Campbell v. Largilliere Co., Bankers

One Brown was the owner of the real property, the title to which is the subject of this action. On April 4, 1921, he claimed it as a homestead, by filing a declaration thereof. Brown removed from the property and the state about August 1, 1923, and on October 1, 1923, appellant obtained a money judgment against him. On. May 26, 1924, Brown conveyed the property to respondent, plaintiff below. On July 26, 1924, appellant purchased the property at execution sale to satisfy the judgment it held against Brown. Respondent claims title by virtue of the conveyance from Brown.

It is contended that, by leaving this state and continuing to reside out of the state, Brown abandoned his homestead claim on the property, and that the judgment obtained by appellant became and was a lien on the property prior to and at the time of the conveyance to respondent. In fact, appellant takes the position that a declaration of homestead is abandoned by the owner's removal from the premises, and he cites many decisions in support of his position. Such decisions are based on statutes either making continued residence upon the land, after the homestead declaration, necessary to the continued exemption right of the claimant, or which directly or by plain inference limit the continuance of all exemption rights of the claimant to residence within the state. None of them deal with the continuing exemption right of the homestead claimant under a statute like ours, which in express terms, prescribes an exclusive manner of abandoning the homestead and the exemption right therein. This section, C. S., sec. 5443, provides:

"A homestead can be abandoned only by a declaration of abandonment, or a grant or conveyance thereof, executed and acknowledged . . . ."

Our statute is conclusive on the question, and the removal of the owner from the state, and his continued residence out of this state, does not constitute an abandonment of a declaration of homestead. This is the holding of the courts of California and Washington on a statute almost identical with C. S., sec. 5443. (Porter v. Chapman, 65 Cal. 365, 4 P. 237; Tipton v.Martin, 71 Cal. 325, 12 P. 244; Waggle v. Worthy, 74 Cal. 266, 5 Am. St. 440, 15 P. 831; Simonson v. Burr, 121 Cal. 582,54 P. 87; Hohn v. Pauly, 11 Cal. App. 724, 106 P. 266;Wentworth v. McDonald, 78 Wash. 546, 139 P. 503; Byam v.Albright, 94 Wash. 108, 162 P. 10; 29 C. J. 945.)

Appellant's contention that the conveyance was without consideration, made with intent to prevent the bank from collecting its judgment and invalid as against the bank's subsequent levy and purchase at the sheriff's sale, is also without merit. If the property was exempt before the conveyance, we fail to see what rights the judgment creditor gains by the transfer. A grantee of a home. stead holds it free from a judgment which could not have been asserted against it when it remained the homestead of his grantor. (13 Rawle C. L. 622; Payne v. Cummings, 146 Cal. 426, 106 Am. St. 47,80 P. 620; Morgan v. Bentheim, 10 S.D. 650, 66 Am. St. 733, 75 N.W. 204.)

"In most jurisdictions, where the question has arisen, the exempt character of homestead property existing at the time of sale thereof runs with the transfer and, so far as the rights of the purchaser are concerned, no claim or judgment can be asserted against it which could not be enforced during the time the debtor occupied it as a residence. . . . . The rule has even been extended to transfers by the homesteader for a nominal consideration or upon no consideration whatever . . . ." (29 C. J. 919.)

Conceding even that the conveyance was without consideration, it could not for that reason be held to have been fraudulent as to appellant. In Nicholdson v. Nesbitt, 4 Cal. App. 585,88 P. 725, it is said:

"Creditors are held not defrauded by the conveyance of the homestead without consideration. Having no right to make their money by execution against it, they have no cause to complain. It is incumbent on the creditor who complains of a fraudulent conveyance to show that his debtor has disposed of property that might otherwise have been subjected to the satisfaction of his debt. Until this is done no injury appears. Creditors cannot complain that a conveyance of a homestead is fraudulent as to debts for the payment of which it cannot be taken in execution. They could not reach it if not conveyed and hence the motives for the conveyance do not concern them." (Maynard v. May, 11 Ky. Law Rep. 166, 11 S.W. 806; Estate ofFath, 132 Cal. 609, 64 P. 995; Wetherly v. Straus, 93 Cal. 283,28 P. 1045.)

The judgment is affirmed. Costs to respondent.

Givens, Taylor and T. Bailey Lee, JJ., concur.