Tingley v. Gregory

46 N.W. 419, 30 Neb. 196, 1890 Neb. LEXIS 89

• Court: Nebraska Supreme Court
• Decided: September 16, 1890
• Status: Published

Opinion

Maxwell, J.

This is an action in the nature of a creditor’s bill brought by the. plaintiffs against John S. Gregory and E. Mary Gregory to subject certain real estate in the city of Lincoln, which is occupied as a homestead by said Gregory and wife, to the payment of a judgment. The petition is in the usual form'and alleges the recovery of the judgment for deficiency after the sale of certain mortgaged premises, the issue of an execution thereon returned unsatisfied, and that the property in controversy belongs to J. S. Gregory and wife and exceeds in value $2,000.

W. W. Gregory is a son of J. S. Gregory and wife and purchased the property while this action was pending. In what way a deficiency judgment came to be rendered against the wife does not appear. The only question as to her liability raised by the answer is in connection with her husband. If she was simply surety for him, the right to render a deficiency judgment against her is very doubtful. As the question is not raised by the pleadings it is probable that the debt was incurred in relation to her own separate estate, and that, therefore, she is liable as principal.

On the trial of the cause in the court below the issues were found in favor of the plaintiff and a decree rendered accordingly. A pretty careful reading of the testimony convinces us that the decree is the only one that should have been rendered, as it is in accord with the clear weight of testimony. The excess in value of the homestead over $2,000 is subject to valid liens which existed against it at the commencement of this action. Such liens will be paid in the order of their priority.

Judgment affirmed.

The other judges concur.