Leppel v. Kus

38 Colo. 292 | Colo. | 1906

Mr. Justice Steele

delivered the opinion of the court:

The complaint alleges that Mary Kus, having purchased lots numbered 10, 11, 12, 13, 14, 15 and 16, in block 4, Ore Addition to the city of Leadville, on January 31, 1900, before the deed was recorded caused the word “Homestead” to be written on the margin of the deed; that she signed her name thereto and that the clerk and recorder of the county attested the same; that the deed was filed for record February 1, and transcribed by the recorder February 4, 1900; that the defendant (appellant) obtained judgment against her on January 16, 1900; that a transcript of the judgment docket was filed February 3, 1900; that execution was issued and a levy was made upon the lots in question on February 16, 1900; that notice of sale was first published on February 16, advertising a sale for March 8; that the execution sale took place March 8 at ten o ’clock, and the property was sold to B. Leppel, the appellant; that the lots were sold en masse; that lots 10, 11, 12, 13 and 14 were, at the time of the sale, and now are, worth more than enough to satisfy the judgment.

The answer denies certain allegations respecting the good faith of the claim of exemption of the homestead, and alleges fraud and collusion in the purchase of the property; denies that the sheriff’s notice was not published twenty days; and denies that the lots were sold in any other manner than is provided by law.

There is but one allegation in the complaint that entitles the plaintiff to relief — that relating to the sale of property en masse. Section 2540, Mills’ Annotated Statutes, provides that “When any property,

real or personal, shall he taken in execution, if such property is susceptible of division, it shall be sold in such quantities as may be necessary to satisfy such execution and costs.” The plaintiff alleges, and the return of the sheriff shows, that the property was sold en masse. The action of the sheriff in selling en masse does not render the sale void at the suit of the execution debtor if it should appear that the property was first offered in parcels and no bids were received — or, if he received bids, that the bid he received for all the property was greater than the aggregate of the bids for the parcels. Upon the hearing of the motion to strike the answer, the execution with the sheriff’s return was introduced in evidence and considered by the court. Counsel’s contention was and is, that, as the sheriff’s return shows that the property was sold en masse, the answer, although it denied that the property was sold en- masse, should be stricken because the defendants were bound by the sheriff’s return; and this, we assume, was the reason assigned by the court for his ruling. We think this was error. The presumption is that the officer did his duty, and the language of the return does not overcome the presumption. The return states: “I attended at the time and place fixed for said sale, and exposed said property for sale, and sold the same to B. Leppel (plaintiff in the case), she being the highest and best bidder. ’ ’ The presumption is, that the sheriff first offered the property in parcels and there were no bidders, or, if bids were received for the parcels, that the bid for the whole of the property was greater than the aggregate bids in parcels. — Love v. Cherry, 24 Iowa 204.

The answer of the defendant was good as against a motion to strike and for judgment, and the court should have denied the motion.

For this reason we must reverse the case.

In view of a new trial, we shall determine the other questions presented.

The notice of sale was sufficient. It is contended that, as the paper in which the notice appeared was not published until five o ’clock in the afternoon, that twenty days had not expired at the time of the sale at ten o’clock on the morning of the 8th of March. The law does not recognize fractions of a day, and the notice published on February 16 was twenty days prior to the sale on March 8; and section 2545, Mills’ Annotated Statutes, which provides that no land shall be sold by virtue of any execution unless the time and place of holding such sale shall have been previously advertised for the space of twenty days in some daily or weekly newspaper, was observed.

The property was not exempt as a homestead. The statute, 2133 Mills ’ Annotated Statutes, requires that a person, to be entitled to a homestead exemption, shall cause the word “Homestead” to be entered of record on the margin of his. recorded title to the same. This was not done. The owner caused the word “Homestead” to be written on the deed itself. The exemption is entirely a creature of the statute, and we are not permitted to say that one is entitled to it if he signifies his intention of accepting the privilege extended by the legislature in a, manner different from that required by the statute. The legislature required that the entry should be made on the margin of the recorded title1, and we cannot say that the statute is observed by making the entry on the deed, unless under the guise of a construction of the statute we substitute our will for that of the legislature. It is said that, in some instances, many weeks elapse between the filing of the deed and the transcribing of it upon the record books, and that, unless one may giye notice upon the deed itself of an intention to claim exemption, the right will be defeated by a, creditor levying upon tbe property between tbe time of tbe filing of tbé deed and tbe recording of it. Tbe exemption statutes are to be liberally construed, and, if tbe owner of tbe property should make an entry upon tbe margin of the recorded title as soon as tbe deed was recorded, or within a reasonable time thereafter, tbe court would then be confronted with a question calling-for a liberal construction of tbe statute; but here no effort was made by tbe owner to make the entry as required by law, but she relied solely upon her indorsement upon tbe deed.

As tbe property was not exempt from execution, we shall not consider tbe allegations of tbe answer respecting tbe purchaser of tbe property nor tbe conduct of tbe debtor with respect to residence thereon and improvements thereon. Tbe judgment must be reversed. Reversed.

Chief Justice G-abbert and Mr. Justice Campbell concur.