Santa Barbara Lumber Co. v. Ross

WILBUR, J.

Defendants appeal turns upon the exemption from execution of premises covered by a homestead declaration by Antonina Cicero, April 28, 1913, held valid by the trial court. By foreclosure of their deed, given as security, the plaintiff has succeeded to the rights of Carmelo Cicero and his wife, Antonina Cicero, in and to the premises claimed as a homestead. It is admitted by the pleadings that the husband and wife resided upon the premises, owned by them as tenants in common, at the time of the declaration of homestead by the wife, and up to the time of the trial had resided thereon continuously. Defendant Ott Hardware Company having secured a judgment on April 9, 1915, against Carmelo Cicero for $1,031.25, claiming that the homestead declaration was fraudulent and void, directed the defendant sheriff to sell the premises in satisfaction of the ' judgment. He was proceeding to do so when this action was brought to enjoin the sale. • Plaintiff’s demurrers to defendants’ answer and cross-complaint were sustained. The defendants declined to amend and judgment was rendered in favor of the plaintiff upon proof of the allegations of its complaint. Defendants appeal. Preliminarily defendants claim that the declaration of homestead is insufficient in form

[659]

for the reason that it contains a statement that the husband “has not made

a

declaration of homestead.” whereas the statute (Civ. Code, sec. 1263) requires that the wife’s declaration of homestead must contain a statement “showing that her husband has not made

such

declaration.” (Italics ours.)

[1]

The purpose of this requirement is to show that the husband and wife are not, because of the wife’s declaration, claiming two homesteads, that is, that the right of the family to a homestead has not been previously effectively asserted by the husband.

[2]

The declaration was sufficient for that purpose and is admitted to be true. The answer and cross-complaint admitted every requirement necessary to make the premises a homestead excepting only that defendants alleged there was no