22 Mont. 249 | Mont. | 1899
No issue of fact is raised by the answer. The denial that the property in controversy is the homestead of plaintiff and her husband, as against the judgment of defendant, is equivalent to an allegation that it is their homestead, but that it is yet subject to sale in satisfaction of his judgment. The formal admission is also made that the homestead was selected as the law provides. It then appears that the property in controversy was at the time the judgment was recovered already impressed with the homestead character. The question presented by the denial, therefore, is whether a simple money judgment is a lien upon a homestead, — a pure 'question of law, and not an issue of fact.
The same may be said as to the other .denial. The issue raised is a difference of opinion between the parties as to whether the proceedings set out in the complaint have created a cloud upon plaintiff’s title to her homestead property. The substance of the answer is an admission of all the plaintiff claims, and an effort to avoid the consequences of this admission by attempting to bring defendant’s judgment within the class of cases enumerated in Section 1674, Civil Code, in which the homestead is not exempt.
The fact that the property in controversy is plaintiff’s home
Another criticism made upon the complaint is that it does not allege that the plaintiff is a Iona fide resident of Montana. The allegation of the complaint is that “during all the times mentioned in the complaint, and for a long time prior thereto, she (plaintiff) has been residing, with her husband, in and upon, and in the actual possession’ ’ of, the property in controversy. This clearly means residence in Montana at the dates mentioned in the complaint, and is sufficient.
Turning now to notice the last paragraph of the answer, we observe that it does not allege that the money for which the judgment was rendered was loaned to plaintiff for the purpose of purchasing the homestead. Conceding that, if one person borrows money from another with which to purchase property, this latter has a vendor’s lien upon the property for the money so loaned, the allegations in this paragraph are not sufficient. They do not show that the money was borrowed by the plaintiff for the purpose of purchasing the homestead property. She may have borrowed it, so far as the facts alleged show, for some other purpose, exclusively upon her personal credit.
Defendant, in support of his contention that his judgment is a lien upon the property by reason of the fact that the money for which it was obtained was used in the purchase and improvement of the property, cites a long list of authorities,— among them, Blaisdell v. McDowell, 91 Cal. 287, 27 Pac.
The demurrer to the answer was properly sustained. Let the judgment be affirmed.
Affirmed.