Schreiber v. Hill, Civil 4095

• Decision Date: 13 November 1939
• Docket Number: Civil 4095
• Citation: 95 P.2d 566,54 Ariz. 345
• Parties: JOSEPH D. SCHREIBER, Appellant, v. HARRY W. HILL, Receiver of Intermountain Building & Loan Association, a Utah Corporation, Appellee
• Court: Arizona Supreme Court

95 P.2d 566

54 Ariz. 345

JOSEPH D. SCHREIBER, Appellant, v. HARRY W. HILL, Receiver of Intermountain Building & Loan Association, a Utah Corporation, Appellee

Civil No. 4095

Supreme Court of Arizona

November 13, 1939

APPEAL from an order of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Order reversed and caused remanded with instructions.

Messrs Silverthorne & Silverthorne, for Appellant.

Messrs Baker & Whitney and Mr. Lawrence L. Howe, for Appellee.

OPINION

LOCKWOOD, J.

This appeal comes before us on an agreed statement of facts which is, in substance, as follows: On the 17th of June, 1937, A. D. Stanely and L. Faye Stanley, his wife hereinafter called defendants, were the holders of the record title to lot 12, block 1, Brentwood Addition to the City of Phoenix. On that date, Harry W. Hill, as receiver of the Intermountain Building & Loan Association, a Utah corporation, recovered a judgment against the Stanleys, in the superior court of Maricopa county, for the sum of approximately $282, which judgment was docketed in the office of the clerk of the superior court, and a transcript thereof recorded in the office of the county recorder. Thereafter, and on the 12th of August, the Stanleys executed and acknowledged a deed to said premises in favor of Joseph D. Schreiber, and left it with R. L. Sloan of the Arizona Title Guarantee & Trust Company, hereinafter called the trust company, with oral instructions that he should deliver the deed to Schreiber if, and when, the latter was satisfied as to the title he would receive to the premises. On August 18th, the defendants executed a declaration of homestead on said property in proper form, which declaration was duly recorded in the office of the county recorder of Maricopa county on August 19th. On August 25th Schreiber paid to L. Faye Stanley the purchase price agreed upon, and the latter notified the trust company to deliver the deed to Schreiber, which was done, and the deed recorded on the same day in the office of the county recorder. Thereafter, and on the 3d of October, 1938, an execution was issued on the judgment aforesaid and a levy made on the premises described herein, whereupon Schreiber moved to quash the writ of execution on the ground that the property was exempt from execution under the judgment on which the writ was issued. The motion to quash was denied, and this appeal was taken.

The question before us is whether the declaration of homestead made by defendants rendered the property exempt from execution on the judgment referred to herein. This will be determined by the construction of sections 1731 and 1733, Revised Code of 1928, which read as follows:

"§ 1731. Who may hold; extent and value. Every person who is the head of a family, and whose family resides within this state, may hold as a homestead, exempt from attachment, execution and forced sale, real property to be selected by him, or her, which homestead shall be in one compact body, not exceeding four thousand dollars in value, and consisting of the dwelling house in which the claimant resides and the land on which the same is situated, or of land that the claimant shall designate, provided the same is in one compact body."

"§ 1733. Exempt from time of filing. The homestead shall, from the date of recording the claim, be exempt from attachment, execution and forced sale, and from sale under any judgment or lien existing prior to the recording of such claim, except a mortgage executed by the husband and wife, if the claimant be married, or by the claimant if unmarried, and except a lien for labor or material that has attached before such land was claimed as a homestead. No such sale made after the recording of the claim of homestead shall be valid or convey any interest in such homestead, whether made under a judgment existing before or after the recording of such claim."

These sections first appeared in our law in chapter 79 of the session laws of 1907, and were carried forward in the codes of 1913 and 1928 in substantially the same form. We have had them under construction in a number of cases. It will be observed that our statute, unlike the homestead law of many other states, does not limit the right to claim a homestead to the property on which the debtor resides, but permits it to be declared on any land owned by him, provided the same is in a compact body and not of a value in excess of four thousand dollars. In the case of Wilson v. Lowry, 5 Ariz. 335, 52 Pac, 777, 779, we declared the general policy of the homestead law as follows:

"... It is the well-settled policy of the courts to liberally construe those humane and beneficial provisions of the law exempting certain property from execution for the payment of debts. The state has an interest in protecting families, and especially helpless children, against pauperism, and securing to them the means of reasonable comfort and education...."

Following this, in the case of Wuicich v. Solomon-Wickersham Co., 18 Ariz. 164, 157 P. 972, 973, we said:

" Under this privilege he may select unimproved land, provided it is in one compact body and does not exceed $4,000 in value, or he may select, with the same limitation, improved business property or improved farming land, whether it has a dwelling on it or not. In other words, the Legislature intended that every head of a family living in this state should have exempt from attachment, execution, or forced sale at least $4,000 worth of real property, whether it was utilized as a home or not. If claimed as a home, it must be occupied as such, and cannot exceed in value $4,000; if not used and claimed as a...