Folsom v. Asper

• Decision Date: 21 January 1903
• Docket Number: 1411
• Citation: 71 P. 315,25 Utah 299
• Court: Utah Supreme Court
• Parties: HYRUM P. FOLSOM, Appellant, v. WILLIAM ASPER and ALFRED SOLOMON, as Administrators of the Estate of A. H. RALEIGH, Deceased, Respondents

71 P. 315

25 Utah 299

HYRUM P. FOLSOM, Appellant, v. WILLIAM ASPER and ALFRED SOLOMON, as Administrators of the Estate of A. H. RALEIGH, Deceased, Respondents

No. 1411

Supreme Court of Utah

January 21, 1903

Appeal from the Third District Court, Salt Lake County.--Hon. W. C Hall, Judge.

Action to quiet title to certain real estate situated in Salt Lake county and claimed as a homestead by the plaintiff. From a decree in favor of the defendants, the plaintiff appealed.

REVERSED.

Messrs Goodwin & Van Pelt for appellant.

Laws governing exemptions from forced sales on execution affect the remedy only. Such laws should be liberally construed to secure the citizen from unjust and oppressive litigation, and protect those without other means in their pursuits, which are necessary to the existence of every community. Kirkman v. Bird, 22 Utah 100.

The occupation and use of the premises for the benefit of the debtor's family was a sufficient selection of the homestead. Kimball v. Lewis, 17 Utah 381; Kimball v. Salisbury, 19 Utah 161; Banker v Coons, 21 Utah 164.

H. S. Tanner, Esq., for respondents.

One of the tests that a contract has been impaired is that its value has by legislation been diminished. It is not, by the Constitution, to be impaired at all. This is not a question of degree or cause, but of encroaching in any respect, on its obligation, dispensing with any part of its force. United States v. Quincy, 71 U.S. 409; Planters' Bank v. Sharp, 6 Howard, 327; Edwards v. Kearzey, 96 U.S. 796.

It is competent for the states to change the form of the remedy or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. United States v. Quincy, 71 U.S. 409.

The remedy subsisting in a State when and where a contract is made and is to be performed is a part of its obligation, and any subsequent law of the State which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the Constitution, and is therefore void. Edwards v. Kearzey, 96 U.S. 799; Siebert v. United States, 122 U.S. 1165.

BASKIN, C. J. BOOTH, District Judge, concurs; BARTCH, J., concurs in result.

OPINION

BASKIN, C. J.

--This is an action to quiet the title to certain real estate situated in Salt Lake county, claimed as a homestead by the plaintiff. A. H. Raleigh, who was originally the defendant, having died pending the action, his administrators, William Asper and Alfred Solomon, were substituted as defendants. The answer admits that the plaintiff is the owner of the property described in the complaint, subject to the lien therein alleged.

The trial court made the following findings of fact: "That the plaintiff is the owner and in possession and entitled to the possession of all the real estate (described in the complaint), subject to the lien of the defendant, as hereinafter set forth. That on the eighth day of August, A. D. 1892, the said defendant, A. H. Raleigh, lent to the plaintiff the sum of fifteen hundred dollars, and that on the said date the said plaintiff executed his certain promissory note, whereby he agreed to pay to the said A. H. Raleigh the said sum of fifteen hundred dollars one year after date, and William Folsom, for a valuable consideration, indorsed the same, and to secure said sum of money then and there executed a certain mortgage. That the said sum of money was not paid, and the defendant, A. H. Raleigh, proceeded to foreclose said mortgage on said premises in the Third Judicial District Court of the State of Utah in and for the county of Salt Lake, and, pursuant to proceedings duly had, the said district court, on the twenty-first day of April, A. D. 1897, duly made and gave a judgment whereby said mortgage was foreclosed, and the premises described in the said mortgage were ordered to be sold, and pursuant to such order the sheriff of Salt Lake county, State of Utah did sell said premises described in the said mortgage, and, after making such sale and applying the proceeds thereof to the payment of the amount due upon said promissory note, there was a deficiency of the sum of two thousand one hundred and forty-two dollars and fourteen cents, and that said sheriff, under his hand and official seal, duly made a return to the clerk of the said court of such deficiency, and that thereupon judgment was duly made and given by the said court against William H. Folsom and Hyrum P. Folsom on the eighteenth day of May, A. D. 1897, for the sum of two thousand one hundred and forty-two dollars and fourteen cents, and said judgment was by the clerk duly docketed on said date in the judgment docket, a book kept for that purpose. That thereupon the said judgment became and was a lien on the said nineteenth day of May, 1897, upon all the premises hereinbefore described for the full sum of two thousand one hundred and forty-two dollars and fourteen cents, and ever since said time said judgment was, and still is, wholly unpaid, and was, and ever since has been, and still is, a valid and subsisting lien upon the said premises hereinbefore described. That thereafter, and on or about the . . . day of May, A. D. 1897, an execution was duly issued upon such deficiency judgment, and placed in the hands of the sheriff of said county, who levied the same upon the real property described in the complaint (and other property belonging to W. H. Folsom, the co-defendant therein), and advertised the same for sale as required by law. That at the date of the entry of said deficiency judgment plaintiff was the head of a family, consisting of himself and wife and nine children, residing in the county of Salt Lake, State of Utah. That on the ninth day of June, A. D. 1897, the plaintiff served upon said sheriff of Salt Lake county a declaration and claim of homestead exemption, wherein he claimed to have selected the above described property as a homestead, with the appurtenances and the rents, issues, and profits thereof, for the benefit of himself and family, under and in pursuance of the provisions of subdivision 11 of section 3429 of the Compiled Laws of Utah of 1888, as amended by chapter 71 of the Laws of 1896. That thereafter the said sheriff, at the request of the attorneys for the plaintiff, returned such execution wholly unsatisfied. That on the eighth day of August, 1892, and on the date of the entry of said deficiency judgment, the judgment debtors, H. P. Folsom and W. H. Folsom, were the owners of the above-described premises, and that since the date of the above said deficiency judgment W. H. Folsom conveyed his interest and estate in the above said premises to the plaintiff herein. That neither the above said plaintiff nor his co-judgment debtor, W. H. Folsom, ever lived upon any of the above-described premises, or used the same for homestead purposes, but the proceeds derived therefrom were used for the support of the family of the judgment debtor, and that said above-described premises was not the homestead of H. P. Folsom and William H. Folsom on the eighth day of August, A. D. 1892, and was not claimed as the homestead of either of them until the ninth day of June, A. D. 1897." As conclusions of law from the foregoing facts the trial court found: "That the contract entered into between plaintiff and defendant on the eighth day of August, A. D. 1892, should be construed under the law in effect at the time said contract was entered into; that at the time said contract was entered into the above said property described in the foregoing findings of fact was not the homestead of the plaintiff herein." A decree sustaining the lien was rendered. The appeal is upon the judgment roll alone and the main question involved is whether the findings of fact warrant the conclusions of law and the decree.

Subdivision 11, sec. 3429, p. 308, 2 Comp. Laws 1888, which was in force at the date of the making of the note and mortgage, exempted from execution a homestead to be selected by the judgment debtor, consisting of lands, together with the appurtenances and improvements thereon, not exceeding in value the sum of $ 1,000 for the judgment debtor, and the further sum of $ 500 for his wife and $ 250 for each other member of the family. This section was amended by an act entitled "An act to amend general section 3429 of the Compiled Laws of Utah 1888, relating to exemptions from levy and sale on execution," approved March 28, 1896. See Sess. Laws 1896, p. 215. It is provided in the eleventh subdivision of this amendatory act that: "If the debtor be the head of a family, there shall be a further exemption of a homestead, to be selected by the judgment debtor, consisting of lands and appurtenances, which lands may be in one or more pieces in different localities of the same county in which the judgment debtor resides, or in different counties of the State, together with the appurtenances and improvements thereon not exceeding in value the sum of fifteen hundred dollars, for the judgment debtor, and the further sum of five hundred dollars for his wife, and two hundred and fifty dollars for each other member of his family." This amendatory act was passed in compliance with the requirements of section 1, art. 22, of the State Constitution, which went into effect on January 4, 1896, and is as follows: "The Legislature shall provide by law, for the selection by each head of a family, an exemption of a homestead, which may consist of one or more parcels of lands, together with the appurtenances and improvements thereon of the value of at least $ 1,500, from sale on execution." The defendants contend that the amendatory statute is in violation of article 1, section 10, of the Constitution of the United States, prohibiting the States from passing any law...