Foley v. Cooper

43 Iowa 376

• Court: Supreme Court of Iowa
• Decided: June 9, 1876
• Status: Published

Opinion

Adams, J.

1.homestead: exemption e!uyjudicial"" sale. I. Sectioii 2281 of the Revision is as follows: “It” (the homestead) “ may also be sold on execution for debts contracted prior to the passage of this law, or prior to the purchase of such homestead (except where v L otlierwise declared), or for those created by written contract executed by the persons having the power to convey, and expressly stipulating that the homestead is liable therefor. But it shall not in such cases be sold except to supply the deficiency remaining after exhausting the other property of the debtor which is liable to execution.”

To render the homestead liable to be sold on execution, it is not necessary that it should be conveyed by mortgage or otherwise. It is only necessary that the debt should be created by a written contract executed by the persons having the power to convey the homestead, and that such persons should expressly stipulate that the homestead is liable therefor. Such is the fair construction of the statute, and we do not see that homestead rights would be rendered more secure if we should hold that the homestead can be incumbered only by conveyance.

II.' The record shows that the defendants were duly notified of the sale. They took no steps to enjoin it on the ground that they had other property which had not been exhausted, nor does it appear that they notified the sheriff or judgment creditor that they had other property. So far as the record shows they made no objection to the sale. The property selling for more than was necessary to pay the judgment the defendant, Francis Cooper, received the balance.

2____. - If the defendant, Mary Cooper, had preferred that her life estate in the sixty acres should be first exhausted it would have been her right to have it done, but we seé no reason why the homestead might not be sold without exhausting it, if such was her preference. The homestead might be salable property, and the life estate not salable. Whether so or not the life estate, simply because it was a life estate, if it was an estate for her life, might be worth more to her than to any one else. She was undoubtedly entitled to her preference. It only remains to be considered whether her preference was manifested.

3 _._. estoppel. The law presumes that she knew it was her right to have her life estate first exhausted. She had notice that the homestead was to be sold and made no objection. She acquiesced in it. This must be regarded as a sufficient indication of her preference, and the objection which she now makes is made too late. Cavender v. Heirs of Smith, 1 Iowa, 306; Denegre v. Haun, 14 Iowa, 240.

That she could not read or write and that she was ignorant of the contents of the note, and of the confession of judgment, cannot be set up as against this plaintiff, even if it could have been set up against the judgment creditor.

Reversed.