ELLEN M. LUBBOCK, Respondent, v. WILLIAM McMANN et al., Appellants, 82 Cal. 226

Fox, J. Judgment was rendered in this case in Department One of this court September 9, 1889, affirming the orders appealed from. Reference is made to the opinion filed at that time for a statement of the case, and for the rulings then made upon the points considered, which rulings are still adhered to.

The parties have since, by stipulation, waived all controversy upon the points then discussed, but an orderly and intelligible disposition of the case requires that rulings should be had upon those points, and after a careful reconsideration of the case in Bank, we see no reason to change the decision then made, so far as it goes.

Upon the express stipulation, and at the request of counsel on both sides, the case was resubmitted in Bank, for the purpose of having a direct opinion of the court upon the single question of whether or not the second house mentioned in the former opinion—the house built on the rear of the lot since the filing of the homestead declaration — was and is exempt from execution; whether it was and is impressed with the character of homestead to the extent of being exempt from execution on that account.

And to avoid future litigation between the parties, it is stipulated that the orders of the court below, from which the appeal was taken, shall be affirmed or reversed, according as we shall now decide this question in the affirmative or negative. There can be and is no question but that this entire lot was fully impressed with the character of homestead before and at the time this second house was built upon it.

The building of the second house did not increase the value of the entire property, including both houses, to an amount which is in excess of that which is by law, and as incident to homestead, made exempt from execution as such. No part of the tract has ever been abandoned, or the homestead claim thereon released, in the manner provided by law. How then, if at all, is it made subject to sale on execution? The strict language of the question submitted confines it to the house: is the house exempt?

It certainly is if the land upon which it stands is"exempt; for it has become a part of the realty, and can only be separated from the land with the consent of thfi owner. But we do not understand the intent to be to limit the ^question to the house alone, as distinguished from the land upon which it stands. The constitutional provision is, that “the legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families.” (Art. 17, sec. 1.) Here there is no limit to the value of the property thus to be protected.

It is left to the legislature to determine what portion, to what limit, and by what means it shall be protected. Exemption is a constitutional right, incident to homestead (Ham v. Santa Rosa Bank, 62 Cal. 138; 45 Am. Rep. 654), but the extent of such exemption, and the means by which it shall be secured, are made by the constitution the subject of legislative enactment.

Legislating for the purpose of giving effect to this constitutional provision, it has been in the codes provided that “the homestead consists of the dwelling-house in which the claimant resides and the land on which •the same is situated, selected as in this title provided.” (Civ. Code, sec. 1237.) Following this, and in the same title, which extends to and including

section 1269, will he found the provisions as to the mode and manner of ■selection in order to avail of the exemption; the limitation of such exemption; the mode and manner of abandonment or release; the exceptions to the rule of ■exemption; and the course to he pursued when the homestead exceeds in value the limit of the exemption. Actual occupation as a place of residence at the time uf filing the declaration is necessary in order to impress upon the premises the character of homestead. (Civ. Code, sec. 1263; Prescott v. Prescott, 45 Cal. 58; Babcock v. Gibbs, 52 Cal. 629; Dorn v. Howe, 52 Cal. 630; Aucker v.

McCoy, 56 Cal. 524.) Use at the time of selection, and selection by the making and recording of the proper declaration, are both essential elements in the creation of the homestead character. Neither is sufficient for that purpose without the other. (Laughlin v. Wright, 63 Cal. 113; Maloney v.

Hefer, 75 Cal. 424; In re Allen, 78 Cal. 294.) If, at the time of filing the declaration for record, the two houses now standing upon this lot had been standing as they now do, and occupied as they now are, only the one occupied as the dwelling of the plaintiff, with that portion of the lot used in connection therewith, would have been impressed with the homestead character; as to the other house and the land used in connection with it, the attempt to dedicate it as a homestead would have been inoperative. (Tiernan v. His Creditors, 62 Cal. 286; Maloney v.

Hefer, 75 Cal. 424; In re Allen, 78 Cal. 294.) But it has never been held, under our statute, that the subsequent erection of a second house, for whatever purpose such second house was used, operated to relieve the property pro tanto, or any separate part of it, of the homestead character which had already attached, so as to make it liable to seizure and sale under execution. On the contrary, the statute expressly provides that the homestead can only be conveyed or encumbered as provided in

section 1242, and only be abandoned as provided in

section 1243 of the Civil Code. Also, that it is subject to execution only in the cases provided in

section 1241, of which this is not one. Even a removal from the homestead, followed by long-continued residence and the acquirement of citizenship in another state, has been held not to operate as an abandonment of a homestead. (Porter v. Chapman, 65 Cal. 367. See also Tipton v. Martin, 71 Cal. 325.) The whole lot being adapted to use as a homestead, and actually used as such at the time of dedication, it then became as an entirety affected with the homestead character. And this is so, without regard to the value of the lot, either at the time of its dedication or at any subsequent period.

There is no statutory limit as to the value of the property which may be selected and upon which the character may be impressed. When the attributes of residence and selection according to law exist so as to express its essence, the homestead becomes an estate in the premises selected, exempted by law from forced sale. They may be of greater or less value than the interest in them exempted by law. The excess, if there be one, in value, though it may be homestead in fact, is subject to the jus disponendi of the owner and the claims of his creditors. (Ham v.

Santa Rosa Bank, 62 Cal. 139.) But it does not follow that the excess in value is subject to seizure and sale at the instance of an execution creditor. If the property so impressed with the character of homestead is worth more than the homestead exemption, and the creditor desires to avail himself of that excess, the proceedings provided by the code (Civ. Code, secs. 1245-1259) must be taken for the admeasurement and application of such excess. (Waggle v.

Worthy, 74 Cal. 268.) A judgment creates no lien upon property thus affected, and a levy gives no right, except to inaugurate the proceedings for the admeasurement of such excess. (Barrett v. Simms, 62 Cal. 440.) It follows that a sale, unless made under order of court, and for purposes of segregation of the excess as provided in the sections referred to, would convey no title. But though the sale of a homestead under execution conveys no title, it may create a cloud and involve the homestead claimant in litigation, and will therefore be enjoined. (Culver v. Rogers, 28 Cal. 520, Eby v.

Foster, 61 Cal. 287.) So far as we have been able to discover, no case has before arisen under our statutes where the precise question now submitted has been presented. In every case where it has been held that a second tenement used for purposes other than the residence of the family has operated to prevent the homestead character from attaching to such second tenement and the land used in connection therewith, such second tenement existed at the time of the attempted homestead selection, and was not one constructed after the homestead character had attached to the land.

Here the homestead character had attached before the second building was constructed, and reasoning from the analogy of the statutes and of the cases cited, the construction of such building was not

an act which relieved it of such homestead character, and rendered the land subject to direct seizure and sale under execution.

If the construction of this second building had increased the value of the tract claimed as a homestead to an amount in excess of the homestead exemption, or if for any other cause it had become or was of greater value than the amount of such exemption, the plaintiff would have been entitled to make the levy, as he has done in this case, not for the purpose of proceeding to sale under the execution, but as a basis of application to the proper court for proceedings under the statute for the admeasurement of such excess in value, and then for partition or sale, under the order of the court, as in the statute provided.

But no provision for such a proceeding has been made, unless there is such an excess in value.

And while it is true that, under the rule of law heretofore established, this second house, with the land upon which it stands, would not have taken on the homestead character if it had been there at the time of homestead selection, but that the homestead would then, by reason thereof, have been so limited in extent as to exclude this house and its grounds, it may very well be that the legislature did not intend that the homestead should thereafter be limited in extent by reason of future improvements, even if such improvements were used for purposes of revenue rather than residence, so long as they did not increase the value beyond the limit of exemption.

Whether this be so or not, we are compelled to hold that, under the facts of this case, the statutes, and the authorities cited, this whole lot is so affected ■with the homestead character as to be exempt from sale under execution, and there is no authority in this proceeding, or in the case in which the execution was issued, to segregate any part of the lot and relieve it from such exemption. Whether there is such authority anywhere, we are not now called upon to decide; but without further legislative action, it would seem to be exceedingly doubtful.

The judgment and order appealed from must be affirmed, and it is so ordered. Works, J., Sharpstein, J., Thornton, J., McFarland, J., and Beatty, O. J., concurred.