Traders' Nat. Bank of Spokane v. Schorr

• Citation: 20 Wash. 1,54 P. 543
• Court: United States State Supreme Court of Washington
• Decision Date: 19 September 1898
• Parties: TRADERS' NAT. BANK OF SPOKANE v. SCHORR ET AL.

54 P. 543

20 Wash. 1

TRADERS' NAT. BANK OF SPOKANE v. SCHORR ET AL.

Supreme Court of Washington

September 19, 1898

Appeal from superior court, Spokane county; William E. Richardson Judge.

Action by the Traders' National Bank of Spokane against George F. Schorr and Carrie B. Schorr. From a judgment in favor of defendants, plaintiff appeal. Reversed.

Graves Wolf & Graves, for appellant.

W. A. Lewis, for respondents.

REAVIS, J.

In November, 1891, appellant obtained judgment in the superior court of Spokane county against respondents, who were then and are now, husband and wife. At the time, respondents resided upon certain real property in the city of Spokane which is now of the value of about $1,000, and which was their homestead. After rendition of the judgment against them, respondents conveyed their homestead in moieties by separate deeds to Mrs. Brier and Mrs. Stratton. In 1893 appellant commenced two suits in the superior court, one against the respondents and Mrs. Brier, and the other against the respondents and Mrs. Stratton. The complaint in each suit stated the rendition of the judgment against respondents, and that respondents were husband and wife; that transcript of the judgment was filed with the auditor of Spokane county and duly recorded, before the conveyances to Mrs. Brier and Mrs. Stratton were executed, and alleged that the judgment was a lien upon the real estate so conveyed, and that the deeds of conveyance executed by respondents were wholly without consideration, and were made for the purpose of evading the judgment, and for the purpose of defrauding the appellant and other creditors of respondents, and that the land at the time of the conveyances was subject to the lien of appellant's judgment, and that respondents had no other property out of which plaintiff could make the judgment except property described as likewise conveyed and included in the two deeds mentioned; that execution had been issued upon the judgment, but there was no property upon which it could be levied except the realty which is the subject of controversy in this action; and the prayer of the complaint was that the judgment be declared a lien upon the real estate mentioned, and that the deeds of conveyance to Mrs. Brier and Mrs. Stratton be set aside as against the judgment of appellant, and for a decree against defendants authorizing and directing the sheriff of Spokane county to sell the real estate upon the execution issued on the judgment for the satisfaction thereof. Respondents, together with Mrs. Brier and husband and Mrs. Stratton and husband, were made defendants, and they all appeared and united in an answer to the complaint. The answer admitted the execution and delivery of the deeds, and denied the other material allegations of the complaint. Upon the issues thus made the cause went to trial and evidence was heard, and the court found the rendition of the judgment against respondents, and that said judgment had not been paid, and the amount due and owing thereon; that the transcript of the judgment was duly filed and recorded as alleged in the complaint, and the conveyance by the deeds as stated in the complaint; and that the judgment was a lien upon the real estate, and appellant was entitled to make the same thereon by execution; and on the 13th day of October, 1893, a decree was entered that appellant could proceed to sell the real estate on execution upon its judgment, and that the purchaser at such execution sale should take all the right and interest owned and possessed by the respondents at the time of the rendition of the judgment, on the 23d of November, 1891. No exception or appeal was taken to or from the decree. In November, 1893, respondent George F. Schorr duly executed and recorded a declaration of homestead upon the said real estate. On the 17th of March, 1897, the original judgment was duly revived, and the lien of judgment continued thereon by decree entered of that date in the superior court, and thereafter execution was issued, and the premises sold under said execution, and upon motion to confirm such sale the present controversy arose. Upon argument of the cause before this court, all the objections to the jurisdiction of the superior court to consider this controversy in the form in which it was presented were waived by counsel for the respective parties, and the cause is here considered as upon an issue properly made to determine the homestead right in the premises in litigation at this time.

1. The superior court found, and the conceded facts sustain the conclusion, that the realty in controversy was the homestead of respondents when the judgment in favor of appellant was rendered against them in 1891; and a vital question is, does a general personal judgment become a lien upon a homestead in this state? It is maintained by counsel for respondents that the sale of the property was not made in the manner and form provided by law for the sale of homesteads (2 Hill's Code, § 484); that, on the contrary, the sheriff's return shows that all proceedings prior to the sale were under the statutes for sale of lands other than homesteads (2 Hill's Code, § 496 et seq.); and counsel contends that the lien of the judgment attaches to all the real estate of the judgment debtor, including the homestead; and in support of such contention cites the case of McMillan v. Mau, 1 Wash. St. 26, 23 P. 441. In that case the widow, as administratrix of the estate of her deceased husband, petitioned the probate court to set aside a homestead; but creditors who had obtained a judgment against the deceased, and filed a transcript thereof in the auditor's office, claimed that the deceased moved upon the land after the lien attached, and such creditors filed objections to the allowance of such homestead, setting up their judgment lien, and that the lien took precedence of the homestead claim of the widow. The probate court sustained the priority of the lien over the homestead claim, which view was also sustained by the territorial district court, to which an appeal had been taken, but upon appeal to this court it was said: "We think that, under the laws relating to the selection of homesteads, the action of the probate and district courts was erroneous; that the obtaining of a general judgment lien does not cut off the subsequent selection of a homestead at any time before sale." It will thus be observed, from a consideration of the case cited, that the precise question involved in the controversy now here was not ruled upon in that case.

It is also contended by counsel that the homestead exemption is a personal privilege, to be exercised by the claimant or not at his will and at any time before sale. As a general rule, the lien of a judgment only attaches to property which there is a present power to sell, and the question must be solved by the statutes relating to homestead exemptions. The state constitution imposes its mandate upon the legislature to protect the homestead from forced sale. Article 19, § 1. The statute in force at the time of the rendition of appellant's original judgment against respondents, in 1891, was 2 Hill's Code, § 481, in which a homestead not exceeding in value $1,000 was exempted from execution or attachment. By Id. § 482, the homestead passed to the widow surviving the husband, or to the...