U.S. Fidelity & Guar. Co. v. Alloway, 24315.

• Decision Date: 29 June 1933
• Docket Number: 24315.
• Citation: 23 P.2d 408,173 Wash. 404
• Court: Washington Supreme Court
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. ALLOWAY et al.

23 P.2d 408

173 Wash. 404

UNITED STATES FIDELITY & GUARANTY CO. v. ALLOWAY et al.

No. 24315.

Supreme Court of Washington

June 29, 1933

Department 2.

Appeal from Superior Court, King County; John M. Ralston, Judge.

Action by the United States Fidelity & Guaranty Company against Guy Alloway and others. From an adverse judgment, plaintiff appeals.

Reversed with instruction.

Revelle Revelle & Kells, of Seattle, for appellant.

Fred H Dore, of Seattle, for respondents.

STEINERT Justice.

Plaintiff brought this action to quiet title to certain real estate. The defendant, May Alloway, made claim to the property on two grounds: (1) That the property was a homestead and, therefore, not subject to sale under execution; (2) that it was her separate property and, therefore, not subject to execution upon a judgment for a community debt. The court made findings of fact and conclusions of law adverse to plaintiff, and thereupon entered its decree dismissing the complaint and quieting title to the land in the defendant May Alloway as her sole and separate property. The plaintiff has appealed.

The material facts are not in dispute. On February 2, 1929, R. W. Jacobson & Co. recovered judgment against respondent Guy Alloway on a community debt which arose in July, 1928. Appellant became the assignee of the judgment, and on July 15, 1930, caused execution to be issued thereon. Pursuant thereto the land here in question was sold at sheriff's sale and appellant became the purchaser thereof on August 23, 1930. After the period of redemption had expired, this action to quiet title was instituted by appellant.

According to the evidence it appears that on February 18, 1926, while the land was still community property, Mrs. Alloway filed a declaration of homestead thereon. Subsequently, on January 3, 1929, the husband deeded his interest in the land to his wife. On February 18, 1930, after the entry of the above judgment, Mrs. Alloway executed a mortgage on the land for $2,000 in favor of respondent Jones, who was her brother.

The principal question presented upon this appeal is whether the declaration of homestead is valid. The declaration was signed and acknowledged on February 18, 1926, but no notarial seal was then affixed to the acknowledgment. In this condition the instrument was filed for record on the next day. Thereafter, on October 28, 1930, after the judgment held by appellant had been obtained, and after sale of the land under execution, a notarial seal was affixed to the declaration and the instrument again recorded. The seal, however, evidenced a commission for a term beginning January 7, 1927, which was subsequent to the date of the acknowledgment.

The statute requires that a declaration of homestead be acknowledged in the same manner as a grant of real property and then recorded. Rem. Rev. Stat. §§ 558 and 560. It is, of course, true that a deed is valid as between the parties to the instrument without acknowledgment. Though unacknowledged it operates, nevertheless, as a contract for a deed and conveys equitable title. Edson v. Knox, 8 Wash. 642, 36 P. 698; In re Deaver's Estate, 151 Wash. 454, 276 P. 296. Not so with a declaration of homestead. It is neither a conveyance nor a contract. There is no transfer of, or change in, title, nor any agreement of transfer or change. It is merely an act of the owner whereby he avails himself of, and secures, a right or privilege given him by the statute. The privilege thus sought and obtained is wholly a creature of, and its validity depends upon, a compliance with the statute that permits the homestead to come into existence. Hookway v. Thompson, 56 Wash. 57, 105 P. 153; Covert v. Burger, 76 Wash. 454, 136 P. 675; Washburn v. Wilen, 96 Wash. 480, ...