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, bеfore 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 rеcord 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 thе 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 thе judgment.
The answer denies certain allegations respecting the good faith of the claim of exemption of the hоmestead, 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 сomplaint 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,
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.
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 twеnty 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 rеcognize 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 оf holding such sale shall have been previously advertised for the space of twenty days in some daily or weekly newspаper, was observed.
The property was not exempt as a homestead. The statute, 2133 Mills ’ Annotated Statutes, requires thаt a person, to be entitled to a homestead exemption, shall cause the word “Homestead” to be enterеd 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 differеnt 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 substitutе 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 clаim exemption, the right will be defeated
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.