225 P. 598 | Utah | 1924
Tbis is an appeal by Jesse E. Tietjen and Ina J. E. Tietjen, Ms wife, hereinafter called appellants, from a judgment entered by tbe district court of Utah county in favor of the Payson Exchange Savings Bank, hereinafter designated respondent.
The facts material to the appeal are these: The respondent commenced an action in the district court -aforesaid against the appellants and two others in which it sought to set aside the deed of conveyance by which appellants had conveyed real estate to the father of the appellant Jesse E. Tietjen, one of the other defendants, which conveyance it was alleged by respondent, was without consideration and was conceived and executed in fraud of its rights as judgment creditor of appellants. Such proceedings were had in said action that on June 11, 1923, said court made findings of fact and conclusions of law to the effect that the said conveyance was in fraud of respondent’s rights as a judgment creditor of appellants and entered a judgment or decree setting aside and annulling said deed of conveyance, and in said decree ordered the premises in question sold and the proceeds thereof, so far as necessary,, applied to the payment of respondent’s judgment. On June 29, 1923, appellants, pursuant to our statute, duly filed a declaration in which they claimed the premises in question as a homestead and as such exempt from forced sale. On July 8th appellants served a notice upon the sheriff of Utah county to the effect that they claimed the premises in question as their homestead and as exempt from judicial sale. About the same time they also filed a motion in said proceedings in said court in which they asked the court to modify said decree by eliminating therefrom the order of sale. On July 20th the motion was denied upon the sole ground that the court was powerless to grant the same for the reason that the same was filed after the term of court at which the judgment was entered had expired. On the-day of August following the appellants filed what in the record is called a petition and motion. In the
We have been thus specific in stating the foregoing proceedings, for the reason that some question was raised at the hearing in this court respecting the appellants’ right to be heard on their appeal.
In view of the record, there is no doubt respecting the right of appellants to be heard.
The appellants insist that the court erred in denying their motion to modify the decree as hereinbefore stated, and in refusing to act on appellants’ petition, and in failing to find and adjudge that the premises in question constitute appellants’ homestead and therefore were exempt from execution or forced sale.
For the purposes of this decision we may well concede that the district court was without power to modify the decree at the time the application for its modification was made. The court’s refusal in that regard has, however, nothing to do with the merits of this appeal. The only question here is, Do the premises in question constitute the homestead of the appellants? For the purposes of the decision we are bound to assume that the premises in question do constitute their homestead and as such are exempt under our Constitution and statute. The foregoing assumption necessarily follows from the fact that the allegations of appellants’ petition,
In view that there was no denial of appellants’ claim of homestead, the court should have entered an order in the case to that effect, and such an order, without more, would have prevented the sale thereof notwithstanding the order contained in the decree.
Indeed, in this jurisdiction it is quite sufficient if the judgment debtor notifies the sheriff or officer holding an execution or order of sale that he claims the premises attempted to be levied upon as his homestead; and, if the officer nevertheless proceeds without complying with Comp. Laws Utah 1917, § 2917, he does so at his peril. It may also be doubted whether an officer or any one else under any eircum-stances may sell or dispose of a homestead without becoming liable unless he does so with the consent and approval of the homestead claimant, and, if such claimant be married, then with the consent of both husband and wife. See Hansen v. Mauss, 40 Utah, 361, 121 Pac. 605; Giesy-Walker Co. v. Briggs, 49 Utah, 205, 162 Pac. 876; Volker-Scowcroft Lbr. Co. v. Vance, 36 Utah, 348, 103 Pac. 970, 24 L. R. A. (N. S.) 321, Ann. Cas. 1912A, 124; and Antelope Shearing Corral Co. v. Con. Wagon & Mach. Co.; supra. While the decisions in the foregoing cases do not pass upon questions precisely like those we have just discussed, those decisions, nevertheless, are all to the effect that a homestead right is paramount to all other rights, and that a creditor or any one else who
Then, again, the fact that the district court in the main action had adjudged the conveyance by appellants of their homestead as void as against the respondent is of no consequence. A homestead cannot be made the subject of attack by a creditor upon the ground that it was sold or conveyed in fraud of such creditor. In view that creditors may not legally attack a homestead they have no concern in its disposition by the claimant. The law is tersely and correctly stated by Mr. Thompson in volume 1 of his late work on real property in section 933, in the following words:
“Fraudulent conveyances do not enlarge tlie rights of creditors, hut leave them just as if no conveyance had been made so far as enforcement is concerned. A creditor, under his execution, cannot sell a debtor’s title and at the same time deny the debtor homestead on the ground that he has no title.”
As before pointed out, an order of sale can be given no greater effect than an execution. The fact, therefore, that in this case a sale was ordered is entirely immaterial.
It is also clearly pointed out by Mr. Thompson in the section just referred to that the mere fact that the claimant may have conveyed, or may have attempted to convey, his homestead, when such conveyance is attacked by a creditor, as in this case, does not prevent him from successfully claiming
It appears from the record in this case that the appellants have six children. Under our statute, therefore, they are entitled to claim a homestead of the value of $1,500 for the husband, $500 for the wife, and an additional $250 for each minor child. If, therefore, the premises claimed by appellants constitute their homestead, and they do not exceed in value the sum of $3,500, then the whole thereof is exempt, and if they do- exceed that value then the excess only may be reached, as pointed out in section 2917, supra..
From what has been said it follows that the judgment appealed from should be, and it accordingly is, reversed, and the cause is remanded to the district court of Utah county, with directions to proceed in accordance with the views herein expressed, appellants to recover costs.