Shivell v. Hurd

[321]

SHINN, P. J.

In 1940, Arthur Shivell recovered judgment against John Hurd for $1,250. Shivell, having been declared bankrupt, his trustee declined to take steps to collect the judgment and Shivell instituted the proceedings here under review to compel a sale of real property of Hurd and his wife consisting of adjoining lots, one unimproved, the other improved with a residence. The property was subject to a homestead. Upon proper application the court ordered execution issued which was duly levied on the property in March 1950. The court then refused to appoint appraisers pursuant to sections 1245 and 1261 of the Civil Code. That order was reversed on appeal

(Shivell

v.

Hurd,

115 Cal.App.2d 405 [252 P.2d 65]). Thereafter a new writ of execution was issued and levied. Proper proceedings were had for the appointment of appraisers; on April 23, 1953, the appraisers filed their report. They fixed the value of the property at $11,000, found that it could not be divided without material injury, that certain encumbrances covered both lots and that there could not be a division and sale of part of the property free and clear of said liens. The report stated that so far as the appraisers were informed there were unpaid encumbrances consisting of the unpaid balances of a trust deed for $4,500 recorded December 30, 1937, and a trust deed for $4,025 recorded September 10, 1948. Thereafter plaintiff filed exceptions to the report which stated that the value of the property was $16,000, that it was not true that the property could not be divided without injury,' that there were no existing liens or encumbrances against the property which were valid against the judgment, and that the homestead claimant was not living upon the unimproved lot adjoining the residence at the time of the declaration of homestead. The court was requested to declare the homestead invalid and to order a sale of the property. Service of the exceptions was had upon the appraisers and upon the attorney for defendants. Sections 1253 and 1254 of the Civil Code read as set out below.

1

Since the record on appeal eon