Farley v. Hopkins

Foote, C. This is an appeal from an order granting a temporary injunction restraining the defendants, among whom was Hopkins, the sheriff of the city and county of San Francisco, from selling under execution certain premises claimed by the plaintiffs as their homestead.

The prayer of the complaint is, that it may be decreed that the judgment under which the sheriff is about to sell the homestead is not and never was a lien upon the premises in dispute; that they are not subject to levy and sale under execution issued upon the judgment, and that the sheriff be enjoined from selling or offering for sale the premises, etc., and for such other equitable relief as may seem proper, etc.

The record shows that Margaret Farley and her hus-. band, Thomas Farley, who are the plaintiffs here, were the defendants in the judgment above referred to, and that she, as the wife of Thomas Farley, made and acknowledged a declaration of homestead on the premises in question on the seventeenth day of October, 1884, and filed it for record on the next day through “ Tobin and Tobin,” presumably her attorneys or agents. This declaration contains, qmong other things, this statement:—

“I make this declaration for the joint benefit of myself and husband, and I declare that my husband has not made a declaration of homestead.”

It was claimed in the affidavits filed for the execution creditor, on the hearing of the motion to show cause why the temporary injunction should not be granted, that the upper story of a building on the premises was not a part of the homestead. The affidavit filed on the other side tended to some extent to dispute this alleged fact.

The defendants claim that the declaration of homestead is invalid, and that the homestead claim does not extend to the upper story of the building; that the injunction, if granted at all, should not have included it. [205]The objections are: 1. That the declaration of homestead was not filed until the day after it was acknowledged; 2. That it was not filed by the declarant in person, but by some one for her; 3. That she does not assign any reason whatever why she made it for the joint benefit of herself and her husband; 4. That a portion of the building upon the premises was hot used by the family.

We perceive no error upon the part of the trial court in refusing to anticipate the final judgment, and to determine, on the motion and by the affidavits, whether or not the upper story of the building is a part of the homestead.