Hansen v. Mauss

• Decision Date: 02 February 1912
• Docket Number: 2278
• Citation: 40 Utah 361,121 P. 605
• Court: Utah Supreme Court
• Parties: HANSEN v. MAUSS et al

121 P. 605

40 Utah 361

HANSEN v. MAUSS et al

No. 2278

Supreme Court of Utah

February 2, 1912

APPEAL from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by Jens S. Hansen against Michael Mauss and the Miller-Cahoon Company.

Judgment against Miller-Cahoon Company after dismissing the action against defendant Mauss. Miller-Cahoon Company appeals.

AFFIRMED.

D. W Moffat for appellant.

APPELLANT'S POINTS.

When a homestead is conveyed by the owner thereof, such conveyance shall not subject the premises to any lien or incumbrance to which it would not be subject in the hands of the owner; and the proceeds of the sale thereof, to the amount of the exemption existing at the time of the sale, shall be exempt from execution or other process for one year after the receipt thereof by the person entitled to the exemption. (Compiled Laws of Utah, 1907, section 1158.)

Conceding that a homestead may be declared upon land held under a mere contract to convey, such declaration did not give any new title, or lend in any way to strengthen or enlarge the one then existing. Therefore, when the equitable title created by the contract, and possession under it, was lost, the homestead fell with it. (Snodgrass v. Parks, 79 Cal 55, 21 P. 429; Dahl v. Thompson, 98 Iowa 599, 67 N.W. 579; Helgebye v. Dammen, 100 N.W. 245.)

This court has held that "proceeds" as used in section 1158, Compiled Laws of Utah, 1907, "mean some tangible thing which is the subject of manual delivery and receipt." (Christensen v. Beebe, 32 Utah 406, 91 P. 129.)

While in this action there was not an entire change of parties, nor a strict substitution of parties, yet there was no judgment obtained against the original defendant to the action, and consequently the making of Miller-Cahoon Company a party defendant, was equivalent not only to a complete change of parties defendant, but to a substitution of parties defendant; so that even under the statutory provisions permitting the adding or correction of the name of the party, or of amendment, an entire change of parties defendant can not be permitted. (31 Cyc. 475 and 481; Hallett v. Larcom, 5 Ida. 492, 51 P. 108; Little v. Virginia, etc., Water Co., 9 Nev. 317; New York State Monitor Milk Pan Assoc. v. Remington Agricultural Works, 89 N.Y. 22 (reversing 25 Hun. 475); Horan v. Bruning, 116 A.D. 482, 101 N.Y.S. 986; Wright v. Storms, 3 Code Rep. (N.Y.) 138; Rarden Mercantile Co. v. Whiteside, 145 Ala. 617, 39 So. 576; Vinegar Bend Lumber Co. v. Chicago Title, etc., Co., 131 Ala. 411, 30 So. 776; Reynolds v. Caldwell, 80 Ala. 232; McKay v. Broad, 70 Ala. 377; Tarver v. Smith, 38 Ala. 135; Pickens v. Oliver, 32 Ala. 626; Brooks v. Collier, 3 Indian Terr. 468, 58 S.W. 559; Wray v. Jamison, 10 Humph. (Tenn.) 186.) One against whom a complaint states no cause of action or ground of relief can not be brought in as a defendant upon the motion of plaintiff. (Penfield v. Wheeler, 27 Minn. 358, 7 N.W. 364.) And where the controversy between the original parties may be fully adjudicated, and determined without prejudice to them or the parties of record, new parties should not be brought in. (31 Cyc. 474; Fischer v. Holmes, 123 Ind. 525, 24 N.E. 377; Bannister v. McIntire, 112 Iowa 600, 84 N.W. 707; Clay County Land Co. v. Alcox, 88 Minn. 4, 92 N.W. 464; Brush v. Levy, 54 A.D. 296, 66 N.Y.S. 700; Muller v. Wahler, 1 A.D. 245, 37 N.Y.S. 140; Bolton v. Donavan, 9 N.D. 575, 84 N.W. 357; Northwestern Tel. Exch. Co. v. Northern Pac. R. Co., 9 N.D. 339, 83 N.W. 215; Burns v. Chicago, etc., R. Co., 110 Iowa 385, 81 N.W. 794.)

No matter what the money attached by garnishment was the proceeds of, the plaintiff waived any right thereto when he agreed and requested that it should be paid into court to abide the decision of the justice. (Campbell v. Salisbury, 19 Utah 161, 56 P. 973; Overland Mining Company v. McMaster, 19 Utah 177, 56 P. 977.)

A. E. Christenson and S. P. Armstrong for respondent.

RESPONDENT'S POINTS.

Land occupied under a contract to purchase may be held as a homestead. The Constitution (article 22, section 1) exempts a homestead which may consist of one or more parcels of land. And the statute exempts a homestead consisting of lands and appurtenances. (Compiled Laws Utah, 1907, sections 1147-2829.) Neither Constitution nor statute confines the right to any particular estate or interest, but the statute defines the terms land as including possessory right and claims. (Id., sec. 2498, par. 10.)

Unless the Constitution or statute otherwise provides, a homestead may be claimed in land held under a contract of purchase. (Stinson v. Robinson, 44 Ia. 375; Bank v. Carroll, 109 Ia. 571; Lessell v. Goodman, 97 Ia. 681; McGee v. Wilcox, 11 Mich. 359, 21 Cyc. 502-c.) The proceeds of sale of homestead is exempt to the amount of the exemption existing at the time of sale. (Compiled Laws Utah, 1907, sec. 1158.) It was the duty of the officer to know that the money levied upon was exempt. (12 Am. & Eng. Ency. Law, 224-225-227; 18 Cyc. 1466 and 1467, par. 3, 1468.) There are no statutory provisions to enforce exemption rights in homestead. Hence plaintiff must resort to his common law remedies, one of which is an action for damages. (18 Cyc. 1489; 12 Am. & Eng. Ency. Law, 247-249.)

They voluntarily submitted themselves to the jurisdiction of the court and asked the judgment of the court on the merits of their defense. Their objection to the jurisdiction now comes too late. (Sargent v. Union Fuel Co., 108 P. 928 (Utah) ; Gibson v. Hijel, 108 P. 759 (Nev.) ; Merriman v. Springfield, 127 S.W. 122; Kennedy v. Gilders, 66, S. E. 620; Gager v. Marsdan, 77 N.E. 922.)

FRICK, C. J. McCARTY and STRAUP, JJ., concur.

OPINION

FRICK, C. J.

Respondent commenced this action in the city court of Salt Lake City against Michael Mauss, obtained judgment against Mauss there, from which an appeal was taken to the district court of Salt Lake County. After the cause had reached the district court the Miller-Cahoon Company, a corporation, hereafter styled appellant, was, as hereinafter stated, made a party to the action, and judgment was rendered against it, from which this appeal is prosecuted.

The facts, briefly stated are as follows: On the 16th day of April, 1908, the appellant commenced an action against respondent in the justice court of Murray City to recover the sum of $ 213.97 alleged to be owing from respondent to appellant. On the same day, pursuant to an affidavit filed for that purpose, a writ of garnishment in aid of attachment was issued in said action, and Michael Mauss, as the constable of Murray City, according to the demands of said writ, attached the sum of $ 751.80 in the hands of one F. C. Hannum, which, it was claimed, was money belonging to respondent; that thereafter, on the 29th day of April, said Mauss, pursuant to the order of said justice court, and by agreement of the parties to said action, paid the sum of $ 265 into court to await the result of the action aforesaid and returned the remainder, to wit, the sum of $ 486.80, to respondent; that said sum of $ 751.80 was in the hands of said Hannum as money due and owing by him to respondent as the proceeds arising from the sale of real estate in Murray City, which respondent claimed constituted his homestead. Respondent was a married man, and had been in actual possession, and with his family had lived in the dwelling house on said premises for a period of two years or more prior to the time that said writ of garnishment was served as aforesaid. Respondent never had the legal title to said homestead, but was in possession thereof under a contract of purchase, and the proceeds aforesaid represented his equity in the premises, the legal title of which still remained in a Mr. Clark from whom respondent had purchased the property. Appellant obtained judgment in the action aforesaid against respondent, but, before said money was applied in satisfaction thereof, he notified both said Mauss and the appellant that he claimed said sum of $ 265 paid into court by said Mauss as exempt from execution, because the same was a part of the proceeds of sale of his homestead. Upon the application of the appellant, the sum of $ 225.58 out of said $ 265 was applied in satisfaction of the judgment obtained as aforesaid. Respondent then commenced this action against said Mauss in the city court of Salt Lake City to recover said $ 225.58. Judgment was duly awarded him against said Mauss in said court, from which said Mauss appealed to the district court of Salt Lake County. After the appeal was filed in said court, respondent asked, and was granted, leave by said court to file an amended complaint in said action. The amended complaint was duly filed, and the appellant was made a party defendant with said Mauss in said action. The facts showing the relation of appellant to the action in the district court and its receipt of the money were duly alleged in the amended complaint. Appellant appeared in the action by filing a general demurrer to the complaint. The demurrer was overruled and the appellant answered the complaint, and, after admitting some and denying others of the facts as they were alleged in the complaint, substantially set forth the facts as we have stated them above. The court found the issues in favor of respondent, and also found that appellant was the real party in interest, dismissed the action against Mauss, and entered judgment against the appellant for said sum of $ 225.58, with legal interest thereon, which, with the principal, amounted to $ 279.06.

Counsel for appellant contends that it was not properly made a party to this action, and that the court had not acquired jurisdiction over it. We need not stop to inquire now whether appellant could or...