Simonson v. Burr

BELCHER, C. The plaintiffs in this action at all the times named in the pleadings therein were husband and wife. On April 6, 1891, the real property involved in the action was conveyed by deed to the wife, Bengita Simonson. On December 3, 1892, the plaintiffs jointly executed, acknowledged, and filed for record a declaration of homestead upon the said property. The declaration stated that: “We, Espen Simonson and Bengita Simonson, hereby certify and declare that we are husband and wife, and that we do now, at the time of making this declaration, actually reside on the land and premises hereinafter described. That the land and premises on which we reside are situate in the county of Los Angeles, state of California, bounded and described as follows [then setting out the description]. That it is our intention to use and claim said land and premises, together with the dwelling-house thereon, and we hereby do claim the same as a homestead. That the actual cash value of said property we estimate to be four thousand dollars. In witness whereof we have hereunto set our hands, this third day of December, 1892.”

On June 30, 1893, the defendant, George H. Emery, recovered a judgment in the superior court of Los Angeles county against the plaintiff, Bengita Simonson, for the sum of sixteen hundred and forty-nine dollars and forty-five dollars costs, which judgment was duly docketed, and no part thereof has been paid.' On [584]February 6, 1897, a writ of execution upon the said judgment was issued, and placed in the hands of the defendant, John Burr, who was then the sheriff of Los Angeles county, and under the supposed authority of said writ he, as such sheriff, levied upon the said real property, and was threatening to advertise and sell the same to satisfy the said judgment. Thereupon the plaintiffs commenced this action to obtain an injunction restraining the sale of the said property, or any part thereof, under or by virtue of said execution.

The complaint sets out all the facts and alleges in effect that the said real property was purchased and paid for with community funds, and at all the times mentioned in the complaint was the community property of the plaintiffs, and that plaintiffs’ title thereto would be clouded by such sale, and great and irreparable injury would thereby be done to them. The answer denies, upon information and belief, that the said property, at all the times mentioned in the complaint, or at any time, was community property, or was purchased with community funds; denies that plaintiffs’ title to said real property would be clouded by a sale of the same, “other than such as defendants are of right and law entitled to place thereon,” or that any injury would thereby be done to plaintiffs; and alleges, upon information and belief, that on or about the month of September, 1896, plaintiffs leased the said property to one Schandoney for the term of one year, and that since said letting they have not lived upon or occupied the same, or any part thereof, but have been and now are living and residing upon other property in Los Angeles county which they lately purchased, and upon which they have erected a home in which they are now residing.