Shelby v. Ziegler ( 1908 )

In order to dispose of this case, it is necessary to consider the following propositions: (1) Is a judgment on a motion to discharge an attachment, on the ground that the property seized under such writ was exempt, res judicata in a subsequent direct proceeding, or other action against such property? (2) After the receiver's final receipt or certificate has been issued therefor, is the homestead exempt as against execution, or other proceedings, on a judgment for tort, independent of any contract; such judgment having been rendered on a date subsequent to the issuance and delivery of such receipt or certificate? (3) Does the exemption from liability for debts, as provided by section 2296, Rev. St. U.S. (U.S. Comp. St. 1901, p. 1398), apply to such homestead after final proof has been made and receiver's certificate issued therefor? (4) Can a judgment be reviewed, where there is no motion for a new trial; the record showing that a jury was waived and said cause was to be heard by the court, upon motion for judgment on the pleadings and the admissions of fact submitted to the court? (5) Does a deed, reciting "maintenance and furnishing all necessaries during the life of the grantor" as the consideration therefor, raise such a presumption of fraud, or the grantor retain such an interest and benefit in the property attempted to be conveyed, as to render the same fraudulent and void upon its face as to the rights of the plaintiff? (6) Is the plaintiff, in an action for a tort committed, independent of any contract, a creditor, so as to entitle him to maintain an action under section 906, Wilson's Rev. Ann. St. 1903, to have cancelled and set aside a conveyance of real estate, or any interest therein, made for the purpose of hindering, delaying, or defrauding creditors?

1. Section 4365, Wilson's Rev. Ann. St. 1903 (chapter 66, art. 11, § 167), provides upon what grounds an attachment may issue, either at or after the commencement of an action upon the property of the defendant. Section 4366 of the same chapter provides that the order of attachment shall be made and issued by the clerk of the court in which the action is brought, upon any of the grounds set out in section 4365, supra, upon the affidavit of the plaintiff, his agent or attorney, showing first, the nature of the plaintiff's claim, second, that it is just, third, the amount which the affiant believes the plaintiff ought to recover, and, fourth, the existence of some one of the grounds for an attachment enumerated in said section 4365. Section 4368 of the same chapter provides that the order of attachment shall be directed to the sheriff, requiring him to attach the lands, tenements, goods, chattels, stocks, rights, credits, moneys, and effects of the defendant in his county, not exempt by law from being applied to the payment of the plaintiff's claim, or so much thereof as will satisfy the plaintiff's claim, to be stated in the order as in the affidavit, and the probable cost of the action not exceeding $50. Section 4415 of the same chapter provides that the defendant may at any time before judgment, upon reasonable notice to the plaintiff, move to discharge the attachment, as to the whole or part of the property attached.

In the case of Carnahan v. Gustine, 2 Okla. 405, 37 P. 594, the nisi prius court on motion dissolved the attachment and discharged the attached property. That was a proceeding under sections 4118 and 4119 of the Statutes of 1893 (sections 4415, 4416, Wilson's Rev. Ann. St. 1903), and the court held that such proceeding must stand or fall upon the truth or falsity of the affidavit for attachment; but no question was there involved as to whether or not the attachment as to exempt property could be vacated in such a proceeding.

The case of Lane Implement Co. v. Lowder et al., 11 Okla. 63,65 P. 926, was an action commenced by the Lane Implement Company in the probate court of Pawnee county on a forthcoming bond, executed by the defendant in an attachment proceeding begun before a justice of the peace, which was levied on certain property of the defendant, Lowder. The court said:

"If the attached property was exempt, that question should have been raised and litigated in the original action, and the presumption is that it was. At any rate, the judgment of the court sustaining the attachment is conclusive until reversed in that particular case, and it cannot be considered when raised for the first time in this action on the forthcoming bond; and, then, it has been held that, by giving a forthcoming bond, one is estopped from denying that the property returned under it is the property of the party who gave the bond, or that the property was subject to attachment. Bowden et al. v. Burnham etal. and Barnes et al. v. Same, 59 Fed. 752, 8 C. C. A. 248;Sponenbarger v. Lemert, 23 Kan. 55; Haxtun v. Sizer,23 Kan. 310; Wolf v. Hahn, 28 Kan. 588; Case Bishop Co. v. Shultz Hosea, 31 Kan. 96, 1 P. 269; Peterson v. Wollen, 48 Kan. 770, 30 P. 128, 30 Am. St. Rep. 327; Greenville National Bank v.Evans-Snyder-Buel Co., 9 Okla. 353, 60 P. 249. But ignoring that question altogether, the judgment of the justice of the peace sustaining the attachment, until vacated, is res judicata as to every question which was litigated in that action, and the defendants in this case are bound thereby. The court, instead of sustaining the defendants' motion for judgment in their favor, should have overruled it, because their answer, as heretofore stated, showed clearly that they had absolutely no defense."

As to the rules announced in this case, in so far as the same are in conflict, if any, with the rule hereinafter declared, we decline to follow same.

In the case of Brunson v. Merrill, 17 Okla. 44, 86 P. 431. following the case of Watson v. Jackson, 24 Kan. 442, it is held that:

"The decision of a motion before a justice of the peace, to discharge from seizure certain property taken on attachment, on the ground that it is exempt, is not conclusive, and the question of exemption may be tried thereafter in an action of replevin brought by the judgment debtor."

In the case of Sparks v. City National Bank of Lawton et al.21 Okla. 827, 97 P. 575, Mr. Justice Turner, speaking for the court, said:

"We heartily condemn the practice pursued in this case of permitting plaintiff in error to move to dissolve the attachment, instead of requiring her to interplead for the attached property; but, in view of a long line of Kansas cases recognizing the practice, we will not disturb it. With the practice thus established, and which we follow reluctantly, there can be no question as to the right of the plaintiff in error to file her motion to dissolve the attachment upon the ground that the lots levied upon were her property."

The court further held in that case that the motion to set aside the judicial sale is addressed to the reasonable discretion of the court, and, in the absence of an abuse of that discretion, this court will not interfere, and that the final decision of the court upon such motion is not conclusive as to the ultimate rights of either party.

In the case of Heidel v. Benedict, 61 Minn. 174, 63 N.W. 491, (31 L. R. A. 422, 52 Am. St. Rep. 592), the court said:

"It appears that, before this action was commenced, the assignee had intervened in the suit between Benedict and Heidel, and made a motion to dissolve the attachment, and that the court denied the motion. It is now claimed that, under this decision, the validity and priority of the attachment lien isres judicata. But it is well settled that the determination of a motion or summary application is not res judicata, so as to prevent the parties from drawing the same matter in question again in the more regular form of an action. 2 Black, Judgm. § 391, Kanne v. Minneapolis St. L. Ry. Co., 33 Minn. 419, 23 N.W. 854."

Sections 1171 (Laws 1866, Rev. St. 1866, p. 424, tit. 8, c. 3, art. 1, subdiv. 1, § 198), 1172, (Laws 1866, Rev. St. 1866, p. 425, tit. 8, c. 3, art. 1, subdiv. 2, § 199), 1174 (Laws 1866, Rev. St. 1866, p. 426, tit. 8, c. 3, art. 1 subdiv. 2, § 201), 1208 (Laws 1866, Rev. St. 1866, p. 432, tit. 8, c. 3, art. 1, subdiv. 6, § 235), of Cobbey's St. Neb. 1907; section 3294, 3295, 3297, and 3313. Code Civ. Proc. Idaho 1901; sections 4215, 4216, 4218, and 4223, Rev. Laws Minn. 1905; sections 205, 207, 209, and 223, Revised Codes S.D. 1903; and sections 537, 538, 540, and 556, vol. 3, Kerr's Cyclopedic Codes of California — are substantially the same as sections 4365, 4366, 4368, and 4415, Wilson's Rev. Ann. St. 1903, supra.

In the case of Quigley et al. v. McEvony, 41 Neb. 73, 59 N.W. 768, the court said:

"The motion to dissolve the attachment was made on the grounds that the order of attachment was wrongfully sued out, want of jurisdiction of the court to grant the writ, the untruth or falsity of the allegation of nonresidence of Sarah A. Quigley, the defendant in the attachment suit, and that the property levied upon was the homestead of the defendants in the case. The main propositions to be decided at such a hearing are: First, the sufficiency of the affidavit; second, the falsity of the charge in the affidavit filed to obtain the issuance of the writ of attachment. Whatever matters may be in some cases necessarily or properly heard and determined, we do not think it is competent or proper practice, where the writ is levied upon real estate belonging to the debtor, to allow the homestead character of the property to be drawn in question as one of the grounds for the motion to discharge the attachment. The hearing is upon affidavits, more or less skillfully drawn, according to the ability or lack of the same in this particular branch, of the party who frames them, or his artistic skill, or want of it, in the affidavit line. We think it is unquestionable that the question of whether the premises constitute a homestead should be determined in proceedings instituted in the manner directed by our statutory law, and, if there is any disagreement, then the same be determined in a proper action in court, in which issues can be regularly joined, and the matter tried in the manner prescribed for the trial of issues of law and fact, and that the ends of justice will be better subserved by this latter course of proceedings than by the determination of the homestead question in the course of a hearing on a motion to discharge an attachment."

In the case of Mason et al. v. Lieuallen, 4 Idaho, 415, 39 P. 1117, the foregoing excerpt from the case of Quigley v.McEvony, supra, is quoted with approval, and there held that it is not competent or proper practice to determine the homestead character of property in a judgment in a motion to discharge the attachment.

In the case of Davidson v. Owens, 5 Minn. 74 (Gil. 55), Mr. Chief Justice Emmett, speaking for the court, said:

"The last objection urged, that the property attached is not the subject of attachment, cannot, if true, avail the defendants in this proceeding. The question here is as to the validity of the warrant of attachment, and, if the warrant has been properly issued, it cannot be vitiated by any irregularity of the officer in executing it. The writ may be no defense to the officer for taking property not subject to attachment, but the taking of such property affords no ground for vacating the writ."

In the case of Pech Mfg. Co. v. Groves, 6 S.D. 508, 62 N.W. 110, the court said:

"As to the objection urged in appellant's brief that the land levied upon is appellant's homestead, and therefore exempt from attachment, was not presented in the motion to discharge the attachment, and there is nothing in the record to indicate that the land, at the time of the levy, possessed any homestead characteristics, we are not called upon to consider whether, in any event, upon a motion to dissolve an attachment, the homestead right may be litigated and determined, and such property released from the levy. It would seem, however, that the seizure of property exempt under the homestead laws affords no ground for vacating an attachment. Davidson v. Owens,5 Minn. 69 (Gil. 50.)"

In the case of Risdon Iron Locomotive Works v. Citizens'Traction Co. of San Diego, 122 Cal. 96, 54 P. 530 (68 Am. St. Rep. 25), the court said:

"* * * Respondent claims that an order for the release of attached property on the ground that it is not liable to seizure under the writ is not an order dissolving the attachment. To us, however, it seems that as regards the property released the attachment is as effectually dissolved by such an order as if the writ were quashed. The provision of section 963, giving the right of appeal, is in terms directed to an order dissolving an attachment. The words 'an attachment' in this connection are quite broad enough to include seizure and custody under the writ as well as the writ itself. Thus it is common to say that final judgement for defendant has the effect to dissolve a prior attachment — an expression which has no regard to any question whether the writ was properly or regularly issued."

It is earnestly contended by plaintiff in error that the judgment on the motion to discharge the attachment, on the ground that the property seized under the writ was exempt, isres judicata, and the case of Commissioners of Wilson County v.McIntosh, 30 Kan. 239, is cited, wherein the court said:

"We are aware that this court has already held the decisions of certain motions not conclusive, such as motions to set aside sales (White-Crow v. White-Wing, 3 Kan. 276; Harrison v.Andrews, 18 Kan. 535; Halsey v. Van Vliet, 27 Kan. 474), motions to discharge property from seizure on attachment on the ground that it is exempt (Watson v. Jackson, 24 Kan. 442), as to which motions some at least of the considerations above suggested apply. As to them, we may remark that they date from an early period in the history of this court, and, being but the settling of a rule of practice, ought not lightly to be disturbed. But outside of such motions and those of a kindred nature, we think that, with the limitations suggested, it is wiser to follow the indications of our statutes and the later decisions, and hold that a question once clearly and fully decided with right of special and separate review may be resjudicata, even though such decision was only an order upon a motion."

We have set out at length excerpts from decisions of the Supreme Courts of Nebraska, Idaho, Minnesota, and South Dakota, and referred to the similarity of the statutes of said states to ours, for the purpose of showing that it is not considered in such states good practice to have a levy under a writ of attachment vacated, on the ground that the property is exempt, or belongs to some person other than the defendant in such action. However, such practice has been long recognized by the Kansas courts, and acquiesced in by the Supreme Court of the territory of Oklahoma in the case of Brunson v. Merrill, supra, and followed by this court in the case of Sparks v. City National Bank of Lawton,supra, and such seems to be the recognized practice in the courts of California (Risdon Iron Locomotive Works v.Citizens' Traction Co. of San Diego, supra), which state has a similar statute to our own. It is very probable that the fact that motions were entertained to have property discharged from attachment, on the ground that same was exempt, not by virtue of any express statute, but by an apparently assumed discretion, originally induced the Kansas courts to hold that the judgments on such preliminary motions were not resjudicata. We do not feel, under the circumstances, that we would be justifiable in disturbing this settled rule of practice; but, outside of such motions and those of a kindred nature, we think it is wiser to hold that a question once clearly and fully decided, with right of special and separate review, may be res judicata, even though such decision was only an order upon a motion.

2. Rev. St. U.S., c. 5, § 2296 (U.S. Comp. St. 1901, p. 1398), provides:

"No land acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuance of the patent therefor."

The question presented by this record is whether or not a tort committed, independent of any contract, for which an action would lie at common law for the recovery of damages, but would abate with the death of the aggrieved party, is such a liability as was contemplated, and within the purview of the term "any debt contracted." There is no dearth of authorities on this question, and whilst there is apparent conflict, yet, when we closely examine the records upon which such decisions were predicated, there is in fact no actual conflict, except in one instance. These words being used in an act of Congress, we will first examine the federal decisions, and see how the words "debt" and "contract" have been construed, as used in our federal Constitution and the acts of the Congress of the United States.

In the case of State of Louisiana v. Mayor of New Orleans,109 U.S. 287, 3 Sup. Ct. 213 (27 L.Ed. 936), Mr. Justice Field, in delivering the opinion of the court, said:

"The term 'contract' is used in the Constitution in its ordinary sense, as signifying the agreement of two or more minds, for considerations proceeding from one to the other, to do, or not to do, certain acts. Mutual assent to its terms is of its very essence. A judgment for damages, estimated in money, is sometimes called by text-writers a specialty or contract of record, because it establishes a legal obligation to pay the amount recovered; and, by fiction of law, a promise to pay is implied where such legal obligation exists. It is on this principle that an action ex contractu will lie upon a judgment. Chitty on Contracts (Perkins' Ed.) 87. But this fiction cannot convert a transaction wanting the assent of parties into one which necessarily implies it. Judgments for torts are usually the result of violent contest, and, as observed by the court below, are imposed upon the losing party by a higher authority against his will and protest."

In the case of Chase v. Curtis et al., 113 U.S. 464, 5 Sup. Ct. 556 (28 L.Ed. 1038) Mr. Justice Matthews, in delivering the opinion of the court, said:

"It is finally insisted that a judgment against the corporation, although founded upon a tort, becomes ipso facto a debt by contract, being a contract of record, or a specialty in the nature of a contract; but we have already seen that the settled course of decisions in the New York Court of Appeals rejects the judgment against the corporation as either evidence or ground of liability against the trustees, and founds the latter upon the obligation of the corporation on which the judgment itself rests. And it was decided by this court in the case of Louisiana v. New Orleans, 109 U.S. 285, 3 Sup. Ct. 211, 27 L.Ed. 936, that a liability for a tort, created by statute, although reduced to judgment by a recovery for the damages suffered, did not thereby become a debt by contract in the sense of the Constitution of the United States forbidding state legislation impairing its obligation, for the reason that 'the term "contract" is used in the Constitution in its ordinary sense as signifying an agreement of two or more minds, for considerations proceeding from one to the other to do or not to do certain acts. Mutual assent to its terms is of its very essence.' The same definition applies in the present instance and excludes the liability of the defendants, as trustees of the corporation, for its torts, although reduced to judgment."

In the case of Bolden v. Jensen et al. (D.C.) 69 Fed. 746, Hanford, District Judge, in construing section 990 of the Revised Statutes (U.S. Comp. St. 1901, p. 709), which provides that "no person shall be imprisoned for debt in any state, on process issuing from a court of the United States, where by the laws of such state imprisonment for debt has or shall be abolished," said:

"The statute and the rule refer only to imprisonment for debt, and do not affect the power of the court to issue a warrant of arrest as process for compelling the defendants to respond to a claim for unliquidated damages, which is not a debt, any more than it restricts the power of the court to imprison defendants for nonpayment of fines or by the way of punishment for contempt. The word 'debt,' when used in a statute, without some plain or explicit declaration making it applicable thereto, does not include taxes nor claims for unliquidated damages. The legal definition of the word is opposed to unliquidated damages, or a liability in the sense of an inchoate or contingent debt, or an obligation not enforceable by ordinary process. Rap. L. Law Dict.; Cooley, Tax'n, p. 13; Lane Co. v. Oregon, 7 Wall. 71-81, 19 L.Ed. 101."

When the right to be free from arrest and incarceration on account of debt is involved, there would be more reason, from a humane concept, to insist upon a liberal construction than when exemption of property is claimed. Section 2, art. 10, of the Constitution of Alabama, provides:

"Every homestead * * * shall be exempted from sale on execution or any other process from a court, for any debt contracted since the 13th day of July, 1868, or after the ratification of this Constitution."

In the case Meredith v. Holmes, 68 Ala. 191, the late Chief Justice Stone, in delivering the opinion of the court, construing the above provision, said:

"In a large majority of the cases — in fact, in all whose statutes employ language similar to ours, except, perhaps, the court of Illinois — the ruling has been that the exemption does not extend to judgments and executions in actions of tort. * * * The decision in Conroy v. Sullivan, 44 Ill. 451, is based on the peculiarity of their legislation. In North Carolina, and in Wisconsin, the language of their exemptions is different from ours. * * * A tort is not a 'debt contracted,' and our exemption of the homestead does not protect it against recoveries for torts."

The rule in this case is followed in Williams v. Bowden,69 Ala. 433; Vincent v. State, 74 Ala. 281; Schuessler v. Dudley,80 Ala. 548, 2 So. 526, 60 Am. Rep. 124; McLaren v.Anderson, 81 Ala. 107, 8 So. 188; Penton v. Diamond, 92 Ala. 611, 9 So. 175; Stuckey v. McKibbon, 92 Ala. 622, 8 So. 379; Dangaix v. Lunsford, 112 Ala. 403, 20 So. 639;Northern v. Hanners, 121 Ala. 587, 25 So. 817, 77 Am. St. Rep. 74.

Sections 1 and 2, art. 9, of the Constitution of Arkansas of 1875 (sections 2107, 2108, Ind. T. Ann. St. 1899; §§ 2992, 2993, Mansf. Dig. Ark.), provide that certain personal property of any resident of the state, who is not married or the head of a family, in specific articles to be selected by such resident, not exceeding in value $200, and, when he is married or the head of a family, not exceeding in value $500, shall be exempt from seizure on attachment or sale on execution or other process from any court, on debt by contract. In the case ofCason v. Bone et al., 43 Ark. 17, in construing said sections of the Constitution, it is held that a debtor's personal property is not exempt from execution for a tort. The courts of that state, in their holdings, have uniformly conformed to that rule. Smith v. Ragsdale, 36 Ark. 297; Massie et al. v. Enyartet al., 33 Ark. 688. In the case of Gaines v. Toles, 1 Ind. T. 543, 37 S.W. 946, the United States Court of Appeals of the Indian Territory followed the rule announced by the Supreme Court of Arkansas.

In Georgia, the term "debt contracted" (Cobb's Dig. Ga. pp. 385, 389, 390) is construed in the case of Davis v. Henson,Sheriff, 29 Ga. 346. Mr. Justice Lumpkin, in delivering the opinion of the court, said:

"The single question in this case is whether the homestead exemption statute in this state protects property from judgments founded on torts. An inspection of the several acts shows clearly that they do not, but that they apply expressly and exclusively to judgments founded on contracts. Cobb, pp. 385, 389, 390. Whether this discrimination should be made, it is for the Legislature, and not for the courts, to decide."

Section 2505, c. 126, p. 168, Laws 13th Gen. Assem. Iowa, provides that "neither husband nor wife is liable for the debts or liabilities of the other incurred before marriage. * * *" In the case of McElfresh v. Kirkendall et al., 36 Iowa, 226, wherein the word "debt" is construed, the court said:

"The words 'debt' and 'liability' are not synonymous, and they are not commonly so understood. As applied to the pecuniary relation of parties, liability is a term of broader significance than debt. The legal acceptation of debt is a sum of money due by certain and express agreement. Black. Com. book 3, 154. Liability is responsibility; the state of one who is bound in law and justice to do something which may be enforced by action. This liability may arise from contracts either express or implied, or in consequence of torts committed. Bouvier's Law Dict. If A. owes B. $1,000, he is indebted and liable to B. for that sum. But if A. has spoken slanderous words of B., whereby a right of action has accrued, he has become liable, and it is only after judgment has been obtained that this liability assumes the character of a debt."

In the case of Stauffer v. Remick, 37 Kan. 455, 15 P. 584, the court said:

"The first question which arises in this case is whether Stauffer was indebted to Remick at the time the indorsement was made on the execution issued in the action of Kline v. Remick. It is not alleged in plaintiff's petition that he was so indebted. It states a jury had found a verdict in Remick's favor against him, but it is silent as to the cause of action upon which it was found. If it was upon a contract for liquidated damages, it would be a debt, not because of the verdict of the jury, but because of the liability on the contract. If the verdict was found in an action in tort, the verdict would not be a debt. A verdict on a cause of action resting in tort does not convert the tort into a debt. It must be merged into a judgment before it becomes a debt."

In the case of Thayer v. Southwick et al., 8 Gray (Mass.) 229, Mr. Chief Justice Shaw, in delivering the opinion of the court, said:

"The verdict did not convert it into a debt. No action of debt would lie on it. It could not constitute a debt till judgment should be rendered on it. * * *"

In the case of Clark v. Nevada Land Mining Co., Lim.,6 Nev. 203, the court said: "A claim for damages is not a debt. * * *"

In the case of Lathrop v. Singer, 39 Barb. (N.Y.) 398, the court said:

"The first section exempts the homestead from sale under execution for debts thereafter contracted to the value of $1,000. The second section, after providing what shall be done to entitle any property to such exemption, declares that no property shall be exempt for sale under the act for a debt contracted for the purchase thereof, or prior to the recording of the deed or notice mentioned in the previous part of the same section. There is no language to be found in the act indicating an intention to exempt from sale any property on judgments, except for debts contracted. If the intention had been to extend the exemption to sales under all judgments recovered, it would have been quite easy to have so expressed it, and it is most likely if that had been the intention that it would have been so expressed in the act. The omission to do so, and the limitation in words to debts contracted, afford pregnant evidence that the Legislature did not intend to extend its operation beyond the cases expressed. Schouton v. Kilmer, 8 How. Prac. 527."

In the case of Kenyon v. Gould et al., 61 Pa. 292, the provision for the exemption of certain specific articles from execution issued for debt or rent was construed, and it was held that there was no exemption under an execution on a judgment in an action ex delicto.

In the case of Parker v. Savage et al., 6 Lea (Tenn.) 406, which related to a controversy over a homestead, it was held that a tort was not a debt.

In the case of Dunlop v. Keith, 1 Leigh (Va.) 430, 19 Am. Dec. 756, the court said:

"The bill of Dunlop Co. states the case of a misfeasance of Keith in office; a mere tort, the action for which dies with the person. It is similar, in this respect, to the case of an escape of a person in execution, by negligence of a sheriff or jailer, which makes him personally responsible for the amount of the debt; but he was answerable at the common law, not as a debtor, but as a tort-feasor, and the action died with the person, upon the maxim 'actio personalis moritur cum persona.' 11 Vin. Abr. 244, 5; Executors, H, a, pl. 1. Is the case as stated in the bill within either that branch of the statute which gives relief against an absent debtor, or that which gives against other absent defendants relief similar to that which is given against absent debtors? The court thinks it comes within neither. Not within the first, for, although the term 'debtor' should, in the construction of this statute, be taken in its largest sense, as embracing every person against whom another has a claim for breach of contract, even where the compensation sounds in damages, yet Keith cannot be embraced by it, since his case is that of a mere tort-feasor."

In the case of Burton et al. v. Mill et al., 78 Va. 483, the court said:

"In no sense is the claim of the appellee, Della P. Mill, a 'debt contracted' within the meaning of the Constitution and homestead law. Nor can it be said with any show of reason that the framers of the Constitution, by the homestead exemption, intended to give shelter and protection to evildoers."

We now refer to authorities relied on by plaintiffs in error. The case of Flannagan v. Forsythe, 6 Okla. 225, 50 P. 152, was an action ex contractu, and not ex delicto, being for damages growing out of a breach of contract warranting title to certain personal property; the judgment in that case not being based upon a tort, independent of any contract.

In the case of Conroy v. Mary A. Sullivan et al., 44 Ill. 452, the court said:

"It is true this case does not fall within the actual terms of the homestead act of 1851. That exempted the homestead 'from levy and forced sale, under any process or order from any court of law or equity in this state, for debts contracted from and after the 4th day of July, 1851.' The judgment in this case was not strictly a 'debt contracted.' But the law of 1857 declared it to be the object of the Legislature to prevent the alienation of the homestead in any case, except by the consent of the wife. In the light of both these laws, this court has constantly held that it was the evident intent of the Legislature to protect the homestead as a shelter for the wife and children, independently of any acts of the husband. He cannot deprive them of their right to it without the consent of the wife, either by his contracts or his torts."

In the case of Warner v. Cammack, 37 Iowa, 644, the court said:

"Our homestead exemption statute provides (Rev. 1860): 'Sec. 2281. It may also be sold on execution for debts contracted prior to the passage of this law or prior to the purchase of such homestead. * * *' And hereon the question is resolved to the single point whether the cause of action whereon the judgment was rendered was a 'debt,' within the meaning of that word as used in the homestead exemption statute. We hold that it was a debt, and this, because the plaintiff in that action might have waived the tort and brought his action for money paid to the use of the defendant therein. Wherever a party has derived a pecuniary advantage from a wrong done by him, and it is competent for the person suing thereon to waive the tort and maintain his action upon the promise implied by the law, there the obligation to pay is a debt, and this, regardless of the form of action in which that obligation is sought to be enforced. The measure of the recovery before the justice was not in excess of what it must have been in an action upon the implied promise. The converse of the proposition just stated must also be true, that wherever a wrong is done resulting in no pecuniary advantage to the wrongdoer, and where the action must be in tort, and sound only in damages, there the obligation to pay is not a debt until ascertained by judgment.Johnson Stevens v. Butler, 2 Iowa, 535 (i. e. 545); Raver v.Webster et al., 3 Iowa, 502 (i. e., 512), 66 Am. Dec. 96; Lordv. Gaddis, 6 Iowa, 58."

In the case of Mertz v. Berry, 101 Mich. 37, 59 N.W. 445, 24 L. R. A. 789, 45 Am. St. Rep. 379, which construed section 2, art. 16, of the Constitution of 1850, containing the words "debt contracted," the court said:

"We do not think that it was the intention of the framers of the Constitution to prohibit a voluntary alienation by the husband, and at the same time permit an involuntary alienation. It was not intended that a mortgage executed by the husband upon the homestead without the consent of the wife should be void, but that in case the husband represented that he was not married, and that the premises mortgaged were not a homestead, a judgment founded upon the fraud, and not upon the contract, could be enforced against the homestead property. In view of the language employed, the light thrown upon the use of the phrase by the record of the proceedings of the convention, the fact that the language of the existing statute upon the same subject was not adopted, and the effect which has already been given to this provision as respects alienation by the husband, the provision must be construed as exempting the homestead from execution and sale upon all judgments, whether founded in tort or in contract."

In the case of Dellinger v. Tweed, 66 N.C. 206, section 2, art. 10, of the Constitution of 1876, was construed, which provides that:

"Every homestead * * * shall be exempt from sale under execution, or other final process obtained on any debt. But no property shall be exempt from sale for taxes, or for payment of any obligation contracted for the purchase of said premises."

Section 3 of the same article provides that "the homestead, after the death of the owner, shall be exempt from the payment of any debt during the minority of his children or any one of them," and section 5 further provides that "if the owner of the homestead die leaving a widow, but no children, the same shall be exempt from the debts of her husband, and the rents and profits thereof shall inure to her benefit during her widowhood, unless she be the owner of a homestead in her own right." In that case the court said:

"An execution, in all cases, issues or is obtained upon a judgment. So that, instead of reading the Constitution as it is, 'shall be exempted from sale under execution, or other final process, obtained on any debt,' we must read it as it necessarily means, to make sense, 'shall be exempted from sale under execution obtained on any judgment,' or else we must hold a judgment to mean a debt, as clearly it does. And then the manifest intention will be carried out that the homestead shall not be sold under execution at all, except in the cases named in the Constitution. But, then, it is asked, if the Constitution means 'judgment' instead, of 'debt,' why did it not say so? It may just as well be asked, if it meant contract, why did it not say so? It does say plainly enough, and expressly, that it shall not be sold under execution, and that was the main idea to which the convention was advertent; and it was inadvertent in describing upon what the execution was to issue, as well it might be, because an execution cannot issue except upon a judgment."

This opinion was supported by Justices Reade, Dick, and Boyden; Chief Justice Pearson and Justice Rodman dissenting, holding that the homestead was not exempt on an execution issued on a judgment founded on a tort.

In the case of State v. O'Neil et al., 7 Or. 142, the Supreme Court of that state, in construing section 2296, Rev. St.,supra, said:

"The words 'debt contracted' do not necessarily mean debts or obligations incurred by an agreement of parties. The word 'contract' has a more extensive significance than to make an agreement. Debts contracted in the ordinary acceptation of the term will include liabilities incurred. If, for a trespass committed by a homestead claimant, a judgment for damages should be recovered against him before the issuing of a patent for the land, we hold that the homestead could not lawfully be sold on an execution issued upon the judgment after the date of the patent. The object Congress had in view, by the enactment of that law, was to secure permanent homes to settlers on the public domain, and in no event to allow them to be sold upon execution to discharge any liability incurred by the homestead claimants before the patent should issue."

In the case of Seymour v. Sanders, 3 Dill. 441, Fed. Cas. No. 12,690, Dillon, Circuit Judge, in delivering the opinion of the court, construing the federal homestead act, said:

"A leading object of the enactment was to benefit the poor man who was unable to buy the lands at government price and receive his title at once and without conditions, and it undoubtedly occurred to Congress that many persons who had been unfortunate and were insolvent would avail themselves of the act, and conceiving that the creditor in such cases had no equity to subject to the payment of his debts lands which had been given to the debtor by the bounty of the government, and to protect the debtor and to encourage persons to settle upon the public domain under the act, the fourth section was adopted."

The reason assigned by Judge Dillon appears to be well stated; but that it was the object of Congress, as stated in the case by the Oregon court, supra, to secure permanent homes to settlers on the public domain, and in no event to allow them to be sold under execution to discharge any liability incurred by the homestead claimant before the patent should issue, regardless of whether the liability was one that grew out of a contract or a tort, or evil act, independent of any contract, committed by the homesteader, we are unable to conclude. The Oregon case appears to be neither supported by good reason nor by authority.

Under the provisions of the homestead act, every person who is the head of a family, or has arrived at the age of 21 years, and who is a citizen of the United States, or has filed his declaration of intention to become such as required by the naturalization laws, shall be entitled to enter land thereunder. Act March 3, 1891, c. 561, 26 Stat. 1098, Rev. St. § 2289 (U.S. Comp. St. 1901, p. 1388). The contemporaneous enactments, acts, facts, or circumstances that induced the courts in Illinois, Michigan, and North Carolina to adopt a construction that was not justified by the technical or usual meaning of the word "debt" does not exist here. A single person, who is unmarried, and who is not the head of a family, is entitled to take a homestead under such act. In these states such a construction was followed with a view of protecting the wife and children — the family. No such reason or circumstances exist as to the federal homestead act for a court to extend the meaning of these words beyond that actually existing in law. Whilst it was the evident intention of Congress, in donating a homestead to the homeless settler, that the title to such donated land should be acquired by him free from all debts contracted by him prior to the issuance of the patent, yet it is not to be presumed that Congress, in providing for such donation, intended that it should not be liable for the consequences of his evil and lawless acts. The federal government, not having any right to exercise any police power for the local public welfare in any state, certainly would not encourage evildoers, regardless as to whether or not the same was intended solely as a homestead for the family, to the extent of donating a tract of land, with the limitation that such tract should not be liable for such acts of such party. It never affords shelter for such consequences. Where the state courts have, by a liberal construction, in the light of accompanying statutes and of the contemporaneous acts and surroundings in the framing of exemption provisions or statutes, extended the term "debt" or "debt contracted," so as to include a liability growing out of a tortuous act, they have never reached such conclusions with a view of protecting the head of the family in his evil and wrongdoing, but that the wife and children should be relieved from the consequences of such acts.

The homestead exemption laws of the territory or of the state of Oklahoma have no application here, the party being a single person; but, if he were the head of a family, such exemption provisions would protect this homestead from subjection to this judgment. Section 2, art. 12 (Bunn's Ed. § 305), of the Constitution of Oklahoma, provides that:

"The homestead of the family shall be, and is hereby protected from forced sale, for the payment of debts, except for the purchase money therefor or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon. * * *"

Said provision is substantially the same as that in force in the territory of Oklahoma. Sess. Laws 1905, p. 255, c. 18, art. 1, § 1. It is exclusively within the reserved police power of the several states to enact exemption laws for the benefit of the citizens of the states for the public welfare; but Congress, having exclusive jurisdiction over the public lands, had the power to prescribe a limitation upon the grant, which would apply and be in force in the several states, and with the existing reserved power to the states, for the welfare of their citizenship, in the face of the rule that limitations and restrictions are to be strictly construed, there is nothing to indicate that Congress used the words "debts contracted" other than in their technical or usual meaning, as construed by the federal courts, and sustained by the weight of authority. It is not necessary in this case to determine whether or not the homestead of a single person in this state can be subjected to the payment of a judgment rendered upon a tort, independent of any contract, prior to the date of the issuance of receiver's final certificate or patent. Here the judgment on such a tort was not rendered until after the issuance of such certificate, and did not become a debt until after such date.

3. In the case of Flannagan v. Forsythe, 6 Okla. 225,50 P. 152, it is held that the exemption from liability for debts, as provided by section 2296, Rev. St. U.S., no longer applies to such homestead after final proof has been made and receiver's final certificate has been issued therefor. This rule appears to be supported, not only by reason, but by the weight of authority.

4. The court, upon motion for judgment on the pleadings and the admissions of fact made in open court, found for the plaintiff and against the defendant, and entered judgment accordingly. No motion for a new trial, assigning errors complained of, was filed in the lower court. It is contended that, where no motion for a new trial was made, assignments of errors, involving questions as to the findings of fact and matters of law occurring on the trial, cannot be reviewed in the absence thereof. This contention is sustained by a long line of Oklahoma and Kansas decisions; but in the case ofSheets v. Henderson, (Kan.) 93 P. 577, it is held that, where a case is submitted to the court on an agreed statement of facts alone, there can be no new trial, the decision involving only a question of law. See, also, Darling v. A., T. S. F. Ry. Co., 76 Kan. 893, 93, Pac. 612, 94 P. 202; Wagner v. Railway Co., 73 Kan. 283, 85 P. 299. But in view of the conclusions hereinafter reached, it is not necessary to determine whether or not such action of the court can be reviewed here, in the absence of a motion for a new trial, timely assigning such alleged error.

5. Wherever a person in a state of insolvency conveys property to another in trust for himself, or for partial consideration then and there received from the grantee, the additional consideration to be paid by the grantee or bargainee in the way of his support and maintenance during the term of his natural life, such conveyance is fraudulent and void as to the existing creditors of said grantor, without regard to any question of fraudulent intent. Woodall v. Kelly, 85 Ala. 368, 5 So. 164, 7 Am. St. Rep. 62; Benedict v. Renfro, 75 Ala. 121, 51 Am. Rep. 429; Reynolds v. Crook, 31 Ala. 634; Miller v.Stetson, 32 Ala. 161; Sidensparker v. Sidensparker, 52 Me. 481, 83 Am. Dec. 532; Johnson v. Harvy, 2 Pen. W. (Pa.) 82, 21 Am. Dec. 429.

6. Is the plaintiff in an action for a tort, independent of any contract, a creditor; it being necessary for the defendant in error to have been a creditor at the time the alleged fraudulent deed was executed, so as to maintain an action to set it aside? In the case of Farnsworth v. Bell et al., 5 Sneed (Tenn.) 531, it is held that a sale and conveyance of land, pending an action of slander against the bargainor, to avoid the payment of any recovery which might be had in said action, the bargainee having full knowledge of the purpose of the sale, is fraudulent, and will be set aside in a court of equity, on a recovery in the action of slander, at the suit of the plaintiff in said action, and the land subjected to the payment of said judgment. The great weight of authority is to the effect that a party having a claim against a defendant, growing out of a tort, independent of any contract, renders the party having such claim a creditor. Waldradt v. Brown, 1 Gilman (Ill.) 397, 41 Am. Dec. 190; Bongard v. Block, 81 Ill. 186, 25 Am. Rep. 276; Corder v. Williams, 40 Iowa, 582; Miller v.Dayton, 47 Iowa, 312; Rogers v. Evans, 3 Ind. 574, 56 Am. Dec. 537; Schaible v. Ardner, 98 Mich. 70, 56 N.W. 1105; Hoffman v.Junk, 51 Wis. 613, 8 N.W. 493; Schuster et al. v. Stout et al.,30 Kan. 529, 2 P. 642; Am. Eng. Ency. Law, vol. 8, p. 750.

There appearing no reversible error in the record, the judgment of the lower court is affirmed.

All the Justices concur.