Opinion
10-19-1888
MUTUAL LIFE INS. CO. v. NEWTON.
Mr. Lindsay and A. H. Strong, for petitioner. E. D. Gillmore, contra.
On petition to stay execution.
Mr. Lindsay and A. H. Strong, for petitioner. E. D. Gillmore, contra.
BIRD, V. C. The complainant had a final decree in a foreclosure suit. After the sale of the lands included in the mortgage, there was a deficiency. For this deficiency an execution was ordered, under which a levy has been made on lands of the defendant. These lands were owned by his former wife, who devised to him an interest for life therein. He now resides on these lands, and comes into court, claiming that they are his homestead, and asks the court to protect him therein against this execution, by restraining the sale of them. These lands were acquired after the creation of the debt which the complainant desires to make out of them. The question, therefore, is, does the case made by the petitioner come within the act respecting homestead exemptions? The act (Revision, p. 1055, § 1) gives to the debtor a lot of land, and the buildings thereon, occupied as a residence, and owned by the debtor, being a householder, and having a family, of the value of $1,000. The next section declares that the deed of conveyance to such debtor must show that the said lot is intended to be so held, or, in case it does not, a notice that the same is designed to be so held, shall be executed and acknowledged, containing a full description of the lot, and recorded, and published once in each week, for at least six weeks, in one or more newspapers in the county; and adds: "But no property shall, by virtue of this act, be exempt from sale, for nonpayment of taxes or assessments, or for any labor done thereon, or material furnished therefor, or for a debt contracted for the purchase thereof, or prior to the recording of the aforesaid deed of notice." As stated, the debtor had an interest for life in these lands, at the time of the issuing of the writ, which he now desires to have the court restrain the execution of as to these lands; and the debt was in existence long before the will of his wife took effect. Nor was there any attempt to comply with the terms of the act until after the writwas in the hands of the officer. Then the notice referred to, and required by the statute, was prepared, and filed, and published. Is such a case within the statute? I conclude it is not. The provision above quoted, which qualifies the whole benefit conferred, expressly places a debt which was created prior to the recording of the deed or notice on the same footing as a claim for taxes, or for labor, or for material, or for purchase money. The legislature did not intend to give any citizen an opportunity, under its solemn sanction, to become indebted to the amount of $1,000, and then to withdraw so much of his estate, and possibly all, from the reach of the creditor. The petition will be dismissed, with costs.