103 P. 970 | Utah | 1909
This is an action brought by the VolkenScowcroft Lumber company to foreclose a materialman’s lien. Halverson Bros, appeared in the action, and also claimed and exhibited a lien for materials furnished and labor performed. Among' other things it is alleged in the answer by the defendant Vance that prior to and at the time of the letting of the contract for the construction of the buliding on her lots, and for which the materials were furnished and the labor performed by the lien claimants, she was, and still is, the head of a family, consisting of herself, her husband, and two children, that the lots upon which the building was constructed were her homestead, and that they, with the improvements thereon, did not exceed in value her homestead exemption. The court below sustained plaintiff’s demurrer to the answer. The defendant Vance refusing to further plead, the court rendered a judgment in plaintiff’s favor, awarded a lien on the real estate, and ordered a sale of the premises in satisfaction -of the claims. On the defendant’s appeal from that judgment (32 Utah 74, 88 Pac. 896, 125 Am. St. Rep. 828) we held that the court erred in sustaining the demurrer. We there held that because of the provisions of section 1, article 22, of the Constitution a homestead was not subject to a materialman’s or mechanic’s lien, in the absence of an express contract pledging the homestead. The judgment of the court below was therefore reversed, and the cause remanded. Thereafter the court tried the case upon the issues, and found that the defendant Vance was the owner of lots 5 and 6 upon which the building was constructed for which the materials were
The plaintiff .and Halverson Bros, appeal. They first urge that, though the lien failed, they nevertheless were entitled to a personal judgment against the defendant Yance. On the other hand, it is contended by the respondent that, in an action to foreclose a mechanic’s lien, when the lien fails the action also fails, in the absence of an express statutory provision authorizing the rendition of a judgment against the person personally liable. Prior to the Code a personal judgment apart from the
• In Haight v. Schuck, 6 Kan. 192, it was held that a personal judgment could be rendered, because of a provision of the statute giving the lien claimant the right to> a deficiency judgment. In all these cases in which it is held that a personal judgment may be rendered though the lien fails it of course is also held that the complaint, in connection with or in addition to the allegations for the foreclosure of a mechanics’ lien, must also contain all the necessary facts constituting both ground for relief and all the necessary allegations of an action in assumvsit. In some it is held that the legal and equitable primary rights must be set forth in separate counts, and an actual demand made for both remedies in the prayer for judgment. We think the holding of the courts permitting a personal judgment in the action though the lien fails is supported by the greater weight of authority, and is in harmony with the intent and spirit of our Constitution (article 8, section 19) which provides “that there shall be but one form of civil action, and law and equity may be administered in the same ac
The ruling of the court not awarding a personal judgment against the respondent was, however, not erroneous for two reasons: (1) No demand was made in the complaint for a personal judgment, nor is it made
It is further contended that there is no evidence to support the finding that the defendant Vance had sold, or had contracted to sell, to her son all of the lots except lots 5 and 6, or that he had paid her the reasonable value thereof. The defendant Vance testified that she sold all the lots except lots 5 and 6 to her son; that he had paid her nine hundred dollars for them, and that she had given him a
The materiality of the respondent’s ownership of lots 7 to 12, and the value thereof, is claimed to be in this: That the evidence shows that she was the owner of them, and that she and her family occupied and lived in a house situated on some of them as her home for some years prior to, and at the time of, the making of the contract to construct the house on lots 5 and 6 and the furnishing of the material and the performing of the labor thereon, and that she and her family continued to occupy and live in such house until the new house was about completed, when she and her family moved into the new house. From this it is argued that if lots 7 to 12, together with the improvements thereon, equaled or exceeded in value the sum of $2250, the amount which the respondent was entitled to claim exempt as a homestead, such property, so occupied by the respondent as her residence and home, must be regarded in law as her homestead, which could not be abandoned by her, and lots 5 and 6, with the new1 structure thereon, claimed exempt as a homestead to the prejudice of the lien claimants. In other words, it is urged that the exempt character of the homestead must be determined upon the facts as they existed when the material was furnished and the lien attached. If, when the material was furnished, lots 7 to 12, alone and independently of lots 5 and 6, constituted respondent’s homestead, and if lots 7 to 12, together with the improvements thereon, equaled or exceeded in value the sum of $2250, then there is much force to appellants’ contention that the respondent, after the house was constructed on lots 5 and 6, could not abandon her
The issues in these respects were so loosely presented at the trial, and the evidence bearing upon them is so meager and indefinite, that we, on the record as presented, are unable to make or direct findings on them. The findings made by the court in such particulars 'are incomplete, and in some respects are not sufficiently responsive to the issues, and, in the particulars pointed out, are-not supported by the evidence. If the findings of the court tljat all the lots when the material was furnished did not exceed in value the sum of $2250, or that lots 5 and 6 wefie all the lots owned by the respondent, were supported by the evidence, or if on the record we were clearly justified in assuming that all the lots were but one parcel of land upon which the respondent was living with her family as her home, of which lots 5 and 6 were a part — it being sufficiently shown that such lots were claimed and selected, and that they, with the imlprovements thereon, did not exceed in value the sum of $2250 — we would affirm the judgment of the court below. But in the absence of such evidence, and such assumption not being clearly warranted because of the uncertainty of the evidence, we find it necessary to reverse the judgment, and remand the case for a new trial. It is so ordered, with costs to appellants.
In view of obviating another appeal on a new trial of the case we feel justified in calling attention to a ruling made relating to a stipulation found in the record, although no assignment is made with respect thereto.