Strangman v. Duke

• Decision Date: 23 March 1956
• Citation: 295 P.2d 12,140 Cal.App.2d 185
• Parties: Walter J. STRANGMAN, Petitioer, Judgment-Creditor and Appellant, v. George L. DUKE, Defendant, Judgment-Debtor and Respondent. In the Matter of the Application for the Appointment of Appraisers to Appraise Homesteaded Property. Civ. 21442.
• Court: California Court of Appeals Court of Appeals

Page 12

295 P.2d 12

140 Cal.App.2d 185

Walter J. STRANGMAN, Petitioer, Judgment-Creditor and Appellant, v. George L. DUKE, Defendant, Judgment-Debtor and Respondent In the Matter of the Application for the Appointment of Appraisers to Appraise Homesteaded Property.

Civ. 21442.

District Court of Appeal, Second District, Division 2, California.

March 23, 1956.

Hearing Denied May 15, 1956.

Snyder, Fletcher & O'Neil, South Pasadena, for appellant.

George L. Duke and Joseph Doyle, Beverly Hills, for respondent.

ASHBURN, Justice.

Walter J. Strangman, judgment creditor, appeals from an order directing respondent's homestead to be sold. On December 2, 1952, Strangman recovered judgment against George L. Duke for $10,000, plus interest and costs; it was based upon an obligation created in February 1947, at which time the homestead exemption was $6,000. The judgment did not run against the wife, Esther H. Duke. The spouses owned a certain duplex property in undivided interests; one-half was vested in the wife as her separate property and one-half was held as joint tenancy estate of the two spouses. At least, that was the state of the record title.

On September 15, 1952, said George L. Duke declared a homestead on the property, asserting therein 'That, it is my intention to use and claim my undivided interest in the said lot of land and premises above described, together with the dwelling houses thereon, and its appurtenances, as a homestead.' The wife did not join in the declaration. Strangman, after levy of execution, brought a proceeding pursuant to § 1245 et seq., Civil Code, for appointment of appraisers, sale of the property and payment of his debt out of the proceeds in excess of the statutory exemption. The court, after certain preliminary proceedings, found the value of the property to be $19,500 subject to a tax lien of $169.85; also that the land could not be divided without material injury; ordered a sheriff's sale of an undivided one-fourth interest in the premises at a price which must exceed $6,000 ¹ plus tax liens; distribution of the proceeds of sale was ordered as follows: (1) Payment of tax lien of $169.85; (2) payment of $6,000 to judgment debtor, George L. Duke; (3) satisfaction of Strangman's execution; and (4) balance, if any, to homestead claimant.

The arguments presented on appeal revolve around the limited nature of George L. Duke's title and the terms of his declaration.

The homesteading of property owned in undivided interests, such as joint tenancy or tenancy in common, has been a perplexing subject in this jurisdiction until recent years. Section 1238, Civil Code, now declares: 'If the claimant be married, the homestead may be selected from the community property or the separate property of the husband or, subject to the provisions of section 1239, from the property held by the spouses as tenants in common or in joint tenancy or from the separate property of the wife. * * * Property, within the meaning of this title, includes any freehold title, interest, or estate which vests in the claimant the immediate right of possession, even though such a right of possession is not exclusive.' The Supreme Court decided in Estate of Kachigian, 20 Cal.2d 787, 790, 128 P.2d 865, 867, that 'the former rule prohibiting the selection of a homestead from an undivided interest in property during the lifetime of the owner has been abandoned.' In this respect Estate of Davidson, 159, Cal. 98, 115 P. 49, which held that one or both of the spouses could not impress a homestead upon the undivided half interest of a husband owned as tenant in common with his wife, was ceased to represent the prevailing rule.

Respondent's assertion in his declaration that he claims as a homestead his undivided interest is in consonance with the rule now prevailing, and cases decided before the change in the law are not controlling. Husband or wife may now declare a homestead on joint tenancy property without the consent of the other spouse. Watson v. Peyton, 10 Cal.2d 156, 159, 73 P.2d 906. When it comes to selling the property in a special proceeding against the husband, pursuant to § 1245 et seq. Civ.Code, that sale effects a severance of the spouses' interests and only the husband's interest can pass to the purchaser; the wife becomes a tenant in common with the new owner. In re Rauer's Collection Co., 87 Cal.App.2d 248, 259, 196 P.2d 803. If dissatisfied therewith she may have a partition thereupon the husband's homestead having been terminated, the wife may establish a new one if requisite facts such as residence, etc., be present. 40 C.J.S., Homesteads, § 13, p. 441; Spencer v. Geissman, 37 Cal. 96. In other words, the execution reaches and the sale conveys only the declaring husband's half of the joint tenancy interest, cf. In re Rauer's Collection Co., supra, 87 Cal.App.2d 248, 256, 196 P.2d 803; Estate of Kachigian, supra, 20 Cal.2d 787, 792, 128 P.2d 865.

In the instant case the entire property was appraised at $19,500 and the sale limited to a one-fourth interest conditioned upon receiving a bid of more than $6,000 for said interest. Appellant asserts that respondent was not entitled to the entire exemption because his interest was only one-fourth or a half of the entire property. There is no provision in our statute for apportionment of the exemption in any situation. See In re Miller, D.C.S.Cal., 27 F.Supp. 999, 1001; In re Rauer's Collection Co., supra, 87 Cal.App.2d at page 261, 196 P.2d 803. And its theory is opposed to such treatment. The right to declare a homestead does not depend upon the nature of the declarant's title, so long as he has some interest in the property which is a freehold vesting in him immediate right to possession, whether joint or exclusive. (25 Cal.Jur.2d § 25, p. 321.) And one who is entitled to make such a declaration is declared to be entitled to an exemption from enforcement of debts to a specified extent--in this case $6,000. Since the statute says that one owning an undivided freehold estate may declare a homestead, and that every homesteader is entitled to a specific exemption, Civ.Code, § 1240, the creditor has no complaint. The statute is aimed at a limited protection against his claim. While it is of no interest to the creditor whether allowance of a $6,000 exemption to the husband in the case at bar would be prejudicial to the rights of the wife, it is pertinent to inquire into this matter as a test of the soundness of the conclusion above indicated.

Husband and wife cannot have two homesteads, not even upon different properties, Gambette v. Brock, 41 Cal. 78, 84; Bullis v. Staniford, 178 Cal. 40, 44, 171 P. 1064, and of course cannot have two homesteads upon different interests in the same property. The wife could not in the present instance declare a homestead because § 1263, Civil Code, provides: 'The declaration of homestead must contain: 1. A statement showing that the person making it is the head of a family, and if the claimant is married, the name of the spouse; or, when the declaration is made by the wife, showing that her husband has not made such declaration and that she therefore makes the declaration for their joint benefit'. (Emphasis added.) Without the statement that the husband has not made a declaration one attempted by the wife is void. Booth v. Galt, 58 Cal. 254; Cunha v. Hughes, 122 Cal. 111, 54 P. 535; Hansen v. Union Sav. Bank, 148 Cal. 157, 82 P. 768; Schuler-Knox Co. v. Smith, 62 Cal.App.2d 86, 144 P.2d 47; Crenshaw v. Smith, 74 Cal.App.2d 255, 168 P.2d 752; Santa Barbara Lbr. Co. v. Ross, 183 Cal. 657, 659, 192 P. 436.

It is doubtless true, as appellant now argues, that the husband's declaration inures also to the wife's benefit and protects her interest in joint tenancy property against her own creditors. Michels v. Burkhard, 47 Cal.App. 162, 165, 190 P. 370; Yager v. Yager, 7 Cal.2d 213, 219, 60 P.2d 422, 106 A.L.R. 664; Johnson v. Brauner, 131 Cal.App.2d 713, 722, 281 P.2d 50; Keyes v. Cyrus, 100 Cal. 322, 34 P. 722. The exemption 'extends to the entire interest of both in the property. It has been specifically so held with respect to joint tenancies. This in the cases of Swan v. Walden, 156 Cal. 195, 200 [103 P. 931, 134 Am.St.Rep. 118 ,20 Ann.Cas. 194]; Watson v. Peyton, 10 Cal.2d 156, 159-160 ; In re Miller, D.C.S.D.Cal., 27 F.Supp. 999.' Johnson v. Brauner, supra, 131 Cal.App.2d 713, 722, 281 P.2d 50, 56. The result of this is that if the husband's creditors first pursue the statutory method of enforcing an execution he gets the benefit of the exemption, or if the wife's creditors move first she gets it; once the property is sold the homestead is gone and the question of apportionment of the exemption has exhausted its practical importance. Until such a sale is had it is for the benefit of both spouses that the one who is the judgment debtor have the full exemption. 'The policy underlying all homestead legislation, whether providing for the selection of a homestead by a person during his lifetime or by the court for his family after his death, is as stated in Estate of Fath, 132 Cal. 609, 613, 64 P. 995, 997, 'to provide a place for the family and its surviving members, where they may reside and enjoy the comforts of a home, freed from any anxiety that it may be taken from them against their will, either by reason of their own necessity or improvidence, or from the importunity of their creditors,' and to this end a liberal construction of the law and facts will be adopted by the courts.' Estate of Kachigian, supra, 20 Cal.2d 787, 791, 128 P.2d 865, 867.

Appellant complains of the procedure pursued by the trial court, claiming that it was error to find upon the extent of respondent's interest in the premises and to limit the sale to an undivided one-fourth interest. In the present instance the declaration claims only an undivided interest without defining it and appellant argues in effect that that interest is a full half...