3 Nev. 182 | Nev. | 1867
Lead Opinion
Opinion by
concurring.
In the month of March, 1866, appellants moved into a house which, with the land attached thereto, is now the subject of litigation. In September of the same year one Robert Woodburn brought suit against W. A. Hawthorne, and at the time of bringing suit sued out a writ of attachment and had it levied on this house and grounds. In December of the same year judgment was rendered in favor of plaintiff, and in the early part of the year 1867 execution was issued and the property previously levied on under the attachment was advertised for sale. In October, 1866, (after the attachment levied, but before judgment) the appellants filed a declaration of homestead on the property now in dispute. When the Sheriff advertised the property for sale the appellants filed their bill praying an injunction to restrain the sale, and claiming that the property was exempt under the Constitution and Homestead Act. The District Judge issued a temporary restraining order, and re
It is admitted by respondent that the property claimed is in every respect such as might have been claimed as a homestead if the declaration of intention to so claim it had been filed in time. The question to be determined by us is, whether the levy of an attachment gave the attaching creditor such a vested interest in the property as to deprive the appellants of the right to claim it as a homestead. The thirtieth section of Article IV of the Constitution provides:
“ A homestead, as provided by law, shall be exempt from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon; provided, the provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife; and laws shall be enacted providing for the recording of such homestead within the county in which the same shall be situated.”
At the first session of the Legislature held after the adoption of the Constitution a Homestead Act was passed. The first and second sections of that Act, which are the only ones throwing any light on this subject, are as follows :■
“ The homestead, consisting of a quantity of land, together with the dwelling house thereon and its appurtenances, not exceeding in value the sum of five thousand dollars, to be selected by the husband and wife, or either of them, or other head of a family, shall not be subject to forced sale on execution, or any final process from any Court, for any debt or liability contracted or incurred after November 13th, in the year of our Lord one thousand eight hundred and sixty-one. Said selection shall be made by either the husband or wife, or both of them, or other head of a family, declaring their intention in writing to claim the same as a homestead.*187 Said declaration shall state that they, or either of them, are married, or if not married, that he or she is the head of a family; that they or either of them, as the case may be, are at the time of making such declaration residing with their family, or with the persons under their care and maintenance on the premises, particularly describing said premises, and that it is their intention to use and claim the same as a homestead; which declaration shall be signed by the party making the same, and acknowledged and recorded as conveyances affecting real estate are required to be acknowledged and recorded; and from and after the filing for record of said declaration, the husband and wife shall be deemed to hold said homestead as joint tenants.”
“ Such exemption shall not extend to any mechanic’s, laborer’s or vendor’s lien, lawfully obtained ; hut no mortgage or alienation of any kind, made for the purpose of securing a loan or indebtedness upon the homestead property, shall be valid for any purpose whatsoever ; provided, that a mortgage or alienation to secure the purchase money, or pay the purchase money, shall be valid if the signature of the wife be obtained to the same, and acknowledged by her separately and apart from her husband ; nor shall said homestead property be deemed to be abandoned without a declaration thereof in writing, signed and acknowledged by both the husband and wife, or other head of a family, and recorded in the same office, and in the same manner as the declaration of claim to the same is required to be recorded, and the acknowledgment of the wife to such declaration of abandonment shall be taken separately and apart from her husband; provided, that if the wife be not a resident of this State, her signature and the acknowledgment thereof shall not be necessary to the validity of any mortgage or alienation of said homestead before it becomes the homestead of the debtor.”
The first point of discussion which arises in this case is as to what interpretation should be given to the phrase “ a homestead as provided by law,” which is found in the first line of the constitutional provision. The appellants contend that “ as provided by law” merely means of such size and value as the law may prescribe. That, as there -was already a Territorial law in existence which exempted a homestead to the value of five thousand dollars, no legis
It is difficult to determine which of these interpretations should he adopted. In this case it is perhaps not necessary to determine this question. Even taking the respondent’s interpretation, it is evident the Constitution intended that at all times the homestead of a family should be exempt from forced sale, except in a few enumerated cases. It is equally evident the Legislature intended to carry out this policy of exempting the homestead. If, then, it is the policy of the law to exempt the homestead of insolvent debtors from forced sale, certainly we should not hold that a creditor can defeat that policy by any act of his, unless the statute clearly gives that right, or clearly points out the contingency, upon the happening of which the debtor should lose the benefit of the exemption. Here the property was clearly a homestead in fact. If it lacked anything of being such a homestead as the law exempts, it was only the execution and filing for record of a declaration by the husband and wife, or either of them, that they had selected it as such. Upon the filing of such declaration the statute says it shall be exempt. It is hardly claimed by respondent that the existence of debts, or the actual insolvency of appellants at the time of filing, would have affected their right to select the homestead and claim the exemption. If, then, the prior insolvency of a party will not prevent his claiming the exemption, we see no reason why an attach
The point that the Judge, after granting the restraining order, directs the defendant to show cause why a perpetual injunction should not be granted, instead of making an order to show cause why an injunction should not be granted, is rather technical. Undoubtedly the proper practice is: first, a restraining order; second, on hearing defendant at chambers, an injunction; thirdly, a perpetual injunction on the final hearing. But a mere mistake in the wording of the restraining order is no ground for refusing the proper relief on the hearing.
Respondent contends that the Court below was right in refusing the injunction, because the complaint was defective in not stating that the plaintiffs had selected the property in controversy as a homestead, and caused the declaration of their selection to be recorded as required by law. In this respect the complaint is undoubtedly defective; and if that defect had not been cured by the answer, we would have been compelled to hold that the Court below was correct in refusing to grant an injunction on so defective a complaint. In this case the plaintiffs state distinctly all the facts necessary to entitle them to the relief sought, except the selection and recordation of the homestead claim. This fact they fail to state. Nor do they state any fact from which the Court could infer that the recordation of a claim had been made before levy of execution.
But the defendant states distinctly the date when the plaintiffs
This may be the correct general rule, but still the rule is not carried out in all its strictness. Both English and American Courts have frequently allowed the answer to aid the bill, so as to grant relief that they could not have granted if there had been no answer at all.
In a note to Daniels’ Chancery Practice, page 411, the editor uses this language: “ But when the facts stated in the bill are disproved, or are defectively stated, relief may be granted upon the facts stated in the answer.”
For this rule a reference is made to two Tennessee and two Kentucky cases. The Kentucky cases seem to sustain the text. The Tennessee cases we have not. In the case of Rogers v. Soutten, 2 Ken. 598; 15 Eng. Ch. R., the Court granted relief on a case made by the answer quite different from the one made in the bill. We conclude that Courts of Equity, under the old practice, would sometimes allow the answer to aid a defective bill. The seventy-first section of our Practice Act provides as follows:
“ Section 71. The Court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties; and no judgment shall be reversed or affected by reason of such error or defect.”
It is impossible to suppose the defendant could have been taken by surprise by the Court acting on a fact so distinctly stated in the answer. Nor, under the very liberal direction of our statute, do we think that there would have been any impropriety in the Court below acting on the facts as they are made to appear by the pleadings, allowing the answer to come in aid of the complaint.
The judgment of the Court below must be reversed. That Court will grant an injunction pending this action, and take such further steps as the equity of the case may require.
Rehearing
RESPONSE TO PETITION EOR REHEARING.
Opinion by
concurring.
The first point made by counsel for respondent in his petition for rehearing is, that this Court erred in holding that the allegations of the defendant’s answer cured the defect in the bill, and several cases are referred to as announcing a different rule. But of those cases cited by counsel which we have been able to examine, not one of them sustains the position assumed by him.
In James v. McKernon, 6 John. 543, it was simply held that “ the Court could not afford relief not sought for by the bill, nor entertain the question of fraud, which was not so much as suggested by the pleadings.”
Surely, at this day, no precedent is required to maintain a rule so thoroughly settled and so strongly recommended by the soundest and clearest principles of general utility. The Chancellor in that case set aside, upon the ground of fraud, a certain agreement or deed upon which the defendants based their defense, although relief was not sought upon that ground, nor was fraud alleged in the pleadings. As the plaintiffs in their bill did not attempt to attack the validity of the deed upon the ground of fraud, nothing is clearer than that they could not prove fraud or recover upon that ground. And the reason is clearly given by Chancellor Kent in delivering the opinion of the Court.
The good sense of pleading,” says the Chancellor, “ and the language of the books, both require that every material allegation of this kind should be put in issue by the pleadings, so that the parties may be duly apprized of the essential inquiry, and map be enabled to collect testimony and frame interrogatories, in order to meet the question. Without the observance of this rule, the use of the pleading becomes lost, and parties may be taken at the hearing by surprise.” We do not find a solitary expression in that case which is in conflict with the rule as announced by this Court in its
“ The testimony which has been taken in these causes certainly is very strong in support of the decrees of the Circuit Court; but the counsel for the appellant contends that so much of this testimony as respects the vagueness of Cameron’s location must be disregarded, because neither its vagueness nor its certainty has been put in issue. Lee has not averred in his bill nor alleged in his answer that this location is vague; nor has he anywhere or in any manner questioned its validity.”
So the Court held that relief could not be granted upon evidence making out a case different from that presented by the pleadings. Because, says the Court: “ If the pleadings in the cause were to give no notice to the parties or to the Court of the material facts on which the rights asserted were to depend, no notice of the points to which the testimony was to be directed, and to which it was to be limited — if a new case might be made out in proof differing from that stated in the pleadings — all will perceive the confusion and uncertainty which would attend legal proceedings, and the injustice which must frequently take place. The rule that the decree must conform to the allegations as well as to the proof of the parties is not only one which justice requires, but one which necessity imposes upon Courts.”
Attention is also called to a doctrine of Mr. Justice McLean in the case of Jackson v. Ashton, 11 Peters, 229, where it is said: “ That no admissions in an answer can under any circumstances lay the foundation for relief under any specific head of equity, unless it be substantially set forth in the bill.”
As we interpret this language, it certainly does not conflict with the rule which was answered by this Court in its first opinion. The opinion evidently intended to be conveyed by Mr. Justice McLean was, that the admissions of an answer are not admissible to make
“If, however, the adverse pleading expressly admit the fact which ought to have been stated in the defective pleading, and which is substantially incorrect in omitting it, the error becomes, it seems, immaterial.” (1 Chitty on Pleading, 672.)
No hardship or injury can possibly result from such a rule.
The principal object of pleading is to succinctly and intelligibly present the facts upon which relief is sought to the Court, and to notify the respective parties of the character of case which they will have to meet. The complaint, in this case, clearly notifies the defendant of the character of the plaintiff’s case; and although it is not completely made out by reason of an omission to allege a fact material, and upon which the right of recovery depended, yet his case is perfected by an admission in the answer of the omitted fact. Thus, the plaintiff’s case is fully presented to the Court by the pleadings. If, under such circumstances, the relief awarded to the plaintiff be in conformity with that sought by him, and it is justified by proof legitimately admitted under the pleadings, the defendant cannot complain that he was injured by the defect in the complaint. Upon this point, therefore, we are satisfied that the correct rule was announced in the original opinion.
We see nothing in the other point made by counsel for respond^ ent. True, the rule made by the Court was to show cause why a perpetual injunction should not issue; but clearly the respondent could not be misled by what seems a mere clerical misprision. And indeed, the record shows that he was not; for it appears, the question argued upon the hearing was, whether a temporary injunc
Rehearing denied.
