26 Wash. 536 | Wash. | 1901
The opinion of the court was delivered by
Suit to quiet title. In October, 1890, respondents, who were the owners of a tract of land in
The only questions for consideration arise upon the ruling sustaining the demurrers to the affirmative defenses in the answer. The contention made, by appellant that the objection to the confirmation of sale by the respondents and subsequent confirmation by the court was an adjudication of the homestead claim, or estops respondents from 'now urging such claim, seems to be fully met and "determined against such contention in the case of Krutz v. Batts, 18 Wash. 460 (51 Pac. 1054), where it was observed : “ . . . the only question which the court has a right to investigate is a question of irregularity in the proceedings concerning the sale.” The rights concerning
2. Ho error is perceived in sustaining tbe demurrer to tbe defense setting.up an equitable lien on tbe homestead premises. Tbe procuring of tbe judgment upon which tbe sale was made, and tbe issuing thereupon of tbe sheriff’s certificate, which appellant now bolds, constituted an attempt at law to realize tbe deficiency upon tbe original judgment; and, without further discussing tbe sufficiency of tbe facts stated to imply a lien, it may be observed that tbe issuance of tbe execution upon tbe deficiency judgment falls within tbe rule announced in Hanly v. Kelly, 62 Cal. 155, where the court said of a similar case:
“Under such circumstances, plaintiff must be held to have elected bis remedy at law, and to be estopped from pursuing in equity tbe fund into tbe homestead.”
Tbe judgment is affirmed.
Fullebton, Andebs, Mount, and Dunbab, JJ., concur.