Security Sav. and Loan Ass'n v. Busch, 43069

• Citation: 523 P.2d 1188,84 Wn.2d 52
• Decision Date: 03 July 1974
• Docket Number: No. 43069,43069
• Parties: SECURITY SAVINGS AND LOAN ASSOCIATION, a corporation, Respondent, v. Jack H. BUSCH et al., Defendants, and Alice L. Frisone, Appellant, Collection Unlimited, Inc., a corporation, et al., Defendants.
• Court: United States State Supreme Court of Washington

Page 52

84 Wn.2d 52

523 P.2d 1188

SECURITY SAVINGS AND LOAN ASSOCIATION, a corporation, Respondent, v. Jack H. BUSCH et al., Defendants, and Alice L. Frisone, Appellant, Collection Unlimited, Inc., a corporation, et al., Defendants.

No. 43069.

Supreme Court of Washington, En Banc.

July 3, 1974.

David A. Leen, Seattle, for appellant.

Adair, Kasperson, Petersen & Hennessey, Kenneth D. Beckley, Seattle, for respondent.

STAFFORD, Associate Justice.

Alice Frisone appeals from a superior court order granting a writ of assistance to respondent Security Savings and Loan Association.

The facts found by the trial court are as follows: On March 9, 1965, Leo Frisone, husband of appellant, executed a homestead declaration for the residence at 439 McGilvra Blvd. East, Seattle. On July 6, 1965, Leo and Alice Frisone executed a quitclaim deed conveying their interest in the property to Mr. and Mrs. Busch. On July 8, the Busches executed a promissory note and mortgage on the property in favor of respondent Security Savings and Loan Association. On July 9, the Frisones entered into a real estate contract to purchase, from the Busches, the same property the Frisones had originally quitclaimed to them on July 6. The contract did not indicate, however, that the Frisones were to assume the Busches' mortgage nor did it provide that the contract was subject to the mortgage.

In the spring of 1971, most likely during the month of March, Mr. Frisone discontinued residing in the house and moved to the San Diego area to pursue his business. Mrs. Frisone and the two children continued to reside at the McGilvra Blvd. address, however.

A few days prior to May 8, 1971, Mr. Frisone's Seattle lawyer prepared a second declaration of homestead for Mr. Frisone's signature. It was forwarded to his address in San Diego, California. On May 8, 1971, in conjunction with a petition for bankruptcy, Mr. Frisone executed the homestead declaration in San Bernardino County, California.

The Busches subsequently defaulted on their mortgage and on November 1, 1972, a decree of foreclosure was entered. The decree, Which was approved by appellant's attorney, provided that a purchaser of the property at a sheriff's sale would be entitled to immediate possession of the property, subject to a right of possession, if any, in favor of appellant which might subsequently be judicially determined to enanate from the homestead declaration executed by Mr. Frisone on May 8, 1971. ¹ It is important to note that the trial court, With approval of appellant's lawyer, temporarily reserved the potential 'right of possession' issue between appellant and respondent, and did so in the Same cause out of which the decree of foreclosure emanated. ² It was clear then, as it is now, that the question of 'right to possession' would most likely arise, if ever, when the purchaser sought to exercise its own right to immediate possession. Temporary reservation of the potential problem would permit a resolution of the 'possession' issue in the Same action, and prevent a multiplicity of suits, should it arise. Yet, it would avoid unnecessary litigation if the issue was not raised.

Respondent purchased the property at the sheriff's sale January 5, 1973, and the question of appellant's right to possession, previously reserved, became an issue when respondent sought a writ of assistance. The court, after hearing testimony, made findings of fact and concluded that appellant had no right to possession under the homestead declarations executed by her husband. An order was issued granting a writ of assistance to respondent, all in the Same action.

Appellant contends the trial court lacked jurisdiction to issue the writ of assistance. She argues the 'right to possession' Must be determined in a Separate action prior to issuance of the writ. We do not agree. When, by approval of counsel, the issue of possession has been specifically reserved for determination in an action, it would be illogical to require the parties to maintain multiple suits to resolve issues capable of determination in one action.

Clearly, the superior court had jurisdiction, after a foreclosure and sale, to issue a writ of assistance to put the purchaser in possession of the property. Debenture Corp. v. Warren, 9 Wash. 312, 37 P. 451 (1894); Hagerman v. Heltzel, 21 Wash. 444, 58 P. 580 (1899). Although the validity of the Frisone homestead exemption Could have been decided in an independent action brought for that purpose, an independent action was Not required. See Costanzo v. Harris, 71 Wash.2d 254, 427 P.2d 963 (1967). We hold, therefore, that the superior court had jurisdiction to consider respondent's request for a writ of assistance, and in so doing to determine whether respondent had a clear right to possession. State ex rel. O'Brien v. Superior Court, 173 Wash. 679, 682--685, 24 P.2d 117 (1933); State ex rel. White v. Douglas, 6 Wash.2d 356, 107 P.2d 593 (1940).

Next, appellant asserts the trial court erred by finding that the homestead declaration executed March 9, 1965, had been extinguished by the quitclaim deed given the Busches on July 6, 1965. She argues that it is unnecessary for one claiming a homestead to have legal title to the residence, citing Downey v. Wilber, 117 Wash. 660, 202 P. 256 (1921) and Desmond v. Shotwell, 142 Wash. 187, 252 P. 692 (1927). While the language in Downey and Desmond is broad, it does not support appellant's contention. First, in each case the homestead declarant actually possessed a legal interest in the questioned property which the court held to be sufficient. Thus, the suggestion at page 188 of 142 Wash., at page 692 of 252 P. of Desmond that it is unnecessary for one asserting the right to 'own either a legal or an equitable interest in the property claimed' is pure dicta. Second, Downey and Desmond are not in point. In both cases the declarants possessed a prior legal interest in the property upon which they later sought to impose a declaration of homestead. The question was whether a homestead declaration could be claimed upon the type of legal interest there involved. In the instant case the question is whether, having declared a valid homestead on property in which one has a legal interest, one can extinguish it by conveying away all of his right, title and interest in and to the property. The latter issue has not been decided by this court before.

While the original declaration of homestead apparently was valid when executed, it cannot be said to have survived the later execution and delivery of the quitclaim deed by the Frisones in July of the same year. This is so even though at a later date, they reacquired the same property from the Busches by real estate contract. It matters not whether the Frisones' interest in the property was extinguished for a day or for a period of years. It is of consequence only that subsequent to making the declaration of homestead they voluntarily parted with All interest in the McGilvra Blvd. property by means of a quitclaim deed.

The reason for this conclusion is obvious. Ordinarily, there can be no homestead right unless there is an existing interest of some nature and none existed here. A quitclaim deed is deemed a good and sufficient conveyance of all Then existing legal and equitable rights of the grantor in the described premises. RCW 64.04.050; McCoy v. Lowrie, 44 Wash.2d 483, 268 P.2d 1003 (1954). Since the Frisones conveyed all of their then existing legal and equitable rights in and to the McGilvra Blvd. property, there was nothing left to which their homestead could continue to attach. Thus, it was extinguished. ³

Appellant's next claim to a right of possession, during the redemption period, stems from a homestead declaration filed by her husband on May 8, 1971. The statute under which the declaration was filed by Mr. Frisone provides in part:

6.12.060. Contents of Declaration. The declaration of homestead Must contain--

* * *

* * * (2) A statement that The person making it is residing on the premises . . .

(Italics ours.) Appellant assigns error to the trial court's finding of fact that Mr. Frisone was not 'residing on the premises' when the May 8th declaration was executed. She also claims error in the resultant conclusion of law that the homestead was not selected in the manner provided by law thus denying to her the right of possession during the period of redemption. The assignments of error are not well taken.

We have reviewed the record and find ample evidence to support the trial court's finding that Mr. Frisone, the declarant, was not 'residing on the premises' at the time he executed the homestead declaration. There is evidence that he went to California early in 1971. There was no correspondence between the Frisones after his departure, although he did occasionally telephone and talk with his children. A few days prior to May 8, 1971, Mr....