Volker-Scowcroft Lumber Co. v. Vance
| Decision Date | 06 February 1907 |
| Docket Number | 1791 |
| Citation | 88 P. 896,32 Utah 74 |
| Court | Utah Supreme Court |
| Parties | VOLKER-SCOWCROFT LUMBER CO v. VANCE et al |
APPEAL from District Court, Weber County; J. A. Howell, Judge.
Action by the Volker-Scowcroft Lumber Company against Mary Flinders Vance and another. From a judgment for plaintiff, defendant Mary Flinders Vance appeals.
REVERSED.
J. D Skeen and Geo. Halverson for appellant.
APPELLANT'S POINTS.
It is true in a marital sense that the husband is the head of the family, but if the family domicile is owned by the wife she is the head of the family for the purpose of protecting the exemption. (Thompson on Homesteads, secs. 40, 41, 220, 225 and cases cited in notes; McPhee v. O'Roucke, 10 Col. 331, 15 P. 420, 3 Am. St. 579; Stout v. Rapp, 17 Neb. 467; Parkee v. Stewart, 50 Miss. 717; McHugh v. Smalley, 17 Neb. 620; Orr v. Shroft, 22 Mich. 260.)
Article 22, section 1, can be construed in no other way than as the mandate of the people acting in their sovereign capacity. The people were not satisfied with using, in the article in question, the strongest language known, but in section 26 article 1, they say, "The provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise." (State v Holden, 14 Utah 85; Eastman v. Gurrey, 14 Utah 171; Judge v. Spencer, 15 Utah 242; Boyd v. United States, 116 U.S. 616, 29 L.Ed. 746, 6 S.Ct. 524.)
"It must be obvious, however, that where the constitution of a State provides for a homestead exemption and defines such exemption in any distinct particular the Legislature cannot diminish the exemption in that particular without an express grant of power in the Constitution so to do." (Thompson on Homesteads and Exemptions, sec. 16; State v. Armstrong, 17 Utah 176; Judge v. Spencer, 15 Utah 242; Matthews v. Jensen, 21 Utah 223; Bank v. Chambers, 21 Utah 334; Parker v. Quinn, 23 Utah 332.)
The homestead was intended to protect the home for the family as against acts of the head of the family; and yet to subject it to a mechanic's lien would enable the husband to make improvements and the mechanic deprive the family of the exemption without any element of consent on the part of the family. It would be a forced sale on execution, the very thing the people in their sovereign capacity sought to avoid. (McPhee v. O'Rourke, 10 Colo. 301, 15 P. 420, 3 Am. St. 581; Tuttle v. Strout, 7 Minn. 465, 82 Am. Dec. 108; Cogel v. Mickow, 11 Minn. 354; Meyer v. Berlandi, 30 Minn. 438, 12 Am. St. 633; Keller v. Struck, 61 Minn. 446; Boisot on Mechanics' Liens, sec. 30; Thompson on Homesteads and Exemptions, sec. 16; Coleman v. Ballandi, 22 Minn. 144; Mortin v. Hughs, 67 N.C. 293; Cumming v. Bloodworth, 87 N.C. 83; Lee v. Murphy, [Cal.], 51 P. 549; Walsh v. McManomy, 74 Cal. 356, 16 P. 17; Pichards v. Shea, 70 Cal. 187, 11 P. 607.) The notice must be in substantial compliance with the statute. (Boisot on Mechanics' Liens, sec. 418; Morrison v. Willard, 17 Utah 306, 70 Am. St. 784, 53 P. 832; Campbell v. Jackson, [Ill.], 34 N.E. 39; In re Emslie, 98 F. 716; Buckley v. Commercial National Bank, 171 Ill. 284, 49 N.E. 617; Clark v. Boarman [Md.], 43 A. 926.)
C. C. Richards and A. E. Prath for respondent.
RESPONDENT'S POINTS.
Lord Coke says "That 'steth' or 'stead' betokeneth a place." According to that definition homestead would mean home-place, the place where the home is. It is the home--the house and the adjoining land--where the head of the family dwells. This term as been substantially so defined by many courts. (21 Cyc. 458; Thompson on Homestead Exemptions, sec. 100, p. 85; Waples on Homestead and Exemption, pp. 1, 275; Gammett v. Storrs, 15 Utah 336.)
In 21 Cyc. 472, it is said, "A mere intention to occupy at some future time is never sufficient. Such intent should be evidenced by unmistakable acts showing an intention to carry out such design, and must usually be followed by actual occupancy within a reasonable time. (Hair v. Davenport [Neb.], 103 N.W. 1042; White v. Danforth [Iowa], 98 N.W. 136; McCrie v. Hixon Lumber Co. [Kan.], 51 P. 966; Evans v. Calman [Mich.], 52 N.W. 787; Power v. Burd [Mont.] 43 P. 1094; Sharp v. Johnson, [Tex]., 19 S.W. 259.) The purpose of the law being to require such open evidence of this intention as will prevent the use of this right as a shield for fraud. (Foley v. Hollkamp [Tex.], 66 S.W. 891.) If therefore a lien has attached or credit has been extended on the faith of such property, before such a selection has been made, the subsequent selection would not divest the liability. There is another class of debts for which the homestead may be liable notwithstanding the exemption, namely, purchase price debts. To this class are likened the debts due materialmen and mechanics, even in the absence of an exception from the exemption in their favor.
1. This action is brought to foreclose a materialman's lien. It is alleged in the complaint that the defendant Mary Flinders Vance was the owner of certain lots in Ogden City, Utah; that she let a contract to defendant Peterson to construct a dwelling on the premises; that the plaintiff, at the request of both defendants, furnished building material which was used in the construction of the house, and which remained unpaid; and that a notice of intention to claim a lien was filed for record. The defendant Vance answered, admitting her ownership of the lots, the letting of the contract to Peterson for the construction of the house, but denied that the material furnished by plaintiff was furnished at her request. It was further alleged by her that at the time of the filing of her answer, and at all times mentioned in the complaint, she was the head of a family, consisting of herself, two children, and her husband; that prior to and at the time of the letting of the contract the lots were and still are her homestead; that she let a contract to Peterson to erect a dwelling on the lots for the use of herself and family, and to hold them as a permanent homestead; that she paid the contractor the full contract price; that the value of the lots, with the improvements, does not exceed the homestead exemption, and thereupon she prayed that the real estate with the improvements be declared her homestead and exempt from plaintiff's lien and from sale on execution. The court sustained plaintiff's general demurrer interposed to that portion of defendant's answer which alleged that the homestead was exempt, "upon the ground that the allegations of said answer respecting such claim of exemption do not constitute a defense to plaintiff's action." The defendant refused to further plead. A judgment was rendered in favor of plaintiff, awarding it a lien on the real estate and ordering a sale of the premises in satisfaction of plaintiff's claim, from which judgment the defendant Vance has prosecuted this appeal.
2. The homestead statute (section 1156, Rev. St. 1898) provides:
"A homestead is subject to execution in satisfaction of judgments obtained (1) on debts secured by mechanics' or laborers' liens for work or labor done or material furnished exclusively for the improvement of the same." The appellant contends that this statute is in violation of section 1, article 22, of the Constitution, which provides that "the Legislature shall provide by law, for the selection by each head of a family, and exemption of a homestead, which may consist of one or more parcels of lands together with the appurtenances and improvements thereon of the value of at least fifteen hundred dollars from sale on execution."
Nearly all of appellant's brief is addressed to this question. While the respondent does not concede appellant's proposition, nevertheless it has not offered anything in support of the validity of the statute. It seeks to uphold the ruling of the court upon the ground that the answer does not contain sufficient allegations that the defendant was the head of a family, that the lots were her homestead at the time the contract was let to Peterson, and that a selection of a homestead had been made by her before plaintiff's lien attached. It is argued that, if the wife be the head of a family consisting of children and her husband, the facts and circumstances which make her such must be alleged; otherwise it will be presumed that the husband is the head. This may be true under a statute designating the husband the head, or in the absence of a statute defining who is the head of a family. Subdivision 1, sec. 1154, Revised Statutes 1898, provides that the phrase "head of a family," as used in the homestead statute, includes within its meaning "the husband or wife, when the claimant is a married person; but in no case are both husband and wife entitled each to a homestead under the provisions of this title, except to the extent hereinbefore provided." Subdivision 2 prescribes the conditions...
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