Paulson v. Hurlburt

• Decision Date: 09 September 1919
• Citation: 93 Or. 419,183 P. 937
• Parties: PAULSON v. HURLBURT, SHERIFF.
• Court: Oregon Supreme Court

183 P. 937

93 Or. 419

PAULSON v. HURLBURT, SHERIFF.

Supreme Court of Oregon

September 9, 1919

Department 2.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Suit by Josephine Paulson against T. M. Hurlburt, Sheriff of Multnomah County, for injunction. Decree for plaintiff, and defendant appeals. Affirmed.

The defendant Hurlburt is sheriff of Multnomah county. The plaintiff is the owner of a lot in Irvington and the dwelling constructed thereon, and resides there with her family; their actual physical occupation of the premises as their home having commenced on Thanksgiving Day of 1914. She was the owner and holder of the legal title of the property at the time the construction of the residence mentioned began, and continued as such owner, except as the title thereto is affected by a conveyance to W. J. Clemens on December 30 1914, which was accompanied by a defeasance in writing of that date, conditioned in substance that Clemens would reconvey the property on payment of all charges against the property, with certain exceptions; the payment to be made within one year. The construction of the dwelling began prior to August 24, 1914; there being no building on the property before that time. The plaintiff and her family were living then on other property not owned by her. The dwelling mentioned was completed in the latter part of December, 1914. Suit to foreclose certain mechanics' liens upon it was commenced January 25, 1915, ending in a decree of foreclosure directing the property in dispute to be sold for the satisfaction of the liens. Execution was issued after the case had been appealed to this court, and returned to the circuit court modified, and the sheriff was proceeding to advertise the property for sale when on July 14, 1917, he was notified in writing by the plaintiff here that she claimed the property to be exempt from execution as her homestead. As the defendant failed to desist in his purpose to sell the property, this suit was instituted to enjoin the sale so long as the plaintiff continues to occupy it as her homestead. In the stipulation of facts from which the foregoing statement is condensed, it is agreed that the plaintiff did not interpose her homestead right as a defense in the suit to foreclose the liens; further, that if she were allowed to testify on the subject she would state that when she commenced the building of the residence on the property she intended to make it her home as soon as she could occupy it and that the intention had never been abandoned. The circuit court adopted the stipulation as findings of fact, and as a conclusion of law upheld the plaintiff's claim of homestead, and enjoined the sale. The defendant appeals.

Johns J., dissenting.

Arthur H. Lewis, of Portland (Lewis, Lewis & Finnigan, W. S. Asher Angell & Fisher, and Hall & Lepper, all of Portland, on the brief), for appellant.

L. P Hewitt, of Portland, for respondent.

BURNETT, J. (after stating the facts as above).

The question to be determined is whether or not the owner of realty, being a member of family living in a dwelling erected on the land, can claim homestead as against an execution issued on a decree foreclosing liens for labor and material furnished in the erection of the house into which the owner moved and took up her residence with her family prior to foreclosure. It is not necessary to decide what would result if she had not occupied the dwelling until after issuance of execution, for that is not the aspect of this case.

There are two lines of authority. Those precedents cited by the defendant are to the effect that the lien binds the property as against the homestead exemption from the date of furnishing the labor or material, so that, although at that time the would-be homesteader owned the property and intended to occupy it with his family as a home as soon as he could do so, yet all this would not prevent its sequestration by execution issued on a decree of foreclosure subsequently obtained. The other decisions, on the contrary, are to the effect that homestead is a privilege to be exercised by the owner of the property only when an attempt is made to sell it, and if at that time he comes within the purview of the homestead statute he can successfully claim the benefit of the homestead privilege. All the cases are affected in different ways by the particular terms of the statute under which they are decided, but in the main the enactments are very much alike. Our own statute does not require any previous notice of the claim of homestead. It is said in section 221, L. O. L.:

"The homestead of any family shall be exempt from judicial sale for the satisfaction of any judgment hereafter obtained. Such homestead must be the actual abode of, and owned by such family or some member thereof."

It is provided in section 224, L. O. L., that when any officer shall levy upon such homestead, the owner thereof, wife, husband, agent, or attorney of such owner, may notify such officer that he claims such premises as his homestead, describing the same by metes and bounds, lot or block, or legal subdivision of the United States. Then follows other procedure in relation thereto not necessary to be considered here. Some statutes prescribe a notice or notation on the record, or some such thing, to establish a homestead. The law in this state on that subject requires no previous action of that sort. The privilege here depends upon the fact whether the claimant comes within the intent of the statute. It is not necessary to have any precedent record or memorial of that fact, or to follow any particular form in asserting the claim to an officer holding an execution.

Some of the defendant's citations are here noted. In Hansen v. Jones, 57 Or. 416, 109 P. 868, the plaintiff had acquired property through her former husband's estate. A judgment was docketed against her October 14, 1907. She sold the property November 27th following. The execution was levied December 31st. The land was reconveyed to her on the 10th of the following month, and three days after again acquiring the title she interposed for the first time a claim of homestead against the pending sale. Mr. Justice Slater, discussing the situation, said:

"In this case plaintiff was not the owner of the premises at the time the execution was levied, and therefore she could not then, or thereafter, assert the right of a homestead subsequently acquired as superior to the lien of the judgment."

This language indicates that the matter is controlled by the conditions existing at the time the levy of execution is made. In Northwest Thresher Co. v. McCarroll, 30 Okl. 25, 118 P. 352, Ann. Cas. 1913B, 1147, the circumstances were that when the judgment was rendered the defendant was living on a United States homestead not the realty in dispute. Before the execution was levied he returned to the property in suit, which had been his former abode, and then claimed it as his exempt homestead. The court said that--

"It seems to be well settled by the authorities that, when a judgment lien has attached, it cannot be divested by the subsequent occupation of the land for homestead purposes."

In Upman v. Second Ward Bank, 15 Wis. 449, the judgment had been rendered and became a final lien upon the land before the debtor came to the state, after which he went upon the land and claimed it as his homestead. The court said:

"For if the judgment debtor could defeat the creditor under such circumstances, and destroy his right to sell the property, we are unable to see why a party might not, upon the same principle, buy real estate subject to sale under prior existing liens, and then utterly defeat those liens by claiming the property for a homestead."

Bunn v. Lindsay, 95 Mo. 250, 7 S.W. 473, 6 Am. St. Rep. 48, was a case where the defendant had moved off the land, and it was said in the syllabus:

"When a judgment lien has attached to land, it cannot be defeated or displaced by subsequent occupation as a homestead."

Many of these cases and numerous others cited by the defendant depend upon the circumstances that, when the lien and the decree enforcing it attached to the property, the homestead claimant was a stranger to the title. Many others rest upon the fact that, whereas, he once had homestead in the premises, he had abandoned it.

In the instant case we may dismiss the arrangement with Clemens, for it appears that the instrument ostensibly passing the title, although on its face an absolute conveyance, was accompanied by a defeasance in writing, showing that it was a security as against certain claims. This clearly constitutes a mortgage, and did not divest the title from the grantor.

The defendant cites section 415, L. O. L., reading thus:

"The provisions of section 213 to section 220, inclusive, and section 227 to section 258, inclusive, of this Code, shall apply to the enforcement of a decree so far as the nature of the decree may require or admit of it; but the mode of trial of an issue of fact in a proceeding against a garnishee shall be according to the mode of trial of such issue in a suit."

The part of the Code included in sections 213 to 220 relates to the constituent elements of executions against property against the person, and for the delivery of the possession of real or personal property, to what counties the writ may issue, when it is returnable, and the like. Sections 227 to 258 cover exemptions as they were codified before the homestead statute was enacted, the procedure to determine by a sheriff's jury any adverse claim to property seized by him on execution, manner of levy and sale, confirmation redemption, and proceedings after execution. The defendant argues that, because the homestead sections are not mentioned in the...