BARBARA A. LEE, Plaintiff and Respondent, v. EDWARD F. BROWN et al., Defendants and Appellants.
[S.F. No. 23416]
Supreme Court of California
Sept. 17, 1976.
18 Cal. 3d 110
Bruce I. Cornblum and Robert L. Mezzetti for Defendants and Appellants.
Mandich, Clark & Barker and Wesley L. Barker for Plaintiff and Respondent.
OPINION
RICHARDSON, J.—In this case we consider whether defendants in a foreclosure action have waived their right to appeal a trial court judgment ordering an execution sale of their homesteaded property by accepting the amount of their homestead exemption from the sales proceeds. We conclude that defendants have not waived their appeal right.
In 1967 defendants recorded a valid declaration of homestead on their real property in Lake County. Thereafter plaintiff, having recovered a judgment against defendants in the sum of $42,366.54, caused a writ of execution upon the judgment to be levied on the homesteaded property. Pursuant to
Defendants appealed but, because they were unable to post the appropriate undertaking pending appeal, they could not prevent the execution sale which occurred on January 27, 1975. At the sale plaintiff, the only bidder, purchased the property for $84,000. From the proceeds and pursuant to
Before it could be heard plaintiff moved for dismissal of the appeal on the ground that, having accepted its fruits, defendants were estopped from seeking appellate review of the judgment. We now consider this motion.
At stake are the concurrent preferred rights of appeal and of homestead. We stated in Slawinski v. Mocettini (1965) 63 Cal.2d 70, 72 [45 Cal.Rptr. 15, 403 P.2d 143]: “It is a well established policy that, since the right of appeal is remedial in character, our law favors hearings on the merits when such can be accomplished without doing violence to applicable rules. Accordingly in doubtful cases the right to appeal should be granted.” (See also
Similarly, the law favors homesteads. They are constitutionally authorized (
Plaintiff‘s motion has the support of a decision of this court, Turner v. Markham (1907) 152 Cal. 246 [92 P. 485]. (See also Pickens v. Coffey (1933) 136 Cal.App. 105 [27 P.2d 914].) In Turner we held that by accepting the proceeds of a homestead exemption, a judgment debtor
We now reexamine the Turner holding in light of the conjunction of appeal and homestead principles, and consider in particular certain recognized exceptions to the rule of appeal waiver as they bear on the homestead law. We will conclude that, while these principles and exceptions are not directly applicable to the present case, together they provide a compelling rationale for the rule that the acceptance of homestead benefits from the proceeds of an execution sale does not, standing alone, constitute a waiver of the right to appeal from a judgment ordering that sale. This rule assures a more equitable recognition of the legitimate interests of both creditor and debtor.
A waiver of the right to appeal a judgment is implied in a variety of situations. (See 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, §§ 133-146, pp. 4129-4142.) We consider two of them.
First, as a general proposition, one who accepts the benefits of a judgment cannot thereafter attack the judgment by appeal. In Estate of Shaver (1900) 131 Cal. 219, 221 [63 P. 340], we expressed the rule as follows: “The right to accept the fruits of a judgment, and the right of appeal therefrom are not concurrent. On the contrary, they are totally inconsistent. An election to take one of these courses is, therefor, a renunciation of the other.” In the words of Turner, acceptance by the appellant of the benefits of a judgment constitutes an “... affirmance of the validity of the judgment against him.” (Turner, supra, at p. 247.) This general rule has been applied in a number of contexts. (See, e.g., Schubert v. Reich (1950) 36 Cal.2d 298 [223 P.2d 242] [appellant accepted money pursuant to an order of the court that had explicitly conditioned the granting of plaintiff‘s motion for a new trial on the payment to defendant of that money, which order appellant then attempted to challenge]; Giometti v. Etienne (1936) 5 Cal.2d 411 [55 P.2d 216] [appellants paid the balance due on a contract of purchase, received a conveyance of property, encumbered that property, and filed a satisfaction of judgment]; Wilson v. Wilson (1958) 159 Cal.App.2d 330 [323 P.2d 1017] [appellant accepted the benefits of a divorce decree and then sought to appeal the portion of the decree imposing obligations
As is so often the case, however, application of the rule has generated a number of equitable exceptions. A waiver is not implied, for example, in those cases in which appellant is concededly entitled to the accepted benefits, and his right to them is unaffected by the outcome of the case on appeal. (Estate of Hubbell (1932) 216 Cal. 574, 577 [15 P.2d 503].) Stated another way, one may appeal from a portion of a severable and independent judgment while accepting the benefits of the unaffected remainder of the judgment. (Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal.2d 461, 468-469 [72 Cal.Rptr. 344, 446 P.2d 152]; Mathys v. Turner (1956) 46 Cal.2d 364, 365 [294 P.2d 947]; Gudelj v. Gudelj (1953) 41 Cal.2d 202, 214-215 [259 P.2d 656]; Estate of Hubbell, supra, 216 Cal. 574, 577; Preluzsky v. Pacific Co-operative C. Co. (1925) 195 Cal. 290, 293 [232 P. 970]; see also 6 Witkin, Cal. Procedure, supra, Appeal, §§ 138-139, pp. 4134-4136.)
While the parties agree that defendants are entitled at the least to the equivalent of the amount they accepted, that is, $15,000, the value of their homestead exemption, the foregoing severability exception to the general waiver rule is not directly applicable. The judgment is not truly severable for if defendants were to prevail on appeal, this sum would have to be returned to plaintiff in exchange for the homesteaded property. (See Mathys v. Turner, supra, 46 Cal.2d 364, 365; Schubert v. Reich, supra, 36 Cal.2d 298, 300; Preluzsky v. Pacific Co-operative C. Co., supra, 195 Cal. 290, 293; San Bernardino v. Riverside (1902) 135 Cal. 618, 621 [67 P. 1047].)
Second, a waiver will be implied where there is voluntary compliance with a judgment, as when the judgment debtor satisfies the judgment by making payment to the prevailing party under its terms. (See
The forfeiture exception to the general waiver rule has particular application to the present case because, as a practical matter, defendants may lose the right to the homestead exemption to which they are concededly entitled if they do not accept the exemption funds before exhausting their appeal rights. This possibility occurs because
By forcing an option upon him, application of the waiver rule under such circumstances may thus require a debtor to sacrifice his homestead rights in order to preserve his appeal rights. The possibility of this result invites the invocation of the forfeiture exception to the waiver rule.
In Turner v. Markham, supra, 152 Cal. 246, this precise issue was raised. There, the court recognized the debtor‘s homestead right, but held that the debtor, by accepting the homestead exemption benefits, had agreed to enjoy this right in the form of money rather than land. The Turner court, contrasting Estate of Shaver, supra, 131 Cal. 219, and In re Baby (1890) 87 Cal. 200 [25 P. 405], noted that in the two latter cases no estoppel was worked since the position of the adverse party, the creditor,
We note in passing that it is arguable that if the defendants here, rather than accepting, had chosen to return the homestead proceeds to the sheriff or to the court pending appeal and they had lost on appeal, their right to those funds may still have been protected. (See, Note, Homesteads: Exemptions: Proceeds of Voluntary Sale (1951) 39 Cal.L. Rev. 444, 446-447.) One appellate court has indicated that the six months period does not begin to run under
No valid purpose is served by forcing a debtor to choose between his right to appeal and his homestead rights where the creditor‘s interests may be fully protected. In the matter before us, irremediable injury to plaintiff may be avoided while preserving defendants’ appeal and homestead rights. Defendants themselves suggest that any order on appeal favorable to them be conditioned on the return to plaintiff of the amount of the exemption proceeds theretofore paid to them. This
The payment of these claims, of course, was of direct and immediate benefit to defendants. While they did not request plaintiff to make these payments, neither can it be said that plaintiff acted as a volunteer. She had a right in this case to execute her judgment against the property pending the appeal since defendants did not obtain a stay of execution by the posting of an undertaking pursuant to former
Normally the offer of a return of the benefits of a judgment which were accepted does not invalidate the waiver. (Schubert v. Reich, supra, 36 Cal.2d 298.) In a situation like the one before us, however, a careful balancing of important policy and statutory considerations, leads us to adopt a rule which preserves the remedies of homestead and appeal while minimizing the financial prejudice occasioned to plaintiff creditor.
We do not reach, here, the substantive issues which defendants raise on appeal, leaving to the Court of Appeal the appropriate resolution of them in the light of our conclusion that the right to appeal has not been waived.
The motion to dismiss the appeal is denied.
McComb, J., Tobriner, J., Mosk, J., and Clark, J., concurred.
SULLIVAN, J.—I dissent. The majority, confronted with the settled rule that the acceptance of the benefits of a judgment constitutes a waiver of any appeal, attempt to circumvent it by creating a special exception for homesteads. The exception is grounded on the premise that “at stake” are two rights favored by the law—the right of appeal and the right of homestead. (Majority opn., ante p. 113.) This of course is quite meaning-
Actually then the above rights are not “at stake” at all in the instant case. The single, simple question before us is whether defendants by accepting the amount of their homestead exemption have brought themselves within the above waiver rule and the case of Turner v. Markham (1907) 152 Cal. 246 [92 P. 485], which is clearly on point. Faced with Turner, the majority attempt to avoid its impact by confessing that it sets forth “a legal principle that is sound in its general application” and at the same time rejecting the principle since “it does not accomplish a fair result within the homestead context” (majority opn. ante pp. 113-114)—whatever that may mean, since Turner itself was a case involving execution on a homestead. Yet the majority neither overrule Turner nor disapprove of any of its language. They are all at once in agreement with the precedent but unhappy with its results.
In the instant case, plaintiff recovered judgment against defendants in the sum of $42,366.54 and to enforce the judgment caused a writ of execution to be levied on defendants’ real property already subject to their declaration of homestead. This property was evaluated by three appraisers (
It is long and well established law in this state that ordinarily a party may not accept the benefits of a judgment and then proceed to attack that judgment by appeal.1 (See Preluzsky v. Pacific Co-operative C. Co. (1925) 195 Cal. 290, 293 [232 P. 970]; Estate of Ayers (1917) 175 Cal. 187, 190 [165 P. 528]; Turner v. Markham, supra, 152 Cal. 246, 247; Estate of Shaver (1900) 131 Cal. 219, 221 [63 P. 340]; In re Baby (1890) 87 Cal. 200, 202 [25 P. 405]; Miller v. National American Life Ins. Co. (1976) 54 Cal.App.3d 331, 343 [126 Cal.Rptr. 731] Pickins v. Coffey (1933) 136 Cal.App. 105, 106 [27 P.2d 914]; see also 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, §§ 136-137, pp. 4131-4133.)
It is clear that by accepting pursuant to the trial court‘s decision the amount of their homestead exemption from the proceeds of the sale on execution, defendants accepted the benefits of the judgment and thereby under the above rule waived their right of appeal.
To elude this result, the majority attempt to bring this case within exceptions to the above rule. Clearly none of them is pertinent. Nonetheless the majority, although conceding that the so-called severability and forfeiture exceptions are not “directly applicable,” construe them as providing a “compelling rationale” for jettisoning the waiver of appeal rule where a homestead is involved. This position becomes further obscured by the majority‘s express finding that the judgment in the present case is not severable.2 Eventually, the majority appear to say that the forfeiture exception may be applicable.
To support this last position, the majority reason as follows. If in order to proceed with his appeal a judgment debtor were required to refuse to accept from the proceeds of the sale the amount of his homestead exemption, he would risk forfeiture of the exemption which continues to
Of course the simple answer to the above rationale, as indeed the majority seem to recognize, is that under
Since neither the forfeiture exception nor any other exception is apposite, the case at bench remains squarely within the established rule of waiver of appeal. Moreover, our opinion in Turner v. Markham, supra, 152 Cal. 246, wherein this court unanimously held that this rule of law is specifically applicable to the homestead setting, is directly on point. In Turner, the judgment creditor successfully subjected the judgment debtor‘s homestead to execution and the judgment debtor appealed the court order of sale. The property was sold on execution and while the appeal was pending the judgment debtor accepted from the proceeds of
Faced with this formidable precedent which they neither overrule nor disapprove, the majority attempt to distinguish Turner from the case at bench. The attempt fails. The only basis advanced for distinguishing the cases is the insolvency of the judgment debtor in Turner. By inference, the majority would have us believe that the present judgment debtors are solvent. The facts belie such a conclusion. Defendants were unable to satisfy the original judgment. The record shows that in addition to liens and encumbrances totalling $25,437.23 existing on the homestead property, defendants owed $6,104.41 to B. L. Noonan, $424.53 to the Retailers Credit Association, $1,308.66 to Anderson & Perkins, Inc., $238.66 to J. Lee, $130.54 to Lake County Collections, and $124.29 to Oroville Credit Bureau. In his declaration in support of opposition to motion to dismiss appeal, defendant-appellant Edward F. Brown stated “I had no money to purchase a bond to stay these proceedings.” In oral argument before this court, counsel for plaintiff stated that defendants
The general rule that one who accepts the benefits of a judgment is estopped from pressing an appeal is firmly established. The case now before us clearly does not come within any of the recognized exceptions to this rule. This court in a factually indistinguishable case has specifically applied this rule in the homestead context. Therefore reason compels a conclusion that defendants, having accepted the amount of the homestead exemption, cannot proceed with their appeal. Fairness demands the same conclusion. Defendants’ property on which they had declared a homestead, after being sold on execution, remained subject to redemption within 12 months from the date of the sale. (
In sum, in the instant case defendants have accepted the benefits of a judgment. They have made their choice and under existing California
Wright, C. J., concurred.