Davis v. Randall

McFarland, J. In August, 1893, there were pending in the superior court two certain actions, in each of which the appellant here, Davis, and the respondent,' Mary J. Randall, were the main contestants.

One of these actions was brought in the name of E. C. Vancil, to foreclose two certain mortgages upon the premises described in the complaint, one executed October 19, 1883, by the defendant, Nicholas W. Randall, who was then the owner of the premises, to one A. Montgomery to secure a promissory note made by said Randall to said Montgomery for the sum of nine thou[14]s ind dollars, with interest, and the other a mortgage upon said premises, executed October 1, 1884, by said Randall to said E. C. Vancil, to secure a promissory note made by said Randall to said Vancil for the sum of five thousand dollars, and interest. The said mortgage to Montgomery had been assigned to said Vancil before the commencement of this suit; and during the pendency of the action the said Davis was substituted as plaintiff in place of said Vancil, upon a showing that said Vancil had assigned both of said mortgages to said Davis. In said action the said Nicholas W. Randall made default; but the said Mary J. Randall filed a lengthy answer, in which, after a general denial, she made a great many averments of matters in defense, but the only averment of the answer necessary just now to be noticed was that she held a homestead to the extent in value of five thousand dollars upon the mortgaged premises which she claimed to be superior in right to the said mortgages. The court found and decreed that the said mortgages sought to be foreclosed were subordinate and subject to the said homestead right; and from the judgment the said Davis appeals. He also appeals from an order denying a motion for a new trial. Said appeal is numbered in this court 178, and is the one in which this opinion is written.

The said other action then pending was a partition suit by the said Mary J. Randall, as plaintiff, against Nicholas W. Randall, J. T. Davis, and others, in which she averred that she held a homestead interest to the extent in value of five thousand dollars upon the premises described in said mortgages, and also an undivided interest in the rest of said premises, and that said Nicholas W. Randall was the owner of the undivided one-half interest of said premises not covered by said homestead. She prayed to have her homestead to the value of five thousand dollars set apart to her out of the said premises, and also that she have awarded to her the undivided one-half of the rest of said land. To the complaint the said Nicholas W. Randall and J. T.