21 P. 419 | Idaho | 1889
This is an action brought by the plaintiff against the defendants in ejectment. The action arose in Oneida county, and the same was tried upon an agreed state of facts. It appears from the findings of the court that on the seventeenth day of July, 1883, the plaintiff recovered a judgment against the defendant E. T. Richards, in the probate court of Oneida county; that on the same day an abstract thereof, made in conformity with the requirements of section 608 of the then Code of Civil Procedure of Idaho, was filed and docketed in the office of the clerk of the district court of the third judicial district of Idaho, in and for Oneida county; that on the same day a writ of execution was duly issued to the sheriff of Oneida county upon the judgment so docketed, and that under and by virtue of this writ the sheriff levied upon the real estate described in the complaint; that said real estate was then the property of the defendant, E. T. Richards; that by virtue of such execution the sheriff of the county advertised the said property, as required by law, for sale, and that, on the tenth day of September, 1883, the same was sold, and the plain
The question presented for our consideration is, Can the defendant, or his wife, under the circumstances, by filing a declaration of homestead subsequent to the attaching of a judgment lien, devest that lien, and prevent the property being made subject to it? It is with some difficulty that we have been able to arrive at a satisfactory conclusion in this case. Such doubts have arisen mainly from a consideration of the decisions of the courts of .Nevada and California. These cases appear to hold that the homestead itself is exempt from forced sale under execution, and that a subsequent filing of a declaration of homestead under the statute defeats the operation and effect of the lien. Although we are of the opinion that these cases do not go fully to that extent, yet, even if they do, we
We are cited by respondents to Hawthorne v. Smith, 3 Nev. 182, 93 Am. Dec. 397; Estate of Walley, 11 Nev. 260, and Lachman v. Walker, 15 Nev. 422. In the first case the question was not a judgment lien, but an attachment lien, and the court there refused to express an opinion upon what would be the effect of a judgment lien entered before the filing and recording of a declaration of homestead. In the second case the court merely held that the widow of David Walley, deceased, was entitled to have her homestead set apart for her by the probate judge, and that, when so set apart, it was not subject to the debts of the said David Walley; but no opinion is expressed as to what would be the effect of a judgment lien. In 15 Nev. 424, which is the latest case called to our attention, the court say: “We intimate no opinion of what would have been the effect of a homestead declaration filed by plaintiff’s grantors subsequent to the docketing of Binaldo’s judgment, but before sale of the property under execution issued upon that judgment, and prior to the conveyance by McCarran and wife to plaintiffs. In this case no declaration has ever been filed, and we have not the slightest doubt that the property is not exempt. The statute only exempts a homestead which has been selected according to its provisions. ;The homestead .... to be selected .... shall not be subject to forced sale.Said selection shall be. made by either husband or wife, or both of them, .... declaring their intention in writing to claim the same as a homestead.’ The law does not compel any person to have his property become a statutory homestead against his will, but it requires him to do certain things in order to enjoy its benefits.” Dnder the act of 1881 homesteads are not exempt from sale under execution, and thus leaves the law as it was under the act approved January 13, 1875. Section 1 of that act is substantially the same as the Nevada statute; and the only construction which we can