Carey v. Douthitt

BARNARD, P. J. The respondents, as joint tenants, owned lots 7 and 10 of Crawford’s Subdivision No. 1, ae[410]cording to the map thereof recorded in Imperial County, and resided in a house situated upon lot 10 while the respondent husband conducted a junk business upon lot 7. In another action brought by these appellants against the respondent husband and another party, a writ of attachment was levied upon lot 7 of said property on May 19, 1931. On May 25, 1931, the respondent wife executed, acknowledged and recorded a declaration of homestead upon lot 7 alone. On June 5, 1931, a judgment in the action referred to was entered in the Superior Court of Imperial County and the same was duly entered in the judgment book and a transcript thereof recorded in the office of the county recorder. Thereafter, the present action was begun by these appellants for the purpose of determining what portion of the said lots 7 and 10 was subject to the lien of the judgment and for the purpose of quieting title to such portions thereof as might be found subject to the lien of said judgment. In their answer these respondents alleged that it was their intention and purpose to declare a homestead upon both lots and that the respondent wife had inadvertently omitted any reference to lot 10 in the declaration of homestead filed by her. Among other things, the co art found as follows:

“That at the time of the filing of said declaration of homestead the said Edna Douthitt intended to claim said lot ten on which their dwelling house and other improvements were located, and on which she and her said family were actually living as their home, as well as lot seven, but through mistake and inadvertence she named in her said declaration only said lot seven. That she ought to be allowed to make and file an amended declaration as and of the date when her declaration was originally filed with said lot ten described therein, and added thereto.”

“That at the time of the commencement of said action by plaintiff against said Will H. Douthitt and George W. Lindsay until and at the time of the issuance and levy of the attachment therein on lot seven and at all times subsequent thereto, said plaintiffs in said action, had reasons to know and did know, that said Edna Mary Douthitt and her said family actually resided wholly upon said lot ten and that at all times subsequent to the filing of said declaration of homestead the said plaintiffs had reason to know [411]