Bartholomew v. Hook

Crocker, J. delivered the opinion of the Court—ISTortok, J. concurring.

This is an action brought by a wife against the Sheriff of San Joaquin County and others, to enjoin him from selling a certain lot which she claims as a homestead, on an execution against her husband, and to require him to levy upon the personal property of her husband for the satisfaction of the execution. The case was tried by the Court, and a judgment was rendered for the defendants, from which she appeals.

It appears that the house and lot in question has been occupied by the plaintiff and her husband as their homestead ever since June, 1859 ; but no declaration of homestead was made and filed until the plaintiff did so on the eleventh day of June, 1862. On the sixth day of June, 1862, the husband confessed a judgment for $1,000, in favor of the defendant Hufiman, on which an execution issued June 7th, which was levied upon the lot in question; and the° Sheriff was about to sell the property when this action was commenced, and a temporary injunction granted. It appears that the husband has a large amount of personal property liable to levy and sale on execution, valued at about $5,000, as well as other assets, which the wife contends should be first levied upon and sold, before the real estate can be sold; and also claims that the property levied upon is her homestead, and therefore not liable to sale on execution. The plaintiff notified the Sheriff, that she claimed the property as her homestead, and also gave him notice of the personal property [279]liable to execution, and required him to first levy on and sell the same. It also appears that the defendant Huffman holds a mortgage for $4,000 on a portion of the personal property.

Under the provisions of the Homestead Law, as amended in 1862 (Stats. 1862, 519, 520), the time for filing the declaration of homestead was extended to June 1st, 1862; and Sec. 6, as amended, provides that the filing of such declaration, after that date, shall not “ affect or impair any alienation, sale, mortgage, or other contract or lien lawfully executed or obtained prior to the time of the filing for record of such declaration.” The declaration of homestead not having been filed, in this case, until after the first day of June, and after the judgment lien had attached, it follows that the homestead is hable to be sold under the execution issued on the judgment.

But the first clause of the two hundred and tenth section of the Practice Act requires that an execution of this kind against the property of the debtor “ shall require the Sheriff to satisfy the judgment, with interest, out of the personal property of such debtor, and if sufficient personal property cannot be procured, then out of his real property.” Under this law, it was clearly the duty of the Sheriff to levy upon and first sell the personal property of the execution debtor; and then, if the proceeds of the same proved insufficient, he should have proceeded and sold the real property of the debtor. Especially was this his duty, when notified by the plaintiff, and required to levy upon the personal property.