
    Peck et al. v. Ormsby et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    December 28, 1889.)
    Homestead—Right to Mortgage.
    Code Civil Proc. H. Y. §§ 1397, 1402, 1403, provide that a lot occupied as a residence and designated as a homestead shall be exempt .from execution sale unless the value exceeds $1,000, in which case the lien of a judgment attaches to the surplus, and is enforceable in a creditors’ action; and in such action, “or in any other action affecting the title to an exempt homestead, ” the court, on a sale of the property, must marshal the proceeds. Section 1404 provides that. “ amortgage hereafter executed upon property so exempt is ineffectual” until the exemption has been canceled as therein prescribed. Held, that an exempthomestead valued at §1,200 might be mortgaged, but could not be sold under foreclosure, unless for more than §1.000, and that, if sold, §1,000 was to be paid to the mortgagor before the expenses of sale, and the amount adjudged to the mortgagee.
    Appeal from special term, Warren county.
    Action by Daniel Peck and another against John H. Ormsby and others to foreclose two mortgages. Prom a judgment of foreclosure and sale, defendant Ormsby appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      L. C. Aldrich, (J. M. Whitman, of counsel,) for appellant. S. & L. M. Brown, for respondents.
   Learned, P. J.

Section 1397 of the Code provides that a lot and buildings, not exceeding in value $1,000, occupied as a residence, designated as a homestead, shall be exempt from sale on execution. This exemption continues for certain times after the death of the owner, and ceases when the property is not used as a residence. Section 1400. The statute does not seem to forbid the owner to sell the property. Perhaps, too, he might sell the fee, subject to the homestead exemption. Section 1402' provides for the case where the value exceeds $1,000, making the lien of a judgment attach to the surplus; but this lien is to be enforced in a creditors’ action. The reason for this, doubtless, is that in such an action the rights of the parties can be adjusted as provided in section 1403. These two sections show that the legislature intended that the privilege of exemption should not extend beyond the, value of $1,000; and in the last section it is provided that, not only in such creditors’ action, but “in any other action affecting the title to an exempt homestead,” the court, on a sale of the property, must marshal the proceeds. Section 1404 provides the mode for canceling the exemption, and declares any other mode void. It then provides: “A mortgage hereafter executed upon property so exempt is ineffectual until the exemption has been canceled as. prescribed in this section.”

In the present ease, Ormsby mortgaged to plaintiffs his exempt homestead. On the foreclosure it was found as a fact that the property was worth over $1,200. It was adjudged that the land should be sold, but not unless the bid was more than $1,000; that, if sold, $1,000 should be paid to Ormsby before even fees and expenses of sale, or amount adjudged to plaintiffs. Ormsby appeals, and claims that the section declaring the mortgage ineffectual makes this mortgage void. We think the decision was right. The object of the clause relied on by appellant was to prevent any possible construction that the ■ mere execution of the mortgage was a cancellation or waiver of the exemption. It did not intend to prevent the mortgagor from mortgaging what was not exempt. Suppose the house and lot were worth $50,000. Is there any reason why the mortgagor might not mortgage the value above $1,000? If the plaintiffs were creditors on book account, they could sue on the account, and after judgment could, by creditors’ action, reach the surplus. But, having a bond secured by mortgage, if they had sued on the bond, they could not sell the equity of redemption, (Code Civil Proc. § 1432,) and therefore, perhaps, could not reach it by creditors’ action. Their only safe course, therefore, was to foreclose. The word “ineffectual” seems to have been chosen to express that the mortgage was ineffectual to cancel the exemption. It is not equivalent to “void,” for it will be seen that it is ineffectual only till the exemption has been canceled. Therefore, it is plainly only as to the exemption that it is ineffectual; and the judgment appealed from so treats it.

We need not consider what would be the effect of a mortgage expressed to be subject to the homestead exemption right of the mortgagor. ' Nothing of that kind is here. By mortgaging his land, Ormsby has rendered it necessary, in order to do justice to all parties, that the land should be sold. As he has not canceled the exemption, he retains his claim to $1,000 of the proceeds.

A suggestion is made that the instrument creating the exemption was not • in compliance with the Code, but the plaintiffs have not appealed. The judgment is affirmed, with costs.  