135 P. 314 | Or. | 1913
delivered the opinion of the court.
We will first dispose of the question of the lien against the homestead. Section 221, L. O. L., pro
1. It has been held by this court that the homestead is an exemption only in favor of those entitled to it: Mansfield v. Hill, 56 Or. 400 (107 Pac. 471, 108 Pac. 1007).
2. It is also said that, where the statute creating the homestead exemption contains no exception in favor of a mechanic’s lien, there can be no lien on the homestead : Boisot, Mechanics’ Liens, § 135. In 21 Cyc. 518, it is said that, if the homestead laws contain no exception in favor of debts created in making improvements, the court can make none, and the homestead is liable only for such a lien when the exemption is waived in favor of it, which must be by the signature of the husband and wife to the contract: Boisot, Mechanics’ Liens, § 141; 21 Cyc. 519; Roberts v. Riggs, 84 Ky. 251 (1 S. W. 431); Fallihee v. Wittmayer et al., 9 S. D. 479 (70 N. W. 642); Lippencott v. York, 86 Tex. 276 (24 S. W. 275); Lignoski v. Crooker, 86 Tex. 324 (24 S. W. 278, 788). Execution upon judgment for the labor or material improvements on a homestead are within the class from which the homestead is exempt.
3. The exemption, however, may be waived or relinquished by abandonment of the homestead, or by a conveyance, as held in Hansen v. Jones, 57 Or. 416
4. At the hearing some discussion was had as to plaintiff’s right to a lien upon the property over and above the homestead value of $1,500; but there was no issue tendered as to that question. Plaintiff has tried the case upon the theory that the homestead is not exempt from liability upon a mechanic’s lien. It was conceded, at least at the hearing, that the property is the homestead of the defendants, and there was no allegation that it was worth more than $1,500, nor evidence offered upon that question. What plaintiff’s remedy might be in a case like this, if the homestead were of greater value than $1,500, it is not necessary now to determine. By Sections 224, 225, L. O. L., the burden as to these questions seems to be upon the plaintiff. The question of the value of the homestead was not presented. Therefore plaintiff has no remedy in this proceeding.
The decree is reversed and the suit dismissed.
Reversed: Suit Dismissed.