266 P. 617 | Cal. Ct. App. | 1928
This is an action asking that a homestead declaration be set aside and declared invalid and the lands described in the declaration adjudged subject to the lien of a judgment which plaintiff obtained against the defendant A.D. Hunt subsequent to the filing and recording of the homestead declaration by his wife, Luella Mae Hunt. The trial court set aside the declaration in so far as it affected one of the lots described, declared valid the homestead as to two adjoining lots, and also declared certain insurance moneys due defendants on account of the *79 destruction of a dance-hall that was on the lot held not within the homestead, subject to the lien of the writ of execution issued on plaintiff's judgment. Defendants appeal from that portion of the judgment declaring the homestead declaration invalid as to lot No. 28 of the subdivision of Tract No. 11 of the Yuba Gardens, situated about one mile south of Marysville in Yuba County, California.
As the facts in the case the trial court found that on May 8, 1925, judgment was entered in the superior court of Yuba County, California, in favor of plaintiff and against defendant A.D. Hunt for the sum of $2,500 and costs; that no part of this judgment has been paid; that a writ of execution thereon was duly issued and levied on July 17, 1925, on all the interest of defendant A.D. Hunt in and to two parcels of real property in Marysville, Yuba County, California, parcel No. 1 being lots 27 and 28 of Tract 11 of Yuba Gardens, and Tract No. 2 being commonly known as the "Shoemate Place," this parcel containing 87/100 of an acre of land; that defendant Luella Mae Hunt is and was at all times mentioned in the proceedings the wife of defendant A.D. Hunt; that after the levy of the writ of execution a large dance-hall on lot 28 of subdivision of Tract 11 was destroyed by fire; that certain insurance money payable to defendants on account of this fire damage has also been levied upon by plaintiff; that on April 25, 1925, defendant Luella Mae Hunt, as the wife of A.D. Hunt, filed and recorded a declaration of homestead on the properties above mentioned; that the parcels of land are contiguous, but were bought by defendants from different parties under different conveyances; that when the declaration was filed defendants were actually residing on the parcel of land known as "Shoemate Place," their dwelling-house being thereon; that a portion of this dwelling-house was used as a merchandising store, having in front of it a gasoline and oil station; that the only use made of lot 27 by defendants was for pasturing one cow and some Shetland ponies; that lot 28 was never at any time used for residence purposes or for the use of the home; that on lot 28 a large dance-hall was situated where defendants held Saturday night public dances for several years prior to the trial of this action, and until this dance-hall was destroyed by fire occurring some time after the levy of plaintiff's writ of execution. As *80 conclusions of law on the findings the court declared defendants entitled to a judgment validating the homestead on lot 27 of Tract No. 11 of Yuba Gardens and the diagonal plot of land adjoining lot 28 of Tract 11 of Yuba Gardens, and declaring plaintiff entitled to judgment declaring invalid the homestead as to lot 28 of the subdivision of Tract No. 11 of Yuba Gardens and adjudging this last lot subject to the lien of plaintiff's judgment and writ of execution and also adjudging the insurance moneys due defendants on account of the destruction by fire of the dance-hall on lot 28 subject to plaintiff's writ of execution levied thereon.
Whether or not the determination of the trial court that the homestead was invalid as to lot 28 of the subdivision of Tract 11 and the improvements thereon is the proper adjudication of that question under the evidence in the case is the only matter presented for decision on this appeal.
[1] Section
The trial court in this case awarded defendants the land on which their dwelling-house was situated and said house. The facts in this case are very similar to those in the leading case in California relative to property that can be impressed with the privileges of homestead. (Gregg v. Bostwick,
"Both in the Constitution and in the statute the word `homestead' is used in its ordinary or popular sense — or, in other words, its legal sense is also its popular sense. It represents the dwelling house, at which the family resides, with the usual and customary appurtenances, including out-buildings of every kind necessary or convenient for family use and lands used for the purposes thereof. . . . Whatever is used — being either necessary or convenient — as a place of residence for the family as contradistinguished from a place of business, constitutes the homestead, subject to the statutory limit as to value. If, however, it is also used as a place of business by the family, which frequently happens, it may not therefore cease to be a homestead, if it would be necessary or convenient for family use independent of the business."
A similar question was presented in the case of In re Allen,
The facts in the case of Guernsey v. Douglas,
An analysis of the cases cited by counsel for appellant wherein homesteads upon property on which were structures used for business purposes as well as the dwelling-house occupied by the declarant and family will show facts different from those concerning the lot and improvements in question here. The properties in Ackley v. Chamberlain,
The case of Heathman v. Holmes,
In Hohn v. Pauly,
The use made of the lot in question here, adjudged subject to plaintiff's judgment, is shown by the evidence to have been the maintaining thereon of a dance-hall by defendants where public dances for monetary remuneration *84 were conducted. The character of the business maintained is one entirely foreign to the conception of a home. The judgment in this case does not affect the homestead declared other than to limit its extent to the property occupied for residence purposes and the business of storekeeping and oil station and supplies which was being conducted on the Shoemate lot, when the declaration was made. In adjudging the Shoemate lot and lot 27 of the subdivision of Tract 11 a homestead and not subject to the plaintiff's judgment, the trial court gave as liberal a construction to the homestead law as should be given under the facts in this case and no sufficient reason appears for changing the adjudication made in this instance by that court.
The judgment is affirmed.
Hart, Acting P.J., and Plummer, J., concurred.
A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 14, 1928.
All the Justices concurred.