Ervay v. Hill , 46 Wash. 457 ( 1907 )

Dunbar, J.

This is an appeal from an order of the superior court of Snohomish county, confirming a sale of certain lands, the property of the judgment debtors, and refusing to allow a homestead exemption on said lands. The original complaint, upon which the judgment was obtained, was, in substance, that the plaintiff and her husband at the time of his death were believers in the faith commonly known as “spiritualism,” one of the tenets of which is that it is possible for persons, through the intervention of another person known as a spiritual medium, to communicate with the spirits of departed persons; that immediately prior to the death of plaintiff’s husband, he transferred and set over to plaintiff, as her sole, separate property, all of the real and personal property then owned by him, either as his separate property or as the community property of himself and plaintiff; that the plaintiff was the sole owner of the said property above referred to, which was well known to the defendants; that immediately following the death of her husband the defendants unlawfully, fraudulently, and'wickedly entered into a conspiracy to cheat and defraud the plaintiff out of her said property and to appropriate the same unlawfully and fraudulently to their own use, and to that end fraudulently represented to the plaintiff that the said defendant Albert E. Hill was himself a bona fide believer in the spiritualistic faith; that he was a spiritual medium, endowed with the faculty of communicating with the spirits of deceased persons; that he had had a communication with the spirit of plaintiff’s deceased husband, in which the spirit of the said deceased husband, speaking through the said Hill, had communicated to the defendant Hill a desire that she, said plaintiff, should donate to the defendants the sum of $2,500 for their use and benefit ; and that, believing in said representations, she paid to the defendant Albert E. Hill the sum of $1,045, and surrendered to the said Hill one certain promissory note in the sum of $100, held by her against said Albert E. Hill, in evidence of a just obligation then owing to her by said Albert E. Hill; that shortly thereafter the defendant Hill claimed to have had another communication with the spirit of the deceased husband of the plaintiff, in which the spirit of the husband, speaking through the defendant Albert E. Hill, advised plaintiff to execute and deliver to said defendant a general power of attorney to transact her business; that in response to said asserted communication, such power of attorney was executed and that, acting under such power of attorney, the defendant Hill wrongfully obtained from the plaintiff the sum of $717.88;'that the defendants have wholly failed to account to. the plaintiff for any part of said money so obtained; that the representations made by the said defendants as to the spiritualistic power of the said Albert E. Hill were false and made for the purpose, and with the intent, of defrauding the said plaintiff; that by reason of the premises she has sustained damages in the amount of $1,862.88; and prays judgment against the defendants for damages in that sum, together with her costs and disbursements.

The record does not show the answer, if any wras filed in this case, but does show that a trial was had before a jury, and verdict returned in favor of the plaintiff for the sum of $1,-862.88, and that a judgment was entered in accordance with said verdict for that amount, together with costs and disbursements. Execution was issued upon this judgment, and sale was effected. When the confirmation proceedings were had, the judgment debtors, appellants here, objected to the confirmation upon the two grounds, (1) that the notice required by statute for the sale of the land sold by the sheriff had not been properly given, and (2) that certain of the lots were subject to homestead exemption. These objections were overruled by the court, and the sale was confirmed as to all of the land.

We think the first contention of the appellants cannot be sustained, as the return of the officer shows that the law in regard to the notice in such cases made and provided was substantially complied with. The second contention, however, viz., that the court erred in holding that lots 21 to 26 inclusive, in block 87, of the plat of Edmonds, was not subject to homestead exemption, must be sustained. The court found, that prior to the sale of said lots they had been legally selected by the appellants; that the legal and proper declaration had been made; that upon their application appraisers had been duly appointed and qualified; that they had duly and legally appraised and set aside said lots to the judgment debtors as and for the homestead of said judgment debtors; that the judgment debtors had resided upon and occupied said lots as their homestead continuously for more than five years next preceding the rendition of the judgment against them; that they were still residing upon said lots as a homestead; and, in short, found that said lots comprised the homestead of the judgment debtors; but that, notwithstanding this, the same was not exempt from the lien of the execution, for the reason that it further appeared to the court that the judgment herein, upon which said execution was issued and upon which said sale was had, was founded upon a liability incurred by the defendants and judgment debtors as agents of the plaintiff on account of moneys coming into their hands from and belonging to said plaintiff and judgment creditor; and that, by reason of that' fact, none of the facts before found by the court as to the homestead right of the appellants, constituted any legal objection to the confirmation of the sale of the property. The conclusion of the court was evidently based upon a construction of chapter 158 of the Laws of 190.1, page 323, which is as follows:

“Section 1. That section 5284a of Ballinger’s Annotated Codes and Statutes of Washington, relating to exemptions, be and the same is hereby amended to read as follows: Sec. 5248a. No property shall be exempt from execution for clerk’s, laborer’s, or mechanic’s wages, earned within this state, nor shall any property be exempt from execution issued upon a judgment against an attorney or agent on account of any liability incurred by such attorney or agent to his client or principal on account of any moneys, or other property coming into his hands, from or belonging to his client or his principal.”

It does not seem to us that the allegations of the complaint bring it within the meaning of the statute. There is no attempt to recover moneys received by the defendant in a trust or fiduciary capacity. There is no claim that the money was received for the benefit of the plaintiff. In fact, the claim is exactly the reverse of this. The allegations are all of fraudulent representations and conspiracy to defraud. It must, therefore, be construed to be a simple action for damages for fraudulent representations.

But, in addition to this and waiving any. question of the constitutionality of the amendatory act, it is apparent that the amendment does not in any way affect the law providing for the exemption of homesteads. An examination of the section amended shows that it has no reference to the subject of homestead exemptions, but is applicable only to exemptions of personal property. The legislative announcement is that section 5248a be amended, and while the comprehensive words “no property” are used in the act, such words must be construed as referring only to the character of property described in the section amended. In this country exemptions are favored by the law, especially homestead exemptions; and it would be doing violence to the spirit of the law and to all well-recognized canons of construction to hold that the repeal of the provisions of a specified section repealed by implication other sections of the same chapter, the subj ect-matter of which was not embraced in the section amended.

The judgment will be reversed, and the cause remanded with instructions to allow the appellants a homestead upon the lots above referred to.

Hadley, C. J., Root, Mount, Rudkin, and Crow, JJ., concur.

Fullerton, J., concurs in the result.