Harris v. Larsen
| Decision Date | 06 December 1901 |
| Docket Number | 1329 |
| Citation | 24 Utah 139,66 P. 782 |
| Court | Utah Supreme Court |
| Parties | EMMA E. HARRIS, Appellant, v. HENRY LARSEN and KRISTINE LARSEN, Respondents |
Appeal from the Second District Court, Weber County.--Hon. H. H Rolapp, Judge.
Action in ejectment. From a judgment in favor of the defendants plaintiff appealed.
AFFIRMED.
Nathan J. Harris, Esq., for appellant.
Even though it be contended that the judgment referred to was not strictly a purchase-price judgment, yet it is clearly a judgment on a debt created for the purchase of the land in question, and said premises would not be exempt from sale under an execution issued thereon. "A debt means a fixed and certain obligation to pay money or some other valuable thing, or things, either in the present or in the future." 91 Pa. St. 402. See also 3 Metc. (Mass.) 526; 45 Barb. 625; Leggett v. Bank, 24 N.Y. 209; 137 Mass. 531.
We contend that the judgment referred to was clearly a purchase-price judgment, that it comes within the provisions of section 3247, and that, therefore, the said premises were subject to execution issued thereon; and that appellant's title is good and valid as against the respondents herein.
M. D Lessenger, Esq., for respondents.
It is the uniform doctrine in the United States that where an obligation is given, not as security for the purchase money, but a substitute for and in payment of, there is no debt for the purchase price and a vendor's lien is thereby waived; as is also the case where there is a distinct and independent security other than the mere personal undertaking of the vendee, accepted by the vendor, unless the parties agree that such acceptance is not a waiver. 28 Am. and Eng. Ency. of Law (1 Ed.), pp. 178, 179.
I do not concur in the opinion of my learned associate, Mr. Justice BASKIN, in this case. Mr. Atwood sold the land to the respondents for $ 1,500, said sum to be paid in cash and 16,000 pounds of hogs. All of the purchase price, amounting to $ 884, was paid, except something less than 16,000 pounds of hogs. The hogs were to be received as final payment of the purchase price of the land, in accordance with the bill of sale, but they were never delivered, and judgment was obtained therefor, as part of the purchase price of the land. Execution was issued on the judgment, and the land in question was sold thereon. The judgment was for a debt created for a part of the purchase price of the land sold. The land, though a homestead, was subject to execution therefor, under section 1156, Revised Statutes 1898, which authorizes a homestead to be sold on execution in satisfaction of a judgment obtained on debts created for the purchase price thereof. Section 3247, Id. This statute is very broad. Under our statutes, words and phrases are to be construed according to the context and the approved usage of the language. Section 2497, Rev. St. 1898. A "debt," as defined by Webster is "that which is due from one person to another, whether money, goods, or services; that which one person is bound to pay to another, or to perform for his benefit; that of which payment is liable to be exacted; due; obligation; liability." Anderson's Law Dictionary defines "debt" as follows: "In its most general sense, that which is due from one person to another, whether money, goods, or services; that which one is bound to pay or to perform for another." Newell v. People, 7 N.Y. 9, 124; Kimpton v. Bronson, 45 Barb. 625. Bouvier's Law Dictionary defines "debt" to mean all that is due a man under any form of obligation or promise. City of Erie's Appeal, 91 Pa. 398. Larsen agreed to deliver the hogs as a part of the purchase price of the land. They represented that part of the purchase price that was not paid in cash. They were never delivered. Until delivered, Larsen was owing the amount they represented on the land. Atwood had no vendor's lien, under the ordinary acceptance of that term, but he held a debt and obligation against Larsen for the debt represented by the hogs. Whether such debt was evidenced by a bill of sale of the hogs, upon which a partial delivery was made, or upon a verbal promise to pay, makes no difference. The debt and obligation existed, and it grew out of the sale of the land. That obligation was given for a part of the purchase price, and the statute gave Atwood the right to levy his execution upon the homestead to satisfy it, as a debt created for the purchase price. A judgment obtained upon a contract made in part payment of land is a purchase-price judgment, whether the promised payment was to have been paid in money, or by the delivery of chattels. Doubtless one object in framing the statute in question was to protect innocent grantors from the fraud and deception of grantees who seek, through sharp practices, to rely on their homestead rights as a defense to the payment of a just debt or obligation created for its purchase.
In my opinion, the judgment is not supported by the findings, and should be reversed, and a new trial granted, with costs. It is so ordered.
--
This is an action in ejectment. The case was tried without a jury, and judgment was rendered in favor of the defendants. The only question involved is whether the findings support the judgment. The trial court found "that on July 2, 1895, said R. A. Atwood executed a deed conveying said premises [described in the complaint] to defendant Henry Larsen; that the purchase price of said land was $ 1,500, of which $ 884 was paid in cash, and that said defendants, Henry Larsen and Kristine Larsen, gave said Atwood a bill of sale of 16,000 pounds of hogs as a final payment upon said premises; that said Atwood agreed to accept the said hogs as a final payment upon said land, but that said hogs were not delivered to him; that said hogs were in the possession of said defendants at the time of the execution of said deed, and that there was no actual change of possession of the same; that they were never delivered to said Atwood; that defendants agreed to keep said hogs on their said premises until Atwood could have them removed, not to exceed six weeks from that time; that the said bill of sale was in writing, and signed by the defendants herein; that on July 29, 1895, said defendants acknowledged in writing that there was due said Atwood 6,800 pounds of hogs, which they agreed to deliver within twelve months; that in February, 1896, said Atwood accepted from the defendants one cow in lieu of 800 pounds of hogs; that the remainder of said hogs were never delivered to said Atwood; that thereafter said R. A. Atwood filed an action in the justice's court for Harrisville precinct, in Weber county, to recover the amount due on said contract, and in which said Atwood recovered judgment against the defendants herein for $ 276 and costs on January 28, 1899." It was, in substance further found that the real estate in question was sold, under an execution issued on said judgment, to Pehr Agren, for $ 200, and afterwards conveyed to him by the constable who made the levy and sale under the execution; "that said real estate is, and was at the time of said sale, worth $ 1,000, and that it was all the real estate owned by the defendants at that time;" that on November 23, 1900, Pehr Agren conveyed said real estate to Emma E. Harris, the plaintiff and appellant. As conclusions of law, the court found that at the date of the judgment, execution, and sale and conveyance of said real estate, the same was the homestead of the said defendant Henry Larsen, and exempt from sale under execution; that the sale and conveyance of said real estate was void; and that the said Henry Larsen is now the owner of the same.
Section 1147, Revised Statutes Utah 1898, provides that "a homestead consisting of lands and appurtenances, which lands may be in one or more localities, not exceeding in value with the appurtenances and improvements thereon the sum of fifteen hundred dollars for the head of the family, and the further sum of five hundred dollars for his wife, and two hundred and fifty dollars for each other member of his family, shall be exempt from judgment lien and from execution or forced sale, except as provided in this title." Section 1156 provides that "the homestead is subject to execution in satisfaction of judgments obtained . . . on debts created for the purchase thereof." And, in the chapter relating to executions, section 3247 provides that "no article or species of property mentioned in this chapter or in the title Homesteads' is exempt from execution issued upon a judgment recovered for its purchase price, or any portion thereof." Real estate is one of the species of property mentioned herein. Counsel for the appellant contends that the judgment obtained by Atwood, the vendor, against the respondents, was a judgment for the purchase price of the land in question, and therefore, by virtue of the provisions of section 3247, said land was not exempt from the execution under which the same was sold and...
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