Price v. Central Sav. Bk. of Oakland

STURTEVANT, J.

The plaintiffs commenced an action against the defendant to remove a cloud on the title to their real estate. The defendant

answered;

thereafter the plaintiffs gave notice of a motion for judgment on the pleadings; thereupon the defendant gave notice of a motion for judgment on the pleadings, and both motions came on for hearing at the same time. The trial court granted the

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motion of the plaintiffs, and from the judgment so entered the defendant has appealed.

On July 20, 1917, the appellant commenced an action against W. C. Price and took out a writ of attachment and levied the same on the real estate standing of record in the name of W. C. Price. On May 20, 1918, W. C. Price duly executed and recorded a declaration of homestead on said real estate. Judgment in that action was entered on July 9, 1918, for the sum of $37,875.03 plus $35.85 costs, and the judgment has never been paid, nor has W. C. Price, or Helen V. Price, ever offered to pay the judgment or any part or portion thereof. On July 3, 1918, W. C. Price was adjudicated a bankrupt, and on September 14, 1918, he was discharged in bankruptcy. On October 19, 1921, W. C. Price appeared in the first action and on motion obtained an order perpetually staying the issuing of any execution upon the said judgment. On August 8, 1921, the plaintiffs filed this action and after reciting many of the foregoing facts they also alleged, ‘1 That the defendant' asserts and claims that the said judgment so as aforesaid rendered and entered in its favor against the said W. C. Price is still in full force and effect, notwithstanding the said discharge in bankruptcy, and that the said judgment is a valid and existing lien upon and against the said homestead premises, notwithstanding their homestead character as aforesaid, and that it is entitled to have a writ of execution issued on said judgment and to have the said homestead premises sold under the said writ of execution.” And they further allege that “the said docketing of the judgment and the said assertions and claim by defendant of a lien upon said homestead premises as aforesaid have created and caused doubts as to the validity of the said homestead right of plaintiffs in and to the said homestead premises, and as to the exemption of said homestead premises from sale under any writ of execution that may be issued upon the said judgment, and have thereby clouded and rendered doubtful and questionable the validity of said homestead and the rights of plaintiffs. ...” Thereupon they prayed that it be decreed that this defendant “has no claim or lien or right of any kind in, to, upon, or against the said homestead