I dissent.
The prevailing opinion holds that plaintiff's case cannot be considered on its merits because he failed in original complaint to allege that the debt on which he obtained his judgment was created for the purchase price of the property *Page 310 which defendant now claims as a homestead. Thus the case is decided on a technicality and not on its merits, and the entire object of the litigation is defeated. I believe that it is the duty of all courts, where possible, to decide cases on their merits and not on a technicality. This rule, in my opinion, will not only affect this case but as long as the homestead claim may be asserted at any time many litigants who have a good defense thereto will be deprived of that defense because they failed to foresee that such a claim would be made. I believe that this rule violates a fundamental rule of pleading and changes what has been universal practice in this state in the past and which practice has been sanctioned by at least one decision of this court. There is no principal of law which requires such a decision.
It is a well established principle that a party need not anticipate and negative a defense which his opponent may interpose in the future, but may answer such defense when and if it is interposed. The main opinion requires that plaintiff must negative this defense in his original complaint or he will be barred from ever doing so, even though the defendant may claim his homestead at any time and there is no way that plaintiff could know that defendant will ever assert such a claim.
My experience in the courts of this state has shown many cases where the plaintiff has for the first time asserted his claim that his judgment was on a debt created for the purchase price of the property which defendant claims as homestead, after defendant has set up such claim. If my analysis of the case is correct, that is what was done in Harris v. Larsen, 24 Utah 139,66 P. 782. In that case one Atwood conveyed certain land to Larsen at an agreed price of $1,500 and paid in cash $884 and gave a bill of sale for 16,000 lbs. of hogs. The hogs were never delivered but Atwood accepted a cow in lieu of 800 lbs. of hogs, and later brought suit and obtained judgment against Larsen for $276. Execution was issued on this judgment and the constable levied on and sold the real estate in question to one Agren, who conveyed to Harris. Harris brought an action in ejectment *Page 311 and the trial court found that the property was Larsen's homestead and was therefore exempt from execution. This decision was reversed on appeal on the ground that the judgment under which Agren purchased the property was for a debt created for the purchase price thereof. In that case this question was litigated in the second action and therefore not in the first one. If this court had in that case followed the rule of the prevailing opinion, it would have held that since in the first action the plaintiff did not obtain a judgment to the effect that the debt therein sued upon was created for the purchase price of the property, he could not raise that question in the second action.
The statute does not provide for, or by implication require such a rule. 104-37-16 provides:
"No article or species of property mentioned in this chapter or in the title Homesteads is exempt from execution issued upon a judgment recovered for its purchase price, or any portion thereof, * * *."
And 38-0-1 provides:
"A homestead * * * shall be exempt from * * * execution or forced sale, except upon the following obligations * * * (2) judgments obtained * * * on debts created for the purchase price thereof."
Our statute does not expressly provide when or how a claim of homestead exemption must be made, nor does it provide when or how the claim that the judgment was obtained on a debt created for the purchase price of the homestead must be asserted. This court, however, has allowed the homestead claimant to assert his claim either in the original action or in any subsequent action or proceeding. Utah Builders' Supply Co. v. Gardner, 86 Utah 250,39 P.2d 327, 103 A.L.R. 928; Payson Exchange Savings Bank v. Tietjen, 63 Utah 321, 225 P. 598, thus making an exception to the general rule that a judgment is conclusive not only as to defenses that are adjudicated but as to those that might have been. Surely, in fairness to both sides the party against whom the claim is asserted should be able to avail *Page 312 himself of the defenses to that claim which the statute gives him. The legislature has in two different statutes expressly provided that the homestead shall not be exempt from execution upon a judgment recovered for the purchase price. I believe that it is a good rule that the homestead claimant should be able to interpose this defense at any time, although in most states the homestead must be actually occupied as a home by claimant, and in many the claimant must claim it as a homestead before the judgment against him is obtained. We are going to great lengths to protect the homestead claimant when we cut off this kind of a defense because these facts were not alleged in the original action.
The cases cited in the prevailing opinion do not support the rule there announced. Tunstall v. Jones, 1868, 25 Ark. 272, merely holds that a vendor's lien is purely an equitable right which must be established in equity, which will not intervene unless a showing is made that there is no adequate remedy at law and that such showing can be made only by proof that plaintiff cannot by any proceedings at law recover the amount due him. No such showing being made, plaintiff could not recover.
Pinchain v. Collard, 1855, 13 Tex. 333, merely held that the trial court erred in ordering the homestead sold to pay the judgment, since the facts necessary to establish a vendor's lien were pleaded.
Williams v. Young, 1861, 17 Cal. 403, was action in ejectment, quite similar to Harris v. Larsen, supra, but decided the other way. The court held that a vendor's lien must be established and foreclosed by a suit in equity.
As noted above, our statute expressly provides that the homestead shall not be exempt from execution upon a judgment recovered for the purchase price thereof. It says nothing about a vendor's lien. 104-37-16 provides the same rule in the case of exempt personal property, where there is no lien. The above mentioned cases rely upon and discuss only a vendor's lien, they make no mention whatever of any statutory provision which provided that the homestead shall not *Page 313 be exempt from execution on this kind of a judgment. True in cases of this kind the seller has a vendor's lien, but our statute expressly provides that this property may be reached by execution.