JOHN S. BARRETT v. J. V. SIMS et al., 59 Cal. 615

Myrick, J.: The allegations of the complaint are, in substance, that on the fourteenth of January, 1879, the defendant, J. Y. Sims, executed a mortgage to the defendant Clarke, to secure the payment of eight thousand dollars, and that the mortgaged premises consist of a tract of land known as Swamp Land Survey 836; that on the sixth of May, 1880, the defendant J. Y.

Sims executed to the defendant Beckman a deed of said premises, except a strip twenty-five rods wide on the west side thereof, and on the same day filed a declaration of homestead on the said twenty-five-rod strip; that said deed to Beckman, purporting to be made in consideration of eight thousand four hundred dollars, was in fact without consideration received or paid, and that the object and intent of making the conveyance and filing the declaration was to hinder, delay, and defraud the creditors of said defendant J. Y.

Sims, and particularly plaintiff, and to cover up his property feo that it could not be reached; that on the twelfth of July, 1880, the defendant Sims being indebted to plaintiff on two promissory notes, in the sum of four thousand one hundred and ninety-eight dollars and fifty-nine cents, plaintiff commenced an action on said notes against said Sims in the Superior Court of the City and County of San Francisco, and sued out a writ of attachment, which was levied upon the right, title, and interest of defendant Sims, in said tract of land; that such proceedings were had that on the eighteenth of September, 1880, judgment was rendered in said action in favor of plaintiff and against said defendant Sims for four thousand three hundred and thirty-seven dollars, and a transcript thereof filed in the proper office in Sacramento County (where the land is situated), September 22,1880.

Plaintiff assorted that he had a lien on said land by reason of the attachment and judgment, and had a right to have a sale thereof, but was obstructed by the conveyance to Beckman, and by the fact that he did not know the amount due on the mortgage nor what part should be paid out of the homestead and what part out of the land conveyed to Beckman.

Plaintiff prayed that all the lands be declared subject to sale under Iris judgment, and that the Court cause the same to be sold; that the conveyance to Beckman be set aside; and that the amount of the claim of Clarke be determined, and 'that Clarke, in seeking satisfaction for his claim, be required to first exhaust the homestead property. The defendants, Beckman, J. V. Sims, and Mrs. J. V.

Sims (his wife), demurred separately, on the grounds, that the complaint did .not state facts sufficient to constitute a cause of action, that several causes were improperly joined, specifying, and that there was a misjoinder of parties defendant, also specifying. The demurrers were overruled and the said parties answered.

The cause was submitted on the pleadings, and thereupon the Court found and decreed that the plaintiff had a judgment and attachment lien on the west twenty-five rods, but that such lien was subject to the right of defendant Sims and wife to have a homestead of five thousand dollars in value or to have five thousand dollars out of the proceeds of a sale of the homestead; that the mortgage to Clarke exists, as stated in the complaint; that the conveyance to Beckman was in consideration that Beckman agreed to pay off and discharge all of said mortgage, and is liable for such payment when the mortgage falls due; that the plaintiff is entitled to proceed against the west twenty-five rods for the payment of the judgment and attachment lien, subject to the homestead interest, and is entitled to have the mortgage paid out of the lands conveyed to Beckman, if the same shall prove sufficient; and the Court decreed that the lands conveyed to Beckman be first applied to the satisfaction of the mortgage, and that the mortgagee, in proceeding to procure satisfaction of his mortgage, first sell the lands conveyed to Beckman before selling the other part, and if the lands so conveyed to Beckman be sufficient, that no other part be sold.

From the view we take of the case, we may omit the consideration of thej>oints raised on demurrer, and consider the case as presented by the pleadings and decree. The allegations of the complaint as to want of consideration for the deed to Beckman, and as to fraud relating thereto, were denied in the answers; therefore, there being no evidence, those allegations are to be taken as not sustained. The new matter set up in the answers is to be taken as denied; therefore, such new matter is not foundation for anything in the decree.

The case, then, remains with the deed to Beckman, executed upon a proper consideration, before any attempt by plaintiff to obtain a lien; and that removes the lands conveyed to Beckman from consideration in this case, and leaves the plaintiff without any ground for equitable relief. As to the premises covered by the declaration of homestead, the statutes of this State are direct and specific, and point out the measure and mode of relief. “ The homestead is exempt from execution or forced sale, except as in this title provided.” (C. C., § 1240.) The

section above quoted says, “ except as in this title provided;” in no other way, therefore, except as in that title provided, can property which has been declared as a homestead, no matter what may be its actual value, be subject to execution or forced sale. The next question then, is, what is provided in the title referred to ?

Section 1245 of the Civil Code answers the question: “ When an execution for the enforcement of a judgment, obtained in a case not within the classes enumerated in

Section 1241, is levied upon the homestead, the judgment creditor may apply to the Superior Court of the county in which the homestead is situated, for the appointment of persons to appraise the value thereof;” and the sections following indicate the manner of applying, and how relief may be obtained. The case at bar is not within those sections. There is but one method of ascertaining whether the property claimed as a hometead is of a value exceeding five thousand dollars, and whether there be any surplus for creditors; and that method is clearly pointed out in the sections above referred to.

Until such ascertainment, the property covered by the declaration is exempt from execution or forced sale. There is no lien of the judgment until the levy of an execution; and that levy creates no lien except for the purpose of, and as a foundation for, instituting and carrying on proceedings to have an appraisement and sale under the statute. Therefore, a creditor,believing the property declared as a homestead to be of greater value than five thousand dollars, should have his execution levied upon the property, as a foundation, and then proceed as indicated in Sections 1245, etc., supra.

Admitting, which we do not, that an attachement may be levied upon property which has been declared a homestead, no sale can be had except in the manner provided by the statutes above referred to. The views above expressed are in harmony with the opinions given by this Court in Gary v. Eastabrook, 6 Cal. 457; Ackley v. Chamberlain, 16 Cal. 181; McCracken v. Harris, 54 Cal. 81.

Inasmuch as the conveyance to Beckman is a valid conveyance, and plaintiff has an ample remedy at law to enforce his judgment against the excess, if any, in value of the homestead beyond five thousand dollars (subject to the rights of the mortgagee), he has no standing in a Court of equity, and his bill should be dismissed. The judgment is reversed and the cause is remanded, with instruction to render judgment for the defendants; such judgment, however, not to estop the plaintiff from instituting such proceedings under the sections of the Civil Code above referred to as he may be advised.

In case of a valuation of more than five thousand dollars, and a sale of the surplus, possibly the purchaser may be entitled to have the property conveyed to Beckman, bear the burden of the mortgage, so far as it will; but that question is not for consideration here. McKinstry and Boss, JJ., concurred.