Jacobson v. Pope & Talbot

WASTE, C. J., Dissenting.

I dissent. The majority opinion rests upon the, to me, false reasoning that, because

[762]

the Barkers

could have

declared a valid homestead on the property at any time before they sold it to Jacobson, and thereby have relieved the property from the lien of respondents ’ attachments, but did not do so, the appellant, who purchased the land subject to the lien of the attachments, may do what the respondents’ debtor failed to do and, by making a declaration of homestead subsequent to his buying the land, accomplish that very object. “The object of the homestead law is to protect the homesteader and those dependent upon him or her, in the enjoyment of a domicile not exceeding $5,000 in value, and to this end a liberal construction of the law and facts will be indulged by courts. When the object has been accomplished courts will not suffer this salutary statute to be used as a shield behind which those who would deal Unjustly with creditors may find refuge.”

(Marelli

v.

Keating,

208 Cal. 528 [282 Pac. 793].) The effect of the majority opinion, if it is to be the law, is to subject claims like those of respondents to defeat through the operation of two or more homesteads, each of the value of $5,000, as I shall presently demonstrate. It was never intended by the legislature, in enacting the laws relating to homesteads, to make possible any such situation.

(Waggle

v.

Worthy,

74 Cal. 266, 268 [5 Am. St. Rep. 440, 15 Pac. 831].)

A declaration of homestead creates no new or additional title. It only attaches certain privileges and immunities to such title as may be held at the time the declaration becomes effective. The homestead claim is impressed upon the title subject to such rights as are known to be held by other parties.

(Smith

v.