Pierson v. Truax , 15 Colo. 223 ( 1890 )

Reed, C.

The only question presented for review is the judgment of the court in overruling the demurrer. The allegations in the complaint, under the circumstances, are to be regarded as true; the only question being whether the matters alleged were sufficient to entitle the plaintiff to the relief asked. By section 1, chapter 51, General Statutes, a homestead not exceeding $2,000 in value is exempt from execution and attachment. By section 2 of the same chapter the householder, in order to avail himself of such exemption, is required to cause the word “ ‘ homestead ’ to ■be entered of record in the margin of his recorded title,” etc.

The ownership of the property is alleged, and a compliance with the requirement of section 2 by the proper entry prior to the levy of the attachment. Section 3 of same act provides: “ Such homesteads shall only be exempt as provided in the first section of this act, while occupied as such by the owner thereof, or his or her family.”

It is alleged in the complaint “that plaintiff has always occupied said premises as his home from the date he purchased the same, and has not since said date had, nor has ■his family had, any other home, and that he has never abandoned said homestead at any time, and that neither he nor his family have ever left said premises except temporarily, and that even at such times a portion of the household goods of plaintiff and of his family was kept upon said premises and in the house situated thereon.” This allegation is sufficiently full and definite. The temporary absences, as alleged, are not such as to preclude a party from claiming the benefits of the exemption. Temporary absence from necessity or convenience would not forfeit the right. The statute cannot be construed as requiring an actual personal occupation at all times and under all circumstances.- It is intended that the place shall be the only home of the family, and shall not be abandoned and another occupied with the intention of making such change permanent.

It is urged in argument that the exemption, to be effective, should have been interposed in the suit by attachment. It would, without doubt, have been better practice; but the law having been, as shown in the complaint, complied with, and the exemption appearing of record, the levy of the attachment was wrongful, and the property was absolutely exempt from its operation. The sale of the property under execution would have been a further wrong against which the party had a right to provide, and we cannot say the court was not justified in entertaining the suit, and granting relief in the only way apparently available under the circumstances. If the allegations in the complaint could he successfully controverted by proof, they should have been traversed, and the issues of fact tried. If they could not be successfully controverted, the plaintiff was entitled to the protection of the court to retain his homestead under the statutory exemption. ¥e advise that the judgment of the court below be affirmed.

Bichmond and Bissell, CO., concur.

Per Curiam.

For the reasons stated in the foregoing opinion the judgment is affirmed.

Affirmed.