Barouh v. Israel, 32926
| Decision Date | 22 March 1955 |
| Docket Number | No. 32926,32926 |
| Citation | 46 Wn.2d 327,281 P.2d 238 |
| Parties | Morris BAROUH and Lucille Barouh, Respondents, v. Leon ISRAEL and Harlan S. Callahan, Sheriff of King County, Appellants. |
| Court | Washington Supreme Court |
Wettrick, Flood & O'Brien, Seattle, for appellants.
Karr, Tuttle & Campbell, Seattle, for respondents.
This is an appeal from a judgment restraining appellants from proceeding with a writ of execution and quieting title to certain real estate in respondents.
Chronologically these events occurred:
September, 1946: Albert and Rachel Israel purchased Lot 32, except the south 5 feet thereof, and the south 20 feet of Lot 31, Block 3, in Gilt Edge Addition to the City of Seattle, King County, Washington.
July, 1948: Marital difficulties between Albert and Rachel. Both moved out of home, leaving furniture. Albert moved in with brother Leon, where he still resides. Rachel moved in with her parents.
Sept. 22, 1948: Rachel executed Declaration of Homestead covering Lot 32, except south 15 feet thereof, and south 20 feet of Lot 31.
Sept. 22, 1948: Declaration of Homestead filed.
Sept. 25, 1948: Order in divorce proceedings that property be sold and proceeds distributed.
Oct. 21, 1948: Rachel granted interlocutory order; awarded custody of minor child; awarded as her sole and separate property, Lot 32, except south 15 feet thereof, and south 20 feet of Lot 31.
Oct. 21, 1948: Rachel issued following receipt to Barouh: 'I received $150.00 from Morris Barouh on the 21st of October for property at 327-25th Ave. Purchase price $7,000.00.
'[Signed]
Rachel Israel.'
Oct. 30, 1948: Leon Israel granted judgment against the community of Albert and Rachel Israel and against each of them individually.
Note:
Nov. 22, 1950: Judgment modified to make it against Albert individually and the marital community.
Nov. 4, 1948: Barouh paid Rachel an additional $1,650.00 and received a quitclaim deed to Lot 32, except south 5 feet, and south 20 feet of Lot 31.
Feb. 1949: Barouh moved into the house; up to the time of trial had paid $3,081.95 on real estate mortgage which they had assumed; and renovated the house at an expenditure of $1,846.53.
June 29, 1949: Final Decree.
Jan. 15, 1951: Nunc pro tunc order in divorce proceedings correcting interlocutory order and final decree to make proper description of property.
1952: Leon procured writ of execution on his judgment and caused levy on Lot 32, except south 5 feet, and south 20 feet of Lot 31.
Sept. 15, 1952: This action commenced seeking judgment quieting title and enjoining sale of property.
Appellants assign error in quieting title as against Leon Israel upon the following grounds:
'(1) That appellant judgment creditor, by virtue of his judgment, on October 30, 1948, had a lien upon all property of the judgment debtor, including all property, title to which appeared of record in the judgment entered.
'(2) That the property described in the homestead declaration of Rachel Israel was and should have been available to satisfy the lien of appellant judgment creditor for the reason that such homestead, if any, was invalid (a) for want of a proper legal description and (b) in that no date of acknowledgment appeared therein.
'(3) That such declaration of homestead of Rachel Israel as to her actual residence or her intent to reside therein or thereon was knowingly false and under the facts of this case could give rise to no legal homestead.
'(4) That the respondents herein derived no other and different title or right to withhold the property here in issue from the reach of appellant judgment creditor than that which their grantor enjoyed.'
The declaration of homestead stated:
'Declaration of Homestead
'Know All Men By These Presents:
'That I, Rachel Israel, do hereby certify and declare as follows, to-wit:
'(1) That I am a married woman and my husband has not made any declaration of homestead, and I therefore make this declaration for our joint benefit.
'(2) That we purchased the hereinafter described property for a homestead and intend to reside thereon and are now actually residing thereon.
'(3) That I claim the premises hereinafter described as a homestead.
'(5) That the premises herein referred to and which is hereby claimed as a homestead is situated in King County, State of Washington, and is legally described as follows, to-wit:
'Lot 32, except the south 15 feet thereof and the south 20 feet of Lot 31 in Block 3 of Gilt Edge Add. to the City of Seattle, as per plat recorded in Vol. 99 Plats on page 88, records of said county.'
'In Witness Whereof, I have hereunto set my hand this 22 day of September, 1948.
'[Signed] Rachael Israel
'State of Washington
County of King *)ss.
'This Is To Certify that on this--day of September, 1948, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned, sworn and qualified, personally appeared Rachel Israel, to me known to be the individual described in and who executed the within and foregoing instrument, and acknowledged to me that she signed and sealed the same as her free and voluntary act and deed for the uses and purposes therein mentioned.
'Witness My Hand and official seal the day and year in this certificate first above written.
'Morris A. Robbins
Notary Public in and for the State of Washington, residing at Seattle.'
Was the homestead invalid for want of a proper legal description in the declaration? If the description in the declaration is erroneous to the extent that it describes property not owned by the declarant, the declaration of homestead is invalid. Strand v. Pekola, 18 Wash.2d 164, 138 P.2d 204. If, however, the identity of the property can be established from the description, then the description is not so erroneous as to invalidate the homestead. Wheeler Perry Co. v. Mortgage Bond Co. of New York, 41 Ariz. 247, 17 P.2d 331. Clearly, no one was misled by the slight error in describing the property in question.
The date of the acknowledgment is blank, but this is not a material defect. 1 C.J.S., Acknowledgments, § 85, p. 843. Where there is an omission of the date in a certificate of acknowledgment, the court is entitled to look at the whole instrument, and if the date can thus be ascertained, the informality of the certificate may be regarded as obviated. When no date appears in a certificate of acknowledgment, the date of the instrument will be presumed to be the date of the acknowledgment, in the absence of anything to the contrary. 1 Am.Jur. 351, Acknowledgments, § 87; Chase v. Whiting, 30 Wis. 544. The declaration of homestead was dated September 22, 1948. It was filed September 22, 1948. Obviously, it was acknowledged the same day.
No citation of authority is necessary for the rule that a declaration of homestead must be filed in good faith. The record is clear that, at the time the declaration was filed, neither Mr. nor Mrs. Israel was occupying the premises, although the furniture was there. Mrs. Israel testified:
'Q. And except for selling the house, you would have intended to have moved back there? A. Well.
'The Court: Your answer to that is what? A. Pardon?
'The...
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