Rutt v. Howell

Supreme Court of Iowa

Rutt v. Howell

50 Iowa 535

CourtSupreme Court of Iowa

DecidedApril 22, 1879

StatusPublished

Cited by7 cases

This text of 50 Iowa 535 (Rutt v. Howell) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rutt v. Howell, 50 Iowa 535 (iowa 1879).

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Opinion

-Hay, J.

[537]*537i. homestead: ment. agiee [536]*536I. The rule is that the homestead Is exempt [537]*537from judicial sale. Code, § 1988. It can be rendered liable for the debts of the owners only in the manner provided by statute. Section 1993 of the Code provides: “The homestead may .be sold for ■debts created by written contract, executed by the’ persons having the power to convey, expressly stipulating that the homestead is liable therefor.” The homestead cannot be Tendered liable by mere verbal agreement. The statute does not provide that liability can be created in that way. It is apparent, therefore, that no consideration can be given to the portion of the petition which alleges that it was verbally agreed, at the time the money was advanced, that the ■defendants should execute the necessary papers pledging the homestead for the debt. This agreement does not create any liability as to the homestead.

-2. —:--: judgment. II. Appellant claims that the confession of judgment is ■such written contract as is referred to in the statute. The only reference to the homestead in this confession is the following: “And if payment is not made 'hereon on or before the 20th day of January, A. D. 1870, .aforesaid, execution may issue on this judgment immediately thereafter against any property belonging to said defendants, homestead included. ”

Section 1993 of the Code requires an express stipulation that the homestead shall be liable for the debt. The confession of judgment contains no such stipulation. It contains simply a waiver of the exemption statutes, and a consent that execution may issue against any property of the defendants. It has been held that a similar provision in a promissory note is against public policy and will not be enforced. Curtis v. O’Brien & Sears, 20 Iowa, 376, and cases cited. There ’is greater reason for holding such a provision invalid in a confession of judgment, for after the debt has been created the original agreement furnishes no consideration for a waiver of ■the exemptions allowed by law.

The judgment is • Affirmed.

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-Hay, J.

[537]*537i. homestead: ment. agiee [536]*536I. The rule is that the homestead Is exempt [537]*537from judicial sale. Code, § 1988. It can be rendered liable for the debts of the owners only in the manner provided by statute. Section 1993 of the Code provides: “The homestead may .be sold for ■debts created by written contract, executed by the’ persons having the power to convey, expressly stipulating that the homestead is liable therefor.” The homestead cannot be Tendered liable by mere verbal agreement. The statute does not provide that liability can be created in that way. It is apparent, therefore, that no consideration can be given to the portion of the petition which alleges that it was verbally agreed, at the time the money was advanced, that the ■defendants should execute the necessary papers pledging the homestead for the debt. This agreement does not create any liability as to the homestead.

-2. —:--: judgment. II. Appellant claims that the confession of judgment is ■such written contract as is referred to in the statute. The only reference to the homestead in this confession is the following: “And if payment is not made 'hereon on or before the 20th day of January, A. D. 1870, .aforesaid, execution may issue on this judgment immediately thereafter against any property belonging to said defendants, homestead included. ”

Section 1993 of the Code requires an express stipulation that the homestead shall be liable for the debt. The confession of judgment contains no such stipulation. It contains simply a waiver of the exemption statutes, and a consent that execution may issue against any property of the defendants. It has been held that a similar provision in a promissory note is against public policy and will not be enforced. Curtis v. O’Brien & Sears, 20 Iowa, 376, and cases cited. There ’is greater reason for holding such a provision invalid in a confession of judgment, for after the debt has been created the original agreement furnishes no consideration for a waiver of ■the exemptions allowed by law.

The judgment is • Affirmed.

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50 Iowa 535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rutt-v-howell-iowa-1879.

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