Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 23 Cal. 394 at 400.
Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.
At the Marshal's sale referred to in the opinion, the land was sold in three parcels; the lot, thirty feet front, on which the residence was, in one parcel; the strip, four feet nine inches wide, in a second parcel; and the lot, thirty-four feet front, in a third parcel.
COUNSEL:
The referee who tried the case, as well as the Judge who passed upon the motion for a new trial, held that this property was liable for Badger's debts. The only objection to our right of recovery was, that at the time of the levy and Marshal's sale, there was a segregating of this lot from the other, or setting apart of the other portion of the whole tract from this for a homestead; and the case of Gary v. Estabrook et al. , 6 Cal. 457, was relied on as an authority in point. But the case at bar differs entirely from that case, as the Court will see by a reference to it. At the Marshal's sale, three lots were sold: the homestead lot, the strip four feetand nine inches wide, (between the two lots,) and the lot thirty-four feet front. We do not claim that the homestead lot passed at the sale, but we do contend that the remainder of the land did. There was no call for an appraisement of the premises, and a setting apart of the homestead, in this case.
The whole property being covered by the hometead claim, it was not liable to forced sale on execution; and the purchasers at such sale cannot recover, in ejectment, the excess over $ 5,000. Ejectment is not the proper remedy; nor a sale under execution, against the husband, the appropriate method of reaching the excess. ( Cook v. McChristian , 4 Cal. 23; Gary v. Estabrook , 6 Id. 457; Ackley v. Chamberlain , 16 Id. 181; Bowman v. Norton, Id. 403; Williams v. Young , 17 Id. 403.) The plaintiff in this suit, therefore, acquired no title by the Marshal's deed, which can avail him in this action.
If there was any title in Badger to the strip covered by the conservatory, reserved in the sale to Scott, or to any other part of the premises, it passed by the proceedings in insolvency to his assignee; and there was, therefore, nointerest remaining in him to be sold on execution. ( Taffts v. Manlove , 14 Cal. 47; Lambert v. Slade , 4 Id. 337; Bank of Tenn. v. Horn, 17 How. 157.)
D. P. & A. Barstow, for Appellants.
J. B. Crockett, for Respondent.
Appellants, in reply.
We have always regarded the question of homestead as the real point in the case. Conceding the claim to be good, as to the original thirty-foot lot, we have contended that the after-acquired property could not be invested with the character of homestead property, because the benefits conferred by the Homestead Act were not intended to extend so far. The design of the act is to secure to every family a homestead worth, at most, $ 5,000. That Badger's family had on the thirteenth of June, 1855. But they claim more. They claim, by virtue of that act, as homestead property, land subsequently acquired, worth, at least, $ 10,000; and this Court is asked to assent to the proposition, that where a party who has " selected" his homestead worth $ 5,000, and upwards, afterwards acquired other land in the neighborhood of his homestead, this land also becomes invested with homestead rights. It was settled long ago, that a defendant, in ejectment, situated as Badger is, in this case, cannot set up an outstandingtitle in a third person. And the reason of the rule is, that by the act of sale and purchase, the judgment debtor becomes the tenant of the purchaser, and cannot deny his landlord's title. ( Jackson v. Graham, 3 Cairns, 188; Jackson v. Bush, 10 John. 223.)
JUDGES: Crocker, J. delivered the opinion of the Court. Norton, J. concurring.
OPINION
CROCKER, Judge
On petition for rehearing, Crocker, J. delivered the following opinion. Norton, J. concurring:
A rehearing is urged on the ground that one point presented by the appellant in his brief was not passed upon in the former opinion. It is contended that as the homestead declaration covers the whole property, including both lots, therefore, even though the value exceeds $ 5,000, the excess cannot be recovered in ejectment: that it was not liable to forced sale on execution. Several decisions of this Court are cited which sustain the principle that a judgment is no lien upon the homestead, and that the same cannot be sold on execution. (4 Cal. 23; 16 Id. 181-213; 17 Id. 403.) In another case cited, that of Gary v. Eastabrook , 6 Cal. 457, it was held, that where the homestead claimed by the defendant in execution had been ascertained by appraisement to exceed $ 5,000, a sale thereof should not be made by the Sheriff under execution until an exact appraisement of the value of the premises is obtained, so that he could sell and convey a definite undivided interest therein. That is, to illustrate, if the homestead should be found, upon appraisement, to be worth $ 10,000, then as the undivided one-half only would be exempt under the Homestead Law, he could then proceed to sell and convey the other undivided half not exempt. This rule properly applies to a case of a single lot or tract of land on which the dwelling of the debtor stands, but it is not necessary to take that course where the homestead covers two or more lots, on only one of which is the dwelling of the debtor. As stated in the former opinion, the debtor may include several contiguous lots in his homestead claim, provided they do not exceed in value $ 5,000; but if the lot on which the dwelling stands equals or exceeds in value the $ 5,000, the attempt to include any other lot or lots will fail. If inserted in the declaration filed, they will not in such case form any part of the homestead, any more than as though they had not been inserted therein. The law requires that the debtor act in good faith, and not under cover of a law made for his special benefit, attempt to embarrass his creditors, or hinder, or delay them in collecting their just debts. It is better for the debtor to treat the lot or lots not occupied by the dwelling as free from the homestead, and therefore liable to levy and sale on execution, like any other property not exempt from execution, than subject the debtor to the risk of the loss of the whole homestead property, on the ground that he had included an excessive quantity of value in his declaration for the purpose of hindering, delaying, and defrauding creditors. As to the objection that the value of the separate pieces of property, as reported by the referee, was taken at a date subsequent to the filing of the declaration of homestead, and that the property may have greatly improved in value in the meantime, we think it is entitled to no weight, for the reason that there was no proof or finding as to the value at the time of the filing of the declaration; in which case the presumption would be that the value would be the same, as there properly could be no presumption of either an increase or diminution of the value in the intermediate time. We do not wish to be understood, however, as holding that the value at that date is to fix the extent or quantity of land exempt as a homestead for all future time, regardless of the subsequent increase of value caused by the construction of improvements or otherwise. That is a question to be determined when it is properly before the Court.
The rehearing is denied.