Bell v. Jones , 104 Utah 306 ( 1943 )

The facts, pleadings and judgment in this cause are fully stated in the opinion of Mr. Justice McDonough on the former appeal reported in Bell v. Jones, 100 Utah 87, 110 P.2d 327,330.

The sole question on this appeal is whether, on an execution issued upon a judgment for the payment of money only, the judgment holder may claim that the judgment is for a debt created for the purchase price of land claimed as a homestead by the judgment debtor, and prevail over the claim of homestead exemption and have the homestead sold to satisfy the judgment.

Based upon the fact that there were no allegations in the pleadings that the note sued upon was a purchase price note, this court ordered stricken from the judgment all reference thereto, saying:

"Since the action is simply one for judgment on the note * * * the judgment entered should be modified by striking therefrom the portion thereof to the effect that the judgment entered is for the balance of the purchase price of the described realty."

After remittitur was filed with the trial court, upon plaintiff's motion the court struck from the judgment all reference to the judgment being for "the balance due on the purchase price of the following described land," describing the land and water rights appurtenant thereto. Plaintiff Bell then had an execution issued on the judgment, which then stood as a money judgment only, and directed the sheriff to levy upon the land and sell the same. Defendant Jones then protested and claimed the property exempt as a homestead. 38-0-1, U.C.A. 1943. The sheriff demanded a bond to protect him; the bond was furnished; the sale was made and return duly filed with the clerk of the court. There was no authority in the execution to levy upon any property described or subjected to any lien. The execution did not go beyond the terms of the modified judgment.

Defendant then filed a motion to vacate and set aside the purported sale, supporting the motion with affidavits, to which plaintiff filed counter-affidavits. The matter was heard and the sale set aside upon findings made and entered order of the court.

Plaintiff then filed a petition for an order of sale of the property levied upon, using the same description, reference to which had been stricken from the judgment for want of any pleading to support it. The petition was denied. This appeal is from both orders, setting aside the sale and denial of the petition for an order of sale.

Plaintiff, appellant here, has not improved his position since the filing of the remittitur. There is no pleading to support a purchase price claim. There is no word in the complaint from which it could be inferred that plaintiff claimed 1 a lien on the land in question. Had plaintiff intended to claim a lien, it was his duty to allege the necessary facts so that the defendant, as well as the court, might be advised.

The case of Pinchain v. Collard, 13 Tex. 333, is very similar in its facts to the instant case, and the judgment accords with the position here taken. The case of Williams v.Young, 17 Cal. 403, bears upon the same point. There ejectment was brought by a holder of a sheriff's deed made upon a sale by execution issued under a judgment based upon a note without a pleading setting forth the claim for a vendor's lien, although the note was in fact given as evidencing part of the purchase price of the land sold under the execution. The court said:

"Unquestionably, if this purchase money constituted a debt which was a lien on the property before the homestead character attached to it, neither the husband nor the wife could hold this property except in subordination to this lien. But the mistake is in supposing that the lien gives any right of entry or title; it is a mere hold, or a claim to subject the property to sale — the title and the right of possession remaining with the debtors until such sale. It is, also, a mistake to suppose that a sale by the Sheriff, under judgment at law for thepurchase money in the usual form, is an enforcement of thislien. * * * The title, which comes from the enforcement of the lien, can only enure after proceedings to enforce the lien; and there must be a proceeding in the nature of a chancery suit to settle the sum due, and have the lien declared and a sale decreed." (Italics added.)

We find in Tunstall v. Jones, 25 Ark. 272, the 2 following:

"The lien of the vendor is in the nature of a trust, and equity regards the vendee as holding the estate in trust for the payment of the purchase money. * * *

"Being then so purely an equitable right, it can only be established by a decree of a court of equity, and enforced in its own peculiar manner, and upon its own peculiar principles."

An execution or order of sale may not go beyond the terms of the judgment upon which it is based. The levying officer is bound to obey but cannot go outside the terms of his writ and take into consideration the question of the debt out of 3 which the judgment arose. Pincock, Sheriff v.Kimball, Judge, 64 Utah 4, 228 P. 221; Freeman on Executions, 3rd Ed., Vol. 2, Sec. 249f.

The homestead claim was by the trial court properly sustained. The order setting aside the execution sale 4 and denying the petition for an order of sale were properly made.

Judgment of the trial court is affirmed. Costs to respondent.

WOLFE, C.J., and LARSON and McDONOUGH, JJ., concur.