Paterson, J., dissenting. I am unable to concur in the prevailing opinion, or in the -judgment. It is immaterial, in my opinion, whether the second house was placed on the land before or after the filing of the declaration of homestead. The stipulation of counsel reduces the question before us to the simple inquiry whether or not the house built on the rear of the lot is exempt from execution. The question is purely one of exemption. The question is not whether the whole property, including both houses, is so impressed with the homestead character that it would go to the survivor on the death of one of the spouses. Property selected and improved as a homestead may retain its homestead character for certain purposes, and yet a portion of it be not exempt from execution. This is plain from the provisions of the constitution and the statute bearing upon the subject. The constitution provides that “ the legislature shall protect by law from forced sale a certain portion of the homestead, and other property of all heads of families.” (Art. 17, sec. 1.) Acting upon this provision, the legislature has provided that “ the homestead [233]consists of the dwelling-house in which the claimant resides, and the land on which the same is situated.” (Civ. Code, sec. 1237.) Section 1240 of the Civil Code provides that “ the homestead is exempt from execution or forced sale, except as in this title provided.” This court has decided that the homestead represents the dwelling-house in which the family resides, with the usual and customary appurtenances, including out-buildings necessary for family use; that the only tests are use and the value (Gregg v. Bostwick, 33 Cal. 228; 91 Am. Dec. 637); that the use of the property is an important element to be considered. (Laughlin v. Wright, 63 Cal. 116.) Referring to Gregg v. Bostwick, supra, Thompson on Homesteads and Exemptions says: “This last case very clearly conducts us to the rule that houses built for the purpose of being rented to tenants, thus yielding to the debtor a revenue separate from any use immediately connected with his dwelling, form no part of his homestead.” (Sec. 130.) It has been held uniformly that in order to be exempt from execution the property claimed as a homestead must be actually occupied as a residence by the family of the owner,—temporary absences excepted, of course,—and that any portion of his real estate not so used is not exempt from execution, whatever may be its extent or value; and that where houses and lots are rented for money rent to tenants who are not servants or employees of the owner, the latter cannot claim them as a part of his own home and residence, although they may adjoin the same. (Ashton v. Ingall, 20 Kan. 670; Austin v. Stanley, 46 N. H. 51; Kurz v. Brusch, 13 Iowa, 371; 81 Am. Dec. 435; Casselman v. Packard, 16 Wis. 114; 82 Am. Dec. 710.) As all other questions are waived by the stipulation of counsel, I think that the rear house and the land upon which it stands should be subjected to the satisfaction of the judgment.
Rehearing denied.
[234]The following is the opinion of Department One above referred to: —
Fox, J. In1872 plaintiff and her husband were residing upon a certain lot of land in the city and county of San Francisco, having twenty-five feet front, and extending back eighty feet to an alley. The lot, with the small dwelling-house on the front thereof, was the community property of plaintiff and her said husband. On the 2d of December of that year she recorded the same as a homestead. The regularity of this dedication and recording of the homestead is conceded. At some period after the property had been so dedicated and recorded as a homestead, the Lubboclcs built another small house on the rear of the lot, wholly disconnected from the one in which they lived, and fronting on the alley, which they rented out. Afterward, one Sobey recovered a judgment in a justice’s court against the husband of plaintiff, upon which he took out execution and placed it in the hands of defendant McMann, then sheriff, who, under the direction of the judgment creditor, levied upon the whole of the lot so recorded as a homestead, and advertised the same for sale. Plaintiff, after notifying the sheriff of the homestead character of the property, and demanding a release from said levy, filed her complaint in this action, setting up the material facts hereinbefore recited, showing the homestead character of the property, alleging that at the time of recording the said homestead claim the property was not, and is not now, of a greater value than five thousand dollars, and praying for an injunction to restrain the defendant from making such sale. An order was issued to show cause why an injunction should not be granted as prayed, and restraining the sale in the mean time. Upon the return day of the order to show cause, the case was heard upon the com-, plaint of plaintiff, the answer of defendants admitting all the material allegations of the complaint, and setting up [235]in addition the fact of the erection of the second tenement above referred to after the recording of the homestead, and the fact that the same was not occupied by the homestead claimants as a place of residence, but was rented out, they residing in the original dwelling-house on the lot; and on demurrer to said answer, that the same did not state facts sufficient to constitute a ground of defense to said action. While the record does not disclose the fact, it is conceded by counsel here that at the hearing it was understood that judgment final should follow the result of the submission of the case on those pleadings and demurrer.
The court sustained the demurrer, and judgment went for plaintiff perpetually enjoining the sale. From this judgment the appeal is taken.
Appellants criticise the action of the court below in issuing the restraining order pending the hearing of the order to show cause, without requiring plaintiff to file a bond thereon, but expressly admit that in view of the final result no injury resulted to them, and seem to waive any adjudication here as to the regularity of that proceeding.
We perceive no error in the order of the court sustaining the demurrer to the answer, and defendants declining to amend, the judgment followed as a necessary sequence; no question being raised as to the remedy, the plaintiff was thereupon entitled to her perpetual injunction. No bond is required upon granting such relief.
It is admitted that the homestead was regularly created. There is no pretense that it had ever been abandoned, or even that it had been enhanced in value beyond the homestead exemption. The claim is simply that it became “vitiated” quoad the rear of the lot, upon which the new tenement had been erected. But there is no provision of the statute defining by what means or under what circumstances a homestead may become “ vitiated,” nor is any particular part of the homestead tract levied upon [236]as being the part relieved from the homestead lien by this new process of vitiation. The levy is upon the whole tract, an unknown part of which, it is admitted, is still subject to a valid homestead claim.
Judgment and orders appealed from affirmed.
Works, J., concurred.
Paterson, J., concurring. I concur in the judgment. The execution -was levied upon the whole of the property, including the homestead, which is'exempt from execution or forced sale. The remedy of the execution creditor is against that portion of the premises included within the homestead declaration which has ceased to be part of the homestead. It may be a difficult question to determine how the property which does not belong to the homestead should be described, but the fact that such a difficulty exists does not excuse a levy upon the homestead itself. If there are any natural or artificial boundaries between the dwelling-house of the homestead claimant and that of his tenants, it will be easy to make a proper description of the property subject to sale, or it might be described as that portion of the premises described in the declaration not actually used by the family as a homestead.
It is claimed by respondent that inasmuch as the dwelling-house now occupied by the tenant was placed upon the land subsequent to the filing of the declaration of the homestead, and because the entire property is now under the value of five thousand dollars, no portion of the premises described in the declaration of homestead is subject to execution or forced sale. There is no merit in this contention. The constitution provides that “the legislature shall protect by law from forced sale a certain portion of the homestead, and other property of all heads of families.” (Art. 17, sec. 1.) Acting upon this provision, the legislature has provided that “the homestead [237]consists of the dwelling-house in which the claimant resides, and the land on which the same is situated.” (Civ. Code, sec. 1237.) “The homestead is exempt from execution or forced sale, except as in this title provided.” (Civ. Code, sec. 1240.) The question before us is not one of abandonment or vitiation of the homestead in its entirety, but a question of exemption. What property is exempt from execution or forced sale? “It [the homestead] represents the dwelling-house in which the family resides, with the usual and customary appurtenances, including out-buildings of every kind necessary or convenient for family use, and lands used for the purposes thereof. .... The only tests are use and value. The former is both abstract and statutory; the latter statutory alone.” (Gregg v. Bostwick, 33 Cal. 228; 91 Am. Dec. 637.) “The mere filing of a declaration of homestead does not of itself constitute the premises embraced within it the homestead of the declarant. The use of the property is an important element to be considered.” (Laughlin v. Wright, 63 Cal. 116.)
Referring to Gregg v. Bostwick, supra, Mr. Thompson, in his work on Homesteads and Exemptions, says: “This last case very clearly conducts us to the rule that houses built for the purpose of being rented to tenants, thus yielding to the debtor a revenue separate from any use immediately connected with his dwelling, form no part of his homestead.” (Sec. 130.) In Ashton v. Ingall it was held that in order to be exempt, the property claimed as a homestead must be “occupied as a residence by the family of the owner.....Any portion of his real estate not so used and so occupied will not be exempt, whatever may be the extent or value of such real estate, great or small.....Where houses and lots are rented for a money rent to tenants who are not servants or employees of the owner, with the intention that such houses and lots shall become the homes and residences of such tenants and their families, and they actually do become the [238]homes and residences of such tenants and their families, the owner certainly cannot then claim that such houses and lots are a part of his own home and residence, although they may adjoin the same.” (Ashton v. Ingall, 20 Kan. 670. See also Austin v. Stanley, 46 N. H. 51; Kurz v. Brusch, 13 Iowa, 371; 81 Am. Dec. 435; Casselman v. Packard, 16 Wis. 114; 82 Am. Dec. 710.)