Olson v. Goodsell

• Decision Date: 10 December 1909
• Citation: Olson v. Goodsell, 56 Wash. 251, 105 P. 463 (Wash. 1909)
• Court: Washington Supreme Court
• Parties: OLSON v. GOODSELL et al.

105 P. 463

56 Wash. 251

OLSON v. GOODSELL et al.

Supreme Court of Washington

December 10, 1909

Department 2. Appeal from Superior Court, Spokane County; W. A. Huneke Judge.

Action by Sam Olson against Samuel J. Goodsell and others. Judgment for defendants, and plaintiff appeals. Reversed, with instructions.

Samuel Edelstein and Post, Avery & Higgins, for appellant.

Gillespie & Ellis, for respondents.

CROW J.

This action was commenced on August 29, 1908, by Sam Olson against Samuel J. Goodsell, Mrs. Samuel J. Goodsell, his wife, Joseph Hall, and Mrs. Joseph Hall, his wife, to foreclose a lien upon real property in the city of Spokane. The cause was submitted upon an agreed statement of facts, on consideration of which the trial court dismissed the action. The plaintiff has appealed.

The only question involved is whether the respondents Joseph Hall and wife, owners of the real estate, were entitled to claim that it was exempt as their homestead against appellant's lien. From the agreed statement of facts, it appears that the lien of appellant was valid; that he was entitled to judgment for $31.75 debt, $25 attorney's fees, and a decree of foreclsoure, provided his claim of lien was not defeated by respondents' subsequent declaration of homestead; that the respondents Joseph Hall and wife acquired the real estate by purchase from the defendants Goodsell and wife; that early in the year 1908 they erected a dwelling house thereon, appellant furnishing part of the labor and materials used in its construction, for which he claimed his lien; that respondents had entered into possession; that appellant prepared, filed and recorded a timely and statutory notice of lien, and that on September 22, 1908, after the commencement of this action the respondent Joseph Hall, as the head of a family, made executed, acknowledged, and recorded a declaration of homestead in and to the property under the provisions of section 5243 et seq., Ballinger's Ann. Codes & St (Pierce's Code, § 5485). The trial court erroneously held that such declaration of homestead destroyed appellant's lien and prevented its foreclosure. The line having attached before the declaration of homestead was made, appellant was entitled to a foreclosure decree. In Hookway v. Thompson, 105 P. 153 (14 Wash. Dec. 20), this court recently held that a mortgage executed by a husband upon his separate property constituted a valid and enforceable...