Weare v. Johnson

• Decision Date: 20 November 1894
• Citation: 20 Colo. 363,38 P. 374
• Parties: WEARE et al. v. JOHNSON et al.
• Court: Colorado Supreme Court

38 P. 374

20 Colo. 363

WEARE et al. v. JOHNSON et al.

Supreme Court of Colorado

November 20, 1894

Appeal from district court, Weld county.

Action by Bruce F. Johnson and others against Elizabeth J. Weare and others to determine the right of possession of a tract of land. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

This is an action to determine the right of possession to certain real estate in Weld county, viz. the W. 1/2 of the N.E. 1/4 and the E. 1/2 of the N.W. 1/4 of section 24, township 2 N range 65 W. of the sixth P. M. Plaintiffs had judgment in the district court, and the defendants bring the case here by appeal. The opinion of this court is based upon the action of the district court in sustaining a general demurrer to the amended third and fourth defenses. In the third defense it is alleged that the land was originally filed on as a United States homestead entry in 1884, but that final proof was made December 7, 1888, as a pre-emption entry, but it is averred that the premises were occupied by defendant Nathan Weare and his wife as a homestead. It is contended by counsel that without any entry of the word 'homestead' in the margin of the record, the land, acquired and proved upon as a preemption entry, being occupied as the residence of the family of the entry man, is exempt by virtue of the general statutes of Colorado. In the fourth defense it is averred that Nathan Weare obtained a final receiver's receipt for the land from the United States, as a pre-emption entry man on December 7, 1888, and on December 14, 1888, caused the word 'homestead' to be written on the margin of the record of said receiver's receipt, and signed the same which signature was duly attested by the county clerk and recorder of Weld county, Colo.; that the land does not exceed $2000 in value, and was constantly occupied as a homestead by the wife of said Weare. Appellee Johnson, plaintiff below, having duly obtained judgment against said Weare, November 13, 1888, in the district court of Weld county, on December 6, 1888, eight days before this homestead marginal entry was made, duly filed in the county clerk's office a transcript of judgment of docket entries in due form, which remained on permanent file in said office, as well as recorded therein; that execution issued on the judgment December 5, 1888, and was levied on the land December 17th. The question raised by this defense is: Was the lien of Johnson's judgment upon the land defeated by the subsequent entry of the word 'homestead' on the margin, before the levy of the execution?

Howze & Willsea, for appellants.

H. N. Haynes and W. J. Weeber, for appellees.

HAYT C.J. (after stating the facts).

It is admitted in the third amended defense that the defendant Nathan Weare took nothing by his homestead filing in the United States land office, as he had previously exhausted his homestead right. The title acquired by him was by virtue of the pre-emption laws, and not otherwise; hence no exemption is claimed under the provisions of the United States statutes with reference to homesteads, as in the case of Mercantile Co. v. Davis, 18 Colo. 93, 31 P. 495. Exemption is, however, claimed under the proviso of the following statute of this state, viz.: 'Every interest in land, legal and equitable, shall be subject to levy and sale under execution, and the claim or possessory right of any defendant in execution, in or to any public lands, may be levied upon and sold under execution, in the same manner as if the same were held by such defendant in fee-simple: provided, that nothing in this chapter contained shall be so construed as to give any plaintiff in execution the right to levy on any land filed on by any person, in the land office of the Colorado land district, and occupied as a homestead by the defendant in execution.' Mills' Ann. St. § 2582. The proviso has reference solely to lands the title of which still remains in the government. It was insterted, we think, as a precautionary measure to prevent any apparent clash between the state statute and the provision of the federal statute making a homestead taken thereunder exempt from liability for any debt contracted prior to the issuance of patent. Rev. St. U.S. § 2296. The language of the state statute, following as it does the declaration in general terms that 'the claim or possessory right of any defendant in execution may be levied upon and sold,' etc., clearly indicates that the proviso refers to lands filed upon and held merely by possessory title, and not to lands after final proof has been made, and to which a receiver's receipt has been issued. The demurrer to the third defense was therefore properly sustained.

The demurrer to the amended fourth defense calls for a...