Christensen v. Beebe , 32 Utah 406 ( 1907 )

An application for rehearing is made in this case in which it is strenuously insisted that this court erred in the conclusion reached. Four reasons are assigned why a rehearing should be granted, namely: (1) That the court erred in holding that the appellant had "sold his homestead for bricks and adobes and not for money;" (2) that the court erred in holding "that the agreement for sale was oral;" (3) that the court erred in holding that appellant "had not received the bricks more than a year before they were taken by appellant (respondent);" (4) that the court erred in holding that the complaint states a cause of action.

As to the first ground, we remark that counsel for respondent has manifestly overlooked or forgotten the construction he placed upon the complaint in his original brief and upon the oral argument in this court. In his brief he says: "The complaint alleges . . . that before the said month of May, 1903, he [appellant] sold said real estate to James E. Peterson for $100, which sum was to be paid by the delivery to plaintiff [appellant] of some brick in the summer or fall of 1904." Then the statement follows in the brief that the brick were levied on by the sheriff (respondent) by virtue of an execution issued upon a judgment in favor of a third person named. The foregoing statement of counsel is a complete answer to his first objection, in that it concedes that the $100 was merely a statement of the amount due which was to be paid or satisfied by the delivery of the brick.

With respect to the second ground, it is true that the complaint did not in terms allege whether Peterson's promise was evidenced by a writing or not. It was argued by appellant's counsel in their brief, and stated in open court on the oral argument, however, that the promise was oral, all of which was not denied by respondent's counsel. In fact counsel stated in open court that he had no knowledge upon the subject, but contended that this promise, whether oral or written, constituted the proceeds of sale. The case was submitted by both parties upon this theory, and hence decided accordingly.

As to the third ground, we need do no more than to refer to the statement of counsel for respondent with regard to how he understood the complaint. In his brief he says: "From the whole complaint it seems that at the time of the levy by the defendant [respondent] the plaintiff [appellant] did not have the brick upon the new homestead when [where] he said he intended to use them in building a house. . . . The inference is that Peterson had the brick in his possession, the plaintiff [appellant] regarding himself as the actual owner. . . . Admitting that all the allegations of the complaint are true, as we were bound to do, the defendant [respondent] claimed in the lower court that the brick taken as alleged were not exempt as the proceeds of the sale of the homestead of the plaintiff [appellant], which point was raised by the demurrer and sustained." From counsel's own statement, therefore, he presented, and desired to present, but the one question, namely, whether the brick were or were not exempt. We thus deemed it best to avoid all purely technical questions, and did so.

Upon the last ground it is urged that we erred in holding that the complaint was sufficient to withstand a general demurrer. Upon this point we remark that the complaint was framed upon the theory of trover. Some evidentiary facts were alleged which were not necessary to a complete statement of a cause of action. All of the allegations taken together, however, amounted only to an inartificial statement of a complete cause of action, and the complaint was clearly sufficient within the rule announced by Mr. Justice Straup in Casady v. Casady (Utah),88 P. 32. The essential allegations were ownership, unlawful taking, conversion of the brick, and their value. This was alleged, and was admitted by the demurrer; but, as appellant had alleged the judgment, execution, and levy by the respondent, counsel attempted to raise all the legal questions by demurrer to the complaint. He, however, overlooked, and still seems to disregard, the fact that appellant did not allege a sale of the brick on the execution but simply alleged the levy, and then alleged that on a certain day thereafter respondent wrongfully and unlawfully converted the brick to his own use. In the face of these allegations, admitted, as they were by the demurrer, respondent could not have prevailed, although the brick had not been exempt. Respondent could, by virtue of the execution, lawfully seize the brick; but if thereafter, as alleged, he wrongfully and unlawfully converted the same to his own use, he was liable whether the brick were exempt or not. This technicality we overlooked in favor of respondent, because both parties urged at the hearing that they desired the question of exemption determined, and for that purpose the allegations in the complaint were to be deemed sufficient. In deference to the wishes of counsel, we did so. In view of the allegations of the complaint, respondent at least cannot complain.

In connection with the last ground it is finally urged that the final conclusion is inconsistent with the following statement contained in the opinion, namely: "The mere fact that the terms `proceeds' and `the receipt thereof' are used is conclusive that it was not intended to limit either the medium that could be accepted, or the time in which it must be received, but the time for which the `proceeds' are exempt only was limited to one year `after the receipt thereof.'" In reference to this statement counsel says: "How the two holdings can be reconciled we do not see, and perhaps it is not necessary that we should." We confess that we did not think the confusion was quite so serious. It is certainly our aim to bring the logic of our statements within the comprehension of counsel. It is quite possible that sometimes we fail in this, but it is equally possible that the fault sometimes is with counsel. Taking the foregoing statement as an illustration, counsel's misconception arises out of the fact that he simply assumes that the "proceeds of sale" are received at the time the promise to pay them is made. He overlooks the distinction between the agreement to pay money or to deliver some other article, and the actual payment or delivery of the article. If counsel's contention that the acceptance of the promise or agreement to pay money, or in lieu thereof, to deliver other articles of value, constitutes receipt of the proceeds of sale, is correct, what is it that the homestead claimant receives when payment or delivery is actually made? In such event does the claimant receive the proceeds of the sale twice, once when he enters into the agreement to receive, and again when he actually receives the money or thing for which he sold or exchanged his homestead? Is not the conclusion palpable that it is the substance received in exchange for the homestead and not the promise to pay or deliver it that is intended in the statute as constituting the proceeds of sale? A promise to pay cannot, by argument, however ingenious, be made the equivalent of actual payment, and hence the entering into an agreement to receive proceeds is not tantamount to the actual receipt thereof. This would be so whether the promise was oral or in writing.

Counsel's suggestion that, if it be held that the acceptance of the promise or agreement to receive does not constitute the receipt of the proceeds, the seller of the homestead may sell on time and thus hold the proceeds as an investment free from execution does not necessarily follow. The statute was enacted for his protection and to insure for himself and family a home. When a case arises where it appears that the homestead claimant is evading the statute, it will then be proper for the court to pass upon the question whether the homestead claimant is entitled to the exemption or not in view of the facts involved. This case is free from such complications, and hence should not be hampered with them, although a possibility may exist that they may arise in some assumed case. In this case we held that the acceptance of a mere promise to deliver brick did not constitute the receipt of the "proceeds of sale," although the brick may constitute such proceeds; that an agreement to pay the proceeds at some future time was not tantamount to the receipt thereof; and that the acceptance of a promise to pay may be one thing, and the fulfillment thereof quite another thing.

No valid reason having been advanced why a rehearing should be granted, the application therefor should be, and accordingly is, denied.

McCARTY, C.J., and STRAUP, J., concur.