Roth v. Insley
Before: Beatty, Foote
Synopsis
Homestead — Exemption from Execution — Dissolution oe Family. — Under section 1265 of the Civil Code as amended in 1880, providing that a homestead once declared upon remains as such always exempt from forced sale as against any liability of the owner, except as otherwise provided, a homestead set apart under section 1261, subdivision 6, of the Civil Code, by a son, with whom his mother resided under his care and maintenance, does not cease to be exempt from execution for a debt of the son, because he has ceased to be the head of a family, owing to the death of the mother.
Id,—Injunction — Enjoining Sale oe Homestead—Cloud on Title.— The sale of a homestead under execution for a debt for which the homestead is exempt, though void under the statute, casts a cloud upon the title to the property, and the owner is entitled to have the sale enjoined, as it would be necessary, in an action of ejectment by the purchaser under the exeeution sale, for the owner to introduce extrinsic evidence to show that the execution sale, valid on its face and under a valid judgment against him, did not pass title to the property.
Id. — Threatened Irreparable Injury. — A complaint setting out facts showing that a cloud upon the title to property was threatened by an execution sale of plaintiff’s homestead, and would be accomplished unless an injunction issued, sets up facts showing threatened irreparable injury, for which an injunction will be granted.
Id.—Recalling Execution—Remedy by Motion.—An execution levied by a constable upon a homestead, but which could have been levied upon other property of the defendant if he had any, cannot he recalled upon motion of the defendant, and an injunction will not be refused to restrain the sale of the homestead, upon the ground that a remedy by motion exists.
Opinion — Foote
Foote, C. This appeal is taken from an order refusing to dissolve an injunction. The defendants had caused an execution to be levied upon the homestead of the plaintiff, issued under a judgment obtained against him in a justice’s court by one H. C. Howard. It is charged in the complaint that the defendant Insley, as constable, has levied upon the property, and is about to sell it under execution, and that the defendant Montgomery applied to the justice of the peace and had the execution issued'without authority; that Insley has been duly notified that the property he has levied upon and advertised for sale is the homestead of the plaintiff, and exempt from execution; but that nevertheless the defendants are about to, and unless restrained by the superior court “ will, sell plaintiff’s said homestead property at forced sale to satisfy said judgment.” It is further stated that the sale contemplated would cast a cloud upon the plaintiff’s title to the property, and “ would irreparably injure and disturb plaintiff in the quiet enjoyment of said premises, and that plaintiff has no speedy and adequate remedy at law.”
The court below granted a temporary injunction as prayed for. A motion was then made to dissolve said injunction; upon that motion, which, as we have seen, was denied, an affidavit was read that the plaintiff’s [138]mother died on the 18th of July, 1889. It was urged by the appellants here that since the declaration of homestead showed that the plaintiff had declared a homestead upon the property as the head of a family, because his mother was then residing with hitn on the property, under his care and maintenance, he was such “ head of a family,” in contemplation of law, only during the lifetime of his mother, who thus resided with him, and was maintained and cared for by him, and that, at her death, the right to the exemption of the homestead from forced sale ceased, and that it became liable as any other property of the plaintiff.
Conceding that, taking the complaint and declaration of homestead together, it appears that the only claim to be the head of a family which the plaintiff ever had was as a son with whom his mother resided on the property, and under his care and maintenance, under section 1261, subdivision 3, of the Civil Code, it appears to us that, under the statute governing the present matter, and hereafter cited, the homestead levied upon was exempt from the sale about to be enforced against it.
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