Ellsworth v. Marshall

AGEE, J.

Plaintiffs (husband and wife) appeal from a judgment holding that a homestead declared by them on certain real property was invalid because neither resided on the premises at the time of such declaration and that, even if this requirement was met, plaintiffs are estopped from asserting any rights thereunder as against defendants.

On January 28, 1952, plaintiffs executed a promissory note and a deed of trust on the real property in question as security for payment thereof. On December 18, 1957, foreclosure proceedings under the deed of trust were started by the filing of a notice of default. On March 3, 1958, plaintiffs recorded a “Declaration of Homestead” on the property. On March 4,

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1958, defendant F. A. Marshall obtained a money judgment against plaintiffs for the sum of $17,607. An abstract thereof was recorded on the same date. On June 23, 1958, defendant F. A. Marshall bought up the note and deed of trust and received an assignment thereof. On July 3, 1958, defendant F. A. Marshall bid in the real property at the foreclosure sale for $16,500; the amount then due on the note was $9,035.64.

Plaintiffs then brought this action to recover the differential or surplus of $7,464.36, on the theory that said amount was exempted to them under the homestead law. Marshall, of course, would be entitled to retain said surplus,

as against plaintiffs,

in partial satisfaction of his judgment lien (34 Cal. Jur.2d § 470, pp. 150-151)

unless

said homestead is held to be valid. As plaintiffs’ counsel stated at the trial: “. . . In the absence of the homestead the seller [meaning Marshall] could, I take it, retain the balance of the money on account of his judgment. The question is whether the homestead is in between.”

The homestead was declared by plaintiffs on March 3, 1958, and recorded at 9:40 o ’clock a.m., on the same day. They testified at the trial that they had resumed residence on the premises on the afternoon of the previous day.

Plaintiffs moved away from the premises in September or October 1957. There was no indication at that time of any intent to return. Most of the furniture was moved out. The stove was left but plaintiffs bought another one after they had moved away. The telephone was disconnected and the electricity and water were turned off. The mailing address was changed from that of the premises, located in Walnut Creek, to an address in Lafayette.