Schoenfeld v. Norberg

SALSMAN, J.

This is an appeal from a judgment of the Superior Court of Marin County, restraining the sheriff of that county from selling the homestead of respondents Bruce and Lucille Sehoenfeld (hereafter referred to as Schoenfeld), pursuant to a writ of execution issued upon a judgment obtained in San Francisco by appellant J. B. Norberg. Schoenfeld’s judgment perpetually enjoined Norberg from any levy upon the homestead property. As will appear, issuance of the injunction was untimely and the judgment must therefore be reversed.

In 1956 Schoenfeld defrauded appellant Norberg of more than $13,000. Norberg sued Schoenfeld in the superior court in San Francisco and obtained a judgment in the total sum of $19,279.59 because of Schoenfeld’s fraud. On September 3, 1965 Norberg caused a writ of execution to be issued pursuant to the judgment and levied the writ upon Schoenfeld’s homestead in Marin County. The sheriff of Marin County gave notice of sale of the homestead property to be held October 28, 1965.

On October 27, 1965, 54 days after Norberg's writ had been issued, Schoenfeld filed the action which gives rise to this appeal. His purpose was to prevent sale of his homestead by Norberg and the sheriff. On the day the action was filed the court issued a temporary restraining order which of course stayed the sale, and later, after trial, the court issued its permanent injunction against Norberg, perpetually enjoining sale of Schoenfeld’s homestead.

There was evidence at trial that only $274.42 of the moneys fraudulently obtained by Sehoenfeld from Norberg found their way into the homestead property. Before judgment, Sehoenfeld repaid this sum to Norberg.

On appeal, Norberg contends that when funds have been obtained by fraud, and such funds are traced, in whole or in part, to the homestead property, the property loses its exempt character and becomes subject to execution upon any judgment obtained by the party defrauded. Applying this

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premise to the facts of this case, Norberg argues that, since $274.42 of the tainted funds were found in the homestead property, the property is stripped of the protective mantle of the homestead, and is bare to his execution. This is not the law.