Ray v. Valdez

WOOD, P. J. Plaintiff, a judgment creditor of defendants, sought a judgment that a declaration of homestead, made by defendants, is void. Judgment was in favor of defendants. Plaintiff appeals from the judgment and the order denying her motion for a new trial.

Defendants, husband and wife, were the owners of 6.39 acres of land, and shack housing thereon, located in Torrance. On October 13, 1950, they recorded a declaration of homestead which stated that the property they claimed as a home[504]stead was the 6.39 acres (described by metes and bounds), and that the character of the property to be homesteaded was ‘1 Ten rooms of shack housing and a frame shed, occupied by” defendants and their four minor children.

After recording the declaration, and prior to October 30, 1954, the defendants at various times sold portions of the 6.39 acres to third persons, but they did not sell the “lot” upon which the “Ten rooms of shack housing and a frame shed” were situated. The “lot,” so referred to, is described in the findings by metes and bounds. (From a consideration of the dimensions of the lot, as shown in that description, it is estimated by this court that the area of the lot is about one-fifth of an acre.) In other words, it appears that defendants sold all of the 6.39 acres except a portion thereof which comprised about one-fifth of an acre, and on which portion the shack housing and shed were situated.

On October 30, 1954, defendants moved a “freeway house” onto the lot, and placed that house beside the shack housing, and made the house “fit and ready for habitation.”

About November 5, 1954, the plaintiff lent $10,000 to defendants, and at that time defendants executed a promissory note for that amount, payable to plaintiff two years after date.

About December 1, 1954, the defendants and their children moved from the shack housing and shed into the freeway house, and thereafter they resided in that house. After moving into that house, the defendants caused the shack housing and shed to be torn down, and caused the materials therefrom to be disposed of at a public trash dump.

Defendants failed to pay the note, and on December 26, 1956, the plaintiff obtained a default judgment, upon the note, against defendants for $12,053.79. On March 29, 1957, plaintiff caused an execution to be levied on the freeway house and the lot upon which that house was situated. Defendants informed the sheriff that on October 13,1950, they had recorded said declaration of homestead. The sheriff refused to sell the property.