Philbrick v. Andrews

• Decision Date: 09 January 1894
• Docket Number: 914
• Parties: PHILBRICK v. ANDREWS. [1]
• Court: Washington Supreme Court

35 P. 358

8 Wash. 7

PHILBRICK v. ANDREWS. ^[1]

No. 914

Supreme Court of Washington

January 9, 1894

Appeal from superior court, Jefferson county; R. A. Ballinger Judge.

Ejectment by W. W. Philbrick against Augustus Andrews. Judgment for defendant. Plaintiff appeals. Affirmed.

Geo. W Tyler, for appellant.

Johnson & Moody, for respondent.

SCOTT J.

Respondent and his two minor children of his first wife live upon certain land patented to him during the life of that wife, by the government, as a homestead claim. The first wife died and he married a second time, and his second wife procured a divorce from him. The decree of divorce adjudged that the wife have and recover of her husband (respondent here) the sum of $1,500 as alimony, the same to be a "lien upon the property of the said defendant." No property, real or personal, was mentioned or described in the decree, nor does it appear that any property was described in the proceedings in said divorce action, the pleadings and proofs therein not having been made a part of the record in this cause. A judgment for $1,500 and the costs of the case was docketed June 19, 1891, and a general execution was issued thereon August 15, 1891. The sheriff proceeded to levy upon and make sale of the land above mentioned, which consisted of 160 acres in Jefferson county. At the sale appellant bid $1,600 for the whole tract, and paid the officer $50 cash, as he claims, to bind the sale, payment of the balance being promised upon the following day; but appellant refused to pay the balance upon the day named, or at all, and, when the execution lapsed, the sheriff returned it unsatisfied, with a statement of the facts and the $50. This return was made in October, 1891. Subsequently, and in February, 1892, the plaintiff in the divorce suit moved, ex parte, for the confirmation of the sale to appellant, and, in aid of said motion, filed appellant's affidavit to the effect that he had paid to the plaintiff the sum of $1,550 upon the day of the sale, in satisfaction of the judgment; the receipt of the plaintiff for the full sum was also filed; and thereupon, and on the same day on which the motion was filed, the court ordered the sale confirmed. After the expiration of the time of redemption, the sheriff executed to appellant a deed of the land, and this action of ejectment followed for the purpose of obtaining possession. Trial was had, and judgment was rendered for the defendant.

The land in question was community property of the defendant and his first wife, and, upon her death, one-half of it descended to their minor children. There is no question but that the court had power in the divorce action to award the half belonging to the defendant, or any part of it, to the plaintiff, or to render a judgment for a sum of money, and make it a specific lien thereon which would take precedence of a homestead exemption. But to do either it was necessary that the property should have been brought before the court ( Webster v. Webster, 2 Wash. St. 417, 26 P. 864;) and the proper way to have done this was to describe it in the pleadings, ( Bamford v. Bamford, 4 Or. 30.) If the property was not brought into said case by either party, the court had no jurisdiction over it, and could not dispose of it therein, nor create a specific lien thereon. It was for the plaintiff in this case to show that the facts were such as to give the court this authority; and, in the absence of any showing to that effect, the judgment rendered in favor of the plaintiff therein could not be made a lien upon the defendant's property except by an execution levy, or by causing the judgment to be recorded in the office of the county auditor, under section 449, 2 Code, when, as in the case of other judgments, it would become a lien upon his real estate; but in either of these cases the defendant's right to a homestead exemption would be a paramount claim. The only attempt to establish a lien in the decree was by the clause above quoted therefrom, and this was insufficient, under the circumstances,-at least to establish a specific lien which would take precedence of the right to a homestead exemption; and there could be no presumption that it did, because it did not purport to establish any lien upon any particular property. The fact that the judgment was in favor of the wife would make no difference. Thomp. Homest. & Ex. §§ 79, 80. The court found, in the findings of fact in said divorce action, which were introduced in evidence in this action, "that the defendant is the owner of one...