Johnson v. Tucker

167 P. 787 | Or. | 1917

Mr. Justice Burnett

delivered the opinion of the court.

‘ ‘ The homestead of any family shall be exempt from judicial sale for the satisfaction of any judgment hereafter obtained. Such homestead must be the actual abode of, and owned by such family, or some member thereof”; Section 221, L. O. L.

“When any officer shall levy upon such homestead, the owner thereof, wife, husband, agent or attorney of such owner, may notify such officer that he claims such premises as his homestead * * Section 224, L. O. L.

1-4. Although a mechanic’s lien takes its origin with the furnishing of labor or materials it is not perfected until the notice or claim of lien is filed, whereupon it relates back to the beginning when the work commenced or the materials were furnished. It is still necessary to foreclose such a lien by suit in which a decree is rendered as in other suits for such purposes. The decree thus rendered is not different from others in its effect upon the property and there being no exceptions in the homestead laws in favor of such determination it affects them in the same manner as in other judgments or decrees. The operation of the statute under consideration is not to impair the lien, but only to suspend its execution and then only at the claim of the owner of the homestead. This is the doctrine of Hansen v. Jones, 57 Or. 416 (109 Pac. 868). It is taught also in Davis v. Low, 66 Or. 599 (135 Pac. 314), that an execution upon a judgment for labor or material improvements upon the homestead are within the class from which the homestead is exempt. The statute creating this exemption, after defining the right, gives to the owner of the homestead the privilege of claiming the same at least as late as the levy of the execution. In any event he is not required to make the claim until after decree. It is a means of resistance against the execution. In a sense it is a post judgment privilege and it is not required that the same shall be asserted as a defense against the cause of suit or action which ripens into a judgment or decree.

It is true that it was said arguendo in Davis v. Low, 66 Or. 599 (135 Pac. 314):

“It would probably be too late for a debtor to claim the homestead exempt from levy and sale on execution after the court has declared the debt to be a lien upon the property and decreed a sale thereof.”

This excerpt, not necessary to the decision in that case, is controlled by the reasoning in the previous holding in Hansen v. Jones, 57 Or. 416 (109 Pac. 868), as well as by the opinion in Wilson v. Peterson, 68 Or. 525 (136 Pac. 1187), where Mr. Justice Bean, applying the rule of liberal construction to the statute granting the exemption in question, decides that it may be claimed at any time before sale of the property. The deduction is that a decree foreclosing a mechanic’s lien may be a charge upon a homestead in like manner and with like effect as upon other realty subject to having its execution suspended by the claim of the owner of the land and to remain thus in abeyance as long as it continues to be a homestead as defined by the enactment.

5. The courts are, as of right, open to protect the homestead right whenever it lawfully shall be exercised, and the judges had authority judicially to hear and determine the suit instituted to preserve it. It is laid down in Section 613, L. O. L., that mandamus does not control judicial discretion. The judicial officers in question had jurisdiction to determine the questions presented in the suit for injunction and whether they decided that question rightfully or wrongfully it matters not in this case. To determine in this proceeding the correctness of their decision, having the parties and subject matter before them by appropriate process, would be to make the writ of mandamus perform the office of an appeal, a conclusion not to he entertained. The demurrer to the writ is therefore sustained as to the defendants Tucker and Kavanaugh, who are judges of the Circuit Court.

6. The same conclusion must be reached respecting the defendant Hurlburt, the sheriff, but upon different grounds. In Habersham v. Sears, 11 Or. 431 (50 Am. Rep. 481, 5 Pac. 208), the defendant sheriff had refused to levy an execution in his hands in favor of the plaintiff although the debtor in the writ had ample property which was pointed out to the officer. The plaintiff sought by a mandamus to compel him to levy and sell, but in an opinion by Mr. Justice Lore, this court held that the writ would not lie, there being a remedy upon the sheriff’s bond. It is urged, however, that this precedent does not apply in the present juncture because the sheriff has been enjoined from proceeding with the sale. We note, however, that he has process in his hands in favor of the plaintiffs commanding him to make the money on their decree. As between himself and them in order to avoid the discharge of his duty as required, or to escape liability upon his bond he must show that some obstacle binding upon them was interposed to prevent his executing the writ. They were not parties to the suit to enjoin him at the instance of Josephine Paulson, hence the decree would not conclude them nor affect them in any manner. The sheriff had an opportunity to make them defendants in that suit or to call upon them to defend the same. Having done neither of those things if he were summoned to defend their action upon his official undertaking he would necessarily have to assume the burden of showing the ultimate fact that the property in question was the homestead of Josephine Paulson and that she claimed the same at the proper time as exempt from execution. The decree between the sheriff and Josephine Paulson alone cannot affect strangers to that adjudication. The allegations of the writ do not exclude the possibility of a remedy at law adequate and sufficient by an action upon the sheriff’s bond and hence under the authority of Habersham v. Sears, 11 Or. 431 (50 Am. Rep. 481, 5 Pac. 208), the demurrer to the writ must be sustained as to him. Demurrer Sustained.