the homestead should be liable for said judgment, and failed and neglected to describe the homestead property; and the person who drew the entry of judgment, which^was prepared for the clerk to enter judgment upon said eonlWsion, neglected and failed to make said judgment a lien on the homestead in terms, or to provide that a special execution issue against the same; and that 'these omissions were through the accident,mistake and oversight of these persons. The petition prays that the confession of judgment and the judgment entry may be corrected so as to conform to the true intent of the parties, and made a specific lien on said homestead property, and that the same be sold to satisfy said judgment. The defendants demurred to the petition. The demurrer was sustained, and judgment was rendered against the plaintiff for costs. The plaintiff appeals.