Eaton v. Ryan

Nebraska Supreme Court

Eaton v. Ryan

5 Neb. 47

CourtNebraska Supreme Court

DecidedJuly 15, 1876

StatusPublished

Cited by6 cases

This text of 5 Neb. 47 (Eaton v. Ryan) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eaton v. Ryan, 5 Neb. 47 (Neb. 1876).

Pincite

Opinion

Lake, Oh. J.

I. Upon the filing of the transcript of the judgment rendered by the probate court, in the office of the cleric of the district court, and its entry upon the judgment record, it became a lien upon the premises in question, notwithstanding they were then occupied by the judgment debtor as his homestead. A judgment so eirtered has precisely the same effect, and creates the same lien upon the real estate of the judgment debtor, as a judgment of the district court would have. General Statutes, 267, section 18. But this lien could not have been enforced by a sale of the premises under execution, so [49]*49long as they were “ owned and occufied by the debtor ” as his homestead. State Bank v. Carson, 4 Neb., 498.

When, however, on the fifth day of January, 1875, Eaton sold and conveyed the premises to Funke he thereby voluntarily relinquished the protection afforded him by the homestead act, and rendered the lien of the judgment capable of immediate enforcement by execution. Hoyt v. Howe, 3 Wis., 752.

II. As to the remaining objection taken to the confirmation of this sale, but little need be said. The fact-that the tract of land as sold in one body was composed of what was formerly distinct parts of separate city lots, is of no consequence, nor does it bring the case within the rule laid down in Loughlin v. Schuyler, 1 Neb., 409, where it was held that two city lots, entirely distinct from each other, should be appraised and sold separately.

It appears from the stipulation of facts in this case that when the judgment became a lien upon these premises the two parcels taken together constituted the homestead of the judgment debtor, and were occupied and used by him as such. The premises, therefore, were a single piece of ground, although taken from different lots, and were properly sold, as one tract. Indeed, under the circumstances, the sheriff would not have been justified in selling the two feet separately.

The order of the district court confirming the sale must be

Affirmed.

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Lake, Oh. J.

I. Upon the filing of the transcript of the judgment rendered by the probate court, in the office of the cleric of the district court, and its entry upon the judgment record, it became a lien upon the premises in question, notwithstanding they were then occupied by the judgment debtor as his homestead. A judgment so eirtered has precisely the same effect, and creates the same lien upon the real estate of the judgment debtor, as a judgment of the district court would have. General Statutes, 267, section 18. But this lien could not have been enforced by a sale of the premises under execution, so [49]*49long as they were “ owned and occufied by the debtor ” as his homestead. State Bank v. Carson, 4 Neb., 498.

When, however, on the fifth day of January, 1875, Eaton sold and conveyed the premises to Funke he thereby voluntarily relinquished the protection afforded him by the homestead act, and rendered the lien of the judgment capable of immediate enforcement by execution. Hoyt v. Howe, 3 Wis., 752.

II. As to the remaining objection taken to the confirmation of this sale, but little need be said. The fact-that the tract of land as sold in one body was composed of what was formerly distinct parts of separate city lots, is of no consequence, nor does it bring the case within the rule laid down in Loughlin v. Schuyler, 1 Neb., 409, where it was held that two city lots, entirely distinct from each other, should be appraised and sold separately.

It appears from the stipulation of facts in this case that when the judgment became a lien upon these premises the two parcels taken together constituted the homestead of the judgment debtor, and were occupied and used by him as such. The premises, therefore, were a single piece of ground, although taken from different lots, and were properly sold, as one tract. Indeed, under the circumstances, the sheriff would not have been justified in selling the two feet separately.

The order of the district court confirming the sale must be

Affirmed.

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Bluebook (online)

5 Neb. 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eaton-v-ryan-neb-1876.

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