Marelli v. Keating

SEAWELL, J.

Plaintiff, Charles Marelli, appeals from a decree of the Superior Court of the county of Marin dissolving an injunction restraining the sheriff of said county until the further order of the court from selling certain real property claimed by plaintiff upon which said sheriff had levied execution. The execution was levied and the said property advertised for sale to satisfy a judgment in favor of Henry Heide, defendant in this injunction suit, and against plaintiff’s grantor. Plaintiff’s grantor at the time of the conveyance was his wife, the parties having intermarried after the institution of the action in which the wife, then Jennie Marquard, was a defendant. The conveyance to plaintiff, which is not attacked on the ground of fraud, was made after a writ of attachment had been levied on said property, but prior to the rendition of the judgment. Several years previous to the institution of the action said Jennie Marquard, a widow and the head of a family, had filed a declaration of homestead covering the real property in suit. It is by virtue of this declaration that plaintiff claims the property conveyed to him was exempt from forced sale and that the court below was in error in not perpetually restraining a sale by the sheriff.

[530]

The defendants filed an answer after the court had granted the injunction restraining the sale until its further order. They alleged therein that the value of the property was approximately $24,000, and, therefore, greatly exceeded the maximum homestead exemption of $5,000, and further set forth that they had taken the required statutory steps to subject the excess to forced sale under the provisions of sections 1245-1259 of the Civil Code. After a hearing held following the filing of said answer, at which it appeared that the appraisers appointed in the statutory proceeding had reported said property to be of a value of $24,000, the court made the order dissolving the injunction from which this appeal is taken.

The judgment in the action was not rendered or the execution issued until after the property had been transferred by the homestead claimant to the plaintiff. This being so, the execution levy was unauthorized and the owner entitled to enjoin the sale unless the attachment, levied before the transfer, was effectual to secure to the judgment creditor the right to hold the excess after the ownership of the property had passed, from the judgment debtor.