170 P. 541 | Or. | 1918
delivered the opinion of the court.
“An Act to exempt homesteads from attachment and judicial sale”: Sess. Laws 1893, p. 93.
The first two sections are as follows:
Section 221, L. O. L. “Homesteads Exempt. Must be Actual Abode. The homestead of any family shall be exempt from judicial sale for the satisfaction of any judgment hereafter obtained. Such homestead must*301 be the actual abode of, and owned by such family, or some member thereof.”
Section 222, L. O. L. “Extent oe Homestead Exemption. Such homestead shall not exceed $1,500 in value, nor exceed one hundred and sixty acres in extent, if not located in town or city laid off into blocks and lots; if located in any such town or city, then it shall not exceed one block; but in no instance shall such homestead be reduced to less than twenty acres nor one lot, regardless of value.”
The first section decrees, without qualification, that the homestead which is the actual abode of and owned by a family or some member thereof shall be exempt. Section 2 limits the extent of the exemption. The closing words of this section are a distinct and unqualified command that in no instance shall a homestead be reduced to less than twenty acres nor one lot, regardless of value. Thus far the act establishes the substantive right and the extent thereof. Griving to each part of the act its appropriate meaning so that each section will perform the office intended, there is no provision in conflict with the clause referred to. Sections 224 and 225, L. O. L., relate to the procedure to secure and confirm the right previously granted. Section 224 gives directions, when a levy is made upon such homestead, for notice to the officer that the owner claims the premises as a homestead, whereupon such officer shall notify the creditor. Provision is then made that “if such homestead shall exceed the minimum in this act,” that is, if the area of the homestead exceeds twenty acres of land or one city or town lot, then if the creditor “deem it of greater value than $1,500,” he may proceed under either of the latter sections and direct the sheriff to select three disinterested householders to appraise such homestead, commencing with the twenty acres or lot upon which the dwelling
“and if the same exceed $1,500, then the sheriff shall proceed to sell all in excess of $1,500 by lots or smallest legal subdivisions, offering them in the order directed by the judgment debtor, if he chooses to direct; otherwise, he shall sell the same as aforesaid, so as to leave the homestead as compact as possible.”
The directions contained in the latter section are somewhat involved and tend to obscure the meaning of the other part of the act. "When we notice that the conditions upon which the provisions for an appraisement and sale are made applicable are that “if such homestead shall exceed the minimum in this act, and he deem it of greater value than $1,500,” it is evident that the language of Sections 224 and 225 does not overcome the plain and unambiguous provision of Section 222, that “in no instance shall such homestead be reduced to less than twenty acres nor one lot, regardless of value.” Section 225 merely provides for an alternative method of procedure based upon the same conditions as to area and value as prescribed in Section 224. In the event that a homestead exceeds the defined limit of extent and value and such excess cannot be practicably sold separately, the whole may be sold, adding. $1,500 to the lien and that amount of money be exempt. The function of Sections 224 and 225 is to provide a means of procedure for a creditor to avail himself of the benefit of the excess when, and only when, the homestead claimed exceeds in area and also in value the limit prescribed by Section 222. The former two sections were not intended to limit or declare the right conferred by the latter. It was obviously the primary legislative intent, as the title of the act suggests (see 36 Cyc. 1134), to grant an ex
The decree of the trial court should be affirmed, and it is so ordered. Affirmed.