Richards v. Shear

Ross, J. It is sought in this case to charge the homestead of the defendants, who are husband and wife, with a lien for materials furnished by the plaintiffs to the husband to be used and which were used in the construction of a building thereon,—the materials having been furnished after the property had been impressed with the- homestead character.

[188]Sections 1240 and 1241 of our Civil Code read:—

“Sec. 1240. The homestead is exempt from execution or forced sale, except as in this title provided.

“Sec. 1241. The homestead is subject to execution or forced sale in satisfaction of judgments obtained,—

“1. Before the declaration of homestead was filed for record, and which constitute liens upon the premises;

■ “2. On debts secured by mechanics’, laborers’, or vendors’ liens upon the premises;

“3. On debts secured by mortgages on the premises, executed and acknowledged by the husband and wife, or by an unmarried claimant;

“4. On debts secured by mortgages upon the premises, executed and recorded before the declaration of homestead was filed for record.”

It is said for the appellants that it was not the intent of the legislature to subject the homestead to execution or forced sale in satisfaction of judgments obtained on debts secured by the liens of mechanics and laborers who perform manual labor in and about the building, and withhold such privilege from the men who furnish the materials therefor. We can see great force in the suggestion of Mr. Thompson, in his work on Homesteads and Exemptions, sec. 312, that there is no difference in principle between a debt due to A, who has provided me with the land on which I have erected my building, and a debt due to B, who has furnished the materials to build it, and a debt due to C, whose labor has built it. But where the legislature has undertaken to deal with the subject, and has declared from what the homestead shall be exempt and with what it shall be charged, it only remains for the courts to give effect to its provisions. Admittedly, the language of the section of the code specifying in what instances the homestead shall be subject to execution and forced sale does not include the liens of material-men. The language is, in satisfaction of judgments “ on debts secured by mechanics’, laborers’,