White v. Rosenthal

MUNDO, J., pro tem. Appellants were the owners of a piece of property in San Diego upon which, in November, 1928, a declaration of homestead was filed. In March, 1929, a mortgage on this property was foreclosed by the owner, Florence A. Faurot, and on March 25, 1930, a commissioner’s deed was issued to her. During the latter part of the period of redemption from said foreclosure, negotiations to refinance were entered into between appellants and Florence A. Faurot which resulted in a deed from her to appellants. This deed was dated April 1, 1930. On April 2, 1930, appellants executed a trust deed to Florence A. Faurot. Respondent had in February, 1929, recovered a judgment for $439.84 against appellants. On June 24, 1931, respondent caused an execution to be issued on the judgment and the property was levied on. A second declaration of homestead was filed and recorded by appellants on June 25, 1931. On July 20, 1931, the property was sold on execution sale to respondent.

The present action was commenced by appellants on July 14, 1932, to quiet title. The sheriff’s deed was issued to respondent on July 21, 1932. The case was tried on a stipulated statement of facts and the court found that appellants had no right, title or interest in and to the property; that the respondent Rosenthal is, and ever since the twenty-first day of July, 1932, has been the owner of and entitled to the possession of the property.

The principal question involved is, whether the homestead recorded on November 1, 1928, remains in full force and effect up to and including the present time, or whether the foreclosure of the mortgage annulled the first homestead, in view of the fact that the appellants have continuously resided on and been continuously in possession of said premises since the acquisition thereof in April, 1919, and also in [186]view of the fact that their right to possession has never been questioned by anyone so far as this action is concerned until the levy of the execution on June 24, 1931.

Appellants contend that a homestead once declared and established remains in full force and effect until abandoned in the manner provided by section 1243 of the Civil Code. That section provides: “A homestehd can be abandoned only by a declaration of abandonment, or a grant thereof, executed and acknowledged: ...”

In the case of Faivre v. Daley, 93 Cal. 664 [29 Pac. 256], the word “grant”, as used in Civil Code, section 1243, was defined as being applicable to all transfers of real estate, and that when a party owning property upon which a homestead is filed executes a quitclaim deed it operates as an abandonment of the homestead right and conveys to the grantee all of the party’s interest in the property. The same principle would be true of a grant deed, and it now remains for us to determine what happens to the homestead upon a foreclosure sale.