Utah Builders' Supply Co. v. Gardner

• Decision Date: 15 March 1935
• Docket Number: 5445
• Citation: 42 P.2d 989,86 Utah 257
• Parties: UTAH BUILDERS' SUPPLY CO. v. GARDNER
• Court: Utah Supreme Court

42 P.2d 989

86 Utah 257

UTAH BUILDERS' SUPPLY CO. v. GARDNER

No. 5445

Supreme Court of Utah

March 15, 1935

Appeal from District Court, Third District, Salt Lake County McConkie, Judge.

For former opinion, see 86 U. 250; 39 P.2d 327.

Petition denied.

O. H Matthews, of Salt Lake City, for appellant.

Thomas & Thomas, of Salt Lake City, for respondent.

FOLLAND Justice. ELIAS HANSEN, C. J., and EPHRAIM HANSON, MOFFAT, and WOLFE, JJ., concur.

OPINION

On petition for rehearing.

FOLLAND, Justice.

A decision in this case was heretofore rendered and is published in 86 Utah 250; 39 P.2d 327. In view that a petition for a rehearing has been filed, supported by rather vigorous briefs wherein it is insisted we have misconceived the meaning of certain cases cited in support of our conclusions, we deem it advisable to further express our thoughts.

Respondent has undertaken to distinguish the case of Payson Exch Sav. Bank v. Tietjen, 63 Utah 321, 225 P. 598, from the facts of the instant case. We recognize the difference. That was a suit to set aside a conveyance alleged to have been made in fraud of creditors, while this is one for foreclosure of a mechanic's lien. In that case the defendant Tietjen had available to him the defense that his property, afterwards claimed as a homestead, was at the time of his conveyance his homestead, and for that reason he had a right to convey it away with or without consideration, and such conveyance was not in fraud of creditors, since creditors would have no right to subject his homestead to the lien of their judgments. The defense of homestead would have been a complete defense to the action. Traders' Nat. Bank of Spokane v. Schorr, 20 Wash. 1, 54 P. 543, 72 Am. St. Rep. 17. Tietjen did not see fit to make such defense, and the judgment went against him. Title to the property was revested in him and the property ordered sold in satisfaction of the judgment. He set up the claim that the property was his homestead when the sheriff, armed with an execution under the order of sale, attempted to sell it in satisfaction of the judgment. This court held his claim of homestead was timely made. In that case, however, this court did not adopt or follow the doctrine of the Washington case last cited, that where the debtor, in an action to set aside a conveyance in fraud of creditors, permits judgment to be rendered subjecting his entire interest in the land to the satisfaction of the judgment without asserting his right of homestead, the judgment is final as to that issue, and the debtor cannot assert his homestead claim in any subsequent proceeding. The Tietjen Case is therefore an exception to the rule contended for by respondent, to the effect that

"a valid judgment for plaintiff is conclusive, not only as to the defenses which are set up and adjudicated, but also as to those which might have been raised, so that a defendant can neither set up such defenses in a second action between the same parties nor in a further proceeding in the same action."

The right to claim a homestead exemption is a right which the head of a family may assert to prevent sale under execution of his homestead at any time prior to the sale of the premises, unless such claim has been previously asserted and actually adjudicated against him. This is not a mere privilege conferred upon the head of a family, but an absolute right intended to secure and protect the home against creditors as a means of support to every family in the state, and the claim may be made at any time before sale or execution. Kimball v. Salisbury, 17 Utah 381, 53 P. 1037; Folsom v. Asper, 25 Utah 299, 71 P. 315. This court has previously held that an order of sale made by a court on foreclosure of a mechanic's lien is "clearly an execution sale within the meaning of the Constitution" and "it is obvious that the constitutional provision exempts a homestead from execution sale without restriction, limitation or exception of any kind. * * * When the people, through their Constitution, have spoken and have thus exempted the homestead from execution sales without exceptions of any kind,...