Wiss v. Stewart , 1897 Wash. LEXIS 328 ( 1897 )

The opinion of the court was delivered by

Dunbar, J.

The appellant, Edith Wiss, before her marriage became the owner of the land in controversy, which is a lot in the town of Puyallup. The property is improved as a residence, and it is uncontradicted that the appellant and her husband have continuously occupied it as their homestead for the three years prior to the trial of the cause, and were at the time of such trial occupying it as such. The value of the place is conceded to be $700. The respondent W. A. Stewart, on September 30, 1895, filed with the auditor of Pierce county a judgment which he had obtained against Prank Wiss and Edith Wiss, his wife, for the sum of $80.32, and on March 9 caused an execution to be issued on said judgment and levied on the homestead of appellant, above mentioned as her property, to sell the same, and the respondent Parker, sheriff of Pierce county, advertised the same for sale on April 20, 1896. On April 11, 1896, the appellant caused to be filed her declaration of homestead, and here we will say that the declaration seems to us to substantially comply with the provisions of the laws in relation to such declarations, although it is contended by the respondent Stewart that it does not. This action was commenced by the appellant to restrain the "respondent sheriff from selling the property, and to remove the cloud caused by respondent Stewart’s judgment lien from appellant’s title. A temporary restraining order was issued, but on the trial of the cause the court rendered judgment discharging the restraining order, dismissing the cause, and for costs against the plaintiff. We think the court erred in rendering the judgment aforesaid. While it appears that the appellant had given what, on its face, purported to be a warranty deed to the land in question, on January 9, 1896, to one Davies, the testimony conclusively shows, and in fact there is no testimony tending to show to the contrary, that the deed was in fact a mortgage to secure a loan, and that a portion of the loan had since been paid.

It is the contention of the respondents that the law which provides that § 481 of the Code of Procedure, which provides that a homestead not to exceed the sum of $1,000 shall be exempt from execution, and that such homestead may be selected at any time before sale, has been repealed by the act of March 13, 1895, ch. 64, (Laws, p. 109), an act defining a homestead and providing for the manner of the selection of the same. We think this contention cannot be sustained. The latter act in no way affects the provision in relation to the time of making the selection, hut simply undertakes to direct the manner of such selecttion, and the provision that such homestead may he selected at any time before sale is still in effect.

The judgment will be reversed and the cause remanded with instructions to the lower court to grant the relief prayed for by the appellant.

Scott, C. J., and Reavis, Anders and Gordon, JJ., concur.