168 P. 762 | Utah | 1917
Lead Opinion
The plaintiff commenced this action to foreclose a mechanic ’s lien, which he had obtained in his own right, and also to foreclose two assigned liens; but, since the assigned liens are of the same class as plaintiff’s lien, no reference will hereafter be made to them. The liens were sought to be foreclosed against premises owned by the defendant Jesse N. Jensen, which, at the time the action was commenced, were occupied by him and Lola Jensen as husband and wife. The complaint is in the usual form in such actions. The claims of the other
Jesse N. and Lola Jensen filed an answer to the complaint, in which they admitted the allegations therein contained, but set up an affirmative defense, in which they claimed the premises described in the complaint as a homestead, and, for that reason, exempt.
The court found the facts, which findings are not assailed, substantially as follows:
That the defendant Jesse N. Jensen is the owner of a certain parcel of ground, 12x18 rods; that on the 28th day of June, 1915, the plaintiff and said Jesse N. Jensen entered into a contract whereby the plaintiff agreed to perform all the labor and to furnish all the materials to complete the brick work on a dwelling erected on the premises aforesaid for said Jensen, and for which labor and materials he agreed to pay the sum of $513.10; that the plaintiff complied with the terms of said contract, and completed the said work on the 27th day of July, 1915; that within the time required by our statute the plaintiff filed his notice of claim for a mechanic’s lien against said premises as provided by law; that at the time- the contract was entered into and when the labor was performed and the materials furnished as aforesaid, the defendent Jesse N. Jensen was a single man and not the head of a family; that thereafter, on the 29th day of August, 1915, said Jesse N. Jensen married the defendant Lola Jenson and by reason thereof became the head of the family, and that said defendants, as husband and wife, “since the completion of the said building and at the time of the beginning of this action, had taken up their abode in the dwelling house hereinbefore mentioned, and selected the same as their homestead, and they still reside upon the said premises and claim them as their homestead”; and that the value of said premises, including said dwelling, does not exceed the sum of $2,000, which is the amount defendants are entitled to as a homestead exemption under our law. The court also found that the defendants have not paid the plaintiff the amount due on said contract or any part thereof.
The court made conclusions of law that plaintiff was
The precise question here presented has never been determined by this court. The question for decision is whether a single man, who is not the head of a family, and who is not entitled to a homestead exemption, and who enters into a contract for the purpose of improving and enhancing the value of his property by erecting a dwelling house thereon, and after the labor and materials necessary to complete said dwelling have been performed and furnished, and the contract has been fully performed, and the right to claim a mechanic’s lien under our statute is complete, may, by entering into the marriage relation and thereby becoming the head of a family, claim the premises as exempt and immune from a mechanic’s lien, and thus defeat the enforcement of such lien. In other words, may a single man, after entering into a contract to improve and enhance the value of his property, and after receiving the full benefits of such contract, the performance of which, under our statute, entitles the person who performs the same to a mechanic’s lien on such property, change his status, by entering the marriage relation and thus becoming the head of a family, and claim such property as a homestead, and, as such, exempt and immune against a mechanic’s lien?
It is not disputed — indeed, it is conceded — that at the time the contract was entered into, as well as at the time when it had been fully performed, the premises in question, by reason of the status of the defendants, were subject to our mechanic’s lien law, and that the defendants, or either of them, could not then have claimed the property as a homestead, or as being immune against the mechanic’s lien of the plaintiff. This
“The legislature shall provide by law for the selection by each head of a family an exemption of a homestead, which may consist of one or more parcels of lands, together with the appurtenances and improvements thereon, of the value of at least fifteen hundred dollars, from sale on execution.”
That provision, it is held in Lumber Co. v. Vance, 32 Utah 74, 88 Pac. 896, 125 Am. St. Rep. 828, constitutes both a mandate to and a limitation upon the Legislature; a mandate requiring that body to pass a proper law to the effect that each head of a family in this state may select and claim a homestead of a certain value, and a limitation that such homestead shall be exempt “from sale on execution.” What the Constitution thus enjoins is that a certain homestead exemption shall be provided for each “head of a family.” Persons who do not possess that status are necessarily excluded from the foregoing constitutional provision, and they are likewise excluded from the statute which was passed by the legislature of Utah in obedience to the foregoing mandate. At the time when the contract to improve the premises in question was entered into, and at the time it had become fully performed, neither of the defendants was married, and neither of them had acquired the status which entitled them to claim a homestead exemption under our law. Upon the other hand, at the time when the contract was entered into, and at the time it had been fully performed, the property was subject to a mechanic’s lien. May the owner of property, after entering into a contract for labor and materials to improve the same, and after obtaining the full benefits of the contract, change his status, so as to defeat the right to a mechanic’s lien on the improved property, the right to which lien was complete when the changed status was effected? We think not. If a single man may change his status by marriage, he may also do so in any other manner, if such a change results in constituting him the head of a family. He may thus adopt an infant child, who is dependent on him for support, or he may assume the care of
From all that has been said it is clear that the defendant Jesse N. Jensen possessed no right to claim a homestead exemption when he entered into the contract for the labor and materials with which his property was improved and enhanced in value. Neither the Constitution nor any statute of this state then made his property immune against any debt he might incur. He could have incumbered his property in any way he saw fit, and his status afforded him no protection. All that is held in the Vance Case is that the head of a family, who enters into a contract when the status defined by the Con-situation exists, is not prevented from claiming his homestead exemption against one who claims a mechanic’s lien thereon. That decision is based on the constitutional provision that the homestead of the head of a family shall be immune from ‘ ‘ sale on execution. ’ ’ This is logical, because in that case both the status of the owner and the character of the property, both of which are necessary to the right of exemption, existed at the time the contract for labor and materials was entered into, and the labor was performed and the materials furnished, and, that being so, under our 'statute (Comp. Laws 1907, section 1155), the owner, being married, in no event could incumber the homestead without the consent of his spouse. If a married owner were permitted to enter into a contract by which a mechanic’s lien could be successfully enforced against the homestead, he would be permitted to do indirectly what the statute says he may not do directly. If, in the case at bar, Jesse N. Jensen had executed a mortgage on the property in question at the time he entered into the contract for the labor and materials, or at any time while he was single, and had squandered every dollar of the consideration, the mortgage
It is said, however, that a mechanic’s lien is purely a creature of statute; that it is a lien created by law. That is true. But that is also true of homestead exemptions. That right, too, is created by law, and, in our judgment, it is the duty of the courts to protect both rights. The right to the exemption is one of public policy, based upon the status of the claimant, while the right to a mechanic’s lien is based upon the highest principles of equity. If the owner of the property is married, or if he is the head of a family, then he who furnishes labor and materials to him to improve his homestead must take notice of the law that his right to claim the exemption is superior to the laborer’s or materialman’s right to claim a lien against the homestead. The laborer or materialman may thus protect himself by entering into a contract with both the husband and wife, and by that means may subject the homestead to his claim. If the owner is permitted to change his status, however, after he has obtained the labor or materials, and may then successfully claim the property as immune, he is permitted to perpetrate a fraud upon the laborer and material-man, and may thus obtain something for nothing. All this is not answered by the statement that under certain circumstances property may be claimed as exempt, even after execution has been levied and it has been noticed for sale. It is quite true that, where there is no lien on specific property, a person entitled to certain special exemptions may claim the exemptions at any time before sale. A mere cursory examination of our exemption statute, however, shows that all of those exemptions are specific, and relate to the character of the property and the occupation of the owner. Those exemptions, unlike the homestead exemption, do not, except in a limited sense, depend on the status of the claimant. In those exemptions there is no specific lien, as in case of a mortgage or
It is insisted, however, that under our Constitution and statutes a contract by which the property was indirectly pledged is unenforceable against the owner’s consent. We have spoken of a contract by which the owner indirectly pledges his property, because, under our statute, no mechanic’s lien can be claimed, except by virtue of a contract with the owner of the property or his agent, either express or implied. Comp. Laws 1907, section 1372. A contractor may bind the owner’s property in purchasing materials and in employing labor, upon the theory that he is the agent of the owner. If, therefore, a single man enters into a contract for labor or materials, or both, to improve his real property, and the labor is performed and the materials are furnished pursuant to the contract, the person who performs the labor or furnishes the materials, upon compliance with the statute, is just as much entitled to a specific lien against the property as though he had obtained a mortgage. The reason that such may not be done against a married person, who was such when the contract for the improvement was entered into, is clearly stated in Lumber Co. v. Vance, supra. True, no claimant may enforce the lien unless he complies with the statutory provisions by which the lien is created. If, however, he does comply with those provisions, the lien is based upon the contract with the owner, and relates back to the performing of
The principle involved here is quite different from that which controls in cases where execution is levied on property generally. In such cases courts have frequently held that the exemption may be claimed at any time before the property is sold, and that the right to claim the exemption is determined as of the time when the sale is about to take place. In those eases, however, no question of special lien is involved, as here. In the case at bar the mechanics’ liens attached while the property was subject to such a lien and before Jensen had the right to claim the exemption. Here, as we have shown, the lien is based on Jensen’s contract and upon the statute. The statute entered into the contract, and was just as much a part of it as though it had been expressly set forth. In order, therefore, to permit Jensen’s claim to prevail in this case, we must set aside a lien which attached before Jensen had the right to claim the exemption and while the property was subject to the lien. In levying an execution on the debtor’s property generally no lien exists until a levy is made, and in those cases no exemption rights which affect any particular property are involved as in the case here. The decisions, therefore, in which it is held that the exemption may be claimed at any time before sale, have no application here.
While it is true that, ordinarily, the courts are not concerned with the policy of the law, yet it is not their duty to place a construction on any law “when another reasonable construction is permissible, ’ ’ which will permit the owner of property to improve it and to enhance its value at the expense of others. In our judgment, such a construction is not required by anything that is contained in the Constitution or in any statute of this state, nor by anything said in any decision of this court. We can find nothing in the Constitution, nor in the statute, which requires this court to so construe the law relating to homestead exemptions as to take the labor and materials belonging to one head of a family and give it to another, who was not entitled to the exemption when the work
As we view it, there is a great difference in principle between the claim of an owner of property who is the head of a family and entitled to a homestead exemption at the time he enters into a contract to improve his property, and who, at said time, may do nothing to bind or incumber his homestead as against his spouse, and an owner who, when he enters into such a contract, has no right of exemption and may legally bind or incumber his property, either directly or indirectly. In the first case, as held in Lumber Co. v. Vance, the owner may avoid a mechanic’s lien because of his status at the time of making the contract; but in the second case we can see nothing in the law why he, too, shall be permitted to claim a homestead exemption as against a contract which culminated into a valid lien at a time when the owner of the property had no right of exemption whatever. The injustice of such a holding is ’illustrated by the record in this case. Here Jesse N. Jensen, the owner, singles out one lien claimant and secures his claim by mortgage, while he refuses security to all other
The judgment is affirmed. Costs to respondent.
Concurrence Opinion
When this case was argued and submitted to the court, I had a strong impression, if not a conviction, that the judgment should be affirmed. The conflicting opinions of my Associates, Mr. Justice GIDEON and Mr. Chief Justice FRICK, left me in doubt, and impelled a more careful and painstaking investigation on my part, resulting in a conviction upon which I am now satisfied to rest my judgment.
This court has determined that our mechanic’s lien law, as against a person entitled to a homestead at the time the lien attaches, is unconstitutional. Volker, etc., v. Vance, 32 Utah, 74, 88 Pac. 896, 125 Am. St. Rep. 828. As against a person not entitled to a homestead at the time the specific lien attaches the law is not unconstitutional, and a homestead right acquired subsequent to the lien is, and should be, subject thereto. This proposition is, manifestly, in acord with common honestly as understood by honest people everywhere, and I believe it is sustained by the preponderance of judicial authority. Cyc., vol. 21, at page 513, says:
“According to the weight of authority, no homestead can be claimed if, at the time a lien attaches to the land, the debtor was not entitled to an exemption because he had not acquired the personal status giving him the privilege; but this rule is not universally followed and the contrary view is maintained in some jurisdictions.’’ (The authorities pro and eon are cited in the note.)
Boisot on Mechanics’ Liens, section 142, says:
*13 "But, where the laud is not a homestead at the time the lieu attaches, no subsequent act of the owner can create a homestead right superior to the lien.”
See, also, Phillips, Mechanics’ Liens (3d Ed.) sections 183a, 250, Bloom, Mechanics’ Liens, p. 455, and other authorities too numerous to mention.
I find nothing in our Constitution, statutes, or judicial decisions calling for a different rule. While I am in favor of the utmost liberality in favor of homestead exemptions, I think this court has gone far enough, especially in the Vance Case, supra, in which Mrs. Vance’s homestead was held exempt, even though she authorized the construction of the building. I, however, approve of the decision in that case, and think it is well sustained by judicial authority. There is more doubt as to whether the same would be true in the case of an ordinary judgment lien. As to that I express no opinion, because the question is not involved. My views upon this question are best expressed by Hon. D. N. Straup (then Chief Justice) in his opinion in the second appeal of the Vance Case (36 Utah 359, 103 Pac. 974, 24 L. R. A. [N. S.] 321, Ann. Cas. 1912A, 124), to wit:
“'Whatever liberality should be given the construction of our homestead exemption laws, they ought not to be so construed as to give the debtor the power by his own acts to deprive others of rights previously obtained in his property.” (Italics mine.)
I concur in the opinon affirming the judgment.
Dissenting Opinion
I regret that I cannot agree with the unanimous conclusions of my Associates on the question involved on this appeal. Without stating at length my reasons therefor, suffice it to say that, in affirming the judgment, this court, in my opinion, is enlarging the purposes and objects of Comp. Laws 1907, section 1385, by giving to mechanics’ liens rights not authorized by that section. A homestead exemption, when claimed by the head of a family, is a right guaranteed by the Constitution
I therefore dissent from the majority opinion.
