It may be shown in mitigation of damages that the attached property has been returned to and accepted by the plaintiff: Lyon v. Yates, 52 Barb. 237; or that a valid attachment for the same cause or debt was subsequently sued out: Otis v. Jones, 21 Wend. 394; Wehle v. Spelman, 25 Hun, 99; Melton v. Troutman, 15 Ala. 535.

By Greenleaf it is stated that the rules as to damages in these cases are those which will be found applied to all other cases of malicious prosecution, and he also states what these are: See 2 Greenl. Ev., sec. 456.

THE PRINCIPAL CASE IS CITED to the point that in order to justify a recov ery upon the attachment bond, it must appear not only that the ground alleged for the suing out of the attachment does not exist, but that the defendant had no reasonable cause to believe it existed: Nordhaus v. Peterson, 54 Iowa, 69, 71. In Vorse v. Phillips, 37 Id. 428, it is held that in an action for damages for the wrongful suing out of an attachment, the defendant may show in defense either, that he had good cause to believe the grounds stated for the writ to be true, or that they were true in fact. If true in fact, it would constitute a good defense, though at the time of the suing out of the writ he had not sufficient knowledge to constitute reasonable ground for believing them to be true. And the principal case is explained as not in conflict with this doctrine.

DENEGRE V. HAUN.

[14 IOWA, 240.]

DELAY BY CREDITOR IN ENFORCING DEBT CONTRACTED BEFORE PASSAGE OF HOMESTEAD LAW, which debts, the law provides, may be satisfied out of the homestead after exhausting the other property of the debtor subject to execution, does not prevent the creditor from seizing the homestead, if at the time of his levy the judgment debtor had no other leviable property, notwithstanding after the maturity of the claim or during the pendency of the judgment lien the debtor had abundance of other property, which in the mean time is disposed of either voluntarily or by judicial sale.

STATUTORY PROVISION THAT OTHER PROPERTY OF DEBTOR SHALL BE EXHAUSTED in satisfaction of debts antecedent to homestead law, before resort is had to the homestead, is directory merely, and a failure to observe it does not affect the title of a purchaser of the homestead at the judicial sale. Per Lowe, J.

ACTION of right by Denegre, who claims the property under purchase at judicial sale under his judgment against the defendant Haun, who claims the property as a homestead. The opinion states the case.

Grant and Smith, for the appellant.

Cook and Drury, for the appellee.

By Court, LowE, J. The prime and chief difficulty in this case is in separating from it the mass of foreign matter and questions in which the learning of counsel has invested it.

The real points in the case are few, simple, and by no means difficult of determination. The action is right, founded upon a title derived from a judicial sale. Counsel for the defense introduce and press in argument a number of collateral questions which have no appropriate place in the cause, and which we may dispose of in limine.

For instance, it is stated that the judgment under which, and to satisfy which, the property was sold, was founded upon two other judgments obtained in the years 1847 and 1848; and that these judgments were therefore merged in the latter, and the lien created upon the property of the defendant, by virtue thereof, is discharged. Conceding this to be the legal consequence of such a proceeding, we ask, what of it? How does it benefit the defendant? No question of liens, or the priority of liens between creditors, is made or can arise in this case. Again, the question whether the homestead law affects the contract, or pertains alone to the remedy, comes in for a large sharge of the discussion. The unimportance of this question is apparent from the fact that the law is framed to save all antecedent debts. Still again, it was argued that in 1852 the defendant Haun mortgaged all his property, including that now in controversy, to one Milligan, who assigned to one Thatcher; that subsequently, in foreclosing this mortgage, Denegre, with a large number of other encumbrancers, were made parties; that Denegre, the plaintiff in this suit, failed to appear, but made default, and a judgment of foreclosure was entered, and this circumstance is supposed to have concluded Mr. Denegre in some way, but in what way and to what extent is not specifically stated. Certainly it did not supersede his judgment or render it nugatory. It may have had the effect to postpone it to that of the Milligan-Thatcher decree. But this is no reason why Denegre should not have his judgment satisfied, if he can find property liable to be seized. And so with regard to some other collateral questions equally remote and immaterial, which it is not necessary to refer to. The land in controversy was sold by the sheriff on an execution which had regularly issued upon a judgment rendered in favor of the plaintiff against the defendant, on the nineteenth day of September, 1854. The judgment, levy, and sheriff's deed, being regular or at least unimpeached, the purchaser had a right to depend upon these, and in exhibiting the same on trial, makes for himself a prima facie right to recover in this The defendant, however, claims that the locus in que

case.

AM. DEC. VOL. LXXXI-31

was his homestead, and therefore exempt from levy and sale. The record shows that the debts for which the judgment was rendered were contracted prior to the passage of the homestead law. In such a contingency, the said law declares in terms that the homestead may be sold on execution, to supply a deficiency remaining, after exhausting the other property of the debtor which is liable to execution.

The defendant, anticipating perhaps that he would not be able to protect his homestead from the payment of antecedent debts, places his defense, especially in argument, chiefly upon the ground that the officer did not first exhaust the other property of the defendant. But we think this position is unsustained by the facts in the record. At the time of the issuing of plaintiff's execution, under which he now claims title to the premises in controversy, it is conceded that there were unsatisfied judgments against the defendant to the amount of some thirty thousand dollars; that some of these judgments were anterior, and some subsequent in point of time, to the date of plaintiff's judgment, rendered in September, 1854; that on some of these judgments executions had been returned nulla bona, and that a similar return had been made on two executions that had previously issued upon plaintiff's last judgment; that the property of defendant, subject to execution, had been sold by Milligan, under his mortgage, given in 1852 to secure the payment of $8,262, and the judgment of Doan, King, & Co., obtained in the same year; that the facts disclosed by the record show that Haun had no property upon which a levy could be made at the date of plaintiff's execution, except, perhaps, eighty acres, of which the forty acres now in controversy was a part; and the other forty, agreeably to the return on the execution, was sold first, without obtaining a sufficient amount to satisfy the debt.

Admitting all this to be true, the defendant nevertheless contends that the judgment under which the plaintiff sold and purchased the property was founded on two other judgments, rendered in 1847 and 1848, upon promissory notes executed and delivered in 1846; that they operated as liens upon all the real estate which he then had; and that although he had an ample amount to satisfy said judgment, aside from his homestead, the plaintiff neglected to levy upon and exhaust the same; that a failure to do so now precludes him, in law, from selling the homestead, although his claim may antedate the law granting the same. This ground of defense possesses

little merit, and derives no support from the law. It is true, in our opinion (as held in the case of Purdy v. Doyle, 1 Paige Ch. 558), the plaintiff lost his lien under his first judgments by the character of the proceedings which he adopted in obtaining his last judgments, on the 19th of September, 1854. But this is an immaterial circumstance. He is in no worse condition thereby than if he had brought no suit whatever on his notes till September, 1854; and would it be said in that event that a failure to prosecute an antecedent claim to judgment, at maturity, so as to subject any personal property or real, which the debtor might have apart from the homestead, to its satisfaction, would impair the creditor's right to go upon the homestead? This effect does not and ought not to follow such delay. The indulgence thus granted may affect the rights of the creditor, but it furnishes no ground of complaint to the debtor, who, taking advantage of the delay, sells or mortgages the property, and pockets the proceeds; or it may be that it is taken to satisfy other encumbrances against him. The plaintiff's judgment being valid, founded upon a claim antecedent to the passage of the homestead law, creating a lien that was still existing and unimpaired, he does not, by delay, lose his right to seize the homestead, if at the time of his levy the judgment debtor had no other property out of which the execution could be satisfied, and that, too, notwithstanding after the maturity of the claim, or during the pendency of the plaintiff's judgment lien, the debtor had an abundance of other property for that purpose. These views, we think, are sustained by a fair construction of our statutes, and derive support from the following authorities: Benner v. Phillips, 9 Watts & S. 13, 18; Addams v. Heffernan, 9 Watts, 529; Wells v. Baird, 3 Pa. St. 351; and Turner v. Lawrence, 11 Ala. 426. The foregoing exposition of the questions made disposes of this case adversely to the defendant, and the judgment will necessarily have to be reversed and remanded.

There is another principle, however, suggested and discussed by counsel for the appellant, which lies at the bottom of this case, is involved in the assignment of errors, and upon which the writer of this opinion believes the decision of the case at bar should be made mainly to turn. In alluding to it, I speak for myself, and not for my associates, who desire to express no opinion thereon at present, believing it unnecessary to do so. I think otherwise, and will briefly state the point.

The power being expressly granted to sell the homestead to

satisfy antecedent debts, the non-observance of the directory part of the law by the officer, in exhausting the other property of the debtor first, is an immaterial circumstance in this controversy, and if it was not done, it would not, in this collateral proceeding, have the effect to vitiate the plaintiff's title, nor could it amount to a legitimate defense in an action of this kind. This precise principle or question of practice was settled by this court after a careful review of all the authorities (which were fully quoted), in the case of Cavender v. Smith, 1 Iowa, 307, upon a statute somewhat similar, and equally favorable to the defendant as the one under consideration. The execution law of 1839 required the sheriff to levy upon such part of the estate as the defendant should direct, and in the absence of such direction, the homestead of the defendant in the execution should not be sold, unless a sufliciency of other property could not be found; and in all cases, the real estate of the execution defendant should be exempt from levy and sale until the personal estate of such defendant should be first levied upon and sold, unless such defendant should voluntarily authorize the sale, upon execution, of his real estate.

The case just referred to was an action of right upon a sheriff's deed, involving the homestead of the defendants. Their defense was that the defendant had given no directions or authority to sell the real estate, but that at the time it was done there was a sufficiency of personal property to satisfy the execution, upon which the sheriff had failed to levy or sell, etc. The court held that the foregoing provisions of the statute were only directory to, and not inhibitory upon, the officer authorized to sell, so far as the rights of purchasers at such sales are concerned. And they laid down the rule that in an action of right, where the plaintiff claims under a sheriff's deed, made under the statute just referred to, the deed, if the officer had the power to make the sale, cannot be assailed by showing that the defendant in the execution, at the time of the levy, had other real estate and personal property; or that the property sold was the homestead of the defendant, and that he gave no directions to levy upon the property. If the officer failed to do his duty, the purchaser's title cannot be affected by the omission on the part of the officer, but such questions are and must be between the execution defendant and the officer making the sale.

The general principle, in all such cases, is very well stated in the case of United States v. Arredondo, 6 Pet. 729. “Where