Woodward v. People's Nat. Bank
| Decision Date | 26 September 1892 |
| Citation | 31 P. 184,2 Colo.App. 369 |
| Parties | WOODWARD v. PEOPLE'S NAT. BANK et al. |
| Court | Colorado Court of Appeals |
Error to district court, Arapahoe county; ALVIN MARSH, Judge.
Bill by Fred Woodward against the People's National Bank and Leonard Jackson, sheriff of El Paso county, to restrain the sale of land on execution. A temporary injunction was dissolved, and plaintiff brings error. Reversed.
F.J Mott, for plaintiff in error.
W.J Weeber, for defendants in error.
Plaintiff in error was plaintiff below. The suit was brought to restrain the People's National Bank, a judgment creditor and Leonard Jackson, the sheriff of El Paso county, from selling certain lands of the plaintiff in El Paso county upon execution in favor of the bank. The land in question was an unoccupied portion of the public domain, until about the 18th day of October, 1890, when plaintiff settled upon it and made a filing under the pre-emption laws of the United States, and since such date he has been residing upon it with his family. On May 14, 1891, he made proof of rights as required by law, made the necessary payment to secure the title, and received a receiver's receipt, which was recorded. A few days afterwards (date not given, but prior to the 15th day of July, 1891) he caused the word "Homestead" to be entered of record on the margin of the record of the receiver's certificate, and signed his name as required by law. On February 16, 1891, the judgment was obtained, and on the 21st day of February, 1891 a transcript of the judgment was filed in El Paso county. On July 15, 1891, an execution was sued out, directed to the sheriff of El Paso county. (Jackson, the defendant,) who, on the 12th day of September following, levied upon the land and advertised it for sale. The suit was brought to enjoin the sale, a temporary injunction granted, which was afterwards dissolved, and the sale allowed to proceed. The case is brought up for review. The facts being conceded, only one question is presented, was the land exempt from sale under the execution? The statute is as follows: "Every householder in the state of Colorado, being the head of a family, shall be entitled to a homestead not exceeding in value the sum of two thousand dollars, exempt from execution and attachment, arising from any debt, contract, or civil obligation entered into or incurred after the first day of February, in the year of our Lord one thousand eight hundred and sixty-eight." Mills' Ann.St. p. 1301, § 2132. "To entitle any person to the benefit of this act, he shall cause the word 'Homestead' to be entered of record in the margin of his recorded title to the same, which marginal entry shall be signed by the owner making such entry, and attested by the clerk and recorder of the county in which the premises in question are situated, together with the date and time of day upon which such marginal entry is so made." Id. p. 1303, § 2133. It is contended by the defendants in error that, having obtained judgment and filed a transcript before plaintiff acquired title and designated the land as a homestead, the statutory lien of the judgment creditor attached upon the acquiring of the title, and such lien was superior to the homestead...
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