Becher v. Shaw

• Citation: 44 Wash. 166,87 P. 71
• Parties: BECHER v. SHAW et ux. (BENESH, Garnishee.
• Decision Date: 19 October 1906
• Court: United States State Supreme Court of Washington

87 P. 71

44 Wash. 166

BECHER v. SHAW et ux. (BENESH, Garnishee.

Supreme Court of Washington

October 19, 1906

Appeal from Superior Court, Spokane County; D. H. Carey, Judge.

Action by Phil T. Becher against Henry A. Shaw and wife and Frank Benesh, garnishee. From a judgment in favor of defendants on a hearing of the garnishment proceedings, plaintiff appeals. Affirmed.

A. E Gallagher and W. J. Thayer, for appellant.

Belt &amp Powell, for respondents.

RUDKIN, J.

On the 27th day of March, 1903, the plaintiff commenced an action against the defendants Henry A. Shaw and wife for the recovery of the sum of $296.90 with interest at the rate of 6 per cent. per annum from January 24, 1903. At the time of the commencement of such action a writ of garnishment was sued out and served on the garnishee defendant, Benesh. The garnishee answered that he was conditionally indebted to the defendants in the principal action in the sum of $500, with interest at the rate of 8 per cent. per annum from June 2 1902, on account of the balance due on the purchase price of certain real property purchased by the garnishee from the principal defendants, and in the further sum of $24 on account of interest paid by the principal defendants on account of a certain mortgage on said real property, subject however, to a counterclaim in the sum of $137.50 in favor of the garnishee against the principal defendants. The principal defendants controverted the answer of the garnishee alleging, among other things, that the money due from the garnishee to the principal defendants was a part of the purchase price of their homestead, and that they intended to invest the same in another homestead. Judgment was given in favor of the plaintiff in the principal action on the 10th day of October, 1904, in the sum of $344.42 and $16.60 costs of suit. At the hearing of the garnishment proceedings the court found that the defendants in the principal action had occupied the premises theretofore sold to the garnishee for a period of 20 years prior to the time of sale, and that they at all times claimed the same as their homestead. 'That on the 2d day of June, 1902, said Henry A. Shaw and wife sold to the garnishee defendant, Frank Benesh, said premises for the sum of $1,600, said premises being at that time mortgaged for the sum of $600, which mortgage the said Benesh assumed and agreed to pay as a part of the purchase price; and that the money due from the said Benesh to said Shaw and Wife is the proceeds of the sale of said homestead, and that they at all times intended to purchase another homestead with said proceeds; and that the interest in said lands in said Henry A. Shaw and wife at the time of said sale is of the value of $1,000.' As conclusions of law the court found that the proceeds of the sale of the homestead were exempt from garnishment, and entered judgment accordingly. From this judgment the plaintiff has appealed.

The case comes before us on the findings of the court below, and the sufficiency of these findings to sustain the judgment is the only question for consideration. The appellant contends that a voluntary sale of the homestead is a waiver of the homestead right, and that the exemption does not attach to or follow the proceeds of the sale. In support of this view he cites 15 Am. & Eng. Ency. of Law (2d Ed.) p. 294, as follows: 'In the absence of some provision in the statute to the contrary, the voluntary sale of his homestead by a debtor will constitute a waiver or abandonment of his right of homestead exemption, and the right will not follow and attach to the proceeds, but creditors may reach and subject them by garnishment or otherwise. In many states, however, the statute expressty or impliedly allows a debtor to sell his homestead for the purpose of investing in another homestead, and protects the proceeds prior to such reinvestment. In some states the proceeds are thus protected for a limited time only.' Exemptions are, no doubt, creatures of the Constitution or the statute, and we accept the foregoing as a correct statement of the law. It only remains to consider whether our statute does expressly or by implication exempt the purchase price of the homestead from execution or garnishment, where the homestead claimant intended in good faith to reinvest the proceeds in another homestead. The statutory provisions bearing upon this question are the following: Section 5219, Ballinger's Ann. Codes & St., provides how the homestead may be conveyed or incumbered. Section 5220 provides how the homestead may be abandoned, viz., by declaration of abandonment or a grant thereof, executed and acknowledged. Sections 5222 to 5232 provide for a forced sale of the homestead, where the value exceeds the statutory exemption. Section 5233 provides that the amount of the homestead exemption must be paid to the claimant, and section 5234, that the money paid to the claimant is entitled to the same protection against legal process and the voluntary disposition of the husband as is the homestead itself. Section 5247 provides as follows: 'In case of the sale of said homestead, any subsequent homestead acquired by the proceeds thereof shall also be exempt from attachment and execution; nor shall any judgment or other claim against the owner of such...