Hookway v. Thompson

• Decision Date: 23 November 1909
• Citation: 56 Wash. 57,105 P. 153
• Parties: HOOKWAY v. THOMPSON.
• Court: Washington Supreme Court

105 P. 153

56 Wash. 57

HOOKWAY v. THOMPSON.

Supreme Court of Washington

November 23, 1909

Department 1. Appeal from Superior Court, King County; John F. Main Judge.

Suit by Augusta Hookway, as guardian of the person and estate of Walter F. Heimann, a minor, against Sadie V. Thompson and another. Decree for plaintiff, and defendant Sadie V Thompson appeals. Affirmed.

George W. Saulsberry and L. Y. Devries, for appellant.

Aust &amp Terhune, for respondent.

GOSE J.

This action was instituted by the respondent to foreclose a mortgage on lot 2 in block 4 of McGraw's Washington Park addition to the city of Seattle. The complaint contains the usual averments in the foreclosure of a real estate mortgage and further alleges: That since July 20, 1907, James Thompson and the appellant, Sadie V. Thompson, have been husband and wife; that at the time of the marriage James Thompson was the owner of the mortgaged property; that on September 20, 1907, James Thompson borrowed from the respondent the sum of $1,400, and for the purpose of securing its payment he upon that date executed and delivered to her a mortgage upon the property, describing himself as an unmarried man. The prayer is for a foreclosure of the mortgage, a sale of the mortgaged property, and an adjudication that the appellant wife has no interest in the property. The appellant, Sadie V. Thompson, in her separate amended answer, admits that she was married to her codefendant on July 20, 1907; admits that he was the owner of the property at the time of the marriage; and alleges affirmatively that, immediately after the marriage, she and her codefendant moved onto the premises and into the house situate thereon, that she has since occupied the same as a homestead for herself and her husband, that she has no other home or homestead; that her husband is absent from the state at a place unknown to her; that he refused to claim the property as a homestead, and that on June 15, 1908, she executed and filed with the county auditor of the county where the property was situate a declaration of homestead on the property, for the joint use and benefit of herself and husband, and that she has expended her separate funds in improving the property. The action was commenced on March 4, 1908, and, as we have stated, the declaration of homestead was executed and filed on June 15th following. A demurrer was interposed to the answer, on the ground that it did not state facts sufficient to constitute a defense. From a judgment sustaining the demurrer, the appeal is prosecuted.

The single question presented for determination is whether a mortgage executed by a husband upon his separate real estate to secure a contemporaneous loan is valid and enforceable against a subsequent declaration of a homestead on the part of the wife. The question to this extent is a new one in this court, and its determination necessitates an examination of our homestead statutes. The applicable provisions are contained in 2 Ballinger's Ann. Codes & St., and are as follows:

'Sec. 5214. The homestead consists of the dwelling house, in which the claimant resides, and the land on which the same is situated, selected as in this chapter provided.

'Sec. 5215. If the claimant be married the homestead may be selected from the * * * separate property of the husband.'

'Sec. 5243. In order to select a homestead the husband or other head of a family, or in case the husband has not made such selection, the wife must execute and acknowledge, in the same manner as a grant of real property is acknowledged, a declaration of homestead, and file the same for record.'

'Sec. 5246. From and after the time the declaration is filed for record the premises therein described constitute a homestead.' Pierce's Code, §§ 5456, 5457, 5485, 5488.

Under the prior law (Code of Laws 1881, § 342) the homestead could be selected at any time before sale. In construing that statute, we held that no formal declaration was necessary in the selection of a homestead, but that its mere occupancy as such by the owner and his family constituted a selection. Philbrick v. Andrews, 8 Wash. 7, 35 P. 358; Anderson v. Stadlmann, 17 Wash. 433, 49 P. 1070. The appellant urges that we have adopted the same construction of the present statute, and cites in support of the contention Wiss v. Stewart, 16 Wash. 376, 47 P. 736; Anderson v. Stadlmann, supra, Ross v. Howard, 25 Wash. 1, 64 P. 794; Whitworth v. McKee, 32 Wash. 83, 72 P. 1046; Curry v. Wilson, 45 Wash. 19, 87 P. 1065; North Pacific Loan & Trust Company v. Bennett, 49 Wash. 34, 94 P. 664; and a case from this state ( In re Thompson [D. C.] 140 F. 261). In all these cases except the Bennett Case, the homestead has been selected by occupancy under the law of 1881. While in some of the earlier cases cited the court remarked that the new law changed the old law as to the manner of selection but not as to time of selection, the fact remains that the language was used in construing the old law. This is made clear, and the position of the court as to the relation of the present statute to the prior one is well stated, by Chief Justice Fullerton, in Whitworth v. McKee, 32 Wash. 99, 72 P. 1051, in the following language: 'We agree with counsel that the later statute so far superseded the earlier one that no new homestead right can now be acquired under it, or could have been so acquired since the passage of the later statute. * * *' He then pointed out that a homestead selected by occupancy under the old law was a vested interest, or an estate which could not be destroyed by the repeal of the law under which it was acquired. The same view is announced in Donaldson v. Winningham, 48 Wash. 374, 93 P. 534, 125 Am. St. Rep. 937. It would seem that the meaning of the present law as to the time and manner of selection of a homestead, and as to when and how a homestead right is created, is so clear as to make it certain that a homestead can only be selected by the execution and filing of a homestead declaration, and that the premises constitute a homestead only from and after the time the declaration is filed for record. The words of the statute 'from and after the declaration is filed' mean that the homestead is brought into existence by the doing of the several statutory acts by the claimant, and that it exists and speaks from the date of the filing, and not otherwise. The...