Wilson v. Peterson

136 P. 1187 | Or. | 1913

Mr. Justice Bean

delivered the opinion of the court.

1. The main contention of the plaintiff is that the conveyance by the judgment debtor, subsequent to the attachment, abrogated their statutory right to claim the property as a homestead. They rely upon the case of Hansen v. Jones, 57 Or. 416 (109 Pac. 868), in which a judgment debtor, after the filing of a transcript of judgment, and before the levy of execution, conveyed his homestead by warranty deed for a recited consideration, and, after the levy of execution, the grantee by a similar deed reconveyed the lots to the debtor. It was held that the debtor, not being the owner of the homestead at the time of the levy of the execution, could not then or thereafter assert the right of a homestead subsequently acquired, as superior to the lien of the judgment. At page 421 of 57 Or. (at page 870 of 109 Pac.) of the opinion, Mr. Justice Slater said: “The lien of a judgment attaches to the realty and is clearly preserved, but the sale is stayed, and the remedy suspended until the debtor ceases either to own or occupy the premises, for a homestead is exempt only while possessing the character of a homestead; that is, it must be the actual abode of and owned by such family or some member thereof. When it ceases to be occupied, although it may be owned by some member of the family, it is no longer a homestead, and if it should be the abode of the family, but has been aliened to one not a member of the family, it is not a homestead.” In the case at bar it will be noticed that the defendants conveyed the homestead to another member of the family; hence the case does not come within the rule in Hansen v. Jones, where the homestead was conveyed to one not a member of the family. In Bowman v. Sherrill, 59 Or. 603 (117 Pac. 1122), a case involving the right of homestead exemption, it was held that either of the defendants, who were husband and wife, had the right to claim a homestead in property, and that this right was not defeated by a conveyance from one to the other for the purpose of keeping the property from creditors.

Section 221, L. O. L., enacts that: “The homestead of any family shall be exempt from judicial sale for the satisfaction of any judgment hereafter obtained. Such homestead must be the actual abode of, and owned by such family or some member thereof.” In the case at bar, in order to divest the defendants of the right to claim the property attached as a homestead, exempt from sale under the rule in Hansen v. Jones, it would be necessary for a conveyance to be made to some person not a member of the family of defendants. It is not disputed that Reuben Peterson, to whom the conveyance was made, was a minor and a member of the defendants’ family; nor is it questioned that the property was the actual abode of such family. These conditions fulfill the requirements of the statute that such homestead must be the actual abode of and owned by such family, or some member thereof. The construction sought by plaintiffs would lead to the conclusion that only the husband or wife could own such a homestead ; but such is not the language of the statute. It is broader in its terms and includes any member of the family. The homestead in question was under the statute exempt.

2, 3. It is contended, however, by plaintiffs, that the defendants failed to claim the property as a homestead in due time. Statutes exempting homesteads from forced sale on judicial process should receive such a construction as to carry out the beneficent policy of the legislature: Black, Interpretation of Laws, p. 311. The exemption of the homestead is from judicial sale only, and not from a lien of a judgment, nor from the levy of an execution thereon: Hansen v. Jones, 57 Or. 416 (109 Pac. 868). It is to stay the sale thereunder that a notice to the officer by the owner, wife, husband, agent or attorney of such owner is required under the provisions of Section 224, L. O. L. The claim having been made by the owners of the homestead prior to any sale thereof upon execution was a sufficient compliance with the requirements of the statute.

The judgment of the lower court will therefore be affirmed. Affirmed.

Mr. Chief Justice McBride, Mr. Justice Bakin and Mr. Justice McNary concur.