72 Wash. 36 | Wash. | 1913
Plaintiff Scott secured a judgment against the defendant Guiberson. Thereafter Guiberson came into a devise of some real property situate in Pierce county. Execution was levied upon this property, which was wild, unoccupied, and unenclosed. Thereupon defendant filed a declaration of homestead, saying:
“Said land is at the present time in a wild and uncultivated condition, and there are no buildings of any character on said land; that as rapidly as my means will permit I am placing said land under cultivation and intend to erect thereon a residence suitable for the occupancy of myself and family; . . . That it is my intention to use and claim the said lots of land and premises above described, together with the dwelling house to be erected thereon, and its appurtenances, as a homestead;”
The sheriff of Pierce county proceeded to, and did, sell the property, whereupon defendant objected to the confirmation of the sale.
The issue presented upon confirmation was whether a homestead can be claimed in unoccupied land by a mere declaration of intention. It has been held in Krutz v. Batts, 18 Wash. 460, 51 Pac. 1054; Harding v. Atlantic Trust Co., 36 Wash. 536, 67 Pac. 222; Lewis v. Mauerman, 35 Wash. 156, 76 Pac. 737, and Boothe v. Summit Coal Min. Co., 59 Wash. 610, 110 Pac. 536, that the confirmation of an execution sale of realty, after it has been claimed as exempt as the homestead of the judgment debtor, is not an adjudi
There are very substantial reasons why the cases first referred to should be adhered to. The first and most important is, that the legislature, with seeming design, has said that the only objections to be considered upon the confirmation are such as go to the regularity of the proceeding. Rem. & Bal. Code, § 591. There can be no doubt of the construction put upon the statute in the Krutz case, for the court is directed to confirm the sale notwithstanding objections that do not go to the regularity of the proceeding; and further that, if the proceeding is irregular, the court is directed to disallow the motion and direct the property to be resold. The statute describes the duty of the court in the particular proceeding. Again,' the inquiry upon confirmation is in a sense collateral, and may involve the rights of third parties who are not before the court. This being true, it has been held with one accord that the sale of a homestead passes neither title nor the right of possession (21 Cyc. 631) ;
The Waldron case seems to have proceeded upon the theory that the right to be heard could not be abridged as to either time or place. This is unsound, for remedies are wholly with the legislature, and in so far as the rights of defendant are concerned, they have not been denied. The Waldron case purports to be based upon Field v. Greiner, 11 Wash. 8, 39 Pac. 259, and Whitworth v. McKee, 32 Wash. 83, 72 Pac.
“Whether the exemption of the property is a proper subject of consideration upon motion to confirm an execution sale is a question which has been but infrequently considered. If a sale may be refused confirmation on the ground that the*41 property sold was exempt therefrom, the granting of an order of confirmation might involve an adjudication, actual or presumed, that the property sold was not exempt from such sale. We think the better opinion is, that the right of exemption, where claimed, should be left for determination in some subsequent action to recover the property sold, or to otherwise determine its title, and hence, that the confirmation of the sale of real property does not estop its owner from contending, in a subsequent action, that it constituted a homestead, and was, therefore, not subject to execution sale.” Freeman, Executions (3d ed.), § 311.
The point is made that, there being no showing of an appraisement of the homestead, it is such an irregularity as will avoid the sale. The statute covering appraisement, Laws 1895, p. 109, § 9 et seq., covers only those cases where an execution is levied upon an existing homestead the value of which may be contested by the execution creditor. Here' there was no homestead asserted or in existence at the time of the levy, nor had the declaration of intention been filed. The execution was regular, and the land subject to levy. There was no irregularity. The object of the act of 1895 was not to try title, but to provide for a levy upon the excess value of property claimed as exempt, the exemption being admitted. This question may occur later, but it is not before us now.
For these reasons, the appeal is dismissed and the judgment of the lower court is affirmed.
Main, Parker., Mount, and Gose, JJ., concur.