Feintech v. Weaver

DRAPEAU, J. pro tem.

The plaintiff seeks to have title to real property quieted in him. This title was acquired at an execution sale, when the property was bid in by the plaintiff as judgment creditor. The defendant Weaver sought to have title quieted in her because of a homestead which she asserted defeated the execution sale. The trial court held that the homestead was good and valid, and judgment was in favor of the defendants, from which judgment the plaintiff has appealed. There is but one question to be determined on this appeal, i.e.: Whether the declaration of homestead is sufficient in form.

When the defendant executed the declaration of homestead she used a printed blank designed for the five thousand dollar homestead provided by our law for the head of a family. She was not the “head of a family” because she was not married, but she was living with an adult son upon the property which she attempted to homestead. It is conceded that the declaration of homestead contains all the recitals prescribed by division 2, part 4, title V, chapter III, of the Civil Code relative to homesteads of a person not “head of a family. ’ ’

The appellant contends that the additional recital contained in the homestead declaration to the effect that the claimant was head of a family, when in fact she was not, destroyed its effectiveness, made it no declaration of home

[183]

stead at all, and enabled him, therefore, to cause the property to be sold, and to bid it in at an execution sale.

In the recent case of

Greenlee

v.

Greenlee,

7 Cal. (2d) 579 [61 Pac. (2d) 1157] at page 583, our Supreme Court states, “The homestead laws have always been given a most liberal construction in order to advance their beneficial objects and to carry out the manifest purpose of the legislature.” This has always been the rule of construction laid down by our California courts.

(McKay

v.

Gesford,

163 Cal. 243 [124 Pac. 1016, 41 L. R. A. (N.S.) 303] ;