40-103. Homestead; exemption; when inoperative.

419 words·~2 min read·/ne/chapter-40/40-103

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

The homestead is subject to execution or forced sale in satisfaction of judgments obtained

(1)on debts secured by mechanics', laborers', or vendors' liens upon the premises and

(2)on debts secured by mortgages or trust deeds upon the premises executed and acknowledged by a claimant.

1. Lien

2. Exceptions

3. Constitutionality

1. Lien

Lack of statutory acknowledgment to an improvement mortgage on homestead does not preclude enforcement of mortgage. Miles Homes, Inc. v. Muhs, 184 Neb. 617, 169 N.W.2d 691 (1969).

Homestead is subject to debts specified in this section. Schroeder v. Ely, 161 Neb. 262, 73 N.W.2d 172 (1955).

Fine and costs imposed for criminal offense create lien on homestead of convict and homestead is subject to sale under execution issued on such judgment for fine and cost. Mancuso v. State, 123 Neb. 204, 242 N.W. 430 (1932).

Married man informing lender that he intended to use borrowed money to pay for homestead is not sufficient to entitle lender to lien. Engaard v. Schmidt, 103 Neb. 369, 171 N.W. 905 (1919).

Purchase money mortgage is valid as against homestead claim. Peterson v. Fisher, 85 Neb. 745, 124 N.W. 145 (1910).

Judgment for alimony is lien on homestead, title whereof is in husband. Best v. Zutavern, 53 Neb. 604, 74 N.W. 64 (1898).

Homestead is subject to sale on mechanics' lien. Phelps & Bigelow Windmill Co. v. Shay, 32 Neb. 19, 48 N.W. 896 (1891).

2. Exceptions

A vendor's lien is one of the exceptions to homestead statute. Corn Belt Products Co. v. Mullins, 172 Neb. 561, 110 N.W.2d 845 (1961).

Exceptions are set forth which permit sale of homestead. Ehlers v. Campbell, 159 Neb. 328, 66 N.W.2d 585 (1954).

Exceptions referred to in section 40-117 are mechanics', laborers', and vendors' liens, and mortgages duly executed. Judson v. Creighton, 88 Neb. 37, 128 N.W. 651 (1910).

Provisions of civil code relating to exemptions have no application to property exempt as a homestead. Fox v. McClay, 48 Neb. 820, 67 N.W. 888 (1896).

As in the case of a mortgage, there is no homestead exemption for debts secured by a trust deed, foreclosed in the same manner as a mortgage, and executed and acknowledged by both husband and wife. Travelers Ins. Co. v. Nelson, 4 Neb. App. 551, 546 N.W.2d 333 (1996).

3. Constitutionality

This section neither contravenes 11 U.S.C. sec. 522(f)(1) nor violates Neb. Const., art. I, sec. 3, or art. III, sec. 18. Federal Land Bank of Omaha v. Blankemeyer, 228 Neb. 249, 422 N.W.2d 81 (1988).