Summary
In Brown v. Cleverly, 96 Utah 120, 85 P.2d 769, we indirectly held Sec. 38-0-1, R.S.U. 1933, to be valid insofar as it provides that execution on "debts created 3 for the purchase price" of land shall not be defeated by the homestead exemption therein provided, by holding appellant's lien to be an ordinary judgment lien which was defeated by respondent's homestead claim and not a judgment on a debt created for the purchase of land.
Summary of this case from McMURDIE v. CHUGG ET ALOpinion
No. 6039.
Decided January 3, 1939.
1. HOMESTEAD. Where purchasers brought an action to rescind contract for purchase of land and obtained a judgment as for money had and received, the judgment was not a "judgment on a debt created for the purchase price of land" and therefore lien of the judgment was defeated by vendors' homestead claim. Rev. St. 1933, 38-0-1. 2. HOMESTEAD. Where purchasers had brought an action to rescind contract for purchase of land and obtained a judgment as for money had and received, they could not, after vendors had filed a homestead claim, urge that the vendors could not by fraud take purchasers' money for purchase price and then claim homestead exemption on land to defeat purchasers' right to return of amount paid. Rev. St. 1933, 38-0-1.
Brown v. Cleverly, 93 Utah 54, 70 P.2d 881.
Appeal from District Court, Second District, Davis County; Lester A. Wade, Judge.
On petition for rehearing.
Petition denied.
N.H. Tanner and J.J. Whitaker, both of Salt Lake City, for appellants.
Wendell B. Hammond, of Bountiful, and Hammond Hammond, of Salt Lake City, for respondents.
For original opinion, see 96 Utah 116, 83 P.2d 1009.
Appellants have petitioned for a rehearing on the ground that this court, in its opinion in 96 Utah 116, 83 P.2d 1009, "did not determine or consider the appellants' assignment of error to the effect that the trial court failed to find that the judgment in question was a judgment on a debt created for the purchase price of the land in question, notwithstanding 1 evidence in the records sufficient to uphold such finding." Although not in express language, this court has nevertheless considered this problem in a previous decision and has determined appellants' lien to be an ordinary judgment lien. This lien was defeated by respondents' homestead claim. Appellants' judgment is not a judgment on a debt "created for the purchase price of land" within the contemplation of Section 38-0-1, R.S.U. 1933. We have fully examined the authorities and find no case which has construed a judgment such as the one involved here as being "on debts created for the purchase price of land."
Appellants also urge that respondents cannot by fraud take appellants' money for the purchase price of land and then claim homestead exemption on that land to defeat appellants' right to a return of the amount paid on the purchase 2 price. If appellants had considered this originally, they might well be in a different position today with respect to their judgment. But instead of trying to enforce their contract with the Cleverlys, or in lieu thereof obtain a judgment against the land for the amount paid under the contract, they brought an action to rescind the contract and obtained a judgment as for money had and received. Brown v. Cleverly, 93 Utah 54, 70 P.2d 881.
Petition for rehearing is denied.