28 P. 430 | Idaho | 1891
This is an action brought by the appellant for the purpose of quieting title to and removing cloud from the title of certain town lots in the town of Blaekfoot, Bingham county. The complaint alleges that the respondents (the defendants in the court below) commenced an action in the district court of Bingham county, Idaho, against this appellant, on the twenty-first day of November, 1890, to obtain judgment against appellant on a certain contract theretofore executed by the appellant, and on said twenty-first day of November caused a writ of attachment to issue out of said court in said cause, and placed the same in the hands of the sheriff of said Bingham county' for service; that on said date the sheriff levied said writ of attachment upon lots 12, 13, 14, 15, 16, 17-, and 18; in block 55, in the town of Blaekfoot, said county; that on the second day of December, 1890, said defendants abandoned said levy under said writ, and caused another writ of attachment to issue in said action, and that no affidavit or undertaking was made or given before the issuance of said last-mentioned writ; that said writ was irregularly issued and void; that said writ was levied by the said sheriff on the lots above described; thereafter the sheriff made his return thereon to the court, and also to the recorder of said Bingham county; and that each of the returns, so made by the sheriff, is a part of the records of said county, and appear on said records to be regular on their face; and that said returns and records cast a cloud on the title of the plaintiff. The complaint further alleges that plaintiff is a married man, and the head of a family; that his family resides with him upon said lots as their home, and that he has no other residence or home; that on said twenty-first day of November, and at all times
The first error specified by the appellant is that the court erred in holding that the writ of attachment issued in the suit of respondents against appellant, and levied upon the real estate and premises above described, was valid, and created a lien on said premises. This specification of error does not specify which of said writs of attachment is referred to, but, as the record shows that the court below held that the levy of the first writ created a valid lien upon said premises, we presume that that is the writ referred to. We will, however, determine whether said objection or specification of error is fatal to either writ. The appellant alleges in the complaint that the levy of the first writ was abandoned by reason of the issuance of the second writ, and levying it upon the identical property on which the first writ was levied, and that the second writ was invalid by reason of respondents having failed to file an affidavit and undertaking prior to the issuance there
The appellant also contends that, under the levy of the first writ of attachment, no lien was created upon said property, for the reason that the law requires the sheriff, after he has made a levy by attachment, to file in the office of the county recorder a notice describing the property levied upon and attached,, duly signed by him; and urges that the notice so filed by the sheriff, under and by virtue of said levy, was not so signed. This question was not raised in the court below, and we cannot,, for that reason, consider it here; besides, the appellant is estopped by the allegations of the complaint from now denying that the notice so filed in the recorder’s office was not signed by the sheriff, and regular on its face. Appellant, after alleging that said writ was duly issued on November 31, 1890, and duly levied upon said property, further alleges as follows r “And made his return thereon to the court, and also to the recorder of Bingham county; each of the returns so made by the said sheriff is a part of the records of Bingham county
As applied to the second writ, the record shows that the appellant, at the time of the levy of said writ, was residing upon said premises with his family, and had, prior to such levy, executed and filed his declaration of homestead, as provided by sections 3071 and 3072 of the Revised Statutes of Idaho, claiming said premises as a homestead. Said premises were exempt from attachment and execution, after filing said declaration of homestead. (Rev. Stats., see. 3038.) The respondents acquired no lien upon said premises hy reason of the levy under said second writ. (Rev. Stats., sec. 3039.)
The third and fourth specifications of error will be considered together, and are as follows: “3. The court erred in failing to find that said property was exempt from, execution and attachment, and was not subject to the debt sued on by Westheimer & Sons against the plaintiff, é. The court erred in failing to hold that the property in dispute in this action was exempt from seizure, levy and sale under execution and attachment, because of the fact that plaintiff procured the money to purchase this property from the sale of property on which he had a valid homestead exemption under the laws of the state of Idaho.” The contention is that, as the property attached had been purchased with the proceeds of the sale of the homestead of appellant, and that as appellant purchased said property as a home for himself and family, and filed his homestead declaration therefor as soon as he had established his residence