Bachman v. Hurtt

• Citation: 184 P. 709,26 Wyo. 332
• Decision Date: 27 October 1919
• Docket Number: 912
• Parties: BACHMAN v. HURTT
• Court: United States State Supreme Court of Wyoming

184 P. 709

26 Wyo. 332

BACHMAN v. HURTT

No. 912

Supreme Court of Wyoming

October 27, 1919

APPEAL from District Court, Sheridan County, HON.E. C. RAYMOND Judge.

Action by Theodore Bachmann against Nora L. Hurtt and others. From an adverse judgment, Wyoming Loan and Trust Co. appeals.

Affirmed.

Clark and Wolcott, for Appellant.

The former owner of the land, Ida M. Powers, not being the head of a family, was not entitled to a homestead exemption (Const. Art XIX, Jones v. Losekamp, 19 Wyo. 83); the judgment of the Trust Co. became a lien upon the cancellation of the old mortgage, which lien was superior to the new mortgage, taken by the plaintiff Bachmann. Under statutes similar to ours it is held that only the head of a family is entitled to the exemption (McGinnis v. Wood, 47 P 492; Towne v. Rumsey, 5 Wyo. 11; Barry v Assurance Co., 49 P. 148; Ness v. Jones, 88 N.W. 706); there being no homestead exemption, the judgment of the Trust Co. became a lien upon the release of the old mortgage; where a senior lien holder impairs the security of a junior lien holder by releasing the principal debtor from personal liability, he subordinates his lien to that of the second lien holder (Sexton v. Pickett, 24 Wis. 346; Barnes v. Mott, 64 N.Y. 397; McKeen v. Haseltine, 49 N.W. 195; Edwards v. Thom, 5 So. 707; Mather v. Jenswold, 32 N.W. 512; Marple v. Marple, 65 P. 645; Conner v. Welsh, 8 N.W. 260).

Metz and Sackett for respondents, Nora L. and John M. Hurtt; H. Glenn Kinsley, for respondent, Theodore Bachmann.

Homestead exemptions are provided by the Constitution and Statutes of Wyoming (Art. XIX; 4755-4760 C. S.); the statute recognizes a homestead exemption in the separate property of the wife; a wife who is the owner of a homestead is considered the head of the family (McFee v. O'Rourke, 15 P. 420); the purpose of the statute is to protect the family (Orr v. Schraft, 22 Mich. 260; Edmondson v. Meecham, 50 Miss. 390; no designation other than occupancy is required by the Wyoming statute; the exemption is good as against mechanics' or laborers' liens for improvements (Lumber Co. v. Vance, 88 P. 896); the exemption applies to separate property of the wife, even though the husband is living thereon (Herring v. Johnson, 72 S.W. 793; Hardin v. Wolve, 29 La. Ann. 333). The case of McGinnus v. Wood, cited by the counsel, involved a purchase money mortgage, and is not in point; the requirements of occupancy precludes any danger of allowing two homestead exemptions; the discharge of the old mortgage did not give an intervening judgment priority, since the new mortgage was a mere renewal of the old one; moreover, the new mortgage was a purchase money mortgage; the mortgagors having assumed the payment of the old mortgage upon purchasing the land (Curtis v. Root, 20 Ill. 53; Jones on Mortgages, 399, 924, 927; Swift v. Kraemer, 13 Cal. 526; Childs v. Stoddard, 130 Mass. 110); a change in the form of the security, or the substitution of a new mortgage for the one given at the time of the purchase does not affect the operation of a renewal (Powers v. Pence, 20 Wyo. 339: Bankers Co. v. Hornish, 27 S.E. 459).

Clark and Wolcott, in reply.

The constitution does not contemplate two homestead exemptions; the right is limited to the heads of families; Sec. 5610 C. S., adopted from California, has no application, since it relates to the selection of homesteads, for which we have no law. McFee v. O'Rourke and Lumber Co. v. Vance, cited by respondents, are not in point, owing to different constitutional provisions; there can be but one head of a family, and the phrase is synonymous with the owner of the home; the old mortgage was discharged and satisfied, and appellants' judgment took priority over the new mortgage; there are different mortgagors, so that the new mortgage cannot logically be considered a renewal of the old one.

WINTER, DISTRICT JUDGE. POTTER, J., and MENTZER, District Judge, concur. HON. CHARLES E. WINTER and HON. WILLIAM C. MENTZER, District Judges, were called in to sit in place of BEARD, C. J., and BLYDENBURGH, J., who were unable to sit by reason of illness.

OPINION

WINTER, DISTRICT JUDGE.

This is an action to foreclose a mortgage dated August 5th, 1914. It secured a promissory note of the same date for $ 1,600.00, bearing interest at 10 per cent. These instruments were signed by the defendants, Nora L. Hurtt and John M. Hurtt. On February 24, 1914, the defendant Wyoming Loan and Trust Company, duly obtained and docketed a judgment in the District Court of Sheridan County for $ 1,620.30 and costs, against Ida M. Powers and her husband, E. E. Powers, at which time the said Ida M. Powers was the record owner of the real estate in question.

On August 6, 1914, Ida M. Powers and her husband sold the premises, subject to a mortgage of $ 1,600.00, to the defendant, Nora L. Hurtt, and on November 4, 1914, the sale was consummated and possession transferred.

In June, 1910, one Spracklen and wife, then the owners of the premises, gave a mortgage for $ 1,600.00 to one Mary M. Kueny. Thereafter, and prior to the judgment of the defendant, Wyoming Loan and Trust Company, the Kueny mortgage was assigned to plaintiff.

The defendants, Nora L. Hurtt and John M. Hurtt, filed an answer and cross-petition in which they admitted the judgment of the Trust Company, but alleged that the said Ida M. Powers and E. E. Powers were, at the time said judgment was rendered, occupying said premises as a homestead, and that the mortgage in suit was given to take the place of the Kueny mortgage above mentioned, which had never been paid and that at the time the property was purchased by them from Powers its value did not exceed $ 2,400.00.

The case was then tried upon the theory that the former owner, Ida M. Powers, had a homestead interest in the real estate in question, which was exempt from levy and sale on execution under the Trust Company's judgment; that the homestead interest amounted to $ 1,500.00 (the then statutory limit of exemption); that the mortgage given in 1910 by Spracklen for $ 1,600.00 to Kueny and assigned to Bachmann, the plaintiff, in 1911, was never paid; that there was a substitution in its place of the new note and mortgage and its purpose was to continue the security of the old mortgage; and that the said homestead exemption and the new note and mortgage herein sued upon were superior to the judgment of the Trust Company. Further, that the lien, if any, of the Trust Company's judgment could be satisfied, if at all, only out of any equity there might be in this property, over and above $ 3,100.00; that the property never at any time had a value equal to $ 3,100.00, and that therefore the property passed from Powers to Hurtt free and clear of any lien of the Trust Company.

Upon the trial of the case, the District Court, upon the law and the evidence, sustained this theory, made findings of fact and conclusions of law in conformity therewith, and rendered judgment for the plaintiff, denying the lien of the Trust Company. The defendant, Wyoming Loan and Trust Company, appeals.

The first question in this case is: Was the former owner of the land, Ida M. Powers, entitled to a homestead interest or exemption in the premises?

The provision of our constitution was, and is, as follows:

Article 19 of the Constitution: "Homesteads, Section 1, Exemption Of. A homestead as provided by law shall be exempt from forced sale under any process of law and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon."

The statutory provisions regarding homesteads are Sections 4615, 4755, 4756, 4757, 4760, 5610. Sec. 4755, Compiled Statutes 1910, in force at the time of the transactions herein involved, is as follows:

"Every householder in the State of Wyoming, being the head of a family, and every resident of the State who has reached the age of sixty years, whether the head of a family or otherwise, shall be entitled to a homestead not exceeding in value the sum of Fifteen Hundred Dollars, exempt from execution and attachment arising from any debt, contract or civil obligation entered into or incurred."

The authorities and arguments of counsel for the parties hereto centered upon the above section as the positive act creating "a homestead as provided by law".

The contentions of counsel were upon the meaning, scope and limitations of the words "being the head of a family". Had this been the only section contained in our statutes bearing directly upon the question, it might be contended with considerable support from the authorities submitted and examined, that Ida M. Powers (the property being in her name), living upon the premises, with her husband and family, the husband supporting and maintaining them, could not be considered as "the head of a family" within the meaning of the above Section 4755. But we need not review the cases and the arguments upon this question or determine what the law would be were it to rest on Section 4755 alone, as the positive statute on the subject, as the matter is placed beyond controversy by Section 4615, Compiled Statutes 1910, which is as follows:

"When a married woman sues or is sued alone, like proceedings shall be had, and judgment may be rendered and enforced as if she were unmarried, and her separate property and estate shall be liable for the judgment against her; but she shall be entitled to the benefit of all exemptions to heads of families."

The Ohio Code, section 5319, Revised Statutes of 1880, was identical with our section 4615. That section in the Ohio Code...