183 P. 937 | Or. | 1919
There are two lines of authority. Those’precedents relied upon by the defendant are to the effect that the
‘ ‘ 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, arid owned by such family or some member thereof. ’ ’
It is provided in Section 224, L. O. L., that 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, describing the same by metes and bounds, lot or block, or legal subdivision of the United States. Then follows other procedure in relation thereto not necessary to be considered here. Some statutes prescribe a notice or notation on the record or some such thing to establish a homestead. The law in this state on that subject requires no previ
Some of the defendant’s citations are here noted. In Hansen v. Jones, 57 Or. 416 (109 Pac. 868), the plaintiff had acquired property through her former husband’s estate. A judgment was docketed against her October 14, 1907. She sold the property November 27th following. The execution was levied December 31st. The land was reconveyed to her on the tenth of the following month and three days after again acquiring the title she interposed for the first time a claim of homestead against the pending sale. Mr. Justice Slater, discussing the situation, said:
“In this case plaintiff was not the owner of the premises at the time the execution was levied, and therefore she could not then, or thereafter, assert the right of a homestead subsequently acquired as superior to the lien of the judgment.”
This language indicates that the matter is controlled by the conditions existing at the time the levy of execution is made. In Northwestern Thresher Co. v. McCarrol, 30 Okl. 25 (118 Pac. 352, Ann. Cas. 1913B, 1147), the circumstances were that when the judgment was rendered the defendant was living on a United States homestead not the realty in dispute. Before the execution was levied he returned to the property in suit, which had been his former abode, and then claimed it as his exempt homestead. The court said that — •
“It seems well settled,by the authorities that when a judgment lien has attached, it cannot he divested by*424 the subsequent occupation of the land for homestead-purposes.”
In Upman v. Second Ward Bank, 15 Wis. 449, the judgment had been rendered and became a final lien upon the land before the debtor came to the state, after which he went upon the land and claimed it as his homestead. The court said:
“For if the judgment debtor could defeat the creditor under such circumstances- and destroy his right to sell the property, we 'are unable to see why a party might not, upon the same principle, buy real estate-subject to sale under prior existing liens and then utterly defeat those liens by claiming the property for a homestead.”
Bunn v. Lindsay, 95 Mo. 250 (7 S. W. 473, 6 Am. St. Rep. 48), was a case where the defendant had moved off the land and it was said in the syllabus:
“When a judgment lien has attached to land, it cannot be defeated or displaced by subsequent occupation as a homestead.”
Many of these cases and numerous others cited by the defendant depend upon the circumstances that when the lien and the decree enforcing it attached to the property the homestead claimant was a stranger to the title. Many others rest upon the fact that whereas he once had homestead in the premises he had abandoned it.
“The provisions of Section 213 to Section 220 inclusive and Section 227 to Section 258 inclusive, of this Code, shall apply to the enforcement of a decree so far as the nature of the decree may require or admit of it; but the mode of trial of an issue of fact in a proceeding against a garnishee shall be according to the mode of trial of such issue in a suit.”
The part of the Code included in Sections 213 to 220 relates to the constituent elements of executions against property, against the person and for the delivery of the possession of real or personal property, to what counties the writ may issue, when it is returnable, and the like. Sections 227 to 258 cover exemptions as they were codified before the homestead statute was enacted, the procedure to determine by a sheriff’s jury any adverse claim to property seized by him on execution, manner of levy and sale, confirmation, redemption and proceedings after execution. The defendant argues that because the homestead sections are not mentioned in the category embodied in Section 415 they do not apply to decrees in equity. • This point was ruled against his contention by this court in Davis v. Low, 66 Or. 599 (135 Pac. 314), holding that the homestead is not subject to a mechanic’s lien unless the exemption is waived or abandoned. Lord’s Oregon Laws, so called, constitute only a compilation authorized by the act of March 17,1909, Laws 1909, page 517, as amended in unimportant particulars by the act of February 23, 1911, Laws 1911, Chapter 213. By .this legislation the codifier was directed “to compile, annotate and superintend the publication of the Codes and statutes of Oregon.” When he assumed the performance of this task he found the former Code making
But the compiler was not a lawmaker. Neither is codification legislation. The homestead statute neither gains nor loses force by the place it occupies in the collection of laws. Its sanction depends upon its own terms and would be the same if it had been printed anywhere else in the Code. To withhold decrees from its operation would be to construe a remedial statute with unwarranted strictness and to put into it exceptions not within the legislative intent.
“Mechanics’ liens, once acquired under an existing law, are regarded as a vested right which may not be impaired by any subsequent legislation.”
This is true as a major premise, but it is not supported by the minor premise that the homestead statute was enacted in this instance after the liens involved had become vested rights. It was passed by the legislative assembly of 1893, long before any of the occurrences described in the case under consideration. Both the lien law and the homestead statute were in force when the contract was made for which the liens are claimed as security and the agreement is controlled by them. The defendant also argues that—
“The judgment does not give birth to the lien but only provides the means to enforce it.”
Turning to other precedents, we find in Walter v. Dobbs, 38 Miss. 198, that the judgment debtor owned land and was a single man up to the day advertised for the execution sale. On that very day he married a wife but before the sale took place, occupied the premises with his spouse and successfully claimed homestead in the land. In McMillan v. Mau, 1 Wash. 29 (23 Pac. 441), the judgment debtor and his family Inoved on the land after the judgment lien attached and homestead was successfully claimed by his widow after his death, despite the judgment. It was said in Woodward v. People’s National Bank, 2 Colo. App. 369 (31 Pac. 184):
“The statute gives to a judgment creditor a general lien upon all the real estate owned or afterwards acquired; but this general lien must yield to the special law.”
The statute of Colorado under consideration required the claimant to cause the word “homestead” to be entered on the record of his title. After the debtor had done this, execution was issued on a judgment rendered before the entry of the word. Commenting upon this situation, the court further said:
“The general judgment lien attaches until the legal designation of the land as a homestead; such designation withdraws it from the operation of the general*428 lien that attaches to all the land owned. * * The property in question not having been subjected specifically to the judgment lien by the levy of an execution before it was withdrawn as a homestead, it was exempted from the levy of the execution. ’ ’
In Dulion v. Harkness, 80 Miss. 8 (31 South. 416, 92 Am. St. Rep. 563), a debtor made a voluntary conveyance of the property to his wife which was set aside as having been made to defraud his judgment creditors after which he was allowed to claim it as a homestead. The principle upon which this case was decided was in effect that if the conveyance was made with the intent to defraud creditors it was utterly void and the situation was the same as if it had never been made, with the result that notwithstanding the previous judgments the execution debtor was in a situation to claim homestead when the writ was issued.
In Barnes v. Buchanan, 108 Miss. 822 (67 South. 462), the defendant, while a single man, sold his land to his brother. His creditor, Barnes, obtained a decree subjecting the land to payment of his claim after setting aside the deed as fraudulent but before sale could be made under the decree, Buchanan, the defendant, married, bought the land back from his brother, moved upon it with his wife and maintained it as' his homestead as against the decree. The court held that specific liens fixed by equity decrees have no greater force against homesteads than law judgments.
In Stone v. Darnell, 20 Tex. 11, after judgment and levy of execution the judgment debtor completed a house on the land and moved into it with his family. He defended an ejectment action brought by the purchaser at the execution sale on the ground that the land was his homestead at the date of sale. The court said:
*429 “The right to the homestead is placed by the Constitution above any claims or liens for the satisfaction of debts. * * The very object of the provision was to secure an asylum for the family whether the head of the family did or did not owe debts or whether the debts were or were not in judgments. * * The time of the sale is the time to which we must look in ascertaining the fact whether he did or did not have a homestead.”
Hawthorne v. Smith, 3 Nev. 182, 189 (93 Am. Dec. 397), construes thus a statute similar to our own:
“As the law is totally silent as to the time when a selection shall be made of the homestead, declares no penalty for failing to select, makes no reservation in favor of liens acquired before selection, but simply says that when selected it shall be exempt from forced sale, we are forced to the conclusion that, after the selection is made and filed for record, no levy upon or sale of the homestead property can be legally made except for those classes of debts mentioned in the Constitution.”
Another case depending upon the Nevada law was Nevada Bank v. Treadway, 8 Sawy. 456 (17 Fed. 887). In that instance five days before execution sale on a judgment against him, a single man married and with his wife filed a declaration of homestead, claiming the land upon which he had resided and continued to reside. He was sustained in his defense against an action of ejectment brought by the purchaser.
In Cameron v. Gebhard, 85 Tex. 610 (22 S. W. 1033, 34 Am. St. Rep. 832), the court said, in substance, if a homestead cannot be acquired until it is occupied, then no one can acquire a homestead exempted from forced sale unless he buys an improved place; and then he must have a race with the sheriff for possession.
“The judgment became a lien upon the property, subject to the right of the owners to defeat an execution sale by the filing of a homestead declaration. They filed the declaration before the issuance of the execution. When the declaration was filed, the property became a homestead and as such it was exempt from execution or forced sale.s ’
In Chafee v. Rainey, 21 S. C. 11, when the judgment was rendered Rainey was a married man living with his second wife on the lot in question, it being his homestead. The wife died and he remained single, living alone about a year, when he married again and continued to live on the property with the third wife. The levy of execution was made after the third marriage. The court said:
‘ ‘ The right of homestead guaranteed by the Constitution is not an estate, but a mere right of exemption. It is nothing more than a prohibition against the use of the process of the ^courts for the collection of debts in certain cases and when a certain condition of. things is found to exist. Whether the homestead provision in the Constitution divests the lien of a judgment is not in our judgment a question pertinent to the present*431 inquiry. It unquestionably forbids the enforcement of a judgment except in the excepted cases provided for in the Constitution, by levy and sale of the homestead of one who is the head of a family. When be became the bead of a family is not the question. Tbe real question is, Does the condition of things exist under which the Constitution forbids the use of the process of the courts in enforcing the collection of debts? If they do exist, then we are at a loss to perceive by what authority any officer or any court can refuse obedience to this plain mandate of the Constitution. ’ ’
The question between a mechanic’s lien and the right to. claim homestead is not altogether one of priorities. If it were, no one could claim the exemption at all, because the very judgment forming the basis of the execution be seeks to resist is prior to bis claim. Tbe two are not to be contrasted in the strict sense of priorities, for the judgment lien is a quasi estate in land or at least fetters the title, while the right of homestead is a mere personal privilege. It is true that when filed,' the mechanic’s lien notice relates back to the time when the work began or the materials were furnished, but that does not give the demand any greater force than if the notice bad been filed at the time to which it relates. In all their efforts and litigation here in question the lien claimants were seeking to collect a debt arising from contract. To be enforceable at all it was essential that their claims of liens must be founded on a contract made directly with the owner of the property or through a contractor whom the statute granting the lien makes the agent of the owner for that purpose : Smith v. Wilcox, 44 Or. 323 (74 Pac. 708, 75 Pac. 710); Litherland v. Cohn Real Estate Co., 54 Or. 71 (100 Pac. 1, 102 Pac. 303); Equitable Savings & Loan Assn. v. Hewitt, 55 Or. 329 (106 Pac. 447); Stuart v.
Before they took their decree the plaintiff here owned the property and was in actual possession using it as the abode of herself and family. Both the elements of homestead were present, namely, actual abode of a family and ownership by a member of that family. The decree was made when those conditions were existent and operant. The plaintiff had no call to assert her right of homestead until the attempt was made to enforce the decree by execution. Counting the statute as an element of the agreement, as we must, it was part of the contract that she might claim homestead at any time prior to execution sale. There is no indication in the record that she ever waived, released or abandoned this provision of the contract which the lien claimants are trying to enforce.
It is urged that these claims are for the very labor and material which created the dwelling the plaintiff claims is exempt and that the allowance of her claim would work a fraud upon the people who furnished the labor and material, by depriving them of just compen
“The policy of the law is to secure to the debtor and his family a homestead which shall be beyond the reach of his creditors, however numerous. The statute seems to have been made for those who get in debt, and not for those, who always pay their debts. Such need no exemption law, for they are a law unto themselves to that extent. This policy of the statute would certainly be frustrated if none are entitled to the exemption except those who have been so fortunate as to obtain a homestead prior to becoming judgment debtors. The spirit, if not the letter, of the law gives the right of acquisition, as well as protection after acquisition. There can be no such ■ exemption without ownership. If it is also true that there can be no exemption until there is a dwelling-house upon the premises, actually occupied by the debtor personally, then it would be almost impossible for a homeless debtor, with judgments docketed against him, to get the benefit of the law; for the very instant he acquired the title, the judgment lien would attach. Under such a construction, the only possible way of securing such benefit would be to select premises with a dwelling already thereon, and then actually occupy, with the family, prior to the acquisition. But such strict literalism would do violence to the obvious intent of the legislature, and the whole current of authority in this state upon this subject. It was among the purppses of the statute to enable anyone without a home of his own to acquire one, even though judgments may be docketed against him when he embarks in the enterprise. The acquisition of a completed homestead is seldom instantaneous. Generally, it requires years of industry and economic living. The purpose necessarily precedes the inception of the work, and that is followed by successive steps, until completion is attained. The land must be acquired, the location of the dwelling-house designated, the cellar dug, the materials procured, the foundations laid, the superstructure erected,*435 and then all fitted for a dwelling-house, before actual occupancy with the family can take place. These successive steps in the acquisition of a completed homestead, made in good faith, come within the spirit of the statute, and are each entitled to the protection afforded by it. ’ ’
The case before us is not to he confounded with one where the homesteader buys for his home a tract upon which there is already a lien of any kind. In such an instance there is no privity of contract between him and the lienor so necessary to support a mechanic’s lien, and he takes the estate cum onere. The philosophy of the cases relied upon by the defendant and which hold that after judgment it is too late to occupy the land and then for the first time claim homestead seems to be that the claimant has in such an instance chosen for his homestead a property having an inherent defect in the title; that he takes the estate with its existing infirmities and that he cannot complain if it fails him because of them. By analogy, this theory has countenance in Hansen v. Jones, 57 Or. 416 (109 Pac. 868). There, after judgment and before execution, the judgment debtor sold the land, thus destroying one of the essential statutory elements of homestead, that of ownership. This let in the judgment'as a final adjustment of the relations of the parties to the land and when the judgment debtor repurchased it she took an estate less by the effect of the judgment than she had before. On principle, the soundest legal deduction is that as between the parties directly involved in mechanics’ and materialmen’s liens, the homestead privilege, available as it is, only when and not until execution issues, attends the contract and affects it from its inception through all its stages in whatever
On the other hand, for the reason that the right to claim homestead is a nonassignable personal privilege and that there is no privity of contract to support his homestead in the land beyond the part remaining after the lien is carved out of it, no stranger can buy the property after the lien attaches and exclude it from its effect on the estate. In the instant case when the contractual relations in question began they at once assumed a process of development. The lienors commenced with an essential element of furnishing labor or material. On their side their status and the contract progressed from thence through all the stages of filing a notice of claim of lien, suit to foreclose and decree, the final step being execution and sale, by which alone the contract was to be consummated and the chose in action reduced to possession.
Furnishing material does not ipso facto give a right to sell the realty, neither does filing notice of lien. These are but steps in an extraordinary remedy for the collection of a debt. Also, a suit is necessary and there must be a decree and execution before the lien claimant can enjoy the fruits of his process. Running with them as a factor always to be reckoned with, is the element of homestead which persists and is potent if urged at any time prior to the execution sale, as taught in Wilson v. Peterson, 68 Or. 525 (136 Pac. 1187). In the development of the contractual relations involved the plaintiff here started with the equally indispensable elements of family and ownership of the property and coeval with or prior to the decree, attained the remainder of the necessary characteristics of homestead right, namely, actual occupancy of the premises as a home for herself and family.
In Gregory v. Pritchard, 240 Fed. 414 (153 C. C. A. 246), involving consideration of the Oklahoma statute, a married man having no other realty bought for his
The decree of the Circuit Court is affirmed.
■Affirmed.