Jacobson v. Pope & Talbot

THE COURT.

The plaintiff appeals from that portion of a decree which quiets his title to a described parcel of real property "subject" to certain attachment liens in favor of the defendants.

Marion Barker and Ruth Barker, husband and wife, originally owned the property here involved in joint tenancy. What purports to be a declaration of homestead covering the same was recorded by them on January 5, 1928. In various actions instituted by the defendants herein against Marion Barker certain writs of attachment were thereafter issued and levied upon his interest in the property. On May 11, 1928, he and his wife, for a valuable consideration, transferred and conveyed the property to the plaintiff. On July 7, 1928, the plaintiff and his wife executed and recorded a declaration of homestead upon the property which has never been abandoned and the validity of which is apparently conceded. The attachment liens of the defendants continue to remain of record, and the plaintiff brings this action to quiet his title.

Sections 1240 and 1241 of the Civil Code provide, in substance, that a homestead is exempt from execution or forced sale except in satisfaction of judgments obtained, "1. Before the declaration of homestead was filed for record, and which constitutes liens upon the premises. 2. On debts secured by mechanics, contractors, subcontractors, artisans, architects, builders, laborers of every class, materialmen's or vendors' liens upon the premises. 3. On debts secured by mortgages on the premises, executed and acknowledged by husband and wife, or by an unmarried claimant. 4. On debts secured by mortgages on the premises, executed and recorded before the declaration of homestead was filed for record."

[1] The authorities construing and applying these code provisions are uniform to the effect that a valid declaration of homestead serves to exempt the homestead property from execution or forced sale in satisfaction of all claims and liens, arising or obtained either prior or subsequent to the declaration, other than those specifically enumerated in and excepted by section 1241, supra. (Beaton v. Reid, 111 Cal. 484, 486, 487 [44 P. 127]; Fitzell v. Leaky, 72 Cal. 477, 483, 484 [14 P. 198].) It necessarily follows and has repeatedly been held that an attachment lien is defeated by the intervention of a homestead right subsequently acquired by the debtor. (Beaton v. Reid,supra; Fitzell v. Leaky, supra; McCracken v. Harris, 54 Cal. 81. ) This being so, a valid declaration of homestead by the Barkers, the original owners of the property, would have served to defeat any and all prior and subsequent attachment liens acquired by the defendants through their respective actions against Marion Barker, the husband, and the subsequent conveyance of the property to the appellant would obviously have been free and clear of such attachment liens.

[2] The defendants contend that the declaration of homestead by the Barkers was ineffectual because the signature of the wife in attesting her consent to the declaration was not acknowledged; that the attachments therefore were valid as against the property in the hands of the Barkers, and that they continued to be a lien thereon notwithstanding the subsequent homestead of the plaintiff. With the contention that the Barker homestead was invalid we are not presently concerned for the reason that, in our opinion, the homestead declaration of the Jacobsons had the same effect on said attachments as the Barker homestead, if valid, would have had. Admittedly the attachments were not reduced to judgment liens prior to the filing of the declaration of homestead by the Jacobsons. Section 1240 of the Civil Code specifically provides that the homestead is exempt from execution except as provided in the title of which that section is a part. The defendants have not brought themselves within any of the exceptions. It is the policy of the homestead law to protect the home against the enforcement of the debts of the declarant. Such debts may be and often are just obligations. "The law authorizes a debtor to erect a barrier around the home, over which the sheriff, although armed with final process under such a judgment, cannot pass. With the policy of the law, or the abstract morality of a particular transaction, we have nothing to do." (Fitzell v. Leaky, 72 Cal. 483 [14 P. 198, 201].) If a homestead declarant may defeat the enforcement of his own just obligations by making the declaration, there would seem to be equal or better reason why he should be permitted to defeat the enforcement against the homestead of the obligations of another. The rights of the parties, both as to attachments and homesteads, are governed by the statutes and those statutes prescribe the limitations of their rights. Since the attachments had not ripened into judgment liens before the plaintiff's homestead was perfected, the homestead was not affected by them.

In answer to the argument of the defendants that the Barkers' title was subject to the levy of the attachments at the time the transfer was made to Jacobson, and that the Barkers could not convey an estate greater than they owned, it may be said that the Barkers, before said transfer, could have declared a valid homestead and thus removed the property from the effect of the attachments. If they then had that right, it is clear that their grantee would have the same right. In other words, that right in a sense passed with the transfer and was not prejudiced by it.

Since the homestead of the plaintiff is exempt from execution on any judgment which may have been obtained following the defendants' attachments, the power of sale thereunder cannot be asserted and the lien must be denied.

The judgment is modified by striking therefrom all provisions thereof purporting to make the title of the plaintiff subject to the attachment liens of the defendants and by striking out the judgment in favor of the defendants for costs. As so modified the judgment is affirmed, neither party to recover costs of appeal.