Elsner v. Dorn

116 N.W. 768, 136 Wis. 73, 1908 Wisc. LEXIS 194

• Court: Wisconsin Supreme Court
• Decided: June 5, 1908
• Status: Published

Opinion

SiebecKEr, J.

Appellants assert in effect that it is inequitable under the circumstances to sell first for satisfaction of the mortgage debt the portion of the premises not included in the mortgagor’s homestead. It is evident that when appellants’ lien arose the mortgagor, Mrs. Dorn, had established her homestead right to the premises she now occupies and that she was entitled to all the benefits that inhere in a homestead right. It has been held by this court that this right is superior in equity to that of creditors.

“The right of the owner to have his homestead exempt from liability in any form’ (R. S. sec. 2983) for his debts is superior to the equity of a creditor to have it applied to the payment of bis debt. However it may have been formerly and in tbe absence of a statute declaring bis right, it is now tbe settled policy of tbe law to prefer tbe homestead right as against tbe rights of creditors.” Clancey v. Alme, 98 Wis. 229, 73 N. W. 1014.

Under tbe facts of this case tbe court properly adjudged that tbe portion of tbe mortgaged premises constituting tbe mortgagor’s homestead should not be sold or offered for sale until tbe other lands embraced in tbe judgment have been so offered and sold.

By the Court. — Judgment affirmed.