160 P. 1170 | Wyo. | 1916
The parties to this action stand in the same relation as in the district court. The substance of the statements of the
The demurrer of defendants was sustained; arid plaintiff electing to stand upon his petition, the action was dismissed by the court at plaintiff’s costs, and he brings error.
It is not entirely clear what question was presented to and decided by the trial court. Counsel for defendants in their brief — they did not argue the case orally in this court — contend that the petition must be construed as an action to establish a lien upon the property therein described, and not an action to enforce a judgment lien already existing thereon, and that the facts stated are insufficient for thát purpose. While plaintiff’s counsel contend that the action is purely to enforce the lien of the judgment. If we were to consider the specific prayer of the petition, to the exclusion of the prayer for general relief, as conclusive of the question, there would be much force in defendant’s argument. Brit considering the facts stated, and which.must govern the decision, we think the petition should be construed as an action to enforce the judgment lien against this particular property. We understand this action was brought because of fhe statute (Sec. 5629, Comp. Stat. 1910) which in effect .declares that no execution will issue on a judgment for the recovery of money rendered for or against a testator or intestate in his lifetime. It is alleged that the judgment became a lien upon the property at the date of its rendition (a legal conclusion perhaps), but' it is further alleged that the judgment debtor was at that time the owner of and had the title of record to the property. Such being the case the judgment would become a lien thereon, subject to the homestead right of the judgment debtor; the statute, Section 4684, Comp. Stat. 1910, making judgments a lien on the lands and tenements including vested interests of the judgment debtor, and having provided for its sale oh execution when the creditor makes an affidavit that he is of the opinion that it exceeds in value the sum of
The petition does not state whether or not the judgment was presented to the administratrix as a claim against the estate of H. Lichtenstein. But plaintiff contends that such presentation was not necessary. The facts alleged, we think, sustain that contention. The value of the estate is alleged to be only $300.00, an amount entirely insufficient to satisfy the judgment, and the property having been conveyed by Lichtenstein after the lien of the judgment attached was not a part of his estate and could not be reached in the administration of the estate. In Christy v. Dana, 34 Cal. 548, where the property had been conveyed by the debtor after the execution of a mortgage on the land against which it was sought to be enforced after his death, it was held that “inasmuch as no relief is demanded against the estate, and the intestate at the time of his death had no interest in the land, there was no need for the plaintiff to present his claim to the administratrix for allowance.” To the same effect see Sichel v. Carillo, 42 Cal. 493; Harp v. Calahan, 46 Cal. 222; Hibernia Savings & Loan Soc. v. London & L. Fire Ins. Co., 138 Cal. 257, 71 Pac. 334; O’Doherty v. Toole, 2 Ariz. 288, 15 Pac. 28. The Probate Code of Arizona, as well as of this state, having been taken from that of California, the above cited decisions are quite persuasive and in point.
In the case here the plaintiff is not seeking to establish the judgment as a claim against the estate of Lichtenstein, and the property against which it is sought to enforce the lien is not the property of his estate.
We have considered all of the questions presented by either counsel, and are of the opinion that the court should