Security Nat. Bank v. Mason

• Decision Date: 15 September 1921
• Docket Number: 16325.
• Citation: 117 Wash. 95,200 P. 1097
• Court: Washington Supreme Court
• Parties: SECURITY NAT. BANK v. MASON et ux.

200 P. 1097

117 Wash. 95

SECURITY NAT. BANK v. MASON et ux.

No. 16325.

Supreme Court of Washington

September 15, 1921

Department 1.

Appeal from Superior Court, Douglas County; Sam B. Hill, Judge.

Action by the Security National Bank against A. H. Mason and wife. Judgment for defendants and the plaintiff appeals. Affirmed.

Charles P. Lund, of Spokane, for appellant.

Fred M Williams, of Spokane, for respondents.

HOLCOMB J.

This action is in ejectment to determine the title to the northeast quarter of section 32, township 29 north, range 26 E. W. M., in Douglas county, Wash. On November 23, 1915, and for some time prior thereto, Mason and wife were owners in fee of the real estate, and in occupancy thereof. On October 23, 1914, defendant A. H. Mason, acting for the community executed and delivered to appellant bank a promissory note for $2,000, and thereafter, on November 23, 1915, the bank commenced an action in the superior court for Spokane county against Mason and wife upon the note. Personal service was had upon both defendants. At the commencement of the action the bank caused a writ of attachment to be legally sued out directed to the sheriff of Douglas county, Wash., which, on November 26, 1915, was duly levied upon the real estate in question. The bank also, on November 26, 1915, caused a lis pendens to be filed in the auditor's office of Douglas county, Wash. A. H. Mason defaulted, and his wife, Annie E Mason, filed an answer in the case in Spokane county, but did not appear to contest the action. On February 10, 1916, the Spokane court made findings of fact, conclusions of law, and judgment in favor of appellant for the full amount demanded. Appellant was granted judgment against both the Masons, and the writ of attachment was in all respects declared to be valid and lawfully sued out, and the real estate theretofore attached directed to be sold by the sheriff of Douglas county, under the writ of execution issued under the Spokane county judgment, as provided by law. Pursuant to that judgment an execution was duly issued directed to the sheriff of Douglas county, who, acting thereon, on April 22, 1916, sold the real estate involved, in the manner provided by law, and issued a certificate of sale therefor to appellant. Thereafter the sale was duly confirmed, and on May 8, 1917, no redemption having been made, the sheriff of Douglas county issued a deed to appellant.

After the commencement of the Spokane county action, and the issuance and levy of the writ of attachment, and the filing of the lis pendens in the auditor's office of Douglas county, to wit, on December 2, 1915, the defendants, Mason and wife, executed and delivered to C. D. Martin and E. E. Garberg a warranty deed in the usual form for the real estate involved, which deed was duly recorded in the auditor's office of Douglas county. Afterwards, on February 17, 1916, Mason and wife took a reconveyance of the property by way of a quitclaim deed from Martin and Garberg, and their wives, which was duly recorded. Appellant calls this transaction a repurchase by Mason and wife from Martin and Garberg of the real estate. Having repurchased the real estate subject to the attachment lien of plaintiff, as appellant claims, on March 4, 1916, mason executed, acknowledged, and filed in the auditor's office of Douglas county, Wash., a declaration of homestead, and no declaration of abandonment has ever been made. It will be noted that this declaration of homestead was made after judgment in the case in Spokane county, but before sale under execution. Mason and wife claiming title and having possession, appellant brought this suit.

On the issue of fact of whether or not the conveyance by Mason and wife to Martin and Garberg was in fact an absolute conveyance or a mortgage, the trial court found that the deed was intended to be, and was, in fact, an absolute deed of conveyance of the real estate, and vested title thereto in Martin and Garberg, subject to the attachment of plaintiff. The trial judge, however, decided that the conveyance by Mason and wife to Martin and Garberg, and the reconveyance by Martin and Garberg to Mason and wife, did not cut off the statutory right of homestead, and that is the sole question to be determined on this appeal.

No statement of facts or bill of exceptions was brought up, and the question has to be determined solely upon the findings of fact and conclusions of law.

Appellant urges two propositions to justify a reversal: First, defendants could not by purchasing the real estate, already burdened with the lien of plaintiff's attachment, obtain a better title, or greater rights, than their grantors had therein; and, second, the judgment of the superior court for Spokane county, in which the attachment was issued, and the final judgment rendered, directing the sale of the real estate involved, is res judicata between the parties.

It is first contended that the attachment in the Spokane county suit created a specific lien in rem against the real estate here involved, and that when the judgment was granted expressly preserving the attachment lien the execution preserved the specific lien against the property under the judgment. Sheppard v. Guisler, 10 Wash. 41, 38 P. 759, and Van de Vanter v. Davis, 23 Wash. 693, 63 P. 555, are cited as sustaining the above contention.

We have uniformly held, since the earliest days of statehood, that homestead and exemption laws are to be liberally construed, because of the interest that the public has in the maintenance and protection of the home of the individual citizen. Such laws were commanded to be enacted by article 19, § 1, of our Constitution. Prior to statehood, the territorial Legislature had provided that----

'There shall be also exempt from execution and attachment to every householder, being the head of a family, a homestead etc. * * * Such homestead may be selected at any time before sale.' Code of 1881, § 342.

We held in Wiss v. Stewart, 16 Wash. 376, 47 P. 736 Anderson v. Stadlmann, 17 Wash. 433, 49 P. 1070, Ross v. Howard, 25 Wash. 1, 64 P. 794, In re Feas' Estate, 30 Wash. 51, 70 P. 570, and State ex rel. Jakubowski v. Superior Court, 84...