Heathman v. Holmes

McFarland, J. Plaintiffs obtained a writ of injunction enjoining the sale under execution of certain premises claimed by them as a homestead. On motion of defendants, the injunction was dissolved; and from the order dissolving it, the plaintiffs appeal. The only question in the case is, whether or not the premises constitute the legal homestead of the appellants.

The evidence shows, substantially, these facts: In 1883, the appellant M. F. Heathman purchased the lot of land involved, situated in the residence part of the city of Los Angeles, “ for the purpose of erecting a dwelling-house thereon, and making the same a home and dwelling-place for himself and family.” In the summer of 1885 he moved into the house with his family, consisting of a wife and daughter, and has resided on the premises with his family continuously ever since. On February 17, 1890, the said M. F. Heathman duly executed a declaration of homestead upon the said premises, which was on the same day duly recorded. However, in 1888, he built a large addition to the house, and in October of that year he leased the greater part of the • house to Mrs. Samantha Kelly for a term of three years. He reserved from the lease two main rooms over the parlors, and also a bath-room, and certain other privileges, and he with the family continued to live and make their home in the house until about March 1,1890, when [294]Mrs. Kelly forfeited her lease and left the house,—Heath-man and his family remaining in the house and continuing to make it their home. He was not the lessee of Mrs. Kelly of the part of the house used by him and his family while Mrs. Kelly was there; but that part of the house was reserved from the operation of the lease from him to her. The rooms thus reserved were taken care of by his family, although he and his family took their meals with Mrs. Kelly at a certain price agreed upon when the lease was made, and which was deducted from the monthly rent due him from her. The part of the building leased by her was used by her as a boarding and lodging house. Two witnesses — the said Mrs. Kelly and one J. A. Kelly — swore that the addition to the house was built for hotel purposes, and with special reference to its use as a hotel. Heathman testified that he built the addition partly on account of financial loss in his business, and partly because his wife not being physically strong enough to bear the cares of housekeeping, he decided to adopt measures by which his family could have their board furnished in their own house.

We think that the court below erred in dissolving the injunction. We have not been referred to any decision of this court where the facts were exactly like those in the case at bar; but it has been held here that using a building partly, or even chiefly, for business purposes, or renting part of it, is not inconsistent with the right of homestead, provided it is, and continues to be, the bona fide residence of the family. (Ackley v. Chamberlain, 16 Cal. 181; 76 Am. Dec. 516; Skinner v. Hall, 69 Cal. 195; Lubbock v. McMann, 82 Cal. 226; 16 Am. St. Rep. 108.) In other states this rule has been very broadly stated. In Phelps v. Rooney, 9 Wis. 70, for instance,— perhaps a somewhat extreme case, — the homestead claimant owned a building three stories high in front and four at the rear. The court say that “ the style of the building externally is that of a store, and it is situated in a compact block, on one of the principal