Wiss v. Stewart

• Citation: 16 Wash. 376,47 P. 736
• Parties: WISS v. STEWART ET AL.
• Decision Date: 29 January 1897
• Court: United States State Supreme Court of Washington

47 P. 736

16 Wash. 376

WISS v. STEWART ET AL.

Supreme Court of Washington

January 29, 1897

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by Edith Wiss against W. A. Stewart and Samuel Parker sheriff, to enjoin the sale of land on execution, and to remove a cloud on plaintiff's title caused by the judgment against her in favor of defendant Stewart. From a judgment discharging a temporary restraining order and dismissing the case, plaintiff appeals. Reversed.

Govnor Teats, for appellant.

B. F Jacobs, for respondents.

DUNBAR J.

The appellant, Edith Wiss, before her marriage became the owner of the land in controversy, which is a lot in the town of Puyallup. The property is improved as a residence, and it is uncontradicted that the appellant and her husband have continuously occupied it as their homestead for the three years prior to the trial of the cause, and were at the time of such trial occupying it as such. The value of the place is conceded to be $700. The respondent W. A. Stewart on September 30, 1895, filed with the auditor of Pierce county a judgment which he had obtained against Frank Wiss and Edith Wiss, his wife, for the sum of $80.32, and on March 9th caused an execution to be issued on said judgment, and levied on the homestead of appellant, above mentioned, as her property, to sell the same, and the respondent Parker, sheriff of Pierce county, advertised the same for sale on April 20, 1896. On April 11, 1896, the appellant caused to be filed her declaration of homestead and here we will say that the declaration seems to us to substantially comply with the provisions of the laws in relation to such declarations, although it is contended by the respondent Stewart that it does not. This action was commenced by the appellant to restrain the respondent sheriff from selling the property, and to remove the cloud caused by respondent Stewart's judgment lien from appellant's title. A temporary restraining order was issued, but on the trial of the cause the court rendered judgment discharging the restraining order, dismissing the cause, and for costs against the plaintiff. We think the court erred in rendering the judgment aforesaid. While it appears that the appellant had given what, on its face, purported to be a warranty deed to the land in question, on January 9, 1896, to one Davies the testimony conclusively shows, and in fact there is no testimony...