FARWELL V. KERR.
FARWELL and others v. KERR and others.
(Circuit Court, 8. D. Iowa. June 26,1886.)
BILL-COSTS-HuSBAND AND'WIFE-CONVEYANCE OF HOMESTEAD PROPERTY.
Where a wife joined her husband in the mortgage of store property, to onetwentieth of which she held the legal and equitable title, but previously required him to convey to herself several pieces of property, one of which was ihe west half of the block occupied by them as a homestead, as consideration therefor and on the ground that her husband received from her father after her marriage considerable money used in the building of the store, and the judgment creditors filed a bill as complainants to set aside said con veyance of the husband to the wife, held that, under the peculiar circumstances of this case, the conveyance be sustained as to the homestead, and be decreed void as to the remainder of the property; that each party pay the costs of its own testimony, and the other costs of the case go against the defendants.
Creditors' Bill. Cummins et Wright, for complainants. L. Kinkead, for defendants. BREWER, J. This is a bill filed by complainants, judgment creditors of A. J. Kerr, to set aside a conveyance made by him to his wife, Julia Kerr, and to subject the property thus conveyed to the p'l.yment of their judgments. The law governing transactions of this kind is well settled in the federal courts. Humes v. Scrug,qs, 94 U. S. 22; Seitt v. M'itchell, ld. 580. The testimony is voluminous, and in many respects indefinite and unsatisfactory. Comment in detail would be useless, and I content myself with a statement of my conclusions. The judgment debtor had been a merchant. He became insolvent, and transferred all his property by mortgage or conveyance. He mortgaged the lot upon which his store building was situated to a bank to secure a debt to it. His wife joined in this mortgage. She held the legal and equitable title to one·twentieth of this property. Before she would execute this mortgage she required a conveyance of other property-that now in controversy-to herself. A part of the property thus conveyed was the W. t of block 13, Walter & Roach's addition to Knoxville. This entire block was occupied by Mr. and Mrs. Kerr as their homestead. Whether the entire block was exempt is a question under the evidence. The validity of this conveyance is claimed on the ground that by the mortgage she parted with her own property; that in their early married life her husband received from her father considerable money and property; and that he used it in the building of the store on the lot mortgaged to the bank under an arrangement with her that when the buildil)g was completed he would convey an undivided half of the entire property to her. Hence she claims that she was equitably the owner of one.half the store property, and that the value of this was about the same as the value of
the property conveyed to her; that her husband reoeived something from her is olear, but what amount, and under what circumstances, is not satisfactorily disclosed. Neither is the testimony satisfactory as to the alleged agreement about the conveyance of onehalf of thtl store property. The conveyance in controversy, therefore, to the wife, cannot be sustained as a whole. It should be sustained in part, for she unquestionably owned the one-twentieth ofthe store. Taking that into account, as well as the fact that her did receive something from her father, and also considering the doubt as to whether the entire homestead be not exempt, I reach this conelusion: (1) That the conveyance be sustained as to said W. t of l;>lock 13, the part of the homestead; (2) that it be decreed void as to the remainder of the property; (3) that each party pay the costs of its own testimony; (4) that the other costs of the caStl go against the defendant.
(OiJreuit Oourt, D. Oregon. August 18, 1886.)
DISCHARGE OF SURETY BY EXTENSION OF TIME TO DEBTOR.
What constitutes an extension of time by a creditor so as to discharEe a surety considered, and the former ruling in this case adhered. to. 28 Fed. Rep. 17. · A mortgage given to secure a note is a mere incident thereto. and a payment on the latter which has the effect to prolong the time within which a suit may be brought thereon has the same effect on the former.
STATUTE OF LIMITATIONS.
S. SAME. Payment on a debt evidenced by 8 note and secured by a mortgage, under section 25 of the Code of Civil Procedure, is a payment on the latter as well as the former, and marks the point of time in the one case as well as the other from which the statute of limitations runs. . 4. SURETY. A mortgagor of property to secure the note of another is so far a surety for such other, and a payment by the maker of the note has the same effect on the mortgage as if the mortgagor was a joint maker of the note.
On Rehearing. Suit to enforce the lien of a mortgage. O. E. S. Wood and Gem'ge H. Willia,ms, for plaintiff. Wm. H. Holmes, for defendants. DEADY, J. On the nineteenth uIt. an oplDlOn was announced in this case in favor of the plaintiff. Thereupon the defendants, Edward C. and Frank R. Cross, applied for a rehearing on the questions of the extension of time by the creditor and the statute of limitations, which was had. On the first point it is insisted that an agreement for the extension of time may be implied from circumstanoes, including the action of the parties thereunder; citing Brandt, Sur. § 304. Doubtless this