Brace & Hergert Mill Co. v. Burbank

• Decision Date: 24 September 1915
• Docket Number: 12080.
• Citation: 87 Wash. 356,151 P. 803
• Court: Washington Supreme Court
• Parties: BRACE & HERGERT MILL CO. et al. v. BURBANK et ux.

151 P. 803

87 Wash. 356

BRACE & HERGERT MILL CO. et al. v. BURBANK et ux.

No. 12080.

Supreme Court of Washington, En Banc.

September 24, 1915

Appeal from Superior Court, King County; Everett Smith, Judge.

Action by the Brace & Hergert Mill Company and others against A. S Burbank and wife. Decree for plaintiffs, and defendants appeal. Decree modified and affirmed.

Hamlin & Meier, of Seattle, for appellants.

Henry W. Lung, Geo. W. Bright, Longfellow & Fitzpatrick, Elias A Wright, Sam A. Wright, H. D. Allison, Weter & Roberts, E. W Chandler, Thorwald Siegfried, E. H. Kohlhase, Myers & Johnstone, Willett & Oleson, and Afred H. Lundin, all of Seattle, for respondents.

PARKER J.

This action was commenced by the plaintiff Brace & Hergert Mill Company seeking foreclosure of a lien claimed by it upon a house and lot owned by the defendants in Seattle, for material furnished and used in the construction of the house. After the commencement of the action, others became parties thereto by intervention, all of whom also seek foreclosure of their liens claimed separately by them upon the house and lot for material furnished for and used in the construction of the house and for labor performed thereon. The trial resulted in a decree foreclosing eleven of the claimed liens as prayed for. The defendants have appealed therefrom, claiming error in the decision of the trial court as to each of the claimed liens foreclosed.

On March 12, 1913, the defendant A. S. Burbank entered into a contract with the Modern Bungalow Company, by which it was to furnish the material for and construct a dwelling house upon a lot owned by him and his wife, Ellen Burbank, as their community property, for which the bungalow company was to be paid $3,750. The construction of the house was accordingly proceeded with during the spring and summer months of that year, in the course of which the bungalow company incurred indebtedness to the several lien claimants for materials furnished and used in the construction of the house and for labor performed thereon. The amount of such indebtedness so incurred and owing to each claimant is not in dispute. The material so furnished and used in the construction of the house and the labor so furnished thereon was all furnished, used, and performed, prior to the 1st day of August, 1913, so that not later than that date each of the claimants had an accrued right to a lien upon the house and lot, if at all. On September 11, 1913, appellant A. S. Burbank duly executed and caused to be recorded in the office of the auditor of King county a declaration of homestead in pursuance of sections 559 and 560, Rem. & Bal. Code, claiming the house and lot as a homestead. Each of the lien claimants filed for record in the office of the auditor of King county notice of claim of lien against the premises within the time prescribed by law following the furnishing of the materials and the performing of the labor, under section 1134, Rem. & Bal. Code. Some of the lien notices were so filed before the filing and recording of appellants' declaration of homestead, and some of them were filed thereafter; but all of them were filed within the time prescribed by law as a prerequisite to the commencement of actions to foreclose such liens. The liens were claimed, and their foreclosure sought, because of the default of the bungalow company as contractor to pay for the materials so furnished and work so performed. These facts are undisputed and are common to all of the claims here involved. Other facts will be noticed in our discussion of the several questions presented.

Counsel for appellants contend that to allow foreclosure of these liens and sale of the premises in satisfaction thereof would be in violation of their constitutional right of homestead as guaranteed by article 19 of our state Constitution, reading as follows:

'The Legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families.'

The argument is, in substance, that the Legislature having defined the homestead, provided the manner of its selection and for its exemption from forced sale, in general terms by the act of 1895, in accordance with this constitutional provision, Rem. & Bal. Code, § 528 et seq., Laws of 1895, p. 109, no exception can be made to such exemption, even though specified in the same act providing for the exemption, and even though the constitutional provision above quoted is not self-executing. Upon this ground it is insisted that the exception to the general exemption of the homestead by section 5 of that act, being section 533, Rem. & Bal. Code, is unconstitutional. That section reads:

'The homestead is subject to execution or forced sale in satisfaction of judgments obtained: (1) On debts secured by mechanic's, laborer's, materialmen's or vendor's liens upon the promises. (2) On debts secured by mortgages on the premises executed and acknowledged by the husband and wife or by any unmarried claimant.'

Numerous decisions of the courts have been called to our attention by counsel for appellants touching the power of the Legislature to make exceptions in favor of certain classes of creditors under constitutional provisions relating to homestead exemptions, some of which are self-executing and some of which, like ours, are not self-executing. However, in the light of the fact that all of the lien rights here involved accrued before the filing of appellants' declaration of homestead, we do not view the cause as presenting, necessary for decision here, the broad constitutional question suggested by counsel for appellants; in any event, no farther than to inquire whether any constitutional right of the appellants would be violated by a judicial sale of their present homestead to satisfy lien rights which had fully accrued against it before the filing of their declaration of homestead. The real question is: Can appellants, under the guise of exercising their homestead right, defeat a lien right against the land constituting their present homestead accruing at a time when such land was not their homestead; that is, before they had filed any declaration claiming it as a homestead? We are quite unable to understand that appellants' homestead right, though it be regarded as wholly a constitutional right, can be invoked to defeat prior lien rights. Whether such homestead right, when once attached to specific land, would prevent lien rights attaching thereto thereafter, is, we think, quite another question.

In Parsons v. Pearson, 9 Wash. 48, 36 P. 974, this court held that a mechanic's lien accruing against premises at a time when the owner was not living thereon, though intending to claim such land as a homestead, could not be defeated by a claim of homestead exemption thereafter made. That was before the act of 1895 was passed and when there was no statutory method for identifying or claiming a homestead, the then existing statute allowing a claim of its exemption made at any time before sale on execution. At page 51 of 9 Wash., at page 975 of 36 Pac., Judge Scott, speaking for the court, observed:

'Although the respondents at the time the contract was entered into intended to claim this particular real estate as a homestead, and did claim it as such, there was nothing to prevent them from thereafter changing their minds; and to hold that the right to a lien under the statute will not obtain against a homestead claim in this state might allow the owners to defeat such a right although such real estate was not a homestead, and they did not intend to claim it as one at the time the contract for the erection of a building thereon was entered into, for under the law they are entitled to select a homestead at any time before sale.

'It is true section 1404 [Gen. St.] provides that such selection must embrace the dwelling house in which one or both of the claimants reside, but they may be possessed of more than one dwelling house, and a change of residence is easily made. Homestead rights are generally favored in the law, and ought to be so favored, but to render a homestead claim paramount in all cases to a right to a mechanic's or a materialman's lien it seems as though there should be some way provided for selecting it in advance of the contract, to the end that all persons may be notified thereof, as otherwise the equities may be in favor of other lien claimants. In this case appellant undoubtedly has the most meritorious claim, for it was only as the result of his labor and the expenditure of his money for the materials therefor that a house was erected on the lots aforesaid in which the respondents could reside, and by which it could be rendered of any benefit to them as a homestead.'

In Olson v. Goodsell, 56 Wash. 251, 105 P. 463, decided after the passage of the act of 1895, it was held that a mechanic's lien filed prior to the declaration of homestead upon the same premises was not defeated by such claimed homestead exemption. We there said:

'The trial court erroneously held that such a declaration of homestead destroyed appellant's lien and prevented its foreclosure. The lien having attached before the declaration of homestead was made, appellant was entitled to a foreclosure decree.'

These decisions seem to be decisive against appellants upon this branch of the case.

However there may be some room for argument that there is a distinction to be made between the right of the lien claimant before and after the filing of his lien notice with the county auditor. The case last above cited was one wherein the lien notice was filed before the declaration of homestead. But we think there is no such distinction in principle, so far as the lien claimant's rights are concerned, where his lien notice...