Waggle v. Worthy

Hayne, C. This is an action upon a covenant against encumbrances implied by statute, from the use of the word “grant” in a conveyance of real property. (Civ. Code, 1113.) The conveyance was made on July 5,1884. The breach alleged is that the property was at the date of the deed subject to the lien of a judgment “suffered ” by the vendor for $840.30, docketed on the 21st of March, 1884, under which the property was sold and subsequently redeemed by the plaintiff. The cause was submitted on briefs, but no brief for respondents is on file. So far as we can gather, the defenses were two, viz.: 1. That on February 12, 1884, the vendor had filed her petition in insolvency, and received her discharge from such claims as existed at the date of filing her petition; and 2. That the property was the homestead of the vendor, and therefore was not subject to the lien of the judgment. The court below gave judgment for the defendants, and the plaintiff appealed.

1. The discharge in insolvency could only affect such debts as existed at the time of the filing of the petition, viz., on- February 12, 1884 (Ins. Act, sec. 51), and this is all that the discharge in question purported to do. The claim arising from the breach of a covenant made subsequently was not affected by it.

It may be that the debt upon which the judgment against the vendor was obtained was within its operation. But that matter was concluded by the judgment. If the discharge was not pleaded in that action, it was waived. If it was pleaded, and disregarded by the court, the judgment, however erroneous, was not void, and is not subject to collateral attack. The defendants cannot retry that action here.

2. The homestead claimed by the defendants to have prevented the lien of the judgment from attaching to the property was declared on June 1, 1881. To show the invalidity of this alleged homestead, the plaintiff proved [268]that the vendor had declared a homestead on other land on March 21, 1873. And in reply the defendants proved that this last-mentioned homestead had (previously to the declaration of the other homestead) been levied upon and sold under two judgments rendered by a justice of the peace. In relation to this the vendor testified as follows: “ Immediately after the sale of my first homestead, the purchaser, Jacobs, demanded possession of me, and as I was poor and dreaded a lawsuit, I gave up possession and moved off the land. Jacobs went into possession, and since that time I have claimed no.interest in the said land embraced in my first homestead.”