888
FEDERAL REPORTER.
It may be true on the hearing that all of these damaging .allegations will beriegatived by :the proof, but {or the present thecQurt will entertain jurisdiction and will proceed to hear evidence upon the merits.
KELLERM:A:Nl1, AULTMAN
and others. May 12, 1887.) , "
, ,i,,'
(Oi'T'cuit Oourt.
11.: Nebraltka.
11 JyQG:M;ENT-:LIEN-DATliJWIUJN AIJ.'TACHES.
,
,An owner ofland occlJpiedh as a homestead from 1873 to January 17, 1883, . on whieh date he conveyed it to, another person. On Fe.bruary 4, 1888, duringtheJanuary,; term of the COUlIt, a judgment was'rendered against him in a.suit, pegun Held, that iUl)der; Codll Civ. Proc. Neb. !\ 477, by which jUd$nlent is made a lien ul?on land from the first day of the term at whiqh the judgment is rendered Mses where the actidn iiI commenced at a term 1)fcourtprior to that, in which the judgment is' entered,· the lien of the judgwent was carril!d back to, the'commencement of the January term, 1888, and tool,i.: priority in .:>ver thecC,lDveyance.
a
2.
187!i,'e.4ii,J section 1 of which enacts that the homestead exemption shall .spll/ngas the same and by .the fiS such homestead;" a'judgment agamstthe owner of land IS a hen which remains dormantwlile the land is occupied. as a homestead,but it becomes living and o:per.a,tive as soon as by cQnveyance or homestead occupation is abandoned. . . 3. S..urlrl"::'EXTE:N10F RIGHT. . .,ThE! NebtRskti.:statute of 1877j'Which. without in terms repealing the existing l",w. provided that the hQmestead of every family should be exempt from jUdiciaLsa1e where there was no special declaration of the statute to the contrary,did not supersede the provision of the prior statute Which limited such exemption the duration of the homestead occupation.
. Un·c'3r.ih. homestead exemption :law of Nebraska of 1875; (Sess. Laws Neb.
LIEN·
In. Equity . Bill to restrain sale of lands in execution. This case is submitted on demurrer to the bill. The facts as alleged arebriefiy as follows: From 1873 to 1883 one Van SIyke owned and':occupied the land levied upon as his homestead. January 17, 1883, hecoDveyed the land to the plaintiff's grantor. The lands exceeded iUivalue $2,000. The judgment of Aultman v. Van Slyke, was obtained onrnotes, dated onOetober 1, 1878, in a suit commenced October 31, Hl8'2,' in which summons,was served November 3, 1882, answerfiled· December 4,1882, ,and jUdgment rendered February 4, 1883. Thisjudgmentw8s.at the January term, 1883; the term commencing 011 the January, 1883, and before the conveyance above referred to,toplaihtiff's grantor. At the time of filing this bill execution had been: levied upon the land unCler the judgment above stated, and this action is brought to restrain Buch sale. Three questions arise: First. Did the fact that the judgment was not rendered until after the conveyance by Van Slyke, thejudgment.uebtor, prevent it from be-
·
KELLERMAN V. AULTMAN.
889
coming alien? Section 477 of the Code of Civil Procedure reads as follows: "The lands and tenements of the debtor within the county where the ment is rendered shall be bound for the satisfaction thereof from the.first day of the term at which the judgment is rendered; but judgments by confession and judgments rendered at the same term at which the action is commenced shall bind such lands only from the day on which such jUdgments are dered." ' As the aGtion in judgment of Aultman v. Van Slyke was dered was commenced before the January term, the plain import of the language of this section carried the judgment lien ,back to the first of the term, and to a date before the conveyance of Van Slyke. This section is identical witll those foun(i in the statutes of Ohio arid Kansas, and has by the courts of those st;ates, as well as of this, received a uniform atruction. Sank v. Baldwin, 3 Ohio, 65; Jackson v. Luce, 14 Ohio, 514; Da'1Yi8 v. Mesaenger, 17 Ohio S.t. ,231; Ki8er v. Sawyer, 4 Kan. 593; Millf:r v. Finn, 294; Colt v. Dubow, 7 Neb. 393. In this last Cllse the court uses this language: "The 1'ule'will not be questioned that. under our. statutes relating to, jUdgment Jiens, aU judgments rendered during the term in actjons commenced prior "are, liens on all the lands of the debtor, within the county from ' the first day of term." this These authorities, especially those froD;1 the: suprewe court state, construing the effect of one of its statutes, puts the question. at rest. The second question is this: Conceding that the judgment was no operative lien so longus Van Slyke continued in the occupation of the premises as a homestead, did it become living andope,rative at the time it ceased to be his homestea.d? This is a matter depending entit;eljr. upon the statutes of Nebraska, in whose construction it is the duty of this court to follow the decision of the supreme court of the state. That. the matter of exemption is determined by the law in force at the time of making the 'contract, is in accordance with the general rule prevailing in respect thereto affirmed by that court in Dorrington v. Myer8, 11 Neb; 388,9 N. W.Rep. 555. The contract upon which the judgment was rendered was entered into in 1878. In 1875 the legislature passed a homestead statute, (Sess. Laws 1875, p. 45.) The first section, defining the extent,of the exemption,provides for such exemption "so long as the same shall be owned and occupied by the debtor as such homestead." Construing that statute, the supreme court has held that a judgment is a lien upon a homestead, dormant while the homestead continues, but living and operative so soon as by conveyance or otherwise the homestead occupation is abandoned. Bank v. Carson, 4 Neb. 501i Dorrington v. Myers, fmpra. In 1877, by an act approved February 13th, the legislature amended sftid section 1 of the act of 1875, but did not by such amendment repeal or modify the provisions as to the duration of the homestead exemption. Of course the same construction would still have to be put upon the statute, and if that was the entire legislation of the year there would be
of
890
no room for question. But, on the nineteenth of February, s,ix days tbereafter, the legislature enacted a new statute, which, not in terms purporting tb'repeal any existing legislation, was taken largely if not entirely from'the statutes of Iowa. In Lamb v. Shays, 14 Iowa, 568, the Bupremecourt of that state had construed its statute as authorizing a judgment debtor to convey his homestead free frOm the lien of a judgment; and the complainant rests upon the familiar doctrine that where one state adopts the statute of another it adopts it with the settled construction placed upon it by the supreme court of the state,frorn which it is taken. I do not find that the SUpreme court of Nebraska has passed upon the question now presented; perhaps 'may never baveto, as in 1879 the homestead law was substantially changed. I do not ',doubt the force of the rule upon whiCh rests, but am constrained to think it not operative in this ,case. The first section of the act of February 19, 1877, reads: "That wbere there is no special declaration of the statute to the contrary, the homestead of every family, whether owned by the husband or wife, is exempt from judicial sale." In Iowa there was no other statute, and of course full and sweeping fOTce was given to this broad language by the supreme court of that state ; but in Nebraska there was a statute, not in terms repealed by this act, which limited the homestead exemption to the duration of the homestead occupation, and by which a judg-' ment rernaineda lien though dormant during such occupation. There was therefore within the terms of thiil section a special declaration of the, statute to the contrary ; one limiting the sweeping effect of its general language. A similar observation maybe made upon a subsequent section Upon which the supreme court of Iowa placed much stress, to-wit, the one authorizing a debtor to change the limits of his homestead by changing metes and bounds, or to change it entirely, for the section contains this proviso, that "such changes shall not prejudice conveyances or liens made or created' previously thereto. " Now, if, as held by the supreme court of Nebraska, a judgment is a lien upon the homestead, dormant only while the homestead continues and springing into life and force when the homestead occupation is abandoned, then this section authorizing a change of homestead must by its terms not prejudice this judgment lien. I think, therefore, the abandonment of the homestead by Van Slyke operated to revive the dormant lien of this judgment. It follo'ws,therefore, without considering the third question, that the dmllurrer to the bill must be sustained. If complainant thinks she can make a better case she may take leave to amend her bill by the July rules.
.NEWTON
v.
JOSLIN.
891 and others.
NEWTON
and others
11. JOSLIN
(Oircuit Oourt, D.Oolorado..May 24, 1887.) JUDGMENT"":'SETTING ASIDE IN EQUITY-CO:RRffi..rrON OF JUDGE.
The trial went to the office of the defendant's counsel to notify him to be prMent In court at a certain hour, when he would discharge a hung jury, but merely sent a message to the same to the plaintiff's counsel. On the second trial, which was heard without a jury, he spoke harshly to the . plaintiff for a formal omission bv her, when taking the oath, and he decided the case in favor of the defendant, upon the conclusion of one argument for the plaintiff,without hearing for the defendant or further argument for plaintiff from her prinCIpal counsel. The defendant's counsel was the seen durilig the progress of the case in the judge's chambers court'room; where he WlUl w;aiting for court to open. Held, in a SUIt .in equity by the plaintiff to set the judgment aside, because of the corruption of the judge, that these facts showed not even the slightest misconduct upon his part.
In EqUIty. T.A. Greim andH, B. Johnson, for complainants. T. D. W. Yonley and N. Stevens, for defendants. BREWER, J., (HALLETT, J., concurring.) The facts in this case are as follows: In the fall of 1883, Mrs. Newton, one of the complainants, was the owner·of a ranch near the city of Denver, which was subject to two liens of $6,000. Negotiations were had between her, her husband acting as her agent, and one E. F. Lamb, which resulted in an agreement for the conveyance of this ranch at an agreed price of $15,000; purchaser to assume the payment of the liens of $6,000, and to pay her the bal.ance in dry goods. In pursuance of this agreement, a deed was made by her and.her husband to Mrs. Vira Lamb, the wife of E. F. Lamb. The dry goods, which were packed in boxes stored in a warehouse in Denver, were delivered to her, and by her disposed of at private sale and by auction. Within 14 days after this conveyance, Mrs. Lamb and her busband conveyed the land to J. Jay Joslin, who thereafter conveyed it to the Arapahoe Land & Cattle Company. As a matter of fact, Joslin was the owner of these dry goods, and Lamb in the transactions was acting simply as his agent. Mrs. Newton, on examination, found the goods to be far from such as she claims they were represented to be. Nevertheless she sold and disposed of them as heretofore stated. She daims that she was ignorant of the fact that Joslin was principal, but supposed all the time that the goods belonged to Lamb, and that, after she had discovered the inferior quality of the goods, she instituted no suit, because she found that Lamb was insolvent; but, aiter some months, ascertaining that Joslin was the real party in interest, she commenced an action against him in the district court of Arapahoe county for a breach in warranty of these goods. Answer was filed, and the cause went to trial, which resulted in a verdict in her favor. The judge of that court set aside the verdict. Thereupon she dismissed that action, and commenced a similar action the superior court of Denver, in which