Davis v. Low

Mr. Justice Eakin delivered the opinion of the court. We will first dispose of the question of the lien against the homestead. Section 221, L. O. L., pro [601] vides: ‘ ‘ The homestead of any family shall he exempt from judicial sale for the satisfaction of any judgment hereafter obtained. * * ” Section 222proceeds: “Such homestead shall not exceed $1,500 in value, nor exceed * * one block; but in no instance shall such homestead be reduced to less than * * one lot, regardless of value.” Section 223 specifies that the act shall not apply to decrees for the foreclosure of any mortgage, but that the mortgage must be executed by husband and wife. There is also provision as to how and when the homestead exemption may be claimed, and the proceeding to be had by which the excess may be applied in case the homestead is of greater value than $1,500. 1. It has been held by this court that the homestead is an exemption only in favor of those entitled to it: Mansfield v. Hill, 56 Or. 400 (107 Pac. 471, 108 Pac. 1007). 2. It is also said that, where the statute creating the homestead exemption contains no exception in favor of a mechanic’s lien, there can be no lien on the homestead : Boisot, Mechanics’ Liens, § 135. In 21 Cyc. 518, it is said that, if the homestead laws contain no exception in favor of debts created in making improvements, the court can make none, and the homestead is liable only for such a lien when the exemption is waived in favor of it, which must be by the signature of the husband and wife to the contract: Boisot, Mechanics’ Liens, § 141; 21 Cyc. 519; Roberts v. Riggs, 84 Ky. 251 (1 S. W. 431); Fallihee v. Wittmayer et al., 9 S. D. 479 (70 N. W. 642); Lippencott v. York, 86 Tex. 276 (24 S. W. 275); Lignoski v. Crooker, 86 Tex. 324 (24 S. W. 278, 788). Execution upon judgment for the labor or material improvements on a homestead are within the class from which the homestead is exempt. 3. The exemption, however, may be waived or relinquished by abandonment of the homestead, or by a conveyance, as held in Hansen v. Jones, 57 Or. 416 [602] (109 Pac. 868), where the law is held to he only an exemption from attachment and judicial sale. Therefore a creditor may, if the debtor is otherwise liable for the debt, reduce his claim to judgment, and have it entered upon the judgment docket, and, if the homestead be abandoned or lost in any way, the property will be subject to levy and sale: 15 Am. & Eng. Ency. of Law (2 ed.), 621. It would probably be too late for a debtor to claim the homestead exempt from levy and sale on execution after a court has declared the debt to be a lien upon the property and decreed a sale thereof. The sheriff would be bound by the direction of the writ. We conclude that under our homestead exemption law the homestead is not subject to a mechanic’s lien. 4. At the hearing some discussion was had as to plaintiff’s right to a lien upon the property over and above the homestead value of $1,500; but there was no issue tendered as to that question. Plaintiff has tried the case upon the theory that the homestead is not exempt from liability upon a mechanic’s lien. It was conceded, at least at the hearing, that the property is the homestead of the defendants, and there was no allegation that it was worth more than $1,500, nor evidence offered upon that question. What plaintiff’s remedy might be in a case like this, if the homestead were of greater value than $1,500, it is not necessary now to determine. By Sections 224, 225, L. O. L., the burden as to these questions seems to be upon the plaintiff. The question of the value of the homestead was not presented. Therefore plaintiff has no remedy in this proceeding. The decree is reversed and the suit dismissed. Reversed: Suit Dismissed. Mr. Justice Bean and Mr. Justice McNary concur. Mr.. Chief Justice McBride not sitting.