McPhee v. O'Rourke

Stallcup, C.

By the record and argument three questions are presented for consideration:

1. Under our statute concerning homesteads, has the wife the character of a head of the family, while occupying with her husband her property as a home, to entable her to designate and affect such home with the character of a homestead, so as to exempt it from seizure and sale for the joint debt of herself and husband? The first and fourth sections of the statute are as follows:

“Section 1. 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 $2,000, exempt from execution and attachment arising from any debt, contract or civil obligation entered into or incurred after the 1st day of February in the year of our Lord 1868.”

“ Sec. 4. When any person dies seized of a homestead, leaving a widow, a husband or minor children, such widow or husband or minor children shall be entitled to the homestead.”

In the enactment of these provisions the legislature recognized a married woman as a person possessing to-some extent the character of a householder and head of a. family, though living with her husband. The purpose-of the statute is to preserve the home for the family.. When the wife is the owner of the property occupied as. the home of the family, she is the only one capable of: investing it with the exemption character provided by *306 the statute. Under our statutes the married woman never did occupy the dwarfed position that afflicted her under the common law. Since the act of our legislature of 1874 the married woman has been without disability concerning her property and property rights; and, at the time of the passage of the homestead act in 1868, she owned and controlled all property she brought to the marriage, independent of her husband; had power to carry on business in her own name, to sue and be 'sued as if single, and to acquire property by her earnings and business, and to hold the same, as if single. So we conclude •that, in the nature of things, and in the legislative mind, the husband and wife both possess the- character of a householder and head of a family, at least to the extent to enable either of them owning the home they occupy as such, to designate it as a homestead, and that the statute, as is clearly apparent from the language used in section 4, above quoted, is expressive of such view. Thomp. Homest. §§ 220-222.

2. Should the act designating the homestead- operate as against a creditor for material used in improvements upon the property before it was so designated? As to this question, it is Sufficient to say that there is no proviso in the statute against such operation. By failing to take the steps necessary to secure a lien upon the premises, under the provisions of our mechanic’s lien act, the right to subject the premises to such debt was lost.

3. Does it vitiate the homestead character of the property when the designation thereof as a homestead was for the pui’pose of preventing the creditor from collecting his debt? The purpose of the designation of the property as a homestead is to put it out of the reach of creditors while occupied asa home; and such. purpose, and the consequent result of such designation, are warranted by the statute, though occurring after the debt was contracted, and immediately before the creditor had *307 attached or levied upon the property, and though the debtor had no other property liable for his debt. Barnett v. Knight, 7 Colo. 365 . In no way does the statute rest upon the principles of equity, nor in any way yield thereto. By it we see the policy of the state is to preserve the home to the family, even at the sacrifice of just demands, for the reason that the preservation of the home is deemed of paramount importance. The exemption under the homestead act being confined to debts contracted after the passage of the act, it may well be said that there can be no superior or controlling equity in the premises, and he who gives-credit does so with knowledge of the statute, and the purpose and policy thereof, as well as the additional risk thereby occasioned. And whether the title to the home be in the maternal or paternal head of the family, they occupy a position in relation to the state making it more important that such home should be preserved to them, than that it should be taken to pay the legal demands against them collectible by attachment and execution. The duty and relation to the state in such case are of higher import than the duty and relation to such creditor. In the first section of his work on homesteads and exemptions, Mr. Thompson reproduces some expressions from eminent sources upon this view, as follows: “The late Senator Benton, advocating in the United States senate the adoption of a general homestead policy, said: ‘Tenantry is unfavorable to freedom. It lays the foundation for separate orders in society, annihilates the love of country, and weakens the spirit of independence. The tenant has, in fact, no country, no hearth, no domestic altar, no household god. The freeholder, on the contrary, is the natural supporter of free government, and it should be the policy of republics to multiply their freeholders, as it is the policy of monarchies to multiply their tenants.’ ‘There is,’ said Tarbell, J., in a case in Mississippi, ‘unquestionably, no greater incentive to virtue, industry and love of country *308 than a permanent ‘home,’ around which gather the affections of the family, and to which the members fondly turn, however widely they may become dispersed.’ ‘The law,’ said the supreme court of Iowa, in an early case, ‘ is based upon the idea that, as a matter of public policy, for the promotion of the prosperity of the state, and to render independent and above want each citizen of the government, it is proper he should have a home,— a homestead,— where his family maybe sheltered, and live beyond the reach of financial misfortune, and the demands of creditors who have given credit under such law. And this policy is characterized as ‘liberal’ and ‘benevolent.’”

It is also contended by counsel for plaintiff in error that this property was acquired by the defendant in error, Bridget O’Rourke, by a conveyance from her said husband, Dennis O’Rourke, who was jointly indebted with her on the said demand of the said McPhee & McGrinnity; that such conveyance was without consideration and in fraud of his creditors, the said McPhee & McGrinnity; and that such conveyance should be held void and the property applied to the discharge of his said debt; that it was not rightfully her property when she designated it as a homestead. Such are the premises for a creditor’s bill in equity, the consideration of which is impracticable in this action by reason of the want of Dennis O’Rourke as a party to the action. Allen v. Tritch, 5 Colo. 222. But even had the husband, Dennis O’Rourke, been made a party, the legal status of the parties here would remain unchanged. The judgment of plaintiffs in error was against both the husband and wife, Dennis and Bridget O’Rourke. The conveyance of the property from one to the other could in no way prejudice plaintiffs in error in the collection of their judgment, as it is not such a conveyance as one conveying the property to a person whose property would be beyond the reach of the judgment. Besides, it has been held *309 that when a conveyance to the wife is made or caused to be made by the husband, for the purpose of placing the home beyond the reach of his creditors, the wife is not precluded thereby from claiming the benefit of the homestead statute, even as against such creditors. Orr v. Schraft, 22 Mich. 260 ; Edmonson v. Meacham, 50 Miss. 39. The decree should be affirmed.

We concur: Macon, 0.; Bising, 0.

Per Curiam.

For the reasons assigned in the foregoing opinion the decree of the superior court of the city of Denver is affirmed.

Affirmed.