Schmidt v. Denning

STURTEYANT, J.

The plaintiffs commenced an action against the defendants to obtain a decree setting aside a purported homestead. Prom a judgment in favor of the plaintiffs the defendants have appealed.

To understand the points made by the respective parties it is necessary to briefly state chronologically the facts of the case. On April 24, 1924, the defendants owned the lot and the building thereon on which the declaration of homestead was subsequently filed. The property is designated by numbers 131A-1316-1318 and 1320 Colton Street, Los Angeles. On the same date the plaintiffs owned a lot in Contra Costa County situated near the city of Oakland. The plaintiffs and defendants executed a contract of exchange. The plaintiffs conveyed to the defendants their lot and defendants conveyed to the plaintiffs their lot in Los Angeles. As a part of the consideration the plaintiffs executed to the defendants a mortgage in the sum of $4,000 and they also executed a deed of trust to secure a promissory note in the further sum of $4,500. On June 18, 1925, the plaintiffs commenced action No. 164,203, Los Angeles Records, against the defendants. At the same time they caused to be recorded a

lis pendens.

That action sounded in deceit and in their prayer the plaintiffs asked for damages.

After the plaintiffs commenced said action they stopped making payments on their notes which were secured by the mortgage and deed of trust. Soon after some of the defaults arose the defendants caused the property described in the deed of trust to be sold under the terms of that instrument. At the sale the defendants bought it and then they commenced an action in ejectment, action No. 188,230, Los Angeles records. In due time judgment was entered in favor of these defendants and they were put in possession. So far as the record discloses no appeal was taken from that judgment. After these defendants were let into possession they filed, on May 18, 1927, a declaration of homestead. On its. face it was regular in all respects. It is the homestead that these plaintiffs commenced this action to have set aside.

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Action No. 164,203 later came on for trial and decision. On June 2, 1927, a judgment for $8,500 was rendered in favor of these plaintiffs against these defendants. The record does not show that an appeal was taken. Neither does it show that an execution was taken out, nor that any proceedings were had under section 1245 et seq. of the Civil Code.