Chamberlain Banking House v. Zutavern

81 N.W. 858, 59 Neb. 623, 1900 Neb. LEXIS 41

• Court: Nebraska Supreme Court
• Decided: February 9, 1900
• Docket: No. 9,143
• Status: Published

Opinion

Norval, C. J.

This is an appeal from an order of. the district court refusing to confirm a sheriff’s sale of real estate made upon execution, and vacating such sale.

The objections interposed to the sale were:

1. That the property was exempt to the defendant Wood as a homestead.

2. That, after the levy of the execution and before the sale, said defendant served a written notice upon the sheriff holding the writ that she claimed the real estate as a homestead, and that the same was, therefore, exempt from sale on execution, and that the judgment creditor failed to have her homestead right determined.

As to whether the property was the homestead of the defendant, the evidence adduced on the hearing in the court below was conflicting. That introduced by the defendant tended to show that she is a widow, sixty-nine years old, a resident of the state; that she resided upon the land in question as a home, with her servants; and that, during a greater portion of the time, certain of her children and grandchildren resided with her and were under her care and maintenance, and that the land was of less value than $2,000. The evidence was sufficient to establish that the real estate was not subject to forced sale on execution. See Dorrington v. Myers, 11 Nebr., 388. Moreover, the judgment creditor failed to have the homestead right of the defendant in the property determined. See Quigley v. McEvony, 41 Nebr., 73.

The sale was properly vacated, and the order appealed from is

Affirmed.

Rehearing denied.