Harley v. Whitmore

• Decision Date: 25 May 1966
• Citation: 242 Cal.App.2d 461,51 Cal.Rptr. 468
• Court: California Court of Appeals Court of Appeals
• Parties: Dolores L. HARLEY, Plaintiff and Appellant, v. Earl B. WHITMORE, Sheriff of San Mateo County, State of California, and Blanche J. Stiller, Defendants and Respondents. Civ. 22801.

Page 468

51 Cal.Rptr. 468

242 Cal.App.2d 461

Dolores L. HARLEY, Plaintiff and Appellant, v. Earl B. WHITMORE, Sheriff of San Mateo County, State of California, and Blanche J. Stiller, Defendants and Respondents.

Civ. 22801.

District Court of Appeal, First District Division 2, California.

May 25, 1966.

E. C. Mahoney, Burlingame, for appellant.

Gerald R. Barrick, San Bruno, for respondent Blanche J. Stiller.

SHOEMAKER, Presiding Justice.

This is an appeal from a judgment declaring plaintiff's declaration of homestead void, dissolving the temporary restraining order, and declaring that the execution sale of the subject property by defendant Stiller might proceed.

Plaintiff Dolores Harley, in this action for injunction and other relief, alleged that she was the owner of certain residential property in San Mateo County and was in possession of same; that she was married to defendant Robert Harley but had separated from him, and had commenced an action for divorce on October 18, 1962; that she and her minor son had thereafter continued to occupy the said premises and on December 21, 1962, she had filed with the Recorder of San Mateo County her declaration of homestead on said premises; that plaintiff had never abandoned or terminated said homestead and that the same was still in full force and effect; that title to the property homesteaded by her stood in the names of plaintiff and defendant Robert Harley, as joint tenants, but was actually community property; that on July 17, 1963, plaintiff obtained an interlocutory decree of divorce which awarded her said property and directed defendant Robert Harley to execute a deed conveying his interest therein to plaintiff; that he had ever since refused to execute such conveyance, although an order to show cause why he should not do so was still pending in the superior court; that on September 20, 1963, defendant Robert Harley allowed his mother, defendant Blanche Stiller, to take a default judgment against him; that plaintiff was also a defendant in said action but that it was never brought to trial against her; that on November 14, 1963, defendant Stiller, in her capacity as a judgment creditor of defendant Robert Harley, caused a writ of execution to issue, and on November 18, 1963, the defendant Sheriff of San Mateo County levied said writ upon the premises homesteaded by plaintiff; that the Stiller judgment was not obtained in a case falling within the classes enumerated in Civil Code, section 1241, and that defendant Stiller had not applied to the superior court for the appointment of appraisers, as required under Civil Code, section 1245; that defendant sheriff had nevertheless advertised said property for sale on February 13, 1964, and unless enjoined, would proceed to sell such property to satisfy the Stiller judgment.

Plaintiff prayed for a temporary restraining order and a permanent injunction prohibiting defendants and their agents from causing the premises in question to be sold or offered for sale, and terminating the interest of defendant Robert Harley in said property.

Defendant sheriff answered, admitting the levy of a writ of execution upon the property and notice of sale thereunder. He alleged his acting in his official capacity and requested the court's instructions.

Defendant Robert Harley answered, admitting that he and plaintiff were married, that she had commenced an action for divorce, and that she and her minor son had continued to occupy the premises in question subsequent to the parties' separation. He denied the remaining allegations of the complaint.

Defendant Stiller also answered, admitting obtaining the judgment alleged and causing a writ of execution to be levied upon the property in controversy. She also admitted that the judgment in her favor was not obtained in a case falling within the classes enumerated in Civil Code, section 1241, and that she had not applied for the appointment of appraisers, as required under Civil Code, section 1245. She further admitted that plaintiff was the owner of the property in question but affirmatively alleged that plaintiff owned the property as a joint tenant with defendant Robert Harley. With regard to the remaining allegations of the complaint, defendant Stiller alleged that she was without sufficient information upon which to form a belief and on this basis denial all said allegations.

By way of cross-complaint, defendant Stiller alleged that on September 20, 1963, she had obtained a money judgment in the amount of $1,645.43 against defendant Robert Harley; that on September 26, 1963, an abstract of said judgment was filed with the Recorder of San Mateo County; that the declaration of homestead filed by plaintiff did not comply with Civil Code, section 1263, in certain specified particulars, and she prayed for a judgment declaring that plaintiff's declaration of homestead was null and void and that cross-complainant was entitled to execute upon the property subject to such declaration.

In her answer to the cross-complaint, plaintiff denied that her husband had any interest in the property or that her declaration of homestead was invalid.

Prior to the commencement of the hearing, a show cause order which had been issued against Robert Harley in the divorce action was upheld by the District Court of Appeal ¹, and he executed a deed releasing his interest in said property to plaintiff. The instant action was then dismissed as against him.

At the trial, the deed from Robert Harley to plaintiff and the declaration of homestead recorded by plaintiff were admitted into evidence. No oral evidence was introduced, but counsel for defendant and cross-complainant Stiller stipulated that all of the allegations of the complaint were true except for the allegation that plaintiff's declaration of homestead was valid and the allegation that the property in controversy was owned by plaintiff only and was not the joint tenancy property of herself and Robert Harley. The case was submitted for decision upon this stipulation, the pleadings, the two documentary exhibits and the court records of the action brought by cross-complainant Stiller and the divorce action between plaintiff and Robert Harley.

The trial court found that on September 26, 1963, plaintiff and Robert Harley were the owners in joint tenancy of the property in controversy; that on December 21, 1962, plaintiff had recorded a declaration of homestead upon said premises, but that said declaration did not comply with Civil Code, section 1263, in that it failed to state her husband's name, failed to state that no former declaration had been made, and failed to state that the homestead declaration was for the benefit of herself and her husband; that by reason of these omissions, no valid homestead was created; that cross-complainant Stiller was awarded a money judgment and on September 26, 1963, caused an abstract of said judgment to be recorded in San Mateo County; that cross-complainant also caused an execution to be issued, but that defendant sheriff was temporarily enjoined from selling the real property owned by plaintiff and her husband; that all of the facts alleged in the cross-complaint were true, except as to those items specified and modified, and that all of the facts alleged in the complaint were false, except as to those allegations which were not in conflict with the allegations of the cross-complaint.

The court concluded that on September 26, 1963, Robert Harley had an interest as a joint tenant with plaintiff in the property subject of the action; that the declaration of homestead previously recorded by plaintiff was void; that the abstract of judgment which cross-complainant caused to be recorded on September 26, 1963, constituted a valid lien upon Robert Harley's interest in the subject property.

Plaintiff contends that the court erred in three particulars: (1) in finding that her declaration of homestead was invalid (2) in finding that Robert Harley had any interest in the property in question on September 26, 1963; and (3) in declaring that cross-complainant Stiller, who was not a bona fide creditor of Robert Harley, might cause the property to be sold under a writ of execution.

The answer to plaintiff's first contention is found in the following provisions of the Civil Code.

Section 1263 provides in pertinent part that 'The declaration of homestead must contain: 1. A statement showing that the person making it is the head of a family, and if the claimant is married, the name of the spouse; or, when the declaration is made by the wife, showing that her husband has not made such declaration and that she therefore makes the declaration for their joint benefit * * *'

Section 1261 provides in part that 'The phrase 'head of a family,' as used in this title, includes within its meaning: 1. The husband, when the claimant is a married person. 2. Every person who has residing on the premises with him or her, and under his or her care and maintenance, either: (a) His or her minor child * * *'

Section 1266 provides that 'Any person other than the head of a family, in the selection of a homestead, must execute and acknowledge, in the same manner as a grant of real property is acknowledged, a 'Declaration of Homestead."

Plaintiff's declaration of homestead stated that she was the head of a family; that she was married; that her minor son was residing with her and under her care and maintenance on the premises sought to be homesteaded; that her family consisted of her son and herself; and that no former declaration of homestead had been made.

Plaintiff tacitly concedes that her declaration did not fulfill the statutory requirements applicable to a declaration filed by a wife. It is well established that a wife's declaration which fails to state that her husband has not made a prior declaration of homestead and that she is doing so for their joint benefit is fatally defective. (Strangman v. Duke (1956) 140 Cal.App.2d...