Shemilt v. Sturos , 190 Wash. 30 ( 1937 )

MILLARD, J., dissents. December 26, 1935, a judgment was entered in the superior court of King county in favor of plaintiff and against the defendants. The action was for the wrongful death of plaintiff's husband, resulting from a collision of an automobile, in which he was riding, with a truck owned by defendants. The collision ocurred November 18, 1932.

December 6, 1933, the defendant wife filed a declaration of homestead on certain property in King county. Plaintiff, conceiving the declaration insufficient under the statute to effectuate a homestead, brought this action to have it declared invalid. Among other things, the statute (Rem. Rev. Stat., § 559 [P.C. § 7890]; Laws 1895, chapter 64, § 31, p. 113) provides:

"The declaration of homestead must contain, —

"(1) A statement showing that the person making it is the head of a family; or when the declaration is made by the wife,showing that her husband has not made such declaration, and thatshe therefore makes the declaration for their joint benefit; . .. " (Italics ours.)

The declaration failed to comply with the italicized clause of the statute.

At the close of plaintiff's case, defendants interposed a challenge to the sufficiency of the evidence, which the court sustained. From judgment dismissing the action, plaintiff appeals.

[1] The sole question is whether substantial compliance with the above italicized clause of Rem. Rev. Stat., § 559 [P.C. § 7890], is essential to the validity of the declaration.

While the specific question does not appear to have been presented to this court before, we have held generally that compliance with the statute is prerequisite to a valid declaration. Whitworth v. McKee, 32 Wash. 83, 72 P. 1046;Donaldson v. Winningham, 48 Wash. 374, 93 P. 534, 125 Am. St. 937; Hookway v. Thompson, 56 Wash. 57, 105 P. 153. See, also,Covert v. Burger, 76 Wash. 454, 136 P. 675, and UnitedStates Fidelity Guaranty Co. v. Alloway, 173 Wash. 404,23 P.2d 408, wherein the court held that failure to acknowledge, as required by Rem. Rev. Stat., § 558 [P.C. § 7889] (Laws 1895, chapter 64, § 30, p. 113), renders the declaration invalid. In the Covert case, the court said: "No homestead right can be acquired without the execution, acknowledgment, and record required in the act." And in the Alloway case:

"The privilege thus sought and obtained is wholly a creature of, and its validity depends upon, a compliance with the statute that permits the homestead to come into existence."

Under these decisions and under the plain terms of the act, we think it essential to a valid declaration of homestead by a wife that it show "that her husband has not made such a declaration, and that she therefore makes the declaration for their joint benefit."

Under statutes with identical provisions, the supreme courts of California and Idaho have so held. Cunha v. Hughes, 122 Cal. 111,54 P. 535, 68 Am. St. 27; Hansen v. Union Savings Bank,148 Cal. 157, 82 P. 768; Wilcox v. Deere, 5 Idaho 545,51 P. 98.

Respondents seek to sustain the judgment on the authority ofHancock Mutual Life Ins. Co. v. Wagner, 174 Wash. 185,24 P.2d 420, 27 P.2d 1118. We fail to see any analogy between that and the instant case. In that case, the sufficiency of the declaration was challenged because of the estimated "actual cash value" of the property. It is obvious that the claimant gave the estimated cash value of the equity in the property over and above encumbrances which were of record. The court held that to be a substantial compliance with subd. 4, of § 559 [P.C. § 7890]. Here, there was no compliance whatever with that clause of the statute which we have been considering.

Judgment reversed.

STEINERT, C.J., MAIN, and GERAGHTY, JJ., concur.