Henry C. Radbruck, appelle, v. First National Bank of Omaha, appellant, 95 Neb. 288

Fawcett, J. Plaintiff brought suit in the district court for Douglas county, to restrain defendant from selling lots 6 and 7, in block 1', in Lake Yiew Addition, in the city of Omaha, or from levying execution thereon.for that purpose, and to quiet plaintiff’s title against any and all claims of defendant bank against the property described, by virtue of a certain judgment which it had obtained against plaintiff’s grantor. The district court entered a decree as prayed, and defendant bank appeals. The petition alleges that plaintiff purchased the lots in controversy August 6, 1908, from one Henry A.

Wilson; that at the time of such purchase Wilson and his wife .and family were occupying the premises as their homestead; that the gross value of the property was $2,700, upon which there was a mortgage of $1,200; that plaintiff paid Wilson for the property $1,500, which it is alleged was the fair and full value of the property at that time, and assumed and agreed to pay the mortgage for $1,200; that the mortgage was executed September 17', 1906; that in the month of February, 1907, defendant bank obtained a judgment against Henry A.

Wilson in the district court for Douglas county for $1,950; that on May 20, 1911, defendant caused an execution to be issued land a levy to be made upon the property described; that the property was about to be offered for sale under such levy, to satisfy the judgment of the bank; that at the time of the rendition of-the judgment and for a long time prior thereto Wilson, with his family, had occupied, and at the time of the sale to plaintiff was occupying, the property as a home and the same constituted his homestead; that by reason of this fact the judgment referred to was not a lien upon the property; that if the property be sold under the execution the same will constitute a cloud on the title.

The defense relied upon here is stated by counsel in his brief thus: “Plaintiff alleged that the lots in controversy at the time of his purchase and at the time of the judgment were the homestead of Wilson.

The defendant denied this and claimed that Wilson was the only party who could make the claim of homestead, and alleged that, before the bank issued execution and caused the levy to be made, plaintiff had stated that, had he known of the bank’s judgment, he would never have purchased the property, and that, having taken this position, the bank altered its position in reliance thereon; that the plaintiff was therefore estopped from claiming that the property was a homestead, and thus shifting his position.” The evidence is undisputed that at the time the bank obtained its judgment Wilson, with his family, was occupying the property in controversy, consisting of two lots, as a homestead; that he did not own any other contiguous property; that the value of the property over and above the mortgage was less than $2,000; that he continued to occupy it as a home and was so occupying it at the time of the sale to plaintiff; that when the sale was consummated Wilson with his family moved, out, and on the same day plaintiff with his family moved in.

These facets clearly establish the homestead character of the property in Wilson at the time of the sale to plaintiff. Such being the fact, defendant’s judgment was not, at the time of the sale, a lien upon the property. A judgment while the premises are impressed with the homestead character is not a lien thereon, even after their sale and abandonment by the debtor. Horbach v. Smiley, 54 Neb. 217.

A purchaser of real estate consisting of not more than two town lots, held and occupied at the time of the conveyance as the homestead of the grantor, and which do not in the aggregate exceed in value the sum of $2,000, takes the same free from the lien of a judgment docketed prior to such purchase, but during the existence of the homestead right. Giles v. Miller, 36 Neb. 346; Corey v. Plummer, Perry & Co., 48 Neb. 481; Bank of Bladen v. David, 53 Neb. 608; Hoy v. Anderson, 39 Neb. 386. But, it is contended in effect, the deed from Wilson and wife to plaintiff did not convey or assume to convey the homestead.

The deed recites that the property described is sold “together with all tenements, hereditaments and appurtenances to the same belonging, and all the estate, title, dower, claim or demand whatsoever of the said Henry A. Wilson and Mary A. Wilson of, in or to the same, or any part thereof.” Then follow the usual covenants of warranty. This deed conveyed all interest of every kind which the grantors or either of them had in the property conveyed. Comp. St. 1907, ch. 73, sec. 50. The contention that Wilson was the only party who could make the claim of homestead is not sound.

All the plaintiff is asserting is, that at the time he bought the property from Wilson the bank’s judgment was not a lien upon the property because of the fact that at that time and at the time the judgment was obtained Wilson had himself impressed the homestead character upon it. What Wilson may have done after selling the property free from tlie lien of the judgment, in the way of establishing another home elsewhere, is immaterial. The next contention is that plaintiff is estopped from claiming that the property was the homestead of Wilson at the time of plaintiff’s purchase.

This estoppel is sought to be based upon the fact that, after plaintiff had purchased the property and had gone into possession of the same, a collector for the bank called upon plaintiff, told him that he represented the bank, and asked what was done about the judgment at the time plaintiff bought the place “or what was said about it;” that plaintiff said he knew nothing of the judgment, that the representative of the loan association that held the mortgage told him that the title to the place was clear, and said to defendant’s collector that he would not have bought the property had the fact of the judgment been brought to his attention.

It is said by counsel that, after this statement by plaintiff, defendant, relying upon what plaintiff had said, “altered its position, incurred the cost of issuing execution, making the levy, advertising the sale, and employing attorneys to protect its interests;” and it is argued that these facts bring the case within the rule, oft repeated by this court, that, “where a party gives a reason' for his decision and conduct touching anything involved in a controversy, he is estopped, after litigation has begun, from changing his ground and putting his conduct on another and different consideration.” Frerner v.

Dufrene, 58 Neb. 432. We cannot agree with counsel that this rule has any application to the facts here. What plaintiff said, when approached by the bank’s collector, falls far short of being a recognition of the validity of the judgment or a waiver of his right to dispute such validity. It amounts to no more than a declaration that if he had known of the judgment he would have avoided the possibility of his becoming involved in litigation, by refusing to purchase the property. The rule invoked does not apply. Finding no error in the record, the judgment of the district court is Affirmed.

Barnes, Rose and Sedgwick, JJ., not sitting.