Wagner v. Ulrich

SHENK, J.

The action in which this appeal is prosecuted was instituted for the purpose of quieting title in the plaintiff to the real property described in the complaint.

The plaintiff purchased the property at a constable’s sale held in December, 1922, pursuant to execution issued in January, 1922, to satisfy a judgment theretofore and in December, 1921, rendered against the defendant Harry F. Ulrich. The action in which said judgment was rendered was commenced in the justice’s court of Los Angeles township on November 5, 1921. On November 25, 1921, the defendants Ulrich filed a declaration of homestead on said

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real property. The evidence disclosed that at the time of the declaration there were two houses on the land described therein, one occupied by the defendants Ulrich as a dwelling and the other leased by them to one Courier. The total value of all the real property described in the declaration was not over «$5,000. The trial court found that the portion of said property leased to the tenant was not subject to the declaration of homestead and gave judgment quieting title in the plaintiff to that portion only. Judgment was entered for the defendant Harry P. Ulrich as to that portion of the property occupied by the defendants Ulrich as a dwelling at the time of the declaration.

Appellants contend that the action to quiet title was not the proper remedy but that the exclusive remedy is prescribed by sections 1237 to 1261 of the Civil Code. It is 'not questioned that the declaration of homestead was valid to the extent of the dwelling found to have been occupied by the Ulrichs at the time of the declaration, together with the portion of the land used in connection therewith, and we think the sufficiency of the declaration may be tested as to the portion of the lot not so used in a quiet-title proceeding. The sections of the Civil Code relied upon are applicable to cases where land alleged to be of a value in excess of the statutory amount has been attempted to be impressed with a homestead and it is sought to subject the excess to a levy of execution. But said sections of the code would seem to have no application to eases such as the present one where a portion óf land, the whole of which is valued within the statutory limitation, is claimed to have been improperly included in a declaration of homestead and is therefore exempt from execution. The distinction between these two classes of cases indicates the reason why our courts have in numerous instances entertained causes and proceedings apart from those prescribed in the code sections to determine what portion of the land described in the declaration of homestead is needed for the convenient use’ of the declarant and what portion thereof is excess land. (See