Pekola v. Strand
| Decision Date | 25 April 1946 |
| Docket Number | 29872. |
| Citation | 168 P.2d 407,25 Wn.2d 98 |
| Parties | PEKOLA et ux. v. STRAND. |
| Court | Washington Supreme Court |
Department 2
Action by Martin Pekola and Regina Pekola, husband and wife, against John Strand, to quiet title to certain realty. From a judgment denying relief, the plaintiffs appeal.
Affirmed.
Appeal from Superior Court, Grays Harbor County; H G. Sutton, judge.
T. H McKay, W. J. Murphy and Theodore B. Bruener, all of Aberdeen for appellants.
O. M Nelson, of Montesano, for respondent.
This is an appeal by plaintiffs from a judgment dismissing an action to quiet title to certain real property. The action is the culmination of litigation between the parties which had its inception in 1939, when Strand, in a tort action against Martin and Regina Pekola, obtained a separate judgment against Martin Pekola.
Although the judgment did not run against Regina Pekola nor the community, Strand served notice of its entry upon her as well as upon Pekola. Within thirty days Pekola and his wife filed a declaration of homestead upon the southwest quarter of the northwest quarter of section 12, township 19 north, range 9 West Willamette Meridian, and contiguous land lying in the southeast quarter of the northeast quarter of section 11. They failed to include a four and one-quarter acre tract upon which their home and garage were located, lying in the southeast quarter of the northwest quarter of section 12. Pekola had acquired title to all the real estate described prior to his marriage with Regina. The improvements were all made subsequent to their marriage.
Strand levied execution on the four and one-quarter acre tract not included in the homestead declaration. The Pekolas brought an action to restrain sale under the execution and obtained an injunction on the theory that the tract was community property. Upon appeal by Strand, this court reversed the judgment, holding the tract to be the separate property of Pekola and, not being covered by the homestead declaration, was subject to sale under execution issued on the judgment. Strand v. Pekola, 18 Wash.2d 164, 138 P.2d 204.
Pursuant to execution issued April 28, 1945, the sheriff sold the four and one-quarter acre tract. In the meantime, Regina Pekola had filed a declaration of homestead, which included the four and one-quarter acre tract; and she and Pekola had filed an amended declaration in which it was also included.
After the property was sold under execution, they brought this action to quiet title to it.
Claim for relief is presented on two theories: (2) That the tract was not subject to execution because (a) of the amended declaration of homestead and (b) because of the separate declaration of homestead filed by Regina Pekola; and (2) that the community is entitled to an equitable lien upon the tract.
First. (a) Appellants take the position that, inasmuch as the four and one-quarter acre tract was omitted from the original homestead declaration by mistake, they had the right to amend it so as to include the tract; and that the amended declaration is effective from the filing date of the original.
This position is untenable. Remington's Revised Statutes, § 528, provides that, '* * * unless such homestead is selected Before or within thirty days after a notice in writing of the entry of a judgment, served in the manner provided by law for service of summons in civil actions, it [the homestead] shall not be exempt from sales.' (This section was amended in 1945. Rem.Supp.1945, § 528.)
Of course, a homestead declaration may be amended any time within thirty days after notice of entry of judgment. But to say that it may be amended after the expiration of thirty days would distort the plain language of the statute. Construing the statute in United States Fidelity & Guaranty Co. v. Alloway, 173 Wash. 404, 23 P.2d 408, 409, we said:
Furthermore in Strand v....
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