Vincenzini v. Fiorentini

THE COURT.

This is an appeal from an order discharging an attachment on portions of three lots title to which stands of record in the name of Rosa Fiorentini, the wife of defendant. The action was brought against the latter to recover rent due and unpaid under a lease. Attachments issued and were levied on the lots mentioned. Previous to the filing of the action said Rosa Fiorentini filed a homestead on the property in which she alleged the same to be her separate property. The declaration further alleged that she and her husband and their two children were actually residing thereon, and that the improvements on the property consisted of a “one-story and basement residence and outbuildings”, the total cash value of which was $4,000.

The grounds of the motion for the discharge of the attachments were that the property was exempt from execution and that the levy.thereof cast a cloud on the title. A counteraffidavit filed by plaintiff alleged that at the time of the filing of the homestead declaration and at all times thereafter there were two dwelling-houses on the property, one occupied by declarant and the defendant and the other occupied by tenants of the declarant and the defendant. At the hearing testimony supporting and opposing the motion was offered, and at the conclusion thereof the court determined that all the property described in the declaration was exempt and made its order accordingly.

It is undisputed that in 1918 the declarant and her husband erected a 4-room dwelling on the property. Its dimensions are 22 by 24 feet. In 1924 declarant erected a smaller

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structure by the side of the existing dwelling to be used by one Herrera, who was affianced to declarant’s daughter, it being intended that it should be occupied by the daughter and her husband as their home. It abuts on the original dwelling, the north wall of which-serves as the south wall of the new building. The dimensions of the latter structure are 20 by 24 feet and its lean-to roof projects from the side of the old building. The floor of the new structure is about two feet lower than that of the latter, and there is no connecting door between the two although one chimney is used for both. A concrete walk leads from the street to a point about ten feet from the two structures; it then divides and terminates at the front entrance of each. To the north are certain outbuildings used as garage, storeroom and chicken house by declarant and her family and by the occupants of the later structure. Herrera occupied this for a year before he married declarant’s daughter. At a later period while he and his wife were absent the same was occupied by others, who paid rent therefor to declarant. Still later Herrera and his wife returned and took and still hold possession as tenants at will. The two portions of the enlarged building have separate gas and electric service, and it also appears that the larger portion of the surrounding premises was at all times used as a garden, and there are fruit trees planted along the concrete walk.