10 Colo. 301 | Colo. | 1887
By the record and argument three questions are presented for consideration:
1. Under our statute concerning homesteads, has the wife the character of a head of the family, while occupying with her husband her property as a home, to entable her to designate and affect such home with the character of a homestead, so as to exempt it from seizure and sale for the joint debt of herself and husband? The first and fourth sections of the statute are as follows:
“Section 1. Every householder in the state’ of Colorado, being the head of a family, shall be entitled to a homestead not exceeding in value the sum of $2,000, exempt from execution and attachment arising from any debt, contract or civil obligation entered into or incurred after the 1st day of February in the year of our Lord 1868.”
“ Sec. 4. When any person dies seized of a homestead, leaving a widow, a husband or minor children, such widow or husband or minor children shall be entitled to the homestead.”
In the enactment of these provisions the legislature recognized a married woman as a person possessing to-some extent the character of a householder and head of a. family, though living with her husband. The purpose-of the statute is to preserve the home for the family.. When the wife is the owner of the property occupied as. the home of the family, she is the only one capable of: investing it with the exemption character provided by
2. Should the act designating the homestead- operate as against a creditor for material used in improvements upon the property before it was so designated? As to this question, it is Sufficient to say that there is no proviso in the statute against such operation. By failing to take the steps necessary to secure a lien upon the premises, under the provisions of our mechanic’s lien act, the right to subject the premises to such debt was lost.
3. Does it vitiate the homestead character of the property when the designation thereof as a homestead was for the pui’pose of preventing the creditor from collecting his debt? The purpose of the designation of the property as a homestead is to put it out of the reach of creditors while occupied asa home; and such. purpose, and the consequent result of such designation, are warranted by the statute, though occurring after the debt was contracted, and immediately before the creditor had
It is also contended by counsel for plaintiff in error that this property was acquired by the defendant in error, Bridget O’Rourke, by a conveyance from her said husband, Dennis O’Rourke, who was jointly indebted with her on the said demand of the said McPhee & McGrinnity; that such conveyance was without consideration and in fraud of his creditors, the said McPhee & McGrinnity; and that such conveyance should be held void and the property applied to the discharge of his said debt; that it was not rightfully her property when she designated it as a homestead. Such are the premises for a creditor’s bill in equity, the consideration of which is impracticable in this action by reason of the want of Dennis O’Rourke as a party to the action. Allen v. Tritch, 5 Colo. 222. But even had the husband, Dennis O’Rourke, been made a party, the legal status of the parties here would remain unchanged. The judgment of plaintiffs in error was against both the husband and wife, Dennis and Bridget O’Rourke. The conveyance of the property from one to the other could in no way prejudice plaintiffs in error in the collection of their judgment, as it is not such a conveyance as one conveying the property to a person whose property would be beyond the reach of the judgment. Besides, it has been held
We concur: Macon, 0.; Bising, 0.
For the reasons assigned in the foregoing opinion the decree of the superior court of the city of Denver is affirmed.
Affirmed.